author: D’ALESSANDRO, J.,

text:
    Philadelphia Housing Authority v. Barbour

      Denise Baker, for plaintiff.

      Michael Donahue, for defendant.
    May 17, 1990
   D’ALESSANDRO, J.,

This is an opinion in support of this court’s order of March 15, 1990. For the reasons stated herein, we sustained the preliminary objections of defendant Pearline Barbour and dismissed plaintiff Philadelphia Housing Authority’s complaint.

The facts are not in dispute. In December 1989, Barbour appealed from the landlord-tenant judgment. of the Municipal Court of Philadelphia rendered on November 9, 1989. On said date, the Municipal Court entered judgment in favor of PHA and against Barbour for rental in the amount of $5,000 plus costs of $22, plus possession, which was granted on the basis of non-payment of rent only.

By filing the complaint, PHA sought to recover possession of rental property located at 708 North 20th Street, and arrearages, pursuant to the Home-buyers Ownership Opportunity Agreement between the parties (See 42 Pa.C.S. §1123(a)(3)). Barbour argued, however, that HOOA is characterized as a land-sale contract and not an agreement that gives rise to a leasehold arrangement. As such, Barbour contends that PHA’s proper recourse is an action in ejectment, which requires PHA giving to Barbour Act 6 and Act 91 notices. Both Act 6 and Act 91 are consumer-protection statutes which Require that notices be sent to the homeowner prior to the institution of foreclosure proceedings. See 41 P.S. §403(a) and 35 P.S. §1680.403c. Specifically, Act 91 provides, inter alia, that prior to instituting any legal proceedings, the home buyer must receive a notice of the home buyer’s rights to apply for financial assistance from the Pennsylvania Homeowners Emergency Assistance Fund to assist in helping the homeowner over a temporary financial difficulty. Accordingly, no actions can proceed until the notice has been given. (34 P.S. §1680.401(c)(a)). Likewise, Act 6 provides special advance notice and the right to cure and reinstate at any time up to one hour of the foreclosure sale (41 Pa.C.S. §101-605). Pennsylvania Act 6 was enacted to provide modest home buyers with a measure of protection from over-enthusiastic mortgagees. Continental Bank v. Rapp, 336 Pa. Super. 160, 485 A.2d 480 (1984). Pennsylvania Act 91 was enacted to “. . .prevent widespread mortgage foreclosures and distress sales of homes which result from default caused by circumstances beyond a homeowner’s control.” Preamble to Act 1983, December 23, P.L. 385, no. 91. Thus, the issue before this court is whether the HOOA is characterized as a land-sale agreement, or simply a leasehold arrangement.

An HOOA agreement arises under the Turnkey III program, which is designed to provide home ownership possibilities for low-income families. See 24 CFR §904.101. The program is funded by the U.S. Department of Housing and Urban Development wherein HUD provides funding for low-income housing home ownership opportunities to the local housing authority, PHA in this case. The payments are in amounts sufficient to retire and amortize the purchase price obligation of a program home over a 30-year period. See 24 CFR §904.1001(b)(2).

In order to be eligible for the program, low-income families must meet certain income guidelines. These guidelines contain both maximum and minimum amounts. See 24 CFR §904.104(b). Once found to be eligible, the low-income family home buyer must execute a home ownership opportunity agreement. See 24 CFR §904.103(c).

The home buyer is required to make monthly payments to PHA based upon a percentage of the family’s income. See 24 CFR §904.107(j). These payments are first credited to the earned home payments account. If the payment is sufficient to cover the required EHPA amount, the balance is credited to the non-routine maintenance reserve. If a balance still remains from the payment, it is credited to the operating expenses of the local housing authority. See 24 CFR §904.107(j).

The EHPA is a fund, generated from the home buyer’s monthly payments, for the purpose of purchasing the home. See 24 CFR §904.110. The NRMR is an account also generated from the home buyer’s monthly payments to be used for non-routine maintenance to the home, if necessary. The NRMR can also be used, in whole or in part, to meet the purchase price or to make a down-payment for the home. This decision is left exclusively to the discretion of the home buyer. See 24 CFR §904.111.

As the program proceeds, the payments from the annual contributions contract (from HUD) automatically reduce the purchase price for the home. These payments amortize the purchase price as if it were a normal mortgage. See 24 CFR §904.113. If a home buyer were to do nothing more than stay in his or her home for 30 years and make the monthly payments, the purchase price would be completely liquidated through the HUD annual contributions contract and the family would then automatically acquire title to the home.

The home buyer family, however, may acquire title prior to the complete payment of the debt by HUD. In order to do this, the home buyer must first be issued a certificate of home buyer status (after accumulating approximately 20 months of payments in the EHPA). Once the home buyer has the certificate, the home buyer may acquire title at any time by either using the funds in the EHPA to pay off the declining purchase price or by using the funds in the EHPA, as a down payment, to obtain financing to pay off the declining purchase price. The home buyer may use some or all of the funds in the NRMR towards the purchase price or down payment. See 24 CFR §904.113(c).

During the course of the agreement, the home buyer is responsible for all maintenance. See 24 CFR §904.107. The home buyer is also vested with certain rights to pass along HOOA rights to certain heirs. See 24 CFR §904.107(1)(2).

In the instant case, Barbour executed a HOOA on April 13, 1981, payments to be made in the amount of $243 per month to the PHA. Ms. Barbour encountered financial difficulties in mid-1987, and as a result, she was unable to make payments. As of July 1989, Barbour was in arrears of $5500. PHA therefore sought to regain possession of Barbour’s home through the instant landlord-tenant action. Barbour contends that this court has no jurisdiction to hear the PHA claim and has so stated in the instant preliminary objections. She argues that as the HOOA between the parties is a land sale agreement and not an agreement that gives rise to a leasehold arrangement, the failure to provide Act 6 and Act 91 notice deprives this court of subject-matter jurisdiction. We agree.

As defendant Barbour correctly states, Act 6 and Act 91 notices are jurisdictional requirements to sustaining an ejectment action, and failure to give such notice will result in the dismissal of the suit. General Electric Credit Corp. v. Slawek, 269 Pa. Super. 171, 176, 409 A.2d 420, 422 (1979); In re Smith, 866 F.2d 576 (3d Cir. 1989); Main Line Federal Saving and Loan Association v. Joyce, 632 F.Supp. 9 (E.D. Pa. 1986).

PHA does not refute the necessity of proper notice attendant to ejection actions. PHA instead contends that the HOOA represents a leasehold agreement and accordingly argues that Act 6 and Act 91 notice is not a prerequisite to sustaining a landlord-tenant action. We find that the HOOA represents a land sale contract, and therefore PHA’s failure to give proper notice defeats jurisdictional requirements.

A review of the subject HOOA reveals that it was created in order to facilitate home ownership among low-income families. See 24 CFR §904.101. Furthermore, the agreement itself contains the elements of a land sale contract, as it clearly describes the property, defines price, time and manner of the sale, and reflects a clear intent of the parties to buy and sell. Dillenger v. Ogden, 244 Pa. 20, 90 Atl. 466 (1914). In addition, the provisions of the HOOA place the responsibility of repairs in the home buyer. See paragraphs 11(d) and 6(a) of Part II in HOOA. Finally, two courts which have considered the nature of the HOOA have concluded that it does, in fact, embody a land sale agreement. In Cuyahoga Metropolitan Housing Authority v. Watkins, 23 Ohio App. 3d 20, 491 N.E. 2d 701 (Ohio App. 1984), the Ohio Court of Appeals affirmed the findings of the Cleveland Municipal Court and specifically characterized the HOOA as a land sale agreement. Consequently, the court concluded that the procedure for detainer and entry was not available to the Cuyahoga Metropolitan Housing Authority for disputes concerning Turnkey III agreements. The housing authority instead was required to pursue an action in ejectment, to which the sending of Act 6 and Act 91 notices is mandatory. See also, Cook Inlet Housing Authority v. Viers, case no. 3AN-82-8734 (Alaska Superior Court, 3d Judicial Circuit). Upon consideration of the instant case, this court, too, found that the HOOA is a land-sale agreement. Thus, the failure of PHA to provide the requisite notices deprives this court of subject-matter jurisdiction.

For the foregoing reasons, we sustained the preliminary objections of Pearline Barbour and dismissed PHA’s complaint for lack of subject-matter jurisdiction.


source: Caselaw Access Project

author: . KELLER, P.J.,

license: Public Domain

text:
    Commonwealth v. Smiley

      James M. Schall, 'district attorney, for the commonwealth.

      Dwight C. Harvey, for defendant.
    May 24, 1990
   . KELLER, P.J.,

Andrew David Smiley was charged with one count of driving under the influence of alcohol.

On March 16, 1990, the defendant appeared for mandatory arraignment and pleaded guilty to driving under the influence. He conceded it was his second offense.

On April 10, 1990, defendant was sentenced to pay a fine of $450 and undergo imprisonment in the Bedford County Prison for a period of not less than 30 days nor more than 23 months. Defendant was also ordered to pay a CAT fund fine of $100. Upon motion of defendant, the court ordered the execution of the sentence imposed to be deferred until April 25, 1990. Defendant’s motion for modification of sentence was filed April 10, 1990, and denied the same date. On April 19, 1990, we ordered a rule to issue upon the district attorney to show cause why nominal bail pending appeal should not be granted with the rule returnable May 8, 1990. It was further ordered that execution of the sentence imposed on April 10, 1990 be stayed pending the court’s disposition of the within motion for bail pending appeal.

On April 27, 1990, defendant filed his notice of appeal and pursuant to Pa.R'.A.P. 1925(b) was ordered on April 30,1990 to file a statement of matters complained of on appeal. The statement of matters complained of on appeal was filed May 3, 1990. On May 8, 1990, we entered an order directing defendant be released and continued on bail on his own recognizance pending a final determination of his appeal. The transcript of the sentencing hearing was completed and lodged May 8, 1990. This supplemental opinion is filed in support of the sentence imposed on defendant by this court.

Defendant contends this court erred in refusing to consider defendant for sentencing to an inpatient alcohol rehabilitation program, and also erred in imposing a $100 CAT fine.

We will first address defendant’s contention that we erred in not sentencing him to an inpatient alcohol rehabilitation instead of the county prison.

Title 75 Pa.C.S. §3731(e) provides in pertinent part:

“(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
“(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.”

The statute refers to a mandatory minimum term of imprisonment. We must construe the language of the statute according to common and ordinary usage. The ordinary meaning of “imprisonment” is the lawful confinement of an individual to a correctional or similar institution. Commonwealth v. Kriston, 390 Pa. Super. 543, 568 A.2d 1306 (1990). Commonwealth v. Kriston, supra, held that an electronic home monitoring program does not constitute “imprisonment” in an institution. See Com monwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986), (mandatory minimum sentence for driving under the influence meant that some term of incarceration is to be imposed); and Commonwealth v. Kearns, 365 Pa. Super. 13, 528 A.2d 992 (1987), (defendant should be sentenced to a mandatory minimum sentence of 30 days in prison.)

A second-time offender, as in the case at bar, must necessarily serve the minimum sentence in prison. A review of the legislative history of the drunk driving sentencing provisions compels the conclusion that in enacting the mandatory sentencing provisions the legislature intended to impose severe penalties for repeat offenders. This was done to send a clear and urgent message to those who continue to drive while under the influence of alcohol. Therefore, the statute provides that second-time offenders must serve a minimum of 30 days’ imprisonment. Both the plain meaning of the statute and the legislative debate and reports accompanying the enactment make very clear that what was contemplated was a period of confinement in a prison or similar institution. The primary purpose of the mandatory minimum sentence in section 3731(e) was to punish, not to rehabilitate. See Commonwealth v. Kriston, supra, (Beck,/., dissenting), and Commonwealth v. Conahan, 388 Pa. Super. 369, 565 A.2d 798 (1989).

Defendant relies on four cases as authority for his position. The first case being Commonwealth v. Conahan, supra, which we not only find distinguishable but also not authority for defendant’s position. Commonwealth v. Conahan is distinguishable in that the court was dealing with a voluntary participation in inpatient alcohol treatment programs, and not an involuntary participation. We also do not find it supports defendant’s position since the court held the time served in an inpatient program cannot be credited against the mandatory sentence imposed by the court. The majority in Commonwealth v. Kriston, supra, (footnote 2) noted that in its recent decision in Commonwealth v. Conahan, it held that time served in an inpatient alcohol treatment program did not constitute service of a statutorily mandated minimum sentence of imprisonment. In Commonwealth v. Kriston, supra (Beck, dissenting) she observed the court left open the question of whether court-ordered confinement to an inpatient alcohol treatment would constitute imprisonment under the terms of the statute. The second case defendant relies on is Commonwealth v. Williamson, 384 Pa. Super. 646, 551 A.2d 598 (1988), and we find this reliance misplaced because this case is a memoranda and does not constitute precedent. Therefore, that case has no precedential authority. The last two cases defendant relies on are Commonwealth v. Jones, 211 Pa. Super. 366, 236 A.2d 834 (1967); and Commonwealth v. Usher, 264 Pa. Super. 435, 319 A.2d 1129 (1979). We find these cases to be distinguishable in that they do not deal with 75 Pa.C.S. §3731(e); the statutes the courts were interpreting do not use the word imprisonment but instead use the word custody. We do not find the two words to be synonymous. Therefore, we find defendant’s reliance on those two cases misplaced.

In our judgment Commonwealth v. Kriston, and Commonwealth v. Conahan required us to sentence defendant to 30 days in prison and not to an inpatient alcohol program.

Defendant next contends we erred in imposing a $100 CAT fund fine because such statute is unconstitutional, and if not unconstitutional by its terms, it does not apply to offenses occurring prior to its effective date.

A review of defendant’s challenge must commence with the premise that a presumption of constitutionality attaches to any lawfully enacted legislation and will not be declared unconstitutional unless the party challenging the statute meets the burden of rebutting the presumption by a clear, palpable, and plain demonstration that the legislation is violative of a constitutional provision. James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 477 A.2d 1302 (1984). See also, Commonwealth v. Gamber, 352 Pa. Super. 36, 506 A.2d 1324 (1986). The burden rests upon the party seeking to upset legislative acts on constitutional grounds. One who challenges the constitutionality of a statute bears a heavy burden. Commonwealth v. Jones, 374 Pa. Super. 431, 543 A.2d 548 (1988).

Defendant has produced no authority on whether the imposition of a $100 CAT fund fine on defendant is unconstitutional, and our independent research on the subject has been equally unproductive. It appears no Pennsylvania court has dealt with the constitutionality of the CAT fund, thus making this case one of first impression.

The courts have long held that it is within the province of the legislature to define criminal punishment. We submit there is an analogy to mandatory sentences in driving under the influence cases. The argument that mandatory sentences deprive a defendant of his due process rights has been rejected by the courts. Given the legitimate concerns of the legislature in preventing and punishing drunk driving, the mandatory sentencing provisions of 75 Pa.C.S. §3731 are in no way arbitrary. Commonwealth v. Gamber, supra.

We respectfully submit that no error was committed in sentencing defendant to 30 days in Bedford and a $100 CAT fund fine; all as mandated by the applicable laws of this commonwealth.


author: DOWLING, J.,

text:
    Mescall v. Mescall

      William A. Nast, for plaintiff.

      Timothy J. O’Connell, for defendant.
    May 23, 1990
   DOWLING, J.,

“I’ll see their trial first, bring in their evidence.
“Thou robed man of justice, take thy place,
“And thou, his yoke-fellow of equity,
“Bench by his side.” King Lear, Act 3, Scene 5.

Even in the depths of his madness, Shakespeare’s deposed potentate Lear was able to bear witness to one of the central precepts of the Anglo-Saxon system of jurisprudence; the perpetual, and unbreakable, relationship between the law side of the court, represented by. a “robed man of justice,” who upholds the heritage of statute and common law bequeathed to the present by the past, and the “yoke-fellow” of equity, which, as every first-year law student is taught, exists so that the court “can do that which is right.” Needless to say, these two are intertwined in a manner that is as intricate, and yet as unitary, as the lacings of the strands of a DNA molecule; they are less Siamese twins than they are right and left hemispheres of the same brain. It falls to us in the instant case to decide which of these spheres of action should control the disposition of a division of property between a husband and wife — if one can use that term with reference to two partners who married two weeks after Independence Day and separated during Thanksgiving week that same year.

Plaintiff and defendant were married on July 17, 1989, and separated on November 25, 1989. The instant action followed on January 23, 1990, when plaintiff filed a petition for special relief under section 403(a) of the Divorce Code to enjoin defendant from removing or destroying her premarital personal property, which she had left at the marital home when the parties separated.

This request for an injunction was granted on January 24, 1990, and a hearing on the need for a continuation of the injunction was scheduled and then rescheduled at counsels’ request for March 30, 1990. At that time it was determined that defendant no longer had possession of many of the missing items, although he claimed not to know what, specifically, had become of them.

Plaintiff has asked this court to enter a monetary award in her favor for the value of the missing items, to which defendant replies that it is an improper exercise of the court’s equitable powers for it to assign a sanction based upon an alleged misappropriation of non-marital property. Defendant’s reasoning is that, since non-marital property is not subject to equitable distribution, it is also not subject to the court’s remedial or punitive equitable authority.

Title 23 P.S. §401(c) of the Divorce Code states:

“(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.”

With this language, as our standard, we can see no tenable basis for defendant’s notion that the court’s equitable jurisdiction ends, as if at the border of Dante’s Inferno, at a sign marked: “Non-Marital Property: Abandon Equity, All Ye Who Enter Here.” There is no dispute that the missing and/or destroyed property was plaintiffs premarital personalty. There is likewise no doubt that the court’s equitable powers are to be viewed as sweeping rather than as constricted, as the court in Lehmicke v. Lehmicke, 339 Pa. Super. 559, 489 A.2d 782 (1985) said:

“While section 401(c) clearly does provide in part for protection during the pendency of an action, we find no indication that it is limited solely to such a purpose. Instead, the section provides in pertinent part that ‘the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to . . . effectuate the purposes of this act.. . .’ Among the stated purposes of the act is'to ‘effectuate economic justice between the parties who are divorced or separated. . . .’ 20 P.S. §102(a)(6). Moreover, the statute expressly states that the objectives of which the above is one shall be considered in construing its provisions. 23 P.S. § 102(b).
“See also Rounick, Pennsylvania Matrimonial Practice, §18:6 in which the authors note; ‘Section 401(c) is, perhaps, the most far-reaching power heretofore given to a court in a matrimonial cause in order to protect the interests of the parties and to effectuate the purposes of the New Divorce Code. This provision should be applied liberally.’
“Section 401(c) is the same as section 601(2) of the code proposed by the Joint State Government Commission and the comment to that section states in part that it is ‘. . .intended to give emphasis to the equity power and jurisdiction of the court and to make sure that it has effective power to deal with any problem which arises during the course of litigation. . . .’ ” Lehmicke at 565-6, 489 A.2d at 785.

Since the instant matter is cleariy one relating to the “protection during the pendency of an action” of one of the parties, and since it qualifies with equal accuracy as “[a] problem which arises during the course of litigation,” we regard the issue of our equitable authority in this area as settled.

There is similarly no legitimacy to Mr. Mescall’s contention that “absolutely no evidence was presented that the defendant had disposed of the property after the entry of the January 24, 1990 preliminary injunction. As the plaintiff is unable to meet her burden of proof in this regard a finding of contempt cannot properly be made against the defendant.” If defendant continued in physical possession of plaintiffs property after January 24,1990, then he was indeed in explicit contempt of the order; if he in fact sold the property prior to January 24, and then retained the proceeds of the sale after that date, he was in the position of holding those monies in a constructive trust for the plaintiffs benefit, and was obligated to turn the money for these items over to her as of January 24; and if he gave the items away to someone else, he was equally obligated to compel their return to plaintiff after the injunction took effect. In any event, we have no alternative, absent a clear demonstration of what became of these items, to hold defendant, as the last person who is known to have been in control of this property, accountable for its disposition and ultimate fate.

Finally, defendant’s argument that plaintiffs valuation of the property at the March 30, 1990 hearing was insufficient to allow for the entry of a judgment for herself finds no favor with us. As we stated at the time, we found defendant’s overall testimony to be unbelievable, and plaintiffs to be credible. We see nothing in the component parts of plaintiffs total evaluation of the missing property at $5,260 to be unworthy of belief; and, especially when weighed against the various elements of defendant’s conduct in this matter, we accept her evaluation as it now stands.

Accordingly, we enter the following

ORDER

And now, May 23, 1990, after a review of the transcript and briefs in the above-named case, we order that defendant, Daniel P. Mescall, within 10 days of the date of this order, shall return to plaintiff, Arlene Mescall, all items of property enumerated as plaintiffs exhibit 1 at the hearing of March 30, 1990; or, alternatively, to pay to plaintiff, Arlene A. Mescall, by that date the sum of $5,260 for all of said property, or a sum equal to the total amounts listed on the said exhibit 1 for all items not so returned, as appropriate.


author: SOKOLOVE, J.,

text:
    Watson v. Granturk Sanitation Equipment Co.

      Laurence D. Finney, for estate.

      Arthur Rabelow, for parents.

      Marilyn Monaco, for son.
    January 18, 1990
   SOKOLOVE, J.,

We are faced with a question of first impression regarding the distribution of proceeds of a settlement under the Wrongful Death Act, Act of July 9, 1976, P.L. 586, §2, 42 Pa.C.S. §8301. We believe that we are bound by the clear mandate of the legislature as expressed unambiguously in the Wrongful Death Act and will rule accordingly.

The pertinent facts are few and undisputed. Samuel Watson III was killed at the age of 20 on November 5, 1979. He was not married at the time. An action was brought in this court under the Wrongful Death Act and the Survival Act, 42 Pa.C.S. §8302, by the decedent’s mother, Edith Watson, as administratrix of his estate, by Edith Watson as guardian of Michael Pickering, the decedent’s minor son, and by Edith Watson and Samuel Watson, the decedent’s father, in their own right. The action went to trial, and a jury verdict was rendered on March 17, 1987. Both the decedent’s parents and minor son suffered pecuniary loss as the result of the decedent’s death. Evidence of the parties’ pecuniary losses was presented at trial, and the trial judge discussed the possibility of recovery by the parents in his charge to the jury. After the verdict, all parties to the action entered into a settlement providing for a total recovery of $300,000 in the wrongful death action and $350,000 in the survival action, which amounts netted to $197,907 and $230,670 respectively after payment of attorney’s fees and costs. This settlement was approved by the Honorable William Hart Rufe III. The parties agree that the survival action proceeds pass to the decedent’s estate, to which the minor child, Michael Pickering, is the sole heir under the intestacy law. The dispute is over the’ wrongful death action proceeds.

The minor child contends that the disputed proceeds should pass exclusively to him according to the statutory scheme. The parents argue that they should share in the distribution because they also suffered pecuniary loss. We held a conference with the attorneys for the claimants and the estate on October 4, 1989, at Which time we allowed 30 days for the submission of memoranda law. We have received a memorandum from counsel for the child but, despite our further request, have not heard from the parents’ counsel. From our own research, we can fully anticipate the parents’ arguments and do not believe that their overdue brief would add to our understanding or resolution of this issue.

An action for wrongful death is a creature of statute, unavailable at common law. See Manning v. Capelli, 270 Pa. Super. 207, 411 A.2d 252 (1979). Such an action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime. 42 Pa.C.S. §8301(a). The beneficiaries of a wrongful death action are restricted to the decedent’s spouse, children or parents, and the “damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy.. .” 42 Pa.C.S. §8301(b). The law of intestate succession, as applicable to the instant case, directs that:

“The share of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, shall descend in the following order:
“(1) Issue. To the issue of the decedent.
“(2) Parents. If no issue survives the decedent, then to the parents or parent of the decedent.” 20 Pa.C.S. §2103.

The purpose of the Wrongful Death Act is to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived. Berry v. Titus, 346 Pa. Super. 376, 381, 499 A.2d 661, 664 (1985), quoting Manning v. Capelli, supra, 270 Pa. Super, at 211, 411 A.2d at 254. To recover damages for wrongful death, therefore, the beneficiary must have suffered some pecuniary loss. Id.

The bare language of the statutes determines the issue before us. The Wrongful Death Act directs distribution in accordance with the laws of intestacy. The interstate law directs that everything shall pass to the decedent’s issue, the minor son in this case. Only if the decedent were not survived by issue would parents be entitled to distribution. We must follow the clear dictate of the statutes. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b). See also, Seymour v. Rossman, 449 Pa. 515, 297 A.2d 804 (1974).

We acknowledge the aforementioned purpose of the Wrongful Death Act, although we need not consider it because of the explicit Words in the statute. 1 Pa.C.S. §1921(b), (c). In any event, our decision supports the purpose of the act. Michael Pickering sustained a pecuniary loss by reason of his father’s death. That the decedent’s parents also sustained a pecuniary loss is of no consequence under the express terms of the act. The loss may have qualified them as potential beneficiaries under the act; it did not qualify them, under the circumstances, to ultimately share in the distribution of the wrongful death recovery. While actual pecuniary loss is a prerequisite to recovery under the act, all who suffer a pecuniary loss are not necessarily entitled to recover. The Wrongful Death Act, by incorporating the intestate law, establishes a definite pecking order for distribution. The minor son is in a class ahead of the parents. His interest completely supersedes that of the parents. Furthermore, any consideration of the parents’ loss by the jury is of no moment. The proceeds available for distribution are the result of a settlement among the various parties, not a juiy verdict. We are not reviewing post-trial motions.

As we discussed in our conference with counsel, we will await an appropriate petition before ordering how the survival action and wrongful death proceeds shall be distributed to the minor. We, therefore, enter the following

ORDER

And now, January 18, 1990, it is hereby ordered and decreed that Michael Pickering is the sole beneficiary of. the net proceeds of the wrongful death action settlement of the parties, as approved by amended order of this court on December 1, 1987.

       If the son had not sustained a pecuniary loss, then the parents would have received the entire wrongful death proceeds. See Seymour v. Rossman, supra; Manning v. Capelli, supra. The prior cases have addressed the situation where a potential beneficiary has not suffered pecuniary loss. They have not addressed the issue before us: whether pecuniary loss by a subordinate class of beneficiary allows that class to share in the distribution of wrongful death proceeds with a totally superior class which has also suffered pecuniary loss.


author: FRANKS, J.,

text:
    Werner v. Aegis Security Insurance Co.

      Gary D. Monaghan, for petitioners.

      Warren D. Ferry, for respondent.
    January 4, 1990
   FRANKS, J.,

This case is before this court on a petition to correct award of arbitrators. After a careful review of the applicable law, we hereby deny the requested relief.

STATEMENT OF FACTS

Petitioners, Wayne and Carole Werner, were insured on July 4, 1986, under the provisions of a motorcycle insurance policy issued by respondent, Aegis Security Insurance Company. The policy provided for uninsured motorist coverage in the amount of $15,000 per accident and $30,000 per occurrence.

On that date Wayne and Carole Werner were attending a picnic at Ohiopyle State Park. As théy attempted to leave the park on their motorcycle, a verbal confrontation arose between the Werners and an Andrew Kang. Mr. King then apparently shifted his uninsured vehicle into reverse and intentionally collided with the motorcycle on which Wayne Werner was seated. As a result of the collision, the motorcycle fell on Mr. Werner, causing bodily injury.

Mr. Werner submitted a claim for uninsured motorist benefits. The claim was denied. An arbitration hearing was held on December 18, 1987, after which the arbitrators in their written opinion found that the .injuries sustained by Mr. Werner resulted from an intention tort and did not arise from an “accident” as required by the policy of insurance. The arbitrators thus entered an award in favor of Aegis and against the Werners.

Petitioners then filed the instant petition, setting forth in paragraph 10 their reasons why corrective relief should be granted:

“(10) Your petitioners aver that the arbitrators exceeded their powers and the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment not withstanding the verdict because:
“(A) The arbitrators exceeded their powers by inferring that the uninsured motorist acted intentionally in causing the collision;
“(B) The arbitrators exceeded their powers in reaching the aforesaid conclusion in that same is not supported by the evidence and is contrary to law;
“(C) The arbitrators exceeded their powers in concluding that intentional acts were not covered by the instant policy of insurance, specifically, its uninsured motorist endorsement;'
“(D) The arbitrators exceeded their powers in concluding that petitioner’s injuries and damages did not arise as a result of an ‘accident’ as that term is intended under said policy of insurance;
“(E) The arbitrators exceeded their powers in that their decision is against the evidence, the weight of the evidence and is contrary to the law.”

We now address the merits of the instant petition.

DISCUSSION

The policy of insurance entered into between petitioners and respondent directs that controversies arising under the policy be submitted to arbitration in accordance with the provisions of the Pennsylvania Uniform Arbitration Act (42 Pa.C.S. §7301 et seq.). That act became law in , 1980 and outlines when courts may intervene and alter the award of the arbitrators.

There appears to be some initial confusion as to the precise relief petitioners are seeking and which sections of the Pennsylvania Uniform Arbitration Act apply. In their motion to correct award of arbitrators, petitioners request that we-correct the award granted by the arbitrators. Correction of an award falls under 42 Pa.C.S. §7315 and permits us to alter an award in the following limited circumstances:

“(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
“(2) The arbitrators awarded upon a matter not submitted to them. . .
“(3) The award is deficient in a matter of form, not affecting the merits of the controversy.”

However, in their brief in support of the motion to correct award of arbitrators, petitioners ask us to vacate the award. Vacating an award is governed by section 7314 and reads as follows:

“(a) General Rule
“(1) On application of a party the court shall vacate an award where:
“(i) the court would vacate the award under section 7341 (relating to common-law arbitration) if this subchapter were not applicable;
“(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
“(iii) the arbitrators exceeded their powers;
“(iv) the arbitrators refused to postpone the hearing upon good cause being shown. ..; or
“(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration). . .
“(2) The fact that the relief awarded by the arbitrators was such that it could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award.”

Clearly, petitioners are not entitled to corrective relief under section 7315. Petitioners do not allege that the arbitrators miscalculated the figures, that they ruled on a matter not submitted to them, or that the award was deficient in form. A review of the record does not reveal any such mistakes on the part of the arbitrators.

The other section, that is section 7314 of the Pennsylvania Uniform Arbitration Act, likewise permits the alteration of an arbitrators’,award in very limited circumstances. The only subsection which would potentially apply to petitioners is section 7314(a)(l)(iii), which pertains to arbitrators exceeding their powers.

From a review of the record and the arbitrators’ written opinion, we conclude they did not. The arbitrators were called upon to determine whether the term “accident” included intentional acts. Since the term was not defined in the policy of insurance, the arbitrators stated they looked to the intent of the drafters of the Uninsured Motorist Act (40 P.S. §2000) when they promulgated the statutory provisions pertaining to insureds injured by operators who are uninsured. They reasoned that the intent of the Uninsured Motorist Act is to provide protection for injured parties so that they would have the same protection as if they had been injured by an insured motorist. However, recovery under the uninsured Motorist Act for an intentional tort would entitle an injured party to more protection than if the claimant had been injured by an insured driver. Thus an award in favor of the instant petitioners would violate the intent of the Uninsured Motorist Act.

Additionally, the arbitrators engaged in a review of the laws of other jurisdictions since they found no Pennsylvania case law directly on point. Their conclusion was that the uninsured motorist provisions of the policy in question did not cover injuries caused by intentional torts.

Furthermore, this court is admonished under section 7314(a)(2), pertaining to the vacating of awards by courts, that even if we were inclined to decide this issue differently, we could not do so.

Petitioners also utilize a public policy argument to attempt to gain access to this court. The Superior Court in United Services Automobile Association Appeal, 227 Pa. Super. 508, 516, 323 A.2d 737, 741 (1974) held that:

“[W]here the application or construction of the uninsured motorist clause is at. issue the dispute is within the exclusive jurisdiction of the arbitrators; the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative or administrative mandate - or unconscionable. . .”

We recognize that we have the power to review an arbitrators’ decision when it contravenes public policy, but we do not believe that instant case warrants such a review. Petitioners do not allege with any specificity how the arbitrators’ determination conflicts with public policy and do not point to any specific clause within the insurance policy itself which violates public policy, as required by the United Services court. In fact, we view disputes such as this as classic examples of the types of issues arbitration boards are particularly well-suited to decide. We, therefore, deny the petition to correct award of arbitrators.

ORDER

And now, January 4, 1990, it is adjudged, ordered, and directed that the petition to correct award of arbitrators is hereby denied.


author: O’BRIEN, J.,

text:
    The Morning Call Inc. v. The Council of the Borough of East Stroudsburg

      Malcolm J. Gross, for plaintiff.

      Robert G. Williamson, for defendants.
    February 16, 1989
   O’BRIEN, J.,

During the course of a public meeting held on May 17, 1988, the Borough Council of East Stroudsburg held an executive session from which the public, including a representative of plaintiff, The Morning Call Inc., was excluded. Following this closed meeting, Council reconvened the public meeting and proceeded to vote unanimously to have the borough manager handle the personnel matter discussed during executive session. Plaintiffs representative requested Council to disclose the personnel matters it had discussed in executive session but Council refused.

On May 27, 1988, the Call filed a complaint in equity against Council alleging that its closed executive session of May 17, 1988 was violative of the Sunshine Act. In its complaint, the Call sought declaratory and injunctive relief designed to prevent further violations of the Sunshine Act by defendant as well as the invalidation of any and all actions taken by council during the alleged illegal meeting. Council filed a responsive pleading on June 20, 1988 in which it denied the illegality of its executive session and asked this court to award it costs and attorney’s fees due to the spurious nature of plaintiffs claim.' Following the production of documents and the deposition of East Stroudsburg Borough Manager Kenneth Robert Brown, the parties have filed cross-motions for summary judgment. Following the submission of briefs and argument before the court on February 6, 1989, the parties’ motions are now ripe for disposition.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to, any material fact and that the moving party is entitled to judgment as a matter of law. Laspino v. Rizzo, 40 Pa. Commw. 625, 398 A.2d 1069 (1979); Pa.R.C.P. 1035. In the case at the bar, the facts ate not disputed and counsel for both parties are in agreement that this dispute should be resolved by this court by summary judgment for either party.

The Sunshine Act, 65 P.S. §271 et seq., provides in pertinent part as follows:

“(a) Findings — The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and public’s effectiveness in fulfilling its role in a democratic society.”
“§273. Definitions “ ‘Official action’
“(1) Recommendations made by an agency pursuant to statute, ordinance or executive order.
“(2) The establishment of policy by an agency. “(3) The decisions on agency business made by an agency.
“(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.”
“§278. Executive sessions
“(a) Purpose —— An agency may hold an executive session for one or more of the following reasons:
“(1) To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency’s decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law, including those granted by Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure).” 65 P.S. §278

In discussing Pennsylvania’s original Sunshine Law, our Supreme Court stated:

“It is clear that the object of the Sunshine Law, enacted in 1974 at a time of wide-spread public dismay over the Watergate disclosures of extensive secret corruption and abuse of power at the highest levels of the federal government, was to open the decision-making processes of Pennsylvania government to greater public scrutiny and accountability. It is also clear, however, that it was not the intention of the legislature that state agencies be required to hold all of their meetings in public; the Sunshine Law is entitled an act requiring public agencies to hold certain meetings and hearings open to the public and providing penalties. In order, therefore, to ascertain whether the meeting in question was covered, we must look to the language of the act and remain mindful that every statute shall be construed, if possible, to give effect to all its provisions.” Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977).

In order to make such a determination in the case at bar, an analysis of the matter discussed by Council is required. An employee had expressed displeasure at an ongoing conflict between himself and two of his co-workers. These complaints were accompanied by a request for early retirement. The employee was the subject of the executive session of Council at the May 17, 1988 meeting so that the borough manager could present his recommendations to Council. Following this meeting, the borough manager wrote a letter to the employee outlining his options. Receiving no response from the employee, Council accepted his resignation effective May 25, 1988.

The Call asserts that these acts by Council in executive session constituted the formation of policy and/or the taking of official action. We disagree. The only testimony of record as to what transpired at the executive session indicates that the borough manager was discussing a personnel matter with Council. The fact that no official action was taken during the meeting is evidenced by the content of the borough manager’s letter of May 18, 1988. This letter clearly indicated that the status of the employee was completely dependent upon his decision. The borough manager testified:

Q: Do you know why it needed confidentiality? Did anyone tell you why it needed confidentiality at that point?

A: First of all, in my opinion, it’s a personnel matter, and I don’t believe that any personnel matter needs to be discussed publicly unless you’re hiring or firing someone. And I’m not even positive at that point in time that it’s necessaiy. Personnel matter is exactly what it says.

Secondly, at this point in time at least in my opinion I wasn’t sure if Mr. Predmore wanted to stay, and if he wanted to stay that was fine with me. I didn’t care. I didn’t want to have a newspaper article necessarily blow up and scare him off or make something more out of — add more pressure to what was already on Mr. Predmore quite frankly.

Q. And what was the pressure that was already on him as you inferred it?

A. Well, Mr. Predmore was having personnel problems between him and his — the other two employees. And I think he felt that he was being forced out. I believe that’s truly how he felt. But I had told him many times if he wanted to come back and work until he was 70,1 didn’t care how long he worked.

In deciding the dispute in this case, a fundamental distinction must be made between the formulation of “policy by an agency” and the discussion of “any specific employee.” Policy has been defined by Black’s Law Dictionary in pertinent part as follows:

“The general principles by which a government is guided in its management of public affairs... this term, as applied to a law, ordinance, or rule of law denotes its general purpose or tendency considered as directed to the welfare or prosperity of the state or community.”

In contrast is the following definition by the same publication:

“Personal — Appertaining to the person; belonging to an individual; limited to the person; having the nature or partaking of the qualities of human beings.”

While the right of the press to report policy discussions and decisions affecting the welfare of the entire community is paramount, the right of a specific employee to keep private discussions of his human qualities by his employer must be protected. The press has a right to report the actions of public bodies but not to dictate such actions by intermeddling in an employee’s private affairs.

The. decision we reach in the case at bar is consistent with the holdings of other courts in other controversies commenced by The Morning Call Inc. In Mellin v. City of Allentown, 60 Pa. Commw. 114, 430 A.2d 1048 (1981), the Commonwealth Court rejected the newspaper’s claim under the Right to Know Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §66.1 et seq.; the Open Meeting Law, Act of June 21, 1957, P.L. 392, as amended, 65 P.S. §251 et seq. (repealed) and the Sunshine Law that a discussion of allegations of misconduct by a police officer should have been open to the press. More recently, in Stenger v. Lehigh Valley Hospital Center, 47 D.&C. 3d 278 (1987), President Judge Backenstoe rejected the newspaper’s request to have access to depositions in a civil case which would have disclosed the sexual conduct and habits and intimate details concerning personal hygiene of the participants in that litigation. Both of the. foregoing decisions reflect the concern of the law to protect the “personal” without infringing upon the right of the press to publish “policy.”

In the case at bar, it is clear that the purpose and substance of the May 17, 1988 executive session was the discussion of a personnel matter as permitted by 65 P.S. §278(a)(l). Therefore, the relief prayed for in plaintiffs complaint cannot be granted and summary judgment for defendants is appropriate. However, we decline the request of defendants to assess attorney’s fees against plaintiff in this proceeding because we are not satisfied that plaintiffs attempt to enforce the Sunshine Law was in bad faith.

ORDER

And now, February 16, 1989, it is ordered as follows:

(1) Defendants’ motion for summary judgment is granted and judgment is entered in favor of the Council of the Borough of East Stroudsburg and all defendants and against plaintiff The Morning Call.

(2) Costs are assessed against plaintiff.

      Council argues that the instant action is moot due to the resignation of the borough employee discussed during the executive session. We disagree. When the Call brought this action, the resignation had not been made public by Council. Further, our Supreme Court has held that the provisions of the Sunshine Act present situations that are capable of repetition and of sufficient public importance to require judicial attention even if no present controversy exists. Consumer Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977).


author: PEREZOUS, J.,

text:
    Mindala v. PennDOT

      William A. Atlee Jr., for plaintiff.

      James Moyles, deputy attorney general, for defendant PennDOT.
    May 16, 1990
   PEREZOUS, J.,

Before the court is the motion for summary judgment of defendant Commonwealth of Pennsylvania, Department of Transportation with respect to both the causes of action initiated by Eileen S. Stiffler and Tracey Lee Osborne and by Michael Mindala.

The history of. this case is well-known to this court. The case arises out of a tragic accident which occurred at the intersection of Indiantown and Schoeneck Roads in West Cocalico Township on November 25, 1979. The vehicle driven by defendant Harry H. Good collided with the Jeep vehicle driven by Thomas Mindala, in which his wife, Vickie Lee Mindala, and daughter, then Tracey Lee Mindala, were passengers* Thomas and Vickie Lee Mindala died as a result of injuries received in the collision and their daughter suffered severe injuries. At the point of the collision, the Good vehicle was proceeding southbound on Schoeneck Road and the Mindala vehicle was proceeding westbound on Indiantown Road. Stop signs had for 40 years controlled the eastbound and westbound traffic on Indiantown Road. Traffic on Schoeneck Road was not controlled by stop signs at the intersection. The stop sign for westbound traffic on Indiantown Road was missing on November 25, 1979. Schoeneck Road on both sides of the intersection is a state-designated highway. Indiantown Road is only a state-designated highway east of the intersection; west of the intersection it is a township road. Hence, the missing stop sign was the one located on the state-designated portion of Indiantown Road.

Suit was instituted by the decedents’ administratrix and administrator and the guardian for Tracey Lee, against several defendants including the Commonwealth of Pennsylvania, Department of Transportation.

It is the position of the commonwealth party that plaintiffs’ complaint fails to allege any facts which fall within any of the exceptions of sovereign immunity set forth at 42 Pa.C.S. §8522(b)(l) through (9), that sovereign immunity is not waived, and that defendant PennDOT should be dismissed from this action as a matter of law.

In ruling on this motion the court is guided by the familiar standard expressed in Pa. Rule of Civil Procedure 1035(b) — that summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978). In addition, the court is to remain mindful that in consideration of a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party. The court’s function is not to decide the issues of fact but merely to determine whether such issues exist. All doubts as to existence of genuine issue of material fact must be resolved in favor of the non-moving party. Petri v. Smith, 307 Pa. Super. 261, 453 A.2d 342 (1982).

In considering a motion by defendant for a summary judgment the court must accept as true all well-pleaded facts in the plaintiffs’ pleadings, giving the plaintiff the benefit of all reasonable inferences to be drawn therefrom.- A summary judgment should be granted only when the case is clear and free from doubt. Toth v. Philadelphia, 213 Pa. Super. 282, 247 A.2d 629 (1968).

Article II, §1 of the Pennsylvania Constitution provides that the commonwealth, its departments, agencies, boards, commissions and its officials and employees acting within the scope of their duties are immune from suit except as the state legislature may specifically waive such immunity by statute. The legislature has waived such immunity in eight specifically described categories under 42 Pa.C.S. §8522, entitled Exceptions to Sovereign Immunity.

This action has been brought pursuant to 42 Pa.C.S. §8522(b)(4), the commonwealth real estate exception to the doctrine of sovereign immunity. In its motion for summary judgment, defendant claims that plaintiffs’ complaint against PennDOT does not plead any facts which fall within any exception to sovereign immunity. Plaintiffs claim that section 8522(b)(4) applies to the fact situation in this case and would permit suit. This section reads as follows:

“§8522. Exceptions to Sovereign Immunity
“(a) Liability imposed — The general assembly, pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), 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 or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.
“(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:
“(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).”

A commonwealth party is defined under Title 42 P.S. §8501 as “a commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment.” Obviously the Department of Transportation falls within this definition. It is clear from a reading of 42 Pa.C.S. §8522(b)(4) that plaintiff would be free to sue under this limited waiver provision if the fact situation in the instant case falls within this exception. Accordingly, this court makes the following

FINDINGS OF FACT

(1) Plaintiffs are Michael Mindala, administrator of the estate of Thomas M. Mindala, deceased; Gary Krafft, administrator of the estate of Vickie Lee Mindala, deceased; and Tracey Lee Osborne, formerly known as Tracey Lee Mindala, a minor, by Mellon Bank, N.A., guardian of her estate.

(2) Defendant, Commonwealth of Pennsylvania, Department of Transportation, is an agency of the Commonwealth of Pennsylvania, authorized to act for and on behalf of the commonwealth, maintaining offices at Department of Transportation, Traffic and Safety Building, Harrisburg, Pa. 17120.

(3) On November 25, 1979, Thomas M. Mindala was the owner of a 1977 Jeep CJ-7, Pennsylvania registration K09316.

(4) On November 25, 1979, Harry H. Good was the owner of a 1973 Dodge Polara, Pennsylvania registration 5B1797.

(5) On November >25, 1979, at approximately 7' p.m., Thomas M. Mindala was operating his Jeep CJ-7 automobile westbound on Indiantown Road, in West Cocalico Township, Lancaster County, Pa.

(6) On November 25, 1979, at approximately 7 p.m., Harry H. Good was operating his 1973 Dodge Polara southbound on Legislative Route 36030, Schoeneck Road, in West Cocalico Township, Lancaster County, Pa.

(7) On November 25, 1979, at approximately 7 p.m., the two vehicles collided in the intersection of Indiantown Road and Schoeneck Road in Lancaster County, Pa., resulting in serious injury and the death of Thomas M. Mindala and Vickie Lee Mindala.

(8) The intersection of Indiantown Road and Schoeneck Road was to be controlled by a stop sign for traffic traveling on Indiantown Road.

(9) Sometime prior to the accident the stop sign controlling westbound traffic on Indiantown Road was removed.

(10) At the time of the accident there was no stop sign controlling westbound traffic on Indiantown Road.

(11) The intersection at which the accident occurred and off-street lighting systems, street lights, and traffic signs located on or adjacent thereto were under the care, custody or control of the Commonwealth of Pennsylvania, Department of Transportation.

DISCUSSION

The issue in this case is whether or not plaintiffs’ complaint states a cause of action within 42 Pa.C.S. §8522(b)(4), the commonwealth real estate, highways and sidewalks exception to the commonwealth’s sovereign immunity.

• It is defendant PennDOT’s position that plaintiffs’ complaint, specifically paragraph 16(f) and (g), fails to allege any facts which fall within any of the exceptions to sovereign immunity set forth at 42 Pa.C.S. §8522(b)(l) through (9). Defendant contends that, at best, plaintiffs are alleging negligent policies and procedures on the part of the commonwealth and that when policies and procedures have been the basis for actions alleging a “dangerous condition” of a commonwealth highway under section 8522(b)(4), the Commonwealth Court has consistently refused to impose liability upon the commonwealth agency involved.

Plaintiffs, on the other hand, claim that Penn-DOT should not narrowly look to two subparagraphs of plaintiffs’ complaint in determining whether their cause of action falls within any statutory exception to the state’s sovereign immunity. Plaintiffs contend that, taken as a whole, the complaint makes clear that the “dangerous condition” or “defect” in the highway was the missing stop sign. Finally, plaintiffs contend that the allegation of negligent policies and procedures on the part of the commonwealth are additional facts that are necessary to demonstrate the acts of negligence making the commonwealth liable for that “dangerous condition.”

In determining whether plaintiffs have properly stated a cause of action within the limited exception of 42 Pa.C.S. §8522(b)(4), this court must first look to the language of the statute itself. The relevant language is contained in section 8522(a) and (b)(4)-

The court is impressed with the following language: “The General Assembly . . . does hereby waive . . . 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. ” (emphasis supplied)

In this court’s view, the language of the statute presupposes some negligent conduct, be it policies or procedures, on the part of the commonwealth, to establish a breach of duty. It must be remembered that plaintiffs still have the burden of establishing some theory of common-law negligence, including duty, breach, causation and damages.

In the instant case, defendant PennDOT has directed this court’s attention to paragraph 16(f) and (g) of plaintiffs’ complaint and claims that these allegations of negligent policies and procedures do not fall within section 8522(b)(4). Defendant contends that plaintiffs have failed to allege a “dangerous condition” or “defect” on commonwealth real estate and therefore have not pled sufficient facts to constitute a waiver of sovereign immunity. Defendant then goes on to cite numerous cases requiring a “defect” in the highway itself, as opposed to the commonwealth’s negligent policies and procedures.

For example, defendant cites Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), and claims that the “dangerous condition” of language of (b)(4), as paralleled in the highway and real estate exception under the Political Subdivision Tort Claim Act, 42 Pa.ClS. §8542(b)(3),9 was interpreted by the court to mean that:

“[T]he real estate exception can be applied . . . only . . . where it is alleged that the artificial condition or defect of the land itself causes the injury. . .” Mascaro, 514 Pa. at 363, 523 A.2d at 1124. (first emphasis supplied; second emphasis in original)

Defendant PennDOT then goes on to cite recent cases that have followed the guidance of Mascaro, in that they have all required the showing of a “defect” in the highway itself, which causes the injuries. Houston v. Central Bucks School Authority, 119 Pa. Commw. 48, 546 A.2d 1286 (1988); Gallagher v. Commonwealth of Pennsylvania, Bu reau of Correction, 118 Pa. Commw. 516, 545 A.2d 981 (1988). Finally, defendant PennDOT reiterates its position that plaintiffs have improperly asserted that a dangerous condition can exist by virtue of PennDOT’s negligent policies and procedures and that, following Mascaro, this falls short of alleging that the “artificial condition” or “defect” in the land itself caused the accident.

This court readily agrees that the “defect” must be in the land itself and cannot spring from an operational policy or procedure on the part of the commonwealth.

Indeed, the Supreme Court of Pennsylvania has ruled that “[SJovereign immunity is waived pursuant to 42 Pa.C.S. §8522(b)(4), where it is alleged that the artificial condition or defect of the land itself causes an injury to occur.” Snyder v. Harmon, 102 Pa. Commw. 519, 519 A.2d 528 (1986). Interestingly enough, however, our highest court then goes on to hold that “the corresponding duty of care a commonwealth agency owes to those using its real estate, is such as to require that the condition of the property is safe for the activity which it is regularly used, intended to be used or reasonably foreseen to be used.” Id. (emphasis supplied)

It is precisely this duty, on the part of the commonwealth, that plaintiffs have alleged to have been breached in paragraph 16(f) and (g).

As the Supreme Court of Pennsylvania has held, the commonwealth’s duty is such as to require that the condition of their property is safe, (emphasis supplied) While paragraph 16(f) and (g) of plaintiffs’ complaint does not, in and of itself, form the basis of a “dangerous condition” or “defect,” the language is appropriate and in fact required to allege the breach of the commonwealth’s duty.

This court is convinced that plaintiffs’ complaint, taken as a whole,13 makes clear that the missing stop sign is the “dangerous condition” or “defect” that is being alleged. Even in light of the Supreme Court’s mandate to strictly construe the exceptions to sovereign immunity,14 it is clear that plaintiffs have pleaded a “dangerous condition of’ a common-, wealth highway. An evaluation of the record in this case indicates that the court cannot determine, as a matter of law, that plaintiffs do not fall within section 8522(b)(4).

Finally, defendant PennDOT has requested that, ih the event their motion for summary judgment is denied, this court enter an in limine order limiting plaintiffs’ proof at trial to evidence relevant to the issue of “defect.” In addressing this request, this court feels compelled to remind defendant that evidence of negligent policies and procedures on the part of the commonwealth is not only appropriate, but directly relevant to the issue of breach of duty. Accordingly, this court enters the following

ORDER

And now, May 16, 1990, upon consideration of the motion of defendant, Commonwealth of Pennsylvania, Department of Transportation, for partial summary judgment or motion in limine on issue of sovereign immunity, and after review of all response thereto, together with the legal, briefs, it is ordered that defendant’s motion is denied and dismissed.

      . Stiffler and Osborne initiated their separate action in Allegheny County. The case was transferred to Lancaster County upon an order for change of venue. Subsequently, on June 25, 1982, the Stiffler/Osborne action and the Mindala action were consolidated by order of court. Finally, on December 31, 1984, by order of court, Eileen S. Stiffler was substituted as administratrix of the estate of Vickie Lee Mindala by Gary G. Krafft, administrator.

        . See 36 P.S. §1738-2.

      . See 36 P.S. §67-102.

      . An action was also brought against West Cocalico Township based on the negligence of its police department in not correcting the situation or warning motorists of the hazardous condition. The Court of Common Pleas, Lancaster County, denied township’s motion for summary judgment, 68 Lancaster L. Rev. 646 (1983), and the Commonwealth Court, 90 Pa. Commw. 366, 495 A.2d' 644 (1985), reversed and remanded. Appeal was taken. The Supreme Court, being evenly divided, affirmed the Commonwealth Court’s reversal, 518 Pa. 350, 543 A.2d 520 (1988).

      . See 330-1, supra.

      . 42 Pa.C.S. §8522(a).

      . See Mascaro v. Youth Study Center, 514 Pa. at 357, 523 A.2d at 1121 (1987). (claim against city could be maintained at common law against one not having immunity defense, which is a precondition to maintaining an action against city under Political Subdivision Tort Claims Act. 42 Pa.C.S. §8542(a)(l)).

      . Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). See also, Houston v. Central Bucks School Authority, 119 Pa. Commw. 48, 546 A.2d 1286 (1988); Gallagher v. Commonwealth of Pennsylvania, Bureau of Correction, 118 Pa. Commw. 516, 545 A.2d 981 (1988).

      . Plaintiffs’ complaint, paragraph 16(f) and (g), reads as follows:
      “(16) The aforesaid accident... was due to the reckless, careless, and negligent conduct of defendant in one or more of the following particulars:. . .

        “(f) In failing to properly inspect and/or maintain the highway(s) and signs appurtenant thereto in such a fashion as to protect the traveling public from hazardous or dangerous conditions.
      “(g) In failing to properly supervise or direct its agents, servants, or employees to guard against defects or deficiencies in the design, installation, or maintenance of said highway(s) and signs appurtenant thereto.”

      . “Although [Mascaro] addressed the governmental immunity of local agencies, the reasoning of these decisions mandates the same conclusion with respect to the commonwealth under [42 Pa.C.S. §8522].” Moore v. Commonwealth, Dept. of Justice, 114 Pa. Commw. 56, 60, 538 A.2d 111, 113 (1988). (footnote omitted)

      . Defendant’s motion for summary judgment is in the nature of a demurrer. This court is guided by well-established principles when ruling upon the sufficiency of a demurrer. “A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom for the purposes of testing the legal sufficiency of the challenged pleading.” Duffee v. Judson, 251 Pa. Super. 406, 409, 380 A.2d 843, 844-5 (1977).

      . Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).


author: JIULIANTE, J.,

text:
    Bomboy v. Erie Airways Inc.

      William J. Kelly and Craig A. Markham, for plaintiffs.

      William A. Pietragallo, for defendant Erie Airways Inc.

      James D. McDonald, for defendant Scranton Aluminum Manufacturing Company and 84 Lumber Company.

      Will J. Schaaf and Fran J. Klemensic, for defendant Utica Metal Products.
    September 12, 1988
   JIULIANTE, J.,

-Richard Bomboy was seriously injured on February 17, 1982, when he fell from an extension ladder during the course of his employment. In this action, Richard and Alice Bomboy sued defendant Erie Airways Inc. for negligence and defendants Scranton Aluminum Manufacturing Company and 84 Lumber Company on theories of negligence and strict liability in the design, manufacture and sale of the accident ladder. Utica Metal Products was joined as an additional defendant because it was the supplier of the original feet on the ladder. A jury trial occurred in May 1987. A directed verdict was entered as to additional defendant, Utica Metal Products, at the close of the defendants’ case and the jury reached a verdict of no liability as to the remaining defendants. Plaintiffs thereafter filed timely post-trial motions in regard to the verdict for defendants Erie Airways Inc., Scranton Aluminum Manufacturing Company and 84 Lumber Company. The directed verdict in favor of Utica Metal Products has not been appealed nor is it the subject of post-trial motions.

Errors in the Case Against Scranton Aluminum

At trial, plaintiffs proceeded against Scranton on the theory that Richard Bomboy fell because the ladder slipped out from under him. Plaintiffs alleged at trial that defendant Scranton had manufactured the ladder with inadequate slip resistance and lack of warnings of this defect. On the issue of low slip resistance, plaintiffs presented the testimony of Professor Howard Wilson, who stated his opinion that a new Scranton ladder equipped with the original feet did not provide an adequate margin of safety, that the accident ladder was dangerous because it had a low coefficient of friction and that the accident ladder with the original feet would have been defective in the area of slip resistance. Scranton presented evidence that Scranton ladders equipped with the original feet passed slip resistance tests designed and sanctioned by the American National Safety Institute.

Initially, Scranton’s evidence of compliance with ANSI test standards, even if inadmissible in Scranton’s case in chief, appears to be proper rebuttal where plaintiffs first put in evidence .of testing in accordance with ANSI standards. However, even in its case in chief, the defendant’s evidence of ANSI test standards is properly admissible on the issue of causation: Plaintiffs’ theory at trial was that the accident ladder, equipped with replacement feet, slipped during normal use. By bringing in evidence of testing with the original feet, plaintiffs attempted to prove that the ladder would have slipped regardless of this substantial alteration in the product. Defendant then offered evidence of compliance with ANSI testing standards, not for the purpose of showing lack of .defect, but for the purpose of showing that the accident ladder did not slip, defective or not. The import of Scranton’s testimony was that in its original condition, the accident ladder would not have slipped under the conditions present at the time and place of Richard Bomboy’s accident. Defendant’s position was that even if the ladder was defective, the defect did not cause the accident.

This court is aware that in Lewis v. Coffing Hoisting Division, 515 Pa. 334, 528 A.2d 590 (1987), decided after the trial of this-case, the Supreme Court of Pennsylvania held that evidence of industry standards as to the design of the product at issue there was properly excluded at trial. The court’s concern in Lewis was the defendant’s attempt to defeat a claim of defect in its product by establishing that over 90 percent of manufacturers were using the same design. Such evidence is not only inconclusive on the issue of whether the manufacturer was reasonable and therefor not negligent in its design choice, but also tends to focus the jury on the conduct of defendant rather than the attributes of the product it makes.

Without deciding the retroactive effect of the Lewis decision, the present holding does not offend the reasoning of the court in Lewis. First of all, evidence of standards of the American Society of Mechanical Engineers in Lewis was excluded as irrelevant because “the ASME publication was totally silent on the subject of the design and guarding of buttons on the control pendants of electric hoists,” the particular defect asserted in Lewis, supra. The expert testimony that “at least 90 percent of the electric hoists made in this country had control boxes devoid of any type of guard around the activating buttons” was excluded as improperly injecting negligence concepts into a case based entirely on strict liability under section 402A of the Restatement (Second) of Torts. Lewis, supra.

It is apparent that the exclusion of this expert testimony regarding industry custom served as the basis for the court’s opinion. As Justice Larsen said in his concurrence, the court made clear in Lewis that a manufacturer of unsafe products cannot escape liability because “the other guys do it too.” Id. Therefore, defendant manufacturer in Lewis would not be permitted to argue that his unsafe product was on a par with all others available. In the present case, Lewis would apply if Scranton had proven at trial that their ladder, despite having slipped while Bomboy was working on it, was nonetheless safe because it was in compliance with ANSI standards or because it was as good as other ladders. But here, defendant proved that its ladder would not slip and in effect rebutted the plaintiffs testimony that the low slip resistance of the ladder caused the fall. We conclude that it was not error to permit evidence of compliance with ANSI test standards as it was relevant to the issue of causation.

Plaintiffs next assign error to the court’s having permitted testimony regarding the contributory negligence of plaintiff Richard Bomboy. The court permitted the testimony and instructed the jury regarding contributory negligence on the authority of Foley v. Clark Equipment Company, 361 Pa. Super. 599, 523 A.2d 379 (1987), alloc. den. 531 A.2d 780 (1987). Plaintiff in Foley was injured when he was struck by a forklift. Plaintiff claimed defective design of the forklift which hampered the operator’s visibility. The defense asserted was that the accident was caused by the ináttentiveness of either plaintiff, the forklift operator, or both. The defendant in Foley argued on appeal that the trial court erred in excluding testimony regarding plaintiffs actions prior to the collision. The Superior Court said:

“The trial court correctly concluded, under existing law, that negligence principles generally are not to be injected into an action based upon the theory of strict products liability. . . . This does not mean, however, that evidence concerning the negligence of the plaintiff and of other individuals involved in a product-related accident cannot be considered for any purpose. On the contrary, evidence of another’s negligent conduct is admissible where it is relevant to establish causation.” 361 Pa. Super, at 626, 523 A.2d at 393 (1987). (citations omitted) Thus, the court in Foley held that it was error for the trial court to have excluded evidence of the plaintiffs and forklift operator’s inattentiveness because it may have been the legal cause of the accident.

Similarly, in the present case Scranton defended on a theory of lack of causation. In order to recover, under section 402A of the Restatement (Second) of Torts, plaintiffs here were required to prove (1) that the product was defective and (2) that the defect was the proximate cause of the injury. Scranton defended on the basis that the accident was caused by some circumstance other than the ladder’s having slipped, namely either Richard Bomboy’s placing the top of the ladder on a soft, uneven surface and leaning excessively to the left side or the low coefficient of friction of the replacement pads placed on the ladder by Bomboy’s employer. Evidence of Bomboy’s actions prior to the fall was certáinly admissible on the issue of causation.

Furthermore, Staymates v. ITT Holub Industries, 364 Pa. Super. 37, 527 A.2d 140 (1987), does not require a different holding. The court there was asked to decide whether comparative negligence principles should be applied to apportion damages in strict liability cases; that is, should a manufacturer’s liability — which does not depend on fault — be tempered by .the fault of plaintiff in acting negligently? The court in Staymates held that comparative negligence principles should not be applied to the law of strict products liability. Staymates does not hold that the negligence of plaintiff or any other actor cannot be considered on the issue of causation. Scranton is not arguing here that the actions of Richard Bomboy or his employer made a defective product less defective; Scranton showed only that its allegedly defective product was .not the cause of the accident. We find no error in having permitted the testimony and instructing the jury accordingly.

Plaintiff also contends that there was no evidence to show that Bomboy assumed the risk of the ladder slipping and that the court therefore erred in instructing the jury on .this doctrine. For the reasons to be discussed below, we find no error on this point.

Errors in the Case Against Erie Airways

Plaintiff contends that the court’s instruction to the jury regarding the liability of Erie Airways Inc., as the employer of an independent contractor was erroneous. “The primary purpose of a court’s charge to the jury is to apprise the members of the jury, in an understandable manner, of the legal principles by which they must decide the case. The law is well settled that the trial court is not required to use any prescribed language in performing this function.” Hawthorne v. Dravo Corporation, 352 Pa. Super. 359, 508 A.2d 298 (1986). In order for a party to be entitled to a new trial, “the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict.” McCann v. Amy Joy Donut Shops, 325 Pa. Super. 340, 472 A.2d 1149 (1984). (citations omitted) It is well settled that courts consider the charge to the jury in its entirety to determine whether or not error was committed and whether the error was prejudicial to the complaining party. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985).

In viewing the charge here in its entirety, we conclude that the jury was adequately instructed regarding the possible liability of Erie Airways Inc. as an employer of an independent contractor. The court informed the jury that Erie’s liability would be premised on a peculiar risk or a special danger involved in the work to be performed which was foreseeable and recognizable by a reasonable man. This is a proper statement of Pennsylvania law. Marshall v. Southeastern Pennsylvania Transportation Authority, 587 F.Supp. 258 (E.D. Pa. 1984); Ortiz v. Ra-EL Development Corporation, 365 Pa. Super. 48, 528 A.2d 1355 (1987). We find no error in the court’s instruction on this doctrine.

The court also instructed the jury regarding the defense of assumption of risk. Plaintiff contends that this was error because the defense is no longer available under Pennsylvania law. The Pennsylvania Supreme Court in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), held that the defense of assumption of risk was available in a negligence action which was based on a duty owned by the possessors of land to invitees thereon. The court pointed out that to say plaintiff in Carrender assumed the risk by voluntarily encountering a known danger was “simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.” 503 Pa. at 188, 469 A.2d'at 125 (1983). In the present case, the assertion that Richard Bomboy assumed the risk is simply another way of saying that Erie Airways Inc. is relieved of any duty it had to advise him of a peculiar risk involved in the use of the ladder to repair the heater. There was evidence presented from which the jury could conclude that Richard Bomboy realized and voluntarily assumed the inherent dangers of using the ladder as he did. Therefore, we conclude that it was not error to instruct the jury on the application of the doctrine.

Errors Regarding Jury Selection

Plaintiff sought to ask prospective jurors whether they or any member of their immediate families had ever been employed in the insurance industry and whether the prospective jurors had an opinion as to the cause of the “insurance crisis.” The court refused to permit those questions on the authority of Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972), wherein the trial court refused similar questions for the reason that “the proposed questions would needlessly interject the element of insurance coverage into the case.” 447 Pa. at 31, 288. A.2d at 749. As in Bentivoglio, plaintiffs here have not asserted that the jury was not fair and impartial and we perceive no error in having excluded the proposed questions.

Likewise, the decision whether to strike jurors for cause is committed to the sound discretion of the trial court and absent a showing that the juiy was not faif^md impartial, we regard any errors made in the various decisions to strike or not strike jurors as harmless.

Jury Instructions Regarding Wet Floor

Finally, plaintiff contends that the court erred by instructing the jury to disregard any evidence of the effect of grease or water on the hangar floor. This was not error, as the evidence — including the testimony of Richard Bomboy — all supported the conclusion that Richard Bomboy placed the ladder on a clean, dry floor. To instruct the jury that they could consider whether water had run onto the floor under the ladder would be impermissible speculation and surmise on their part. See Farnese v. Southeastern Pennsylvania Transportation Authority, 338 Pa. Super. 130, 487 A.2d 887 (1985).

For all the foregoing reasons, the court finds that plaintiffs are not entitled to entry of judgment in their favor or the grant of a new triaL

ORDER OF COURT

And now, September, 12, 1988, upon consideration of the motion for post-trial relief filed on behalf of plaintiffs, it is hereby ordered, adjudged and decreed that the motion be and hereby is denied.


author: SEMERARO, J.,

text:
    Culp v. Williams

      Harry A. Dorian, for plaintiffs.

      Eric A. Weiss, for defendant.
    March 8, 1988
   SEMERARO, J.,

October 8, 1987, this medical malpractice action, following a jury trial, concluded with a verdict in favor of defendant, Claude M. Williams, M.D. Subsequently plaintiffs, Lillian and Robert Culp, filed a timely motion for a new trial contending this court erred in denying plaintiffs’ motion in limine and in permitting Dr. Joan Waller to testify on behalf of defendant as a defense liability expert. On October 16, 1987, this court entered an order denying plaintiffs’ motion. Plaintiffs have appealed this order, thereby necessitating this opinion.

FACTS

Plaintiffs instituted this medical malpractice action alleging negligent post-operative care by defendant for failing to recognize, diagnose, and properly treat plaintiff Lillian Culp’s post-surgical wound infection.

Defendant performed a hysterectomy upon plaintiff Lillian Culp on May 9,1983. A few days after the operation a post-operative wound infection developed. Defendant treated this infection for approximately one month, but was unable to control it. On June 9, 1987, defendant referred plaintiff Lillian Culp to Joan Waller, M.D., an infectious disease specialist. During the next three months, under Dr. Waller’s care, plaintiff Lillian Culp was in the hospital undergoing an intravenous antibiotic course of treatment. This treatment brought about plaintiff Lillian Culp’s recovery.

Plaintiffs’ legal argument raised in their post-trial motions are strikingly similar to those of their motion in limine. Both can be distilled down to three quintessential points:

(1) Whether, without the court’s approval and without plaintiffs’ counsel present, counsel for defendant should have communicated with plaintiffs’ past treating physician, Dr. Waller.

(2) Whether upon testifying as an expert witness for defendant adverse to plaintiffs’ litigious position, Dr. Waller breached a fiduciary duty owed to plaintiff Lillian Culp.

(3) Whether Dr. Waller’s trial testimony was merely cumulative and unduly prejudical to plaintiff.

Plaintiffs’. motion in limine was denied by this court. In their post-trial motions plaintiffs’ contend that the court erred when it refused plaintiffs’ request for oral argument on their motion. Plaintiff does not, however, claim any prejudice occurred because of the denial of oral arguments. In that each aspect of plaintiffs’ motion in limine are dispelled by this opinion the denial of oral arguments did not prejudice plaintiff.

ARGUMENT

In ruling upon a post-trial motion for a new trial, this court must determine whether any decision rendered by the court, which has been properly placed into issue by a party, constituted a manifest abuse of discretion or a clear error of law. Chanda v. Commonwealth, 86 Pa. Commw. 532, 534-5, 485 A.2d 867, 868 (1984). Plaintiffs have not shown either abuse of discretion or error of law to exist.

Plaintiffs’ Treating Physician is Not Barred by the Physician-Patient Privilege from Discussing the Case with the Defendant and Appearing as Defendant’s Expert Witness

Under Pennsylvania Statute section 5929, Physicians Not to Disclose Information, it is provided:

“No physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal inju-' ries.” 42 Pa.C.S. §5929. In this instant case, a civil suit in medical malpractice brought by plaintiff, the above-referenced statute applies. Defendant by contacting and then retaining Dr. Waller as an expert witness was properly within the limits of the statute.

In the case of In re June, 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980) the Pennsylvania Supreme Court held that statutory and case law has drawn a distinction between information learned by a physician through communications to him . by a patient and information acquired through examination and observation. Id. at 149, 415 A.2d at 76-7. It is only information gained by communications with the patient that may be protected from disclosure. Even that information is prevented from being disclosed only if it tends to blacken the character of the patient. Id. at 150, 415 A.2d at 77; Massach v. Keystone Coal and Coke Co., 137 Pa. Super. 541, 10 A.2d 98 (1939); Woods v. National Life and Accident Insurance Co., 347 F.2d 760 (3d Cir. 1965).

Here the disclosures by Dr. Waller were of information gathered from her observation, examination and treatment of plaintiff Lillian Culp; No confidential matters which might blacken plaintiffs character were communicated. Additionally, Dr. Waller was not plaintiff Lillian Culp’s treating physician at the time of the communications. Therefore the consultation between defendant’s counsel and Dr. Waller and her testimony at trial did not violate plaintiff Lillian Culp’s physician-patient privilege. This court relied on Panko v. Consolidated Mutual Insurance, 45 D.&C. 2d 743 (1968), aff'd. 423 F.2d 41 (3d Cir. 1970) which is analogous to the case sub judice. (The Panko court noted it’s earlier affirmation of the district court’s decision and jury instruction regarding plaintiff physician being used by defendant. Id. at 43; See Panko v. Food Fair Stores, 403 F.2d 62, 64 (3d Cir. 1968). The district judge instructed the jury:

“That no inference of improper professional conduct . . . whatsoever should be drawn from the doctor’s appearance and testimony at trial, for the reason that when a patient makes a claim involving his or her health, the privilege of physician-patient non-disclosure must give way as a matter of policy to broaden .interests involved in the administration of justice in adversary litigation.” Panko v. Consolidated Mutual Insurance, 423 F.2d 41, 43 (3d Cir. 1970).

The court of appeal’s reasoning in Panko is applicable in the instant case. Plaintiffs brought suit alleging medical malpractice placing the propriety of defendant’s treatment at issue. Any right to non-disclosure plaintiff Lillian Culp may have is subordinated to the interest of justice. This court is in agreement.

Plaintiff takes further exception that the communication between Dr. Waller and defendant was ex parte and impermissible. In Moses v. Albert Einstein Medical Center et al., 353 Pa. Super. 650, 506 A.2d 1341 (1983) the court held that plaintiffs treating physician and defendant’s counsel were justified in engaging in private discussions. The court stated, “Thus, her physician, defendant Dr. [ X ], was permitted, via the physician/patient privilege statute, to disclose to either side in this law suit, during pretrial and trial proceedings, information about plaintiff Lillian Culp’s medical condition and treatment.” Moses, supra. We find that, as a matter of law the communication between defendant and Dr. Waller, and the doctor’s testimony at trial was permissible.

As for any violation of plaintiffs’ constitutional right to privacy arising from a physician testifying as did Dr. Waller the law in Pennsylvania is that no such blanket protection exists. In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980), the Supreme Court held that such a right to privacy did not exist when confronted by the Investigating Grand Jury. See 18 Pa.C.S. §4549, Investigating Grand Jury Proceedings Act. “[T]he considerable protection offered by both the terms of the Investigating Grand Jury Act and the responsibility and discretion reposed in the supervising judge, we find neither the U. S. Constitution nor the Pennsylvania Constitution offended. We recognize a limited invasion of privacy will occur but consider it justified under the circumstances.” Id. at 152, 415 A.2d at 78. The greater protection offered by the Pennsylvania Rules of Court and the responsibility and discretion of a court of common pleas judge surely then could not offend either constitution. As such plaintiffs’ constitutional right to privacy was not violated by allowing Dr. Waller to testify. .

Dr. Waller Did Not Breach a Fiduciary Duty Owed to Plaintiff Lillian Culp When She Testified as an Expert Witness for Defendant Adverse to Plaintiff Lillian Culp’s Litigious Position

Plaintiff here contends that Dr. Waller breached an alleged duty to plaintiff raising a conflict of interest in terms of the physician-patient privilege and causing prejudice to plaintiff. The subject of disclosures of information concerning a patient by a doctor is addressed supra. In regards to any fiduciary duty owed to a patient the law in Pennsylvania is that the administration of justice is superior.

“It is true that a treating physician owes a duty to his patient not to offer affirmative assistance to his patient’s antagonist in litigation, (see Alexander v. Knight, 197 Pa. Super. 79, 177 A.2d 142 (1962)) but testifying truthfully, under oath at a deposition or trial is not within such a category and violates no duty created by a fiduciary relationship between a physician and a patient or the attending duty of confidentiality.” Goldstein v. Temple University Hospital et al., 16 Phila. Rep. 81 (1987). Dr. Waller as plaintiff Lillian Culp’s treating physician released the medical information in the proper forum. She did not violate any privilege or fiduciary duty.

Dr. Waller’s Trial Testimony Was Not Merely Cumulative nor Unduly Prejudicial to Plaintijf Lillian Culp

Plaintiffs’ contend that Dr. Waller’s testimony was cumulative in that she expressed precisely the same opinion as that of another of defendant’s liability experts. Her testimony addressed one of the critical issues raised at trial: the timeliness of defendant’s admission of plaintiff Lillian Culp into the hospital and the subsequent course of treatment of the post-surgical wound infection. (Who better to render an expert opinion but Dr. Waller who immediately took on the treatment of plaintiff?) Dr. Waller saw plaintiff Lillian Culp while hospitalized and had first-hand knowledge of plaintiff Lillian Culp’s prescribed course of treatment.

It is within the discretion of the court to reasonably limit the evidence which is merely cumulative, rule 223 (conduct of the jury trial, Pa.R.C.P. 223); and which is merely repetitious, Boyd v. Hertz Corporation, 219 Pa. Super. 488, 281 A.2d 679 (1971). Dr. Waller’s testimony was not cumulative. Plaintiff instituted the medical malpractice action placing defendant’s treatment at issue. Dr. Waller’s testimony, as the successor physician, was critical to this case.

For all of these reasons this court denied plaintiffs motion for a new trial and directed that judgment be entered in favor of defendant.

ORDER

And now, March 8, 1988, upon consideration of the record and the briefs in support of plaintiffs post-trial relief, plaintiffs’ motion is denied and judgment is entered in favor of defendant on the verdict of the jury.