author: DOWLING, J,

text:
    Thomas v. Banogon

      James L. Goldsmith, for plaintiffs.

      Kendra D. Feldman, for defendants.
    October 31, 1990
   DOWLING, J,

The Troublesome Tort Twins: Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress

We have in the recent past had occasion to attempt to ascertain the status of Pennsylvania appellate law on these actions. In Ford v. Sparotin, 109 Dauphin Rep. 52 (1988) and just the other day in Dewalt v. Halter, 7 D.&C. 4th 645 (1990), we dealt with intentional infliction of emotional distress. Now we have the brother, negligent infliction of emotional distress, to evaluate, or rather, update, since in Shaeffer v. Polyclinic Medical Center, 101 Dauphin Rep. 305 (1988), we wrote at length on the subject.

In the case at bar the factual situation has a unique twist. The lawsuit involves a claim for medical malpractice in connection with defendants’ treatment of plaintiff Kelly L. Thomas, who came under their care for her pregnancy. She first consulted defendants on August 3, 1988 when she was some 15 weeks pregnant. In late September, Mrs. Thomas began to experience problems which culminated in her admission to the Harrisburg Hospital where within several hours she delivered a premature, but live, baby boy weighing only one pound, three ounces. Plaintiffs witnessed the birth of their son and were advised immediately that the child could not live. The baby, Jason Roger Thomas, expired several hours after birth.

In addition to wrongful death and survival actions, plaintiffs have made a claim in count III of their amended complaint for damages for severe emotional distress. It is this last count that is attacked by way of demurrer. In the general body of the complaint the counts of negligence include treating the plaintiff for a monilial infection when the symptoms indicated premature labor, and in rupturing the amniotic membrane, thereby precluding the termination of premature labor. The basis for defendant’s demurrer to count III is twofold. First, there is no allegation that plaintiff suffered any objective physical manifestation of the alleged emotional distress; and, secondly, there is no averment that they observed a negligent act.

As the Superior Court frankly admitted in Holliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986): “We recognize that the requirements of averring bodily or physical harm, or a severe physical manifestation of mental distress in a complaint for negligent infliction of emotional distress is [sic] not totally clear in this Commonwealth.” Having read and reread a number of decisions dealing with the issue, we certainly concur in this observation.

In Shaeffer v. Polyclinic, supra, we attempted to update our earlier opinion as to the parameters surrounding the negligent infliction of emotional distress. We held (and, we feel, illustrated convincingly) that in the pivotal case of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), Chief Justice Nix, writing the lead opinion for the court, did not require that physical harm be asserted. This view was supported in a concurring opinion of Justice Eagen, wherein he stated:

“Recovery should be permitted in cases of this nature where three requirements are met: (1) the plaintiff is closely related to the injured party; (2) the plaintiff is near the scene and views the accident; and (3) the plaintiff suffers serious mental distress as a result of viewing the accident and physical injury or suffers serious mental distress and there is a severe physical manifestation of his mental distress.” 486 Pa. at 174, 404 A.2d at 687.

A close reading indicates that the justice is not requiring physical injury as a prerequisite to the tort. The first clause of the third requirement makes it clear that all the plaintiff must suffer is “serious mental distress” as the result of viewing the “accident and physical injury.” The physical injury referred to is not injury to plaintiff, but is the injury resulting from the accident viewed by the plaintiff. Any other construction of this sentence renders the use of the disjunctive “or” nonsensical. The structure of the sentence further makes it evident that a severe physical manifestation of mental distress is not a necessary element of the tort. Physical manifestation of mental distress is merely one option which plaintiff can pursue.

We also demonstrated that a number of Superior Court decisions, some of which are cited by defendants in this case, are based upon a misreading of Sinn, supra. (See Panyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 437 A.2d 1236 (1981); Cathcart v. Keene Industries, 234 Pa. Super. 123, 471 A.2d 493 (1984); as well as Tackett v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986)).

Defendants’ position on this argument is that Sinn, supra, at least inferentially, does require physical manifestation, and that subsequent decisions have so interpreted it. They cite Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986). While in that decision Chief Justice Nix announced that he was revisiting Sinn v. Burd, supra, the case dealt only with the issue of whether the requirement of observation of the accident be extended to a situation where the plaintiff arrived at the scene and observed the victim a few minutes afterwards. The opinion expressed concern as to the dangers of unwarranted extension in the area of tort recovery and upheld the lower court’s grant of summary motion. There is nothing in the decision which refers to the requirement of physical manifestation of emotional injury.

Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), also relied upon, held that the right of recovery for the death of a stillborn child existed under the wrongful death act and survival statute. It did not deal with the issue under consideration. There were, however, some interesting remarks pertinent to our case. Justice Papadakos, who wrote the majority opinion (a four-to-three decision), opined that, “Difficulty in obtaining proof of the wrong should never bar the right to bring an action, once it is determined that the cause of action does indeed exist.” 509 Pa. at 205, 501 A.2d at 1088. The case is also noteworthy for its references (with approval) to Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1980), noting that damages for the parents’ pain and suffering have never been recoverable unless they are accompanied by or the result of physical injury to the parents. Wall v. Fisher, 388 Pa. Super. 305, 565 A.2d 498 (1989), concerned an incident in which the minor plaintiff was injured as a result of being attacked by a dog. While the court held that absent an allegation of physical harm resulting from the alleged emotional distress, there can be no recovery, they stressed the fact that the mother/ plaintiff was not claiming damages for physical injury to herself. The court did discuss Sinn v. Burd, supra, and came to the conclusion that they assumed that the finding of the court was based on the belief that physical injuries were alleged. We find it rather unusual that the decision would incorporate as a critical fact one based on a mere assumption. In any event, the court cited and discussed with approval Scott v. Kopp, supra.

The second prong of the attack on the complaint, i.e., that a negligent act must be witnessed by the plaintiff, is authorized by defendants’ reliance on three Superior Court decisions. Tackett v. Encke, 353 Pa. Super. 359, 509 A.2d 1310 (1986); Holliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986); and Hackett v. United Airlines, 364 Pa. Super. 612, 528 A.2d 971 (1987). In Tackett, the mother brought an action for emotional distress as the result of observing over time her son’s reaction to a negligently undetected pulmonary fat embolism. The Supreme Court affirmed the trial court’s demurrer because the mother did not witness a “discrete and identifiable traumatic event.” Halliday arose from a medical malpractice case where plaintiff did not view the alleged negligent surgery, and the court found the complaint to be defective because it did not meet the present observation requirement. Hackett concerned a negligent mishandling of a casket containing the remains of plaintiff’s mother, which had arrived via the airlines in a damaged condition. The court held that since the plaintiff had not witnessed the doing of the damage, recovery for emotional distress could not be allowed.

The answer to this is that here Mrs. Thomas was herself the recipient of tortious conduct, as she was treated for the wrong condition, had her amniotic membrane ruptured, etc. Scott v. Kopp, supra, dealt with a somewhat similar situation. There the parents of a stillborn child who died as a result of injuries received, ventre sa mere, in an automobile accident sued the driver. Though no recovery was allowed for the wrongful death action, since at that time the law required an independent life in being, the court did indicate that recovery could be allowed for negligently inflicted mental anguish, since it was accompanied by physical injury to the mother.

Amadio v. Levin, supra, while reversing Scott v. Kopp and permitting a wrongful death and survival action for the death of a stillborn child, nevertheless reaffirmed Scott v. Kopp on the point under consideration, stating:

“The parents’ pain and suffering caused by their child’s negligent death has never been recoverable unless the pain and suffering was accompanied by or a result of a physical injury to the parent. See Scott v. Kopp, 494 Pa. at 490, 431 A.2d at 960. Vincent v. Philadelphia, 348 Pa. 290, 35 A.2d 65 (1944); D’Jorko v. Berwind-White Coal Mining Co., 231 Pa. 164, 80 Atl. 77 (1911).”

And in Wall v. Fisher, supra, the court cited with approval Scott v. Kopp, noting that where the plaintiff/mother suffers physical injuries she can maintain an action for negligent infliction of emotional distress.

Perhaps this brief tour of appellate decisions has not completely clarified the situation; yet we have attempted to show that physical manifestations of emotional distress, whatever they may be, are not a prerequisite to recovery, and that the requirement that the claimant witness a negligent act is covered by the fact that here the mother herself suffered physical injuries as a result of the defendants’ negligence.

When one considers the broad aspects of this issue, it is apparent that the requirement of physical manifestation of physical injury is specious, artificial and unjust. Clearly, it is rather ridiculous to argue that when a near relative, frequently a parent, witnesses a serious injury or the death of a loved one, they do not suffer emotional distress. Why is it necessary that the person have a heart attack, scream, faint, or collapse? Isn’t crying, anguish, hysteria, shortness of breath sufficient? How could anyone experience such a powerful and traumatic event and not have emotional distress? The old argument that it is difficult to prove such a claim has been laid to rest in a number of decisions. See Amadio, supra. Is it any more susceptible to feign - ing than many soft-tissue injuries, including the infamous “whiplash injuries”? There is also the argument made in Mazzagatti, supra, that no duty exists because there must be a limit to foreseeability seems equally fatuous. The parties’ reaction to a child’s injury is certainly as foreseeable as the injury to the child.

We must go back to the beginning and remember that this case is before us in the posture of a demurrer, and a demurrer is not justified unless it is absolutely clear that the plaintiff cannot recover as a matter of law. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970); Vitteck v. Washington Broadcasting Co., 256 Pa. Super. 427, 389 A.2d 1197 (1978).

In view of the somewhat unsettled law in this area, there is certainly, at this stage of the proceedings, considerable doubt. We would be reluctant to leave this concert after only listening to the overture. It should be played out and, possibly after dress rehearsal, reviewed again via a motion for summary judgment.

Accordingly, we enter the following

ORDER

And now, October 31, 1990, defendants’ preliminary objections are denied.

        The Estate of Yandrich v. Ridick, 101 Dauphin Rep. 72 (1979).


source: Caselaw Access Project

author: RODGERS, J.,

license: Public Domain

text:
    Jones y. Madison

      Lawrence R. Chaban, for plaintiff.

      Stephen P. McCloskey, for defendants.
    July 9, 1990
   RODGERS, J.,

This matter is before the court by reason of the preliminary objections of plaintiff, Andrea Jones, to new matter of the original defendants, Angalene J. Madison and Allstate Insurance Company. The new matter of the original defendants claimed that plaintiff, Andrea Jones, was negligent in failing to utilize the seat belt and shoulder harness available to her as a guest passenger in the automobile operated by the original defendant, Angalene J. Madison, and that thereby plaintiff, Andrea Jones, was comparatively negligent and also assumed the risk of injury in failing to utilize the seat belt and shoulder harness.

Plaintiff claims that the “seat belt” defense is barred by section 5 of the Act of November 23, 1987, P.L. 399, no. 82, 75 Pa.C.S. §4581, effective immediately.

Plaintiff, Andrea Jones, suffered personal injury while a passenger in the automobile being operated by defendant, Angalene J. Madison, in an accident which occurred in Donora, Pennsylvania, on August 16, 1987, prior to the effective date of the 1987 amendments to the Child Passenger Protection Act.

In Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988), the Superior Court said this:

“Appellants contend that the trial court erred in finding that their request to amend, in order to plead a ‘seat belt defense,’ was contrary to a positive rule of law. Appellants cite to the decision in Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979), in support of their position that the availability of a ‘seat belt defense’ remains an open question in Pennsylvania. In Parise, a panel of this Court held that, in the absence of expert testimony demonstrating a causal connection between the plaintiff’s injuries and the plaintiff’s failure to wear a seat belt, it was not error on the part of the trial court to refuse to instruct the jury that the failure to use a seat belt could be evidence of contributory negligence on the issue of damages. . . . However, Parise also contained the following language with respect to the existence, per se, of a ‘seat belt defense’:

‘Our decision today should not be seen as foreclosing the possibility of a so-called “seat belt defense” in future cases. . . . [t]he New Jersey Superior Court said that it might have allowed the defendant a seat belt defense if he had introduced expert testimony showing a relationship between the plaintiff’s injuries and his failure to use seat belts (cites omitted) . . . That is our position.’ (emphasis supplied)

“Id. As such, it would appear that appellants are substantially correct in their assertions that the trial court’s decision to preclude amendment to plead a ‘seat belt defense,’ as contrary to law, was erroneous on the basis of the state of the law on March 31, 1986.

“However, a reviewing court may affirm the decision of the trial court if the result is correct on any ground, without regard to the grounds relied upon by the trial court. Butler v. DeLuca, 329 Pa. Super. 383, 478 A.2d 840 (1984). Moreover, it is well settled that an intervening change in the law must be applied to cases which are in the throes of direct appeal when the change occurs. Leland v. J.T. Baker Chemical Co., 282 Pa. Super. 573, 423 A.2d 393 (1980). We find that an intervening change in the law has occurred which mandates affirmance of the trial court’s denial of permission to amend.

“On November 23, 1987, the availability of a "seat belt defense’ in Pennsylvania, ceased to be an open question, with the passage of Act 82 of 1987. Section 5 of that Act amends the Child Passenger Protection Act, 75 Pa.C.S. §4581-85, to become the Occupant Protection Act. . . .

“As section 11 of Act 82 states that the amendments to section 102 and section 4581 ‘take effect immediately’ upon passage of the Act, we conclude that Act 82 of 1987: Act of November 23, 1987 is controlling, and precludes the amendment of appellants’ answer to plead a ‘seat belt defense’ in new matter as comparative negligence. Such amendment is now contrary to a positive rule of law, and cannot be permitted.”

In Grim v. Betz, supra, the automobile accident occurred on May 26, 1983, prior to the effective date of the 1987 amendments to the Child Passenger Protection Act. Plaintiff relies upon Grim v. Betz as their controlling authority that the “seat belt” defense cannot be raised by defendant.

However, in the case of Stouffer v. Commonwealth, Department of Transportation, 127 Pa. Commw. 610, 562 A.2d 922 (1989), the plaintiffs were injured when their automobile collided with the defendant Neuder’s automobile on January 18, 1985. On November 23, 1987, defendant Neuder sought leave to amend her new matter to raise the “seat belt” defense. The trial court denied the request on the basis that the failure to use seat belts was not a recognized defense in this Commonwealth. The Commonwealth Court vacated the trial court’s order and remanded for further proceedings. The Commonwealth Court based its decision on whether or not the 1987 amendments were to be applied retroactively, an issue not specifically raised in the Grim v. Betz case.

In arriving at its decision that the amendments could not be applied retroactively, the Commonwealth Court (Palladino, J. dissenting) said this:

“The Stouffers here argue that the present case is controlled by Grim. Neuder, on the other hand, argues that the Superior Court never discussed the question of the retroactive application of the 1987 amendments and viewing the question in terms of retroactivity leads to a conclusion that the amendment should be allowed.

“The question of ‘retroactive’ application of legislation is governed by the following concepts. ‘No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.’ 1 Pa.C.S. §1926. We have stated, ‘[WJhere [legislation] concerns merely the mode of procedure, it is applied, as of course, to litigation existing at the time of its passage. . .’ Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commw. 176, 183, 305 A.2d 757, 761 (1973) (citing Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 166, 110 Atl. 731, 732 (1920)). Although the line of demarcation between substance as opposed to mere procedure is indeed a hazy one, we have no hesitation in holding that a legislative determination that certain conduct cannot be considered in a negligence case is substantive and not mere procedure.

“No citation is required foi the well recognized concept that questions of duty in tort cases are questions of law. We do not dispute that the legislature can define duties in this regard. It is also beyond dispute that the courts can also decide what duties are in existence. Although we need not decide here if expert testimony is required to prove that the úse of seat belts affects the severity of injuries in auto accidents, we believe that at the time of this accident the Stouffers had a duty to wear the seat belts. See McKee. Given our view that at the time of this accident, there was a legal duty to wear seat belts and the 1987 amendments cannot be applied to this litigation, we can see no reason for not allowing the amendment to these pleadings.” Stouffer, supra.

A similar issue was presented in the case of Costa v. Lair, 241 Pa. Super. 517, 363 A.2d 1313 (1976), in which the Superior Court held that the Comparative Negligence Act which was effective on September 7, 1976 was not to be applied in any case in which the cause of action arose prior to that date.

The Superior Court said this:

“On September 24, 1985, the appellee filed an action in trespass against the appellant for personal injuries arising from an automobile accident which occurred on August 1, 1975. Although the appellee’s cause of action arose prior to the effective date of the recent act of the Pennsylvania General Assembly which adopted the doctrine of comparative negligence, the lower court ordered that the legislative act ‘. . .is hereby to be applied retroactively in this action; and alternatively ... if the [act] ... is declared to apply only prospectively, the judge-made common-law doctrine of the contributory negligence is hereby abrogated and the comparative negligence doctrine is to be applied to this case. . . .’ The appellant contends that the lower court erred by precluding her from asserting contributory negligence as a defense to the instant action. We reverse the orders of the lower court and hold that the law of comparative negligence is not to be applied to any case in which the cause of action arises prior to September 7, 1976, the effective date of the Comparative Negligence Act no. 152.

“After careful examination of the Comparative Negligence Act no. 152, we are convinced that the Act is to be applied prospectively rather than retroactively. There is no provision in the Act which indicates that it was intended to apply to causes of action arising prior to its passage. The Pennsylvania Supreme Court has stated it to be a fundamental rule of statutory construction that c. . . statutes, other than those affecting procedural matters, must be construed prospectively except where the legislative intent that they shall act retrospectively is so clear as to preclude all question as to the intention of the legislature (citations omitted).’ Farmers National Bank & Trust Co. v. Berks County Real Estate Co., 333 Pa. 390, 393, 5 A.2d 94, 95 (1939). This principle has been promulgated as law by our legislature in 1 Pa.C.S. §1926, which provides: ‘No statute shall [be] construed to be retroactive unless clearly and manifestly so intended by the General Assembly.’ It is also axiomatic that: ‘Retrospective laws may be supported when they impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted.’ Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960), quoting Barnesboro Borough v. Speice, 40 Pa. Super. 609, 612 (1909). To be applied retroactively, a statute must not affect a ‘substantive right.’ See Smith v. Fenner, supra.

“Prior to the effective date of the Act, a plaintiff was required to be free of any personal fault contributing to his injury in order to establish liability in a civil action for negligence. ‘Contributory negligence is a defense because it introduces into a case a new cause of plaintiff’s injury making defendant’s’ negligence no longer the legal cause.’ Elliott v. Philadelphia Transportation Company, 356 Pa. 643, 648, 53 A.2d 81, 83 (1947). Under the Act, however, a plaintiff whose negligence is less than that of the defendant is not precluded from recovery due to his contributory negligence, but is allowed recovery reduced by the proportion of his fault. Thus, if applied retroactively, the Act would create legal liability for damages which did not exist at the time the accident occurred.” Costa, supra.

Similarly, in the case at bar, there is no language which indicates that it was intended to apply to causes of action arising prior to its passage. Accordingly, the preliminary objections of plaintiff must be dismissed. However, this court recognizes there is substantial ground for difference of opinion and will so state in this order.

ORDER OF COURT

And now, July 9, 1990, the preliminary objections of plaintiff to new matter of the original defendants raising the “seat belt” defense are dismissed. This order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the matter.


author: BLAHOVEC, J.,

text:
    McLaughlin v. McLaughlin

      Michael J. Stewart, for plaintiff.

      H. Gervase Fajt Jr., for defendant.
    July 16, 1990
   BLAHOVEC, J.,

This matter comes before the court for hearing on a petition for bifurcation of proceedings filed on behalf of husband. Wife filed a complaint in divorce alleging that the marriage was irretrievably broken in June 1989, and an amended complaint in divorce in August 1989. Husband filed an answer to the amended complaint and counterclaims for divorce and equitable distribution in March 1990.

In March 1990 husband filed his affidavit of consent pursuant to section 201(c) of the Pennsylvania Divorce Code. Wife filed her affidavit of consent on April 26, 1990 although she now seeks to withdraw it. The economic issues in this matter are primarily unresolved. It should be noted that in addition to signing the affidavit of consent before a notary public on April 23, 1990, while represented by her present counsel, wife, while represented by previous counsel, signed a consent order on September 11, 1989 dealing with certain economic issues and agreeing that she would file her 201(c) affidavit of consent within five days of receiving notice that husband filed his.

Counsel for the parties stipulated that there has been a two-year separation for purposes of section 201(d) of the Pennsylvania Divorce Code even if wife is permitted to withdraw her affidavit of consent. It has been held that a party who files an affidavit of consent under 23 P.S. §201(c) may withdraw the consent prior to the entry of a divorce decree. Berman v. Berman, 33 D.&C. 3d 134 (1983). However, in the present case, if wife withdraws her affidavit of consent, she may well subject herself to contempt sanctions for violation of the order of September 11, 1989. In the present case, withdrawal of the affidavit is a moot point since counsel agree by way of a stipulation that there has been a two-year separation for purposes of section 201(d).

Wife opposes entry of a decree in divorce because: (1) discovery is not completed; (2) it would be potentially devastating to convert marital assets to a tenancy in common (parties own a $300,000 home free of encumbrances); (3) there is no proof that husband executed an assignment of a $100,000 insurance policy as required by the September 11, 1989 order; (4) husband must provide auto insurance and medical coverage; (5) wife is adverse on a personal and moral basis.

The case law requires that a determination as to bifurcation should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating should it grant the petition. Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359 (1983).

In the present case, substantial assets exist. That fact certainly does not indicate against bifurcation. Both counsel and their clients spent extensive time in meetings wherein financial information was exchanged. Extensive negotiations took place prior to the entry of the September 11, 1989 order wherein wife agreed to sign an affidavit of consent. About $360,000 worth of assets are frozen besides the marital residence. The court certainly believes that the economics of this matter can be adequately dealt with by able counsel for the parties with any necessary prodding available from the court. This court concludes that granting a divorce will not work to the detriment of the parties at this time.

Husband pays $2,500 per month alimony to wife who voluntarily abandoned her employment at Community College (which provided her $14,000 per year plus benefits). Husband pays medical insurance and auto insurance for wife. A condition of granting any divorce will be continuation of these payments in addition to assigning the cash value of the $100,000 insurance policy required by the September 11, 1989 order.

Wife testified that her religious and moral beliefs do not approve of divorce. She stated she absolutely does not believe the marriage is irretrievably broken, but rather that husband suffers from the disease of alcoholism. She did, however, consent to a court order requiring her to file a 201(c) affidavit while represented by one attorney. Then, she filed an affidavit of consent while represented by current counsel admitting under oath that the marriage is irretrievably broken.

Husband testified the parties last cohabited three years ago. He stated that prior to the parties’ separation on March 15, 1988, wife asked him to leave numerous times. He lives with and is in love with another woman. The court finds beyond any reasonable doubt that this marriage is irretrievably broken.

As Judge Strassburger stated in the case of Casey v. Casey, 129 Pitts. Leg. J. 42, 44 (1981):

“The goals of the Divorce Code can be accomplished only by the prompt dissolution of a marriage that is demonstrably over, and allowing the parties to restructure their lives. The goals cannot be accomplished by tying the parties to a dead marriage while all of the conflicts and time-consuming financial details are ligated. . .”

This court concludes there will be no economic disadvantage to wife who lives in the paid-for marital residence (where she has changed the locks) if a divorce is granted. Her alimony and insurance benefits will continue. The economic issues can certainly be resolved in due course by able trial counsel who have already met extensively in an effort to do so.

As the Superior Court noted in Wolk, supra:

“Bifurcation separates the termination of the marriage from the distribution of property so that the marriage and each party’s personal life are not held hostage to economic demands. To accomplish that end, it will be granted in this case.”

ORDER OF COURT

And now, July 16, 1990, after hearing, it is hereby ordered and decreed that the prayer of the petition for bifurcation of proceedings is granted. This court will enter a decree in divorce based on section 201(d) of the Divorce Code upon furnishing of the appropriate vital statistics information, military affidavit and other required documentation.

It is further ordered that this court retains jurisdiction of the economic issues. Defendant shall continue to pay alimony pendente lite and provide medical insurance and automobile insurance for plaintiff as provided in the order of Judge Marker dated September 11, 1989.

It is further ordered that prior to the entry of any decree in divorce defendant shall assign to plaintiff $100,000 of the cash value of the insurance policy referred to in paragraph 13 of the order of Judge Marker dated September 11, 1989 until resolution of the economic issues of this divorce action.


author: JOHNSON, J.,

text:
    Doherty v. The Travelers Insurance Co.

      Michael J. Colarusso, for plaintiff.

      John D. Newborg, for defendant.
    June 25, 1990
   JOHNSON, J.,

Plaintiff, Martin J. Doherty, commenced this action in declaratory judgment to recover underinsured/uninsured motorist benefits under a policy of insurance issued by defendant, The Travelers Insurance Company. (See plaintiff’s complaint, generally.)

Injured in an underlying one-car collision, plaintiff was a passenger in the vehicle of Travelers’ named insured when the driver lost control of the car, colliding with a wall. (Plaintiff’s complaint, paragraphs 4, 5 and 6.) Uninsured by any carrier of his own, plaintiff sought recovery of third-party liability benefits under the terms of the Travelers policy, and the $25,000 limit of coverage was offered and paid accordingly. (Plaintiff’s complaint, paragraph 11; defendant’s answer and new matter, paragraph 15; defendant’s motion for judgment on the pleadings and/or motion for summary judgment, paragraph 5.) Refusing, however, to accept the tendered sum as final payment of his claim, plaintiff alleged injuries in excess of $50,000, and now seeks additional coverage under the same policy for uninsured motorist benefits. (Plaintiff’s complaint, paragraphs 12 to 14; statement of matters complained of on appeal, count I, paragraph 1.)

Claiming coverage based on the alleged involvement of a second vehicle in events proximately preceding the accident, plaintiff alleged that an unidentified motorist, through indeterminate negligence, caused Travelers’ insured to lose control of her car. (Plaintiff’s complaint, paragraphs 6 and 8.) While no collision occurred between this unidentified motorist and Travelers’ insured, and further documentation does not appear of record, plaintiff asserted coverage under definition section 4 of the Travelers policy wherein an:

“Uninsured motor vehicle means a highway vehicle or trailer of any type: . . . which is a hit-and-run highway vehicle, if neither the driver nor the owner can be identified, which causes bodily injury to an insured by physical contact with the insured or a vehicle occupied by the insured. ” (Plaintiff’s complaint, exhibit A; emphasis in original.)

Undisputedly an insured under liability provisions of the policy, plaintiff asserted de facto coverage by the foregoing section, as the alleged second vehicle cannot be identified and plaintiff is otherwise uninsured. (See plaintiff’s complaint, generally.) Accordingly, he relies for his claim not on the “unde-rinsured” status of the car in which he was riding, but the legally “uninsured” status of the “phantom” car. (Statement of matters complained of on appeal, count I, paragraph 1.)

The pleadings now having been closed, both parties moved for judgment on the pleadings. Defendant asserts that public policy prohibits collection by a third-party insured of uninsured/underinsured benefits in conjunction with liability coverage under the same policy of insurance. Constrained to adopt the logic of appellate rationale so holding, this court granted defendant’s motion, and simultaneously denied that of plaintiff.

Now the subject of this appeal, such action is readily supported by aspects of the record of both pleading and substance. Initially, statutory considerations reveal plaintiff’s failure to plead a prima facie case, as requisite elements for maintenance of this type of action, fail to ¿ppear on the face of the record. The Motor Vehicle Financial Responsibility Law, in the definition corresponding to the policy provision on which plaintiff relies, provides that an “uninsured motor vehicle” may be:

“(3) An unidentified motor vehicle that causes an accident resulting in injury provided the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter, that the claimant or his legal representative has a legal action arising out of the accident.” 75 Pa.C.S. §1702. (emphasis supplied)

Plaintiff’s pleadings having failed to disclose whether the police were, in fact, summoned to document the occurrence, or within what time frame Travelers was notified, plaintiff’s claim for uninsured benefits is eviscerated, or converted at best to a claim for underinsurance, decidedly unenforceable under these circumstances. See Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 535 A.2d 1145 (1988).

While such a point may appear to elevate form over substance and plaintiff may so advocate, the underlying rationale of the statute serves the valid purpose of claim verification where, as in Pennsylvania, a contract of insurance cannot require physical impact to establish the legally uninsured status of the “hit and run” vehicle. Accord: Webb v. United Services Automobile Assn., 227 Pa. Super. 508, 323 A.2d 737 (1974). Accordingly, where impact can be neither required nor shown, the legislature has created standards of verification in pleading with which failure to comply, through even the most cursory of allegations, must be deemed unacceptable.

In addition, requirements of pleading notwithstanding, plaintiff’s action is without substantive merit. Whether viewed as a claim for uninsured motorist benefits based on the involvement of a “phantom” vehicle, or as a simpler claim for unde-rinsurance based solely on inadequate liability coverage, the same dispositive rationale must be held to apply. Simply stated, an unnamed beneficiary who shares no contractual privity with the vehicle’s insurer, and has paid no premiums for coverage, can harbor.no reasonable expectation that coverage will, in fact, be afforded under the policy of another named insured. Wolgemuth v. Harleysville Mutual Insurance Co., supra; Stolec v. State Farm Fire and Casualty Co., 380 Pa. Super. 492, 552 A.2d 296 (1988).

Indeed, while our law seeks the maximum restoration of every innocent party injured by the negligence of another, both legislative and judicial mandates direct that such restoration must occur within established parameters to assure the continued viability of an affordable and practical system of insurance for the policyholder himself. Wolgemuth, supra; see also, Legislative Journal — Senate, Vol. I, p. 1583, January 25, 1984; and Vol. Ill, p. 1148, October 4, 1983.

For the realization of that purpose, the legislature has provided, at 75 Pa.C.S. §1733, a priority of recovery that spreads amongst multiple policies the expense of a claimant’s damages. Wolgemuth, supra. As recently observed by our Superior Court in the analogous context of underinsurance:

“The language of the statute itself suggests that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance[;] . . . one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of liability coverage . . . and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy ... is insufficient to fully compensate the claimant for his injuries.” Wolgemuth, supra, (emphasis in original)

Equally applicable to the payment of uninsured motorist benefits, the Superior Court’s rationale reflects a circumspect analysis of the consequences of its action. As observed by the court en banc, collection of underinsurance benefits from the same policy under which liability coverage has already been obtained, would convert such additional benefits to excess liability coverage in derogation of the statutory scheme. Id. Accord: Newkirk v. United Services Auto. Assn., 388 Pa. Super. 54, 564 A.2d 1263 (1989). Convinced that the resulting extended liability of every single carrier “would necessarily effect an increase in the cost” of mandatory insurance coverage, the court limited a claimant’s recovery under a single policy of insurance to the statutory priority of section 1733, supra. Wolgemuth, supra.

Accordingly, a claimant seeking uninsured/unde-rinsured motorist benefits may recover not from the policy of primary liability coverage, but rather from a second policy under which he is insured or covered. Id. Accord: Newkirk, supra. Although where, as here, an unfortunate result may thus be engendered by plaintiff’s status as otherwise uninsured, the same cannot be made fodder for the destruction of a system which serves economically an entire class of beneficiaries.

Wherefore, this court was constrained to enter the order from which plaintiff now appeals.

       Plaintiff, in his statement of matters complained of on appeal, asserts in the denial of his motion an aspect of finality conferred by the simultaneous grant of defendant’s countermotion. Accordingly, plaintiff requested certification of a question for appellate review from the order denying his motion. As the issues to be presented in such an appeal are, however, identical to those presented in the instant appeal, certification would be inappropriate, and accordingly, has not been granted.


author: HOUSE, P.J.,

text:
    Megnin v. Martin

      David F. Megnin, in propria persona.

      Joseph Breman, for garnishee.
    October 17, 1990
   HOUSE, P.J.,

Before the court is a garnishment action filed on behalf of plaintiff in the above-captioned matter.

FACTS

This garnishment action arises from a judgment entered against defendant by a district magistrate in an action by plaintiff against defendant for unpaid counsel fees. Said fees were incurred by plaintiff during the course of his representation of defendant in a custody action commenced by William E. Martin against defendant Sondra B. Martin. A certified copy of the judgment obtained by plaintiff was filed and an execution process begun. Plaintiff now seeks to levy upon the monthly payments owed defendant by garnishee. Said payments arise out of an agreement executed by defendant and garnishee as part of their divorce proceedings. The agreement calls for monthly payments of $900 for 156 months (13 years) following the execution of the agreement dated May 15, 1980.

Defendant, pro se, objects to the garnishment of her monthly payments claiming that said payments are alimony and should, therefore, be exempt from garnishment. Garnishee has also filed, a brief as amicus curiae agreeing that the monthly payments, even if not entitled alimony, are nonetheless support payments and should not be subject to garnishment. As briefs have been submitted by all of the parties in this case, this matter now stands ready for disposition.

ISSUE

Are the $900 monthly payments from garnishee, William E. Martin, to defendant, Sondra B. Martin, subject to garnishment in execution of a judgment obtained by plaintiff, David F. Megnin, Esq., against said defendant?

DISCUSSION

The matter before the court consists solely of this garnishment action and does not include the various ancillary issues raised by defendant in her brief. The singular issue raised by this case is unique. Our research has disclosed virtually no applicable case law emanating from Pennsylvania’s higher courts and we have found little direction from the state legislature. Our sister courts have offered some guidance but it still appears that this issue is a rare and unique challenge.

Plaintiff claims that the monthly payments owed defendant by garnishee are merely a contractual debt and, therefore, are clearly subject to garnishment. It is undisputed that the garnishee is bound by his agreement dated May 15, 1980, to make monthly payments of $900 to defendant for 156 months following the date of execution of the agreement. This agreement was executed prior to the couple’s divorce and was never incorporated in nor referred to in the divorce decree. The decree divorcing garnishee and defendant was entered June 11, 1980, which was prior to the effective date of the present Divorce Code. Plaintiff contends that since the decree was entered under the Divorce Law of 1929, and since the divorce was not based on the grounds of insanity and was not a mere divorce from bed and board, the court would not and could not have awarded alimony in this case. Therefore, argues plaintiff, the monthly payments are merely an ordinary contractual debt and are subject to garnishment.

Defendant and garnishee contend that whether or not entitled “alimony,” the monthly payments from garnishee to defendant are obviously for support and are in the nature of alimony whether or not they are named as such. The court agrees. There is little doubt that the May 15, . 1980 agreement was drafted to expedite the couple’s divorce. The agreement states that, “For a period of 156 months following the execution of this Agreement, and in consideration of Wife relinquishing her claim for support from Husband, Husband will pay Wife the sum of $900 per month;. . .” Further, paragraph 10, section (c) of said agreement specifically states that it was the intention of the parties that the payments be considered alimony for tax purposes as has been the case from the execution of said agreement.

The agreement does state that if the wife, defendant, were to become gainfully employed her earnings would not affect or reduce husband garnishee’s obligation to make these payments. Defendant did not become gainfully employed on any regular basis and she alleges that she has relied and continues to rely solely on garnishee’s monthly payments for her support and maintenance.

The agreement which provides for the monthly support payments was not incorporated in or made a part of the divorce decree. It was referenced and relied upon in several other court proceedings concerning the garnishee’s support of his minor children. Therefore, based upon the particular circumstances of this case, whether entitled “alimony” or not, the monthly payments here involved were and are in the nature of support payments. The question then becomes whether or not such support payments are subject to a garnishment action.

As previously stated, the case law on this issue is sparse. Plaintiff relies on an 1888 Dauphin County case, Scheffer v. Boy, 5 Pa. C. 158 (1888). In that case a judgment for $128 was obtained against Elizabeth Boy. The creditor sought to attach the money held by Mrs. Boy’s ex-husband and due her solely as alimony. President Judge Simonton states:

“No case was cited and no principle was stated upon the authority or reason of which we could hold that the attachment would not lie in this case, nor have we been able to discover or think of any. The obligation of the garnishee to the defendant is in the nature of a debt of record. The amount is certain, the items of payment are fixed, and it is due by judgment or decree of court. We think, therefore, that the sums due are the subject of garnishment, and, in accordance with the terms of the case stated, we direct judgment to be entered in favor of plaintiff and against the garnishee for the sum of $128, with interest from October 13, 1887.” 5 Pa. C. at 159.

Though at first glance this case would appear dispositive, garnishee offers to the court the 1934 Allegheny County case, West Penn Hospital v. Swaney, 82 Pitts. Leg. J. 86 (1934). This case involved a divorce from bed and board wherein wife was awarded alimony. Wife incurred debts with both Atlantic Refining Company and West Penn Hospital. In August 1932 the creditors issued execution attachment on their judgments and they summoned the ex-husband as garnishee. Both wife and ex-husband objected to the garnishment of the alimony payments. To determine whether “alimony unpaid and in the hands of a husband who has been summoned as garnishee is subject to attachment by creditors of the wife,” 82 Pitts. Leg. J. at 87, the Allegheny County Court first defined alimony. The court cited the Pennsylvania Superior Court as stating, “Alimony is an allowance made to a wife, upon a decree of divorce, for maintenance, support and supply.” Betz v. Betz, 70 Pa. Super. 396, 402 (1918); 82 Pitts. Leg. J. at 87.

The Allegheny County Court then turned to the question of whether or not alimony was a debt like any other debt. The court cited the various financial arrangements exempt from attachment proceedings and concluded that “The theory of these exemption acts is the necessity of the thing or article to the owner in pursuit of his livelihood. Since alimony is a sum allotted to a wife for maintenance and support, the court is of the opinion that it is not a debt in the ordinary sense of the word.” 82 Pitts. Leg. J. at 88.

This court is mindful that the case at bar can be distinguished from the West Penn Hospital case in that the payments in the present' case were not court-ordered and perhaps would not have qualified as court-awarded alimony under then-existing law. The West Penn Hospital case involved a divorce from bed and board and the court did, indeed, award alimony in that case. Still, as previously stated, the monthly payments in the case at bar are clearly meant to be support payments and were just as clearly designed to support and maintain defendant as alimony. Certainly the support payments in the case at bar achieve the same result as alimony in that “[t]he acts granting alimony were enacted not merely for the protection of a wife, but also for the benefit of society, in placing the burden of support of wife upon the husband, where it belongs, rather than shifting it to society.” 82 Pitts. Leg. J. at 88. The monthly payments by garnishee were and are defendant’s sole support and without them defendant would most probably become another dependent addition to the state’s welfare rolls. Surely, then, these payments, serving the same purpose as alimony and achieving the same result, are, like alimony, “not a debt in .the ordinary sense of the word,” 82 Pitts. Leg. J. at 88.

Lancaster County had occasion to deal indirectly with these issues in Commonwealth v. Brenner, 29 D.&C. 353 (1937). That case involved a desertion and non-support action by the Commonwealth against the husband. Husband was ordered by the court to pay wife $3 per week. Husband was then named garnishee in a case against husband and wife by the Community Discount Company of Lancaster. The Lancaster County court determined that in this case creditors could not hold the husband liable for the amount of the support payments he was ordered to pay his wife. The court stated that though payment in this case was not ordered as alimony but was ordered as part of a quasi-criminal proceeding, to allow attachment would defeat the purpose of the order — said purpose being to keep wife from becoming a ward of the state.

The court is aware that the Brenner case might be distinguishable from the present case at bar in that the Lancaster County case involved debts incurred by the parties prior to the award of support. This issue was also raised in the West Penn Hospital case. In jurisdictions outside of Pennsylvania, the main distinction is between those cases where the debt was incurred before the award of alimony or support and those where the debt was incurred after the award. In those cases where the debt was incurred before the award of support, garnishment is prohibited. In those cases where the debt was incurred after the support award, the courts further distinguish between those debts for necessaries which are entitled to be collected from alimony or support payments and those debts for items other than necessaries which are not entitled to be collected from support payments.

In the Allegheny County case, West Penn Hospital, supra, the court determined that the debts were incurred prior to the award of alimony and that these debts might have been considered necessaries, yet the court still concluded that, “In the instant case the court is of the opinion that alimony in the hands of the husband and due the wife cannot be attached, particularly where the debts were antecedent to the award of alimony.” 82 Pitts. Leg. J. at 89. The court’s use of the word “particularly” implies that it believed that alimony in the hands of the husband and due the wife could not be attached even if the debt were incurred subsequent to the award of alimony or support. Based on the rationale of our sister .courts, and based also on the specific circumstances of the present case, we hold that the support payments in the case at bar are not subject to garnishment by plaintiff. The legislature would seem to agree.

The Pennsylvania legislature exempted from attachment:

“The wages, salaries and commissions of individuals . . . while in the hands of the employer . . . except upon an action or proceeding:

“(1) For support.

“(2) For board for four weeks or less.

“(3) Under the act of August 7, 1963 (P.L. 549, no. 290), referred to as the Pennsylvania Higher Education Assistance Agency Act.”

Also exempt are certain pension payments and retirement benefits as well as certain life insurance proceeds. It appears obvious that the legislature intended to exempt from attachment proceedings a person’s sole means of support to a degree that the indebted person would remain self-supporting and would not become a ward of the state. Though no direct mention is made concerning alimony or support, the court is here convinced that under the specific circumstances of this case, where garnishee’s support payments are defendant’s sole means of support, said payments are exempt from garnishment or attachment proceedings.

ORDER OF COURT

And now, October 17, 1990, upon consideration of the garnishment action initiated by plaintiff in the above-captioned matter, the briefs and arguments of the parties pursuant thereto, the record in this matter, and for reasons contained in the annexed opinion, it is hereby ordered, adjudged and decreed that the garnishment action initiated by plaintiff be and hereby is denied and dismissed.


author: WETTICK, J.,

text:
    Wikert v. Kleppick

      H. Fred Mercer III, for plaintiff.

      Keithley D. Mulvihill, for defendant.
    July 17, 1990
   WETTICK, J.,

The issue in this case involves the standard of care that tort law will impose in a personal injury action brought against a participant in a sporting event.

In this case, plaintiff was injured while participating in a deck hockey game when defendant struck plaintiff in the face with his hockey stick after plaintiff inadvertently collided with defendant. In count one of his original complaint, plaintiff raised an assault and battery claim through allegations that defendant deliberately and intentionally struck plaintiff with the purpose of inflicting injury and harm. In count two of his original complaint, plaintiff raised a negligence claim through allegations that his injuries resulted from defendant’s failure to exercise reasonable care and control under the existing circumstances.

Defendant filed preliminary objections in the nature of a demurrer to count two. I sustained these preliminary objections on the basis of Pennsylvania appellate court case law holding that a participant assumes the reasonable risks inherent in the game. Bowser v. Hershey Baseball Assoc., 357 Pa. Super. 435, 516 A.2d 61 (1986); Johnson by Johnson v. Walker, 376 Pa. Super. 302, 545 A.2d 947 (1988). I was also aware that the case law in other jurisdictions almost consistently bars recovery for breach of a duty of reasonable care against participants in contact sports either on the ground that participants do not owe a duty of reasonable care to other participants or that participants have consented, by their participation, to injury-causing events arising out of the failure to exercise reasonable care. See J. Riffer, Sports and Recreational Injuries, §2.01 (Pocket Part 1989); Turcotte v. Fell, 502 N.E.2d 964 (N.Y. 1986), and cases cited therein.

Plaintiff filed an amended complaint which raised a second count based on allegations that plaintiff’s injuries resulted from conduct which constituted a reckless disregard for plaintiff’s safety. Defendant has filed preliminary objections in the nature of a demurrer to this amended count that are the subject of this opinion and order of court.

Most other jurisdictions that have considered personal injury claims arising out of participation in a contact sport have held that a player — while owing no duty of reasonable care — is required to refrain from conduct which constitutes a reckless disregard for the safety of the other players. Such reckless disregard arises when the act created a strong likelihood that harm would ensue, the player intended to commit the act, and the act was outside the rules and customs of the game. This standard was first adopted in 1975 in Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975). Cases that have subsequently applied this standard include Hackbart v. Cincinnati Bengals Inc., 601 F.2d 516 (10th Cir. 1979), cert. den. 444 U.S. 931 (1979); Novak v. Lamar Ins. Co., 488 So.2d 739 (La. Ct. App. 1986); Bourque v. Duplechin, 331 So.2d 40 (La. Ct. App. 1976); Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989); and Ross v. Clouser, 637 S.W.2d 11 (Mo. 1982). But see, Hanson v. Kynast, 526 N.E.2d 327 (Ohio Ct. App. 1987), in which the court held that a cause of action exists only for an intentionally inflicted injury not arising out of the ongoing conduct of the sport.

Most of the cases applying the reckless disregard standard permit recovery on the basis of the breach of a duty to refrain from conduct constituting a reckless disregard for the safety of others that a player owes to other players in the event.

“Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation, yet it must be recognized that reasonable controls should exist to protect the players and the game. Balancing these seemingly opposite interests, we conclude that a player’s reckless disregard for the safety of his fellow participants cannot be tolerated. If a plaintiff pleads and proves such recklessness, he may seek relief for injuries incurred in an athletic competition.” Ross v. Clouser, supra, 637 S.W.2d at 14.

Other courts justify the use of this standard through an assumption of the risk analysis:

“Duplechin was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players. This duty was breached by Duplechin, whose behavior was, according to the evidence, substandard and negligent. Bourque assumed the risk of being hit by a bat or a ball. . . . Bourque may also have assumed the risk of an injury resulting from standing in the base path and being spiked by someone sliding into second base, a common incident of softball and baseball. However, Bourque did not assume the risk of Duplechin going out of his way to run into him at full speed when Bourque was five feet away from the base. A participant in a game or sport assumes all of the risks incident to that particular activity which are obvious and foreseeable. A participant does not assume the risk of injury from fellow players acting in an unexpected or unsportsmanlike way with a reckless lack of concern for others participating.” Bourque v. Duplechin, supra, 331 So.2d at 42.

Pennsylvania appellate courts have not addressed the standard of care that will govern personal injury actions against a player in a contact sport. Defendant, however, contends that the Pennsylvania case law has foreclosed the use of a reckless disregard standard of care because of statements in opinions that there are no degrees of negligence in Pennsylvania law. This contention is without merit for at least two reasons.

First, reckless misconduct is not a degree of negligence. Comment (g) of section 500 of the Restatement (Second) of Torts does not refer to reckless misconduct as a different degree of negligence but, instead, as a different type of misconduct. “The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.” Thus, statements that there are no degrees of negligence in Pennsylvania does not mean that Pennsylvania does not distinguish between negligence and reckless misconduct. In fact Pennsylvania law makes a clear distinction between negligence and reckless disregard for the safety of others. In Krivijanski v. Union Railroad Company, 357 Pa. Super. 196, 515 A.2d 933 (1986), the court concluded that the Comparative Negligence Law does not apply where the defendant’s conduct constitutes a reckless disregard for the safety of others as defined by the Restatement (Second) of Torts §500 because of “the longstanding distinction Pennsylvania courts have made between willful or wanton conduct and negligent conduct.” Also see, Stubbs v. Frazer, 308 Pa. Super. 257, 454 A.2d 119 (1982) (“Wanton conduct Ms something different from negligence however gross — different not merely in degree but in kind, and evincing a different state of mind on the part of the tort-feasor. . . .’ ”); and Fugagli v. Camasi, 426 Pa. 1, 229 A.2d 735 (1967) (plaintiffs contributory negligence does not prevent recovery from injuries caused by conduct of defendant constituting a reckless disregard for plaintiff’s peril.)

Second, this court rejected count two of plaintiff’s initial complaint because we concluded that Pennsylvania law did not permit recovery based on the breach of a duty of reasonable care. In his amended count two, plaintiff is not basing his claim on a higher degree of negligence — his claim rests on the breach of a lesser duty of care.

This distinction — while arguably only a difference in semantics — is significant. Pennsylvania law does not recognize different degrees of negligence because it favors an analysis that considers the standard of care rather than the degree of negligence. While this is simply a different way of addressing the issue, this is what is meant by the statement that there are no degrees of negligence in Pennsylvania. This is clearly expressed in an opinion of Mr. Justice Flaherty in Ferrick Excavating v. Senger Trucking Co., 506 Pa. 181, 484 A.2d 744 (1984), upholding the use of different standards of care for different types of bailments. This opinion explained that Pennsylvania law does not recognize degrees of negligence because tort law is concerned with the standard of care that governs a claim — not the seriousness of the negligence. This opinion cited with approval the discussion by the Harper and James treatise on torts (II, The Law of Torts (1956 ed.)) addressing the use of different standards of care. We believe that Pennsylvania law should follow the case law of other jurisdictions that almost uniformly allows recovery against a participant in a contact sport whose conduct constitutes a reckless disregard for the safety of the plaintiff. We are persuaded by the argument that this standard of care imposes appropriate controls to protect the participants without compromising the integrity of the contest.

This result is entirely consistent with the Pennsylvania appellate court cases that have considered the claims of participants injured in athletic events. The plaintiff’s claims have been dismissed either because the plaintiff has failed to describe conduct that would constitute a breach of a duty of reasonable care (Johnson by Johnson v. Walker, supra) or because the injury resulted from a voluntary exposure to a reasonable risk inherent in the event (Bowser v. Hershey Baseball Association, supra). Also see, Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Iervolino v. Pittsburgh Athletic Co., 212 Pa. Super. 330, 243 A.2d 490 (1968); and Taylor v. Churchill Valley Country Club, 425 Pa. 266, 228 A.2d 768 (1967). These opinions have consistently emphasized that the injuries resulted from reasonable risks inherent in the game.

If our appellate courts continue to use the assumption of the risk analysis for claims for injuries caused by participants in athletic events, defendant’s preliminary objections in the nature of a demurrer to plaintiff’s amended count two cannot be sustained unless the appellate courts rule that as a matter of law in every case the participant injured in the athletic event assumed all risks arising from conduct that constitutes a reckless disregard for the safety of other players. We are aware of no case law which suggests that our appellate courts will conclusively presume that every participant in every instance has assumed such risks.

ORDER OF COURT

On this July 17, 1990, it is hereby ordered that defendant’s preliminary objections are overruled. This matter shall be heard by a board of arbitration on October 5, 1990 at 9:00 a.m.

      . The question of whether the law will recognize a sports injury claim against another participant for conduct that does not constitute an assault and battery may raise issues of insurance coverage. Many homeowners’ policies include exclusions for intentional misconduct. The language of these exclusions may not reach reckless misconduct. See, e.g., United Services Automobile Assoc, v. Elitzky, 358 Pa. Super. 362, 517 A.2d 982 (1986).

      . Comment (f) to the Restatement (Second) of Torts §500 discusses the difference between reckless conduct and an intentional wrongdoing. While both require that the actor intended to engage in the conduct that caused the injury, the reckless actor did not intend to cause the harm that resulted.
      ■ Comment (g) to the Restatement (Second) of Torts §500 discusses the difference between reckless conduct and negligent behavior. The reckless actor should have recognized the strong likelihood that the harm would result while the negligent actor only created a possibility that harm would ensue.

      . Defendant’s contention that there is no precedent in Pennsylvania tort law for distinguishing between negligent conduct and conduct constituting a reckless disregard for the safety of others also overlooks established Pennsylvania tort law governing the duty that a landowner owes to a trespasser to refrain from willful or wanton misconduct. See Antonace v. Ferri Contracting Co. Inc., 320 Pa. Super. 519, 467 A.2d 833 (1983), and cases cited therein.


author: PRATT, J.,

text:
    Collier v. Ryan

      Matthew T. Mangino, for plaintiff.

      Samuel P. Kamin, for defendant Pennsylvania Turnpike Commission.
    October 22, 1990
   PRATT, J.,

Defendant Pennsylvania Turnpike Commission raises a number of pretrial preliminary objections to plaintiff’s complaint.

Defendants Anthony A. Ryan and Beverly C. Ryan leased certain land along the Mahoning River in Union Township, Lawrence County, Pennsylvania, owned by the Pittsburgh and Lake Erie Railroad Company. Allegedly plaintiff, Byron Collier, in June 1989 orally agreed with the Ryans that the plaintiff would remove, at $1 per ton, all of the slag contained on the property in question. Plaintiff removed and paid for 5,815 tons of the estimated two million tons of slag reported to be on the property before he was prevented.from removing any more of the slag by defendant Anthony Ryan. Part of the subject land was located directly in the path of a right of way being acquired by the PTC by condemnation proceedings pending at no. 63 of 1990, M.D., Lawrence County, pursuant to its eminent domain authority, for the purpose of constructing a bridge.

Plaintiff’s complaint seeks, in count one, recovery of money damages from the Ryans for breach of the alleged oral contract. Count two seeks recovery of money damages for alleged fraudulent misrepresentation by the Ryans to the PTC. Specifically, plaintiff alleges that the Ryans represented to the PTC that they, the Ryans, were the sole operators of the slag-mining activities on the subject property. Count two further seeks recovery of money damages from the PTC, based on the theory of negligence and fraud, for its alleged failure to conduct a proper investigation to reveal all ownership interests prior to commencement of the eminent domain proceedings.

The PTC has demurred to plaintiff’s complaint based on the defense of sovereign immunity under 42 Pa.C.S. §§8521 to 8528, and exclusive jurisdiction under the Eminent Domain Code, 26 P.S. §§1-101 to 1-903. The other preliminary objections by the PTC are in the nature of petition asserting non-joinder of an indispensable party, petition asserting misjoinder of cause of action, petition raising the question of subject-matter jurisdiction, motion for more specific pleadings, motion to strike for non-conformity to law and petition raising pendency of prior actions. These preliminary objections will not be addressed, as the court, for the reasons which follow, will grant the demurrer and dismiss the plaintiff’s complaint against the PTC based on sovereign immunity and exclusive jurisdiction.

DISCUSSION

The PTC argues that, since this case does not fall within any exceptions, plaintiff’s cause of action against it as a Commonwealth entity is completely barred by sovereign immunity. Plaintiff counters by contending that the case of Bissett v. Pennsylvania Game Commission, 27 D.&C. 3d 578 (1983) expands the scope of the exceptions enumerated in 42 Pa.C.S. §8522(b) to allow the plaintiff’s cause of action against the PTC. Plaintiff also asserts that, notwithstanding Bissett, supra, the exception found at 42 Pa.C.S. §8522(b)(4) is applicable to this case. We disagree with plaintiff’s claims.

We have examined the holding in Bissett v. Pennsylvania Game Commission, supra, and find it to be of no assistance to plaintiff. The issue in Bissett was whether there existed a “dangerous condition of Commonwealth real estate” as required by 42 Pa.C.S. §8522(b)(4). Bissett at 582. The Bissett court found that a dangerous condition existed for purposes of 42 Pa.C.S. §8522(b)(4) and, accordingly, denied defendant Pennsylvania Game Commission’s motion for summary judgment on the grounds of sovereign immunity. The question in Bissett, which is relevant to the instant case, was not whether defendant Game Commission’s property was Commonwealth-owned real estate. Thus, the Bissett case is very much distinguishable from the case presently before this court.

The exception contained in 42 Pa.C.S. §8522(b)(4) waives the sovereign immunity defense for claims in negligence for damages caused by:

“(4) Commonwealth real estate, highways and sidewalks — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).” 42 Pa.C.S. §8522(b)(4).

This exception is applicable only to real property owned or leased by the Commonwealth. Thus, the threshold inquiry in determining whether the exception applies is whether the Commonwealth owned or leased the real property in question. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989); Davidow v. Anderson, 83 Pa. Commw. 86, 476 A.2d 998 (1984). Plaintiff in this case contends that the right of way attempted to be taken by the PTC by condemnation proceedings was actually Commonwealth-owned real property at the time of the alleged negligence by the PTC, because the PTC “had an interest” in the subject property by virtue of its intent to acquire the right of way. Plaintiff cites no law, at common law or by statute, in support of his proposition either in his brief or during oral argument. Additionally, we find no authority for the contention, and the record is devoid of any basis for this position. Plaintiff has, therefore, failed to establish that the PTC, a Commonwealth party or entity, had the required interest in the subject property at the time of the alleged negligence.

Plaintiff has also failed to establish, as required by 42 Pa.C.S. §8522(b)(4), that the damages for which he seeks recovery arise from a dangerous condition on the subject property. Again, the record contains no allegations or evidence of a dangerous condition.

Plaintiff fails to show that his cause of action comes within an exception to the sovereign immunity provision under 42 Pa.C.S. §8522; we must, therefore, sustain the PTC’s preliminary objections in the nature of a demurrer on the grounds that sovereign immunity bars plaintiff’s action against the PTC.

The PTC also argues that the Eminent Domain Code and the condemnation cause of action currently pending at no. 63 of 1990, M.D., supersedes and controls any claim plaintiff may have against the PTC. The PTC contends that the Eminent Domain Code provides exclusive jurisdiction of this matter as well as plaintiff’s sole remedy against the PTC. In support of its proposition, the PTC cites In re Condemnation by the Commonwealth of Pennsylva nia, Department of Transportation, 83 Pa. Commw. 184, 476 A.2d 579 (1984), app. after remand, 96 Pa. Commw. 68, 506 A.2d 1990 (1986). We agree.

Where property is damaged or taken for public purposes, the Eminent Domain Code is intended to provide a complete and exclusive procedure for relief of an aggrieved party. 26 P.S. §303; Dames v. Pottstown, 43 D.&C. 2d 315 (1967). The obvious legislative intent in enacting the Eminent Domain Code was to provide the exclusive procedure by which all eminent domain matters are governed. In re Condemnation by Commonwealth of Pennsylvania, Department of Transportation, supra.

This is the general rule to which two exceptions have been judicially recognized. The first exception applies where there has been a taking of a landowner’s property absent any prior declaration of taking pursuant to the Eminent Domain Code. Section 502(e) of the Eminent Domain Code provides that a landowner who suffers a compensable injury as a result of a condemnation without any prior declaration of taking may file a petition for the appointment of viewers. 26 P.S. §l-502(e). The courts have recognized the first exception for the landowner who seeks to challenge the validity of the taking but does not wish to proceed under this provision of the Eminent Domain Code. In this situation, the landowner may challenge the validity of the taking by invoking the court’s equitable powers in order to force the condemning authority to proceed with proper condemnation proceedings. St. Catherine Church v. Mountaintop Joint Sewer Authority, 58 Pa. Commw. 187, 427 A.2d 726 (1987); Ramad Realty Corp. v. Springettsbury Township Sewer Authority, 10 Pa. Commw. 1, 309 A.2d 80 (1973).

The second exception also applies where the condemning authority makes no prior declaration of taking. The landowner may elect to proceed under section 502(e) of the Eminent Domain Code or he may seek recovery of damages for a wrongful or unauthorized entry on the property in an action in trespass against the condemnor. Quaker City Gun Club v. City of Philadelphia, 99 Pa. Commw. 259, 572 A.2d 815 (1986); Deets v. Mountaintop Area J.S.A., 84 Pa. Commw. 300, 479 A.2d 49 (1984). If the landowner chooses to proceed under section 502(e) of the Eminent Domain Code, then he is deemed to have waived any action in trespass. Quaker City Gun Club v. City of Philadelphia, supra; Deets v. Mountaintop Area J.S.A., supra.

In the case sub judice, there has been a declaration of taking filed by the PTC and docketed at no. 63 of 1990, M.D. of this court. Therefore, neither of the two exceptions apply and the Eminent Domain Code provides exclusive jurisdiction as well as plaintiff’s sole remedy in this case. We note that plaintiff has filed a petition to intervene, opposed by the Ryans, in the petition for the appointment of viewers docketed at no. 63 of 1990, M.D. If plaintiff’s petition to intervene is denied, then the PTC has effected a taking without a prior declaration of taking as to plaintiff. In such a case, plaintiff may have a cause of action, not sounding in negligence, in trespass against the PTC for unauthorized entry. Quaker City Gun Club v. City of Philadelphia, supra; Deets v. Mountaintop Area J.S.A., supra.

For the foregoing reasons, defendant’s preliminary objections in the nature of a demurrer will be sustained on the grounds of sovereign immunity and exclusive jurisdiction of the Eminent Domain Code, and an appropriate order will be entered.

Now, October 22, 1990, for the reasons contained in the accompanying opinion, the preliminary objections in the nature of a demurrer by defendant Pennsylvania Turnpike Commission are sustained, and plaintiff’s complaint against said defendant is dismissed. All remaining preliminary objections by defendant Pennsylvania Turnpike Commission are declared moot.


author: GILBERT, Member,

text:
    In re Anonymous No. 24 D.B. 89
    August 8, 1990
    Disciplinary Board Docket no. 24 D.B. 89.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GILBERT, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with regard to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

On March 20, 1989, the Office of Disciplinary Counsel filed a petition for discipline on [respondent]. The petition alleged that respondent had violated numerous Disciplinary Rules and two Rules of Professional Conduct in the course of his representation of [A] in an estate matter.

Respondent failed to file an answer to the petition for discipline. On July 21, 1989, a hearing on the matter was held before Hearing Committee [ ], which consisted of [ ].

On October 19, 1989, the Office of Disciplinary Counsel filed a petition to reopen the record in light of the October 11, 1989 final disposition of a separate disciplinary matter involving respondent, docketed at no. 40 D.B. 88. By Supreme Court order dated October 11, 1989, respondent was suspended from the practice of law for a period of two years. (Petitioner’s exhibit 16.)

On November 6, 1989, Hearing Committee [ ] ordered that the record in the instant matter be reopened for the purpose of receiving into evidence the record of discipline imposed upon respondent on October 11, 1989. (Administrative exh. I).

On November 17, 1989, a hearing was held before Hearing Committee [ ] on the petition to reopen the record. Respondent appeared pro se at the hearing, while petitioner was represented by Assistant Disciplinary Counsel [ ], and [ ].

On April 4, 1990, Hearing Committee [ ] filed its report on the hearings held on July 21, 1989 and November 17, 1989. The committee unanimously recommended that respondent be suspended from the practice of law for a period of one year, to run consecutively with the two-year suspension ordered by the Supreme Court of Pennsylvania on October 11, 1989.

The instant matter was adjudicated at the May 1990 meeting of the Disciplinary Board of the Supreme Court of Pennsylvania.

FINDINGS OF FACT

We adopt the findings of fact outlined in the hearing committee report.

Generally

(1) That the respondent at the time of the hearing was 54 years of age and was admitted into practice in the Commonwealth of Pennsylvania in 1974. (N.T. 55.)

(2) That at all times relevant to the charges herein at issue, respondent was the sole practitioner with offices located at the [ ], with his post office box being [ ]. (N.T. 54.)

Charge I

(3) That on or about November 15, 1986, [B] died testate, a resident of [ ] County, possessed of personal property only, in the form of various stock certificates. (N.T. 16.)

(4) That in January 1987, [A], decedent’s nephew, sole heir, and the executor named in the will, discussed with respondent the possibility of retaining his services in handling the administration of the estate. Subsequently, on April 2, 1987, a petition for letters was filed. (N.T. 16-7.)

(5) That respondent, as the attorney identified on the petition, and [A] appeared at the Register of Wills Office, [ ] County, and filed a petition for probate and grant of letters, which was granted on said date. (N.T. 17-8; petitioner’s exh. 13.)

(6) That steps were taken to advertise the decedent’s death and the grant of letters testamentary. (N.T. 18.)

(7) That respondent and [A] opened an estate checking account at [C] National Bank, [ ] Office, on which account both respondent and [A] had signatory authority. (N.T. 19.)

(8) That [A] deposited approximately $50 into the account to open it. (N.T. 19.)

(9) That it was agreed that the bank statements and notices would be directed to respondent at his office, and that respondent would maintain possession of the checkbook. (N.T. 19.)

(10) That it was also agreed that the proceeds from the liquidation of decedent’s personalty would be deposited into the account.

(11) That [A] turned over to respondent’s possession for immediate liquidation approximately 40 shares of stock in [D], and approximately 12 shares of stock in subsidiaries of [D]. (N.T. 20.)

(12) That respondent did not provide [A] with a receipt or itemization for the shares of stock left in his possession. (N.T. 20-1.)

(13) That thereafter, no further steps were taken by respondent to prepare or file an inventory of the assets of the estate, an inheritance tax return, or any other documentation needed to conclude the administration of the estate. (N.T. 21-9; petitioners exh. 5, 5(a), 5(b).)

(14) That between April and mid-October 1987, [A] telephoned respondent’s office from time to time to inquire about the status of the estate.

(15) That respondent was never available to accept his calls. (N.T. 23-32.)

(16) That each time [A] left call-back messages with respondent’s staff and each time respondent failed to return [A’s] calls. (N.T. 23-32.)

(17) That in mid to late October 1987, the stock market took a substantial downturn and, precipitated thereby, [A] increased his efforts to reach respondent by telephone to inquire about the anticipated liquidation of the stock certificates left with respondent in April 1987. (N.T. 22-3.)

(18) That sometime before the end of October, [A] did reach respondent by telephone, wherein respondent indicated that the certificates had been sold by him prior to the “crash” and that he should be getting the proceeds in about a week. (N.T. 22.)

(19) That in fact, respondent had not sold the stock at the time he informed [A] as stated in finding of fact no. 18. (N.T. 28.)

(20) That respondent was aware of the falseness of the above finding at the time made and never advised [A] as to the falseness and misrepresentation regarding disposition of the certificates of stock, nor did respondent take steps to liquidate the stock or return the certificates to [A]. (N.T. 28.)

(21) That by letter to respondent dated October 22, 1987, the Department of Revenue advised of the delinquent status of the [B] estate and extended a “10-day courtesy period” to permit respondent to file an inheritance tax return. (N.T. 36-8; petitioner’s exh. 4, 6, 6(a).)

(22) That respondent did not respond to the notice letter nor did respondent file an inheritance tax return on behalf of the estate, nor did respondent contact [A] regarding the receipt of the notice letter. (N.T. 36-8; petitioner’s exh. 6, 6(a).)

(23) That in April 1988, [A] directed to respondent a certified letter wherein he specifically sought communication on the disposition of the stock certificates and/or proceeds therefrom, and settlement of the estate. (N.T. 25-7; petitioner’s exh. 5, 5(a), 5(b).)

(24) That included with the letter was a copy of an April 5, 1988 delinquency notice [A] had received from the Department of Revenue concerning the failure to file an inheritance tax return. (N.T. 25-7; petitioner’s exh. 6.)

(25) That the return receipt card attached to [A’s] letter to respondent was signed on April 21, 1988, by [E], respondent’s office secretary. (Petitioner’s exh. 5(b).)

(26) That [A] indicated in the letter that he would bring this matter to the Disciplinary Board’s attention if he did not hear from respondent. (N.T. 24; petitioner’s exh. 5.)

(27) That respondent failed to respond to [A’s] letter.

(28) That thereafter, by certified letter to respondent dated November 10, 1988, the Department of Revenue advised him of a petition citation and order which had been issued regarding the delinquent status of the estate. The return date indicated in the order commanded that the executor appear to “show cause” on December 9, 1988. (Petitioner’s exh. 6.)

(29) That the return-receipt card attached to the November 10 correspondence to respondent was signed on November 17, 1988 by [E], respondent’s office secretary. (Petitioner’s exh. 6(a).)

(30) That respondent failed to contact [A] regarding the letter, or to otherwise take corrective action.

(31) That on or about December 1, 1988, [F], Esq., attempted to contact respondent by telephone on behalf of [A] regarding the [B] estate. (N.T. 29-32.)

(32) That respondent was not available to receive [F’s] telephone call and [F] left a call-back message with respondent’s staff, but respondent failed to return the call. (N.T. 29-31.)

(33) That on or about December 5, 1988, [F] directed a letter to respondent requesting that he turn over [A’s] file on the [B] estate, particularly in light of the citation hearing scheduled in Orphans’ Court for December 9, 1988. (Petitioner’s exh. 7.)

(34) That in early December, respondent dropped off [A’s] file at Attorney [F’s] office. (N.T. 31.)

(35) That the Disciplinary Board accepted in evidence at the first hearing all of the petitioner’s exhibits and the same were admitted without any objections and the same were found to be relevant after considering the sporadic objections by respondent, as most of the exhibits were not objected to by respondent, and, therefore, were considered by the board in total for purposes of this decision.

(36) That the respondent had been subject to an informal admonition administered to him on December 30, 1981, at complaint file no. [ ], as a result of a finding of a violation of Disciplinary Rule 6-101(a)(3). (Petitioner’s exh. 9.)

(37) That respondent was subjected to an informal admonition administered to him on October 18, 1982, at complaint file no. [ ], a result of a violation of Disciplinary Rule 2-106 and Disciplinary Rule 9-102(B)(4). (Petitioner’s exh. 10.)

(38) That respondent had been subject to an informal admonition administered to him on February 28, 1983, at file no. [ ], as a result of a violation of Disciplinary Rule 6-101(A)(3). (Petitioner’s exh. 11.)

(39) That respondent was the subject of record to a private reprimand administered on March 9, 1984, at file no. [ ], as a result of violation of Disciplinary Rules 6-101(A)(3), 1-102(A)(4) and 9-102(B)(4).

(40) That respondent was subject of record of an informal admonition administered December 13, 1984, at file no. [ ], as a result of violation of Disciplinary Rule 9-102(B)(4). (Petitioner’s exh. 13.)

(41) That respondent graduated from the University of [ ] in 1960 and [ ] Law School in 1973. (N.T. 55.)

(42) That respondent subsequent to his college

examination and entrance to [ ] Law School,

worked as an electrical engineer for the [ ] Company. (N.T. 56.)

(43) That respondent was admitted to practice law in the Commonwealth of Pennsylvania and was a sole practitioner, which constituted his full-time occupation. (N.T. 56-7.)

(44) That subsequent to the initial hearing of the hearing committee, which occurred on July 21, 1989, a Supreme Court order dated October 11, 1989, was handed down involving final discipline of a matter involving discipline which was entered against respondent in regard to a petition for discipline at no. 40 D.B. 88, which order suspended the respondent from the practice of law in the Commonwealth of Pennsylvania for a period of two years. (N.T. 14-5; petitioner’s exh. 16.)

CONCLUSIONS OF LAW

Respondent’s conduct in the instant matter is in violation of the following Disciplinary Rules and Rules of Professional Conduct:

(a) D.R. 1-102(A)(4) — dealing with a lawyer engaging in conduct involving misrepresentation;

(b) D.R. 1-102(A)(6) — dealing with conduct that adversely reflects on a lawyer’s fitness to practice law;

(c) D.R. 6-101(A)(3) — dealing with a lawyer neglecting a legal matter entrusted to the lawyer;

(d) D.R. 7-101(A)(l) — dealing with a lawyer intentionally failing to seek the lawful objectives of a client through reasonably available means;

(e) D.R. 7-101(A)(2) — dealing with a lawyer intentionally failing to carry out a contract of employment entered into with a client for professional services;

(f) D.R. 7-101(A)(3) — dealing with a lawyer intentionally prejudicing or damaging a client during the course of the professional relationship;

(g) D.R. 9-102(B)(3) — requiring a lawyer to maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and to render appropriate accounts to the client regarding them;

(h) R.P.C. 1.3 — dealing with a lawyer’s duty to act with reasonable diligence and promptness in representing a client; and

(i) R.P.C. 1.4(a) — dealing with a lawyer’s duty to keep a client informed about the status of a matter and to comply with reasonable requests for information.

DISCUSSION

The Disciplinary Board has before it two issues: first, whether respondent’s conduct in the instant matter has violated any Disciplinary or Professional Conduct Rules; and, second, what, if any, disciplinary sanction should be imposed on respondent.

Petitioner bears the burden of proving, with clear and convincing evidence, that respondent’s conduct has violated the Pennsylvania disciplinary code. See Pa.R.D.E. 203. The gravamen of respondent’s alleged misconduct is his willful failure to take any action on behalf of his client and his subsequent misrepresentations about his inaction.

Complainant [A] testified at the July 21, 1989 hearing that he had retained respondent to assist him in his role as executor of his aunt’s estate. (N.T. 17.) [A] told the hearing committee that he and respondent had opened an estate checking account, and that respondent had taken possession of the checks for the account. (N.T. 19.) [A] testified that he gave respondent his aunt’s stock certificates, which constituted the entire estate, for which respondent failed to provide a receipt. (N.T. 20-1.)

[A] testified that in the summer of 1987, several months after his aunt’s death, respondent told him he had sold the stock and would be sending [A] the proceeds of the sale. (N.T. 23.) Respondent failed to send [A] the sales proceeds because he had not sold the stock as he had claimed.

From October 1987 through the beginning of 1988, respondent failed to communicate with [A]. On April 18, 1988, [A] sent a letter by registered mail in which he threatened respondent with disciplinary action if he continued to refuse to complete the settlement of the estate. (Petitioner’s exh. 5). Respondent’s office did sign and return the receipt card of this letter. At the same time [A] sent the respondent a copy of an April 15, 1988 notice of delinquency he had received for the estate from the Internal Revenue Service.

Respondent continued to fail to take any action on the matter and [A] retained new counsel, who requested and received the estate file just in time for a December 1988 court appearance. (N.T. 28; petitioner’s exh. 7.)

The estate was finally settled more than one year after [A’s] aunt’s death. It is to be noted that even with the decline in the stock market of October 1987, [A] earned a $300 profit on the sale of the stock from the estate. (N.T. 34.) None of [A’s] testimony was controverted, and respondent did not object to the introduction of petitioner’s exhibits into evidence.

It is clear from the complainant’s uncontroverted testimony and petitioner’s unchallenged exhibits that respondent’s conduct in the instant matter violated all of the Disciplinary and Professional Conduct Rules as charged. He willfully failed to take any action on a simple estate matter, despite his possession of the authority necessary to make settlement. He knowingly misrepresented the status of the case to his client and simply became incommunicado when he no longer wished to have any further dealings with [A]. Although respondent was aware of his own failure to take any action on his client’s behalf, he failed to return [A’s] property until a request was made by new counsel. Based on the straightforward prima facie case outlined by petitioner and respondent’s failure to provide any satisfactory explanation for his conduct, we find he has violated the Disciplinary and Professional Conduct Rules as alleged in the petition for discipline.

Having determined that respondent is guilty of misconduct in the instant matter, the next question before the Disciplinary Board is the appropriate disciplinary sanction to be imposed. The record in the instant matter was reopened by hearing committee order so that the committee could consider, a final, independent disciplinary adjudication involving respondent. (Administrative exh. I.) On October 11, 1989 the Pennsylvania Supreme Court ordered respondent suspended from the practice of law for a period of two years. (Petitioner’s exh. 16.) Respondent’s suspension stemmed from violations of D.R. 1-102(A)(4); D.R. 6-101(A)(3); and D.R. 7-101(A)(2). (Petitioner’s exh. 15.)

Respondent’s two-year suspension is the latest entry into a long list of Disciplinary Rule violations. (See administrative exh. II.)

(a) In November 1981, respondent received an informal admonition, no. [ ], for violation of D.R. 6-101(A)(3). (Petitioner’s exh. 9.)

(b) In October 1982, respondent received an informal admonition, no. [ ], for violation of D.R. 2-106 and D.R. 9-102(B)(4). (Petitioner’s exh. 10.)

(c) In February 1983, respondent received an informal admonition, no. [ ], for violation of D.R. 6-101(A)(3). (Petitioner’s exh. 11.)

(d) In March 1984, respondent received a private reprimand, no. [ ], for violation of D.R. 6-101(A)(3), D.R. 1-102(A)(4), and D.R. 9-102-(B)(4). (Petitioner’s exh. 12.)

(e) In December 1984, respondent received an informal admonition, no. [ ], for violation of D.R. 9-102(B)(4). (Petitioner’s exh. 13.)

Respondent’s lengthy disciplinary record and his continued neglect of entrusted legal matters necessitate the imposition of a stringent disciplinary sanction, for apparently his repeated brushes with the Disciplinary Board have failed to illuminate the gravity of his misconduct.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that respondent be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year, to run consecutive to the two-year suspension from practice imposed on respondent by Supreme Court order dated October 11, 1989. The board recommends further that respondent be ordered to pay the costs of investigating and prosecuting this matter.

Ms. Heh did not participate in the adjudication.

ORDER

And now, October 3, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated August 8, 1990, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of one year, to run consecutive to the two-year suspension from practice imposed on respondent by Supreme Court order dated October 11, 1989, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.