author: O’MALLEY, J.,

text:
    Molinaro v. PennDOT

      Matthew A. Cartwright, for plaintiff.

      Jefferson J. Shipman, deputy attorney general, for PennDOT.
    July 31, 1989
   O’MALLEY, J.,

This matter had its inception on April 5,1985, when plaintiff, John J. Molinaro, an employee of defendant, Commonwealth of Pennsylvania, Department of Transportation, in its local office situated in Dunmore, Lackawanna County, Pa., was injured while operating his vehicle in Wayne County when the vehicle allegedly hit a berm drop-off along the side of a commonwealth highway. A complaint regarding this accident was filed by plaintiff against PennDOT on August 12, 1987. PennDOT has filed a motion for summary judgment arguing that plaintiff’s cause of action is barred for failure to file the statutory notice of intent to sue pursuant to 42 Pa.C.S. §5522 and because plaintiff’s cause of action does not fall within any of the limited exceptions to sovereign immunity at 42 Pa.C.S. §8522(b). The motion will be denied.

The law on summary judgment is well settled:

“Summary judgment is made available by Pa.R.C.P. 1035 . . . when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment.” Husak v. Berkel Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975). (citations omitted)

Notice

Suits against municipalities and states usually involve special procedures, the most common which is a requirement that the plaintiff notify the governmental entity of the claim within a short period after the injury or at least some period before suit is filed. One unfortunate effect of these provisions is to lay a trap for the injured person. Prosser and Keeton on Torts (5th ed. 1984).

42 Pa.C.S. §5522, one of these procedures, reads, in part:

“(a) Notice prerequisite to action against government unit
“(1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this commonwealth or elsewhere against a governmental unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a commonwealth agency for damages, then also file in the Office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:
“(i) The name and residence address of the person to whom the cause of action has accrued.
“(ii) The name and residence address of the person injured.
“(iil) The date and hour of the accident.
“(iv) The approximate location where the accident occurred.
“(v) The name and residence or office address of any attending physician.”

In a separate paragraph, the statute goes on:

“(2) If the statement provided for by this subsection is not filed, any civil action or proceeding commenced against the government unit more than six months after the date of injury to person or property shall be dismissed and the person to whom any such cause of action accrued for any injury to person or property shall be forever barred from proceeding further thereon within this commonwealth or elsewhere. The court shall excuse failure to comply with the requirement upon a showing of reasonable excuse for failure to file such statement.
“(3) In the case of a civil action or proceeding against a governmental unit other than the commonwealth government:. .. .
“(hi) Failure to comply with this subsection shall not be a bar if the government unit had actual or constructive notice of the incident or condition giving rise to the claim of a person.” (emphasis supplied)

The Pennsylvania Department of Transportation, a Commonwealth agency, being involved, plaintiff does not come under (3)(iii) and its actual or constructive notice provision. However, actual notice has been considered under reasonable excuse. It is therefore necessary to define “reasonable excuse.”

This phrase had been included in various predecessors of the above legislation. In the Act of July 1, 1937, P.L. 2547, §1, 53 P.S. §2774, later 53 P.S. §5301 it was set forth:

“Hereafter any person, copartnership, association or corporation claiming damages from any county, city, borough, town, township, school district or other municipality, arising from the negligence of such municipality or any employee thereof, shall within six months from the date of the negligence complained of, file in the office of the clerk or secretary of such municipality a notice in writing of such claim, stating briefly the facts upon which the claim is based. Such notice shall be signed by the person or persons claiming damages or their representatives. No cause of action may be validly entered of record where there was a failure to file such notice within the time required by this act except leave of court to enter such action upon a showing of a reasonable excuse for failure to file said notice shall first have been secured.” (emphasis supplied)

It has generally been held that statutes such as this one should not be applied as rigorously as a statute of limitations. Lumadue v. Cumberland Valley School District, 31 D.&C. 3d 384 (1983). Further, it is clear that as compared to a statute of limitations which bars the right to bring the action, this act provides an affirmative defense to recovery, but does not affect the right to bring the suit. Landis v. City of Philadelphia, 245 Pa. Super. 515, 369 A.2d 746 (1976). The purpose of notice requirements in any act or ordinance is to insure that the affected parties will have an opportunity to assert their rights so that the same will not be summarily prejudiced. City of Pittsburgh v. Pennsylvania Railroad, 107 Pitts. Leg. J. 43 (1956), aff'd., 394 Pa. 58, 145 A.2d 700 (1958). The legislature did not intend to erect an artificial and insurmountable barrier against honest claimants. Zack v. Borough of Saxonburg, 386 Pa. 463, 126 A.2d 753 (1956).

In Badger v. Upper Darby Township, 348 Pa. 551, 36 A.2d 507 (1944) it was said that:

“There are similar [notice] acts in many, other states, but most of them omit the provision which gives the court the power to permit an action to be brought, even though the prescribed notice has not been filed, if a reasonable excuse to account for such failure is presented. Our own legislature apparently recognized that there might be cases where worthy claims would be defeated if the requirement of notice were to be rigidly and inexorably enforced even where the circumstances were such that the object of the statute was otherwise accomplished. Accordingly it gave to the courts a measure of discretion which, in the absence of such a provision, they would not have been permitted to exercise.” Badger, supra.

It has been stated that, with this clause, "... the legislature gave the courts the authority to control the situation so that in any overly meticulous and pedantic erection of barriers, built on non-notice, justice itself might not be shut out.” Zack v. Borough of Saxonburg, supra.

“Reasonable excuse” has been defined in the Pennsylvania Supreme Court case of Yurechko v. County of Allegheny, 430 Pa. 325, 243 A.2d 372 (1968). It was there said that the subject clause has two basic elements: (1) negligence of counsel in failing to give the required notice (and certainly if ignorance of counsel is a reasonable excuse for failure to file the required notice, ignorance of a layman plaintiff is also a reasonable excuse) coupled with (2) a determination that the want of notice was not unduly harmful to the defendant. With regard to the latter element, it has been said that cases which have construed the notice statute have emphasized that the determination of lack of timeliness must give significant consideration to any undue hardship which the governmental entity may haVe suffered. Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa. Super. 476, 281 A.2d 711 (1971).

Howevér, as the notice statute progressed through its metamorphosis, a legal caveat attached to it seems to have changed álso. At an earlier time the burden was placed upon the governmental entity to show not only that the claimant failed to file written notice of his claim within the six-month period, but further that, as a result of his tardiness, the said entity had been unduly pressed to delve into the circumstances of the case and so was unable to disclose properly the events and conditions which led to the mishap and had thus suffered undue hardship. Yurechko v. County of Allegheny, supra; Pearrell v. City of Farrell, 52 D.&C. 2d 502 (1971). Now, apparently, the governmental unit does not have a burden of showing it was prejudiced by lack of timely notice. In Graffigna v. City of Philadelphia, 98 Pa. Commw. 624, 512 A.2d 91 (1986) it was held that a government unit need not show that it was prejudiced by lack of timely notice and that the statute imports no such requirement. (In that case the claimant proceeded not on the basis of reasonable excuse for failing to comply with the notice requirement.but on constructive notice. However, it appears that this holding would obtain in either event.) This transition has been explained in the case of Rohrbach v. City of Harrisburg, 45 D.&C. 3d 233 (1987) on the basis that since Yurechko v. Allegheny County, supra, the law in question has been amended several times and each time the General Assembly has failed to legislate the Yurechko requirement that the government unit have the burden of showing undue hardship to prevent a tardy plaintiff from bringing suit against it. This does not detract from the Supreme Court definition, in Yurechko, as to what constitutes a reasonable excuse. In our opinion, we can still consider ignorance of the layman or his counsel and lack of hardship upon the government entity in determining same.

Reasonable excuses have been judicially categorized as follows: (a) situations in which actual notice of a claim was presented in a way other than that prescribed by statute; (b) situations in which governmental officials knew of an accident and either conducted an investigation or had ample opportunity to do so; (c) circumstances present at or occurring near to the time of the accident from which the court can conclude that the governmental unit will not suffer any undue hardship on account of the delay in investigation; (d) cases involving elements of equitable estoppel where the said unit unintentionally misinformed the plaintiff and such misrepresentation was plausible. Belicka v. City of Lebanon, 11 Lebanon Leg. J. 206 (1967).

In the present case plaintiff’s ignorance of the statutory requirement of notice can be excused by the grace afforded in Yurechko. Further, the second element of reasonable excuse i.e., a determination that the want of notice was not unduly harmful to defendant, comes under item (b) above. Cases in which knowledge of the defendant’s employees is the basis for reasonable excuse are a multitude. Badger v. Upper Darby Township, supra; Zack v. Borough of Saxonburg, supra; Parks v. Borough of Clarion, 392 Pa. 265, 140 A.2d 448 (1958); Martini v. School District of the Borough of Olyphant, 54 Lacka. Jur. 58 (1952); Mummert v. Besic, 15 D.&C. 2d 752 (1958); and Hartman v. The Upper Dauphin Area High School District, 98 Dauphin Rep. 332 (1976) all deal with situations where the defendants’ employees were aware of the accident and its attendant circumstances within the six-month period.

In the case at bar, plaintiff, himself an employee of defendant, has executed an affidavit to the effect that he discussed the accident with his supervisor while still in the hospital with his injuries; that he discussed the circumstances of the accident with a highway designer of defendant, showing him pictures and informing him, within two months of the incident, he intended to sue defendant; that within three months of the accident, some 50 other employees of PennDOT were aware of the details of how, when and where the accident occurred; and that three to four months after the accident, he notified the PennDOT maintenance manager of the problem with the road. The governmental officials of PennDOT, therefore, knew of the accident and either conducted an investigation or had ample opportunity to do so. Plaintiff thus had a reasonable excuse for his failure to file a notice pursuant to section 5522.

Sovereignty

Plaintiff argues his case comes under exception to sovereign immunity 42 Pa.C.S. §8522(4). We . agree.

This subsection reads as follows:

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

It is paragraph (5) dealing with “potholes or sinkholes or other similar conditions created by natural elements” which defendant argues plaintiff really comes under and, since the commonwealth did not receive the requisite written notice of the hazard here involved, plaintiff cannot maintain his action. We do not believe that potholes or sinkholes or defects of like nature squares with a “hole eight feet deep” situated along the side of the highway as pleaded in paragraph 6 of plaintiffs complaint and therefore we do not consider this to be a pothole case.

That eminent jurist and legal scholar, Judge W.C. Sheely of Adams County, in Templeton v. Hempt Brothers Inc., 42 D.&C. 3d 235 (1985) distinguished between paragraphs (4) and (5) in the following manner:

“We find that subsection 5 was intended by the legislature to have a narrow purpose. It specifically mentions ‘potholes or sinkholes or other similar conditions.’ It requires written notice before the commonwealth can be held liable for damages caused by these types of intermittent or random conditions. However, the dangerous conditions which are the result of other more permanent and long-term situations do not require notice under subsection 4 of the act. If the legislature had intended notice to be a requirement in subsection 4 it would have made that clear in the same manner it did in subsection 5. We find the facts in the instant case fall under subsection 4.” Templeton at 241.

An alleged drop-off or very steep drop along side a road with a depth of eight feet inherently connotes an ongoing design defect with that roadway. Problems caused by improper design come under subsection (4). See Manuella v. Sorgenfrei, 46 Pa. Commw. 111, 405 A.2d 1131 (1979).

We further believe the subject situation meets the dangerous condition state of affairs referred tó in subsection (4). “Dangerous condition,” as used in the subsection, has been defined to mean “a state of affairs that hampers or impedes or requires correction.” Mistecka v. Commonwealth, 46 Pa. Commw. 267, 273, 408 A.2d 159, 162 (1979). To state a cause of action with subsection (4) Molinaro had to plead a state of affairs that hampers or impedes or requires correction. Preteroti v. Uniservice Inc., 51 Pa. Commw. 74, 413 A.2d 787 (1980). Plaintiff has brought himself under this criteria. He has pled, in his paragraph 8, that a serious and dangerous condition existed at the accident location. In 8(a) he alleged a continuing drop-off from the traveled portion of the roadway. We also note that it is for the jury to determine whether the condition was in fact dangerous. Wyke v. Ward, 81 Pa. Commw. 392, 474 A.2d 375 (1984).

On this same subject, it should be observed once again that Pa.R.C.P. 1035 permits us to enter summary judgment only where the moving party demonstrates clearly that there is no genuine issue of material fact. Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978). In paragraph 4 of his complaint, Molinaro alleges his presence on Route 507 at a certain time and date. In paragraph 5 he alleges that defendant has exclusive care, custody and control of the accident site. In paragraph 6 of his complaint plaintiff avers an eight-foot-deep hole alongside a public highway. Defendant responded to each paragraph by denying the allegation, alleging it was without sufficient knowledge or information to form a belief as to the truth of averment and demanded strict proof at trial. By the terms of PennDOT’s own pleading issues of fact have been raised at least some of which appear to us to be material. Washington v. Cuyler, 48 Pa. Commw. 409, 409 A.2d 974 (1980).

ORDER

Now, July 31, 1989, for the reasons set forth in the accompanying opinion the motion for summary judgment of defendant, Commonwealth of Pennsylvania, Department of Transportation, is denied.


source: Caselaw Access Project

author: FARINA, J.,

license: Public Domain

text:
    Bewley v. Crouse

      Wayne C. Parsil, for plaintiff.

      Mark E. Lovett, for defendant.
    September 13, 1989
   FARINA, J.,

Before the court are defendant William Crouse’s motion to compel plaintiff, Sharon Bewley, to undergo a physical examination pursuant to Pa.R.C.P. 4010 (42 Pa.C.S.) and plaintiff’s response to defendant’s motion, requesting that the court’s order permit plaintiff’s counsel to attend the examination. The relevant facts of the case can be summarized as follows.

This is a personal-injury action arising out of an automobile accident in which plaintiff was severely injured. The accident occurred on May 30, 1986 and suit was filed on May 27, 1988. As part of his discovery activity, defendant scheduled an independent medical examination for plaintiff with Dr. Daniel Good, a neurosurgeon, on August 9, 1989. Dr. Good does not allow counsel to be present during his examinations and plaintiff’s counsel, pursuant to his firm’s office policy, insisted on being present during the examination. The August 9 appointment with Dr. Good was canceled and not rescheduled.

It is undisputed by the parties that Pa.R.C.P. 4010 clearly gives defendant the right to have plaintiff undergo this examination by the physician of defendant’s choice. The issue of counsel’s presence during this examination, however, like other issues involving the manner and condition of a rule 4010 examination, is a matter squarely within this court’s discretion. See, e.g., State Farm Mutual Automobile Insurance Co. v. Morris, 289 Pa. Super. 137, 432 A.2d 1089 (1981); 10 Goodrich-Amram Procedural Rules Service at 273, §4010(a): 9. As other courts have pointed out, it may be necessary for counsel to attend the examination in cases where the examinee will be questioned at length regarding impressions and memories. See State Farm, supra; Koch v. Galardi, 11 D.&C. 3d 750 (1979); Machinski v. Schaaf, 35 D.&C. 3d 572 (1984). Counsel’s presence is not a matter of right, however, and whether counsel will be permitted to attend will depend on the facts of each case.

A plaintiff’s counsel is not routinely included or excluded from a rule 4010 examination. If a plaintiff wishes counsel to be present, a request should be made and some legitimate reason (i.e., one related to the examination) offered therefor. By the same token, objections and claims of interference by the examining physician also must be reláted to the examination and not based on generalities. It is ironic, then, that the two factors which seem largely responsible for the instant dispute — namely Dr. Good’s generic policy against counsel and plaintiffs counsel’s generic office policy of attendance — are irrelevant to the court’s exercise of discretion on this issue.

Machinski, supra, and Koch, supra, place on the defendant the burden of showing that plaintiffs counsel’s presence is likely to interfere with the rule 4010 examination. It goes without saying, however, that defendant will bear no burden if plaintiff has not first demonstrated that counsel’s presence is warranted. In both of the cases cited, the court was satisfied that plaintiff would benefit from counsel’s presence: Koch involved a psychiatric examination and Machinski’s plaintiff suffered injuries “not readily demonstrated by X-rays or other objective means.” Machinski at 574. No similar showing has been made in this case.

Because plaintiff has not shown that the proposed physical examination will be other than “objective,” State Farm at 142, 432 A.2d at 1092, there is no reason for counsel to attend the examination and no burden on defendant to show that counsel’s presence will interfere. Therefore, it is not necessary for the court to judge the sufficiency of Dr. Gooti’^ affidavit. In his brief, defendant concedes that plaintiff may appreciate counsel’s presence during the history-taking portion of the examination (if, in fact, there is one). For that reason there should be no objection if plaintiff is accompanied by counsel for that segment of the examination.

Accordingly, we enter the following

ORDER

And now, September 13, 1989, upon consideration of defendant’s motion to compel plaintiff to undergo a physical examination pursuant to Pa.R.C.P. 4010 (42 Pa.C.S.), plaintiffs request that this court’s order permit her counsel to attend the examination and the briefs of the parties with regard thereto, the court orders and directs as follows:

(1) Defendant’s motion to compel plaintiff to undergo a physical examination pursuant to PaR.C.P. 4010 is granted.

(2) Plaintiff’s request that this court’s order permit her counsel to attend the rule 4010 examination is granted in part and denied in part. If the examination is to involve a history-taking component, then plaintiff is permitted to bring her counsel to that portion of the examination. Counsel shall not attend the physical examination portion of the rule 4010 examination.


author: BROWN, P.J.,

text:
    Andrus v. American Color and Chemical Corporation

      Martin Singer, for plaintiffs.

      Kenneth Willman and Ruth Antinone, for defendants American Color and Chemical Corporation, Koppers Company Inc., and North American Phillips Corporation.

      Daniel Siegel, for defendant Pfister Chemical Inc.
    February 15, 1990
   BROWN, P.J.,

Plaintiffs filed this action against 16 corporate defendants alleging that defendants jointly and individually produced, shipped, stored, used, processed, purchased, and sold highly toxic chemicals at one or both of two chemical plants located in Lock Haven, Pennsylvania. Plaintiffs also allege that defendants dumped or otherwise disposed of toxic chemicals in and around Lock Haven in a manner which contaminated the air, earth, and water in the vicinity. Plaintiffs include workers/residents and residents only of the Lock Haven area. In addition the wives of three former employees have filed claims for loss of consortium.

Defendants American Color and Chemical Corporation, North American Phillips Corporation, Koppers Company Inc. and Piaster Chemical Inc. have filed motions for judgment on the pleadings. Defendants’ motions allege that the Pennsylvania Workers’ Compensation Act and Occupational Disease Act establish that an employee’s exclusive remedy for an injury received during the course of his or her employment is that provided by the Workers’ Compensation or Occupational Disease Acts. Defendants are requesting that the causes of action brought by plaintiff employees, as well as the claims for loss of consortium filed by their wives, be dismissed.

ISSUES

(1) Whether those plaintiffs who were formerly employed by American Color and Chemical, Koppers and/or the American Aniline Products Company or by Pfister Chemical’s predecessor-in-interest or its successor-in-interest may invoke the dual-capacity exception to the exclusivity provisions of the Pennsylvania Workers’ Compensation Act and the Occupational Disease Act to maintain their causes of action against their former employers?

(2) Whether the loss of consortium claims filed by wives of former employees are independent causes of action that can be maintained against defendants regardless of the validity of the claims filed by their husbands?

DISCUSSION

Dual-capacity Exception

On July 9, 1986 this court addressed the issue of the dual-capacity exception to the exclusive remedy provision of the Workmen’s Compensation Act, 77 Pa.C.S. §481. The court in its opinion stated:

“An employer may be held liable to an injured employee when an injury for which the employer is responsible does not occur in the normal course and scope of the employee’s job. The employer takes on the ‘dual capacity’ of both an employer as well as an independent entity with regard to the employee who was injured in his status as a member of the general public . . .

“Those plaintiffs who were employees of American Color and Chemical, Koppers, and North American Phillips are claiming damages for injuries received both in the course of their employment and from their residence in the Lock Haven area. Obviously these plaintiffs are claiming that their injuries resulted in part from the activities of their employers directed toward the general public. These plaintiffs claim that they were injured as members of the general public and not as employees by the defendants’ activities. The nature of the plaintiffs’ alleged injuries obviously creates problems of proof with regard to apportioning the injuries between those received while on the job and those suffered outside the scope of employment. Nonetheless, plaintiffs have stated a viable cause of action for those injuries which they can prove took place outside of the employer/ employee relationship.”

Defendants have cited three decisions by the Supreme Court of Pennsylvania on the issue of the application of the exclusive remedy provision since the issue was last presented to this court in 1986. In each case cited plaintiff was injured while in the course of employment at the work place. In Poyser v. Newman and Co. Inc., 514 Pa. 32, 522 A.2d 548 (1987) the plaintiff was operating a notching machine, which had been designed and manufactured by Newman, during the course of his employment at Newman’s factory. Plaintiff lost a portion of his small finger when one of his hands came in contact with the spinning blades. Plaintiff did not rely on the concept of dual capacity in contending that Newman should not be permitted to assert the statutory immunity from common-law actions for employee injury. Instead he asserted that Newman’s willful and wanton disregard for employee safety was a legal equivalent of an intentional tort and as such should preclude Newman from raising the section 303(a) immunity.

In Heath v. Church’s Fried Chicken, 519 Pa. 274, 546 A. 2d 1121 (1988), the plaintiff/employee was injured while, operating machinery used and manufactured by his employer. The court held that the “dual-capacity” exception cannot apply where the employee’s compensable injury occurred while he was actually engaged in the performance of his job.

In Barber v. Pittsburgh Corning Corporation, 521 Pa. 29, 555 A.2d 766 (1989), 75 plaintiffs claimed that they contracted asbestos-related diseases as a result of their employment for a manufacturer of asbestos-containing products. The issue was whether the Occupational Disease Act bars common-law recovery for a injury to an employee alleged to have been intentionally inflicted by an employer. The court held that the legislature does not recognize an intentional tort exception for employers and cited the Poyser decision.

Defendant Pfister cites Callender, Administratix of the Estate of Gary Callender v. Goodyear Tire and Rubber Company, 387 Pa. Super. 283, 564 A.2d 180 (1989), rearg’t denied September 25, 1989. There the Superior Court found that the employer, even though it was also a manufacturer of a product sold to the general public, could not be held liable under the dual-capacity doctrine for a tort claim in the nature of a product liability action brought by an employee when the employee’s compensable injury occurred while he was actually engaged in the performance of his job. The Callender court noted that the Supreme Court has shifted its focus from whether there was a separate duty owed by the employer to the public and whether the employee could be distinguished from a member of the public to whom that duty was owed to focusing exclusively on whether the employee Was acting in the course of his or her employment when the injury occurred.

In the case at bar the employees have alleged that in addition to being exposed to toxic chemicals at work that defendants created 17 toxic chemical waste dumping sites in or around the Lock Haven area thus discharging contamination into the water resources, the earth, and the air. These plaintiffs claim that as residents of the area they and all other members of the public were exposed to toxic chemicals every time they drank water or breathed contaminated air as residents of the area.

In that capacity there is no basis for distinguishing them from other members of the general public. The court therefore finds that the exclusivity provision of the Workers’ Compensation Act does not bar the causes of action of the plaintiffs/ employees who are also plaintiffs/residents in the present matter and the dual-capacity doctrine is applicable to their situations. The court will therefore deny defendants’ motion for judgment on the pleadings.

Loss of Consortium Claims

Defendants argue the loss of consortium claims brought by the three wives should be dismissed since these claims are derivative and cannot stand if the husbands’ claims are dismissed.

“The infliction of a non-fatal injury upon one spouse now confers separate and distinct rights of action upon both spouses.” Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974); Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989). The claim of a wife for damages for loss or consortium resulting from an injury to her husband caused by a third person is derivative in nature in that it is dependent upon the existence of liability on the part of the tortfeasor for the injury to the other spouse. Thus, where the plaintiff/husband’s claim for his own injury is litigable, his wife’s claim for loss of consortium is appropriate.

ORDER

And now, February 15, 1990, based upon the foregoing opinion, it is hereby ordered that defendants’ motions for judgment on the pleadings be dismissed and the requested relief be denied.


author: ACKER, P.J.,

text:
    Bires v. Stefanak

      Ronald T. Herman, for plaintiff.

      Stephen J. Mirizio, for defendant.
    June 23, 1989
   ACKER, P.J.,

Pursuant to a petition of plaintiff, Linda R. Bires, we entered a rule to show cause upon defendant, Theodore J. Stefanak Jr., as to the following matters:

(1) A request to enter judgment in favor of plaintiff and against defendant in the amount of $32,000, plus alimony to the date of the entry of the order;

(2) To award interest on unpaid installments of monies owing upon a marital agreement made and entered between the parties on December 4, 1983;

(3) To award counsel fees and costs against defendant;

(4) To attach defendant’s wages;

(5) To find defendant in contempt;.

(6) Any and all other relief which the court may deem necessary, including but not limited to, such relief as is granted by 23 P.S. §401(k).

To the petition was filed an “answer to petition with new matter.” By the answer defendant admits that the parties were formerly husband and wife, and were divorced in the Court of Common Pleas of Mercer County on March 29, 1984, at this number and term. Further, defendant admits that on December 9, 1983, the parties entered into a property settlement and separation agreement incident to the divorce action which is attached as exhibit 1 to the petition.

Paragraph 7 of the answer admits the allegations of paragraph 7 of the petition as to monies paid pursuant to the agreement. The total amount originally owing was $50,000 which has now been reduced to $32,000.

Paragraph 8 of the answer incorporates paragraph 7 of the agreement to the effect that defendant by the agreement is obligated to continue to pay his wife $115 per week until the balance is paid in full. This balance is calculated by plaintiff as $32,000 together with interest.

Paragraph 11 of the answer is pursuant to paragraph 12 of the agreement of the parties whereby defendant was to not change his beneficiaries on his life insurance policy. Plaintiff has demanded proof from defendant that she is the named beneficiary, but it is alleged defendant has refused such proof.

In addition to the payment of $115 per week until the $32,000 is paid in full, it is contended in count III of the petition pursuant to paragraph 10 of the agreement that defendant was to pay alimony in the amount of $30 per week until the wife received a total of $20,000. It is alleged, that she has received $18,000, and that, therefore, there is an obligation to continue to pay.

By new matter, defendant alleges in paragraph 16 that because the separation agreement was not incorporated into the divorce decree, that section 401. l(k) of 23 Pa.C.S. is not applicable. Paragraphs 17, 18, and 19 of defendant’s new matter deal with equitable reasons why defendant should not be required to fulfill his commitments under the agreement.

By paragraph 17 of the answer, it is alleged that defendant’s employer filed for bankruptcy, that defendant began his own business which has failed to support him and that, therefore, his non-payment is not willful. It is claimed that plaintiff advised defendant that she was cohabiting with a member of the opposite sex, which pursuant to paragraph 10 of the agreement, relieves him of the obligation of paying alimony.

By paragraph 19, it is claimed that defendant was suffering from a personality disorder at the time of the execution of the contract and was under the care of a medical doctor, and therefore, the contract is not binding upon him.

Finally, it is contended that defendant entered into the agreement involuntarily and without advice of counsel.

Testimony was taken at several hearings concerning all of these contentions.

DISCUSSION

Defendant first asserts that this court is without subject matter jurisdiction. The action is based upon an agreement of the parties of December 9, 1983. Paragraph 6 of that agreement provides that if either party breaches any provision of the agreement, the other party shall have the right at his or her election to sue for damages, and the party breaching the contract shall be responsible for payment of reasonable legal fees to be determined by the court as required in the enforcing of the parties’ rights under the agreement, or seek such other remedies for relief as may be available to him or her.

Paragraph 18 provides that the agreement may be submitted to a Pennsylvania court of appropriate jurisdiction in an action for the divorce for its approval and for inclusion as part of the decree granting the divorce. Unfortunately, there was no request that the agreement be included in the divorce decree which was entered on March 29, 1984.

Paragraph 21b of the agreement states that damages:

“[S]hall included [sic] any claim, action, demand, loss, cost, expense, liability (joint or several), penalty, and other damage including without limitation, counsel fees and other costs and expenses reasonably incurred in investigating or attempting to avoid the same or oppose the imposition thereof or in enforcing this indemnity, resulting to husband or wife from (1) any inaccurate representation made by or on behalf of either husband and wife to the other in or pursuant to this agreement; (2) breach of any of the warranties made by or on behalf of the husband or wife in or pursuant to this agreement; (3) breach or default in the performance by husband or wife of any of the obligations to be performed by such party hereunder.”

Paragraph 26 of the agreement provides that in the event of a breach, the other party has the right at his or her election to sue for damages for the breach. The party breaching the contract is to be responsible for paying the legal fees and costs incurred by the other in enforcing their rights under the agreement, or such other remedies or relief as may be available to him or her.

Although plaintiff has asserted her rights in a petition, rather than a complaint as contemplated by Pa.R.C.P. 1920.13, defendant has raised no objection. Indeed defendant has filed a responsive answer. The basis of lack of jurisdiction asserted in the answer is that plaintiff attempts to force, pursuant to section 401. l(k) of the Divorce Code, a property settlement of December 9, 1983, as a basis for recovery when the same was neither merged nor incorporated into the divorce decree. The assertion, therefore, is that this court lacks jurisdiction to enforce the agreement because section 401. l(k) of the Divorce Code had not been enacted by the legislature until after the agreement and divorce, and is not retroactive.

Questions of jurisdiction are to be raised by Pa.R.C.P. 1017(b)(1). However, questions of lack of jurisdiction are never waived in the trial court. Marcus v. Diulus, 242 Pa. Super. 151, 363 A.2d 1205 (1976). It would appear, therefore, that at the worst, plaintiff has asserted her cause of action as one in divorce instead of other alternatives, such as an action at law or in equity. Although not so labeled, defendant is in effect asking that we strike off the pleadings. Such can occur, however, under Pa.R.C.P. 1017(b)(2) only for lack of conformity to law or rule of court, or the inclusion of scandalous or impertinent matter. Obviously, the latter has not been alleged.

If preliminary objections had been filed as would be proper attacking jurisdiction over the subject matter, a motion to strike would be improper for a motion to strike cannot be used to attack the relief sought in a complaint. If, for example, plaintiff demands equitable relief by means of an injunction in a complaint in assumpsit, the demand may be treated as mere surplusage, but the complaint will not be dismissed as defective. Society Hill Towers Tenants Association v. Society Hill Development Inc., 75 D.&C. 2d 101 (1976).

By analogy from summary judgment actions, if there is a possible theory under which the complaint might be self-sustaining, leave to amend should be granted to enable plaintiff to conform her pleadings to that theory. The dismissal of an action can be only where the case is clear and free from doubt. Legman v. School District of the City of Scranton, 432 Pa. 342, 247 A.2d 566 (1968). It cannot be properly contended that there is no cause of action arising from alleged violations of the property settlement and separation agreement of the parties.

Finally, by Pa.R.C.P. 1033 a party by leave of court may at any time change the form of action.

We do not accept defendant’s contention that section 401.1 of Act 13 is not retroactive and cannot be used as the basis for requesting a contempt citation in this case.

We agree with defendant that there is no reported appellate or lower court decision directly on point. Section 401.1 to our knowledge has not been judicially construed by any appellate court although it has been referred to by two footnotes in one case. Sonder v. Sonder, 378 Pa. Super. 474, 549 A.2d 155 (1988).

The second reference by footnote is contained in the concurring and dissenting opinion by Beck, ]., Id.

In determining retroactivity, we commence with the Statutory Construction Act, 1 Pa.C.S. §1926 which creates a presumption against retroactive effect of a statute unless the statute clearly and manifestly was so intended by the General Assembly. This basic precept of statutory construction has been applied by our appellate courts. In re Warren Borough Zoning Ordinance no. 1127, Appeal of Bernard J. Hessley, 42 Pa. Commw. 211, 401 A.2d 383 (1979). In Green v. Pennsylvania Public Utility Commission, 81 Pa. Commw. 55, 473 A.2d 209 (1984); aff'd 507 Pa. 430, 490 A.2d 806 (1985), it was held in construing a statute that even language that a new statute shall take effect immediately and shall be applicable to all proceedings pending before the Public Utility Commission and the courts at this time was not enough to demonstrate an intent for the act to be applied retroactively. “Immediately” was held to mean under the act “prospective only.”

The preamble of Act no. 1988-13 is that it is an amending act to the Act of April 2, 1980 P.L. 63. Rules for construction of amendatory statutes are set forth in 1 Pa.C.S. § 1953. The new provisions are deemed to be construed as effective only from the date when the amendment became effective. Even though the statute may be deemed to merge into and become part of the original statute and to be read and viewed as one with original statute, it nevertheless is to be construed as effective only from the date when the amendment became effective. S.D. Richman Sons Inc. v. Commonwealth, Board of Finance and Review, 53 Pa. Commw. 110, 416 A.2d 1161 (1980). Therefore, we hold that section 401.1, 23 Pa.C.S. is prospective only.

This ruling does not deny plaintiff the opportunity to proceed in our courts. Indeed, such was contemplated by paragraph 6 in the agreement. It provides that in the event of a breach, either party may sue for damages or seek other such remedies or relief as may be available to him or her. The divorce agreement recites that a divorce action has been filed at the number and term of this action.

The proper remedy to enforce separation agreements is an action in assumpsit, but family court divisions have all the powers that can be exercised by a court of common pleas. Further, when there is a support action pending in family court, that court has the authority to review both the assumpsit action and the support agreement. Magee v. Magee, 360 Pa. Super. 66, 519 A.2d 994 (1987). This case does not have a support agreement, but does have a provision for payment of alimony pursuant to paragraph 10 of the agreement. The rule to show cause requests the payment of the alimony owing to date. Therefore, we conclude that the action is properly before this court in its Domestic Relations Division.

We further conclude that this agreement neither merged nor was incorporated into the divorce decree. Due to the failure to incorporate and preserve the same in the decree in divorce, defendant cannot be held in contempt of court for no valid judgment, ordering defendant to do any of the things for which it is claimed he failed to do, was entered. Plaintiff can, of course, proceed as if the action was properly filed in assumpsit in an effort to obtain a verdict and/or decree both for money damages and for such equitable relief as may be warranted following the receipt of testimony.

Finally, as to the contentions raised by new matter by defendant, the defendant withdrew the contention that he did not have adequate mental capacity at the time of the execution of the 1983 agreement to comprehend and understand that which he was doing. Defendant also contends that he did not have counsel at the execution of the agreement. That fact alone is inadequate to upset an otherwise valid agreement. Schoble v. Schoble, 349 Pa. 408, 37 A.2d 604 (1944). Nor is the contention that defendant’s employer went into bankruptcy leaving him without employment a valid defense. There was adequate evidence to show that defendant was competent in his trade, was able to secure other employment and did set up his own business. But further, the failure to pay the contractual obligation is not conditioned upon defendant securing employment. Those are matters which must be calculated by defendant prior to entering into the agreement as to eventualities which may occur. He has a right to request that provision be made in the contract for such unforeseen events but failed to do so in this case.

Paragraph 10 of the agreement does provide that the obligation to pay alimony terminates in the event that plaintiff cohabits with a member of the opposite sex. There is inadequate evidence to demonstrate such conduct.

Wherefore, we enter the following

ORDER

And now, on this June 23, 1989, it is hereby ordered and decreed that the actions filed in this court by a petition and answer containing new matter shall proceed as if it was an action in assumpsit with the petition being regarded as a complaint at law and the answer and new matter as if it were an answer and new matter to a complaint filed at law. In addition, such equitable relief as warranted shall be entered after the receipt of evidence at the trial.

The rule to show cause entered is dissolved.

Upon the completion of all of the pleadings and discovery, either party may praecipe the matter for the trial list.

      . Section 401(k) of Act 13 deals with the merger or incorporation of an agreement between the parties into the divorce decree. It is found in the June 1988, No. 3, Purdon’s Pennsylvania Legislative Service, Session of 1988 at Page A-5 thereof.

      . 23 P.S. §401.1, Purdon’s Pennsylvania Legislative Service, Session of 1988, No. 3, June 1988. The addition of section 401.1 to the Divorce Code was effective on the date of the approval of the act, being February 12,1988. The property settlement agreement to be enforced was entered into on December 9,1983. The divorce decree in which there was no reference to the agreement was entered March 29,1984.

      . Footnote 5 reads, “Section 503, in order to effect payment of arrearages, permits the court to: (1) enter judgment; (2) take and seize personal property and collect of rents and profits of real estate; (3) attach up to 50 percent of wages; (4) award interest on unpaid installments; (5) require security to insure future payments; (6) issue body attachment and incarceration for willful failure to comply with court order and jail for civil contempt up to six months. Judge Beck would treat the incorporated agreement as a merged agreement for purposes of enforcement but not modifiability. She alleges the authority for this is found in section 401, Decree of Court, 1980 Divorce Code because of the broad language there. The above discussion clearly delineates the extent of enforcement under varying circumstances. Contracts are enforced under assumpsit and equitable principles, court orders, pursuant to legislative authorization. Judge Beck points to the February 1,1988 amendment to the Divorce Code, Act 13, a newly added section, 401.1 as authority .for her position. To the contrary, it eliminates the confusion engendered by the use of the terms merger and incorporation and treats all agreements, whether incorporated, merged or not, the same as a court order for enforcement purposes. It eliminates modifiability, unless agreed to by the parties, as to property rights, alimony, and counsel fees, but provides; ‘(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.’ Many of the problems presented by this case are resolved by the long overdue legislation, but there still remains to be a determination whether incarceration for failure to pay on a contract action meets constitutional requirements against imprisonment for debt.”

      . Footnote 2 reads, “Effective February 12, 1988, the legislature amended the Divorce Code to eliminate this confusion. Through thé addition of a new section 401.1, the substance of which is set forth below, the legislature has completely removed the significance of words like incorporate or merge when used in agreements relating to matters within the jurisdiction of the court presiding over proceedings under the Divorce Code. The power of the court to enforce and/or to modify such agreements is now settled as a matter of statutory law. The degree to which this amendment will affect pending divorce cases and agreements already executed is not an issue presented for decision in the instant case, since no party has argued that the amendment should be applied retroactively. Therefore, we must decide this case on the state of the law prior to the amendment.”


author: STEEGE, J.,

text:
    In re Center Township Democratic Party Supervisor Primary Election

      Samuel J. Orr III, for petitioner.

      John A. Havey, for respondent.
    August 4, 1989
   STEEGE, J.,

Before us is a contested nomination of class V (so designated by section 1711 of the Election Code, Act of June 3, 1937, P.L. 1333, 25 P.S. §3291). The proceeding was begun by the filing of a petition pursuant to section 1756 of the code, 25 P.S. §3456, and jurisdiction to try and decide the matter is conferred upon the court by code section 1751, 25 P.S. §3431.

The petition contests the nomination of one of two Democratic nominees for the office of Center Township supervisor in the primary election held on May 16, 1989. An answer to the petition was filed, and the issues joined in the petition and answer were fully heard in a hearing which began on July 24 and ended on July 25, 1989. On July 26, 1989, we entered an order voiding the nomination of Samuel J. Lucci III as one of two Democratic nominees for the office of Center Township supervisor, and we directed the Bureau of Elections to schedule and conduct a runroff election between Lucci and William DiCioccio in order to determine which of those two persons shall be the second Democratic nominee for the office of Center Township Supervisor in the November 1989 general municipal election. The purpose of this opinion is to set forth findings of fact and conclusions of law in support of the July 26 order, in compliance with section 1773 of the code, 25 P.S. §3473.

We make the following

FINDINGS OF FACT

(1) Of the 30 persons who signed the petition, 29 are duly registered democratic electors who voted in the primary.

(2) Two Center Township supervisors are to be elected in the municipal election. Two Democratic nominees for the office of Center Township supervisor were to be nominated in the primary, to appear on the municipal election ballot.

(3) For several years there have been two competing political factions within the Democratic Party in Center Township, designated respectively (at least during election year 1989 and for our purposes) as the Center Democratic Committee and the United Center Democrats. Both factions ran full slates of candidates for local office in the primary, including two candidates for township supervisor, the slate of the United Center Democrats being designated by that name, the slate of the Center Democratic Committee being designated as the “Gold Medal Team.”

(4) The candidates for township supervisor on the United Center Democrats’ slate were DiCioccio and Anthony H. Amadio.

(5) The candidates for township supervisor on the Gold. Medal Team were Lucci and Frank J. Mancini.

(6) Paul G. Vukas was a candidate for school director in the primary on the Gold Medal Team. Throughout the primary campaign, Vukas actively Worked and campaigned for himself and for all the candidates on the Gold Medal Team.

(7) During the primary campaign, beginning at least in early 1989, the Center Democratic Committee (or the Gold Medal Team) had its headquarters in a budding located at 1438 North Brodhead Road in Center Township. That building is owned by Louis J. Elias and Catherine Elias, his wife, and George Elias Jr.

(8) Louis J. Elias is aligned politically with the Center Democratic Committee, having previously been elected to the Center Area School Board as a candidate of that faction.

(9) Nikki Kanakis, of Ambridge, Carie L. Gibbs, of Bridgewater, and Jason W. Robbins, of New Brighton, were at all relevant times students at the Penn State Campus in Center Township, living in their respective family homes. Each signed a partially completed voter registration card at the request of some person unknown. Those registration cards, when filed, registered each of them as Republican voters living at 1438 Brodhead Road in Center Township. None of them has ever lived at that address or anywhere in Center Township.

(10) William F. Cams, an apparently fictitious person, was registered on April 8, 1989 as a Democratic voter living at 1438 Brodhead Road, Center Township. Cams, if he exists, has never lived at that address nor has he ever been a student at the Penn State campus.

(11) On May 5, 1989, Vukas delivered to the Election Bureau applications for absentee ballots on behalf of Kanakis, Gibbs, Robbins and Cams. Absentee ballots were delivered to him, and he “hand carried” them from the Election Bureau office.

(12) Neither Kanakis, Gibbs, Robbins nor Cams, if he exists, applied for absentee ballots nor were absentee ballots ever delivered to them. None voted an absentee ballot in the primary. Nonetheless, voted absentee ballots under their names were received by the Election Bureau and placed in the appropriate ballot box for delivery to the polling place. Those four absentee ballots were successfully challenged and were not counted.

(13) At varying times beginning in the fall of 1987 and through April 1989, the following persons were registered as Democratic electors residing at 1438 Brodhead Road in Center Township:

Patrick C. McMullen John Rosen

Scott L. Battle Carla Schoentag

Kevin Bowser David Corriero

Douglas T. Geinzer Moses Summers

Gerald G. Oswald

McMullen, Battle, Bowser, and Geinzer were tenants living at 1438 Brodhead Road during at least a part of that time period. None of the other persons, if he or she exists, has. ever lived at that address.

(14) None of the persons or purported persons named in the previous paragraph voted in the primary, nor was any attempt made to cast a vote on his or her behalf.

(15) On March 2, 1989, March 9, 1989, and April 14, 1989, as the respective records of the Election Bureau will reveal, at various addresses throughout Center Township, the following 15 fictitious persons were registered as Democratic electors in Center Township:

(1) Kathy R. Trimble

(2) Clyde A. Trimble

(3) John B. Trimble

(4) Mary A. Trimble

(5) Gloria Austin

(6) Rhonda A. Reynolds

(7) Kevin D. Reynolds

(8) Betty J. Reynolds

(9)John Reynolds

(10) Kimberly M. Rankin

(11) Louise Hayden

(12) Carol A. Longo

(13) John Shadley

(14) Carl L. Hayden

(15) Joanne R. Casey

None of those persons lives, nor during the past several years has he or she ever lived, at the addresses given on their respective registration cards. We specifically find that none of those persons exists; we shall hereinafter collectively refer to them as the “Fictitious Fifteen.”

(16) On May 5, 1989, applications for absentee ballots were delivered to the Election Bureau on behalf of each of the Fictitious Fifteen. There being registrations on file for all of them, the absentee ballots were issued.

(17) On the-same day, the absentee ballots made out for the Fictitious Fifteen were delivered to Vukas, who signed for them in the Election Bureau office and hand carried them away. Vukas’s signed receipts for the absentee ballots, and the notations that he hand carried them out, are a part of the permanent records in the Election Bureau office.

(18) Voted absentee ballots were returned to the Election Bureau on behalf of all the Fictitious Fifteen. They were placed in the appropriate ballot boxes, sent to the local polling places, voted, and counted. They are not now identifiable.

(19) The returns for the primary in Center Township include the votes which appear on the fraudulent ballots which were cast on behalf of the Fictitious Fifteen.

(20) The vote count in the primary for the Democratic nomination for Center Township supervisor was as follows:

Lucci 1,619

Mancini 1,469

Amadio 1,699

DiCioccio 1,605

Scattered Votes 4

DISCUSSION AND CONCLUSIONS

In entering the July 26 order, which grants extraordinary relief, we acted under the powers and duties imposed upon the court by section 1764 of the Election Code, 25 P.S. §3464. That section reads as follows:

“All of the said courts [of common pleas] and judges hereby required to try any. contested election case shall have plenary power to make, issue and enforce all necessary orders, rules, process and decrees, for a full and proper understanding and final determination and enforcement of the decision of every such case, according to the course of practice in similar cases under the laws of this commonwealth, or which may be necessary and proper to carry out the provisions of this article.”

We read that provision as granting to us the power and imposing upon us the duty to preserve and protect the integrity of the electoral process. When the electoral process has been undermined by fraudulent and perhaps criminal conduct, our duty to act is overwhelming, particularly where, as here, the fraud may have altered the outcome of the election.

The undisputed facts of this case speak for themselves. Voter registrations have been filed, applications for absentee ballots have been made, and absentee ballots have been cast and counted in the names of 15 persons who do not exist. (Persons having the same names as some or all of the Fictitious Fifteen may well exist, but that is only a coincidence.) While no finding can be made as to who filed the registrations, made the absentee ballot applications, or voted the absentee ballots, Vukas signed for, received, and hand carried the absentee ballots from the Election Bureau office. Vukas was a political ally and Gold Medal Team running-mate of Lucci’s, and the final vote count showed Lucci 14 votes ahead of DiCioccio.

The 15 fraudulent absentee ballots are not now identifiable, and we cannot and do not find that any or all of the fraudulent ballots cast a vote for Lucci while casting no vote for DiCioccio. However, it is not unreasonable to infer (as DiCioccio and his allies must certainly infer) that all 15 fraudulent votes were cast for Lucci and against DiCioccio and the nomination thereby lost. The clear evidence of fraud, and the possibility that the fraud may have altered the outcome of the election, require that Lucci’s nomination be voided and the run-off election be held.

The action which we have taken is not without precedent. In Bright’s Contested Election, 292 Pa. 389, 141 Atl. 254 (1928), the trial court had found massive fraud, intimidation, and illegal voting had occurred at one polling place. Concluding that it could not determine which of the votes cast at that polling place were lawful and which were not, the trial court rejected and threw out the entire vote count. Concurring with the finding that the “illegal votes cannot be identified,” the Supreme Court affirmed the rejection of the entire vote cast. The Supreme Court specifically held that when it is not possible to separate the lawful ballots from the unlawful or fraudulent ballots, then the entire vote must be rejected and thrown out.

The similarity to the case at bar is obvious. Here the ballots cast on behalf of the Fictitious Fifteen cannot be identified and separated out. While we do not know for whom, if anyone, those ballots were cast, they may have altered the outcome.

In Bright, the court cited and followed West Mahanoy Township’s Contested Election, 258 Pa. 176, 101 Atl. 946 (1917). In West Mahanoy, which concededly presented a much more outrageous situation than the case at bar, there had been massive fraud, coercion and physical intimidation at one voting precinct. The trial court held that the election in that precinct had been null and void and threw out the entire return from it, a result which altered the election. Finding that “the conditions that existed at the [polling place on election day] were as disgraceful as they are inconceivable,” the Supreme Court affirmed. The Supreme Court held that, where possible, the fraudulent votes should be stricken, but when that cannot be done, all returns from the voting district in which the fraud occurred should be thrown out.

The legal principle which governs us here was well set forth by the Supreme Court in Gollmar’s Election Case, 316 Pa. 560, 175 Atl. 510 (1934), as follows:

“There is no doubt that where such glaring fraud and illegality exists as to make it impossible to purge the ballot boxes with any degree of accuracy, the court may reject the whole vote of any or several districts.”

There is glaring fraud and illegality here, and it is impossible to identify the fraudulent ballots. We are empowered to reject the entire Lucci-DiCioccio vote as counted in the primary, and we have done that.

We point out that there is not a shred of evidence in this record linking Lucci with the fraud. Indeed, as events have unfolded, he may be the biggest victim of it. However, we cannot be mindful of personalities in carrying out our constitutional and statutory duty. Voiding Lucci’s nomination was the necessary remedy to counteract the fraud.

Finally, we are aware that the district attorney is pursuing a criminal investigation into the facts and circumstances which have given rise to this case. If a prosecution should be initiated, and a conviction or convictions follow, we suggest that a recommendation be made at the time of sentencing that the guilty person or persons be ordered to make restitution to Beaver County for the. cost of the special election.

      . Four candidates for positions on the Center Area School Board, a candidate for auditor, and a candidate for tax collector were also to be nominated and were nominated. Those nominations are not before us. In addition, as is set forth in the July 26 order, the nomination of Anthony H. Amadio as one of the Democratic nominees for the office of Center Township supervisor is unaffected by the July 26 order.

        . Respondent offered no testimony at the hearing, and he stipulated that all 15 of the voter registration cards and absentee ballots filed on behalf of the Fictitious Fifteen were written by the same person.

      . Vukas was not called to testify. Petitioners’ counsel informed us on the record that Vukas had been subpoenaed but his lawyer had advised that, if called, Vukas would plead the privilege against self-incrimination and not testify. The subpoena was not pursued.


author: WALKER, ].,

text:
    Shetler v. Zeger

      Denis M. DiLoreto, for plaintiff.

      Thomas J. Williams, for defendant.

      Edward I. Steckel, for petitioners.
    June 1, 1989
   WALKER, ].,

On May 6, 1987, plaintiff, Julie A. Shetler, and defendant, Brian R. Zeger, were involved in an automobile accident at the intersection of Warm Spring (Pennsylvania Route 995) and Leafmore roads in Hamilton Township, Franklin County, Pennsylvania. On December 12, 1988, plaintiff filed a complaint in the above-captioned action seeking both compensatory and punitive damages. Plaintiff’s complaint alleged, inter alia:

“(10) At the time of the collision defendant was intoxicated, was not physically fit to drive and was not capable of safely operating a motor vehicle.
“(11) The collision above alleged was solely and proximately caused by the negligence of the defendant, said negligence consisting of the following:
“(a) Operating his vehicle while the amount of alcohol by weight in his blood was greater than 0.10 percent in violation of section 3731 of the Pennsylvania Vehicle Code, 11 [sic] Pa.C.S. §101, et seq.
“(b) Operating his vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving in violation of section 3731 of the Pennsylvania Vehicle Code.
“(c) Failing to stop at the lawfully erected stop sign for eastbound traffic at the intersection of Leafmore Road and Pennsylvania Route 997 [sic] in violation of section 3323 of the Pennsylvania Vehicle Code.
“(d) Failing to yield the right-of-way to the plaintiffs vehicle approaching on Pennsylvania Route 995 in violation of section 3323 of the Pennsylvania Vehicle Code.
“(e) Failing to maintain a diligent lookout and watch before entering the intersection of Pennsylvania Route 995 and Leafmore Road for vehicles approaching the intersection on Pennsylvania Route 995.”

The complaint further alleged that defendant’s actions demonstrated an “utter disregard for the safety of others” and constituted “wanton and willful misconduct” so as to entitle plaintiff to punitive damages. ■

On March 9, 1989, defendant filed preliminary objections in the nature of motions for partial summary judgment or, in the alternative, partial judgment on the pleadings. Defendant contends that plaintiff’s averments are not sufficient evidence of outrageous conduct as to warrant proceeding to trial on the issue of punitive damages. Defendant thus argues that any evidence regarding defendant’s blood alcohol content on the date in question should be inadmissible at trial.

The above matter was argued before the court on April 6, 1989. It is now ready for disposition.

A motion for summary judgment should only be granted if the record shows that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The same test is applied to a motion for judgment on the pleadings, but such determination is limited solely to the pleadings. Pa.R.C.P. 1035(b). In considering motions for summary judgment and judgment on the pleadings, a court must examine the record (and only the pleadings for the latter motion) in the light most favorable to the non-moving party. Any doubt as to whether a genuine issue of material fact exists must be resolved against the moving party. Knecht v. Citizens and Northern Bank, 364 Pa. Super. 370, 528 A.2d 203 (1987); Melmed v. Motts, 341 Pa. Super. 427, 491 A.2d 892 (1985).

The sole issue in the above matter is whether the allegations contained in plaintiffs complaint are sufficient to make out a claim for punitive damages. The principle authority in Pennsylvania on whether punitive damages may be imposed on an intoxicated driver who causes injury to another is Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970). In Focht, the trial court had ruled that evidence of defendant’s intoxication was inadmissible because it could not support an award of punitive damages. On appeal, the Superior Court vacated the lower court’s ruling and concluded that “under the appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages” pursuant to section 908 of the Restatement of Torts. Focht at 42, 268 A. 2d at 161. The Superior Court thus remanded the case to the trial court to determine whether the offers of proof were sufficient to submit the issue of punitive damages to the jury.

Pennsylvania had adopted the law of punitive damages as set forth in section 908 of the Restatement of Torts and the comments thereunder, Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). Section 908(1) provided that “punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct.” Comment (b) of the above section stated that “outrageous conduct” consists of “acts done with a bad motive or with a reckless indifference to the interests of others.” Punitive damages are thus recoverable when the act is done with reckless indifference as well as with bad motive or intent. Focht at 38, 268 A.2d at 159.

The Focht court determined that the phrase “reckless indifference” derived its meaning from comment (d) of section 500 of the Restatement of Torts (“Reckless Disregard of Safety”). That comment provided:

“[I]f the actor’s conduct is such as to involve a high degree of chance that serious harm will result from it to anyone who is within range of its effect, the fact that he knows or has reason to know that others are within such range is conclusive of the recklessness.of his conduct toward them.” Focht at 39, 268 A. 2d at 159. (emphasis supplied by Focht court).

The court further determined that:

“[I]n certain factual circumstances, the risks presented by a drunken driver may be so obvious and the probability that harm will follow so great that outrageous misconduct may be established without reference to motive or intent.” Focht at 41, 268 A.2d at 161.

Since the Superior Court rendered its decision in Focht, no other appellate court in this commonwealth has had the opportunity to elaborate on what constitutes “certain factual circumstances” which would warrant an award of punitive damages. This issue has, however, been squarely addressed at the court of common pleas level.

In Long v. Ohler, 1 D.&C. 4th 402 (1988), defendant’s vehicle had struck plaintiff’s vehicle head-on when the former crossed the center line of a highway. Plaintiffs complaint alleged that defendant’s conduct was “careless, wanton, reckless, negligent and outrageous” in that he drove his vehicle:

“(1) at a time when his blood-alcohol content was 0.22 percent,
“(2) directly into plaintiffs’ path,
“(3) without keeping a proper watch for others, “(4) without yielding the right-of-way,
“(5) at an unsafe speed, given the. weather conditions,
“(6) without adequate control,
“(7) on the wrong side of the highway, and
“(8) in violation of the Vehicle Code.” 1 D.&C. 4th at 403.

Defendant filed a preliminary objection to plaintiffs complaint in the nature of a demurrer to the portion of plaintiffs complaint seeking punitive damages.

Judge Kuhn decided that the above allegations were sufficient to allow the case to proceed to trial on the issue of punitive damages. He cited with approval the Focht court’s comment that:

“Automobiles represent the most lethal and deadly weapons today entrusted to our citizenry. When automobiles are driven by intoxicated drivers, the possibility of death and serious injury increases substantially. Every licensed driver is aware that driving while under the influence of intoxicating liquor presents a significant and very real danger to others in the area.” 1 D.&C. 4th at 405, citing Focht at 41, 268 A. 2d at 161.

Judge Kuhn also noted that in the 17 years since the Focht decision, thousands of Pennsylvania citizens have been killed or injured by intoxicated drivers. 1 D.&C. 4th at 405. Those senseless deaths and injuries have occurred despite our legislature passing tougher legislation regarding driving under the influence and our law enforcement personnel’s efforts to enforce that legislation more strictly. Instead of having improved the problem, driving under the influence has only gotten worse.

Applying the above-stated law to the facts of this case, the court determines that the allegations in plaintiffs complaint are sufficient evidence of outrageous conduct so as to support a claim for punitive damages. The court believes that plaintiffs allegations that defendant was not physically capable of safely operating a motor vehicle, operated his vehicle with a blood alcohol content in excess of 0.10, failed to stop at a lawfully erected stop sign, failed to yield the right-of-way, and failed to maintain a diligent lookout before entering the intersection are sufficient to allow the case to proceed to trial on the issue of punitive damages. Since a genuine issue of material fact exists, defendant’s preliminary objections must be denied.

As in Long, the case at bar is not ready for submission to the jury. Plaintiff must initially establish that defendant violated a section(s) of the Motor Vehicle Code. If plaintiff establishes such a violation by defendant, she may then introduce into evidence defendant’s blood alcohol content on the date in question. If, however, plaintiff fails to establish a motor vehicle violation by defendant, then evidence of defendant’s blood alcohol content shall be inadmissible.

In a related matter before this court, plaintiff served a notice of deposition and subpoena duces tecum on Markell DeLoatch, photojoumalist, and his employer, Public Opinion newspaper, to produce unpublished photographs of the accident scene taken by DeLoatch shortly after the accident. Petitioners, DeLoatch and Public Opinion, filed a petition for a protective order claiming that the unpublished photographs were privileged information pursuant to the Pennsylvania Shield Law and the First Amendment to the U.S. Constitution. This matter was also argued before the court on April 6, 1989.

Section 5942(a) of the Pennsylvania Shield Law provides as follows:

“(a)General rule — No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.”

The seminal case on this issue is In re Taylor, 412 Pa. 32,193 A. 2d 181 (1963). In that case, officials of the now defunct Philadelphia Bulletin newspaper were subpoenaed to appear before a grand jury and produce documents and tape recordings of the paper’s investigation into alleged political corruption in city government. When the officials refused to comply with the subpoena, they were found in contempt of court. On appeal, the Supreme Court reversed the lower court’s ruling and held that the material sought was protected by section 5942(a) of the Shield Law. ;

The importance of the Taylor decision is two-fold. First, the phrase “source of any information” was interpreted to mean not only the identity of the informant, but likewise all documents, inanimate objects and all sources of information. Taylor at 40, 193 A. 2d at 185. Secondly, the court held that the underlying purpose of section 5942(a) is to ensure that newsmen are able to fully and completely protect the sources of their information so that important information, tips and leads do not dry up. Taylor at 41, 193 A. 2d at 185.

In Hatchard v. Westinghouse Broadcasting Co., 516 Pa. 187, 532 A.2d 346 (1987), the Supreme Court adhered to the principle established in Taylor. The court stated, however, that the purpose of section 5942(a) would not be promoted by protecting all documentary information in the possession of a publisher where disclosure of some of that information would not reveal the identity of a confidential media-informant. Hatchard at 192, 532 A. 2d at 350. The court held that unpublished information possessed by a television station is discoverable by a plaintiff in a libel action where that information would not reveal the identity of a personal source of information. Hatchard at 195, 532 A. 2d at 351.

Although Hatchard was decided in the context of a libel action, this court believes its reasoning has equal application to the case at bar. If the court were to grant the protective order, it would, in effect, be giving the newspapers blanket protection of all gathered information whether or not that information would reveal its source. This was clearly not the Supreme Court’s intention in Taylor or Hatchard. The Supreme Court expressly stated that providing an absolute shield on all information would not be necessary to effectuate the purpose of the Shield Law. Hatchard at 192, 532 A.2d at 350. The Hat-chard court determined that if Taylor is read as interpreting the Shield Law to protect from discovery documentary material which would not reveal sources of information, then that decision interpreted the Shield Law much too broadly. Hatchard at 195, 532 A. 2d at 351.

Another case of interest on this issue is Commonwealth v. Ruch, 28 D.&C. 3d 488 (1984). In that case, the court held that unpublished newspaper photographs of an automobile accident, which did not reveal any informants, were not a “source of information” within the meaning of section 5942(a). Such photographs, taken in plain view and in a public area, were therefore discoverable in a criminal proceeding.

Applying the aforementioned law to the facts of this matter, it is clear that the photographs in question are not protected by the Shield Law. Petitioners did not obtain the photographs through any inside information, tip or lead. Furthermore, the photographs were taken in a public area which was open to public view. Since the release of the photographs would not reveal any confidential source of information, the purpose of the Shield Law would not be served by granting a protective order. The Shield Law is therefore inapplicable herein.

Petitioners also claim that the photographs are protected by the First Amendment’s reporter privilege. Unpublished photographs are discoverable under the First Amendment where they are (1) highly material and relevant to the litigant’s claim, (2) necessary or critical to maintenance of the claim, and (3) not obtainable from any other source. U.S. v. Criden, 633 F.2d 346 (3d Cir. 1980).

The court determines that the photographs are highly material to plaintiffs claim because they accurately depict the intersection on the date in question. They also depict the position of the vehicles in relation to the intersection shortly after the accident.

The photographs are also necessary or critical to the maintenance of the claim. Since a factual dispute exists as to how the accident occurred and what directions the parties were traveling, the photographs are very important to resolve the disputed issues.

In addition, the photographs are not available from any other source. There was no indication made by either party or petitioners that other photographs of the accident scene exist. Based on the foregoing, the photographs are not protected by the First Amendment.

Petitioners’ petition for a protective order must be denied.

ORDER OF COURT

June 1, 1989, the preliminary objections of defendant, Brian R. Zeger, are denied. The petition for a protective order filed by petitioners, Markell De-Loatch and Public Opinion, is denied.

      . The case was subsequently settled and the trial court did not have to rule on the above issue.

      . Focht was decided under the original Restatement of the Law of Torts. Since that decision, the American Law Institute has adopted and promulgated the Restatement (Second) of the Law of Torts. The relevant sections and comments referred to in Focht remain substantially unchanged in the Restatement (Second) of Torts.

      . While Long is not controlling in this court, it certainly is persuasive in light of the fact that no appellate case law exists on the issue of what constitutes “certain factual circumstances.”

      . 42 Pa.C.S. §5942(a).


author: KATZ, J.,

text:
    Kang v. Ferry

      Steven D. Berger and Stanton Dubin, for plaintiffs.

      Hugh J. Hutchinson, for defendant.
    January 18, 1990
   KATZ, J.,

Plaintiffs, Miheui L. Kang and Yoonho H. Kang, brought suit against defendant, Charles E. Ferry, for injuries sustained by Mrs. Kang in a rear-end auto collision which occurred on November 2, 1987. At the time of the accident Mrs. Kang was almost seven weeks pregnant. She alleges that as a result of the accident her pregnancy was involuntarily terminated. Therefore, the Kangs have also brought suit on behalf of the estate of Baby Kang.

Defendant Ferry filed preliminary objections to the complaint, demurring to counts 3 and 4, which allege a cause of action on behalf of Baby Kang. In an order dated January 18, 1990, we overruled defendant’s demurrer. This opinion explains our decision.

We start by restating the standard to be applied in reviewing preliminary objections in the nature of a demurrer.

“A preliminary objection in the nature of a demurrer ‘admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences.’DeSantis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 772 (1982). Preliminary objections can properly be sustained and a complaint dismissed only in cases that are clear and free from doubt. Any doubt must be resolved against the moving party. Only where it appears with certainty that, upon the facts averred, the law will not permit recovery can the complaint be dismissed and summary judgment entered for the defendant. Bickell v. Stein, 291 Pa. Super. 145, 149, 435 A.2d 610, 612 (1981), quoting Donnelly v. DeBourke, 280 Pa. Super. 486, 489-90, 421 A.2d 826, 828 (1980) (overruled on other grounds).” Aetna Electroplating Co. v. Jenkins, 335 Pa. Super. 283, 285, 484 A.2d 134, 135 (1984).

Defendant’s demurrer is premised on the argument that an action under the Wrongful Death and Survival Acts, 42 Pa.C.S. §§8301, 8302 may not be maintained on behalf of a seven-week-old, nonviable fetus.

Both parties cite to the leading case in the area of fetal injury in Pennsylvania, Amadio v. Levin, 509 Pa. 199, 501 A. 2d 1085 (1985). .

In Amadio, the parents of a stillborn child brought suit under the Wrongful Death and Survival Acts on behalf of the child. The trial court sustained a demurrer by the defendants on the grounds that a “live birth” was a prerequisite to maintaining a cause of action. The court in Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A. 2d 502 (1966); and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964) had imposed the requirement that, in order to bring a survival action on behalf of a child who had allegedly been injured in the womb, the child must be bom alive. Since the Amadio’s child was stillborn, the lower court sustained the defendant’s demurrer. 509 Pa. 199, 202, 501 A.2d 1085, 1086.

The Supreme Court reversed in Amadio, holding that a live birth, as required under Scott, Marko and Carroll, was no longer a prerequisite to bringing an action on behalf of a fetus for injuries sustained in the womb. 509 Pa. at 203, 501 A.2d at 1086-7. It is the scope of Amadio that is in dispute in this case.

Specifically, the parties disagree whether Amadio applies in all cases of fetal injury in the womb or only in cases where a fetus carried to term is stillborn. Unfortunately, the lead opinion in Amadio is far from clear in explaining the court’s position.

The court first characterizes the issue to be decided as follows:

“[Wjhether a right of recovery exists under our Wrongful Death Act and Survival Statute on behalf of a stillborn child who died as a result of injuries received en ventre sa mere.” Amadio at 201, 501 A. 2d at 1085.

The court then described Jennifer Amadio as a “full-term unborn child” who was “bom stillborn” and that “At delivery, Jennifer was a fully matured and perfectly proportioned seven-pound-eight-ounce female.” Id. at 201, 501 A.2d at 1085.

The court then reviewed its rulings in Scott, Marko and Carroll, supra. The court explained the five reasons cited for limiting the wrongful death and survival actions to those cases where there was a live birth:

(1) The court assumed that the real objective of such suits was to compensate the parents for their emotional distress for the loss of the child. Allowing a cause of action for the estate of the child would only duplicate recovery;

(2) The court refused to acknowledge a stillborn child was an “individual” under the wrongful death or survival statutes, thus no derivative action could be brought on the stillborn child’s behalf;

(3) The court noted difficult causation and damages issues;

(4) At the time Marko and Carroll were decided, only seven other jurisdictions allowed these actions;

(5) Since only children bom alive could take property by descent under the Intestacy Laws, the court assumed the legislature intended to limit other causes of action to those cases where the child was recognized by the Intestacy Laws.

The court then stated the appellant’s request:

“Appellants urge us to abandon these prior decisions requiring survival at birth in order to maintain an action for fatal injuries caused en ventre sa mere, and to adopt the majority view that requires only that the death-dealing injuries occur when the child is viable en ventre sa mere.” Id. at 203, 501 A.2d at 1086. (emphasis supplied)

In the very next sentence, the court writes: “[W]e conclude that the time has arrived for us to join our 28 sister states and the District of Columbia and recognize that survival and wrongful death actions lie by the estates of stillborn children for fatal injuries they received while viable children en ventre sa mere.” Id. at 203, 501 A.2d 1086-7.

This is the first statement of the court’s holding in the case. Unfortunately, the court later restates the holding in materially different language. Indeed, in footnote 3 to the opinion, the court writes:

“Today, we join the following 29 other jurisdictions that hold that actions lie by the estate of stillborn children for wrongful death incurred while they were en ventre sa mere.” Id.

It is worth noting that in cases cited in the footnote, courts in sister states differ materially in the scope of the cause of action for injuries suffered by a child en ventre sa mere. Most courts expressly limit a cause of action to viable fetuses. We have, however, found two decisions, Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976) and Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), which reject viability as a limitation on this cause of action. This split in opinion, we believe, supports our conclusion that the court in Amadio did not clearly manifest an intent to limit this cause of action to viable fetuses. Indeed the court never explores the differences between the majority view and the Presley and Porter cases.

The court next discusses Sinkler v. Kneale, 401 Pa.. 267, 164 A.2d 93 (1960):

“We have. . . recognized that a child en ventre sa mere is a separate individual from the moment of conception, , and have permitted that child to sue for injuries received during gestation when the child is bom alive. Implicit in our holding in Sinkler is the acknowledgment that a child en ventre sa mere is an individual with the right to be free of prenatal injury: If a child en ventre sa mere is an individual at the time of its injury, then a fortiori, the child is also an individual when those injuries cause its death, and it makes no difference in liability under the wrongful death and survival statutes whether the child dies of the injuries just prior to or just after birth.” Id. at 204, 501 A.2d at 1087.

The court went on further:

“We acknowledge a child en ventre sa mere to be an ‘individual,’ having existence as a separate creature from the moment of conception.” Id.

The court next cites Justice Larsen’s dissent in Scott v. Kopp, supra. In that dissent, Justice Larsen argued against extension of the “live-birth” rule and urged elimination of all attempts at “arbitrary line-drawing” as either live birth or viability in deciding whether a causé of action exists on behalf of a fetus injured in the womb. Instead, the parties should be permitted to present evidence in support of then-contentions. This approach is the one adopted by the majority in Amadio. Id., citing 494 Pa. 487, 496, 431 A. 2d 959, 964.

Finally, the court summarizes its holding as follows:

“In summary, today we reverse our prior holdings in Scott v. Kopp, 404 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964), and extend to the estate of a child bom dead the right to institute a survival and wrongful death action for death-dealing injuries suffered while en ventre sa mere.” Id. at 208, 501 A.2d 1085, 1089.

Thus, upon our review of the majority opinion in Amadio, we, believe it is an open question as to whether viability .of the fetus at the time of injury and/or at the time of death is essential to permitting the parents to recover for the infant’s death. Thus, we believe defendant’s argument that Amadio applies only to viable fetuses is misplaced.

The court’s holding in Amadio is ambiguous. On two occasions, the court limits recovery to those cases where the injury and/or death (it is unclear which) occurs when the fetus is viable. The court, in support of its holding, cites two cases from other states, but the court never resolves the conflict contained in those cases over whether viability is in fact a dividing line in these cases.

Then the court cites Sinkler v. Kneale, supra, which holds that a fetus is an “individual” with a right to be free from injury from the moment of conception and refers approvingly to Justice Larsen’s dissent in Scott v. Kopp, supra, which specifically disapproves of “arbitrary line drawing” at points such as viability in deciding whether a cause of action exists.

Finally, when the court summarizes its holding, it does not mention viability of fetus as a requirement. Thus, we think the Amadio can be read so as to permit the cause of action on behalf of the estate of Baby Kang in this case. It is not clear as a matter of law that no recovery is possible and thus, defendant’s demurrer was properly overruled.

ORDER

And now, January 18, 1990, an order dated January 2, 1990 in the above-captioned matter is vacated and amended as follows:

And now, this January 18, 1990, upon consideration of the preliminary objections of defendant, Charles E. Ferry, to plaintiffs’ amended complaint and plaintiffs’ responses thereto, it is hereby ordered and decreed that defendant’s preliminary objections are overruled in part and sustained in part. Defendant’s preliminary objections in the nature of a demurrer are overruled. Defendant’s preliminary objections to strike paragraphs 6(h) and 6(i) of the complaint pursuant to Pa.R.C.P. 1017(b)(2) and 1019 are sustained.

      . Amadio was decided by a 4-3 vote. Justice Papadakos wrote the lead opinion which was joined by Justices Larsen, McDermott and Zappala. Justice Zappala wrote a lengthy concurrence, joined by Justice McDermott. Chief Justice Nix dissented in an opinion joined by Justice Hutchinson. Justice Flaherty dissented separately.

      . Nowhere in Amadio does the court define the term “stillborn.” Webster’s New Collegiate Dictionary defines it as: “1: dead at birth ... 2: failing from the start. ...” Black’s Law Dictionary (5th ed.) defines “stillborn child” as “a child bom dead or in such an early state of pregnancy as to be incapable of living, though not actually dead at the time of birth.”

      . En ventre sa mere is a French term defined in Black’s as “In its mother’s womb. A term descriptive of an unborn child. For some purposes the law regards an infant en ventre as in being.”

      . Justice Zappala’s concurrence stated he was “not satisfied to overrule ... Scott v. Kopp,” supra. He expressly relied on Sinkler v. Kneale, supra, to support his view that “the cause of action for prenatal injuries ... accrues to the child upon the occurrence of the injuries without regard to the later live birth of the child.” Id. at 221, 501 A.2d at 1096. There is no discussion of any requirement of viability in thé concurrence; however, this is not surprising, given the reliance on Sinkler, supra.

      . We offer no opinion on the soundness of such a holding in light of Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989) and Roe v. Wade, 410 U.S. 113 (1973). See also, Presley v. Newport Hospital, supra.


author: BAYLEY, J.,

text:
    Brady v. Grippin

      Dale E. Anstine, for plaintiff.

      George F. Douglas Jr., for defendant Bertha M. Grippin.

      Jefferson J. Shipman, for defendant PennDOT.
    November 9, 1989
   BAYLEY, J.,

Plaintiff entered suit against defendant, Bertha M. Grippin, as the result of an automobile accident on May 4, 1987 in which plaintiffs decedent was killed. On September 13, 1988, plaintiff amended his complaint to include as a defendant the Commonwealth of Pennsylvania, Department of Transportation. In his amended complaint, plaintiff avers that decedent, Margaret E. Brady, was traveling east on Pennsylvania Route 533 approaching the driveway at the home of defendant, Bertha M. Grippin. Grippin allegedly caused the accident when she pulled out of her driveway in front of decedent. Plaintiff pleaded, in paragraph 25 of the amended complaint, that PennDOT was negligent in causing the accident in the following respects:

“(b) Failure to recognize and reasonably foresee the special element of harm, danger and nuisance of the creation of said vertical crest curve.
“(f) Failure to put up warning signs to warn drivers.
“(g) Failure to have workmen direct traffic to warn drivers of the dangerous and hazardous condition.
“(h) Failure to utilize flashing lights to warn oncoming drivers of the hazardous and dangerous condition.”

Paragraph 26 avers: “The intersection where said accident occurred was and is under the exclusive control of defendant, PennDOT.” We interpret that paragraph to mean the intersection of Route 533 and the Grippin driveway since plaintiff pleaded in paragraph 8 that plaintiff decedent was approaching the driveway which was located approximately one-tenth of a mile east of station marker 3/40 in North Newton Township, Cumberland County.

PennDOT has filed a motion for a summary judgment, claiming: “Specifically, plaintiffs theory against PennDOT is that PennDOT had negligently allowed a dangerous condition to exist on Route 533 when it issued the Grippins a highway occupancy permit.” PennDOT avers that it cannot be held “liable for the alleged negligent issuance of such a permit which allowed the Grippins to construct a driveway near the accident situs,” because such conduct would not fall under any exception to sovereign immunity as set forth in the Judicial Code at 42 Pa.C.S. §8522 (Purdon 1989).

An exception to sovereign immunity is found at 42 Pa.C.S. §8522(b)(4), which provides:

“Commonwealth real estate, highways and sidewalks — A dangerous condition of commonwealth agency real estate and sidewalks .. . and highways under the jurisdiction of a commonwealth agency. ..”

The commonwealth does not contest that Route 533 on which this accident occurred was a commonwealth highway under the jurisdiction of PennDOT. The specific allegations as to the negligence of PennDOT in plaintiffs amended complaint, all refer to Route 533 as the highway on which the deceased plaintiff was traveling at the time of the accident. Plaintiff has not pleaded in the amended complaint that the commonwealth was negligent in issuing the driveway permit at the Grippin residence. If that is plaintiffs theory, it will not be presented to a jury. Accordingly, any issue as to whether such conduct would constitute negligence, and fall within any exception to sovereign immunity, is not before us.

Next, in PennDOT’s new matter to plaintiffs amended complaint, it avers that plaintiff is statutorily barred from recovery against the commonwealth for failure to give notice of intent to sue within six months of the date of the accident, as required by the Judicial Code at 42 Pa.C.S. §5522(a) (Purdon 1989). Plaintiff responded to the new matter by denying the allegation as a conclusion of law, and further averred that recovery is not statutorily barred by the failure to provide the notice. The record shows that plaintiffs cause of action arose on May 4, 1987, and that the first time PennDOT was notified of plaintiffs claim was when it was served with plaintiffs amended, complaint on September 14, 1988. PennDOT now seeks the entry of a summary judgment based upon the failure to provide the six months’ notice.

In Ramon v. Commonwealth (PennDOT), 124 Pa. Commw. 416, 556 A.2d 919 (1989), suit was instituted against the commonwealth arising from a motor vehicle accident in which plaintiff did not provide the six months’ notice to the commonwealth as required in section 5522(a) of the Judicial Code. Plaintiffs reason for failing to give the notice was lack of knowledge of the requirement. Interpreting Yurechko v. Allegheny County, 430 Pa. 325, 243 A.2d 372 (1968), the predecessor statute to section 5522, the Commonwealth Court concluded that where negligence of plaintiff or plaintiffs counsel is coupled with a determination that no undue hardship resulted to the government unit due to the failure to file a claim within the prescribed six-month period, a reasonable excuse for failure to comply with that requirement is established.

The current record is insufficient for us to make a determination of whether plaintiff had a reasonable excuse not to file the notice, and whether there was undue hardship on the commonwealth due to such failure. Accordingly, we will deny PennDOT’s motion for summary judgment.

ORDER OF COURT

And now, November 9, 1989, the motion of defendant, Pennsylvania Department of Transportation, for summary judgment is denied. .

      . By stipulation of counsel filed of record on November 1, 1988, sub-paragraphs (a), (c), (d) and (e) of paragraph 25 were stricken from the amended complaint.

      . The amended complaint is hardly an example of clarity. The only reference in the document as to a vertical crest curve is isolated in sub-paragraph (b) of paragraph 25. The hazardous condition referred to in sub-paragraph (g) is not further described.

      . From the briefs on this summary judgment motion, it appears that PennDOT’s concern about a driveway permit arises from a report prepared by an expert for plaintiff. The report, of course, is not part of the record nor does it constitute a pleading.

      . Section 5522 of the Judicial Code provides:
      “(a) Notice prerequisite to action against government unit —
      “(1) Within six months from the date that any injury was sustained for any cause of action accrued, any person who was about to commence any civil action or proceeding within this commonwealth or elsewhere against a government unit for damages on account of any injury to his person ... shall file in the office ... of the Attorney General, a statement in writing .. . setting forth:
      “(i) The name and residence address of the person to whom the cause of action has accrued . ..
      “(in) The date and hour of the accident.
      “(iv) The approximate location where the accident occurred ...

        “(2) If the statement provided for by this sub-section is not filed, any civil action or proceeding commenced against the government unit more than six months after the date of the injury . . . shall be dismissed. .. . The court shall excuse failure to comply with this requirement upon a showing of reasonable excuse for failure to file such statement.”

      . The Commonwealth Court distinguished a case relied upon by PennDOT in the present case. Graffigna v. City of Philadelphia et al., 98 Pa. Commw. 624, 512 A.2d 91 (1986). We have previously done the same. See Andrachick v. Buchart-Horn Inc., 36 Cumberland L.J. 811 (1986), and 37 Cumberland L.J. 196 (1986).