text:
    Debus v. Crumb

      C.P. of Lehigh County,
    no. 93-C-2616.

      Joseph J. Knox, for plaintiffs.

      Georgine A. Olexa, for defendants.

      Michael F. DeMarco, for additional defendant.
    April 13, 1999
   BLACK, J.,

This personal injury case arises from a series of collisions involving four motor vehicles traveling east on Route 80 near Stroudsburg, Monroe County, Pennsylvania, on November 18,1991. Before the court is the motion of additional defendant, Walter A. Reed Jr., for the entry of a judgment of non pros or in the alternative for summary judgment on the joinder complaint of defendants, David E. Crumb and Anthracite Industries Inc.

In seeking a judgment of non pros, Reed argues that defendants prejudiced his ability to prepare a defense by failing to rule plaintiffs, James Debus and Carol A. Debus, to file a complaint. This failure allowed plaintiffs to delay filing their complaint for more than three years after they had commenced suit by praecipe for writ of summons. In seeking summary judgment, Reed asserts that defendants have failed to produce any evidence of a causal connection between his alleged negligence and the injuries to plaintiffs. For the reasons stated below, we disagree with Reed on both grounds and deny his motion for judgment.

FACTUAL BACKGROUND

According to defendants’ joinder complaint, the injuries to the wife-plaintiff, Carol E. Debus, occurred as a result of three collisions involving four motor vehicles. First, a Winnebago operated by Reed struck the automobile of Amy Touzet from the rear. Behind these two vehicles were an automobile operated by Elise Landau in which wife-plaintiff was a passenger, and a truck operated by defendant Crumb and owned by defendant Anthracite. A second collision occurred when the truck operated by defendant Crumb struck the Landau automobile from the rear. As a result of this second collision, the Landau vehicle was pushed into the Winnebago, resulting in a third collision between the Winnebago and the Landau automobile. Wife-plaintiff suffered multiple personal injuries in the second and third collisions.

PROCEDURAL HISTORY

Plaintiffs filed suit against defendants on November 18, 1993, precisely two years after the collisions, by praecipe for writ of summons. The writ of summons was served on defendants Crumb and Anthracite on December 8,1993 and December 14,1993, respectively. Neither defendant ruled plaintiffs to file a complaint.

On March 3, 1997, approximately three years and four months later, plaintiffs finally filed their complaint, in which they alleged that the sole cause of the injuries to wife-plaintiff was negligence on the part of defendants. Plaintiffs allege that defendant Crumb was negligent in his operation of the truck that struck the Landau automobile from the rear. Plaintiffs assert that defendant Anthracite is also liable on two grounds, first, on the basis of vicarious liability for actions of its employee, defendant Crumb, and second, for negligence in entrusting the vehicle to Crumb’s care. The negligent entrustment claim has been severed for trial purposes.

On March 24, 1997, defendants filed a praecipe for writ to join Reed and Cruise America Motor Homes Inc. as additional defendants. After some difficulty, defendants were able to effect service on Reed on October 8, 1997. The joinder of Cruise America Motor Homes Inc. was later discontinued by stipulation of the parties.

On February 6, 1998, plaintiffs were deposed by defendants. Reed was invited to participate in the deposition, but declined to do so. At this point, Reed had not yet been served with defendants’ complaint against him, but he had been served with the writ joining him as an additional defendant.

On March 3, 1998, defendants filed their complaint against Reed seeking contribution and/or indemnification from him. No claim was asserted against him for sole liability, the statute of limitations having long expired on such a claim. A praecipe for appearance was filed on behalf of Reed on March 17, 1998. Initially, Reed filed preliminary objections to defendants’ complaint, but these were withdrawn without prejudice, and Reed subsequently filed an answer on August 3, 1998.

On June 3, 1998, Elise Landau and Reed were both deposed. Counsel for Reed participated in these depositions. On October 30, 1998, defendant Crumb was deposed. Again, counsel for Reed participated in the deposition.

DISCUSSION

I. The Motion for Judgment of Non Pros

Reed acknowledges that since defendants joined him within 60 days from the date plaintiffs’ complaint was served on them, joinder was timely under Pennsylvania Rule of Civil Procedure 2252. Reed argues, however, that defendants should have ruled plaintiffs to file a complaint instead of sitting back and waiting, because had defendants done so promptly, plaintiffs would have been required to file their complaint in January 1994, and defendants would then have been required to join Reed as an additional defendant by March 1994. Since the actual joinder was not effected until March 24, 1997, Reed was not informed of the suit until five years and four months after the accident, a delay that he claims hampered his efforts to prepare a defense.

There is no authority in Pennsylvania for applying the doctrine of non pros against a defendant for failing to rule a plaintiff to file a complaint. Nothing in the Pennsylvania Rules of Civil Procedure or in any decided case suggests that a defendant is obligated to seek such a rule.

Reed attempts to analogize the facts here to those in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Lamp, however, involved a wholly different issue. There, the plaintiff, who had commenced suit by praecipe for writ of summons, instructed the prothonotary not to deliver the writ to the sheriff for service. The Pennsylvania Supreme Court held that by preventing timely service of the writ, the plaintiff had started the very legal machinery he had just set in motion. Accordingly, the court held that the praecipe for writ of summons was not effective to toll the statute of limitations, and plaintiff’s claim was held barred by the statute of limitations.

There are several reasons why Lamp is inapposite. First, the statute of limitations is not an issue in this case. The only claims against Reed are for contribution and indemnification. The limitations period on a contribution claim does not begin to run until the time judgment is entered in favor of the original plaintiff. See Mattia v. Sears, Roebuck & Co., 366 Pa. Super. 504, 508, 531 A.2d 789, 791-92 (1987). On an indemnification claim, there appears to be a split of authority, with some cases holding that the limitations period begins when judgment is entered against the party seeking indemnification and others holding that it does not begin until this party has actually discharged his obligation to the plaintiff. Cf. Kitchen v. Grampian Borough, 421 Pa. 464, 219 A.2d 685 (1966) (entry of judgment) with Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986) (discharge of liability). Since judgment has not been entered against defendants, and payment has not been made to plaintiffs, the limitations period has not yet begun to run on the potential contribution and indemnity claims against Reed.

Second, in Lamp, there were affirmative acts by the plaintiff to interfere with service of the writ. Here, defendants have taken no action to interfere with the normal course of legal proceedings. Defendants did not do anything to prevent plaintiffs from filing or serving their complaint sooner.

Reed also points to the recent decision of the Pennsylvania Supreme Court in Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998), which established a three-part test before a judgment of non pros may be entered against a plaintiff: There must be (1) an absence of due diligence in prosecuting the case, (2) no compelling reason for the delay, and (3) evidence of actual prejudice to the defendant. 551 Pa. at 358, 710 A.2d at 1103; see also, James Brothers Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 247 A.2d 587 (1968) (death or absence of material witness could establish prejudice); Metz Contracting Inc. v. Riverwood Builders Inc., 360 Pa. Super. 445, 451, 520 A.2d. 891, 894 (1987) (prejudice defined “as any substantial diminution of a party’s ability to properly present its case at trial”).

In the instant case, there is no evidence of prejudice. Therefore, even if we were to assume arguendo that the doctrine of non pros applies where a defendant fails to rule a plaintiff to file a complaint, this would not justify a judgment of non pros here. There is no evidence of a missing or deceased witness, or that Reed’s ability to defend himself has been diminished. Reed’s counsel was invited to participate in all depositions. Moreover, Reed himself knew at the time of the accident in 1991 that the Landau vehicle had collided with his Winnebago, since he had been personally involved in the accident. Consequently, Reed has not made out a case of prejudice from the delay.

Reed points out that a conflict appears in the depositions of Elise Landau and wife-plaintiff, even though both were seated in the front of the Landau vehicle at the time of the accident. Reed argues that if they had been deposed sooner, perhaps the wife-plaintiff’s testimony would have been closer to the testimony of Ms. Landau, which was more favorable to Reed. Perhaps so, but perhaps not. Reed’s argument is sheer speculation. He has not presented any evidence to support this speculation.

Furthermore, the entry of a judgment of non pros accomplishes nothing in the circumstances of this case. Such a judgment has no res judicata effect. See Haefner v. Sprague, 343 Pa. Super. 342, 494 A.2d 1115 (1985). Therefore, since the statute of limitations has not yet begun to run on the contribution and indemnity claims against Reed, his exposure remains the same, whether or not a judgment of non pros is entered. Should judgment be entered against defendants at a later date, they could commence action against Reed at that time. See Mattia v. Sears, Roebuck & Co., supra. Thus, the only effect of a judgment of non pros in this case would be to create two lawsuits where only one should exist. This would be an inefficient use of legal resources, not in anyone’s best interests.

For these reasons, the motion for judgment of non pros is denied.

II. The Motion for Summary Judgment

It is well-settled that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Pa.R.C.P. 1035.2; Electronic Laboratory Supply Co. v. Cullen, 712 A.2d 304 (Pa. Super. 1998). In determining whether to grant summary judgment, the trial court must resolve all doubts against the moving party and must examine the record in a light most favorable to the non-moving party. The party moving for summary judgment bears the burden of proving the nonexistence of any genuine issue of fact. See Richman v. Mosites, 704 A.2d 655 (Pa. Super. 1997). Moreover, summary judgment may be granted only in the clearest of cases. See Electronic Laboratory Supply v. Cullen, supra.

Reed acknowledges that the Winnebago he was driving struck the automobile operated by Amy Touzet from the rear. Moreover, in her deposition, wife-plaintiff testified that Reed was operating the Winnebago erratically, seemingly out of control, when it struck the Touzet vehicle. Clearly, the evidence supports a finding that Reed was negligent.

Reed contends that there was no causal connection as a matter of law between his negligence and the collision in which the Landau vehicle made contact with the Winnebago. This argument is unpersuasive. Reed’s negligence created a situation where the Winnebago was stopped in a travel lane on a major highway with other fast-moving traffic close behind. A jury could find that his actions were a substantial factor in causing the Landau vehicle to come in contact with the Winnebago. Expert testimony is not required for a jury to make such a finding. See Taylor v. Jackson, 164 Pa. Cormmw. 482, 643 A.2d 771 (1994) (last of three motor vehicle accidents occurred two hours after first accident; held for jury to determine whether initial accident was a substantial factor in causing the third accident).

Because we believe there are factual issues that remain for a jury to determine on the claim against Reed, his motion for summary judgment is denied.

ORDER

Now, April 13,1999, upon consideration of additional defendant’s motion for judgment of non pros or in the alternative for summary judgment, and plaintiff’s response thereto, after oral argument and for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is denied.


source: Caselaw Access Project

author: MOTT, J.,

license: Public Domain

text:
    Commonwealth v. Goodenow

      C.P. of Bradford County,
    no. 98CR000331.

      Robert McGuinness, for the Commonwealth.

      Theodore Hinckley, for defendant.
    April 23, 1999
   MOTT, J.,

The essential procedural history of this case is as follows: The Commonwealth filed a 60-count criminal information against the appellant, Thomas D. Goodenow. That information alleged that the appellant had sexually assaulted his 9-year-old daughter on several occasions. On November 5, 1998, just four days before his trial was to begin, the appellant entered a guilty plea to rape in accord with a plea agreement that called for the dismissal of all the other charges against him. At that plea proceeding, the appellant specifically acknowledged that he had discussed his case with his counsel and that he was satisfied with his counsel’s representation of him in this case. A sentence was subsequently imposed on the appellant and, as part of that sentencing order, we granted the Commonwealth’s request to dismiss the remaining charges. The appellant has now appealed from that order.

Through his counsel, the appellant has filed a statement of matters complained of on appeal raising only one issue. He seeks to nullify the consequences of his plea by alleging the ineffective assistance of counsel. Such a claim has never been raised in this court. The appellant’s statement pursuant to Pa.R.A.P. 1925(b) is the first time that this issue has been asserted. Accordingly, this court is of the view that the issue has not been properly preserved for review on direct appeal and has been waived.

We recognize that the holding of Commonwealth v. Wertelet, 446 Pa. Super. 352, 666 A.2d 1087 (1995), appears to contradict our view and seems to suggest that the issue of ineffectiveness of counsel can be raised for the first time on appeal and that the trial court can then hold a hearing “ancillary” to that appeal to create a record on which the Superior Court can then dispose of the issue. However, while we have great respect for the decisions of our appellate courts and fully recognize our position in the judicial hierarchy of this Commonwealth, and the binding effect that our appellate courts’ decisions normally have on us, we, nevertheless, believe that the holding of Wertelet is not binding on the case sub judice. We reach that conclusion because the facts of that case are distinguishable from this one, because the reasoning of that holding is contrary to other appellate cases, and because that reasoning is contrary to the long-standing, and sound, common law of this Commonwealth.

There is a long-standing and very basic proposition in our common law that a matter not raised in the lower court is deemed waived and cannot be raised on appeal. Commonwealth v. Capitolo, 508 Pa. 372, 381, 498 A.2d 806, 810 (1985); Commonwealth v. Lederer, 193 Pa. Super. 482, 486, 165 A.2d 711, 714 (1960); Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215 (1948); Parke v. Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Co., 334 Pa. 417, 419, 6 A.2d 304, 305 (1939) (citing Montgomery County Bar Association v. Rinalducci, 329 Pa. 296, 197 A. 924 (1938)). See generally, 2 P.L.E., Appeals §101 (2d ed.). There are very sound reasons for this long-standing doctrine, not the least of which are that courts will not need to expend time on issues which have not been raised and properly pursued, that trial courts will be given the first opportunity to correct any actual error and, thus, obviate the need for further proceedings, and that appellate courts, therefore, will be free to give more exact attention to alleged errors that are properly preserved for review. Commonwealth v. Clair, 458 Pa. 418, 421-22, 326 A.2d 272, 273-74 (1974). The adage that “[o]rderly judicial procedure requires that nothing more be passed upon by a court than the justiciable question posed for its decision,” Robinson Township School District v. Houghton, 387 Pa. 236, 240, 128 A.2d 58, 60 (1956) (emphasis added), is another phrasing of the common-law principle.

The long-standing common-law principle that issues not properly preserved in the trial court are waived has also been enacted as part of our rules of appellate procedure. See Pa.R.A.P. 302(a). Implicit in the principle is the idea that an issue must be properly raised in the lower court so that it can be decided by that lower court, so that the higher court can then perform its proper function and review the lower court’s decision. It is, after all, the decision of the trial court on a particular issue that is ultimately reviewable, and traditionally, if the trial court reached the correct result on the issue, its decision on that issue was affirmed even if its reasoning may have been flawed.

In Wertelet, the Superior Court held that new counsel could raise an ineffective assistance of prior counsel claim for the first time in a statement filed pursuant to Pa.R.A.P. 1925(b), despite the fact that said new counsel had been retained before the time within which a post-sentence motion could be filed pursuant to Pa. R.Crim.P. 1410, and he did not file such a motion. This holding, however, appears to contradict our Supreme Court, which has stated that “[when] present counsel was appointed prior to the conclusion of post-trial motions, trial counsel’s ineffectiveness should have been raised at that point. Because it was not, the issue is waived.” Commonwealth v. Miller, 541 Pa. 531, 557 n.22, 664 A.2d 1310, 1323 n.22 (1995) (the court, nevertheless, went on to consider the issue because of the relaxed waiver rules for capital cases applicable in that case). The Wertelet court avoided the basic common-law principle of waiver by reasoning that for purposes of appellate review it is only necessary for a lower court to be able to address an issue, rather than being able to dispose of an issue. The court stated that since Pa.R.A.P. 1701(b)(1) allows lower courts to take actions that are “otherwise ancillary to the appeal,” Wertelet at 355, 666 A.2d at 1089, a lower court could “conduct an evidentiary hearing, file findings of fact and conclusions of law, and otherwise address an issue of ineffectiveness [raised for the first time on appeal], only being prevented from entering a dispositional order.” Id. at 355, 666 A.2d at 1088. The court reasoned that this manner of raising an issue was appropriate for two reasons: First, the court said that “the optional nature” of post-sentence motions under Pa.R.Crim.P. 1410 would be obviated if an issue that can only be raised post-sentence or post-verdict was waived if not first raised in the trial court. Id. at 354, 666 A.2d at 1088. Second, the court said that since there is only 10 days allowed to file a post-sentence motion under Rule 1410, new counsel would not have sufficient time to review the record, and prior counsel’s performance, so as to be able to raise the issue within that time. Id. at 354-55, 666 A.2d at 1088. “Therefore, [the court held that] although there may be sufficient time to file a post-sentence motion, claims of prior counsel’s ineffectiveness are not waived where new counsel files a direct appeal.” Id. at 355,666 A.2d at 1088. (emphasis added)

The most obvious distinction between Wertelet and the instant case is that, here, it is not new counsel who has raised the ineffectiveness of counsel claim, but the very counsel whose ineffectiveness is being alleged. Therefore, the Wertelet court’s concerns with counsel not having enough time to familiarize himself with the record so as to be able to sufficiently articulate the issue for the post-sentence motion are inapplicable. In addition, we point out that the time frame for filing post-sentence motions is 10 days. That is the exact same time frame that existed for the filing of post-trial motions under prior practice and our Supreme Court apparently felt it was sufficient even for new counsel to raise the issue. See Commonwealth v. Miller, supra. Furthermore, it is not completely accurate to suggest that new counsel would only have 10 days from the sentencing to raise trial counsel’s ineffectiveness. Rule 1410(B)(2)(b) states that a defendant can file a supplemental post-sentence motion in the trial court’s discretion so long as the decision on it can be made within the time limits proscribed by the rule. The time limit for the trial court to decide a post-sentence motion is 120 days from its filing, plus a possible 30 additional days, if the defendant requests an extension. Pa.R.Crim.P. 1410(B)(3). Thus, in reality, there is ample time for even new counsel to review the record and raise the issue of ineffectiveness, and for the trial court to decide the issue.

Another significant factual distinction between Wertelet and the case at bar is that in Wertelet the appellant had been found guilty by way of a jury trial, whereas here the appellant pleaded guilty and during that plea proceeding he specifically acknowledged that he was satisfied with his counsel’s representation. Furthermore, as indicated by our comments below, we do not believe it is even appropriate for counsel to raise his own ineffectiveness. However, whether trial counsel himself, or new counsel, wishes to raise the issue, we believe it must be raised in the trial court prior to the direct appeal in order for the issue to be preserved for that appeal. We recognize that there are other appellate cases which seem to suggest that the issue can be raised for the first time on appeal, but in those cases the matter was remanded to the trial court. We discuss these cases infra.

We also respectfully suggest that the Superior Court’s assumption, as expressed by a panel of that court in Wertelet, that the filing of a post-sentence motion was made totally optional by Pa.R.Crim.P. 1410, and its general treatment of the doctrine of waiver, is inconsistent with other Superior Court decisions, Supreme Court authority, and the intent behind Pa.R.Crim.P. 1410. As indicated above, Rule 1410 states that issues properly raised before or during trial are preserved for appeal, whether or not a post-sentence motion is filed on those issues. Pa.R.Crim.P. 1410(B)(1)(c). The rule does not say, nor does it even suggest, that issues not raised in the trial court can be raised for the first time on appeal. Neither does the rule say, nor even suggest, that issues that could have, and should have, been raised before or during trial, but were not, can be raised in a post-sentence motion or on appeal. It is obvious that there are some issues that are necessarily only capable of being raised post-trial, such as weight of the evidence issues, and allegations of error concerning the discretionary aspects of sentencing. There may even exist some other issues not previously raised which can be raised for the first time in a post-sentence motion. However, we believe that all such issues must be raised in a post-sentence motion so that the trial court is given the first opportunity to rule on them. In those situations, the filing of a post-sentence motion is not optional at all, it is mandatory if the party wishes to raise those issues on appeal. There is nothing in Rule 1410 that suggests that a post-sentence motion is optional in those circumstances. In fact, the only time a post-sentence motion is truly optional under Rule 1410 is where the only issues to be raised on appeal are issues that were previously raised in the trial court either before or during trial.

The Superior Court itself has specifically adopted this view with respect to the issue of weight of the evidence. It has stated:

“[A] defendant, who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise this issue via post-sentence motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court’s exercise of discretion will be subject to review. Because [the] appellant did not challenge the weight of the evidence in the trial court in this case, we will not address the issue on appeal.” Commonwealth v. Hodge, 441 Pa. Super. 653, 660, 658 A.2d 386, 389 (1995). (footnote omitted)

The Hodge holding was later somewhat modified by the Supreme Court in Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211 (1997), but only to a very limited extent. There, the Supreme Court held that it is correct that foregoing a post-sentence motion and proceeding to a direct appeal does not preserve a previously unraised issue for appeal. However, it went on to say that an appellate court may nevertheless consider a weight of the evidence claim where the lower court chose to review that claim in a Pa.R.A.P. 1925(a) opinion “and clearly held that the verdict was in fact contrary to the weight of the evidence.” Id. at 140, 689 A.2d at 212.

Furthermore, the Superior Court has also said, in Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 (1995), that:

[Rule 1410] plainly states that only issues which were presented to the trial court before or during trial shall be deemed preserved for appeal in the absence of a post-trial motion. The modifications of Rule 1410 have not altered the requirement ... that ‘[issues not raised in the lower court are waived and cannot be raised for the first time on appeal.’ Jarvis, at 298, 663 A.2d at 791-92. (emphasis added) (citations omitted)

Furthermore, we respectfully contend that the interpretation and application of Rule 1410 in Wertelet is not only inconsistent with the holdings of Hodge; Jarvis and Widmer, but that it is also contrary to the intended purpose of Rule 1410. The purpose of Rule 1410 was to do away with the “double waiver” doctrine. Commonwealth v. Lord, 553 Pa. 415, 419, 719 A.2d 306, 308 (1998). In addition to the elimination of “double waiver,” an examination of the final report by the Criminal Procedural Rules Committee which developed Rule 1410 reveals that the other major purpose of the rule was to shift the trial court’s post-trial review from before sentencing to after sentencing. “Final report: part I, chapter B, section 2” 532 Pa. CVI. We have found no authority, other than Wertelet itself, to support the view that Rule 1410 was in any way designed to do away with the long-standing principle of the common law, and as it is embodied in Pa.R.A.P. 302(a), that an issue has to be first raised in the trial court before it can be raised on appeal. Furthermore, we find nothing in the language of Rule 1410 itself that releases a party from the obligation of initially raising issues in the lower court, before seeking review of those issues in the appellate court.

In addition, the official comment to Rule 1410 also supports the view that in order for an issue to be subject to appellate review, that issue must be raised in the trial court and subject to disposition by that court, regardless of whether the issue is only practically capable of arising post-trial. The comment specifically refers to the issue of ineffectiveness of counsel. While not binding, it states under the heading “Miscellaneous, ” that:

“When the defendant is represented by new counsel on the post-sentence motion, the defendant must raise any claim that prior counsel was ineffective, and the court must consider and decide the claim. ” Rule 1410, comment, (emphasis added)

The Wertelet court also reasoned that the raising of ineffectiveness of counsel for the first time on appeal should be allowed because the lower court can still hold hearings on the issue “ancillary to that appeal,” and then file findings of fact and conclusions of law, only being presented from filing a dispositional order. The court said such a procedure would further the goal of the timely resolution of issues and reduce the possibility of subsequent collateral attacks on convictions. We respectfully suggest that such reasoning could be used to justify an appellate court’s consideration of any issue not first raised in the trial court. In addition, the procedure suggested in Wertelet for considering such an issue is wholly unsatisfactory for several reasons. First, the trial courts of this Commonwealth are more than just record keepers or scriveners for the appellate courts. Rather, the trial courts are the courts of primary original jurisdiction whose job is to decide issues and cases, not just to make a record to pass on to an appellate court for its decision. Second, the procedure is contrary to one of the sound underlying policies behind the waiver doctrine — conservation of judicial time and manpower. Courts simply should not have to consider issues that the parties have already waived. Third, the procedure will unduly delay cases as the record will not be able to be transmitted to the appellate court until the “ancillary” record has been completed, which in many cases will itself be lengthy and time consuming. Fourth, what if the appellant then wants to raise “ancillary” hearing counsel’s ineffectiveness? Will the trial court need to hold still another ancillary hearing on that issue before the record can go to the appellate court for review? When an appellant is free on bail, when will serial ineffectiveness claims be finally resolved so that the sentence can be carried out? And fifth, we do not believe that the procedure will reduce subsequent collateral attacks at all. Petitioners under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §9541 et seq., will still raise the ineffectiveness issue. The issue will only be once removed, at least, as they will raise some allegation as to the ineffectiveness of ancillary hearing counsel, if he or she failed to prevail on the issue of trial counsel’s ineffectiveness.

When the appellate courts refuse to apply the waiver of issues doctrine and proceed to decide issues raised for the first time on appeal, they not only deny the trial courts their proper place in our judicial system, but they deny the trial courts their opportunity to themselves correct any errors that may have occurred, or to explain why alleged errors are not, in fact, errors. By considering issues that should be deemed waived, the appellate courts also encourage further appeals. In fact, our Supreme Court has stated: “We require strict compliance with the procedures designed for issue preservation to save judicial manpower, and to prevent our appellate courts from becoming advocates for parties instead of adjudicators . . . .” Commonwealth v. Capitolo, 508 Pa. 372, 382, 498 A.2d 806, 811.

We recognize that there are some very limited issues that have been held to be non-waivable. Such issues can be raised at any time. Commonwealth v. Lehr, 400 Pa. Super. 514, 583 A.2d 1234 (1990) (legality of sentence cannot be waived); Commonwealth v. Thomas, 305 Pa. Super. 158, 451 A.2d 470 (1982) (subject-matter jurisdiction is not a waivable issue and may be raised at any stage in the proceeding). However, because of the sound reasons for the common-law principle of waiver, it is our belief that these are the only issues that an appellate court should consider when they have not been first raised in the trial court, and then they should only be considered after the record has been sufficiently developed to allow for a fully informed consideration. By way of Commonwealth v. Miller, supra, our Supreme Court has said that ineffectiveness of counsel is a waivable issue. That should especially be the case where, as here, the issue could have been raised in the trial court and was not. It should also be deemed to be waived here, where it is being attempted to be raised by trial counsel for the first time on appeal after a knowing and voluntary guilty plea at which satisfaction with the representation of counsel has been expressed.

“[When] ... a defendant voluntarily, knowingly and intelligently wishes to acknowledge [the] facts that in themselves constitute an offense, that acknowledgment is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exist to avoid their proof, what safeguards exist to determine their accuracy and under what rules they would be determined, by whom and how, are irrelevant. ” Commonwealth v. Anthony, 504 Pa. 551, 559, 475 A.2d 1303, 1308 (1984). (emphasis added)

As we mentioned above, we are also aware of other appellate cases that seem to suggest that the issue of ineffectiveness of counsel can be raised for the first time on appeal. These cases seem to suggest this, even though they do not directly address whether the issue can be raised for the first time on appeal, because where the issue has been so raised the cases remand the matter to the trial court for its decision on the issue of ineffectiveness of counsel. See e.g., Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382(1998); Commonwealth v. Ciptak, 542 Pa. 112, 665 A.2d 1161 (1995). While this remand procedure is far preferable to the Wertelet, “ancillary” hearing process, because a remand recognizes the proper role of the trial court and gives it the first opportunity to dispose of the issue, this procedure also suffers from some of the same shortcomings as the Wertelet “ancillary” hearing process. It also does not conserve judicial time and manpower because it ignores the waiver doctrine and requires an issue that would normally be deemed waived to be heard. It also delays cases, rather than expediting them, because the record on remand will have to be developed and a second appeal from the decision of the trial court then processed. In addition, what if the appellant on this second appeal then raises the issue of the ineffectiveness of his remand hearing counsel? Will there be yet another remand to consider that issue? Again, when the appellant is free on bail, when will serial ineffectiveness claims be finally resolved so that the sentence can be carried out? This procedure also does not reduce collateral attacks on convictions, only resulting in the ineffectiveness issue being once removed in PCRA claims, just as in the Wertelet “ancillary” hearing process. Furthermore, it is simply beyond the, perhaps, meager abilities of this court to reconcile these “remand” cases that suggest that the ineffectiveness of counsel can be raised for the first time on appeal with Commonwealth v. Miller, supra, which suggests that it cannot be, and with the other cases cited above which uphold the principle that issues not raised in the trial court cannot be raised for the first time on appeal. Finally, even if we could reconcile those cases, we cannot reconcile the Wertelet “ancillary” hearing process with the “remand” process of the other cases. Thus, we will simply await further guidance from our appellate courts.

As we also mentioned above, we believe that the issue raised on this appeal should not be considered because it is simply improper for an attorney to assert his own ineffectiveness. Clear authority exists for the proposition that an attorney may not argue his own ineffectiveness. Commonwealth v. Ciptak, 542 Pa. 112, 113, 665 A.2d 1161, 1162 (1995); Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986). Because these cases were remanded to the trial court when counsel asserted his own ineffectiveness on appeal, it could be argued that they demonstrate that it is not improper for counsel to raise his own ineffectiveness, even though the cases do not directly address that issue. Nevertheless, we consider the inappropriateness of counsel raising their own ineffectiveness to be implicit in the rule that “ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant.” Commonwealth v. Chmiel, 536 Pa. 244, 251, 639 A.2d 9, 12 (1994). (citations omitted) (emphasis added) See also, Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975) (it is demeaning and unrealistic to expect a lawyer to argue his own ineffectiveness); and Commonwealth v. McKenna, 498 Pa. 416, 446 A.2d 1274 (1982) (counsel chided by court for effectively testifying at a post-conviction hearing as to his intentional ineffectiveness at trial).

Accordingly, we believe the issue of ineffectiveness of counsel, sought to be raised on this appeal, should be deemed to have been waived for direct appeal purposes, and we respectfully urge our appellate courts to reconsider their holdings that might suggest the contrary in light of the discussion herein, and in light of the sound reasons for the long-standing common-law rule of waiver. We respectfully suggest that they also consider the following:

Claims of ineffective assistance of counsel are the most significant obstacle to the finality of criminal cases in this Commonwealth today. Applying the long-standing common-law rule of waiver to bar the raising of such claims for the first time on direct appeal would significantly improve that problem and promote finality. Applying the doctrine of waiver to such claims, combined with a rule prohibiting counsel from asserting their own ineffectiveness in any court, and using the PCRA to consider previously unraised claims of ineffectiveness will actually not only expedite criminal cases, but will also ultimately expedite the consideration of the ineffectiveness of counsel issue itself.

We have already described the problems that serial ineffectiveness claims generate. We believe they are actually encouraged by either the “ancillary” or “remand” procedure used in the cases cited above. Those procedures also can delay the consideration of other legitimate issues that have been properly preserved for appeal as they await the “ancillary” or “remand” procedure. Instead of those procedures, we suggest that the doctrine of waiver should apply, that ineffectiveness of counsel should not even be considered on direct appeal if it was not properly raised and preserved in the trial court, that counsel should be barred from asserting their own ineffectiveness, and that claims of ineffective assistance that have not been previously asserted in the trial court should simply await consideration by way of a petition pursuant to the PCRA, which, by rule, must be now filed within one year of final judgment. Pa.R.Crim.P. 1501(1).

We also suggest that it is entirely proper to expect counsel, as officers of the court, to act as gatekeepers on frivolous ineffectiveness of counsel claims. Counsel should not, as the “ancillary” or “remand” process promotes, feel compelled to raise the issue anytime a client wants to assert it, regardless of merit, and thereby also compel themselves to withdraw from the case. Otherwise, criminal defendants can simply raise seriatim claims of ineffectiveness to obtain new counsel each time they are disappointed with a result at any stage of a proceeding. (This is especially troublesome when original defense counsel is court-appointed, or new counsel must be court-appointed, thus necessitating the expenditure of additional public funds.) We believe that the proper procedure for counsel, where their client wishes to assert their ineffectiveness on appeal, is to honestly consider whether that claim has any merit and where they determine that the assertion may not be frivolous, to request of the trial court that it allow counsel to withdraw for that reason, and appoint new counsel. New counsel can then, if necessary, ask for an extension of time to file post-sentence motions, or for permission to file supplemental motions, to raise the ineffectiveness issue in the trial court. Where they determine the assertion of ineffectiveness is frivolous, original counsel should continue to represent the defendant, raise all other issues that merit appellate review, and leave the ineffectiveness issue for PCRA review. The issue will not have been waived at that stage, because that would be the first opportunity for the issue to be raised after counsel whose ineffectiveness is being challenged no longer represents the defendant. This procedure will expedite cases because it will allow other issues to proceed through the appellate process without awaiting “ancillary” or “remand” hearings on ineffectiveness, and it will result in the ineffectiveness issue only having to be considered one time at each level of our judicial hierarchy, once in the trial court, either during the original proceeding or by a PCRA proceeding, and once on appeal, either on direct appeal from the trial court’s original decision, or on appeal from the trial court’s PCRA decision.

For all the reasons stated in this opinion, the order complained of on this appeal should not be disturbed.

      . 18 Pa.C.S. §3321.

      . Pa.R.A.P. 302(a) reads, in pertinent part, as follows:

        “General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”

      . Pa. R.Crim.P. 1410 reads, in pertinent part, as follows:

        “(A) Timing

      “(1)[A] written post-sentence motion shall be filed no later than 10 days after imposition of sentence. . . .

        “(B) Optional post-sentence motion “(1) Generally.
      “(a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:
      “(i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere; . . .
      “(c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues. . . .”

      . We fully recognize that the procedure applicable in Miller was the procedure that existed before current Rule 1410. Under that procedure the lower court’s post-trial review occurred before sentencing rather than after sentencing as under the current rule. Under that prior practice, a defendant had 10 days after a finding of guilt to file a post-trial motion to present errors for the trial court’s review. Pa.R.Crim.P. 1123(a) (rescinded March 22,1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1410). Under current practice, however, a defendant still has only 10 days to submit a motion for the trial court’s review, but now the opportunity for filing that motion does not arise until after the imposition of sentence. Pa.R.Crim.P. 1410(A)(1).

      . “Double waiver” required a defendant to raise an issue when it occurred either before or during trial and then raise that issue again in a post-trial motion in order for that issue to be preserved for appeal and to avoid having the issue deemed waived. Lord at 419, 719 A.2d at 308-309 (citing Commonwealth v. Cortes, 442 Pa. Super. 258, 261, 659 A.2d 573, 574 (1995)).


author: WETTICK, J.,

text:
    Dempster v. Waste Management Inc.

      C.P. of Allegheny County,
    no. GD96-11731.

      Theodore E. Breault, for plaintiff.

      L. John Argento, for defendant.
    May 5, 1998
   WETTICK, J.,

The subject of this opinion and order of court is Waste Management Inc.’s motion for summary judgment. Plaintiff has sued Waste Management to recover damages which he sustained when he was injured while riding on the rear step of a Waste Management truck. In this motion for summary judgment, Waste Management seeks dismissal of plaintiff’s claims on the ground that at the time of the accident Waste Management was plaintiff’s employer under the borrowed servant doctrine and is therefore immune from suit under section 481 of the Pennsylvania Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, 77 PS. §481. Section 481 provides that an employer shall not be liable to an employee in any action at law on account of any injury which the employee sustained during the course of his employment. Waste Management relies on established Pennsylvania case law which both imposes the obligation on a borrowing employer to provide workers’ compensation benefits to a borrowed employee and provides the immunity protections of the Workers’ Compensation Act to the borrowing employer. JFC Temps Inc. v. W.C.A.B. (Lindsay), 545 Pa. 149, 680 A.2d 862 (1996); Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (1992); English v. Lehigh County Authority, 286 Pa. Super. 312, 428 A.2d 1343 (1981).

At the time of the accident, plaintiff was an employee of Network Industrial Inc., a temporary employment agency. Network had a contract with Waste Management under which it provided temporary laborers to Waste Management. At Network’s direction, on December 30, 1995, plaintiff reported to the Ambridge facility of Waste Management as a potential temporary thrower/helper. On that date, Waste Management conducted an orientation for temporary employees which consisted of viewing films and listening to supervisors’ presentations. Waste Management determined that plaintiff was qualified for the position of thrower/helper and directed him to report for work on January 2, 1996.

From January 2, 1996 through March 8, 1996, this being the date of the accident that is the subject of this litigation, plaintiff worked as a temporary thrower/helper. For the first two weeks, he worked with the same driver for his initial training. Thereafter, Waste Management assigned plaintiff to various trucks and drivers, depending upon Waste Management’s needs. During this two-month period, plaintiff worked regularly as a thrower/helper, averaging close to 40 hours per week.

Plaintiff reported to work in the early morning of March 8,1996. He was assigned by Waste Management to a specific truck. At the time of the accident, plaintiff was standing on a rear step of the truck. The accident occurred when the truck unexpectedly slid backwards into a brick building pinning plaintiff between the truck and the building.

Throughout the approximate two-month period that plaintiff performed work for Waste Management, in-eluding the date of the accident, Waste Management set plaintiff’s hours, schedule, and duties. No one from Network had any involvement in deciding the particular work that plaintiff performed, the manner in which plaintiff would perform the work, the hours that plaintiff worked, or the Waste Management driver to whom plaintiff was assigned. No one from Network provided any instructions to plaintiff regarding the performance of his duties as a thrower/helper. Waste Management determined the work that plaintiff performed and the manner in which he performed the work.

Prior to his assignment to Waste Management, plaintiff executed a writing (Policies and Procedures Checklist of Network Industrial Inc.) which stated that plaintiff understood that he was an employee of Network and that only Network could terminate his employment. The writing provided that if plaintiff cannot make it to work or will be late, he is to contact Network so that Network may call its client and/or find a replacement. The writing further provided that Network pays its employees once a week with checks to be distributed at the work site or mailed directly to the employee’s home according to each job site’s specification. Pursuant to this writing, Network paid plaintiff’s wages during the period that he was assigned to Waste Management and made the necessary state and federal tax deductions and payments. Network also maintained a personnel file for plaintiff — Waste Management did not do so because plaintiff was a temporary helper.

Network assigned plaintiff to Waste Management pursuant to a March 2, 1995 temporary service agreement between Waste Management and Network. The agreement provided that Waste Management is an independent contractor and that Network’s employees assigned to perform work for Waste Management are solely the employees of Network. The agreement further provided that Network will carry workers’ compensation insurance (minimum limit of liability — $1,000,000) that shall name Waste Management as an additional insured with Network to furnish certificates of insurance and endorsements evidencing such coverage.

Only Network had the authority to discipline plaintiff or to terminate plaintiff’s employment with Network. However, at any time Waste Management could terminate plaintiff’s assignment to Waste Management, in which case plaintiff would report to Network for another assignment.

At the time of the accident, Network had a policy of workers’ compensation insurance with State Workmen’s Insurance Fund. After plaintiff’s accident, Network filed an employer’s report of occupational injury which stated that Network was plaintiff’s employer and that Network was responsible for the workers’ compensation benefits. Plaintiff has received workers’ compensation benefits pursuant to this policy.

The case law which Waste Management cites supports its position that for workers’ compensation purposes, including its immunity provisions, plaintiff was Waste Management’s employee at the time of the accident.

In JFC Temps Inc. v. W.C.A.B. (Lindsay), supra, the Pennsylvania Supreme Court addressed the issue of when an employer-employee relationship exists under the law governing the borrowed employee doctrine. The court stated that:

“The test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it.... The entity possessing the right to control the manner of the performance of the servant’s work is the employer, irrespective of whether the control is actually exercised. . . . Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. . . . The payment of wages may be considered but is not a determinative factor.” Id. at 153, 680 A.2d at 864. (citations omitted)

The issue that the court addressed in JFC Temps was whether workers’ compensation benefits should be provided by the temporary employment agency which employed plaintiff or by the entity to which the employee was assigned, G&B. The employment agency assigned the claimant to G&B as a tractor-trailer driver. The claimant reported daily to G&B where the operations manager informed him of work hours, what truck to use, and where to go. Once the claimant was temporarily assigned to G&B, the employment agency did not instruct him regarding the performance of his work. It had no substantial contact with the claimant other than processing his paycheck.

The court held that since G&B had the right to control the manner of performance of the claimant’s work, for workers’ compensation purposes, G&B was the claimant’s employer and thus responsible for payment of workers’ compensation benefits. In reaching this result, the Supreme Court relied on and cited with approval the Superior Court decisions in Wilkinson v. K-Mart, supra, and English v. Lehigh County, supra.

In Wilkinson, the plaintiff, an employee of Transco, was operating a truck for K-Mart Corporation pursuant to a contract between Transco and K-Mart. He was injured when the parcels in his truck fell forward while he was unloading the truck. He brought a personal injury action against K-Mart alleging that it had negligently loaded the truck. K-Mart filed a motion for summary judgment, asserting that the plaintiff was a statutory employee under the borrowed servant doctrine. The trial court entered summary judgment in favor of K-Mart, and the Superior Court affirmed.

The contract between Transco and K-Mart provided for K-Mart to dispatch the Transco drivers and to choose their routes. The trucks which they operated were owned by K-Mart. The court ruled that the plaintiff was a borrowed servant because K-Mart controlled the work to be done and the manner of performance.

In English v. Lehigh County Authority, Kelly Labor — a temporary employment agency — assigned Mr. English to provide services for Lehigh County Authority pursuant to a contract between Kelly Labor and the Authority under which Kelly Labor would supply temporary labor to take samples of sewage. Mr. English reported to an Authority employee who directed him to report to a metering station about 10 miles away. Mr. English was to go into a pit every half-hour to remove samples of sewage for testing. He was found dead at the bottom of the pit from noxious fumes that emanated from the sewage. The administrator of his estate sued the Authority which contended that it was entitled to immunity as an employer under section 481 of the Workers’ Compensation Act.

The Authority argued that for workers’ compensation purposes, the Authority — and not Kelly Labor — was Mr. English’s employer because the Authority was entitled to exercise total control over the sampling process and because Kelly Labor exercised no control over the manner in which any employee whom it furnished the Authority would perform his or her responsibilities. The plaintiff, on the other hand, contended that Kelly Labor should be deemed to be plaintiff’s employer because it hired and initially assigned its workers to various customers, it retained the right to fire and discipline its workers, it paid the workers’ wages and unemployment compensation taxes, and it maintained workers’ compensation insurance. The Superior Court ruled that although Kelly Labor had almost absolute control over which of its workers would serve the needs of its customers, it had no significant control over the manner in which the workers carried out the work to which they were assigned. Consequently, for workers’ compensation purposes, the Authority was Mr. English’s employer.

In the case before this court, plaintiff seeks to distinguish the three cases cited above on the ground that Network’s compensation carrier provided workers’ compensation benefits to plaintiff. Plaintiff contends that Waste Management should be barred from claiming that it is protected by the immunity provisions of the Workers’ Compensation Act because it contractually transferred the responsibility to provide workers’ compensation benefits to the lending employer.

Appellate court case law has rejected this argument. See Lascio v. Belcher Roofing Corp., 704 A.2d 642, 644-45 (Pa. Super. 1997), where the court stated:

“The second issue raised by the Lascios is whether a general contractor can claim statutory employer immunity if it has not paid workers’ compensation benefits. This issue was resolved in Cranshaw Construction v. Ghrist, 290 Pa. Super. 286, 434 A.2d 756 (1981). . . .

“The statutory employer immunity is given in exchange for the potential liability for workers’ compensation benefits regardless of whether those benefits are actually paid. Cranshaw, 290 Pa. Super, at 291, 434 A.2d at 758. Failure to pay benefits, therefore, is no grounds to abrogate the statutory employer status and the Lascios’ argument on this point must fail. Cranshaw, supra.”

Also see, Supp v. Erie Insurance Exchange, 330 Pa. Super. 542, 550, 479 A.2d 1037, 1041 (1984), where the court ruled that “under the Workmen’s Compensation Act, the fact that the ‘lending employer’ pays for the workmen’s compensation insurance is no impediment to finding the ‘borrowing employer’ to be immune from suit pursuant to section 303.”

Plaintiff contends that Waste Management is estopped from claiming that plaintiff is a borrowed employee because of the provisions in the contracts between plaintiff and Waste Management and between Waste Management and Network identifying plaintiff as Network’s employee. Plaintiff relies on case law which holds that a business which hired a claimant to perform work under an arrangement that the law would recognize as the performance of services by an independent contractor is estopped from challenging the claimant’s assertion that he or she is entitled to workers’ compensation protection when (1) the business promised the claimant that he was covered under the business’s workers’ compensation policy and (2) the claimant relied on this promise in making the decision to provide services on behalf of the promisee. See e.g., Tri-Union Express v. W.C.A.B. (Hickle), 703 A.2d 558 (Pa. Commw. 1997); American Insurance Company v. W.C.A.B. (Barnhart), 146 Pa. Commw. 608, 606 A.2d 655 (1992). These cases are not controlling because the claimant’s reliance on the promise of workers’ compensation coverage was an essential element for the application of the estoppel doctrine. In the present case, plaintiff is not asserting that he was promised that he would be permitted to bring a tort action against Waste Management if he was injured while assigned to Waste Management or even that the ability to bring a tort action against Waste Management in the event that he was injured while performing work on its behalf was an important factor in his decision to accept an assignment with Waste Management.

Plaintiff also argues that Waste Management is bound by the language of the contracts which identify plaintiff as Network’s employee. The case law does not support this argument.

In Wilkinson v. K-Mart, supra, the plaintiff’s tort action against K-Mart was dismissed on the ground that the plaintiff was K-Mart’s borrowed employee even though the contract through which the plaintiff was assigned to K-Mart characterized the plaintiff as an employee of the party that supplied the plaintiff to K-Mart. The Wilkinson court relied on Red Line Express Co. Inc. v. W.C.A.B. (Price), 138 Pa. Commw. 375, 588 A.2d 90 (1991), where the Commonwealth Court rejected the argument that a lessor who contended that the claimant was the lessee’s borrowed employee at the time of the accident was bound by the language in the lease that the lessor’s employees shall not be considered to be employees of the lessee:

“Although the provisions of the lease tend to indicate that the claimant was to remain an employee of Princeton, the determining factor is the actual conduct of the parties and whether Red Line actually had the power to control claimant’s work and manner of performance.” Id. at 383, 588 A.2d at 94. (citations omitted)

The issue that underlies the legal arguments which plaintiff makes is whether a ruling that extends the immunity provisions of the Workers’ Compensation Act to Waste Management is inconsistent with the purposes for providing immunity from tort law to an employer. The Workers’ Compensation Act is intended to be a mixed bag for both the employer and the employee. In exchange for receiving workers’ compensation benefits regardless of fault, the injured employee loses the right to recover the damages provided under tort law where the employer’s negligence was a cause of the injury; and in exchange for this immunity from tort law the employer must provide workers’ compensation benefits whenever an employee is injured in the course of his or her employment.

According to plaintiff, the extension of the immunity provisions to Waste Management results in Waste Management’s receiving the benefits of the Workers’ Compensation Act without the corresponding obligations that are the quid pro quo for these benefits. Consequently, I should find a legal justification for preventing such an outcome.

I do not agree that Waste Management is receiving the benefits of the Workers’ Compensation Act (i.e., immunity from tort law) without assuming the corresponding obligation to provide workers’ compensation benefits to its temporary employees. Under the Workers’ Compensation Act, Waste Management — and not Network — is obligated to provide workers’ compensation protection to Network’s employees assigned to Waste Management. See JFC Temps v. W.C.A.B. (Lindsay), supra. There are two ways in which Waste Management can assume its obligation to provide workers’ compensation coverage for its temporary employees which is the quid pro quo for the immunity protection. It can purchase workers’ compensation insurance from an insurance company or it can pay Network to obtain workers’ compensation insurance covering its employees that are assigned to Waste Management.

Waste Management pays Network $11.90 per hour for temporary employees assigned to Waste Management. Network pays its employees $7 an hour. The difference between the $11.90 and the $7 covers the services that Network provides, including workers’ compensation coverage. Network would not be purchasing workers’ compensation coverage for employees assigned to Waste Management if it was not a part of the package of services that it is selling to Waste Management. Network passes onto Waste Management the cost of obtaining workers’ compensation protection on behalf of Waste Management through its charges for this package of services that Waste Management is purchasing. Consequently, this is not a situation in which Waste Management is obtaining the immunity protections of the Workers’ Compensation Act without paying for workers’ compensation protection for its temporary employees. It is simply paying the cost of workers’ compensation coverage for the Network temporary employees to Network rather than to the insurance company that is providing the workers’ compensation coverage.

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

ORDER

On May 5,1998, it is ordered that defendant’s motion for summary judgment based on the immunity provisions of the Workers’ Compensation Act is granted and plaintiff’s complaint is dismissed.

      . The employment agency determined and paid the claimant’s salary although his time slips were completed and signed by G&B personnel. The claimant would call the employment agency if he was late or ill or if he had any questions. If he was unable to work, the employment agency would provide G&B with a replacement. It was G&B’s decision whether the claimant’s work was satisfactory. If G&B was not satisfied with the claimant’s work, G&B could request a replacement for the claimant; however, G&B could not fire the claimant.

      . In Wallis v. AEG Westinghouse Transportation Systems Inc., 144 P.L.J. 454 (1996), Judge Judith L.A. Friedman of this court ruled that the immunity provisions of the Workers’ Compensation Act did not bar an employee from bringing a tort action against a company that was not the actual employer. She concluded that the Commonwealth Court had rejected the English v. Lehigh County Authority line of cases decided by the Pennsylvania Superior Court. In support of her position, she relied on G&B Packing v. W.C.A.B. (Lindsay), 653 A.2d 1353 (Pa. Commw. 1995). G&B Packing was subsequently reversed by the Pennsylvania Supreme Court in JFC Tempsv. W.C.A.B. (Lindsay), supra. See pages 405-406 of this opinion.


author: SCHMEHL, P.J.,

text:
    In re Estate of Saylor
    C.P. of Berks County,
    no. 6-97-0095.

      Edwin L. Stock, for co-executor Gregory.

      John M. Elliott, for co-executor Krafczek.

      June 10, 1998
   SCHMEHL, P.J.,

This opinion is written in response to the appeal of this court’s April 6, 1998 order appointing Elliott, Reihner, Siedzikowski & Egan RC. as sole counsel to represent the Saylor estate in ongoing litigation with Exide. The litigation deals generally with alleged lead contamination of land held by the estate of Josephine A. Saylor with Ms. Gregory, decedent’s daughter, and Adam B. Krafczek Sr., Esquire, as co-executors of said estate.

Before her death, Josephine A. Saylor hired the law firm of Mylotte, David & Fitzpatrick, on a contingency fee basis, to commence an action against Exide. Shortly after her mother’s death, Ms. Gregory signed a second contingent fee agreement with the Mylotte firm. Ms. Gregory testified that Mr. Krafczek agreed to the Mylotte firm’s representing the estate in the Exide litigation with Mr. Krafczek doing the rest of the estate work. Mr. Krafczek, however, alleged in his pleadings that Ms. Gregory never notified or consulted with him nor did she give him the opportunity to review the new fee agreement. Furthermore, John Fitzpatrick, Esquire, of the Mylotte firm, testified that he never contacted or consulted with Mr. Krafczek regarding the new contingent fee agreement. Mr. Krafczek did not sign the fee agreement.

Mr. Krafczek alleged in his pleadings that he attempted to contact Mr. Fitzpatrick in late February 1997 in connection with the Exide litigation, but Mr. Fitzpatrick did not return his calls. On February 25, Mr. Krafczek forwarded a letter to Mr. Fitzpatrick advising him of his status as co-executor and that it would be appropriate to file a suggestion of death and substitute the co-executors as plaintiffs in the Exide litigation. Mr. Krafczek also requested Mr. Fitzpatrick to call to discuss the case. Because Mr. Fitzpatrick took no action, Mr. Krafczek, on March 12, sent another request for information to Mr. Fitzpatrick. In the letter, Mr. Krafczek also suggested that he may have some new or additional ideas that would be helpful in the Exide litigation. Approximately a week later, Mr. Fitzpatrick responded and indicated that he would be filing a suggestion of death within the next few days, which he did not do. As a result of the foregoing lack of communication and lack of cooperation, Mr. Krafczek formally retained the Elliott firm to represent him as co-executor in the Exide litigation.

The Elliott firm prepared an entry of appearance on behalf of Mr. Krafczek as well as a statement of death and various other documents to substitute Mr. Krafczek and Ms. Gregory as co-executors as the plaintiffs in the Exide litigation. These documents were forwarded to Mr. Fitzpatrick as co-counsel for his review and execution. Mr. Fitzpatrick, however, failed to communicate or cooperate with the Elliott firm as co-counsel. He did not respond to the documents sent by the Elliott firm, and he never executed the substitution prepared by the Elliott firm. Attorney Elliott, by letter, advised Mr. Fitzpatrick that if Mr. Elliott did not receive a response, the Elliott firm would file the necessary documents. Mr. Fitzpatrick again failed to respond, and the Elliott firm filed the documents on behalf of Mr. Krafczek. All defendants and Mr. Fitzpatrick were served with these documents. The previous day, however, Mr. Fitzpatrick filed several documents without the prior authorization, consent, or knowledge of Mr. Krafczek or the Elliott firm. Mr. Krafczek and his counsel allegedly learned of the filing of these documents, as well as the filing of the complaint, by way of a newspaper article appearing in the Reading Eagle-Times. Mr. Fitzpatrick never gave the Elliott firm or Mr. Krafczek any notice that he was filing a substitution of parties or a complaint on behalf of Mr. Krafczek. Mr. Fitzpatrick did not give Mr. Krafczek a copy of the complaint doing what he “understood was appropriate with respect to [his] client which was Ms. Gregory.” N.T., p. 76.

Despite Mr. Krafczek’s being a co-executor and being represented by counsel, Mr. Fitzpatrick never obtained any authorization or consent to file anything on behalf of Mr. Krafczek. Furthermore, Mr. Fitzpatrick failed to serve a copy of any of these pleadings, or drafts thereof, upon Mr. Krafczek or his counsel of record. The Elliott firm obtained copies of these documents directly from the prothonotary’s office. Also, the complaint misrepresented that the Mylotte firm was the attorney for Mr. Krafczek, who was represented by the Elliott firm. Mr. Krafczek was never represented by the Mylotte firm.

After service of Mr. Fitzpatrick’s complaint, defendant’s counsel requested from Mr. Fitzpatrick an extension to file an answer. The Elliott firm was never informed of the request for the extension and never consented to it, but nevertheless, was advised by defendant’s counsel that Mr. Fitzpatrick granted an extension. When asked if he ever notified Mr. Krafczek about the extension request, Mr. Fitzpatrick replied, “of course not.” N.T., p. 88. Mr. Fitzpatrick has failed to keep Mr. Krafczek and his counsel advised of any developments in the Exide litigation, and he has not copied Mr. Krafczek or his counsel with any correspondence or pleadings filed in the Exide litigation.

The Elliott firm petitioned for leave to file an amended complaint in the Exide litigation and the presiding judge, the Honorable Thomas J. Eshelman, stayed all proceedings and required that depositions be completed within 60 days. The Elliott firm attempted to depose Mr. Fitzpatrick and Ms. Gregory but was forced to move to compel the depositions.

The lack of cooperation between the parties and their counsel culminated in a petition for citation why Mr. Fitzpatrick and the Mylotte firm should not represent the estate in the Exide litigation. Ms. Gregory believes that it was her mother’s intent to have Mr. Fitzpatrick and the Mylotte firm conduct the Exide litigation and for that reason they should continue to be the sole counsel for the estate in that matter. Mr. Krafczek wants the Elliott firm to represent the estate because of Mr. Fitzpatrick’s lack of cooperation and because he feels that the Elliott firm is better qualified to handle the litigation.

Testimony at the hearing elicited the fact that Mr. Fitzpatrick and his law firm have extensive background in environmental litigation, although they have handled no cases dealing directly with lead or lead pollution. In the brief testimony of Attorney Blazey, who is a partner in the Elliott firm, it was clear that he had at least the same amount of expertise in environmental litigation and, in particular, has handled cases dealing with lead and its ill effects on the environment and groundwater, etc.

The court decided that the Elliott firm is the more appropriate firm to act as counsel in this matter for the following reasons:

In Ms. Gregory’s entire case, her attorney, Mr. Fitzpatrick, never explained why, from the outset of his involvement in this case, he had little or no contact with Mr. Krafczek with regard to the status of the litigation. There were a series of letters written by Mr. Krafczek requesting further information about the status of the litigation, but Mr. Fitzpatrick viewed himself as representing Ms. Gregory and not Mr. Krafczek and so testified several times. He acknowledged that he felt no obligation to take instruction from or inform Mr. Krafczek about what was going on, even though he represented himself as Mr. Krafczek’s attorney in the complaint. He acknowledged that the complaint was filed without having presented even a draft of same to Mr. Krafczek and well may not have even presented the complaint to Ms. Gregory. “A lawyer should maintain communication with a client concerning the representation.” R.P.C. Preamble. “A lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.” R.P.C. 1.2. (emphasis added) Furthermore, R.P.C. 1.4(a) provides: “[a] lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information. ” (emphasis added) The estate was Mr. Fitzpatrick’s client and obviously the estate acted through its representatives, Mr. Krafczek and Ms. Gregory. Informing and consulting with the estate necessarily required Mr. Fitzpatrick to inform and consult with the co-executors in order to faithfully comply with his duties.

The probable complexities of this litigation aside, there is no excuse for Mr. Fitzpatrick’s acknowledged disregard of Mr. Krafczek’s legitimate questions and inquiries about what was going on in the litigation. It is the view of the court that were he and his firm to continue as counsel, there would have been an ongoing disregard of the legitimate concerns and inquiries of Mr. Krafczek as co-executor. It is true that Mr. Krafczek is free to renounce as co-executor, but he is certainly under no obligation to do so. While he so serves he is liable for any failure to have the estate administered properly. He is caught between a rock and a hard place— if he stays on, he has to deal with a firm that has demonstrated rather consistently its unwillingness to talk with him while he continues his potential liability for misfeasance or nonfeasance. The court is satisfied that Mr. Krafczek was willing to work with Mr. Fitzpatrick and only after he met with no responses from Mr. Fitzpatrick did he go to the Elliott firm.

It is not lost on the court that Mr. Krafczek’s son is a partner in the Elliott law firm. Based upon the evidence received by this court, no overtures were made to that firm until Mr. Krafczek’s frustration in failing to receive any response to his inquiries of Mr. Fitzpatrick rose to an unacceptable level. The court stopped the hearing after Ms. Gregory’s case was closed based upon the court’s judgment that if anything, the actions of Mr. Fitzpatrick or his rather consistent failure to act and be appropriately responsive, not only with respect to inquiries but with respect to providing pleadings or drafts thereof prior to their filing, clearly indicated that his firm is not an appropriate firm to continue this litigation.

The court’s concern is what is in the best interest of the estate and suspects both firms could competently handle the Exide litigation. The court therefore views the critical question as which firm would be the more responsive in all respects, professionally and otherwise, to the needs and responsibilities of both of the co-executors. While there are hard feelings between the co-executors, they each have certain duties to the estate and without the proper information to execute those duties they become vulnerable to liability for failure to so act.

The court had considered peripherally whether, if Mr. Fitzpatrick and the Mylotte firm were deemed unsuitable to serve, it should entertain the appointment of a lawyer or firm new to the proceedings. To do so would unnecessarily and, in the view of the court, inappropriately impose its will on the estate. The one co-executor already chose the Elliott firm which, to the limit of its ability under strained circumstances, has prosecuted the lawsuit. To appoint a stranger to this case might well endanger the litigation, whatever its outcome in the ordinary course, and deny the express wishes of both co-executors.

For the reasons set forth above, the court entered its order of April 6, 1998.

      . When asked at the hearing whether he had Mr. Krafczek’s authority to file the complaint in Mr. Krafczek’s name, Mr. Fitzpatrick stated, “I did not have Mr. Krafczek’s authority, no.” N.T., p. 81.

      . The Elliott firm first received a copy of the complaint, dated May 9, from Mr. Fitzpatrick as an exhibit attached to another filing, dated May 30. At the hearing, Mr. Fitzpatrick claimed, “I don’t know the exact procedure in which [the Elliott firm] got a copy of the complaint.” N.T., p. 79. He “didn’t send it to [them] on the day it was filed . . . .” N.T., p. 78.

      . Mr. Fitzpatrick testified that he “had one or two conversations on the phone with Mr. Krafczek and . . . wrote a letter to him on March 20, 1997.” N.T., p. 67. He had no other contact. He also never talked to Mr. Elliott or sent him a letter — he did not respond to the correspondence of Mr. Elliott.

      . E.g. “[M]y client . . . was Miss Gregory.” N.T., p. 76. “My client in the litigation has been, as instructed to me, Nancy Saylor Gregory and the estate.” N.T., p. 82.

      . Mr. Fitzpatrick “did not take any directions from Mr. Krafczek and, in fact, [he] discussed the litigation that [he] was involved in with Ms. Gregory and did not take directions from Mr. Krafczek. So the fact that [Mr. Krafczek] suggested that [Mr. Krafczek] would direct [him] in this, [he] did not take that as something that [he] was supposed to follow.” N.T., p. 87. Mr. Fitzpatrick “never consulted with Mr. Krafczek about any part of the litigation.” N.T., pp. 88-89.

      . “I did not — I do not believe I supplied a written copy of the complaint to [Ms. Gregory] before I filed it.” N.T., p. 81.


author: SPICER, P.J.,

text:
    Cook v. Borough of Gettysburg

      C.P. of Adams County,
    no. 96-S-626.

      Joseph Blum and Jeffrey Cook, for plaintiffs.

      James Thomas and James Carl, for defendants.
    June 4, 1999
   SPICER, P.J.,

Plaintiff filed her complaint November 25, 1996, alleging, inter alia, that a fireworks display was presented on lands owned by the Borough of Gettysburg in conjunction with the annual Gettysburg Fire Department carnival. The area is known as Rec Park, and was visited the day afterwards, July 6, 1996, by plaintiff and her minor son, Robert. The child found and picked up debris that in-eluded unexploded fireworks, and took it home. As Robert played with the material outside plaintiff’s home, the fireworks exploded and blew off the child’s hand.

In its preliminary objections, filed December 12, 1996, borough argued among other things that plaintiff’s action was barred by the Recreation Use of Land and Water Act, 68 RS. §477-1 et seq. In denying the objection, Judge John D. Kuhn observed:

“Our Supreme Court has held that the Act applies only to lands that are largely unimproved and where no admission fee is charged. Lory v. City of Philadelphia, 544 Pa. 38, 41, 674 A.2d 673, 674 (1996), cert. denied, 117 S.Ct. 184, 136 L.Ed.2d 123. (citations omitted)

“For purposes of a demurrer, there is no indication in plaintiffs’ complaint that the real estate in question was largely unimproved. Therefore, it is not clear at this stage of the pleadings that the Recreation Use of Land and Water Act would be applicable.” Slip opinion 10-28-97, p. 6.

Borough again raised the defense of immunity under RUA in its answer and new matter, filed March 20, 1998. Plaintiff replied, April 20, 1998, that borough’s assertion was a conclusion of law and the case proceeded to a pretrial conference before Judge Kuhn. An eight-day jury trial was scheduled for the term beginning August 9, 1999. Borough has timely moved for summary judgment, again citing RUA. The motion was argued and heard by the undersigned, and is ready for disposition.

Rec Park is not definitively described in pleadings, but there appears to be no dispute that plaintiff has accurately described the area in her brief. On page 6 she asserts, based on a portion of a deposition attached thereto, that the area is “a community park in Gettysburg a quarter of a block from plaintiff’s home,” and is improved with a football field, baseball field, swing set and track located thereon. Grass is regularly mowed.

Plaintiff argues that the fields were built and designed in a manner that enhanced the value and utility of the land and adapted it for a new purpose, is comparatively small in size and relatively easy to keep a safe condition.

Plaintiff further contends that the improvements themselves caused the accident because fireworks displays must be conducted in open fields. The point invites an esoteric discussion on. cause-and-effect, which the court declines to accept. For reasons that will be discussed, it is unnecessary to determine whether a mowed field was the instrumentality of the injury. Rather, it is only necessary to decide whether the park’s location, and its development for purposes of public access and enjoyment place it beyond the ambit of RUA.

The Act provides:

“Section 477-1. Purpose; liability

“The purpose of this Act is to encourage owners of land to make land and water area available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

“Section 477-2. Definitions

“As used in this Act:

“(1) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.
“(2) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
“(3) ‘Recreational purpose ’ includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports, cave exploration and viewing or enjoying historical, archeological, scenic, or scientific sites.
“(4) ‘Charge’ means the admission price or fee asked for in return for invitation or permission to enter or go upon the land.

“Section 477-3. Duty to keep premises safe; warning

“Except as specifically recognized or provided in section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

“Section 477-4. Assurances of safe premises; duty of care; responsibility, liability

“Except as specifically recognized by or provided in section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

“(1) Extend any assurance that the premises are safe for any purpose
“(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
“(3) Assume responsibility for or incur liability for any injury to persons or property caused by an act of omission of such persons.”

Sections 5 and 6 of the Act have no applicability to the present action. Section 5 applies to land leased to the state or subdivision thereof, and section 6 preserves liability in cases where there is either a charge of admission or willful or malicious failure to warn or guard against a dangerous condition, use, structure or activity.

Summary judgment is appropriately entered where it is clear that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Mills v. Commonwealth, 534 Pa. 519, 633 A.2d 1115 (1993).

One might conclude, as borough has argued, that statutory language insulates an owner of an open field from liability when anyone walks across without having to pay a fee. Nothing in the Act’s language precludes such an interpretation or application. However, things are rarely as simple as they might seem. This type of legislation has provoked considerable debate and widely divergent results by courts. The Superior Court considered various results and policy arguments in Redinger v. Clapper’s Tree Service Inc., 419 Pa. Super. 487, 615 A.2d 743 (1992), alloc. denied, 533 Pa. 652, 624 A.2d 111 (1993). That court observed that, as of 1998, 48 states had enacted some form of law limiting the liability of landowners to those they allowed to come upon their property for recreational purposes, and around 20 states had adopted essentially the same model Act. Even when interpreting identical language, jurists have rendered conflicting decisions. Playground bleachers have been treated differently than football stadium bleachers; at least one state protects backyards while other states exclude urban property.

The Superior Court’s opinion contained an interesting quote from a law review article by Sandra M. Renwand, “Beyond Commonwealth[, Department of Environmental Resources] v. Auresto: Which Property Is Protected by the Recreation Use of Land & Water Act?”, 49 U.Pitts.L.R. 261, 1987, pp. 277-80:

“It is more reasonable for the recreational user to expect that land located in urban (populated) areas will be maintained, and therefore such land should not be protected by the RUA. . . . The more improved the property, the more reasonable it is for the user to expect that the landowner has maintained it in a safe condition.” 419 Pa. Super, at 497, 615 A.2d at 748. (footnotes omitted)

Impliedly rejecting this policy, the Superior Court affirmed the grant of summary judgment in favor of a landowner when a falling tree limb injured a spectator at a baseball game. Since the limb was part of the land’s natural state, the court held that RUA applied. Nonetheless, the court conceded that “[tjhis holding puts us in seeming conflict with a recent decision of the Commonwealth Court. In Mills v. Commonwealth of Pennsylvania and Penn’s Landing Corporation, 145 Pa. Commw. 558, 604 A.2d 755 (1992), allocatur granted, Penn’s Landing Corporation v. Mills (Ethel) 531 Pa. 642, 611 A.2d 714 (1992), the plaintiff was injured while attending a concert at Penn’s Landing, an urban recreational facility located along the Delaware River in Philadelphia. The court ruled that this sort of facility constituted improved land and was therefore not of the type contemplated by RULWA and that liability was not barred.” 419 Pa. Super, at 501, 615 A.2d at 750. Superior Court adopted the reasoning expressed in the concurring opinion by Judge Pellegrini, who opined that large urban grassy areas were just as much within RUA as rural areas. Judge Pellegrini concurred in the Commonwealth Court’s denial of summary judgment because the accident occurred within a grassy strip between a sidewalk and street and was not used for recreational purposes.

The Supreme Court gave no indication that it supported Judge Pellegrini’s view in affirming the Commonwealth Court. To the contrary, our highest court said:

“We find that the factors relied upon by Penn’s Landing, that the area is used for recreational purposes by the general public and that no admission fee is required to enter Penn’s Landing, are not dispositive in applying the immunity protections afforded under the RUA. Rather, we believe the intended beneficiaries of the RUA, in addition to the general public, are landowners of large unimproved tracts of land which, without alteration, is amenable to the enumerated recreational purposes within the Act. The purpose of the RUA was to provide immunity to landowners as an incentive to them in exchange for their tolerance of public access to their lands for recreational pursuits. The RUA was not intended to insulate owners of fully developed recreational facilities from the normal duty of maintaining their property in a manner consistent with the property’s designated and intended use by the public.” Mills v. Commonwealth, 534 Pa. at 526, 633 A.2d at 1119.

In this judge’s opinion, language by our highest court clearly indicates adoption of the above quoted policy statement in Professor Renwand’s law review article, and amounts to a rejection of the approach taken in Redinger, supra. A more recent Superior Court decision supports our conclusion. In York Haven Power Co. v. Stone, 715 A.2d 1164 (Pa. Super. 1998), the court ruled that RUA applied only to natural ponds and was not available to a defendant who dammed up the Susquehanna River and created a large, artificial lake. Even Judge Olszewski, who expressed concerns about the majority ruling that RUA did not apply as a matter of law, quoted the Supreme Court that RUA was “designed to encourage the opening up of large private land holdings for outdoor recreational use. Rivera [v. Philadelphia Theological Seminary], 510 Pa. [1] at 16, 507 A.2d [1] at 8.” Quoted at 715 A.2d 1167.

Based upon this court’s reading of appellate authority, we are constrained to hold that RUA immunity is unavailable to the borough.

ORDER

And now, June 4, 1999, the motion for summary judgment filed by the Borough of Gettysburg is denied.

      . Perhaps we should say “hike,” since there are indications that ingress and egress may not qualify for recreational purposes. See Mills v. Commonwealth, supra.

      . 511 Pa. 73, 511 A.2d 815 (1986). That case involved a snowmobiler injured by a snow-covered tree stump in a state forest. Our Supreme Court held that RUA was available to the Commonwealth as well to private landowners.