author: RAUP, P.J.,

text:
    Pennsylvania Department of Labor and Industry v. Whipple

      Richard Langler, for plaintiff.

      Charles Knight, for defendant.
    October 3, 1989
   RAUP, P.J.,

The parties’ cross-motions for summary judgment arise out of plaintiffs action under the Pennsylvania Minimum Wage Act of 1968, 43 Pa.C.S. §§333.101 through 333.115, to collect overtime wages allegedly due Frederick Reeder (claimant) from his employment at Whipple’s Feed & Grinding. For the following reasons, we grant plaintiffs motion for summary judgment, and deny defendants’ motion.

Plaintiff is the Bureau of Labor Standards which is an administrative division of the Pennsylvania Department of Labor and Industry. As permitted by the Minimum Wage Act, the claimant has assigned his wage claim to the Secretary of Labor and Industry who has in turn delegated enforcement to the plaintiff bureau. The wage claim of the claimant is for overtime pay which he allegedly should have been paid by defendants. 43 Pa.C.S. §333.113.

The parties presented the case on the following stipulated facts. Defendants Whipple own Whipple’s Feed & Grinding, which is primarily engaged in the service of grinding corn, grain and other similar substances into feed for farmers located in North Central Pennsylvania. Claimant Reeder performed grinding services by operating two truck-mounted feed mills at various farms in the region. He did not, however, perform grinding services on any farms owned by defendants. After farmers or their employees cut or removed the grain from stalks, those individuals placed the grain to be ground in or near the farmer’s barns, or in some other central location on the farm. The claimant then removed the grain from the central location, placed it in the feed mill, and either bagged the feed for farmers or arranged the feed mill to blow the ground feed into a storage location such as a grain elevator. In addition to operating the two truck-mounted feed mills which the defendants own, the claimant also performed mechanical work on the vehicles, worked in the defendants’ store/warehouse, and made or picked up deliveries at another feed mill.

Defendants did not allocate claimant’s various duties according to a pre-established work schedule, and neither claimant nor the defendants kept a record of the time he spent performing his tasks. The parties agreed that the claimant spent approximately 30 to 40 hours per week performing on-site grinding duties, 5 to 10 hours performing mechanical or delivery work, and 2 to 3 hours working in the defendants’ store or warehouse. Claimant’s rate of compensation was $5.50 per hour until November 1986 when he received a pay increase to $6 per hour. If the court finds that the claimant is entitled to one and one-half time his regular rate for overtime, the damages would be $2002.01.

The parties further stipulated that farmers in Lycoming County frequently use feed mill services operated by millers or feed mill operators to grind grain. Defendants provided on-site grinding services to approximately 100 customers a month, and as a result the claimant frequently had to work in excess of 40 hours per week. However, the parties agree that at no time did defendants ever pay the claimant one and one-half times his hourly wage for the time worked in. excess of 40 hours. Claimant contends that pursuant to the Minimum Wage Act, he is entitled to one and one-half times his regular rate for the weeks he worked in excess of 40 hours. He therefore assigned his claim to the bureau, plaintiff.

For the purposes of this proceeding only, the parties have stipulated that the defendants’ employment of claimant was exempt from the federal Fair Labor Standards Act, 29 U.S.C. §201 et seq. either by virtue of the exemptions for agricultural employees found at 29 U.S.C. §213(a)(6)(A) and 29 U.S.C. §213(b)(12), or for the portion of the claim relating to earnings in 1986, because defendants’ annual gross income for 1986 did not exceed $362,500, and therefore, for that year the business did not qualify as an enterprise engaged in interstate commerce for the purposes- of 29 U.S.C. §§203(s)(2) and 207(a)(1). The employment was also not subject to any other federal wage and hour legislation.

Finally, the parties agree that the Dictionary of Occupational Titles published by the United States Department of Labor lists the occupations of feed grinder, custom-feed mill-operator and custom-feed mill-helper under the general category of “processing operations” and under the industry designations of “separating, crushing, milling, chopping, grinding and related occupations.”

The court must address the following issues:

(1) Whether the overtime pay exemptions for agricultural employees as set forth in the Fair Labor Standards Act pre-empt the Pennsylvania Minimum Wage Act.

(2) Whether employees of independent contractors, particularly those who grind grain for farmers, fall within the “labor on a farm” overtime exemption as set forth in section 5(a)(1) of the Minimum Wage Act.

Whether the Overtime Pay Exemptions for Agricultural Employees in the Fair Labor Standards Act Pre-empt Coverage Under the Pennsylvania Minimum Wage Act

Defendants maintain that the FLSA exemptions for agricultural employees preclude application of the Pennsylvania Minimum Wage Act to the claimant’s employment in those years when the defendants’ business grossed over $362,500 (i.e., all years covered by the claim except 19.86). The bureau contends that the FLSA exemptions do not affect the claimant’s entitlements under the Pennsylvania Minimum Wage Act and that the claimant’s entitlement must be judged solely by state law.

We find persuasive the reasoning of the Montana Supreme Court in Plouffe v. Farm and Ranch Equipment, 174 Mont. 313, 570 P.2d 1106 (1977), in which that court held that an employee was entitled to overtime pay under the Montana Minimum Wage Statute despite the fact that he was exempt from overtime under the federal standards. In addressing the issue of whether the federal legislation pre-empted the field of wage and hour regulation, the Plouffe court examined the legislative intent behind the federal act and concluded:

“The language of the Fair Labor Standards Act itself indicates a congressional intent not to preempt to the exclusion of state wage and hour laws.” 570 P.2d at 1108.

The Plouffe court was referring to the provisions of section 218 of the Fair Labor Standards Act which provides:

“§218. Relation to Other Laws
“(a) No provision of this chapter or any order thereunder shall excuse noncorhpliance with any federal or state law or municipal ordinance, establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum work week established under this chapter. . .”

We cannot agree with defendants’ somewhat tortured reading of section 218(a). We thus accept the reasoning in Plouffe, supra, and hold that the FLSA’s agricultural overtime exemptions do not affect coverage under Pennsylvania Minimum Wage Act.

Whether Employees of Independent Contractors, Particularly Those Who Grind Grain for Farmers, Fall Within the “Labor on the Farm” Overtime Exemption

Plaintiff does not dispute that the claimant performed grinding services for defendants’ customers and clients, but did not perform any such services on any of defendants’ own farms. Therefore, plaintiff contends claimant was an employee of an independent contractor who provided services to farmers; but his employment does not constitute “labor on a farm” under the Minimum Wage Act.

Plaintiff argues that generally, statutes should be liberally construed so as to effect their objectives, 1 Pa.C.S. §1921(c). Exemptions, however, should be narrowly construed against employers. Arnold v. Bankanowsky Inc., 361 U.S. 388, 392 (1960). Using these principles, plaintiff urges us to construe the “labor on the farm” exemption, 43 Pa.C.S. §333.105(a)(1) to apply to someone who is actually employed by a farmer rather than to someone who happens to be physically on farm land while working. In support of its position, plaintiff points to the definition of “labor on a farm” found in 34 Pa. Code §231.1(ii), which begins:

“The term ‘labor on a farm’ includes the employment of any person on a farm. . .”

It is plaintiffs position that this focus on employment refers to an employer/employee relationship between a worker and a farmer. The employee of an independent contractor who pérforms services on a farm is not part of such an employer/employee relationship; therefore, he or she should not fall within the. “labor on the farm” exemption.

Plaintiff carries this argument one step further and applies it specifically to employees of independent contractors who grind grain on a farm. It argues that grinding and milling grain on a farm is not “labor on a farm” as seen from the face of the definition of “labor on a farm” in 34 Pa. Code §231.1(ii). That definition states:

“The term ‘labor’ includes the employment of any person on a farm in connection with:
“(A) Cultivating the soil;
“(B) Raising or harvesting any agricultural or horticultural commodity, including the raising or hatching of poultry and the raising, shearing, feeding, caring for, training, and management of livestock, bees, fur-bearing animals, and wildlife;
“(C) The harvesting of maple sap;
“(D) The operation, management, conservation, improvement, or maintenance of a farm and its tools or equipment; or
“(E) The operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for removing, supplying, and storing water for farming purposes.”

Furthermore, plaintiff argues that because the U.S. Department of Labor has classified employment such as claimant’s as part of the “separating, crushing, milling, chopping and grinding” industry, and specifically classified claimant’s job as that of a “feed grinder” rather than a farm worker, the operation of feed mills has developed into a separate service which is unconnected with farming.

Defendants, however, claim that it is irrelevant whether the claimant worked for a farmer or an independent contractor. Defendants cite 43 Pa.C.S. §333.103(g), which defines an employer as “. . .any person or group of persons acting directly or indirectly in the interest of an employer in relationship to any employee.” Under this definition, defendants argue that both they and the farmer are the claimant’s employers, in as much as the farmer directs the claimant’s actions during on-site grinding. This definition, read in conjunction with the definition of “labor on the farm” covers any person, not merely employees of the farmer.

Addressing this reasoning to persons who grind grain on a farm for use by the particular farmer, defendants argue that although grinding grain has been done off the farm at grain mills, it is traditionally a farming operation.

Defendants argue that the description of a grain farm worker in the Dictionary of Occupational Titles, section 401.683-010 places the claimant squarely within subsections (b) and (d) of the labor on a farm exception. The description states that a grain farm worker:

“[Djrives and operates farm machinery to plant, cultivate, harvest and store grain crops such as wheat, oat, rye and corn, . . . performs a variety of other duties such as husking and shelling corn, lubricating and repairing farm machinery, unloading grain into elevators to store bins or eleyators.”

Defendants submit that when claimant operated the feed mill, he was harvesting a commodity, and when he repaired defendants’ machines, he was maintaining equipment.

The definition of harvesting is “a gathering of crops at any time.” Cook v. Massy, 38 Idaho 264, 220 P. 1088. The parties stipulated that grain to be ground was placed in or near the farmer’s barns or in some other central location on the farm, by the farmer or his émployees. Furthermore, the claimant neither cut nor removed the grain from the stalk. Given that circumstance, we cannot say that claimant did indeed harvest a crop, and we cannot accept defendants’ argument that employees of independent contractors, particularly one such as the claimant, fall within the “labor on a farm” exemption.

ORDER

And now, October 3, 1989, it is ordered and directed that defendants’ motion for summary judgment is denied. It is further ordered and directed plaintiffs motion for summary judgment is granted, and that claimant Frederick A. Reeder is entitled to damages pursuant to the Pennsylvania Minimum Wage Act, 43 Pa.C.S. §333.101 et seq., in the amount of $2,002.02.


source: Caselaw Access Project

author: SOKOLOVE, J,

license: Public Domain

text:
    Neshaminy Water Resources Authority v. 0.754 Acres of Land on Swauger Road, Plumstead Township, Bucks County

      Allan K. Grim Jr., for plaintiff.

      Robert Sugarman, for defendant.
    June 22, 1990
   SOKOLOVE, J,

The Neshaminy Water Resources Authority, a municipal authority organized by the Commissioners of Bucks County, filed two declarations of taking for perpetual easements and rights-of-ways to certain property in Plumstead Township, Bucks County, Pennsylvania. The declaration . docketed at no. 87-000602-15-4 concerned 0.754 acres of land owned by William F. Muller, Fred W. Muller and Louise Muller. The declaration docketed at no. 87-000567-12-4 concerned 0.438 acres of land owned by James A. Moran and Doris W. Moran, his wife. The condemnations were made pursuant to the Municipality Authorities Act of 1945, as amended, 53 P.S. §314, and authorized by resolutions of the NWRA Board at a regular meeting on January 15, 1987. The condemnations were made for the construction of water transmission lines in connection with the fabrication of the Point Pleasant Pumping Station and the Neshaminy Water Supply System (the infamous “Pump Project”). Condemnees Fred Muller and the Morans filed preliminary objections to the declarations of taking, which were consolidated by stipulation before us for decision. We denied and dismissed the preliminary objections. Fred Muller alone has appealed our decision.

The condemnee’s (Muller’s) preliminary objections consisted of the following:

(1) The condemnor is without authority to condemn, in that the project is not for a-public purpose, of the condemnor but rather for the private purpose and utilization of others.

(2) The condemnor is without authority to condemn in that the project is arbitrary and capricious, contrary to reason, and unneeded.

(3) The condemnor is without power to condemn, in that the project unnecessarily intrudes on the environment in violation of Article 1, section 27 of the Pennsylvania Constitution.

(4) The condemnor is without power to condemn, in that the condemnor has violated condemnee’s constitutional rights to due process of law and equal protection of the laws.

In denying the preliminary objections, we cited Fairview Water Company v. Pennsylvania Public Utility Commission, 509 Pa. 384, 502 A.2d 162 (1985) and Wilson v. Western Pennsylvania Water Company, 60 Pa. Commw. 312, 430 A.2d 1247 (1981) for the proposition that challenges to the power or validity of a taking of an easement or a right-of-way, as opposed to a fee interest, may not be raised by preliminary objections to a declaration of taking but must be raised through an action in equity.

Pursuant to our order, the condemnee filed a statement of matters complained of on appeal. To adequately discuss our decision in light of the condemnee’s complaints, we will repeat that statement here:

“(1) The court erred in relying on the Fairview Water case and the Western Pennsylvania Water case, in that both cases involve powers given to ‘public utility corporations,’ and the exercise of such power to acquire easements; whereas, the condemnor here, the Neshaminy Water Resources Authority, is not a public utility, , and is an authority under the Municipal Authorities Act, and therefore is not granted the condemnation power conferred on water companies by section 322 of the Business Corporation Law, nor by 15 P.S. §3241, relied upon in the Western Pennsylvania Water Company case, nor does it have the powers conferred on public utilities by the provision of the Corporation Code, 15 P.S. 1322.
“(2) Insofar as the condemnor is subject to the statutes applicable to public utilities, it may not exercise the right of eminent domain, by virtue of 66 Pa.C.S. §1104, which prohibits the use of eminent domain by a public utility unless and until such public utility has a certificate of public convenience required by section 1101 of the Public Utility Code, 66 P.S. §1101; whereas, the court below apparently regarded the condemnor as a public utility, but did not apply section 1104.
“(3) The power conferred by section 3241 of Title 15 relied upon by the court in Western Pennsylvania and by the court herein, is inapplicable to the condemnor, even if it is a water company, because such section was repealed insofar as it relates to non-profit corporations by sections 1102 and 1103 of the Non-Profit Corporation Law of 1933, 15 P.S. §§8102 and 8103, and repealed by the Act of November 15, 1972, P.L. 1063, no. 271, §5; whereas, the condemnor herein is a non-profit corporation, it is not granted the powers granted to companies by section 3241, and therefore the Western Pennsylvania case does not apply.
“(4) Insofar as the court relies upon the Fairview case, and that case, in turn, relies upon 15 Pa.C.S. §1322, such section does not control, and therefore, the Fairview case is not controlled, because section 1322 only applies to condemnations by public utilities, and while Fairview was a public utility, condemnor is not.
“(5) The taking herein requires that the condemnor take a freehold in the surface, in order to perfect its access, and moreover, requires that the condemnor take the right to exclusive possession of the surface for an indefinite period, in the event of need for repair; and therefore, the taking is required to be a fee simple absolute pursuant to section 1322(D), such that in the event section 1322 does confer the power of condemnation on the condemnor, the condemnor must take a fee simple, and pursuant to section 1322(H), must take therefore to come within the Eminent Domain Code.
“(6) The declaration of taking specified that the power of condemnation exercised herein by the condemnor was conferred on the condemnor pursuant to the Municipalities Authority Act, 53 P.S. 314, and therefore the court erred in construing the condemnation as occurring pursuant to the statutory authorities cited in the Fairview and Western Pennsylvania cases (if the court did so construe).
“(7) If, on the other hand, the court did not construe the condemnation as occurring pursuant to one of those authorities, then the provisions of the Eminent Domain Code apply because there is no exemption that is applicable. The exemption from the Eminent Domain Code procedures provided by 26 P.S. §1-901 does not exclude the Eminent Domain Code provisions, because the Municipalities Authority Act, unlike the Corporation Code, relied upon in the Fairview and Western Pennsylvania cases, provides no ‘procedure for condemnation’ and therefore application of the procedures of Article IV of the Eminent Domain Code would not modify any such statute.”

The condemnee’s criticism of our decision is based upon irrelevancies, distinctions without substance and misstatements of the law and the facts. We will supply a brief analysis of the cases we relied upon and our interpretation of them to explain our reasoning.

Both cases, Wilson v. Western Pennsylvania Water Company, 60 Pa. Commw. 312, 430 A.2d 1247 (1981) and Fairview Water Company v. Pennsylvania Public Utility Commission, 509 Pa. 384, 502 A.2d 162 (1985) hinged upon the saving clause in section 901 of the Eminent Domain Code, 26 P.S. §1-901 which was in effect at the time of the filing of the declaration of taking in this matter. The saving clause provided in pertinent part:

“This act shall not. . . repeal, modify or supplant any law insofar as it confers the authority or prescribes the procedure for condemnation of rights-of-way or easements for occupation by water, electric, gas, oil and/or petroleum products, telephone or telegraph lines used directly or indirectly in furnishing service to the public. If the condemnation for occupation by water, electric, gas, oil and/or petroleum products, telephone or telegraph lines consists of the taking of a fee, all the provisions of this act shall be applicable.”

In the Wilson case, landowners had instituted an equity action contesting the legality of a condemnation of easements by a water company, as well as seeking injunctive relief. The Commonwealth Court held that equity was the proper forum, indeed the only forum, in which to challenge the power to condemn an easement. After reviewing the aforementioned section 901, 26 P.S. §1-901, the court, specifically stated:

“Thus, those issues raised by appellants dealing with the scope and authority of the taking could not be raised by preliminary objections to a declaration of taking, the procedure mandated by section 406(a) of the Eminent Domain Code, 26 P.S..§1-406(a), since the code is not applicable to a challenge to the taking of an easement.” 60 Pa. Commw. at 316-7, 430.A.2d at 1249. (citations omitted)

The court noted that the relevant statutory authority granting condemnation power to water companies, 15 P.S. §§1322 and 3241, and establishing the procedure for such condemnations, 15 P.S. §§3021 through 3023, did not provide a method for challenging the power or validity of a condemnation. Recognizing that the landowners had the right to a determination of the legality of the taking, the court found that such a right existed in equity, as the Supreme Court had held in Redding v. Atlantic City Electric Co., 440 Pa. 533, 269 A.2d 680 (1970).

Similarly, the Supreme Court in the Fairview case was faced with the question of where jurisdiction lies to adjudge the scope and validity of a taking of a right-of-way. There, the Pennsylvania Public Utility Commission, in ruling upon an application of a public utility corporation pursuant to 15 P.S. §1322 for a finding that an electric transmission line was necessary or proper for the public, also assessed the scope and validity of the easement taken by the utility for the maintenance of the line. The court held that the Public Utility Commission had no power to determine the legality of a taking when a public utility attempts to condemn a less-than-fee interest in property and that the issues of scope, validity and damages of the condemnation must be determined by a court of common pleas exercising equity jurisdiction. To reach this result, the court reasoned that the condemnation power of a public utility was derived from the Business Corporation Law, 15 P.S. §1322(c) and the Eminent Domain Code, 26 P.S. §1-101 et seq. It then stated:

“The Eminent Domain Code sets forth generally the applicable procedures to guarantee due process in the taking of a person’s property. A public utility corporation is required to comply with the procedures set forth in the Eminent Domain Code when taking property for utility . services. 15 P.S. §1322(h). This includes filing of a declaration of taking, the appointment of a board of viewers, and assessment of monetary damages if an agreement cannot be reached between the parties. However, the Eminent Domain Code specifically holds it is not applicable to a condemnation of a right of way by a utility. 26P.S. §1-901. Therefore, the Eminent Domain Code explicitly excludes the type of case now before us, such that a condemnee cannot avail itself of the procedures set forth in the Eminent Domain Code when questioning the scope and validity of an easement.” 509 Pa. at 392, 502 A.2d at 166. (emphasis supplied)

From these appellate court opinions we drew the general conclusion that questions concerning the validity of a condemnor’s taking of an easement or a right-of-way were not cognizable under the procedures of the Eminent Domain Code but must be brought by an action in equity. Although the condemnors in these cases were a water company and a public utility corporation respectively, subject to certain provisions of the Business Corporation Law, the condemnors’ status was not critical to the plain and unambiguous statements by the courts that the Eminent Domain Code is not applicable to a less-than-fee taking. The fact that the condemnor in the instant matter, the NWRA, was not a water company or a public utility corporation, but was a municipal authority unaffected by the Business Corporation Law, was not significant for the purposes of our decision and did not detract from our use of the Wilson and Fairview Water Company opinions as valid precedents.

Our response, therefore, to paragraphs 1, 2, 3, 4 and 6 of the condemnee’s statement of matters complained of is simple. We did not consider the NWRA to be a water company nor a public utility, we did not rely upon 15 P.S. §§1322 and 3241 in any way, we did not regard the condemnation here as one permitted by 15 P.S. §§1322 and 3241 or any other enabling statutes referred to in the Wilson and Fairview Water Company cases, and we fully appreciated that the NWRA exercised its condemnation power pursuant to the Municipalities Authority Act, 53 P.S. §314. That the precise facts and the condemning entity here differed from those of the cases we cited does not matter. The complicated distinctions the condemnee attempts are obfuscatory. The Eminent Domain Code’s saving clause, which is applicable to this case, 26 P.S. §1-901, excepts condemnations of rights-of-way or easements for occupation by water for service to the public by any condemning authority from the code’s procedural requirements. The condemnation before us is of an easement and right-of-way for occupation by water for service to the public.

In paragraph 5 of his statement, the condemnee, for the first time in this litigation, improperly tries to alter the facts of record. The declaration of taking filed by the NWRA specifies a condemnation of an easement and right-of-way, not a fee simple. The condemnee cannot convert the taking to a fee simple by suggestion. In any event, given the declaration, the NWRA may not take a fee simple interest.

We reject the contentions in paragraph 7 of the condemnee’s statement for the reasons already stated. Whatever the law which empowers the condemnation, the courts have decreed that equity is the proper forum for the type of challenge mounted by the condemnee. Preliminary objections pursuant to section 406 of the Eminent Domain Code, 26 P.S. §1-406, may not repeal, modify or supplant the recognized procedure in equity. 26 P.S. §1-901. Moreover, the Municipalities Authority Act and the Business Corporation Law treat condemnation in the same fashion. The Wilson court pointed out that the corporate law, while providing for condemnation, did not provide a method for challenging the power- or validity of a condemnation. 60 Pa. Commw. at 317, 430. A.2d at 1249. Thus, equity filled the vacuum. Just as the various corporate and utilities statutes applicable in Wilson and Fairview Water Company, the County Code, applicable to the NWRA according to 53 P.S. §314, authorizes condemnation and sets forth procedures for the assessment and satisfaction of damages and the appointment of viewers. It does not, nor do the other statutes, contain procedures for contesting the power or right of a condemnor to condemn. Only the Eminent Domain Code in section 406 spells out this procedure.

For these reasons, we believe we correctly dismissed the condemnee’s preliminary objections. The preliminary objections could also have been overruled on other grounds. Pursuant to the Eminent Domain Code, preliminary objections to a declaration of taking are limited to and are the exclusive method of challenging the power or right of a condemnor to appropriate the condemned property unless the same has been previously adjudicated. 26 P.S. §1-406. The condemnee’s preliminary objections, by their own terms, are directed exclusively to the power and right of the NWRA to condemn for the Pump Project. All the issues raised by the preliminary objections have been previously and exhaustively adjudicated in the courts and administrative agencies of this commonwealth. We refer to Sullivan v. County of Bucks and Neshaminy Water Resources Authority, 43 Bucks L. Rep. 183 (1983), 44 Bucks L. Rep. 242 (1984), 44 Bucks L. Rep. 267 (1984), 46 Bucks L. Rep. 98 (1985), aff'd. 92 Pa. Commw. 213, 499 A.2d 678 (1986), alloc. den. 516 Pa. 623, 532 A.2d 21 (1986), 46 Bucks L. Rep. 270 (1985), 146 Bucks L. Rep. 354 (1985), 119 Pa. Commw. 150, 547 A.2d 452 (1988); Delaware Unlimited Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, 96 Pa. Commw. 361, 508 A.2d 348 (1986), alloc. den. 523 A.2d 1132 (1987), 99 Pa. Commw. 634, 513 A.2d 593 (1986), alloc. den. 527 A.2d 547 (1987), 121 Pa. Commw. 582, 551 A.2d 1117 (1988); Philadelphia Electric Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, 108 Pa. Commw. 7, 529 A.2d 1137 (1987).

      . This section was effective until October 1, 1989 and has since been partially repealed and replaced by an abbreviated saving clause.

      . Repealed effective October 1, 1989.

      . Repealed, and subject matter now found at 15 Pa.C.S. §1511.


author: FORNELLI, J,

text:
    Cernica v. Pennzoil

      William G. McConnell, for plaintiffs.

      Craig W. Jones and Evan C. Rudert, for defendants.
    May 30, 1990
   FORNELLI, J,

— This is an action brought by two individuals, John N. Cernica and Anthony T. Deramo, trading and doing business as Shenango Valley Sand and Gravel, for damages allegedly resulting from the use of defective diesel fuel in their equipment. Named as defendants are Pennzoil Products Company, the manufacturer/ supplier of the allegedly defective fuel, and Wayne Thomas, a Pennzoil manager from whom the fuel was purchased. Also named as a defendant is plaintiffs’ insurer, Rockwood Insurance Company. Shenango seeks to recover the monies paid -for the defective fuel, the cost of repairing the damaged equipment, $50,000 in lost revenue, plus interest, legal fees and costs.

Presently before the court is Rockwood’s motion for partial summary judgment, which for the reasons set forth below is granted.

Summary judgment is appropriate only when the record clearly “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). “All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.” Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). See also, Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 82-3, 468 A.2d 468, 470 (1983). Further, “the court is required, to give the non-moving party the benefit of all reasonable inferences which may be drawn from the facts.” Helinek v. Helinek, 337 Pa. Super. 497, 502, 487 A.2d 369, 372 (1985). (emphasis in original) Accordingly, the relevant facts in the matter now before the court must be reviewed and are set forth in the light most favorable to plaintiffs.

Shenango has its offices in Youngstown, Ohio, and a place of business in Jamestown, Mercer County, Pa. In June 1984, Shenango purchased diesel fuel from Wayne Thomas, at Pennzoil’s facility in Hubbard, Ohio. The fuel was delivered to Shenango in Jamestown, Pennsylvania. Shenango there used the fuel in three diesel engines which stopped operating in April 1985. Subsequent analysis determined that the problem with the three engines was the result of water contamination in the diesel fuel purchased from Thomas and Pennzoil the previous June.

Shenango was insured against certain property damage under an inland marine policy of insurance purchased from Rockwood. The policy covered all risks from external causes which resulted in damage to or direct physical loss of enumerated pieces of equipment. The initial policy covered the period from April 1, 1984,-until April 1, 1985, and was twice renewed to provide coverage until April 1, 1987. Pursuant to this policy of insurance, on April 22,1985, Shenango submitted a claim to Rockwood for the cost of repairs to the three diesel engines damaged by the contaminated fuel. In December 1985, Rockwood paid $1,186.54 in satisfaction of this claim.

In January 1986, one of these three engines, part of an H-90 Hough Front-end Loader, again broke down and again Shenango submitted a claim to Rockwood for the damage to the equipment. On March 14, 1986, Rockwood requested that Shenango sign a non-waiver agreement and advised Shenango of its intention to investigate the second breakdown of the front-end loader’s engine to determine whether it was caused by the contaminated fuel or was the result of normal wear, improper maintenance or one of several other types of loss excepted from coverage under the terms of the policy. Shenango signed the non-waiver agreement and advised Rockwood that it was an operational necessity that the damaged loader be operational and available for Shenango’s use by April 1, 1986.

Rockwood had the loader inspected at the Bonanza Equipment Company in Youngstown, Ohio, and the fuel pump was sent to the United Diesel Company in Beaver Falls, Pa. for analysis by J.E. Davidson of Automotive Consultants in Pittsburgh, Pa. The investigation was completed in mid-June of 1986 and on July 16, 1986, Rockwood advised Shenango that Mr. Davidson had concluded that the second breakdown of the loader’s engine was not related to the contaminated fuel, but was the result of fair wear and tear and poor maintenance of the equipment. Consequently, Rockwood declined to compensate Shenango for the second breakdown of the front-end loader.

On September 29, 1987, plaintiffs filed their complaint seeking damages of $60,149.36 in each of three counts, plus interest, costs and, in count III only, legal fees. The $60,149.36 includes the following: (1) $1,186.54 for the cost of repairs to equipment after the 1985 breakdown; (2) $8,962.82 for repairs, transportation and analysis of equipment pursuant to the 1986 breakdown; and (3) $50,000 lost revenue caused by the unavailability of the front-end loader for 30 production days after April 1, 1986. Shenango asserts the joint and several liability of Pennzoil and Thomas on the basis of breach of warranty in count I and negligence in count II.

In count III of its complaint Shenango asserts the liability of Rockwood on the basis that the damages relative to the second breakdown of the front-end loader are compensable under the terms of the policy of insurance. Shenango also asserts the liability of Rockwood on the basis of its bad-faith failure to expeditiously investigate and settle Shenango’s claim for the second breakdown. According to Shenango, its $50,000 in lost revenues is the result of Rockwood’s improper delay in evaluating the cause of the 1986 breakdown.

Without admitting liability as to any other damages sought by Shenango, Rockwood seeks partial summary judgment only as to the $50,000 claim for lost revenues. Rockwood asserts and plaintiff concedes that the lost revenues do not constitute a loss covered under the terms of the policy. Since the question of whether Rockwood’s actions in fact constituted bad faith has not been established by the record in its current state and is, moreover, an issue disputed by the parties, summary judgment cannot be granted on the factual issue of bad faith. Thus, the only issue now before the court is whether Shenango can possibly recover consequential damages in the form of lost revenue solely on the basis of the alleged bad-faith failure of Rock-wood to properly and promptly investigate and settle Shenango’s 1986 claim.

The Pennsylvania Supreme Court has held that the provisions of the Unfair Insurance Practices Act, 40 P.S. §§1171.1 through 1171.15, as an adequate remedy and deterrent to bad-faith settlement practices of insurance companies. D'Ambrosio v. Pennsylvania National Mut. Casualty Ins. Co., 494 Pa. 501, 505-8, 431 A.2d 966, 969-70 (1981). In DAmbrosio an insured sought to. collect under a policy of property insurance for storm damage to his motor boat and outboard motor. Further, on the basis of alleged bad-faith conduct by the insurer in summarily denying the claim for' repairs, the insured also sought punitive damages and damages for emotional distress. Id. at 503, 431 A.2d at 967. The Pennsylvania Supreme Court expressly refused to follow the lead of California and a minority of other jurisdictions is creating a “new tort” for bad-faith conduct by insurers. Id. at 505-8, 431 A.2d at 968-70, citing Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032 (1973); Bibeault v. Hanover Ins. Co., 417 A.2d 313, 318 n.4 (R.I. 1980). Justifying its stand, the DAmbrosio court stated:

“Surely it is for the legislature to announce and implement the commonwealth’s public policy governing the regulation of insurance carriers. In our view, it is equally for the Legislature to determine whether sanctions beyond those created under the act [UIPA] are required to deter conduct which is less than scrupulous.” Id. at 508, 431 A.2d at 970.

The general proscription provision of the UIPA states:

“No person shall engage in this state in any trade practice which is defined or determined to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance pursuant to this act.” 40 P.S. §1171.4.

Section 1171.5 of the UIPA sets forth an extensive listing of definitions of those acts and practices deemed unfair under the act. The UIPA further provides an administrative procedure to remedy violations of its provisions. 40 P.S. §§1171.7 through 1171.9. With regard to these provisions for administrative relief, the Supreme' Court in D Ambrosio stated:

“There is no evidence to suggest, and we have no reason to believe, that the system of sanctions established under the Unfair Insurance Practices Act must be supplemented by a judicially created cause of action.” D'Ambrosio, 494 Pa. at 507, 431 A.2d at 970.

Nevertheless, in Pennsylvania judicial recognition has been given to certain exceptions to D Ambrosios apparent blanket preclusion of direct tort actions against insurers for alleged bad faith conduct.

In Pekular v. Eich, 355 Pa. Super. 276, 513 A.2d 427 (1986), the Superior Court determined that DAmbrosio “was concerned only with the supplementing of the UIPA with as yet unrecognized law claims.” Id. at 290, 513 A.2d at 434. Consequently, the Pekular court did “not read DAmbrosio to preclude existing common-law remedies such as fraud and deceit.” Id. at 284, 513 A.2d at 431. (emphasis in original) Moreover, the Pekular court stated:

“We believe that the Legislature has determined that an insured, like any other consumer, may seek compensation for damages incurred as a result of unscrupulous conduct under the provisions of the CPL [Consumer Protection Law] and that the limited remedies of the UIPA do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” Id. at 290, 513 A.2d at 434.

Thus, the Superior Court held that the UIPA does not pre-empt either existing common-law remedies or other statutory remedies.

In Dercoli v. Pennsylvania National Mut. Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989) (plurality opinion), the Pennsylvánia Supreme Court considered whether an insured could bring an action against her insurer on the basis that the insurer breached an assumed duty of good faith and fair dealing when it undertook to advise the insured of entitlement to present claims, that legal counsel was unnecessary and that the insurer could be relied upon to pay the proper benefits. Id. at 473, 554 A.2d at 906. The opinion announcing the judgment of the court stated:

“The duty of an insurance company to deal with the insured fairly and in good faith includes the duty of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy or policies along with all requirements, including any time limitations for making a claim.” Id. at 478, 554 A.2d at 909.

On this basis the insured was permitted to maintain her action against the insurer. In Dercoli, the judgment of the court was set forth in an opinion by Justice Larsen, joined by Justice Stout; Justice Papadakos wrote a concurring opinion, joined by Justice McDermott; Chief Justice Nix dissented, as did Justice Flaherty, who filed a dissenting opinion, joined by Justice Zappala.

It cannot be assumed that by Dercoli the Supreme Court intended to overrule D Ambrosio. First, neither D Ambrosio nor the rule it enunciated are mentioned or discussed in Dercoli. Second, Dercoli deals with an insurer’s bad-faith counseling of its insureds rather than a bad-faith failure to pay or properly process claims. Third, in an opinion subsequent to Dercoli, Justice Larsen, joined by Justices Flaherty and Papadakos, characterized D Ambrosio as holding that the UIPA “ ‘serves adequately to deter bad faith conduct’ of insurance companies, and ‘applies equally to an insured’s attempt to recover punitive damages as well as damages for emotional distress.’ ” Baker v. Pennsylvania National Mut. Casualty Ins. Co., 522 Pa. 80, 83-4, 559 A.2d 914, 915 (1989) (Larsen,/., opinion in support of reversal, quoting D’Ambrosio, 494 Pa. at 508, 431 A.2d at 970. The court was equally divided; Justice McDermott, joined by Chief Justice Nix and Justice Zappala, in an opinion in support of reversal, stated that a new trial should be granted because of the prejudicial impact of irrelevant evidence).

Dercoli factually and legally is akin to the common-law recognized actions for fraudulent misrepresentation and deceit. The insurer in Dercoli voluntarily and specifically assumed a duty to advise and provide its insured with all benefits under the policy and advised her there was no need to seek legal counsel for that purpose. Having procured her reliance the insurer, acting out of a conflict of interest, then failed to inform the insured of benefits that were available to her. Thus, even if Dercoli’s lead opinion had been supported by a majority of the Supreme Court justices, it would not necessarily overrule D’Ambrosio by implication or even necessarily create an exception to its holding.

Finally, it should be noted that the General Assembly has recently enacted Subchapter G to Chapter 83 of Title 42 of the Pennsylvania Consolidated Statutes. This new subchapter deals with special damages and provides:

“§8371. Actions on insurance policies
“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.” Act 1990-6 §3. March 1990 Pa. Legis. Serv. 13.

However, this provision is not effective until July 1, 1990. Act 1990-6 §32(8), March 1990 Pa. Legis. Serv. 44 (Purdon). Therefore, this enactment has no apparent application to the matter now under consideration.

Shenango’s claim for $50,000 in lost revenues has not been brought against Rockwood either on the basis of an existing common-law cause of action sounding in tort (such as fraud or deceit) or on the basis of an existing statutory remedy. Moreover, Shenango has not alleged the lost revenues were the result of Rockwood’s bad-faith advice as to coverage, benefits or eligibility/claims requirements. Rather Shenango alleges that the lost revenues were the result of Rockwood’s bad-faith denial and delay in processing the claim for repair costs pursuant to the 1986 breakdown on the front-end loader. Therefore, the exceptions set forth in Pekular and Dercoli do not apply and this matter is controlled by the general principle established by the Pennsylvania Supreme Court in D’Ambrosio.

Accordingly, Shenango is precluded from seeking lost revenues not covered under the terms of its policy of insurance on the basis of Rockwood’s alleged bad faith in claim investigation and denial.

Hence, this

ORDER

And now, May 30, 1990, Rockwood Insurance Company’s motion for partial summary judgment is granted.

       “The plaintiffs concede that the contract of insurance provides coverage for loss or repair to the equipment and had the plaintiffs only alleged a recovery under the policy, then they would not be entitled to recover anything more than the cost of repairs.” Plaintiffs brief in opposition to Rockwood Insurance Company’s motion for summary judgment, at 2.


author: THOMAS, P.J.,

text:
    Bodosky v. Scullin

      Franklyn E. Conflenti, for 'plaintiffs.

      James A. Wood, for defendant.
    May 21, 1990
   THOMAS, P.J.,

Plaintiffs brought a complaint alleging malpractice against defendant physician as a result of alleged negligent preoperative advice and a negligently performed back operation on August 12, .1986. The operation was apparently a lumbar laminectomy with the excision of a disc. Defendant doctor acting through counsel attacked venue and a lack of specificity in the complaints. This court, speaking through Judge Gordon Miller, resolved these issues in a memorandum and order May 8, 1990, and determined this court was the proper venue and that the complaints were sufficiently detailed to adequately advise the doctor of plaintiffs’ alleged theory of recovery.

The matter is now back before this court on a discovery-issue.

DISCOVERY

We note initially that defendant’s motion to strike plaintiffs’ interrogatories was attáched to the interrogatories and apparently has not been officially filed in the Prothonotary’s Office. We direct the prothonotary to now file defendant’s motion to strike interrogatories (with attached interrogatories) and consider the same as having been officially filed sometime between March 21 and April 25, 1990.

As noted, plaintiffs interrogatories are attached to defendant’s motion to strike said interrogatories. These written interrogatories comprise two and one-half pages of instructions on how to answer the questions, 99 pages of typewritten questions, 241 numbered questions and 409 lettered subparts to the 241 questions.

Defendant contends that these voluminous “boilerplate” interrogatories are in violation of the letter and spirit of Discovery Rules 4005(c) and 4011(b), and impose unreasonable annoyance, burden and expense upon defendant.

Plaintiffs have filed a motion to dismiss defendant’s objections to their interrogatories, and at argument their contention was that to adequately proceed with this case all of their questions were relevant and they are entitled to answers to all of their questions.

We have neither the time nor inclination to analyze each of the 650 questions and write a learned treatise on when sheer volume and minutia constitute an abuse of discovery procedures. Defendant’s brief cites several examples of ludicrous inquiry and cite some of the following:

(A) Requiring the doctor to give the title, name of author, name of publisher, date of publication of each medical book he owned or had in his possession at the time of “the occurrences” (question 49).

(B) Books referred to or relied upon in diagnosing, treating and reaching an opinion regarding plaintiffs condition (question 52).

(C) The title, name, address, publisher of any medical journal, magazine, newsletter, circular, or any publications to which the doctor subscribes or has ever read in enlarging his medical knowledge (question 54).

(D) Whether any expert having been employed to assist defendant has ever been a witness in any lawsuit, the name of the lawsuit, the kind of suit, the name of the court, the date of the filing of the case and the name and address of any party for whom that person gave evidence (question 230).

We also note that question 12 asks for disclosure of the doctor’s gross income from medical practice in the last five years; any awards or honors received during his medical career and the details thereof (question 47); whether he considered the relationship with plaintiff to be a physician/patient relationship (question 57); and if so the date, place and reason for each professional dealing or contact the doctor had with the patient (question 58); whether the doctor ever made a physical examination of plaintiff and if so then describe in seven sub-paragraphs the results thereof (questions 75 and 76). We note that in answering question 76, it would take the doctor an inordinate amount of time to precisely answer the-seven sub-divisions of this question. We also note that for some unascertained reason, plaintiffs want to know whether the doctor ever sells or dispenses drugs to his patients (questions 164 and 165), and if so, the name of each person who has supplied him with drugs, a description of the records kept in dispensing said drugs, the amount of money he expended for the purchase of said drugs for the last five years and the profit margin he makes on dispensing said drugs.

We could go on and cite other questions in this abuse of the discovery process, but decline to do so. We are satisfied that this voluminous list of interrogatories constitutes a classic example of annoyance, abuse and violation of the discovery process. We do not intend to make individual rulings on all 650 questions in order to give guidance to plaintiffs’ counsel in redrafting the interrogatories. This seems to be a well-pled straightforward malpractice case, and we have no objection to interrogatories propounded that would aid in trial preparation or that would aid as a minimal background of information when the doctor’s deposition is taken. To require the doctor, under the guise of allowable discovery, to write an autobiography of his professional life and assume the burdensome duty of extensive investigation of the professional careers of others who have assisted in the operating room does not make sense, and we decline to require the doctor to do so. In sustaining the objection to the interrogatories in general, we will require plaintiffs to file a condensed list of material interrogatories not to exceed 25 questions. If there are relevant issues material to trial preparation, of this case and are relevant to plaintiffs’ theory of recovery against the doctor, the same could best be explored in a one-hour deposition rather than hours of laborious treatise writing by the doctor. We enter the following

ORDER

And now, May 21, 1990, defendant’s motion to strike plaintiffs’ interrogatories is granted. Plaintiffs may resubmit interrogatories within 30 days covering essential trial preparation information and said interrogatories shall be simple in form and not number more than 25.


author: MANNING, J.,

text:
    Commonwealth v. Cioppa

      Ted Dutkowski, assistant district attorney, for the commonwealth.

      Robert Garvin, for defendant.
    December 7, 1989
   MANNING, J.,

Before the court for sentencing is Victor Cioppa, age 21, having entered a plea of guilty to an information charging him with two counts of delivery of cocaine in violation of the Controlled Substance, Drug, Device and Cosmetic Act, section 13(a)(30).

In imposing sentence in this case, the court must consider the applicability of the recently enacted mandatory sentencing provisions for drug trafficking found at 18 Pa.C.S. 7508 (drug trafficking sentencing and penalties).

At the outset, it is- essential to set forth a brief factual narrative of the events which led to Mr. Cioppa’s conviction. On September 1, 1988, defendant, at the behest of an undercover Pennsylvania state trooper, made a purchase from an unknown individual of approximately one-eighth ounce of a controlled substanc.e which was subsequently weighed and tested to be 3.4 grams of cocaine. The $250 spent on this purchase was provided by the undercover officer who paid Mr. Cioppa $20 for his participation.

On September 6, 1988, defendant made a second purchase, this time one-quarter ounce, weighing 6.7 grams of cocaine, using $500, again provided by the undercover officer. For his participation on this occasion, defendant was permitted to “chip” or “pinch” a “line of cocaine,” an amount considered to be approximately one dosage unit for personal use.

In determining. the “amount of substance involved” for the purpose of sentencing,, we are faced with a question of first impression.

Is it appropriate for the court to aggregate the amounts involved upon this “first conviction” absent any instruction to do so in section 7508? Doing so in this case would result in the finding that the defendant delivered 10.1 grams of cocaine .triggering a mandatory three-year minimum sentence under 7508(a)(3)(h).

In the alternative, is the court obliged to impose sentence pursuant to 18 Pa.C.S. 7508(a)(3)(i) since each delivery was more than 2 grams but individually less than 10 grams, and to impose sentences consecutively when faced with multiple sales? Or is the court permitted to impose concurrent sentences on each delivery conviction?

A simple reading of section 7508, when applied to the equally simple facts of this case, raises serious and significant questions: What has the legislature mandated? A mandatory one-, two- or three-year minimum imprisonment? Surely such ambiguity was not intended by the act’s proponents, and yet the legislative history is devoid of meaningful direction or instruction.

It is clearly the duty and obligation of the court in interpreting and applying new law, to find and follow the intent of the legislature, in keeping with the precedents of law. “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed if possible to give effect to all its provisions.” (Legislative intent controls, 1 Pa.C.S. §1921). Unfortunately, an exhaustive search of the legislative record has yielded passionate rhetoric concerning the drug problem and the devastation of drug abuse, but is without thoughtful comment concerning the applicability and imposition of such penalties among the myriad of factual situations which regularly occur.

Where the platitudes and pronouncements of lawmakers fail to address the appropriate and practical application of new law, it becomes, of necessity, the duty of the court to interpret and discern, to give life and meaning to the law, with the use of judgment, experience and discretion. It is more than interesting to note that the fundamental purpose for the enactment of mandatory penal statutes is to strip courts of the discretion in sentencing which public opinion has rightly or wrongly labeled as abused.

In construing the instant statute, the court may appropriately rely upon the “plain meaning” of the statute, and the construction and interpretation of like statutes in other jurisdictions.

Scholars of the English language may diagram, conjugate and define, but the “plain meaning” of the words “amount of substance involved” in the phrase “shall ... be sentenced . . . upon first conviction when the amount of substance involved,” directs the court to total, or aggregate drugs sold in multiple deliveries at the time of conviction. That is simply the “plain meaning.”

It also makes little sense that continuous or repetitive acts in violation of the law should not subject the culprit to increasingly stiffer punishment. In the historic context of the law, recidivism has always been met with more severe sentencing. Likewise, it should not be more “profitable” to engage in a series of violations of the law than it would comparatively be to commit a single offense.

In our neighbor state of New Jersey, where the indictment or accusation so provides, the quantities involved in individual acts of manufacturing, distributing, dispensing or possessing with intent to distribute controlled substances are aggregated in determining the grade of the offense. Also, for violation of the United States Code, where there are multiple transactions or multiple drug types,' the quantities of drugs must be added. Guidelines, United States Sentencing Commission, Chapter 2, “Offense Conduct,” Part D 2D1.6, October 1987.

Clearly, the weight of authority and common sense dictate that punishment be designed to reach the totality of criminal conduct, gauged by its flagrant repetition as much as its singular enormity. We also note with interest certain legislation pending before the House of Representatives of this commonwealth that would impose mandatory incarceration for sale or delivery on “three separate occasions” within a 90-day period without regard to the quantity of the substances involved. This legislation serves to punish the mere repetitiveness of the conduct, not the totality.

We conclude that the proper method of construing and applying section 7508 is to aggregate the amount of substance involved where multiple offenses are to be considered together for sentencing. However, it is equally clear that the legislature failed to require such a result in the act itself, leaving to the court the discretion to deviate where the interests of justice require.

Having reached this conclusion, we must now turn to its applicability under the specific facts of this case.

In so doing, we are cognizant of the rhetoric which led to the passage of this legislation, particularly the pronouncements of the chief sponsor and Judiciary Committee chairman regarding the expected effect of this legislation. In response to concerns that the act would impose mandatory penalties on those undeserving of such severity, the senator stated:

“I think in all mandatory sentencing there are few cases which we can point out that we would prefer máybe not to have happened or maybe not to have come down as hard on them, but, in the long run, we who represent Pennsylvania and the society of Pennsylvania make a policy decision on the issue we are dealing with — that is sales of drugs . . . This bill is more ábout deterrents than punishment because it establishes if you do sell to a minor or if you are a big-time dealer — because the legislation provides that you have to have not a small amount of marijuana but over two pounds and over 2.5 grams before these mandatory sentences come in and up to 50 pounds of marijuana — that these are people who have these types of drugs in their possession, are people who are not the street seller but the individual who is involved in it for a business and the kind of people we all want to get off the street to prevent them from continuing their activities. . .” HB 668, February 23, 1988. Legislative Journal, Senate, Vol. 1. (emphasis supplied)

While the intentions of the sponsor were surely salutary, describing persons who deal in quantities of two to 10 grams of cocaine as “in it for a business” and “not the street seller” collides with reality. Generally speaking, low-level cocaine traffickers are users themselves, often addicted, who sell cocaine to supply their own habits. Street traffickers, users, accommodators, regularly deal in the quantities that were sold in this case, multi-gram and partial ounce amounts. It is the multi-ounce, pound, kilogram and multi-kilo dealer who is “involved in it for a business.”

While anyone selling addictive drugs is a danger to society and must be dealt with severely, it is extremely doubtful that the lawmakers contemplated a minimum three- to six-year sentence for a person who received $20 and a “line” of cocaine as a go-between in two purchases totalling three-eighths of an ounce for the sum of $750. Yet that is precisely the result that this legislation demands.

Based upon our analysis here, we conclude that the facts and circumstances of this case, coupled with common sense and the interests of justice, dictate that the court opt not to aggregate the substances involved and to impose the minimum of the mandatory sentences, concurrently. To do otherwise, we believe, would require the imposition of a sentence too severe for the conduct involved.

      . “(3) A person who is convicted of violating section 13(a)(14) or (30) of the Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and fine as set forth in this subsection:
      “(i) upon first conviction when the amount of the substance involved is at least 2.0 grams and less than 10 grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity and, upon conviction for another offense subject to sentencing under this section: three years in prison and $10,000'or such larger amount as is sufficient to exhaust the assets utilized in the proceeds from the illegal activity.
      “(ii) upon first conviction When the amount of the substance involved is at least 10 grams and less than 100 grams; three years in prison and a fine of $15,000. or such larger amount as is sufficient to exhaust the assets utilized and the proceeds from the illegal activity and, upon conviction for another offense subject to sentencing under this section; five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.” 18 Pa.C.S. §7508(a)(3)(i) and (ii).

      . 2C:35-5c provides:
      “Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.” L.1987, c. 106, §1, operative July 9, 1987. Amended by L.1988, c.44, §2, effective June 28, 1988.

      . House Bill 1279, Session 1989, introduced April 24, 1989.


author: McGINLEY, Member,

text:
    In re Anonymous No. 39 D.B. 88

      Disciplinary Board Docket no. 39 D.B. 88.
    November 28, 1988
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

McGINLEY, Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendation to your honorable court with respect to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

On August 27, 1987, respondent was charged with four counts of willful and knowing failure to file income tax returns for the calendar years 1982 through 1985, in violation of 26 U.S.C. §7203. On that date respondent appeared and pleaded guilty to counts 1 and 2. Respondent was sentenced to imprisonment for a period of one year, to be suspended after service of 10 days in a local jail, and a probation for a period of five years, “during which time he will undergo appropriate medical, psychological and psychiatric guidance in accordance with the approval of a probation officer.”

As a result of this sentence, Disciplinary Counsel filed a petition for discipline on May 3, 1988. The violations alleged in the petition were:

(A) D.R. 1-102(A)(4) — dealing with conduct involving dishonesty, fraud, deceit, or misrepresentation;

(B) D.R. 1-102(A)(6) — dealing with conduct that adversely reflects on fitness to practice law.

In addition, the conviction of respondent for a crime punishable by imprisonment for one year or more constitutes .independent grounds for discipline under rule 203(b)(1), Pa.R.D.E.

Subsequently, Hearing Committee [ ], consisting of [ ], convened and heard the evidence on June 1, 1988.

At the hearing, petitioner and respondent entered a stipulation which was received into evidence admitting that the convictions constituted independent grounds for discipline under rule 203(b)(1), Pa.R.D.E., whereupon the hearing committee made a finding that a prima facie violation pf rule 203(b)(1) had been established and'the hearing proceeded under rule 89.151 to receive evidence of the type of discipline to be imposed.

Hearing Committee [ ] filed its report on August 8, 1988, recommending a suspension for a period of one year, beginning from April 29, 1988.

Both petitioner and respondent filed briefs on exceptions to the report of Hearing Committee [ ]. Petitioner- filed its brief on exceptions on August 29, 1988, citing the fact that the hearing committee failed to address violations of D.R. 1-102(A)(4) and 1-102(A)(6).

Respondent’s brief on exceptions was filed September ,2, 1988. His brief stated that the hearing committee’s recommendation for discipline was excessive in that it failed to consider mitigating circumstances and the eight-month delay in the suspension of respondent by the Supreme Court.

These matters were referred to the board and were adjudicated on October 11, 1988.

FINDINGS OF FACT

(1) Respondent was born May 28, 1937, and has resided for most of his life in the [ ] area of Pennsylvania. He is a graduate of [ ] Law School and has practiced law in the city of [ ] since his admission in 1965.

(2) Respondent is married and is now separated. He lost his only son in an automobile accident which occurred in May 1978. Respondent suffered significant impairment of his ability to function in a normal manner.

(3) Respondent had not filed a federal tax return for the fiscal years 1977 through 1987.

(4) Respondent had not filed tax returns to the Commonwealth of Pennsylvania for the fiscal years 1977 through 1987.

(5) During the fiscal years 1977 through 1987 respondent earned sufficient gross income to require the filing of tax returns under both state and federal law.

(6) Since his son’s death, respondent has undergone a series of depressive periods during which he has been unable to function in the face of stress. One of the most pronounced symptoms had been his inability to maintain adequate financial records to prepare or file income tax returns for the past 10 years.

(7) Respondent’s failure to file tax returns in no way was based upon self-enrichment, but rather was the result of his severe depression and inability to face the problem.

(8) Since the death of his son, respondent has faced repeated emotional events which included the litigation arising from the accident, the criminal proceedings instituted against him, and the suspension of his privilege to practice law.

(9) On or about June 24, 1987, respondent undertook therapy with [A], outpatient therapist at the [ ] Mental Health Clinic, and has continued such therapy to the present.

(10) [A] testified that respondent had suffered from depression, was anxious and angry and he has been diagnosed as “an adjustment reaction with mixed emotional features.”

(11) [B], Esq., shares office space with respondent and considers him competent to practice law, provided he limits himself to areas that do not create anxiety.

(12) Respondent is a co-defendant in a civil action filed by a former client alleging negligent representation permitting the running of a statute of limitations.

(13) A lien has been filed against respondent by the Commonwealth of Pennsylvania, Department of Revenue, at no. [ ] of 1986, [ ] County, in the amount of $296.77, including principal and interest, which is unsatisfied.

(14) Respondent takes Valium and Prednisone under prescription.

(15) The record reveals no other arrests or prosecution of respondent in the past 10 years.

DISCUSSION

The pleadings and stipulation of the parties establish a prima facie violation of rule 203(b)(1), Pa.R.D.E. The sole issue before the board is the nature of the final discipline to be recommended.

Respondent presented mitigating evidence wherein he ascribed his conduct to the emotional upheaval he experienced resulting from the tragic death of his only son in an automobile accident which occurred in May 1978. He testified that the effects of the tragedy ultimately led to his separation from his wife and the gradual decline of his physical and mental health. He testified that he was unable to react to situations of stress or to organize his personal or fiscal affairs in any meaningful way. These circumstances had resulted in a steady decline in his professional practice. The matter of most obvious consequence was his failure to prepare or file state or federal income tax returns for the period 1977 through 1987, which ultimately resulted in his criminal sentence leading to his suspension by the Supreme Court of Pennsylvania.

The bbard gives full credence to his explanation of the devastating effects of his son’s death. The function of the board, however, must be to balance those circumstances with respondent’s duties and obligations as an attorney serving the public and as a representative of his profession. Respondent admits that he has had to gradually limit his practice because of his inability to cope with the problems and stress associated with many areas of the practice of general law. In addition, he admits that there are frequent occasions when he is simply unable to be present in his office or even to open his mail. It is difficult to conceive how respondent can effectively deal with the public and protect the interests of his clients given these admitted circumstances.

Respondent’s position is that he has done nothing based upon hope of personal gain and that he has been adequately punished by reason of his imprisonment, suspension, embarrassment and financial impoverishment. He believes that he is now at a point where he should be permitted to resume his status as an attorney, although he is not sure that he wishes to continue the practice of law.

The record reveals that throughout this 10-year period of non-payment of taxes respondent has not sought advice or assistance with regard to his tax difficulties, nor has he consulted a psychiatrist or psychologist for therapy. He repeatedly acknowledges his awareness throughout the period of his. inability to cope with his emotional problems, but offers no significant explanation for not seeking assistance.

He has, pursuant to the sentence of the court, undergone psychological therapy since June 24, 1987, as a non-paying outpatient. His therapist testified that he is attempting to have respondent focus on his problem (i.e. the death of his son) and thereby relieve his depression and anxiety. Further, respondent was diagnosed in September 1987 as “an adjustment reaction with mixed emotional features” by the staff psychologist. It is evident from the testimony that respondent’s difficulties merit his continuing his therapy.

Respondent’s admitted neglect in addressing the failure to file an income tax return for fiscal year 1987, coupled with his admission that he has currently curtailed the scope of his law practice, indicates that respondent has not resolved his emotional problems and is not, at this time, in a position to practice law.

Lastly, in most matters where failure to file income tax returns was involved, a suspension was generally recommended, usually for a three-month period. These cases include, but are not limited to: In re Anonymous no. 53 D.B. 81, 21 D.&C. 3d 673 (1982); In re Anonymous no. 71 D.B. 84, 35 D.&C. 3d 120 (1985), and In re Anonymous no. 68 D.B. 85, 41 D.&C. 3d 480 (1986). In light of the fact that respondent is currently serving a probation sentence, a suspension for three months and one day is deemed appropriate, given the circumstances. .

RECOMMENDATION

Based on the foregoing discussion, the Disciplinary Board of the Supreme Court of Pennsylvania recommends that respondent, [ ], be suspended from the practice of law for a period of three months and one day. The board further recommends that, pursuant to rule 208(g), Pa.R.D.E., respondent be directed to pay the necessary expenses incurred in the investigation and prosecution of this proceeding.

Mr. Schwartzman did not participate in the adjudication.

ORDER

And now, March 28, 1989, upon consideration of the Disciplinary Board’s report and recommendations dated November 28, 1988, and supplemental report and recommendation dated December .15, 1988, it is hereby ordered that [respondent] be and he is suspended from the bar of this commonwealth for a period of three months and one day, retroactive to April 29, 1988, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.

. Mr. Justice Larsen would enter an order suspending respondent for three months.


author: HILL, J.,

text:
    Mitchell v. City of Philadelphia

      James J. DeMarco, for plaintiff.

      John B. Day, for defendant.
    June 26, 1990
   HILL, J.,

On the evening of July 23, 1982, William Healy, then 23 years of age and an experienced and capable swimmer, entered a large swimming pool located in Franklin Delano Roosevelt Park in Philadelphia, Pennsylvania. Sometime earlier Mr. Healy and two minor children who accompanied him had gained access to the pool through a hole in the fence surrounding the immediate pool and deck area. At approximately 8:30 p.m. Mr. Healy was found floating beneath the surface of the water. Rescue personnel were summoned and Mr. Healy was taken to a hospital, where he remained in a coma until his death on December 27, 1982.

Mr. Healy’s estate, through its representative John Mitchell, sued the City of Philadelphia, which owned the park, alleging, inter alia, that the city was negligent in operating a defectively designed pool, improperly maintaining the fence and improperly supervising the pool. The trial was held on October 3, 4, 5, 6, 10, 11 and 12, 1989. On October 12, 1989, the court granted a directed verdict in favor of the city and against plaintiff having determined that the city was immune from liability under the Recreation Use of Land and Water Act of February 2, 1966, P.L. 1860 (1965), as amended, 68 P.S. §§477-1 to 477-8. In addition, the court noted that the Governmental Immunity Act, 42 Pa.C.S. §§8541-8542, was applicable. In his post-trial motion plaintiff contended that neither act is applicable.

I

Standard of Review

“A directed verdict may be granted only where the facts are clear and there is no room for doubt. . .” Cooke v. Travelers Insurance Co., 350 Pa. Super. 467, 471, 504 A.2d 935,. 936 (1986) (citations omitted); Person v. C.R. Baxter Realty Co., 340 Pa. Super. 537, 540, 490 A.2d 910, 911 (1985). In ruling on a motion for directed verdict, “the trial court must consider the facts in the light most favorable to the party against, whom the motion is made and must accept as true all evidence which supports that party’s contention and must reject all adverse testimony. . .” Cooke, supra, at 471, 504 A.2d at 936 (citations omitted); Bucchianeri v. Equitable Gas Co., 341 Pa. Super. 319, 328, 491 A.2d 835, 840 (1985); Person, supra, at 540, 490 A. 2d at 911.

A review of the evidence indicates that the directed verdict was properly granted.

II

Plaintiff Did Not State a Viable Cause of Action

Before applying the relevant immunity statutes to the facts of this case, the court must consider whether plaintiff established a viable cause of action under any of the three theories of negligence which he has advanced.

First, plaintiff contends that the city was negligent because the lifeguards on duty failed to properly supervise the pool. The three lifeguards testified that they went off duty at 7:30 p.m., and their time sheets, which were admitted into evidence, confirmed this. There was no testimony that this accident occurred prior to 7:30 p.m. or that the lifeguards were present when it happened. Accordingly, plaintiffs contention in this regard is without merit.

Secondly, plaintiff contends that there was a defect in the pool because it was too shallow to permit diving and that decedent drowned as a result of hitting his head on the bottom of the pool when he dove in. Plaintiffs expert witness, Richard Borkowski, testified that the pool was hazardous because the pool’s deep section was in the middle of the pool which made the pool more difficult to supervise, but never testified that the pool was too shallow. Furthermore, there was no evidence that deceased struck his head in the pool as there were no marks, lacerations or bruises on deceased indicative of head trauma. Accordingly, plaintiffs contention in this regard is without merit.

Plaintiffs final contention pertains to the hole in .Ihe fence. Three lifeguards who were on duty on the day of the accident acknowledged that trespassers frequently cut holes in the fence surrounding the pool in order to gain access to it after it had closed. These lifeguards testified that all holes were repaired promptly once they had been discovered and that on the day of the accident there were no holes in the fence at the time their shift ended. However, a witness who testified on behalf of plaintiff maintained that holes were frequently left unrepaired, and it is undisputed that the deceased entered the pool area through a hole in the fence.

Even if the hole was present at the end of the lifeguards’ shift on the date of the accident, its presence was not the cause of the injuries sustained by decedent; this is true regardless of whether the deceased’s legal status was that of trespasser, licensee or invitee. While the hole in the fence provided access to the pool, Mr. Healy’s injuries were due to his action in immersing himself in the pool itself.

To begin with, plaintiffs case, while unfocused, is erroneously bottomed on the principle that the city owed a duty to guard against the likelihood that the deceased, a competent 23-year-old adult who was an experienced and capable swimmer, might gain access to its pool and injure himself therein. In short, plaintiff invokes an “attractive nuisance” type theory for in discussing the duties which an owner of a pool must observe he states in supplemental point for charge no. 24: “This is because, as a matter of law, operating an unattended pool is a known danger to the public who are not aware of the hidden dangers of an unattended pool.” (emphasis supplied)

Section 339 of the Restatement (Second) of Torts entitled “Artificial Conditions Highly Dangerous to Trespassing Children,” is based on the “attractive nuisance” doctrine and was developed under the common law to protect children from their inability to appreciate dangers obvious to an adult. As noted in comment (b), the result of this riile “is a limited obligation to the child,' falling short of a duty to prevent all foreseeable harm to him, but requiring reasonable care to those conditions against which he may be expected to be unable to protect himself.” (emphasis supplied) Comment (c) is also instructive for it states:

“(c) Children. In the great majority of the cases in which the rule here stated has been applied, the plaintiff has been a child of not more than 12 years of age. The earliest decisions as to the turntables all involved children of the age of mischief between six and 12. The later cases, however, have included a substantial number in which recovery has been permitted, under the rule stated, wh$re the child is of high school age, ranging in a few instances as high as 16 or 17 years. The explanation no doubt lies in the fact that in our present hazardous civilization some types of dangers have become common, which an immature adolescent may reasonably not appreciate, although an adult may be expected to do. so. The rule stated in this section is not limited to ‘young’ children, or to those ‘of tender years,’ so long as the child is still too young to appreciate the danger, as stated in Clause (c).”

Since the deceased was not a child but a competent adult who was also an experienced and capable swimmer, the theory of section 339 does not apply.

Similarly other sections of the Restatement (Second) of Torts expanding on the common law duties of a possessor of land to trespassers (sections 333-339) and licensees and invitees (sections 34l, 341A, 342, 343, 343A) all include as an element of liability proof that the trespasser, licensee or invitee is unaware of the danger involved in his conduct. In this case it cannot be said that the deceased was unaware of the danger of entering into an unguarded pool.

Accordingly, plaintiff has not set forth a viable cause of action at common law.

m

The Governmental Immunity Act

Even if plaintiff has established a viable cause of action, his claim is barred by the Governmental Immunity Act, 42 Pa.C.S. §§8541-8542, under which local agencies are immune from liability unless the act complained of falls within one of the eight exceptions set forth in section 8542(b). Plaintiff asserts that the real estate exception, section 8542(b)(3), applies to the instant matter and immunity does not apply.

Section 8542(b)(3) provides in pertinent part:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(3) Real property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. . . .”

This section is inapplicable, however, because none of the three theories of negligence advanced by plaintiff invoke the application of the real estate exception.

Plaintiffs first contention is that there were lifeguards present when the accident occurred and that the city is liable for the negligent supervision of its employees provided. Assuming that the lifeguards were present, although there is no evidence to that effect, negligent supervision of real estate is not encompassed by the real estate exception. Prescott v. Philadelphia Housing Authority, 124 Pa. Commw. 124, 131, 555 A.2d 305, 309 (1989); Houston v. Central Bucks School Authority, 119 Pa. Commw. 48, 53-5, 546 A.2d 1286, 1289-90 (1988); McCloskey v. Abington School District, 115 Pa. Commw. 289, 291-3, 539 A.2d 946, 947-8 (1988); Wimbish v. School District of Penn Hills, 59 Pa. Commw. 620, 626, 430 A.2d 710, 713 (1981). Accordingly, this contention is without merit.

Plaintiff s second contention is that the pool itself was defective in that it was too shallow to permit diving. As noted in section II of this opinion, the evidence presented to substantiate this allegation was insufficient. Accordingly, plaintiffs second contention is equally without merit.

Plaintiffs final contention is that the hole in the fence surrounding the pool constituted a defect in the real estate. This contention is without merit because “the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by acts of others, whose acts are outside the statute’s scope of liability.” Mascaro v. Youth Study Center, 514 Pa. 351, 363, 523 A.2d 1118, 1124 (1987). (emphasis in original)

In Harding v. Galyias, 117 Pa. Commw. 371, 544 A.2d 1060 (1988), appeal denied, 521 Pa. 625, 557 A.2d 727 (1989), two arrestees committed suicide by hanging themselves from their cell bars after having been jailed for offenses related to intoxication. Plaintiffs alleged that defendants were negligent in the design and maintenance of jail facilities used for detaining intoxicated arrestees, for instance, by having jail cells- with only bars. The Commonwealth Court, relying on Mascaro, supra, stated:

“The injury for which appellants seek compensation in these cases is death. The act which resulted in death was suicide by hanging. Each act was committed by Scott Harding and Christopher Cooper themselves. The condition of the jail facilities may have made it. easier for the hanging to be accomplished, but the condition of the jail facilities themselves did not cause the death of either Scott Harding or Christopher Cooper.” 117 Pa. Commw. at 379-80, 544 A.2d at 1065.

While the hole in the fence provided the means of entry to the pool area it did not injure Mr. Healy in any way or lead to his death. Mr. Healy, a 23-year-old man, voluntarily entered the pool compound through the Hole in the fence well before the accident. The cause of Mr. Healy’s death was some occurrence within the pool, not the hole in the fence; there was no evidence that the actual swimming pool itself was defective. Furthermore, even if there was a viable cause of action, which is not the case, plaintiffs assertion that the deceased was an invitee and not a trespasser is irrelevant to the application of the Governmental Immunity Act. As stated before, the hole in the fence does not constitute a defect under that act and did not cause the injury.

IV

The Recreation Act

The court partially based the directed verdict on the Recreation Act, but on reconsideration must conclude that under the circumstances this was erroneous.

The Recreation Act was enacted to encourage landowners to make land and water areas available to the public for recreational purposes by limiting their ■ liability (68 P.S. §477-1). Under the Recreation Act the landowner who opens his or her land to the public “owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” (68 P.S. §477-3.) Liability is imposed, however, where: (1) there is a “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity;” or (2) the landowner charges a fee to those who enter upon the land. (68 P.S. §477-6.)

While the other requirements necessary to confer immunity under the Recreation Act were fulfilled in this case, there is the possibility that the jury could have found that the failure of the lifeguards to repair the hole was “willful.”

In granting the directed verdict the court relied on a line of federal cases in Pennsylvania which held that willfulness as used in the Recreation Act contained two elements: (1) actual knowledge of a danger and (2). that such danger is not obvious to those entering the premises. See Livingston by Livingston v. Pennsylvania Power & Light Co., 609 F.Supp. 643, 649 (E.D. Pa. 1985) and Capriotti v. Bunnell, 685 F.Supp. 462, 466-7 (M.D. Pa. 1985). Further research initiated by the court following the trial has revealed that the Commonwealth Court of this state does not use the definition of willfulness adopted by the federal courts. Evidently the federal courts have adopted the duty owed to a licensee as the standard to be applied under the Recreation Act but the Commonwealth Court has not done so. Accordingly, whether defendant’s conduct was willful must be reviewed in light of decisions by the Commonwealth Court.

In Jones v. Cheltenham Township, 117 Pa. Commw. 440, 444, 543 A.2d 1258, 1260 (1988), the Commonwealth Court, citing Rosa v. United States, 613 F.Supp. 469, 476 (M.D. Pa. 1985), interpreted willful to mean an act done voluntarily or intentionally or knowingly, as distinguished from accidentally.

As noted in section II, plaintiff advanced three theories of negligence on the part of the city. Plaintiffs contentions regarding the alleged lack of supervision of the pool and the allegation that the pool was not deep enough for diving in the area where the incident occurred do not articulate a willful failure to guard or warn. It is conceivable, however, that a jury could have found that there was a willful failure to repair the fence if they believed that the lifeguards had known of the hole in the fence at the end of their shift and had not repaired it. For this reason the court should not have granted the directed verdict on the basis of the Recreation Act.

While it may have been error to grant the directed verdict on the basis of the Recreation Act, the directed verdict was, nevertheless, proper for the reasons set forth in sections II and III of this opinion relating to plaintiffs failure to state a viable cause of action and the application of the Governmental Immunity Act.

ORDER

And now, June 26, 1990, upon consideration of plaintiff’s motion for a new trial, defendant’s response thereto and following oral argument, it is hereby ordered and decreed that the motion is denied and judgment is entered on the verdict.

      . Supplemental point for charge no. 24 was not included in the court’s charge.

      . Section 8542(b)(3) states that an intentional trespasser cannot take advantage of the real estate exception to immunity.

      . Black’s Law Dictionaiy, at 863 (5th ed. 1979) defines malicious in the following way:
      “Characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse.”
      There is no evidence from which a jury could find a malicious failure to guard or warn with respect to any of plaintiffs theories of liability.


text:
    In re Anonymous Nos. 63 and 64 D.B. 84
    Disciplinary Board Docket nos. 63 and 64 D.B. 84.
    October 20, 1988
   Letter to the Disciplinary Board of the Supreme Court of Pennsylvania:

Hearing Committee,

Hearing Committee [ ] has made a determination in this case under the abbreviated procedure described in section 89.181 of the Disciplinary Board Rules, which determination has been accepted by respondents and petitioner. The following brief summary of the case is made pursuant to section 89.181(c)(7).

A complaint against respondents was received by petitioner on December 2, 1982, which complaint was dismissed when it was found to be without merit. The investigation of the original complaint revealed, however, that respondents had unknowingly overdrawn their trustee account on September 22, 1982, causing difficulty with- that account for several months. Petitioner filed a petition alleging that respondents violated Disciplinary Rule 9-102(A) and a hearing was held on November 18, 1984. The hearing committee concluded that no violation had occurred.

By an order dated June 26, 1985, the board remanded the case to this committee “in order that the record may be supplemented and additional evidence received at a reconvened hearing in connection with an audit of all client accounts for the period September 1982 through March 1983, such audit to be conducted by an outside auditor selected by Disciplinary Counsel.” The independent audit was received by petitioner in December 1985 and a hearing was held on July 28 and July 29, 1988. Petitioner presented the testimony of the independent auditor, an attorney specializing in bankruptcy and one of respondents’ clients. Respondents testified on their own behalf and both parties submitted numerous exhibits.

In the interim between the November 1984 hearing and the July 1988 hearing, petitioner had made numerous other charges against respondents, accusing them of misrepresenting facts to the committee and to petitioner and accusing them of dealing dishonestly with various clients. Petitioner contended that evidence of this alleged dishonesty was relevant to the questions raised in the petition. Respondents made no objection and the committee admitted this evidence at the hearing.

After hearing extensive testimony and examining many exhibits, the committee is even more convinced than before that its conclusions reported to the board on April 8, 1985 were correct. Petitioner has placed respondents’ conduct under extreme scrutiny by intricately examining scores of respondents’ transactions with their clients; yet nothing presented to the committee caused it to believe that anything improper transpired in connection with respondents’ trustee account other than what was explained to the board in the report filed April 8, 1985, and nothing presented to the committee caused. it to believe that respondents had been anything but completely honest in all of their dealings with their clients, with petitioner and with the committee. Furthermore, petitioner was unable to locate any client dissatisfied with respondents’ handling of their money or underlying case entrusted to respondents.

This committee’s willingness to now find a technical violation of rule 9-102(A) was not caused by any additional evidence but by the belief that the acknowledgment of a technical violation may help bring this matter to a conclusion. The committee recognizes that reasonable minds can differ as to the application of this rule to inadvertent bookkeeping errors. Petitioner has cited two cases in a memorandum submitted at the hearing, which cases demonstrate that a guilty mind is not a prerequisite to a violation of this rule. In re Harrison, 461 A.2d 1034 (D.C. Ct. of Appeals 1983); In re Archer v. State of Texas, 548 S.W.2d 71 (1977). In both of these cases, however, the respondent-attorneys had mingled clients’ money in their general office accounts and had not maintained separate trustee accounts as did respondents in this case. Nevertheless, a liberal reading of those cases can support a finding of a technical violation of this rule by respondents.

The committee would like to caution any person reviewing this case-that many of the charges and accusations made against respondents appear at first blush to have merit. This initial appearance of validity has been caused by the very thorough and aggressive investigation by petitioner and by the complexity of the factual issiies involved. This initial appearance, however, does not' survive a complete examination of the testimony and the exhibits.

Respondents have repeatedly demonstrated to this committee that they have handled the legal affairs of their clients competently and honestly. The committee urges the board to accept its recommendation that no discipline be administered to these respondents who have undergone six years of inconvenience and expense for what, at the most, is a very minimal violation.

ORDER

And now, January 27, 1989, the report and recommendation of Hearing Committee [ ] dated October 15, 1988, pursuant to section 89.181 of the Disciplinary Board Rules is accepted, and there being no exceptions filed; it is hereby ordered and decreed, that the charges against [respondent 1] and [respondent 2] be dismissed.

Messrs. Gilbert and Padova dissent and would recommend informal admonition. Mr. McDonald abstained.