text:
    Moses Taylor Hospital v. GSGSB

      C.P. of Lackawanna County,
    no. 96-CV-608.

      Andrew Hailstone, for plaintiff.

      Harry R. Blackburn, for defendant GSGSB.

      Emanuel Kapelsohn, for defendants GSGSB/H and The Hillier Group.
    January 20, 2000
   NEALON, J.,

Defendant, GSGSB, has filed preliminary objections asserting a lack of subject matter jurisdiction based upon a contractual provision requiring the parties to submit their disputes to compulsory arbitration. For the reasons set forth below, the preliminary objections will be granted and plaintiff, Moses Taylor Hospital, will be directed to submit its contract and tort claims filed against defendant, GSGSB, to arbitration.

I. FACTUAL BACKGROUND

Plaintiff, Moses Taylor Hospital, has instituted three separate lawsuits seeking to recover damages based upon the alleged faulty construction and installation of fiber reinforced concrete panels during a construction project at MTH. In MTH v. Sordoni Construction, no. 95-CV-5993 (Lacka. Cty.), MTH has sued the general contractor for the construction project, the manufacturer of the FRC panels, the designer and tester of the panels, and the engineer who reportedly concluded that the panels satisfied the contract specifications. MTH also seeks damages in MTH v. Reliance Insurance Co., no. 97-CV-1087 (Lacka. Cty.), pursuant to a performance bond issued by Reliance Insurance Company and furnished to MTH by Sordoni Construction in accordance with the construction agreement. In the instant litigation, MTH asserts claims against the project architect, GSGSB, and The Hillier Group which purportedly created GSGSB/H as an alter ego to temporarily seize control of GSGSB’s assets during a takeover of GSGSB by Hillier.

By memorandum and order dated November 10,1999, the defendants’ preliminary objections in MTH v. Sor-doni were granted as to the cause of action for breach of professional responsibility, but denied as to the claims for negligence, strict liability and breach of warranty. See MTH v. Sordoni Construction, supra, Nealon, J. at pp. 7-14 (Lacka. Cty. November 10,1999). On November 12, 1999, Reliance Insurance Company’s preliminary objections in MTH v. Reliance Insurance Co. were likewise granted as to the breach of professional responsibility claim, but denied in all other respects. See MTH v. Reliance Insurance, supra, Nealon, J. at pp. 3-4 (Lacka. Cty. November 12, 1999).

In Counts I, II, III and IV of the complaint which has been filed in the above-captioned matter, MTH alleges liability on the part of the project architect, GSGSB, whereas Count V asserts an independent cause of action against GSGSB/H and Hillier as the successor in interest to GSGSB and its liabilities. The claims advanced in this case mirror those which have been asserted in MTH v. Sordoni Construction. Specifically, MTH avers that the defendants agreed to “act as architect for MTH with respect to construction of a multi-story west wing addition to the existing hospital” as per the MTH-GSGSB agreement which obligated the architectural defendants to provide services “as expeditiously as is consistent with professional skill and care and the orderly progress of the work.” (See plaintiff’s complaint, ¶¶5, 16.) As a result of the duties allegedly imposed upon the architectural defendants by virtue of the MTH-GSGSB agreement, MTH has asserted liability based upon negligence, breach of contract, breach of professional responsibility, and breach of warranty. (Id., ¶¶22, 27, 33, 40.)

GSGSB/H and Hillier have filed an answer and new matter denying successor liability, and maintaining that neither party agreed to an assignment of the MTH-GSGSB contract. GSGSB filed the instant preliminary objections alleging that Court of Common Pleas of Lackawanna County lacks subject matter jurisdiction due to an arbitration clause contained in the agreement between MTH and GSGSB. The relevant provisions of that agreement state:

“(7.1) Claims, disputes or other matters in question between the parties to this agreement arising out of or relating to this agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.
“(7.2) Demand for arbitration shall be filed in writing with the other party to this agreement and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of limitations.
“(7.3) The foregoing agreement to arbitrate shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof.” (See plaintiff’s complaint, exhibit “A,” pp. 6-7.)

Based upon the foregoing arbitration clause, GSGSB seeks dismissal of this litigation or, in the alternative, an order compelling MTH to submit their claims to arbitration. GSGSB/H and Hillier have joined as additional defendants the manufacturer of the FRC panels, the designer/tester of the panels, and the engineering firm, Allen R. Decker L.P.E., and A.R. Decker & Associates, which evaluated the panels, in response to which Decker filed preliminary objections asserting lack of in personam jurisdiction. The parties have filed memoranda of law in support of their respective positions, and following the completion of oral argument on November 22,1999, this matter was submitted for a decision.

I. DISCUSSION

(A) Standard of Review

Arbitration is a matter of contract and, as such, it is for the court to determine as a question of law whether an express agreement to arbitrate exists between the parties. Smith v. Cumberland Group Ltd., 451 Pa. Super. 276, 284, 687 A.2d 1167, 1171 (1997); Emlenton Area Municipal Authority v. Miles, 378 Pa. Super. 303, 307, 548 A.2d 623, 625 (1988), alloc. denied, 522 Pa. 613, 563 A.2d 498 (1989). The threshold question of whether a party has agreed to arbitrate a dispute presents a jurisdictional issue. Patton v. Hanover Insurance Co., 417 Pa. Super. 351, 356, 612 A.2d 517, 520 (1992); Gaslin Inc. v. L.G.C. Exports Inc., 334 Pa. Super. 132, 141, 482 A.2d 1117, 1122 (1984). Subject matter jurisdiction concerns the capacity of a tribunal to adjudicate a particular issue, and without such jurisdiction, the court has no authority to render a judgment. Bernhard v. Bernhard, 447 Pa. Super. 118, 124, 668 A.2d 546, 548 (1995); Rieser v. Glukowsky, 435 Pa. Super. 530, 535, 646 A.2d 1221, 1223 (1994). When ruling upon preliminary objections raising a lack of subject matter jurisdiction, all well-pleaded facts must be accepted as true, together with reasonable inferences which may be drawn from those facts. Bailey v. Storlazzi, 729 A.2d 1206, 1214 n.10 (Pa. Super. 1999).

(B) Arbitration Clause

As a matter of public policy, this Commonwealth strongly favors the disposition or settlement of disputes by way of arbitration. Smith, 455 Pa. Super. at 283, 687 A.2d at 1171; Langston v. National Media Corp., 420 Pa. Super. 611, 615-16, 617 A.2d 354, 356 (1992). When one party to an agreement seeks to compel another to proceed with arbitration, judicial inquiry is limited to determining (1) if a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision. Hazleton Area School District v. Bosak, 671 A.2d 277, 282 (Pa. Commw. 1996); PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 376-77, 632 A.2d 903, 905 (1993). “If a valid arbitration agreement exists between the parties and [plaintiff’s] claim is within the scope of the agreement, the controversy must be submitted to arbitration. Smith, 455 Pa. Super. at 284, 687 A.2d at 1171 (quoting Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 600, 641 A.2d 1167, 1170 (1994)).

GSGSB contends that the plain language of the arbitration provision requires MTH to submit all of its claims against GSGSB to arbitration. MTH counters that the arbitration clause does not evince an intent by the parties to subject all claims to arbitration, particularly those causes of action for negligence, breach of professional responsibility and breach of warranty. Both parties have cited seemingly conflicting decisions of the Superior Court and the Commonwealth Court in support of their respective positions.

It is beyond legitimate dispute that MTH’s breach of contract claim must be submitted to arbitration pursuant to section 7.1 of the agreement mandating arbitration of “[c]laims, disputes or other matters in question between. the parties to this agreement arising out of or relating to this agreement or breach thereof.” In Ambridge Borough Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498 (1974), the Supreme Court of Pennsylvania had occasion to consider the scope of a contractual provision requiring arbitration of “any controversy or claim arising out of or relating to this agreement or the breach thereof.” Finding that an equity action seeking to declare the contract null and void was encompassed by the arbitration clause, the court described the provision as containing “the broadest conceivable language from which it must be concluded that the parties intended the scope of the submission to be unlimited” and held that “[w]here, as here, there is an unlimited arbitration clause, any dispute which may arise between the parties concerning the principal contract is to be settled pursuant to its terms.” Ambridge Borough, 458 Pa. at 551-52, 328 A.2d at 501. Thus, MTH’s breach of contract claim is clearly governed by the arbitration mandate in section 7.1.

A more troubling issue is whether the tort claims for negligence, breach of professional responsibility and breach of warranty are controlled by the arbitration provision. In Bosak, supra, the Hazleton Area School District sued the architect, Bosak, and the engineer, general contractor and bonding surety for a construction project, and asserted causes of action in negligence against Bosak and others who were not parties to the school district-Bosak agreements which contained an arbitration clause. Reasoning that the tort claims did not fall within the ambit of the arbitration language, the Commonwealth Court concluded:

“The school district in this case has not asserted claims against Bosak concerning the agreements or their breach. Rather, the school district filed a complaint against Bosak in which it specifically alleged tort claims for professional negligence. . . . Neither the 1988 agreement nor the 1989 agreement specifically states that an action in tort for negligence should be arbitrated.” Bosak, 671 A.2d at 282. (citation omitted)

More than two years later, the Superior Court reached a wholly contrary conclusion in Shadduck v. Christopher J. Kaclik Inc., 713 A.2d 635 (Pa. Super. 1998). In that case, a homeowner brought an action against a builder alleging fraudulent misrepresentation concerning its ability to construct a home in a workmanlike manner, and multiple violations of the Unfair Trade Practices and Consumer Protection Law, based upon deceptive construction practices. The parties had executed a construction contract in which they distinctly agreed to arbitrate “[a]ll claims or disputes . . . arising out of, or relating to, this contract or the breach thereof.” Shadduck, 713 A.2d at 637. The builder maintained that the arbitration provision “was broadly worded and, by its plain language, contemplated that all disputes, whether styled in tort or contract language, be submitted to arbitration” whereas the owner argued “that the parties’ agreement to arbitrate was limited to causes of action sounding in contract.” Id.

Relying upon the Supreme Court pronouncement in Ambridge Borough, the Superior Court held:

“Our interpretation of the arbitration provision... convinces us that the parties intended to submit all of their grievances to arbitration, regardless of whether the claims sounded in tort or contract. There is no limiting language of the type that would lead one to believe that only contract claims fall within the purview of the agreement. Indeed, given the agreement’s expansive terms, the only reasonable conclusion is that a claim’s substance, not its styling, is to control whether the complaining party must proceed to arbitration or may file in the court of common pleas. That is, if the claim arises out of, or relates to, the building contract or the purported breach thereof, the moving party’s sole forum is compulsory arbitration.” Id. at 637.

In rejecting the owner’s contention that the arbitration provision did not govern tort claims for fraudulent misrepresentation and deceptive trade practices, the Shadduck court observed “that the same factual aver-ments underlie both owner’s tort and breach of contract claims.” Id. at 638-39. Consequently, the Superior Court reversed the lower court’s denial of the builder’s preliminary objections asserting lack of jurisdiction, and held “that the parties’ agreement mandates that all disputes arising out of the contract or the breach thereof be submitted to compulsory arbitration, without regard to whether the claims sound in tort or contract.” Id. at 639.

Based upon the foregoing, if the more recent ruling of the Superior Court in Shadduck controls, MTH’s claims against GSGSB must be submitted to arbitration; conversely, if the Commonwealth Court precedent in Bosak governs, MTH’s tort claims would not be subject to the arbitration mandate. Since any appeal in this case would fall within the jurisdiction of the Superior Court rather than the Commonwealth Court, see 42 Pa.C.S. §§742, 762, stare decisis would dictate that Superior Court precedent would govern this issue on appeal. See e.g., Wetzel v. City of Altoona, 152 Pa. Commw. 309, 315 n.6, 618 A.2d 1219, 1223 n.6 (1992); County of Armstrong v. W.C.A.B. (Ross and Borough of Kittanning), 81 Pa. Commw. 474, 478, 473 A.2d 755, 757 (1984).

Furthermore, the reasoning in Shadduck is more consistent with the rationale of the Supreme Court in Ambridge Borough. The arbitration provision in Am-bridge Borough governing any “claim arising out of or relating to this agreement or the breach thereof’ is virtually identical to, but not quite as expansive as, the arbitration mandate in the case sub judice and was characterized by the Supreme Court as “the broadest conceivable language from which it must be concluded that the parties intended the scope of the submission to be unlimited.” Ambridge Borough, 458 Pa. at 551, 328 A.2d at 501. The phrase “[cjlaims, disputes or other matters in question between the parties to this agreement arising out of or relating to this agreement or breach thereof,” reflects an intent on the part of MTH and GSGSB to submit any questions or disagreements involving the subject matter of the agreement, i.e., the construction project, to arbitration. Not unlike the arbitration clause in Shadduck, section 7.1 of the MTH-GSGSB agreement does not contain “limiting language of the type that would lead one to believe that only contract claims fall within the purview of the agreement. Shadduck, 713 A.2d at 637. Moreover, the legal duties which serve as the predicate for MTH’s tort claims and the factual averments that underlie those claims “aris[e] out of or relat[e] to” the MTH-GSGSB agreement.

Accordingly, MTH’s tort and contract claims against GSGSB fall within the scope of the arbitration provision. As such, the Court of Common Pleas of Lack-awanna County does not possess jurisdiction over this matter which must be submitted to arbitration. Hence, the preliminary objections filed by GSGSB will be granted and all further proceedings in this case will be stayed pending conclusion of the arbitration.

ORDER

And now, January 20,2000, upon consideration of the preliminary objections of defendant, GSGSB, and additional defendant, A.R. Decker & Associates and Allen R. Decker L.P.E., and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The preliminary objections of defendant, GSGSB, asserting lack of subject matter jurisdiction are granted;

(2) Plaintiff, Moses Taylor Hospital, and defendant, GSGSB, are directed to submit their disputes to arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association;

(3) All further proceedings in this matter are stayed pending the conclusion of arbitration; and

(4) The additional defendant’s preliminary objections asserting a lack of personal jurisdiction are denied consistent with Moses Taylor Hospital v. Sordoni Construction Service Inc., no. 95-CV-5993, Nealon, J., pp. 4-6 (Lacka. Cty. November 10, 1999).

      . Decker’s preliminary objections alleging lack of personal jurisdiction will be denied consistent with the earlier ruling in Moses Taylor Hospital v. Sordoni Construction, supra at pp. 4-6.


source: Caselaw Access Project

author: LAVELLE, P.J.,

license: Public Domain

text:
    Sprint Spectrum L.P. v. Zoning Hearing Board of Mahoning Township

      C.P. of Carbon County,
    no. 00-0125.

      Thomas P. Cummings Jr., for appellant Sprint Spectrum L.P.

      Thomas S. Nanovic, for appellee Mahoning Township Zoning Hearing Board.

      Holly A. Heintzelman, for appellee Mahoning Township.
    May 25, 2000
   LAVELLE, P.J.,

In this validity challenge to the Mahoning Township zoning ordinance, the principal issue presented is whether the ordinance is unconstitutionally exclusionary because it makes no provision for cellular communications towers. We hold that the ordinance is not exclusionary and we therefore affirm the decision of the Mahoning Township Zoning Hearing Board dated December 7,1999.

The ZHB held an evidentiary hearing on Novemer 9, 1999, and at the conclusion of that hearing it rejected the validity challenge filed by Sprint Spectrum L.P. and upheld the validity of the ordinance. On December 7,1999, the ZHB filed a written decision consisting of findings of fact and conclusions of law. In its conclusions of law, the ZHB found that Sprint’s proposed facility was either a permitted use in the township’s 1-1 zoning district inasmuch as it was identical to a “radio transmitter,” one of the enumerated permitted uses in that district, or, in the alternative, was permitted under section 105 of the ordinance as a use which is not otherwise provided for. This timely appeal followed.

Since we have heard no additional testimony, our scope of review is limited to whether the ZHB’s decision is supported by competent evidence and whether the ZHB committed an error of law or abuse of discretion. See Faulkner v. Board of Adjustment of Moosic Borough, 154 Pa. Commw. 616, 624 A.2d 677 (1993).

From the record of the hearing held on November 9, 1999, we make the following

FINDINGS OF FACT

(1) The subject of this appeal is an 87-1/2 acre tract of land owned by Leonard J. and Karen K. Kolek at 394 Dieters Hill Road in Mahoning Township, and identified as tax parcel no. 71-37-B6.

(2) The subject property is located in the R-l agricultural/rural zoning district under the township’s zoning ordinance.

(3) Sprint Spectrum seeks to construct a 195-foot tall wireless communications tower on the subject property in order to ensure uninterrupted wireless telephone service to its customers traveling on the northeast extension of the Pennsylvania Turnpike.

(4) In order to ensure continuous and uninterrupted telephone service to its subscribers, Sprint must locate its communications towers at strategic locations along its service route, which towers are separated by relatively short distances because of the low wattage used by cellular phone equipment.

(5) The construction, operation and maintenance of Sprint’s communications tower would be governed by regulations adopted and enforced by the Federal Communications Commission.

(6) Sprint’s tower would be constructed on an area of approximately 2,500 square feet on the subject tract and would require no buildings or sewage facilities. The tower would be erected on a concrete pad and the only appurtenant structures would be three 5' x 3' x 2' boxes containing telephone switching and other electronic equipment, enclosed by a locked fence. (N.T. 12-13.)

(7) The use proposed by Sprint is not a use provided as of right, by special exception or otherwise under the zoning regulations for the R-l agricultural/rural district.

(8) The regulations for the 1-1 research and development and industrial district under section 1002 of the township’s zoning ordinance allow, as a permitted use, a “radio or television transmitter, including such as an accessory use, if it is of any type requiring licensing by the Federal Communications Commission.”

(9) Construction and operation of the tower proposed by Sprint would not adversely impact upon the health, welfare or safety of the surrounding community.

DISCUSSION

Sprint’s validity challenge is a two-pronged attack on the township’s zoning ordinance. First, Sprint urges that the ordinance is unconstitutionally exclusionary because it makes no provision anywhere in the township for cellular communications towers, thereby effectively (and unlawfully) “zoning out” that particular use from the township. Second, Sprint argues that the Telecommunications Act of 1996 (47 U.S.C. §151 et seq.) effectively pre-empts local zoning regulations whenever such regulations result in significant gaps in the availability of wireless services. We will discuss these two issues se-riatim.

The Exclusionary Challenge

Sprint maintains that the ordinance is exclusionary because it makes no provision anywhere within Mahon-ing Township for construction of a wireless cellular communications tower.

Before addressing Sprint’s claim, we must review the general principles of law applicable to validity challenges.

It is a well-established general rule that one who attacks the validity of a zoning ordinance has the burden of overcoming a strong presumption in favor of the ordinance. Sullivan v. Board of Supervisors of Lower Makefield Twp., 22 Pa. Commw. 318, 348 A.2d 464 (1975). This presumption fails, however, where the ordinance, on its face, totally excludes a particular use, in which case the burden shifts to the municipality to prove either that the proposed use is inherently objectionable or is injurious to the public health, safety or welfare of the community. Township Supervisors of Adams Twp. v. West, 79 Pa. Commw. 254, 469 A.2d 701 (1983). Even if an ordinance is not totally exclusionary on its face, it may be de facto exclusionary if it does not provide a fair share of the total available land within the municipality for a particular use. Thus, we have held that a zoning ordinance which permitted public schools in less than 1 percent of a township’s total available land area was de facto exclusionary because it effectively “zoned out” public schools from that township. Jim Thorpe Area School District v. Kidder Township Zoning Hearing Board, 42 D.&C.4th 432 (1999). The fair share doctrine requires “local political units to plan for and provide land-use regulations which meet the legitimate needs of all categories of people who may desire to live within its boundaries.” Surrick v. Zoning Hearing Board of Upper Providence Twp., 476 Pa. 182, 189, 382 A.2d 105, 108 (1977).

Applying these well-established principles to the testimony presented herein, we do not find that Mahoning Township’s zoning ordinance is exclusionary to the extent that it totally excludes cellular communications towers from the township. Specifically, we find and thus hold that the tower which Sprint proposes to build is essentially identical to a “radio ... transmitter ... of [a] type requiring licensing by the Federal Communications Commission,” a permitted use in the 1-1 research and development and industrial district under section 1002 of the ordinance. The ZHB held, and we agree, that the tower proposed by Sprint is, for zoning purposes, a type of radio transmitter permitted as of right in the 1-1 zoning district. ZHB’s conclusion of law no. 1. A zoning hearing board’s interpretation of its own municipality’s zoning ordinance is entitled to weight because it reflects the construction of a statute by an agency charged with its executions and application. Willits Woods Associates v. Zoning Board of Adjustment of the City of Philadelphia, 138 Pa. Commw. 62, 587 A.2d 827 (1991). This is particularly true where the board’s interpretation, as here, is a permissive rather than a restrictive one. Wolfe v. Zoning Board of Adjustment, 14 Ches. Co. Rep. 296 (1966). Sprint’s testimony as to the differences between a PCS tower and a radio transmitter tower in terms of watt and megahertz output, range of signal, type of radio signal emitted, one-way versus two-way communications, etc., while of possible technical interest, is irrelevant for zoning purposes since none of these features would be discernible to an onlooker and would have little, if anything, to do with the tower’s impact on the affected site or neighboring community. Moreover, no competent testimony was presented at the hearing on this issue. Sprint’s only witness was its counsel, who frankly admitted that he had no engineering expertise (N.T. 23) and that he was only “conversationally” familiar with radio transmitters. (N.T. 28.) This witness was not, and could not have been, qualified as one possessing any degree of special knowledge or expertise in the field of radio or wireless communications.

Moreover, even if a cellular communications tower were not essentially identical to a “radio transmitter,” it would still be, as the ZHB specifically held, permitted as a use “similar to and compatible with” the permitted use of a radio transmitter in the 1-1 zoning district under section 105 of the ordinance.

Having determined that the ordinance does not, on its face, exclude PCS towers from the township, we must consider the question of whether the “fair share” test has been met under Surrick and its progeny. These decisions require us to examine the effects of a partial exclusion of a particular use in the light of such factors as actual and projected population growth in the township, the total amount of undeveloped land available for use, the municipality’s proximity to major metropolitan centers, the present level of development in the township, and similar issues which impinge upon the need for the facility being urged by the challenger. In the instant case, however, Sprint has failed to produce a single shred of evidence relative to any of the enumerated factors and the record is utterly devoid of any testimony or other evidence regarding present population and projected future population growth, level of development or other relevant factors. Indeed, Sprint has not even produced evidence to establish a need for the proposed facility other than the brief testimony of its counsel, all of which was anecdotal, secondhand and non-expert in nature. This falls far short of the kind and weight of evidence required under Surrick, and prevents this court from embarking upon any meaningful analysis under the fair share doctrine. In short, Sprint has not met its burden of proof. See Stahl v. Upper Southampton Township Zoning Hearing Board, 146 Pa. Commw. 659, 606 A.2d 960 (1992)— applicant challenging ordinance on fair share theory has affirmative duty to provide evidence supporting fair share allegations.

The Telecommunications Act of 1996

The second prong of Sprint’s attack on the validity of the ordinance is based upon section 332(c)(7)(B)(i)(II) of the Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)), which provides that local zoning regulations “shall not prohibit or have the effect of prohibiting the provision of personal wireless services ...

This attack must fail on the same basis as Sprint’s validity challenge: lack of evidence. It is clear that not every zoning denial of a cellular tower constitutes a violation of the Act. The applicant must establish, by competent evidence: (1) that the proposed tower would fill a significant gap in the ability of remote users to access the national telephone network, and (2) that the permit sought is the least intrusive means of accomplishing that end. The first element requires proof that the area which the applicant seeks to serve is not already serviced by another provider. The second element requires a good faith effort to identify and evaluate less intrusive alternatives, including alternate locations and placement of antennae on existing structures. APT Pittsburgh Limited Partnership v. Penn Township, 196 F.3d 469 (3d Cir.1999). APT is factually similar to the case at bar. The applicant sought to construct a cellular tower in a residential district in order to close gaps and provide “seamless” coverage in its cellular telephone service. The zoning ordinance permitted such towers in the light industrial district but not in residential districts. APT testified that although there were several suitable sites located in the light industrial district, none was available for lease. The Third Circuit rejected APT’s statutory claims for the reasons mentioned above. It also rejected APT’s exclusionary claim, holding that there was no requirement that a zoning ordinance guarantee that all wireless providers will have a suitable site within the township for the location of their towers. In summarizing the testimony, the Third Circuit observed:

“This record is remarkable not for what it contains, but for what it does not. Pennsylvania law imposed a substantial burden upon APT to rebut [the zoning] ordinance’s presumption of constitutionality. We conclude that the ZHB was entitled to find that APT had not carried its burden in this case.” 196 F.3d at 478.

The same comment is equally applicable to the instant record. Sprint introduced no testimony or other competent evidence on either of the elements required under the federal statute. Instead, it relied on a bald assertion that the Telecommunications Act effectively pre-empts all local zoning regulations which would restrict or impede its ability to furnish cellular service. It presented no evidence whatever as to the availability of service from other cellular providers or the feasibility of solving its coverage needs by other, less intrusive, means, including the location of its tower in one of the township’s 1-1 zoning districts, where they are a permitted use. In particular, there was no competent evidence that the subject tract was the only place it could locate its facility. Accordingly, Sprint failed to prove that the ZHB violated or impeded its rights under the Telecommunications Act.

Based upon the foregoing findings of fact and discussion, we enter the following

CONCLUSIONS OF LAW

(1) The Mahoning Township zoning ordinance does not impermissibly exclude cellular wireless communications towers from the township;

(2) For zoning purposes, a cellular communications tower is essentially identical to a “radio transmitter,” a permitted use in the township’s 1-1 research and development and industrial district under section 1002 of the zoning ordinance.

(3) Even if a cellular communications tower were not deemed essentially identical to a “radio transmitter,” it would still be permitted under section 105 of the zoning ordinance as a use not specifically provided for but “similar to and compatible with” the permitted use of a radio transmitter in the 1-1 zoning district.

(4) Neither the zoning ordinance nor the decision of the zoning hearing board violates the provisions of the Telecommunications Act of 1996.

Based upon the foregoing findings of fact and conclusions of law, we enter the following order:

ORDER

And now, May 25, 2000, it is hereby ordered and decreed that the appeal of Sprint Spectrum L.R is denied and dismissed, and the decision of the Zoning Hearing Board of Mahoning Township dated December 7,1999, is affirmed.

      . Because of our disposition on the merits, we will not address the ZHB’s argument that the instant appeal is untimely because it was not filed within 30 days following the zoning officer’s denial of Sprint’s application.

      . We note that the zoning ordinance was enacted in 1981, prior to the introduction of cellular technology.


author: HOGAN, J.,

text:
    Stitt v. Stitt

      C.P. of Northampton County,
    no. 1999-C-1969.

      Stanley J. Margie III, for plaintiff.

      Richard J. Shirojf, for defendant.
    May 9, 2000
   HOGAN, J.,

ORDER

And now, May 9,2000, it is hereby ordered, adjudged, and decreed that the objections of plaintiff Thomas R Stitt Sr. to nos. 16 and 17 of the interrogatories requested by defendant Melinda M. Stitt are granted in part and denied in part, consistent with the following:

STATEMENT OF REASONS

(1) The instant matter before the court is the objections of plaintiff Thomas R Stitt Sr. to interrogatories requested by defendant Melinda M. Stitt.

(2) On October 26,1999, plaintiff and defendant filed the following stipulation of facts: ...

“(3) The parties were married on August 20, 1983, and separated on November 4, 1997.

“(4) Plaintiff, Thomas P. Stitt Sr., is an attorney practicing in Easton, Northampton County, Pennsylvania, who has a substantial concentration of his practice in the area of trusts and estates.

“(5) Defendant in her interrogatories has requested that plaintiff supply information regarding his practice in interrogatory nos. 16 and 17. True and correct copies of defendant’s interrogatory nos. 16 and 17 are attached hereto marked exhibit ‘A’ and made part hereof.

“(6) Plaintiff has objected to answering these interrogatories on the basis of client-attorney privilege.

“(7) Plaintiff’s estate practice fees are not based on contingency fee agreements, as in a personal injury action, but rather are a percentage of the entire value of the estate or an hourly basis.

“(8) Defendant believes and therefore avers that many of the ongoing estates and trust matters in which plaintiff is involved were acquired prior to the parties’ separation while they were cohabiting as husband and wife.

“(9) Defendant believes that the value of plaintiff’s estate and trust cases which were started prior to the date of the parties’ separation have a present value for equitable distribution purposes and can be valued by examination of plaintiff’s books and records, without the necessity of reviewing confidential matters contained in the files.

“(10) Defendant will also request information regarding plaintiff’s business practice as he represents several large companies in the Lehigh Valley area which were clients prior to date of separation.

“(11) Defendant believes that plaintiff’s business practice has a present value for equitable distribution purposes and can be valued by examination of plaintiff’s books and records, without the necessity of reviewing confidential matters contained in the files.

“(10) [Sic] Defendant has requested information regarding plaintiff’s trust and estate practice but he has refused to provide it. . . .” (Stip. of facts.) (alteration added)

(3) Paragraphs 16 and 17 of defendant’s interrogatories state:

“(16) Provide a list of all pending estate cases in which you are acting as executor or administrator. In each case provide the name of decedent, the estimated value of the estate, the date of commencement of your services, the present state of the proceeding i.e. federal and state estate tax returns, date of filing of first accounting, objections, etc. Provide a copy of all written fee agreements, in your capacity as executor/administrator... .

“(17) Provide a list of all pending estate cases in which you are representing the executor (trix), administrator (trix), beneficiaries, heirs or individuals contesting decedent’s will or first accounting. In each case provide the name of decedent, the estimated value of the estate, the date of commencement of your services, the present state of the proceeding i.e. federal and state estate tax returns, date of filing of first accounting, objections, etc. Provide a copy of all written fee agreements, in your capacity as attorney for the executor... (Pl.’s br. in supp. of objs. to interrogs. exhibit A.) (alteration added)

(4) On January 7, 2000, plaintiff filed a brief in support of objections to interrogatories. Also on this date, defendant filed a brief in support of defendant’s position.

(5) By plaintiff’s objections, he requests an order sustaining his objections to paragraphs 16 and 17 of defendant’s interrogatories. In support of this request, plaintiff asserts that the information requested is irrelevant to the equitable distribution phase of the underlying divorce. Specifically, plaintiff seeks to bar inquiry into future productivity of plaintiff’s individual law practice on the basis that the good will of a sole proprietorship is not an element of value for purposes of equitable distribution. Additionally, plaintiff contends he is barred from answering the requested disclosures because of the attorney-client privilege and Rule 1.6 of the Pennsylvania Rules of Professional Conduct.

(6) The scope of discovery in divorce proceedings is defined by Rule 4003.1(a) of the Pennsylvania Rules of Civil Procedure. Perlberger v. Perlberger, 426 Pa. Super. 245, 268, 626 A.2d 1186, 1198 (1993). Rule 4003.1(a) provides: “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Id.

(7) For purposes of the equitable distribution of marital property, “all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation,” is marital property. 23 Pa.C.S. §3501(a). Marital property may include, in certain contexts, the good will of a business entity. Felt v. Hope, 416 Pa. 118, 206 A.2d 621 (1964). In order to determine whether the context permits a good will valuation of the subject business entity for purposes of equitable distribution, the court must examine the precise nature of the good will as presented by the facts of the given case, while allaying its focus on the technical form of the business entity. Gaydos v. Gaydos, 693 A.2d 1368, 1372-73 (Pa. Super. 1997) (citing Solomon v. Solomon, 531 Pa. 113, 611 A.2d 686 (1992)).

Good will which is (1) wholly attributable to the business itself is subject to distribution, but (2) good will which is intrinsically tied to the attributes and/or skills of the professional spouse cannot be viewed as a value of the business as a whole, and thus is not subject to equitable distribution. Id., 693 A.2d at 1372 (citing Butler v. Butler, 541 Pa. 364, 663 A.2d 148 (1995)). If “the single individual’s contributions become less substantial, the good reputation enjoyed by a business entity becomes less related to the single individual and more a product of the business entity in general, and thus, more capable of surviving the disassociation of the single individual.” Id., 693 A.2d at 1372. Where, however, the good will of the client of the sole proprietorship toward the business is tied exclusively to the presence or skills of a particular professional, and not to a service that could be provided by any number of professionals within the business, the good reputation enjoyed by the business becomes less capable of surviving the disassociation of the single individual. Fexa v. Fexa, 396 Pa. Super. 481, 489, 578 A.2d 1314, 1318 (1990). Given this understanding of good will, the Superior Court in Beasley v. Beasley, 359 Pa. Super. 20, 518 A.2d 545 (1986), held that a sole proprietorship law practice is not an element of valuation for purposes of an equitable distribution of martial property nor for alimony. Id. at 39, 518 A.2d at 553-54. The court further held that “contingent fees may not be considered to establish present value or good will[,] [nor] ... for the purpose of establishing a basis for an alimony award since they are unascertainable earnings . . ..” Id. at 45, 545 A.2d at 557.

(8) In the instant case, defendant concedes the effect herein of Beasley. Defendant, however, maintains that the rules are not applicable to her interrogatories because she is seeking neither a valuation of the good will of plaintiff’s sole proprietorship nor plaintiff’s potential contingent fee earnings. Rather, defendant is requesting a controlled appraisal of those files in which plaintiff is receiving present payment for services performed.

(9) With respect to the valuation of a sole proprietorship’s present value, the Superior Court has explained that “lawyers cannot be carved out as a special category of professionals who are immune from evaluation as to present value, but to permit inquiry into confidential files for the purpose of evaluating contingent fees as potential earnings is inappropriate.” Id. at 42, 518 A.2d at 556. Accordingly: “in those cases wherein the professional is paid for service performed, a clear appraisal of the value of uncompensated work in progress can be made upon which a determination of marital property and division of that property can be based. This can be ascertained through bookkeeping records, which do not involve the evaluation of confidential files.” Id. at 41, 518 A.2d at 555.

(10) While a party may have the right to appraise the value of a sole proprietorship for purposes of determining its present value, the court must temper that right with the clients’ rights to have their personal affairs be absolutely privileged and private. Id. at 42, 518 A.2d at 556. The attorney-client privilege protects this right by precluding discovery or testimony concerning confidential communications made by the client during the course of representation. Birth Center v. St. Paul Companies Inc., 727 A.2d 1144, 1164 (Pa. Super. 1999). Rule 1.6 of the Rules of Professional Conduct governs the confidentiality of such information. Pa. Rules of Professional Conduct Rule 1.6. Rule 1.6 states:

“(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
“(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.
“(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary.
“(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another;
“(2) to prevent or to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used; or
“(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
“(d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.” Id.

Not every item of information obtained by an attorney from a client, however, may be deemed protected by the attorney-client privilege. Brennan v. Brennan, 281 Pa. Super, 362, 373, 422 A.2d 510, 515 (1980). In fact, “[i]t has been held that the privilege applies to a communication, assuming it was conveyed in confidence to an attorney by a client in a client-attorney relationship, only when the communication relates to a fact of which the attorney was informed for the purpose of securing either a legal opinion, legal services, or assistance in some legal proceeding.” Id.

If the information is confidential, the attorney must secure the consent of his or her client prior to releasing the privileged information. When balancing the right of a party to appraise the value of the opposing party’s law practice for purposes of equitable distribution against the right of the clients to confidentiality, the court should consider “the rights of the clients, the ethical standards of the bar association and the ability of the court to exercise control over such confidential information. Beasley, 359 Pa. Super, at 41, 518 A.2d at 555.

(11) It is not entirely clear that the information requested by defendant in paragraphs 16 and 17 of her interrogatories constitutes confidential information protected by the attorney-client privilege. On balance, we believe so much of this information as might identify a client, or reveal confidential communication, can be excised, and provide a means to satisfy defendant’s right to appraise the present value of plaintiff’s sole proprietorship. In responding to defendant’s interrogatories, plaintiff is directed to redact his clients’ names, addresses, and other vestiges of identity from the requested financial documents and information. By taking these steps, plaintiff will be spared any burden or annoyance plaintiff would otherwise be compelled to incur in securing the consent of his client prior to the release of the requested information and documentation.

(12) Consequently, plaintiff is directed to: (1) list all pending estate cases in which he currently acts as executor or administrator, and the place of record where defendant may examine all official dockets and filings; (2) list all such pending estate cases in which he represents decedent’s personal representative, and the place of record where defendant may examine all official dockets and filings; (3) list all such pending estate cases which he so serves or represents, where no letters of administration have been awarded; (4) list all accounts receivable for unpaid fees earned or retainers required from all such decedent’s estates, omitting the names of the debtor estates; and (5) disclose the balance of fees or commissions estimated to be due for future services in each such estate, arranged from the greatest to the least, omitting the names of the estate from which the compensation may be due.

      . “Good will” is defined as “the favor which the management of a business has won from the public, and probability that old customers will continue their patronage.” Buckl v. Buckl, 373 Pa. Super. 521, 530, 542 A.2d 65, 69 (1988). The concept of good will of a sole proprietorship is nebulous at best and consequently, the placing of a dollar valuation is most difficult.

      . In reaching this determination, the Superior Court explained:
      “A sole proprietorship can be distinguished from a partnership, or a professional corporation, to which an ascertainable value can be ascribed for the purpose of buying into or withdrawing from the relationship; but it is the association, or some share of it, that is valued and not the individual partner upon which the value is placed. . . . The productivity or work effort of the partner is often not the measure of the share possessed by various members of the association. That share is a measurable and marketable commodity and is generally defined by contract. When a sole proprietor terminates his [or her] activity, the lights go out, the value of the sole proprietorship is extinguished and is non-transferable; the clients in the law firm cannot be sold, they can only be transferred and they have the absolute right to select their own future representation; nothing remains in the residue which could be determined of value aside from tangible physical property, or work performed on partially completed cases, which may entitle the lawyer or his [or her] heirs to a quantum meruit payment.” Beasley v. Beasley, 359 Pa. Super. 20, 35-36, 518 A.2d 545, 552 (1986). (citations omitted) (emphasis omitted)

      . With respect to contingent fees, the court explained “[contingent fees, while having a degree of similarity to pensions, do not have the same expectation of vesting which permits greater certainty in fixing value and for establishing present worth.” Id. at 41, 518 A.2d at 555. The court explained that:
      “In cases where there is a contingent fee arrangement, the value of work completed, or work done and the costs advanced, is absorbed by the sole proprietor and cannot be recouped until the case is completed. This cannot be equated with those cases in which a fee is fixed based upon the work to be performed whereby an appraisal can be made establishing the value to the time of distribution as a recoverable asset.” Id. at 38-39, 518 A.2d at 554. (citations omitted)
      Accordingly, “[i]t is tenuous and risky to attempt to evaluate the likely return on contingent fees and as such, no value can be placed on them for purposes of equitable distribution.” Id. at 39, 518 A.2d at 554.

      . Present value may consist of capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible property over and above book value. Buckl v. Buckl, 373 Pa. Super. 521, 542 A.2d 65 (1988).


author: MILLIN, P.J.,

text:
    Heimbuch v. Manufacturer’s Association of Northwestern Pennsylvania
    C.P. of Warren County,
    no. 101 of 1997.

      Charles E. Fagan, for plaintiff.

      W. Patrick Delaney, for defendant Manufacturer Association.

      Gary Eiben, for defendant Highmark.
    January 28, 2000
   MILLIN, P.J.,

“At common law, an attorney owes a fiduciary duty to his client; such duty demands undivided loyalty and prohibits the attorney from engaging in conflicts of interest, and breach of such duty is actionable.” Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 253, 602 A.2d 1277, 1283 (1992).

The Pennsylvania Supreme Court in Maritrans instructed us that trial courts clearly have the power to enjoin an attorney from breaching his duty to a client.

“While the breach by a lawyer of his duty to keep the confidences of his client and to avoid representing conflicting interests may be the subject of appropriate disciplinary action, the court is not bound to await such development before acting to restrain improper conduct where it is disclosed in a case pending in that court.” Maritrans, 529 Pa. at 254-55, 602 A.2d at 1284.

Here, the court finds no intentional misconduct on the part of counsel; however, it is clear from the depositions that Attorney Mizner of the MacDonald, Illig, Jones & Britton LLP firm through a conversation with plaintiff’s present counsel acquired highly confidential information of a general nature concerning the valuation plaintiff’s counsel placed on plaintiff’s case. Here, it is clear from the testimony that once this potential conflict was realized by the attorneys in the firm of MacDonald, Illig, Jones & Britton LLP, steps were taken to wall off or protect this information, otherwise known as a “Chinese Wall.”

“ ‘Chinese Walls’ have been used to avoid disqualification in relatively few cases. They are most commonly accepted by the courts when an attorney has moved from government to private practice and is now a member of a private firm which represents clients who are current adversaries of the government agency at which that attorney was formerly employed. Disqualification has been avoided in some of these cases when the ‘Chinese Wall’ was established prior to the arrival of the new attorney at the firm and when the ‘Chinese Wall’ in question is a formal, written, screening procedure.” INA Underwriters Insurance Co. v. Nalibotsky, 594 F. Supp. 1199 (E.D. Pa. 1984).

Factors to be considered in determining whether a “Chinese Wall” is adequate to prevent imputed disqualification of a law firm include substantiality, a relationship between attorney and former client, time lapse between matters in dispute, size of firm, and number of disqualified attorneys, nature of disqualified attorney’s involvement, timing of the screen, prohibition of discussion of sensitive matters, restricted circulation of sensitive documents, restricted access to files, and strong firm policy against breach. Dworkin v. General Motors Corporation, 906 F. Supp. 273 (E.D. Pa. 1995). Here, there was no time lapse between the matters in dispute, the nature of the attorney’s involvement was directly related to the present case, timing of the screen was after the involvement in conflict had taken place, and there was a discussion of a highly sensitive nature.

For all of the foregoing reasons, the court enters the following order:

ORDER

And now, January 28, 2000, the plaintiff’s motion to disqualify opposing counsel on the basis of a conflict of interest is granted. The firm of MacDonald, Illig, Jones & Britton LLP is disqualified from representing the Manufacturer’s Association of Northwestern Pennsylvania and shall forthwith withdraw from this case. All matters concerning the case are stayed and the defendant Manufacturer’s Association of Northwestern Pennsylvania is granted 30 days to retain new counsel.


author: SCOTT, J.,

text:
    Ricca v. Jackson

      C.P. of Bucks County,
    no. 96-05145-17-2.

      Vincent Melchiorre, for plaintiff.

      Colin Hannings, for defendant.
    May 5, 2000
   SCOTT, J.,

The matter presently before the court involves a claim by Marco Ricca against Margaret Jackson for damages arising out of an automobile accident. Plaintiff alleged that defendant, while driving her car, failed to yield the right of way and caused a collision. On October 27,1999, after a two-day trial, the jury returned a verdict in favor of defendant on the issue of causation. Plaintiff filed timely post-trial motions asking for judgment n.o.v. or, in the alternative, a new trial. We offer this opinion in support of our decision to grant a new trial on the issue of damages only.

The automobile accident at issue occurred on December 10, 1994. The record discloses that on that date, the defendant exited the parking lot of a restaurant into the lane of traffic in which plaintiff was traveling. Plaintiff blew his horn and hit his brakes, but he was unable to stop before colliding with defendant’s car. Plaintiff was going 45 miles per hour when defendant pulled out in front of him, and the collision totaled plaintiff’s car, a 1983 Buick Regal.

Plaintiff alleged he was dazed and injured his knee. He refused, however, to be taken to the hospital in an ambulance, because he was concerned about his dog, which had been riding in the car with him at the time of the accident. Subsequently, a bystander drove plaintiff to his house so he could drop off his dog and then took plaintiff to Frankford Hospital. At the hospital, plaintiff was examined by the hospital personnel and released. They told him that he should see his family physician, Dr. Julius Mingroni, about further treatment of his injuries.

Plaintiff saw Dr. Mingroni on December 13, three days after the accident. In this first visit, plaintiff complained of injuries to his cervical spine (neck), his right knee, and his lumbosacral spine (lower back). The doctor described the symptoms as complaints of severe neck pain with limitation of motion and spasms, as well as lower back pain with spasms. The knee injury subsequently healed, but plaintiff continued to complain of daily pain between his shoulder blades and the occasional slight loss of sensation and strength in his right hand. Plaintiff stated that at times, this daily pain in his back would increase severely. Plaintiff had never mentioned any neck or back problems prior to the accident to Dr. Mingroni. The doctor initially prescribed Flexeril (a muscle relaxant), Naprosyn (an anti-inflammatory) and physical therapy to try to alleviate the back pain. Plaintiff started going to therapy three times a week in December of 1994 and continued the therapy for six months.

The therapy failed to provide any lasting relief to plaintiff. Dr. Mingroni then asked to have an MRI done on plaintiff’s spine because of plaintiff’s continued complaints of pain in his neck and back. Also, plaintiff was referred to Dr. Resnick, a neurologist, and Dr. Salkind, a neurosurgeon. He also treated with a chiropractor. Plaintiff testified, however, that the chiropractor treatments failed to give him any long-term relief. After reviewing the MRIs and consulting with Dr. Resnick and Dr. Salkind, Dr. Mingroni diagnosed plaintiff as having a herniated disc at the level of C5-C6 (neck) and a bulging disc at the level of L5-S1 (lower back).

The two neurosurgeons plaintiff consulted with, Dr. Salkind and Dr. O’Connor, both recommended surgery as a possible means to alleviate plaintiff’s problem. Plaintiff, however, had concerns regarding the success rate of the operation, the administration of general anesthesia, and the actual procedure itself. After weighing the possible good outcomes from the surgery with the possible bad outcomes, plaintiff decided to forego this option for the time being.

On July 10, 1996, plaintiff filed this suit against defendant Jackson in Bucks County, alleging negligence. The case went to trial on October 26, 1999. During the trial, defendant stipulated that she was negligent in driving her car and that this negligence caused the accident. Trial transcript, pp. 140-41. On October 27, 1999, the jury returned a verdict in favor of defendant, finding that defendant’s negligence was not “a substantial factor in bringing about the plaintiff’s harm.” This post-trial motion followed.

In his motion for post-trial relief, plaintiff requests the court to grant a new trial and judgment n.o.v. We will discuss each of these issues in turn below.

1. NEW TRIAL

A new trial should be awarded “when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” Martin v. Evans, 551 Pa. 496, 501, 711 A.2d 458, 461 (1998). The trial court has the discretion to decide whether or not to grant a request for a new trial. Id. Under the law of this Commonwealth, a jury hearing a personal injury case cannot disregard the un-controverted testimony from both parties’ experts that the plaintiff was injured as a result of the accident in question. Mano v. Madden, 738 A.2d 493, 497 (Pa. Super. 1999); see Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995); Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952); Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000); Lewis v. Evans, 456 Pa. Super. 285, 690 A.2d 291 (1997); Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995); Hawley v. Donahoo, 416 Pa. Super. 469, 611 A.2d 311 (1992).

The facts in Burnhauser v. Bumberger are similar to those in the instant case. In Burnhauser, the plaintiff was driving along Route 209 in Carbon County when the defendant’s car crossed the center line and collided head-on with her. Ms. Burnhauser was taken to the hospital, where she complained of pain in her back, chest, shoulders, neck, arms and legs. At the trial, both parties’ experts agreed that Ms. Burnhauser had sustained soft tissue injuries to her spine as a result of the accident. They disagreed, however, as to the nature and extent of these injuries. After the jury found in favor of the plaintiff but only awarded her damages equal to her unreimbursed medical expenses, the trial court granted her post-trial motion for a new trial on the issue of damages. The Superior Court then upheld this decision on appeal, holding that “jury verdicts awarding zero damages are against the weight of the evidence where undisputed medical evidence reveals that the plaintiff has suffered injuries in the accident that were of a type normally associated with pain and suffering.” The Superior Court went on to find that since both parties’ experts had agreed that Ms. Burnhauser had suffered injuries of this type, the trial court did not abuse its discretion or commit an error of law in granting a new trial. Burnhauser, 745 A.2d 1256.

In the instant case, defendant Jackson stipulated at trial that she was negligent in the operation of her car and that this negligence was the cause of the accident. More importantly, as in Burnhauser, in this case both parties’ experts agree that plaintiff’s back was injured in the accident. Plaintiff’s expert, Dr. Mingroni, testified that in his opinion, plaintiff’s chronic pain was directly caused by the accident on December 10,1994. Transcript of Dr. Mingroni, pp. 25, 27. At the same time, defendant’s expert, Dr. Shipkin, testified to the following:

“Well, I think at the time of his accident in December of 1994, December 10, he (plaintiff) suffered what I would term mild cervical strain and sprain, that is to say he — it’s kind of like having a — a mild whiplash injury, if you will, and that was really all he suffered, as far as I was concerned.” Transcript of Dr. Shipkin, p. 21, 11. 9-14.

Dr. Shipkin also acknowledged that even if plaintiff’s disc was herniated prior to the accident, it could have been asymptomatic until the accident triggered the onset of plaintiff’s symptoms. Id. at 30, 32. Since there was uncontroverted evidence that plaintiff was' injured in the accident and that these injuries were the type one normally associates with pain and suffering, the jury’s refusal to award any damages to plaintiff “shocks one’s sense of justice,” and thus, the granting of a new trial is warranted. Burnhauser, 745 A.2d at 1261; see also, Neison, 539 Pa. at 520, 653 A.2d at 636; Mano, 738 A.2d at 495; Rozanc, 444 Pa. Super, at 651, 664 A.2d at 622.

In Pennsylvania, a court can limit a new trial to the issue of damages where: (1) the issue of liability has been fairly determined or is free from doubt and (2) where the issue of liability is not intertwined with the issue of damages. Kiser v. Schulte, 538 Pa. 219, 233, 648 A.2d 1, 8 (1994). In this case, there is no question whether or not defendant is liable, since she stipulated to her negligence at trial, and both medical experts argued that the accident had harmed plaintiff. Furthermore, the issue of liability is not intertwined with damages. Liability involves defendant’s conduct driving her car which led to the accident occurring, while the issue of damages involves the question of whether or not plaintiff had an asymptomatic back injury prior to the accident. Clearly, these are two distinct questions. Therefore, the grant of a new trial can and should be limited to the issue of damages only.

2. JUDGMENT N.O.V.

In Moure v. Raeuchle, the Pennsylvania Supreme Court held the following, regarding the granting of a judgment n.o.v.:

“In reviewing a motion for judgment n.o.v., ‘the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.’ . . . Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. . . . Further, ‘a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations....’
“There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law,... and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the mov-ant. . . . With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.” 529 Pa. 394, 402-403, 604 A.2d 1003, 1007 (1992) (citations omitted); see also, Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998).

Under this holding, we must decline to grant a judgment n.o.v. to plaintiff. As stated in the previous section, the fact that defendant stipulated at trial to negligence and that her expert admitted that plaintiff was injured in the accident, only means that plaintiff is owed some compensation for the injuries he sustained in the accident. Defendant’s expert, Dr. Shipkin, although admitting that plaintiff was injured in the accident, testified that plaintiff suffered from a degenerative problem in his back prior to the accident and that this, and not the accident, was the primary cause of plaintiff’s ongoing back problems. Transcript of Dr. Shipkin, pp. 21-22,29-31. Under these facts, plaintiff is not owed all the damages he asked for as a matter of law, nor is the evidence on damages such that no two reasonable minds could disagree on what the damages are. A new trial is necessary to determine what damages are attributable to defendant’s negligence and what damages are attributable to any pre-existing conditions plaintiff might have had prior to the accident. Therefore, it would be an abuse of this court’s discretion to grant a judgment n.o.v. and arbitrarily decide what compensation is owed to plaintiff.

At trial, defendant stipulated to negligence, and the fact that plaintiff was injured in the accident was uncon-troverted. Therefore, the jury’s decision that there was no causation did not bear a reasonable relation to the facts. For this reason, we enter our order of May 5,2000, granting plaintiff’s request for a new trial on the issue of damages only.

ORDER

And now, May 5, 2000, upon consideration of plaintiff’s motion for post-trial relief, defendant’s response thereto, and their respective memoranda of law, it is hereby ordered and decreed as follows:

Plaintiff’s request for a new trial is granted on the issue of damages only;

Plaintiff’s request for a judgment n.o.v. is denied.


author: SANCHEZ, J.,

text:
    Buhl v. Allstate Insurance Co.

      C.P. of Chester County,
    no. 98-08114.

      Lawrence J. Goldberg, for plaintiffs.

      Daniel S. Doyle, for defendant.
    March 15, 2000
   SANCHEZ, J.,

Plaintiffs request that this court estop the defendant, Allstate Insurance Company, from asserting the statute of limitations defense and allow plaintiffs to pursue their underinsured motorist claim. Plaintiffs contend that a four-year statute of limitations is inapplicable. In the alternative, if it does apply, the ongoing negotiations and communication with Allstate tolls the statute of limitations. Defendant contends that a four-year statute of limitations applies to this cause of action because it is a claim based on contract law.

There are three issues before this court. The first is whether a four-year statute of limitations applies to an underinsured motorist claim against plaintiffs’ own insurance carrier, Allstate Insurance Company. Second, if the statute of limitations does apply, the date when the statute began to run. Third, whether any actions or communications have transpired which would toll the applicable statute of limitations.

STATEMENT OF FACTS

Plaintiff Mrs. Jane Buhl incurred personal injuries in an automobile accident on November 20,1991. She and her husband brought an action against the tort-feasor which was settled on March 9, 1994 for $25,000, the policy limit with the tort-feasor’s insurance carrier. At the time of the accident, the Buhls had uninsured/ underinsured motorist coverage with Allstate with limits of $25,000 stacked by three vehicles. On March 9, 1994, Allstate consented to the underlying settlement with the tort-feasor. On April 11,1994, counsel for Mrs. Buhl forwarded her medical records to Allstate’s underinsured motorist adjuster for review. Shortly thereafter, on July 19, 1994, Allstate made a $7,500 settlement offer which the Buhls rejected.

Plaintiffs’ counsel sent Allstate additional medical records in June 1997 and in July 1997. On October 1, 1998, plaintiffs’ counsel filed a petition for the appointment of an arbitrator. In response, Allstate raised the statute of limitations defense. Plaintiff contends that the four-year statute of limitations is inapplicable because Allstate failed to inform them prior to October 1, 1998 that they intended to apply a four-year statute of limitations to underinsured claims. Plaintiffs maintain that Allstate misled them into believing that settlement negotiations were ongoing. Plaintiffs did not file a request for an appointment of an arbitrator due to ongoing negotiations and discussions with the Allstate adjusters.

DISCUSSION

This court finds that the underinsured motorist claim is an action based in contract law to which a four-year statute of limitation applies. Uninsured and underinsured motorist claims are contract actions and, therefore, a four-year statute of limitations for contracts governs. Boyle v. State Farm Mutual Automobile Insurance Company, 310 Pa. Super. 10, 456 A.2d 156 (1983). The parties’ rights and obligations are derived from the insurance contract. The defendant is the insurance carrier, not the tort-fea-sor. An underinsured motorist claim, therefore, is an action based in contract law and the statute of limitations governing contracts applies. See Boyle, supra.

Plaintiffs’ assertion that a four-year statute of limitations is inapplicable due to their lack of awareness of the insurance carrier’s policy is without merit. The Superior Court has clearly stated that a four-year statute of limitations applies to underinsured motorist claims since it is an action based on contract law. Wheeler v. Nationwide Mutual Insurance Co., 749 F. Supp. 660 (E.D. Pa. 1990), citing Boyle, supra. While this court sympathizes with plaintiffs’ plight, we cannot carve out an exception based upon plaintiffs’ lack of awareness regarding the insurance carrier’s in-house policies. The issue of whether the statute should be enforced is not one that should be decided on the basis of the plaintiffs’ knowledge of insurance policies and procedures but on the basis of the law which dictates that it applies to the facts and circumstances at hand.

The Superior Court held that a right to bring an action to enforce a contract does not accrue until a party’s contractual rights have vested. Boyle, supra. In an underin-sured motorist claim, the plaintiff must establish: (1) that an accident occurred; (2) that the plaintiff was injured; and (3) that a settlement with the underinsured motorist’s insurance company was reached. Wheeler v. Nationwide Mutual Insurance Co., 749 F. Supp. 660 (E.D. Pa. 1990). In this case, all three criteria have been met. The accident and injury occurred on November 20, 1991. Additionally, the underinsured motorist’s insurance carrier settled with plaintiffs on March 9, 1994. The plaintiffs, therefore, would have been able to bring an action against Allstate until March 1998.

We must next determine whether the running statute of limitations was tolled by the communications between the plaintiffs and Allstate or by Allstate’s offer to settle the disputed claim. This court finds that the communication and settlement negotiations between plaintiffs and Allstate did not toll the statute of limitations.

In Ferrara v. Hoover, the court found no merit in the contention that communication between the appellant and the appellee’s insurance adjuster serves as a substitute for actual service of process. Appellees have a reasonable expectation to assure that once the statute of limitations has run they will no longer shoulder the burden of possible litigation. The court refused to accept the appellant’s argument that communications to the appellees’ insurance carrier of an “impending lawsuit” was an adequate substitute for actual service of process. Moses v. T.N.T. Red Star Express, 725 A.2d 792, 798 (Pa. Super. 1999), citing Ferrara v. Hoover, 431 Pa. Super. 407, 636 A.2d 1151 (1994).

Further, plaintiffs assert that Allstate’s $7,500 settlement offer tolls the statute of limitations since it is evidence of ongoing negotiations. The Superior Court, however, held that the law is clear that an offer to settle a disputed claim does not toll the running statute of limitations. Roznowski v. Pennsylvania National Mutual Casualty Insurance Co., 343 Pa. Super. 7, 13 n.3, 493 A.2d 775, 778 n.3 (1985), citing Schmucker v. Naugle, 426 Pa. 203, 231 A.2d 121 (1967).

In conclusion, this court finds that the underinsured motorist claim is an action based in contract law to which a four-year statute of limitation applies. The statute of limitations began to run when plaintiffs reached a settlement with the underinsured tort-feasor. Further, the communication and settlement negotiations between plaintiffs and Allstate did not toll the statute of limitations. Accordingly, the four-year statute of limitations has expired and Allstate has a viable defense to plaintiffs’ claim. This court is unable to carve out an exception to the rules which apply despite the appearance of Allstate’s delayed negotiations in this matter.


author: MINORA, J.,

text:
    Martin v. Montage Mountain
    C.P. of Lackawanna County,
    no. 99-CV-3754.

      Timothy J. Holland, for plaintiff.

      Hugh Emory, for defendant.

      June 1, 2000
   MINORA, J.,

On Febraaiy 6, 1998, Gregory Martin was involved in a snowtubing collision at the Montage Mountain Ski Area, which is owned and operated by Lackawanna County. On July 21, 1999, Gregory Martin, and his wife Janet filed suit against Montage Mountain and Lackawanna County, asserting a claim of negligence for his injuries suffered as well as a claim for loss of consortium. In their answer and new matter, the defendants argue that the plaintiff had signed a release prior to using the snowtube which absolved the defendants of liability. The plaintiffs counter-argue that the release is inapplicable to this specific situation. Currently under consideration is the defendants’ motion for a judgment on the pleadings. For reasons discussed below, this motion is denied.

DISCUSSION

I. Standard of Review for a Judgment on the Pleadings

A motion for a judgment on the pleadings permits the court to conduct an overall examination of the legal sufficiency of the pleadings. Based on this examination, the court then decides whether a judgment should be entered prior to trial. Bensalem Township School District v. Commonwealth, 518 Pa. 581, 544 A.2d 1318 (1988); Kosor v. Harleysville Mutual Insurance Co., 407 Pa. Super. 68, 595 A.2d 128 (1991). A motion for a judgment on the pleadings, like a demurrer, views as true all of the non-moving party’s well-pleaded allegations. However, only those facts specifically admitted by the non-moving party may be considered against him. Stoppie v. Johns, 720 A.2d 808, 809 (Pa. Commw. 1998) citing Kerr v. Borough of Union City, 150 Pa. Commw. 21, 614 A.2d 338 (1992). The motion may be granted only where the law is clear that a trial would be a fruitless exercise. Stoppie, supra, citing E-Z Parks Inc. v. Philadelphia Parking Authority, 110 Pa. Commw. 629, 532 A.2d 1272 (1987).

II. Standard of Review for a Valid Release Agreement

A release is an agreement manifesting an intention to discharge another from an existing or asserted duty. Black’s Law Dictionary, 6th Edition, p. 1289. The Pennsylvania Superior Court has set forth the following requirements for such an agreement to be valid:

“The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction. ... However, to be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.” Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 447, 603 A.2d 663, 665 (1992), citing Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (1980).

The Superior Court has shed further light on the term “adhesion contract.” In Kotovsky, supra, it was determined that a release signed by the appellant to partid-pate in a downhill ski race was not an adhesion contract because he was not required to enter into the contract, nor was the activity essential to his personal or economic well-being because it was a purely recreational activity. Kotovsky, supra at 447, 603 A.2d at 665. The Superior Court also determined that the Kotovsky agreement did not violate public policy because it was an agreement between private parties and did not affect the rights of the public. Id. at 447, 603 A.2d at 665-66.

III. The Release Signed by the Plaintiff

The release signed by the plaintiff contained the following language in pertinent part.

“I accept for use (as is) any snowtube I will receive from Lackawanna County Montage and accept full responsibility for the care of the snowtube while in my possession.

“I understand that there are inherent and other risks involved in snowtubing, including the use of the lifts and snowtube, and that it is a dangerous activity/sport. These risks included but are not limited to collisions with other snowtubes and snowtubers ... All of the inherent and other risks of snowtubing present the risk of serious and/ or fatal injury. I voluntarily and expressly agree to assume all of these risks.

“I agree not to sue and hold harmless Lackawanna County Montage Ski Area and/or any employee of the aforementioned for loss or damage, including any loss or injuries that result from damages related to the use of a snowtube or lift, even if I claim they were negligent. ” See defendants’ motion for judgment on the pleadings, exhibit “A.” (emphasis in original)

It is the defendants’ contention that this release serves to absolve them from liability for the plaintiffs’ injuries. The plaintiffs feel otherwise.

IV. Analysis

Initially, it is clear that the release signed by the plaintiff is neither a contract of adhesion, nor is it contrary to public policy. In this situation, the plaintiff’s desire to snowtube was for purely recreational reasons. Furthermore, he was not required to enter the contract, nor was the activity essential to his economic well-being. So, it cannot be said that the release was a contract of adhesion. See Kotovsky, supra at 447, 603 A.2d at 665. Nor was the release against public policy because it was an agreement between two parties which did not affect the rights of the public at large. Id. at 447, 603 A.2d at 665-66. As such, the release is a valid and enforceable document. At issue, however, is whether this release applies to the situation at bar.

The plaintiffs’ argument, in large measure, relies on the recent Superior Court case of Hughes v. Seven Springs Farm Inc., 727 A.2d 135 (Pa. Super. 1999). In Hughes, the appellant obtained ski equipment from a ski shop after executing a release agreement. Subsequent thereto, while at the base of the slope, the appellant was struck by another skier. Id. at 136. The facts of Hughes do not expressly state the theory under which the appellant had sued the resort.

The release signed by the appellant contained the following language: “I agree to hold harmless and indemnify the ski shop and its owners, agents and employees for any loss or damage, including any that results from claims for personal injury or property damage related to the use of this equipment, except reasonable wear and tear.” Id. at 138. (emphasis added) The trial court granted summary judgment in this matter under the theory that the release barred recovery. The Superior Court, however, reversed this decision, ruling that the language of the release “pertain[ed] only to the rental of ski equipment and injuries related to that rental [and that it was] not a release of the resort facility related to the use of the facility or any accident which may occur on the premises.” Id

The plaintiffs’ complaint in the matter sub judice alleges negligence related to the design of the snowtubing trail. See plaintiffs’ complaint ¶¶19 and 30. The release signed by the plaintiff specifically states “I agree not to sue [for] damages related to the use of a snowtube or lift. ” See defendants’ motion for judgment on the pleadings, exhibit “A.” (emphasis in original) According to the ieasoning discussed in Hughes, the release executed by the plaintiff would not serve to bar the plaintiffs’ action, especially when considering (1) the fact that the plaintiffs’ complaint alleges negligence in the design of the Snowtubing trail, and not the equipment (see Hughes, supra at 138) and (2) the policy that we must construe the agreement strictly and against the party asserting it. Kotovsky, supra at 447, 603 A.2d at 665. This reasoning should at least allow the case to survive past the judgment on the pleadings and summary judgment phase. Id. Accordingly, the defendants’ motion for a judgment on the pleadings is denied. An appropriate order to this effect will follow.

ORDER

And now, to wit, June 1, 2000, it is hereby ordered and decreed that the defendants’ motion for judgment on the pleadings is denied.