author: HORN, J.,

text:
    Schoffstall v. Nationwide Insurance Co.

      C.P. of York County,
    no. 94-SU-04190-01.

      James D. Greenberg and John D. Briggs, for plaintiff.

      Lee E. Ullman, for defendant.
    October 27, 1998
   HORN, J.,

— The defendant, Nationwide Insurance Company, has filed a motion to quash the subpoena issued to Ellen B. Gewen, Esquire. We will deny this motion.

This is a bad faith claim for punitive damages under 42 Pa.C.S. §8371. The bad faith claim arises out of prior litigation involving the plaintiff, Tony Schoffstall; namely, Hannigan v. Schoffstall (Adams County C.C.P. no. 93-S-633). The plaintiff was involved in a motor vehicle accident with Barbara Hannigan on August 2, 1991. At the time of the accident, Mr. Schoffstall was insured under a liability policy issued by Nationwide. The policy provided $100,000 of liability coverage per claimant.

Hannigan sued Mr. Schoffstall, and after trial, a jury returned a verdict for Hannigan in the amount of $119,522.79. Nationwide paid the entire amount, including the $19,522.79 excess verdict. Mr. Schoffstall later filed a complaint against Nationwide, seeking punitive damages for bad faith under 42 Pa.C.S. §8371. In his complaint, Schoffstall alleges that Nationwide acted in bad faith when, among other things, it:

“(a) Proceeded to trial in suit, knowing that there was no possibility of a defense verdict, and that there was a substantial risk of an excess verdict being entered against plaintiff, Tony Schoffstall;

“(b) Refused to settle suit within the policy limits when the defendant had the opportunity to do so, in an attempt to save defendant money off of its policy limits, despite the risk of an excess verdict, thereby intentionally placing defendant’s own financial interest above those of its insured plaintiff, Tony Schoffstall;

“(c) Refused to advise plaintiff, Tony Schoffstall, that a jury trial in suit posed a risk of excess verdict to the detriment of plaintiff’s financial well-being;

“(d) Refused to afford plaintiff, Tony Schoffstall, an opportunity to consult independent counsel prior to the trial of suit;

“(e) Understaffed and over utilized defendant’s in-house counsel in a concerted effort to save defendant money, to the detriment of plaintiff, Tony Schoffstall’s, legal and financial well-being; such deliberate practices constituting the intentional elevation of the defendant’s financial interests above those financial interests of plaintiff, Tony Schoffstall.”

During the discovery phase of this case, the plaintiff deposed several employees of Nationwide. Plaintiff’s counsel deposed the claims adjusters involved in the Hannigan v. Schoffstall case, as well as the claims manager and Mr. Schoffstall’s trial counsel. In addition, the Honorable John C. Uhler, president judge, ordered Nationwide to produce for deposition David Cole, a regional claims manager for Nationwide. Judge Uhler limited the inquiry to Cole’s financial considerations, practices, procedures, and policies in utilizing or over utilizing in-house counsel. Judge Uhler later directed that Nationwide produce for deposition John Flynn, former director of trial division for Nationwide. Plaintiff’s counsel also deposed David Bakken, director of trial division, to testify concerning Nationwide’s policies, procedures and practices in utilizing trial division.

Recently, the plaintiff served a deposition subpoena on Ellen B. Gewen, Esquire. Ms. Gewen, until July 25, 1998, worked for Nationwide as a claims legal counsel and had direct responsibility for overseeing the defense of the present bad faith lawsuit on behalf of Nationwide. Ms. Gewen apparently was not involved in the Hannigan v. Schoffstall case. Nationwide has filed the present motion to quash the subpoena served on Ms. Gewen, contending that any testimony from Gewen is irrelevant to the issues involved in the present case and is protected by the attorney-client privilege and the work product doctrine. The plaintiff filed a brief opposing the motion.

DISCUSSION

The law governing the attorney-client privilege is found at 42 Pa.C.S. §5928 and provides:

“In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.”

In order to invoke the attorney-client privilege under Pennsylvania law, a party resisting discovery must show: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar or a subordinate and is acting as a lawyer in connection with the communications; (3) the communication relates to a fact of which attorney was informed by client without presence of strangers for the purpose of securing an opinion of law, legal services, or assistance in some legal proceeding and not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and not waived by the client. Marian Bank v. Lawrence Voluck Associates Inc., 26 D.&C.3d 48, 51 (1982).

The attorney work product rule is set forth in Pa.R.C.P. 4003.3 and provides in pertinent part as follows:

“Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories . . . .”

The explanatory note to Rule 4003.3 clearly spells out the subject matter, which is precluded from discovery as the work product of the attorney. It states: “The rule is carefully drawn and means exactly what it says. It immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories, nothing more.”

The court notes that the issue at trial in the present bad faith case will be whether Nationwide had a reasonable basis for its decision to proceed to trial in the Hannigan v. Schoffstall case. Nationwide’s decision to litigate the case shall be measured against the following standard: “there is no absolute duty on the insurer to settle a claim when a possible judgment against the insured may exceed the amount of the insurance coverage. . . . The requirement is that the insurer consider in good faith the interest of the insured as a factor in coming to a decision as to whether to settle or litigate a claim against the insured. . . . But, that does not mean that the insurer is bound to submerge its own interest in order that the insured’s interest may be made paramount. It means that when there is little possibility of a verdict or settlement within the limits of the policy, the decision to expose the insured to personal pecuniary loss must be based on a bona fide belief by the insurer, predicated upon all of the circumstances of the case, that it has a good possibility of winning the suit. While it is the insurer’s right under the policy to make the decision as to whether a claim against the insured should be litigated or settled, it is not a right of the insurer to hazard the insured’s financial well-being. Good faith requires that the chance of a finding of nonliability be real and substantial and that the decision to litigate be made honestly.” Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 470-71, 134 A.2d 223, 228 (1957).

In the present case, the plaintiff wishes to depose Ms. Gewen to determine (1) Nationwide’s “intent/corporate philosophy” as it relates to whether the company considers the insured’s best interests in situations where an excess verdict is a possibility and (2) if Nationwide ever attempted to influence or suppress any testimony by Ms. Gewen. (See orders attached to plaintiff’s brief in opposition to motion to quash.) As for the first purpose for Ms. Gewen’s testimony, namely, to discover Nationwide’s intent/philosophy, the plaintiff contends that her testimony is necessary to corroborate some of the statements made by Jay Carlin, Esquire, a former Nationwide claims attorney, at his deposition. Mr. Carlin testified that, in his opinion, certain management-level individuals at Nationwide thought that the attorneys representing policyholders owed a duty to Nationwide, not the policyholder. (Carlin deposition, p. 39.) According to Carlin, the managers that he spoke with believed that the decision whether to settle or try a case should be based on the best interests of Nationwide rather than the best interests of the insured. (Carlin deposition, p. 39.) Carlin further testified that he was admonished for giving deposition testimony unfavorable to Nationwide in the past, and there was an unspoken rule that employees of Nationwide should not provide testimony unfavorable to the company. (Carlin deposition, pp. 54-55.)

The plaintiff argues that Nationwide is now taking the position that Mr. Carlin’s testimony is not relevant to this bad faith case because Carlin handled commercial lines of insurance rather than personal lines, such as automobile insurance. Plaintiff contends that Ms. Gewen’s testimony is relevant because she handled personal lines, such as automobile insurance. According to the plaintiff, Ms. Gewen’s deposition is needed to discover whether the intent/philosophy of the management of Nationwide in the commercial lines, as described by Mr. Carlin, was also evident in the personal lines managers who had direct oversight for the handling of the Hannigan v. Schoffstall case.

The court finds initially that neither the attorney-client privilege nor the work product rule precludes the testimony of Ms. Gewen for the limited purposes requested by the plaintiff. The plaintiff does not seek to ask questions or obtain information regarding events that occurred after the filing of the present bad faith case. Instead, the plaintiff seeks to discover whether the intent/philosophy of Nationwide managers in commercial lines, as testified to by Jay Carlin, Esquire, is evident in the personal lines of insurance. In addition, the plaintiff seeks to discover whether Nationwide has attempted, at any time, to influence or suppress any testimony by Ellen Gewen, Esquire. Given these limited areas of inquiry, the attorney-client privilege would not bar the deposition testimony of Ms. Gewen, since the areas of inquiry would neither delve into the legal advice of Ms. Gewen regarding specific cases nor discussions as to tactics to be utilized in the defense of particular cases. Marian Bank v. Lawrence Voluck Associates Inc., supra. See also, U.S. Fidelity & Guaranty Company, 809 F. Supp. 355 (M.D. Pa. 1992). Moreover, Ms. Gewen’s testimony would not involve disclosure of her mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. See Pa.R.C.P. 4003.3.

The court also concludes that Ms. Gewen’s testimony would be relevant to the subject matter of the present claim. Under Pa.R.C.P. 4003.1, a party may obtain discovery regarding any matter, which is relevant to the subject matter of the pending action. Here, the plaintiff must prove that Nationwide did not have a reasonable basis for proceeding to trial in the Hannigan v. Schoffstall case. Nationwide’s philosophy/intent with regard to its duty to the insured is relevant to the issue of whether there was a reasonable basis for the decision to proceed to trial. Ms. Gewen’s knowledge of Nationwide managers involved in personal lines of insurance, who believe that their duty to the company supersedes their duty to the policyholder, may be probative of the company’s philosophy/intent in handling excess verdict cases. Likewise, if Nationwide has in the past attempted to influence or suppress any testimony by Ms. Gewen, this may be probative of the company’s philosophy/intent with regard to litigation in general. Because Ms. Gewen’s testimony may be relevant to the issues in the present bad faith claim, the motion to quash the subpoena of Ellen B. Gewen, Esquire, shall be refused.

Accordingly, we shall direct the following:

(1) The motion to quash the subpoena of Ellen B. Gewen, Esquire, shall be refused. The plaintiff shall be permitted to depose Ellen Gewen, Esquire, but may inquire only as to whether the testimony of Jay Carlin, Esquire, regarding the philosophy/intent of Nationwide managers who handle commercial lines of insurance, applies to managers who handled personal lines of insurance during the time of the Hannigan v. Schoffstall case. The plaintiff shall also be permitted to inquire whether Nationwide has at any time attempted to influence or suppress any testimony by Ellen Gewen, Esquire.

(2) The prothonotary shall provide notice of this opinion and order as required by law.


source: Caselaw Access Project

author: FIELD, J.,

license: Public Domain

text:
    Achuff v. Episcopal Hospital
    C.P. of Philadelphia County,
    January Term 1993,
    no. 1058.

      Frank Rothermel, for plaintiff.

      Donald Ladd, for defendant Episcopal Hospital.

      Alexander R. Ferrents, for defendant Carol Allen and Vanguard.

      Paul A. Becker Jr., for defendant Ferstein.
    December 4, 1998
   FIELD, J.,

— Plaintiff, Sharon Achuff, appeals from the denial of her post-trial motion following a jury verdict for the defendants on June 17, 1998. In her motion, the plaintiff raised and preserved only two issues upon which to base her appeal. First, plaintiff alleges that the court erred in allowing defendant David Forstein D.O., to give opinions as a defense expert when he was called as on cross during plaintiff’s case in chief. Second, the plaintiff alleges that the court erred in allowing counsel for defendant Forstein to have the final closing speech to the jury, because Dr. Forstein had testified, admittedly only after being called by the plaintiff. For the following reasons, both arguments are without merit, and the post-trial motion was properly denied.

A jury trial commenced in this medical malpractice action on June 5, 1998. This action stems from complications suffered by the plaintiff during and after the birth of her twins in June of 1992. Plaintiff alleged that she suffered severe blood loss during delivery and was discharged too quickly from the hospital. She claimed that as a result of the alleged malpractice, she developed Sheehan’s syndrome, a condition causing pituitary gland failure, and necessitating steroid, thyroid and estrogen replacement therapy for the rest of her life. Sheehan’s syndrome is a rare condition, and the central issue at trial was not whether the plaintiff suffered from this problem, but rather what caused it.

Plaintiff’s first argument is that the court erred in allowing defendant David Forstein D.O. to offer expert opinion testimony. Dr. Forstein was called as a witness by the plaintiff in her case in chief. During his examination by plaintiff’s counsel, conducted as if on cross, Dr. Forstein referred to Sheehan’s syndrome in his discussion of plaintiff’s condition. After several hours of questioning by plaintiff’s counsel, counsel for defendant, Carol Allen M.D., questioned Dr. Forstein about Sheehan’s syndrome. Prior to trial, Dr. Forstein had been identified as an expert on his own behalf. Additionally, plaintiff had deposed Dr. Forstein. Plaintiff objected to the doctor’s testimony on the ground that he had not provided a report containing his opinions. However, a report is not required where, as here, the proposed expert is a party and has been deposed. Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987).

In Neal, the court addressed similar facts, and discussed Rule 4003.5 of the Pennsylvania Rules of Civil Procedure in conjunction therewith. Rule 4003.5 provides that where an expert is retained for trial, the other party to the litigation is entitled to the substance of the facts and opinions to which the expert will testify as well as the bases for those opinions. When such information is not provided, the remedy is the preclusion of the expert testimony at trial. However, as the Neal court noted, and as noted in the official comment to Rule 4003.5, preclusion is not required where the defendant is himself an expert, such as a physician, and the alleged improper exercise of his professional skills is at issue. The reason for this is that his information was not acquired in anticipation of litigation, “but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” Neal at 472 n.3, 530 A.2d at 108 n.3. Furthermore, the subject of Sheehan’s syndrome was raised during counsel for plaintiff’s examination of Dr. Forstein. Since the door had been opened to that subject, counsel for defendant Allen was entitled to follow up on that topic. Consequently, Dr. Forstein was properly allowed to give opinion testimony.

The second error alleged by the plaintiff relates to the order in which closing arguments were presented. Initially, it must be noted that the length and order of speeches is committed to the sound discretion of the trial court. Pa.R.C.P. 223(a)(3). Under Philadelphia local rules, a plaintiff is not entitled to make a rebuttal speech after the speech of a defendant who has offered no evidence. Specifically, Local Rule *223.1 provides:

“(D) After the evidence is closed, only one attorney for each party or group of parties may address the jury. The attorney for the party or group of parties having the burden of proof shall first sum up, stating explicitly the grounds relied upon. The attorney for each adverse party or group of parties may then address the jury, and, if any such party has offered evidence, the attorney who commenced may conclude, restricting himself or herself to answering the arguments advanced.” Phila. C.R. *223.1(D).

In the instant matter, plaintiff’s counsel made his closing speech. Next, counsel for defendant Allen spoke to the jury. Plaintiff was then permitted to rebut that argument, after which counsel for defendant Episcopal Hospital and defendant Forstein spoke to the jury. Neither Episcopal Hospital nor Dr. Forstein had presented evidence. Dr. Forstein was a witness, but he was called by the plaintiff and asked for opinions by counsel for Dr. Allen. His attorney did not elicit any opinions from him. There is no dispute that counsel for the hospital presented no evidence. Therefore, under the local rule quoted above, the trial court properly allowed counsel for defendants Episcopal Hospital and Dr. Forstein to have the last speeches.

For all of the above reasons, the judgment entered on July 22, 1998, should be affirmed.


author: EBY, P.J.,

text:
    Lehman v. Lebanon Coach Co.
    C.P. of Lebanon County,
    no. 1989-01796.

      Kenneth C. Sandoe, for plaintiffs.

      Timothy J. Abeel and Jon Michael Dumont, for defendant Lebanon Coach.

      Christopher J. Coyle, for defendant McKinney.
    December 1, 1998
   EBY, P.J.,

— In this case, which began in 1989, plaintiffs assert that the negligence of defendants in January of 1988 caused the minor plaintiff to lose her right leg. The minor plaintiff, a 15-year-old school student, had disembarked from a public transit bus owned by County of Lebanon Transportation Authority (COLT) and operated by Lebanon Coach Company and was crossing a street to get to her school when a car operated by Beth McKinney struck her, pinning her to the bus from which she had disembarked. The bus was operated by Lebanon Coach under a contract with COLT.

Plaintiff and her parents sued Beth McKinney, Lebanon Coach, COLT, the City of Lebanon, the Lebanon School District, and the Pennsylvania Department of Transportation. Lebanon Coach, learning that COLT’s insurance carrier did not consider that it had a duty to defend the company, filed a declaratory judgment action asking us to order the carrier to defend the suit. (Action no. 90-01366.) The insurance carrier for Lebanon Coach joined in that suit, asking us to determine that it was not required to defend the suit. We determined that neither the carrier for Lebanon Coach was required to defend Lebanon Coach nor the carrier for COLT was required to defend. On appeal, the Superior Court reversed in part, holding that the insurance company covering COLT had an obligation to defend Lebanon Coach, as the claims made against Lebanon Coach fell within the coverage provided by the policy it had issued to COLT. Lebanon Coach Co. v. Carolina Casualty Insurance Co., 450 Pa. Super. 1, 675 A.2d 279 (1996).

The government entities sued by the Lehmans in this matter then filed motions asking us to dismiss them from the case, contending state law immunized them from liability. We agreed, finding that the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541, prevented plaintiffs from recovering damages from PennDOT, COLT, the City of Lebanon and the Lebanon School District. Our holding was affirmed on appeal, the Commonwealth Court holding that the acts claimed by plaintiffs to subject these governmental entities to liability did not fall within the exceptions of the Tort Claims Act. Lehman v. County of Lebanon Transportation Authority, 143 Pa. Commw. 416, 599 A.2d 259 (1991).

Both the plaintiffs and defendant Lebanon Coach now assert that all the material facts of the matter are established, and those facts enable us to grant judgment as a matter of law. Plaintiffs assert that the facts entitle them to judgment. Lebanon Coach asserts that the facts entitle the company to judgment. In order to determine which, if either, of these conflicting assertions is correct, we must review the record briefly.

The plaintiff asserts that she was a minor on January 11, 1988, when she boarded a public transit bus. She paid her fare and rode the bus to the bus stop near the intersection of Cornwall Road and Hauck Street in Lebanon.

Plaintiff had ridden this public transit route on numerous prior occasions. The place where plaintiff got off on this fateful day was a regular stop on the bus route and a location where the bus always stopped to allow passengers to disembark. Plaintiff exited the front door of the bus along with several other passengers.

Plaintiff then walked north on the public sidewalk bordering Cornwall Road to a point behind the stopped bus. She stepped into the marked crosswalk to look for traffic in order to cross Cornwall Road to get to her school, Lebanon High School. At that point, a car driven by Beth McKinney (now Beth Bittner) turned right from Hauck Street onto Cornwall Road and struck plaintiff, pinning her between the McKinney car and the end of the stopped bus, which resulted in the amputation of her right leg.

Plaintiffs take the position that Lebanon Coach Company was responsible for placing the minor plaintiff at the accident site, and had a duty to ensure her safe travel to the other side of Cornwall Road. Since Lebanon Coach failed in its duty, plaintiffs argue, Lebanon Coach is liable to them. In the alternative, plaintiffs argue that Lebanon Coach should have declined to drop the minor plaintiff at the site designated by COLT as the bus stop, knowing that it was a dangerous spot, and should have taken her to a point directly in front of the school in order to ensure her safe travel to the school.

Lebanon Coach does not dispute the above facts. Lebanon Coach, however, takes the position that its duty to plaintiff consisted of transporting her safely on its bus from the site at which she entered it to the site at which she disembarked. What happened to plaintiff after she was on the sidewalk, Lebanon Coach argues, while tragic, is not its responsibility.

The parties have submitted impressive arguments, which incorporate conflicting cases and statutes in support of their positions. We have carefully reviewed the proffered materials, along with other information produced by our own research. We now will briefly synopsize the arguments presented.

Plaintiff cites a number of cases in support of her assertion that the duty of the operator of a common carrier to a passenger begins at the point of her entry into the vehicle and ends only after her arrival at a safe location. Plaintiff cites Lehman v. Carolina Casualty; Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 216 A.2d 60 (1966); Cherillo v. Steinberg, 118 Pa. Super. 485, 180 A. 115 (1935); Lazor v. Banas, 114 Pa. Super. 425, 174 A. 817 (1934) and Philadelphia and Reading Railroad Co. v. Boyer, 97 Pa. 91 (1881). At oral argument, plaintiffs’ counsel suggested to this court that a number of other cases supported his position that a driver’s duty to a passenger continues until the passenger, after leaving the vehicle, reaches a place of safety.

We have examined a number of cases on this topic. The first group of cases addresses whether a pedestrian who is struck after leaving a vehicle can be considered a covered person under the vehicle’s insurance policy, thus causing the vehicle’s insurer to be liable for medical expenses. In Tyler v. Insurance Company of North America, 311 Pa. Super. 25, 457 A.2d 95 (1983), the plaintiff was a passenger on a private bus when the driver stopped at a passenger’s request and let her and others off along the road. A motorcycle traveling on the right side of the bus hit her. The trial court held that the plaintiff was not a passenger of the bus after she stepped from it, allowing the bus insurer to deny her medical benefits. On appeal, the Superior Court held the plaintiff was still an occupant of the bus when she was hit, as she had not yet severed all connection with the bus, as she would have done had she reached the side of the road safely, stating the plaintiff was “vehicle-oriented,” not “highway-oriented.” The court held that the bus company had a duty to afford plaintiff an opportunity to alight safely, and since the bus stopped five feet from the shoulder of the road, plaintiff was vehicle-oriented until she reached the shoulder. In any event, as the bus was “involved in the accident,” its insurance policy was the first source of benefits under the No-Fault law.

In Walker v. Port Authority of Allegheny County, 323 Pa. Super. 427, 470 A.2d 993 (1984), the plaintiff was discharged from a transportation authority’s bus at a comer. After she left the bus but before she got to the curb, she was shuck by a car passing on the right. The trial court held that under the No-Fault Act, the plaintiff was not a passenger of the bus at the time of the accident, and so the transportation authority was not responsible for paying her no-fault benefits. On appeal, the Superior Court held that under the No-Fault Act, when a bus discharges a passenger and the passenger is struck by a car before she can reach the curb or another place of safety, for purposes of the No-Fault Act the bus was “involved in the accident.” Since the bus was “involved,” the court held that its owner was liable for basic loss benefits.

In Frain v. Keystone Insurance Co., 433 Pa. Super. 462, 640 A.2d 1352 (1994), the plaintiff was getting into a vehicle when she heard another person yell “ran,” and saw a track approaching her. She ran from the vehicle and tripped over a flowerbed about three feet away. She asked for benefits from the car’s insurer, but was denied. Considering summary judgment motions in the ensuing declaratory judgment action, the trial court held that plaintiff was not an occupant of the vehicle at the time of the accident and was not entitled to benefits. On appeal, the Superior Court held that because plaintiff had placed her purse in the car and was in the process of entering the vehicle when she ran away from the approaching truck, she was an occupant of the vehicle for purposes of interpreting the insurance company’s duty toward her. Plaintiff was in close proximity to the insured vehicle and was “vehicle-oriented” at the time of the accident, the court held. Plaintiff’s entering of the vehicle was a transaction essential to its use. Finding that she was an “occupant” of the insured vehicle within the meaning of the insurance policy, the Superior Court overruled the trial court and reinstated plaintiff’s case.

Thus, in cases where an insurer declined to pay a person’s medical expenses on the grounds that the person was not an “occupant” of the vehicle at the time of the accident, or the vehicle was not “involved in an accident,” the Superior Court has held that the term “occupant” must be broadly construed in favor of insurance coverage. We turn to the next group of cases, those addressing the issue of whether an insurance company has an obligation to defend a suit where there is a question of whether its policy covers a claim.

In State Automobile Insurance Association v. Kuhfahl, 364 Pa. Super. 230, 527 A.2d 1039 (1987), a child in kindergarten was transported from his school to a street near his home by a private car. When his transporters let him out of their car, he ran across the street and was struck by a passing vehicle. The transporters’ insurer sought a declaratory judgment that it did not have to defend, and appealed the trial court’s denial of its motion for summary judgment. The Superior Court held that if the facts alleged in the complaint were found to be true and the insurance policy covered the claimed acts, then the insurer must defend the case. Because the transporters’ acts were causally connected with the claimed injury, the policy covered the acts, and the insurer must defend. The court held that the child’s location at the time of the injury was directly linked to where the transporters stopped their car. Citing a California case, the court noted:

“The presence of small children in an automobile imposes a particular duty of care and alertness upon the driver in selecting the place for and supervising the manner of discharging the children from the vehicle. The conduct of an ambulatory child of tender years is often impulsive and unpredictable. The process of unloading a child from a motor vehicle does not end the moment that the child’s feet touch the ground or when his or her body is entirely outside the vehicle.” National Indemnity Co. v. Farmers Home Mutual Insurance Co., 95 Cal.App.3d 102, 157 Cal.Rptr. 98 (1979).

In Lebanon Coach Co. v. Carolina Casualty Insurance Co., 450 Pa. Super. 1, 675 A.2d 279 (1996), the companion to this case, our Superior Court held that the insurer of the transportation authority was required to defend Lebanon Coach in this action, as state law and the contract between the transportation authority and Lebanon Coach required the transportation authority to insure the bus at issue. The court stated that “[wjhether a particular loss is within the coverage of an insurance policy is a question of law which may be decided on a motion for summary judgment in a declaratory judgment action.” 450 Pa. Super. at 9, 675 A.2d at 283. The court also held that “an insurer’s duty to defend is a distinct obligation, different from and broader than its duty to provide coverage.” 450 Pa. Super. at 14, 675 A.2d at 286. The court further stated: “If the factual allegations of the complaint comprehend an injury, which is potentially within the policy’s scope, the insurer has a duty to defend. . . . ‘Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true.’” 450 Pa. Super. at 15, 675 A.2d at 286. (emphasis in original) (citations omitted) The court held that since the complaint alleged Lebanon Coach designated routes and loading or unloading zones for the bus, and alleged Lebanon Coach knew or should have known of the dangerousness of the drop-off point before dropping plaintiff off, the complaint alleged an injury stemming from the “use” of the covered bus, and so Carolina Casualty must defend. Plaintiff’s location at the time the car struck her was directly linked to where the Lebanon Coach driver stopped the bus, the court held.

It appears to us that the Superior Court has consistently held that where a claim may be covered by a policy, the insurer must defend the case. In such cases, the court has not held, however, that the owner-operator of a motor vehicle has a duty to ensure that a passenger who steps out of the vehicle reaches his/her final destination safely. The court merely has held that when a claimant alleges that an owner-operator has such a duty, the insurer is obligated to defend the claim.

In Knoud v. Galante, 696 A.2d 854 (Pa. Super. 1997), the plaintiff was a passenger on a chartered bus that took a group of men from bar to bar for an evening. The men loaded the bus with beer and traveled from place to place, eventually returning to the parking lot where they had boarded the bus. Three of the men left the bus and got into an automobile, in which they traveled to a store’s parking lot to make a phone call. Forty minutes after leaving the bus, the men had an auto accident and plaintiff’s decedent was killed. His estate sued the bus company, alleging it failed in its duty to ensure that the plaintiff’s decedent alighted at a safe location. On the trial court’s denial of summary judgment to the bus company, the Superior Court reversed, holding that the bus company had no duty to protect its passengers from driving once they left the bus. The passengers chose their point of boarding and alighting, and many had made arrangements for their pickup by others at the parking lot where they alighted from the bus.

Knoud’s facts are obviously not the facts of this case. In Knoud, adult men boarded a bus they had selected to carry them from place to place, and proceeded to incapacitate themselves with alcohol while riding the bus. When they left the bus, it was at a place of their own choosing, under circumstances they controlled. A significant period of time passed between the time they left the bus and the time of the accident, and another person took part in the activities, which then led to the injury sustained.

In this case, a minor boarded a bus that had been provided for her use as a member of the public. She proceeded to ride the bus to a place that had been determined by COLT as one of the places for leaving the bus. She left the bus at the place selected for her to do so, and within a minute or two, while standing on the public highway, was injured by the alleged negligent act of a third party. We turn to cases interpreting the Political Subdivision Tort Claims Act for further guidance.

The Tort Claims Act, in our view, functions akin to an insurance policy in that for certain losses caused by agents or employees of Commonwealth agencies, liability may be imposed upon the Commonwealth, and for other acts, liability is barred. Our legislature has dictated the terms of the “policy exclusions” in the Tort Claims Act, and the Commonwealth Court, not the Superior Court, is the Act’s chief interpreter. We begin by examining the Supreme Court’s holding in Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988).

Mrs. Love, then 73, was a passenger in a city-owned van operated by a city employee. She was blind in one eye and needed assistance in getting in and out of the van. She was leaving the van (apparently without assistance) when she missed a portable step placed at the van’s side and fell to the street. After an award of damages at trial, the city appealed, and the Commonwealth Court reversed the award, holding that the city was immune from suit under the Tort Claims Act. The Supreme Court agreed, holding that the issue was whether the act of alighting from or entering into a motor vehicle constitutes “operation of a motor vehicle” within the meaning of 42 Pa.C.S. §8542(b)(l). The court held that the vehicle was not in operation at the time of Mrs. Love’s misstep, and so the city was immune from liability under the Tort Claims Act.

The Commonwealth Court held in Bryson v. Solomon, 97 Pa. Commw. 530, 510 A.2d 377 (1986), that when a minor child was struck by a car while crossing a street after getting off a SEPTA bus, intending to board another SEPTA bus that was operated under contract to the Philadelphia School District, the Tort Claims Act barred liability. The court held that the City of Philadelphia was not required by statute, regulation, or common law to erect traffic controls on streets, and thus was immune from suit under the “traffic control device” exception of the Tort Claims Act. The court noted that the school board was required under 75 Pa.C.S. §3345(h) to establish safe loading zones for school children, but since the absence of a safe loading zone is not a “traffic control device,” the school district was immune from suit under the Tort Claims Act.

In the Commonwealth Court’s 1991 holding on this case, Lehman v. County of Lebanon Transportation Authority, 143 Pa. Commw. 416, 599 A.2d 259 (1991), the court stated that the Supreme Court’s holding in Love v. City of Philadelphia required it to find that the “motor vehicle exception” to the Tort Claims Act cannot apply to allow local agency liability when a passenger has left the motor vehicle in question and is crossing the street. Also, the court held, the transportation authority had nothing to do with the placement of traffic control devices, and so the “traffic control device” exception does not apply.

In Brelish v. Clarks Green Borough, 146 Pa. Commw. 232, 604 A.2d 1235 (1992), a child was crossing a state route to get to a school bus stop when a car hit her. Her parents sued, alleging the school district was negligent in establishing the school bus stop location. The school district won its motion for summary judgment in the trial court, and the parents appealed. The Commonwealth Court held that since the child was not a passenger on the school bus at the time of the accident, the motor vehicle exception to governmental immunity did not apply, and summary judgment had been properly granted.

In Rubenstein v. SEPTA, 668 A.2d 283 (Pa. Commw. 1995), the adult plaintiff was getting off a SEPTA bus when she slipped and fell. The bus company had stopped at its regular stop and none of the other passengers who got off fell. The trial court held that the bus was not “in operation” as required under the Tort Claims Act, and after a jury held in favor of plaintiff, entered judgment n.o.v. for SEPTA. On appeal, the Commonwealth Court affirmed, holding that since the plaintiff was injured as she was alighting from a bus that had stopped, the bus was not “in operation” as required for liability under the Tort Claims Act, and the trial court properly held for SEPTA. The court cited Love; Miller v. Erie Metropolitan Transit Authority, 152 Pa. Commw. 64, 618 A.2d 1095 (1992) and Bazemore v. SEPTA, 657 A.2d 1323 (Pa. Commw. 1995), in coming to its conclusion.

Our analysis of the Tort Claims Act cases shows that our appellate courts have been consistently quite conservative in finding liability under the Tort Claims Act when the allegedly negligent party is a Commonwealth or local agency. This is in sharp contrast to the appellate courts’ findings in terms of a private insurer’s duty to defend, or the availability of no-fault medical benefits to an accident victim. Still, we have yet to examine the question of whether the owner-operator of a common carrier, in the circumstances of this case, can be said to have a duty to ensure that a former passenger is safe until that former passenger reaches his/her final destination. For that, we turn to other sources.

The Restatement (Second) of Torts contains the following provision:

“Section 314A. Special relations giving rise to duty to aid or protect

“(1) A common carrier is under a duty to its passengers to take reasonable action

“(a) to protect them against unreasonable risk of physical harm, and

“(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.” Restatement (Second) of Torts §314A (1965).

The authors’ third comment to this section is:

“(c) The rules stated in this section apply only where the relation exists between the parties, and the risk of harm or of further harm, arise in the course of that relation. A carrier is under no duty to one who has left the vehicle and ceased to be a passenger . . . .”

In Pennsylvania, the rule has been that a common carrier owes the highest possible duty of care to passengers, although it is not an insurer of its passengers’ safety. Connolly, supra. Although there are few recent Pennsylvania cases on the topic of common carrier liability when plaintiffs have not been inside the vehicles, there are a number of older cases.

In Klingensmith v. West Penn Railways Co., 279 Pa. 336, 123 A. 787 (1924), the plaintiff’s decedent was standing in the street, waiting for a streetcar, when he was struck and killed by a car. The Supreme Court noted that under state law, motorists were forbidden to pass streetcars while they were loading or discharging passengers, and held that the streetcar company could not be expected to anticipate that motorists would disobey the law. The court reversed the trial court’s judgment for the plaintiff.

In O’Malley v. Laurel Line Bus Co., 311 Pa. 251, 166 A. 868 (1933), the plaintiff was a passenger on a public bus, and was let out of the bus at midnight on a stormy night. He had asked to be let out at the intersection of two streets, and the driver agreed to do so. The driver, however, let the plaintiff out about 250 feet from the place where the plaintiff asked to be discharged, and in the middle of the street, not at the curb. The plaintiff was struck by a passing car before he could reach the sidewalk. The Supreme Court held that the bus driver should have notified the plaintiff of where he was letting him off the bus, as he was letting him off the bus at an unusual place and the passenger could not see where he was getting off. Since the point of disembarkation was an “obviously perilous point,” the trial court’s judgment for defendant was reversed.

In Maguire v. Doughty, 326 Pa. 122, 191 A. 348 (1937), the plaintiff’s decedent was walking toward a trolley car with the intent of boarding it when a car ran into both her and the trolley, killing plaintiff’s decedent. The accident occurred at 2:30 a.m. The Supreme Court held that the common carrier was in no way negligent, and the driver of the car was the sole cause of the accident. The court also held that there was no evidence the common carrier stopped for passengers at an “obviously perilous point.”

In Reid v. Scranton Transit Co., 339 Pa. 225, 12 A.2d 553 (1940), the plaintiff was leaving the defendant’s streetcar in mid-afternoon when his foot and leg were struck by a passing truck. The plaintiff alleged the streetcar company was negligent by discharging him in the middle of a street, at a place that was not safe because of traffic, and without warning him of the danger. The trial court entered a compulsory nonsuit against the plaintiff at trial, finding the streetcar company was not negligent and that plaintiff had been contributorily negligent. The Supreme Court held that the evidence was that traffic passed on both sides of the streetcar, and that the streetcar company could not be expected to anticipate that the driver of a vehicle would disregard the law against passing streetcars. The court affirmed the trial court’s holding that the defendant streetcar company had not been negligent.

In Troy v. Scranton Transit Co., 368 Pa. 361, 81 A.2d 547 (1951), the plaintiff stepped off a bus operated by defendant about 100 to 150 feet beyond the usual bus stop. The time was 10:30 p.m. Plaintiff began running across the road after the bus moved away, and was struck by a motorist after she crossed the road’s centerline. She alleged the bus company was negligent in permitting her to get off the bus at a place other than the usual bus stop. The court held that no evidence showed the place where the plaintiff got off the bus was dangerous, and the evidence showed the plaintiff was negligent, affirming the trial court’s entry of compulsory nonsuit against the plaintiff.

In Harris v. DeFelice, 379 Pa. 469, 109 A.2d 174 (1954), the plaintiff asked the operator of a streetcar to be let off opposite an inn, which was not a regular stop, at about 2 a.m. The operator stopped the streetcar and let the passenger off, and the passenger waited until the streetcar moved off before proceeding into the roadway. The plaintiff went to the middle of the road, looked for traffic, then proceeded across the remainder of the road. Before he could get to his destination, he saw a car traveling toward him, and was struck by that car. The Supreme Court stated that the controlling question was whether the streetcar company discharged the plaintiff at a “manifestly dangerous place,” and held that the evidence established it had not. In addition, the court held that the plaintiff acted without due care for his own safety in proceeding once he saw the approaching car.

In Coyne v. Pittsburgh Railways Co., 393 Pa. 326, 141 A.2d 830 (1958), the plaintiff alighted from a streetcar at 8 p.m. in October of 1951. The streetcar had stopped near an intersection, and the plaintiff immediately was struck by a car that had been following close behind. The streetcar had discharged its passenger about 90 feet past its usual stop. Justice Musmanno stated that, given the evidence adduced on the usual stopping place, “to discharge a passenger at night . . . at any point other than the regular car stop was to push that passenger into the jaws of a potential nutcracker.” 393 Pa. at 331, 141 A.2d at 833. The court held:

“A motorman who is about to discharge passengers at a point not a regular car stop is required to exercise care commensurate with the surroundings so as to avoid introducing the passengers into any danger of which he is aware or which by the normal functioning of his senses and a normal desire not to see harm come to others, he should be aware.” 393 Pa. at 333, 141 A.2d at 834.

The most recent case to which our attention has been directed which is remotely related to the issue of a common carrier’s duty to a discharged passenger is Anderson v. Shaughnessy, 526 N.W.2d 625 (1995). There, after leaving her school bus, the minor plaintiff was injured by another child who shot her with a paintball gun. The school bus driver knew the tort-feasor had such a gun, but did not take it away from him. The Minnesota Supreme Court held that the school district had no duty to a child who had left her school bus except to deposit her at her scheduled destination in a manner designed to allow her safe crossing of streets after disembarkation. We note that the duty of a school district to a school child was at issue, not the duty of a common carrier to a passenger.

After our thorough review of these cases, and the evidence of the matter now before us, we must conclude that defendant Lebanon Coach did not breach its duty to the minor plaintiff. This accident occurred in the daylight, and plaintiff safely got off the public transit bus at a site that was a regular stop on the bus route. Plaintiff had disembarked at that stop on numerous occasions previously and was one of several passengers who disembarked at that time. After leaving the bus, plaintiff walked with a few friends for a short distance on the sidewalk before entering into a marked crosswalk so that she and her friends could cross the street. She entered the street and stopped and looked for traffic for thirty seconds to one minute. (Lehman dep. pp. 20-30.) She was struck while standing in the public street. As in Coyne, Reid, and Klingensmith, a vehicle other than the common carrier struck the plaintiff while the driver was committing a violation of the Motor Vehicle Code. As the Supreme Court determined in Reid and Klingensmith that common carriers could not be expected to anticipate motorists’ violation of laws on passing streetcars, we find that Lebanon Coach cannot be expected to anticipate that a motorist would disregard the law respecting pedestrians in crosswalks.

Further, try as we might, we are unable to conclude from the undisputed facts and the recitation of events provided by the plaintiff herself that the location where defendant discharged its passengers was an “obviously perilous point” or a “manifestly dangerous place.” To the contrary, this discharge site had apparently been a regular stop on this particular public transit bus run. Plaintiff and her friends in fact exited the bus without incident and were safely proceeding on the sidewalk for some distance prior to the accident en route to their final destination.

We thus will grant defendant Lebanon Coach’s motion for summary judgment, deny plaintiffs’ motion for summary judgment, and dismiss plaintiffs’ claims against Lebanon Coach.

ORDER

And now, December 1, 1998, upon careful consideration of the parties’ motions for summary judgment, and their responses thereto, and the arguments presented in court, it is hereby ordered that the motion of plaintiffs is denied, and the motion of defendant Lebanon Coach is granted. Judgment may be entered in favor of defendant Lebanon Coach and against plaintiffs.

      . Under the 1974 No-Fault Motor Vehicle Insurance Act, an auto insurer’s liability for medical expenses to a pedestrian was unlimited. Under the 1984 revisions to the No-Fault Act, the Motor Vehicle Financial Responsibility Law, the insurer’s liability for medical expenses and lost income could be limited to $15,000. Under the most recent revisions to the Financial Responsibility Law, an insurer might be liable for only $5,000 in medical expenses only.

      . We note that the Superior Court was asked to hold only on the issue of whether Carolina Casualty must defend Lebanon Coach, and was not asked to hold on the issue of whether, under the facts and the applicable law, Lebanon Coach breached its duty to plaintiffs. To the extent that the court’s opinion addresses issues other than the insurer’s duty to provide a defense, we consider it obiter dicta.

      . While we have granted defendant McKinney’s motion in limine to bar the jury in this case from hearing about her traffic citations in connection with this accident, we note that she was charged with failing to yield to a pedestrian in a crosswalk, 75 Pa.C.S. §3542(a), and found guilty of the same.


text:
    Commonwealth v. Werner

      C.P. of Lehigh County,
    no. 730/1997.

      Kelly B. Waldron, for Commonwealth.

      Earl C. Supplee III, for defendant.

      Karl Baker, John Packer and Ellen T Greenlee, for Defender Association of Philadelphia.

      Stefan Presser, for American Civil Liberties Union of Pennsylvania

      Gary Neil Asteak, for Public Defender’s Association of Pennsylvania.
    June 30, 1997
   McGINLEY, J.,

I. HISTORY

From the winter of 1996 through January, 1997, the defendant perpetrated a series of sexual assaults on a four-year-old girl. On January 10,1997, the defendant was arrested and charged. On July 17, 1997, the defendant pled guilty pursuant to a plea agreement, to one count of involuntary deviate sexual intercourse and one count of corruption of minors. Under Pennsylvania’s Megan’s Law, the crime of involuntary deviate sexual intercourse is a predicate offense, requiring that person to register with various law enforcement agencies. 42 Pa.C.S. §9739(b).

Sentencing was deferred pending the preparation of a pre-sentence investigation and to allow the defendant to file motions challenging the constitutionality of Pennsylvania’s Megan’s Law. On August 7, 1997, the defendant filed the instant motion for extraordinary relief, the Commonwealth and the defendant filed briefs, and argument on the motion was held on October 7, 1997.

On November 20, 1997, the defendant’s motion for relief was granted, and the defendant was sentenced to a term of imprisonment for a period of not less than five years, nor more than 20 years, followed by probation for a period of five years. The within opinion is in support of our November 20, 1997 order granting the motion of the defendant.

II. DEFENDANT’S MOTION

Before the court is the defendant’s motion for extraordinary relief challenging the constitutionality of the sexually violent predator provision of Pennsylvania’s Megan’s Law and to bar a second prosecution for the same offense. The defendant argues that Pennsylvania’s Megan’s Law is unconstitutional for the following reasons:

(1) it violates procedural due process under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution;

(2) it violates the right against self-incrimination under the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution;

(3) it violates the right to trial by jury under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and Article I, Sections 6, 9, and 10 of the Pennsylvania Constitution;

(4) it violates the right to substantive due process under the Fourteenth Amendment of the U.S. Constitution and Article I, Sections 1, 9, and 15 of the Pennsylvania Constitution;

(5) it acts as a bill of attainder in violation of Article I, Sections 9 and 10 of the U.S. Constitution and Article I, Section 18 of the Pennsylvania Constitution;

(6) it violates the protection against double jeopardy by violating the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Pennsylvania Constitution;

(7) it imposes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 13 of the Pennsylvania Constitution; and

(8) it violates the right to privacy in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution and Article I, Sections 1, 8, and 25 of the Pennsylvania Constitution.

III. PENNSYLVANIA’S MEGAN’S LAW

Pennsylvania’s Megan’s Law was enacted into law on October 24, 1995, and became effective on April 22, 1996, as to any findings or pleas of guilt as of that date. Because the defendant pled guilty to involuntary deviate sexual intercourse (18 Pa.C.S. §3123(a)), a Megan’s Law predicate offense, on July 17, 1997, the statute applies to him.

Under section 9793(b), registration is required for those convicted of certain predicate offenses.

“(b) Persons required to register.—

(1) Persons convicted of any of the following offenses that are classified as a felony and involve a victim who is a minor:

18 Pa.C.S. §2901 (relating to kidnapping) except by a parent.

18 Pa.C.S. §3121 (relating to rape).

18 Pa.C.S. §3123 (relating to involuntary deviate sexual intercourse).

18 Pa.C.S. §3125 (relating to aggravated indecent assault).

18 Pa.C.S. §5902(b) (related to prostitution and related offenses).

18 Pa.C.S. §5903(a)(3), (4), (5), or (6) (relating to obscene and other sexual material and performances).

(2) Persons convicted of any of the following offenses regardless of the age of the victim:

18 Pa.C.S. §3121.

18 Pa.C.S. §3123.

18 Pa.C.S. §3125.

18 Pa.C.S. §3128(a) and (b) (relating to spousal sexual assault)

(3) Persons convicted of 18 Pa. C.S. §3136 (relating to indecent assault) when the offense is a misdemeanor of the first degree.” 42 Pa.C.S. §9793(b)(l)-(3).

Offenders required to register under 42 Pa.C.S. §9793(b) must do so as provided in 42 Pa.C.S. §9793(a). An offender that fails to register as required under 42 Pa.C.S. §9793 commits a felony of the third degree. 42 Pa.C.S. §9793(e).

In addition, Megan’s Law classifies certain offenders as “sexually violent predators” under 42 Pa.C.S. §9794. A “sexually violent predator” is a person who has been convicted of an enumerated predicate offense and is determined under 42 Pa.C.S. §9794 to be a sexually violent predator due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. 42 Pa.C.S. §9792.

A sexually violent predator is subject to enhanced notification and registration requirements, as set out by 42 Pa.C.S. §§9795-8. Additionally, a sexually violent predator is subject to a lifetime mandatory maximum sentence under section 9799.4(a), at least monthly counseling under section 9799.4(b), and, under section 9799.4(c), a mandatory sentence of life imprisonment if convicted of a subsequent sexually violent offense.

The determination of whether an offender is a sexually violent predator is to be made by the trial judge, in accordance with procedures set forth in 42 Pa.C.S. §9791 et seq. The procedures require that after conviction, but before sentencing, offenders must be assessed by the State Board to Assess Sexually Violent Predators. 42 Pa.C.S. §9794(a). The board then submits a written report containing its assessment to the court. 42 Pa.C.S. §9794(d). Section 9794(e) states:

“(c) Court review of findings. — Upon receipt of the board’s report, the court shall determine if the offender is a sexually violent predator. This determination shall be made based on evidence presented at a hearing held prior to sentencing and before the trial judge. The offender and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses ... After a review of all evidence presented at this hearing, the court may determine whether the presumption arising under [42 Pa.C.S. §9794](b) has been rebutted and shall set forth this determination on the sentencing order . . . .” 42 Pa.C.S. §9794(e).

An offender convicted of a predicate offense under section 9793(b) shall be presumed by the board and the court to be a sexually violent predator. This presumption may be rebutted by the offender by clear and convincing evidence. 42 Pa.C.S. §9794(b).

IV. DISCUSSION

A. Registration and Notification Upon Conviction Under Section 9793

This issue was recently addressed by the Commonwealth Court of Pennsylvania in Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa. Commw. 1997). The Van Doren court applied the principles of the United States Court of Appeals for the Third Circuit as set out in Artway v. Attorney General of New Jersey, 81 F.3d 1235 (3rd Cir. 1996), and held that both the purpose and the effect of the registration requirement was not to effectuate punishment. See Van Doren, 695 A.2d at 972, 975-76. The court therefore concluded that the Megan’s Law registration provisions, 42 Pa.C.S. §9793, do not offend the double jeopardy or the ex post facto clauses. Id. at 976.

Most recently, the issue was addressed by the Superior Court of Pennsylvania in Commonwealth v. Gaffney, 702 A.2d 565 (Pa. Super. 1997). The Gaffney court followed the reasoning of Artway and E.B. v. Verniero, 119 F.3d 1007 (3rd Cir. 1997), cert. denied, 1998 U.S. Lexis 896, and held that the primary registration provisions were not intended to punish and their effects did not constitute punishment. See Gaffney, 702 A.2d at 569. The Superior Court therefore concluded that the registration provisions did not violate the ex post facto prohibition. Id.

Since both the Pennsylvania Commonwealth Court and the Pennsylvania Superior Court have upheld the constitutionality of the primary registration requirements, we need not address the issue further.

B. Punitive Consequences of a Sexually Violent Predator Hearing

Pennsylvania’s Megan’s Law also requires mandatory enhanced sentencing for all offenders found to be sexually violent predators pursuant to 42 Pa.C.S. §9794. We adopt the opinion of our colleague, the Honorable Edward D. Reibman, in Commonwealth v. Beemer, 47 Lehigh L.J. 627 (1998) and conclude that the punitive consequences are imposed without the requisite due process safeguards, and that the. enhanced sentencing provisions are unconstitutional.

C. Enhanced Notification and Registration Consequences of the Sexually Violent Predator Hearing

The examination of the constitutionality of Pennsylvania’s Megan’s Law does not end, however, at that juncture.

Those offenders determined to be sexually violent predators are also subjected to enhanced notification and registration provisions.

It is necessary to examine the enhanced notification and registration requirements to evaluate whether the sexually violent predator procedure meets the requirements of due process insofar as a sexually violent predator determination triggers enhanced notification and registration provisions.

Neither the Pennsylvania Superior Court, nor the Pennsylvania Commonwealth Court has specifically addressed the sexually violent predator hearing provisions as they relate to enhanced notification or registration. The United States Court of Appeals for the Third Circuit has specifically addressed the enhanced notification requirement of New Jersey’s Megan’s Law and found it to be unconstitutional. See E.B., 119 F.3d at 1098. See also, Commonwealth v. Williams, case no. 922 of 1997 at page 11, note 5 (C.P. Erie, September 23, 1997).

If the defendant is found to be a sexually violent predator, he will have increased registration obligations imposed under 42 Pa.C.S. §§9795-9796. Those enhancements include:

“(1) registering all current addresses;

“(2) complying with the registration requirement until the court determines that the offender is no longer a sexually violent predator; and

“(3) verifying the sexually violent predator’s residence every 90 days, using nonforwardable forms for residence verification.”

A sexually violent predator must comply with the enhanced registration requirements until the time he is able to rebut the presumption of being a sexually violent predator by clear and convincing evidence. If a sexually violent predator fails to register as required under 42 Pa.C.S. §§9795-9796, he commits a felony of the third degree.

If the defendant is found to be a sexually violent predator, he is also subject to the enhanced notification requirements which provide for:

“(1) the victim being given written notice when the sexually violent predator registers and if he changes his address; and

(2) written notice being provided to the following:

(a) neighbors of the sexually violent predator;

(b) the director of the county children and youth service agency where the sexually violent predator resides;

(c) the superintendent of each school district and the equivalent official for private and parochial schools enrolling students up through grade 12 in the municipality;

(d) the director of each licensed day care center and licensed preschool program in the municipality;

(e) the president of each college, university and community college located within 1,000 feet of a sexually violent predator’s address; and

(f) the general public, upon request.”

Unlike the primary notification and registration requirements, which are the consequence of a criminal conviction and last for a determinate period of time, the enhanced notification and registration requirements are the result of a judicial determination, and endure the offender’s lifetime.

Pennsylvania’s Megan’s Law, in creating the category of “sexually violent predator,” creates a status identification separate, apart, and above the identification of a criminal convict, and goes even farther to require that citizens labeled with this status be required to register and suffer notification.

We have forgotten the lessons of recent history if the creation of status registration does not sound an alarm, no matter how well-intentioned the legislative purpose.

Therefore, the procedure resulting in this determination must be examined to see whether it meets a sufficient standard, particularly with regard to the allocation of the burden of persuasion and standard of proof.

The framework of analysis is set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). There are three factors to consider: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. See Mathews, 424 U.S. at 335.

i. Burden of Persuasion

Pennsylvania’s Megan’s Law provides for a judicial hearing at which it is presumed that a person convicted of a predicate offense is a sexually violent predator. The respondent is required to rebut the presumption of being a sexually violent predator by clear and convincing evidence. 42 Pa.C.S. §9794(b).

As a sexually violent predator, the offender must comply with the enhanced notification and registration provisions until he is able to rebut the presumption that he is a sexually violent predator. Because these requirements arise from a judicially determined status, endure a lifetime, and because the requirements impose additional burdens not imposed on any other citizens, “a registrant thus has a compelling interest in an accurate and reasonable disposition of the issues before the court in a Megan’s Law hearing.” E.B., 119 F.3d at 1107.

Whether the enhanced registration requirements de facto limit the offender’s residential and employment opportunities and impugn his reputation, is an argument of a nature that one already convicted of a “sexually predicate offense” can hardly be heard to complain about. The government has no obligation to accommodate, assist, or protect a person’s attempt to conceal a criminal conviction, of whatever nature.

The determination of whether the offender is a sexually violent predator is also, in and of itself, a damning determination, not only because that person has been convicted of a predicate offense under section 9793(b), but also because there is a determination that the person has a mental abnormality or personality disorder that makes the person likely to engage in sexually violent offenses. 42 Pa.C.S. §9792.

The issues examined may include the circumstance of the crime constituting the section 9793(b) predicate offense as well as other alleged criminal conduct. The court may be called upon to determine the circumstances of other sexual behavior that have never been the subject of a criminal proceeding, presumably, because there was insufficient evidence to sustain a criminal conviction. Conceivably, even prosecutions which did not result in conviction could be relitigated in the content of such a hearing. See E.B., 119 F.3d at 1107, 1108.

However, the enhanced notification and registration requirements place an affirmative duty on a person to register and suffer notification on the basis of his status, not solely on the basis of his conviction. Therefore, it is incumbent upon the legislature to provide that the determination of the status which bears these additional obligations is characterized by the appropriate due process.

Certainly the Commonwealth has a legitimate interest in notifying citizens who may be at risk of victimization, and the enhanced notification and registration requirements do not de jure limit the offender in his choice of residence, employment, or ownership of property.

Imposing the burden of persuasion upon the offender assigns a great portion of the risk of erroneous fact-finding on the offender. At a Megan’s Law hearing, if the court cannot tell which of two conflicting accounts represents the truth, this assignment of the burden of proof and persuasion will likely determine the outcome of the proceeding. See E.B., 119 F.3d at 1108, 1109. The defendant is required to prove a negative in order to avoid infringement on his liberty interests.

The Commonwealth, aided by its considerable resources, is better equipped to prove its case against an offender than an offender is against the Commonwealth. Placing such a burden upon the Commonwealth would not appear to impose a substantial fiscal or administrative burden upon the Commonwealth.

Requiring the Commonwealth to bear the burden of persuasion in noncriminal cases involving liberty interests is the rule. See generally, Chaunt v. U.S., 364 U.S. 350, 81 S.Ct. 147, 149, L.Ed.2d 120 (1960) (the burden is on the government to show by clear and convincing evidence, facts supporting denaturalization); Woody v. INS, 385 U.S. 276, 87 S.Ct. 483, 484, 17 L.Ed.2d 362 (1996) (the burden is on the government to show by clear and convincing evidence, facts supporting deportation); United States v. Neely, 208 F.2d 337 (7th Cir. 1953); Nason v. Immigration and Naturalization Service, 394 F.2d 223 (2d Cir. 1968), cert. denied, 89 S.Ct. 98, 393 U.S. 830, 21 L.Ed.2d 101; and United States v. Wright, 661 F.2d 792 (9th Cir. 1982) (In a deportation proceeding, due process requires the government to prove that the person has the status of an alien by clear and convincing evidence.); and Commonwealth v. $8006.00 U.S. Currency, 166 Pa. Commonwealth Ct. 251, 253 n.4, 646 A.2d 621, 622 n.4 (1994) (“the Commonwealth bears the initial burden of proof which it must satisfy by a preponderance of the evidence”).

The burden of persuasion is unconstitutionally allocated in Pennsylvania’s Megan’s Law sexually violent predator proceeding.

ii. Standard of Proof

Inasmuch as Pennsylvania’s Megan’s Law inappropriately allocates the burden of persuasion for a sexually violent predator proceeding resulting in notification and registration requirements, the issue of the burden of proof is not appropriately framed. However, we note that the courts have held that “status” cases which result in infringement of liberty interests less than incarceration have not accepted a governmental burden of less than “clear and convincing.” See generally Addington, 441 U.S. at 433, 99 S.Ct. at 1813 (the burden upon the state in a civil commitment proceeding must be equal to or greater than the clear and convincing standard); Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 175, 339 A.2d 764, 774 (1975) (the burden upon the Commonwealth in a civil commitment proceeding must be equal to or greater than the clear and convincing standard); and In re Adoption of J.J., 511 Pa. 590, 594, 515 A.2d 883, 885-86 (1986) (burden on party seeking involuntary termination of parental rights is to establish facts by clear and convincing evidence).

Y. CONCLUSION

We find that the sexually violent predator provisions of Pennsylvania’s Megan’s Law are unconstitutional both as to enhanced sentencing and enhanced notification and registration. Other common pleas courts have provided well-reasoned analyses of the remaining issues.

We decline to apply the unconstitutional provisions of Megan’s Law to the defendant at the time of sentencing.

      . 18 Pa.C.S. §3123(a).

      . 18 Pa.C.S. §6301(a).

      . 42 Pa.C.S. §9791 et seq.

      . See Enactment, 42 Pa.C.S. §9791 et seq.

      . 42 Pa.C.S. §9793(b).

      . Failure to comply with the registration requirements of 42 Pa.C.S. §9795(a) is a felony of the third degree. 42 Pa.C.S. §9795(d).

      . The registration requirement for offenders is set out in 42 Pa.C.S. §9793, and for sexually violent predators in 42 Pa.C.S. §9795.

      . Additionally, the Third Circuit upheld the constitutionality of the New Jersey Megan’s Law Tier 1 registration provisions. See E.B., 119 F.3d at 1087, citing Artway. The Pennsylvania registration provisions for offenders, 42 Pa.C.S. §9793, is closely related to the Tier 1 provisions of N.J. Stat. Ann. §§2C:7-4.

      . A sexually violent predator’s maximum term of confinement for any offense or conviction specified in 42 Pa.C.S. §9793(b) shall be the offender’s lifetime. 42 Pa.C.S. §9799.4(a). The sexually violent predator must also attend at least monthly counseling, for which he shall be financially responsible. 42 Pa.C.S. §9793(b). If a sexually violent predator is convicted of a subsequent sexually violent offense, the sentence shall be life imprisonment. 42 Pa.C.S. §9799.4(c).

      . See Gaffney, 702 A.2d at 569 n.4. See also, Commonwealth v. Mountain, 711 A.2d 473 (Pa. Super. 1998), 1998 WL 158896, page 1.

      . See Van Doren, 695 A.2d at 975 n.14.

      . 42 Pa.C.S. §§9797-9798.

      . 42 Pa.C.S. §§9795-9796.

      . New Jersey’s enhanced notification provision requires that notice be provided to the following:
      (a) organizations in the community including schools, and religious and youth organizations; (N.J. Stat. Ann. §2C:7-8(c)(2)) and
      (b) the public in accordance with the attorney general’s guidelines designed to reach members of the community likely to encounter the offender. (N.J. Stat. Ann. §2C:7-8(c)(3)).

      . 42 Pa.C.S. §9795(a).

      . Id.

      . 42 Pa.C.S. §9796(a).

      . 42 Pa.C.S. §9795(d).

      . 42 Pa.C.S. §9797(a).

      . Notice includes: the sexually violent predator’s name, addressees), the offense(s) convicted of, and a statement that the offender has been desginated a sexually violent predator by court order. 42 Pa.C.S. §9798(1).

      . 42 Pa.C.S. §9798(b), (d).

      . The Third Circuit used the Mathews factors in E.B., 119 F.3d at 1106, 1107.

      . The government must also prove, by clear and convincing evidence, that the alien is deportable under the Immigration and Naturalization Act.


author: BLACK,

text:
    Snyder v. PennDOT

      C.P. of Lehigh County,
    no. 97-C-2601.

      Norman E. Blatt, for appellant.

      Susan W. Shenkin, for appellee.
    May 20, 1998
   BLACK,

— Barry R. Snyder, appellant, has challenged the suspension of his operating privilege by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing. The basis for the suspension was appellant’s conviction in the State of New Jersey for driving while intoxicated in violation of N.J.S. §39:4-50(a). The conviction was on September 23, 1997, for conduct that had occurred on October 13, 1996. PennDOT notified appellant on October 10,1997, that his operating privilege was being suspended as of November 21, 1997, pursuant to 75 Pa.C.S. §§1532(b)(3) and 1581, article IV(a)(2). Appellant has filed a timely petition for appeal of his suspension.

Appellant presents two issues for our review. First, appellant contends that the Driver’s License Compact, 75 Pa.C.S. §1581, does not apply to his New Jersey conviction because the Compact took effect on December 10, 1996, prior to appellant’s conviction, but after he had already committed the offense which gave rise to the conviction. Second, appellant contends that the New Jersey statute under which he was convicted is not substantially similar to Pennsylvania’s driving under the influence law, 75 Pa.C.S. §3731, and therefore that his New Jersey conviction is not a proper basis for suspension of his Pennsylvania operating privilege under the Compact. For the reasons stated below, we have concluded that both of these contentions are without merit.

The recent Commonwealth Court decision in Touring v. PennDOT, no. 2972 C.D. 1997 (Pa. Commw., May 15, 1998) is dispositive of the first issue. In that case, the licensee was convicted in Maryland on April 21, 1997, for driving under the influence on November 3, 1996. As here, the conviction occurred after the effective date of the Compact, but was based on conduct that had occurred prior to that date. The Commonwealth Court held in Touring that the Compact did apply, stating:

“PennDOT’s imposition of the suspension based on the April 1997 conviction does not constitute a retroactive application of the Compact. As of the Compact’s effective date, PennDOT had authority to act on subsequent reports of applicable out-of-state convictions. The condition triggering application of the Compact was the conviction, which occurred after the effective date of the Compact; therefore, its application was prospective and not retrospective. A statute does not operate retrospectively merely because some predicate facts existed prior to its effective date.” Id., slip op. at 2-3. (footnotes omitted)

In view of Touring, it is clear that the Compact applies to this case, regardless of the date of the New Jersey violation, since the New Jersey conviction occurred after the effective date of the Compact.

Under the Compact, PennDOT is to give an out-of-state DUI conviction the same effect as a conviction under Pennsylvania’s DUI law only if the out-of-state offense was of a “substantially similar nature.” 75 Pa.C.S. §1581(c), article IV. Pennsylvania’s DUI law provides in pertinent part:

“(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: “(1) While under the influence of alcohol to a degree which renders the person incapable of safe driving.

“(4) While the amount of alcohol by weight in the blood of:

“(i) an adult is 0.10 percent or greater; or

“(ii) a minor is 0.02 percent or greater.” 75 Pa.C.S. §3731(a).

New Jersey’s DUI law provides in pertinent part:

“A person who [1] operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug or [2] operates a motor vehicle with a blood-alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood or [3] permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or [4] permits another to operate a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood, shall be subject [to certain penalties].” N.J.S. §39:4-50(a). (bracketed numbers added)

Although New Jersey’s DUI statute has four alternative grounds for conviction, only the first is involved in this appeal. As appellant stated in his brief, the New Jersey report of conviction does not aver that appellant’s blood alcohol content was 0.10 percent or greater, and appellant does not contend that he was convicted for operating a vehicle with too high a BAC in violation of the second part of the New Jersey DUI statute, corresponding to section 3731(a)(4) of the Pennsylvania Vehicle Code. Nor does appellant claim that he was convicted for allowing another person to operate his vehicle while intoxicated or with too high a BAC level. Therefore, parts three and four of the New Jersey DUI statute are not applicable either. Accordingly, any arguments that might have been advanced on the theory that appellant was convicted of violating parts two, three or four of the New Jersey DUI statute have been waived and are not at issue in this appeal. See Commonwealth v. Whisnant, 390 Pa. Super. 192, 195, 568 A.2d 259, 261 (1990).

The specific issue that remains is whether the first part of the New Jersey DUI law is substantially similar to section 3731(a)(1) of the Pennsylvania Vehicle Code. The Pennsylvania Superior Court held in Whisnant, supra at 260, that these offenses are “substantially identical.” Although Whisnant dealt with the issue of sentencing under Pennsylvania law, and specifically whether the defendant there would be treated as a first offender, there is no reason to reach a different conclusion where the issue is one of license suspension. If the New Jersey statute is substantially identical for sentencing purposes, it is also substantially identical for license suspension purposes.

Furthermore, in a license suspension case recently decided by this court on May 7, 1998, through the Honorable Thomas A. Wallitsch, the Lehigh County Court of Common Pleas, relying in part on Whisnant, held that “Pennsylvania’s statute is essentially identical to New Jersey’s statute.” Peter A. Henninger v. PennDOT, no. 97-C-2650 (Lehigh County, May 7, 1998). A judge of a court of common pleas is bound by the decisions of other judges of the same court. See Yudacufski v. PennDOT, 499 Pa. 605, 612, 454 A.2d 923, 926 (1982). Therefore, since the facts in Henninger were identical to those here, we are bound by Judge Wallitsch’s decision on this issue.

It is true that an earlier decision of this court sustained a license suspension appeal where the suspension was based on violation of the New Jersey DUI statute. Charles M. Palmer II v. PennDOT, no. 97-C-1737 (Lehigh County, Oct. 13, 1997) (Ford, J.). The court order in Palmer was not accompanied by an opinion; the rationale for the decision is contained in a one-sentence footnote:

“We grant this appeal pursuant to Olmstead v. PennDOT, 677 A.2d 1285 (Pa. Commw. 1996), allocatur granted, 546 Pa. 698, 687 A.2d 380 (1997).”

Olmstead held that New York’s driving while alcohol-impaired statute is not substantially similar to the Pennsylvania DUI law. Therefore, the basis for Judge Ford’s order in Palmer must have been his conclusion that New Jersey’s DUI statute is not substantially similar to Pennsylvania’s DUI statute.

However, the recent Commonwealth Court decision in Fisher v. PennDOT, no. 2734 C.D. 1997, 1998 WL 162354 (Pa. Commw., March 30, 1998), distinguishes Olmstead and supersedes the decision in Palmer. In Olmstead, the Commonwealth Court had reasoned that New York’s DWAI statute, which was a lesser-included offense of driving while intoxicated, punished any alcohol-related impairment in driving a motor vehicle, whether or not the impairment affected a person’s ability to drive safely. The Olmstead court pointed out that the Pennsylvania DUI statute requires that the driver be under the influence of alcohol “to a degree which renders the person incapable of safe driving.” 75 Pa.C.S. §3731(a)(1).

Fisher involved the New Hampshire DUI statute, which like New Jersey’s statute provides in pertinent part:

“No person shall drive or attempt to drive a vehicle upon any way: (a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; . . . .” N.H. Rev. Stat. §265:82(1).

The Commonwealth Court held in Fisher that this statutory provision was substantially similar to section 3731(a)(1) of the Pennsylvania Vehicle Code. The court specifically rejected the argument that the absence of the phrase “to a degree which renders the person incapable of safe driving” rendered the New Hampshire law materially different. The court stated:

“[W]e are convinced that a person convicted of driving a vehicle while under the influence of intoxicating liquor is a fortiori unable to drive a vehicle safely due to alcohol. . . .” Fisher, supra, slip op. at 5-6.

In view of Fisher, neither Olmstead nor Judge Ford’s decision in Palmer is controlling here. Since the portion of the New Hampshire statute found to be substantially similar to Pennsylvania section 3731(a)(1) is virtually identical to the portion of the New Jersey statute here at issue, we are required to hold, as did Judge Wallitsch in Henninger, that the New Jersey statute under which appellant was convicted is substantially similar to section 3731(a)(1) of the Pennsylvania Vehicle Code.

Appellant also argues that New Jersey’s procedures and penalties for driving under the influence differ substantially from Pennsylvania’s procedures and penalties. However, such differences are irrelevant. The issue of substantial similarity relates to the substantive elements of New Jersey and Pennsylvania law, not to the procedures or penalties for such violations. See Commonwealth v. Bolden, 367 Pa. Super. 333, 532 A.2d 1172 (1987) (car rental conviction for attempted second-degree burglary held equivalent to Pennsylvania’s criminal attempt [burglary] for sentencing purposes; fundamental inquiry in determining equivalency of offenses is the elements of the offenses); see also, Commonwealth v. Whisnant, supra at 194-95, 568 A.2d at 260.

Because the elements of the New Jersey statute under which appellant was convicted and section 3731(a)(1) of the Pennsylvania Vehicle Code are substantially similar, appellant’s New Jersey conviction was a proper basis for the suspension of his operating privilege by PennDOT.

ORDER

Now, May 20,1998, upon consideration of appellant’s license suspension appeal, after hearing, and for the reasons set forth in the accompanying opinion, it is ordered that said appeal be and hereby is denied. The Department of Transportation is directed to reinstate the suspension of appellant’s operating privilege.

      . 75 Pa.C.S. §1532(b)(3) requires PennDOT to suspend the operating privilege of any person convicted under 75 Pa.C.S. §3731(a) of driving under the influence of alcohol for one year. 75 Pa.C.S. §1581, article IV(a)(2), requires PennDOT to give the same effect to a conviction for driving under the influence of alcohol in a party state as that conduct would have in Pennsylvania.

      . Although this section of the Pennsylvania Vehicle Code is virtually identical to the second part of the New Jersey DUI statute, the courts of Pennsylvania and New Jersey have interpreted this language quite differently. The Pennsylvania courts have held that a BAC must be related back to the time of his operation of the vehicle, though in some cases the inference is clear, and specific relation-back testimony is not needed by the Commonwealth. See e.g., Commonwealth v. Curran, 700 A.2d 1333, 1334-35 (Pa. Super. 1997). The New Jersey Supreme Court, on the other hand, has held that despite the explicit language of the New Jersey statute, it is the BAC at the time of the chemical test rather than at the time the defendant was actually driving that is essential in establishing the offense, so long as the test is administered within a reasonable time after the time of driving. State v. Tischio, 527 A.2d 388 (N.J. 1987). Under New Jersey law, relation-back evidence is not only unnecessary, it is irrelevant and inadmissible. Id. at 397. In Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996), the Pennsylvania Supreme Court held unconstitutional the former section 3731(a)(5) of the Pennsylvania Vehicle Code, which had declared unlawful the condition of having a BAC of 0.10 percent or greater at any time within three hours after driving a vehicle, regardless of one’s BAC at the time of driving. Thus, if appellant had been convicted of violating part two of the New Jersey DUI statute, his conviction arguably would be inconsistent with Pennsylvania law, as established in Barud.

      . “It is well-settled that, absent the most compelling circumstances, a judge should follow the decision of a colleague on the same court when based on the same set of facts.” Id. at 612, 454 A.2d at 926.


author: SPICER, /!/.,

text:
    Stillwaggon v. Gettysburg Hospital

      C.P. of Adams County,
    no. 91-S-967.

      Neil J. Rovner Jr., for plaintiffs.

      Evan Black, for defendant.
    August 11, 1997
   SPICER, /!/.,

— For purposes of this opinion, when we refer to plaintiff, we mean Kenna Dee Stillwaggon. On March 21, 1997, a jury awarded plaintiff $1,253,128.16 after finding Gettysburg Hospital negligent, while exonerating Dr. Leah Maitland. Post-verdict motions have been filed and are still pending. Presently, we deal with plaintiff’s motion for delay damages. She claims $450,995.78, to cover the period between November 14,1991, and the date of the verdict. Defendant argues that it should not be responsible for damages this entire period, because some of the delay is attributable to plaintiff. Both case law, Costa v. Lauderdale Beach Hotel, 534 Pa. 154, 626 A.2d 566 (1993), and Pa.R.C.P. 238(2) support the principle advanced by defendant. However, its application to the case at bar is not easily determined.

The rule provides that delay damages shall be added in civil cases involving bodily injury, death or property damage, when the verdict exceeds 125 percent of the amount of any written offer made prior to trial. Although the rule requires a written offer, one made in open court and made a part of the record will suffice. Arthur v. Kuchar, 546 Pa. 12, 682 A.2d 1250 (1996). It is said that delay damages are not intended to punish defendants, but to reduce court congestion and to encourage settlement of meritorious claims. Id.

Supreme Court has said the following with respect to the rule’s interpretation:

“When called upon to interpret a rule of procedure, we are guided by the Rules of Construction which are contained in the Pennsylvania Rules of Civil Procedure. In relevant part they provide that: ‘Words and phrases shall be construed according to rules of grammar and according to their common and approved usage . . . .’ Pa.R.C.P. 103; that ‘[T]he object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court’ and that ‘[Ejvery rules shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter is not to be disregarded under the pretext of pursuing its spirit.’ Pa.R.C.P. 127(a)(b). Moreover, a fundamental tenet of interpretation is that the rules ‘shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable...Pa.R.C.P. 126.” Woods v. PennDOT, 531 Pa. 295, 298-99, 612 A.2d 970, 971 (1992).

“Shall” generally imposes a mandatory duty. Grove North America v. Arrow Lift, 421 Pa. Super. 12, 617 A.2d 369 (1992).

Some appellate decisions may emphasize “speedy,” perhaps rather than “just.” For example, in Woods, supra, the Commonwealth was required to pay delay damages of $622,387, based upon the verdict, despite its statutory cap of liability being $250,000. In this vein, Superior Court held a defendant who was 11 percent negligent accountable for delay damages on an entire verdict, on the theory the defendant was jointly and severally liable for the total amount of damages awarded. Trude v. Martin, 442 Pa. Super. 614, 660 A.2d 626 (1995), allowance of appeal granted, 543 Pa. 401, 672 A.2d 279 (1996).

Language indicates that the rule is intended to benefit a successful plaintiff: “Delay damages do not penalize a defendant that chooses to go to court; they simply do not permit a defendant to profit from holding money that belongs to the plaintiff, by requiring the defendant to compensate the plaintiff for the loss of the use of that money during the time defendant held it.”(citations omitted) Even so, additional language from the same opinion returns to the question of court congestion: “Delay damages are incentive to settle and to avoid delay of trial not because defendant faces a penalty if it chooses not to settle, but because the defendant may limit the size of the compensation award by settling the case or by choosing not to engage in dilatory pretrial tactics.” Costa v. Lauderdale Beach Hotel, supra at 163, 626 A.2d at 570.

It can be argued that settlements are the only means of truly affecting court congestion. It has been this writer’s experience that inactive cases, while having the effect of inflating statistics, are low maintenance. When cases heat up and trial occurs, a great deal of time and attention are required for in limine motions, the actual trial process, and post-verdict motions of one kind or another. Speed of reaching that point makes little difference.

Still, Supreme Court language requires us to consider both approaches. Since defendant engaged in no dilatory tactics, our inquiry focuses on plaintiff’s inaction. As commentary to the rule points out, infra, the key is delay, not a balancing of equities.

It would be easier to base our order on reimbursement. Under this approach, any plaintiff deprived of his or her money should be entitled to the cash and a handsome return for the time defendant withheld it. One could argue that responsibility for delay is irrelevant. It can always be said that defendant should have acted to ensure that trial occurred speedily. We know, for example, even when defendant is not at fault, and things beyond its control account for delay, delay damages are payable unless plaintiff is at fault. Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 589 A.2d 1103 (1991).

It is clear, in this context, that we must reject defendant’s argument that it was precluded from offering settlement by the absence of a demand. The rule refers to procedural fault, not that occasioned by an unrealistic, or no demand. Costa, supra.

Plaintiff argues that defendant has shown no fault ascribable to her. Even though she clearly pursued the case in lackadaisical fashion, she contends that defendant could have availed itself of other remedies. She calls to our attention the following explanatory comment to the rule:

“With respect to delay of the trial, not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial. For example, failure by the plaintiff to answer interrogatories within 30 days should not affect the award of damages for delay unless the trial was delayed as a result.”

The comment goes on to explain that other remedies exist for noncompliance with discovery rules.

The commentary might suggest that we focus on defendant’s conduct, not on what plaintiff did or didn’t do.

Interestingly, a mirror image and similar language appear in discussions concerning motions for non pros and dismissal under Pa.R.J.A. 1901. There, the onus is placed on plaintiff to explain delay. Two years of inactivity may entitle a defendant to a dismissal. When such a motion is filed, plaintiff is required to prove compelling reasons beyond plaintiff’s control to account for delay. Many times, delay attendant on discovery, settlement negotiations and/or financial considerations will not qualify. Penn Piping Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992); Chase v. National Fuel Gas Corp., 692 A.2d 155 (Pa. Super. 1997).

We think that the two areas are sufficiently analogous that non pros cases are relevant in defining fault for purposes of Rule 238. The goal in both is to alleviate court congestion.

Plaintiff, however, argues that we should not consider inactivity, because the question of a non pros has not been litigated. On the other hand, defendant stoutly maintains that plaintiff should not be allowed to profit from dilatory conduct obvious from the record.

Defendant’s failure to request dismissal must be viewed in two respects. The first concerns waiver. A party may not take his chances on a verdict, remain silent and then later complain. Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 655 A.2d 138 (1995). The second is whether the record itself, in the absence of a hearing, justifies an adjustment in delay damages.

We begin by examining the record to determine if fault can be attributed to plaintiff and whether defendant has waived its right to complain.

The record indicates that plaintiff commenced this action by a writ of summons on November 13, 1991. Rule 238(2)(ii) establishes this as the focal date, although the date the complaint is filed governs actions prior to August 1, 1989. By the time the complaint was filed, June 8, 1992, the date from which delay damages were reckoned was rapidly approaching. We do not know what defendant could have done to speed the process, but note that plaintiff sought and obtained court approval for an extension of time in which to file a complaint. The reason given was necessity of discovery in aid of pleading.

Several depositions were taken thereafter, the last occurring January 15, 1993. At that time, plaintiff said she was in the midst of a divorce and wanted to finalize it before proceeding with her claim. The record indicates that this was the last deposition pursued by defendant.

On January 27, 1993, defense counsel requested expert witness reports.

The case was placed on an annual list for dismissal under Pa.R.J.A 1901 and scheduled for court consideration for September 18, 1995. On August 7, 1995, plaintiff’s counsel wrote the court, said the case was still active and requested that it be removed from the purge list. Judge John D. Kuhn entered an order August 9, 1995, extending the case on active status. We might say that this was normal practice in this county. We try to avoid lengthy hearings oriented toward saving the court’s time. At any rate, defendant was not given an opportunity to come forward and be heard.

On September 25, 1995, defendant moved to compel plaintiff to provide her experts’ reports. Plaintiff praeciped the case for trial on June 20, 1996. By letter dated July 12, 1996, plaintiff’s counsel advised defendant, “Mrs. Stillwaggon was involved in a domestic matter precipitated by her injuries and medical problems, but is now ready to pursue this matter.”

This court scheduled a hearing on the issue of delay damages, but counsel appeared and represented that all issues could be resolved by the record.

Two things are quite clear. Plaintiff delayed pursuing this case to trial, and defendant acquiesced. However, there is no hint that defendant was at fault for the delay, or misled plaintiff. The issue really becomes whether plaintiff should be allowed to profit for a period in which nothing happened.

We believe that Rule 238’s determination of fault allows us to consider principles applicable to non pros and dismissal of inactive cases, and which reflect the same policy considerations as Rule 238. Although, as indicated earlier, we should take pains to avoid speaking of balancing faults, we do not think it just to penalize a tolerant defendant and reward a dilatory plaintiff.

We think the record clearly would have justified dismissal because of delay of over two years. Plaintiff did not describe a cognizable reason for such delay. This being true, we find procedural fault on her.

We also hold that defendant did not waive the issue by waiting until delay damages were actually litigated.

We focus on plaintiff’s lack of response to request for disclosure of expert reports. Our approach is justified by technical application of the rule.

Plaintiff’s dereliction was procedural, it persisted well beyond 30 days and it certainly delayed trial.

Although there may be strong reasons for denying plaintiff delay damages for a longer period, we confine our order to the period beginning February 27, 1993, which is 30 days after reports were requested, to June 20, 1996, when the last such report was provided.

Accordingly, the attached order is entered.

ORDER

And now August 11, 1997, delay damages in the sum of $169,953.61 are awarded plaintiff and the verdict is molded to $1,423,081.77.