author: FURBER, J.,

text:
    Montgomery County Intermediate Unit v. Montgomery County Intermediate Unit Education Association

      September 26, 2001
    C.P. of Montgomery County,
    no. 00-04617.

      Wendy G. Rothstein, for appellees.

      Charles L. Herring, for appellants.
   FURBER, J.,

This opinion is necessitated as a result of the appeal of the Montgomery County Intermediate Unit Education Association and Perkiomen Valley Education Association to this court’s order dated July 21, 2001, which order vacated the arbitration award decision of Arbitrator Joseph B. Bloom.

FACTS AND PROCEDURAL HISTORY

This matter involves a public-sector labor dispute between the following parties: the appellees (employers) are the Montgomery County Intermediate Unit and the Perkiomen Valley School District respectively, both organized under the Pennsylvania School Code (24 Pa.C.S. §11-1101 et seq.) and operating as public employers under the Pennsylvania Public Employee Relations Act (Act 195 — 43 P.S. §1101.101 et seq.). The appellants (associations) are the Montgomery County Intermediate Unit Education Association and the Perkiomen Valley Education Association respectively, both unincorporated associations and labor organizations under Act 195. The employers and associations are parties to individual collective bargaining agreements governing some, but not all, of the terms and conditions of employment of certain of their professional employees.

The immediate underlying causes of action at issue involve separate terminations by each of the employers of a professional employee represented by each of the associations. Each employer, acting pursuant to, and in conformity with, the substantive and procedural provisions of the Pennsylvania School Code, moved to terminate the employment of their professional employee. Subsequent to the terminations, the associations sought to grieve said terminations under their collective bargain—ing agreements. In each instance, the employer asserted that the terminations were not subject to the grievance provisions contained within their collective bargaining agreement but, rather, were governed by school code procedures. The associations then demanded arbitration of the terminations under their agreements.

By agreement of the parties, the cases were consolidated on the threshold issue of contractual arbitrability and a hearing was conducted before Arbitrator Joseph B. Bloom on October 25, 1999. On February 16, 2000, Arbitrator Bloom issued a decision and award concluding that both termination disputes were arbitrable under the respective agreements.

The employers filed a “petition for review of an arbitration award/vacate arbitration award” with this court, and the associations filed a “petition to quash appeal of arbitration award” in response. Argument on the quashed motion was heard before the undersigned, and this court denied said petition by order dated September 5, 2000. The associations appealed said order, and the Commonwealth Court of Pennsylvania dismissed their filing as having been taken from an interlocutory decision on October 3, 2000 (no. 2207 C.D. 2000).

This court thereafter conducted oral argument on the employers’ underlying petition for review, and on July 18, 2001, we granted said petition and vacated the arbitration award. Our order stayed any further arbitration proceedings, directed the parties to proceed through the statutory provisions mandated by the school code, and remanded the matter to the individual school boards to conduct hearings on the terminations.

The associations filed a timely notice of appeal of the above order on August 6, 2001.

ISSUES

The appellants/associations set forth nine issues in their concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b):

(1) Whether the court properly applied the appropriate scope of the review/essence test as articulated by the Pennsylvania Supreme Court in State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999);

(2) Whether the court allowed appropriate deference to the arbitrator’s award pursuant to the Pennsylvania Supreme Court’s ruling in Danville Area School District v. Danville Area Education Association, PSEA/NEA, 562 Pa. 238, 245, 754 A.2d 1255, 1258 (2000) and Cheney, supra, 743 A.2d at 416;

(3) Whether the court erred by rendering a decision as a “super-arbitrator” in ruling on a labor arbitration opinion;

(4) Whether the court’s decision is consistent with the Commonwealth Court’s recent decision in United School District v. United Education Association, 2001 WL 876860 (Pa. Commw. 2001);

(5) Whether the court considered facts not of record when rendering its decision;

(6) Whether the court’s order was consistent in applying the standard that the threshold issue of arbitrability is the exclusive province of the arbitrator;

(7) Whether the court erred by “permitting an interlocutory appeal to proceed forward, that being merely a portion of an arbitration proceeding” and not bifurcating the matter;

(8) Whether the court’s order consistently applied the law as related to implied just cause; and,

(9) Whether the court’s order was consistent with the law established by the Supreme Court of Pennsylvania in Mifflinburg Area Education Association v. Mifflinburg Area School District, 555 Pa. 326, 724 A.2d 339 (1999).

The court has consolidated these issues for the purposes of a cohesive discussion as follows below.

DISCUSSION

As stipulated by the parties, the sole issue presented to Arbitrator Joseph B. Bloom was whether the grievances of the associations’ terminated employees were arbitrable. The arbitrator’s specific analysis of the issue and ultimate determination was stated as follows:

“Neither the Perkiomen Valley collective bargaining agreement nor the Montgomery County IU collective bargaining agreement include a statutory savings clause or a just cause provision. The bargaining agreements do include formal grievance procedures ending in binding arbitration.

“There is no language in either collective bargaining agreement referring to discipline, discharge or just cause. The definitions of a grievance in each agreement, however, do not specify that the employers have retained the right to discipline and/or discharge without restriction. Absent such a clear and unambiguous authority on the part of the employers, it is logical to conclude that each collective bargaining agreement, without a clear proviso to the contrary, implies a just cause limitation, that is, the employers are contractually obligated in matters of disciplinary actions to act with just cause.

“Now, considering that the collective bargaining agreements both have implied just cause provisions, the position of the association as to the applicability of the school code to the existing collective bargaining agreements becomes quite tenable. I find, therefore, that the grievances are arbitrable.

“Award: The Montgomery County I.U. and the Perkiomen Valley collective bargaining agreements contain just cause limitations; they are subject, therefore, to the election of remedies provision of the Pennsylvania School Code. The grievances, then, are arbitrable.”

I. The Arbitrator’s Award Did Not Derive Its Essence From the Collective Bargaining Agreements

The jurisdictional determination of whether a grievance is arbitrable must be presented first to the arbitrator and then will be “subject to appropriate court review of any award in conflict” with the collective bargaining agreements at issue and the “fundamental statutory policies of this Commonwealth.” Pennsylvania Labor Relations Board v. Bald Eagle Area School District, 499 Pa. 62, 68, 451 A.2d 671, 674 (1982). Then, the “arbitration award, including the arbitrator’s definition of his own jurisdiction, must be affirmed so long as the award is in any rational way derived from the collective bargaining agreement ‘viewed in light of its language, its context, and any other indicia of the parties’ intention____’ ” Juniata-Mifflin Counties Area Vocational-Technical School v. Corbin, 547 Pa. 495, 501, 691 A.2d 924, 927 (1997). (emphasis in original) [citations omitted] Nonetheless, where an “arbitrator’s words exhibit an infidelity to the agreement, courts have no choice but to refuse enforcement of an award,” because “an arbitrator is confined to the interpretation and application of the collective bargaining agreement and does not sit to dispense his or her own brand of industrial justice.” Riverview School District v. Riverview Education Association (PSEA/NEA), 162 Pa. Commw. 644, 650-51, 639 A.2d 974, 977 (1994), appeal denied, 540 Pa. 588, 655 A.2d 518 (1995). [citations omitted]

The Supreme Court of Pennsylvania has determined that a very specific exception exists to the doctrine of finality that typically cloaks the decisions of PERA labor arbitrators. First articulated by the court in its 1997 holding in the matter of Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), the standard is clear that, notwithstanding giving such awards much deference, the “arbitrator’s award must draw its essence from the collective bargaining agreement.” State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 150, 743 A.2d 405, 413 (1999). The Cheyney University court thus established the following guidelines for the manner in which a court should analyze, and could thereafter vacate, an arbitration award:

“Pursuant to the essence test as stated today, a reviewing court will conduct a two-prong analysis. First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator’s award will be upheld if the arbitrator’s interpretation can rationally be derived from the collective bargaining agreement. That is to say, a court will only vacate an arbitrator’s award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.” Id. (footnotes omitted)

A. The Issue of Whether the Grievances Were Arbitrable Was Not Within the Terms of the Collective Bargaining Agreements

The parties in the case at bar stipulated before Arbitrator Bloom that the sole issue was whether, using the parties’ collective bargaining agreements and applicable law, the grievances involving the termination of two professional employees could be arbitrated or, on the contrary, needed to proceed through the statutory provisions mandated by the Pennsylvania School Code, 24 P.S. §11-1101 et seq. Of special significance to our analysis herein are three particular school code sections and procedures, which state in pertinent part as follows:

“24 P.S. §11-1122. Causes for termination of contract.

“The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperanee, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and willful violation of the school laws of this Commonwealth on the part of the professional employee ...

“24 P.S. §11-1127. Procedure on dismissals; charges; notice; hearing.

“[Provides for a written statement of charges, a hearing before the school board, written notice of the hearing, opportunity to be heard in person and/or by counsel, and the compilation of an official record in accordance with constitutional due process requirements.]

“24 P.S. §11-1133. Collective bargaining for public employes

“Nothing contained in sections 1121 through 1132 shall be construed to supersede or preempt a provision of a collective bargaining agreement in effect on July 23, 1970, or on any date subsequent thereto, negotiated by a school entity and an exclusive representative of the employes in accordance with the Act of July 23, 1970 (P.L. 563, no. 195), known as the ‘Public Employe Relations Act,’ which agreement provides for the right of the exclusive representative to grieve and arbitrate the validity of a professional employe’s termination for just cause or for the causes set forth in section 1122 of this Act; . . . Professional employes shall have the right to file a grievance under the collective bargaining agreement or request a hearing pursuant to section 1121 through 1132, but not both. ” (emphasis added)

It is clear from the statutory language that section 1133 of the Pennsylvania School Code grants professional employees the right to grieve and arbitrate terminations only if the collective bargaining agreement provides that right. The Commonwealth Court analyzed the implications inherent to this section of the school code in Phoenixville Area School District v. Phoenixville Area Education Association, 154 Pa. Commw. 438, 624 A.2d 1083 (1993), overruled on other grounds, Chester Upland School District v. McLaughlin, 655 A.2d 621 (Pa. Commw. 1995):

“Despite the fact that the school code provides a right of election, it does not grant an absolute and automatic right to grieve/arbitrate the matter of termination for cause. It merely guarantees that the statutory provisions covering termination of a professional employee will not preempt a collective bargaining agreement and that the provisions of a collective bargaining agreement will not override the statute. The election cannot be made if the collective bargaining agreement does not apply to terminations.” Id., 154 Pa. Commw. at 444-45, 624 A.2d at 1086-87.

The collective bargaining agreements at issue herein limit the application of the grievance and arbitration procedure to only those disputes involving the provisions of each agreement. Neither agreement contains a provision concerning the termination of professional employees and the arbitrability of grieving such termination. Arbitrator Bloom further stated in his opinion and award that:

“Neither... collective bargaining agreement include[s] a statutory savings clause [n]or a just cause provision....

“There is no language in either collective bargaining agreement referring to discipline, discharge or just cause.” Id. at 9.

However, because the definitions of a “grievance” in each agreement did not specifically state that the employers retained the right to discipline or discharge professional employees without restriction, Arbitrator Bloom found that “it is logical to conclude that each collective bargaining agreement, without a clear proviso to the contrary, implies a just cause limitation, that is, the employers are contractually obligated in matters of disciplinary actions to act with just cause.” Therefore, it was apparently the absence of empowering language pertaining to the employers that served to empower the associations by implication.

Based upon his finding of implied just cause, then, we assume that Arbitrator Bloom adopted the associations’ position that the school code was incorporated into their collective bargaining agreements and, thus, found that the grievances were arbitrable by operation of the aforementioned section 1133.

The associations suggest that the Commonwealth Court has held that a party’s grievance regarding a teacher’s discipline, when the collective bargaining agreement contains no provision relating to discipline, may be deemed arbitrable based upon the theory of implied just cause in North East Education Association v. North East School District, 117 Pa. Commw. 19, 542 A.2d 1053 (1988). The arbitrator found arbitrability on the basis of an “implied just cause for discipline” provision in the collective bargaining agreement. We determine that the implication of just cause therein related solely to the teacher’s grievance because the discipline involved his suspension, and not his termination. The school code does not provide any due process protection for the suspension of a teacher by virtue of a “just cause” provision. The school code does, however, include “just cause” language regarding a teacher’s termination. North East Education Association is to be narrowly construed.

This court concludes that Arbitrator Bloom’s analysis lacks any foundation, because the issue of whether the grievances were arbitrable, as defined by the parties, was not within the terms of their collective bargaining agreements and fails, therefore, to satisfy the first prong of the “essence” test as articulated in Cheyney University, supra. An arbitrator exceeds the scope of his authority when the language of the agreements, or lack of language in the agreements, represents the very antithesis of his conclusion. Arbitrator Bloom’s award addressed an issue completely beyond the scope of the agreements.

B. The Arbitrator’s Interpretation Was Not Rationally Derived From the Collective Bargaining Agreements

The court also finds that Arbitrator Bloom’s award should be vacated because his conclusion that the issue of termination grievances was arbitrable is not rationally derived from the collective bargaining agreements, and, thus, the second prong of the “essence” test also fails to be satisfied. The arbitrator’s interpretation that the disputes were arbitrable because the agreements contained implied just cause requirements for disciplinary action is not a rational derivation.

“Under Act 195, it is for the parties to agree upon the arbitration procedure to be used.” Cheyney, supra, 560 Pa. at 143, 743 A.2d at 410. As discussed above, both agreements limit the application of their respective grievance and arbitration procedure to disputes involving the provisions contained within the agreements. All parties to this controversy agree that neither agreement contains any of the following: a statutory savings clause; a just cause provision; or any language referring to discipline, discharge, just cause, or the election of remedies. The clear language of these collective bargaining agreements, therefore, does not satisfy the requirements of section 11-1133 of the school code.

Additionally, the transcript from the hearing before Arbitrator Bloom reveals that the associations never raised as an issue, argued, or presented evidence or testimony regarding the concept of an “implied just cause provision.” The position taken by the associations at the hearing relates exclusively to their argument that the Pennsylvania Supreme Court rulings in Juniata-Mifflin Counties Area Vocational-Technical School v. Corbin, supra, and Mifflinburg Area Education Association v. Mifflinburg Area School District, supra, and the Snyder County Court of Common Pleas decision in Selinsgrove Area School District v. Selinsgrove Area Education Association, no. 306-1999 (Snyder Cty. 09-23-99), control the determination in this matter. The associations were merely content to rest their case on the above-cited judicial determinations and of the school code without any reference to the theory of implied just cause.

The arbitrator’s decision to imply a “just cause” provision in these collective bargaining agreements makes as little logical sense, and lacks as much legal justification, as implying a “statutory savings clause” or implying an “election of remedies” provision. As stated previously, although section 11-1133 of the school code provides for a right of election between statutory and contractual remedies, it is not an “absolute and automatic right to grieve/arbitrate the matter of termination for cause.” Phoenixville Area School District, supra, 154 Pa. Commw. at 444, 624 A.2d at 1086. The parties involved must bargain for the inclusion of a “just cause” provision in their collective bargaining agreement as a condition precedent to their statutory right to election of remedies. Section 11-1122 of the school code provides narrowly enumerated grounds for the termination of professional employees. The code, itself, does not incorporate a “just cause” standard in any section. Absent the specific contractual language we find necessary, it is simply not possible to infer that the parties to these agreements intended to imply their existence. The construction of written contracts has no room for innuendo. Contractual obligations that are implied by law or inferred by the conduct of the parties do not encompass the collective bargaining arena, which manifests the intentions of the parties through what is actually written and not language, which is absent.

Arbitrator Bloom’s ruling that the grievance of termination disputes was arbitrable was solely as a result of his finding the condition precedent — implied contractual just cause. We do not concur that the agreements contained such an implied just cause provision. The arbitrator’s conclusion was not rationally derived from the agreements and the second prong of the “essence” test has not been satisfied.

II. The Mifflinburg and Juniata-Mifflin Decisions Do Not Stand for the Proposition That Every Collective Bargaining Agreement Permits the Arbitrability of Professional Employee Terminations by Operation of the School Code

Prior to the Pennsylvania Supreme Court’s 1997 decision in Juniata-Mifflin and 1999 decision in Mifflinburg, the parties agree that the law concerning this issue was clear. If a collective bargaining agreement contained no just cause provision or election of remedies provision, there was no right to arbitration. As discussed below, this court does not believe the Supreme Court has completely altered the law of contractual bargaining and statutory application by rendering its decisions in these two cases. Rather, a correct analysis shows that the law was properly applied therein based upon the specific language of the collective bargaining agreements at issue.

The factual scenario in Juniata-Mifflin involved a teachers’ union, which sought to arbitrate the dismissal of a teacher under the terms of its collective bargaining. The agreement did not contain a just cause for termination provision, but it did expressly contain a statutory savings clause. The savings clause stated that nothing in the agreement could be construed to deny professional employees such rights as he or she might have under the school code. The statutory savings clause, therefore, expressly served to incorporate the school code into the agreement thus allowing the parties to submit their grievance to binding arbitration. The Juniata-Mifflin court reiterated that the arbitrator’s award, including a finding of his own jurisdiction, “must be affirmed so long as the award is in any rational way derived from the collective bargaining agreement ‘viewed in light of its language, its context, and any other indicia of the parties’ intention ....’” Id., 547 Pa. at 501, 691 A.2d at 927. (citations omitted) (emphasis in original) Thus, the Supreme Court determined that the presence of the statutory savings clause in this collective bargaining agreement, and the prior practices of the parties in previously submitting teacher terminations to arbitration, formed a sufficient basis for the arbitrator to find that the parties intended to allow arbitration in the instant matter, as well. Id., 547 Pa. at 499-503, 691 A.2d at 926-28.

As stated previously, the agreements at issue here do not contain a statutory savings clause nor was any evidence presented that prior professional employee terminations had been submitted to arbitration. We conclude that the proof of these parties’ intent, therefore, is evidenced by the absence of the statutory savings clause.

Two years hence, the Supreme Court rendered the Mifflinburg decision. Significantly, Mifflinburg did not involve a determination about the arbitrability of termination grievances. Arbitrability was never raised by the parties or in any way addressed by the court. Rather, the facts at issue pertained to the court’s analysis of section 11-1142 of the school code, which it interpreted as guaranteeing credit for prior years of service to teachers who were rehired when computing salary scales. Thus, when the arbitrator’s award failed to grant the teachers such credit, the court found that the ruling was neither derived from the essence of the parties’ collective bargaining agreement nor in conformance with the school code. The court relied on the “essence” test it had first articulated in Community College of Beaver County, supra, as well as the following:

“Section 1121 of the school code requires that all contracts between school districts and professional employees contain a clause stating that none of the provisions of the school code may be waived by school district employees. In addition, section 703 of the Public Employe Relations Act prohibits the parties from effecting or implementing a provision in a collective bargaining agreement if implementation of that provision would violate or be inconsistent with a statutory enactment. 43 P.S. §1101.703. Thus, by statute, actions taken pursuant to a collective bargaining agreement cannot violate the school code.” Mifflinburg, supra, 555 Pa. at 330, 724 A.2d at 342.

In other words, the parties to a collective bargaining agreement are not permitted to contractually violate any provision of the school code.

The Mifflinburg panel based its determination on a prior Commonwealth Court ruling in Centennial School District v. Centennial Education Association, 133 Pa. Commw. 382, 576 A.2d 99 (1990). Centennial also involved professional employees who had resigned, were rehired by the school district, and upon rehiring were placed on the same salary step level as newly hired teachers. The teachers’ association filed grievances alleging that payments on the lower salary schedule violated the terms of their collective bargaining agreement. The arbitrator agreed and held that “the collective bargaining agreement required that rehired teachers were entitled to credit for the prior years of teaching within the district under sections 1142 and 1149 of the school code. The Commonwealth Court upheld the arbitrator’s decision, finding that the arbitrator’s award drew its essence from the collective bargaining agreement.” Mifflinburg, supra, 555 Pa. at 332-33, 724 A.2d at 343. (footnote omitted) The court then footnotes this analysis of the Centennial ruling and states the following, as footnote 5 to its opinion:

“The Centennial court based its decision, in part, on the fact that the collective bargaining agreement contained a statutory savings clause that explicitly incorporated the provisions of the school code. However, as noted above, section 1121 of the school code provides that the statutory mandates of the school code cannot be waived ‘orally or in writing.’ 24 P.S. §11-1121. In addition, the Pennsylvania Employe Relations Act prevents the parties from implementing collective bargaining agreement provisions that are inconsistent with or conflict with any statute. 43 P.S. §1101.73. Therefore, express language in the agreement incorporating the provisions of the school code is not necessary because such provisions are incorporated, by operation of law.” Id. at 333 n.5, 724 A.2d at 343 n.5. (emphasis added)

It is the conclusion of this court, that the language we have emphasized in the above-cited footnote directly refers to any language in the Centennial collective bargaining agreement, or actions taken by the parties pursuant to the agreement, that may have violated any section of the school code. Further, this language does not require the incorporation of every provision of the school code, and the potential for the arbitration of every grievance, into every collective bargaining agreement. We reason that the Mifflinburg panel would not have chosen a footnote as the vehicle by which it would substantively change either statutory law or the contractual collective bargaining rights of teachers and their school districts. To analyze this footnote’s language in any broader, sweeping context would be inconsistent with the Statutory Construction Act, in addition to section 11-1133 of the school code which reserves the right of collective bargaining units to negotiate for the ability to arbitrate professional employee terminations.

In this case, the parties do not claim that any provision of their collective bargaining agreement is contrary to or violates any provision of the school code. Also, and unlike the issue involving a grievance of salary step credits about which the agreements in Mifflinburg did not contain any right to a hearing, the due process rights of a terminated teacher are protected by the school code via section 11-1127, which provides for the absolute right to a hearing if a teacher disagrees with the reasons for termination.

The association also argued that the Common Pleas Court of Snyder County, performing in its appellate capacity to review an arbitration decision, rendered a precedential determination involving footnote 5 in Selinsgrove Area School District v. Selinsgrove Area Education Association, no. 306-1999 (Snyder Cty. 09-23-99). The Selinsgrove court affirmed an arbitrator’s determination that the denial of travel sabbaticals was arbitrable because the school code provision on sabbaticals, section 11-1166, was incorporated into the collective bargaining agreements because footnote 5 of Mifflinburg now mandates that the entire school code is incorporated into every collective bargaining agreement. We disagree. As to the merits of the Selinsgrove decision, we also conclude that the facts are again completely dissimilar to the case at bar. Like the situation in Mifflinburg, and unlike the instant matter, Selinsgrove involved the school entity’s violation of a specific section of the school code, which agreement did not also have a separate provision to protect the employee’s due process rights if the statute was violated. Additionally, a Snyder County Court of Common Pleas’ ruling, however well-reasoned, does not represent precedential authority for any other common pleas court, and would not be relevant under the doctrine of the law of the case, res judicata, or collateral estoppel.

We find, therefore, that the Pennsylvania Supreme Court’s rulings in Juniata-Mifflin and Mifflinburg, and the Synder County Court of Common Pleas’ ruling in Selinsgrove do not operate as a bar to our determination herein.

IE. The Court Afforded Due Deference to Arbitrator Bloom’s Ruling, But It Was Not Derived From the Essence of the Parties’ Collective Bargaining Agreements

As discussed in section I, supra, allowing appropriate deference to Arbitrator Bloom’s ruling does not permit this court to ignore either of the prongs of the essence test. The arbitrator’s determination fails to satisfy the requirements of that test as it was not derived from the essence of the parties’ collective bargaining agreements. Our decision is, therefore, consistent with both Danville Area School District v. Danville Area Education Association, 562 Pa. 238, 754 A.2d 1255 (2000) and Cheyney, supra.

IV. The Court’s Ruling Is Not Inconsistent With United School District v. United Education Association

The Commonwealth Court of Pennsylvania has recently re-affirmed its application of the “essence test” in United School District v. United Education Association, 2001 WL 876860 (Pa. Commw. 2001). In its review of prior judicial determinations and rendering its decision in the matter before it, the United School District court stated clearly:

“Under these circumstances, that is, where a legal ruling, albeit erroneous, has not deprived a party of a fair and complete opportunity to present his case, we believe that we are neither bound by the error nor authorized to impose a remedy for the error itself. Rather, the correct standard of review remains the essence test, although in applying the test we need not view the evidence from the perspective of the arbitrator’s flawed legal reasoning. Put another way, for purposes of our review, it makes no difference whether the arbitrator has refused to consider evidence because of an erroneous legal ruling, or has simply as fact-finder attached no significance to it. In either situation, we must review the entire record, including any evidence which the arbitrator has credited but disregarded, to determine whether ‘the interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention ....’” Id., 2001 WL 876860. (citing Beaver County, supra)

This court agrees with the standard as defined above, and believes that our application of the essence test is a consistent application of that standard.

V. As This Case Concerns an Issue of “First Impression, ” the Trial Court Has Properly Considered Arbitrator Bloom’s Ruling To Be Immediately Appealable

The parties to this action explicitly agreed to bifurcate the determination of arbitrability from the underlying merits of the two individual termination disputes. Neither party stated or inferred that the arbitrator’s determination should not be immediately appealable. We consider the issue to be one of “first impression:” whether Mifflinburg footnote 5 now mandates that every collective bargaining agreement permits the arbitrability of professional employee terminations by operation of the school code, notwithstanding what the parties to the agreement have bargained for, or what language they chose to include or exclude such a process within their collective bargaining agreement. Thus, in the interest of judicial economy, this court considers Arbitrator Bloom’s ruling a final order on that single issue.

For the reasons cited above, the court’s order granting the employers’ petition for review of an arbitration award/ vacate award and the vacating Of that award should be affirmed, and the associations’ appeal of that order dismissed.

      . In the Matter of the Arbitration Between Montgomery Co. IU & Perkiomen Valley S.D. and Montgomery Co. IU & Perkiomen Valley Education Association, opinion and award [Joseph B. Bloom, Arbitrator], 02-16-00 at 9-10.

      . 473 Pa. 576, 375 A.2d 1267 (1977).

      . Id. (footnote omitted) (emphasis added)

      . Professional agreement between Montgomery County Intermediate Unit Board of Directors and the Montgomery County Intermediate Unit no. 23 Education Association, PSEA-NEA (November 1997) at 3. (Exhibit “A” of employers’ petition.) Agreement on terms and conditions of employment Perkiomen Valley School Board and Perkiomen Valley Education Association (September 1, 1995-August 31,1999) at 23. (Exhibit “B” of employers’ petition.)

      . Supra.

      . Hearing before arbitrator Joseph B. Bloom, 10-25-99, exhibit “C” of employers’ petition.

      . Hearing, supra at 13-23.

      . Indeed, during oral argument before the undersigned, counsels for the parties further agreed that “but for” footnote 5 of Mifflinburg, they would not have petitioned the court to hear this dispute.

      . 1 P.S. §1901 et seq.

      . Hearing, supra at 7-8.

      . Id. This case is, therefore, both legally and factually dissimilar from State System of Higher Education v. Association of Pennsylvania State College and University Faculties, 121 Pa. Commw. 607, 550 A.2d 1385 (1988).


source: Caselaw Access Project

author: BAER, J.,

license: Public Domain

text:
    Gruntz v. Millis Transfer Inc.

      June 18, 2001
    C.P. of Allegheny County,
    nos. GD 96-7330 and GD 96-2645.

      Stanley W. Greenfield, for plaintiff Gruntz.

      John E. Quinn, for plaintiff Miller.

      Paul J. Walsh III, for defendants Millis Transfer and Feig.
   BAER, J.,

This is a tragic case where all involved have lost too much. John R. Gruntz was driving at 1980 Toyota Corolla with his passenger Dean E. Miller on a West Virginia highway. Defendant John H. Fieg II was driving a tractor-trailer owned by defendant, Millis Transfer Inc., in the same direction on the same highway. Gruntz passed Fieg in the left (passing lane) of the highway, and was beginning to return to the right lane, when Gruntz apparently saw a deer on the road in front of him. He slammed on his brakes and Fieg’s tractor-trailer hit and rolled over the back of Gruntz’s Toyota killing Gruntz and Miller.

The estates of both Gruntz and Miller brought separate lawsuits. The estate of John Gruntz sued Fieg and Millis. As Miller was a passenger in Gruntz’s car, his estate sued Fieg, Millis and Gruntz. The Gruntz and Miller cases were eventually consolidated and tried before a jury over four days. At the trial’s conclusion, the jury returned a verdict for all defendants. Gruntz and Miller filed post-trial motions, which we denied. They have now appealed. This is our Pa.R.A.P. 1925 opinion that is based upon the issues raised by Gruntz and Miller in their post-trial motions.

The accident occurred at about 9:15 p.m. on November 3, 1995, on a divided four-lane highway in a rural area of West Virginia. It was nighttime, but the weather was clear and the road was straight. Fieg was driving a 79,000 pound tractor-trailer in the right lane at about 50 miles per hour at the time of the accident. He was traveling with his wife Pamela Mehay, and they were engaged in conversation concerning religion, when Fieg saw Gruntz overtaking his tractor-trailer in the left lane. Gruntz was obviously traveling somewhat faster than 50 miles per hour, but there is absolutely no evidence that he was speeding or otherwise driving unsafely.

Fieg testified that in accordance with his training as a professional truck driver, he was watching in front of him while conducting “mirror sweeps” every three to five seconds. During a mirror sweep, a driver looks into his left and right mirrors while still watching the road before him. The mirrors are configured to permit the driver to see in front of him while checking his mirrors, although the driver’s field of vision is skewed to the side of the road he is checking.

Fieg made two mirror sweeps during this incident. The first time he checked his left mirror, he saw the headlights of the Gruntz vehicle approaching. He then checked his right mirror to insure that he was far enough to the right to allow Gruntz plenty of room to pass. Shortly thereafter, he checked his left mirror again, saw the Gruntz vehicle and then again checked his right mirror. His eyes were coming back to center when he caught sight of a deer off to the right side of his truck. He only had time to mention this to his wife before, as his eyes returned to the center of the road, he saw the Gruntz car directly in front of him with its brake lights illuminated. Fieg’s tractor-trailer hit and went up and over the back of the Toyota, killing Gruntz and Miller.

One of the major factual disputes placed before the jury concerned how close Gruntz was to Fieg’s truck when Gruntz entered the right lane after passing Fieg, saw the deer and applied his brakes. This was important because this distance corresponds to the amount of time Fieg would have had to see Gruntz, react and avoid this accident.

Fieg testified that Gruntz cut back into the right lane so close to the tractor that Fieg was initially unable to see the vehicle over the eight-foot hood of his rig. The inference defendants obviously desired the jury to draw from this testimony was that Fieg did not have time to avoid what amounted to a tragic accident.

While plaintiffs’ eyewitnesses obviously died during the incident, the estates contested this version relying on Fieg’s testimony that the Gruntz car was stopped or nearly stopped before Fieg hit it and the physical findings from the accident scene that showed the Gruntz vehicle had skidded 66 feet before Fieg made contact with it. The plaintiffs obviously desired that the jury conclude from this evidence that Fieg had enough time to stop his truck before hitting Gruntz, and therefore could not have been sufficiently vigilant in watching the road before him.

With the facts and this basic dispute in mind, we turn to the various assignments of error. Miller contends that we erred in refusing to charge the jury that it could infer negligence if it concluded that a rear-end collision took place or find negligence per se if Fieg was not vigilant in keeping a proper lookout while driving. Miller and Gruntz both contend that we erred in granting defendants’ request for a charge regarding the doctrine of sudden emergency. As these issues are very much interrelated we will treat them as one for discussion purposes.

The purpose of charging a jury on points of law is to clarify the issues the jury is to consider. Cannon v. Tabor, 434 Pa. Super. 232, 238, 642 A.2d 1108, 1111 (1994). One of the hallmarks of an inappropriate charge is to discuss a point of law that is inapplicable to a case under a fair reading of the totality of the facts. All that such a charge does is confuse a jury. Id.

There is no question that it is the law of our Commonwealth that a jury should be charged on an inference of negligence or, alternatively, negligence per se, if the facts of a case fairly raise the proposition that a plaintiff is stopped on a road and is rear-ended by another. Wisniewski v. Ehemann, 310 Pa. Super. 99, 456 A.2d 201 (1983). Nor, as is suggested by defendants, do we believe these doctrines are limited to a situation where a defendant is stopped completely. If, for instance, a party is driving on a clear and open highway with a 65-mile-an-hour speed limit at 50 miles an hour when he is overtaken by another and rammed in the rear, as a matter of pure logic, at least the Wisniewski charge should be given. Indeed, we have no difficulty with the proposition that under this set of facts a charge should be given that the defendant’s apparent failure to use diligence, look ahead and be aware of what is in front of him can be negligence per se. See Lavely v. Wolota, 253 Pa. Super. 196, 384 A.2d 1298 (1978); Cunningham v. Byers, 732 A.2d 655, 659 (Pa. Super. 1999).

Alternatively, a charge regarding the doctrine of sudden emergency should be given when a defendant suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to grasp and act upon the facts. However, this doctrine is not available to a defendant if the facts of the case suggest that the perilous situation was of his own making. Levey v. DeNardo, 555 Pa. 514, 519, 725 A.2d 733, 735-36 (1999); Lockhart v. List, 542 Pa. 141, 150-51, 665 A.2d 1176, 1180 (1995).

Obviously, these rules of law that favor plaintiffs when defendants are inattentive and favor defendants when an unanticipated problem creates a sudden emergency are interrelated but mutually exclusive of one another. Which, if any, of these charges should be given is dependent upon the peculiar facts of each case.

If, for example, a trial developed the fact that a driver was proceeding down a road fiddling with his radio, paying no attention to what was in front of him and crashed into another car sitting or moving slowly to a stop sign, the plaintiff would be entitled to the charges concerning the inference of negligence and negligence per se as requested by Miller and Gruntz herein. If, however, the same driver was not playing with his radio, but, rather, checking his rear view mirrors appropriately and still watching forward when the car immediately in front of him unexpectedly blew a tire and spun sideways forcing the trailing driver to react to the unanticipated state of affairs, the sudden emergency charge requested by Fieg and Millis would be given.

In the instant case, the totality of the facts fails to support a charge regarding an inference of negligence or negligence per se. A fair review of the record reflects that Gruntz saw a deer and slammed on his brakes. Fieg, in turn, saw Gruntz too late to avoid the accident. While it is true that Fieg hit Gruntz from behind, the situation was one where the deer on the highway in front of the Gruntz vehicle created a situation where Gruntz applied his brakes resulting in Fieg being confronted by the Gruntz car engaged in a panic stop. This is not the type of case where a charge on rear-end collision or failure to keep a vigilant lookout should be given. It is the type of case where a charge on sudden emergency should be given.

Having said all of this, it does not follow that the verdict had to be for the defense. We charged carefully and completely on the elements of negligence. There was ample evidence on this record from which a jury could have found that Fieg was negligent in looking at his mirrors too long, in looking to his right side and seeing the deer, in being engaged in a conversation with his wife and being slow to react or otherwise being careless in his response to the emergency. The case was not, however, one where the fact that Gruntz was hit from behind called for the charges sought by the plaintiffs, and it was one where Fieg was confronted with a sudden emergency, necessitating that the jury be instructed in the law surrounding that doctrine.

Miller and Gruntz next argue that we erred in permitting Fieg’s and Millis’ expert, Hugh Davidson, a professional engineer and accident reconstructionist, to testify beyond the fair scope of his report. In applicable part, Pa.R.C.P. 4003.5 (c) provides that:

“The direct testimony of the expert at trial may not be inconsistent with or go beyond the fair scope of his or her ... report....”

The purpose of this rule is to prevent an expert from unfairly surprising an opposing party. Walsh v. Kubiak, 443 Pa. Super. 284, 291-92, 661 A.2d 416, 420 (1995). The rule’s applicability necessarily must be determined on a case-by-case basis. An expert should not be permitted to preclude an adversary from responding through cross-examination or rebuttal testimony to a peculiar theory by failing to inform that adversary of that theory prior to trial. Id. at 292, 661 A.2d at 420-21.

As discussed above, one of the key questions in this case was the amount of time Fieg had to respond to Gruntz’s sudden deceleration. Plaintiffs desired to convince the jury that Gruntz had the opportunity to decelerate to a stop before he was hit, raising the inference that Fieg had sufficient time to avoid this catastrophe. The insurer for Fieg and Millis, for its part, desired to prove that Gruntz was going about 23 miles an hour when he was hit, notwithstanding Fieg’s testimony to the contrary. This was to create the inference that there was nothing Fieg could have done to avoid the accident.

Virtually all of Davidson’s lengthy and detailed report was an analysis of Gruntz’s speed at the time he was hit. Thus, plaintiffs were clearly on notice that Davidson’s testimony was going to be focused upon Gruntz’s speed at impact. Plaintiffs were also on notice that Davidson had examined and was relying upon pictures of the vehicles, their tires, and the skid marks from the scene, which were taken shortly after the accident. Davidson also relied in reaching his expert opinion upon his personal examination of the vehicles, the detailed police report diagramming the various skid marks and gouges in the road and the accompanying narrative from Fieg and his wife. Davidson incorporated an analysis of all of this data into his conclusion that Gruntz was going 23 miles per hour when Fieg hit him.

With these various premises in mind, we deal first with plaintiffs’ contention that Davidson’s testimony concerning damage to the front of the Gruntz vehicle was beyond the fair scope of his expert’s report and prejudicial.

A close review of the transcript reveals that Davidson did not testify that he could tell from the damage to the front of the Gruntz car how fast it was going. He did opine that he “suspected” on the basis of his review of many auto/pedestrian accidents, that the damage was consistent with an impact of “probably greater than” 25 miles an hour. Davidson did not testify to this with any certainty. He merely offered it as a speculative theory.

As soon as Davidson offered this observation, plaintiffs objected arguing that Davidson was testifying for the first time that the speed of the Gruntz vehicle was greater than 25 miles per hour. Defense counsel said he did not intend to make this argument, and would stop his witness from doing so. We told him to make sure he did, and invited further objections if Davidson testified that the Gruntz vehicle was traveling in excess of about 23 miles per hour when Fieg collided with it. Davidson’s testimony from that juncture on was limited to his expert opinion that the Gruntz vehicle was going 23 miles an hour when it was hit.

Plaintiffs now argue that the Davidson’s comments regarding the front of the Gruntz vehicle to support his hypothesis that Gruntz was going 23 miles per hour were beyond the fair scope of Davidson’s report and prejudicial. We think not on both counts. Plaintiffs were on notice that Davidson had looked at pictures of the front of the Gruntz vehicle and inspected the vehicle himself before reaching his opinion. Thus, plaintiffs knew that Davidson had considered the front of the Gruntz car in reaching his opinion. Moreover, as detailed above, Davidson did not really rely on this observation to support his conclusion. He merely mentioned it in the give and take of his testimony. Finally, there was ample time and opportunity for cross-examination and even a rebuttal witness, if plaintiffs had desired to call one to counter this testimony. Thus, this brief portion of Davidson’s testimony is not a ground for a new trial.

Miller and Gruntz next complain that Davidson testified unfairly beyond the scope of his report and to their prejudice when he commented upon the character and shape of the Gruntz vehicle’s skid marks as partial support for his finding that Gruntz was traveling 23 miles per hour when he was hit.

As noted above, Davidson reviewed every aspect of the investigation of the accident in conducting his analysis. Specifically, on page 2 of his report, Davidson noted that he reviewed the photographs the police had numbered 1 through 6 showing the various tire marks and gouges as referenced in the police report. He then proceeded in the next paragraph of his report to discuss the tread pattern (or lack thereof) from the tires on the car. Indeed, throughout his report, he painstakingly detailed the various skid marks left by both vehicles.

During Davidson’s testimony, he elaborated on his report by discussing the abrupt way some of the tread marks left by the Gruntz vehicle started and stopped to suggest that these skid marks were consistent with a vehicle in motion. While he arguably did not make these precise observations in his report, it cannot be said that they were beyond the fair scope of it.

It is never possible for an expert to put every fact and nuance discussed during his testimony into his report, and the law does not require that he do so. Here, plaintiffs were on fair notice of Davidson’s conclusion and the basis of it. While his testimony certainly amplified upon some of the facts in his report, that is what expert testimony is supposed to do.

Moreover, these observations were not the principal basis for Davidson’s conclusions. Davidson primarily relied upon the physics of the accident to conclude that Gruntz could not have decelerated from his recognized starting speed of about 50 miles per hour to zero in the 66 feet he skidded before Fieg hit him. As with the testimony concerning the damage to the front of Gruntz’s car, Davidson’s statements about the shape and character of the skid marks should not have surprised plaintiffs or left them in a position where they could not counter defendants’ positions through cross-examination or rebuttal testimony.

The final issue before us concerns only Miller. As stated above, he was a passenger in the Gruntz vehicle, and asserts that a comment by defense counsel during his opening statement constituted a judicial admission of liability, requiring a directed verdict for plaintiff Miller.

Judicial admissions are formal admissions having the effect of withdrawing a fact from issue and dispensing it without the need for proof of that fact. Gibbs v. Herman, 714 A.2d 432, 437 (Pa. Super. 1998). Judicial admissions are in the nature of stipulations reached at pretrial or during trial and placed on the record, requests for admissions properly propounded to an opposing party and admitted and the like. Duquesne Light Co. v. Woodland Hills School District, 700 A.2d 1038, 1054 (Pa. Commw. 1997). There should almost never be a dispute as to whether there is a judicial admission when it is purportedly made in open court. Absent a stipulation agreed to with specificity between the parties, it simply does not exist.

Here, defense counsel was delivering an off-the-cuff opening statement, and commented that because Miller was a passenger, he would “get a verdict.” During defense counsel’s opening statement, he also said that his clients, Fieg and Millis, had done nothing wrong, and were not liable for negligence. Surely, counsel for Fieg and Millis cannot bind Gruntz, and just as surely based upon the totality of the opening, he was not intending to bind his clients. There was no judicial admission, and none should be found.

      . For ease of reference, we will refer to the estates of Mr. Gruntz and Mr. Miller as “Gruntz” and “Miller,” and to the estates jointly as plaintiffs.

      . It did not violate any law or Millis company policy for Mehay to ride in this tractor-trailer with her husband.

      . We emphasize that it is unclear whether Fieg applied his brakes at all before he made contact with Gruntz. Fieg is not sure, but says that to the extent he did not it was because Gruntz pulled in so close to him that he never had an opportunity to do so. Plaintiffs argue that Fieg would have had the opportunity to brake significantly if he would have been paying attention to the road in front of him when Gruntz began to pull to the right, saw the deer and began to brake.

      . We do not suggest through this comment that plaintiffs have waived the basis for their objection as argued in the post-trial motions, and, presumably, on appeal. We merely desire to emphasize the focus of the testimony and counsel’s scrutiny of it during trial.


author: NEW, J.,

text:
    Hepps v. LaBrum & Doak

      June 14, 2001

      Kenneth L. Mirsky, for plaintiff.

      Kimberly M. Dolan, for defendant.
   NEW, J.,

PROCEDURAL AND FACTUAL HISTORY

In December 1999, plaintiff Michael B. Hepps, Esquire, filed a legal malpractice suit against defendant LaBrum & Doak based on alleged negligent prosecution of plaintiff’s claim against General American Life Insurance Company, Paul Revere Life Insurance Company and others.

Plaintiff alleges he developed tinnitus, a ringing in the ears, in 1991 after listening to the 1812 Overture on full blast while wearing headphones. In 1993, the ringing finally became so severe that plaintiff was unable to work as a trial attorney. He therefore submitted a claim for total disability under his policy with General American. General American paid plaintiff benefits while investigating his claim.

In December of 1994, Paul Revere, who had taken over the handling of the claim from General American, notified plaintiff that plaintiff was not disabled under the terms of his policy. Since plaintiff was not considered disabled, he was not entitled to the policy’s waiver of premium provision which relieved individuals who were totally disabled from paying the quarterly premium. On the advice of defendant, plaintiff paid the past due premiums and placed future premiums into an escrow account. In September 1995, General American refused to accept the escrowed funds as payment.

Due to a subsequent conflict of interest, defendant withdrew from representing plaintiff 21 months prior to the trial date. Plaintiff promptly retained Sprague & Sprague to finish the litigation. Subsequently, plaintiff decided to settle the underlying litigation.

In plaintiff’s action against defendant, he alleges defendant committed legal malpractice by encouraging plaintiff to place the future premiums into escrow and by withdrawing from plaintiff’s case. To this date, plaintiff has provided no expert testimony to support his claims of legal malpractice.

On April 2, 2001, defendant filed a motion for summary judgment. On May 10, 2001, this court issued an order granting defendant’s motion. Plaintiff now appeals.

LEGAL ANALYSIS

It is the well accepted standard that when determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party and determine whether the moving party has established that there exists no genuine issue of material fact and is therefore entitled to judgment as a matter of law. Emery v. Leavesly McCollum, 725 A.2d 807, 810 (Pa. Super. 1999). The non-moving party is entitled to all reasonable inferences. Id. Any doubts as to the existence of a factual dispute must be resolved in the non-moving party’s favor, and summary judgment is appropriate only in the clearest of cases. Id.

Expert testimony is required in a legal malpractice case “when the subject matter of the inquiry is one involving special skills and training not common to the ordinary layperson.” Storm v. Golden, 371 Pa. Super. 368, 376, 538 A.2d 61, 64 (1988). Whether or not expert testimony is required in a legal malpractice case is contingent upon whether the alleged breach of duty involves too complex a legal issue so as to necessitate explication by expert evidence. Id. at 377, 538 A.2d at 65.

Both of plaintiff’s allegations of legal malpractice are clearly of such a nature that requires expert testimony. Plaintiff alleges defendant improperly advised plaintiff to place the funds in escrow. It is beyond the ordinary comprehension of most lay people to determine under what circumstance it is appropriate to place funds in escrow as well as the role of an attorney in advising their client as to the escrowing of funds in this particular situation.

Plaintiff’s other allegation that defendant improperly terminated its attorney-client relationship with plaintiff also requires expert testimony. In the instant matter, defendant withdrew from representing plaintiff due to a conflict of interest. Shortly before defendant’s withdrawal, Genex, a longtime client of defendant’s, was purchased by Provident Insurance Company. At approximately the same time, Provident also purchased Paul Revere, the company who was handling plaintiff’s claim. Clearly, a jury would need an expert to interpret and explain the Pennsylvania Model Rules of Professional Conduct to clarify for them under what circumstances it is permissible to withdraw from a case due to a conflict of interest.

Finally and most importantly, the larger overarching issue of when plaintiff became disabled according to the terms of his insurance policy and what effect this would have had on the outcome of the case requires the testimony of a legal expert. Plaintiff must present expert testimony to establish when he became materially and substantially unable to perform his work as a trial attorney and specifically, whether the duties he was performing at certain times were consistent with those of a trial attorney. A layperson, unfamiliar with the daily work of attorneys, cannot adequately assess what tasks with what frequency are performed by trial attorneys. Expert testimony is also required to interpret the language of the policy and any alleged breaches of contract as they relate to plaintiff’s claimed disability.

As plaintiff has provided no expert evidence to support his claims of legal malpractice, defendant’s motion for summary judgment was properly granted.

Wherefore, for all the above stated reasons, this court’s order should be affirmed.

      . According to the terms of the settlement, plaintiff received $10,000 in addition to the $90,000 worth of disability benefits he had already received, and defendant withdrew its counterclaim that plaintiff had committed insurance fraud.

      . On April 28, 2000, this honorable court issued a case management order giving plaintiff until February 5, 2001, to produce expert reports. On February 21, 2001, this court issued a revised case management order giving plaintiff until March 5, 2001, to produce expert reports. In his brief filed on May 2, 2001, plaintiff requested an additional 30 days from any ruling on the motion in order to produce an expert report. However, this court finds plaintiff has been provided more than ample time within which to procure an expert. Furthermore, the court denies to consider such an informal request contained only in the body of a response brief to defendant’s motion.


author: ACKERMAN, P.J.,

text:
    Diamond State Insurance Co. v. Bosco
    C.P. of Westmoreland County,
    no. 5170 of 1999.

      Peter E. Kanaris, for plaintiff.

      John N. Ellison and Timothy P. Law, for defendant diocese.

      P. Brennan Hart, for counterclaim defendant Gallagher Bassett.

      May 28, 2002
   ACKERMAN, P.J.,

Before the court are the motions for summary judgment filed by the plaintiffs (insurers), defendants (diocese) and counterclaim defendant (Gallagher Bassett). For the reasons that follow, the motions for summary judgment will be granted in part and denied in part.

Summary judgment should be granted only in the clearest of cases, where “the right is clear and free from doubt.” Anderson v. Moore, 437 Pa. Super. 642, 645, 650 A.2d 1090, 1092 (1994). But for the exceptions noted below pertaining to the loss in progress and fortuity doctrines, this is not such a case.

Contrary to the insurers’ assertion at oral argument, I do not find that Miller v. Boston Insurance Company, 420 Pa. 566, 228 A.2d 275 (1966), supports the insurers’ claim that Pennsylvania has adopted fortuity as an affirmative defense.

At oral argument, the insurers also relied upon a fact sheet published prior to a parish assembly scheduled for April 25,1999, which was meant to provide an exchange of ideas concerning the physical plant crisis pertaining to the school building. (See fact sheet, pis.’ combined reply in supp. and resp. to defs.’ cross-mot. for summ. j., exhibit 5.) The insurers ask me to regard this as an admission by the diocese. However, after careful reading of the fact sheet, in particular the last paragraph, it appears that the sheet was published by the parishioners of St. Agnes Parish, who are not parties to this action.

The diocese’s motion for partial summary judgment, if granted, would deny the insurers the affirmative defenses of the loss in progress, fortuity and known loss doctrines. I find that the loss in progress and fortuity doctrines have not been adopted by Pennsylvania courts and are not appropriate. Therefore, the diocese’s motion for partial summary judgment will be granted as to those two doctrines. However, the parties should note that at trial, I will apply the known loss doctrine as set forth by the Superior Court of Pennsylvania in Rohm and Haas Company v. Continental Casualty Company, 732 A.2d 1236 (Pa. Super. 1999). The narrow standard of the known loss doctrine will apply because the diocese is an unsophisticated insurance consumer. Therefore, the insurers may rely on this affirmative defense at trial and have the burden of proving that the diocese had actual knowledge of a loss that would give rise to a particular legal liability for which coverage was later sought.

The counterclaim defendant, Gallagher Bassett, moves for summary judgment based upon its contention that no duty was owed by Gallagher Bassett to the diocese and, therefore, the diocese’s counterclaim against it for breach of contract and negligence should fail. Gallagher Bassett maintains that no duty was owed since the written contract between the parties did not provide for risk control/ safety inspections. Also, Gallagher Bassett argues that it was not the diocese’s insurance broker, but rather was the third-party claims administrator on behalf of the diocese. In opposition to the motion, the diocese argues that the duty to inspect arises from the course of dealing between the parties consisting of written contracts providing for inspections spanning more than 20 years. Furthermore, although the latest policy did not provide for Gallagher Bassett to perform an inspection, the diocese argues that Gallagher Bassett voluntarily assumed the duty to inspect when it performed a risk inspection in 1997. As there exist genuine issues of material fact as to whether Gallagher Bassett owed a duty to the diocese, Gallagher Bassett’s motion for summary judgment will be denied.

ORDER

And now, May 28,2002, partial summary judgment is granted in favor of the diocese on the issue of excluding the loss in progress and fortuity doctrines. The remaining motions for summary judgment are denied.

      . The Superior Court decision is of precedential value since it was not overruled by the 3-1-3 vote of the Pennsylvania Supreme Court in Rohm and Haas Co. v. Continental Casualty Co., 560 Pa. 464, 781 A.2d 1172 (2001). See Ellis v. Sherman, 330 Pa. Super. 42, 478 A.2d 1335 (1994).


author: AMMERMAN, J.,

text:
    Ryen v. Ryen

      April 22, 2002
    C.P. of Clearfield County,
    no. 1992-1102-C.D.

      John Ryan, for plaintiff.

      James Naddeo, for defendant.
   AMMERMAN, J.,

Plaintiff (husband) and defendant (wife) married on July 8,1967 and separated on October 1, 1989. They were divorced on July 23,1992. This matter comes before the court for the purpose of interpreting a postnuptial agreement dated August 16, 1996. This agreement provides for the entry of two qualified domestic relations orders for pensions to which husband was entitled. The agreement reads in pertinent part as follows:

. “Excepting, however, that the NEBF and FEAP pensions accumulated through husband’s membership in the IBEW shall be divided equally between husband and wife and paid to the parties in equal amounts upon husband’s retirement in accordance with a qualified domestic relations order to be prepared and presented contemporaneously with this agreement, to the extent that amounts were accrued thereunder from July 7, 1967 (the date of marriage) until October 1, 1989 (date of final separation).”

Two qualified domestic relations orders were prepared and approved by the plan administrator. The court signed both QDROs on August 21, 1996. These QDROs were subsequently filed of record and forwarded to the plan administrator.

Husband apparently began his employment on July 7, 1967, and retired in 2001. His rate of pay at separation was $15 per hour and at retirement was $32 per hour. He had 23 years of service up to the separation date. Following the retirement, wife received a letter dated January 2, 2002, pertaining to the NEAP pension, a copy of which is attached to this opinion as exhibit “A.” The letter states that wife is entitled to $413.46 per month which represents 50 percent of husband’s contributions to the plan exclusive of investment earnings that accrued subsequent to separation. Wife also received a letter dated January 17,2002, pertaining to the NEBF pension, a copy of which is attached to this opinion as exhibit “B.” This letter states that wife is entitled to one-half of the coverture value of husband’s pension calculated by multiplying husband’s years of service by $32 and dividing that figure in half. The formula, therefore, is 23 x $32 = $736 •f 2 = $368 per month.

Husband filed a motion for clarification of qualified domestic relations order and contends that the plan administrator improperly calculated wife’s share of the NEBF pension. He maintains that her share of the pension should be based on his hourly rate of pay at the date of separation rather than the hourly rate of pay at the date of retirement. Under husband’s formula, wife’s share of the pension would be calculated at $15 per service credit rather than the $32 used by the plan administrator. Consequently, husband’s formula would be 23 x $15 = $345 -f 2 = $172.50 per month.

Hearing on husband’s motion was scheduled on March 19,2002. At that time the parties appeared and were represented by counsel. No formal testimony was presented, as the attorneys agreed that their oral representations, the parties’ marriage postnuptial agreement and QDROs would constitute the record. Briefs have been timely received and the court must resolve the issue.

Husband argues that wife would be unfairly rewarded by receiving the benefit of his wage increases subsequent to the parties’ separation. In support of this position, husband relies on the decision of the Pennsylvania Supreme Court in Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993). Husband’s position is correct, as the Supreme Court’s decision in Berrington is on all fours with the case at bar. In Berrington, the issue before the Supreme Court was whether the non-employee spouse’s share in a deferred distribution of a pension should be based upon the salary which the employee-spouse earned at the date of separation or upon the amount earned at some post-separation retirement date. In Berrington, the husband was the employee who continued to work at Westinghouse following the parties’ separation. A dispute arose over how the pension would be distributed. The trial court agreed with the wife’s proposed order which calculated the amount of the pension benefit as of husband’s date of retirement. The Supreme Court noted that the “evil which the trial court was trying to avoid ... was awarding wife a marital share of the pension which she would not receive for years ... and which would be dramatically diminished in value when she received it because of the time interval between being awarded a share of the pension and actually being paid that share.” Berrington at 400, 633 A.2d at 592. (footnote omitted) In other words, the trial court stated that wife would “be paid in the year 1994 with 1984 dollars even though [husband’s] salary and thus his pension have been adjusted for inflation.” Berrington at 398, 633 A.2d at 592.

The Supreme Court stated that the issues before it were as follows:

“(1) Whether the trial court’s method of calculating wife’s share of husband’s pension requires husband to pay, in part, with nonmarital property acquired after separation; and

“(2) Whether wife is unfairly penalized if her marital share of husband’s pension is calculated by utilizing husband’s salary as of the date of marital separation, even though she will not collect her share for years after the separation.”

The Supreme Court ruled in favor of husband, and held that in a deferred distribution of a defined benefit pension, the spouse not participating may not be awarded any portion of the participant spouse’s retirement benefits which are based on post-separation salary increases, incentive awards or years of service. Any retirement benefits awarded to the non-participant spouse must be based only on the participant-spouse’s salary at the date of separation. Since the dispute before this court is specifically related to Mr. Ryen’s pay increase, Berrington controls and the formula proposed by Mr. Ryen utilizing the amount related to his years of service and rate of pay at time of separation is correct. Therefore, Mr. Ryen’s formula of 23 x $15 = $345 4 2 = $172.50 per month accurately sets forth the amount that Ms. Ryan is entitled to receive from the NEBF pension. On this basis the motion for clarification of qualified domestic relations order will be granted. No adjustment will be ordered relative the NEAP pension, as there is no evidence before the court that the plan administrator is utilizing excess service years or Mr. Ryen’s wage rate at the time of retirement in making the calculations.

This court notes that it does not agree with the opinion of the Supreme Court in Berrington and believes that an injustice is being committed upon Ms. Ryan through her being forced to accept such a small portion of the pension benefit notwithstanding the parties’ many years of marriage. Ms. Ryen is entitled to a fair appreciation on the pension benefit as opposed to being paid in 2002, and for years thereafter, with 1989 dollars not adjusted for inflation. However, the Supreme Court’s decision is clear and this court is required to follow it.

ORDER

Now, April 22, 2002, it is the order of this court that the plaintiff’s motion for clarification of qualified domestic relations order be granted. The defendant’s National Electrical Benefit Fund pension benefits shall be calculated by the plan administrator utilizing a wage rate of $15 per hour, not $32 per hour.

EXHIBIT “A”

January 2, 2002

Ms. Sandra M. Ryen

RD #2, Box 308

Morrisdale, Pennsylvania 16858

Dear Ms. Ryen:

This is in reference to your former spouse’s NEAP pension benefits.

Based on the qualified domestic relations order formula, you are entitled to 50 percent of the benefits accrued from 1984 through October 1,1989, effective when Mr. Ryen goes into payment status.

Effective January 2002 your portion of the account is $413.46. The order did not specify that you are entitled to investment earnings, therefore, you are entitled to 50 percent of the contributions only.

Please complete the enclosed alternate payee pension application and return it to our office at your earliest convenience.

Sincerely,

/s/Anthony J. Salamone

Executive Secretary-Treasurer

bk

cc: William L. Ryen

EXHIBIT “B”

January 17, 2002

Ms. Sandra M. Ryen

RD 2, Box 308

Morrisdale, PA 16858

REF: B00000

Dear Ms. Ryen:

This is in reference to your former spouse’s NEBF pension benefits.

Based on the qualified domestic relations order formula, you are entitled to 50 percent of the benefits accrued from July 7,1967 through October 1,1989, effective when Mr. Ryen goes into payment status. Your benefit will terminate upon the date of death of Mr. Ryen or your date of death, whichever occurs earlier.

Be advised that Mr. Ryen accumulated 23 years of service credits during your marriage (July 1967 through October 1989) calculated as follows: 23 yrs at $32 = $736 x 50 percent = $368. Your benefit will be effective July 2001 in the amount of $368 per month. You will be due a retroactive payment in the amount of $2576 for July 2001 through January 2002.

Please complete the enclosed NEBF application where highlighted and return the entire application to our office.

In this letter you will find a federal income tax withholding form. If you do not wish us to withhold your federal taxes, please disregard this form.

There’s just one more thing you should remember: if you move please inform our office immediately in writing of your new address. Finally whenever you write to us, please remember to include your full name and social security number.


author: BRINKLEY, J.,

text:
    Thorpe v. Gant

      June 29, 2001

      Marc F. Greenfield, for plaintiff.

      Hugh C. Clark, for defendant.
   BRINKLEY, J.,

Louise Thorpe sued Elsie Gant for injuries suffered as the result of a slip and fall accident on the premises of Elsie Gant. The jury found in favor of Louise Thorpe and awarded the plaintiff $25,000. This court reduced the verdict by 30 percent to $17,500 on the basis of the plaintiff’s comparative negligence. Hugh C. Clark, on behalf of defendant Elsie Gant, has filed an appeal of this court’s judgment on the verdict in favor of the plaintiff, entered on July 28,2000.

I. PROCEDURAL HISTORY

Plaintiff Louise Thorpe filed a complaint in July of 1997, alleging she suffered injuries when she fell on property owned by defendant Elsie Gant. Thorpe’s complaint alleged that Gant negligently failed to remove snow and ice from the sidewalk in front of a property she owned and as a result Thorpe fell and was injured. Since the amount in controversy was $50,000 or less, the case went to compulsory arbitration. On March 19,1998, the board of arbitrators announced a finding in favor of Thorpe and against Gant in the amount of $38,618. The board also found Thorpe to be contributorily negligent and therefore responsible for 20 percent of the damages, lowering the total award to $30,894.40. Gant filed a notice of appeal from the award of the arbitrators on April 20, 1998. The case was tried before this court sitting with a jury on January 20-21,1999. The jury announced a verdict in favor of Thorpe in the amount of $25,000 which was reduced by 30 percent to account for Thorpe’s contributory negligence. The total award was $17,500. On February 1,1999, Gant filed a post-trial motion requesting judgment n.o.v. or a new trial. The motion was denied by this court. Gant filed a notice of appeal to the Superior Court on August 28, 2000. Gant ordered the transcript on February 1, 1999. The court ordered the notes of testimony on September 13,2000. A draft of the transcript was received on June 29, 2001.

II. FACTUAL HISTORY

Both Thorpe and Gant own houses on the 5200 block of Parkside Avenue in West Philadelphia. (N.T. 1/21/99, p. 37.) Thorpe lived at 5270 Parkside. (N.T. 1/21/99, p. 44.) Gant owned a house at 5268 Parkside but also owned and lived in another house on Aberdeen Street, which is around the comer from her Parkside Avenue property. (N.T. 1/21/99, p. 44.) On January 3, 1996, Thorpe left her house at approximately 9 a.m. to go to work. (N.T. 1/ 21/99, p. 39.) At the time of the accident, Thorpe was employed as a housekeeper by North American Motel. Thorpe’s car was parked in front of 5268 Parkside. (N.T. 1/21/99, p. 40.) When Thorpe had parked on the afternoon of January 2, 1996, there was no snow or ice in front of 5268 Parkside, nor anywhere else on the block. (N.T. 1/21/99, p. 64.) However, during the night, after 9 p.m., it snowed. When Thorpe attempted to go to her car the next morning, she slipped and fell in front of the door of 5268 Parkside. (N.T. 1/21/99, p. 40.) Thorpe stated that ice and snow on Gant’s property caused her to fall. She described the sidewalk as being icy, and high and low with footprints in it. (N.T. 1/21/99, p. 49.) Thorpe also asserted that the sidewalk in front of her own house had been shoveled and salted the night before by her son. (N.T. 1/21/99, p. 49.)

Shortly after Thorpe’s fall, Ms. Mable Brown, a neighbor from down the street came to Thorpe’s aid. (N.T. 1/21/99, p. 50.) Thorpe did not previously know Brown. Brown helped Thorpe get up and Thorpe immediately felt pain in her wrist and elbow. (N.T. 1/21/99, p. 51.) Thorpe went to work, but was not able to perform all of her duties and remained sedentary for the most of her shift. (N.T. 1/21/99, pp. 51-52.) In the middle of that night, Thorpe awoke and asked her daughter to call an ambulance to take her to the hospital because she was in pain. (N.T. 1/21/99, p. 53.) She was taken to Graduate Hospital where she underwent an examination and x-rays. Thorpe received a sling for her arm and directions to take Tylenol for her pain. (N.T. 1/21/99, p. 53.) On January 16, Thorpe sought treatment with Dr. Bonafino. Dr. Bonafino took more x-rays, performed an exam and gave Thorpe a splint to wear on her wrist. He also referred her to a Dr. Ruth, who again took x-rays. Thorpe treated with both doctors for about four months, after which her wrist felt better but her elbow was not as improved. (N.T. 1/21/99, p. 56.)

Thorpe testified that she could not do much of the work she did prior to the fall. (N.T. 1/21/99, p. 57.) She could not clean or take baths and she experienced pain in her elbow while lying down. She testified that everything she did took more time and effort. She could not hold her daughter’s baby because of the pain in her arm. Thorpe could not cook or dress herself without help from her daughter. She could not return to work at the North American Motel. At the time of trial, Thorpe was employed by the School District of Philadelphia as a custodian. Her duties were dusting and picking up trash. Even her light duties caused her pain on occasion. Thorpe testified that she could not play basketball with her grandchildren anymore or crochet as she did in the past. (N.T. 1/21/99, p. 60.)

Gant also testified at trial, confirming that she owned 5268 Parkside Avenue and rented it out to tenants. She also stated that she did not see the snow come down but at approximately 8 a.m. on the day of the accident, when she attempted to leave her home, she saw the snow and ice on her own steps and decided to remain inside. Gant also testified that because of her age, she did not shovel her own steps, but usually someone from the neighborhood would come and shovel for her, and she would pay them.

Brown also testified at trial. Brown resided at 5278 Parkside Avenue, where she had lived for nearly 20 years. She observed the accident and noticed the snow and ice on Gant’s property while she was assisting Thorpe. Brown testified that 5268 Parkside was not shoveled and there was ice and snow on the sidewalk. She also related her observations of the property in the past, and that it was not shoveled on prior occasions when it should have been.

El. ISSUES

A. Whether the Evidence Was Sufficient To Sustain the Verdict Rendered by the Jury

B. Whether the Court Improperly Allowed the Testimony of Mabel Brown Regarding Her Observations of the Conditions of Gant’s Property on Other Occasions

IV. DISCUSSION

A. The Trial Court Properly Denied Gant’s Motion for Judgment n.o.v. and Entered Judgment on the Jury’s Verdict

In reviewing a denial of a motion for judgment n.o.v. “[a]n appellate court must decide whether or not there was sufficient evidence to sustain the verdict.” Lonasco v. A-Best Products Co., 757 A.2d 367, 372 (Pa. Super. 2000). All evidence and all “reasonable inferences drawn therefrom must be considered in the light most favorable to the verdict winner.” Id. Judgment n.o.v. is reserved for those cases in which the moving party is entitled to judgment as a matter of law, and the evidence conclusively shows that no two minds could disagree that the outcome should have differed from the actual verdict. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). A trial court’s denial of a motion for judgment n.o.v. will be reversed only if there is clear abuse of discretion or error of law which controlled the legitimacy and integrity of the verdict. Id.

In light of Pennsylvania law and the evidence presented, the jury was properly allowed to consider the liability of Gant. In a premises liability action, the court must determine if the record contains sufficient evidence to prove the negligent conduct claimed against the defendant. Rinaldi v. Levine, 406 Pa. 74, 76, 176 A.2d 623, 624 (1962). A property owner is primarily liable for the removal of snow and ice on his sidewalk. Solinsky v. Wilkes-Barre, 375 Pa. 87, 93, 99 A.2d 570 (1953). To show a defendant was negligent in failing to remove ice or snow on a sidewalk, the plaintiff must prove: “(1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused plaintiff to fall.” Rinaldi, 406 Pa. at 78-79, 176 A.2d at 625-26.

The plaintiff must show that the accumulated snow and/or ice was sufficiently substantial as to constitute an obstruction to pedestrian travel. Rinaldi, 406 Pa. at 79, 176 A.2d at 626. However, the doctrine of hills and ridges does not always apply in situations where a plaintiff falls on snow and/or ice. Mahanoy Area School District v. Budwash, 146 Pa. Commw. 72, 75, 604 A.2d 1156, 1158 (1992). “Proof of ‘hills and ridges’ is necessary only when it appears that the accident occurred at a time when general slippery conditions prevailed in the community.” The Supreme Court of Pennsylvania decided that was not the case in Williams v. Schultz, 429 Pa. 429, 240 A.2d 812 (1968) and Tonik v. Apex Garages Inc., 442 Pa. 373, 376, 275 A.2d 296, 298 (1971), cited in Mahanoy Area School District, 146 Pa. Commw. at 75, 604 A.2d at 1158. Where a localized patch of ice or snow lies on an otherwise cleared sidewalk, the existence of hills and ridges does not need to be established and the doctrine does not apply. Tonik, 442 Pa. at 376, 275 A.2d at 298.

In Williams, the court decided the plaintiff fell on a patch of ice directly in front of the defendant’s house. Williams, 429 Pa. at 430, 240 A.2d at 813. The court distinguished the case at issue from Rinaldi and its test because the sidewalk in front of Schultz’s house where Williams fell was a specific, localized area and “it is comparatively easy for a property owner to take the necessary steps to alleviate the condition while at the same time considerably more difficult for the pedestrian to avoid it even exercising the utmost care.” Williams, 429 Pa. at 433, 240 A.2d at 814, cited in Convery v. Prussia Associates, 2000 WL 233243, *2 (E.D. Pa.); Goggans v. United States, 1990 WL 18873 (E.D. Pa.). The Williams court did specify however, that sometimes it was difficult “to distinguish the exception from the rule.” Williams, 429 Pa. at 432, 240 A.2d at 813.

Similarly, in Tonik, the plaintiff was a pedestrian passing on the defendant’s sidewalk when she fell on a crack covered with ice. Tonik, 442 Pa. at 376, 275 A.2d at 298, cited in Harmotta v. Bender, 411 Pa. Super. 371, 381, 601 A.2d 837, 842 (1992). Defendant Apex was a garage with cars parked on a significant part of the sidewalk. Tonik, 442 Pa. at 375, 275 A.2d at 297. Tonik’s only other option was to go around the cars by entering Broad Street, a city street with high volume traffic. Tonik, 442 Pa. at 376, 275 A.2d at 297. Instead, Tonik and her sister prudently went around the cars on the building side and unfortunately fell on the icy area. Tonik, 442 Pa. at 376, 275 A.2d at 298. Before reaching Apex’s property, the two had no problem walking on the sidewalk because it was significantly cleared. Tonik, 442 Pa. at 375, 275 A.2d at 297. The court discussed the hills and ridges doctrine as applied in Rinaldi, but nevertheless gave the issue to the jury to determine whether Apex had been negligent, based upon the Williams holding. Tonik, 442 Pa. at 376, 275 A.2d at 298. The Tonik court even allowed the reasonable inference that the ice had made Tonik fall, in the absence of specific testimony from either Tonik or her sister, both witnesses. Tonik, 442 Pa. at 377, 275 A.2d at 298.

In this case, the jury decided that it was not reasonable for the sidewalk at 5268 Parkside to be covered with snow. The houses on either side of Gant’s property had their sidewalks cleared and the snow had arrived the previous evening. Gant had actual notice of the snow when she attempted to leave her own home the morning of Thorpe’s fall and should have cleared the sidewalk before Thorpe was forced to cross it to get to her car. Even if the doctrine of hills and ridges did apply, it is evident that (1) snow and ice had accumulated on the sidewalk in such a manner that pedestrian travel was unreasonably obstructed and dangerous, (2) Gant had notice that the snow had fallen, and (3) it was evidently the dangerous accumulation of snow and ice which caused plaintiff to fall. There was no evidence that Thorpe could have avoided the snow and ice covered area. Since her car was parked adjacent to the snow covered sidewalk, the logical inference follows that a reasonably prudent person would have traversed the same area. It was therefore reasonable for the jury to find in favor of Thorpe and hold Gant liable for her negligent failure to remove the snow and ice from her property.

B. The Trial Court Properly Allowed the Testimony of Mabel Brown Regarding the Condition of Gant’s Property on Other Occasions

Questions concerning the admissibility of evidence at trial are within the trial judge’s sound discretion. B & L Asphalt Industries Inc. v. Fusco, 753 A.2d 264, 270 (Pa. Super. 2000) (citing Peled v. Meridian Bank, 710 A.2d 620, 625 (Pa. Super. 1998)). “[A] trial judge should admit all relevant evidence unless a specific rule bars its admission.” Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997) (citing Engle v. West Penn Power Co., 409 Pa. Super. 462, 481, 598 A.2d 290, 299 (1991), allocatur denied, 529 Pa. 669, 605 A.2d 334 (1992)). An appellate court will reverse a decision regarding evidence only if there is a clear abuse of discretion. Id. To constitute reversible error, the evidentiary decision must not only be wrong but also harmful to the complaining party. B & L Asphalt Industries, 753 A.2d at 270 (citing Hart v. W.H. Stewart Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989)). A ruling which allowed or excluded evidence but did not affect the verdict will not warrant a disturbance of the trial court’s judgment. Id. Even if evidence is improperly admitted, it may not justify a mistrial or new trial. Valentine, 455 Pa. Super. at 261, 687 A.2d at 1160. In reviewing a trial court’s admission of testimony, an appellate court will only reverse for an abuse of discretion or error of law. Lilley, 408 Pa. Super. 83, 99, 596 A.2d 203, 210 (1991).

“Evidence of other... acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Pa.R.E. 404(b). However, evidence of other acts can be admissible if offered to show proof of knowledge. Pa.R.E. 404(c). In a civil case, evidence of a party’s similar acts, or similar existing conditions are admissible to prove a dangerous condition or defect existed, that it caused an injury or to show the defendant had notice or constructive notice of a particular condition. Pa.R.E. 404.27. Such information is allowed to show systematic and continuous behavior. General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 635 A.2d 173 (1993). Gant alleged that this court improperly allowed Brown to testify regarding her observations of Gant’s property on prior occasions. Such evidence is proper testimonial evidence of the existence of a dangerous condition on Gant’s property at the time of Thorpe’s fall. Brown’s testimony of Gant’s similar acts, or failure to act in the past was properly admitted into evidence and presented to and considered by the jury. Gant’s claim on appeal that Brown’s testimony should not have been admitted because plaintiff’s counsel’s questions lacked specificity is meritless. Brown was present and available to Gant for cross-examination and the court ruled properly on any and all objections presented regarding this testimony. Brown’s perception of the scene the day of the accident, and at times prior to the accident were both permissible witness testimony. The jury was properly charged to determine the weight to be given this testimony as well as that of all of the other witnesses, as part of its role as finder of fact.

V. CONCLUSION

Based upon the foregoing, this court properly entered judgment on the jury’s verdict in favor of Thorpe. Therefore, Gant’s motion was properly denied and her appeal should be dismissed.


author: LOUGHRAN, P.J.,

text:
    Anbari v. Joles

      May 3, 2001
    C.P. of Westmoreland County,
    no. 7638 of 2000.

      William J. Wiker, for plaintiff.

      Patrick H. Mahady, for defendant.
   LOUGHRAN, P.J.,

HISTORY

Plaintiff filed a complaint in trespass on December 6, 2000. Thereafter, the sheriff of Westmoreland County issued a return of service dated January 5, 2001 indicating that service was made upon “Tom Joles, son of Stanley Joles,” at 43 Second Street, Hostetter, Pennsylvania. The sheriff return also alleged that Tom Joles was an adult in charge of defendant’s residence at the time of service.

The plaintiff had caused to have a 10-day default notice service on the defendant at 43 Second Street, Hostetter, Pennsylvania on February 6,2001, by first class mail. Judgment on the issue of liability was entered against the defendant by the plaintiff on March 6, 2001, for his failure to answer the complaint. Thereafter, the defendant presented a motion (petition) to open the judgment on April 4, 2001. A hearing was held on April 26, 2001 — thus this decision.

DISCUSSION

In this petition/motion to open the judgment, the “motion” alleged at paragraph no. 3:

“The complaint was not delivered personally to the defendant, but was served upon an individual adult, Tom Joles, at the residence who was neither in charge of nor residing at the residence at that time. ” (emphasis added)

The motion to open the judgment does not allege that service was made upon Tom Joles at any other residence other than the defendant’s. At the hearing on the motion which was held on April 26,2001, defendant offered testimony somewhat contrary to the motion. At the hearing, Tom Joles testified that service was made upon him at 44 West Second Street, Hostetter, Pennsylvania rather than at 43 West Second Street, Hostetter, Pennsylvania.

Defendant, in his argument, cited the case of Anzalone v. Vormack, 718 A.2d 1246 (Pa. Super. 1998), which cites the case of Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). In the Hollinger case which was addressed by the Pennsylvania Supreme Court, the principal issue presented was the extent to which a service of a sheriff is deemed conclusive. In that case, the sheriff’s return recited, inter alia, that service had been made by handing a true copy of a writ to “Mrs. Alvin Hollinger [another sister-in-law of Rita Hollinger], and adult member of [Rita Hollinger] ... on 1-2, 1962, at 3:40 p.m. ... at 5537 North Palethorpe St., in the County of Philadelphia, State of Pennsylvania, the dwelling house of the said [Rita Hollinger].” (emphasis in original)

The court in Hollinger, supra, held at pages 476-77, as follows:

“Our courts have long adhered to the rule that, in the absence of fraud, the return of service of a sheriff, which is full and complete on its face, is conclusive and immune from attack by extrinsic evidence: Vaughn v. Love, 324 Pa. 276, 278, 279, 188 A. 299, and cases therein cited; Kane v. Travis, 172 Pa. Super. 220, 222, 92 A.2d 902; Commonwealth v. Degillio, 197 Pa. Super. 568, 571, 180 A.2d 267. Despite the fact that the early history of this rule ‘is clouded by contradictions,’ that ‘all but eight states, of which Pennsylvania is one, have thrown off the old idea that the return of a sheriff must be accepted as verity,’ that on occasions the rule has resulted in ‘exceeding hardship’ and that we have ‘been somewhat inconsistent in our rulings relating to the return and the immutability of a record’ (Vaughn, supra, pp. 279, 280), we have continued adherence to this rule because it has tended to the security of a record. Our experience with this rule has indicated that it is generally salutary and worthy of preservation; from this rule we do not depart.”

The court held that the nature of a sheriff’s return is conclusive only to the facts set forth in the return in which the sheriff presumptively has a personal knowledge, such as when and where the writ was served. Therefore, when, in his official return, the sheriff states that he served a writ at a certain time and at a certain place, such facts are known to the sheriff personally and should be given conclusive effect. However, the immutability of a return should not extend (a) to facts stated in the return of which the sheriff cannot be expected to have personal knowledge and which are based upon information obtained through hearsay or statements made by third persons or (b) to conclusions based upon facts known to the sheriff only through statements made by others.

The Superior Court, in Anzalone v. Vormack, 718 A.2d 1246 (1998), in citing Hollinger held that the date, time and place service was made is conclusive and immune from assault. However, the status of the person from whom service was being made and the defendant’s residence of being “15 Sunnyhill Drive, Beaver Falls, PA” are matters which the process server presumptively had no personal knowledge but learned via third party disclosure. Therefore, the plaintiff in that case was not immune from attacking such representations.

In the instant case before this court, the defendant’s witness testified that he was Tom Joles, the son of the defendant as was stated in the sheriff’s return and that he was an adult at the time of the service. He then testified, contrary to the defendant’s motion, that he was served at 44 West Second Street, Hostetter, Pennsylvania, not 43 West Second Street, Hostetter, Pennsylvania. Plaintiff correctly suggests that, based upon the Hollinger case and the Anzalone case, the defendant may not attack the date, time and place of service. Therefore, the defendant may not attack that service was made on January 4,2001, at 2:40 p.m. at 43 West Second Street, Hostetter, Pennsylvania. What could be attacked by the defendant, but was not, was that 43 West Second Street, Hostetter, Pennsylvania, was not the address of the defendant and that Tom Joles was not an adult nor was he the son of Stanley Joles. In fact, the testimony from the defendant confirmed that 43 West Second Street, Hostetter, Pennsylvania was the address of the defendant, that Tom Joles was the defendant’s son and that Tom Joles was an adult at the time of the service. The issue as to whether service was made at 43 West Second Street or 44 West Second Street may not be attacked.

In summary, the defendant cannot attack where the service was made. Therefore, the defendant’s motion must be dismissed and the matter be scheduled for arbitration for the issue of damages.

ORDER

And now, to wit, May 3, 2001, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the defendant’s motion/petition to open the default judgment is hereby denied and the court administrator is directed to schedule this case for arbitration on the issue of damages.