author: O’BRIEN, J.,

text:
    DiBonaventura v. Baker

      C.P. of Monroe County,
    no. 6185 Civil 1997.

      Philip M. Hoz, for plaintiff.

      Matthew P. Keris, for defendant.
    December 10, 2001
   O’BRIEN, J.,

Plaintiff commenced this action seeking damages for personal injuries resulting from an automobile accident that occurred on March 18, 1996, in Jackson Township, Monroe County, Pennsylvania. The original defendant, who was operating one of the motor vehicles involved in the accident, has filed a complaint joining Jackson Township as an additional defendant in this proceeding. After discovery was completed, additional defendant Jackson Township has now filed a motion for summary judgment. Following the submission of briefs and oral argument, the additional defendant’s motion for summary judgment is now before the court for disposition.

The Pennsylvania Rules of Civil Procedure provide in pertinent part as follows:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. §1035.2.

A motion for summary judgment is only proper in those cases where the pleadings, depositions, answers to interrogatories, and admissions on file, along with the affidavits, and all other matters filed on the record demonstrate that there is no genuine issue of material fact, and that as a result the moving party is entitled to a judgment as a matter of law. Flannery v. Stump, 786 A.2d 255 (Pa. Super. 2001); J.H. ex rel. Hoffman v. Pellak, 764 A.2d 64 (Pa. Super. 2000); Frederick v. Action Tire, 744 A.2d 762 (Pa. Super. 1999); Weiner v. American Honda Motor Company, 718 A.2d 305 (Pa. Super. 1998); Grossman v. Rosen, 424 Pa. Super. 463, 623 A.2d 1 (1993). In deciding whether summary judgment is warranted and proper, the court must construe the facts on the record in a light that is most favorable to the non-moving party. The court must also resolve all doubts as to the existence of a genuine fact in favor of the non-moving party. Flannery, supra; Wendler v. Design Decorators Inc., 768 A.2d 1172 (Pa. Super. 2001); Frederick, supra; Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998); Kaller’s Inc. v. John J. Spencer Roofing Inc., 388 Pa. Super. 361, 565 A.2d 794 (1989).

In moving for summary judgment, Jackson Township states that there is no genuine issue of material fact in the cause of action against them, owing to the fact that they are immune from tort liability under 42 Pa.C.S. §8541. This statutory section is known as the Political Subdivision Tort Claims Act. Indeed, it is true that this Act stands for the proposition that the political subdivisions of this Commonwealth and their officers and employees are to be immune from civil liability for their actions. (“Except as otherwise provided in this subchap-ter, no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof.” 42 Pa.C.S. §8541.) It has long been held by the courts of this Commonwealth that a township is to be considered a local agency under this Act. Osborne v. Cambridge Township, 736 A.2d 715 (Pa. Commw. 1999), reargument denied, appeal denied, 563 Pa. 680, 759 A.2d 925 (2000), reconsideration denied, certiorari denied; Deluca v. Whitemarsh Township, 106 Pa. Commw. 325, 526 A.2d 456 (1987). In light of this, Jackson Township is therefore to be afforded all of the privileges and immunities provided for under this Act. However, this grant of immunity, by the legislature is by no means absolute. There exists several circumstances upon which a plaintiff can successfully espouse an action in tort against a township of our Commonwealth.

In the sixth paragraph of the joinder complaint, the original defendant alleges the following basis upon which Jackson Township should be held liable:

“(a) Negligently maintained roadways within the township’s possession and control so as to allow a dangerous accumulation of anti-skid material to remain in an inappropriate location;
“(b) Negligently applied anti-skid material in such a fashion that it accumulated and posed a danger to motorists;
“(c) Failed to remove anti-skid material such that a dangerous condition was allowed to persist;
“(d) Knew or should have known that the presence of an excessive quantity of anti-skid material would contribute to an accident such as that which occurred on March 18, 1996;
“(e) Failed to warn or otherwise alert motorists of the existence of excessive quantities of anti-skid material which would prevent them from safely stopping on approach to an intersection.”

While the defendant township has raised the immunity afforded by the Political Subdivision Tort Claims Act in “new matter” of their responsive pleading, counsel for the original defendant contends in their brief and at argument that the following exception to that Act is applicable to the township in this proceeding:

“(6) Streets.—
“(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
“(ii) A dangerous condition of streets owned or under the jurisdiction of Commonwealth agencies, if all of the following conditions are met:
“(A) The local agency has entered into a written contract with a Commonwealth agency for the maintenance and repair by the local agency of such streets and the contract either
“(i) has not expired or been otherwise terminated prior to the occurrence of the injury, or
“(ii) if expired, contained a provision that expressly established local agency responsibility beyond the term of the contract for injuries arising out of the local agency’s work.
“(B) The injury and dangerous condition were directly caused by the negligent performance of its duties under such contract.
“(C) The claimant must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542.

It.is undisputed that the defendant township entered into a written contract with the Commonwealth as contemplated by 42 Pa.C.S. §8542(6)(ii)(A) for the roadway on which this accident occurred.

The language of the Tort Claims Act clearly raises the shield of governmental immunity against any and all claims filed on account of an injury to a person or property caused by the actions of a local agency or an employee thereof. Lockwood v. City of Pittsburgh, 561 Pa. 515, 751 A.2d 1136 (2000); Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). By way of exemption to this general rule of governmental immunity, the Tort Claims Act provides that liability may be imposed only if the damages suffered by an injured party satisfy three basic requirements. The first requirement of this exception is that the injured party must have a claim that is normally recoverable at common law or by statute. The second requirement is that the complained of injury was the result of negligent acts of the local agency or an employee thereof. The third and final requirement states that in order for a political subdivision to be liable in tort, the negligent acts of the local agency must fall within one of the enumerated exceptions to the Tort Claims Act. Lockwood, supra; 42 Pa.C.S. §8542(a). These exceptions are listed at 42 Pa.C.S. §8542(b). Due to the clear legislative intent to insulate local governments from exposure to tort liability for any of its actions, the exceptions to the general rule of immunity are to be strictly construed. Lockwood, supra; Kiley, supra at 506, 645 A.2d at 186; Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989); Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988).

In Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995), our Supreme Court interpreted the sidewalk exception to the Political Subdivision Tort Claims Act. That provision makes an exception for “a dangerous condition of sidewalks” which is most similar to the language of the provision at issue in the case at bar, to wit “a dangerous condition of streets.” In Finn, supra, the plaintiff sued the City of Philadelphia for injuries she allegedly suffered when she slipped on an accumulation of grease on a city sidewalk. The Supreme Court found the city immune from such a claim and reasoned as follows: of [their] physical condition.” Jones v. SEPTA, 565 Pa. 211, 217, 772 A.2d 435, 441 (2001) (citing Finn at 602, 664 A.2d at 1345).

“We held that section 8542(b)(7) did not pierce the city’s immunity. Emphasizing the phrasing of the exception — ‘a dangerous condition of sidewalks’ — and its reference to the ‘installation and repair of sidewalks,’ we determined that the exception imposes liability for ‘the physical condition of the sidewalks themselves,’ not for ‘objects and substances upon sidewalks’ that ‘are not part

Recently, in Jones v. SEPTA, 565 Pa. 211, 220, 772 A.2d 435, 444 (2001), our Supreme Court found immunity under the Sovereign Immunity Act for a slip and fall caused by rock salt on a train platform. In discussing the relationship of the Sovereign Immunity Act and the Political Subdivision Tort Claims Act, the court observed:

“At this point, we revisit the precedent we previously discussed. Our decision in this case and our decision in Finn are entirely consistent. Here, as there, we focus on the ‘dangerous condition of’ phrase that the statutory exceptions in the Sovereign Immunity and Tort Claim Acts share respectively, and are guided by Snyder’s teaching. Thus, Finn’s essential holding that application of 42 Pa.C.S. §8542(b)(7) depends on the ‘legal determination that an injury was caused by a condition of the government realty itself deriving, originating from, or having the realty as its source,’ 664 A.2d at 1346, is identical to our present holding. This is as it should be, since the material words the General Assembly used in the Sovereign Immunity Act’s real estate exception mirror the material words it used in the Tort Claims Act’s sidewalk exception. 42 Pa.C.S §§8522(b)(4); 8542(b)(7).”

The streets exception at issue in the case at bar also includes the language, “dangerous condition of.”

In Brown v. B & B Construction of Ohio Inc., 1 D.&C.4th 606 (1988), the Court of Common Pleas of Mercer County interpreted the “streets” exception to the Political Subdivision Tort Claims Act. In that case, plaintiff’s claim was premised upon the presence of gravel on the roadway. The court upheld the immunity afforded to the local government body in that proceeding on the ground that the existence of gravel on the roadway did not constitute, “a dangerous condition of streets.” Although that decision predated the decisions of our Supreme Court referenced above, its rationale is still valid. Therefore, we conclude that the motion of the defendant township for summary judgment must be granted.

ORDER

And now, December 10, 2001, the motion of additional defendant Jackson Township for summary judgment is granted. Jackson Township is dismissed as a party in this proceeding.


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Terrick v. PNC Bank

      C.P. of Allegheny County,
    no. AR00-6044.

      Andrew G. Sykes, for plaintiff.

      Gregory A. Miller, for defendant.
    December 6, 2001
   WETTICK, J.,

Plaintiff’s petition for attorneys’ fees is the subject of this opinion and order of court. The issue raised through this petition is whether a board of arbitrators may consider a claim for counsel fees based on a statute which provides for a “court” to award counsel fees to the prevailing party.

Plaintiff filed a complaint in the arbitration division of this court for unpaid wages and supplements ($5,839.31) plus 25 percent liquidated damages ($1,459.31) and counsel fees. On June 11,2001, the board of arbitrators entered the following award:

“Award in favor of plaintiff and against defendant in the amount of $795.14 and no attorney fees or liquidated damage.” Neither party filed an appeal.

On July 23, 2001, plaintiff filed in the common pleas court a petition for attorneys’ fees accompanied by an affidavit in which plaintiff’s counsel avers that he spent 18.2 hours on the case and seeks $150 per hour ($2,730). Plaintiff contends that a judge must consider his petition because a board of arbitrators has no authority to award counsel fees.

The claims that plaintiff included in his complaint for liquidated damages and counsel fees are provided for in the Wage Payment and Collection Law. Under 43 P.S. §260.9a(b), an employee may maintain in any court of competent jurisdiction an action to recover unpaid wages and liquidated damages. Under 43 P.S. §260.9a(f), the “court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys’ fees of any nature to be paid by the defendant.” Under 43 P.S. §260.10, where wages remain unpaid and there is no good faith contest or dispute of any wage claim, “the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to 25 percent of the total amount of the wages due, or $500, whichever is greater.”

Plaintiff’s argument, that only a common pleas court judge may consider his claim for counsel fees, is based on the language of section 260.9a(f) that the “court” shall award reasonable attorneys’ fees. According to plaintiff, the legislature used the word “court” to mean that a judge must decide this claim. I find no merit to this proposed construction of the Wage Payment and Collection Law.

The relevant provision of the Judicial Code governing compulsory arbitration reads as follows (42 Pa.C.S. §7361):

“Section 7361. Compulsory arbitration
“(a) General rule. — Except as provided in subsection (b), when prescribed by general rule or rule of court such civil matters or issues therein as shall be specified by rule shall first be submitted and heard by a board of three members of the bar of the court.
“(b) Limitations. — No matter shall be referred under subsection (a):
“(1) which involves title to real property; or
“(2) where the amount in controversy, exclusive of interest and costs, exceeds: -
“(i) $50,000 injudicial districts embracing first, second, second class A or third class counties or home rule counties which but for the adoption of a home rule charter would be a county of one of these classes; or
“(ii) $25,000 in any other judicial district.”

Nothing in the language of this law suggests that statutory claims for counsel fees cannot be submitted to a board of arbitrators; to the contrary, section 7361(a) states that any civil matters or issues therein that are not covered in section 7361(b) may be first heard by a board of arbitrators. Since the purpose of compulsory arbitration is to create a procedure for resolving smaller claims promptly, fairly, and with minimal judicial involvement, the legislature would not have required, in this legislation or in any other laws, separate supplemental proceedings after the entry of the arbitration award.

Also, a requirement of supplemental proceedings before a judge creates obvious problems with respect to when the appeal period begins to run. A party has a right to file an appeal after the outstanding claims have been resolved. See Rule 1306 which provides that the arbitration award “shall dispose of all claims for relief.” However, the provisions of 42 Pa.C.S. §§5571 and 7361(d) require that an appeal be filed within 30 days after the entry of the arbitration award (see Stellar Construction Inc. v. Sborz, 561 Pa. 124, 127-28, 748 A.2d 667, 669 (2000)).

Finally, the Wage Payment and Collection Law is one of many laws providing for the award of liquidated damages and/or counsel fees to persons who lack bargaining power. Some laws, such as the Wage Payment and Collection Law, provide for the “court” to award counsel fees. Other laws use different language:

(a) Automobile Lemon Law, 73 P.S. §1958 (a purchaser of a new vehicle who suffers any loss due to a nonconformity “may bring a civil action in a court of common pleas and, in addition to other relief, shall be entitled to recover reasonable attorneys’ fees and all court costs”);

(b) Plain Language Consumer Contract Act, 73 P.S. §2207 (a creditor who does not comply with the test of readability “is liable to the consumer for” any actual loss, statutory damages of $100, court costs, “[Reasonable attorney fees” and any “equitable or other relief ordered by the court”);

(c) Motorized Wheelchair Warranty Act, 73 P.S. §2237 (“a consumer may bring an action to recover for any damages caused by a violation of this Act [and t]he court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief that the court determines is appropriate”);

(d) Hearing Aid Sales Registration Law, 35 P.S. §6700-608 (“Any buyer injured by a violation of this Act may bring an action for the recovery of damages. Judgment may be entered for three times the amount at which the actual damages are assessed, plus reasonable attorney fees.”);

(e) Motor Vehicle Financial Responsibility Law, 75 RS. § 1797(b)(6) (the insurer must pay to the provider the outstanding amount plus interest at 12 percent, as well as the costs of the challenge and all attorney fees, if “a court determines that medical treatment or rehabilitative services or merchandise were medically necessary”) and 75 P.S. § 1798(b) (an insurer, found to have acted with no reasonable foundation in refusing to pay a benefit when due, “shall pay, in addition to the benefits owed and interest thereon, a reasonable attorney fee based upon actual time expended”); and

(f) Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-9.2(a) (“The court may, in its discretion, award up to three times the actual damages sustained . . . and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.”).

It is clear from this review of various laws protecting persons who lack bargaining power that the legislature is using the term “court” in a generic sense. A provision in a law that the “court” shall award counsel fees is one of several wordings that the legislature is using to create a right to counsel fees. Other wordings used to create a right to counsel fees include a statement that a person who suffers a loss shall be entitled to counsel fees (see e.g., the Automobile Lemon Law—73 P.S. §1958), a statement that a person violating the law shall pay a reasonable attorney fee (see e.g., Motor Vehicle Financial Responsibility Law—75 RS. §1797); and a statement that a judgment may be entered for damages and attorney fees (see e.g., Hearing Aid Sales Registration Law—35 P.S. §6700-608).

Two recent cases have considered the legislature’s use of the term “court.” The legislation governing actions on insurance policies (42 Pa.C.S. §8371) provides that “if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:... .’’In Mishoe v. Erie Insurance Company, 762 A.2d 369 (Pa. Super. 2000), appeal granted, 566 Pa. 666, 782 A.2d 547 (2001), the Superior Court addressed the issue of whether this legislation permitted a party to have its claim decided by a jury. The court ruled that the term “court” does not have a fixed meaning:

“Appellees urge a strict interpretation of the term ‘court’ to refer only to the trial judge in section 8371. Appellants, on the other hand, contend that such an interpretation of the term ‘court’ is unduly restrictive, and should be read to mean ‘judge and jury.’ Careful review of these definitions reveals that section 102 does not enable us to conclude, with certainty, whether a party is entitled to a jury trial under section 8371. In fact, as we stated in our previous disposition, these particular definitions do not concretely ‘define’ these terms, but rather merely provide exemplary guidance. Within the context of section 8371, these ‘definitions’ simply do not assist us in answering the question presented. We therefore must analyze this statute strictly according to the binding principles set forth by our Supreme Court in Wertz.” 762 A.2d at 373.

Ultimately, the Superior Court decided that a party seeking relief pursuant to section 8371 is not entitled to a jury trial. The court relied on a ruling of the Pennsylvania Supreme Court (Wertz v. Chapman Township, 559 Pa. 630, 741 A.2d 1272 (1999)) which addressed the issue of the right to a jury trial where relief is sought for alleged discrimination pursuant to the Pennsylvania Human Relations Act which provides that a “court” shall issue injunctive relief and order affirmative relief as the court deems appropriate. In that case, the Supreme Court ruled that the legislature’s use of the term “court” in a law providing for an award of legal relief incidental to and intertwined with injunctive relief is “strong evidence that under the PHRA, it is a tribunal, rather than a jury, that is to make findings and provide relief.” Id. at 634-35, 741 A.2d at 1274.

In these two recent cases, the appellate courts were considering whether the term “court” was referring to a tribunal or whether the term should be read to include “jury.” In the present case, the issue is whether the term “court” means only a judge of a common pleas court or whether it also includes judicial officers of the common pleas court appointed pursuant to a legislative act.

The two recent cases make it clear that the legislature’s use of the term “court” does not decide this issue. Courts, instead, shall consider all relevant circumstances in determining legislative intent. In this case, for the reasons that I have discussed, the intent is obvious. The legislature would have intended to make the compulsory arbitration procedure that is designed to promptly and efficiently resolve smaller claims available to plaintiffs raising statutory claims under legislation providing remedies to consumers and employees. The legislature did not create the two-step proceeding which plaintiff proposes.

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

ORDER

On December 6, 2001, it is ordered that plaintiff’s petition for attorneys’ fees is denied.

      . In this case, plaintiff is not seeking to mold the arbitration award pursuant to Pa.R.C.P. 1307(d). An application to mold an award must be filed within 30 days. Furthermore, a mistake of law is not a basis for molding a compulsory arbitration award.

      . The Wage Payment and Collection Law does not define the term “court.” Also, the term “court” is not defined by the Statutory Construction Act of 1972. See 1 Pa.C.S. §1991.

      . Pa.R.C.P. 1301 permits each common pleas court to determine, by local rule, those matters that will be submitted to compulsory arbitration. A local rule of this court provides for a board of arbitrators to decide any civil matters and issues permitted by 42 Pa.C.S. §7361 where the amount in controversy does not exceed $25,000.

      . The Judicial Code defines a tribunal as a “court, district justice or other judicial officer vested with the power to enter an order in a matter” and a judicial officer as including “appointive judicial officers.” 42 Pa.C.S. §102. A lawyer appointed by a court to serve as an arbitrator in a compulsory arbitration proceeding is an “appointive judicial officer.” Turner v. May Corp., 285 Pa. Super. 241, 253, 427 A.2d 203, 209 (1981).


author: O’BRIEN,

text:
    Sion v. PennDOT

      C.P. of Monroe County,
    no. 6190 Civil 2001.

      Barbara O’Neill Reinhart, for petitioner.

      Frank M. O’Neill, for PennDOT.
    December 3, 2001
   O’BRIEN,

I. FINDINGS OF FACT

(1) The petitioner is a resident of Monroe County, Pennsylvania, and is a licensed driver in the Commonwealth of Pennsylvania.

(2) On February 8, 2001, the petitioner was convicted of operating a motor vehicle while under the influence of intoxicating liquor by a court of competent jurisdiction in the State of New Jersey.

(3) When the Division of Motor Vehicles of the State of New Jersey notified the Department of Transportation of the Commonwealth of Pennsylvania of this conviction, the Department of Transportation suspended the petitioner’s driving privileges in the State of Pennsylvania for a period of one year commencing April 17,2001. The petitioner has not filed any appeal from that suspension.

(4) On June 6, 2001, the petitioner was convicted of a violation NJ.S. 39:4-50(a).

(5) On June 22, 2001, the Division of Motor Vehicles of the State of New Jersey sent out an electronic transmission to the Department of Transportation of the Commonwealth of Pennsylvania notifying the department of the petitioner’s conviction of that statutory provision. This notification was sent in accordance with the provisions of the “Driver’s License Compact.”

(6) On July 26, 2001, the Department of Transportation notified the petitioner that his driving privileges in the State of Pennsylvania would be suspended for one year effective April 14, 2002, as a result of his conviction on June 6, 2001, of N.J.S. 39:4-50(a).

n. DISCUSSION

The Driver’s License Compact provides in pertinent part as follows:

“Article III
“Reports of conviction
“The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of the forfeiture of bail, bond or other security and shall include any special findings made in connection therewith.
“Article IV
“Effect of conviction
“(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for:...
“(2) driving a motor vehicle while under the influence of intoxicating liquor or narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle.” 75 Pa.C.S. §1581.

Although the petitioner did not appeal from the suspension issued for his New Jersey conviction occurring on February 8, 2001, he has appealed from the suspension premised on his New Jersey conviction on June 6, 2001. At our evidentiary hearing, the Commonwealth presented a packet of documents establishing that the petitioner was in fact convicted of a violation of the New Jersey statute on June 6, 2001. However, that statutory provision is broader than the Pennsylvania statute and defines the offending conduct as follows: “a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood.” NJ.S. 39:4-50(a).

At our evidentiary hearing, the defendant testified that his New Jersey conviction on June 6, 2001, resulted from his allowing a friend to operate his motorcycle while the friend was under the influence of intoxicating liquor. Indeed, petitioner’s exhibit 1, which is the order of the Little Falls Municipal Court in the State of New Jersey, specifically provides as follows: “the defendant has pled guilty to the section of that statute that prohibits the allowing of another to operate a motor vehicle while under the influence, and not for having been the actual operator of the vehicle.”

In Crooks v. PennDOT, 564 Pa. 436, 768 A.2d 1106 (2001), our Supreme Court upheld a license suspension premised on that portion of the New Jersey statute which prohibits the individual himself from driving a motor vehicle while under the influence of alcohol. The court’s conclusion is based on the fact that that portion of the New Jersey statute was substantially similar to the Pennsylvania statute; and, therefore, implicated the provisions of the interstate compact. However, the court specifically acknowledged that the provision of the New Jersey statute dealing with allowing another to drive under the influence of alcohol was not substantially similar to any Pennsylvania statute. The court observed:

“[t]he New Jersey drunk driving statute contains a subsection allowing for a conviction if a person permits another to operate a motor vehicle while drunk, but Pennsylvania’s statute does not have a similar provision.”

Implicit in the foregoing analysis is that a suspension in Pennsylvania may not be imposed for the section of the New Jersey statute of which this petitioner was convicted on June 6, 2001.

m. CONCLUSIONS OF LAW

(1) The provision of the New Jersey statute prohibiting a person from allowing another individual to drive their vehicle while under the influence of intoxicating liquor is not substantially similar to any Pennsylvania statute.

(2) All the documentary evidence introduced at our evidentiary hearing fails to establish any basis for a suspension of the petitioner’s operating privileges.

ORDER

And now, December 3, 2001, the order of the Department of Transportation dated July 26, 2001, suspending the driving privileges of William G. Sion for a period of one year effective April 14, 2002, is reversed.


author: THOMSON JR., P.J.,

text:
    West v. West
    C.P. of Pike County,
    no. 40129-DR-1998.

      Lori A. Heilman, for Barbara West.

      Gregory H. Chelak, for Kevin West.
    March 30, 2001
   THOMSON JR., P.J.,

This matter comes before the court upon defendant Kevin West’s appeal to this court’s order of November 6, 2000, which assessed an additional $3,060 to appellant’s support ar-rearage amount for “reasonably necessary medical expenses” incurred by respondent Barbara West. These medical expenses consisted of voluntary alcohol rehabilitation treatment at Veritas Villa Inc., for which the support conference officer opined that respondent met the appropriate criteria for contribution by appellant. Appellant argues that such treatment is analogous to psychiatric or psychological services, which are not subject to reimbursement under the Pennsylvania support guidelines. As hearing on this matter has been waived and the issues have been submitted to this court on briefs, this issue is ripe for adjudication.

23 Pa.C.S. §4324 states that “the court may require that an obligor pay a designated percentage of a child’s or spouse’s reasonable and necessary health care expenses.” See 23 Pa.C.S. §4324. The question of whether to require a spouse to pay medical expenses, as well as the question of the proper percentage to assess, are matters within the sound discretion of the trial court. See Kessler v. Hemlick, 449 Pa. Super. 113, 672 A.2d 1380 (1996). In addition, the Pennsylvania Rules of Civil Procedure support guidelines state that “medical expenses include insurance co-payments and deductibles and all expenses incurred for reasonably necessary medical services and supplies, including but not limited to surgical, dental and optical services, and orthodontia.” Pa.R.C.P. 1910.16-6(c)(1). However, this rule also states that “medical expenses do not include cosmetic, chiropractic, psychiatric or psychological services unless specifically directed in the order of court.” See Pa.R.C.P. 1910.16-6(c)(1). Thus, this court must determine whether the alcohol rehabilitation treatment undergone by plaintiff, for which reimbursement is sought, is more closely analogous to surgical, dental, optical, or orthodontia services, and thus recoverable under the support guidelines, or whether it is more analogous to cosmetic, chiropractic, or psychiatric and psychological services, which are not recoverable under the express terms of the guidelines.

The current understanding of the disease alcoholism defines this illness as “a primary, chronic disease with genetic, psycho-social, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal, and is characterized by impaired control over drinking, a preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notably denial.” National Council on Alcoholism and Drug Dependence and American Society of Addiction Medicine, www.ncadd.org/facts/defalc.html. — 1992. Furthermore, the American Medical Association endorses a “dual classification of alcoholism under both the psychiatric and medical sections of the International Classification of Diseases.” Policy H-30.997. www.ama-assn.org/special/ aos/alcohol/policy/dependence.html. Although physicians and specialists cannot agree whether alcoholism is predominantly a physical or psychological illness, it is clear that alcoholism has very serious physical symptoms and ramifications. If left untreated, alcoholism can result in a number of serious physical ailments, ranging from cirrhosis of the liver to brain damage. All of the organs of the body are affected by alcohol, and alcoholism is the third leading cause of death in the United States. NCADD, http://www.ncadd.org.

However, in order to resolve this dispute fairly and justly, this court must first make a careful inquiry into the precise issue raised before it. The question we are faced with is not whether alcoholism is a physical or psychological ailment. This court does not have the specialized knowledge or training to make such a broad finding, particularly when there is little agreement among professionals in the field of medicine regarding this issue. Rather, this court is asked to determine whether the treatment of alcoholism is predominantly physical or psychological, for purposes of the Pennsylvania support guidelines.

Modem research indicates that there are a number of physiological therapies for the treatment of alcoholism that have had mixed success in treating this disease. For instance, there are a number of prescription medications now available that minimize the harmful effects of detoxification and withdrawal, such as Valium, Xanax, and other anti-anxiety medications. Furthermore, use of the chugs disulfiram, citrated calcium cyanamide, Antabuse, or similar medications, may cause an unpleasant reaction when the patient ingests an alcoholic beverage. Some symptoms of these medications when taken along with alcohol include hot flashes, nausea, vomiting, a sharp drop in blood pressure, a pounding of the heart, and possibly a feeling of impending death. Encyclopedia Britannica, Physiological Therapies http://www.britannica.com/ bcom/eb/article/3/0,5716,118683+4=110089,00.html. Such treatments are ordinarily intended to bring about a short-term abstinence, during which a therapist may apply psychological and rehabilitative measures to enable a patient to ultimately refrain from drinking without the chemical crutch. Id. Although many of these physiological treatments have been successful in the short-term, they do not last indefinitely and often require periodic reinforcement, or psychological and social therapy as well.

Most approaches to the treatment of alcoholism require the alcoholic to recognize his or her illness and to abstain from alcohol thereafter. Encyclopedia Britannica, Psychological Therapies, www.britannica.com/bcom/eb/ article/3/0,5716,118683+6+110089,OO.html. Psychotherapy in alcoholism encompasses the entire range of modalities applied in treating the psychoneuroses and character disorders; including individual and group techniques. Id. Group therapies are generally regarded as more effective than individual modalities with alcoholics, and may include instructional lectures and superficial discussions to deep analytic explorations, psychodrama, hypnosis, and the use of mechanical aids such as movies and taped sessions of an intoxicated patient. Id.

The primary goal in most alcohol treatment programs is to involve all clients in therapy and other group activities to break down isolation and denial, and to encourage open and honest communication. This is most often accomplished through the use of a twelve-step program or philosophy, which has proven most effective among the long-term treatment programs generally utilized. Support groups, such as Alcoholics Anonymous, have had promising success with such treatments, as they offer a supportive atmosphere and a structured environment in which the patient can begin to learn how to restructure his or her life without the consumption of alcohol. Group therapy, group discussions, individual counseling sessions and lectures have also proven quite valuable in reaching these goals.

Upon consideration of the above, this court finds defendant’s argument persuasive. It is clear that alcoholism has very serious, sometimes fatal, physical ramifications and symptoms. It is equally clear that some of these symptoms may be remedied, at least on a short-term basis, through prescription medication or other, traditionally physical, medical treatments. However, this court is convinced that plaintiff’s alcoholism can be distinguished from medically recognizable injuries such as broken bones or malfunctioning organs. Furthermore, the most common and most successful treatments for alcoholism have been more analogous to psychological or psychiatric treatment than physical or physiological treatment. Simply stated, plaintiff’s alcoholism lacks the apparent physical nature of the medical injuries for which reimbursement will ordinarily be permitted. Accordingly, plaintiff’s alcohol rehabilitation expenses are not recoverable under the Pennsylvania support guidelines.

ORDER

And now, March 30, 2001, upon consideration of defendant Kevin West’s appeal to this court’s order entered November 6, 2000, which assessed an additional $3,060 to appellant’s support arrearage amount for “reasonably necessary medical expenses” incurred by plaintiff, defendant’s brief in support thereof, plaintiff’s brief in opposition, hearing having been waived and this matter submitted on briefs, defendant’s appeal is sustained, and this court’s order of November 6, 2000, is hereby vacated.


author: MAZER MOSS, J.,

text:
    Handel v. Schwartz

      C. George Milner, for plaintiffs.

      Steven and llene Schwartz, pro se.

      Elizabeth J. Feeney, for defendants Legg Mason Wood Walker Inc. and Lane.

      Catherine C. Olanich, for additional defendants Shaugnessy and Shaughnessy, Volzer & Gagner PC.
    July 26, 2001
   MAZER MOSS, J.,

FACTS AND PROCEDURAL HISTORY

On May 8, 2001, we heard oral argument on Legg Mason Wood Walker Inc. and Linda Lane’s (collectively Legg Mason) petition for permanent injunction. Legg Mason sought to permanently enjoin defendants Steven and llene Schwartz from compelling arbitration before either the National Association of Securities Dealers Inc. or the New York or American Stock Exchange for all claims involving the Schwartzes, Legg Mason and the Handels. Pursuant to the coordinate jurisdiction rule, we granted said injunction thereby restraining the Schwartzes from “initiating or pursuing an arbitration or arbitration-related proceeding.” See our order and injunction, May 16, 2001, p. 3. Said appeal follows.

DISCUSSION

The coordinate jurisdiction rule recognizes “judges of coordinate jurisdiction sitting in the same case should not overrule each others’ decisions.” Commonwealth v. Starr, 541 Pa. 564, 573, 664 A.2d 1326, 1331 (1995). In only a few extraordinary circumstances may a judge depart from the prior rulings of their colleagues sitting in coordinate jurisdiction. “[A]n intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed” are the few occasions outlined by the Supreme Court of Pennsylvania where such a departure is allowed. Id. at 575-76, 664 A.2d at 1332.

The Honorable Nitza I. Quiñones Alejandro issued numerous orders on whether or not arbitration should be compelled in said action. One such order, denying same, has been appealed to the Superior Court of Pennsylvania. On April 6, 2001, Judge Quiñones Alejandro filed an opinion based on her rulings. See exhibit A. Relying upon same and the coordinate jurisdiction rule, we granted Legg Mason’s permanent injunction.

A permanent injunction is necessary as the party established “a clear right to relief and that irreparable harm will occur if such relief is not granted.” Commonwealth, State Ethics Commission v. Landauer, 91 Pa. Commw. 70, 76, 496 A.2d 862, 865 (1985). Defendants Steven and llene Schwartz have sought to compel arbitration on numerous occasions and were denied. So as to enforce prior orders of our court, we find there was clear right to the relief requested. Same will avoid piecemeal litigation and prevent inconsistent outcomes. Further, we note compelling a party to proceed to arbitration without either an agreement or contractual obligation is per se irreparable harm. Painewebber Inc. v. Hartmann, 921 F.2d 507, 515 (3d Cir. 1990).

We properly granted Legg Mason’s permanent injunction. Further, based upon the coordinate jurisdiction rule, we adopt the Honorable Nitza I. Quiñones Alejandro’s opinion and attach same. See exhibit A.

EXHIBIT A

QUIÑONES ALEJANDRO, J., April 6, 2001-

INTRODUCTION

Steven Schwartz and llene Schwartz filed a pro se appeal and argue that their motion to compel arbitration, filed pursuant to Pennsylvania’s Arbitration Act, 42 Pa.C.S. §7304, was erroneously denied. This motion judge disagrees.

FACTUAL AND RELEVANT PROCEDURAL HISTORY

This motion judge carefully reviewed the pleadings and exhibits filed in this matter, as well as the briefs submitted in support of the respective pleadings. Briefly, the factual and procedural record defined by these pleadings is as follows:

Plaintiffs George Handel and Samuel Handel, were brothers who jointly operated a business in New Jersey and held numerous joint ventures in an investment company. Plaintiff Phyllis Tayler is an equity interest owner in the assets of the Handels’ entities and funds, and a long-time employee of the Handels’ businesses.

At some point in time, Samuel Handel met defendant John Ludlam. Defendant Ludlam, in turn, introduced Samuel Handel to defendant Steven Schwartz, and promoted defendant Schwartz as a brilliant financial planner and investment advisor. Allegedly, because of the influence of defendants Schwartz and Ludlam, Samuel Handel transferred $105,000 of his personal money to an account with defendant Legg Mason Wood Walker. Subsequently, defendant Schwartz persuaded the Handels to invest their company’s and their personal monies in approximately eight additional accounts at defendant Legg Mason. Defendant Schwartz was designated as the investment advisor. These preferred account agreements and the retirement agreements contained a provision entitled consent to arbitrate. The arbitration provision therein will be more fully discussed, infra.

When these accounts were created, the Handels and defendant Schwartz signed trading authorization agreements. Said agreements dated September 2, 1998, were also signed by Linda Lane, as investment executive, and were approved by defendant Legg Mason on September 9, 1998. In these agreements, defendant Steven Schwartz was appointed agent and attorney-in-fact on behalf of the Handels. The agreements also provided that notice of all transactions, reports or other communications relating to the accounts were to be sent to the Handels’ New Jersey business address, and to defendant Steven Schwartz. These agreements also stipulated that defendant Steven Schwartz was not authorized to withdraw money or securities from the accounts. Approximately $1,100,000 was deposited in the numerous accounts held by the Handels.

On November 25, 1998, Samuel Handel granted defendant Steven Schwartz a limited power of attorney, which authorized him to make investments in stocks, bonds, options, commodities and securites of any nature on behalf of Samuel Handel. The document indicated that the power of attorney was valid until revoked by Samuel Handel, who retained the ability to revoke it at any time. On November 30, 1998, George Handel signed a similar limited power of attorney.

Unbeknownst to the Handels and without their consent, the New Jersey address used to receive communication concerning the Handels’ accounts and/or any transactions was changed to an unfamiliar address in Pennsylvania. Plaintiffs allege that defendant Schwartz also thereafter commenced a pattern of reckless trades in options and Internet stocks. These trades caused substantial financial losses to the Handels’ accounts. Plaintiffs contend that defendant Schwartz also transferred monies between and into various accounts owned by the Handels and other individuals, including into accounts held by defendant llene Schwartz (his mother), and defendant Artz. Plaintiffs allege that as a result of these unauthorized transfers, defendant Schwartz embezzled an aggregated amount of $1,892,853 from the Handels’ accounts. Defendants Schwartz deny the embezzlement and contend that they also deposited their own money into the Handels’ accounts.

By the beginning of 1999, George Handel ended the agency agreements between the Handels, defendant Schwartz and defendant Legg Mason. He sought reimbursement of the monies embezzled but without success. Because of their losses, on February 9, 2000, plaintiffs commenced by a writ of summons, a civil action against defendants Legg Mason Wood Walker, Linda Lane, Steven Schwartz and llene Schwartz. On March 17,2000, plaintiffs filed a complaint against defendants alleging negligence, fraud, breach of fiduciary duty, breach of contract, conversion and embezzlement. On April 12, 2000, defendants Legg Mason and Linda Lane answered plaintiffs’ complaint. On May 2, 2000, defendants Legg Mason and Linda Lane filed a joinder complaint against Brian Shaughnessy and Shaughnessy Volzer & Gagner.

On May 31, 2000, defendants Schwartz filed preliminary objections to plaintiffs’ complaint. On June 7, 2000, plaintiffs filed a response to said preliminary objections, which were overruled by order dated July 13, 2000.

On September 26, 2000, defendants Schwartz filed a petition to compel arbitration. Responses to said petition were filed by plaintiffs on October 12, 2000 (in opposition), by Shaughnessy defendants on October 18, 2000 (in support), and by defendants Legg Mason and Linda Lane on October 26, 2000 (in opposition). On October 31, 2000, these pleadings were assigned to the undersigned motion judge. By order dated December 1, 2000, this motion judge denied defendants Schwartz’ petition to compel arbitration.

Dissatisfied with this order, on December 4, 2000, defendants Schwartz filed this appeal.

ISSUE

A Rule 1925(b) letter was sent by this motion judge to defendants Schwartz, but the letter was returned stamped address unknown. Since defendants Schwartz did not receive the correspondence sent for reasons unknown, and because the issue on appeal is apparent, this motion judge opines that defendants Schwartz have not waived their appellate issues for failing to comply with 1925(b). From the record, it appears that the issue before the court is whether this motion judge erred in denying defendants Schwartz’ petition to compel arbitration.

LAW AND DISCUSSION

The Uniform Arbitration Act, 42 Pa.C.S. §7301 et seq., permits an appeal from a court order denying a motion to compel arbitration. Specifically, this Act provides: mine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.” 42 Pa.C.S. §7304(a). See also, Santiago, infra; Messa, infra; Flightways Corp., infra. Thus, technically, this motion judge’s order dated December 1, 2000, which denied defendants Schwartz’ petition to compel arbitration may be appealed.

“On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed to deter-

Arbitration is a matter of contract and, as such, in construing the language of an arbitration provision, courts must resort to the rules of contractual construction. Hazleton Area School District v. Bosak, 671 A.2d 277, 281 (Pa. Commw. 1996). The language of a contract should be construed with the intent of the parties as the paramount consideration. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). To determine the intent of parties to a contract, a court should look to the four comers of the document and its express language. PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 632 A.2d 903 (1993). The issue of whether a dispute is one that is covered by the terms of an arbitration agreement is for a court to determine. Shadduck v. Christopher J. Kaclik Inc., 713 A.2d 635, 637 (Pa. Super. 1998); Hazleton, 671 A.2d at 283.

While this motion judge acknowledges that the law favors settlement of disputes by arbitration and seeks to promote swift and orderly disposition of claims, a court must be careful not to extend an arbitration agreement by implication beyond the clear, express and unequivocal intent of the parties as manifested by the writing itself. Hazleton, supra. Because arbitration is a matter of contract, a particular issue cannot be arbitrated absent an agreement between the parties to arbitrate that issue. Lincoln University of the Commonwealth v. Lincoln University Chapter, 467 Pa. 112, 354 A.2d 576 (1976). Judicial inquiry on whether arbitration is appropriate is limited to the following questions: (1) whether an agreement to arbitrate was entered into; and (2) whether the involved dispute comes within the ambit of an arbitration provision. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975). See also, Midomo Co. Inc. v. Presbyterian Housing Development Co. 739 A.29 180, 182 (Pa. Super 1999); Santiago v. State Farm Insurance Co., 453 Pa. Super. 343, 346, 683 A.2d 1216, 1217 (1996); Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 599, 641 A.2d 1167, 1170 (1994).

Here, defendants Schwartz argue that because the numerous account agreements and, in particular, the trading authorization agreements signed by the Handels contained a consent to arbitrate clause, the instant complaint must be transferred to arbitration. They further argue that although defendant Steven Schwartz is not a signatory of said agreements, he is a party to the agreement since he was appointed an agent by the Handels, and authorized to act on their behalf regarding their accounts with defendant Legg Mason. Defendants Schwartz contend that since the numerous account agreements provide that This agreement will not be affected by my death, disability, incompetence, or incapacity and is binding on me, my estate and those with authority to act on my behalf, he has standing to compel arbitration. Of interest, defendants Schwartz do not acknowledge that the agreements also contain a provision that the agreements may be terminated and the authority granted to the agent revoked, at any time and for any reason. The Handels revoked defendant Schwartz’ authority in early 1999.

Pursuant to the relevant case law, this motion judge first looked to decide whether defendants Schwartz had standing to enforce the consent to arbitrate provisions contained in the numerous account agreements and the eight trading authorization agreements. Without reproducing the documents in their entirety, the relevant portions of these agreements, similar in nature, read as follows:

“Arbitration is final and binding on the parties.
“By agreeing to arbitrate, parties are waiving their right to seek remedies in court, including the right to a jury trial. . . .
“I agree that all controversies that may arise between us concerning any transaction or the construction, performance, or breach of this agreement, or any other agreement between us, pertaining to securities and other property, whether entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration. Any arbitration under this agreement shall be conducted only before the New York Stock Exchange Inc., the National Association of Securities Dealers Inc. or the Municipal Securities Rulemaking Board in accordance with the rules of the selected organization then in effect. The award of the arbitrators, or the majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction. ”

As stated, defendant Steven Schwartz was noted in the trading authorization agreements as the Handels’ agent and attorney-in-fact authorized to act on their behalf on their accounts with defendant Legg Mason. The introductory paragraph of the agreement provides that said agreement is binding on those with authority to act on behalf of the Handels. Thus, based on the plain reading of the cited arbitration provision it appears that defendant Steven Schwartz only, and not defendant llene Schwartz had, at a particular time, authority to enforce the arbitration provision and compel arbitration. However, this authorization was subsequently revoked by the Handels in early 1999. At the time plaintiff Handel filed the complaint in 2000, the agency agreement between the Handels, defendant Steven Schwartz and defendant Legg Mason was successfully terminated. Thus, in this motion judge’s opinion the above-cited arbitration provisions ceased to be in effect as of 1999, and have no relevance in the instant action.

Furthermore, this motion judge opines that defendant Steven Schwartz waived whatever right he had to enforce arbitration. As stated, while our courts favor the settlement of disputes by arbitration, the right to enforce an arbitration clause can be waived. Teodori v. Penn Hills School District Authority, 413 Pa. 127, 196 A.2d 306 (1964). A waiver of a right to proceed to arbitration may be expressly stated, or it may be inferred from a party’s undisputed acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no opposition for reasonable inference to the contrary. Goral v. Fox Ridge Inc., 453 Pa. Super. 316, 683 A.2d 931 (1996). Such a waiver should not be lightly inferred, and unless one’s conduct has gained him undue advantage or resulted in prejudice to another he should not be held to have relinquished the right. Id. The key to determining if the right to arbitrate has been waived is whether the party, by virtue of its conduct, has accepted the judicial process. St. Clair Area School District Board of Education v. E.I. Associates, 733 A.2d 677 (Pa. Commw. 1999). Acceptance of the judicial process is demonstrated when the party (1) fails to raise the issue of arbitration promptly; (2) engages in discovery; (3) files pretrial motions which do not raise the issue of arbitration; (4) waits for adverse rulings on pretrial motions before asserting arbitration; or (5) the party waits until the case is ready for trial before asserting arbitration. Goral, supra; Moscatiello Construction Co. v. Pittsburgh Water and Sewer Authority, 167 Pa. Commw. 508, 648 A.2d 1249 (1994), petition for allowance of appeal denied, 540 Pa. 608, 655 A.2d 995 (1995).

Here, defendant Schwartz is accused of embezzling over a million dollars from the Handels’ accounts. This behavior forced the Handels to revoke the agency relationship with defendant Steven Schwartz in early 1999, and to file a civil action against him and the other defendants in early 2000. In this motion judge’s opinion, this alleged egregious conduct constitutes a waiver of any right to compel arbitration that defendant Steven Schwartz had. Additionally, discovery and numerous adverse rulings against defendants Schwartz, including the July 13, 2000 and August 17, 2000 pretrial motions, preceded the September 26, 2000 petition to compel arbitration thereby subjecting defendant Steven Schwartz to the judicial process. Consequently, defendant Steven Schwartz does not have standing to enforce the arbitration provisions of the trading authorization agreements.

CONCLUSION

Based on the reasons stated, this motion judge opines that no errors were committed in denying defendants Schwartz’ motion to compel arbitration. Consequently, this motion judge respectfully recommends that defendants’ appeal be dismissed, and that the order, which denied defendants’ motion to compel arbitration, be affirmed.

      . On July 18, 1999, Samuel Handel passed away as a result of cancer.

      . The complaint neither identifies the business operated by the Handel brothers nor the investment company where their various investment accounts were held.

      . There is no additional mention of Ms. Tayler in the complaint.

      . The complaint provides no factual averments as to John Ludlam other than this individual introduced Samuel Handel to defendant Steven Schwartz.

      . The following accounts (either preferred accounts or retirement accounts) were established at defendant Legg Mason in September 1998, all with the Handels’ money, and with defendant Steven Schwartz identified as the investment advisor and financial planner: Handel partnership — 405-11378; Samuel Handel — 405-11379; Hantex — 405-11377; Handel and Company defined benefit plan—405-11376; Samuel Handel IRA—405-74133; Handel and Company profit sharing plan—405-11375; George Handel IRA—405-74132; and Sam and George Handel investment account—405-11380.

      . Linda Lane is an agent, servant or employee of defendant Legg Mason, and the aunt of defendant Steven Schwartz. She also served as the account supervisor of the Handel accounts over which defendant Schwartz was the investment advisor.

      . On My 6, 2000, plaintiffs filed a praecipe to overrule preliminary objections averring that defendants Schwartz failed to comply with Phila.R.C.P. *1028, which requires preliminary objections to be filed with civil administration within 30 days after said preliminary objections are filed with the office of the prothonotary.
      On My 13, 2000, this motion judge overruled the preliminary objections filed by defendants Schwartz as these preliminary objections were not filed with civil administration. See Phila.R.C.P. *1028.
      On August 17, 2000, defendants Schwartz filed a second set of preliminary objections with both the office of the prothonotary and civil administration. On September 6, 2000, this motion judge overruled said preliminary objections as these were improperly filed. See Pa.R.C.P. 1028.
      On September 18, 2000, defendants Schwartz filed a motion for reconsideration and on October 13, 2000, this motion was denied.
      On October 10, 2000, defendants Schwartz filed a notice of appeal with the Superior Court. On January 29, 2001, the Superior Court quashed said appeal.

      . As stated in defendant Legg Mason’s brief, defendants Schwartz had argued before the court an oral motion to compel arbitration which was denied as late as September 7, 2000. Thus, defendants Schwartz’ appeal is technically untimely.

      . Defendant llene Schwartz is neither a signatory to the trading authorization agreement, an appointed agent of the Handels, nor a party to said agreement.

      . See n.7.


author: HERRON, J.,

text:
    Grant v. Bridgestone Firestone Inc.

      Kenneth Jacobsen, for plaintiffs.

      Morton Daller, for defendants.
    June 12, 2001
   HERRON, J.,

This opinion addresses the arguments made in the preliminary objections of defendants Bridgestone Firestone Inc. and Ford Motor Co. to the consolidated amended complaint of the class action plaintiffs. Because the complaint does not set forth a link between the individual plaintiffs and the damages alleged generally, the plaintiffs must replead their first three counts. In addition, the court does not have the authority to grant the plaintiffs’ request for injunctive relief, and the plaintiffs cannot proceed on that count.

BACKGROUND

This case arises from two allegedly defective products that, when used in combination with each other, are synergistically dangerous. The first product is a line of tires allegedly designed by Ford and Firestone and manufactured and sold by Firestone since 1991. According to the complaint, the tires have a tendency to suffer sudden and complete tread separation. To reduce the risk of tread separation, Firestone recommended that the tires be inflated to 30 psi pressure. The plaintiffs aver that both defendants have been aware of the tires’ defects since 1991. Despite knowledge of these defects, the complaint alleges that the defendants advertised the tires as durable and safe.

The second product is the Explorer sport-utility vehicle, which is designed, manufactured and sold by Ford and comes equipped with the tires. The plaintiffs allege that, before putting the Explorer into production in 1990, Ford knew that the vehicle was unstable and had a tendency to roll over when going around turns. Based on this knowledge, Ford recommended that Explorer owners maintain the tires at 26 psi pressure to increase the Explorer’s stability. At the same time, the complaint alleges, Ford knew that keeping the tires at 26 psi pressure would lead to a greater risk of tread separation, as it is below the pressure recommended by Firestone.

The National Highway Traffic Safety Administration officially began an investigation into the tires on May 2, 2000. Complaints about the tires’ tread separation, including reports of deaths and injuries, accumulated during the summer of 2001. On August 9, 2000, Firestone and Ford announced a limited recall of some of the tires. Under the terms of the recall, consumers who exchanged recall tires at authorized Firestone centers were entitled to a “prorated” rebate, with the amount and manner of the rebate resting in the sole discretion of Firestone. If tires were replaced at any other location, Firestone provided a reimbursement of $ 100 per tire, including charges for mounting, balancing and taxes.

On August 30, 2000, NHTSA recommended that Firestone expand the recall to include certain “additional tires.” When Firestone refused, NHTSA issued a consumer advisory disclosing Firestone’s refusal and the reasons behind its', recommendation. In the advisory, NHTSA observed that the tread separation rate among certain additional tires exceeded those of the recall tires.

According to the complaint, each of the individual plaintiffs either purchased or leased an Explorer fitted with tires. There are no specific allegations, however, that any named plaintiff suffered damages from the tires. Relying on the general class allegations, the plaintiffs assert claims for violations of the Pennsylvania UTPCPL, breach of express warranty, breach of implied warranty of merchantability and a declaratory judgment. In addition, the plaintiffs argue that the recall is inadequate and should be expanded to include both the additional tires and all other outstanding tires.

DISCUSSION

The complaint does not allege that the individual plaintiffs suffered any damages as a result of the tires’ alleged defects. In addition, the court lacks the authority to grant the injunctive relief of a tire recall requested by the plaintiffs. As a result, the objections are sustained.

I. The Plaintiffs Have Not Pled Facts To Support Their Allegations of Damages

Both defendants assert that the complaint does not allege that the individual plaintiffs have suffered any com-pensable injury, thus barring them from asserting any claim. The defendants are correct in this regard: the named plaintiffs assert that damages have been inflicted but they do not assert that damages have been inflicted on them.

As stated by the Pennsylvania Supreme Court, “[djamage or legal injury is essential to a right to sue in an action at law.” Sixsmith v. Martsolf, 413 Pa. 150, 154, 196 A.2d 662, 664 (1964). More significantly, damages caused by a defendant’s conduct is an essential element of each of the plaintiffs’ first three causes of action. See 27 Pa.C.S. §201-92 (person bringing a private UTPCPL claim must show an “ascertainable loss of money or property, real or personal”); Price v. Chevrolet Motor Division of General Motors Corp., 765 A.2d 800, 809 (Pa. Super. 2000) (successful claim for breach of warranty requires damages); Wisniewski v. Great A. & P. Tea Co., 226 Pa. Super. 574, 579-80, 323 A.2d 744, 746-47 (1974) (discussing damages for breach of implied warranty of merchantability claim).

In the complaint, the plaintiffs broadly assert that members of the proposed class have suffered the following damages: “diminution of the value of their Explorers; costs to inspect, repair and/or replace their tires; and cost of alternative transportation.” Complaint at ¶¶98, 103, 110.

While this harm might be sufficient to sustain most of the plaintiffs’ causes of action, the complaint does not assert that the named plaintiffs have, in fact, suffered these damages. During oral argument and in their response to the objections, counsel for the plaintiffs referred to specific out-of-pocket costs the plaintiffs actually incurred in purchasing replacement tires, as well as the precise estimated loss in their Explorers’ value attributable to the tires’ defects. Response to Ford’s objections at 6, 10; transcript of oral arguments on preliminary objections, Apr. 12, 2001 at 35-36. These specific allegations, however, are not reflected in the complaint: there are no allegations that the plaintiffs have had their tires replaced at a cost above the reimbursement offered by the defendants, that they have tried to sell their Explorers with a diminution in value attributable to the tires or that they incurred alternate transportation costs. In the absence of factual allegations to connect the asserted damages to the individual plaintiffs, the causes of action asserted in the complaint cannot be sustained. As such, the complaint must be amended to include allegations that the named plaintiffs suffered the damages in question.

II. The Court Is Not Authorized To Order the Recall of the Tires

The plaintiffs assert that their exposure to imminent tread separation requires the extension of the recall to the plaintiffs’ tires. This type of relief is not appropriate in this forum.

While no Pennsylvania appellate court has addressed the issue specifically, courts in other jurisdictions have expressed serious reservations as to whether a court has the authority to order a recall and have refrained from doing so. See e.g., National Women’s Health Network Inc. v. A.H. Robbins Co., 545 F. Supp. 1177, 1180 (D. Mass. 1982) (“state law simply does not provide a basis for worldwide recalls”); Gregory v. Cincinnati Inc., 538 N.W.2d 325, 334n.30 (Mich. 1995) (product recalls “are properly the province of administrative agencies, as the federal statutes that expressly delegate recall authority to various agencies suggest”). This is especially true with regard to motor vehicle recalls. See Walsh v. Ford Motor Co., 130 F.R.D. 260, 267 (D.D.C. 1990) (court refused to order recall to “avoid entanglement with a regulatory scheme designed and intended to empower principally the Department of Transportation, rather than the courts, to order and oversee motor vehicle recalls”); Crawley v. Daimler Chrysler Corp., July 1990, no. 4900, slip op. at 38 (C.P. Phila. Mar. 5, 2001) (Bernstein, J.) (“NHTSA is the proper forum to address automobile recalls”). These cases make the court reluctant to order the recall of the additional tires.

The plaintiffs counter by analogizing to Redland Soccer Club Inc. v. Department of the Army, 548 Pa. 178, 189, 696 A.2d 137, 142 (1997). In Redland Soccer Club, the Pennsylvania Supreme Court confirmed its recognition of a cause of action for medical monitoring and refined the elements necessary for such an action. The plaintiffs contend that this supports the proposition that “Pennsylvania law has specifically recognized that in-junctive relief is an appropriate remedy when a defendant releases products on the market that harm individual consumers.” Plaintiffs’ memorandum in response to Ford’s objections at 34.

The plaintiffs overlook several distinct differences between this case and a medical monitoring cause of action. Even though the court in Redland Soccer Club allowed a medical monitoring cause of action to be brought in the absence of present physical harm, the court still required proof of “a significantly increased risk of contracting a serious latent disease.” 548 Pa. at 195, 696 A.2d at 145. In addition, the Redland Soccer Club court made it clear that it did not intend to jettison Pennsylvania’s requirement that a plaintiff has suffered injury but rather sought to allow the recovery of medical expenses under limited conditions. Indeed, the court itself characterized the nature of medical monitoring claim as “non-speculative.” 548 Pa. at 194, 696 A.2d at 145. As a result, the fact that Pennsylvania allows claims for medical monitoring does not allow the court to order a recall based on a fear of tread separation and accident.

The plaintiffs also rely on Talalai v. Cooper Tire & Rubber Co., no. Mid-L-8839-00 MT (N J. Super. Ct. Law Div. Apr. 16, 2001), in which the New Jersey Superior Court found that federal law, in the form of the Motor Vehicle Safety Act, did not pre-empt the New Jersey Consumer Fraud Act. In Talalai, however, the court noted that the case was about consumer fraud, not the regulations and standards promulgated under the MVS A, and that the plaintiffs were not seeking a recall. Slip op. at 3,11. More significantly, the Talalai court recognized that “[a]n order requiring a recall under state law is entirely inconsistent with the federal scheme and would invade an exclusively federal province.” Id. at 9 (citing Juvenile Products Mfgrs. Ass’n Inc. v. Edmisten, 568 F. Supp. 714, 719 (E.D.N.C. 1983)). Thus, Redland Soccer Club and Talalai do not allow this court to order the recall of the additional tires, and the cause of action for injunctive relief must be dismissed.

CONCLUSION

The complaint does not allege an injury actually incurred by the individual plaintiffs. As a result, the plaintiffs must file a second consolidated amended complaint before they may proceed on their claims. In addition, the court cannot grant the injunctive relief requested in the complaint, and that cause of action is dismissed.

ORDER

And now, June 12, 2001, upon consideration of the preliminary objections of defendants Bridgestone Firestone Inc. and Ford Motor Co. to the consolidated amended complaint of the class action plaintiffs, and the plaintiffs’ response thereto and in accordance with the memorandum opinion being filed contemporaneously with this order, it is hereby ordered and decreed that the objections are sustained. The plaintiffs are directed to file a second consolidated amended complaint within 20 days of this order.

      . According to the plaintiffs, Ford was aware of specific tire failures on Ford vehicles and had replaced tires on vehicles sold in Saudi Arabia, Venezuela, Ecuador, Colombia, Thailand and Malaysia by August 1999. These replacements were allegedly undertaken in collusion with Firestone and with the goal of keeping the defects hidden from the United States government and public.

      . The complaint also makes allegations regarding the Mercury Mountaineer, which it asserts is essentially identical to the Ford Explorer. Both are referred to collectively as the “Explorer.”

      . Tires included in the recall are referred to as the “recall tires:

      . 73 Pa.C.S. §§201-1-201-9.3.

      . When examining preliminary objections to a class action complaint, a court should concern itself with the allegations and claims of the individual defendants only. Sherrer v. Lamb, 319 Pa. Super. 290, 294, 466 A.2d 163, 165 (1983). See also, Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 129, 451 A.2d 451, 454 (1982) (“[a] court may not make the initial class action determination until after the close of pleadings to ensure that the class proponent is presenting a non-frivolous claim capable of surviving preliminary objections”). If the allegations of the named plaintiff are insufficient however, the suit cannot proceed. Citizens for State Hospital v. Commonwealth of PA, 123 Pa. Commw. 150, 155, 553 A.2d 496, 498 (1989) (citing Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983)).

      . The plaintiffs also contend that they suffered a psychological fear of driving. Under Pennsylvania law, however, “there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress unless they are accompanied by physical injury or physical impact.” Simmons v. Pacor Inc., 543 Pa. 664, 676-77, 674 A.2d 232, 238 (1995) (citing Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966)). Thus, in the absence of other damages, fear of driving alone cannot sustain the plaintiffs’ causes of action.

      . Several courts in other jurisdictions have held that a plaintiff cannot cite diminution in a vehicle’s value as damage unless the plaintiff has tried to sell the defective vehicle. See e.g., Briehl v. General Motors Corp., 172 F.3d 623, 628-29 (8th Cir. 1999) (where the complaint did not allege that any plaintiff had sold his or her vehicle at a reduced value, they had not suffered any cognizable injury); Carlson v. General Motors Corp., 883 F.2d 287, 298 (4th Cir. 1989) (plaintiff’s allegations of damages due to lost resale value were insufficient to sustain cause of action for breach of implied warranty of merchantability); Weaver v. Chrysler Corp., 172 F.R.D. 96, 100(S.D.N.Y. 1997) (“[wjhere ... a product performs satisfactorily and never exhibits the alleged defect, no cause of action lies”); Yost v. General Motors Corp., 651 F. Supp. 656, 658 (D.N.J. 1986) (allegations of diminution in a vehicle’s value are unsupported where the plaintiff “has not apparently attempted to sell his car in the used car market and simply asserts the bald conclusion that its value in that market has decreased”).

      . The defendants appear to concede that the complaint could be revised to satisfy Pennsylvania’s pleading requirements. See transcript at 25, 56.

      . It does not appear that this allegation of damages is intended to support any claim other than that for declaratory relief and an extension of the recall.

      . The Pennsylvania Supreme Court first expressed its support for a medical monitoring cause of action in Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996), in which the court recognized medical monitoring as a narrow exception to the requirement that a plaintiff show more than speculative damages.

      . In comparison, the court described its holding in Simmons as based on the conclusion that “damages for increased risk and fear of cancer were too speculative to be recoverable where cancer was not present.” 548 Pa. at 194, 696 A.2d at 145.

      . 49 U.S.C. §§30101-30169.

      . N.J.S. 56 ch. 8.