author: FIELD, J.,

text:
    Bakeoven v. Segal

      Gilbert G. Spencer Jr., for plaintiff.

      Michael E. McGilvery, for defendants.
    March 21, 2000
   FIELD, J.,

Defendants, Michael Segal D.O., Michael Segal D.O. P.C. and Revere Street Medical Associates, appeal from this court’s order of January 24, 2000, denying their motion for post-trial relief. For the reasons which follow, the post-trial motion was properly denied, and judgment entered on February 9, 2000 in the amount of $6,768,073.06 should be affirmed.

A jury trial commenced on May 10, 1999. The following facts were established. At the time of his death the decedent, James Bakeoven, was 49 years old, married and had three children, ages 21,17 and 14. He had a history of epilepsy dating back at least since the early 1970s. After approximately 20 years without a seizure, Mr. Bakeoven had a severe recurrence in March of 1993 while driving his car. Shortly thereafter, Mr. Bakeoven consulted a neurologist, Dr. Arenas, who prescribed Dilantin. Mr. Bakeoven continued to take the same dosage of Dilantin, four pills per day, until April 1996, when, under the care of Dr. Segal, his dosage was reduced to three pills per day. About three months after the dosage reduction, Mr. Bakeoven suffered a fatal series of seizures.

On May 14, 1999, the jury returned a verdict in favor of the plaintiff in the amount of $5,054,000 under the Wrongful Death Act and $837,000 under the Survival Act. Following the conclusion of the trial, plaintiff filed a motion for delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure, which was granted. The verdict was molded to $6,768,073.06. Defendant filed a post-trial motion raising five issues: (1) The trial court improperly denied defendant’s motion for a mistrial; (2) improper lay opinion was allowed into evidence; (3) improper expert opinion on the standard of care was introduced; (4) defendant’s expert witness was improperly restricted; and (5) the verdict was excessive. For the reasons which follow, none of these arguments are persuasive. Hence, the motion was properly denied. The defendant’s arguments will be discussed in turn.

1. MOTION FOR MISTRIAL WAS PROPERLY DENIED

Defendant moved for a mistrial based on Mary Bakeoven’s testimony that her husband took four pills of Dilantin per day and would have to do so for the rest of his life. (N.T. May 11, 1999, at 156.) Immediately after she made that statement, defense counsel objected. A sidebar conference was held, after which the jury was immediately instructed to disregard Mrs. Bakeoven’s statement. (N.T. May 11,1999, at 166.) Plaintiff’s counsel then questioned Mrs. Bakeoven about things of which she had personal knowledge. Mrs. Bakeoven testified that it was she who would refill her husband’s prescriptions at the pharmacy and it was she who dispensed his medication, two pills with his breakfast and two pills with his dinner daily. (N.T. May 11, 1999, at 167-68.) Throughout the course of the trial, other evidence was introduced through medical witnesses as to Mr. Bakeoven’s prescribed dosage of Dilantin. One expert witness, Sheldon Margulies M.D., went so far as to opine as to the duration of the decedent’s need for continued high dosages of the drug. (N.T. May 12, 1999, at 25-33.)

Defendant argues that even though his objection was sustained and a curative instruction was given, a mistrial was necessary because the jury may have based its verdict on improperly admitted evidence. Initially, we note that the disposition of a motion for mistrial is a matter committed to the sound discretion of the trial court. Livelsberger v. Kreider, 743 A.2d 494 (Pa. Super. 1999). Moreover, a curative instruction given promptly is presumed to solve the problem of improperly introduced evidence, except in very limited circumstances. Commonwealth v. Smith, 414 Pa. Super. 208, 606 A.2d 939 (1992), appeal denied, 533 Pa. 624, 620 A.2d 490 (1993). Where, as here, the evidence improperly introduced is cumulative of property admitted evidence, any possible error is harmless, and a new trial is not warranted.

2. LAY OPINION WAS PROPERLY ADMITTED

Defendant next claims that a new trial is warranted because Mrs. Bakeoven was permitted to testify concerning the impact of Mr. Bakeoven’s death on their youngest child. Defendant objects to the testimony as inadmissible lay opinion. This argument is without merit. First, much of Mrs. Bakeoven’s testimony was factual: how her son acted before his father’s death and how he has acted since. Second, as his mother, and someone who was able to observe him on a daily basis, Mrs. Bakeoven was allowed to state her own conclusions. Rule 701 of the Pennsylvania Rules of Evidence states that lay opinions or inferences are permissible provided they are “rationally based on the perception of the witness and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Mrs. Bakeoven’s testimony falls squarely within Rule 701. Thus, a new trial is not warranted.

3. EXPERT OPINION ON THE STANDARD OF CARE WAS PROPERLY ALLOWED

Defendant’s third argument is that Dr. Margulies should not have been allowed to testify as to the standard of care for family practice physicians such as Dr. Segal, because he is not himself a specialist in family practice. The standard for expert testimony in Pennsylvania is very liberal; so long as a witness has a reasonable pretension to specialized knowledge, she or he may testify as an expert. Montgomery v. South Philadelphia Medical Group Inc., 441 Pa. Super. 146, 152, 656 A.2d 1385, 1388 (1995), appeal denied, 542 Pa. 648, 666 A.2d 1057 (1995); Pa.R.E. 702. The weight to be given to the witness’ testimony is for the trier of fact to decide. Id. Here, Dr. Margulies testified that he was board certified in neurology, having first been fully trained in the field of internal medicine. Although admittedly not a specialist in the field of family practice, his training as an internist gave him the necessary general practice knowledge.

Under Pennsylvania law, Dr. Margulies was sufficiently qualified to offer an expert opinion. It was also clearly permissible for defense counsel to cross-examine him on his qualifications and to argue to the jury that his testimony was not entitled to great weight, both of which were done. A new trial is not warranted on this basis, either.

4. DEFENDANT’S EXPERT WITNESS WAS PROPERLY RESTRICTED

Defendant’s fourth argument rests on his assertion that the testimony of his own expert witness, Richard I. Katz M.D., was improperly limited. Rule 4003.5(c) of the Pennsylvania Rules of Civil Procedure specifically states that the direct testimony of an expert at trial may not go beyond the fair scope of his or her testimony as set forth in his or her expert report. In the instant matter, Dr. Katz’s report discusses Dr. Segal’s treatment of Mr. Bakeoven, and the soundness of his decision to reduce Mr. Bakeoven’s Dilantin dosage. At trial questions on that topic were allowed. Only when defense counsel sought to elicit testimony as to the half-life of the medication, i.e., the rate at which it breaks down in the body, did plaintiff’s counsel object. Previously, on cross-examination of Dr. Margulies, defense counsel sought to introduce the possibility that Mr. Bakeoven reduced his own dosage by not taking the prescribed amount. Dr. Margulies rejected that notion. There is no mention in Dr. Katz’s report of the possibility that Mr. Bakeoven may have purposely taken less than his prescribed dosage. Any questions relating to this theory were clearly beyond the four comers of Dr. Katz’s report, since Dr. Katz not only acknowledged Dr. Segal’s reduction of Mr. Bakeoven’s dosage, but approved of same. The testimony was property limited.

5. THE VERDICT WAS NOT EXCESSIVE

Finally, Dr. Segal seeks remittitur, arguing that the verdict was excessive. “The assessment of damages is peculiarly within the province of the jury, and the jury’s award will not be set aside... unless it is so excessive as to shock the conscience of the court or unless it is clearly based on partiality, prejudice or passion.” Wasserman v. Fifth & Reed Hospital, 442 Pa. Super. 563, 578, 660 A.2d 600, 607 (1995), and cases cited therein. Here, the jury heard testimony from Mrs. Bakeoven about how the death of her husband, a father of three who was only in his 40s, had a devastating effect on her family, and especially on her adolescent son. Under these circumstances, the award, though generous, did not shock the conscience of this court. Therefore, it was not reduced.

For all of the foregoing reasons, the defendant’s post-trial motion was property denied, and judgment as entered on February 9, 2000, in the amount of $6,768,073.06 should be affirmed.


source: Caselaw Access Project

author: O’BRIEN, P.J.,

license: Public Domain

text:
    Walter v. Tunney

      C.P. of Butler County,
    A.D. no. 97-10121.

      Richard E. Goldinger, for plaintiffs.

      Thomas A. McDonnell, for defendant Tunney.

      Rebecca Sember and Edward A. Yurcon, for defendant Bieber.

      Lee A. Montgomery and Norman D. Jaffe, for defendant Nusser.

      John R. Benty, for the Commonwealth.
    March 17, 1999
   O’BRIEN, P.J.,

Defendant Commonwealth of Pennsylvania has filed with the court, for its consideration, a motion for judgment on the pleadings requesting that this court enter judgment in its favor on the basis that the above-named plaintiffs failed to state a cause of action upon which relief can be granted.

The pertinent facts are as follows. On October 4,1995, plaintiff Paul L. Walter was driving his 1930 Ford street rod coupe on State Route 356 in Butler County with his daughter, plaintiff Emily Walter, riding as a passenger. After passing several slow moving vehicles, plaintiff Paul Walter attempted to move back into the non-passing lane of traffic when he lost control of the automobile. The automobile flipped over and landed on the roadway. Plaintiff Emily Walter was killed as a result of this automobile accident.

Plaintiffs filed a complaint against the above named defendants contending that the accident was the result of several defects in the automobile design and restoration that should have been discovered when the automobile was inspected just prior to the accident by defendant Daniel Bieber t/d/b/a Bieber Automotive. Plaintiffs argued that the Commonwealth was negligent in granting an automobile inspection license to defendant Bieber Automotive when it should have known that defendant Bieber Automotive was incapable of properly inspecting the automobile. Further, the plaintiffs contend that the Commonwealth was negligent by failing to ascertain that defendant Bieber Automotive was incapable of performing a proper automobile inspection and that the Commonwealth did not take all the necessary measures to ensure that defendant Bieber Automotive was capable.

The Commonwealth, in its motion for judgment on the pleadings, argues that plaintiffs have failed to state a cause of action upon which relief can be granted because sovereign immunity bars the Commonwealth from being held liable for this accident. The Commonwealth states that plaintiffs’ action for negligent licensing and regulation is not one of the nine exceptions to sovereign immunity. See 42 Pa.C.S. §8522(b). Therefore, the Commonwealth contends the court should dismiss all claims against the Commonwealth.

In order to bring an action against the Commonwealth without it being barred by sovereign immunity, a plaintiff must establish (1) that the negligent act involved a cause of action recognized at common law or by statute, and (2) that the act by the Commonwealth is one of the nine enumerated exceptions to sovereign immunity identified in 42 Pa.C.S. §8522(b). See id. The court is to strictly construe these nine exceptions in determining the applicability of sovereign immunity. See CSX Transportation Inc. v. Franty Construction, 157 Pa. Commw. 620, 630 A.2d 932 (1993).

In this case, defendant Bieber Automotive is not an agent of the Commonwealth simply because the Commonwealth regulates and licenses it to perform automobile inspections. See Kline v. Pennsylvania Mines Corp., 120 Pa. Commw. 7, 10-12, 547 A.2d 1276, 1278 (1988). The Commonwealth’s ability to grant an inspection license to defendant Bieber Automotive is not sufficient to bring the license or the business within the physical possession or actual control of the Commonwealth so that section 8522(b)(3) might apply. See 42 Pa.C.S. §8522(b)(3); Giovannitti v. PennDOT, 113 Pa. Commw. 572, 537 A.2d 966 (1988), appeal denied, 519 Pa. 669, 548 A.2d 258 (1988); Kline, 120 Pa. Commw. 7, 547 A.2d 1276.

In order for the real estate exception to apply, 42 Pa.C.S. §8522(b)(4), plaintiffs must allege that an artificial condition or defect in the highway resulting from actions by the Commonwealth caused the automobile accident and death of plaintiff Emily Walter. In this action, plaintiffs do not raise such allegations.

Additionally, none of the remaining seven exceptions apply to the facts of this case.

In examining the evidence and closely scrutinizing the. nine exceptions to sovereign immunity outlined at 42 Pa.C.S. §8522(b)(1-9), the court finds that plaintiffs have failed to show that one of the nine exceptions is applicable. The court, therefore, concludes that sovereign immunity bars the Commonwealth from being held liable for the automobile accident that resulted in the death of plaintiff Emily Walter. Finding that the plaintiffs have failed to state a cause of action against the Commonwealth for which relief can be granted, the court enters the order below.

ORDER

And now, March 17,1999, before the court for its consideration is defendant Commonwealth of Pennsylvania’s motion for judgment on the pleadings. After reviewing the evidence and narrowly interpreting the nine exceptions to sovereign immunity, the court finds that the above named plaintiffs have failed to show that one of the nine exceptions outlined at 42 Pa.C.S. §8522(b)(1-9) is applicable. This action against the Commonwealth for negligent licensing and regulation is, therefore, barred by sovereign immunity.

Finding that plaintiffs have failed to state a cause of action against the Commonwealth for which relief can be granted, the court hereby orders that the Commonwealth’s motion for judgment on the pleadings is granted.

      . The nine exceptions where sovereign immunity will not protect the Commonwealth from being held liable are as follows:
      “(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
      “(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of a Commonwealth party ....

        “(2) Medical-professional liability. — Acts of health care employees of Commonwealth agency medical facilities or institutions ....
      “(3) Care, custody or control of personal property.— ... in the possession or control of Commonwealth parties ....
      “(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks . . . and highways ....
      “(5) Potholes and other dangerous conditions. — A dangerous condition of highways ... created by potholes or sinkholes ....
      “(6) Care, custody or control of animals. — ... in the possession of a Commonwealth party....
      “(7) Liquor store sales. — The sale of liquor at Pennsylvania liquor stores by employees of the Pennsylvania Liquor Control Board ....
      “(8) National Guard activities. — Acts of a member of the Pennsylvania military forces.
      “(9) Toxoids and vaccines. — The administration, manufacture and use of a toxoid or vaccine .. ..” 42 Pa.C.S. §8522(b)(l-9).


author: JAMES, J.,

text:
    Clarkson v. Geisinger Medical Center

      C.P. of Montour County,
    no. 123-00.

      R. Matthew Patch, for plaintiff.

      Donna L. Rae, for defendants.
    May 25, 2000
   JAMES, J.,

Plaintiff filed a complaint at law, alleging medical negligence on the part of defendants. Defendants filed two preliminary objections. The first objection was in the form of a “demurrer/motion to strike all claims for recklessness.” Plaintiff stipulated to strike the allegations of recklessness from the complaint.

The second preliminary objection was a “motion to strike complaint/alternative motion for more specific pleading” to the following paragraphs, alleging these “acts” of negligence:

“11(A) failing to perform the excision of the hidrantentiis suppurtive on Scott E. Clarkson’s right buttock in accordance within medically accepted standards for general surgeons ....
“11(D) failing to provide the requisite degree of care in managing plaintiff’s medical condition and failing to perform to the requisite standard of care under the circumstances. ..
“37(A) failing to uphold the proper standard of care to ensure the plaintiff’s safety and well-being while at the hospital.”

Defendants suggest that these allegations of negligence do not comply with the requirement of Pa.R.C.P. 1019(a) that “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Defendants also contend that the general, non-specific allegations of paragraph 11(A), 11(D) and 37(A) leave defendants “powerless to prevent plaintiff from obtaining leave to amend the complaint to allege new and different theories of negligence after the running of the statute of limitations” under Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). We agree.

Pa.R.C.P. 1019(a) requires that the complaint state “material facts” to support a cause of action. “A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought.” Reynolds v. Thomas Jefferson Hospital, 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996), citing Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939).

In Connor, supra, the Pennsylvania Supreme Court found that general allegations of negligence could be amplified by later amendments to the complaint. However, in order to be more specifically apprised of the act or acts of negligence (as required by Pa.R.C.P. 1019(a)), a party “could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of [appellant’s] complaint.” Connor, 501 Pa. at 311 n.3, 461 A.2d at 602 n.3.

As a result of Connor, defendants are properly concerned about unidentified allegations of negligence arising late in the litigation process flowing out of a general allegation of negligence raised early in the process. Some common pleas courts have been rightly attuned to plaintiffs who have less knowledge than the defendant medical providers about the care and/or treatment provided. While weighing the “practical considerations involved with medical malpractice actions,” one court gave the plaintiff a “reasonable amount of time to conduct discovery,” and then allowed plaintiffs to amend the general allegations in their complaint. Johnson v. Patel, 19 D.&C.4th 305 (Lacka. Cty. 1993).

A common pleas court has upheld allegations of negligence that were “not very specific,” and suggested the “court adopt a rule allowing courts to grant plaintiffs a period of time for discovery prior to the filing of a complaint” to avoid the Connor conundrum. See Rogers v. Soldiers & Sailors Memorial Hospital, 16 D.&C.4th 573 (Tioga Cty. 1991).

There are methods by which a plaintiff could be protected from the trap of after-discovered evidence of a new cause of action. First, filing the claim at a date much earlier than the date of the statute of limitation would allow more time for discovery and, if necessary, amendments to the pleadings. Second, a thorough investigation and analysis of the case prior to filing could eliminate overlooked causes of action. Third, plaintiffs could file a summons and engage in pretrial discovery, if appropriate. See Potts v. Consolidated Rail Corp., 37 D.&C.4th 196 (Allegheny Cty. 1998).

Finally, this court can envision situations where a general allegation of negligence in a complaint could be left open (under limited circumstances) for a reasonable amount of time while discovery proceeds. For example, under a separate petition, a party could ask for a reasonable time to conduct discovery before amending the general allegations of negligence in a complaint where knowledge of material facts is in the exclusive control of an adverse or hostile party. However, there is no such petition before the court, nor does this court encourage the use of such petitions, except where absolutely necessary to prepare a proper complaint.

The issue before this court is whether the allegations of negligence in paragraphs 11 (A), 11 (D) and 37 (A) conform with Pa.R.C.P. 1019(a). The Pennsylvania appellate courts have said that “while it is not necessary that the complaint identify the specific legal theory of the underlying claim, it must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.” Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 337, 690 A.2d 719, 723 (1997).

In a common pleas case similar to ours, the Somerset Common Pleas Court struck paragraphs containing general allegations of negligence. The court acknowledged that the complaint must be read as a whole, and that each individual averment at issue must be read in connection with all other parts and averments of the complaint. However, “a physician charged with negligence and unskill-fulness in the practice of his profession is entitled to be advised of the specific acts of commission or omission which constitutes the negligence and unskillfulness complained of, so that plaintiff’s proof may be confined to such acts, and so that he may reasonably prepare for his defense.” Boyd v. Somerset Hospital, 24 D.&C.4th 564, 568 (Somerset Cty. 1993), citing Gray v. Oech, 49 D.&C.2d 455 (1970).

After considering the allegations of paragraphs 11(A), 11(D) and 37(A) by themselves and in the context of the entire complaint, it is clear that paragraphs 11(A), 11(D) and 37(A) are simply general allegations of negligence without reference to sufficient material facts. There are no acts of commission or omission specified. Defendants are entitled to be informed of the specific nature of the acts alleged so that they may prepare and present a defense. These paragraphs must be stricken, with leave to amend the complaint to include specific acts. The court will provide plaintiff with additional time to review the matter, conduct further investigation, and to amend the complaint accordingly.

ORDER

And now, May 25, 2000, it is ordered and decreed as follows:

(1) By agreement and stipulation of the parties, defendants’ first preliminary objection in the nature of a demurrer/motion to strike all claims for recklessness is granted. All claims regarding “recklessness” are hereby stricken.

(2) Defendants’ second preliminary objection in the form of a motion for more specific pleading is granted in regard to paragraphs 11(A), 11(D) and37(A). Paragraphs 11(A), 11(D) and 37(A) are stricken, with leave to amend the complaint with more specificity.

(3) Plaintiff shall file an amended complaint in accordance with the opinion and this order within 60 days of this date.


author: MINORA, J.,

text:
    Casey v. Dushney

      C.P. of Lackawanna County,
    no. 99-CV-159.

      Richard F. Goldenziel, for plaintiff.

      David C. Ray, for defendants Dushney.

      Philip D. Priore, and Michelle N. Rossi, for defendant Elegant Moments.

      Thomas R. Daniels, for defendant Mesko Glass.

      Anthony J. Piazza Jr., for defendant Frantz.
    March 7, 2000
   MINORA, J.,

I. INTRODUCTION

The current matter before this court is the preliminary objections of the additional defendant, Elegant Moments Inc., to the joinder complaint of defendants, Edna and Ron Dushney.

This action began with the filing of a writ of summons on January 12, 1999. On April 23,1999, a formal complaint was filed by the plaintiff, Colleen Casey, alleging damages for an injury that occurred on July 11, 1997 at premises owned by the Dushneys but leased to EMI.

Plaintiff alleges that while working at the subject premises as an employee of EMI, she put her foot on the glass panel of an exit door for the purpose of tapping to get someone’s attention. Upon lightly tapping the glass, it broke in “big sheers of glass like swords,” resulting in the injuries alleged in the complaint.

On May 20, 1999, the Dushneys filed a joinder complaint directed to EMI seeking indemnification and/or contribution for the injuries claimed by the plaintiff.

On June 7, 1999, EMI filed preliminary objections to Dushneys’ joinder complaint, alleging a lack of a written contract between the Dushneys and EMI for indemnity and/or contribution, and further alleging immunity from joinder under the exclusivity provision of the Workers’ Compensation Act, 77 P.S. §481(b). EMI also filed a memorandum of law in support of its preliminary objections on June 7, 1999.

On June 18, 1999, the Dushneys filed a response to EMI’s preliminary objections, along with a memorandum of law. The Dushneys also filed a lease agreement as an exhibit to their response, containing the subject indemnity and/or contribution clause we will hereinafter address. The court entertained oral argument on February 2, 2000 and also entertained EMI’s reply memorandum submitted on that same day. The matter is now ready for disposition.

II. ISSUE(S) PRESENTED

Is the original defendants Dushneys’ joinder complaint against the plaintiff’s employer and additional defendant, EMI, barred by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act, 77 P.S. §481(b)?

III. THE STANDARDS FOR PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER

In considering preliminary objections in the nature of a demurrer under Pa.R.C.P. 1028(a)(4), we must consider as true all well-pleaded facts of the joinder complaint at issue and all reasonable inferences that may be drawn from those facts, Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992), and if we are to dismiss a claim on preliminary objections, we must do so only in cases that are clear and free from doubt. Bower, supra; Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 602 A.2d 864 (1992). See also, Denton v. Silver Stream Nursing & Rehabilitation Center, 739 A.2d 571 (Pa. Super. 1999); Pennsylvania Pharmacists Association v. Commonwealth, Department of Public Welfare, 733 A.2d 666 (Pa. Commw. 1999).

Furthermore, if an amendment such as attaching a required lease agreement as an exhibit will cure any legal insufficiencies of a complaint, we should allow such amendment rather than order an outright dismissal of a complaint. See 5 Standard Pennsylvania Practice 2d §25.66; Maddox v. Commonwealth, Department of Agriculture, Bureau of Animal Industry, 35 Pa. Commw. 386, 386 A.2d 620 (1978); Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978). Further, if issues of fact are raised by preliminary objections, the court has the right to receive evidence by depositions or otherwise, such as looking at the lease agreement at issue. See Pa.R.C.P. 1028(c)(2); Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

With these principles in mind, we will consider EMI’s workers’ compensation exclusivity defense in conjunction with the lease agreement proffered by the Dushneys.

IV. THE EXCLUSIVITY DEFENSE OF THE PENNSYLVANIA WORKERS’ COMPENSATION ACT

Exhibit “A” attached to defendants Dushneys’ response to additional defendant’s preliminary objections to joinder complaint and memorandum in support thereof, is a lease agreement between the parties dated May 1, 1994 and an addendum dated May 1, 1994.

The indemnity clause at issue is in paragraph 26 of said addendum and states in pertinent part:

“(26) Tenant will indemnify landlord and save it harmless from and against any and all claims, actions, damages, liability and expenses in connection with loss of life, personal injury or damage to property occurring in or about, or arising out of the demised premises and access road and other like areas used exclusively by tenant or occasioned wholly or in part by any act or omission of tenant, its agents, contractors, customers, employees, subtenants and concessionaires.”

The relevant portion of the Workers’ Compensation Act states:

“(b) In the event injury or death to an employee is caused by a third party, then such employee, his legal representative, husband or wife, parents, dependents, next of kin and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employees, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. ” 77 P.S. §481(b). (emphasis added)

There is no question that the indemnity clause at issue existed on May 1, 1994, over three years prior to the date of injury of July 11, 1997. Therefore, we must examine whether the indemnity clause at issue is specific enough to meet the “expressly provided for” portion of 77 P.S. §481(b).

Under 77 P.S. §481(b), a third party may not seek contribution or indemnity from an injured party’s employer absent an express provision for indemnity in a written contract. Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530(1994).

Our Pennsylvania Supreme Court has not yet examined the degree of specificity required in an indemnification agreement in order for an employer to waive immunity under 77 P.S. §481(b).

Our Superior Court has held that for an employer to waive workers’ compensation immunity, the parties must specifically utilize language which indicates that the employer/alleged indemnitor intends to indemnify the third party against claims by employees of the alleged indemnitor, and that this must clearly appear from the terms of the agreement. Snare v. Ebensburg Power Co., 431 Pa. Super. 515, 637 A.2d 296 (1993), appeal denied, 538 Pa. 627, 646 A.2d 1181 (1994).

While the employer need not expressly waive workers’ compensation immunity, the intent to indemnify against claims by employees of the alleged indemnitor must clearly appear from the terms of the agreement. Bester, 422 Pa. Super, at 185, 619 A.2d at 307. General indemnity language is insufficient. Id.

Our Superior Court in Hackman v. Moyer Packing, 423 Pa. Super. 378, 621 A.2d 166 (1993) upheld an indemnity clause which stated:

“Currie (tenant/employer) agrees to indemnify, save and hold harmless Moyer Packing Company, (landlord), its subsidiaries, affiliates, their directors, officers, agents, workmen, servants or employees, against any and all claim or claims brought by the agents, workmen, servants or employees of Currie (tenant/employer) for any alleged negligence or condition, caused or created [in] whole or in part, by Moyer Packing Company (landlord).” Hackman, 423 Pa. Super, at 382, 621 A.2d at 168.

Therefore, in the Hackman case, the degree of specificity was met because the indemnity clause clearly indicated that the tenant/employer could indemnify landlord for injuries occurring to tenant’s employees.

In the case before us now, the indemnity clause is a general indemnity clause and does not specifically discuss injuries to the tenant’s employees as required by the Hackman case. See Hackman, 423 Pa. Super, at 382-83, 621 A.2d at 168-69.

Thus, the indemnity language at issue before us is exactly the kind of general indemnity language ruled insufficient in Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 184, 619 A.2d 304, 307 (1993). The intent to indemnify against claims by employees of the alleged indemnitor must clearly appear from the terms of the agreement. Remus v. Duquesne Light Co., 371 Pa. Super. 183, 537 A.2d 881 (1988).

Even if we were to allow the defendants Dushneys to file an amended complaint attaching the subject lease agreement and indemnity clause at issue, said indemnity clause does not meet the requirements necessary to overcome the workers’ compensation immunity afforded by 77 P.S. §481(b).

Therefore, we must sustain additional defendant’s preliminary objections in the nature of a demurrer.

An appropriate order will follow.

ORDER

And now, to wit, March 7, 2000, upon consideration of the preliminary objections in the nature of a demurrer of additional defendant, Elegant Moments Inc., to the joinder complaint of the defendants, Edna Dushney and Ron Dushney, and after consideration of the written and verbal arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that additional defendant’s, Elegant Moments Inc.’s, preliminary objections in the nature of a demurrer to defendants’, Edna Dushney and Ron Dushney, joinder complaint are sustained.

It is further ordered and decreed that defendants’, Edna Dushney and Ron Dushney, joinder complaint against additional defendant, Elegant Moments Inc., is dismissed with prejudice.


author: FORD, J.,

text:
    Wellington v. Day-Timers Inc.

      C.P. of Lehigh County,
    no. 1999-C-330.

      Robert G. Bauer, for plaintiff.

      Antoinette R. Stone and Oldrich Foucek III, for defendants.
    May 1, 2000
   FORD, J.,

In the motion for summary judgment before us, filed on October 12, 1999 by additional defendant, Wood Business Dining Services Inc. n/k/a The Wood Company, Wood seeks dismissal of the case against it based on the employer immunity provision of the Workers’ Compensation Act, 77 RS. §481. There is merit to Wood’s motion. We grant it and dismiss Wood as a party.

Plaintiff, Patricia Wellington, was an employee of Wood assigned to work at the cafeteria of the defendant, Day-Timers Inc. In her complaint, she alleges that she received an electrical shock on May 9,1997 in the Day-Timer s’s cafeteria while cleaning a steam table.

The plaintiff brought the suit against just Day-Timers on February 8, 1999 by filing a complaint. On June 3, 1999, Day-Timers filed a third party complaint against Wood, plaintiff’s employer. The third party complaint has a count for indemnification and a count for breach of contract. The joinder complaint is based upon an indemnification clause that is found in the food service agreement entered between Day-Timers and Wood.

An employer may not be joined as an additional defendant in an action by an injured employee against a third party tort-feasor. The employer may not be joined on a theory of direct sole liability or joint or several liability. The employer may not be joined for the purpose of apportioning negligence. 77 P.S. §481. See the discussion pertaining to the breadth of this immunity provision in Fulmer v. Duquesne Light Co., 374 Pa. Super. 537, 540-41, 543 A.2d 1101-1102 (1988).

The immunity under the Act precludes a third party from seeking indemnification or contribution from the employer, whether the plaintiff’s injuries were brought about by the third party or were caused by the employer himself. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980); Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530 (1994).

However, an employer may waive its immunity for indemnity to the third party but it must be “expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.” 77 P.S. §481(b).

This is the nub issue in this case. Through paragraph 7B of the contract between Day-Timers and Wood, did Wood waive its immunity from indemnification and contract claims brought against it by Day-Timers, related to the electrocution accident which Ms. Wellington claims she suffered? Both parties have appropriately emphasized the significance of the en banc decision of the Superior Court in Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530 (1994).

The mandate of the Workers’ Compensation Act that it takes an express agreement to waive the employer’s immunity under the Act, as elucidated in Bester, leads us easily to the conclusion that Wood, the employer here, has not waived its immunity on indemnification and contract claims under the provisions of paragraph 7B. The immunity for Wood remains for both wrongdoing by Day-Timers’s employees as well as Wood’s employees.

The Bester court stated that “if the indemnification agreement is clear and includes indemnification in the event of either the indemnitee’s or the employer’s own negligence, its enforceability does not require that the employer, in addition, expressly and in haec verba waive the immunity provided by section 481(b) of the Workers’ Compensation Act.” The court explained that “[t]he intent to indemnify against claims by employees of the alleged indemnitor, however, must clearly appear from the terms of the agreement.” Bester at 185, 619 A.2d at 307. Unless there is a proper waiver, “a third party may not seek contribution or indemnity from the employer, even though the employer’s own negligence may have been the primary cause of the employee’s injury.” Id. at 183, 619 A.2d at 306-307. (citations omitted)

The indemnity provision in the Workers’ Compensation Act that grants immunity to employers must be “strictly construed” and general indemnity language such as “any or all” or “any nature whatsoever” is insufficient to overcome the immunity. Bester at 184, 619 A.2d at 307. Without specificity in the indemnification language, the Workers’ Compensation Act bars any liability on the part of the employer, including for indemnity, whether as a result of the indemnitor’s or indemnitee’s negligence.

We examine the language of paragraph 7B. It provides:

“Wood shall indemnify and hold harmless Day-Timers and its agents and employees from and against all claims, damages, losses and expenses, including attorney’s fees, arising out of or resulting from the activities or omissions of Wood hereunder, or the services provided in connection herewith, except to the extent that such claims, damages, etc. are attributable to the negligence of Day-Timers, its agents and employees.”

This contract provision is insufficient to constitute a waiver of the immunity extended to Wood. An intent by Wood to indemnify Day-Timers against claims by employees of Wood, whether for negligent acts by Day-Timers or for negligent acts by Wood, does not clearly appear from the terms of this agreement. We have general indemnity language only. Paragraph 7B lacks a clearly expressed intent to waive indemnity liability and so, as a matter of law, it is not sufficient to expose Wood to contract or indemnity liability arising out of the injuries suffered by the plaintiff.

Granting summary judgment is proper only where, viewing all the facts in the light most favorable to the nonmoving party and resolving all doubts as to the existence of material fact against the moving party, the moving party is entitled to judgment as a matter of law. Dorohovich v. West American Insurance Co., 403 Pa. Super. 412, 589 A.2d 252 (1991). The party moving for summary judgment has the burden of proving that no genuine issue of material fact exists. Allen v. Mellinger, 156 Pa. Commw. 113, 625 A.2d 1326 (1993), appeal denied, 537 Pa. 653, 644 A.2d 738 (1994). Summary judgment may be granted only where the moving party’s right is clear and free from doubt. Id.

In view of our finding that, as a matter of law, Wood has not waived its immunity under the Act, there are no material issues of fact relating to Wood’s potential responsibility. Accordingly, our granting the motion for summary judgment is required.

ORDER

Now, May 1, 2000, after argument on the additional defendant’s motion for summary judgment conducted on February 1, 2000, and for the reasons set forth in the accompanying opinion, it is hereby ordered that the additional defendant’s motion for summary judgment is granted. Additional defendant, Wood Business Dining Services Inc. n/k/a The Wood Company, is hereby dismissed as a party in this case for all purposes.

      . The original contract of June 1990 between Day-Timers and Wood contained paragraph 7B which we recite verbatim below and that paragraph has survived the amendments to the contract on May 23, 1992 and September 13, 1996.


author: WALLACH MILLER, J.,

text:
    Knecht v. Durso
    C.P. of Monroe County,
    no. 2383 Civil 1999.

      Janet Jackson, for plaintiff Knecht.

      Jay Barry Harris, for defendant Durso.

      William A. Slotter, for additional defendant PennDOT.

      Joseph F. McNulty Jr., for additional defendant Blooming Glen.
    May 15, 2000
   WALLACH MILLER, J.,

Plaintiff, Ralph M. Knecht Sr., sustained severe injuries on September 19,1997 when he was run over by a dump truck which was backing up on a section of Interstate Highway 80 during a repair project. He filed a complaint on April 7,1999 naming as defendants, Michael Durso d/b/a Durso Trucking Company and John David, the driver. Following a period of preliminary discovery by the parties, on September 13,1999, defendants Durso and David filed a motion for leave to join additional defendants, the Commonwealth of Pennsylvania, Department of Transportation and Blooming Glen Contractors Inc. This court granted that motion and the joinder complaint was filed on September 27, 1999, followed by an amended complaint on November 8, 1999.

Both additional defendants filed preliminary objections to the amended complaint, and Durso and David filed a second amended complaint. Again, both additional defendants filed preliminary objections which were sustained by this court on January 7,2000. Durso and David filed a third amended complaint, and once again both additional defendants have filed preliminary objections. We heard oral argument on these preliminary objections on March 6,2000, and following a review of the parties’ briefs and the relevant Pennsylvania law, we are now prepared to dispose of this matter.

The Commonwealth of Pennsylvania, Department of Transportation first objects that the joinder complaint should be dismissed, because it was filed after the 60-day period allowed for permissive joinder under Pa.R.C.P. 2253. Rule 2253 specifies:

“Except as provided by Rule 1041.1(e) [relating to asbestos litigation], neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than 60 days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.”

In the instant case, plaintiff first completed service of his complaint to original defendants on April 19, 1999. Durso and David filed their motion for leave to join additional defendants on September 13, 1999, more than four months after Durso and David received plaintiff’s complaint. Durso and David justified the timing of their motion on the grounds that only after engaging in discovery following receipt of plaintiff’s complaint did they fully understand the extent of PennDOT’s and Blooming Glen Contractors’ involvement in the construction job. This court granted Durso and David’s motion for leave to join additional defendants PennDOT and Blooming Glen Contractors Inc.

Both our Supreme and Superior Courts have consistently held that a determination of whether a defendant has shown sufficient cause to excuse a joinder after the 60-day period allowed by Pa.R.C.P. 2253 is a matter within the sound discretion of the trial court. Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970); Kirsch v. Parking Authority of New Castle, 108 Pa. 259, 263, 529 A.2d 604, 606 (1987), allocatur denied, 517 Pa. 619, 538 A.2d 501 (1988); Exton Development v. Sun Oil Company of Pennsylvania, 363 Pa. Super. 17, 20, 525 A.2d 402, 403 (1987). In Zakian, the court recognized that Pa.R.C.P. 2253 does not specify what is sufficient cause for an extension, nor does the rule list factors that a court is to consider when making a determination under Rule 2253. Id. at 255-56, 264 A.2d at 641. Accordingly, Zakian held that courts deciding a Rule 2253 motion should be guided by the purpose and objectives of Rule 2253: to simplify and expedite litigation involving multiple parties, without subjecting the original plaintiff to unreasonable delays. Id. at 256, 264 A.2d at 641.

Our Superior Court has further held that the length of the delay is not necessarily determinative, rather it must be viewed in the context of the particular case. Kirsch, 108 Pa. Commw. at 263, 529 A.2d at 607. In the instant case, Durso and David’s motion for leave to join was filed 91 days after the 60-day period allowed for permissive joinder. This court found that Durso and David’s delay in filing their motion for leave to join was justified, due to their averments that it was the discovery process that led to their belief that PennDOT and Blooming Glen Contractors may have been involved in the conduct causing plaintiff’s injuries. Under the discretion allowed to this court through Zakian, Kirsch, and Exton Development, supra, we confirm our finding that Durso and David have shown sufficient cause to satisfy the requirements of Pa.R.C.P. 2253. PennDOT’s first objection is thus dismissed.

PennDOT’s second preliminary objection is in the nature of a demurrer. The standards of review for a demurrer are well established in Pennsylvania law. A demurrer admits every well-pleaded material fact contained in the challenged pleadings, as well as all inferences reasonably deducible therefrom, but does not admit conclusions of law. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Gabel v. Cambruzzi, 532 Pa. 584, 616 A.2d 1364 (1992). For a demurrer to be sustained, it must be clear from the facts averred on the face of the challenged pleading that the plaintiff cannot prevail and that the law will not permit the recovery sought by the plaintiff. Wells v. SEPTA, 105 Pa. Commw. 115, 523 A.2d 424 (1987). If there is any doubt whether a demurrer should be sustained, then the doubt should be resolved in favor of overruling the demurrer. Gekas, 469 Pa. at 6, 364 A.2d at 693; Gabel, 532 Pa. at 588, 616 A.2d at 1367; Wells, 105 Pa. Commw. at 118, 523 A.2d at 426. In the instant case, PennDOT asserts that under the facts pled in Durso and David’s join-der complaint, PennDOT cannot be held liable to either plaintiff or Durso and David for the injuries sustained by plaintiff. We agree, and thus sustain PennDOT’s second preliminary objection.

In order to maintain an action against a Commonwealth party, a plaintiff must establish: (1) that the damages sought would be recoverable against one not having an immunity defense, and; (2) that the injury falls within one of the exceptions to the general grant of immunity enjoyed by the Commonwealth. Miranda v. City of Philadelphia, 166 Pa. Commw. 181, 186, 646 A.2d 71, 74 (1994), citing Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

In the instant case, the pleadings concerning PennDOT in Durso and David’s joinder complaint aver that Penn-DOT “owned, operated, leased, managed, controlled and/ or maintained” the construction site at issue, which was a section of Interstate 80, and that PennDOT contracted with Blooming Glen Contractors to have repair work done at the construction site. Third amended complaint of defendants, ¶¶10, 11. The pleadings further aver that Blooming Glen Contractors contracted with Durso and David to remove milled asphalt from the construction site, and that plaintiff was injured at the construction site when a truck owned by Durso and operated by David struck plaintiff while plaintiff was in the scope of his employment for a subcontractor named Haines and Kibblehouse. Third amended complaint of defendants, ¶¶14, 18. The pleadings also aver that PennDOT “had notice of the risk of unreasonable harm at the construction site” and that PennDOT inspected the construction site during the performance of the contract and on the morning of plaintiff’s injuries. Third amended complaint of defendants, ¶¶13, 19. Durso and David further allege that PennDOT was negligent by:

“Failing to design, construct, and maintain the construction site in a reasonably safe condition; failing to correct a dangerous condition which it knew or should have known to be dangerous; failing to erect any barrier, railing, guard, or other similar devices for the protection of persons from the dangerous condition; failing to post warning signs in the immediate area notifying persons of the dangerous condition; failing to provide adequate lighting on the construction site; failing to maintain proper safety procedures on the construction site; failing to properly train their agents, servants, workmen and/ or employees on the construction site; and failing to remedy a known dangerous and defective condition until after actual and/or constructive notice thereof.” Third amended complaint of defendants, f][33(a-h).

Durso and David assert that PennDOT’s alleged negligence makes PennDOT jointly or severally liable for plaintiff’s injuries. Third amended complaint of defendants, ¶34.

Taking Durso and David’s averments as being true, which we are constrained to do at this preliminary stage, the pleadings are sufficient to satisfy the first element of a suit against the Commonwealth, because they sufficiently allege a cause of action for negligence. Under Pennsylvania law, the elements required for a negligence action are: (1) a duty recognized by law; (2) a failure of the actor to conform to the standard required by such duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damages to another person. Miranda, 166 Pa. Commw. at 187, 646 A.2d at 74. Durso and David have alleged that PennDOT owned and/or managed the relevant property, that as the owner and/or manager of the property, PennDOT had a duty to maintain safe working conditions on the property, that PennDOT breached the duty to maintain safe working conditions, and that the breach caused plaintiff to suffer substantial injuries. Under Miranda, supra, these averments satisfy the pleading requirements for a negligence action.

Nonetheless, we hold that Durso and David have failed to state a valid cause of action against PennDOT, because their pleadings, even taken as being true, do not satisfy the second prong of the Miranda analysis: that the injury falls within one of the exceptions to the general grant of sovereign immunity. The Pennsylvania General Assembly has reaffirmed that: “the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.” 1 Pa.C.S. §2310. As an agency of the Commonwealth of Pennsylvania, PennDOT is defined as a “Commonwealth party” for the purposes of sovereign immunity. 42 Pa.C.S. §8501. Accordingly, PennDOT is immune from suit for any causes of action not specifically listed under the statutory exceptions to sovereign immunity, which are set forth in 42 Pa.C.S. §8522. That statute specifies:

“The General Assembly... does hereby waive, in the instances set forth in subsection (b)... sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law ... if the injury were caused by a person not having available the defense of sovereign immunity.”

The only exception to sovereign immunity applicable from the pleadings in the instant case is 42 Pa.C.S. §8522(b)(4), which waives immunity for injuries caused by:

“Commonwealth real estate, highways and sidewalks — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased to private persons, and highways under the jurisdiction of a Commonwealth agency

Our appellate courts have consistently held that courts must strictly and narrowly interpret the statutory exceptions to sovereign immunity, because the legislative intent underlying the doctrine of sovereign immunity is to insulate the Commonwealth and its subdivisions from liability. Finn v. City of Philadelphia, 541 Pa. 596, 601, 664 A.2d 1342, 1344 (1995) (citations omitted), see also, Thomas v. City of Philadelphia, 668 A.2d 292 (Pa. Commw. 1995). Pursuant to a strict interpretation of 42 Pa.C.S. §8522(b)(4), the Pennsylvania courts have distinguished between injuries caused by conditions “of ” Commonwealth-owned property, from those injuries caused by conditions that are merely “on” property owned by the Commonwealth. See Osborne v. Cambridge Town ship, 736 A.2d 715, 722-23 (Pa. Commw. 1999), re-argument denied; Mason & Dixon Lines Inc. v. Mognet, 166 Pa. Commw. 1, 645 A.2d 1370 (1994), and Finn, supra.

In a recent decision, our Commonwealth court carefully analyzed the case law concerning the distinction of “on” the property versus “of ” the property, and held that an action may only be maintained against a Commonwealth party for injuries caused by conditions “of ” the property. Osborne, 736 A.2d at 722-23. By way of example, the Osborne court explained that conditions such as oil and grease accumulating on a city sidewalk, or a cow wandering onto a highway and causing a motor vehicle accident, are conditions that are merely “on” the Commonwealth-owned property, and thus may not give rise to an exception to sovereign immunity under 42 Pa.C.S. §8522(b)(4). The Osborne court quoted the following from our Supreme Court:

“[I]t is not enough to assert that the [real property] constituted a dangerous condition .... We have consistently maintained our views that the focus of the negligent act involving the use of government owned or controlled land ... must be the actual defect of the land itself and that the rule of immunity can be waived in those cases where it is alleged that the artificial condition or defect of the land itself causes the injury.” Osborne, 736 A.2d at 723, quoting Kiley v. City of Philadelphia, 537 Pa. 502, 508, 645 A.2d 184, 187 (1994).

Put another way, the injury must be directly caused by a condition that was inherent in the government property itself, such that the injury was “deriving, originating from, or having the realty as its source....” Osborne, 136 A.2d at 723, citing Finn, supra. Furthermore, the determination of whether a dangerous condition is “of ” the property versus “on” the property is a matter of law for a court to determine: not a matter of fact that must be decided by a finder of fact. Osborne, 736 A.2d at 722.

In the instant case, Durso and David’s pleadings aver that plaintiff was injured when a truck struck him while he was working to repair a section of Interstate Highway 80. The pleadings further aver that many general acts of negligence were committed by PennDOT during the time period leading up to plaintiff’s injury, including failing to provide adequate lighting, supervision, training, planning, barriers, and warning signs. All of these averments merely describe conditions that are on the property, not conditions that are inherently of the property. Under Osborne; Mason & Dixon Lines Inc.; Finn and Kiley, supra, we hold that plaintiff’s averments do not plead a valid cause of action against PennDOT, because they do not sufficiently establish that the conduct at issue fits under the exception to immunity allowed by 42 Pa.C.S. §8522(b)(4). Accordingly, PennDOT’s second preliminary objection is sustained.

PennDOT also filed a third preliminary objection, which asserts that Durso and David failed to obey the January 7,2000 order. PennDOT asserts that in the third amended complaint, Durso and David have re-averred verbatim sections of the second amended complaint that were stricken by the January 7,2000 order. The result of our sustaining PennDOT’s demurrer is that the joinder complaint against PennDOT is dismissed, so PennDOT’s third preliminary objection is moot. Accordingly, we enter the following order.

ORDER

And now, May 15,2000, additional defendant Commonwealth of Pennsylvania, Department of Transportation’s preliminary objection in the nature of a demurrer is sustained, and it is hereby ordered that the third amended join-der complaint of defendants Michael Durso d/b/a Durso Tracking Company and John David against additional defendant Commonwealth of Pennsylvania, Department of Transportation is dismissed.


author: CARPENTER, J.,

text:
    Musselman v. Diehl

      C.P. of Blair County,
    no. 97 GN 5939.

      Joseph J. Nypaver, for plaintiff.

      Matthew Lent, for defendant.
    April 28, 2000
   CARPENTER, J.,

The matter comes before the court on cross motions for partial summary judgment. Defendant Diehl’s motion for summary judgment asks this court to (1) affirm plaintiff Musselman’s purported limited tort election and (2) determine as a matter of a law she did not suffer a serious bodily injury in the motor vehicle accident underlying this litigation. Plaintiff Musselman’s cross motion asks this court to invalidate any purported election of limited tort coverage on her part and determine as a matter of law she is conclusively presumed to have chosen the full tort alternative pursuant to section 1705(a)(1). Briefs were received and oral argument held on January 6, 2000. A further opportunity was then afforded for counsel to supplement their positions in writing. The record is presently closed on the motions.

The facts are as follows: Dorothy I. Musselman was an insured with Pennsylvania National Insurance Companies prior to July of 1990 when the amendments to the Motor Vehicle Financial Responsibility Law governing her limited tort election became law. Consistent with the enactment of 75 P.S. §1705 her first opportunity to choose a full tort or limited tort option occurred on or about September 27, 1991, when she received the option selection sheet. That sheet is attached to plaintiff’s affidavit in support of partial summary judgment as exhibit D7. She subsequently reviewed and checked a similar form (exhibit D8) on or about April 27, 1992. Exhibits D7 and D8 represent all the documents provided by the insurer relative to the election of limited tort coverage. Reading these documents, it is apparent the insured received no notice which complied in any respect with the notice requirements of section 1705. She received only a selection sheet which required her to check “full tort” or “limited tort” as her tort option.

Defendant argues, notwithstanding the admitted failure to provide any notice whatsoever as required by section 1705, this plaintiff is without a remedy anywhere in the Motor Vehicle Financial Responsibility Law including section 1705. Defendant relies on the case of Donnelly v. Bauer, in support. We strongly disagree.

Donnelly v. Bauer is not even remotely the case before this court. The issue in Donnelly is stated as follows:

“The sole issue in these consolidated appeals is whether the Motor Vehicle Financial Responsibility Law requires that an individual, who applies for an original insurance policy after July 1, 1990, be provided with a specific form which contains premium information for both the full and limited tort options. While we find that the plain language of the MVFRL requires an individual purchasing an original insurance policy after July 1,1990 to receive such premium information, we nevertheless affirm the order of the Superior Court because the MVFRL fails to provide a remedy to an individual who does not receive this information.” Donnelly v. Bauer, 553 Pa. 596, 600, 720 A.2d 447, 448 (1998). (emphasis added) (footnote omitted)

The Supreme Court’s unwillingness to invalidate an election for the failure to provide premium information in Donnelly is completely unlike the situation before this court. As the cited portion demonstrates, Donnelly involved a failure by the insurance carrier to provide premium information. Our case involves the failure to provide any information whatsoever as a review of exhibits D7 and D8 graphically demonstrates. Further, Donnelly involved insurers who were purchasing their first coverage after the date of the amendments. Our case involves an insured who specifically falls within section 1705 due to the renewal nature of her policy. As such, our case does not involve the differentiation between sections 1791 and 1705 of the MVFRL required in Donnelly.

The defense invites us to review Donnelly through a magnifying glass. We prefer the same 20/20 vision exercised by the Supreme Court. Donnelly was clearly decided specific to its facts as represented by the following: “the situation faced by appellants is markedly different. Here, appellants were purchasing original coverage, not renewing existent policies. Also, appellants, based on a notice which accurately described the tort alternatives available in all regards except for the absence of a cost comparison, freely chose limited tort option and paid premiums in accordance with that choice, i.e., a premium lower than if they had chosen the full tort option. Based on these clear differences between appellants’ situations and that contemplated by section 1705(a)(3) this court finds that section 1705(a)(3) of the MVFRL does not provide a remedy to appellants. ” Donnelly, 553 Pa. at 610, 720 A.2d at 453-54. (emphasis added)

The court went on to opine shortly thereafter:

“Here, appellants, based on a notice form which provided accurate information on the difference between the tort alternatives, freely chose the limited tort option.” Id. at 610, 720 A.2d at 454.

Donnelly dealt with a factual situation where the insurer had substantially complied with section 1705. It was also decided in part by a necessary interpretation of which provision of the MVFRL was applicable specifically, sections 1705 or 1791.

In our case, section 1705 clearly applies. The clear legislative purpose of section 1705 is to provide insureds notice of the reduction in rights which they will experience if they elect limited tort. The statute achieves this by requiring an explanation of both the full tort option and the limited tort option for their consideration. In the case before this court, none of that occurred. This insured received only two blocks to check. It is hard to imagine anything more in derogation/violation of both the letter and spirit of section 1705. As such, we believe no valid election occurred. Where that is the case, section 1705 provides the insured is conclusively presumed to have full tort coverage. This seems to us the logical result.

In so holding, we emphasize our belief this case is actually the opposite of what occurred in Donnelly as opposed to being distinguishable. In Donnelly, the Supreme Court was confronted with what they concluded was an election supported by adequate (albeit imperfect) notice. Our question goes to whether or not there can be an election absent any notice whatsoever. We have decided that issue in the negative concluding this insured should be treated as if she had failed to return the mandated notice required by section 1705 consistent with section 1705(e). Under the statute, such an insured (who does not sign and return the notice) is deemed to have chosen the full tort coverage. Our present insured made her purported “election” without any information whatsoever to guide her, completely contrary to section 1705. As such, we properly vitiate her purported consent and afford her the protection of section 1705.

Accordingly, and consistent with the above, it is ordered, directed and decreed that plaintiff’s motion for partial summary judgment on the coverage issue is granted and the plaintiff is conclusively presumed to have elected full tort coverage. As such, the defendant’s motion for summary judgment on the coverage question is necessarily denied and defendant’s additional motion asking this court to conclude the plaintiff did not suffer serious bodily injury is moot.


author: CARPENTER III, J.,

text:
    Hoover v. McCloskey Builders

      C.P. of Blair County,
    no. 98 GN 4365.

      Peter J. Mansmann, for plaintiffs.

      Marc T. Levin, for defendant.

      J. Michael Dorezas, for additional defendant.
    April 6, 2000
   CARPENTER III, J.,

This motion comes before the court on defendant McCloskey’s motion for partial summary judgment (joined in by defendant Fleming Foods t/d/b/a Jubilee Foods). Briefs have been filed and reviewed by this court together with the relevant case law. Oral argument was held to a conclusion on February 11, 2000. We have reviewed the existing record and submissions. This matter is now ripe for disposition.

On December 31, 1997, plaintiff Sondra Hoover, slipped and fell on what she contends was an icy spot covered by snow in the parking lot of the original defendant Fleming Companies Inc. This fall occurred while she was in the process of exiting her vehicle. Sondra Hoover is unable to testify with certainty whether or not she was in the process of alighting from her vehicle or had actually completed that process in the sense of having both feet on the ground at the time she fell. It is agreed she fell in the immediate proximity of her car with the vehicle door open so she was “generally” exiting her vehicle.

On these facts, defendants contend any injury sustained by plaintiff, Sondra Hoover, arose out of the “maintenance and use” of a motor vehicle. Therefore, her claims are controlled by the limitations and defenses available under the Pennsylvania Motor Vehicle Financial Responsibility Law, including section 75 Pa.C.S. §1722. This finding would have the effect of denying plaintiff Hoover recovery for her medical bills in this slip and fall case against Fleming Foods pursuant to section 1722. Defendant argues injuries arising from the process of exiting from a motor vehicle are properly included in maintenance and use of that vehicle. The present section 1722 clearly fails to address this issue. Recognizing this, defendant contends we should apply a predecessor statute (40 P.S. 1009.101) which included exiting from the vehicle as part of the definition of maintenance and use in the old no fault law. We reject this argument as a dis-positive basis for partial summary judgment.

Indeed, we believe whether we apply the definition of maintenance and use contained in the old no fault law or abandon that definition under present Pennsylvania law the result is exactly the same — namely, Sondra Hoover was not in the maintenance and use of her vehicle at the time of this accident. In so holding, we note that Pennsylvania cases under both the no fault law and the MVFRL have consistently required two findings to establish maintenance and use:

(1) that the person is engaged in the lawful use of an insured vehicle. That criteria be deemed to include (but not be limited to) occupants.

(2) That there be a causal relation or connection between the injury and the vehicle.

In this case, we conclude the second factor above is totally dispositive. We cite with approval to U.S. Underwriters Insurance Company v. Liberty Mutual Insurance Company, 80 F.3d 90 (1996) where the court interpreted Pennsylvania law as follows:

“If nothing else, Lucas-Raso [v. American Mfrs. Ins. Co., 441 Pa. Super. 161,] 657 A.2d 1 (1995), and the cases it surveys make clear that the crucial point for triggering 1720’s maintenance and use prohibition is a causal connection between vehicle and injury. We, therefore, turn to that element.
“In assessing whether the necessary causal nexus exists we could — as the parties wish — struggle with the legal equivalent of angels and pinheads. For example, the vehicle was obviously in a sense a cause of the accident; Hilpl was alighting from the car when he fell; the car was a part of the stream of events that led to his injury. Viewing causation in these terms, however, makes it essentially all-encompassing; If not for the unfortunate coincidence of a multitude of causes, Hilpl, his car, and a layer of grease might not have combined so painfully on that late November day. This approach to causation would bring section 1720 into play whenever an automobile was even tangentially related to an accident, since absent the car, the accident arguably might not have occurred. This in turn would contravene the Pennsylvania Superior Court’s repeated cautions that the Financial Responsibility Law was not intended to be a general liability statute, but rather a system of compensation for ‘losses directly resulting from motoring accidents.’ [441 Pa. Super, at 167,] 657 A.2d at 3. Nevertheless, so the counterargument goes, here the car was involved.
“Fortunately, we can avoid this debate. It is a matter of hornbook tort law that every incidental factor that arguably contributes to an accident is not a ‘but for’ cause in the legal sense. See Berry v. Borough of Sugar Notch, 191 Pa. 345, 43 A. 240 (1899). Our survey of Pennsylvania cases demonstrates that the Commonwealth’s understanding of ‘use of a motor vehicle’ simply will not encompass the causal nexus at issue here. See Smith v. United States Auto Ass’n, 392 Pa. Super. 248, 572 A.2d 785, 787 (1990) (rejecting claim that injury from hayride arose from maintenance or use of a motor vehicle), appeal dismissed, 529 Pa. 24, 601 A.2d 276 (1992); Roach v. Port Autho. of Allegheny County, 380 Pa. Super. 28, 550 A.2d 1346 (1988) (rejecting claim that bus passenger injured in fight between two other passengers arose from maintenance or use of a motor vehicle); Alvarino v. Allstate Ins. Co., 370 Pa. Super. 563, 537 A.2d 18 (1988) (holding that injury to the child bitten by dog while passenger in car did not arise from use of motor vehicle); Camacho v. Nationwide Ins. Co., 314 Pa. Super. 21, 460 A.2d 353 (1983) (holding that injury to driver from explosive thrown into his car by passenger in passing automobile did not arise out of maintenance of use of vehicle), aff’d, 504 Pa. 351, 473 A.2d 1017 (1984); Schweitzer v. Aetna Life & Cas. Co., 306 Pa. Super. 300, 452 A.2d 735 (1982) (holding that injuries to woman, who was pushed into her automobile and beaten inside automobile by operator of motorcycle, did not arise out of maintenance or use of a motor vehicle); Erie Ins. Exchange v. Eisenhuth, 305 Pa. Super. 571, 451 A.2d 1024 (1982) (rejecting claim that injuries to automobile passenger shot by police officer in pursuing vehicle arose out of maintenance or use of a an automobile); see also, Pecorara v. Erie Ins. Exchange, 408 Pa. Super. 153, 596 A.2d 237 (1991); (rejecting as absurd a literal interpretation of ‘used by any person... employed . . . in the automobile business’); Ferry v. Protective Indem. Co., 135 Pa. Super. 266, 38 A.2d 493 (1944) (refusing coverage for injury caused to pedestrian while truck driver was loading truck); cf. Walters v. Kamppi, 188 Pa. Commw. 487, 545 A.2d 975 (1988) (finding requirements of section 1720 met where truck driver was injured in automobile accident caused by slippery substance on highway from allegedly negligent road maintenance), appeal denied, 520 Pa. 622, 554 A.2d 513 (1989). We also note that the words ‘occupying, entering into, or alighting from a motor vehicle,’ which appeared in the definition of ‘use or maintenance’ under the old Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. §1009.106 (repealed), were not included when the legislature replaced the No-Fault Act with the Financial Responsibility Law. We believe that this action shows a legislative intent consistent with the Pennsylvania Superior Court’s understanding. Hilpl’s activity does not fall within the meaning of section 1720, as intended by the legislature and interpreted by the courts.
“In concluding that there was no causal connection between Hilpl’s alighting and his subsequent accident, we place particular reliance on the Superior Court of Pennsylvania’s discussion in Ohio Casualty Group of Ins. Cos. v. Bakaric, 355 Pa. Super. 345, 513 A.2d 462 (1986), appeal denied, 513 Pa. 633, 520 A.2d 1384 (1987). In Bakaric, a husband injured his wife by shooting her in the face with a handgun. There was evidence that the discharge occurred as the husband forced his wife into the driver’s seat of their automobile and then pushed her across the seat to the passenger’s side. Id., 513 A.2d at 463 n. 1. The court refused to interpret the incident as resulting from the use of a motor vehicle ‘since it is not clear in this instance that entering or loading the vehicle caused the injuries.’ Id. at 465. The court then explained that: A layperson’s consideration of this factual situation . . . would probably produce a conclusion that any damages awarded [the couple] would not result from the use of an automobile by them, but from the wanton use of a gun. We believe that the proper legal conclusion should be the same. Id. at 466 (quoting slip op. of trial court).
“The sentiments expressed in Bakaric convey our view of the present case. Pennsylvania law makes clear that maintenance or use of a motor vehicle requires causation. The court must determine the ‘instrumentality used to cause the injury.’ Spisal v. Nationwide Mut. Ins. Co., 329 Pa. Super. 483, 478 A.2d 891, 893 (1984). A layman would understand that the instrumentality used to cause the injury in the case at bar was the substance on the surface of the parking lot. The cause of Hilpl’s injury was the fact that he slipped on grease, and all the clever arguments of skilled legal advocates cannot alter this central event. It was ‘mere fortuity’ that Hilpl was still partially in his car when he slipped. Pecorara, 596 A.2d at 240. Causation, however, requires more than ‘mere happenstance.’ Roach, 550 A.2d at 1349.”

As the federal court determined in Underwriters v. Liberty we believe causation can be shown only where the vehicle is directly involved in causing the injury. In the case sub judice, as in Underwriters, it bore no such connection. As surely as the slip and fall in Underwriters was caused by the grease, this accident was caused by the snow. The presence of a vehicle contributed to the accident not at all.

We should add this result is totally consistent with a long line of Pennsylvania cases under both the MVFRL and the old No Fault Act which preceded it. In addition to the cited cases, particularly Roach and Alvarino (cited by the Third Circuit Court of Appeals in the discussion above), we would direct the reader to Spisak v. Nationwide Mutual Insurance Co., 329 Pa. Super. 483, 478 A.2d 891 (1984) and Crawford v. Allstate Insurance Co., 305 Pa. Super. 167, 451 A.2d 474 (1982) as demonstrating the long held position of Pennsylvania courts that in order for maintenance and use to be established, the injury or death must be causally related to the use of a motor vehicle. (See also, Day v. State Farm Mutual Insurance Co., 261 Pa. Super. 216, 396 A.2d 3 (1978) where it was again determined the injury should arise at a time when the parties were using their car “as a vehicle” as a basis for a compensable injury.) Finally, we invite review of Manufacturer’s Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961) (decided even before the enactment of the No Fault Act) construing the phrase arising out of the ownership, maintenance, or use of a motor vehicle in an automobile insurance policy to include a causation requirement.

The defense presents us with no credible argument the legislature intended to encompass all injuries, no matter how tenuous, as compensable under the Financial Responsibility Law. As the Superior Court opined in Roach, we have consistently distinguished between those injuries the legislature intended to be compensated exclusively by no fault and those to be left to other remedies by requiring a causal connection between the injury and the maintenance and use of a motor vehicle, Roach, 380 Pa. Super, at 34,601 A.2d at 1349. We agree with Judge Olszewski when he opined in Lucas-Raso as follows:

“We would hold that section 1720 does not apply because the ‘action’ at issue, the one in which appellee insurer has asserted its subrogation rights, is appellant’s slip-and-fall case against the parking lot owner and its maintenance contractor. This tort suit is not an ‘action arising out of the maintenance or use of a motor vehicle’; rather, it is an action arising out of the tort-feasors’ alleged negligence in maintaining a parking lot. For this reason, we would find that we need not address the question of whether appellant was ‘occupying’ her vehicle when she fell.” Id. at 170, 657 A.2d at 5. (emphasis added)

What is true in Lucas-Raso and in Underwriters is true here. Accordingly, and consistent with the above we enter the following order.

ORDER

And now, April 6, 2000, defendant’s motion for partial summary judgment is denied.