author: Hearing Committee,

text:
    In re Anonymous No. 42 D.B. 87
    Disciplinary Board Docket no. 42 D.B. 87.
    November 27, 1987
   To the Disciplinary Board of the Supreme Court of Pennsylvania:

Hearing Committee,

Hearing Committee [ ], pursuant to rule 89.171 of the Rules of Disciplinary Enforcement, submits its findings and recommendations together with the record in this proceeding.

STATEMENT OF THE CASE

Respondent, [ ], is the subject of a petition for discipline filed by the Office of Disciplinary Counsel, [A], assistant disciplinary counsel, [ ], Pennsylvania, alleging violations of the following Disciplinary Rules:

(a) Rule 1-102(A)(3) — dealing with illegal conduct involving moral turpitude; and

(b) Rule 1-102(A)(6) — dealing with conduct adversely reflecting upon a lawyer’s fitness to practice law.

Hearing Committee [. ], consisting of [ ], conducted a hearing at the Office of the Disciplinary Counsel on Tuesday, September 22, 1987, commencing at 10 a.m. Present for the Office of Disciplinary Counsel was [A], assistant disciplinary counsel, and [B], investigator. Present for the respondent was respondent, [ ], and his counsel, [C], Esq.

After the required notification to respondent pursuant to section 89.151 of the Disciplinary Board Rules, respondent, through his counsel, stipulated to all allegations set forth in the petition for discipline except for allegation no. 7 and further stipulated that the sole issue to be determined by the hearing committee, given respondent’s admissions of his cocaine possession and his cocaine history, was the appropriate discipline to be imposed upon respondent. During the course of the hearing, respondent made no attempt to dispute any factual allegations contained in the petition for discipline.

FINDINGS OF FACT

(1) Respondent, [ ], Esq., was bom in 1942, admitted to practice law in the Commonwealth of Pennsylvania in 1969 and his office is located at [ ].

(2) On October 29, 1985 and October 30, 1985, respondent testified under oath as a. government witness at a trial held in the United States District Court for the [ ] District of Pennsylvania before District Judge [D] and a jury in the case captioned United States of America v. [E], [F], [G], [H], [I], [J], [K], [L] and [M], filed at Criminal nos. [ ] and [ ].

(3) In exchange for respondent’s testimony, the U.S. Attorney’s Office agreed not to prosecute him for admitting that he used and possessed cocaine.

(4) During the trial, respondent testified during direct examination that he purchased cocaine from various individuals, including [N], [O], [P], and [F].

(5) During the trial, respondent testified during cross-examination that:

(a) he used cocaine from 1977 or 1978 “on and off’ until the beginning of 1983;

(b) during some weeks he used four or five grams of cocaine; and

(c) he had “a problem” with cocaine.

(6) Sometime in 1983, respondent ceased the use of cocaine because of the problems that were caused by its use, including interference with his personal life, the strain placed on his marriage, the difficulty of handling his legal practice and the injury to his health.

(7) Respondent was fully aware that the criminal laws of the Commonwealth of Pennsylvania prohibited the possession of cocaine.

(8) Respondent used cocaine many times in the presence of others, some of whom knew he was an attorney.

(9) Respondent purchased cocaine from others, some of whom knew he was an attorney.

(10) After he ceased the use of cocaine in 1983 and before his awareness of the federal drug investigation or the current petition for discipline, respondent made a conscientious attempt to restore his marriage, to improve his relationship with his children, to salvage his law practice and to involve himself in worthwhile community endeavors, including the following:

(a) his participation as an actor in an industrial film portraying the evils of drug usage;

(b) active involvement with the [ ] Township ([ ] County) Drug and Alcohol Task Force;

(c) his membership of the DUI (driving under the influence) advisory council of CARE, a drug and alcohol program; and

(d) active participation as a member and an officer of the [ ] Club.

(11) During the period of respondent’s active usage of cocaine, his law practice suffered to the extent that he was forced to file a personal bankruptcy in 1981.

(12) After the filing of the personal bankruptcy, respondent paid all federal tax liabilities which had accrued prior to that date.

(13) By August 1984, respondent had reestablished his law practice to the point where it was financially viable and had employed his wife as a secretary, even though they were separated.

(14) Having been advised of the pendency of a federal drug investigation involving one of his clients in August 1984, which investigation also involved allegations of respondent’s purchase and use of cocaine, respondent, through counsel, volunteered to cooperate with the federal investigation.

(15) Respondent received no grant of formal immunity in exchange for his cooperation.

(16) Respondent testified before the federal grand jury and in the aforementioned criminal action subsequently commenced in the Federal District Court for the [ ] District of Pennsylvania.

(17) There was extensive media reporting on respondent’s testimony in the federal district court criminal case which had an adverse affect on his law practice and caused great disruption in his marriage and in his relationship with his family.

(18) The aforementioned adverse publicity severely affected respondent’s son to the point that psychological counseling was necessary and also contributed to the second separation with his current wife.

(19) As a result of the aforementioned adverse publicity attendant to his cooperation and testimony, respondent’s law practice was severely affected and he found himself in financial difficulties once again.

(20) Since the date of his testimony in the federal court criminal matter, respondent has re-established his standing in the community and has successfully rehabilitated his law practice.

(21) Respondent has not used or purchased cocaine since 1983.

DISCUSSION AND RECOMMENDATIONS

After deliberation, it was the unanimous decision of Hearing Committee [ ] that respondent violated Disciplinary Rules 1-102(A)(3) and 1-102(A)(6). The panel was impressed with the fair and evenhanded presentation of counsel for petitioner as well as the testimony of respondent. Counsel for petitioner indicated in his closing remarks that there were numerous mitigating circumstances present in the case which made it inappropriate for a suspension and the panel agrees. These mitigating circumstances are as follows:

(1) Respondent’s cooperation with the federal drug prosecutors;

(2) The fact that respondent has never been charged with a crime;.

(3) That the disciplinary proceedings against respondent are based entirely upon his admissions at a trial during which he testified without grant of immunity;

(4) The total lack of any evidence of current cocaine or other illicit drug usage;

(5) The rebuilding of respondent’s law practice; .

(6) Respondent’s active role in community affairs prior to the commencement of this disciplinary action;

(7) The. absence of any proof that any of respondent’s clients were in any way harmed as a result of his violations of the Disciplinary Rules; and

(8) Respondent’s reconciliation with his wife and. children.

While the committee clearly views respondent’s conduct during the period 1977 through 1983 as illegal conduct involving moral turpitude and certainly conduct adversely reflecting upon a lawyer’s fitness to practice law, the panel stropgly recommends. that in view of all of the facts and circumstances as set forth above, respondent be subject to a private reprimand rather than a suspension or a public reprimand. The hearing committee acknowledges that one of the legitimate purposes of the disciplinary system is to protect the public, but in view of the fact that no member of the public is endangered by respondent’s continuation of his practice of law and further that his conduct has already been made public, the committee can see no legitimate reasons for inflicting further damage upon respondent and his family.

Respondent fully acknowledged the wrongfulness of his conduct as well as the serious potential it created for harm to his clients. He made no attempt to justify or minimize his conduct. Rather, he and his counsel pleaded only that he not be suspended from the practice of law and further that any censure be a private one. He emphasized that he has already twice suffered for his cocaine dependency and that he has twice had the courage to rebuild his life and his law practice.

The committee also makes note of the fact that the ordinary case in which a respondent is a subject of disciplinary proceedings based upon drug usage almost always involves a criminal charge or conviction. In the instant case, respondent’s dilemma was created by his voluntary cooperation with the federal government in pursuing its drug prosecution.

RECOMMENDATION

The committee unanimously recommends that respondent be found to have violated Disciplinary Rules 1-102(A)(3) and 1-102(A)(6) and that petitioner receive a private censure.

ORDER

And now, January 15, 1988, upon consideration of the report and recommendation of Hearing Committee [ ] dated November 20, 1987; it is ordered and decreed, that the said [respondent] of [ ] County, be subjected to private reprimand by the Disciplinary Board of the . Supreme Court of Pennsylvania as provided in rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement at the next session of this Board. Costs are to be paid by respondent.


source: Caselaw Access Project

author: ERB,

license: Public Domain

text:
    Bitzer v. York Suburban School District

      March 6, 1990

      Thomas W. Scott and Ronda K. Kiser, for petitioner.
    . Michael W. King and William H. Neff Jr., for respondent.
   ERB,

This matter is before the court on appeal of petitioner, Roy T. Bitzer, from an adjudication entered by respondent, York Suburban School District, on March 2, 1988.

The relevant pleaded facts are as follows. Petitioner was granted a sabbatical for the school year 1986-87 pursuant to Public School Code 24 P.S. § 1166 et seq. Before his leave, he was teaching ninth grade drafting, Graphic Arts I, Graphic Arts II and photography. In addition, he was assigned to afternoon bus duty and supervision of one study hall. After the sabbatical, his schedule consisted of Metal I, ninth grade metal, three study halls, a homeroom and lunch duty. Petitioner is certified to teach metal shop but had not done so for about 25 years.

Public School Code of 1949, March 10, P.L. 30, Article XI, §1168, as amended, 24 P.S. §11-1168 states that after a sabbatical the teacher must be returned to the “same position in the same school.” Petitioner, claiming he was not returned to the “same position,” requested a hearing pursuant to Local Agency Law, 2 Pa.C.S. §551 et seq.

A hearing was held before the Board of School Directors on March 2, 1988. The board issued an adjudication which was approved by the board at the regular meeting on June 20, 1988. The adjudication concluded that petitioner’s assignment for the school year 1987-88 within the industrial arts department “constituted the same position in the same school which he held prior to his sabbatical leave and that there has therefore been no violation of his rights under section 1168 of the Public School Code.”

Petitioner is appealing the adjudication on the grounds that “same position” means a full teaching schedule.

Section 1168 of the Public School Code (24 P.S. §11-1168) controls the decision in this case. The section reads:

“No [sabbatical] leave of absence shall be considered a termination or breach of the contract of employment and the person on leave of absence shall be returned to the same position in the same school or schools he or she occupied prior thereto.”

Section 1168 of the Public School Code was enacted as a protection for school teachers returning from sabbatical leave. The definition of “position” cannot be viewed so narrowly as to include only teacher title or certifications, and exclude course assignments and grade level of students. To do so would encourage school districts to do just what has occurred in this case. Districts would be permitted to force senior teachers out of their positions, coercing them into unwanted early retirement by giving them unfamiliar assignments, and by giving them unprofessional, embarrassing assignments following a return from sabbatical leave.

In the case of petitioner, being returned to the “same position” means that of a teacher. A teacher is defined as someone who spends at least 50 percent of his time in “direct educational activities.” (24 P.S. §11-1141.) Petitioner teaches two periods out of eight which is only 25 percent of the teaching day. Respondent has provided a schedule which removes petitioner’s status as a teacher. Respondent, therefore, has not returned petitioner to the “same position” which he held prior to his sabbatical.

The court does not accept respondent’s comment that study hall supervision is a “direct educational” activity within the meaning of section 1101 of the code(24P.S. §11-1101). Nowhere in section 1101 do the words “study hall” appear. A study hall is a room in which students may study during their free time. No special expertise is needed to monitor a study hall. No stretch of the imagination can call study hall supervision a “direct educational” activity.

In Fiorenza v. Board of School Directors of Chichester School District, Commonwealth of Pennsylvania, Department of Education, 28 Pa. Commw. 134, 367 A.2d 808 (1977) petitioner did not meet the requirements of a teacher because he did not spend at least 50 percent of his time in direct educational activity. In the instant case, petitioner has been reduced to less than 50 percent of his time being spent in direct educational activity. If he does not spend 50 percent of his time in direct educational activity, he is not a teacher, and therefore, is not in the same position held prior to his sabbatical.

In this case, respondent argues that the “position” to which petitioner returned was the same as the one which he left because it entails the same certification, is in the same budding, and is for the same grade level. Petitioner was deprived of his position. The assignment he received was not what he had when he left, it remained the same only in name and job title; not in the corresponding duties, responsibilities, importance, and prestige.

Respondent argues that petitioner should have demanded a demotion hearing if he believed he was demoted. Whether or not he asked for such a hearing being reduced from five classes to two classes is a demotion. The court in Commonwealth v. Kauffman, 21 Pa. Commw. 89, 383 A.2d 391 (1975), stated that the two positions must be evaluated for their differences in “importance, dignity, responsibility, authority, and/or prestige.”

Respondent mentions Dinberg v. Oil City School District, 52 Pa. Commw. 449, 416 A.2d 1139 (1980), and Roland v. Hanover Public School District, 97 York Leg. Rec. 13 (1983), to support its contention that petitioner came back to the same school in the same position after his sabbatical. In Dinberg, supra, petitioner was not returned to the same school because he had been teaching elementary school and junior high school. He was returned to the elementary school only. As far as the “same position” the case does not mention what classes or how many petitioner taught when he returned from his sabbatical. Therefore, Dinberg, supra, is not analogous to the instant case.

Roland, supra, pertained to a senior high guidance counselor who returned from sabbatical to an assignment as a guidance counselor in a middle school. The court found that the school district was in violation of 24 P.S. §11-1168. The court stated that “ . . . the position of counseling middle school students is not the same as the position of counseling high school students.” In the instant case, teaching two classes after a sabbatical is not the same as teaching a full schedule before the sabbatical. The court in Roland, supra, stated “ ... we hold Dinberg to stand for the proposition that li-li 68 is to be interpreted to mean that the teacher must consent to a waiver of the right to return to the same position or to the same school. ” In the case at bar, petitioner did not waive either right.

Respondent claims that Rowe v. Rose Tree Media School District, Teacher Tenure Appeal no. 191, is on “all fours” with the case at bar. Petitioner in Rose Tree, supra, was seeking a reduced schedule from that assigned to him after his sabbatical. Petitioner in the instant case is seeking to have classes added to his schedule — not subtracted. Petitioner also did not refuse to teach, while this matter was being adjudicated.

Petitioner filed a reply brief in May 1989, when a similar case in Centre County Court of Common Pleas was decided in favor of respondent. (Pursell v. Bald Eagle Area School District and Board of Directors of Bald Eagle Area School District, Centre County Court of Common Pleas Docket no. 1989-155). Petitioner had been teaching four senior high level social studies courses and one junior high level course. Upon return from sabbatical, petitioner was scheduled for five classes of seventh and eighth grade social studies courses. Respondent filed a reply stating that Dinberg was controlling, not Pursell.

Finding in favor of the teacher, the Centre County court recognized that none of the Public School Code provisions guarantee teaching assignments, except for section 1168, dealing with sabbatical leaves. In addition, the court reasoned:

“[S]ince sabbaticals are granted for purposes of continuing one’s education, researching, or improving one’s health, the legislature did not intend that a teacher spend the latter portion of a sabbatical preparing new lesson plans for all new classes . . . [i]f the term ‘position’ in the statute réfers only to the general classification of a teacher’s job, rather than his/her position within a school, then there would be no need to specify that the teacher should be returned to the same ‘position.’ ” (emphasis in original)

The court held that Dinberg was not controlling on the issue presented in Pursell. The court held:

“[W]e believe the legislature intended to accord the term ‘position’ a greater meaning. That is, we believe ‘position’ encompasses the courses an instructor teaches as well as the grade level of the students whom he/she teaches.”

The evidence in Pursell established that prior to her sabbatical, the predominant focus of petitioner’s teaching assignments had been the upper-level social studies courses. The court recognized that there was no such evidence of “predominant focus” in the Dinberg case and, therefore, reasoned that it was not controlling.

Even though the Centre Country Court of Common Pleas decision in the Pursell case is not controlling, this court agrees with the decision — that petitioner should be returned to the same position she held before her sabbatical in accordance with 24 P.S. §1168. In the instant case this court finds that respondent violated 24 P.S. §1168 when it did not return petitioner to full teaching status after his sabbatical. Therefore, petitioner must be returned to the same position he held prior to his sabbatical.

Accordingly, we enter the following

ORDER

And now, March 6, 1990, the appeal of petitioner, Roy T. Bitzer, is granted. The order of York Suburban School District is vacated, and the district is directed to return petitioner to the same teaching position which he held prior to exercising his right to a sabbatical leave.


author: ACKER, P.J.,

text:
    Sunseri v. PennDOT
    November 14, 1989

      Richard A. Peterson, for plaintiff.

      Chester Korac, for PennDOT.
   ACKER, P.J.,

We have for consideration an appeal from license suspension of plaintiff for failure to submit to a blood test. Testimony was taken from which we make the following

FINDINGS OF FACT

(1) On July 8, 1989, Officer Merle L. Mason, with 16 years’ experience as a police officer employed by Pymatuning Township, was called to a residence on 19th Street of that township concerning an “unwanted party.”

(2) Officer Mason responded to the call, but prior to reaching the residence was informed that the “unwanted party” had left the residence.

(3) As the officer approached the residence, he, however, found a green Chevrolet pickup truck traveling away from the residence at approximately 50 yards down the'street from the residence with a white male behind the driver’s wheel.

(4) The officer stopped the vehicle and noted a strong odor of alcohol upon the breath of the driver, William Joseph Sunseri.

(5) The officer told Mr. Sunseri to shut off his. truck, including his lights.

(6) Plaintiff, William Joseph Sunseri, alighted from the truck and Officer Mason conducted a field sobriety test including a heel-to-toe test and an index finger test, both of which plaintiff failed.

(7) The officer noted on the driver’s door a plastic holder containing a can of beer which was ice-cold. In addition, there were four or five cans of beer which were cold on the seat, the side where plaintiff was seated.

(8) Plaintiff had a strong odor of alcohol upon his breath.

(9) In the opinion of the officer, plaintiff, William Joseph Sunseri, was incapable of safe driving due to the consumption of alcoholic beverages and was charged with driving while under the influence of intoxicating beverages.

(10) Plaintiff was placed in the back seat of the cruiser. Plaintiff stated he wanted to talk to his girlfriend in the residence that he had just left. The officer then went to that residence, but the girl did not want to talk to plaintiff.

(11) Plaintiff was read-his Miranda rights from the district attorney’s card at about 1:15 a.m. and within a few minutes thereafter, he was given his implied consent rights, being at 1:17 a.m.

(12) As the officer proceeded towards the Green-ville Hospital, he radioed ahead to Greenville police that he was bringing plaintiff in.

(13) Plaintiff requested permission to make a phone call upon arrival at the hospital to talk to his sister. Officer Mason did not recall his request but stated that he could not be . certain that plaintiff did not so ask and we accept as a fact that he did ask to make a call but was refused consent to do so at the hospital.

(14) The officer did not explain to plaintiff that the law concerning Miranda rights is not applicable to the rights granted by statute concerning failure to take a test to determine the quantity of alcohol in one’s blood.

(15) At 2 a.m. plaintiff, after being informed of his rights, refused to submit to a blood test although he was warned by the officers on three different occasions that he could lose his license if he did not take the test.

(16) Plaintiff admitted that he had had two or three beers between 11 o’clock and 11:30 p.m.

(17) Plaintiff stated that he was upset because his girlfriend was continually calling him.

Upon these facts this matter must be decided.

DISCUSSION

It is the contention of plaintiff, William Joseph Sunseri, that this matter is controlled by Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989) and Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). They involve the announcement, interpretation and application of a rule of our Supreme Court explaining the relationship of Miranda warnings to cases where a driver is asked to submit to a breathalyzer or blood test.

As noted in O’Connell, section 1547(b) of the Vehicle Code requires that the commonwealth establish that the driver involved: (1) was arrested for driving while under the influence of alcohol; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver’s license. O’Connell, supra, citing Everhart v. Commonwealth, 54 Pa. Commw. 22, 420 A.2d 13 (1980).

In the case at bar, the commonwealth met its burden by establishing the four elements articulated in Everhart. The burden of proof then shifted to petitioner to prove that he was not capable of making a knowing and conscious refusal to take the test. As discussed below, because of the rule set forth in O’Connell, supra, and followed in McFadden, supra, we find that petitioner met his burden and his license must be reinstated.

As stated in O’Connell, supra, in many cases in which the police are investigating a possible driving while under the influence charge, the defendant is given his Miranda warnings. If the arrestee hesitates and attempts to exercise his Miranda rights by asking for a lawyer or asking to make a phone call, a refusal is recorded. This is wrong because an arrestee who is not trained to recognize the difference between a civil and criminal investigation can easily become confused and become a target of manipulation by the police. Id. Therefore, the rule as stated in O’Connell is that:

“[I]n 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 an 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.” O’Connell, supra.

Shortly after the O’Connell decision, the Pennsylvania Supreme Court applied its teachings in Commonwealth v. McFadden, supra. In McFadden, after the officer read the defendant his Miranda rights, the defendant was then asked to submit to a breathalyzer test. The defendant refused and asked to make a phone call. A refusal to submit to the test was recorded and sent to the Department of Transportation, Bureau of Traffic Safety. The Supreme Court ruled that since the police did not give appellant the information required by O’Connell to satisfy its requirements that a licensee make a knowing and conscious refusal, they would apply the holding of O’Connell and conclude that the appellant had sustained his burden to demonstrate that his refusal was not knowing and conscious. McFadden, supra.

In the instant case the facts reveal that the petitioner has sustained his burden of demonstrating that his refusal was not knowing and conscious. Petitioner was arrested and read his Miranda rights at 1:15 a. m. Almost immediately following the reading of his rights, petitioner was given his implied consent rights. Petitioner, on the way to the hospital, requested that he be allowed to call his sister. Once at the hospital petitioner refused to submit to a blood test -despite being warned by the officer three times that he could lose his license if he did not take the test. The officer failed to explain to petitioner that the law concerning Miranda rights was not applicable to the rights granted by statute concerning failure to take a test to determine the quantity of alcohol in one’s blood. Thus, the rule in O’Connell, supra, and McFadden, supra, requires that we find that petitioner did not make a knowing and conscious refusal to take the blood test.

ORDER

And now, November 14, 1989, it is hereby ordered and decreed that the appeal of petitioner, William Joseph Sunseri, from a license suspension for failure to take a blood test is sustained. Defendant, Commonwealth, Department of Transportation, Bureau of Driver Licensing, shall return to petitioner his driving privileges.


author: SNYDER, P.J.,

text:
    Commonwealth v. Walker
    March 6, 1990

      Timothy Paul Morris, assistant district attorney, for the commonwealth.
    Defendant appeared pro se.
   SNYDER, P.J.,

Defendant has been cited with violating section 3361 of the Motor Vehicle Code (75 Pa.C.S. §3361), which mandates the operator of a motor vehicle to drive at a safe speed.

Section 3361 reads:

“No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.”

FACTS

The commonwealth’s evidence was that Officer Guy Battistilli of the Punxsutawney Borough Police Department, while on routine police car patrol about 9 p.m. on November 2,1989, was stopped at a traffic signal at the intersection of South Gilpin Street and West Mahoning Street. Officer Battistilli’s patrol car was facing north on South Gilpin Street waiting for a traffic signal to change from red to green. While Officer Battistilli was waiting for the signal to turn green, defendant, with a green signal for Mahoning Street traffic, went through the intersection in a westerly .direction at a speed which Officer Battistilli estimated to be between 35 to 40 miles per hour. The speed limit at that point is 25 miles per hour. When the signal light turned green to permit Officer Battistilli to proceed,. he proceeded in the direction defendant was traveling, i.e. west on West Mahoning Street, and observed defendant so far ahead of him that Officer Battistilli concluded, with justification, that defendant had continued to operate his vehicle at a speed in excess of the posted 25-mph speed limit on West Mahoning Street.

The road conditions were dry and visibility was unlimited. Traffic was light. In fact, Officer Battis-tilli testified that after he turned from South Gilpin Street onto West Mahoning Street to follow defendant, there were no vehicles between his patrol car and defendant’s vehicle even though defendant’s vehicle was already a considerable distance ahead of Officer Battistilli’s vehicle.

Likewise, there is no evidence of any pedestrians in sight at the Gilpin - West Mahoning intersection or elsewhere along West Mahoning Street. Nor is there any evidence of any vehicles attempting to park or attempting to leave parking places along West Mahoning Street.

West Mahoning Street at its intersection with Gilpin Street is primarily commercial in nature and continues to be commercial in nature for a few hundred feet in a westerly direction after which it is primarily residential in nature.

We are satisfied beyond a reasonable doubt that the defendant was operating his vehicle at a speed of at least 10 to 15 mph in excess of the posted 25-mph speed limit.

ISSUE

Can the mere proof of speed in excess of the posted maximum speed limit sustain a conviction for violation of section 3361 of the Motor Vehicle Code?

DISCUSSION

We find few reported cases which provide much guidance. While there are a multitude of civil cases which have dealt with the mandate of section 3361 to drive at a safe speed, many of which deal with the “assured clear distance” concept, the only recent cases we have been able to locate discussing section 3361 as a summary criminal offense are Commonwealth v. Vishneski, 380 Pa. Super. 495; 552 A.2d 297 (1989); and Commonwealth v. Monosky, 360 Pa. Super. 481, 520 A.2d 1192 (1987).

In Monosky, a conviction for failing to drive at a safe speed was sustained where the trial record indicated that the defendant was initially observed by two patrol officers who testified that the defendant was driving in excess of the posted speed limit of 25 mph, and this was a residential area in which on the particular day of the alleged offense the weather was foggy and wet. Monosky at 484, 520 A.2d at 1193.

In Vishneski, the Superior Court found the evidence sufficient to support a conviction of section 3361 where, despite lack of evidence of weather conditions, the arresting officer testified that the defendant was timed at 84.5 mph on a limited-access highway with a posted speed limit of 55 mph, that the defendant was driving in an area where traffic was required to merge and exit, that there was a truck traveling on the same route as the defendant and that the defendant was entering and exiting the highway at a high rate of speed within a distance of approximately one-tenth mile. Vishneski at 503, 552 A.2d at 301.

We notice that in each of the foregoing cases there was something other than speed in excess of the speed limit which the court pointed'to in determining that section 3361 had been violated. In Monosky it was the foggy and wet weather conditions. In Vishneski it was the congested nature of the limited-access highway, the exit and on-ramp design and the existence of the truck traveling on the same route as the defendant.

The commonwealth argues that because the excessive speed in the case sub judice occurred at an intersection in a commercial area and in a residential area where there are parked cars and the likelihood of pedestrians, these circumstances are “conditions” and “potential hazards” within the meaning of those words as they appear in section 3361 as follows:

“No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing ...” (emphasis supplied)

We are not convinced by this argument. In discussing the predecessor of section 3361, the Superior Court has indicated that the word “conditions” within the statute refers to both animate and inanimate objects, either fixed or moving, and includes the amount of traffic on the street, the presence of ice or rain, the presence of pedestrians and most particularly children of tender age. Commonwealth v. Way, 170 Pa. Super. 109, 111, 84 A.2d 225, 226 (1951).

In addition, we take note of the language of another case which deals with the predecessor of section 3361. Commonwealth v. Klick, 164 Pa. Super. 449, 65 A.2d 440 (1949). In Klick the Superior Court states “one may exceed permissible maximum speed limits on occasion, in the operation of a motor vehicle and still not be chargeable with violation of 1002(a).” Klick at 452, 65 A.2d at 442.

CONCLUSION

Accordingly, we are of the opinion that merely establishing that defendant drove his vehicle in excess of the posted maximum speed limit is insufficient to convict defendant for a violation of section 3361.

VERDICT

And now, March 6, 1990, after trial de novo in this case we find the defendant not guilty of violating section 3361 of the Motor Vehicle Code.


author: KEELER,

text:
    Corry v. Nationwide Insurance Company
    January 8, 1990

      Edward D. Conway, for plaintiff.

      Mary Rogers Auchincloss, for defendant.
   KEELER,

Plaintiff filed this action seeking first-party benefits under her automobile insurance policy issued by defendant after she was injured while standing near a truck. Ms. Corry was attending an auction where she had purchased certain goods, including a copier. One of the workers from the auction told her “to come over to the truck and I’ll hand to you the cartridge for the copier.” While she was waiting outside the back of the truck, a pole fell out of the truck and struck Ms. Corry on the forehead and other portions of her body. At the time the pole toppled, Ms. Corry was standing approximately “a foot or less” from the truck itself.

Based upon this record, both parties have filed cross-motions for summary judgment, claiming that the court can determine the issue of whether or not Ms. Corry is entitled to first-party benefits from her insurance company. The insurance policy issued by defendant specifically excludes payment of first-party benefits where injuries result from loading or unloading any automobile. Plaintiff contends that this language is unenforceable as contrary to the specific statutory provisions of the Pennsylvania Financial Responsibility Act. In support of this contention, plaintiff directs the court’s attention to two recent cases which declared specific exclusions in insurance policies unenforceable. Omodio v. Aetna Life and Casualty, 384 Pa. Super. 544, 559 A.2d 570 (1988); Kardos v. Allstate Insurance Co., 136 Pitts. L. J. 389 (1988). Plaintiff suggests that these cases stand for the proposition that any exclusionary language which prevents an individual from receiving compensation as a direct result of loading or unloading any vehicle is void as contrary to the financial responsibility law. A reading of the Omodio decision suggests that plaintiff’s position overgeneralizes the current status of the law.

In Omodio, the plaintiff suffered an injury to his lower back while standing inside and loading his truck for work. The defendant insurance company refused to pay a claim for excess wage-loss benefits in reliance upon its policy’s exclusion from coverage for anyone “sustaining injury as a direct result of loading or unloading any motor vehicle.” Omodio, supra. The trial court in Omodio found that the defendant’s exclusionary language violated the terms of the Financial Responsibility Law and was therefore unenforceable. In reaching this conclusion, the trial court relied upon the fact that the Financial Responsibility Law contained no language which omitted the “loading/unloading exclusion” which was present in its predecessor statute, the No-fault Act. Thus, the trial court held that this omission evinced the legislature’s intention that persons loading or unloading motor vehicles were eligible for benefits. In affirming the trial court’s decision, the Superior Court observed:

“Whether this interpretation is in fact correct and all persons injured in the course of loading or unloading a motor vehicle — those who were not occupying, entering into, or alighting from the vehicle, as well as those who were — are entitled to coverage under the financial responsibility law, is an issue that we are not called upon to resolve in this appeal....” Id. (emphasis supplied) Thus, Omodio did not decide the precise issue presented here. However, Omodio did reach a legal conclusion which has impact on this case. Specifically, the court held that “the definition of ‘maintenance or use of a motor vehicle’ set forth in the prior No-fault Act is to be applied in determining whether . . . [an insurer] is required by the present financial responsibility law to extend coverage. ...” Id. Thus, we are directed to the No-fault Act for a determination of what properly falls within the ambit of the Financial Responsibility Act in terms of maintenance of use of a motor vehicle. The No-fault Act provided:
“Maintenance or use of a motor vehicle means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a.motor vehicle does not include:
“(B) Conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.” 40 P.S. §1009.103 (repealed).

In applying this definition of maintenance or use of a vehicle, it is clear that loading or unloading a motor vehicle does not fit within the definition of maintenance or use unless such loading or unloading is an adjunct to occupation, entry or exit from the vehicle itself. Clearly then, Ms. Corry was not a member of the class which was meant to be afforded protection. Ms. Corry was not at the time of the accident involved in an effort to occupy, enter or exit the vehicle. Rather, shé was simply waiting to receive a package from an individual who was in the back of the truck. Unfortunately for Ms. Corry, she was struck while waiting just outside the rear of the vehicle.

While Omodio speaks in rather broad terms in order to establish entitlement to protection under the. terms of the Financial Responsibility Law, the holding is founded on the application of the No-fault Act’s definition of maintenance or use of a motor vehicle. In the Omodio situation, the application of that statute where an individual was actually present within the vehicle commended an outcome which commanded the insurance company to provide coverage. Where, as here, the plaintiff was not within the vehicle or attempting to enter or exit the vehicle, the analysis is different and a contrary result is obtained.

Plaintiff also directs our attention to the Kardos decision of the Allegheny Court of Common Pleas. Here again, the facts are distinguishable from the case at bar. In Kardos, the plaintiff was injured while inside a vehicle stacking packages. Kardos, supra. Thus, the factual matrix is more readily identifiable with the facts in Omodio as contrasted with the facts of this case.

For the foregoing reasons, the court must deny plaintiff’s motion for summary judgment and grant defendant’s cross-motion for summary judgment. Accordingly, defendant has no obligation to pay first-party benefits to plaintiff.


author: LOUGHRAN, ].,

text:
    Southwest National Bank of Pennsylvania v. Carson
    February 28, 1990

      Joseph Mitinger, for plaintiff.

      Ross S. Bash, for defendant.

      Charles D. Sheehy, for additional defendant.
   LOUGHRAN, ].,

This is an action for mortgage foreclosure. Judgment has heretofore been entered against defendant, Robert F. Carson, and the United States of America has consented to a limited judgment of mortgage foreclosure which has been entered of record.

Heather M. Carson has contested the proceedings against her. A non-jury trial was held before the Honorable Charles H. Loughran on October 24,1989, and on November 14, 1989, the court entered an order dismissing defendant Heather M. Carson’s petition to stay the foreclosure proceedings and authorized plaintiff to proceed with the foreclosure action.

Defendant, Heather. M. Carson, subsequently filed a motion for post-trial relief and a brief was filed by her counsel supporting her position. No copy of the transcript of the trial was furnished by defendant, Heather M. Carson, because of her asserted inability to pay for the same.

After receipt of briefs the matter was orally argued before the court sitting en banc on February 28, 1990.

DISCUSSION

The arguments raised by defendant, Heather M. Carson, in her motion for post-trial relief are essentially. a repetition of the arguments made to the court during and after the trial of the action. The court, in making its findings of fact and conclusions of law, carefully considered each of the legal positions asserted by the defendant, Heather M. Carson, and has rejected them.

While the argument propounded by counsel continually repeats assertions that plaintiff had a duty to attempt to find a more current address for Heather M. Carson when the letters containing her Act 6 and Act 91 notices were returned marked “unclaimed,” it is again apparent from the examination of the cases cited by counsel for defendant, Heather M. Carson, that there is no statement of law from any source which supports the assertion of the defendant. If the legislature had determined that additional searching for a defaulting debtor was to be required of creditors, it would have so provided in the legislation which it enacted. The legislature did not intend to permit defaulting debtors who simply move to avoid the process of law.

It is undisputed that plaintiff complied with the provisions of Act 6 and Act 91 by sending a notice in correct form to the street address of the mortgage property. The street address was also the last known address of defendant at the time the notices were sent. Thus, the bank fully complied with the statute. If the legislature had determined that more action was required, the legislation it enacted could easily have provided for personal service or some other form of personal receipt of the notices.

Defendant has argued that the case of First Federal Savings and Loan Association of Wilkes-Barre v. Van Why, 29 D.&C. 3d 675 (1983) is more of defendant’s position than of plaintiffs. A careful reading of this case completely refutes defendant’s assertion. The facts of the case, as noted by the court in its opinion, showed that the bank mailed the notice of intention to foreclose the mortgage to the mortgagor’s last known address. Even though the letter containing the notice was returned marked “unclaimed,” the court found that the mortgagee had complied with the statute and nothing more was required.

The opinion of the learned Judge Williams of Monroe County in Van Why, supra, at page 682 specifically states as follows:

“ ‘Where a specified mode of giving notice is prescribed by statute, that method is exclusive,’ 58 Am. Jur. 2d Notice §22, 29 PLE Notice §4; Potter Title & Trust Co v. Berkshire Life Ins. Co., 156 Pa. Super. 1, 39 A.2d 268 (1944); Elfman, Point Bar, Liquor License Case, 212 Pa. Super. 164, 240 A.2d 395 (1968); Gramley v. City of Williamsport, 66 D.&C. 2d 495 (1974).
“Section 403(b) of the act, 41 P.S. §403(b), quoted supra, requires only that the notice be in writing sent by registered or certified mail to defendant’s last known address and, if different, to the residence which is subject of the residential mortgage. ... If defendant had wished to negative the validity of service, it would have been necessary to aver that Box 112 Seese Road was the Post Office address of neither defendant nor of the mortgage premises.” (emphasis supplied)

Defendant has argued both at the hearing on his petition and as well at the argument before this judge sitting as a court en banc to hear the post-trial motions, that his client was not given the proper notice because the mortgagee failed to make further investigation to ascertain his client’s then-current address which was different from the address of the mortgage premises — the only address that the bank was aware of when the notices were sent.

Defendant continually fails to cite cases in support of some investigative duty, under Pennsylvania law, the bank must undergo to allegedly have proper service under the act, with the exception of the case of Sharp v. Fidelity Bond and Mortgage Co., a 1982 bankruptcy case reported at 24 B. R. 817 (1982). This case stands for the proposition that Rule of Civil Procedure 3129(a) imposes upon a mortgagee an affirmative duty to make a reasonable good-faith investigation to ascertain the debtor’s current address. Unfortunately, this rule has nothing to do with the statutory requirements herein, and the case, therefore, is of no moment for our concern.

It is reasonable, therefore, to assume that in trying to balance the equities between debtors and creditors, the legislature did not intend to impose an unreasonable burden on creditors while requiring an effort on their part to notify debtors of possible actions to be taken against .them. Defaulting debtors can readily move from place to place and frequently can conceal their whereabouts with great ease. The legislature has determined that the mailing of a notice by certified mail to the address of the mortgaged property, or to the debtor’s last known address, is a sufficient action, calculated to inform a debtor with reasonable certainty of impending action. The legislature, in its wisdom, struck a balance between the rights of creditors and debtors by enacting the statutes as it did.

ORDER OF COURT

And now, February 28, 1990, after argument and submission of briefs pro and con regarding the defendant’s post-trial motions, it is hereby ordered, adjudged and decreed that the post-trial motions of the defendant are hereby denied.


author: TERPUTAC, J.,

text:
    Dunkle v. West Penn Power Co.
    February 27, 1990

      Paul A. Tershel, for plaintiffs.

      Clarence A. Crumrine, for defendant West Penn Power Co.

      Herman C. Kimpel, for additional defendant Radio Shack, a division of Tandy Corp.
   TERPUTAC, J.,

The issue is whether the trial court properly excluded governmental safety standards which were promulgated and became effective subsequent to the sale of the product.

Plaintiffs, Dorothy Dunkle, administratrix of the estate of Jack H. Rizor, deceased; Dorothy Dunkle, in her own right; and Howard Rice, an individual, brought a civil suit against West Penn Power Company, a corporation, and Robert Charles Paxton Jr., defendants. The suit arose out of an accident occurring on September 23,1983, when Jack H. Rizor was electrocuted and Howard Rice injured as they were removing a citizens band antenna from the house rented by Robert Charles Paxton Jr. Tandy Corporation had manufactured the antenna. At the time of the accident West Penn owned the electrical power line and Paxton owned the CB antenna which was being removed. In this suit, West Penn brought Tandy into the case as an additional defendant.

Plaintiffs instituted a second suit against Tandy at no. 21 of 1985. In this suit Tandy joined as additional defendants both West Penn and Paxton. The court consolidated the two suits at no. 90 of 1984. Before trial began, plaintiffs entered judgment by default against Paxton.

On the strict liability aspect of the case, the jury returned a verdict in favor of Tandy. To the question, “Was the product of Tandy Corporation defective?” the jury answered “No.” On the negligence aspect, the jury found that West Penn had been 15 percent negligent, Paxton 36 percent, and the plaintiffs 49 percent. It awarded $3,000 to the Rizor estate and $2,000 to Howard Rice.

After the motion for post-trial relief had been filed by plaintiffs, West Penn settled its case with them. West Penn has joined Tandy in opposing the motion.

The CB antenna had been purchased in the spring of 1977 or 1978. Tandy’s motion in limine sought to exclude the Consumer Product Safety Commission safety standards, which had been published on June 29, 1978, to be effective September 26, 1978. During. the trial, plaintiffs sought to introduce the safety standards both of 1978 and of 1982. Sustaining the objections of defendants, the trial court held that the safety standards were not admissible. For the reasons set forth, we will dismiss the motion for post-trial relief.

We have found no Pennsylvania cases on point. Even so, plaintiffs have cited Matsko v. Harley Davidson Motor Co., 325 Pa. Super. 452, 473 A.2d 155 (1984). There the Superior Court held that the trial court had not erred when it admitted into evidence the recall notice of the motorcycle. In so ruling, the court determined that the subsequent-repair rule, forbidding evidence of subsequent repairs in a negligence action, was inapplicable to a products liability case. Recall notices, issued after the accident, are distinguishable from subsequently promulgated standards. By its nature, the recall notice usually applies to defects existing at the time of the accident. Should the court allow evidence of subsequently promulgated standards, it would allow the jury to speculate that indeed the product was defective when it was sold.

In support of its contention that government regulations, which specify standards for products sold before the regulations had been promulgated, should not be admissible, defendant has cited several cases. In Oberreuter v. Orion Industries, 398 N.W.2d 206, 210, 211 (Iowa App. 1986), the trial court had sustained the defendant’s motion in limine and excluded from evidence CPSC standards for CB antennas manufactured prior to the requirement that manufacturers and importers of CB base station antennas and outdoor television antennas provide warnings, instructions, and labels. Affirming the exclusion of the safety standards, the Court of Appeals for Iowa held that post-sale regulations were prejudicial and inadmissible. The court rejected plaintiff’s contention that it should be allowed to demonstrate that the very existence of the subsequent regulations meant that an antenna without a warning was defective when sold to the plaintiff. And in Smith v. Formica Corporation, 439 So.2d 1194, 1200 (La. App. 1983), the court held that federal regulatory changes issued subsequently were inadmissible.

We are of the opinion that the ruling during trial was correct. Issues about the admissibility and ex-elusion of evidence are vested within the discretion of the trial judge and will not be reversed unless an abuse of discretion is found. Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 455, 467 A.2d 615, 621 (1983). During trial plaintiffs were accorded every opportunity to demonstrate a defective product. In fact, the court allowed plaintiffs to introduce into evidence an actual CB antenna manufactured by Tandy after the antenna in issue had been manufactured; this antenna contained a warning which was mandated by CPSC standards excluded at trial.

If their reliance on Matsko does not hold, plaintiffs say as a matter of public policy the court should allow the admissibility of post-accident standards, for admitting them is more important than excluding them: the quest to make products safe is paramount. But to rivet our minds on allowing the evidence would foster a precept so unfair and so prejudicial as to be deprecated. It is not enough to show that better changes are possible. Substantial policy reasons militate against the admissibility of post-accident standards. First, data on safety may not be available to the manufacturer at the time the product is sold. Second, an unreasonable danger exists in that subsequently enacted regulations may create a retroactive duty of care owed at the time of the accident. Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 868 (1984).

ORDER

And now, February 27, 1990, the motion for post-trial relief filed by plaintiffs, Dorothy Dunkle, administratrix of the estate of Jack H. Rizor, deceased; Dorothy Dunkle, in her own right; and Howard Rice, an individual, is dismissed.

Upon praecipe, the prothonotary shall enter judgment in favor of the additional defendant, Radio Shack, a division of Tandy Corporation, and against plaintiffs.


author: KELTON, J.,

text:
    Hopkins v. Bucks County Department of Parks and Recreation
    January 4, 1990

      Leonard N. Ross, for plaintiff.

      Martin J. King, for Bucks County Department of Parks and Recreation.

      Wallace H. Bateman and Charles A. Harad, for Marci Miller.

      Thomas M. Close, for Oxford Valley Public Golf Course.
   KELTON, J.,

On August 15, 1987, plaintiff, Helen Hopkins, age 72, was on the premises of the Oxford Valley Public Golf Course operated by Bucks County Department of Parks and Recreation.

Plaintiff had gone to the golf course to participate in a tournament which was being sponsored by the county. In charge of the tournament was defendant, Marci Miller, a county employee. Plaintiff had made prior arrangements to play with a group of friends, members of a women’s auxiliary.

While waiting for her tee-off time, plaintiff sat in a room adjoining the Pro Shop. When she was summoned to tee off, she rose from her chair, and while walking through a doorway to the Pro Shop, she tripped over Ms. Miller’s dog’s leash, which apparently was obstructing the doorway to the Pro Shop. Plaintiff fell on her left side and suffered a fractured femur.

The matter is now before us on defendant, Bucks County’s motion for summary judgment. The county argues that it is immune from liability and that the events are not within any of the exceptions to immunity set forth in section 8542 of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542.

Because we believe that defendant’s right to relief is not clear, we deny the motion for summary judgment.

42 Pa.C.S. §8542(b) provides in pertinent part as follows:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency; . . .
“(3) Real property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages [with exceptions not relevant here] . . .
“(8) Care, custody or control of animals — The care, custody or control of animals in the possession or control of a local agency, including but not limited to police dogs and horses ...”

Considering the record in the light most favorable to plaintiff, it may be possible for a fact-finder to conclude that plaintiff was a business invitee in defendant’s premises, and that the county’s employee was negligent in allowing the doorway area to remain in a dangerous condition obstructed by the dog leash.

The initial question is whether or not there is any liability which might arise out of the “care, custody or control of real property” in the possession of the county.

As to that issue, it has been held that the real-property exception from immunity must involve some sort of negligent conduct which is directly related to the condition of the property itself. However, this direct relationship may include the manner in which the real property is used in conjunction with personal property.

For example, in Singer v. School District of Philadelphia, 99 Pa. Commw. 553, 513 A.2d 1108 (1986), the plaintiff’s complaint alleged negligence of the school district in the care, custody and control of the landing surface around a gymnasium vaulting horse. President Judge Crumlish held that a necessary element of the gymnasium’s hardwood floor, which was regularly used as a gymnastic stunt area, was the provision of sufficient matting protection to insure safe landing by the students. The court held that the provision of proper gym floor matting was an aspect within the school district’s care, custody and control of its real property. Therefore, the court reversed thé common pleas court’s order which had granted judgment on the pleadings in favor of the school district.

See also, Cestari v. School District of Cheltenham Township, 103 Pa. Commw. 274, 520 A.2d 110 (1987), allocatur denied, 517 Pa. 595, 535 A.2d 84 (1987). (Summary judgment for defendant school district reversed; complaint alleging failure to provide proper padding for pole-vault landing area stated a cause of action).

Thus, as to the real-property exception, we believe that a doorway which has an obstruction across it may be defective real estate. We compare it to a sidewalk which is coated with ice, or a grocery floor with slippery debris.

We also believe that it may be possible for plaintiff to prove at trial that defendant county was negligent in its care, custody or control of an animal in the possession or control of the county. The record indicates that the dog in this case belonged to defendant Marci Miller who was employed at that time as a supervisor in the Parks Department. Evidence in the record is sufficient to permit a jury to conclude that the county was aware of the fact that Ms. Miller frequently brought the dog with her to various park events which she was supervising.

The county has argued that plaintiff has failed to plead in her complaint a cause of action under the animal exception, 42 Pa.C.S. §8542(b)(8). However, we note that paragraph 8(e) of the complaint alleges that the defendant was negligent in “permitting a dog leash to remain stretched across the doorway.” We believe the issue has been properly pleaded.

In summary, we believe that there is an issue for the fact-finder as to whether or not the doorway which plaintiff was intending to use as an exit was, in fact, rendered unsafe by the presence of the dog and its leash as an obstruction to the door.

We therefore enter the following

ORDER

And now, January 4, 1990, the motion of defendant Bucks County Department of Parks and Recreation for summary judgment is hereby denied.


author: RUBRIGHT, J.,

text:
    Flanigan v. Pottsville Hospital
    March 26, 1990

      Maureen H. McCullough, for plaintiff.

      George J. Krueger, for defendant.
   RUBRIGHT, J.,

This matter is presently before the court on a motion for protective order filed by plaintiff. Plaintiff instituted this action against defendant seeking to recover damages purportedly caused by defendant’s breach of an employment contract, as well as for declaratory relief. The complaint asserts that defendant failed to provide plaintiff with insurance coverage for services he rendered in the emergency room. Plaintiff claims that he suffered losses because he was forced to provide his own defense to two separate medical malpractice actions, identified as the Hoak and Toczek cases, which underlie this case.

Defendant denies the key allegations of plaintiff’s complaint. It asserts that plaintiff agreed to purchase his own medical malpractice insurance for service which he rendered in the emergency room. In support of this, defendant asserts that it paid plaintiff additional compensation because he agreed to purchase his own insurance.

It is undisputed that plaintiff did purchase his own insurance and that the insurance responded on his behalf when he was sued in Hoak and Toczek. In an effort to take discovery of facts which relate to the allegations of the complaint, defendant propounded its first set of interrogatories and document production requests. These discovery requests seek, inter alia, the terms and conditions under which the insurance carrier paid monies on plaintiffs behalf. Plaintiff, in his motion for protective order, seeks to preclude discovery of the fact that Physicians’ Insurance Exchange, from which he had purchased his medical malpractice insurance, provided him with a defense in Hoak and is defending him in Toczek and, in resolution of Hoak, paid $150,000 to plaintiff in that case. He argues that the discovery requests will, if permitted, allow the identity of plaintiff’s subrogee, PIE, to be brought upon the record although it has elected to proceed with the shield afforded it by Pa.R.C.P. 2002(d).

Pa.R.C.P. 4003.1, which governs the scope of discovery generally, provides that:

“ . . . A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Defendant is defending this action on the grounds that plaintiff had agreed to purchase his own medical malpractice insurance for services rendered in the emergency room. Therefore, the questions of whether plaintiff actually purchased such insurance and whether that insurance provided coverage for claims for which plaintiff asserts he was personally liable are certainly relevant to the defense of this matter.

Plaintiff argues that the requested discovery should not be allowed because it will have the effect of bringing the identity of the subrogee onto the record when the subrogee has already demonstrated its desire not to be on the record. We must disagree with plaintiff’s argument. Pa.R.C.P. 2002(d) was promulgated in order to avoid prejudicing a subrogated insurer in the eyes of a jury in actions for reimbursement. See Standard Pennsylvania Practice 2d §14:23 (1981). Rule 2002 provides in relevant part:

“(a) Except as otherwise provided in clauses (b), (c), and (d) of this rule, all actions shall be prosecuted by and in the name. of the real party in interest, without distinction between contracts under seal and parol contracts.
“(d) Clause (a) of this rule shall not be mandatory where a subrogee is a real party in interest.”

While we agree with plaintiff that PIE need not bring the instant action in its own name, we do not believe that rule 2002(d) is relevant to the issue presently before the court.

Plaintiff alleges in his complaint that defendant breached the terms of an employment contract by failing to provide medical malpractice coverage for his work in the emergency room. Defendant asserts that plaintiff had agreed to purchase his own malpractice insurance. Defendant seeks to discover evidence as to whether such insurance was purchased by plaintiff as a means of establishing that plaintiff was aware of his contractual obligations.

The issue in the instant case is remarkably similar to that involved in Beechwoods Flying Service Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350 (1984), and we believe that we are bound by its holding. Where evidence of insurance is relevant to the issues in the case it will not be barred merely because it might be prejudicial. Id. In this case, as in Beechwoods, any evidence tending to show that plaintiff purchased malpractice insurance covering his work in the emergency room is relevant to defendant’s defense of this matter.

Accordingly, we enter the following

ORDER OF COURT

And now, March 26, 1990, it is hereby ordered that plaintiff’s motion for protective order is denied and dismissed and plaintiff shall, within 20 days of the date of this order, fully answer defendant’s first set of document production requests and first set of interrogatories addressed to plaintiff, John L. Flanigan Jr., M.D.


author: LEHRER,

text:
    Pennsylvania Academy of Fine Arts v. Grant

      March 9, 1990

      Miles H. Shore, for plaintiff.

      Jeffrey R. Lerman, for defendant.
   LEHRER,

Before the court is plaintiffs motion for summary judgment.

The instant dispute arises out of a lease agreement entered into by defendants as landlord and plaintiffs as the assignees of the tenants, Mellon Bank (East) N.A., for premises located at Cherry Street and North Carlisle Street in Philadelphia, Pennsylvania.

The lease contained an option to purchase the premises. It is undisputed that the lease required written notice by plaintiff of the exercise of the option prior to expiration on January 30, 1989.

It is also undisputed that plaintiffs written notice of the exercise of the option was deposited in the U.S. mail, postage prepaid, certified mail, return receipt requested on January 30, 1989.

The general rule is that the exercise of lease hold option is effective upon receipt, however, this is a qualified rule which only applies in the absence of a contrary intention expressed by the parties. The Restatement (Second) of Contracts, §63, comment F in pertinent part states:

“Option contracts are commonly subject to a definite time limit, and the usual understanding is that. . . notification that the option has been exercised must be received by the offeror before that time. Whether or not there is such a time limit, in the absence of a contrary provision in the option contract, the offeree takes the risk of loss or delay in the transmission of the acceptance and remains free to revoke the acceptance until it arrives ... ” (emphasis supplied)

See also, Williston Contracts, §83 (3d ed. 1951), and 1A Corbin Contracts, §264 (1963). The Pennsylvania Supreme Court adopted this proposition in Chanoff v. Fiola, 440 Pa. 424, 271 A.2d 285 (1970) in which the court found that a purchaser had timely exercised an option to extend a sales agreement by posting a check in the mail the day before expiration, even though the check was not received until after the initial offer expired.

Section 801 of the lease states:

“Notices: All notices hereunder shall be in writing and shall be delivered or mailed by certified or registered mail...”

The lease terms are clear. This is the prescribed manner by which plaintiff was to exercise the option. There is no language in the lease which provides that notice is effective upon receipt. Plaintiff has validly exercised the option by mailing notice by certified mail, pursuant to section. 801, before the expiration date.

Defendant argues that plaintiff forfeited the right to exercise the option to purchase because plaintiff was not in compliance with all of the lease terms at the time of the notice. Defendant alleges that plaintiff was in material breach of the lease because of “tax irregularities” (premises were operated as a parking lot garage) and violations of federal environmental laws (existence of an underground gasoline tank).

We find the term “material breach” inapplicable here for the following reasons. There exists, to date, no citations or legal action of any kind against defendant concerning the alleged environmental breaches. Only a potential liability is alleged by defendant, without evidence of its probability. In addition, the potential liabilities (environmental) would come to fruition after the expiration of the lease. As such, the new owner would be responsible to the Governmental Regulatory Agency jointly with the previous owner.

The “tax irregularities” noted by defendant refer to use and occupancy taxes levied on the previous tenant. Under section 19-1806(5)(b) of the Philadelphia Code, a landlord’s tax liability arises only in the event that the landlord fails to file a timely return. Landlord easily avoids liability by filing a return. Tenant’s non-payment does not impose liability on landlord.

Plaintiff is not in material breach of the terms of the lease and, therefore, was able to validly exercise the option to purchase.

ORDER

And now, March 9, 1990, upon consideration of plaintiff’s motion for summary judgment and defendant’s response, and it appearing that there are no genuine issues of material fact in dispute and that plaintiff is entitled to judgment as a matter of law; it is hereby ordered that:

(1) The motion for summary j udgment is granted;

(2) Plaintiff is in full compliance with all of its duties and obligations under the lease; that it acted in good faith; that the refusal of the defendant to acknowledge plaintiff’s exercise of the option to purchase is a material breach of the lease;.

(3) That plaintiff timely exercised its option to purchase the premises;

(4) That defendant is required to sell the premises to plaintiff for the purchase price of $850,000, in accordance with the lease.

It is further ordered that:

(5) Defendant shall specifically perform the option purchase;

(6) Defendant shall execute and deliver to plaintiff a deed conveying to plaintiff clear and marketable title to the premises pursuant to the terms of the lease, upon the tender by plaintiff to defendant of the purchase price of $850,000;

(7) The prothonotary shall execute the deed on behalf of defendant if she fails to do so as ordered by the court;

(8) Defendant is enjoined from transferring or encumbering the premises in any way except as ordered by this court.


author: SMITH, J.,

text:
    Shearer v. Peat, Marwick, Main & Co.
    June 7, 1989

      Elliott B. Weiss, for plaintiff.

      William P. Carlucci, for defendant.

      Marc S. Drier, for additional defendants.
   SMITH, J.,

On August 4, 1988, plaintiff filed a complaint against defendant, Peat, Marwick, Main & Co., (formerly KMG Main Herd-man) alleging defendant, as a professional accounting firm, had failed to properly prepare plaintiff’s federal estate income tax return. Due solely to the alleged failure of defendant, the Internal Revenue Service assessed an additional tax against the estate in the amount of $31,860.71. Subsequently, defendant filed a third-party complaint against the co-executors, Donald M. Shearer and Jeffrey Marshall, and the law firm of Marshall and Drier as counsel for the estate, alleging that they are liable to plaintiff. The members of the law firm are Jeffrey Marshall and Marc Drier. The original defendant has now filed a motion to disqualify the law firm and specifically Marc Drier as counsel for the plaintiff.

Defendant asserts that a conflict of interest between plaintiff (the estate) and counsel to the estate makes independent legal judgment and representation impossible. Marshall, as co-executor, would be the plaintiff’s key witness as to his discussions and activities with defendant. Defendant alleges that Marshall should be held liable to plaintiff in his professional capacity as attorney to the estate for his failure to correct the estate returns when the oppor-. tunity presented itself or following up the matter with the IRS to mitigate the damages once the error was discovered. In essence, defendants challenge the propriety of additional defendants’ attorney (Drier) arguing to the jury the credibility of a co-partner as well as defending their own actions against professional negligence.

Additional defendants assert that disqualification of counsel would be inappropriate. They argue that the Pennsylvania Rules of Professional Conduct now permit, in rule 3.7(b), a lawyer to act as an advocate in a trial in which another lawyer in his firm is called as a witness. In addition, additional defendants assert that there is no “materially limiting conflict” as defined in rule 1.7(b). Finally, even if the first two issues fail, additional defendants argue that under rule 1.7(b) a clear conflict can be and would be waived by the client, as evidenced by the affidavit filed with this court.

The court was unable to locate any Pennsylvania case law interpreting the new Rules of Professional Conduct as they relate to this specific issue and therefore must turn its examination to the recently enacted Rules of Professional Conduct, which were effective April 1, 1988. Rule 1.7 sets forth the applicable general rule governing conflicts of interest:

“Rule 1.7(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interests unless:
“(1) the lawyer reasonably believes the representation will not be adversely affected; and
“(2) the client consents after full disclosure and consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implication of the common representation and the advantages and risks involved.”

Conflicts in litigation are examined in the comment to this section. “An impermissible conflict may exist by reason of substantial discrepancies in the parties’ testimony, incapability in positions relating to an opposing party or the fact that thére are substantially different possibilities of settlement of the claims or liabilities in question.” Comment to rule 1.7.

It is noted that rule 1.7(b)(2) as it relates to “client consent” refers only to representation of multiple clients. It does not refer to the situation sub judice where the attorney is an adverse party to the client. It is foreseeable, and, in fact, probable that as counsel for the plaintiff the law firm would not pursue the claim against the additional defendants because it woüld be challenging the activities of itself. The law firm may ultimately be liable to plaintiff for money damages.

The court finds that these facts create a “materially limiting conflict” as defined in rule 1.7(b); that Drier could not reasonably believe that his representation would not be adversely affected under rule 1.7(b)(1); and that the facts create an impermissible conflict of interest which cannot be waived under rule 1.7(b)(2).

ORDER

And now, June 7, 1989, the motion of Peat, Marwick, Main & Company to disqualify counsel is granted. It is ordered and directed that Marc S. Drier, Esq. be disqualified from representing the estate of Donald R. Shearer, deceased, in this action.


author: HESS, J.,

text:
    Shertzer v. Institute of Pastoral Care Inc.

      Robert F. Claraval, for plaintiff.

      January 5, 1990

      Jeffrey Rettig, for defendant Christ United Presbyterian Church.
    F. Lee Shipman, for defendant St. Mark’s Evangelical Lutheran Church.

      Darrell N. VanOrmer Jr., for defendant Gerald I. Gingrich.
   HESS, J.,

This action was initiated by plaintiff, Brenda Shertzer, by complaint on March 12, 1988. Therein, she alleges that Gerald Gingrich, her marriage counselor, had sexual relations with her beginning in 1978 and lasting for a period of almost 10 years. She claims that she has suffered psychological damage due to Dr. Gingrich’s alleged manipulation of her in the context of a confidential relationship. Following her treatment by defendant, Gerald Gingrich, and because of it, plaintiff began psychological treatment with Dr. James Knestrick. She has been involved in extensive psychological counselling with him and we are led to understand that their relationship as doctor and patient is continuing during the course of this lawsuit.

On April 12, 1989, a subpoena was issued to Dr. Knestrick seeking all of his business records and office notes relating to his treatment of plaintiff. Dr. Knestrick’s office manager responded by forwarding all the office records except the treating psychologist’s therapy notes, with respect to which Dr. Knestrick asserts a psychologist-patient privilege. Following these developments, defendants, Christ United Presbyterian Church and First United Church of Christ of Carlisle, filed a motion to compel the production of plaintiff’s psychological records including the therapy notes.

Dr. Knestrick is licensed to practice psychology in the Commonwealth of Pennsylvania. Plaintiff refuses to consent to the release of Dr. Knestrick’s therapy notes for any reason. With respect to the confidentiality thereof, Dr. Knestrick and the plaintiff rely upon the following statutory language:

“§5944. Confidential communications to licensed psychologists
“No person who has been licensed under the act of March 23, 1972 (P.L.' 136, no. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.” 42 Pa.C.S. §5944.

Because plaintiff seeks damages for adverse psychological effects of her relationship with Dr. Gingrich and because of the likelihood that Dr. Knestrick will be called as a witness, defendants assert that they are entitled to review Dr. Knestrick’s notes. They contend that this is so notwithstanding the fact that the notes contain evidence of confidential communications between plaintiff and Dr. Knestrick which are, in accordance with the terms of 42 Pa.C.S. §5944, clearly privileged.

To compel production of Dr. Knestrick’s notes, at this stage in the litigation, would be clearly violative of the judicial code. By the clear wording of the statute, third parties may not cause psychologists to be examined without the written consent of their patients. Inasmuch as the statute analogizes the privilege to the one which exists between attorneys and clients, it is equally clear that the disclosure of confidential communications is impermissible unless the privilege is waived by the patient or client.

It will, no doubt, be asserted that by calling Dr. Knestrick to testily in this case, plaintiff will waive any privilege concerning communications with her psychologist. It may perhaps even be suggested that by signing an expert interrogatory, wherein she names Dr. Knestrick as a psychological expert, she may be deemed to have waived “in writing” the confidentiality which is otherwise conferred by statute. However, no expert interrogatories have as yet been filed in this case. Nor, inasmuch as the trial of the matter has yet to begin, can it be said that any privilege has been “waived upon the trial by the client?” 42 Pa.C.S. §5928. Whether plaintiff can even be compelled to produce the records of her conversations with her psychologist is a question which must await another day. At this juncture the request is clearly premature.

ORDER

And now, January 5, 1990, defendant’s motion to compel is denied.


author: GRIMES, P.J.,

text:
    Greenwood Estate

      Linda Chambers, for petitioner. .

      James Hook, for respondent.

      March 23, 1990
   GRIMES, P.J.,

Lisa Joanne Sowden was bom on December 19, 1971, with her birth certificate fisting Gary P. Greenwood as her natural father. Mr. Greenwood died intestate on August 22, 1989. Lisa Sowden now sues for a share of the Greenwood estate.

In order to establish paternity, Miss Sowden petitions for blood samples held by the Allegheny County coroner be made available for. genetic testing. Lois A. Greenwood, decedent’s wife and personal representative of the estate, argues that petitioner is time-barred for any such testing.

Petitioner bases her request on 42 Pa.C. S. § §6131-5136, which subchapter has the title of “Uniform Act on Blood Tests to Determine Paternity.” Section 6133 states in part:

“In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as riot to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests.”

The estate, through its personal representatives, argues that 23 Pa.C.S. §4343(b) applies. This section establishes an 18-year statute of limitations for support actions, and reads:

“(a) Determination — Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury unless either party demands trial by jury. The burden of proof shall be by a preponderance of the evidence.
“(b) Limitation of actions — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.”

Subsection (b), the part upon which the estate relies, was promulgated to replace a six-year statute of limitations found in 42 Pa.C.S. §6704(b) (1982). This six-year statute was declared unconstitutional in Clark v. Jeter, 486 U.S._, 108 S.Ct. 1910, 100 L.Ed. 2d 465 (1988).

It is clear that 23 Pa.C.S. §4343, from its placement in a subchapter titled “Support,” and in a chapter titled “Support Matters Generally,” is intended to protect a putative father from a suit for support past a certain time, and not as a defense to claims arising in probate matters.

The statute at 20 Pa.C.S. §3538 specifically states that children bom out of wedlock are subject to the same time limitations as children bom in wedlock. In fact, the U.S. Supreme Court stated in Clark, supra:

“[In cases other than support] Pennsylvania places no limits on when the issue of paternity is litigated. For example, the intestacy statute, 20 Pa.C.S. §2107(3) (1982), permits a child bom out of wedlock to establish paternity as long as ‘there is clear and convincing evidence that the man was the father of the child.’ ” Clark, supra.

It is clear that the statute establishing the 18-year statute of limitation does not apply to a probate issue. Petitioner has the right by statute, at 20 Pa.C.S. §2107(3), to attempt to prove paternity by clear and convincing evidence.

ORDER

And now, March 23, 1990, it is ordered, that the coroner of Allegheny County shall make available to Rita Barchiesi of Greene County Domestic Relations, samples of the blood of Gary P. Greenwood presently in the custody of the said coroner, for comparison testing.


author: ACKERMAN, .

text:
    Logan v. Kemerer
    March 1, 1990

      J. David Caruthers, for plaintiff.

      Leonard R. Reeves, for defendant.
   ACKERMAN, .

Plaintiff, Lenora B. Logan, has filed preliminary objections to defendant’s answer and new matter. The first objection is to defendant’s “boilerplate” allegation in paragraph 12(A)(6) that plaintiff was negligent in the operation of her vehicle “[i]n otherwise violating the laws of the Commonwealth of Pennsylvania.” At oral argument on these objections, counsel for defendant, William A. Kemerer Jr., has conceded that this allegation is overly broad and paragraph 12(A)(6) will be stricken. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).

The preliminary objections next address defendant’s raising of a “seat-belt defense” in paragraph 12(C)(2). Such a defense was legislatively proscribed with the passage of Act 82 of 1987, 75 Pa.C.S. §§4581-4585, which became effective November 23, 1987. The accident which is the subject of the present litigation occurred on December 2, 1986, prior to the passage of this legislation. The question is whether or not the act is to be applied to a case which evolved out of an accident which predates the act. Seemingly inconsistent conclusions have been reached in response to this question in our appellate courts.

In Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988), the Superior Court considered the act’s application to an accident which occurred on May 26, 1983, and concluded that the legislation was an intervening change in the law that was to be applied to the case then on appeal even though the accident in question occurred prior to the 1987 amendments.

The Pennsylvania Commonwealth Court took the opposite tack in Stouffer v. Commonwealth, Dept. of Transportation, 127 Pa. Commw. 610, 562 A.2d 922 (1989), holding that the act which condemned the “seat-belt defense” was not retroactive and should not have been applied to a 1985 accident. The panel in Stoujfer purports to have considered the Superior Court’s holding in Grim and reaches the conclusion that Grim did not discuss retroactivity, which is true, but the result is certainly the application of the 1987 legislation by the Grim court to a 1983 accident.

Faced with this apparent conflict, I believe that it is prudent to follow the Superior Court’s holding in Grim which is an en banc decision while the Stoujfer decision is a panel opinion; and, because I find Judge PaHadino’s dissenting opinion in Stouffer to be a persuasive argument as to why Grim rather than Stouffer is correct.

Accordingly, both of plaintiffs preliminary objections will be sustained.

ORDER OF COURT

And now, March 1, 1990, plaintiffs preliminary objections are sustained; and paragraphs 12(A)(6) and 12(C)(2) of defendant’s answer and new matter are hereby stricken.


author: LEHRER, J.,

text:
    Cullen v. Vagnoni
    March 30, 1990

      Drew D’Angelo, for plaintiffs.

      Christopher J. Pakuris, for defendant Louis Vagnoni.
   LEHRER, J.,

Plaintiffs Mary and Herbert Cullen appeal this court’s order of December 30, 1989 which granted defendant Louis Vagnoni’s motion for summary judgment.

Plaintiff Mary A. Cullen brought this action to recover for injuries allegedly sustained in a slip-and-fall accident on defendant Vagnoni’s premises on February 14, 1983. On that day, plaintiff in her capacity as a Philadelphia police officer responded to a call for a burglary in progress on defendant’s property, a then-closed restaurant and swim club located at 468 Domino Lane, Philadelphia, Pa. 19128, when she slipped on accumulated ice and snow. About 22 inches of snow had fallen on February 11 and 13, 1983.

Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b).

Case law dealing with the liability of land owners towards police officers or firefighters entering the land in discharge of their duties is scarce. The Superior Court has, however, indicated that such officials generally assume the status of a licensee. See Mull v. Kerstetter, 373 Pa. Super. 228, 232, 540 A.2d 951, 953 (1988) appeal denied, Kerstetter v. Mull, 520 Pa. 606, 553 A.2d 968 (1988).

The Superior Court noted that, “The possessor of a premises is not generally liable to a gratuitous licensee, in the absence of willful or wanton injury for an accident due merely to the existing conditions upon the premises ...” Komeo v. Balazick, 169 Pa. Super. 296, 82 A.2d 706 (1951). Similarly, the pertinent section of the Restatement (Second) of Torts, section 342 provides:

“Title D. Special liability of possessors of land to licensees.
“§342. Dangerous conditions known to possessor
— “A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if and only if,
“(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger.
“(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
“(c) the licensees do not know or have reason to know of the condition and the risk involved.” (emphasis supplied)

As section L of the comments notes: “If the licensee is in fact fully aware of the condition and the risk, there is no liability.”

In her depositions, plaintiff admitted that she was aware of the 22 inches of snow, the icy surface below the snow as well as an incline on the property. At the same time, plaintiff fully appreciated the special dangers inherent in these conditions stating that she knew it was slippery, was careful and took slow steps.

Plaintiff avers that there remain material issues of fact which could render her an invitee instead of a licensee. However, even if plaintiff were an invitee, there would remain no basis for liability on defendant Vagnoni’s part.

Section 343A of the Restatement (Second) of Torts provides in pertinent part:

“Known or Obvious Dangers
“ ... A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (emphasis supplied)