author: HILL,

text:
    McFarland v. State Farm Mutual Automobile Insurance Co.

      February 7, 1990

      Hy Mayerson and James R. Rosato, for plaintiff.

      Mark C. Labrum, for defendant.
   HILL,

The within matter was tried without a jury before the undersigned on January 4 and 5,1990 for attorney fees claimed under the No-fault Motor Vehicle Insurance Act, 40 Pa.C.S. 1009.107(3), since repealed, on the theory that defendant State Farm Mutual Automobile Insurance Company had refused to pay a “significant part” of certain benefits under plaintiffs policy “without reasonable foundation.”

FINDINGS OF FACT

(1) On July 21, 1984, plaintiff was involved in a traffic accident while operating her vehicle through an intersection in Philadelphia. Plaintiffs vehicle was hit on the driver’s side and pushed to the curb so that the right back tire deflated. The vehicle then spun and hit a pole. Damage to plaintiffs vehicle was $2,686.39. The force of the impact caused plaintiffs seat belt to dig into the fabric of the seat. Plaintiff was taken to the Holy Redeemer Hospital for emergency treatment.

(2) On July 23, 1984, plaintiff was treated by her family physician (Dr. Malamut) who diagnosed “acute cervical, thoracic and lumbar strain as well as injuries to the left hip and chest.”

(3) On July 31,1984, plaintiff applied for first-party benefits under her No-fault Insurance Policy. In the application plaintiff described her injuries as “pain in chest and sternum and left hip and lumbosacral pain.” There was no indication of any injury to plaintiffs mouth or teeth in this application.

(4) Plaintiff was examined by Dr. John L. Sbar-baro, an orthopedist, on September 5, 1984 at which time he found “contusions of left hemathorax.” Dr. Sbarbaro continued to treat plaintiff thereafter.

(5) On September 18, 1984, plaintiff was examined by Dr. Polakoff who had performed a cervical lamenectomy on her several years earlier. Dr. Pola-koff diagnosed “thoracic and lumbar strain.”

(6) On October 5,1984, plaintiff was examined by Dr. William L. Robinhold, D.D.S., a dentist, who wrote her a letter on November 2, 1984 stating:

“The examination of X-rays of October 5, 1984 show a horizontal fracture of the upper left first bicuspid tooth and a horizontal incisor fracture of the upper left incisor tooth.
“Your dental examination of July 13,1984 [prior to the accident] showed the teeth to be in normal condition, so I feel that the present fracture areas are definitely due to the automobile accident of July 24, 1984.
“The upper left central incisor can be completed by bonding. The upper left bicuspid will require root canal therapy and a porcelain gold crown.”

(7) On December 7, 1984, plaintiff visited Dr. Robinhold for the second time and he performed a resin bonding of the upper left incisor and again recommended root canal of the bicuspid and thereafter a porcelain crown.

(8) Plaintiff forwarded the bill she received from Dr. Robinhold in the amount of $451 for the bonding of the incisor and X-rays to State Farm Mutual Automobile Insurance Company, her first-party carrier. This was received by State Farm prior to December 17, 1984, and was the first notice it had of any injury to plaintiff’s mouth or teeth.

(9) On or after December 17, 1984, State Farm requested the dental X-rays which were received sometime in January 1985.

(10) Upon receiving the X-rays, State Farm retained Dr. Herbert B. Morgenroth, D.D.S. who reviewed the X-rays and wrote State Farm on or about February 26, 1985, as follows:

“Review of two periapical X-rays dated October 5, 1984, approximately three months post accident, indicate that the teeth for which treatment is requested appear to be extremely worn down. These teeth do not appear to be traumatically fractured. I note that there was [sic] no mouth or facial injuries as per your instructions and with the three-month delay in seeking dental treatment, it is my opinion that the treatment requested is necessary, however, not accident-related.”

(11) In February 1985, plaintiff was examined by Dr. John R. Duda, M.D., an orthopedic surgeon, on behalf of State Farm. Dr. Duda’s report dated February 25, 1985, recited a history and stated the following concerning his examination:

(a) She had “sudden bouts of very sharp expressions of pain causing sudden movements of the joints and back” [this probably should read “caused by” sudden movements of the joints and back].

(b) “Examination of the left sternum reveals no point tenderness but some diffuse tenderness in and about the distal left costochondral junctions.”

(c) Examination of the back revealed “no point tenderness” but there was “some diffuse tenderness in and about thoracolumbar junction with no muscle spasm.”

(d) “Diffuse tenderness in and about the left buttock.”

(e) “Straight left raising test is. negative to 90 degrees both in the sitting and supine positions.”

(f) “Diffuse tenderness that seems to travel in location over the anterior left ilium.”

(g) X-rays revealed “moderate degenerative changes in the lower lumbar spine.”

(h) “My impression is that this lady sustained a contusion to the left sternum and a lumbosacral strain at the time of her accident. I see no evidence of a herniated disk, nerve root impingement or spinal stenosis ... I see no reason to continue formalized physical therapy. I would recommend non-steroidal anti-inflammatory treatment combined with home exercises as needed, but see no reason why this patient cannot return to work at this time.”

(12) On March 4, 1985, Dr. Lawrence K. Spitz, M.D., Medical Director of the Penn Executive Diagnostic Center Inc., issued his first report concerning his examination of plaintiff on behalf of State Farm which took place on February 25, 1985. Dr. Spitz set forth a history and found as follows:

(a) At the time of the examination plaintiffs major complaint was “at the left costochondral junction at approximately the fifth left rib.”

(b) “Pain across her mid-back just below the bra strap line.”

(c) “Pain over her left buttock down the posterior aspect of her left calf to j ust above the popliteal fossa. ”

(d) “Good range of motion of her neck.”

(e) A “single minute area.of tenderness on the fifth costochondral junction on the left to deep palpation.”

'(f) Palpation of her back reveals “no evidence of spasm of the thoracic muscles.”

(g) “Lateral flexion and twisting are normal. Sitting root test and straight-leg raising are negative bilaterally. Reflexes in the lower extremities are within normal limits with no evidence of any muscle wasting in the lower extremities. Sensory examination is normal.”

(h) “I find no objective evidence of any residual from the . . . accident of February 25, 1985.1 see no reason why she cannot return to work in her full former capacity of private duty nurse with full lifting responsibilities ... I also see no reason for any further physical therapy. I did suggest that she remain on the Dolobid twice a day while she does some conditioning swimming ...”

(13) By letter dated March 23, 1985, State Farm notified plaintiff that the $8,000 paid to date was all it would pay for loss of wage benefits under her policy and that further wage benefits would be refused based on the findings of Drs. Spitz and Duda.

(14) On March 28, 1985, plaintiff underwent a CAT scan which revealed a “mild to minimal disc protrusion at L4-5 and a possible large central disc herniation with evidence to the left side of L5-S1.” The CAT scan had been ordered by Dr. Sbarbaro.

(15) By letter dated April 24, 1985, Dr. Sbarbaro wrote State Farm concerning plaintiff as follows:

“Subsequent to the report of January 18,1985, this patient has continued to have complaints of pain in the left anterior chest wall as well as the lower back and left thigh. She has been seen in this office on February 19, March 26 and most recently, on April 11, 1985. A lumbar CAT scan . .. did demonstrate a small lumbar disc with some degenerative changes, however, I think that it is of minimal significance since a lumbar thermogram was also performed and found to be normal. I feel that this woman is just having a tough time getting rid of some minor residuals but they should clear up in the not too distant future. In the interim, she has been advised to use a back brace and apply heat to the affected areas.”

(16) On July 11, 1985, Dr. Sbarbaro wrote Diane Martinelli, a legal assistant of counsel for plaintiff, concerning plaintiff as follows:

“This woman was in her usual state of good health until this accident of July 21, 1984 . .. Subsequent to that time, she has been seen in this office on many occasions with continuing complaints of chest pain as well as pain in the lower back and left hip. The symptoms in the back and left hip were of sufficient magnitude to make one wonder if she did, in fact, have a herniated lumbar disc and for that reason, the lumbar CAT scan was performed and this did demonstrate a small bulge at the 4, 5 level. Accordingly, a lumbar thermogram was performed in order to further evaluate the extent of the pathology and this study proved to be negative ... it is hoped with time and rest that a full recovery will occur. I have had the opportunity to read reports from the Penn Diagnostic Clinic and my only comment there is that I place little value on them because this patient does, in fact, have degenerative changes of the lumbar spine and it is a well known fact that soft tissue injuries superimposed on a degenerative process only inflames the initial degenerative process.
“What we are dealing with here, is an acute strain and small disc problem in the lower back that is superimposed on a pre-existing yet asymptomatic, degenerative process and it is very common to see people with these symptoms drag on for months on end.
“This woman cannot work and would only suffer a major relapse if she was asked to go back and perform her usual nursing duties.”

(17) Although there is no indication on exhibit D-9 that a copy was sent to State Farm, defendant did not deny at the trial that it had previous knowledge of this letter.

(18) In October 1985 plaintiff filed her first suit against State Farm because of the denial in March 1985 of further benefits.

(19) On November 14, 1985, State Farm agreed to pay an additional $6,000 in settlement of the first suit bringing the total payiñent of benefits by defendant to $12,368.85.

(20) The $6,000 paid in settlement of the first suit covered the following items:

$ 4Q0.00 Attorney’s fee
4,368.65 Additional wage loss
1,231.35 Additional medical bills of Dr. Sbarbaro, Holy Redeemer Hospital and for a thermo-gram and a lumbar prosthesis and Holy Redeemer Hospital
$6,000 Total

(21) The State Farm claim activity log specifically states with regard to the payment of $6,000: “Attorney states he will accept $6,000 on (see above). This will not close.”

(22) Following the agreement to pay an additional $6,000 on November 14, 1985, including additional wage benefits of $4,368.65, the maximum of $15,000 for wage loss benefits under the policy had still not been reached since the total amount paid was still $2,631.65 short of this cap.

(23) On March 14, 1986, defendant paid mileage costs to plaintiff totalling $81.60 which had been incurred up to that point.

(24) On March 25, 1986, State Farm paid plaintiff $296 for replacement services for help around the house.

(25) On June 12, 1986, State Farm made the last medical payment prior to the institution of the second suit (the case at bar) in May 1987.

(26) On July 15, 1986, plaintiff again visited Dr. Sbarbaro for treatment.

(27) Dr. Sbarbaro referred plaintiff to Edward H. McGehee, M.D., a professor of medicine at Thomas Jefferson University, because plaintiff had developed high blood pressure. Plaintiff was examined and treated for her blood pressure by Dr. McGehee on August 15, 1986 and September 3, 1986. On September 22, 1986, plaintiff also received injections from Dr. McGehee to relieve pain she was having in costal cartilages 3, 4 and 6 of her left ribs.

(28) On October 10,. 1986, Dr. McGehee sent State Farm an attending physician’s statement in which he diagnosed plaintiffs condition as “lumbar disc L4-5 disruption by auto wreck, parasternal cartilage tenderness.” Dr. McGehee described plaintiffs history as “unable to work since auto collision July 21, 1984 — rib cartilage pains, back disrupted — lumbar disc — heart and chest symptoms not easily separated.” Dr. McGehee also stated in the statement that he had treated plaintiff for “medicine adjustment for blood pressure and given her injections in her rib area.”

(29) In his prognosis Dr. McGehee stated on the form “recurring low back problems, pains after use” and indicated that with reasonable medical probability the patient would continue to require care for “five to 10 years as a start.”

(30) Dr. McGehee also noted on the form that “60 years’ living probably had some effect on [her condition] but it functioned without pain until the accident.”

(31) Prior to Dr. McGehee’s report, State Farm was not aware of a problem with plaintiffs blood pressure but had reason to know of tenderness in the area of her chest. (See findings of fact 2, 3, 11(a), 12(a), 15, 16.)

(32) On October 27, 1986, Dr. Bruce J. Sailor, D.D.S., rendered root canal therapy to plaintiff, affixed a steel post with a composite build-up in her left bicuspid and submitted an attending physician’s report to State Farm showing a charge of ,$515 for this work.

(33) Plaintiff had deferred treatment from Dr. Sailor due to her concern because she had previously had rheumatic fever which required her to take extra precaution in having this kind of dental treatment performed on her. Plaintiff’s high blood pressure also added to this concern.

(34) In December 1986 Dr. Duda examined plaintiff a second time on behalf of State Farm and his second report to Dr. Spitz, which is on the letterhead of Penn Diagnostic Center Inc., stated as follows:

(a) Plaintiff “has continued to complain of low back pain, more left sided than right with radiation down the left lower extremity, down the posterior aspect of the leg to the level of the knee but this is only on occasion. The back pain is worse than the leg pain.”

(b) “Repeat examination again is similar to prior examination with no evidence of a herniated disc, nerve root impingement or spinal stenosis.”

(c) “No evidence of any neurologic deficit.”

(d) “Negative straight leg raising in the sitting position to 90 degrees, positive to left sided leg pain at approximately 80 degrees elevation on the left.”

(e) “A report of a CAT scan. .. dated March 28,1985 reads mild to minimal disc protrusion at L4-5 with the scan raising the question of a more prominent central disc protrusion at L5-S1, but scan artifact may be providing a positive false image. Please correlate.”

(f) His impression was that she still had “signs and symptoms consistent with underlying degenerative joint disease” but “no evidence ... of a herniated disc . .. My conclusion is unchanged and still see no reason from the orthopedic standpoint why this lady could not be gainfully employed on a full-time basis.”

(35) In a second report dated December 12,1986, Dr. Spitz reported to State Farm concerning his second evaluation of plaintiff on December 8, 1986 as follows:

(a) Effort causes pain in low back and down her left leg on lifting, straining or cleaning requiring bed rest for two to three days.

(b) On one occasion on bending to pick up an. object she had a sharp pain in her left chest.

(c) A doctor at Jefferson [McGehee] has given her three injections of her costochondral junction with significant relief of the costochondritis from which she had been suffering.

(d) While the minimal pain in her chest did not really bother her she continued to complain of pain in her left low back down the left buttock and into the left posterior calf.

(e) A CAT scan showed “a small bulge at the L4-5 level which is not felt to be clinically significant” and she is taking Dolobid “on a regular basis.”

(f) On examination no tenderness over the costo- . chondral junctions and the muscles of the chest.

(g) On examination .she moved easily. There was no evidence of any spasm of lumbar or paralumbar muscles.

(h) She did complain of tenderness over the left buttock.

(i) Measurement showed the left thigh 18 inches and the right 18 and one-half inches in circumference and her calves showed a difference of one inch between the left and right but no muscle weakness.

(j) She could sit on the examining table with her back vertical and her legs outstretched straight in front of her without discomfort for a significant period of time.

(k) Flexibility was good to 45 degrees but she then “stopped abruptly because of what she described as tightness and pain in her low back.”

(l) No evidence of any residual from the accident and her CAT scan was “essentially negative.”

(m) There was no evidence of “neurological deficit” and her “sitting root test and the ability to sit at 90 degrees on the examining table indicates, without question, that she has no sciatica.”

(n) No motor weakness.
(o) There was “no need for further physical therapy or medical evaluation ... I see no reason why she cannot return to work . . . doing nursing activities, without restriction.”

(36) On May 7, 1987, plaintiff instituted the second suit (the case at bar).

(37) On December 10, 1987, an arbitration panel awarded plaintiff $4,948.29 broken down as follows:

The difference in wage loss benefits be- $2,631.65 tween $12,368.65 and the $15,000 cap
18-percent interest on wage loss 473.70
Medical benefits (consisting of prescrip- 1.561.81 tions and payment of bills of Drs. McGe-hee, Sbarbaro, Robinhold and Sailor)
18-percent interest on medical benefits 281.13
Total $4,948.29

There was no award for attorneys fees at that time.

(38) Defendant appealed the arbitration award to the common pleas court based on the reports of Drs. Duda and Spitz.

(39) On October 6,1989, the video deposition of Dr. McGehee was taken for use at the trial of this case.

(40) State Farm contends that prior to Dr. McGehee’s deposition it did not understand the relationship between the treatment plaintiff received from Dr. McGehee for high blood pressure and the accident. It was Dr. McGehee’s opinion that plaintiff’s high blood pressure came from the medication she had received to reduce the symptoms caused by the accident. State Farm also contends that it was only as a result of the video deposition that it understood the relationship between the injections Dr. McGehee gave plaintiff in her rib cage and the accident. State Farm asserts that after learning this information defense counsel recommended payment for the treatment rendered by Dr. McGehee which prior to that time did not appear to be related to the accident.

(41) Accordingly, on December 14, 1989, State Farm forwarded checks for the full amounts due Drs. McGehee ($371.32) and Sbarbaro ($246.45) to defense counsel who held them until trial commenced on January 4, 1990.

(42) On January 4, 1990, a settlement was agreed to between the parties as follows:

State Farm to pay the entire balance due $234.40 for prescriptions
State Farm to pay the entire balance due 246.45 Dr. Sbarbaro
State Farm to pay the entire balance due 371.32 Dr. McGehee
State Farm to pay 50 percent of the bal- 385.50 anee due the dentists totalling $771
State Farm to pay 50 percent of the funds 160.00 expended by plaintiff for household help which totalled $320
State Farm to pay $2,500 of the outstand- 2,500.00 ing balance claimed for wage loss which .totalled $2,631.65
Interest (In a conference call initiated by 469.38 the court on February 2, 1990, counsel agreed that an error had been made in adding the components of the agreed settlement amount of $4,367.05 and that the sum of $469.38 should be designated as interest)
Total $4.367.05

(43) The difference between the amount awarded by the arbitration panel of $4,948.29 and the agreed settlement of $4,367.29 comes to $581.

(44) Accordingly, State Farm agreed to settle the claim for 88.26 percent of the award appealed from.

(45) The settlement did not include an award for attorneys’ fees and it was agreed that this would be litigated.

(46) Defendant has posited its refusal to make settlement until after the video deposition of Dr. McGehee totally on its assertion that only then did it learn of the relationship between his treatment of plaintiff for her blood pressure and the accident and the relationship between the injections and the accident.

•(47) While it is understandable why defendant reñí sed to pay Dr. McGehee for his treatment of plaintiff for elevated blood pressure until after it had learned from his video deposition of the connection between the elevated blood pressure and the accident, defendant knew prior to the video deposition that following the accident plaintiff had been complaining of pain in her chest long before she first saw Dr. McGehee (finding of fact 31).

(48) The deposition of Dr. McGehee was not included in the evidence presented at the trial. There is, however, nothing in the notes of testimony of the trial which explains what information therein led State Farm to accept the injections Dr. McGe-hee gave plaintiff as related to the accident when it had not done so before.

(49) Similarly, there is nothing in the notes of testimony of the trial which would disclose what it was in Dr. McGehee’s deposition which caused State Farm to agree to the balance of plaintiff’s wage loss, the prescriptions and Dr. Sbarbaro’s bill when it had not done so before.

(50) Under the circumstances the court must conclude that defendant’s refusal to pay at an earlier date the amount which it agreed to settle the case for on January 4, 1990, was primarily a settlement strategy.

(51) While defendant is entitled to engage in any legitimate settlement strategy which it deems appropriate, defendant’s strategy in this case required the law firm representing plaintiff to spend time in order to properly prepare plaintiff’s case for trial.

(52) The court finds that defendant’s refusal to pay the balance due Dr. Sbarbaro ($246.45), the balance due for prescriptions ($234.40), the amount due Dr. McGehee for injections administered to plaintiff ($46) and the balance due plaintiff for the difference in wage loss benefits between $12,368.65 and the $15,000 cap of the policy prior to the morning of trial (January 4, 1990) was “without reasonable foundation.”

(53) The court finds that the refusal to pay the balance due on the bills of the two dentists was based on a “reasonable foundation.”

(54) Accordingly, the court must find that State Farm’s refusal to pay a “significant part” of the claim in question until the morning of the trial (January 4, 1990) was “without reasonable foundation” at least following the expiration of 30 days after the videotape deposition of Dr. McGehee which took place October 6, 1989.

(55) As a result of defendant’s refusal to agree to pay a “significant part” of the claim “without reasonable foundation” until the morning of trial (January 4, 1990), counsel for plaintiff was obliged to expend a considerable amount of time to prepare her case for trial.

(56) The firm representing plaintiff did not keep time records in this case.

(57) The court finds a reasonable estimate of the time spent by counsel for plaintiff on this case to be as follows:

Partner Associate Paralegal

Time Time Time Service

Va I1/2 6 (a) Complaint

4 1/2 (b) Depositions of plaintiff

1/2 V2 (c) Response to answer

Vk (d) Plaintiff’s interrogatories to defendant (form)

2 — (e) Preparation for arbitration

3 — (f) Attended arbitration

V2 (g) Review defendant’s answers to interrogatories

Vz (h) Plaintiff’s answers to interrogatories (non-informaüve answers such as “see complaint”)

(i) Prepare and attend videotape deposition of doctor

(j) Motion to compel

(k) Correspondence

(l) Prepare for trial I — 1 o LO

(m) Trial H-1 o ^ rH

Total tO Co CO 00

(58) Taking into consideration counsel’s familiarity with the facts due to representation of plaintiff in the earlier suit for first-party benefits (See finding of fact 18) and a prior suit against the third-party tort-feasor involved in the accident, the degree of difficulty of the case and all the circumstances in question, the court finds that appropriate compensation should be set at the rate of $145 per hour for partner time ($5,220), $85 per hour for associate time ($1,955) and $45 per hour for paralegal time ($315).

(59) The court finds that plaintiff is entitled to $7,490 for counsel fees.

CONCLUSIONS OF LAW

(1) Defendant refused to pay a “significant part” of certain first-party benefits owed to plaintiff under her no-fault insurance policy “without reasonable foundation.”

(2) Plaintiff is entitled to reasonable counsel fees of $7,490 under the No-fault Motor Vehicle Insurance Act, 40 Pa.C.S. §1009.107(3), since repealed.

ADJUDICATION

And now, February 7, 1990, following a trial of the matter before the court without a jury on January 4 and 5, 1990, the court awards plaintiff $7,490 for counsel fees under the No-fault Motor Vehicle Insurance Act, 40 Pa.C.S. §1009.107(3), since repealed.

       Plaintiff also claims attorney’s fees under section 1009.107(1) but the court does not find this section applicable.


source: Caselaw Access Project

author: LEVIN, J.,

license: Public Domain

text:
    Sonnenberg v. Erie Metropolitan Transit Authority

      Stephen Tetuan, for plaintiff.

      William Wagner, for defendant.

      February 8, 1990
   LEVIN, J.,

Before this court is a motion for summary judgment brought by defendant, Erie Metropolitan Transit Authority.

This action arises out of an incident which occurred on September 24, 1983. Plaintiff alleges that on that date she was a passenger on a bus operated by defendant and as she attempted to disembark the bus’s rear door closed upon her due to the driver’s action. It is undisputed that the bus was stopped at the time. Plaintiff alleges injuries as a result of this occurrence.

Defendant, EMTA, denies liability and asserts the immunity provisions of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. There are eight exceptions to the general rule of governmental immunity. Plaintiff attempts to impose liability on EMTA through the application of one such exception. This section, 42 Pa.C.S. §8542(b)(l), reads as follows:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(1) Vehicle liability — The operation of any motor vehicle in the possession or control of a local agency. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelléd and any attachment thereto, including vehicles operated by rail, through water or in the air.”

Exceptions to the rule of governmental immunity must be construed narrowly. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

Since this case involves a motion for summary judgment against plaintiff, the court must resolve all factual disputes in favor of plaintiff. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It is not the court’s function to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 475 A.2d 928 (1984).

Inasmuch as it was established that the bus was stopped at the time of the incident, the sole issue before this court is whether the EMTA bus (and its parts) can be considered to have been in “operation” and/or motion as required to bring the situation within the governmental immunity exception. Plaintiff contends that although the bus was stopped it was operating, for movement of the bus door constituted “operation” of a part of the vehicle or an attachment.

Three cases are controlling on the subject of immunity concerning governmental vehicles, Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988); Commonwealth of Pennsylvania, Pennsylvania State Police v. Robinson, 123 Pa. Commw. 401, 554 A.2d 172 (1989); and Gray v. EMTA, 4 D.&C. 4th 250 (1989). These cases hold that there is governmental immunity unless the vehicle in question is literally in motion.

In Love v. City of Philadelphia, supra, the plaintiff was injured while disembarking from a city van. The vehicle was stopped at the time of her exit. The Supreme Court of Pennsylvania, in interpreting whether the city had governmental immunity, held:

“As we have illustrated, to operate something means to actually put it in motion. . . . Thus according to the common and approved usage of the word ‘operation,’ the van was not in operation at the time of Mrs. Love’s accident. Getting into or alighting from a vehicle are merely acts ancillary to actual operation of a vehicle.”

.This holding was clarified in Commonwealth of Pennsylvania, Pennsylvania State Police v. Robinson, supra. The Robinson court made it clear that motion was required for operation, emphasizing:

“Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating the vehicle,” Id. at 404, 554 A.2d at 174, quoting from Love v. City of Philadelphia, 518 Pa. at 374, 543 A.2d at 533. (emphasis in original)

This court, in Gray v. EMTA, supra, addressed the situation where a plaintiff was struck by a car after alighting from an EMTA bus. EMTA asserted governmental immunity under 42 Pa.C.S. §8541. This court, in interpreting Love v. City of Philadelphia, supra, and Commonwealth v. Robinson, supra, emphasized that “a vehicle must actually be in motion for the vehicle exception to apply.” 4 D.&C. 4th at 253. This court went on to define motion to mean “the action or process of changing position. Thus motion presupposes movement.” Id. As enunciated by Love and Robinson, supra, it is the. law that a vehicle must actually be in motion, and not just a mechanical part of the same, for the exception to governmental immunity to apply. The witnesses deposed, including plaintiff, consistently testified that the EMTA bus was not moving at the time of the incident.

Plaintiff attempts to distinguish its case from the above holdings on the basis that the other cases involved accidents occurring outside of, and separate and apart from the vehicle, while plaintiffs incident occurred inside.

Plaintiff first contends that the bus door was “an attachment” under the statute, and that the door’s movement (while the bus was stopped) constitutes “operation.” Neither the statute nor case law define an “attachment” in this context. In interpreting this language the court is mindful that exceptions to the general rule of immunity must be construed narrowly. Mascaro v. Youth Study Center, supra.

Words and phrases shall be construed according to the rules of grammar and according to then-common and approved usage. 1 Pa.C.S. §1903. The American Heritage Dictionary, (rev. 2d ed. 1985), defines an attachment as “a supplemental part; an accessory.” Thus, a bus door is not an attachment, but is analogous to a fixture under real estate law. Black’s Law Dictionary, (5th ed. 1979), defines a fixture as “that which is fixed or attached to something permanently as an appendage.” A bus door is a necessity for the vehicle to be operational. A city bus is not a functioning whole without a door.

Looking to the precise language of the statute, an “attachment” is not that which is required to be in “operation.” The attachment language is used to define motor vehicle as “any vehicle which is self-propelled and any attachment thereto.” (emphasis supplied) Had the operation of an attachment alone been adequate the word or would have been utilized rather than and. Operation of only an attachment is inadequate to bring the facts within the purview of 42 Pa.C.S. §8542(b)(l).

Plaintiff’s corollary assertion is that even if the door is found not to be an attachment, the movement of the door by a mechanical means constitutes adequate “operation.” Motion of the whole vehicle is the sine qua non, not motion of a part of the whole. To follow plaintiff’s assertion to its infinite conclusion, a vehicle would be in motion any time the engine was running because some integral internal part would be moving. Under this line of logic, the opening of a car trunk or hood would constitute such motion as to be operation of a vehicle.

Plaintiff further attempts to construe the movement of the doors as operation of the vehicle due to the fact that they are mechanized and in the sole control of the driver. Whether or not the doors are operated mechanically or manually is not relevant to the question at hand. Mere movement of an integral internal part of the vehicle, manually or by machine, while the vehicle is stationary, is not sufficient to apply the narrow exception to governmental immunity.

Admittedly, the facts in Love and Robinson, supra, are different from the present case; nevertheless, the general pronouncement in Robinson, supra, requiring motion would apply to this case. The vehicle liability exception from governmental immunity is such that it applies only where the whole vehicle is in motion.

In conclusion, viewing the facts in a light most favorable to plaintiff, this governmental immunity exception is not applicable to the case at bar and there exists no genuine issue of material fact. The vehicle was stationary at the time of the incident. The court grants summary judgment in favor of the defendant, EMTA.

ORDER

And now, February 8, 1990, it is hereby ordered, adjudged and decreed that summary judgment is granted in favor of the defendant EMTA against the plaintiff for the reasons set forth in the opinion filed herewith.

       The bus door could be classified as a fixture under the Assembled Economic Unit Doctrine of Fixture Law. Under this doctrine, machinery and equipment which are necessary to the operation of a plant, and placed therein for permanent use, become fixtures irrespective of whether they are physically attached. See Snitzer, E., Pennsylvania Eminent Domain, §603.3 (Supp. 1985). By analogy a bus door is necessary to the operation of a bus and is placed therein for permanent use.


author: MUNDY, Member,

text:
    In re Anonymous No. 114 D.B. 88
    Disciplinary Board Docket no. 114 D.B. 88.
    August 9, 1989
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

MUNDY, Member,

Pursuant to rule 214(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for dissolution or modification of temporary suspension.

INTRODUCTION

This is a matter of first impression. By order of the Supreme Court dated February 7, 1989, Pennsylvania Rule of Disciplinary Enforcement 214 which generally provides for interim suspension of attorneys convicted of crimes was modified to provide that attorneys temporarily suspended in accordance with this rule would have the right to petition the court for dissolution or amendment of the suspension order. The instant petition filed in accordance with (d)(4) of this rule is the first to be filed under the rule change.

PROCEDURAL HISTORY

Petitioner, [ ], was suspended by order of the Supreme Court pursuant to rule 214(d) of the Pennsylvania Rules of Disciplinary Enforcement following petitioner’s conviction on two counts of bookkeeping in violation of 18 Pa.C.S. §5414(3). The order of suspension was dated October 31, 1988 and directed that the suspension be effective November 30, 1988. Following denials of petitioner’s motion for a stay of the suspension order as well as his motion for reconsideration of the suspension, petitioner requested in accordance with rule 214 that the board direct an accelerated hearing. By order dated January 5, 1989, the board granted petitioner’s request for an accelerated hearing, and a petition for discipline was filed on January 23, 1989. The matter was referred to Hearing Committee [ ] for appropriate action.

On May 3, 1989, the hearing committee filed its report with the board in which the recommended discipline was an informal admonition. Following the filing of this report with the board, the instant petition was filed on May 18, 1989 pursuant to a modification of Pennsylvania Rule of Disciplinary Enforcement 214 which had become effective by order of this honorable court on February 7, 1989. In accordance with the revised rule, a “respondent attorney may at any time petition the court for dissolution or amendment of an order of temporary suspension.” Oral argument on the petition was heard by a three-member panel of the board consisting of John R. Padova, Esq., William L. Keller, Esq., and the undersigned on May 26, 1989. Although the rule as amended requires a report and recommendation to be filed with this honorable court within five days of said hearing, petitioner waived this requirement in order to have an opportunity to resolve an issue which arose during the course of the hearing concerning the probationary sentence which had been levied upon petitioner.

FACTUAL SUMMARY

Petitioner was convicted on January 14, 1987 of two counts bookkeeping following a nonjury trial held before the Honorable [A], President Judge of the Court of Common Pleas of [ ] County. The conviction was based on two of a multiplicity of wiretapped conversations between petitioner and a bookmaker. The two conversations which were the subject of the criminal verdict apparently differed from others involving petitioner and the bookmaker in that on these two occasions, petitioner appeared to be placing a bet for someone else in addition to himself thus falling into the ambit of 18 Pa.C.S. §5414(3). The pertinent conversations as introduced at trial were as follows:

A.

[B]: Hello.
[Petitioner]: (Not audible) some more of your bitchin.
[B]: Yeah alright, see I’m going to cry, go ahead.
[Petitioner]: Take Los Angeles up to fifty times.
[B]: Alright you want L.A. minus eight no thirty times.
[Petitioner]: Yeah and try Houston minus two. twenty times.
[B]: Houston laying at ten twenty. That’s not a smart bet. Houston is laying them high numbers.
[Petitioner]: (not audible)
[B]: They are supposed to win tonight but . . . would never lay ten.
[Petitioner]: (not audible)
[B]: Yeah well Ryan is supposed to win especially since Pittsburgh knocked them off last night but. . . I ... I
[Petitioner]: I wouldn’t do it.
[B]: If they win a hundred you lose two hundred.
[Petitioner]: It’s not my bet.
[B]: Okay.
[Petitioner]: Okay.
(emphasis supplied)
B.
[C]: Hello.
[Petitioner]: Hello.
[C]: Yeah [Petitioner].
[Petitioner]: I want to bet Oklahoma a hundred and forty times and some guy wants to bet it thirty so I was asking whether I could bet it a hundred and seventy total?
[C]: Alright let me mark it down. Oklahoma a hundred seventy times total.
[Petitioner]: Right.
[C]: Army . . .
[Petitioner]: The same thing, the guy wants thirty times on Army and thirty times on Oklahoma and that’s exactly what I’m betting.
[C]: Alright.
[Petitioner]: So take them both for a hundred and seventy if you can. If you can’t give me a call back (not audible).
[C]: Will do.
[Petitioner]: Thank you.
[C]: Okay.
[Petitioner]: Bye.
[C]: Bye-bye.
(emphasis supplied)

These conversations constituted the sole evidence of wrongful conduct by [petitioner] according to Judge [A], who stated:

“This case is different than most cases because the evidence against the defendant is based solely on his own words and an interpretation of what he meant at the time he used those words.”

Petitioner was found innocent of bookmaking and conspiracy but on the basis of this conversation was convicted of bookkeeping. As a result of this conviction, petitioner was sentenced by Judge [A] to probation for a period of one year and fined $600.

Although the conviction occurred in [ ] County, the matter was transferred to [ ] County for purposes of enforcing the probation. However, at petitioner’s request, Judge [A] agreed to abate petitioner’s probation during the pendency of. the appeal of his conviction to the Superior Court. That appeal was denied by the Superior Court coincidentally on the same date that the instant petition was filed by petitioner. Thus, at the time of the oral argument pursuant to this petition, petitioner’s sentence of probation for a period of one year had yet to commence.

DISCUSSION

In a nutshell, petitioner’s plea for relief from his interim suspension is based primarily upon the hearing committee’s recommendation that an informal admonition is the appropriate discipline to be rendered in this case. According to petitioner, the recommendation of private discipline by a hearing committee after a thorough review and analysis to petitioner’s misconduct, constitutes a change of circumstance of sufficient magnitude to prompt immediate review by the Supreme Court to determine whether there exists a continued need for interim suspension. At argument, the Office of Disciplinary Counsel opposed petitioner’s requested relief on the basis that petitioner had yet to serve his one-year probation. It was the position of disciplinary counsel, based upon numerous authorities cited in its brief, that a lawyer who has been suspended from the practice of law based upon a criminal conviction should not be reinstated while serving a period of probation based upon that conviction. Disciplinary counsel cited as authority for this position In re Anonymous No. 90 D.B. 84, 34 D.&C. 3d 246 (1985), in which the board stated inter alia:

“The board is of the opinion that generally a person who is under sentence whether by federal court or by state court should not be permitted to practice before the courts of this commonwealth ...” 34 D.&C. 3d at 250.

Disciplinary counsel also emphasized another case in which this board in recommending a one-year suspension stated:

“This punishment would best serve the interest of the public as well as the respondent by allowing him to resume the practice of law at the conclusion of his probationary sentence, ... ” In re Anonymous No. 15 D.B. 83, 28 D.&C. 3d 609, 617 (1983).

In citing these and other similar cases, Office of Disciplinary Counsel urged that the board had in fact developed through precedent an implied per se rule that a suspended lawyer should not be permitted reinstatement until the terms of his criminal conviction including probation had been complied with fully. Disciplinary counsel further argued that in accepting the recommendation of the board in these cases, the Supreme Court had in fact adopted this per se rule.

In response, petitioner pointed out that even in the cited cases, the board resisted adopting a per se rule and instead based its recommendation on the facts in each case. For example, even in the cases referred to infra■ in the first case, the word “generally” was used, and in the second matter, the board referred to “this punishment” meaning the punishment in that particular case. In no case, according to petitioner, has the board or the court stated explicitly that a lawyer is ineligible for reinstatement because of a continuing probation.

Nevertheless, at the close of oral argument, petitioner chose to waive the mandate under rule 214(d)(3) requiring the board to file its recommendation with the Supreme Court within five days of oral argument. Instead, petitioner sought the opportunity to request Judge [A], in view of the elapsed time and petitioner’s model behavior since his conviction, to waive or otherwise modify the sentence of the probation. These efforts culminated in an order entered by Judge [A] on July 26, 1989 whereby the court’s order with respect to petitioner’s probation was revoked and in lieu thereof, petitioner was directed to perform 100 hours of legal services on a voluntary basis with the [D] Legal Services Corporation upon his reinstatement to the bar. A copy of Judge [A’s] order is attached hereto as Exhibit A.

Because of Judge [A’s] order, the issue of a per se rule with respect to probation is moot. Nevertheless, we chose this opportunity to reject the concept of a per se rule with respect to recommended discipline. The Supreme Court has stated in clear terms that in this commonwealth each case shall be judged individually upon the facts and circumstances therein presented. See Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). Obviously, a lawyer’s probationary status casts ominous overtones when considering the prospect of returning that individual to practice in view of our primary objective of protecting the public. While we reject the concept of a per se rule, we recognize and believe petitioner correctly analyzed the difficulties presented by the impending period of probation by seeking modification of this order.

Judge [A’s] order not only removes the potential impediment to reinstatement of probation but, in fact, contemplates petitioner’s return to good standing by ordering him to devote 100 hours of legal service without fee. It is the unanimous opinion of this board in light of Judge [A’s] order removing the sole basis for Office of Disciplinary Counsel’s opposition to the instant petition that the temporary interim suspension of petitioner, [ ], be terminated.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania upon due consideration of the matters raised in the instant petition and particularly because of the removal of the potential impediment presented by petitioner’s sentence of probation, unanimously recommends to this honorable court that the interim suspension of petitioner, [ ], be dissolved.

Ms. Heh and Messrs. Brown, Douglas and Stoelker did not participate in the adjudication.

ORDER

And now, 'September 18, 1989, upon consideration of the petition for dissolution or modification of temporary suspension under rule 214(d)(4), Pa.R.D.E., and the report and recommendation of the disciplinary board dated August 9, 1989, the temporary suspension entered by this court on October 31, 1988, is hereby dissolved.


author: BORTNER, J.,

text:
    Childs Instant Homes Inc. v. Wolstenholme

      December 1, 1989

      Peter Harrison, for plaintiff.

      J. Michael Ruttle, for defendant.
   BORTNER, J.,

This is an action in ejectment by Childs Instant Homes Inc., plaintiff, against defendants who are tenants at plaintiff’s mobile home park under separate leaseholds. Plaintiff filed this action in ejectment after defendants’ leases were terminated and defendants chose not to accept the proffered new leases. This action having been heard, we make the following

FINDINGS OF FACT

(1) Plaintiff, Child Instant Homes Inc., is owner of real estate consisting of a mobile home park located in Doylestown Township and New Britain Borough.

(2) Plaintiff does business under the aforesaid corporate name as well as the duly registered corporate fictitious names of Colonial Heritage and Lake Ridge.

. (3) Defendants Robert F. Wolstenholme and Theresa L. Wolstenholme reside at Lot no. 198 in Colonial Heritage under a lease dated March 10, 1983.

(4) Defendants Charles J. Adamitis and Patricia J. Gampa reside at Lot no. 42 in Lake Ridge under a lease dated December 11, 1986.

(5) Defendants James R. Hellerick and Audrey Hunsberger reside at Lot no. 57 in Lake Ridge under a lease dated March 4, 1986.

(6) The above-mentioned leases were for month-to-month tenancies.

(7) By written notice dated June 24, 1988, plaintiff advised defendants that their existing lease agreements were terminated, and a new lease agreement would be applicable to all residents’ tenancies, effective after July 31, 1988.

(8) In addition, plaintiff also served notice on defendants on August 9, 1988, advising them that their failure to enter into the new lease and complete new registration certificate was considered by plaintiff as an intention on the part of defendants not to renew their leases or to remain residents of plaintiff’s mobile home parks. Said notice also directed defendants to vacate the premises.

(9) All defendants have remained in possession of plaintiff’s property after the notice to quit.

(10) Each of defendants’ leases, which were in effect prior to July 31, 1988, provides that, in the event that defendants shall fail to deliver immediate possession of the rented premises to plaintiff at the termination of the lease for any reason, defendants shall pay plaintiff, as liquidated damages, for the time possession of the demised premises is withheld, the sum of $10 per day.

(11) Based upon the above-mentioned leases, each of defendants is liable to plaintiff for the sum of $10 per day, as liquidated damages, beginning August 1, 1988 and continuing until possession of the leased premises is delivered to plaintiff.

(12) Since August 1, 1988, none of defendants have paid rent to plaintiff either in the amount set forth in the leases in effect prior to August 1, 1988 or in the current amount required under the proffered new leases.

(13) On September 29,1988, plaintiff commenced an action in ejectment against defendants.

(14) On July 17, 1989, trial was held before the undersigned.

Defendants allege that lease termination is not a recognized ground for eviction under the Mobile Homes Rights Act, 68 P.S. §398.1 et seq., and thus plaintiff cannot succeed. However, the instant action is clearly one in ejectment after the leases were terminated — not one in eviction.

An eviction and action for ejectment are separate and exclusive remedies. G&G Mobile Home Sales v. Godfrey, 15 D.&C. 3d 752, 754 (1979). “An eviction is the termination of the leasehold interest before the end of the term for a breach of one of the conditions of the lease.” Id. at 754.

The recovery of real estate by the landlord at the expiration of the term of the lease is not an eviction. Id. at 756. It is the duty of the tenant to give up possession of the premises at the end of the term of his leasehold. If he does not, the landlord has a right to recover possession by an action in ejectment. 2 Stem’s Trickett on the Law of Landlord and Tenant §446.

The court in G&G Mobile Home Sales v. Godfrey, supra, held that the act, which limits the reasons for ejection from a mobile home park, does not limit a landlord’s right to recover the premises at the expiration of the term of a lease. This holding applies even to leases on a month-to-month term. The Godfrey court reasoned that if mobile home park owners did not have the right to recover their premises at the expiration of the lease, tenants would have perpetual leases.

We find that plaintiff properly terminated defendants’ existing leases and offered new leases. Since defendants rejected the new leases, plaintiff’s action in ejectment is proper and defendants must give up possession.

ORDER

And now, December 1, 1989, we hereby enter an order in ejectment, requiring defendants to deliver and yield to plaintiff possession of the premises upon which defendants reside. We further enter judgment in favor of plaintiff and against defendants for liquidated damages calculated in accordance with defendants’ prior lease agreements and oil and electric charges. ,

We award judgment against defendants in the following amounts:

(1) Robert Wolstenholme and Theresa Wolsten-holme in the amount of $5,183.95.

(2) Charles Adamitis and Patricia Gampa in the amount of $6,117.64.

(3) James Helleiick and Audrey Hunsberger in the amount of $5,800.45.


author: JOYCE, J.,

text:
    PennDOT v. Cole

      February 28, 1990

      Kathryn Linn-Stephenson, deputy attorney general, for the commonwealth.

      Dennis G. Kuftic, for defendant.
   JOYCE, J.,

This matter is before the court as a result of defendant’s appeal of the suspension of his driver’s license for refusal to submit to a blood test. Defendant contends that his refusal wás vitiated when the arresting officer obtained a blood test without defendant’s permission in violation of 75 Pa.C.S. § 1547(b).

Novel as defendant’s argument may be, this court is in agreement with the Commonwealth Court’s decision in Lane v. Dept. of Transportation, 124 Pa. Commw. 246, 556 A.2d 12 (1989). There, the appellant also relied on the language of section 1547(b)(1) which states that “testing shall not be conducted ...” claiming that any subsequent test vitiates a previous refusal. As the Commonwealth Court has consistently held, “submission to chemical testing performed by hospital personnel, whether prior to or subsequent to a refusal . . . does not constitute compliance with section 1547 ...” Lane at 250, 556 A.2d at 14.

Furthermore, the court in Dept. of Transportation v. Emory, 91 Pa. Commw. 580, 498 A.2d 26 (1985), found that blood testing performed pursuant to section 3755 does not bar suspension of an operator’s license for failure to comply with section 1547. Section 3755 places an affirmative duty on emergency room personnel in treating victims of vehicular accidents to obtain blood samples when requested by a police officer who has determined that probable cause exists to believe that the operator of the vehicle was in violation of section 3731. Emory at 583, 498 A.2d at 28.

The uncontroverted evidence in the case clearly demonstrates that: (1) appellant was in the emergency room to seek treatment for injuries sustained in a vehicle accident, (2) the defendant unequivocally refused to submit to a blood test, (3) the arresting officer had sufficient probable cause to suspect appellant of operating his vehicle in violation of section 373.1, and (4) the hospital personnel were required by law to obtain a blood test at the direction of the police officer. Therefore, the fact that a blood test was taken pursuant to section 3755 subsequent to appellant’s refusal does not negate the refusal for purposes of section 1547.

Additionally, the issue as to whether a refusal exists is a question of fact, the circumstances of this case clearly support the conclusion that defendant in fact refused the test within the meaning of section 1547. Defendant’s combative nature, consisting of spitting in the officer’s face and his refusal to sign the form, clearly delineates his position with respect to taking the test. Defendant did nothing further to suggest that he wished to retract his refusal nor waive it. Consequently, this court finds no evidence which would vitiate defendant’s refusal.

ORDER

And now, February 28, 1990, it is hereby ordered and decreed that defendant’s appeal from suspension of his driver’s license is dismissed.


author: DAVISON, J.,

text:
    Century 21 Daystar Inc. v. Phillips
    April 10, 1990

      Kevin J. Kelleher, for plaintiff.

      Jerry A. Snyder, for defendants.
   DAVISON, J.,

Presently before the court is defendant’s motion to strike a lis pen-dens. For the reasons hereinafter specified, we are obliged to conclude that the lis pendens should be stricken.

The facts are relatively simple. Plaintiff was the real estate broker in an earlier agreement to sell the subject premises and, when the transaction was not completed, filed this suit for its commission and caused a lis pendens to be entered against the subject premises.

Defendant’s counsel correctly argues that recent case law dictates that a lis pendens may only be indexed when title to the real estate itself is involved in a suit. U.S. Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Paull v. Paull, 389 Pa. 16, 131 A.2d 599 (1957). Further light is shed by virtue of the opinion of the Honorable Donald E. Wieand, speaking for a three-judge panel of the Superior Court in Psaki v. Ferrari, 377 Pa. Super. 1, 546 A.2d 1127 (1988):

“Strictly speaking, the effect of a lis pendens is not to establish an actual hen upon the property affected. Its purpose is merely to give notice to third persons that the real estate is subject to litigation and that any interest which they may acquire in the real estate will be subject to the result of the action. Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725, 726-7 (1955). Lis pendens has no application except in cases involving the adjudication of rights in specific property. Shannon v. Barrett, 65 D.&C. 2d 446, 448-9 (1974). Thus, a party is not entitled to have his case indexed as lis pendens unless title to real estate is involved in litigation. Lis pendens may not be predicated upon an action seeking to recover a personal demand. 54 C.J.S. Lis Pendens §11.”

As in Psaki, the case sub judice involves nothing more than the filing of a lis pendens in an attempt to recover a real estate commission. Title or specific rights in the property are not being litigated. Plaintiff is merely attempting to recover commission from a breach of contract, and attempting to leverage its situation. Accordingly, the lis pendens shall be stricken.

In their motion to strike the lis pendens, the defendants request that counsel fees be awarded. While the request is not completely without merit, we are not satisfied that in its present posture the matter warrants the imposition of counsel fees. Therefore, we are obliged to deny defendants’ request for counsel fees.

ORDER

Now, April 10, 1990, for the reasons set forth in the accompanying opinion, it is ordered that the lis pendens is stricken; and it is further ordered that defendants’ request for counsel fees is hereby denied.


author: DOWLING, J.,

text:
    Bair Estate v. Harrisburg Hunters and Anglers Association
    April 3, 1990

      Joseph J. Dixon, for plaintiff.

      Randall G. Gale, for defendant.
   DOWLING, J.,

Perhaps the most prolific source of discovery disputes is experts; their identity, reports and purported testimony. Both plaintiffs and defendants want to play their cards close to the chest and put them on the table as near the end of the hand as possible.

However, since the advent of the rules of discovery, this practice has been frowned upon, sometimes to the dismay of plaintiffs counsel, at other times to the chagrin of defense lawyers, and, as we have commented in an opinion just last month, to the chagrin of this particular trial judge.

In the game now being played, defendant’s attorney is attempting to delay discovery of expert information by stating that he has not yet decided if his expert will be called to testify; and, if not, his information is privileged.

The facts are instructive. Dorothy Bair, while occupying the caretaker’s cottage of the Hunters and Anglers Association, was burned to death in a fire on the premises on March 4, 1988. Suit was instituted November 30, 1988,. and along with the writ of summons was served a request for production of documents which included a request for:

“(2) All expert opinions, reports, summaries or other writings in your custody or control or in the custody or control of your attorney or insurers, which relate to the subject matter of this litigation.”

Defendant responded on January 6,1989 by stating:

“(2) Objected to as beyond the scope of Pa. Rules of Civil Procedure.”

Later, on December 6, 1989, plaintiff served interrogatories asking, inter alia:

“(2) If you or anyone on your behalf has conducted any investigations of the incident which is the subject matter of the complaint, identify:
“(a) each person, and the employer of each person, who conducted any investigations:
“(b) the dates of the investigations;
“(c) all notes, reports or other documents prepared during or as a result of the investigations and the identity of the persons who have possession thereof.”

When defendant failed to answer the interrogatories, plaintiff filed a motion for sanctions on February 8, 1990. This court held a 5A discovery conference and entered an order on February 14, 1990 directing defendant to respond to plaintiff’s interrogatories within 10 days. On February 19, 1990, defendant answered the interrogatory at issue , by responding:

“Defendant had a fire expert, Gerald J. Kufta, investigate on March 4, 1988. A rqport is in the possession of counsel.”

Of particular significance is also defendant’s answer to interrogatory no. 3, especially its response to (3)(d)7

“(3) Please identify each person whom you expect to call as an expert witness at trial, stating as to each person:
“(a) full name, home address, business address:
“(b) the subject matter on which the expert is expected to testify:
“(c) the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The answer or separate report must be signed by each expert; and
“(d) the date when the expert was initially contacted by defendant, defendant’s counsel, or any individual representing the defendant or acting in any fashion on behalf of the defendant.”

Answer:

“(3)(a-c) No determination has yet been made as to experts.
“(3)(d) Objection. Interrogatory (3)(d) seeks information beyond the scope of expert discovery by the Pennsylvania Rules of Civil Procedure.”

Plaintiff then filed a second motion for sanctions on February 28 claiming that defendant’s answer and objections were untimely, being beyond the 30-day limitation imposed by Pa.R.C.P. 4006(a)(2), and that they were not an appropriate response to the court order.

The matter before us concerns plaintiff’s second motion for sanctions in which it requests the production of certain documents; specifically, the report of plaintiff’s expert, Gerald J. Kufta.

We can quickly dispose of the late filing issue, for the matter was dealt with by the court’s order of February 14, directing a response within 10 days, which was complied with; although not to plaintiff’s satisfaction.

It is defendant’s position that the rules pertaining to experts are inapplicable since it has not determined whether Mr. Kufta wilF be called as an expert, and, as such, the information is protected by Rule of Civil Procedure 4003.5(3):

“(3) A party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial. ...”

Defendant would have it both ways. It admits it has an expert, but says it needn’t comply with Rule of Civil Procedure 4003.5(1) pertaining to experts’ reports because it hasn’t decided if it will use him at trial, and needn’t comply with Rule of Civil Procedure 4003.5(3) because he was retained in anticipation of trial.

It would appear that the Hunters and Anglers Association wants to run with the hares and hunt with the hounds.

One might inquire as to how long a party may withhold the appellation of a potential witness as a “trial expert,” and thus, be exempted from discovery. Fortunately, plaintiff’s request need not be decided on these grounds. We will accept, for the moment, defense’s quandary as to whether to call Mr. Kufta to the stand and base our decision on the general rule that “a party may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action ... ” for obviously, information gleaned from an on-site investigation of the fire is of primary relevancy. As to the exception in 4003.5(3), it will be recalled that suit was not instituted until nearly nine months after the catastrophe; and since we are not dealing with the human period of gestation, where, admittedly, a birth occurring in late November could have been conceived in early March, it is difficult to say that Mr. Kufta, retained when the ruins were still smoldering, was employed in anticipation of litigation or preparation for trial.

It is also helpful to note defendant’s answer to interrogatory (3)(d), where plaintiff asked for details as to when the expert was initially contacted by defendant’s counsel, or any individual representing defendant, which interrogatory defendant refused to answer. The most reasonable interpretation is that the. expert was there on behalf of the fire insurance company to begin the ordinary claims processing of the fire damage.

Defendant’s gamesmanship seems contrary to the spirit of the rules of discovery which call for a liberal construction.

Interestingly enough, the very defense counsel representing Harrisburg Hunters ánd Anglers Association were engaged in a similar situation in our sister county across the broad Susquehanna. In Wolf v. Old Guard Mutual Insurance Company, 47 D.&C. 3d 218 (1987), a fire occurred on September 20, 1984, and the defendant retained UBA Fire and Explosion Investigators to determine the origin of the conflagration. Suit was not filed until January 22, 1986, along with a request for production of documents including the UBA expert report. Defendant refused to produce it, and a motion for sanctions was filed. The defense, as here, took the position that not only was the UBA investigation conducted “in anticipation of litigation” or as “preparation for trial,” but that, in addition, it had not yet been determined whether UBA would be called at trial.

In directing deféndant to produce the report, Judge Kevin A. Hess stated:

“In summary, the UBA report was commissioned in the ordinary course of the claims process. It is admitted that UBA was retained immediately after the fire and that it visited the scene within one week and that a report was issued. It is therefore clear, to us, that the UBA investigation, conducted immediately after the fire, is simply part of the body of evidence in this case and is not at all the type of Tacts known or opinions held by an expert’ within the meaning of rule 4003.5. In short, we are satisfied that plaintiffs are entitled to a copy of the report as a matter of appropriate discovery.” Wolf at 222.

Accordingly, we enter the following

ORDER

And now, April 3, 1990, defendant, Harrisburg Hunters and Anglers Association, is ordered and directed to within seven days of the date hereof make available to counsel for plaintiff a complete copy of the investigative report of Gerald J. Kufta.

      . Lane v. Hartford Accident, 5 D.&C. 4th 32 (1990).

      . “(1) A party may through interrogatories require
      “(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
      “(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.”

      . Rule of Civil Procedure 4003.1.

      . 4001:3. Liberal Construction of Rules — In accordance with the precept of rule 126, supra, that the Pennsylvania Rules of Civil Procedure shall be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable, the courts since the inception of the rules have followed the policy that discovery should be liberally allowed and that the limitations thereof should be narrowly construed. The opinions interpreting the original 1951 rules were unanimous in their support of wide discovery within the limits of the restraints of rule 4011, and the policy of liberal construction has continued to the present time. This is in accord with the policy of liberal construction of the Federal Rules of Civil Procedure, from which the basic discovery rules in Pennsylvania were derived.


author: WALSH, P.J.,

text:
    Estep v. Merritt
    April 11, 1990

      David. F. White, for plaintiff.

      Enid W. Harris, for defendant.
   WALSH, P.J.,

This matter is a civil action at law and in equity brought by plaintiff Lisa Blender Estep against Floyd Merritt Jr., an uninsured motorist with whom Ms. Estep was involved in an automobile accident, and USAA Casualty Insurance Co., a company with whom the plaintiff was a policyholder at the time of the December 1987 accident. Count I of the complaint filed by Ms. Estep alleges a cause of action in * negligence against Mr. Merritt, and the remaining two counts, lodged solely against defendant insurance company, are equitable in nature; the relief sought is a reformation of the insurance contract to give plaintiff a greatly increased amount of uninsured motorist coverage. USAA has filed several preliminary objections to the complaint, among them a demurrer and a motion to dismiss. Prior to embarking on a discussion of the merits of these objections, we shall set forth in brief detail plaintiff’s insurance policy and several key provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, both of which are central to this dispute.

According to Ms. Estep, she secured a policy of automobile insurance from USAA which afforded her uninsured motorist coverage of $25,000 and general liability coverage in the amount of $50,000. She has set forth the position that her present coverage is insufficient and she hopes through the above-captioned action to compel this court to increase the amount of available uninsured motorist benefits to $100,000 or in the alternative, $50,000. The figure of $100,000 is derived from sections 1791 and 1792 of the MVFRL, which she claims specifically entitle her to this amount of benefits; in relevant part they provide:

“§1791. Notice of available benefits and limits
“It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least 10-point type is given to the applicant at the time of application for original coverage or at the time of the first renewal after October 1, 1984, and no other notice or rejection shall be required:
‘Important Notice’ ”
“ ‘Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle:. . .
“ ‘(6) Uninsured, underinsured and bodily injury coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one accident.
“ ‘Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above.
“ ‘Your signature on this notice or your payment of any renewal premium evidences your knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected.’
“§1792. Availability of uninsured, underinsured, bodily injury liability and property damage coverages
“Except for policies issued under Subchapter D (relating to Assigned Risk Plan), an insurer issuing a policy of bodily injury liability coverage pursuant to this chapter shall make available for purchase higher limits of uninsured, underinsured and bodily injury liability coverages up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single. limit for these coverages. Additionally, an insurer shall make available for purchase at least $5,000 because of damage to property of others in any one accident. However; the exclusion of availability relating to the Assigned Risk Plan shall not apply to damage to property of others in any one accident.”

USAA, plaintiff has alleged in her complaint, neglected to inform her of the available amount of uninsured motorist benefits although she as an. insured was required to be so informed. Ms. Estep has interpreted the above statutes to mean that USAA is now obligated, because of its error in not telling her of the available coverage, to provide uninsured motorist benéfits in the amount of $100,000.

In the alternative, Ms. Estep claims that under section 1734 of the MVFRL, she is entitled to coverage of $50,000, a figure which also represents a substantial increase from her already existing benefits. Set forth below in its entirety, plaintiff claims this statute bears directly on the matter at issue because it concerns the method by which a party may select the amount of uninsured motorist coverage in his or her policy.

“§1734. Request for lower or higher limits of coverage
“A named insured may request in writing the. issuance of coverages under section 1731 (relating to scope and amount of coverage) in amounts less than the limits of liability for bodily injpry but in no event less than the amounts required by this chapter for bodily injury. If the named insured has selected uninsured and underinsured motorist coverage in connection with a policy previously issued to him by the same insurer under section 1731, the coverages offered need not be provided in excess of the limits of liability previously issued for uninsured and underinsured motorist coverage unless the named insured requests in writing higher limits of liability for those coverages.”

Because Ms. Estep alleges that she never requested in writing uninsured motorist coverage with a limit substantially lower than the liability coverage contained in her insurance policy, she seeks to have her relatively low level of coverage raised via a contract reformation.

We turn now to the preliminary objections filed by U SAA, the first of which is a motion to dismiss based upon an alleged misjoinder of the negligence cause of action against Mr. Merritt and the equitable cause of action against the defendant insurance company. While plaintiff has raised several arguments in opposition, maintaining that the joinder of the claims and the parties is indeed proper, she has indicated that she would voluntarily accommodate the moving party and sever the actions against Mr. Merritt and USAA; in light of the parties’ agreement on this issue we shall order the actions to be severed.

The remaining two objections, which are in the nature of a demurrer, present ÚSAA’s contention that Ms. Estep was given notice of the benefits available to her at the time she selected her insurance policy; further, these objections challenge plaintiff’s interpretation of the relevant sections of the MVFRL as well as expound upon USAA’s own legal theories regarding those statutes and the bearing they might have on the limits of uninsured motorist coverage. The moving party claims, for the reasons cited above, that Ms. Estep has failed to state a valid cause of action against it, yet after reviewing these contentions in conjunction with the controlling principles of law, we have found that they will not bear nearly the weight of reliance which USAA places upon them, with the result that the remaining preliminary objections must be denied.

For the purposes of a demurrer, the moving party admits every well-pleaded material fact set forth in the complaint as well as all reasonable inferences arising therefrom, but not conclusions of law. Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984). Where it appears with certainty that upon the facts averred the law will not permit recovery by plaintiff, a demurrer shall be sustained. Delturco v. Peoples Home Savings Association, 329 Pa. Super. 258, 478 A.2d 456 (1984). Conversely, if the facts as pleaded state a claim for which relief may be granted under any theory of law, then there is sufficient doubt to reject a preliminary objection in the nature of a demurrer. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978).

We have examined the facts surrounding the dispute as pleaded in the complaint as well as previous court actions which directly concern contested levels of uninsured motorist coverage, and have concluded plaintiff may be entitled to the relief she seeks if it is ultimately established, as it has been thus far claimed, that Ms. Estep did not intentionally relinquish a higher level of uninsured motorist coverage and in fact was not afforded the opportunity to reject such coverage because none was offered. Whether or not plaintiff’s claims will be proven is at this stage in the proceedings an unresolved issue, although the complaint itself is certainly sufficient to escape the demurrer. The arguments contained in USAA’s objections do not persuade us that Ms. Estep has failed to state a valid cause of action, and in fact merely restate the standing dispute from that defendant’s viewpoint. The preliminary objections in the nature of a demurrer, having no merit, shall be denied.

ORDER

Now, April 11, 1990,' for the reasons stated in the foregoing opinion, it is hereby ordered and decreed that the first preliminary objection is granted, and the above-captioned action against both defendants is dismissed; plaintiff must proceed separately against the two named defendants and may refile the actions accordingly. It is further ordered that the remaining two preliminary objections are denied.

      . 75 Pa.C.S. §1701 et seq.

      . Because Mr. Merritt failed to comply with Lackawanna County R.C.P. 1028, he is deemed not to contest the issue of severance or any other issues raised in the preliminary objections filed by USAA.

      . See Johnson v. Concord Mutual Insurance Company, 450 Pa. 614, 300 A.2d 61 (1973); Hepler v. Liberty Mutual Fire Insurance Company, 3 D.&C. 4th 419 (1989); Prudential Property & Casualty Company v. Pendleton, 858 F.2d 930 (3d Cir. 1988).