author: GORDON, J.,

text:
    Williams v. SEPTA

      George J. O’Neill, for plaintiff.

      Delores Lanier, for defendant SEPTA.

      Dawn A. Segal, for defendant City of Philadelphia.
    July 12, 1989
   GORDON, J.,

This civil action in trespass was instituted by plaintiff against defendants for personal injuries as a result of a motor vehicle accident involving a Southeastern Pennsylvania Transportation Authority trolley and motor vehicle operated by a City of Philadelphia police officer.

On March 6, 1981, plaintiff, Kathleen Williams, boarded a SEPTA route 23 trolley, which was traveling northbound on Germantown Avenue. The trolley collided with an unmarked police car owned by the City of Philadelphia and operated by police officer Louis Kober, at the intersection of German-town Avenue and Armat Street. Plaintiff, after boarding, walked to the back of the vehicle as it started moving forward. As she started to sit down the trolley stopped suddenly, because of the collision, throwing her off her feet. As a result of the collision, plaintiff twisted her ankle, hit her lower back on the vertical pole and caught her fall with her hands on the floor.

SEPTA’s witnesses, Fred Corbett, the trolley operator, and David Harvey, an independent witness, testified that the police car, traveling southbound on Germantown Avenue, turned left on to Armat Street without making a left turn signal and hit the trolley. Mr. Corbett stated that when the trolley was about one-third of the way across Armat Street, contact was made with the police car. According to the testimony, the police car started its turn about one and a half car lengths before it reached the intersection, without signaling for a left turn or sounding the siren. Likewise, Corbett failed to sound the warning gong of the trolley when he first saw the police car making its turn. Corbett estimated that the auto made its left turn at approximately 40 miles per hour and the trolley was traveling two to three miles per hour. At the time of the accident, two “No Left Turn” signs were posted at the intersection, forbidding traffic driving southbound on German-town Avenue from making a left turn onto Armat Street.

Officer Kober testified to another version of how the accident occurred; He testified that his vehicle had been stopped for about 15 to 20 seconds when the trolley car proceeded through the intersection after a red light and struck his automobile, which immediately stopped. Officer Kober stated that when he saw the trolley starting forward, he blew his horn to get the operator’s attention, but the trolley proceeded forward. Kober testified that Corbett apologized for not seeing the police automobile or for not looking in its direction.

The case was tried before this court and a jury from September 9 to 15, 1987. The jury answered interrogatories on the “jury verdict slip,” finding the defendant SEPTA 25-percent negligent, but that its negligence was not a substantial factor to the injuries of plaintiff.- The jury found that the city’s police officer was 75-percent negligent in the operation of the police automobile and that his negligence was a substantial factor contributing to the plaintiffs injuries. The jury determined that plaintiff had not suffered a permanent loss of bodily function and assessed her damages at .$20,000 of which they found $18,000 compensation for pain and suffering.

Plaintiff filed timely post-verdict motions and moved this court to enter judgment in her favor against defendant SEPTA notwithstanding the verdict, or grant a new trial in which she raised several issues. Plaintiff also contended that the city should be assessed full damages for 75 percent of the award despite the fact that the jury found the plaintiffs injuries are not permanent.

The standard for review of a trial court’s grant of motion for a new trial generally is whether the trial court clearly abused its discretion or committed an error of law which controlled the outcome of the case. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 523 A. 2d 723 (1987). In Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), Justice McDermott stated that, “[0]ur court has consistently held that appellate review of the trial court’s grant of a new trial is to focus on . . . whether the appellate court can find support in the record for the jury’s verdict.” A new trial restores a case to the status it had before the trial took place and is fully open to be tried de novo as to all parties and all issues. Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986).

The first alleged error is based upon the jury’s finding that the SEPTA operator was 25-percent causally negligent, but that his negligence was not a substantial factor in causing the accident. Plaintiff contends that this finding was an unnecessary characterization which is inconsistent with the finding of causal negligence of 25 percent. Specifically, plaintiff alleges that the jury made inconsistent findings and requests that the court should award a molded judgment on the findings of negligence. It appears the trial court’s instructions to the jury adhered to the applicable proximate cause legal principles. The jury verdict was appropriate and consistent with the law.

In this court’s opinion the charge to the jury concerning the definition of proximate cause in a negligence action was adequate and thus a new trial is unwarranted. The jury, faced with conflicting testimony between SEPTA’s witnesses and the city’s witnesses, had to determine the weight of credibility. After doing so, they determined the proportion of negligence attributable to the city and to SEPTA, respectively. A new trial should not be granted because of a mere conflict in testimony; it should be awarded when the “jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Thompson, supra.

Plaintiff protests the wording of the special interrogatory sent out to the jury. We believe this issue has been waived. In Bauman v. Bauman, 212 Pa. Super. 138, 239 A.2d 822 (1968), the Superior Court held that the contention that the jury’s response to interrogatories created an inconsistency in the verdict and pleadings was waived by failure to assert it in the trial court, particularly where the appellant had explicitly assented to the submission of the interrogatories to the jury. When the trial court concluded its charge to the jury, the attorneys were invited to a conference to make any exceptions to the interrogatories. Plaintiffs counsel did not object to the alleged inconsistency when the interrogatories were proposed, discussed and submitted.

By failing to object at the time the special interrogatories were given to the jury, plaintiff has waived any objections. Commonwealth v. Lloyd, 376 Pa. Super. 188, 545 A.2d 890 (1988). Thus, plaintiffs objections have not been preserved for appellate review. Commonwealth v. Shain, 324 Pa. Super. 456, 471 A.2d 1246 (1984).

Requiring a timely specific objection to be taken in the trial court ensures that the trial judge has an opportunity to correct all alleged trial errors. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). Whether the jury’s verdict was inconsistent or not, plaintiff is barred from protesting the trial court’s alleged erroneous special interrogatories at the post-trial motions level.

Plaintiff relies on Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 484 A.2d 744 (1984), to support her inconsistency of the verdict argument. However, this case is distinguishable from the instant case. Initially, the party seeking the new trial in Ferrick did preserve the issue of protecting the jury verdict or making the assertion that the verdict was inconsistent with post-trial motions (because the objection to the jury verdict was made at the time of trial). Moreover, in Ferrick, a comparative negligence case, the court apportioned damages as between the plaintiff, (20-percent negligent) and defendant (80-percent negligent). The Supreme Court held that plaintiff could not simultaneously escape liability for his 20-percent contributory negligence, because it was not proximately related to the injury, and also be liable for the same contributory negligence. In that case there had to be a remittitur of 20 percent of the verdict.

The Comparative Negligence Act provides that a plaintiff may recover damages whenever his negligence is not greater than the negligence of the “defendants against whom recovery is sought,” and that, “[w]here recovery is allowed against more than one defendant, each defendant shall be liable for damages in the ratio of the amount of causal negligence attributed to all defendants against whom recovery is allowed.” Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 1609 (1983), quoting 42 Pa.C.S. §7102. Here, this is an apportioning of damages case between two defendants guilty of wrongful conduct, but only the negligent acts constituting a substantial factor in causing plaintiffs injuries are the negligence upon which legal causation of liability is predicated. One defendant, both defendants, or neither defendant could have been liable. The jury found that both defendants contributed to this accident, but that SEPTA’s 25-percent negligence was not a substantial contributing factor to the causation. The City of Philadelphia was held primarily liable. No Comparative Negligence Act is involved. The court’s instructions to the jury were that they could find the City of Philadelphia liable, or SEPTA liable, or both liable. The record reflects no objection to that instruction. As stated above, plaintiff has waived her objection to the interrogatories.

In Volponi v. Borough of Bristol, 122 Pa.Commw. 192, 551 A.2d 657 (1988), the Commonwealth Court held that the jury verdict in favor of the plaintiff and against the defendant driver who struck her was supported by substantial evidence and was not inconsistent. The jury determined that the defendant borough’s negligence in failing to maintain a no-parking restriction at the scene of the accident was not a substantial contributing factor to plaintiffs injuries, and assessed 100-percent liability upon the defendant driver whose negligence was found to be a substantial factor in causing plaintiffs harm. Plaintiff in the instant case may rely on the Volponi premise, that the 100-percent liability should be assessed against the City of Philadelphia as the substantial contributing factor to the plaintiffs injuries. However, defendant City of Philadelphia’s liability is limited by the Tort Claims Act in the area of pain and suffering, which will be discussed, infra.

Plaintiff next contends that she is entitled to a default judgment against SEPTA or a new trial as a sanction against defendant SEPTA for failure to respond to plaintiffs request for production of documents. Specifically, plaintiff alleges that defendant SEPTA faded to disclose a list of witnesses before and at the time of trial and because of this conduct, plaintiff alleges she was prejudiced during the course of the trial. These were names of passengers on the trolley which were gathered by Corbett after the accident. The names were never forwarded to defendant.

A default judgment is one of the proper sanctions which may be imposed against a party who, without satisfactory excuse, fails to make timely response to a mandatory discovery request. Commonwealth v. Redek Auto Service, 73 Pa. Commw. 222, 458 A.2d 614 (1983). Defendant SEPTA concedes that it failed to provide investigation documents. Plaintiff, however, never took affirmative steps to obtain the requested information. Plaintiff never wrote a letter requesting SEPTA to respond nor filed a motion to compel answers to a request for production of documents. See Pa.R.C.P. 4019.

Furthermore, the court gave plaintiff the opportunity to contact these witnesses on Friday, September 11, 1987 before trial resumed on Monday, September 14, 1987. The court was prepared to make an appropriate order to allow plaintiff to proceed without prejudicing her case. No attempt to contact these witnesses was made over the weekend. Plaintiff claimed that there was not enough time to make contact. The court is not certain how plaintiff was prejudiced since an opportunity was provided to at least try to contact some of the witnesses, and plaintiff failed to do so. Furthermore, none of these persons were offered as trial witnesses by SEPTA. Sanctions against SEPTA were denied since plaintiff never made a mandatory discovery request nor has shown how she was prejudiced by SEPTA’s non-disclosure of the investigation documents.

Plaintiff next contends that the city should be assessed full damages for 75 percent of the award, despite the jury’s finding that plaintiffs injuries were not permanent, under the city ordinance waiving immunity for torts committed by police officers. Specifically, plaintiff bases her argument on section 21-701 of the Philadelphia Code which provides:

“§21-701: Police Officers: (a) The city shall not plead governmental immunity as a defense by any action commenced by any person sustaining bodily injury or death caused by negligence or unlawful conduct of any police officer while the latter is acting within the scope of his office or employment.”

The City Council of Philadelphia enacted the first version of section 21-701 in 1962. The amendment in question was adopted in 1971. This section operates as a limited waiver by the city granted by the Political Subdivision Tort Claims Act in 42 Pa.C.S. §§8541-8564 even though the ordinance predates the act. McCreary v. City of Phila., 95 Pa. Commw. 285, 505 A.2d 385 (1986). The city has the authority to waive its immunity by ordinance, Ludwin v. Port Authority Transit Cory., 102 Pa. Commw. 36, 517 A.2d 1006 (1986), but is section 21-701 intended to include the area of negligent use of motor vehicles by city police officers? We believe not.

In 1929 the legislature passed a statute which provided that “Every county, city, borough, incorporated town, or township within this commonwealth employing any person shall be jointly and severally liable with such person for any damages caused by the negligence of such person while operating a motor vehicle upon a highway in the course of their [sic] employment.” This statute was derogatory of the common law and its purpose was to abrogate municipalities of the cloak of governmental immunity where a motor vehicle was involved in an incident. See Logan, to use v. Bethlehem City, 324 Pa. 7, 187 Atl. 389 (1936); Koscelek v. Lucas, 157 Pa. Super. 548, 43 A.2d 550 (1945); Mooney v. Philadelphia, 115 Pa. Super. 433, 175 Atl. 886 (1935). This was specifically held to in-elude police officers, Logan, supra, and to apply to the City of Philadelphia, Mooney, supra.

Based on this, it is obvious that the city had not enjoyed immunity from negligent acts involving motor vehicles since 1929. In 1978, the legislature passed the Tort Claims Act, Act of November 26, 1978, P.L. 1399, §101 et seq., 53 P.S. §5311.101 et seq., presently codified at Subchapter C of the Judicial Code of 1980, P.L. 693, §333, 42 Pa.C.S. §8541-64, designed to reinstate governmental immunity, but with statutory limitations. One of those limitations was the “exception” that reinstated the 1929 waiver, 53 P.S. §5311.22(b)(1); 42 Pa.C.S. §8542(b)(l).

The Tort Claims Act established a cap on the amount of liability and placed thresholds to recovery for pain and suffering with regard to negligence in the operation of motor vehicles. The “motor vehicle” exception of the Tort Claims Act replaced the 1929 Act as 53 P.S. §5311.802.

This leads us to pose the question that if the city did not enjoy immunity from negligent acts involving motor vehicles, what was the necessity in passing section 21-701? In order to answer this question, we must look to the legislative intent. In construing a municipal ordinance, a court must ascertain and give effect to the legislative intention as expressed in the language. Clearview Bowling Center Inc. v. Hanover Borough, York County, 430 Pa. 579, 244 A.2d 20 (1968); Manoa Shopping Center Inc. v. Zoning Hearing Board of Haverford Twp., 11 Pa. Commw. 569, 314 A.2d 516 (1974). The polestar for construction of a statute or an ordinance is the intention of the legislative body. When the words are not explicit, it behooves the interpreter to consider the purpose of the law. Clearview Bowling Center Inc. v. Hanover Borough, York County, supra.

As a guide to the legislative intent, the court may consider such matters as the occasions and necessity for the law, the circumstances under which it was enacted, the mischief to be remedied, the object to be obtained and the consequences of the particular interpretation. 1 Pa.C.S. §1921. Fireman’s Fund Insurance Co. v. Nationwide Mut. Ins. Co., 317 Pa. Super. 497, 464 A.2d 431 (1983); Busy Beaver Bldg. Centers v. Tueche, 295 Pa. Super. 504, 442 A.2d 252 (1981); Commonwealth v. Hess, 270 Pa. Super. 501, 411 A.2d 830 (1979); Commonwealth, Higher Education Assistance Agency v. Abington Memorial Hospital, 478 Pa. 514, 387 A.2d 440 (1978).

Applying the foregoing principles, we conclude that section 21-701 was not enacted to apply to the negligent use of an automobile by police officers. In viewing the historical concept of the city’s liability in the 1962 and 1971 bills respectively, the intent of section 21-701, which specifically applied to police actions, was to cover the police misconduct situations where the city could have claimed governmental immunity each time these types of cases arose. The City Council of Philadelphia enacted the first version of this code section in 1962. That version waived immunity in all actions arising out of negligent or unlawful conduct of any city employee. In 1971 the section was revised and narrowed, so that the ordinance applied only to police officers.

The purpose of section 21-701 indicates that City Council intended to target police brutality cases, and not ordinary acts of negligence by police. Levy Anderson, the city solicitor in 1971 when the ordinance was narrowed to apply to police officers only, stated in the committee hearing on Bill no. 1760 that the purpose of the bill was to limit the effect of the waiver of immunity ordinance. Anderson stated:

“This ordinance grew out of problems created when in connection with police action, bystanders and innocent people were injured, sometimes very seriously. It was concluded that it would be appropriate to enact the ordinance since there was no fault at all on the part of such individuals that the ordinary governmental immunity to which the city was entitled as all municipalities were entitled in Pennsylvania would not apply.”

Anderson further noted that:

“The wording of the ordinance passed in 1962 was so broad it was extended by attorneys to cases it was never contemplated to apply.”

He continued:

“What this would do in effect is that it would revert to the original purpose of the ordinance which is where police action is taken and some innocent person is injured the city would retain its liability.”

Anderson then cited one of the cases which prompted the adoption of the bill in 1962 where during a shoot-out, a police officer shot through a door and inadvertently killed a youngster.

Anderson specifically informed the committee that in vehicle cases such as police, fire vehicles or any other of the many vehicles that the city uses in performance of what were plainly governmental functions, the city would still remain liable under the ordinary principles of negligence. He further cited examples of situations where liability was being imposed upon the city, sometimes in questionable cases.

When asked by Councilman Schwartz if there was any reason, if governmental immunity was going to be removed generally, “why we have to pinpoint the police department?” Anderson replied:

“[I]n my personal view, I think that the original concept of the bill was proper in terms of taking care of innocent victims of police action, and I have no conflict with that. I think it was a beneficent social purpose, and. I think that it would be appropriate to retain that. But I think it ought to be retained within the original scope that was intended.”

Comments from Councilman Durham and others who testified during the hearings indicated the mischief to be remedied by the 1971 change was police misconduct. Further in the hearing, Bernard Gross, who was a member of the City Solicitor’s Office when the 1962 measure was adopted, testifying against the bill, admitted:

“He [Anderson] is correct when he said that the original point was to worry about police brutality cases. I have no question that’s what brought it on. While we looked at this the feeling was why only police brutality ... it was basically a policy decision which was sparked by the police brutality situation but it was a policy decision that was made with intent.”

It is apparent from the hearing on Bill 1760 that the City Council intended to target police brutality cases and not ordinary acts of negligence by police. Since there was already a motor vehicle exception to governmental immunity in place, there was no need to further legislate in this area.

In City of Philadelphia v. Middleton, 89 Pa. Commw. 362, 492 A.2d 763 (1985) and its companion case, Capanna v. City of Philadelphia, 89 Pa. Commw. 349, 492 A.2d 761 (1985), the Commonwealth Court held that the city had effectively waived its immunity where bodily injury or death resulted from the negligent or unlawful conduct of its police officer. The facts of both cases are compatible. In Middleton, police officers were charged with false arrest, false imprisonment, assault, battery, and negligent denial of medical care to a diabetic who collapsed on a sidewalk, was accused by police officers of being drunk, was struck by officers, placed under arrest and was confined to a cell In excess of eight hours. In Capanna, city police officers, in response to a radio call to pick up a “hospital case,” took decedent to a jail cell instead of to a hospital. He was found dead three hours later. The city in both cases claimed immunity under section 8542 of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542 because the cause of action did not fall within any of the eight exceptions enumerated in the act. The court, however, found that the city had effectively waived its immunity through section 21-701 of the Philadelphia Code. Thus, police officers were held liable for their negligent conduct. These cases are distinguishable from the one at bar. The police officer in this case is charged with negligent use of a motor vehicle. Neither an intentional tort nor negligent denial of medical care is involved.

In Borenstein v. City of Philadelphia, 595 F.Supp. 853 (1984), the District Court held that by ordinance, the city waived governmental immunity with regards to claims asserted against police officers, but that the city’s waiver was not a waiver of a police officer’s official immunity from action for officer’s negligent conduct, but to intentional tortious conduct. This case, analogous to Middleton and Capanna, supra, examined the historical context of section 21-701 and the Tort Claims Act and determined that since local communities may exact rules and regulations as long as they are “not inconsistent” with the other provisions of the act, Philadelphia’s waiver of immunity is in no manner inconsistent with the act. Borenstein, supra. The act was intended to reinstate the governmental immunity, abolished in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). To reconcile section 21-701 with the act, the court noted that although the act lists only eight exceptions to the broad grant of immunity, one being the negligent operation of an automobile, they are not necessarily exclusive.

“It would not be inconsistent with the purpose of the [act] for a particular community to conclude that the fiscal burden of an enlarged waiver of immunity would not be so great as to outweigh the public interest in compensation of victims of negligence in certain classes of cases not included in the act’s eight exceptions.” Borenstein, 595 F.Supp. at 858.

We conclude, therefore, that the City of Philadelphia acted within the powers derived from its Home Rule Charter in deciding the best interest of its citizens would be served by waiving governmental immunity in cases where bodily injury or death resulted from negligent or unlawful conduct of its police officers. We further conclude, however, that the intent of the ordinance was an attempt to deal with perceived shortcomings in police conduct, and was not intended to concern itself with operation of motor vehicles by police officers.

Abuse of police powers, and intentional tortious conduct by police persons cannot, in any way, be equated with the negligent operation of a motor vehicle. The opportunity for injury of a victim of an automobile accident is no more enhanced because the operator of a vehicle is a police officer as opposed to the mayor, the managing director, or a departmental employee of the city. And since the Act of May 1, 1929, P.L. 905 was operative in 1971 when section 21-701 was passed, to reach any other conclusion would be, in our opinion, ludicrous. Exceptions to governmental immunity are to be narrowly construed, given the expressed legislative intent to insulate political subdivisions from tort liability, Bickert v. Borough of Riverside, 118 Pa. Commw. 91, 545 A.2d 962 (1988). Based on the foregoing, we conclude that section 21-701 does not waive the city’s immunity under the Tort Claims Act as to negligent operation of motor vehicles.

Having reached the above determination, we hold that the police officer’s negligence in this case is governed by the Tort Claims Act and falls within one of the enumerated exceptions found in section 8542 of the Act, 42 Pa.C.S. §8542. The Supreme Court has recognized that the reinstatement of immunity as initially sét forth in the Tort Claims Act is “absolute,” although subject to certain limitations and to eight enumerated exceptions. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). One of the exceptions, found at section 8542(b)(1) of the act, is the vehicle liability exception which provides:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(1) Vehicle liability — The operation of any motor vehicle in the possession or control of the local agency. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.”

We conclude that Officer Kober’s negligent operation of his automobile fits within the purview of the vehicle liability exception of the act. This exception provides for liability only if the motor vehicle was “in the possession or control of the local agency.” Gratkie v. Air Wisconsin Inc., 107 Pa. Commw. 461, 528 A.2d 1032 (1987). There is no doubt that Kober was in possession and had control of the automobile. Thus, reviewing the record reveals that the Judicial Code clearly imposes liability where the motor vehicle is operated by a commonwealth party in possession or control of the vehicle, which is the case here. The city, not having waived its rights under the act, is liable to the plaintiff pursuant to section 8542(b)(1).

Since liability has been established, the next issue concerns damages. 42 Pa.C.S. §8553(b) of the Judicial Code provides that “[d]amages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $500,000 in the aggregate.” This act legislatively raised the shield of government immunity against any damages on account of any injury to a person caused by an act of a local agency or employee thereof. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

The jury in this case awarded $20,000 in damages of which $18,000 was for pain and suffering, and found that plaintiff did not suffer a permanent loss of a bodily function. Under 42 Pa.C.S. § 8553(c)(2) of the act, provision is made for compensation for pain and suffering in certain instances, one being the permanent loss of a bodily function. The act distinguishes between accident victims who undergo pain and suffering and die from their injuries or undergo permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses exceed $1,500 and those victims who experience pain and suffering and survive without the permanent consequences. Robson v. Penn Hills School District, 63 Pa. Commw. 250, 437 A.2d 1273 (1981). Here, the jury determined that plaintiff experienced pain and suffering but did not suffer a loss of a bodily function. This being the case, plaintiff does not meet the threshold classification as established by the legislature. Plaintiff is, therefore, limited to $2,000, the amount not awarded for pain and suffering.

Based on the foregoing, plaintiffs motion for a new trial or for judgment notwithstanding the verdict was denied.

      . The Act of May 1, 1929, P.L. 905, section 619, presently found at 75 P.S. §1576, had been amended several times before it was repealed by the Act of November 26, 1978, P.L. 1399, §802, 53 P.S. §5311.802, known as the Political Subdivision Tort Claims Act.

      . See hearings on Bill no. 1760 amending Chapter 21-700 of the Philadelphia Code before the Committee on Law and Government of the Council of the City of Philadelphia, November 17, 1971.

      . See hearings, supra, at 6.

      . See hearings, supra, at 7.

      . See hearings, supra, at 9.

      . See hearings, supra, at 8.

      . See hearings, supra, at 15 and 16.

      . See hearings, supra, at 33.


source: Caselaw Access Project

author: GOLDMAN, J.,

license: Public Domain

text:
    Kluska v. City of Philadelphia

      Stephen R. Bolden, for plaintiff.

      David A. Soltz, for defendant.
    November 3, 1989
   GOLDMAN, J.,

The instant matter is before the court on defendant City of Philadelphia’s post-trial motions for judgment non obstante veredicto or, in the alternative, a new trial.

I

Factual Background

On September 28, 1981, at approximately 3:00 p.m., Philadelphia police officers arrested Elizabeth Kluska for public intoxication. Mrs. Kluska was 57 years old and had never been arrested prior to this incident.

Police Officer Schenzle was seated in a fast food restaurant two to three blocks from Mrs. Kluska’s home when he was notified of a disturbance outside. After speaking to Mrs. Kluska, he realized that she was intoxicated and called for assistance. When the other police officers arrived, Mrs. Kluska started to crawl finder a parked vehicle. The officers picked her up and placed her in a police van. Despite police questioning, Mrs. Kluska refused to state her name or address.

The police brought Mrs. Kluska to the 24th Police District about one mile from her home. At that time, Lieutenant Gramlich ascertained her name and address from a receipt in her purse. Instead of bringing Mrs. Kluska home, she was transported to the Police Administration Building in order to prevent her from hurting herself or others. Since she was picked up on the single charge of intoxication, she was not to be charged or fingerprinted and was to be released when she was sober.

Mrs. Kluska was placed alone in the cell furthest from the police matrons’ station. She was not permitted to make a phone call nor was one made for her. At 9:05 p.m., approximately six hours after being taken into custody, Mrs. Kluska hanged herself to death with her pantyhose.

II

Procedural History

Plaintiff, Theodore S. Kluska, individually and as administrator of the estate of Elizabeth Kluska, instituted this wrongful death and survival action against defendant, City of Philadelphia. Elizabeth Kluska’s husband, Theodore Kluska, passed away since this action was instituted and the Kluska’s mentally retarded son, Gerald, is the surviving beneficiary.

Plaintiff alleged that the city was negligent in failing to prevent' Mrs. Kluska from committing suicide. The city maintained that it cannot be held liable for Mrs. Kluska’s self-inflicted death for a variety of reasons, discussed infra.

On March 9, 1989, the jury returned a verdict in favor of plaintiff and against defendant in the amount of $250,000.

The city proffers the following arguments in support of its motion for post-trial relief:

(1) The city enjoys sovereign immunity which it cannot waive;

(2) Even if sovereign immunity can be waived, the city has not done so in the instant action; and

(3) Plaintiff has failed to make out a cause of action.

Further, the city alleges that the trial court committed the following errors:

(1) The court erred in refusing to charge the jury that plaintiff had to prove that the police had reason to know that Elizabeth Kluska was suicidal in order to recover;

(2) The court erred in excluding evidence of Gerald Kluska’s marriage subsequent to his mother’s demise;

(3) The court erred in allowing police directives to be entered into evidence; and

(4) The court erred in admitting evidence of prior suicides.

Ill

Chapter 21-700 of the Philadelphia Code Constitutes a Waiver of Sovereign Immunity

It is conceded by both parties that the present case does not fall within any of the eight exceptions to sovereign immunity. See Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542(b)(l)-(8).

In City of Philadelphia v. Middleton, 89 Pa. Commw. 362, 492 A.2d 763 (1985), the Commonwealth Court concluded that the City of Philadelphia expressly waived its immunity for negligent police action under Chapter 21-700 of the Philadelphia Code and that such waiver was not preempted by the subsequently enacted Political Subdivision Tort Claims Act, supra. The court stated:

“There is not indication, however, that the eight exceptions listed in the act were intended to be exclusive or that local municipalities were forbidden to waive the immunity granted by the act.
“We, therefore, conclude that the City of Philadelphia acted well within the powers derived from its Home Rule Charter in deciding that it would be in the best interest of its citizens to waive governmental immunity in cases where bodily injury or death has resulted from the negligent or unlawful conduct of its police officers.” Id. at 365, 492 A.2d at 765.

Although defendant acknowledges that Middleton holds that Chapter 21-700 serves as a waiver of the city’s immunity in cases involving bodily injury or death caused by the negligence or unlawful conduct of its police officers, defendant argues that two recent Supreme Court of Pennsylvania decisions have rejected Middleton, supra.

Defendant maintains the Supreme Court has attacked the Middleton analysis in In re The Upset Sale of Properties Against which Delinquent 1981 Taxes were Returned to the Tax Claim Unit on or about the First Monday of May, 1982 (SKIBO Property), _ Pa. _, 560 A. 2d 1388 (1989), and Snyder v. Harmon, 522 Pa. 424, 562 A. 2d 307 (1989). In SKIBO Property, the court held that governmental immunity is an absolute defense which cannot be waived by a government attorney’s negligent failure to plead immunity as a defense. Similarly, in footnote one of Snyder, supra, the court held that municipal immunity is a nonwaivable defense where government counsel has failed to raise immunity in new matter or in its motion for summary judgment.

Neither of these decisions addressed the question of whether a municipality could waive immunity through an ordinance by its elected legislative branch. The Supreme Court has not questioned the Middleton court’s conclusion that local ordinances may coexist with the Political Subdivision Tort Claims Act, supra. The Supreme Court’s ruling that an attorney’s negligent failure to plead immunity as a defense cannot constitute a waiver of that defense does not amount to a decision on the situation applicable in Middleton, supra, and the present case, let alone a rejection of the standards applied therein. If the city desires now to avoid liability under Chapter 21-700, its aspirations in that regard must be addressed to the Philadelphia City Council.

IV

A Police Matron is a Police Officer for the Purposes of Chapter 21-700

Defendant asserts that even if the local ordinance is valid, it does not apply in the present action because a police matron is not a “police officer” within the meaning of the Philadelphia Code. The city emphasizes that Chapter 21-700 waives governmental immunity only where bodily injury or death is caused by “any police officer while the latter is acting within the scope of his office or employment.” (emphasis supplied)

The city relies on Beaver Falls City Council v. Commonwealth of Pennsylvania, 17 Pa. Commw. 31, 330 A.2d 581 (1975), aff'd., 469 Pa. 522, 366 A.2d 911 (1976), which held that parking attendants were not police officers for the purpose of an unlawful discrimination case. The Beaver Falls court stated that the crucial aspect in defining a police officer is whether that person is engaged in “the investigation and detection of serious crimes.” Id. at 33, 330 A.2d at 583.

Defendant’s reliance on Beaver Falls is inappropriate in the present case. Beaver Falls does not define a police matron nor does it define a police officer for purposes of Chapter 21-700. Definitions of employment status differ in various contexts. See, e.g., Commonwealth of Pennsylvania v. Pennsylvania Labor Relations Board, 125 Pa. Commw. 549, 558 A.2d 581 (1989) (holding that park rangers are “police” for purposes of Policemen and Firemen Collective Bargaining Act).

The evidence presented at trial shows that police matrons are directly employed by the Philadelphia Police Department; A matron’s duties include searching female prisoners and performing the custodial function of the Police Department in regard to female prisoners. Although not sworn police officers, matrons report to the police officers on a daily basis and must abide by the rules and regulations of the Police Department.

A police matron performs duties which would otherwise be carried out by police, officers. In fact, testimony at trial reveals that some of the police officers stationed at the Police Administration Building holding cells perform the same or similar functions as police matrons. A substantial portion of their duties entails the initial processing of female prisoners through the criminal justice system. The custody of prisoners at this stage is a specific function of the . Police Department. The fact that matrons handle female prisoners under this control, of the Philadelphia Police Department refutes the city’s contention that matrons are more comparable to prison guards than police officers.

Accepting the city’s line of reasoning would allow the Police Department to avoid liability under Chapter 21-700 by simply breaking down the many responsibilities of the Police Department into various subparts and delegating these respective duties to unsworn, civilian employees. Such an approach would thoroughly frustrate the purpose of Chapter 21-700 of the Philadelphia Code.

V

A Duty on the Part of the City to Mrs. Kluska Was Created when the City Entered into a Special Relationship with Her

Defendant argues that plaintiff failed to prove that the city owed Mrs. Kluska a duty. This court disagrees. In establishing the existence of a special relationship between the city and Mrs. Kluska, plaintiff has satisfied its burden of proof as to duty.

In Caldwell v. City of Philadelphia, 358 Pa. Super. 406, 517 A.2d 1296 (1986), the court stated:

“In some limited instances, however, the duty to the public may become a duty to the individual if the police have a ‘special relationship’ to the complainant that differs from that of the police to the general public. This ‘special relationship’ may allow the police to be liable for negligent performance of their duty where otherwise liability would not exist.”

The court applied the three-part test for determining whether a special relationship was created enunciated in Melendez v. City of Philadelphia, 320 Pa. Super. 59, 466 A.2d 1060 (1983). The following three elements must be present to establish a special relationship: (1) police awareness of the individual’s particular situation; (2) knowledge by the police of the potential for the particular harm suffered; and (3) a voluntary assumption by the police of the protection of the individual from the precise harm. Id. at 64, 466 A. 2d at 1063-4. See also section 314A of Restatement (Second) of Torts.

The evidence presented at trial satisfies the Melendez requirements. First, the police officers and matrons testified that they were aware of Mrs. Kluska’s particular situation. The testimony reveals that the police officers and matrons knew that Mrs. Kluska was intoxicated. Second, the police officers and matrons testified that they had knowledge of the potential for the particular harm suffered by the decedent. Statistical information was introduced which revealed a substantial correlation between intoxication and jailhouse suicides. Third, police personnel testified that they assumed the duty to protect Mrs. Kluska from the precise harm in question.

With all of this evidence before it, the court had a substantial basis upon which to conclude that the Melendez special-relationship test had been satisfied and that the city owed a duty to Mrs. Kluska.

VI

A Sufficient Factual Basis Exists Supporting the Jury’s Determination that the City Was Negligent in Failing to Prevent Mrs. Kluska’s Suicide and that the City’s Negligence Was a Substantial Factor in Bringing About her Death

(A) Plaintiff Made Out a Cause of Action under Section 323 of the Restatement (Second) of Torts and the Comparative Negligence Act

(1) Defendant argues that plaintiff failed to meet the causation requirements in section 323 of the Restatement (Second) of Torts. Their contention is based on the proposition that section 323 cannot be used to create a duty where none already exists. Morena v. South Hills Health System, 801 Pa. 634, 462 A. 2d 680 (1983).

Although the city interprets Morena accurately, that decision has no bearing on the present case. The city’s duty to protect Mrs. Kluska from harming herself or others was established when she was placed in protective custody. See section V, supra. The special relationship between the city and Mrs. Kluska created the city’s duty, not section 323.

Further, defendant cites Harding v. Galyias, 117 Pa. Commw. 371, 544 A.2d 1060 (1988), allocatur denied (February 23, 1989) for the proposition that while conditions of confinement may facilitate suicide, they do not cause it. Id. at 380, 544 A.2d at 1065. Defendant further relies on the testimony of its psychiatrist Dr. Michals that “people who want to kill themselves, kill themselves” and that “suicide is not environmentally determined.”

The jury had ample evidence before it to conclude that the city was negligent in failing to prevent Mrs. Kluska’s death. Specifically, the testimony of plaintiff’s experts revealed that the city’s actions in handling the decedent fell below the standard of care expected in such situations. Finally, even though no medical expert testified as to whether the city’s negligence was a substantial factor in bringing about Mrs. Kluska’s death, the above-mentioned evidence coupled with the testimony of plaintiffs expert that police actions actually worsened Mrs. Kluska’s situation supports the jury’s determination in that regard.

(2) The city also asserts that Mrs. Kluska’s deliberate act precludes recovery on a negligence theory of liability. Relying on Lewis v. Miller, 374 Pa. Super. 515, 543 A.2d 590 (1988), defendant maintains that where decedent’s own conduct is not merely negligent, the case must be removed from the Comparative Negligence Act, 42 Pa.C.S. §7102.

In Lewis, supra, the decedent-plaintiff and the defendant were drag racing on a public highway when decedent skidded into a stone wall. The court emphasized that both parties were engaged in “wanton conduct” and that both parties were engaged in conduct which constituted at least four separate crimes.

The critical distinction between the present case and Lewis, supra is the fact that a special relationship existed between the city and Mrs. Kluska. Further, defendant’s contention that decedent’s suicide constitutes the type of “wanton conduct” involved in Lewis is dubious. Plaintiff’s expert Lindsay Hayes testified that the isolation of single-celled confinement and being cut off from one’s family enhances the likelihood of someone committing suicide. Further, plaintiffs expert Patrick Anderson testified that placing Mrs. Kluska in police custody clearly worsened her situation. Under these circumstances, the decedent’s conduct does not remove this case from the Comparative Negligence Act. The record supports the jury’s determination that the city was negligent in failing to prevent Mrs. Kluska’s suicide.

(B) Chapter 21-700 Applies to Mrs. Kluska’s Self-Inflicted Death

The city notes that Chapter 21-700 applies where injury or death is “caused by” negligence or unlawful conduct on the part of a police officer. Defendant maintains that since Mrs. Kluska hanged herself, the ordinance cannot be relied upon to impose liability for her death on the city.

As previously discussed, the evidence proffered at trial establishes that the city was negligent in failing to prevent Mrs. Kluska’s death. Moreover, defendant’s argument fails to account for the jury’s determination that the city’s negligence was a substantial factor in bringing about her death. Such a conclusion is supported by the evidence presented at trial. See section VI(A), supra.

VII

The Court Properly Refused to Charge the Jury that in Order to Recover Plaintiff Must Prove that the Police Officers and Matrons Knew that Mrs. Kluska Was Suicidal

The court instructed the jury that plaintiff could recover if plaintiff has proven that the city knew or should have known about the potential for this incident arising. Defendant maintains that this charge is contrary to the first two parts of the Melendez test, supra.

Defendant’s argument blurs the distinction between the first two elements of the Melendez special-relationship test. The first factor which must be established is that the police had knowledge of the individual’s particular situation. The second factor to be proven is that the police had knowledge of the potential for the particular harm suffered. Defendant’s assertion combines these two distinct elements in arguing that knowledge by the police that Mrs. Kluska was suicidal is the requisite for recovery. Plaintiff did not have that burden of proof.

Plaintiff satisfied its burden of proof under the first requirement by proving that the police knew Mrs. Kluska was intoxicated and in danger of hurting herself. The second element was established by a combination of expert and police testimony, police directives, and statistical information. This evidence revealed that the police were aware of the potential for the particular harm suffered. See section V, supra.

VIII

The Court Properly Excluded Evidence of Gerald Kluska’s Marriage

Gerald Kluska is the mentally retarded son of Theodore and Elizabeth Kluska. Plaintiff’s claim is based upon Gerald’s need to purchase replacement services now that his primary caretaker, Mrs. Kluska, is dead. Although there is some confusion as to the status of the relationship in which he is currently involved, it appears as though Gerald Kluska is married to a woman who is providing the necessary care.

Both parties agree that in wrongful death and survival actions, the marriage of the surviving spouse is irrelevant. See Evans v. Reading Co., 242 Pa. Super. 209, 363 A.2d 1234 (1976). The city contends that evidence of Gerald’s marriage is relevant to rebut plaintiffs primary economic claim since Gerald’s wife provides the services which form the basis of the claim.

The court rejects defendant’s arguments and concludes that evidence of marriage is irrelevant. There is no authority for the city’s contention that marriage of a survivor may be admissible for some purposes. Further, the court is persuaded by the language in Schuler v. Berger, 275 F.Supp. 120, 127 (E.D. Pa. 1967), aff'd., 395 F.2d 212 (3d Cir. 1968) (applying Pennsylvania law), stating that the rights of surviving beneficiaries are fixed at the moment of the decedent’s death.

Finally, it is well settled that the trial court may exclude evidence that would confuse the jury and divert their attention from the central issues' of the case. Feld v. Merriam, 314 Pa. Super. 414, 461 A. 2d 225, 228 (1983), rev’d on other grounds, 506 Pa. 383, 485 A. 2d 742 (1984). Permitting evidence and argument on the strength of Gerald’s marriage as well as comparisons of the quality of care provided by his mother as opposed to his wife would necessarily require speculation on the part of the jury and divert their attention from the central issues at trial.

IX

The Court Properly Admitted the City’s Police Directives into Evidence

The city filed a motion in limine to exclude the use of the city’s police directives at trial. This motion was denied.

At trial, three directives were entered into evidence; two by plaintiff and one by defendant.

Plaintiffs expert, Mr. Anderson, testified that the police directives set forth the appropriate standard of care. Defendant’s expert, John Case, testified that the directives conformed to or exceeded the appropriate standards of care applicable at the time.

The court instructed the jury on the directives as follows:

“In regard to the directives that were in evidence, it’s my view of the law that in and of themselves the directives don’t become a standard of what the police have to do at the threat of being negligent.
“However, if either from evaluating the expert testimony, the opinions that you heard from the experts about what the standard of care should be, and/or from your own analysis of the circumstances, you make a determination that coincides with the directives, of course, a violation of the standard as you evaluate it would be negligent, but it is not a situation whereby issuing the directive that in and of itself there is a standard that they must comply with. ...”

The admission of these directives into evidence, therefore, is consistent with Scarborough v. Lewis, 359 Pa. Super. 57, 518 A.2d 563 (1986), which held that police directives alone do not establish a duty by the police to the general public. Scarborough did not hold, as the city alleges, that is was error to introduce police directives into evidence. In fact, the Scarborough court stated in footnote seven:

“The record reveals that Directive 38 was admitted as evidence of the standard of care with regard to the inspection and maintenance of city property. The propriety of the trial court’s admission of the directive into evidence is not challenged on appeal.” The court merely addressed whether a police directive creates a duty, an issue which is not present in the case at bar.

Considering the fact that the court properly instructed the jury on the use of the directives and that the city also moved a directive into evidence, the court properly admitted the police directives.

X

The Court Properly Admitted Evidence of Prior Suicides

Prior accidents or events may be admitted to impute notice only when occurring “at substantially the same place and under the same or similar circumstances.” Hannon v. City of Philadelphia, 120 Pa. Commw. 383, 548 A.2d 693 (1988) (quoting Whitman v. Riddell, 324 Pa. Super. 177, 471 A.2d 521 (1984)).

On the first day of trial, the court instructed counsel that certain items could be mentioned to the jury in opening statements but if that evidence was excluded at trial, they had made those statements at their own risk. The court continued:

“The motion is to preclude evidence of other suicides, and in that connection I have said that since such evidence forms part of the basis of the expert’s testimony, that it could be produced.

“However, there was some contention as to whether the information that the plaintiffs purport to have is accurate and really shows comparable situations — whether the evidence that they have relates to intoxicants, for example — and it may be that I would exclude this evidence if the comparable circumstances relating to intoxication, for example, are not shown, and the city can, again, argue that the evidence, if it is presented, doesn’t bear such a relationship to our situation to allow it to be admitted.

“Again, it can be argued to the jury in the opening but also at your own hazard.”

At trial, plaintiffs first witness, Sgt. John Heran, referenced a study he prepared personally, “Suicides from 1980 to 1985.” He testified, without objection, that four of the five people who committed suicide while in Philadelphia Police Department facilities in 1980 were intoxicated. Further he testified, without objection, that all five suicide victims hanged themselves with an article of clothing. Sgt. Heran went on to testify, without objection, that there were 22 suicides from 1976 to 1981 in police facilities, even though he did not know what the charges were against the individual for the years 1976 through 1979. The court sustained the city’s objection to the introduction of suicides committed after Mrs. Kluska’s death.

As the court’s instructions to counsel clearly indicate, if the city had any objection to the introduction of the prior suicides on the basis that they were not substantially similar to Mrs. Kluska’s suicide, it had to raise an objection to the court when that evidence was presented. Although the city did preserve its objection as to whether prior suicides in general could be. introduced, it failed to address each specific incident as they were presented to the court. Therefore, the city has waived any objection on the grounds that the prior suicides were not substantially similar. 42 Pa.C.S. §227.1; Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). See also, B.D.B. Inc. v. Pa. Liquor Control Board, 67 Pa. Commw. 72, 445 A.2d 1360 (1982), and Christ v. IBM, April term 1984, no. 3601 (Katz, J.) (filed October 23, 1989).

Moreover, all of the prior suicides occurred in Philadelphia Police Department detention facilities satisfying the requirement that prior events happen in substantially the same place. In addition, the fact that all of the suicide victims hanged themselves with an article of clothing reveals that the circumstances of Mrs. Kluska’s death were analogous. The fact that four of the five 1980 suicides were committed by intoxicated individuals further supports the conclusion that the circumstances were similar. The differences in the prior suicides which the city now addresses are clearly outweighed by these similarities.

XI

Delay Damages

Plaintiffs petition for delay damages is granted in the amount of $145,068.48. This figure represents the period of time covering the filing of the complaint, September 8, 1983, to the verdict date, March 9, 1989, excluding a two-week delay in 1989 attributable to plaintiff. Defendant’s arguments contesting delay damages are not novel.

CONCLUSION

For all of the foregoing reasons, defendant’s post trial motions are denied and plaintiffs petition for delay damages is granted.

      . Chapter 21-700 of the Philadelphia Code states:
      “Chapter 21-700. Waiver of Governmental Immunity
      “§21-701. Police Officers —
      “(a) The city shall not plead governmental immunity as a defense in any civil action commenced by any person sustaining bodily injury or death caused by negligence or unlawful conduct of any police officer while the latter is acting within the scope of his office or employment.”

      . “§323. Negligent Performance of Undertaking to Render Services —
      “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      “(a) his failure to exercise care increases the risk of harm, or
      “(b) the harm is suffered because of the other’s reliance upon the undertaking.”


author: McLEAN, J.,

text:
    Port Authority of Allegheny County v. Local 85, Amalgamated Transit Union

      Mark S. Shiffman and James B. Brown, for Port Authority of Allegheny County.

      Joseph J. Pass, for Local 85, Amalgamated Transit Union.
    January 25, 1989
   McLEAN, J.,

Plaintiff, Port Authority of Allegheny County, owns and operates an integrated public transit system in Allegheny County. Local 85, Amalgamated Transit Union is an unincorporated labor organization, which is the duly authorized and exclusive bargaining agent for the vast majority of PAT employees.

PAT is organized and operates pursuant to the Second Class County Port Authority Act, 55 P.S. §551 et seq., as amended July 3, 1986. PAT has filed an action for declaratory relief pursuant to 42 Pa. C. S. §7531 et seq. wherein PAT seeks judicial resolution of a labor dispute arising out of the interpretation of the 1986 amendments to the Port Authority Act.

Pursuant to a 1969 arbitrator’s decision, Port Authority of Allegheny County v. Amalgamated Transit Union, Local Division 85, April 3, 1969 (Teple, Arb.), PAT has traditionally accorded full bargaining status to employees designated as “first-line supervisors.” Subsequently the Port Authority Act was amended to change some pertinent provisions relied upon by Arbitrator Teple in the 1969 decision, raising the question of whether first-line supervisors retain their collective bargaining rights under the amendments. PAT maintains that they do not, but are merely entitled to “meet and discuss” the terms of their employment under the provisions of Act 195, the Public Employee Relations Act, 43 P.S. 1101.101 et seq. The union asserts that first-line supervisors retain their traditional bargaining rights but are simply prevented from being included in the same bargaining units as other PAT employees.

The question presented for arbitration in 1969 was whether the Port Authority of Allegheny County was required to recognize and bargain with Local 85 as the representative of its personnel in the job classifications of dispatcher, route foreman, area supervisor, and instructor under 55 P.S. §13.2 of the original Port Authority Act. That section provided that:

“The authority through its boards shall deal with and enter into written contracts with the employees of the authority through accredited representatives of such employees or representatives of any labor organization authorized to act for such employees concerning wages, salaries, hours, working conditions and pension and retirement provisions.
“If the authority acquires an existing transportation system, such of the employees of such transportation system, except executive and administrative officers, as are necessary for the operation thereof by the authority, shall be transferred to and. appointed as employees of the authority subject to all the rights and benefits of this act.”

Thus the issue basically was whether supervisors were employees, rather than executive or administrative personnel, within the provisions of the Port Authority Act, and whether they could enjoy collective bargaining rights.

Arbitrator Teple answered this question in the affirmative:

“It seems plain beyond peradventure, considering this language, that the reference to employees includes all personnel except the executive and administrative officers specifically excluded. Having chosen to exclude two groups, and no others, in the chairman’s opinion it must be concluded that the state legislature intended to extend the rights and benefits of the act to all other employees, regardless of the functions they may perform or the extent to which those functions may be considered supervisory in nature. Supervisors at a level below the executive and administrative officers clearly were not excluded.
“Having established the scope and meaning of the reference to employees in this manner, there is no sound basis that the chairman has been able to find for ascribing a different meaning elsewhere in the same section. The provision that the authority shall deal with and enter into written contracts with its employees through accredited representatives, manifestly is one of the rights conferred to in the language quoted above [section 13.2] and must be considered as extending to all employees other than those specifically excluded.” Teple opinion at 13-4.

In reaching the conclusion that supervisory personnel are to be afforded full collective bargaining status, Arbitrator Teple relied upon a narrow interpretation of the old Port Authority Act.

Subsequently, portions of the language relied upon to resolve the 1969 dispute were amended by the legislature. However, the mere fact that the language of the Port Authority Act has changed in reference to first-level supervisors does not necessarily mean that the opposite result is now intended. Rather, the question must be examined afresh in light of the new amendments.

The amended 55 P.S. §563.2(a) reiterates the opening provisions of the old section 13.2:

“The authority through its boards shall deal with and enter into written contracts with the employees of the authority through accredited representatives of such employees or representatives of any labor organization authorized to act for such employees concerning wages, salaries, hours, terms, and conditions of employment, and pension and retirement provisions.”

However, the amended section 563.2(d) contains new language dealing specifically with first-level supervisors.

“First-level supervisors shall not be included in bargaining units with other employees of the authority. Incumbents holding first-level supervisory positions on the effective date of this subsection will be given the opportunity to continue in represented status or to terminate their bargaining unit status. Those who choose to continue in represented status shall retain the individual right to terminate their bargaining unit status at any time. All newly appointed first-level supervisors shall not be included in bargaining units with other employees of the authority. ‘First-level supervisor’ shall mean the lowest level at which an employee functions as a supervisor. For the purposes of this section ‘supervisor’ shall mean any individual having authority in the interests of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees or responsibility to direct them or adjust their grievances; or, to a substantial degree, effectively recommend such action, if, in connection with the foregoing, the exercise of such authority is not merely routine or clerical in nature, but calls for the use of independent judgment. In the event that an employee in a position defined as a ‘first-level supervisor’ is removed from his or her position by a layoff or other reduction in force, such employee may elect to return to the position he or she held immediately prior to becoming a ‘first-level supervisor.’ In all cases, such job placement will be made in accordance with full seniority.”

It is PAT’s position that first-level supervisors who are grandfathered into their current bargaining units under 55 P.S. §563.2(d) retain their traditional collective bargaining rights, but that incumbents who opt out of their current bargaining units and supervisors who are hired after the effective date of the amendment have no collective bargaining rights. Since the amended Port Authority Act is silent on what other rights may attach to first-level supervisors, PAT suggests that the Port Authority Act be read in conjunction with Act 195, the Public Employee Relations Act, 43 P.S. §1101.101 et seq., in effect that PERA be used as a gap filler for the Port Authority Act. The specific provision of PERA that PAT wishes the court to apply is 43 P.S. §1101.704, which provides that:

“Public employers shall not be required to bargain with units of first-level supervisors or their representatives but shall be required to meet and discuss with first-level supervisors or their representatives, on matters deemed to be bargainable for other employees covered by this act.”

After careful consideration, the court is unable to agree with PAT’s position.

PAT maintains, in support of its position, that the Port Authority Act and PERA are to be read in pari materia. Port Authority of Allegheny County v. Division 85, Amalgamated Transit Union, 34 Pa. Commw. 71, 383 A.2d 954 (1978). Concerning the interpretation of statutes in pari materia the Statutory Construction Act, 1 Pa.C.S. §1501 et seq., provides in section 1932:

“(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.
“(b) Statutes in pari materia shall be construed together if possible as one statute.” (emphasis supplied)

Admittedly the Port Authority Act and PERA deal to a great extent with the same subject matter, and the Port Authority is a public employer within the provisions of PERA, 43 P.S. §1101.301(1). However, there exist several reasons why it would be improper to insert the provisions of PERA regarding the rights of first-level supervisors into the Port Authority Act.

First, PERA itself contains a savings clause at 43 P.S. §1101.2001 which explicitly provides that:

“The rights granted to certain public employees by the following acts or parts thereof shall not be diminished by this act: . . .
“(3) Section 13.2 [amended 55 P.S. §563.2] of the act of April 6, 1959 (P.L. 1414), known as the ‘Second Class County Port Authority Act.’”

In light of this provision, to apply PERA to limit the rights of first-level supervisors under the Port Authority Act when the Port Authority Act itself is silent as to those rights would be a clear frustration of legislative intent.

Furthermore, the Statutory Construction Act provides in 1 Pa.C.S. § 1933 that when two statutes are in conflict the more specific provisions shall prevail over the general unless the general provisions, are enacted later and it is the manifest intention of the legislature that the general should prevail. In view of the PERA savings clause quoted above, such is obviously not the case here. Therefore, the more specific provisions of the Port Authority Act must control.

Finally, 1 Pa.C.S. §1932 states that statutes in pari materia must be construed together if possible. To do so when the legislative intent behind both is not consonant would be an act of judicial whimsy.

Having established that PERA is inapplicable to define the rights of first-level supervisors under the Port Authority Act, it remains to be seen how the Port Authority Act itself defines those rights. The amended 55 P.S. §563.2(d) provides simply that “First-level supervisors shall not be included in bargaining units with other employees of the authority.” It does not expressly perpetuate or limit their collective bargaining rights under the old act. However, as the union points out, first-level supervisors are at all times referred to and defined as “employees” of the Port Authority. Therefore, it is proper to consider the provisions of the Port Authority Act regarding the bargaining rights of employees in determining the rights of first-level supervisors.

Both the old 55 P.S. § 13(a) and the amended 55 P.S. §563.2(a) of the Port Authority Act contain the following identical language:

“The authority through its boards shall deal with and enter into written contracts with the employees of the authority through accredited representatives of such employees or representatives of any labor organization authorized to act for such employees concerning wages, salaries, hours, terms and conditions of employment, and pension or retirement provisions.”

The 1969 decision was based in large part upon Arbitrator Teple’s conclusion that supervisory personnel were employees and thus entitled to the privileges enumerated above. This is also the rationale by which Justice Musmanno in his concurring opinion in Port Authority of Allegheny County v. Amalgamated Transit Union, Local 85,430 Pa. 514, 243 A.2d 433 (1968) reached the same conclusion as that urged by the union today. “To say that employee does not mean employee is to martyrize the dictionary and to make of the science of language a haphazard aggregation of loose-jointed syllables.” Because the Port Authority Act itself defines first-level supervisors as employees and because it states that employees have collective bargaining rights it must be concluded that such rights attach to first-level supervisors notwithstanding the provisions of the amended 55 P.S. §563.2(d). Nothing in that section expressly limits the rights granted in 55 P.S. §563.2(a). What is limited is the right of first-level supervisors to be included in the same bargaining unit with other PAT employees.

It is noteworthy that PERA also restricts first-level supervisors from being in bargaining units with other employees:

“The board shall:
“(5) Not permit employees at the first level of supervision to be included with any other units of public employees but shall permit them to form their own separate homogeneous units.” 43 P.S. §1101.604.

However, this restriction in and of itself does not deprive the supervisors of their collective bargaining rights. It is only by virtue of the further restriction in 43 P.S. §1101.704 that public employers under PERA are obligated only to “meet and discuss” with first-level supervisors. Because the mere prohibition of mixed bargaining units was seen by the legislature in PERA to be insufficient to restrict bargaining rights, the same must be true of the Port Authority Act. Clearly the legislature knew precisely how to limit the bargaining rights of first-level supervisors. Language similar to 43 P.S. §1101.704 of PERA could easily have been incorporated into the Port Authority Act, and yet the legislature chose not to do so, remaining silent on the issue of bargaining rights.

In 1969 Arbitrator Teple concluded that “It would certainly be presumptuous of this Board of Arbitration to undertake to supply a further exclusion in order to correct an assumed omission.” Teple opinion at 15. The same is true of the court here. To fill the silence of the amended 55 P.S. §563.2(a) regarding the bargaining rights of supervisors with anything other than the provisions of 55 P. S. § 563(a) conferring collective bargaining rights on employees generally would surely be an improper intrusion into the legislative branch of government.

For the foregoing reasons the following order is entered:

ORDER OF COURT

And now, January 25, 1989, after argument, review of the record and consideration of the briefs of the parties, it is hereby ordered, adjudged, and decreed that, pursuant to the Second Class County Port Authority Act, 55 P.S. §551 et seq., the Port Authority of Allegheny County is required to collectively bargain with those employees designated as first-level supervisors through their authorized bargaining agent.

      . Except the right to “bump” according to job seniority, a right traditionally associated with collective bargaining status.

      . The original version of House Bill 1876 contained the following language:
      “First-level supervisors shall not be included in bargaining units with other employees of the authority but shall be permitted to form their own separate bargaining unit.”

        PAT interprets the omission of the italicized language from the final amendment as meaning that first-level supervisors are no longer entitled to collective bargaining status. The union points out that deleted language is irrelevant to the construction of the final statute. Commonwealth v. Alcoa Properties Inc., 440 Pa. 42, 269 A.2d 748 (1970). It is preferable to discern legislative intent through statement rather than silence.


author: STAISEY, J.,

text:
    Semanderes v. PennDOT

      Samuel P. Kamin, for.Semanderes.

      Jeffrey L. Giltenboth, for PennDOT.
    April 28, 1989
   STAISEY, J.,

In this condemnation case, plaintiff Stavro N. Semanderes has appealed from the court’s order of February 21, 1989, denying his motion for post-trial relief. Plaintiff, a painting contractor, was the owner of a property occupied by an office and warehouse budding located at 920-922 East Ohio Street on the North Side of Pittsburgh. This property was taken in its entirety by defendant Commonwealth of Pennsylvania, Department of Transportation, because it was needed as the location of a ramp for the East Street Expressway. The date of the taking was May 29, 1985.

Semanderes purchased the subject property in 1979, and commenced remodeling the budding. In 1982, however, upon receiving notification from the commonwealth that his property would be condemned, he stopped the remodeling except for finishing his own office area.

The Board of Viewers awarded plaintiff $106,700. At the trial before a jury following appeal to this court, both the valuation experts for the condemnee and for the condemnor used the market data, or comparable sales approach. Plaintiffs expert gave his opinion that the fair market value at the time of condemnation on May 29, 1985 was $175,000. Defendant’s expert gave his opinion that the property when taken had a fair market value of $98,000. The jury awarded plaintiff $98,000 and he filed a motion for post-trial relief, which, as indicated, was denied by an order from which an appeal has been taken.

Pursuant to his motion for post-trial relief seeking a new trial, plaintiff briefed and argued four issues. His first point is that the court erred in allowing counsel for defendant to cross-examine his valuation expert on the purchase price of the subject property because (1) the sale occurred almost five and one-half years before condemnation, (2) substantial changes and renovations were made to the property, (3) neither the valuation expert for the condemnee nor the condemnor considered the sale in arriving at his opinion of value as of the date of condemnation, and (4) evidence of the sale price introduced the collateral issue of the profit the condemnee might realize.

Plaintiffs expert was asked on cross-examination to indicate the price that Mr. Semanderes paid for the subject property in November 1979. Plaintiffs objection was overruled and the witness testified that the purchase price was $19,500. The principles governing admissibility of purchase price in a condemnation case are set forth in Brown v. Redevelopment Authority of Harrisburg, 35 Pa. Commw. 415, 386 A.2d 1052 (1978). In Brown, Commonwealth Court held that the trial judge did not err in refusing to allow the condemnor to ask the condemnee what he had paid for the condemned property. Although the property, used as a car wash, had been purchased only three years and nine months before condemnation, substantial changes had been made in the interim. Major renovation had followed the property’s submersion in a flood associated with a hurricane. In the words of the court:

“A substantial change in use occurred here from an antiquated car wash to a modem facility which washed cars on an automatic conveyor system, as well as sold gasoline and oil. The accompanying changes in the building, machinery, and equipment were also substantial.” Id. at 427, 386 A.2d at 1058.

Commonwealth Court said that the question was very close, but under these circumstances held that the trial court’s ruling did not constitute an abuse of discretion. The court also observed in Brown that it is generally true that “however the trial judge ruled on this evidence, the reviewing court seldom finds that he manifestly abused his discretion.” Id. at 426, 386 A.2d at 1057.

The law of Pennsylvania has generally permitted cross-examination of the condemnee with respect to the purchase price of the condemned land provided the purchase date was not too remote in time. Brown, supra at 419, 386 A.2d at 1054; Klick v. Commonwealth, 20 Pa. Commw. 627, 631, 342 A.2d 794, 797 (1975). If the purchase date is not considered too remote, the trial court should exercise discretion to exclude evidence of the price only when there has been substantial change in the subject property or in the character of the neighborhood or the real estate values in the area. With regard to the subject of remoteness, Commonwealth Court in Brown said:

“[I]f time were the only relevant factor, the purchase here three years and nine months ]brior to condemnation could not be considered too remote, and evidence of the purchase price should have been admitted. Here, however, the specific property involved had undergone substantial changes in the period between purchase and condemnation.” Id. at 419, 386 A. 2d at 1054.

Klick v. Commonwealth, supra, is another case in which the trial court’s exclusion of evidence of the purchase price was. upheld. There the property had been purchased only five years before condemnation, but in the interval between purchase and condemnation, the character of the neighborhood had changed significantly and there had been marked inflation of surrounding real estate values. In Klick, however, Commonwealth Court addressed itself to the question of whether a purchase date was too remote from the condemnation date in the following terms:

“Our appellate courts have struggled with the remoteness problem before. If any common thread can be derived from these cases, it is the following: Evidence of condemnees’ purchase price has been held admissible, and not too remote, if the sale was from three to seven years prior to the condemnation, while evidence of purchase price resulting from a condemnee’s purchase of nine or more years prior has been held inadmissible.” Id. at 631-2, 342 A.2d at 797. (footnotes omitted)

. In Brown v. Redevelopment Authority of Harrisburg, supra, Commonwealth Court indicated that a trial judge, in exercising his discretion, should start with the premise that the condemnee’s purchase price should be admitted. The court went on to list factors the trial judge should consider in determining whether the probative value of evidence of the purchase price is outweighed by other factors which would confuse or distract the jury. With respect to the last two factors listed, i.e. what changes had occurred in real estate in the area or in the general character of the neighborhood in the interim and what changes had occurred in the subject property, the court observed:

“[Tjhese factors should generally be considered as going to the weight of the evidence, not to admissibility. The condemnee will generally be able to sufficiently explain the effect of such changes, particularly those relating only to the subject property, once the evidence [of the purchase price] has been admitted.” Id. at 428, 386 A.2d at 1058.

Applying the foregoing principles to the present case, it can be seen that the date of purchase, November 27, 1979, would not be considered too remote from the date of condemnation, May 29, 1985, (a period of approximately five and one-half years) to make the purchase price inadmissible on that basis. In addition, the evidence did not show that the property, after having been acquired by plaintiff, was changed so substantially that testimony regarding the purchase price should have been excluded on that basis. While it was established that significant improvements were made, it also appeared that only a fraction of the space in the building had been remodeled before notification of condemnation in 1982 brought an end to such efforts. It should be noted in this regard that the condemnee’s architect looked at the property at the time of taking in 1985, and that, when asked about the condition of the building at that time, testified as follows:

“I would say specific areas, like the first floor, what he did on the first floor was I would say good on the office area. I would say the rest of it, the first floor, he had done very little as far as the warehouse area. I would say it was just fair . . .
“The only thing he did there was clean it up and he did no structural or finishing.
“On the second floor ... his office area, the public atrium area... I would go so far to say it was good, it was acceptable . . .
“[The remainder of the property] was fair. It wasn’t good. I would say the best you could say it was fair. He had done some patching, but it was nothing.”

The condemnee had a full opportunity to present evidence of the improvements made to the property and their value and, as indicated, did so. The condemnor did not attempt to deny that valuable improvements were made, and defendant’s valuation expert gave the property a fair market value at the time of condemnation that was substantially above the price plaintiff paid. After the purchase price was elicited, plaintiffs expert made clear that he did not take that price into consideration when arriving at his opinion of value because of the changes made to the property between purchase and condemnation. Plaintiffs objections to testimony regarding the purchase price properly go to the weight that should be given that evidence by the trier-of-fact rather than to its admissibility.

The second issue raised by plaintiff is that the jury’s verdict of $98,000 was inadequate. Plaintiff cites Redevelopment Authority of Philadelphia v. United Novelty & Premium Co., 11 Pa. Commw. 216, 314 A.2d 553 (1973), in which the trial court’s grant of the condemnor’s motion for a new trial was affirmed by Commonwealth Court, but that case is clearly distinguishable from the present case. There the award of the board of viewers had been $126,000 but the award of the jury was only $88,000. Moreover, Commonwealth Court said: “[T]his is not merely the case of a jury verdict being substantially lower than the award of damages by the board; rather, this is a case where the evidence presented by the condemnor is lacking in substantiality when compared with the evidence presented by the condemnee.” Id. at 222, 314 A.2d at 557. It was pointed out in United Novelty that the authority’s only valuation witness relied entirely upon comparable sales; but that some sales were not reasonably comparable, and, with regard to at least one sale, he was completely in error.

Defendant cites Tinicum Real Estate Holding Corporation v. Commonwealth, 480 Pa. 220, 389 A.2d 1034 (1978), as the. seminal case on alleged inadequacy of verdicts in condemnation cases. In Tinicum, PennDOT took for highway purposes 23.63 acres of a 276.85-acre tract. The report of viewers awarded the condemnee $1,144,000 including $900,000 for general damages and $244,000 for severance damages. Both the condemnor and condemnee appealed. The jury awarded the condemnee only $384,300 as damages for the taking. There was, therefore, a $759,700 difference between the board of viewers’ award and the jury award. The trial court granted the condemnee a new trial and Commonwealth Court affirmed that decision, but the Pennsylvania Supreme Court reversed, reinstating thé verdict of the jury.

In discussing the principles applicable to deciding a motion for a new trial based upon the alleged inadequacy of the verdict in a condemnation case, the Pennsylvania Supreme Court in Tinicum indicated that the amount of the board of viewers’ award could be considered but that it is only one factor to be considered and is secondary to a review of the evidence presented at trial. Id. at 227, 389 A.2d at 1038. The court also indicated that while a trial court may grant a new trial in an eminent domain case solely on the ground that the verdict was inadequate, it may not properly do so unless it can give specific and valid reasons to show that the verdict did not accurately reflect the actual damages. Id. at 230-1, 389 A.2d at 1040. Therefore, a new trial is not warranted unless “the jury’s verdict bears ‘no rationally assignable relation to any of the testimony.’” Id. (quoting Mazur v. Commonwealth, 390 Pa. 148, 134 A.2d 669 (1957)).

In the present case, the court would not be able to justify granting a new trial to plaintiff Semanderes based upon alleged inadequacy of the verdict. There was no great disparity between the award of the board of viewers, which was $106,700, and the jury’s verdict of $98,000. The commonwealth’s valuation expert testified to a fair market value at the time of condemnation of $98,000, so that there was consistency between his testimony and the verdict, and it cannot be said the verdict bears no rationally assignable relation to the testimony. Finally, the condemnor’s expert, as indicated, used the comparable sales approach and condemnee did not succeed in showing that the sales he used were not reasonably comparable.

The third issue raised by plaintiff is that the court erred in allowing defendant’s valuation expert, John K. Ellis, to testify in violation of the 10-day rule of section 703(2) of the Eminent Domain Code of 1964, 26 P.S. §1-703(2). The cited statutory provision reads as follows:

“At the trial in court on appeal:
“If any valuation expert who has not previously testified before the viewers is to testify, the party calling him must disclose his name and serve a statement of his valuation of the property before and after the condemnation and his opinion of the highest and best use of the property before the condemnation and of any part thereof remaining after the condemnation, on the opposing party at least 10 days before the commencement of the trial.”

Mr. Ellis did not testify before the viewers. Notice regarding his testimony pursuant to section 703(2) was given to plaintiff on January 13, 1988. This was only nine days before the originally scheduled trial date of January 22, 1988. However, the jury was not picked and trial did not actually begin until the second week of February 1988, significantly beyond the 10-day minimum period statutorily prescribed for notification. Plaintiff has not contended that he suffered any prejudice specifically because of delay in receiving notice. Apparently defendant had to engage Mr. Ellis to testify at trial because the real estate appraiser who testified for the commonwealth before the board of viewers had undergone open heart surgery, and Mr. Ellis did not forward his report to the commonwealth until January 13, 1988. Under these circumstances, and particularly because the statute speaks in terms of “10 days before the commencement of trial” and not in terms of 10 days before the date on which the case is listed for trial, the court did not think it was contrary to law or otherwise inappropriate to allow Mr. Ellis to testify.

The fourth and final issue raised by plaintiff is that the testimony of defendant’s valuation expert, John K. Ellis, should have been stricken because he did not inspect the subject property before the building was demolished and because his methods of determining the physical attributes of the property were inadequate. By the time Mr. Ellis received the assignment from the commonwealth, which was within two or three months of trial, the building on the subject property had already been tom down. At trial, however, this expert indicated what he had done to familiarize himself with the condition of the property at the time of condemnation in 1985. This included his having discussed the property with the commonwealth’s former appraiser, his having reviewed photographs of the interior of the building that the appraiser sent to him, and his having read the testimony containing a description of the property given by the owner, Mr. Semanderes, at the hearing before the board of viewers. In addition, Mr. Ellis attended the trial during presentation of plaintiffs case, and testified that he did not hear any testimony concerning the condition of the property from witnesses called by the condemnee that was at odds with what he had learned from the sources he consulted. Moreover, Mr. Ellis, having previously appraised the property next door, was already familiar with the exterior of the building that had been on the subject property.

As the commonwealth’s brief points out, section 705(6) of the Eminent Domain Code of .1964 permits an otherwise qualified valuation expert to testify even if he has not inspected the condemned property before it was taken as long as he demonstrates that he has acquired knowledge of the condition of the property at the time of condemnation. It appears that the commonwealth’s valuation expert in the present case has satisfied that test, and that he was qualified to testify as to the value of the property even though he was not in the building on the subject property before it was razed. Hasenflu v. Commonwealth, 406 Pa. 631, 179 A.2d 216 (1962). The condemnee cross-examined Mr. Ellis on the nature and extent of his knowledge of the condition of the subject property at the relevant time. As in the case of Cohen v. Redevelopment Authority of Lancaster, 425 Pa. 441, 229 A.2d 744 (1967), cited by the commonwealth, plaintiff’s objections to the testimony of Mr. Ellis only go to the weight to be given to his testimony and to his credibility, which were issues properly left to the jury to resolve.

For the foregoing reasons, plaintiff’s motion for post-trial relief seeking a new trial was denied by order of this court dated February 21, 1989, from which an appeal to Commonwealth Court was filed on March 17, 1989.


author: SPICER, P.J.,

text:
    Crowley v. Freedom Township

      Clayton R. Wilcox, for plaintiffs.

      William A. Jones, for defendants.
    March 13, 1989
   SPICER, P.J.,

Plaintiffs, who are landowners, have brought this action in mandamus to compel township officials to act on their plan of revision to the township’s official plan. They have alleged they intend to use property for a conference and retreat center, which will require a sewer permit. They also allege they cannot obtain the permit because their proposed private treatment system is not consistent with the township’s official plan. 35 P.S. §750.7(4). Plaintiffs say they submitted a request for revision of the plan, in accordance with 35 P.S. §750.5, to township officials on October 18, 1986, but that the township has failed to take any action.

Defendants have filed for judgment on the pleadings. The sole issue raised by brief is that plaintiffs have not exhausted administrative remedies and should be precluded from prematurely resorting to the courts.

Defendants base their position on Department of Environmental Resources regulations which allow an appeal to the department. The regulation in question provides:

“(a) A person who is a resident or property owner in a municipality may request the department to order the municipality to revise its official plan where the person can show that the official plan is inadequate to meet the sewage disposal needs of the resident or property owner. The request to the department will contain a description of the area of the municipality in question and an enumeration of the reasons advanced by the person to show the inadequacy of the official plan.
“(b) Upon receipt of a private request for revision or supplement, the department will notify the appropriate municipality and will request written comments from the municipality to be submitted within 30 days.” 25 Pa. Code §71.17 (1987).

Plaintiffs, however, cite the governing statute which states:

“Any person who is a resident or property owner in a municipality may request the department to order the municipality to revise its official plan where said person can show that the official plan is inadequate to meet the resident’s or property owner’s sewage disposal needs. Such request may only be made after a prior demand upon and refusal by the municipality to so revise its official plan. The request to the department shall contain a description of the area of the municipality in question and an enumeration of all reasons advanced by said person to show the official plan’s inadequacy. Such person shall give notice to the municipality of the request to the department.” 35 P.S. §750.5(b). (emphasis supplied)

Defendants cite two cases, Solebury Township Supervisors v. Commonwealth of Pennsylvania, Department of Environmental Resources, 18 D.&C. 3d 696 (1981); Borough of Sayre v. Commonwealth of Pennsylvania, Department of Environmental Resources, 9 D.&C. 3d 407 (1979), as authority showing DER has interpreted its regulation so as not to require prior municipal action. However, this is not true. Solebury hinged on a different issue entirely (pendency of a court action) and Sayre definitely involved prior municipal refusal.

Even if DER interprets its rules as suggested by defendants, the court must determine if such interpretation is consistent with the statute under which it is promulgated., Pelton v. Commonwealth of Pennsylvania, Department of Public Welfare, 514 Pa. 323, 523 A.2d 1104 (1987). To the extent the regulation is inconsistent with the statute, it must be ignored. Pennsylvania State Education Association v. Commonwealth of Pennsylvania, Department of Public Welfare, 68 Pa. Commw. 279, 449 A.2d 89 (1982).

The legislature has obviously adopted a scheme in which appeals must first be made to the local municipality. Only after a refusal at that level may an appeal be made to DER.

“Mandamus is an extraordinary remedy designed r.oripoi performance of a ministerial act or mandatory i ¿uty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other adequate remedy at law. ” County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360,372-3,490 A.2d 402, 408 (1985).

It lies to compel officials to take some action, either approval or disapproval, when there is a duty to do so. Rothey Brothers Inc. v. Elizabeth Township, 381 Pa. 30, 112 A.2d 87 (1955); F.R. & S. Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, 104 Pa. Commw. 647, 522 A.2d 1190 (1987); Larson et al. v. Peirce Junior College, 11 Pa. Commw. 271, 314 A.2d 572 (1973).

There may be interesting issues not yet raised. As to the narrow issue before the court, we hold that plaintiffs would be entitled to the relief sought if the allegations of the complaint are true. Therefore, defendants are not entitled to judgment on the pleadings.

ORDER OF COURT

And now, March 13, 1989, defendants’ motion for judgment on the pleadings is refused.