author: NEALON, J.,

text:
    Overfield v. Ohio Casualty Insurance Co.

      C.P. of Lackawanna County,
    no. 96-CV-5211.

      Michael J. Cefalo and Linda L. Bartlett, for plaintiff.

      Richard G. Fine and Edward A. Monsky, for defendant.
    October 14, 1998
   NEALON, J.,

Defendant Ohio Casualty Insurance Company has appealed an under-insured motorist (UIM) arbitration award rendered on July 2, 1998, and has raised the following two issues of apparent first impression which have not yet been addressed by an appellate court in Pennsylvania. First, in an accident involving multiple plaintiffs who have amicably rationed the tort-feasor’s liability insurance limits which were interpleaded into court, may the UIM insurer claim a credit for the tort-feasor’s entire policy limits rather than the distributive amount actually received by the plaintiff? Second, in an accident involving multiple potential tort-feasors with questionable or negligible liability, is the UIM carrier entitled to an offset for the liability limits of each tort-feasor’s policy even if the plaintiff has not recovered damages from the marginally liable tort-feasor’s insurer? For the reasons set forth below, and in order to effectuate the legislative intent of affording injured UIM claimants the greatest possible coverage, Ohio Casualty’s appeal will be denied.

I. FACTUAL BACKGROUND

This litigation arises out of an unusual and tragic accident which occurred on Route 81 North during the early morning hours of November 26, 1992. At that time, an automobile operated by Christopher Sturchio collided with a bridge guardrail and became disabled in the left lane of Route 81 North adjacent to the bridge. Shortly thereafter, a northbound vehicle operated by Lisa Overfield and containing Michael J. Bernstein and Cheryl L. Bridgman as passengers arrived upon the scene of the Sturchio collision and parked on the left shoulder of the roadway to offer assistance to Sturchio.

As Overfield, Bernstein and Bridgman were rendering aid to Sturchio and attempting to remove him from his automobile, they suddenly observed a northbound vehicle operated by Robert G. Masci as it was approaching at a purported high rate of speed. In an effort to avoid being struck by the oncoming Masci car, the three Samaritans leaped from the path of the Masci vehicle’s travel as it simultaneously struck the Sturchio car. Although Bridgman landed on the bridge guardrail and sustained the least serious injuries, Overfield and Bernstein inadvertently jumped over the bridge railing in attempting to elude the crash. As a result, Bernstein plunged more than 100 feet to his death on a rock bed below, while the more fortunate Overfield fell a shorter distance onto a hillside and survived, albeit with serious injuries. Additionally, Sturchio was thrown from his vehicle by the impact and was likewise killed.

Overfield, the estate of Bernstein, Bridgman, and the estate of Sturchio all presented liability claims against Masci. (See Overfield v. Masci, no. 93-CV-1152 (Lacka. Co.); Estate of Bernstein v. Masci, no. 94-CV-5601 (Lacka. Co.); Bridgman v. Masci, no. 94-CV-5600 (Lacka. Co.); Estate of Sturchio v. Masci, no. 94-CV-5070 (Lacka. Co.).) At the time of this fatal accident, Masci was insured with Aetna Casualty & Surety Company pursuant to an automobile liability insurance policy which afforded single limit coverage of $100,000. In light of the aggregate magnitude of the claims, Aetna filed a petition for interpleader to pay its policy limit proceeds into court in accordance with Pa.R.C.P. 2031 et seq., and by order dated December 7,1993, President Judge James J. Walsh granted Aetna’s requested relief.

Overfield, the estate of Bernstein, Bridgman, and the estate of Sturchio eventually filed a “motion for distribution of funds” confirming that those parties had “agreed, after consideration of the availability of underinsurance coverage, to the distribution of the $100,000.” (See Overfield v. Masci, supra, docket entry no. 16, ¶8.) Prior to entering into that agreement regarding the apportionment of the Masci funds, Overfield secured the written consent to settle from her own UIM carrier, Erie Insurance Company, as well as her father’s UIM insurer, Ohio Casualty. Specifically, by letter dated October 6, 1994, counsel for Ohio Casualty advised Overfield that “[ajfter reviewing the facts of this case, concluding our investigation, and researching the legal issues involved, the Ohio Casualty Group will give permission to settle the claim against the tort-feasor, Robert G. Masci.” (See plaintiff’s brief, exhibit 1.) Consequently, on July 18, 1995, Judge Carlon M. O’Malley Jr. entered an order approving the parties’ jointly submitted motion and authorizing the distribution of the interpleaded proceeds in the follpwing manner: Over-field — $2,500; estate of Bernstein — $48,250; Bridgman — $1,000; and estate of Sturchio — $48,250. See Overfeld v. Masci, supra, docket entry no. 16 (Lackawanna County).

Based upon her receipt of the UIM insurers’ written consent, Overfield executed a joint tort-feasor release with Masci and Aetna in connection with the settlement of the interpleader action. The Overfield-Masci/Aetna release expressly states that it is “executed and delivered in accordance with the ‘Uniform Contribution Among Joint Tort-feasors Act.’ ” (See plaintiff’s brief, exhibit 2, pp. 2-3.) The pro rata language of the Overfield-Masci/Aetna release extinguished the joint and several liability of the other potential tort-feasor, Sturchio, for the full amount of Overfield’s putative recovery from the responsible parties. See Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992); Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987). Following the execution of that release, Sturchio could only be held accountable for his percentage or proportionate share of Overfield’s total damages. See 42 Pa.C.S. §§7102, 8326.

Overfield thereafter proceeded forward with her UIM claim against Erie which was the primary UIM carrier under section 1733(a) of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S., and Erie ultimately agreed to tender its policy limits of $100,000 for settlement of Overfield’s UIM claim. Before accepting Erie’s offer, counsel for Overfield solicited Ohio Casualty’s consent to settle by forwarding a letter dated September 25, 1995 which stated:

“As discussed, our office has resolved the above-captioned underinsurance claim for Erie Insurance’s policy limits of $100,000. Enclosed is a copy of the declaration page evidencing the limits of $100,000 and a copy of the release in the amount of $100,000.
“At this time, we would like to pursue a claim for underinsurance benefits under Mr. Overfield’s Ohio Casualty policy. Although the policy does not state that we need your permission to sign the release and accept the primary underinsured’s coverage, we are asking you to confirm in writing with the Ohio Casualty that it does not object to our resolving the primary underinsurance monies. Kind advise our office within the next seven days whether we may do so. If not, we will wait the 30 days and petition Ohio Casualty to pay the sum to our client as if this were a tort-feasor recovery with no consent to settle.” (Id., exhibit 3.)

In response, counsel for Ohio Casualty informed Overfield’s attorney that Ohio Casualty’s consent was unnecessary in that the UIM policy terms did not require consent to settle with a primary UIM carrier. (Id., p. 2.) Based upon that representation, Overfield executed a UIM “release and agreement” with Erie on September 30, 1995. (Id., exhibit 4.)

After obtaining $102,500 in total recovery from the Masci liability insurer (Aetna) and the primary UIM carrier (Erie), Overfield formally demanded UIM benefits from Ohio Casualty as the UIM insurer for her father, Joseph P. Overfield, with whom she resided at the time of the accident. Ohio Casualty’s policy provided non-stacked UIM coverage totaling $200,000 and included language stating “[w]e will pay damages under this coverage arising out of an accident with an underinsured motor vehicle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” (See Ohio Casualty’s petition to vacate, modify or correct arbitration award, exhibit A.) The Ohio Casualty policy further provided that in the event that Overfield and Ohio Casualty could not agree as to her legal entitlement to recover damages or the amount of damages, the dispute(s) would be arbitrated “in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.” (Id.)

On July 2, 1998, the parties conducted an arbitration hearing at which time Ohio Casualty offered the testimony of an eyewitness who claimed that the Sturchio vehicle was traveling at a high rate of speed prior to its collision with the bridge guardrail. (See Ohio Casualty’s petition, ¶13; Overfield’s response, ¶13.) Ohio Casualty further argued that Sturchio was jointly and severally responsible for Overfield’s damages, and that as such, Ohio Casualty should be entitled to a $100,000 credit reflecting Sturchio’s liability limits with Progessive Insurance Company. (Id., ¶¶10, 16, 18-20.) At the conclusion of the arbitration hearing, a majority of the arbitration panel issued a written award which stated:

“The board of arbitrators hereby renders an award in favor of the plaintiff, Lisa Overfield Townsend, in the sum of $77,500.
“This award has already taken into account all credits which the arbitrators believe to be appropriate and the award is a net award.” (Id., exhibit B.)

The majority award was rendered by the neutral arbitrator and the arbitrator chosen by Ohio Casualty, with Overfield’s designated arbitrator dissenting. (Id.)

Overfield and Ohio Casualty agree that although the arbitration award “was not supported by any written opinion setting forth its findings and conclusions,” the panel “verbally informed” the litigants that it had found Sturchio to be 10 percent causally negligent and had calculated Overfield’s total damages, “without reduction for applicable credits,” as having “a value of $200,000.” (Id., ¶¶12, 15.) The parties have stipulated that the arbitration panel computed its award as follows:

Overfield’s total damages $200,000
Credit for payment received from Masci liability insurer (Aetna) - 2,500
UIM policy limits payment from Erie -100,000
Sturchio’s 10 percent share of the total damages of $200,000 - 20,000
Net award $ 77,500

(Id., ¶15.)

On July 30,1998, Ohio Casualty timely filed a petition to vacate, modify or correct the arbitration award pursuant to 42 Pa.C.S. §§7314 and 7315. Ohio Casualty asserts that the arbitrators exceeded their powers and/or committed an evident miscalculation of figures which rendered the award deficient in form. (Id., ¶21.) The gravamen of Ohio Casualty’s appeal is that the award must be vacated, modified or corrected since the arbitration panel (1) did not apply a credit for the full amount of the Masci liability policy limits of $100,000 and (2) declined “to provide a credit of $100,000 to [Ohio Casualty] for the policy limits for the Sturchio vehicle [even though] the arbitrators found that Sturchio was jointly liable as a tort-feasor with Masci and both joint tort-feasors are jointly and severally liable for the amount of [Overfield’s] damages or award.” (Id., 121(d).)

According to Ohio Casualty’s proffered calculations, the arbitration award should have been computed in the following manner:

Overfield’s total damages $200,000
Masci’s total liability coverage (Aetna) - 100,000
UIM policy limits payment from Erie - 100,000
Sturchio’s total liability coverage - 100,000
Net award - 0 -

(See Ohio Casualty’s brief, pp. 9,11-12.) Ohio Casualty submits that if the arbitration panel had offset the foregoing credits totaling $300,000 against Overfield’s damages of $200,000, Overfield would not be entitled to recover any UIM proceeds from Ohio Casualty.

II. DISCUSSION

(A) Scope of Review

The standard of review applicable to the instant UIM arbitration appeal is dependent upon whether the arbitration proceeding was conducted pursuant to common-law arbitration, the Pennsylvania Arbitration Act of 1927, or the Pennsylvania Uniform Arbitration Act of 1980. Ohio Casualty’s policy provides for UIM arbitration “in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.” (See Ohio Casualty’s petition, exhibit A.) By virtue of that policy language, the present appeal is governed by the provisions of the Pennsylvania Uniform Arbitration Act of 1980, rather than the Pennsylvania Arbitration Act of 1927. MGA Insurance Co. v. Bakos, 699 A.2d 751, 753 n.4 (Pa. Super. 1997) (1927 Act only applies if the agreement to arbitrate was made prior to December 4, 1980 or the policy language expressly provides for arbitration under the 1927 Act); Cotterman v. Allstate Insurance Co., 446 Pa. Super. 202, 210, 666 A.2d 695, 699 (1995) (where the policy merely states that the Pennsylvania Uniform Arbitration Act governs, without any mention of either the 1927 or 1980 Acts, the provisions of the 1980 Act control); Cigna Insurance Co. v. Squires, 427 Pa. Super. 206, 209, 628 A.2d 899, 900 (1993), alloc. denied, 537 Pa. 638, 644 A.2d 161 (1994) (same).

The scope of review under the 1980 Act is more narrow than that set forth in the 1927 Act, but broader than the common-law arbitration standard. Bakos, 699 A.2d at 753; Patton v. J.C. Penney Insurance Co., 445 Pa. Super. 317, 321-22, 655 A.2d 510, 512 (1995). A common-law arbitration award may not be vacated or modified under 42 Pa.C.S. §7341 “unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” Prudential Property & Casualty Insurance Co. v. Stein, 453 Pa. Super. 227, 230, 683 A.2d 683, 684 (1996). In contrast, a statutory arbitration award may be modified or corrected under the 1927 Act “where the award is contrary to law and is such that had it been a verdict of a jury, the court would have entered a different judgment or a judgment n.o.v.” 42 Pa.C.S. §7302(d)(2). Cotterman, supra at 208, 666 A.2d at 698.

A UIM award may be vacated under the 1980 Act if, inter alia, the award would be annulled under the common-law arbitration standard or the arbitrators exceeded their powers. 42 Pa.C.S. §§7314(a)(l)(i), (iii). Bakos, 699 A.2d at 753. The 1980 Act further provides that an arbitration award may be modified or corrected where there was an evident miscalculation of figures or the award is deficient in a matter of form which does not affect the merits of the controversy. 42 Pa.C.S. §§7315(a)(1), (3). Cotterman, supra at 209-210, 666 A.2d at 698-99. However, unlike the 1927 Act standard of review, “an allegation that a statutory arbitration award [under the 1980 Act] is contrary to law is not a sufficient basis for vacating the award.” Caron v. Reliance Insurance Co., 703 A.2d 63, 66 (Pa. Super. 1997) (quoting Martin v. PM A Group, 420 Pa. Super. 624, 629-30, 617 A.2d 361, 363 (1992)).

Ohio Casualty contends that the UIM award should be vacated, modified or corrected since the arbitrators did not utilize the credits that Ohio Casualty proposed with regard to the liability of Masci and Sturchio. At best, Ohio Casualty’s arguments concern purported errors of law which cannot serve as a basis for disturbing an arbitration award under the 1980 Act. However, although Ohio Casualty’s appeal could be denied summarily for that reason, the issues raised in the petition warrant further discussion.

(B) The Boyle Solution

Citing Boyle v. Erie Insurance Co., 441 Pa. Super. 103, 656 A.2d 941 (1995), alloc. denied, 542 Pa. 655, 668 A.2d 1120 (1995), Ohio Casualty claims that “[t]he arbitrators erred, or in the alternative, made an evident miscalculation or mistake in failing to provide a credit to [Ohio Casualty] for the policy limits of both responsible vehicles, the Sturchio vehicle ($100,000) and the Masci vehicle ($100,000), because Pennsylvania law clearly holds that a UIM carrier is entitled to a credit for the entire amount of the liability coverage of the responsible vehicles involved in the accident.” (See Ohio Casualty’s brief, p. 9.) (emphasis in original) Relying upon Kester v. Erie Insurance Exchange, 399 Pa. Super. 206, 582 A.2d 17 (1990), alloc. denied, 527 Pa. 624, 592 A.2d 45 (1991), Overfield counters that “[b]ased on Kester, Overfield was not required to pursue each and every potential tort-feasor before pursuing a claim for underinsurance.” (See Overfield’s brief, p. 7.) The court concludes that neither the Boyle nor the Kester rationale is particularly well suited to UIM claims concerning multiple plaintiffs and interpleaded liability insurance funds or accidents involving several motorists, only one of whom is almost exclusively liable.

In Kester, the insureds sought UIM benefits after they had exhausted the negligent motorist’s liability limits. The UIM carrier denied coverage based upon policy language which did not obligate the insurer to pay UIM benefits “until all other forms of insurance applicable at the time of the accident have been exhausted,” including “motor vehicle liability insurance,” “any other liability insurance,” and “self-insurance plans, which include bonds, securities or cash deposits.” Id. at 210-11, 582 A.2d at 20. In that regard, the UIM insurer refused to pay the insured’s claim based upon “the theoretical liability of PennDOT for failure to maintain the roadbed.” Id. at 211, 582 A.2d at 20. In finding that the UIM clause requiring exhaustion of non-automobile insurance policies was “contrary to public policy as expressed in the underinsured motorist statute,” the Superior Court concluded that “only owners or operators of motor vehicles are included within the circle of those liable under the underinsurance procedure.” Id. at 213, 582 A.2d at 21. Contrary to Overfield’s contention, however, Kester is not controlling in the case sub judice since its holding is limited to exhaustion of and credits for non-motor vehicle liability insurance policies.

Although Boyle is more applicable than Kester, it likewise is not dispositive of the issues presented in this appeal. In that case, the insureds had resolved their liability claim against one of the tort-feasors for an amount less than the policy limits they could have recovered, and, as a result, the UIM insurer declined to afford coverage on the grounds that the insureds had not exhausted the available liability coverage. In attempting to fashion an approach which fairly protected the competing interests of the insured and insurer, the Boyle court remarked:

“Thus, when the insureds settled their claim against the tort-feasor’s liability carrier for less than policy limits, the underinsured motorist carrier was entitled to compute its payment to its injured insureds as though the tort-feasor’s policy limits had been paid.” Id. at 109, 656 A.2d at 943.

Stated another way, if the injured party accepts less than the tort-feasor’s full policy limits, the UIM insurer will “be allowed to credit the full amounts of the tortfeasors’ liability coverages against the insureds’ damages.” Id. at 109, 656 A.2d at 944.

Armed with Boyle’s formulation, Ohio Casualty maintains that it is entitled to a credit for Masci’s liability limits of $100,000. However, the Boyle procedure is only workable and equitable in those instances in which the UIM claimant could have potentially exhausted the tort-feasor’s liability coverage. Subsequent appellate court rulings have followed Boyle solely in the context of an individual plaintiff’s failure to exhaust a tortfeasor’s liability limits. See e.g., Chambers v. Aetna Casualty & Surety Co., 442 Pa. Super. 155, 658 A.2d 1346 (1995), alloc. denied, 543 Pa. 707, 672 A.2d 303 (1996) (single plaintiff accepted 91 percent of defendant’s coverage); Kelly v. State Farm Insurance Co., 447 Pa. Super. 214, 668 A.2d 1154 (1995) (insured accepted $12,500 from a defendant who had $50,000 in liability insurance); Sorber v. American Motorists Insurance Co., 451 Pa. Super. 507, 680 A.2d 881 (1996) (insured accepted $40,000 from a $50,000 policy). The Boyle ruling does not accurately reflect the realities present in a multiple plaintiff scenario in which a tortfeasor’s liability limits have been interpleaded into court to be apportioned among the claimants.

(C) Masci Liability Credit

In Boyle, Chambers, Kelly and Sorber, the liability insurers had not tendered or paid their policy limits and, consequently, the UIM carriers could legitimately maintain that the tort-feasors in those cases were not truly “underinsured” or, alternatively, that the full policy limits should have been offset against the UIM award. In contrast, Masci’s liability insurance carrier did, in fact, interplead its entire liability limits into court, thereby acknowledging that Masci was operating an “underinsured motor vehicle” as defined by 75 Pa.C.S. §1702. Thus, the public policy considerations which justify the application of a full liability limits credit under Boyle simply do not exist in cases involving multiple plaintiffs who must parcel liability limits that have been exhausted.

As a practical matter, Overfield could have exclusively exhausted Masci’s liability limits only if the injured parties litigated their claims against the inter-pleaded fund and the fact-finder determined that two deaths (Bernstein and Sturchio) and another injury (Bridgman) had absolutely no monetary value. No judge or jury could possibly arrive at such a conclusion and thereby award Overfield the entire policy limits. The Boyle offset procedure does have relevance with regard to a single claimant; for example, Ohio Casualty should be entitled to assert a credit for the full UIM limits of Erie’s policy since Overfield was the sole claimant against that fund and was fully capable of exhausting those limits. However, she simply did not have a realistic ability to procure Masci’s liability limits, and for that reason, the Boyle method has no application instantly.

The offset approach currently being advocated by Ohio Casualty arguably violates several tenets of Pennsylvania public policy. For instance, in an effort to avoid a credit for the full liability limits, the injured parties would be compelled to litigate the interpleader action to a conclusion in the hope of receiving most, if not all, of the available funds. Such a practice would foster unnecessary, time-consuming trials which would increase the burden on the courts and would discourage the facilitation of prompt, inexpensive settlements. As the Boyle court cautioned:

“In some cases it may prevent an injured insured from accepting a reasonable, third party settlement and require that the third party litigation be pursued to final judgment. This would delay recovery when prompt payment was needed, would lessen the insured’s recovery by requiring him or her to pay additional costs, and would unnecessarily burden the judicial system. ‘Where the best settlement available is less than the [tort-feasor’s] liability limits, the insured should not be forced to forego settlement and go to trial in order to determine the issue of damages.’” Boyle, supra at 108, 656 A.2d at 943. (citation omitted)

In the case at bar, the “best settlement available” for Overfield was the apportionment of Masci’s full liability limits, and under no circumstances could Over-field have secured those limits solely for herself.

More importantly, Ohio Casualty’s theory is contrary to the MVFRL’s intent of providing UIM claimants with the maximum recovery available. The underlying objective of the MVFRL has always been to furnish broad coverage to assure the financial integrity of the policyholder. Danko v. Erie Insurance Exchange, 428 Pa. Super. 223, 229, 630 A.2d 1219, 1222 (1993), aff’d, 538 Pa. 572, 649 A.2d 935 (1994). For that reason, the provisions of the MVFRL are to be liberally construed to advance the policy of indemnifying victims of accidents for injuries suffered on Pennsylvania highways. Homes v. Philadelphia Housing Authority, 696 A.2d 880, 882 (Pa. Commw. 1997); Allwein v. Donegal Mutual Insurance Co., 448 Pa. Super. 364, 377, 671 A.2d 744, 751 (1996) (en banc), alloc. denied, 546 Pa. 660, 685 A.2d 541 (1996) (holding that the MVFRL requires excess, rather than gap, UIM coverage).

In the context of underinsurance coverage, the Pennsylvania appellate courts have specifically recognized that one of the objects of the MVFRL is to afford the injured claimant the greatest possible UIM coverage. Allwein, supra at 376, 671 A.2d at 750; Motorists Insurance Co. v. Emig, 444 Pa. Super. 524, 538, 664 A.2d 559, 566 (1995). Although the 1990 amendments to section 1731(a) of the MVFRL changed UIM coverage from a compulsory provision to a mandatory offering, those revisions did not alter the public policy evident in the MVFRL, namely, furnishing the maximum possible coverage to UIM claimants. Allwein, supra at 387, 671 A.2d at 756. Therefore, in close or doubtful UIM cases, courts must interpret the intent of the legislature and the language of the insurance policies to favor such coverage for the insured. Allwein, supra at 376, 671 A.2d at 751; Emig, supra.

Ohio Casualty’s proposed measure undercompensates UIM claimants by employing an artificial credit and affording the least possible coverage to insureds. Such a methodology would contravene the legislative intent of the MVFRL and the compensatory purpose of underinsurance. Moreover, under such a strained interpretation of Boyle, an injured party would fare better financially if [s]he was injured by a wholly irresponsible and uninsured motorist than by one who is fortuitously underinsured because of the existence of multiple claimants. If Masci had been uninsured, there would be no credit for liability coverage and Overfield would collect her full damages from the UM insurer(s). Since one of the stated goals of the MVFRL and its amendments is to mitigate the impact that uninsured motorists have upon increasing automobile insurance rates, see Wind- rim v. Nationwide Insurance Co., 537 Pa. 129, 136, 641 A.2d 1154, 1158 (1994); Lambert v. McClure, 407 Pa. Super. 257, 262, 595 A.2d 629, 631 (1991), such an illogical result would frustrate that legislative intent by providing greater remuneration for UM claimants.

Despite the absence of any Pennsylvania case law concerning this particular issue, an oft cited treatise on automobile insurance, see e.g., Allwein, supra at 372, 671 A.2d at 748-49, has analyzed the inapplicability of the Boyle rule to accidents involving multiple plaintiffs and concluded:

“In an accident where there are two or more injured plaintiffs, each plaintiff will receive only a fraction of the tort-feasor’s limits, because the liability coverage must be divided among the injured plaintiffs. . . .
“As in the situation where the plaintiff settles for less than the tort-feasor’s liability limits, the courts must recognize that the plaintiff’s acceptance of a settlement for less than the tort-feasor’s policy limits is unlikely to reflect the factual circumstances surrounding the acceptance.
“In the multiple plaintiff situation, the extent to which the tort-feasor’s limits were exhausted is not reflective of what the plaintiff received; therefore, the procedure approved in Boyle is not an appropriate solution to the policy’s exhaustion-of-limits provision. To enforce the policy language strictly would have the effect of failing to provide the protection intended by the legislature for an insured driver.
“The purpose of the underinsured motorist sections of the Financial Responsibility Law is to make certain that, up to the insured’s level of damages, his or her recovery is not to be bound by the fortuity of the level of the tort-feasor’s coverage. Therefore, the plaintiff’s recovery also should not be bound by the fortuity of the number of plaintiffs. The insurer should set off only the amount actually received by the insured from the tort-feasor, and otherwise fulfill its statutorily mandated function of making the insured whole.” Ronca, J.R.; Sloane, L.A.; Lutz, D.L.; Shollenberger, T.A.; and Mundy, J.F., Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, §11.4, pp. 175-76 (2nd ed. 1998). (footnotes omitted)

Conscious of the intent of the MVFRL and the purpose of UIM coverage, the court concludes that the most equitable and judicious approach to automobile accident claims involving multiple plaintiffs who have allocated a tort-feasor’s policy limits is to permit the UIM insurer to assert a credit only for the liability insurance proceeds actually received by the claimant rather than the tortfeasor’s policy limits. Such a method has been adopted by well-reasoned rulings from other jurisdictions which have considered this narrow issue. See Motorists Mutual Insurance Co. v. Andrews, 65 Ohio St. 3d 362, 366-67, 604 N.E.2d 142, 146 (1992) (in UIM situation implicating several claimants, the relevant consideration is the amount actually available for payment, not the tort-feasor’s policy limits); Francis v. Travelers Insurance Co., 581 So.2d 1036, 1043 (La. App. 1st Cir. 1991) (“[a]ny credit reducing the underinsured motorist limits by the entire amount of the liability insurance of the tort-feasor (regardless of the fact that plaintiffs only received a portion thereof), . . ., would not be in conformity with the intent and purpose of the UM statute which is designed to allow full compensation for the entire extent of insureds’ damages”); Gonzales v. Millers Casualty Insurance Co. of Texas, 923 F.2d 1417, 1422 (10th Cir. 1991) (“[i]n a multiple claimant situation like this one, a tort-feasor’s liability coverage may well be inadequate to compensate each injured insured. . . . [Under New Mexico law], the measure of a tort-feasor’s liability coverage is the amount of liability proceeds actually available to an injured insured, rather than the face amount of the tort-feasor’s policy.”); Goughan v. Rutgers Casualty Insurance Co., 238 N.J. Super. 644, 649, 570 A.2d 501, 503 (1989) (In a multiple plaintiff scenario, “[i]t would be unfair and an abuse of the statutory policy to permit a deduction by the UIM carrier of the full limits of the tort-feasor’s policy when those limits are not available to its insured. It is the amount which can be recovered (the full available policy limit) by the UIM insured from the tortfeasor’s insurer which is to be deducted from the amount of the UIM coverage.”); Gust v. Otto, 433 N.W.2d 286 (Wis. App. 1988) (UIM recovery was to be reduced by the amount actually paid rather than the entire amount of the liability limits since the claimant could only receive a portion of the liability proceeds due to the existence of several claimants); American General Fire & Casualty Co. v. Oestreich, 617 S.W.2d 833, 835 (Tex. Civ. App. 1981) (UIM carrier is entitled to a credit only for the amount that the claimant actually received from the liability insurer); State Farm Mutual Automobile Insurance Co. v. Diem, 358 So.2d 39, 41 (Fla. Dist. Ct. App. 1978) (“[c]ontrary to State Farm’s position herein, available benefits under the statute do not constitute the policy limits of the underinsured’s liability policy where, as here, the benefits under such policy have been partially exhausted by payment of claims to persons other than the insured, (citation omitted) Available benefits must mean that which is actually available to the insured herein from the underinsured’s liability carrier.”); Palisbo v. Hawaiian Insurance & Guaranty Co. Ltd., 547 P.2d 1350, 1355 (Hawaii 1976) (where a tort-feasor is underinsured as to a particular policyholder of UIM insurance, the latter is entitled to recover under his policy based upon the amount he actually received from the tort-feasor’s insurance).

While it is true that UIM coverage is “not intended to permit the insured absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier,” Boyle, supra at 108, 656 A.2d at 943, Ohio Casualty did, in fact, provide Overfield with its written consent to settle with Masci’s insurer for $2,500. It is disingenuous for Ohio Casualty to agree to the proposed distribution among the four claimants and thereafter seek to assert a credit for the full liability limits. Ohio Casualty was at liberty to assert during the UIM proceeding that Overfield should have recovered more from Masci’s insurer and that a higher offset should be applied, but after considering those arguments, the arbitrators rejected Ohio Casualty’s contentions in exercising their sound discretion. See Snyder v. Nationwide Mutual Insurance Co., 373 Pa. Super. 294, 297-98, 541 A.2d 19, 20 (1988), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988) (exhaustion and setoff issues may only be determined by the UIM arbitrators). Consequently, based upon the foregoing, the arbitrators did not err by deducting from the gross award the amount that Overfield actually received from the interpleaded funds rather than Masci’s total liability limits.

(D) Sturchio Liability Credit

The Boyle holding has greater significance with regard to Ohio Casualty’s second argument that the arbitration panel exceeded its powers and evidently miscalculated figures by declining to apply a credit for the full amount of Sturchio’s liability policy. Ohio Casualty relies upon late Judge Wieand’s directive that “the insureds will not be allowed underinsured motorist benefits unless their damages exceed the maximum liability coverage provided by the liability carriers of the other drivers involved in the accident; and their insurers will, in any event, be allowed to credit the full amounts of the tort-feasor’s liability coverages against the insured’s damages.” Boyle, supra at 109, 656 A.2d at 943-44.

In Boyle, the policy language did not obligate the UIM insurer to pay benefits “until the limits under all bodily injury insurance policies and liability bonds applicable at the time of the accident” had been exhausted. Id. at 106, 656 A.2d at 942. (emphasis added) See also, Kelly, supra at 216, 668 A.2d at 1155 (UIM policy mandated exhaustion of “all” liability policies). In contrast, Ohio Casualty’s policy requires it to provide UIM benefits for damages “arising out of an accident with an underinsured motor vehicle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” (See Ohio Casualty’s petition, exhibit A, p. 5.) (emphasis added) The phrase “an underinsured motor vehicle” clearly refers to one, individual vehicle; similarly, the word “any” typically has a singular connotation and is frequently interpreted as meaning “any one” rather than “every” or more than one. See e.g., Three D Departments Inc. v. K-Mart Corp., 732 F. Supp. 901, 904 (N.D. Ill. 1990). Although no Pennsylvania appellate court has considered this particular issue, one trial court has interpreted an identical policy provision.

In Werntz v. General Accident Insurance Co., 1 D.&C.4th 386 (Lane. Co. 1988), appeal dismissed, 393 Pa. Super. 649, 564 A.2d 1014 (1989), the insured filed a personal injury action against two tort-feasors, but after settling with the primarily liable defendant for her policy limits, the insured demanded UIM arbitration. The arbitrators found that the foregoing policy language obligated the insured to exhaust his liability claim against the non-settling tort-feasor as a condition precedent to UIM coverage. Id. at 388. In reversing the arbitrators’ decision, the Werntz court concluded:

“The language of the clause in question is clear. The insured must exhaust any applicable bodily injury liability bonds or policies arising from an accident with an underinsured motor vehicle. Stated another way, if an insured has exhausted all of one uninsured motor vehicle’s coverage, the insured may recover benefits from the insured’s own underinsurance policy.
“The clause does not state that an insured may recover ‘[ojnly after the limits of liability under any applicable bodily injury bonds or policies which insure any and all parties to an accident have been exhausted by payment of judgments or settlements.’ If General Accident had wanted an insured to exhaust any and all policies of parties to an accident, General Accident would or should have included the italicized phrase or a similar phrase in its policy language. Since it did not, this court assumes it intended to be bound by the existing policy language.” Id. at 390. (emphasis in original) (footnote omitted) Cf. Garofalo Estate v. Aetna Casualty & Surety Co., 71 Lane. L. Rev. 265, 269 (1988) (“[i]n Hoffman [v. Shelby Mutual Insurance Co., 10 Carbon Co. L.J. 55 (1986)], the court required the injured party to exhaust any claims it had against all insured tort-feasors [because] ... the policy language at issue in Hoffman contained an express requirement of exhaustion while the policy language in the instant case is ambiguous at best, calling for neither exhaustion nor apportionment.”).

Since the Ohio Casualty policy requires a claimant to exhaust “any” liability policy applicable to “an” underinsured vehicle, the plain language of the insurance contract that Ohio Casualty drafted does not enable it to assert an offset for the full amount of all potential tort-feasors’ liability limits. If the court were to nevertheless construe the Ohio Casualty policy as requiring exhaustion and credits for every theoretical liability policy, see e.g., Fleck v. KDI Sylvan Pools Inc., 981 F.2d 107, 115 (3dCir. 1992) (“the word ‘any’is generally used in the sense of ‘all’ or ‘every’ and its meaning is most comprehensive”); In re Belefski’s Estate, 413 Pa. 365, 375, 196 A.2d 850, 855 (1964) (same), such an interpretation would arguably be void as against public policy. As the Boyle court noted, the purpose of UIM coverage is “to protect an insured driver from the risk that a negligent driver of another vehicle would cause injury to the insured but would not have adequate coverage to compensate for the insured’s injuries.” Boyle, supra at 106, 656 A.2d at 942. In declaring the UIM exhaustion provisions in Kester void as contrary to public policy, the Superior Court reasoned:

“The clause contained in appellant’s policy expands the field of those liable to include anyone from whom recovery for appellants’ injuries might be imagined possible. Given the breadth of the exhaustion clause, these imaginings apparently need have no factual underpinning, nor any real relation to the purpose of underinsured motorist coverage.” Kester, supra at 213, 582 A.2d at 21.

To entitle a UIM insurer to claim a credit for every ethereal liability policy, regardless of the legitimacy of the tort-feasor’s responsibility, would render UIM coverage illusory and frustrate the goal of underinsurance in seeking to place claimants in the same financial position they would have enjoyed if the tort-feasor had been fully insured for the multiple claims. Liability limits should be considered “applicable” under the Ohio Casualty policy only if they relate to a tort-feasor with bona fide liability for the accident. Indeed, the unambiguous language of the Ohio Casualty policy permits it to reduce its UIM payment only by any amounts paid “by or on behalf of persons or organizations who may be legally responsible.” (See Ohio Casualty’s petition, exhibit A, p. 6.) As a well-recognized authority on automobile insurance has remarked, “[cjertainly, in a case involving multiple defendants with questionable liability, to require an injured insured to pursue every policy while giving the underinsured carrier full credit for each policy would also have the effect of failing to provide the protection intended by our legislature.” Ronca, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, section 10.7, p. 166 (2nd ed. 1998).

Most jurisdictions which have considered this question have concluded that UIM carriers are not entitled to seek a credit for the liability limits of all hypothetical tort-feasors. See Hall v. Burger, 277 Ill. App. 3d 757, 214 Ill. Dec. 379, 660 N.E.2d 1328, 1334 (1996) (refusing to permit deductions for both tort-feasors’ limits and stating that “[w]e see no reason to allow the insurer a ‘windfall’ when its insured is hurt by more than one underinsured tort-feasor — so long as, of course, the amount the insured recovers does not exceed his or her damages.”); General Accident Insurance Co. v. Wheeler, 221 Conn. 206, 213-14, 603 A.2d 385, 388-89 (1992) (finding that an “insured need only exhaust the liability bond or insurance policies of one tort-feasor in order for the insured to be eligible to pursue underinsured benefits” since if the UIM insurer’s “claim were carried out in practice, the insured could be required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts.”); McAllaster v. Bruton, 655 F. Supp. 1371, 1379 (D.Me. 1987) (plaintiff only required to exhaust the policies of one of two joint tort-feasors in order to trigger the right to proceed with a UIM claim); Colonial Penn Insurance Co. v. Salti, 446 NY.S.2d 77, 79, 84 A.D.2d 350, 353 (1982) (“[t]o interpret the insuring agreement so that the insurer’s obligation to pay becomes operative only after all insurance applicable to all vehicles involved in the accident is exhausted, .. . would emasculate the endorsement’s intended effect ... to provide coverage over and above the limits of the tort-feasor’s insurance.”); Motorists Mutual Insurance Co. v. Tomanski, 27 Ohio St. 2d 222, 223, 271 N.E.2d 924, 925 (1971) (UIM insurer not entitled to offset for the policies of all joint tort-feasors). Compare Johnson v. American Family Mutual Insurance Co., 426 N.W.2d 419, 423 (Minn. 1988) (“since [all tort-feasors] each could be liable for the entire amount [recoverable by the insured], the liability insurance limits of each must be considered in any setoff allowed the underinsurance carrier. We hold that underinsured motorist benefits cover only those damages in excess of the combined liability insurance limits of all tort-feasors”).

Assuming arguendo that Ohio Casualty’s policy language is not void as violative of public policy, those provisions were nevertheless properly applied by the arbitration panel. Contrary to Ohio Casualty’s contention, once Overfield executed a joint tort-feasor release with Masci/Aetna in accordance with Ohio Casualty’s written consent to settle, any joint and several liability on the part of Sturchio was nullified. See Walton, supra; Giant Eagle Markets, supra. As a consequence, Sturchio could only be held accountable for his proportionate or pro rata share of the total award. 42 Pa.C.S. §8326.

As mentioned above, the Ohio Casualty policy expressly states that “[a]ny amounts otherwise payable for damages which the covered person is legally entitled to recover from the owner or operator of an . . . underinsured motor vehicle because of bodily injury caused by an accident, shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.” (See Ohio Casualty’s petition, exhibit A, p. 6.) (emphasis added) After considering the liability testimony offered by Ohio Casualty, the arbitrators determined that Sturchio was 10 percent “legally responsible” under the policy. Therefore, they reduced the UIM award by 10 percent to signify any sums potentially payable “because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.” Consequently, the arbitration panel carefully crafted its award to reflect the permissible credits for the Masci payment, the Erie UIM tender, and Sturchio’s pro rata share of the total damages based upon the arbitrators’ determination of liability. The panel would have committed an evident miscalculation if it had deducted Sturchio’s full policy limits, notwithstanding the foregoing UIM provisions in Ohio Casualty’s policy and the absence of joint and several liability vis-a-vis the Masci/Aetna release.

If Ohio Casualty believes that Sturchio’s insurer is obligated to contribute more towards Overfield’s recovery, it has the ability to request an assignment from Overfield to seek contribution from Sturchio’s carrier. See e.g.. Wheeler, 603 A.2d at 388. Conversely, if Ohio Casualty considered the Masci payment of $2,500 to be woefully inadequate, it could have preserved its subrogation claim against Masci for any additional UIM proceeds that Ohio Casualty will be obligated to pay by virtue of Masci’s underinsured status. See Kester, supra at 211, 582 A.2d at 20 (“[sjuch contingencies can be dealt with under [Erie’s] right of subrogation”). However, it may not attempt to apply unrealistic credits for the full amounts of the Masci and Sturchio policies.

III. CONCLUSION

Based upon the foregoing, the arbitrators did not exceed their powers or commit evident miscalculation of figures in their award dated July 2,1998. Accordingly, Ohio Casualty’s petition to vacate, modify or correct the arbitration award will be denied and, pursuant to 42 Pa.C.S. §7314(d) and §7315(b), the award of the arbitrators will be confirmed. An appropriate order will follow.

ORDER

And now, October 14, 1998, upon consideration of the petition of defendant Ohio Casualty Insurance Company to vacate or, in the alternative, to modify or correct an arbitration award pursuant to 42 Pa.C.S. §7314 and §7315, plaintiff’s response thereto, the parties’ memoranda of law and the oral argument of counsel, and in accordance with the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendant’s petition to vacate, or in the alternative, to modify or correct an arbitration award pursuant to 42 Pa.C.S. §7314 and §7315 is denied;
(2) The underinsured motorist arbitration award dated July 2,1998 is confirmed in accordance with 42 Pa.C.S. §7314(d) and §7315(b); and
(3) Judgment is entered in favor of plaintiff Lisa Overfield and against defendant Ohio Casualty Insurance Company in the amount of $77,500.

      . Prior to the filing of the petition for interpleader, Masci had joined the estate of Sturchio as an additional defendant in Overfield v. Masci by the filing of a third party complaint. (See petition for interpleader, ¶3.) Bridgman and the estate of Bernstein voluntarily dismissed their claims against all named parties, including Sturchio’s estate, by the filing of a praecipe to discontinue on March 21, 1996. (Id., docket entry no. 17.) However, Overfield has never discontinued that pending litigation as to the Sturchio estate which was joined as an additional defendant within the original statute of limitations. Hence, Ohio Casualty asserts that the arbitrators erred by not staying the UIM proceeding until after Overfield had litigated her liability claim against Sturchio. (See Ohio Casualty’s petition, p. 8, j[21(g).) Ohio Casualty’s contention is devoid of arguable merit inasmuch as the fact that Overfield has not yet resolved or adjudicated her potential liability claim against Sturchio’s estate did not bar her from proceeding forward with UIM arbitration. Rocca v. Pennsylvania General Insurance Co., 358 Pa. Super. 67, 73-74, 516 A.2d 772, 775-76 (1986), alloc. denied, 517 Pa. 593, 535 A.2d 83 (1987). Furthermore, the arbitrators did permit Ohio Casualty to litigate the issue of Sturchio’s liability at the time of the UIM proceeding,

      . The above-captioned litigation was originally commenced by Overfield on October 25, 1996, in an effort to compel Ohio Casualty to arbitrate this UIM claim. That action was never discontinued by either party and, rather than institute a new proceeding, Ohio Casualty filed the petition in this pending matter which had been docketed to 96-CV-5211 (Lacka. Co.).

      . Although the Werntz decision indicates that the UIM proceeding was governed by the Uniform Arbitration Act of 1980, the court erroneously utilized the contrary-to-law/judgment n.o.v. standard applicable to arbitration conducted pursuant to the 1927 Act. Id. at 388-89.

      . Although the arbitrators’ assessment-of Sturchio’s proportionate liability may be binding upon Overfield, it would not have a collateral estoppel effect upon Sturchio who was not a participant in the UIM arbitration proceeding. See Thompson v. Anderson, 429 Pa. Super. 532, 535, 632 A.2d 1349, 1351 (1993) (arbitrators’ determination that injuries were caused by an intentional act precluded the claimant from pursuing a third party action based upon a negligence theory).


source: Caselaw Access Project

author: NATALE, J.,

license: Public Domain

text:
    In re Lavin Name Change Petition

      David S. Brady, for petitioner.

      John S. Davidson, for respondent.
    October 18, 1989
   NATALE, J.,

Presently before the court are petitions to change the surnames of two minor children, Sean Paul Lavin (bom November 26, 1970) and Eric Michael Lavin (bom July 22, 1973), to their mother’s maiden name of Vitrano. -

Both children were bom of the marriage of Leslie Lavin and Rosalie Vitrano. Mr. and Mrs. Lavin were divorced in 1984. Pursuant to an order of this court dated July 30, 1984, Mr. Lavin has continuously made weekly alimony and child support payments of $138 per week. Since the divorce, Ms. Vitrano had remarried but was widowed.

The court conducted a hearing on the name change petitions on May 5, 1989. The minor children testified that they wished to have their names changed to their mother’^ maiden name because it was easier to travel overseas and because they love their mother and wanted to be identified with her. Ms. Vitrano testified that she had maintained custody of the children since' the divorce, that their father showed no concern for the children and was aware of the proceedings and did not oppose the name changes. Nothing could be further from the truth.

- Concerned that there was no proof presented to the court that the father, Leslie Lavin, had been notified, the court directed petitioners’ attorney to obtain a statement from the father that he was aware of the proceedings and did not oppose them. Mr. Lavin is a domiciliary of Illinois but is presently assigned to work in Taipei, Taiwan. Once contacted, Mr. Lavin did not concur in the changing of his sons’ names. Instead, he retained counsel and strenuously objects to the proceedings.

Mr. Lavin has raised three issues in his brief: (1) whether the failure to give actual, prior notice to a non-petitioning parent as required by 54 Pa.C.S. §701 et seq., is a fatal procedural flaw; (2) is venue proper in Dauphin County?; and (3) is the change in the best interests and welfare of the children?

DISCUSSION

Failure to provide notice

The court does not find under these unique circumstances that the proceedings are fatally flawed. Counsel for Mr. Lavin has not requested that testimony be taken from his client nor even for permission to submit a sworn affadavit. Instead, counsel has gone forward, presenting his client’s position by way of letter, and noted that Mr. Lavin hoped for a speedy disposition. The court finds this a waiver of the issue.' This is not to imply criticism of the father or his attorney. The court is aware of the difficulties of representing a client whose work requires his residence half a world away.

Venue

The father submits that venue does not lie in Dauphin County as the minors are residents of the United Kingdom. The court finds that insufficient evidence is of record to make a determination of this issue. Normally the court would order further hearings on the issue but, in view of the court’s ultimate decision below, and the difficulty for all parties that this would entail, the court will not address the issue.

Best Interests of the Minors

The statutory provision in question states, “[t]he court of common pleas of any county may by order change the name of any person resident in the county.” Act of December 16, 1982, P.L. 1309, 54 Pa.C.S. §703. (elmphasis supplied) The grant or denial of a name change petition is a matter for the court’s discretion. Petition of Christjohn, 286 Pa. Super. 112, 428 A.2d 597 (1981); Petition of Falcucci, 355 Pa. 588, 50 A.2d 200 (1947).

In a proceeding to change a minor child’s surname, the child’s best interests control. Matter of Montenegro, 365 Pa. Super. 98, 528 A.2d 1381 (1987); Petition of Schidlmeier by Koslof 344 Pa. Super. 562, 496 A.2d 1249 (1985).

“A party urging the minor child’s change of name has the burden of coming forward with evidence that the name change requested would be in the child’s best interest, and that where a petition to change a child’s name is contested, the court must carefully evaluate all the relevant factual circumstances to determine if the petitioning parent has established that the change is in the child’s best interests. Neither parent is to be accorded a presumption.” Matter of Montenegro, supra; Petition of Schidlemeier by Koslof, supra.

In the case at bar, the court finds that the petitions fall short of establishing that the change would serve the best interests of Sean and Eric.

Ms. Vitrano displayed open hostility towards her former husband. She boldly testified under oath that the father knew of and approved the name change. This was totally untrue and reprehensible. It is obvious to the court that Ms. Vitrano has done her best to poison the minds of her sons against their father. She has, to a large extent, succeeded, but this court will not allow its authority to be used in this manner. ,

The reasons advanced by the petitioning party — that the sons love their mother and that traveling would be easier under one name — are true of any family. In this age of numerous divorces and illegitimate children, there is nothing unusual about varying family surnames and society does not frown upon it.

Sean and Eric have lived with the name Lavin for 18 and 16 years, respectively. The court is unpersuaded that any legitimate reason has been provided for changing their names at this point in their lives. Far from attempting to alienate her sons from their father, Ms. Vitrano should do all she can to foster the boys’ relationship with their father. Though not technically of record in this case, the court has been provided with numerous letters authored by ’Ms. Vitrano, Mr. Lavin and Sean. It is obvious to this court that Mr. Lavin loves his sons and would do much more for them were it not for the constraints of the divorce and the geographical distances between them. This is not a contest of one parent versus another. The boys are fortunate enough to have two living parents who both love them. They should strive to have a relationship with both parents, even though different in type. There is no need to cut one parent out of their lives.

In short, the court finds that changing the'childrens’ surnames would not be in the best interests of Sean and Eric Lavin. Accordingly the petitions are denied.

ORDER

And now, this October 18, 1989, in accordance with the court’s opinion issued this date, the name change petitions filed to the above are hereby denied.

       Despite petitioner’s claim that Sean Paul Lavin is an adult, the law is clear that he is a minor. See 1 Pa.C.S. §1991.


author: WILLIAMS, P.J.,

text:
    Lower Mount Bethel Township v. Dell Beni

      Christopher T. Spadoni, for plaintiff.

      Stephen B. Molder, for defendants.
    November 17, 1989
   WILLIAMS, P.J.,

This action raises the question of whether a property owner may lawfully maintain goats as pets in a residential area of Lower Mount Bethel Township. The township initially filed a summons before a district justice for an alleged violation of the Zoning Code. Following that hearing, the township filed the present complaint in equity seeking an injunction.

After several attempts to resolve the matter by conference, an interim order was entered by stipulation under which the defendants agreed to remove the four younger goats from the premises within 30 days and the two older goats within 90 days from March 8, 1989, without prejudice to the legal rights of the parties. The first condition was met; the second was not and the matter was scheduled for non-jury trial. At that point the parties agreed to submit the matter to the court on a stipulation of facts as proposed by the defendants. Accordingly, we find as follows.

FINDINGS OF FACT

(1) Frank A. Dell Beni Jr. and Beverly A. Ryan-Dell Beni are the owners of a parcel of real property situated within the Village of Martins Creek, Township of Lower Mount Bethel, Northampton County, Pennsylvania, more fully described in Deed Book Volume 743, page 312 in the Office of the Recorder of Deeds of Northampton County, being zoned medium density pursuant to Lower Mount Bethel Township zoning ordinance.

(2) The original 1972 Lower Mount Bethel Township Zoning Ordinance 541.02 allowed animal husbandry and the raising and keeping of farm pets.

(3) On or about September 12, 1977, ordinance 541.02 was amended to disallow animal husbandry and the raising and keeping of farm pets.

(4) Section 1170 of the Lower Mount Bethel Zoning Ordinance provides that duly-certified copies of the ordinance and the amendments shall be filed in the township secretary’s office and the zoning officer’s office and shall be open to public inspection.

(5) When an original ordinance is passed in the Township of Lower Mount Bethel, it is placed in the ordinance book.

(6) Lower Mount Bethel Township has published and made available the original Lower Mount Bethel zoning ordinances in a bound publication.

(7) When an ordinance is amended, that amendment is placed in a separate file. The newer records are housed in the township office; the older records are stored uncatalogued in the basement of the township budding.

(8) The minutes of the township supervisors meeting are located in the township secretary’s office and reflect the passage of an amendment; however, the actual amendment of the ordinance itself is maintained in a separate file.

(9) The amendment was not filed in the township secretary’s office or in the Office of the Zoning Administrator and was not available for public inspection. In addition it was not placed in the zoning ordinance book offered for sale at the township offices.

(10) The printed publication that is sold at the township office to the public, and specifically sold to defendants in this matter, did not contain the amended ordinance 541.02.

(11) Prior to purchasing subject premises defendants contacted the Lower Mount Bethel Township Office to request all relevant information regarding the regulation of animals and was informed by the secretary that those regulations are found in the zoning ordinance book.

(12) Defendants checked the ordinance book which contained the original 1972 ordinance 541.02 allowing animal husbandry.

(13) Prior to defendants’ purchase of the premises in February 1988, they visited the home and area on several occasions beginning in June 1987.

(14) On each of these occasions defendants observed chickens housed on the property directly behind the subject premises as well as on another property to the east.

(15) On the occasions defendants visited the property prior to their purchase of it, they also observed 20 to 40 pigeons housed in the premises located to the east of the subject premises.

(16) At the time defendants visited and examined the subject premises, the previous homeowner was housing approximately 100 pigeons in the shed which is now occupied by the goats.

(17) In or about February 1988, defendants purchased the subject property in Lower Mount Bethel Township.

(18) When defendants moved into the subject premises, the previous homeowners’ pigeons remained on the premises for approximately three to four weeks. On or about March 15, 1988, the pigeons were removed by the prior owners and the defendants immediately brought in two mature goats and four young goats and placed them in the shed previously occupied by the pigeons.

(19) Defendants relied upon the zoning ordinance book made available and sold at the Office of Lov^er Mount Bethel Township plus their observations of the surrounding neighborhood to purchase their property in anticipation of maintaining their pet goats.

(20) In the early part of May 1988, the township zoning officer visited the premises of the defendants to inform them that the goats could not remain on the property.

• (21) Defendants repeatedly asked the township’s secretary and zoning officer for a copy of the amendment, but they were told it could not be located.

(22) Defendants received an actual copy of the amendment on July 28, 1988, at the hearing before District Justice Grigg for the zoning violation.

DISCUSSION

The legal issues raised by this pastoral scene are whether an ordinance must be recorded or attached to the township’s ordinance book and available to the_public for inspection before it can be enforced and whether the ordinance is invalid or may be enforced once recordation and proper public notice is given.

The township’s right to seek injunctive relief to. enforce its zoning ordinance is clear under section 617 of the Municipalities Planning Code, 53 P.S. §10617.

As the findings of fact indicate, the Lower Mount Bethel Township zoning ordinance originally permitted animal husbandry and the raising and keeping of farm pets in a residential district. The amendment to prohibit these activities was properly adopted by the supervisors. However, the municipal authorities failed to record the amendment in the township ordinance book contrary to the requirement of the Second Class Township Code, 53 P.S. §65741.

Nor was the amendment included with the zoning ordinance as required by section 1170 thereof:

“Duly-certified copies of this ordinance and of the zoning map which forms a part thereof, together with copies of all amendments hereto, shall be filed in the township secretary’s office and in the zoning officer’s office, it shall be open to public inspection.” (emphasis supplied)

The amendment was not included in the zoning ordinance published by the township and, although defendants inquired at the township offices prior tó purchasing their property, they were not advised of the amendment in question until the present proceedings were instituted.

Defendants contend that under these facts the township should be precluded from enforcing the ordinance against them since it was not properly recorded or available to the public. The township’s brief appears to concede that the ordinance was not recorded as required by either the Second Class Township Code or its zoning ordinance, but urges that, since defendants were furnished with a copy of the ordinance when the summary violation charges were instituted, they are no longer entitled to continue to violate the ordinance. There appears to be no appellate precedent to resolve these issues.

Section 65741 of the Second Class Township Code relating to the adoption of ordinances provides that “[s]uch ordinances shall be recorded in the ordinance book of the township and shall become effective five days after such adoption.” The Borough Code, 53 P.S. §46008, and the First Class Township Code, 53 P.S. §56501, both contain the additional provision that an ordinance shall not be considered in force until it has been recorded in the ordinance book. In West Conshohocken Borough Appeal, 405 Pa. 150, 173 A.2d 461 (1961), the Supreme Court held that an ordinance which had not been recorded, in the legislative sense, was invalid. The court stated that:

“The essential purpose behind the legislative provisions providing for recordation is that the ordinance be so entered in the ordinance book to insure a permanency of its preservation and the prevention so far as possible of its removal from the book.”

In Weaver v. Brandywine Township, 43 D.&C. 2d 309 (1967), the Chester Coimty Court of Common Pleas relied on that philosophy to strike down a second class township ordinance despite the difference in the statutes. In what we consider to be a well-reasoned opinion, Judge Kurtz concluded that ordinances of a second class township must also be recorded before they can be given effect. See also, Boyle v. Beck, 53 D.&C. 2d 755 (1968), involving the First Class Township Code.

The present case makes the need for such a rule abundantly clear. The public has the right to rely on the ordinance books and the zoning code as published by the municipality. For. 11 years after its adoption the ordinance here was not located where the public could find it. And there is. no indication in the stipulated facts to suggest that the error has been corrected even now. Accordingly, we conclude that the amendment to the zoning code disallowing animal husbandry and the keeping of farm pets cannot be enforced until it is properly recorded.

The township argues that (assuming the amendment is properly recorded) it is now entitled to enforce the ordinance against defendants since they have received notice of it. Such equitable relief would not be penal in nature and would not constitute the exercise of an ex post facto law contrary to Article I, section 17 of the Constitution of the commonwealth. See Wood v. City of Pittsburgh, 74 Pa. Commw. 450, 460 A.2d 390 (1983). However, it is well-established that zoning ordinances must provide for the continuation of nonconforming uses of the land. “The continuation of nonconforming uses under zoning ordinances is countenanced because it avails the imposition of a hardship upon the property owner and because the refusal of the continuance of a nonconforming use would be of doubtful constitutionality”: Hanna v. Board of Adjustment, 408 Pa. 306, 312, 183 A. 2d 539, 543 (1962); Boyle, supra.

We conclude that law and equity require that the amendment may only be applied prospectively from the time of its proper recording and that defendants are entitled to maintain the goats presently on their property as a lawful nonconforming use. It should be noted that the doctrine or principles applicable to a public nuisance are not raised in this litigation.

CONCLUSIONS OF LAW

(1) The ordinance of Lower Mount Bethel Township adopted September 12,1977, amending section 541.02 of the township zoning ordinance has not been properly recorded and may not be enforced until so recorded.

(2) The amendment when recorded may not be enforced against defendants since their use of their property to maintain the goats is a lawful use until the ordinance is validated and is a lawful nonconforming use thereafter.

(3) The township is not entitled to equitable relief.

DECREE NISI

And now, November 17, 1989, the complaint is dismissed. Costs are placed upon the plaintiff.

The prothonotary shall give written notice of this decree nisi to each party who has appeared or to his or her attorney of record. If no exceptions are filed within 10 days, this decree nisi shall be entered as a final decree.

       The exception for zoning ordinances referred to in that opinion is no longer relevant.


author: KELLER, J.,

text:
    The Land and Properties of Caroline J. Reber v. Dettore

      Thomas N. Cooper, for plaintiff.

      James A. Cunningham, for defendant Henry Tschudy.
    October 3, 1989
   KELLER, J.,

This matter involves proceedings to confirm a private road under 36 P.S. §2731 et seq. filed by Caroline J. Reber and the entry of a final decree on July 17, 1989 by virtue of a praecipe filed by Reber to withdraw her appeal and enter final decree nisi.

On August 25, 1989 this court denied defendant Tschudy’s petition to strike praecipe to withdraw appeal and interim decree to strike an open final decree and to declare proceedings void and of no effect. Defendant Tschudy has filed an appeal. This opinion is in support of an order, pursuant to Pa.R.A.P. §1925.

Defendant raises six issues in his statement of matters complained of on appeal, all of which relate to deféndant’s claim that the court erred in denying his petition to strike praecipe to withdraw.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Caroline J. Reber, is the owner of certain real property situate within the Township of Robeson by virtue of a deed recorded in Berks County Records on or about June 22, 1964, in Deed Book volume 1448, page 5. Plaintiff is now. and has always been unable to gain access to her property via Pa. Route no. 82 due to the fact that the aforementioned real estate is landlocked by certain real éstate belonging to and owned by defendants to the original action. As a result thereof, plaintiff, on or about August 18, 1980 petitioned the Court of Common Pleas of Berks County for the appointment of a Board of Viewers to view the premises and lay out such private road appropriate to allow plaintiff ingress and egress to and from her property and to make a report thereon.

On December 30, 1980 the Board of Viewers made a view of the premises, and at a final hearing held June 24, 1981 the board found that the laying out of a private road was appropriate. Additionally, testimony was introduced relative to the damages suffered by the respective defendants; said findings were subsequently included in the board’s final report and consisted of the following awards: Henry and Brenda Tschudy, $1,000; John and Erma Slipp, $500; Clara A. Wolfe, $500; Lottie Dettore, $1,700.

Thereafter, on or about August 24, 1981, plaintiff appealed from the report of the Board of View. No other parties, including defendant, filed an appeal. A praecipe to withdraw plaintiffs appeal of August 24, 1981'was filed July 17, 1989 on behalf of plaintiff and the decree nisi of July 27, 1981 was entered as a final decree.

DISCUSSION

Although defendant Tschudy raises several issues, this court deems that the crucial issue is whether the praecipe to withdraw the appeal and enter the decree nisi of July 27, 1981 as a final decree may be entered unilaterally and operates to conclude these proceedings.

There are np cases which have decided this issue relative tc proceedings for confirmation of a private road. However, there is authority under the Eminent Domain Code which this court finds controlling and dispositive of the issue. In Farrington v. Commonwealth, Department of Transportation, 35 Pa. Commw. 373, 387 A.2d 136 (1977), the Commonwealth Court explicitly ruled that a party appealing a Board of View decision may unilaterally withdraw the appeal and such withdrawal will conclude the proceedings in instances where the other parties to the Board of View findings failed to file their own appeals. The Farrington case was affirmed per curiam by the Supreme Court of Pennsylvania at 489 Pa. 400, 414 A. 2d 128 (1980).

We find the language of the Farrington decision to be particularly instructive:

“If any party aggrieved has an opportunity to appeal such an award, his failure to do so should not result in his being permitted to later remedy his oversight by attempting to bar the party who has appealed from withdrawing the áppeal. If he is not aggrieved, then he is in no worse position, if the appeal is withdrawn, than if it were never perfected in the first place. Nor should he be heard to claim that the withdrawal of the appeal results in prejudice. If any prejudice can be said to have resulted, certainly it was caused solely by his own lack of diligence.” Farrington, supra. .

The Supreme Court of Pennsylvania has failed to overrule Farrington although it has declined to expand the rule enunciated to instances wheré there has been a jury determination after the initial appeal from the Board of View. Bosacco v. Redevelopment Authority, 500 Pa. 519, 458 A.2d 933 (1983). This is not the situation present sub judice.

Although Farrington concerned proceedings under the Eminent Domain Code, the instant proceedings are sufficiently similar for the logic of Farrington to be applied to an action filed to confirm a private road. Defendant has raised several issues concerning the regularity of the Board of View proceedings in that there may be some confusion as to whether the board entered two separate decrees, initially confirming the road and subsequently determining damages on July 27, 1981 or whether the report confirmed nisi by the late Judge Saylor on July 27, 1981 was a determination of both the necessity for the road and damages. These issues are of no merit due to the failure of defendant Tschudy to file any appeal whatsoever, nor to take action to dispose of the merits of the case prior to the praecipe to withdraw, filed by plaintiff eight years later. Again the language of the Commonwealth Court in Farrington speaks to the difficulties presented for a fair resolution of this proceeding if we granted defendant’s petition.

“Our courts are being inundated with an ever-increasing number of cases, especially appeals. We are continually seeking ways to alleviate this burden without compromising the rights of litigants. Consequently, when presented with a procedure which arbitrarily and unnecessarily increases the courts’ involvement, we should hasten to abolish it. To decide that a party may not withdraw his .appeal without the consent of his opponent is in direct contravention of this policy.” Farrington, supra.

In this case the complaining party has failed to preserve his complaints by not initially appealing, sat on his hands for years and now demands that the entire proceedings be reviewed eight years later when no compelling reasons can be shown to deviate from the generally accepted above proposition.

The other issues raised by defendant are disposed of by this court’s determination that the praecipe to withdraw the appeal need not have been obtained with the consent of defendant Tschudy and therefore was effective immediately to conclude these proceedings.

For the above reasons, we believe our decision should be affirmed.

      . (a) That the private road of plaintiff remained physically unopened for more than five years after the entry of the final decree confirming said road and therefore should have reverted back to defendants.
      (b) The appeal of plaintiff, Reber, was limited to the issue of damages, and therefore, failure to conclude that judgment entered to 403 July 1981 J.D. was the “final decree confirming said road” amounted to error.
      (c) Failure to strike open the praecipe to withdraw appeal and enter final decree of July 31, 1989 was error because:
      (1) Proper notice of the praecipe was not given to other parties.
      (2) The private road was never physically opened within the five-year period under the applicable statute.
      (3) The proceedings are irregular insofar as the case should have been terminated by the prothonotary due to the case’s inactivity for two years; likewise, the Board of View’s reports have not yet all been filed. Additionally, no notes of the testimony presented to the Board of View are available.
      (4) Plaintiff should not be permitted to unilaterally withdraw her appeal of the Board of View findings.

        (5) Plaintiff delayed in this matter since the filing of her ^appeal and filed to prosecute this action.
      (d) It was error for the court to deny the petition of appellant, filed July 25, 1989 without a hearing.
      (e) Damages determined are insufficient and/or delay damages should have been added.
      (f) The private road, located as proposed, is not necessary and should not be confirmed.

      . The court granted defendant leave to include in his matters complained of on appeal any alleged error by virtue of the court’s order of August 25, 1989 as a matter of judicial economy.

      . The docket reflects that the judgments in favor of Wolfe and Slipp were satisfied on September 17, 1988.


text:
    Tax Sale by Tax Claim Bureau

      Norman Yoffe, for exceptants.

      F.R. Martsolf, for tax claim bureau.

      Robert G. Radebach, for Joy Shields.
    October 2, 1989
   NATALE, J.,

Presently before the court are exceptions filed to the confirmation of Tax Sale Number 778, filed by the record property owners, Mr. Ranieri and Ms. Robson (hereinafter, the exceptants).

Exceptants purchased 1908 Penn Street, Harrisburg, Dauphin County, Pennsylvania, in 1983. Testimony revealed that Ms: Robson was co-owner and co-signer on the mortgage but never resided at the property. In 1984, Ms. Robson bought a house at 2117 Brookwood Street, Harrisburg, where she has resided from roughly the date of acquisition until the present time. Mr. Ranieri resided at 1908 Penn Street from time to time. It was a matter of great confusion to all at the hearing where and when Mr. Ranieri resided anywhere. However, there being no law of which this court is aware that mandates where our citizens live (unless directed to reside in a penitentiary), this cannot be held against him save to the extent it becomes relevant to the reasonableness of the Tax Claim Bureau’s actions.

The records maintained by the Dauphin County Tax Claim Bureau reflected mailing addresses for the exceptants to be 1908 Penn Street.

The 1985 real estate taxes for 1908 Penn Street were not paid when due. In July 1987, a notice of sale was sent to Ms. Robson at 1908 Penn Street. It was returned by the U.S. Post Office as “vacant.” Checking their records, the Tax Claim Bureau found a Debora L. Robson owning and residing at 2117 Brookwood Street. The 1987 notice of sale was sent to Ms. Robson at the Brookwood Street address. The proof of mailing came back complete. The taxes were paid (although the Tax Claim Bureau has no record of who paid them). The 1987 tax sale was avoided on 1908 Penn Street.

The 1986 and 1987 real estate taxes were not paid for 1908 Penn Street. On July 10, 1987 the notice of claim was mailed to both exceptants at the 1908 Penn Street address. The certified notice was returned marked “moved, no forwarding, vacant house.”

Despite the fact that within the month the Tax Claim Bureau successfully located and served Ms. Robson with the 1987 notice of sale (for unpaid 1985 taxes), the taxes were subsequently paid and the 1987 sale avoided, the Tax Claim Bureau made no further attempt to mail the notice of claim for the 1986 taxes. Instead, they did nothing until March 2, 1988, when they posted 1908 Penn Street with the notice of claim advising that the property owners had until December 31, 1987, two months already past, to pay or file exceptions or the claim would become absolute under 72 P.S. §5860.308. The director of the Tax Claim Bureau testified that she had no explanation for the delay in posting.

The notices of sale for the 1988 tax sale were sent certified mail to the exceptants at the 1908 Penn Street. They were returned unclaimed. The property was posted.

On September 28, 1988, the property was sold for 1986 and 1987 taxes to one Joy Shields, who subsequently had work done on the property.

DISCUSSION

Notice provisions of the Tax Sale Law have long been strictly construed to guard against deprivation of the property without due process of law. The “strict -provisions of the Real Estate Tax Sale Law were never meant to punish taxpayers who omitted through oversight or error ... to pay their taxes.” Ross Appeal, 366 Pa. 100, 107, 76 A.2d 749, 753 (1950), cited with .approval in Tracy v. County of Chester Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334 (1985). The Supreme Court has noted that “the purpose of the tax sales is not to strip the taxpayer of his property but to insure the collection of taxes.” Hess v. Westerweck, 366 Pa. 90, 98, 76 A.2d 745, 748 (1950), cited with approval in Tracy, supra, 507 Pa. at 297, 489 A.2d at 1339.

Because of this strict construction, a taxing authority must do more than merely send notices out to the last listed addresses of property owners. In Tracy, supra, the Supreme Court held as follows:

“[W]e hold that where a taxing authority intends to conduct a sale of real property because of nonpayment of taxes, it must notify the record owner of property by personal service or certified mail, and where the mailed notice has not been delivered because of an inaccurate address, the authority must make reasonable effort to ascertain the identity and whereabouts of the owner(s).” Id. at 296, 489 A. 2d at 1339. (emphasis in original)

In the Tracy case, the Supreme Court noted a reasonable effort would have been to make inquiry of the records maintained by the office of the Secretary of the Commonwealth to determine the identity and addresses of the partners (the record owner was a partnership with a fictitious name).

The concept of a duty upon taxing authority to make reasonable efforts to locate owners where certified mail is returned unclaimed is now contained in the act. Section 5860.607(a), Additional Notification Efforts, is quite specific in outlining the duties of a tax claim bureau:

“(a) When any notification of a pending tax sale or a tax sale subject to court confirmation is required to be mailed to any owner, mortgagee, lien-holder or other person or entity whose property interests are likely to be significantly affected by such tax sale, and such mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee or is not returned or acknowledged at all, then, before the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonáble efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.
“(b) The notification efforts required by subsection (a) shall be in addition to any other notice requirements imposed by this act.” 72 P.S. § 5860.607(a).

Turning to the case at bar, the court must uphold the exceptions. No concept of due process of law could uphold posting the notice of claim two months after the claim became absolute. (See also, In re Consolidated Return of Sale of Properties, 53 Pa. Commw. 25, 416 A.2d 636 (1980), where the Commonwealth 'Court invalidated a sale because the notice of claim was not posted until Decemberl. In that case, however, the prior section 5860.308 stated the notice must be posted “immediately” after the post office returned a mailed notice as not delivered.)

Further, despite successful service of Ms. Robson at her Brookwood Street address in 1987, the Tax Claim Bureau made no efforts in 1988 to find her. As discussed above, the bureau has a clear legal duty to do so. There was ample evidence that a mere check of their own computer would have yielded the Brookwood Street address.

No proper service having been made on Ms. Robson, the sale must be declared void. The service attempts on Mr. Ranieri need not be discussed.

ORDER

And now, October 2, 1989, for the reasons contained in the court’s opinion issued this date, the court enters the following:

(1) The exceptions to the tax sale are granted.

(2) The tax sale of property number 778, 1908 Penn Street, Harrisburg, Dauphin County, Pa., parcel number 11-7-64, is void for insufficient notice and is hereby set aside.

(3) The Dauphin County Tax Claim Bureau is directed to reimburse Joy Shields all moneys paid to the County of Dauphin for the purchase of the property.

       This court has sympathy for this innocent purchaser of the property. She will, of course, be refunded her purchase price. The court was distressed to learn at the hearing that she had spent other moneys on the property as well. One case has held that a purchaser at a tax sale who makes improvements to the property is entitled to reimbursment from the county, if it is the county’s error which resulted in hardship to the tax sale purchaser. In re LaBracio, 32 D.&C. 3d 642 (1984). This issue is not before the court at this time.


author: KAYE, J.,

text:
    Commonwealth v. Seiders

      James M. Schall, district attorney, for the commonwealth.

      David C. Wertime, for defendant.
    November 14, 1989
   KAYE, J.,

This matter is before the court for a determinátion of defendant’s violation of the terms and conditions of the sentence of probation entered in the above case. A hearing on the alleged violation was held on September 26, 1989, at the conclusion qf which counsel were directed to file memorandums of law, which were ordered because of the belief of defense counsel that significant legal questions exist in this matter. We find that a violation of defendant’s probation occurred, and will direct that the defendant appear for sentencing following the preparation of a presentence investigation report.

On June 22,1982, defendant appeared before this court for sentencing on counts 1 and 2 of the information filed in this case, both of which involved violation of the Controlled Substance, Drug, Device arid Cosmetic Act, 35 P.S. §780-101 et seq.. On count 2, defendant was sentenced, inter alia, to a prison term of two to five years, effective June 22, 1982. On count 1, defendant was sentericed to five years of probation, consecutive to count 2.

The Pennsylvania Board of Probation and Parole commenced supervision of defendant on the sentences imposed in the above. Prior to his being .granted parole from the state correctional institution on count 2, defendant was interviewed by an institutional representative of the PBPP, and was advised that he would be subject to periodic urinalysis. While this condition apparently was expressly made applicable to count 2 only, we note that this condition involved supervision that would include both the parole period, and the period in which defendant would serve the consecutive sentence of probation.

On June 13, 1984, the PBPP accepted defendant for supervision on count 1, and defendant was advised that, among other conditions, the following condition applied:

“(5) He shall:
“(a) abstain from the unlawful possession, or sale of, narcotics and dangerous drugs, and abstain from the use of controlled substances within the meaning of the Controlled Substance, Drug, Device, .and Cosmetic Act (35 P.S. §§780-101 through 780-144) without a valid prescription.”

During the period of his supervision, with the exception of a brief hiatus, defendant was under the supervision of Orlando Zaccagni of the PBPP. During eyery meeting while he supervised defendant, Officer Zaccagni reminded defendant of the provisions contained in condition number 5. On a random basis, Officer Zaccagni would conduct urinalysis testing on defendant to assure this condition was being complied with. On one occasion, defendant tested positive for THC, indicating defendant had used marijuana, which contains the THC chemical compound. However, no action was taken to have defendant found in violation of probation on that occasion.

On April 13, 1989 and on May 31, 1989, urine samples were taken from defendant by Officer Zaccagni, and were forwarded to HealthEast Laboratories for analysis. In both instances, the results were positive for cocaine metabolites, indicating that defendant had used cocaine.

Following receipt of the second positive test result, Officer Zaccagni made arrangements to see defendant on June 12, 1989 in McConnellsburg. At that time, Officer Zaccagni learned that defendant was attending a baseball game, and thought it prudent not to approach him at that location. Therefore, he arranged to meet defendant at his residence at approximately 7:30 p.m. that evening. Officer Zaccagni arranged for two state troopers to accompany him, but they travelled separately, and initially remained outside the residence. We note that although Officer Zaccagni testified that he had not decided whether to charge defendant with the probation violation until speaking with him, the State Police “assignment report” expressly states:

“Agent Zaccagni stopped by the station and requested the assistance of PSP [Pennsylvania State Police] in arresting Kenneth Lee Seiders for violation of his probation in that within the past month and one-half he received positive indications on urine specimens taken from Seiders.”

Following his arrival at the Seiders residence, which was occupied by defendant and Lawrence Eugene Ghidina, Officer Zaccagni decided to place defendant under arrest. He did so, with the assistance of Corporal John D. Zechman and Trooper Robert Albright, both State Police members.

Following the arrest of defendant, Officer Zaccagni determined to conduct a search of the premises to determine if cocaine was present. He enlisted the aid of the two state police officers, who proceeded without a search warrant through a long hallway to defendant’s bedroom door, which was locked. A key was somehow located, and entry was made by the officers. Due to the lighting conditions, which made for poor visibility, Trooper Albright located a flashlight, and resumed the search. The search proceeded to a bathroom which adjoined defendant’s bedroom. In a closet of the bathroom Corporal Zechman found a box containing a white powder, later found to be cocaine.

After this material was found, Corporal Zechman left the premises to secure the assistance of the Region 3 Drug Strike Force, and to obtain a search warrant. Because of the hour, a “nighttime” search warrant was obtained from District Justice Carol J. Johnson, and Troopers Boppe and Ruda from the strike force accompanied Corporal Zechman to execute the search warrant. The warrant was executed, and inter alia, additional controlled substances, a set of scales, a spoon, and a notebook containing information related to drug dealing were located. (As an omnibus pretrial motion for suppress evidence was filed and the hearing thereon was held contemporaneously herewith, the facts of the search and items recovered will be .set forth in greater detail in the separate opinion relating to the search and seizure issue).

Defendant was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, and conspiracy to possess a controlled substance with intent to deliver. Following the preliminary hearing, the district justice found that a prima facie case had been established, and the charges were returned to court.

On the matter presently before the court, i.e. the probation violation, defendant was notified that the bases therefor were that he failed to live as a law-abiding citizen by reason of the above arrests, and that he failed to abstain from the use of a controlled substance, by reason of the results of urinalysis testing.

As to the initial matter, defendant has attempted to challenge the legality of the search leading to the arrests, and thus to obviate any basis for the arrests. However, we do not find it necessary to consider that issue herein, as we think the urinalysis testing results provide ample basis for finding that a probation violation occurred.

In regard to the urinalysis testing, defendant challenged the test results on the ground that such testing was not made a special condition of his probationary sentence and, he asserts, he was therefore not subject to such testing, so, his reasoning follows, the test results are not admissible.

We note that defendant was put on notice of the intention of the office to conduct such testing when defendant was orally advised thereof at the commencement of the period of supervision, as well as by the two previous occasions on which defendant tested positive for controlled substances prior to the third positive test which led to the instant probation violation proceeding. Defendant is being disingenuous if he is claiming, as we understand him to, that he was not given notice that he was subject to urinalysis testing.

We have found no precedent in Pennsylvania which specifically deals with the failure of the probation authority to advise the probationer with written notice regarding urinalysis. However, at least one federal appeals court, in United States v. Duff, 831 F.2d 176 (7th Cir., 1987), upheld a challenge to such testing under similar circumstances.

The testing to which defendant has taken exception differs from typical conditions of probation in that it does not compel specific activity by defendant in the usual conduct of his life, but rather provides the supervising officer with a scientific means of determining if the probationer has complied with a specific condition of probation, i.e. refraining from the use of controlled substances, unless prescribed by a physician. In the modem world, such a relatively limited intrusion involving a person previously convicted of drug offenses is both necessary and reasonable to affirm or rebut compliance with this condition of probation.

Although defendant expresses concern at the invasion of his privacy in the place (a McDonald’s restaurant restroom) and manner (the urine sample being collected in the immediate presence of the probation officer) of collection of the urine sample, we note that the officer had difficulty locating defendant at his residence, and thus arranged to meet defendant at the restaurant, and that if the officer had not observed the collection of the sample, the officer could not be assured that the sample provided was defendant’s urine.

Defendant, by his past criminal conduct, had shown a propensity to involve himself with illicit drugs, and periodic testing of his urine is the least intrusive means of determining if defendant is proceeding with efforts at his rehabilitation.

Moreover, it is not defendant’s failure to comply with urinalysis testing, but the result of the testing that is involved herein. Defendant cannot claim that it was a lack of notice of an unknown violation which brought him to his current difficulties, but rather his failure to comply with a condition very specifically contained on the terms and conditions of his probation, and previously set forth herein. We find unpersuasive defendant’s contentions regarding the failure to set forth urinalysis testing as a condition of probation, and therefore reject them.

Finally, defendant has objected to the admissibility of the urinalysis test results on the ground the chain of evidence was not adequately established. Prior to reviewing the law, we will set forth briefly the facts and background.

On two occasions, Officer Zaccagni took urine samples from defendant. The urine sample was taken in a tube in the presence of Officer Zaccagni, who sealed' it, identified it, placed the sealed tube into a mailer with which he had been supplied by the PBPP, and he deposited the pre-addresséd mailer in the U.S. mails along with a form which also accompanied the mailer and which Officer Zaccagni completed. The mailer was sent to HealthEast Laboratories in Allentown, Pennsylvania, a laboratory approved by the Pennsylvania Department of Health under the. Clinical Laboratory Act, 35 P.S. §§2151-2165 to conduct urine testing for the presence of controlled substances, see 19 Pa. Bulletin at 1352 et séq. (March 25,1989).

At the time of testing, HealthEast Laboratories held a contract with the Commonwealth of Pennsylvania to conduct urinalysis testing for the Pennsylvania Board of Probation and Parole. The procedure followed was established pursuant to a protocol submitted by HealthEast Laboratories and accepted by the Department of Health.

Pursuant to the protocol, the mailed package was inspected upon receipt at HealthEast Laboratories by a technician under the supervision of Gerald E! Clemen, Ph.D., director of toxicology of HealthEast Laboratories, to determine if it remained intact. Upon ascertaining that it had, the technician opened the package, and examined the contents. The information on the form and tube were compared, and the sample was provided with a control number which was entered into the laboratory’s computer. Following this, the sample underwent testing: thin layer chromatography, followed by the CIBA amino ácid survey, both of which tests were positive for cocaine on both dates on which testing was done.

On the first test the laboratory’s toxicology supervisor certified .the test results, and on the second test, Dr. Clemen certified the test. In both instances, the test results were forwarded to the Pennsylvania Board of Probation and Parole.

Defendant alleges that the test results are .unreliable arid inadmissible because the commonwealth failed to establish the chain of evidence. We do not agree. As noted in Commonwealth v. Miller, 234 Pa. Super. 146, 339 A.2d 573 (1975):

“[T]here is no requirement that the commonwealth establish the sanctity of its exhibits beyond all moral certainty. It is sufficient that the evidence, direct and circumstantial, establish a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court.”

See also, Stahl v. Commonwealth of Pennsylvania, Board of Probation and Parole, 106 Pa. Commw. 274, 525 A.2d 1272 (1§87).

We conclude that the commonwealth has met the standard set forth in the above-cited cases,, and that the test results properly were admitted into evidence.

ORDER OF COURT

November 14, 1989, defendant is found to be in violation of the terms and conditions of his sentence of probation by reason of his failure to refrain from the use of a controlled substance, i.e. cocaine. The Pennsylvania Board of Probation and Parole is directed to prepare a pre-sentence investigation report, and sentencing will be at the call of the District Attorney upon receipt of the same.

       We find this difficult to comprehend, in view of defendant’s past record of involvement in illegal drug dealing, and three separate occasions of positive test results demonstrating the.presence of controlled substance in defendant.