text:
    Ludwig v. Osterland
    June 28, 1989

      Rex F. Brien, for plaintiff.

      Jeffrey B. Rettig, for defendant.
   DOWLING, J.,

The genesis of the instant action was an accident involving a dump truck owned by defendant, Carlisle Hauling Co., and driven by plaintiff, David Ludwig, and a Conrail freight train at a railroad crossing in Hummelstown. As a result of the accident, Ludwig sustained various injuries, including four broken ribs and a collapsed lung, and was confined to a hospital for six days. Defendant Oster-land is the principal owner and chief executive officer of Osterland Truck Services Inc., which had serviced and repaired plaintiffs truck just prior to the accident. Both corporate entities operate under the same roof. The complaint alleged that plaintiffs brakes failed, causing his truck to go onto the railroad tracks and to be struck by a passing train, and that the named defendants were negligent in failing to adequately repair the brakes on the dump truck.

The principal factual issue at trial was whether the dump truck was on the railroad tracks due to a failure of the braking system or as a result of plaintiffs negligent operation of the vehicle. Plaintiff introduced evidence demonstrating a history of brake problems with the truck which were not addressed by defendants despite complaints by Ludwig. The mechanic for Carlisle Hauling Company and a fellow driver both testified concerning Ludwig’s complaints about not being able to bring the truck to a stop. Just prior to the accident, Ludwig was making deliveries to New Jersey and claimed the brakes on his truck had deteriorated rapidly. A driver for another company, who was assisting in the shipments to New Jersey, testified that he would have to radio back to plaintiff to warn him about upcoming traffic signals because Ludwig was having difficulty stopping his truck. This driver also testified that he saw a list of complaints written up by plaintiff, which included notation of brake problems, pinned up in defendants’ garage on the day of the accident.

Defendants responded by admitting that there were complaints about the truck’s brakes in 1985 and January 1986, but the truck was out of service due to a major overhaul during February and most of March 1986. Job tickets prepared by the drivers indicated that the truck was returned to service a week before the accident with no indication of brake problems. Plaintiff used the subject truck on March 25, 26 and for several trips on the morning of the accident; he made no complaints regarding the functioning of the brakes. Defendant Gary Oster-land and Joseph Farrell, an employee of Osterland Truck Services, testified that they saw Mr. Ludwig in the hospital on the afternoon of the accident and again at their place of business following his discharge from the hospital and on neither occasion did plaintiff mention brake failure as the cause of the accident. In addition, defendants called Officer Crandall of the Hummelstown Police Department as a witness. He took a recorded statement from Mr. Ludwig four days after the accident in which Ludwig described in some detail how he had nosed the truck out onto the first set of tracks, stopped to determine if there was a train on the second set of tracks, and was struck by the train. Crandall’s testimony clearly contradicted plaintiffs version of how the accident occurred.

Following a jury verdict exonerating defendant Gary Osterland from liability and finding plaintiff 70-percent negligent and defendant Osterland Truck Services Inc. 30-percent negligent, plaintiffs counsel filed a motion for a new trial. The sole issue presented in the post-trial motion is whether the court erred in admitting the statements plaintiff made to Officer Crandall, Gary Os-terland, and Joseph Farrell while he was confined to the hospital.

Plaintiff filed a motion in limine attempting to preclude the admission of this testimony at trial. The basis of the motion and objections was 42 Pa.C.S. §7101 which provides in pertinent part as follows:

“§7101. Settlement and other agreements with hospitalized persons
“(a) General rule
“(1) No person whose interest is or may be adverse to a person injured who is confined to a hospital or sanitarium as a patient shall, within 15 days after the date of the occurrence causing the injury to such patient:
“(i) Negotiate or attempt to negotiate a settlement with such patient.
“(ii) Obtain or attempt to obtain a general release of liability from such patient.
“(iii) Obtain or attempt to obtain any statement either written or oral, from such patient for use in negotiating a settlement or obtaining a release.
“(2) Any settlement agreement entered into, any general release of liability or any written or oral statement made by any person who is confined in a hospital or sanitarium after he incurs a personal injury, which is not obtained in accordance with the provisions of subsection (b) shall not be admissible in evidence in any matter relating to the injury and shall not be utilized for any purpose in any matter in connection therewith . . .
“(b) Exception — Subsection (a) shall not apply if at least five days prior to obtaining the settlement, release, statement or contingent fee agreement, the injured person has signified in writing, by a statement acknowledged before a notary public who has no interest adverse to the injured person, his willingness that a settlement, release statement or contingent fee agreement be given or entered into.” Act of July 9, 1976, P.L. 586, effective June 27, 1978.

Plaintiff contends these statements, made while he was confined to the hospital, were inadmissible and highly prejudicial and their introduction as evidence at trial constitutes a manifest abuse of discretion or a clear error of law which entitles him to a new trial. We are unpersuaded.

Officer Crandall was assigned to investigate the accident and in that capacity he interviewed Mr. Ludwig at Hershey Medical Center on March 31, 1986, four days after the collision. Crandall testified as follows:

Q: Did [plaintiff] at any time in your interview, your discussion with him did he at any time say that he had any problems with his brakes?
A: No, sir, he did not.
Q: Did he at any time say that he had been trying to stop the dump truck before he got to the crossing but that his brakes failed him and that’s why he ended up on the tracks?
A: No, sir.
Q: Did he seem when you were discussing the actual happening of the accident that he was able to recall what he had done?
A: Up to the point of the accident, yes, up to the point of impact.
Q: Were you satisfied in your interview with him that you had given him the opportunity to give as full explanation as he could how the accident happened as far as he thought?
A: Yes, sir.
Q: Now, in your discussions with Mr. Ludwig, did you mention that there were violations of the Vehicle Code involved?
A: Yes, sir, I did.
Q: Do you have enough to charge him with a violation?
A: I believe so.
Q: Why didn’t you?
A: I didn’t see adding insult to injury. To me there was no point in it.
Q: And your testimony about Mr. Ludwig not mentioning anything to you at all about his brakes, is that based on your listening to this tape recording of the interview?
A: Yes.
Q: And is it based on your recollection of the discussions with Mr. Ludwig on March 31, 1986?
A: Yes, sir, it is.

With regard to the interview conducted by Officer Crandall, plaintiff testified that he remembered seeing someone in uniform while in the hospital, but he thought it might have been a Conrail official. Ludwig stated, “I remember somebody. I thought he was representing Conrail. But that was — I was sound asleep, and I was startled. And I don’t know what I said, who I said it to, or anything else. And the next thing I know, I’m out of it again.” Plaintiff also claimed at trial that his condition and the medication made him extremely groggy, confused and dazed during his six-day stay in the hospital.

Plaintiff contends that the purpose of 42 Pa.C.S. § 7101(a)(1) was to protect ill or injured hospitalized persons, who may be confused, in pain, or under medication, by prohibiting any one with an adverse or potentially adverse interest from negotiating a settlement or obtaining a release within 15 days of the date of the injury. Plaintiff construes section 7101(a)(2) as an explicit and unambiguous proscription against the use of any written or oral statement, not only those “for use in negotiating a settlement or obtaining a release,” made by a hospitalized person as evidence at a civil trial unless the procedural safeguards of section 7101(b) are employed.

The gravamen of plaintiff’s argument is that subsections (a)(1) and (a)(2) are not interdependent, but rather should be read as independent and free-standing expressions of legislative intent. Under plaintiffs reasoning, the focus of the exclusionary rule of 7101(a)(2) is on the condition of the injured, hospitalized person and his/her ability to make cognizant decisions and not upon the interest of the party eliciting the statement nor the purpose for which it was elicited.

To bolster his interpretation of the statute, plaintiff quotes dicta from a criminal case in which a confession by a hospitalized defendant was suppressed:

“The legislature has recognized in another context that statements made by injured persons in a hospital setting raise very serious questions as to whether such statement should be recognized as valid by the law. The Act of June 9, 1972, P.L. 359, 12 P.S. §1630, et seq., prohibits the use of either written or oral statements for the purposes of civil litigation when they are obtained in a hospital from an injured patient within 15 days of the occurrence causing the injury. In fact, statements obtained from a patient in a hospital may be legally recognized only if five days prior to the giving of the statement the injured patient has signified by a notarized writing a willingness to give the statement. Although the Act of 1972 is not applicable in criminal cases and is thus not controlling in the matter before us, it clearly indicates recognition that decisions made by injured persons in a hospital setting must be considered extremely suspect.” Commonwealth v. Perry, 475 Pa. 1, 6, 379 A.2d 545, 547 (1977).

Plaintiff also resorts to the general rules of statutory construction and maintains that where there is a change in language in separate provisions of a statute it is prima facie evidence of a change of intent. Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979), citing Novicki v. O’Nara, 280 Pa. 411, 124 Atl. 672 (1924). Finally, plaintiff contends that a court may not ignore the implication of the deletion of the limiting verbiage “for use in negotiating a settlement or obtaining a release,” nor disregard the clear, unambiguous language of section 7101(a)(2) on the pretext that its literal interpretation will frustrate its spirit. See generally, Yanushko v. Commonwealth of Pennsylvania, Department of Public Welfare, 117 Pa. Commw. 535, 534 A.2d 1277 (1988).

The Superior Court has recently addressed this issue of the interplay between section 7101(a)(1) and (a)(2) in the context of a motor vehicle accident. In Walker v. General-Motors Corp., 383 Pa. Super. 400, 557 A.2d 1 (1989), the plaintiff was operating his car in Fairmount Park, a section of Philadelphia, when he was unable to negotiate a curve, crashed head-on to a tree, and sustained serious and permanent injuries. Plaintiff sued the manufacturer and the dealership under strict liability based on alleged defect in the braking system. Following a defendant’s verdict, Walker appealed claiming the trial court erred in admitting his statement to the investigating police officer in the emergency room of the hospital shortly after the accident. Walker informed the officer that he had probably “skidded on some wet leaves” and was issued a speeding citation.

On appeal, Walker argued that his statement to the police in the emergency room was inadmissible under section 7101(a)(2). The court disagreed and ruled:

“Section 7101(a)(2) is . . . inapplicable to the statement. The purpose of the statute is to prevent the exploitation of an injured person’s weakened condition by a potentially adverse party in future litigation. As both the title of this section and the language of the provision indicate, the statute has to do with settlement, releases, and other agreements in contemplation of legal action. Appellant’s statement was not made in the context of such action, or to a person able to become involved as a party to such action.
“While it may be argued that the phrase ‘or other statement written or oral’ refers without limitation to appellant’s utterance, it must be read in pari materia with the remaining portions of the act. Such a reading leads to the conclusion that the failure to include language similar to that of section 7101(a)(l)(iii), e.g. ‘for use in negotiating a settlement or obtaining a release,’ is merely legislative oversight, the intention being to prevent a detriment to an injured person through rapacious actions by, e.g., insurance adjusters. Therefore, the trial court’s refusal to exclude appellant’s statement does not constitute error.” Walker, supra, (footnote omitted)

The court also concluded that section 7101(a)(l)(iii) was not germane to the statement made to the officer even though the police report could have been used by an insurance carrier to force a settlement or to obtain a release from liability.

The court noted:

“[A] police officer’s issuance of a traffic citation does not constitute proof of an interest, adverse or otherwise, since no advantage, no gain or loss, accrues to the officer from his action, and appellant does not supply us with authority to the contrary. Moreover, the possibility that the officer’s report might be used by an insurance company does not bring appellant’s statement within the ambit of the statute which clearly specifies that the statement must be taken ‘for use’ in reaching a settlement or release.” Id.

The court’s holding, that a statement made to a police officer during the first 15 days of confinement in the hospital is beyond the purview of the statute, is supported by the legislative history of the Act of June 9, 1972, P.L. 359, §1 (which was re-enacted as part of the Judicial Code, 42 Pa.C.S. §7101, Act of July 9, 1976, P.L. 586, §2, see source notes in the Legislative Journal-House, June 26, 1976, at 5853, 5860). During floor debáte on the second consideration of the bill, the principal sponsor of the legislation, Senator Coppersmith, was specifically asked whether the statute would apply to statements made to investigating officers acting in the Scope of their employment.

“Mr. Ammermen: Mr. President, would the gentleman from Cambria [County] please advise me as to what effect Senate Bill no. 851 would have on a police officer getting a statement?
“Mr. Coppersmith: Mr. President, the effect of the bill would be none, because it applies to a person whose interest is, or may become, adverse to a person injured. In my opinion, a police officer, investigating á crime or an accident, would not have an adverse interest.” Legislative Journal — Senate, July 20, 1971, at 562-3.

The Commonwealth Court has also recognized the limited applicability of the statute:

“Section 7101 of the Judicial Code provides that the statements which are inadmissible as evidence are those taken while an injured person is confined to a hospital and taken for the purpose of negotiating a settlement or obtaining a release.” Anderson v. Workmen’s Compensation Board, 51 Pa. Commw. 582, 585, 414 A.2d 774, 776 (1980).

When, as here, the words of a statute are not free from all ambiguity, the intention of the legislature may be divined by examining the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, contemporaneous legislative history, and other considerations. 1 Pa.C.S. 1921(c)(1), (2), (3) and (7).

Additionally, in determining legislative intent, sections of a statute must be read together and construed with reference to the entire statute. Wilson v. Central Penn Industries Inc., 306 Pa. Super. 146, 452 A.2d 257 (1982), and sections of a statute must be construed with reference to the entire statute and not from their context. Snyder v. Commonwealth of Pennsylvania, Department of Transportation, 64 Pa. Commw. 599, 441 A.2d 494 (1982).

The legislative history of the precursor to section 7101 demonstrates that the legislature’s intent was to proscribe the practice of unscrupulous insurance adjusters, attorneys, or other representatives of accused tort-feasors obtaining unfair advantage of hospitalized persons for the purposes of settlement.

“Mr. Hill: Mr. President, Senate Bill no. 581 prohibits anyone, representing a possible defendant in an accident case, from going into the hospital and getting a statement, or negotiating a release, within 15 days of the accident.
“Mr. Bell: Mr. President, at the expense [sic] of seeming naive, I thought that Senate Bill no. 851 would restrict the present practice of defense counsel and insurance adjusters going' in and getting quick releases . . . The bill endeavors to protect someone in the hospital from being approached by an adjuster, an attorney, or an agent of an attorney, whose interest is adverse to that of the person lying in a hospital bed.
“Mr. Hill: This bill has to do with someone who is basically adverse to the person in the hospital, such as an insurance adjuster, or a lawyer who might represent someone or some company who was the other party to the accident... It merely says that if you go in and you represent an interest which is adverse to the person who is in the hospital, then a release or a statement you get from that person is not binding if you get it within 15 days. That is all the bill says.
“Mr. Zemprelli: First of all, hospitals are operated for the recovery of their patients, and those patients are not supposed to be badgered by attorneys classified as ‘ambulance chasers’ or adjusters from insurance companies who would go in and talk with parties when they are short of the information which is necessary if they are to make an independent judgment and waive away substantive rights relative to claims that they may have.
“Mr. Duffield [a co-sponsor of the bill]: In my opinion, as a practical, practicing lawyer, I find that it is needed, and I deplore the attitude taken in the past of these adjusters going in and getting releases and statements from people.” Legislative Journal — Senate, July 20, 1971, at 560-2.

The statute must be read in its entirety. Subsection (a)(1) limits the language of subsection (a)(2) so that the exclusionary rule is applicable only to statements obtained by persons with adverse interests who took the statement for the purpose of negotiating a settlement or obtaining a release. Officer Crandall was not a person with adverse interests or potentially adverse interests and his purpose in taking plaintiffs statement was to complete an official investigation and not to force a settlement or obtain a release. The credibility of the conflicting testimony as to Ludwig’s condition at the time of the interview was a factual issue which the jury resolved in favor of defendants.

Defendant, Gary Osterland, and his employee, Joseph Farrell, on the other hand, were persons with an interest adverse to plaintiff, so we must explore their intentions in visiting Ludwig in the hospital shortly after the accident.

Farrell testified that he visited plaintiff in the hospital because he “was concerned about him.” This is not an instance where an employer or his agent or an adjuster from an insurance carrier went to a hospital room to ferret out exculpatory information to minimize their liability, to effectuate a settlement or a release, or to prepare a defense to a Workmen’s Compensation claim. Osterland and Farrell both testified that the first time they were cognizant of Ludwig’s claim that brake failure caused the accident was after the service of plaintiff’s complaint nearly 13 months after the accident.

Gary Osterland testified as follows:

Q: After you were at the accident scene on March 27, 1986, did you then go to the hospital?
A: Yes.
Q: Why?
A: To see how David was doing.
Q: Did you see him at the hospital?
A: Yes, I did.
Q: And did you discuss with him anything at the hospital?
A: Yes.
Q: What did you discuss?
A: Well, I went, into his room and he was kind of laying on the bed but kind of propped up a little. I guess they were concerned about his lungs. And we had a brief chat, maybe five minutes.

Basically he was feeling very emotional and very sorrowful. And he said to me, “I’m sorry, Gary; I’m sorry. I just wasn’t paying attention. I looked up. The train was 30 feet away, and I could not stop.” He said, “I jammed the brakes, went for reverse and that was it.” He only had seconds to react from when he saw the train.

Q: Did he say anything to you at that time that the brakes failed him?
A: Absolutely not.
A: Approximately 10 days after he got out of the hospital, David came to visit with Joe and I. It was liké a sit-down critique of how he was doing and what happened and just a little update.
Q: Did you talk to him about the accident at that time?
A: We did.
Q: Was any mention made at that time by David Ludwig that the reason the dump truck was on the railroad tracks was because his brakes failed?
A: Absolutely not.
Q: And we understand that in December of ’86 when David Ludwig came back to work for Carlisle Hauling Company for a couple of weeks?
A: Correct.
Q: Any discussion with him during that period of time about brake failure being the cause of the accident on March 27, 1986?
A: No, none whatsoever. The first and only notice I ever got from anybody about brake failure to that truck was the day I received the suit of judgment against me which was the beginning of April of — 13 months after the wreck.

Clearly, the exclusionary rule of section 7101(a)(2) does not apply to gratuitous statements ma.de by an injured employee to his employer or a fellow employee during a courtesy visit at the hospital. To exclude a plaintiff’s statement under these circumstances would invite and immunize perjury by duplicitous plaintiffs since the defendants would be prevented from introducing the plaintiffs hospital utterances to demonstrate prior inconsistencies or to establish the recent fabrication of testimony for the purposes of trial. When he took the stand, plaintiff put his credibility at issue and defendants effectively rebutted his version of the accident with his prior admissions.

The statements made by Ludwig to Officer Cran-dall, Mr. Farrell and Gary Osterland were not subject to the exclusionary rule of section 7101(a)(2) and were properly admitted at trial. Plaintiffs issue on appeal must fail.

Accordingly, we enter the following

ORDER

And now, June 28, 1989, plaintiffs motion for a new trial is denied.

      . The complaint against defendant Carlisle Hauling Co. was discontinued because the Pennsylvania Workmen’s Compensation Act, 77 P.S. 481(a), provides the exclusive remedy from an employer for personal injuries suffered by an employee while acting within the scope of his employment. Poyser v. Newman & Co. Inc., 514 Pa. 32, 522 A.2d 548 (1987).

      . The post-trial motion also contained a boilerplate allegation that the verdict was against the weight of the evidence. This issue was not addressed in plaintiff’s brief and is deemed waived.

      . Another Superior Court panel had previously ruled that section 7101 is an unconstitutional infringement on the exclusive power of the Supreme Court to regulate and discipline attorneys. Lloyd v. Fishinger, 380 Pa. Super. 507, 552 A.2d 303 (1989).


source: Caselaw Access Project

author: DOWLING, J.,

license: Public Domain

text:
    Commonwealth v. Hoffner
    May 19, 1989

      Thomas R. Miller, assistant district attorney, for the commonwealth.

      Arthur K. Dils, for defendant.
   DOWLING, J.,

In Through The Looking Glass, the White Queen is explaining to Alice the effect of living backwards:

“ ‘Living backwards!’ Alice repeated in great astonishment. ‘I never heard of such a thing! . . . But there’s one great advantage in it, that one’s memory works both ways. I’m sure mine only works one way,’ Alice remarked. ‘I can’t remember things before they happen.’
“ ‘It’s a poor sort of memory that only works backwards,’ the Queen remarked. ‘What sort of things do you remember best?’ Alice ventured to ask. ‘Oh, things that happened the week after next,’ the Queen replied in a careless tone. ‘For instance, now, there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’ ”

This little literary tidbit is relevant to the matter before us which concerns a motion to suppress drug evidence obtained by a search warrant allegedly secured without sufficient probable cause.

It seems the United Parcel Service received a package on which a consignee’s address was not clear. It was sent to a John Hoffher, R.D. 1, Palmyra, and apparently the box number could be read as either 327B or 627B. The United Parcel Service considered this an unknown consignee because the address was not familiar to their delivery people. They claimed to have checked the telephone directory, but were unable to find a number. Their practice in these situations is to open the package to see if there is information inside which would indicate where it is to be delivered. This procedure being triggered by the above circumstances, which we find neither clear nor convincing, but rather indicative of a ruse, revealed the contents to be marijuana.

Nevertheless, the opening of the package is not really the issue since UPS is in the private shipping business. It is what occurred subsequently that now must engage our attention. The company notified the Attorney General’s Bureau of Narcotics Investigation, who in turn contacted the Lebanon County Detective Bureau.

The police, unlike UPS, had no difficulty in locating defendant’s residence. It was then decided to set up a controlled delivery. Sergeant Zechman of the Lebanon County Detective Bureau, posing as a UPS carrier, was to take the package of marijuana to the residence, ask for the person to whom it was addressed, have him sign for it, and then leave. Meanwhile, back at the ranch, Agent Berlillin would go to a district justice and wait for a call from Zechman informing her that the trap had been sprung. Already prepared was a search warrant except for the last paragraph or a portion thereof which gave the time of the delivery. It is pretty well agreed that, without the acceptance of the package by defendant, there would not be probable cause for the issuance of a search warrant. It follows that, except in a police state, the authorities would not be justified in ransacking one’s home just because contraband was addressed to the resident.

The last paragraph of the search warrant reads:

“On December 14, 1987, at approximately 7:06 p.m., Det. Sgt. Zechman delivered the aforementioned package to the Hoffner/Kobaugh residence.”

The jurat completed by the district justice states the time of issuance of the warrant as 7 p.m. Yet Agent Berlillin testified:

Q: Now was that typed on after he swore you?
A: Absolutely not.

So, unless we are back with Alice and the White Queen, “something is rotten in the state of Denmark,” as Marcellus exclaimed when Hamlet walked off with his father’s ghost.

Rule of Criminal Procedure 2003 provides that:

“(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.”

Thus, any averment in the search warrant pertaining to events occurring after the jurat cannot be considered. Yet, without evidence of receipt by defendant, there are not sufficient facts set forth in the probable cause section to show ownership or possession of the contraband by a Mr. Hoffner or even any indication that he was aware of the box and its contents.

Therefore, we are constrained to enter the following

ORDER

And now, May 19, 1989, defendant’s motion to suppress is granted.

      . Through The Looking Glass and What Alice Found There, by Lewis Carroll.

      . The number was on both the top and sides of the package. On one side it was clearly designated as 327B.

      . Hamlet, Act 1, Scene 4.


author: WRIGHT,

text:
    PennDOT v. Snyder
    July 7, 1989

      Richelle Sanders Fisher, assistant counsel, for the commonwealth.

      James A. Gillin, for defendant.
   WRIGHT,

The Commonwealth of Pennsylvania, Department of Transportation suspended the motor vehicle driving privileges of Ralph Eugene Snyder for failure to take a chemical test pursuant to section 1547 of the Motor Vehicle Code. Snyder appealed to this court and after a hearing this court dismissed his appeal. Snyder appealed the dismissal to the Commonwealth Court necessitating the writing of this opinion.

On November 30, 1988 Lieutenant Robert D. Ieradi, an Eddystone Borough Police Officer, saw Snyder pass a red traffic light and turn left heading westbound on Chester Pike. The officer was traveling east on Chester Pike and after Snyder made the left turn Snyder crossed the center line of Chester Pike arid went into the eastbound lane. He swerved back into a westbound land and the officer activated his emergency lights, made a U-tum and pursued Snyder. While in pursuit the officer observed Snyder “[sjwerving and weaving within the two westbound lanes.” Snyder stopped for a stop light and the officer stopped behind him. As the officer exited his police vehicle Snyder drove away. The officer got back in the police vehicle and again began to pursue Snyder. After entering the City of Chester Snyder turned right onto Ridley Avenue and after traveling approximately 100 feet stopped for the officer. Snyder opened his door and partially fell out of his vehicle. When he got out of his vehicle he walked with a staggering gait, his eyes were bloodshot, he had slurred speech, needed assistance to stand up and there was a strong odor of alcohol on his breath. The officer advised Snyder that he failed to stop for a red traffic light and that the officer was of the opinion that he was “[ujnder the influence of alcohol to a degree that rendered him incapable of safe driving.” When the officer asked Snyder for identification he produced a registration card and told the officer, “[Tjhat’s all you’re getting.” The officer asked him “if he wanted to take a sobriety test numerous times and he refused and said he was leaving.” Later the officer again asked Snyder to take a sobriety test and he refused. The officer then advised Snyder that he was under arrest for driving under the influence of alcohol. Snyder said “No way . . . I’m leaving,” and started for his automobile. The officer told Snyder to stop and grabbed him by the right arm. Snyder grabbed the officer’s right arm and coat and threw the officer against the side of the automobile. Two other officers had arrived and they assisted Officer Ieradi in handcuffing Snyder. Snyder was then placed in a police vehicle and taken to the police station. The officer testified:

Q: Did you ask him to submit to a test?
A: Once at the station, he was advised of the Miranda rights, and also he was advised of consent law. And he was advised that if he — you know, to take a breath test, which he refused. I advised him that he — if he refuses, he would lose his license for 12 months.
Q: Why did he refuse? Did he say?
A: I don’t recall.
Q: After you . . .
A: He refused to sign my Miranda card also.
Q: After you warned him that he would lose his license for a year if he didn’t take the test, did he agree to take the test?
A: He just kept calling us obscenities, and it’s on my affidavit. If you want me to repeat them, I will.
Q: How many times did you ask him to take the test?
A: The breath test?
Q: Yes.
A: Twice.
Q: And how many times did you tell him he’d lose his license if he didn’t take the test?
A: Twice.
Q: And how many times did he refuse?
A: Every time I asked. . . .
Q: When — when you read him the Miranda rights, and arrested him at the station. What did you —
A: Okay. I read him his Miranda rights, and I had the card with him —
Q: Uh-huh.
A: Okay, with him. I advised him that I wanted him — I requested him to take a breath test, at which time he just kept calling me “s-” and other names. I also told him that he will lose his license if he failed to do so.

When the officer was asked if Snyder mentioned anything else he testified:

“I’m not taking any — he says I’m not taking anything. You have nothing on me. I believe that’s in my affidavit.”

The officer also, testified that Snyder:

A: [D]emanded to call his lawyer. He was then requested to take a breath test, in which he refused.
Q: Was he allowed to call a lawyer?
A: After he calmed down, I gave him his choice to call a lawyer or his family or whoever he wanted to call.

This court entered an order directing Snyder to file a concise statement of matters complained of on appeal. The order, as per the provisions of Pennsylvania Rule of Appellate Procedure 1925, directed that a copy of the concise statement be served upon the trial judge. (As of the writing of this opinion no such statement has been served upon the trial judge.)

In order to suspend a person’s operating privilege for failure to submit to a chemical test, the department must prove that the operator has been placed under arrest on the charge of driving under the influence of alcohol or drugs; that the operator was requested to submit to a chemical test; and that the operator was warned that his operating privileges would be suspended for 12 months if the operator refused to take the test. Herbert v. Commonwealth, 75 Pa. Commw. 28, 460 A.2d 920 (1983). The evidence is clear that the requirements of Herbert were met by the arresting officer and at no time in these proceedings, to our knowledge, has Snyder contended that the requirements of Herbert were not met.

In this case Snyder was given his Miranda warnings and immediately thereafter requested to take the chemical test and was told if he refused to take the test his operating privilege would be suspended for 12 months.

Snyder contends that his operating privilege was improperly suspended because he was not told that the Miranda warnings with respect to his right to consult an attorney do not apply to the decision of whether or not to take a chemical test.

Section 1547(b) provides:

“(b) Suspension for refusal
“(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
“(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.”

In this particular case, did the failure of the officer to advise Snyder that the Miranda warnings do not apply to the refusal to take a chemical test prohibit the department from suspending Snyder’s operating privileges for violation of section 1547(b) of the Motor Vehicle Code?

In Commonwealth, Department of Transportation v. O’Connell, 99 Pa. Commw. 410, 513 A.2d 1083 (1986), O’Connell appealed his suspension for failure to submit to a breathalyzer test. O’Connell had been given his Miranda warnings and directed to give his answers in writing. He first answered that he did not want to talk to an attorney before being questioned but later changed that answer to yes.

Without being advised that the Miranda warnings do not apply to chemical tests he was asked to take a breathalyzer test and he refused to take the test. The Commonwealth Court held that O’Con-nell’s operating privilege was properly suspended. The Commonwealth Court stated:

“We now clarify that Doherty and Ferrara do not place upon a police officer the automatic duty to inform every arrestee that the Miranda right to counsel does not apply to the breathalyzer test. The duty arises only where the arrestee responds to the request that he take the test with an inquiry regarding whether he may consult with someone before making a decision.” O’Connell, supra.

In McFadden v. Commonwealth, 108 Pa. Commw. 194, 529 A.2d 88 (1987), McFadden was given his Miranda rights and was then asked to take a breathalyzer test and he refused. McFadden asked to make a telephone call and was permitted to do so. After making a telephone call he still refused to take the breathalyzer test. The department suspended his operating privilege for failure to take the breathalyzer test. The Commonwealth Court decided that the department had properly suspended McFadden’s operating privilege and dismissed his appeal. The Commonwealth Court stated:

“However, when the arrestee responds to the request that he take the test with an inquiry regarding whether he may consult with someone before making a decision, the duty then arises in the officer to inform the arrestee that the Miranda right to counsel does not apply to the breathalyzer test. Hence, the instant case is distinguishable from O’Connell: Here, when McFadden inquired as to whether he could make a phone call, Officer Twist consented. Thus, if Officer Twist had not consented to McFadden’s request, then Officer Twist would have been required to advise McFadden that the Miranda right to counsel does not apply to the breathalyzer test.
“Lastly, the trial court concluded, based upon the testimony of Officer Twist, that McFadden did make a knowing and conscious refusal to take the breathalyzer test.” McFadden, supra, (citation and footnote omitted)

In Earley v. Commonwealth, Department of Transportation, 121 Pa. Commw. 64, 550 A.2d 267 (1988), it was reported to the department that Earley had refused to take a breathalyzer test and the department suspended his operating privilege. Earley was advised of his Miranda rights and was then asked to take a breathalyzer test. He was advised that failure to take the test would result in his operating privilege being suspended. Earley, than asked to speak to his father. (Earley’s father was an attorney but this was unknown to the police.) The police refused to let Earley speak to his father and warned him several times that refusal to take the test would result in suspension of his operating privilege. Earley refused. The Commonwealth Court held that Earley had refused to take the breathalyzer test and that his operating privilege was properly suspended. The Commonwealth Court said:

“Appellant misinterprets the O’Connell decision. Clearly, O’Connell imposes a duty upon the police to inform the arrestee that the Miranda right to counsel does not apply when the arrestee indicates to police that he desires to consult an attorney. As we stated in O’Connell, a police officer does not have an ‘automatic duty to inform every arrestee that the Miranda right to counsel does not apply to the breathalyzer test.’ Id. at 415, 513 A.2d at 1085. It is only in the case where an arrestee requests to speak to an attorney before deciding whether to submit to a breathalyzer test that the possibility of confusion regarding the applicability of the Miranda rights to counsel exists.
“In this case, appellant did not request to speak to an attorney. Appellant only asked to speak to his father. Police had no way of knowing appellant’s father was an attorney. Therefore, police had no duty to inform appellant that the Miranda right to counsel did not apply.” Early, supra.

Before entering the order of April 24, 1989 we considered the Commonwealth Court’s opinions in O’Connell, McFadden, Earley and some of the Commonwealth Court’s other opinions on this issue. We concluded, based on the decisions of the Commonwealth Court, that early on where Miranda rights were given and then a request is made to take a chemical test that the police were not required to advise that the Miranda rights do not apply to the request to take a chemical test. We further conclude, based on later decisions, that if the request to talk to an attorney is made and not granted but the refusal to take the test is not related to the Miranda rights, that the police are not required to advise that the Miranda rights do not apply to the request to take a chemical test. We also concluded, based on later decisions, that if the factual situation is such that a person would be confused as to whether the Miranda rights applied to the request to take a chemical test, then there can be no license suspension for refusal to take the chemical test unless the police advise that the Miranda rights do not apply to refusal to take a chemical test.

The court in the case sub judice found the police officer's testimony to be credible. Based on the officer’s testimony it was clear to this court that Snyder was not going to do anything that the officers requested or ordered him to do unless he was forced to do so. After considering all of the evidence presented we found as a fact that Snyder’s refusal to take the breathalyzer test was not based in any way whatsoever on his Miranda rights and that he was not confused as to whether the Miranda rights applied.

In the Supreme Court case of Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), which reversed the Commonwealth Court O’Connell case, the Supreme Court said:

“Thus, the trial court was confronted with two witnesses who remembered the events of June 19, 1983 quite differently and who was in the position to decide for himself which of the two witnesses was more credible. The trial court chose to believe appellant and his findings in this regard are conclusive. It was not for the Commonwealth Court to read into the record, weigh the evidence, and to decide for itself that appellant did or did not state his reasons to the officer or that appellant could or could not recall what he said to the officer. That, as we have said, was for the trial court to do. We read this record to contain evidence, which can support appellant’s position, that he was misled into thinking that he had a right to speak to his attorney before taking the breathalyzer test, and therefore affirm the trial court’s findings in appellant’s favor. To the extent that the Commonwealth Court chose to accept and reject portions of appellant’s testimony and, in effect, to make its own findings of fact, it exceeded its scope of review and its decision must be reversed.
“Appellant also argues, however, that this whole controversy arose because the request to take a breathalyzer test came hot on the heels of the Miranda questioning. Appellant specifically chose to exercise his right to speak to his attorney before proceeding any further in any questioning dealing with the drunk driving charges. Since the appellant chose to exercise his rights, the arresting officer promptly and properly stopped any questioning, but did not let appellant make his phone call. Instead, the officer began his requests that appellant submit to the breathalyzer test.
“Appellant argues that when he chose to exercise his right to speak with an attorney and his request was met with a request to take a test, he was confused. ”

The Supreme Court also said:

“The problem in this case, and many similar cases that have arisen, is that these requests to take breathalyzer tests take place as part of the investigation conducted by police in regards to a drunk driving charge which is criminal in nature. The police proceed with the Miranda warnings and at some point (usually when the driver asks to see his lawyer) stop questioning and abruptly change ‘hats’ and ask the driver to submit to the breathalyzer test. If the arrestee hesitates and attempts to exercise his Miranda right by asking for a lawyer or asking to make a phone call, a refusal is recorded.
“This state of affairs is unacceptable because it is fraught with pitfalls for the arrestee who is not trained to recognize the difference between a civil or criminal investigation and becomes a source of accusation of manipulation by the police over confused individuals who are suspected of having dulled senses.
• “The law always required that the police must tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice. See Everhart v. Commonwealth, 54 Pa. Commw. 22, 420 A.2d 13 (1980); Ford v. Department of Transportation, Bureau of Traffic Safety, 45 Pa. Commw. 268, 406 A.2d 240 (1979).
“Accordingly, where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with attorney or anyone else prior to taking the test.
“An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.
“Since the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify the extent of the right of counsel when asking arrestees to take breathalyzer tests thereby insuring that those ar-restees who indicate their confusion over their Miranda rights, are not being misled into making uninformed and unknowing decisions to take the test.” (footnote omitted)

In the Supreme Court O’Connell case that court said that the trial court is the fact finder and that the Commonwealth Court erred in its determination that the trial court incorrectly determined the facts. In the case sub judice we found the facts to be as testified to by the police officer.

Portions of the Supreme Court O’Connell case do indicate to us that the Supreme Court held that in every case where police request that a chemical test be taken and the driver asks to speak to an attorney that the police must advise the driver that the Miranda rights do not apply to requests to take a chemical test. If the Supreme Court decision is not just limited to the facts of the O’Connell case then it appears that this court’s decision is incorrect.

The Supreme Court McFadden case, 522 Pa. 100, 559 A.2d 924 (1989) states:

“This appeal by permission followed and appellant renews his argument that for a refusal to take a breathalyzer test to be knowing and conscious, a licensee must be told, prior to taking the test, that the Miranda right to counsel is not applicable. We agree and this issue is now controlled by our recent decision in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).
“Since the police did not give appellant the information required by O’Connell to satisfy our requirements that a licensee make a knowing and conscious refusal, and since appellant has preserved this issue on appeal to us, we will apply the holding of O’Connell to this case and conclude that appellant has sustained his burden to demonstrate that his refusal was not knowing and conscious.”

The Supreme Court McFadden case seems to indicate that in all cases the police must advise the driver that the Miranda warnings do not apply to the request to take a chemical test and would seem to indicate that this court’s decision was erroneous.

In the case sub judice at the end of the department’s case Snyder’s attorney stated that he was making a motion in the nature of a demurrer. He then made his argument that there was an improper suspension in that Snyder had not been advised that his Miranda rights did not apply to request to take chemical tests. This court at the end of arguments of counsel stated it would listen to the recorded testimony and make a decision. After listening to the recorded testimony and reviewing Commonwealth Court decisions the April 24, 1989 order was entered on the basis “that there was no connection between the Miranda warnings given to Ralph Eugene Snyder and his refusal to submit to a breathalyzer test...”

At the time of the court stated “I’m going to listen to, (the recording) and I’ll make a determination.” The attorney for Snyder at that time did not indicate that he wanted to present evidence if the “demurrer” was refused. The court in refusing the request felt that Snyder’s attorney should have pointed out to the court he didn’t want to be placed in a position of presenting evidence and later be told that he waived the legal issue he raised on the “demurrer” by presenting evidence. After the order was entered Snyder’s attorney wrote requesting that the court suspend the order and hear Snyder’s testimony. The court refused because it would be unfair to the department to give Snyder a “second bite on the apple.” The court felt that Snyder’s attorney should have indicated at the time that he wanted to present evidence if his “demurrer” was not granted. It was the court’s intention that it would be making the final decision of the court in this case.

If the Commonwealth Court does not conclude that the Supreme Court has flatly ruled that the police officers must advise that the Miranda rights do not apply to requests to take chemical tests but concludes that it was wrong for this court to refuse to schedule a hearing to permit Snyder to present evidence, we suggest that the case be remanded to this court for the purpose of hearing Snyder’s evidence.

      . Subsequent to our decision we learned that the Supreme Court of Pennsylvania reversed the Commonwealth Court. We will refer to the Supreme Court reversal later in this opinion.

      . When the order of April 24, 1989 was entered we were not aware that the Supreme Court of Pennsylvania had reversed the Commonwealth Court. The Supreme Court decision will be referred to infra.

      . The Commonwealth Court indicated that had Earley indicated he wanted to speak to an attorney or that his father was an attorney, then the police would have been required to advise Earley that the Miranda warnings do not apply to chemical tests.


text:
    Camara v. Mack Truck Inc.

      February 15, 1989

      David Tamanini, for plaintiffs.

      Timothy I. Mark, for defendant Mack Truck Inc.

      John Lenahan, for defendant National Seating Co. Inc.

      Stephen Geduldig, for defendant PennDOT.
   DOWLING, J.,

How binding are workmen’s compensation findings in a civil trial? Defendants maintain they are controlling and have filed motions for summary judgment.

Plaintiff, Donald Camara, in his action against defendants, claims injuries resulting from an incident which occurred March 26, 1984 when, while operating a Mack Truck in the course of his employment with Transcon Lines, he struck an irregularity in the road surface, causing him to be catapulted upward from his seat and immediately downward onto the seat where the resulting shock caused spinal injuries. Plaintiff initially received workmen’s compensation benefits from the date of his injury until June 21, 1984 when he returned to work. On June 26, 1984, he alleged a reoccurrence of his injury and was put back on compensation until he again returned to work on July 10, 1984. On November 20, 1984, he suffered a further reoccurrence; his case was again reopened; and he was paid compensation until he again returned to work on April 23, 1985. On August 6, 1985, another reoccurrence took place, and once again he was back on compensation until he resumed work on April 17, 1987.

The next incident was on April 29, 1987 when Mr. Camara, while still working for Transcon Lines, alleged that in moving a conveyor he injured his back and either aggravated a pre-existing back condition or suffered a new injury. A workmen’s compensation hearing was held on August 6, 1987 and on October 29, 1987, the referee found as a fact that the medical evidence established that the claimant became totally disabled due to the new injury of April 29, 1987. He entered conclusions of law to the effect that Mr. Camara was totally disabled as a result of the new injury and had failed to prove that he had a reoccurrence of his March 26, 1984 injury. Compensation payments were therefore ordered to be paid for the injury of April 29, 1987.

It is this action by the workmen’s compensation authorities which has triggered defendants’ motions for partial summary judgment in which they ask that plaintiffs be prohibited from introducing any evidence concerning injuries, damages or losses occurring after April 29, 1987. Defendants base their motion on the doctrine of collateral estoppel whose purpose is to prevent relitigation of issues which have once been decided, contending that in the instant case the identical issue regarding damages has been litigated to a final judgment on its merits via workmen’s compensation proceedings. Collateral estoppel normally requires that the party against whom the estoppel is involved be the same and the issues be identical. Gulentz v. Schanno Transportation Inc., 355 Pa. Super. 302, 513 A.2d 440 (1986). However, it has been held that even though workmen’s compensation claims and a common-law cause of action are dissimilar, estoppel will apply where the matters are the same. Shaffer v. Pullman Trailmobile, 368 Pa. Super. 199, 533 A.2d 1023 (1987).

The question, therefore, resolves itself around whether or not the issues before the workmen’s compensation referee and those before this court are identical. We are dealing, of course, with a motion for summary judgment. Therefore, the court must examine the record in the light most favorable to the non-moving party, Weiss v. Keystone Mack Sales Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983); and enter summary judgment only where the case is free from doubt. Thus, the referee’s determination that there was no reoccurrence of the injury of March 26, 1984 and that the claimant’s total disability is now a result of his new injury of April 29, 1987, must blot out all possible injuries, damages and losses which might flow from the cause of action asserted herein.

We find that there is sufficient seepage so as to prevent us from saying as a matter of law that the alleged injury resulting from this cause of action terminated after the new accident of April 29, 1987. Issues such as whether Mr. Camara was predisposed to his second injury as a result of his first accident; whether his new disability is more severe because of his first accident, or whether his first accident and resulting injuries complicated or affected his recovery or ability to recover from the second accident, are but some of the matters which we cannot conclude as a matter of law that the referee considered.

An examination of the referee’s decision, findings, and conclusions leads one to believe that his primary concern was to allocate responsibility between the two different insurance carriers, i.e. the company covering Transcon Lines employees at the time of his first accident and the carrier which was on the risk at the time of the later injury. This seems to have been the focus of his conclusion. He would not have been unduly concerned with Mr. Camara’s previous physical condition since a new compensable injury had occurred and the employee would be entitled to full compensation benefits from it.

Furthermore, the finding of a new injury does not exclude the possibility of an aggravation or acceleration of a prior condition. In Lackawanna Refuse v. WCAB, 74 Pa. Commw. 248, 459 A.2d 899 (1983) Judge Blatt wrote, “The law is clear. If the current disability is an ‘aggravation’ of the prior injury, there has been a new injury. ...” In United Industrial Maintenance v. WCAB, 46 Pa. Commw. 156, 405 A.2d 1360 (1979), Judge Crumlish stated:

“An aggravation of a pre-existing condition constitutes an ‘injury’ under section 301(c) entitling one to compensation regardless of prior physical condition.
“That an employee has a chronic condition or ailment which makes him more susceptible to injury does not defeat his right to compensation if the subsequent injury materially contributes to the acceleration or aggravation of his pre-existing condition.” Id. at 159, 405 A.2d at 1362. (citation omitted) See also, Swartz v. WCAB, 117 Pa. Commw. 47, 543 A.2d 201 (1988).

It should also be pointed out that the referee’s determination that plaintiffs total disability was the result of his new injury was listed as a conclusion of law rather than a finding of fact. It has been stated by one learned authority in the field that while on appeal the findings of fact by a referee may be res judicata such determinations do not apply to his conclusions of law. See Barbieri’s Pennsylvania Workmen’s Compensation Occupational Diseases (Bisel 1975) at 67.

The referee’s conclusion of law that plaintiff failed to carry his burden of proof in no way speaks to the condition of plaintiff before the April 1987 accident. It therefore cannot control plaintiff’s right to present evidence at trial of his condition before April 1987, and the interplay between his prior injury and the 1987 injury. Plaintiff is entitled to show whether the 1984 accident predisposed him to further injury and whether it affected his chances of recovery from the 1987 accident.

Defendants in their motion rely primarily on Shaffer, supra, but this case is distinguishable, aside from the fact that the entire discussion on the applicability of collateral estoppel was rendered dictum by the court’s finding that the appellant had waived the issue. In any event, in Shaffer the plaintiff had claimed permanent partial disability resulting from an accident, the basis of his court case occurring on August 22, 1979. The workmen’s compensation referee found that the partial disability resulting from this accident had ceased on July 31, 1980. The employee had an accident previous to August 22, 1979 to his back and subsequent accidents in April 1980 and March 1984. Thus, the plaintiff was attempting to relitigate a finding that he was no longer disabled after a particular date. The collateral estoppel discussion centered around plaintiff’s contention that the issue of disability had not been adequately and fully litigated because the workmen’s compensation referee had no knowledge of his subsequent medical treatment. All Shaffer really stands for is that under certain conditions a determination by workmen’s compensation authorities can work a collateral estoppel. However, each case has to be examined on its particular facts as to the precise issue before the compensation authorities and the scope of their determination.

Defendant, Mack Truck Inc. has also asked for summary judgment with respect to count 3 of plaintiffs’ complaint which alleges breach of express and implied warranties on the basis that such claims are barred by the statute of limitations which requires that such actions be brought within four years after the cause of action accrues.

It was held in Patton v. Mack Truck Inc., 360 Pa. Super. 1, 519 A.2d 959 (1986), allocatur denied 531 A.2d 430, that causes of action for breach of warranties accrue when the seller delivers the alleged defective vehicle and not when the accident that injures the plaintiff occurs. See also 13 Pa.C.S. §2725(b).

Is there thus a factual issue for the injury as to when the truck was defective? Defendant Mack Truck addressed to the plaintiff a request for admissions as follows:

“Do you admit that the tender of delivery to Wilson Freight Co. of the Mack Truck Inc. vehicle referred to in your complaint occurred more than four years prior to the filing of the suit hereto?”

Plaintiffs answered:

“Denied. Plaintiff does not know if the vehicle which Donald Camara was riding in was tendered to Wilson Freight by Mack Inc. more than four years prior to the filing of the suit. After reasonable inquiry by the plaintiff, the information available is still insufficient to enable him to admit or deny.”

In addition, Mack Truck Inc. has attached an affidavit from one Terence Grub, defendant’s assistant general counsel, who states that upon information “true and correct to the best of his personal knowledge, information and belief’ from a review of defendant’s files, the vehicle was delivered to Wilson Freight on or about June 6, 1979. No documentation as seemingly required by Pa.R.C.P. 1035(a) was attached. This case is distinguishable from our decision in Sullivan v. ICA Mortgage Corporation, 108 Dauphin Rep. 247 (1988) where the affidavit was supported by documentary evidence.

Therefore, we are unable to conclude as a matter of law that defendant did tender delivery on June 6, 1979, more than four years prior to the accident date of March 26, 1984.

Accordingly, we enter the following

ORDER

And now, February 15, 1989, the motion for partial summary judgment filed by defendants Mack Truck Inc., National Seating Co. Inc., and Commonwealth of Pennsylvania Department of Transportation are denied, as well as the motion for summary judgment on the warranty counts of plaintiffs’ complaint filed by Mack Truck Inc.

       13 Pa.C.S. §2725(a).


author: WETTICK, A.].,

text:
    Mead v. Conti Rossin v. Pitell Tile Co. Inc.

      June 26, 1989

      Raymond Radakovich, for plaintiff Mead.

      Frederick W. Thienian, for defendants Timothy and Shirley Conti.

      Mary M. O’Day, for plaintiffs Peter C. and Ada E. Rossin.

      Randal E. McCamey, for defendant Pitell Tile Co.
   WETTICK, A.].,

Mead v. Conti

Initially we consider the proceedings at G.D. 88-21314 and Arbitration no. 10141 of 1988.

Dale R. Mead is the owner of residential property which Timothy and Shirley Conti previously occupied pursuant to a written lease. On September 6, 1988 the tenants filed a complaint with District Justice Charles McLaughlin at TA 453-088 to recover their security deposit. On September 23, 1988 the landlord filed a complaint with the same district justice at the same number to recover damages to the premises.

On October 24, 1988, the district justice entered a judgment for the tenants in the amount of $200 plus costs. He mailed a notice of judgment to the parties. The notice identified the tenants as plaintiffs and the landlord as defendant. The notice said that in the case at TA 453-88, a judgment was entered for plaintiffs and against defendant in the amount of $200 dollars plus costs.

On November 21, 1988, the landlord filed a notice of appeal from the district justice judgment. On December 9, 1988, the landlord filed his complaint in which he sought to recover damages to the premises. The tenants filed an answer in which they denied that they had damaged the premises. Their answer did not include a counterclaim for their security deposit. Instead, under new matter they raised the defense of res judicata. The basis for the defense was that the landlord had failed to appeal from the judgment, in favor of the tenants on their claim for the security deposit and that this was now a final judgment which controlled the issue of whether the tenants had caused damages to the rental premises.

Thereafter the tenants entered their judgment in the amount of $200 plus costs in the Allegheny County Court of Common Pleas at G.D. 88-21314 pursuant to Pa.R.C.P.D.J. 402(D). Upon receiving notice of the entry of this judgment, the landlord filed a petition to strike the judgment and to stay execution proceedings. This petition is the subject of this opinion and order of court.

Only a final judgment rendered by a district justice for the payment of money may be entered in a court of common pleas. See 42 Pa.C.S. §1516; Pa.R.C.P.D.J. 402(D). An appeal from a judgment for the payment of money operates as a supersedeas. Pa.R.C.P.D.J. 1008(A). Consequently, the district justice judgment should have not been entered in our common pleas court if the landlord appealed from this judgment. Thus this court must decide whether the landlord’s appeal includes an appeal of the judgment that the district justice entered for the tenants on their claim for the security deposit.

The landlord contends that his appeal included an appeal from the rulings of the district justice in favor of the tenants on their claim for the security deposit and on his property-damage claim. The district justice entered a single judgment covering both claims and provided only one written notice of judgment, so that appeal from the judgment included both claims that the judgment covered.

The tenants, on the other hand, contend that their claim for the security deposit and the landlord’s property-damage claim should be treated as separate lawsuits. Therefore separate appeals must be filed. The notice of appeal which the landlord filed identified the landlord as plaintiff and the tenants as defendants in the proceedings before the district justice. Therefore the landlord appealed only from the district justice’s ruling in favor of the tenants on the landlord’s claim for property damages.

The Rules of Civil Procedure Governing Actions and Proceedings before District Justices support the landlord’s position that his appeal included both claims. Rule 315(A) provides that a defendant in a district justice proceeding may file his own complaint raising a claim against the plaintiff. Rule 306 provides that the defendant’s complaint shall be filed at the same docket number as the plaintiff’s complaint. Rule 315(C) requires the district justice to enter a single money judgment that takes into consideration the merits of both claims. Rule 1002 provides for a party to appeal from a judgment entered by a district justice by filing one notice of appeal on a form prescribed by the State Court Administrator.

In accordance with these rules, the landlord in the present case filed his complaint at the same docket number as plaintiff’s complaint, the district justice entered a single money judgment for $200 for the tenants, and the landlord filed a notice of appeal on the form prescribed by the State Court Administrator. This form does not contain any special provisions for appeals from a judgment that covers claims raised by both parties. Also it gives the appellant no opportunity to indicate what claims are the subject of the appeal. The form’s only description of the. subject matter of the appeal is the date of the judgment and its docket number. Consequently, the landlord provided as complete a description of the subject of the appeal as the notice of appeal form permits.

There is no merit to the tenants’ argument that the landlord indicated that he was appealing from only the ruling on his claim for property damages because in the notice of appeal he identified himself as plaintiff and Timothy and Shirley Conti as defendants in describing- the district justice proceeding from which he was appealing. The notice of appeal form does not give the appellant the option of identifying himself as both plaintiff and defendant. He must list himself as one or the other. If he had instead identified himself as defendant in the district justice proceedings, the tenants would be arguing that this indicated that he had intended only to appeal from the district justice’s ruling on the tenants’ claim for the security deposit The landlord could have identified himself as both a plaintiff and a defendant in the district justice proceedings only by filing two notices of appeal: But this is not required. Rule 1002 provides that a party aggrieved by a judgment may appeal therefrom by filing “a notice of appeal.”

My ruling in the present case is not inconsistent with my opinion in Penn Plaza Shopping Center Inc. v. Castellano, 134 Pitts. Leg. J. 74 (1985). In that case a landlord filed an action before a district justice to recover rent allegedly due under the lease agreement. The tenants filed an action before the same district justice at another docket number in which they sought damages resulting from an alleged lockout. Both claims were heard on the same date and the district justice entered separate judgments in favor of the landlord in both actions.

The tenants filed a notice of appeal from the judgment entered at the docket number for the landlord’s claim. They did not file a notice of appeal from the judgment entered at the docket number for their claim. This court held that the appeal from the judgment entered on the landlord’s claim did not include the judgment entered at the other docket number on the tenants’ claim. The basis for the ruling was that the parties had filed separate complaints at different docket numbers and that the district justice had entered a separate judgment at each docket number that covered only the claim raised by that complaint. The decision in Penn Plaza is not controlling because in the present case the claims of both parties were filed at the same docket number.

Also this court’s ruling is not inconsistent with rule 1004(C) which reads as follows:

“When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within 30 days from the date on which the appellant served a copy of his notice of appeal upon the appellee.”

Rule 1004(C) does not address the issue of when an appeal from a judgment or judgments entered in district justice proceedings in which both parties filed complaints operates as an appeal as to all issues. Its only purposes are to give the appellee additional time for taking an appeal where the appellant appeals only from the judgment on his complaint and to establish a procedure for the appellee to raise his or her claims.

The second sentence of rule 1004(C), according to the tenants, indicates that it is possible for an appellant to appeal only from the judgment on his complaint. We agree. In Penn Plaza Shopping Center Inc. v. Castellano, supra, we held that where separate judgments are entered on the appellant’s and appellee’s complaints at separate docket numbers, a notice of appeal from one of the judgments does not operate as an appeal from the other judgment. Also where the district justice provides no relief to either party, an appeal by one party may be characterized as only an appeal from the district justice judgment on that party’s complaint because this is the only ruling of the district justice with which that party is dissatisfied. See National Environmental Control Corp. v. Colavita, 37 D.&C. 3d 355 (1985). But where the district justice has ruled against the appellant on his complaint and the appellee’s complaint, we should assume that the appellant is appealing from both rulings unless there is a clear indication in the notice of appeal form that the appeal involves only one of the claims.

ORDER OF COURT

On this June 26, 1989, it is hereby ordered that the judgment entered in favor of defendants and against plaintiff is stricken.

Rossin v. Pitell Tile Company Inc.

The fact situation of the proceeding at G.D. 88-19822 is slightly different. In this case Pitell Tile Company filed an action against Peter C. and Ada E. Rossin before District Justice Sally Ann Edkins at TA 107-88 to recover payments due for work performed. Thereafter Mr. and Mrs. Rossin filed a complaint against Pitell The with the same district justice at the same docket number to recover damages sustained because the work was not properly performed.

A hearing on both claims was held on September 19, 1988. On September 26, 1988 the district justice awarded Mr. and Mrs. Rossin $2,500 on their complaint and awarded no money to Pitell Tile on its complaint. The district justice mailed two notices of judgment. The first notice, which identified Pitell Tüe as the plaintiff and Mr. and Mrs. Rossin as the defendants, stated that a judgment had been entered for defendants on September 26, 1988 at TA 107-88. The second notice of judgment, which identified Mr. and Mrs. Rossin as plaintiffs and Pitell Tile as defendant, stated that a judgment in the amount of $2,500 had been entered in plaintiffs’ favor and against defendant on September 26, 1988 at TA 107-88. On October 25, 1988 Pitell Tile filed a notice of appeal which stated that an appeal had been taken from a September 26, 1988 judgment at TA 107-88 entered by District Justice Edkins. This notice of appeal identified Pitell Tile as plaintiff and Mr. and Mrs. Rossin as defendants.

On November 14, 1988 Mr. and Mrs. Rossin entered their judgment in the amount of $2,500 in the Allegheny County Court of Common Pleas at G.D. 88-19822 pursuant to rule 402(D). Pitell Tile filed a petition to strike this judgment. This petition raises the same issues that this court previously addressed.

The only difference between the two proceedings involves the different procedures that the district justices followed. In this case the district justice mailed two notices of judgment. One notice listed Pitell Tile as plaintiff and Mr. and Mrs. Rossin as defendants. The other notice listed Mr. and Mrs. Rossin as plaintiffs and Pitell Tile as defendant. The former notice stated that a judgment was entered for Mr. and Mrs. Rossin and against Pitell Tile in the amount of $0 on September 26, 1988 at TA 107-88. The latter notice stated that a judgment was entered for Mr. and Mrs. Rossin and against Pitell Tile in the amount of $2,500 on September 26, 1988 at TA 107-88.

Mr. and Mrs. Rossin contend that these notices of judgment show that two judgments were entered. Thus Pitell Tile was required to file separate notices of appeal from each judgment.

We find no merit to this argument. Rule 315(C) provides for one money judgment to be entered, so Pitell Tile could assume that the district justice’s docket would show the entry of a single judgment at TA 107-88 in the amount of $2,500. Since the district justice ruled against Pitell Tile on both claims filed at TA 107-88 and since Pitell Tile took an appeal from the judgment at TA 107-88, for reasons previously stated the appeal should be treated as an appeal from the rulings on the district justice on both complaints.

For these reasons we enter an order of court striking the judgment which Mr. and Mrs. Rossin entered against Pitell Tile.

ORDER OF COURT

On this June 26,1989, it is hereby ordered that the judgment entered in favor of Peter C. and Ada E. Rossin and Against Pitell Tile Company is stricken.

       It was more appropriate for the landlord to file a notice of appeal that identified himself as plaintiff. By proceeding in this fashion he would raise his claim by filing a complaint and the tenants could raise their claim by pleading it as a counterclaim. See rule 1004(C).


author:
BLOCK, Chairperson,
     HELWIG, Chairman

text:
    In re Anonymous No. 63 D.B. 85
    Disciplinary Board Docket no. 63 D.B. 85.
    February 9, 1988
   BLOCK, Chairperson,

Special Hearing Committee,

Statement of the Case

The Office of Disciplinary Counsel has charged [respondent] with violating Disciplinary Rules 1-102(A)(1) and (6) and 7-101(A)(5). In essence, the charges allege that respondent knowingly made false statements of fact in the representation of his client. The occasion which gave rise to these charges was respondent’s testimony under threat of contempt at the recusal hearing of former Judge [Á] in [B] v. [C] Inc., no. [ ] May term, [ ] (C.C.P. [ ] County). Respondent testified that, in separate discussions with two [ ] Court of Common Pleas judges, those judges told him, in substance, that his client would not get a fair trial before Judge [A].

The hearing committee received testimony in this matter on June 17, July 1 and July 17, 1987. After careful review of the record, the hearing committee concludes that respondent did not violate the disciplinary rules. The petition for discipline is denied.

Rulings on Admission of Evidence and Other Procedural Matters

Rulings on the admissibility of evidence and other procedural matters are set forth in a transcript of a pretrial conference held before the chairman on June 4, 1987 and the transcript of the hearing. Further, with respect to respondent’s exhibits R-5, R-6, R-7, R-8 and R-9, admission was granted following the close of testimony; counsel were informed by telephone.

FINDINGS OF FACT

(1) Respondent was bom in 1914 and was admitted to practice law in the Commonwealth of Pennsylvania in January 1938. His office is located at [ ].

(2) At all relevant times, respondent has been a shareholder in a law firm titled “ [D], ” now titled “ [D]. ”

(3) In or about 1980, the [D] firm began representing defendants in a libel suit, [B]v. [C] Inc., no. [ ], May term, [ ].

(4) The [B] suit was tried nonjury before former Judge [A] from April 19 through October 14, 1982, by respondent’s partner, [E], Esq., and their associate [F], Esq.

. (5) Plaintiff in the [B] suit was represented at trial by [G], Esq. and [H], Esq.

(6) Following the conclusion of testimony in the [B] suit, Judge [A] informed counsel that before rendering a verdict, he would review the trial transcript to determine whether receipt of evidence on punitive damages would be appropriate. If he made a finding that such evidence was appropriate, Judge [A] told counsel that he would conduct an eviden-tiary hearing on the plaintiff’s right to punitive damages and defendants’ financial net worth.

(7) Judge [A] also indicated that, following any further evidentiary hearing, he would give the parties an opportunity to file requests for findings of fact and conclusions of law, to submit supporting briefs and to argue orally before entry of a verdict.

(8) Judge [A] did not make any determination or conduct any hearing as described in paragraph 6 nor did he provide opportunity for submission of requests, briefs or arguments as described in paragraph 7.

(9) In March 1983 the [D] firm filed a motion on defendants’ behalf for the disqualification and re-cusal of Judge [A].

(10) The motion was supported by an affidavit of defendant [I] and was based upon improprieties and appearances of impropriety in Judge [A’s] conduct.

(11) Neither the motion nor the affidavit referred to respondent and the affidavit specifically excluded [I’s] attorneys or members of the [D] firm as sources of information.

(12) By telephone instruction from Reno, Nevada, to his secretary, Judge [A] ordered a verdict dated May 6, 1983 against defendants and in favor of plaintiff in the amount of $7 million of which $2 million was described as compensatory and $5 million as punitive damages.

(13) From May 23 to July 13, 1983, Judge [A] held evidentiary hearings on defendants’ motion for his disqualification.

(14) During the hearings, respondent was called as a witness, as on cross-examination, by plaintiff’s counsel.

(15) Respondent moved to quash the subpoena issued by plaintiff’s counsel for his appearance.

(16) Judge [A] denied the motion to quash.

(17) In the subpoena, plaintiff sought the production of various [D] firm records, none of which were the subject of questioning at the disqualification hearing.

(18) Rather, respondent was questioned repeatedly about the existence of information regarding the likelihood that defendants would not get a fair trial in the [B] suit.

(19) Respondent refused initially to answer the questions on the grounds of work product privilege.

(20) Respondent testified under threat of contempt and after the court’s refusal to allow him an opportunity to take an immediate appeal.

(21) Respondent was asked the following question:

Q: [Respondent], how many people have stated to you directly that from the start of [B] v. [C] Inc., the defendants would not get a fair trial?

He replied in the following manner:

A: At least two persons spoke to me directly without any other person in my office intervening. I am talking about those.

(22) Upon further questioning, respondent identified those two individuals as Judge [J] and Judge [K].

(23) Respondent was also asked the following question:

Q: [Respondent], has any individual, other than your client, stated to you that regardless of the merits, Judge [A] would ultimately award a large judgment against [L] and in favor of plaintiff?

He replied in the following manner:

A: Yes.

(24) Respondent, for the most part, was not permitted to explain his answers.

(25) Respondents’ testimony was based on two conversations with Judge [J] which occurred during social contacts in or about April 1982 and June 1983.

(26) Respondent’s testimony was also based on several conversations with Judge [K],

(27) Respondent testified, in several instances, that he could not recall the precise words used either by Judge [J] or by Judge [K] and that he could testify only to his understanding of what each judge was telling him.

(28) Respondent testified to the import and substance of the several independent conversations he had with Judge [J] and Judge [K].

(29) The [B] suit was newsworthy and had attained a substantial degree of notoriety.

(30) Judge [J] heard many lawyers express the opinion that “from the start of the [B] case defendant would not get a fair trial from Judge [A].”

(31) The first pertinent conversation between respondent and Judge [J] occurred at a private dinner party at Judge [J’s] apartment. Judge [J] initiated a discussion of the [B] suit.

(32) In the course of that discussion, Judge [J] touched upon several items involving Judge [A], including the [M] case, a case where Judge [A] as a city solicitor failed to take an appeal which eventually cost the city several million dollars, and the fact that Judge [A] and [G] were in the city solicitor’s office together.

(33) Judge [J] also raised the subject of the [B] case with respondent at a luncheon on June 5,1983 and discussed some of the same topics they had discussed at the dinner party approximately one year earlier.

(34) Judge [J] testified that his conversations with respondent could reasonably be construed to mean that the defendants in [B] could not get a fair trial before Judge [A].

(35) Judge [K] and respondent had known each other for many years.

(36) During 1982 and 1983, Judge [K] and respondent met to have lunch together on several occasions.

(37) At these lunches, Judge [K] and respondent discussed law, politics, the legal profession and interesting cases in which each was involved.

(38) In 1982, Judge [K] also talked about the de-teiiorating image of the judiciary and explained it was one of the reasons he was considering leaving the bench.

(39) During these lunches, Judge [K] and respondent discussed the [B] case both during the pen-dency of the trial of the case in chief and the recusal hearing.

(40) During the pendency of the [B] suit, plaintiffs attorney [G] was also representing the plaintiff in [N] v. [O], no. [ ], February term, [ ] (C.C.P., [ ] County) specifically listed for May 17, 1982 before Judge [K].

(41) A request was made for continuance of the [N] trial because [G] was on trial before Judge [A] in the [B] case. The request was in writing, dated May 13, 1982, to Judge [K].

(42) The [N] trial was continued to September 7, 1982.

(43) At [G’s] request by letter dated August 30, 1982 and because of the [B] trial, the [N] trial was again continued.

(44) Ordinarily, Judge [K] investigated requests for continuance, particularly when a case was specially listed to begin on a day certain.

(45) During the [B] recusal hearing, Judge [A] sent a memorandum received by Judge [K] inquiring whether respondent’s firm had filed other motions for recusal. Judge [K] called respondent to tell him about this.

(46) [G’s] office also sought a continuance of a trial before Judge [K] because [G] was engaged in the recusal hearing before Judge [A]. Judge [K] called respondent at home to obtain information regarding how long [G] would be tied up with the recusal hearing.

(47) All the evidence points to the fact that Judge [K] was aware of the [B] litigation both during the trial of the case in chief as well as the recusal hearing.

(48) Respondent’s testimony at the disqualification hearing was that while he could not recall Judge [K’s] specific words, the import of conversations the two had was that Judge [K] believed respondent’s clients would not get a fair trial before Judge [A].

(49) Petitioner did not present any evidence which would show that third parties were privy to the conversations between Judge [J] and respondent or to the conversations between Judge [K] and respondent.

(50) Respondent’s testimony at the hearing before the disciplinary board was the same as that given at the recusal hearing.

(51) Respondent has an excellent reputation for truthfulness as testified to by members of the local bar, the national bar and the judiciary.

(52) Respondent’s testimony during the recusal hearing and before this committee was truthful.

DISCUSSION

The Office of Disciplinary Counsel has charged respondent with violation of the following Disciplinary Rules of the Code of Professional Responsibility:

(1) D.R. 1-102(A)(4) which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;

(2) D.R. 1-102(A)(6) which prohibits an attorney from engaging in other conduct which adversely reflects on fitness to practice law; and

(3) D.R. 7- 102(A)(5) which prohibits an attorney during his representation of a client from knowingly making a false statement of law or fact.

These charges arise out of respondent’s testimony at a hearing to determine whether former Judge [A] should recuse himself from presiding over a case entitled [B] v. [C] Inc., no. [ ], May term [ ] (C.C.P., [ ] County). The motion for disqualification and recusal was filed on behalf of defendants in the case. Defendants were represented by members of respondent’s law firm. Although not involved in the case, respondent was subpoenaed to testify at the recusal hearing over which Judge [A] presided. From this proceeding petitioner accused respondent of testifying falsely under oath at that hearing. Having made such accusations, petitioner is required to prove its charges by clear and convincing evidence. Office of Disciplinary Counsel v. Wittmaack, 513 Pa. 609, 522 A.2d 522 (1987).

Respondent’s testimony involved the substance of separate conversations between respondent, Judge [K] and Judge [J] regarding the likelihood of his clients receiving a fair trial before Judge [A]. Judge [K] and Judge [J] deny making the statements attributed to them. However, both Judge [J] and Judge [K] admit to private conversations with respondent in which the [B] suit and/or matters touching upon Judge [A] and the plaintiff’s attorney were raised.

Respondent’s testimony before this hearing committee was reasonably consistent with the testimony he gave at the recusal hearing. On both occasions, respondent testified that the import of the independent conversations he had with Judge [K] and Judge [J] was that his clients would not receive a fair trial in the [B] suit. Although the precise words posed by the examiner may never have been uttered by either Judge [J] or Judge [K], a fact to which respondent repeatedly attested, it is clear to this hearing committee that a reasonable person could conclude that the impact or substance of Judge [K’s] and Judge [J’s] conversation with respondent were to that effect.

The character witnesses who testified on respondent’s behalf, lawyers and judges who are themselves outstanding members of the legal community, spoke of respondent giving direct and honest answers to questions, even where those answers were not favorable to his position. At the recusal hearing, once respondent was forced, under threat of contempt, to testify, he did not engage in sophistry. We believe he answered truthfully or attempted to do so as best he could under the circumstances. The committee is convinced that any difficulty with respondent’s answers given at the recusal hearing is posed by the highly charged nature of the recusal hearing, the nature and tone of the questions and the obvious collaboration between plaintiffs counsel and the judge.

The record acquired by this committee reflects significant consistency between respondent’s and Judge [J’s] recollections of their conversations. Judge [J] also acknowledged that respondent’s conclusions, given the circumstances, were correct. Judge [J’s] testimony before this committee was:

“Having said that [discussing [M] with respondent] and with everything else that was going on with the courts, the backlog and all this other business, I can see where somebody could come to a conclusion that they thought that [A] couldn’t give a fair trial from this knowledge of Judge [A] because there were stories in the paper how [A] was acting peculiarly.
“Well, I think what I meant to say was with everything that was going on at that time about the courts, even from my conversation about the eminent domain case, about the backlog, and what other people and I think the conduct of Judge [A] is during the course of that trial, only from what I read in the paper how he acted, both a judge and witness, stuff like that, which I thought was very unusual, I can see where somebody could probably come to the conclusion he couldn’t get a fair trial in front of him. ”

It is the committee’s responsibility to judge the credibility of witnesses. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 275, 472 A.2d 186, 188 (1983). The committee has determined that Judge [K’s] testimony regarding his knowledge of the [B] case during the pendency of that matter is not clear and convincing. Specifically, Judge [K’s] failure to remember two requests by [G] for continuance of a specifically fisted case, given Judge [K’s] manner of investigating the need for continuance, because of the [B] trial, leads the committee to question the reliability of his testimony. Judge [K] testified that he personally would take a close look at circumstances if a request for continuance was made close to trial. This is what happened and the committee believes that Judge [K] twice acted on such a request. Given this testimony, along with the evidence that the [B] case was widely discussed in legal circles and reported in the media, the committee does not accept Judge [K’s] recollections.

The committee finds respondent’s testimony, based upon his own demeanor, the testimony of character witnesses on his behalf, and the consistency of his testimony, to be credible. Respondent’s assertion that his testimony in 1983 was truthful is supported by the evidence, if one examines, as the committee has, the context of respondent’s communications with Judge [J] and Judge [K].

The petition for discipline is denied.

CONCLUSIONS OF LAW

(1) The disciplinary board must prove its case by clear and convincing evidence. Office of Disciplinary Counsel v. Wittmaack; supra, Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). (Evidence is sufficient to prove misconduct if a preponderance of that evidence establishes the charged violation and the proof is clear and satisfactory).

(2) To meet the burden of proof by clear and convincing evidence, the disciplinary board must present evidence that is so clear, direct, weighty and convincing as to enable the [fact finder] to come to a clear conviction without hesitancy of the truth of the precise facts in issue. In re Adoption by Shives, 363 Pa. Super. 225, 525 A.2d 801 (1987).

(3) The evidence presented by the witnesses for the disciplinary board to the effect that respondent testified falsely at the recusal hearing in the [B] lawsuit was not clear and convincing; in fact, the evidence, including testimonial evidence, did not even meet the lesser burden or proof by a mere preponderance of the evidence.

(4) Because we find that petitioner’s evidence is not clear and convincing, we do not have to rule on the applicability of the two witness rule and we decline to do so. It is enough to say that Judge [J’s] testimony was not made known to Judge [K], or vice versa.

(5) Judge [J’sj testimony, in essence, corroborates respondent’s testimony.

(6) Respondent did not engage in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of D.R. 1-102(A)(4).

(7) Respondent did not engage in any conduct that adversely reflects on his fitness to practice law in violation of D.R. 1-102(A)(6).

(8) Respondent did not lmowingly make a false statement of fact in violation of D.R. 7-102(A)(5).

RECOMMENDED DISPOSITION

It is our recommendation that the petition for discipline be denied.

ORDER

HELWIG, Chairman

And now, March 10,1988, the report and recommendation of the special hearing committee dated February 12, 1988, finding that no violation had been established and that the petition for discipline be dismissed is accepted; it is ordered and decreed, that the charges against [respondent] be dismissed.

       Examples of the colloquy at the hearing follow:
      Q: [Respondent], would you tell me the number of people, excluding your client, who told you directly that regardless of the merits Judge [A] would ultimately award a large judgment against the defendants and in favor of [G] and his client?
      A: These were single conversations in which the —
      [F]: Objection.
      [G]: Your Honor —
      [Respondent]: I have to answer this question?
      The Court: I am overruling the objection.
      [Respondent]: This is [I’s] affidavit, not my affidavit. I am telling you what was told to me, and what was told to me was that it was general knowledge that we —
      [H]: Objected to, Your Honor. ...
      Q: At any time either in person or on the telephone, when you saw Judge [J] after that meeting in April 1982, at the dinner party, did he ever repeat to you that regardless of the merits Judge [A] was going to award a huge verdict in favor of the plaintiff?
      [F]: Objection.
      The Court: Overruled.
      Q: (By [H]) Yes or no, and then you can explain.
      A: I can’t answer that way. I have to tell you —
      [H]: Your Honor, I think the question can be answered yes or no with an explanation ...
      The Court: You can answer that yes or no, [respondent], and then explain.
      A: I don’t recall that he used those precise words, but in substance he told me precisely the same import, that we could not get a fair trial because of the relationship between the judge and [G].
      Q: How many times, number, give me a number, [respondent], did Judge [J] say to you, regardless of the merits, Judge [A] would find a huge award for the plaintiff, or words to that effect?
      [F]: Objection.
      The Court: Overruled.
      A: I think I told you, I remember two occasions when the substance was, that because —•
      [H]: I just asked for a number.
      The Court: He said two.
      [H] That’s the answer.
      [Respondent]: I think I have a right —
      [H]: May we get an admonishment that on redirect his counsel can inquire of him?
      The Court: The question is how many times. You can answer the number of times —
      [Respondent]: May I have the question read back?
      [H]: It’s been answered. May I ask the next question?
      [Respondent]: I think I have a right to explain the answer in view of the nature of the question.
      The Court: Read the question back.
      [Respondent]: It’s the words to that effect —
      [H]: I’m addressing the court, [respondent]. The question asked for a number. My question has been answered . . .
      The Court: It only requires a number. If you think that those words are significant on redirect you can address it. It just requires a number. The question is answered.