author: WETTICK JR., A.J.,

text:
    Morganti v. Ace Tire & Parts Inc.

      C.P. of Allegheny County,
    no. GD03-008656.

      Irving M. Portnoy and S. Michael Streib, for plaintiffs.

      Paul E. Pongrace III, for defendants.
    December 28, 2004
   WETTICK JR., A.J.,

The subject of this opinion and order of court is plaintiffs’ motion to compel defendants to produce surveillance tapes of plaintiff-husband (plaintiff) prior to plaintiff’s deposition.

This is a personal injury action in which plaintiff alleges that he suffered permanent and irreversible brain damage and impairment of his cognitive and motor functions as a result of a motor vehicle accident.

Plaintiff has not yet been deposed. In answers to interrogatories, defendants state that a representative of defendants engaged in surveillance of plaintiff on several occasions and has taken surveillance videotapes. Plaintiffs seek production of the videotapes prior to plaintiff’s deposition because the Pennsylvania Rules of Civil Procedure governing discovery permit discovery of relevant trial preparation material. Defendants object to producing the surveillance videotapes of plaintiff until after he has been deposed.

Each party makes reasonable arguments in support of that party’s position. Plaintiffs contend that the interests of justice are best served by permitting production of the tapes before plaintiff’s deposition because it is not fair to allow counsel for defendants to frame questions— based on tapes that plaintiff has not seen — designed to make plaintiff’s testimony appear to be inconsistent with what the tapes show. Also, plaintiff’s lawyer will be unable (because he or she has not seen the tapes) to ask questions that will allow plaintiff to explain any possible discrepancies. Showing the videotapes to plaintiff before his deposition simply eliminates the issue of whether plaintiff might have offered untruthful testimony that is inconsistent with the tapes. Moreover, if defendants believe that plaintiff has presented false testimony tailored to the tapes, defendants can conduct additional surveillance activities after plaintiff’s deposition (as long as defendants supplement their discovery responses). Thus, discovery of surveillance tapes prior to plaintiff’s deposition merely eliminates the situation in which defense counsel can base questions on tapes that plaintiff has not seen.

Defendants contend that the interests of justice are best served by barring production of the tapes until plaintiff has been deposed because a plaintiff who intends to present false testimony will tailor his or her testimony to the tapes.

Discovery of surveillance activities and materials is addressed in numerous reported opinions of federal courts, and of state courts with discovery rules unlike Pennsylvania’s but similar to the federal discoveiy rules. See generally, Donna Denham and Richard Bales, “The Discoverability of Surveillance Videotapes Under the Federal Rules,” 52 Baylor L. Rev. 753 (2000); Patricia L. Ogden, “ ‘A Picture Is Worth a Thousand Words’— The Permissible Scope of Discovery of Videotape in Civil Cases: A Bifurcation Approach,” 29 Ind. L. Rev. 441 (1995); Charles Alan Wright, Arthur Miller and Richard L. Marcus, 8 Fed. Prac. & Proc. Civ.2d §2015 (2004).

There is a split of authority that ranges from rulings that a defendant is not required to disclose even the existence of a surveillance videotape prior to trial (Ranft v. Lyons, 471 N.W.2d 254 (Wis. Ct. App. 1991)) (protected work product), to rulings that a defendant must disclose all surveillance materials involving a party to the action with no limitation as to timing (Tran v. New Rochelle Hospital Medical Center, 786 N.E.2d 444 (N.Y. 2003)) (based on New York legislation). However, most of the cases reject both the position that a plaintiff may not obtain discovery of any surveillance activities and the position that the defendant must produce its surveillance videotapes with no limitations as to timing.

In most jurisdictions, the defendant who seeks to introduce surveillance videotapes at trial must provide these videotapes after the plaintiff has been deposed. However, most courts do not require the defendant to provide any information as to whether the defendant conducted any surveillance activities prior to the plaintiff’s deposition. See Gutshall v. New Prime Inc., 196 F.R.D. 43 (W.D. Va. 2000), and cases cited therein; Roundy v. Staley, 984 P.2d 404, 407 (Utah Ct. App. 1999), and cases cited therein. Other courts require the defendant, before the plaintiff is deposed, to answer interrogatories as to the existence of surveillance tapes but not to produce the tapes. See Smith v. Diamond Offshore Drilling Inc., 168 F.R.D. 582 (S.D. Tex. 1996).

Although there is a split of authority, most courts do not require the defendant, even after the plaintiff has been deposed, to furnish information concerning surveillance activities or to produce surveillance tapes where the defendant does not intend to introduce any surveillance tapes or to refer to any surveillance activities at trial. Bradley v. Wal-Mart Stores Inc., 196 F.R.D. 557 (E.D. Mo. 2000); Fletcher v. Union Pacific Railroad Co., 194 F.R.D. 666 (S.D. Cal. 2000); Gibson v. National Railroad Passenger Corp., 170 F.R.D. 408 (E.D. Pa. 1997), and cases cited therein.

This case law of these other jurisdictions is based on an analysis of the scope of attorney work product protections that are not provided for in the Pennsylvania Rules of Civil Procedure.

Surveillance tapes are tangible things prepared in anticipation of litigation or for trial. Consequently, discovery of these tapes is governed by Federal Rule of Civil Procedure 26(b)(3) which reads as follows:

“(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

Since surveillance tapes are governed by Federal Rule 26(b)(3), or a similar rule, a plaintiff cannot obtain the tapes through discovery simply by showing that they are relevant evidence. Instead, the tapes are protected from discovery through a qualified privilege which protects the tapes from discoveiy in the absence of a showing that the plaintiff “has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

The scope of this qualified privilege protecting surveillance evidence, as stated by most courts, is determined through a balancing of the interests protected by the work product doctrine and the interests that would be advanced by disclosure. Where the issue is whether the defendant must produce surveillance tapes it wishes to introduce at trial, the majority of the cases do not require production of the tapes in response to discovery requests before the plaintiff is deposed in order to preserve the impeachment value of the surveillance. However, they require the defendant who intends to use surveillance tapes at trial to produce the tapes after the deposition because of the plaintiff’s need to evaluate the surveillance evidence to determine its authenticity and accuracy. On the other hand, most courts do not require defendants who do not intend to introduce surveillance videotapes at trial to produce their tapes, even after the plaintiff has been deposed, because a plaintiff can prove his or her claims as to the nature and extent of the injuries by other means, including his or her own testimony.

The Pennsylvania Rules of Civil Procedure, with respect to attorney work product, differ from the federal rules. Except in limited circumstances that do not apply to surveillance activities, Pennsylvania does not protect trial preparation material. To the contrary, Pa.R.C.P. 4003.3 specifically provides that a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation for trial:

“Rule 4003.3. Scope of discovery. Trial preparation material generally

“Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” (emphasis added)

Thus, for Pennsylvania courts, the issue is not whether the plaintiff has shown a substantial need for the surveillance material but, rather, whether it is a matter discoverable under Pa.R.C.P. 4003.1.

Rule 4003.1(a) permits a party to obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Discovery regarding surveillance activity and surveillance material comes within the scope of this provision because it relates to the claims of the plaintiff.

The only issue presented for decision here is whether a defendant must produce surveillance videotapes before the defendant has deposed the plaintiff. Plaintiff argues that I should permit production of the videotapes prior to the taking of his deposition because (1) there are no provisions in the Pennsylvania Rules of Civil Procedure that treat work product discoverable under Rule 4003.3 in a different manner from any other item of discovery and (2) a ruling that surveillance information and materials may be discovered before the plaintiff is deposed is consistent with the overall approach of the Pennsylvania Rules of Civil Procedure governing discovery of creating a level playing field for all parties. See e.g., Pa.R.C.P. 4003.4.

On three occasions in the last four years, the Pennsylvania Superior Court has addressed the issue of the obligation of the defendant who seeks to use a surveillance videotape at trial to disclose the tape prior to trial.

In Dominick v. Hanson, 753 A.2d 824 (Pa. Super. 2000), the trial court permitted the defendant to present videotaped surveillance evidence of the plaintiff which was not disclosed in pretrial discovery. In determining whether this was reversible error, the Superior Court addressed two issues: whether videotaped surveillance evidence is discoverable and if discoverable, whether the videotaped surveillance evidence was admissible in this case because the plaintiff had failed to challenge the defendant’s objection to the plaintiff’s interrogatories inquiring about any surveillance of the plaintiff. The Superior Court, citing Rule 4003.1(a), ruled that videotaped surveillance evidence is discoverable.

“Clearly a defendant’s videotaped surveillance of a plaintiff, who claims to have been injured as a result of the defendant’s negligence, is ‘relevant’ to the subject matter of the lawsuit. Although this evidence constitutes work product because it is prepared solely in anticipation of litigation, Pa.R.C.P. 4003.3 provides that work product is discoverable, with the exception of the mental impressions and opinions of the party’s attorney and other representatives.” Id. at 826.

On the issue of timing, the court stated:

“Having concluded that videotaped surveillance evidence is discoverable, we need not determine at this time when disclosure must occur; suffice it to say that under the Pennsylvania Rules of Civil Procedure, appellees were required, when questioned, to disclose whether they conducted videotaped surveillance of appellant prior to trial. We now must determine whether appellees’ failure to disclose the evidence in the present case should have rendered it inadmissible.” Id. at 827.

On the final issue, the court ruled that the defendant’s surveillance evidence was admissible despite the defendant’s failure to disclose the evidence prior to trial because the plaintiff failed to obtain a ruling on the defendant’s objection to the plaintiff’s pretrial inquiry regarding surveillance evidence.

In Bindschusz v. Phillips, 771 A.2d 803 (Pa. Super. 2001), the defendants sought a new trial based on the refusal of the trial court to permit them to use a surveillance film of the plaintiff. The film was taken six days prior to the start of the trial and was not disclosed until after the plaintiff testified.

The plaintiff had submitted interrogatories requesting disclosure of any surveillance films. Defense counsel’s negative responses thereto were never timely supplemented as required by the Rules of Civil Procedure. The Superior Court upheld the ruling of the trial court because the defendants were required to supplement their answers to interrogatories after obtaining the film and to list the surveillance film as a potential trial exhibit. Their failure to do so resulted in unfair and prejudicial surprise to the plaintiff.

The Bindschusz opinion quotes most of an opinion authored by a federal district court judge in Snead v. American Export-Isbrandtsen Lines Inc., 59 F.R.D. 148 (E.D. Pa. 1973). In Snead, the plaintiff, who had not been deposed, sought a court order compelling the defendant to answer the plaintiff’s interrogatory as to the existence and details of any surveillance activity. The court, recognizing that this discovery is governed by Federal Rule 26(b)(3), ruled that it would protect the needs of the plaintiff and the interests of the defendant by not requiring the defendant to answer interrogatories as to the existence of any surveillance materials until the plaintiff had been deposed as to his injuries and liabilities. Thereafter, the interrogatories were to be answered and the films, if they existed, were to be produced if the defendant wished to use any films at trial. The Bindschusz opinion states that the Snead opinion analyzed and properly resolved “this issue” in its ruling “on a motion to compel answers to interrogatories designed to disclose the existence of such films.” 771 A.2d at 810.

In Duncan v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 813 A.2d 6 (Pa. Super. 2002), defense counsel, after the plaintiffs had presented their case, sought to introduce a surveillance videotape showing the plaintiff-wife engaged in various activities. The defendants had obtained the videotape by subpoena from the wife’s former employer. The trial court did not permit its use because the defendant had never supplemented its response to an interrogatory requesting discovery of videotapes related to the present action. However, the court permitted the defendant to cross-examine the plaintiff-wife on the specific activities she performed on the videotape. On appeal, the Superior Court ruled that the trial court erred in permitting explicit descriptions of the video’s content and granted a new trial. The court said it failed to see how this cross-examination prejudiced the plaintiffs any less than if the videotape itself had been admitted into evidence and played for the jury.

The court cited Bindschusz for the propositions that there is a duty to disclose and that the use of the video at trial constituted an unfair surprise. The court’s opinion includes the following:

“On appeal, and without Pennsylvania authority on the admissibility of surveillance evidence withheld from discovery, this court turned to the courts of the Eastern District of Pennsylvania and their decisions regarding the Federal Rules of Civil Procedure. . . . Recognizing the competing interests of the defendant to expose fraud and of the plaintiff to test the integrity of impeachment evidence, the federal decisions require a defendant to . disclose the existence of surveillance videos, but only after defendant has had the opportunity to depose a plaintiff regarding the extent and effect of plaintiff’s alleged injuries.. ..

“This court agreed that the purpose of Pennsylvania’s own discovery rules — prevention of surprise and unfairness, and the fostering of a fair trial on the merits — was best served by the procedure espoused in the federal cases.Bindschusz, 771 A.2d at 811 (citing Snead v. Ameri can Export-Isbrandtsen Lines Inc., 59 F.R.D. 148 (E.D. Pa. 1973)).” 813 A.2d at 10. (footnote omitted)

Plaintiffs contend that I am not bound by the portions of the Bindschusz and Duncan opinions quoting with favor the ruling of the Snead opinion requiring disclosure of surveillance tapes only after the defendant has been deposed. The only issues before the Superior Court in Bindschusz and Duncan were whether the defendants, if they wished to use the videotape at trial, were required to supplement their answers to interrogatories after obtaining the videotape and whether their failure to supplement their answers to interrogatories and to include the videotape as a potential trial exhibit resulted in unfair and prejudicial surprise to the plaintiff.

The issue that Snead addressed — whether a defendant must respond to discovery requests designed to disclose the existence of surveillance films before the plaintiff is deposed — was not presented in these cases.

In Bindschusz, the Superior Court quoted and emphasized in boldface type the following language from Snead:

“Before any of these disclosures, however, the defense must be given an opportunity to depose the plaintiff fully as to his injuries, their effects and his present disabilities.” 771 A.2d at 811 (emphasis in original), quoting 59 F.R.D. at 151.

This opinion of the Superior Court with this quoted boldface language is intended to provide a guideline for trial courts that relates to the court’s discussion of an issue which the court was addressing: whether surveillance videotapes must be produced.

For these reasons, I enter the following order of court:

ORDER

On December 28,2004, it is hereby ordered that plaintiffs’ motion to compel production of the surveillance tapes of plaintiff-husband prior to the taking of his deposition is denied. The parties shall agree upon a date by which the deposition of plaintiff-husband shall be taken.

      . The case law governing the discovery of surveillance tapes of other state courts is based on rules of civil procedure that are very similar, if not identical, to Federal Rule 26(b)(3).


source: Caselaw Access Project

author: GRINE, J,

license: Public Domain

text:
    Commonwealth v. Masters

      C.P. of Centre County,
    no. 2004-98.

      Nathan L. Boob, for Commonwealth.

      Sean P. McGrow, for defendant.
    January 3, 2005
   GRINE, J,

Presently before this court is defendant Jody R. Masters’s summary appeal of a citation she received for driving while her license was suspended in violation of 75 Pa.C.S. §1543. Defendant does not dispute the fact that she was driving her vehicle when she did not have a valid license. Additionally, defendant does not dispute that her license was suspended because of a conviction for driving under the influence. Defendant is, however, contesting whether she should have been found guilty of violating the statute because her period of suspension had expired some time before she was cited for driving under suspension.

Defendant was convicted of driving under the influence on or about November 15, 2001. As a result of her conviction, her driver’s license was suspended for a period of one year commencing on or about January 8,2002, with official notice being sent to defendant by the Pennsylvania Department of Transportation on or about April 9, 2002. Defendant testified at the hearing held before this court on September 10, 2004, that she voluntarily elected to undergo a two-year period of suspension because she could not afford to install the ignition interlock device that would have been a condition of her license restoration after the one-year period of suspension expired. Defendant became eligible for the restoration of her driver’s license on or about January 8, 2004.

The charge giving rise to this summary appeal occurred on or about April 14,2004. Trooper Pacella of the Pennsylvania State Police recognized the defendant and her vehicle and noted that mud had been strategically placed over the portion of the windshield where the inspection sticker was to be displayed. He also noted the rest of the vehicle did not have a proportionate amount of mud on it, and he initiated a traffic stop. At that time he questioned her about her driving as he knew she was under a suspension. Defendant was cited for driving under suspension. Defendant subsequently went to a driver’s license center and had her license restored on or about May 16, 2004. Her license was suspended again on August 11, 2004, as a result of this new charge.

Defendant argued to this court that her period of suspension had expired on or about January 8, 2004, and her license should have been restored at that time. Because she was eligible to have her license restored, she should not be found guilty of violating section 1543 of the Motor Vehicle Code. In support of this argument, defendant cited to this court the case of Rossi v. PennDOT, 798 A.2d 801 (Pa. Commw. 2002). In Rossi, the defendant failed to comply with PennDOT’s restoration requirements necessary to restore her license. Despite her failure to comply, the Commonwealth Court ruled that once the suspension period ended, the operator’s driving privileges were “restored by operation of law.”

The Superior Court has since declined to adopt the rationale used by the Commonwealth Court in Rossi, going so far as to indicate that it is not bound by Commonwealth Court decisions. See Commonwealth v. Byrne, 815 A.2d 637, 638 (Pa. Super. 2002), citing Commonwealth v. Lewis, 718 A.2d 1262, 1265 n.10 (Pa. Super. 1998), allocatur denied, 558 Pa. 629, 737 A.2d 1224 (1999). In Byrne, the Superior Court adopted the reasoning in Commonwealth v. Tharp, 724 A.2d 368 (Pa. Super. 1999), which required a person to seek restoration of his driving privileges and “anything short of such an accomplishment will subject the operator to the penalties associated with violation section 1543 despite the expiration of the license suspension period during the time of operation.” Byrne, 815 A.2d at 638.

An examination of the statute even indicates to this court that a person must have his/her driver’s license restored in order to avoid penalty under section 1543. The statute specifically states, “any person who drives a motor vehicle... after the commencement of a suspension, revocation or cancellation ... and before the operating privilege has been restored is guilty of a summary offense.” 75 Pa.C.S. § 1543(a). (emphasis added) In other words, formal restoration of operating privileges is required before a person who had been the subject of a license suspension can legally drive again.

Defendant also argued to this court that she did not receive notification from PennDOT when her suspension period had expired and she was eligible to have her license restored. However, this court is not persuaded by this argument. Defendant testified that following her citation for driving under suspension, she went to a driver’s license center and filled out the paperwork and paid the fee necessary to have her driver’s license restored. While defendant may not have received official word from PennDOT that her suspension period was over, nothing prevented her from going to a driver’s license center and making those same inquiries before she got behind the wheel of her car, knowing full well that while her suspension period might be over, she had yet to have her license restored. This court is, therefore, satisfied that defendant is guilty of the charge of driving under suspension.

Finally, because the suspension that is the subject of this summary appeal was the result of a charge of driving under the influence, section 1543 of the Motor Vehicle Code requires a fine of $500 and a period of not less than 60 days nor more than 90 days of imprisonment. Defendant’s sentence of a $500 fine and intermediate punishment for a period of 60 days in the in-home detention program was appropriate under the statute. See 75 Pa.C.S. §1543(b)(l).


author: ORINE, J,

text:
    Commonwealth v. Turner

      C.P. of Centre County,
    no. 2004-1507.

      Lance T. Marshall, for Commonwealth.

      Kelley S. Gillette-Walker, for defendant.
    December 23, 2004
   ORINE, J,

Before this court for consideration is the petition for writ of habeas corpus brought by defendant Dale R. Turner through his counsel. Defendant asserts in his petition that the Commonwealth failed to establish a prima facie case on the charges of sale or transfer of firearms, 18 Pa.C.S. §6111(g)(4) and falsification to authorities, 18 Pa.C.S. §4904 (b). For the reasons articulated below, this court agrees with defendant’s argument and grants defendant’s petition.

PRELIMINARY DISCUSSION

On December 23, 2003, defendant went to Port’s Sports Emporium located in Bellefonte, Centre County, Pennsylvania to pick up a firearm he won in a raffle. Before he could acquire the firearm, defendant was required to complete the Department of Treasury form “Firearms transaction record — Part I” (firearm application). Defendant completed and signed the form, and the sales associate called the information in to the Pennsylvania background check system. Defendant’s firearm application was denied, and the sales associate informed him thus. Petitioner expressed his confusion regarding the denial but substituted a rotor tiller for the prize-won firearm and left without incident.

Defendant was subsequently charged with sale or transfer of firearms and unsworn falsifications to authorities. A preliminary hearing was held in the matter on August 25,2004, before District Justice Carmine Prestia. At the hearing, Trooper Brian L. Haubrick of the Pennsylvania State Police testified that defendant had been involuntarily committed to the Dubois Regional Medical Center pursuant to section 302 of the Mental Health Procedures Act (50 P.S. §7302). Prelim, hr’g. tr. at 9. At the conclusion of the hearing, District Justice Prestia bound the defendant over for trial on both charges.

Defendant filed his petition for writ of habeas corpus and memorandum in support of his petition on November 9, 2004, and a hearing was held on the matter on December 16, 2004. At the hearing no additional findings of fact, conclusions of law, or briefs were requested by the court, but the transcript of the preliminary hearing was submitted for the court’s consideration.

DISCUSSION

Defendant has been charged with violating 18 Pa.C.S. §6111(g)(4), sale or transfer of firearms, which states:

“Any person... who... knowingly and intentionally makes any materially false oral or written statement or willfully furnishes or exhibits any false identification intended or likely to deceive the seller . . . commits a felony of the third degree.”

Defendant has also been charged with violating 18 Pa.C.S. §4904(b), unsworn falsification to authorities, which states:

“A person commits a misdemeanor of the third degree if he makes a written false statement, which he does not believe to be true, on ... a form bearing notice, authorized by law to the effect that false statements therein are punishable.”

Defendant asserts that the Commonwealth has not established its prima facie case. The central focus of defendant’s argument is on question 12f of the firearms application which asks, “Have you ever been adjudicated mentally defective (which includes having been adjudicated incompetent to manage your own affairs) or have you ever been committed to a mental health institution?” Defendant is not arguing that he was never involuntarily committed under section 302 of the Mental Health Procedures Act. Defendant’s argument concerns the question’s use of words “mental institution.”

The firearms application contains a “definitions” section; however it does not provide a definition for “mental institution.” The Mental Health Procedures Act, which governs the policies and procedures in providing mental health treatment to individuals who need or seek such treatment, does not define “mental institution” either. The Mental Health Procedures Act only defines “facility” as “any mental health establishment, hospital, clinic, institution, center, day care center, base service unit, community mental health center, or part thereof, that provides for the diagnosis, treatment, care or rehabilitation of mentally ill persons, whether as outpatients or inpatients.” 50 P.S. §7103.

The question then becomes what does “mental institution” mean within the firearms application? The defendant in the present case was committed to the mental health ward of the Dubois Regional Medical Center and released some time ago. Under the Mental Health Procedures Act, Dubois Regional Medical Center would qualify as a “facility,” but there is nothing to indicate whether it would qualify as a “mental institution” under the firearms application.

The Commonwealth presented no evidence at the preliminary hearing that the Dubois Regional Medical Center qualified as a “mental institution” within the meaning of the application. “Institution” is defined in the dictionary as “an established organization or corporation (as a college or university) esp. of a public character; also: asylum.” Merriam-Webster’s Collegiate Dictionary, 606 (10th ed. 1998). “Asylum” is defined as “an institution for the care of the destitute or sick and esp. the insane.” Id. at 72. Neither of these definitions would appear to this court to adequately describe the Dubois Regional Medical Center, which could be more aptly described as a hospital designed to deal with a variety of patients with varying ailments. This court is further convinced that no person of average intelligence admitted or committed to the mental health ward of a regional hospital or medical center would consider himself to have been committed to a “mental institution.”

Absent any evidence that the Dubois Regional Medical Center fits within the firearms application’s definition of “mental institution,” the Commonwealth cannot establish that the defendant knew his commitment to the Dubois Regional Medical Center would require him to answer “yes” to question 12f on the firearms application. Thus, the Commonwealth cannot establish that the defendant knowingly and intentionally provided a false statement when he answered “no” to question 12f on the firearms application. The Commonwealth did not, therefore, establish its prima facie case. Defendant’s petition must be granted, and the charges must accordingly be dismissed.

The court enters the following order:

ORDER

And now, December 23, 2004, after a hearing on the matter, it is hereby ordered and decreed that defendant’s petition for writ of habeas corpus is granted.

The charges against defendant are accordingly dismissed.


author: LUDGATE, J,

text:
    Commonwealth v. Dillman

      C.P. of Berks County,
    no. 3288-03.

      Jen Lukach, assistant district attorney, for Commonwealth.

      Jeanne Trivellini, for defendant.
    December 22, 2004
   LUDGATE, J,

On June 27, 2003, Jeffrey Dillman, defendant, was charged in a bill of information with: one count of criminal mischief, 18 Pa.C.S. §3304(a)(2); and three counts of disorderly conduct, 18 Pa.C.S. §§5503(a)(l), (a)(2) and (a)(4).

On July 21,2003, the defendant was sentenced to Berks County Prison to serve not less than 81 days, not more than 12 months on Count 2, disorderly conduct with credit for 81 days time served. He was also sentenced on Count 1 to a period of five years probation to commence at the expiration of the sentence imposed on Count 2.

On July 21, 2004, a bench warrant was issued for the defendant due to numerous violations of his probation, including failure to pay fines and costs, failure to comply with treatment, failure to abstain from the use of controlled substances and failure to abstain from the consumption of alcoholic beverages.

On October 19, 2004, this court ordered that the defendant’s probation be revoked, after holding a formal Gagnon II hearing and finding that the defendant was no longer amenable to a period of probation. The court then resentenced the defendant to six months to five years to the Bureau of Corrections for confinement in a state correctional facility on Count 1, criminal mischief.

On November 18, 2004, the defendant, by his attorney, Jeanne Trivellini, Esq., filed a notice of appeal to the Superior Court of Pennsylvania from this court’s October 19,2004 order in this matter. On November 23, 2004, this court ordered the defendant to file a concise statement of matters complained of on appeal within 14 days, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. The defendant provided such a statement on December 21,2004.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court requests that the instant appeal be denied.

The defendant raises the following matter for review in his 1925(b) statement:

“(1) The sentencing court abused its discretion when it resentenced defendant, following a Gagnon II hearing, to a term of six months to five years when such sentence was clearly unreasonable and excessive given the circumstances of the case and defendant’s personal experiences.”

It must first be noted that a trial court is given broad discretion when fashioning an appropriate sentence following the revocation of probation. Such a sentence will not be disturbed on appeal unless the Superior Court finds that there was an abuse of discretion. Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001), quoting Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Indeed, the Superior Court’s review is limited to a determination as to the validity of the proceedings and as to the authority of the sentencing court to consider the sentencing alternatives that it had at the time of the initial sentencing. Commonwealth v. Gheen, 455 Pa. Super. 499, 501, 688 A.2d 1206, 1207 (1997). Furthermore, when sentencing a defendant following the revocation of probation, a trial court is limited only by the statutory maximum sentence that it could have imposed originally at the time of the initial sentencing. Commonwealth v. Ware, 737 A.2d 251, 254 (Pa. Super. 1999).

Moreover, even if the guidelines did apply in the instant case, the defendant’s claim that his sentence was excessive does not raise a substantial question. Sentencing ordinarily lies within the sole discretion of the trial court, and a sentence imposed will not be reviewed by an appellate court, unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. The Pennsylvania Supreme Court has held that a claim that a sentence that falls within the statutory limits is excessive can still raise a substantial question so as to justify appellate review. Commonwealth v. Mouzon, 571 Pa. 419, 435-36, 812 A.2d 617, 627-28 (2002). The Supreme Court went on to explain that in order to raise a substantial question, an appellant’s 2119(f) statement must “sufficiently articulate[] the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.” Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004), quoting Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002).

Here, the defendant was being resentenced after a probation violation and the court stated its reasons on the record for sentencing the defendant in the manner in which it did. At the Gagnon II hearing, the court heard from Steven Arms, the defendant’s probation officer; Richard Forty, the assistant chief of the Adult Probation Office who conducted the Gagnon I hearing; Ken Parzanese, a case manager for Service Access Management which provides mental health services to inmates at Berks County Prison; Mike McGee, the executive director of Berks County TASC which is an organization that finds public funding for drug treatment; James Phalen, the program director of Bowling Green, a residential inpatient substance abuse treatment center; as well as the defendant himself. After hearing all the testimony, this court stated the following:

“The Court: At a resentencing hearing, for the purposes of the record and so everyone understands, the guideline ranges do not apply here. The guideline ranges, just for the purposes of education, would have been an offense gravity score of five at the time, with a prior record score of one, making the standard range one to 12, aggravated to 15 months, and mitigated down to RS. This would be for the criminal mischief that occurred at the hotel here locally, which resulted in damage which is alleged in excess, I believe, of $5,000. Now, that having been stated — I don’t need this order. I dictated the order.

“Let me be clear here. I considered all that testimony and I listened carefully to all that testimony before I made that decision, and I am satisfied that the defendant is indeed in violation of the rules that I stated. Now, that having been done — and I will indicate here that I will stay the bench warrant and make him eligible upon approval of a suitable parole plan. I will not add a penalty to the warrant costs of $122.

“Let me hear what the recommendation is from the probation office and then from Mr. Lightman, and I’ll hear from Mr. Dillman.

“The probation office: Your honor, having already revoked the probation, our recommendation is that he be sentenced to six months to five years, receive 90 days credit.

“The Court: You’re recommending six months to five years in the state penitentiary?

“The probation office: Yes, I am, your honor.

“The Court: All right. Ms. Lukach?

“The district attorney: The Commonwealth is in agreement, your honor.

“The Court: Mr. Lightman?

“The defense attorney: We feel that the recommendation is very extensive. Mr. Dillman needs his treatment and not further incarceration. We ask that the court take that into consideration.

“The Court: Mr. Dillman, is there anything that you want to say to the court?

“The defendant: I just wanted to comment on the charges. Controlled substance, that never happened.

“The Court: So you lied to TASC and said that you were using marijuana and alcohol, and you lied about that?

“The defendant: No. That never happened.

“The Court: Okay. So let’s see. Okay. You’re admitting you were using alcohol. Interestingly enough, you— according to what I just heard here, you went into Horsham Clinic, didn’t tell anybody in the Adult Probation Office; got released from Horsham Clinic on July 12; two days later you go to TASC, and they said you told them you were using alcohol and marijuana, so they got you into Bowling Green for some treatment. So they did that because they just wanted to? I don’t understand what you’re saying to me.

“The defendant: I checked myself into detox.

“The Court: I know that. But normally I can’t go in and say, hey, send me to detox. I have to give a reason. Your reason was what?

“The defendant: That I was drinking alcohol.

“The Court: So you knew that was a violation of your probation?

“The defendant: No, I did not.

“The Court: I mean, as many times as you’ve been through the system — this is the fifth time you’ve been in front of me. Are you telling me you thought a probationer could drink?

“The defendant: I didn’t know that was part of my probation. I didn’t know that drinking was part of my probation.

“Theprobation office: Your honor, just as a refresher for Mr. Dillman and the court, also, when he signed rules, that condition was checked; and in acknowledgment of that restriction, he put his signature onto that document.

“The Court: The court here has considered the facts that were stated that I revoked his probation, finding him no longer amenable to a period of probation. I’m aware of the guideline ranges. I’m aware — frankly, I could go higher than the guideline ranges since they’re not even applicable now, at least today they’re not applicable, October 19,2004. I’ve considered the recommendation and I’ve considered the statement made by Mr. Lightman.

“I find that this defendant needs a longer tail to try to ensure that he complies with the terms and conditions that were originally imposed here when he was given a time-served sentence to 12 months followed by five years probation and didn’t last very long at all before there was a violation.

“The court finds that the defendant here is ordered by this court to be committed for a period of not less than six months nor more than five years to the Bureau of Corrections for confinement in a state correctional facility, effective today, 90 days credit.” (Sentence hearing, N.T. 10/19/04, pp. 46-50.)

It is this court’s opinion that resentencing the defendant to a term of six months to five years imprisonment was not excessive given the extensive testimony on the record, the age of the defendant, the habitual nature of his involvement with the criminal justice system in Berks County, and the number of violations of probation that this defendant had. There is no substantial question presented here for the Superior Court to consider, as the defendant was sentenced within the statutory limits and the court placed numerous reasons on the record to justify the resentencing.

For all the above-mentioned reasons, this court respectfully requests that the defendant’s appeal be denied.


author: BROWN JR., P.J.,

text:
    Commonwealth v. Temple

      C.P. of Centre County,
    no. 2004-1342.

      Karen Kuebler, for Commonwealth.

      Stacy Parks Miller, for defendant.
    December 22, 2004
   BROWN JR., P.J.,

Before the court is defendant Edward Temple’s omnibus pretrial motion in the form of a petition for writ of habeas corpus and motion to quash information; said petition is granted. The court determines the Commonwealth did not provide sufficient evidence to support a prima facie case against defendant on the charge of fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a).

PROCEDURAL HISTORY

On July 1, 2004, defendant was charged with fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a). After the preliminary hearing on July 28,2004, the district justice found a prima facie case exists regarding this charge. On September 20, 2004, defendant filed the instant omnibus pretrial motion. Defendant maintains the Commonwealth failed to establish a prima facie case as to the charge of fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a), and disorderly conduct, 18 Pa.C.S. §5503(a)(4), because the Commonwealth is unable to show defendant was operating his vehicle on a “highway” or “trafficway” as required by 75 Pa.C.S. §3103(b). A hearing on this matter was held October 25,2004. Both parties have submitted briefs for the court’s consideration.

DISCUSSION

On July 1, 2004, defendant was charged with fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a) and disorderly conduct, 18 Pa.C.S. §5503(a)(4) by Officer Thomas E. Snyder of the Patton Township Police Department. Police were responding to a noise complaint in the former K-Mart parking lot. Defendant was approached by the officer and was asked to present identification, which defendant provided. After defendant and Officer Snyder spoke about whether defendant was free to leave, defendant proceeded to get into his vehicle and drove toward the parking lot entrance/exit, leaving his ID with the officer. A second officer was called to the parking lot, who blocked the entrance/exit with his vehicle, preventing defendant from leaving.

The Commonwealth has the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. McBride, 528 Pa. 153, 157-58, 595 A.2d 589, 591 (1991). To meet its burden, “the Com-

monwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.” Id. at 158,595 A.2d at 591. “Evidentiary inferences,... are constitutionally infirm unless the inferred fact is ‘more likely than not to flow from the proved fact on which it. .. depend[s].’ ” Id. at 159, 595 A.2d at 591. (emphasis in original) The “more-likely-than-not” test is a minimum standard in assessing the reasonableness of inferences relied upon to establish a prima facie case. Commonwealth v. Wojdak, 502 Pa. 359, 369, 466 A.2d 991, 996 (1983). Defendant argues the Commonwealth failed to present sufficient evidence to establish a prima facie case on the charge of fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a). The offense is defined as, “[a]ny driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits a misdemeanor of the second degree.” 75 Pa.C.S. §3733(a).

Defendant points out, pursuant to 75 Pa.C.S. §3101(b), the provisions of chapter 37, subchapter B (which includes 75 Pa.C.S. §3733(a)), only apply when they take place upon “highways and trafficways throughout this Commonwealth.” The Commonwealth concedes the incident did not occur on a highway, therefore such term need not be addressed. Trafficway, as defined in 75 Pa.C.S. § 102, is “the entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.”

Defendant was in the former K-Mart parking lot. The parking lot surrounds a single building which was at one time a K-Mart. K-Mart has been out of business for approximately two years. No other business has occupied the building since K-Mart went out of business. At the entrance of the parking lot, there are two signs, one which reads, “Private property, no trespassing.” The other warns violators will be towed. Based on the signs and the fact that the parking lot is not open to the public for vehicular travel, defendant argues the Commonwealth cannot establish the parking lot is a trafficway, as defined in 75 Pa.C.S. §102.

The Commonwealth provided the court with several cases where courts have held a parking lot, open to the public in a limited manner, is a trafficway within the meaning of the Vehicle Code. The court, however, is not convinced the old K-Mart parking lot is “open to the public for purposes of vehicular travel as a matter of right or custom.”

The Commonwealth provided no evidence establishing the parking lot was open to the public even in a limited fashion. The lot has no trespassing signs posted, not just to keep certain people off of the property, but to keep the entire public from ingress and egress.

Based upon the foregoing, the court determines the Commonwealth has failed to establish the parking lot falls within the definition of trafficway, 75 Pa.C.S. §102. Therefore, a prima facie case has not been established against defendant on the charge of fleeing or attempting to elude police officer, 75 Pa.C.S. §3733(a).

Defendant’s omnibus motion maintains the Common- , wealth failed to establish a prima facie case as to the offense of disorderly conduct, 18 Pa.C.S. §5503(a)(4). However, defendant did not address this charge in his brief and provides no case law to support such a contention. Therefore, the court will not address the merits of this argument. Young v. Washington Hospital, 761 A.2d 559, 561 n.3 (Pa. Super. 2000).

Accordingly, the following is entered:

ORDER

And now, December 22, 2004, upon consideration of defendant Edward Temple’s omnibus pretrial motion and after oral argument, said motion is granted in part. The charge of fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a) shall be dismissed from the criminal information.

Defendant’s motion regarding the charge of disorderly conduct, 18 Pa.C.S. §5503(a)(4), is denied. The court determines there is sufficient evidence to support aprima facie case on this charge.


author: KUNSELMAN, P.J.,

text:
    Valley Medical Facilities Inc. v. Pennsylvania Property and Casualty Insurance Guaranty Association

      C.P. of Beaver County,
    no. 11963 of 2003.

      Marshall J. Tindall, for plaintiff.

      Lise Luborsky, for defendant.
    December 14, 2004
   KUNSELMAN, P.J.,

Motions for judgment on the pleadings have been filed on behalf of the plaintiffs, Valley Medical Facilities Inc. (the hospital) and Tri-State Obstetrics and Gynecology and James A. CrozierM.D. (collectively called Dr. Crozier) as well as the defendant, Pennsylvania Property and Casualty Insurance Guaranty Association (PPCIGA). The motions for judgment on the pleadings raise an issue of first impression. We articulate the issue as follows: is the maximum liability of PPCIGA to be determined by the number of persons injured by medical malpractice without regard to the number ofmedical providers who have been determined to have been causally negligent and without regard to the number of casualty insurance policies that had been issued to those medical providers by insurance companies which have since become insolvent? We answer that question in the negative. Our reasons follow.

The material facts which form the basis of this dispute are mostly undisputed and are hereinafter set forth. The hospital is the successor in interest to The Medical Center (TMC). Randy Ross was bom at TMC on March 29, 1997. His parents filed an action against TMC and Dr. Crozier at no. 10387 of 1999 claiming that he had sustained injuries caused by the negligence of employees of TMC as well as the negligence of Dr. Crozier. At the time of the alleged negligence, both TMC and Dr. Crozier were covered by separate casualty insurance policies issued by PHICO Insurance Company with the following limits: TMC, primary limits of $300,000; TMC, excess limits of $5,000,000; and Dr. Crozier, primary limits of $200,000. In addition to these policies, TMC was covered by the MCare Fund for $900,000 in excess of its primary limits and Dr. Crozier was covered by the MCare Fund for $1,000,000 in excess of his primary limits.

On February 1, 2002, PHICO was declared insolvent by the Pennsylvania Department of Insurance and placed in liquidation pursuant to an order issued by the Commonwealth Court. As a result of this liquidation, all covered claims under the PPCIGA against PHICO’s insureds were transferred to PPCIGA, including the claim made on behalf of Randy Ross. The lawsuit filed on behalf of Randy Ross against TMC and Dr. Crozier was tried before a jury which returned a verdict on April 30, 2003, against TMC and Dr. Crozier in the amount of $4,100,000. The jury allocated 90 percent of the causal negligence to TMC and 10 percent of the causal negligence to Dr. Crozier. That verdict was subsequently molded to add delay damages and to deduct the statutory non-duplication of recovery offset due PPCIGA. The verdict, as molded, was $4,846,571.60.

Although post-trial motions were filed, they were not pursued and TMC and Dr. Crozier requested PPCIGA to tender $300,000 on behalf of TMC’s primary coverage and $200,000 on behalf of Dr. Crozier’s primary coverage to the MCare Fund and to pay $300,000 on behalf of TMC’s excess coverage. PPCIGA refused, contending that it was only liable for $300,000. PPCIGA therefore tendered the difference between the statutory setoff and $300,000 to the MCare Fund. Further demand was made upon PPCIGA to pay its share of the delay damages and post-verdict interest. PPCIGA refused this demand as well, contending that its liability was limited to $300,000 less the statutory offset.

In order to satisfy the verdict, the hospital agreed to pay the full amount which remained due, including delay damages and post-verdict interest, after deducting the amount paid by PPCIGA and the amounts payable by the MCare Fund. The hospital also took an assignment from Dr. Crozier of his rights against PPCIGA. The hospital then initiated this declaratory judgment action against PPCIGA seeking a declaration that PPCIGA is liable under the Pennsylvania Property and Casualty Insurance Guaranty Act to pay an additional $300,000 on behalf of TMC’s excess limits and an additional $200,000 on behalf of Dr. Crozier’s primary limits as well as its share of delay damages and post-verdict interest.

In order to enter an order declaring the rights of the parties, we must first resolve the procedural issue of whether judgment on the pleadings can be entered. Such a disposition in an action for declaratory judgment is authorized because the practice and procedure in a declaratory judgment action is to follow, as nearly as may be, the rules governing civil actions. Pa.R.C.P. 1601(a). The rules governing civil actions authorize such judgment or order as shall be proper on the pleadings. Pa.R.C.P. 1034(b). However, judgment on the pleadings can only be granted when there are no material facts in dispute. Travelers Casualty & Surety Company v. Cas-tegnaro, 565 Pa. 245, 772 A.2d 456 (2001). Moreover, the court can only consider the pleadings and any documents properly attached thereto. Id. As we observed in footnote one, there are disputed material facts in the pleadings. Consequently, we cannot enter judgment on the pleadings for either party.

Nevertheless, it is clear from the allegations in PPCIGA’s motion for judgment on the pleadings, as well as statements in its brief, that there are no disputed facts. Therefore, we can treat both parties’ motions as motions for summary judgment and consider those documents as well as the pleadings. Cf. Wujcik v. Yorktowne Dental Associates Inc., 701 A.2d 581, 583 (Pa. Super. 1997) (Trial judge should have treated defendant’s objection to the plaintiff’s offer of proof as either a motion for summary judgment or for judgment on the pleadings instead of entering a nonsuit prior to taking any testimony); DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 365 (Pa. Super. 2003) (en banc) (Superior Court treated a motion to dismiss granted prior to taking testimony as either a motion for judgment on the pleadings or a motion for summary judgment). In the interest of judicial economy and because both parties have asked us to decide the issue, we will do so.

The obligation of PPCIGA to pay is set out in the Act which provides, in relevant part:

“(b) The association shall have the following powers and duties:

“(l)(i) To be obligated to pay covered claims existing prior to the determination of the insolvency. . . . Such obligation shall be satisfied by paying to the claimant an amount as follows:

“(A) An amount not exceeding $10,000 per policy for a covered claim for the return of unearned premium.

“(B) An amount not exceeding $300,000 per claimant for all other covered claims....

“(4) To investigate claims brought against the association and adjust, compromise, settle and pay covered claims to the extent of the association’s obligation and deny all other claims.” 40 P.S. §991.1803(b)( 1 )(i) and (4). (emphasis added)

The word “claimant” is not defined in the statute, but the phrase “covered claim” is defined, in relevant part, as follows:

“(1) An unpaid claim, including one for unearned premiums, submitted by a claimant, which arises out of and is within the coverage and is subject to the applicable limits of an insurance policy to which this article applies issued by an insurer if such insurer becomes an insolvent insurer after the effective date of this article

“(3) The term shall not include any first-party claim by an insured whose net worth exceeds $25,000,000 on December 31 of the year in which the insurer becomes an insolvent insurer: . . 40 P.S. §991.1802 “Covered claim” (l)(i) and (3).

The parties agree that Randy Ross had a covered claim as that phrase is defined by the Act. The parties disagree as to whether the hospital and Dr. Crozier had a covered claim. If the word “claimant” was defined in the Act, the uncertainty would undoubtedly be removed. Since it is not, we must decide whether the insured can be a claimant who has a covered claim under the Act.

PPCIGA argues that the $300,000 limit is expressly limited to payment of that sum “per claimant for all other claims” and that the $10,000 limit for unearned premiums is “per policy.” PPCIGA says that distinction is clear from the statutory language and must be observed. Therefore, all claims other than for unearned premiums are limited per claimant. PPCIGA then relies upon a Commonwealth Court case which it claims holds that the injured party in the third-party claim is the “claimant” and the insured of the insolvent insurer is the insured and not a claimant, citing Main Line Health Inc. v. Pennsylvania Medical Professional Liability Catastrophe Loss Fund, 738 A.2d 66, 70 (Pa. Commw. 1999), affirmed per curiam, 566 Pa. 4, 777 A.2d 1048 (2001).

In that case, the petitioner proceeded in Commonwealth Court’s original jurisdiction against PPCIGA seeking to recover damages resulting from PPCIGA’s refusal to pay more than $300,000 in cases where physicians and their professional corporations had separate and independent liability policies issued by companies then insolvent. PPCIGA demurred on the basis of the immunity granted by 40 P.S. §991.1818 (no liability of the association for action taken in the performance of its duties). PPCIGA argued that it satisfied its duty to pay “covered claims” by paying $300,000 per claimant. Commonwealth Court said a physician is not a “claimant” and the physician’s professional corporation is not a claimant but they are “insureds.” 738 A.2d at 70.

PPCIGA argues that we must follow Main Line Health Inc. and hold that neither the hospital nor Dr. Crozier are claimants but are insureds and therefore it has satisfied its obligation under the Act. The hospital argues that we are not bound by Main Line Health Inc. for several reasons. First, it argues that Main Line was decided in the Commonwealth Court’s original jurisdiction and not its appellate jurisdiction. The hospital did not cite any authority for this proposition and we have found none. In fact, the only restrictions we have found relate to unreported opinions of the court and single judge opinions, even if reported. See section 414 Internal Operating Procedures of the Commonwealth Court, 210 Pa. Code §67.55. Main Line Health Inc. was apanel decision which was reported. Therefore, even if it was in the court’s original jurisdiction, it still is precedent.

Nevertheless, we believe there are three reasons why the precedent is not binding. First, the case cited by Commonwealth Court in support of that conclusion did not hold that a physician and his professional corporation are insureds and not claimants. Our examination of Pennsylvania Osteopathic Medical Association v. Foster, 134 Pa. Commw. 368, 579 A.2d 989 (1990), appeal dismissed, 525 Pa. 500, 582 A.2d 319 (1990), disclosed that the court only discussed claims made by a patient and claims made by a physician against the insurer as those terms were defined in the Health Care Services Malpractice Act. The court was not concerned with the meaning of “claimant” under the PPCIGA.

Second, our Supreme Court has since held that both first-party and third-party claimants may possess “covered claims” for purposes of the Act and so has, we believe, overruled the Commonwealth Court’s holding sub silentio. Bell v. Slezak, 571 Pa. 333, 343, 812 A.2d 566, 572 (2002). In fact, the Supreme Court mentioned Main Line Health Inc. ’s rejection of the position that insureds of the insolvent insurer are claimants under the Act and said its per curiam affirmance of that case did not constitute approval of the Commonwealth Court’s reasoning. Id., n.7.

Third, since “claimant” is not defined by the Act, it must be given its common meaning. 1 Pa.C.S. § 1903(a). The common meaning of “claimant” is “one that asserts a right or title.” Webster’s Collegiate Dictionary, Tenth Edition. It is also defined as “[o]ne who claims or asserts a right, demand or claim.” Black’s Law Dictionary, Sixth Edition. Both the hospital and Dr. Crozier have claims to be indemnified against liability to Randy Ross and have asserted those claims. Therefore, they are claimants who may have “covered claims” under the Act.

We now must determine if they have a covered claim. As we stated earlier, TMC had two liability policies with PHICO. The first policy provided for primary coverage in the amount of $300,000 and the second provided for $5,000,000 in excess liability coverage. Thus, if PHICO had not become insolvent, PHICO would have paid the first $300,000 of TMC’s liability, the MCare Fund the next $900,000 of TMC’s liability and PHICO the balance of TMC’s liability up to $5,000,000. Dr. Crozier had primary coverage in the amount of $200,000 with PHICO. Thus, if PHICO had not become insolvent, it would have paid the first $200,000 of Dr. Crozier’s liability and the MCare Fund the balance of his liability up to $1,000,000. In addition, because the liability of TMC and Dr. Crozier is joint and several, each was liable to Randy Ross for the full amount of the verdict as molded. If either had paid the full amount, each would have had a claim against the other to be indemnified up to the percentage of causal negligence which was attributed to them. Thus, payment or obligations to make payment have been made by them and it can be said that their claims to be indemnified against liability are unpaid. There is no contention that the claims do not arise out of and are within the coverage of the PHICO policies. Thus, the hospital and Dr. Crozier have covered claims within the meaning of the Act. There can be more than one claimant who has a covered claim. Keystone Aerial Surveys Inc. v. Pennsylvania Property & Casualty Insurance Guaranty Association, 574 Pa. 147, 829 A.2d 297 (2003).

Once a party is found to possess a covered claim for purposes of the Act, it is then the obligation of PPCIGA to pay the claim unless the Act provides otherwise. Bell v. Slezak, supra at 345, 812 A.2d at 573. In this connection, the only provision in the Act which arguably provides otherwise is the section which provides for non-duplication of recovery. It provides, in relevant part, as follows:

“Any person having a claim under an insurance policy shall be required to exhaust first his rights under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first-party claim or a third-party claim, and shall include, without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverages except for policies ofan insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under other insurance.” 40 P.S. §991.1817(9). (emphasis added)

The hospital is a “person” within the meaning of that term under the Act. 40 P.S. §991.1802. Both its primary and excess policies were written by PHICO. Since policies of an insolvent insurer are excluded from the definition of “a claim under an insurance policy,” the excess policy is not within the non-duplication of recovery provisions and PPCIGA is obligated to pay that covered claim as well.

We reject PPCIGA’s various arguments against our conclusion and will discuss those arguments separately. First, PPCIGA stresses the language in section 991.1803 (b)(l)(i) and argues that the Act distinguishes between unearned premium claims and all other covered claims. PPCIGA contends that the $10,000 limit for unearned premiums is “per policy” and the $300,000 limit for all other covered claims is “per claimant” and that distinction is based on the clear language of the Act and must be observed. Therefore, the fact that the hospital had an excess policy does not increase PPCIGA’s “per claimant” limit.

This is a bootstrap argument. Obviously a claim for unearned premiums must be limited to “per policy” because premiums are charged per policy. This does not mean that the legislature intended to limit all other covered claims to one claimant. This is made clear by our Supreme Court in Bell v. Slezak, supra and Keystone Aerial Surveys Inc. v. PPCIGA, supra.

Second, PPCIGA argues that Main Line Health Inc. has not been overruled by Bell v. Slezak because the comments made by the court in that case as to whether an insured can be a claimant were dicta. We disagree that they were dicta. In that case, the victim of medical malpractice settled his claim against his physician, expecting the payment of the maximum coverage from the physician’s liability carrier. However, prior to disbursement of the funds, the liability carrier was declared insolvent. PPCIGA refused to pay the $200,000 because the victim had medical expenses in excess of that amount paid by his health insurer. He then sought to enforce the settlement agreement.

In deciding whether or not he had a “covered claim,” the Supreme Court said: “In the medical malpractice setting, ... a threshold issue is whether the term refers to the insured-physician’s potential claim against PPCIGA pursuant to its policy with an insolvent malpractice carrier, or to a claim brought by the patient-plaintiff against the physician, such as the case here.” 571 Pa. at 343,812 A.2d at 572. The court then mentioned that other jurisdictions are divided concerning this question and, having surveyed the approaches, were persuaded by the approach of the New Hampshire Supreme Court and said “ [h] aving determined that both first-party and third-party claimants may possess ‘covered claims’ for purposes of the Act, we next consider the nature of PPCIGA’s obligations in relation to the Bell’s claim since it is their claim for funding of the settlement that is at issue here.” 571 Pa. at 345, 812 A.2d at 573. In its review of other jurisdictions, the court had observed that some had held that only insureds were claimants while others had held that both an insured and a third-party plaintiff were claimants. Thus, the court had to decide whether the claimant under the Pennsylvania Act was the insured or both the insured and the patient. Thus, the decision on the issue was not dicta. At least one member of the Supreme Court agrees with us that it was not dicta. See Elliott-Reese v. Medical Professional Liability Catastrophe Loss Fund, 574 Pa. 705, 706 n.1, 833 A.2d 138, 139 n.1 (2003).

Finally, PPCIGA points to several sections of the Act where, it claims, the Act itself distinguishes between the claimant and the insured. It points to the disjunctive “claimant or insured” used twice in definition of “covered claim” in 40 P.S. §991.1802(l)(i) and the “place of residence ofthe insured” in 40 P.S. §991.1817(b). However, we believe that, instead of establishing that the claimant and insured are different, these phrases are examples ofthe “multiple ambiguities and apparent inconsistencies” referred to by our Supreme Court in Bell v. Slezak, 571 Pa. at 342, 812 A.2d at 571.

For the foregoing reasons, we will declare that the maximum liability of PPCIGA is to be determined by considering two covered claims of the hospital and one covered claim of Dr. Crozier. Flowever, the maximum liability must be computed without regard to delay damages or post-verdict interest in this case. It is true that our Superior Court has observed that PIGA, the predecessor of PPCIGA, can be charged with legally imposed enhancements to a claim against an insolvent insurance carrier. See Russell v. Pennsylvania Insurance Guaranty Association, 339 Pa. Super. 458, 489 A.2d 251 (1985). It is further true that legally imposed enhancements may include post-verdict interest and delay damages. However, it is also true that the maximum liability of PPCIGA is the lesser of the policy limits of the insolvent carrier and $300,000 per claimant for each covered claim. 40 P.S. §§991.1802 and991.1803(b)(l)(i)(B). In the case at bar, the total verdict before adding delay damages was $4,100,000. The policy limits of PHICO totaled $800,000 ($200,000 for Dr. Crazier’s primary coverage, $300,000 for TMC’s primary coverage and $300,000 for TMC’s excess coverage). The total of this liability, when added to the total liability of the MCare Fund, amounts to $2,700,000. Thus, even by exhausting the liability of PPCIGA, there is not sufficient funds with which to pay the entire original verdict amount. Since PPCIGA’s liability is limited to the lesser of the coverage or $300,000, PPCIGA is not liable for any interest or delay damages. Elliott-Reese v. Medical Professional Liability Catastrophe Loss Fund, 805 A.2d 1253 (Pa. Commw. 2002), affirmed per curiam, 574 Pa. 705, 833 A.2d 138 (2003).

An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the court declares as follows:

(A) Pennsylvania Property and Casualty Insurance Guaranty Association is obligated to pay the following additional amounts in order to satisfy its obligation to The Medical Center, now Valley Medical Facilities Inc. and James A. Crozier M.D.:

(1) The Medical Center’s excess limits of $300,000; and

(2) Dr. James A. Crozier’s primary limits of $200,000;

(B) Pennsylvania Property and Casualty Insurance Guaranty Association is not obligated to pay any amounts to the plaintiffs for post-verdict interest or delay damages.

      . PPCIGA’s answer to the complaint states that it is without knowledge or information to form a belief as to the truth of these allegations after reasonable investigation. Therefore, technically these “facts” are disputed.