author: WALSH, P.J.,

text:
    Festa v. Sandy

      Kevin P. Foley, for plaintiff.

      P. Timothy Kelly, for defendants, Alice Caulson and Lourdesmont High School.
    March 26, 1990
   WALSH, P.J.,

We have before us today a motion to compel discovery which was filed on behalf of plaintiff Shawn Anthony Festa by his mother, Donna Festa. Although no complaint has been filed in the underlying action thus far, it appears from the documents which have been made part of the record that this lawsuit concerns claim for injuries sustained by Mr. Festa in an alleged assault by defendant Sam Sandy while attending Lourdesmont High School. Alice Caulson, the director of that school, was served a notice of deposition and subpoena which requested her to appear for deposition and bring with her “any and all documents, records, writings, papers,'notes, mem-oranda, correspondence, letters, photo-records, and/or any other compilation of data from which information can be obtained” relating to Messrs. Festa and Sandy. Ms. Caulson was served by certified mail at her place of business, but neither appeared at the appointed time and place for deposition nor filed a motion for a protective order. Her non-compliance spurred the filing of the motion before us, wherein plaintiff asks this court to issue an order compelling Ms. Caulson to submit to a deposition and produce for inspection all the documents contained in his broad request.

On behalf of Ms. Caulson, counsel for Lourdes-mont has filed a brief in opposition which attacks the validity of plaintiff’s motion in two ways. The initial argument raised therein concerns the method by which the notice of deposition and subpoena were served. Ms. Caulson’s position is that service should have been made, personally, and because certified U.S. mail was the method employed, the two documents have no binding effect. We disagree. This court finds nothing unlawful or improper about the type of service effected, and to illustrate how we reached this conclusion, we shall proceed from an analysis of the Rules of Civil Procedure relied upon by the parties in support of their respective positions.

We first looked to Pa.R.C.P. 440, which according to Ms. Caulson indicates that service was improper. While it concerns service of legal papers other than original process, it is inapplicable to the present situation because it sets forth the guidelines for serving “any party to an action,” which Ms. Caulson clearly is not. No lawsuit has been filed against her or Lourdesmont High School, so for purposes of the matter before us she is a non-party, and at this point merely a potential witness. What is key to the disposition of this issue, however, is Pa.R.C.P. 4007.1, which provides:

“(a) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action, except that no notice need be given a defendant who was served by publication and has not appeared in the action. A party noticed to be deposed shall be required to appear without subpoena.

■ “(b) The notice shall conform with the requirements of subdivision (c) of this rule . . . and. shall state the time and place of taking the deposition and the name and address of each person to be examined if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.

“(c) The purpose of the deposition and matters to be inquired into need not be stated in the notice unless the action has been commenced by writ of summons and the plaintiff desires to take the deposition of any person upon oral examination for the purpose of preparing a complaint. In such case the notice shall include a brief statement of the nature of the cause of action and of the matters to be inquired into.

“(d) If the person to be examined is a party, the notice may include a request made in compliance with rule 4009 for the production of documents and tangible things at the taking of the deposition. If the person to be examined is not a party, and is to be served with a subpoena duces tecum to produce designated materials, the notice shall specify the materials to be produced.”

It is clear from the relatively straightforward language contained in this rule that as long as it is given in writing, the type of notice is secondary to its content. Pa.R.C.P. 4007.1 does not speak to the issue of personal or any other specific manner of service, and with this in mind we believe that the notice sent to Ms. Caulson in this regard, which was delivered by certified mail to Lourdesmont High School, her place of business, was adequate. However, both parties appear to have overlooked the requirement contained in subsection (c), which we believe bears upon the dispute before us. It calls for. the nature of the cause of action to be briefly detailed in the notice of deposition for actions where no complaint has yet been filed; the reasons for this requirement aré contained in the following portion of the explanatory note to Pa.R.C.P. 4007.1:

“Subdivision (c) is new. It provides that the purpose of the deposition and the matters to be inquired into need not be stated in the notice, except in the relatively infrequent case where the action has been commenced by a writ of summons and the plaintiff desires to take a deposition upon oral, examination for the purpose of preparing a complaint. In this situation the inquirer must provide a brief statement of the nature of the cause of action and of the matters to be inquired into. The reason for the rule is obvious. The party who has not yet been served with a complaint may in some instances not be aware of the nature of the action and thus be totally unprepared to submit to oral examination.”

With the above guidelines in mind, it shall be our decision that the notice of deposition and subpoena be refiled in accordance with Pa.R.C.P. 4007.1(c). Additionally, this court finds that the scope of the records requested is quite possibly overboard, a position echoed in the second argument set forth by Lourdesmont, and may encompass privileged, non-discoverable material. Plaintiff shall therefore in his refiled subpoena further indicate the specific documents he seeks to inspect and the underlying purpose of his request. If the parties at that time still differ on the issue of whether the items sought are discoverable, they may request an in camera hearing' before the court for a determination of the propriety of the discovery request.

ORDER

Now, March 26, 1990, it is hereby ordered and decreed that plaintiff’s motion to compel discovery is denied; further, it is ordered that the notice of deposition and subpoena be refiled in accordance with the dictates set forth in the accompanying opinion.

      See 42 Pa.C.S. §§5929, 5944, and 5945.


source: Caselaw Access Project

author: THOMAS, P.J.,

license: Public Domain

text:
    Lynn v. Lynn

      Douglas W Ferguson, for plaintiff.

      R. Charles Thomas, for defendant.
    July 16, 1990
   THOMAS, P.J.,

This contested divorce action was filed in June 1987. A master was ultimately appointed and he filed a lengthy report recommending permanent alimony for a limited period of time. Exceptions were filed but later withdrawn, and a final decree was entered March 22, 1989. The final decree awarded permanent alimony to plaintiff wife in the amount, of $560 per month until April 1, 1991.

The former husband now petitions the court to terminate said alimony award because of a change of circumstances.

DISCUSSION

At the time of the divorce the wife had only a basic 12-year education and lacked extensive employment experience, but her husband had successful employment in the insurance business. At the time the master heard the matter the wife was undertaking a college education and her graduation was predicted to be in the month of December 1990. Accordingly, the master recommended an award of permanent alimony to help underwrite the expense of said education, and recommended that since college graduates are not usually immediately employed the day after graduation that the alimony award be extended approximately three months beyond her graduation date. The final divorce decree so provided.

As it turned out the wife proved to be an exceptional college student, and through undertaking a heavier than required schedule she was able to advance her graduation date to May 1990. She had determined that a career in speech therapy was an appropriate goal, and her 3.9-plus average upon graduation indicated her proficiency in her chosen specialty. At the time she undertook her speech therapy specialty it was projected that she would become employable in this field upon graduation with a regular bachelor of arts degree. However, changes in this profession have developed in recent years, and the court heard considerable testimony regarding the employability in this field without procuring a master’s degree. In summary, while employment with a school system still requires only a B.A. college degree in this field, the testimony clearly shows that in order to procure full-time employment in this profession with a school, hospital or as a private professional, a master’s degree is a requirement. While Mrs. Lynn would be employable within the school system as a possible fill-in substitute teacher, her hopes of permanent employment with a school, hospital or as a practicing professional is a virtual impossibility without having obtained a master’s degree and certification. Thus, we find as a fact that her educational requirements are different now than those anticipated by the parties, counsel, divorce master and the court at the time the alimony award was made.

ISSUE

Should the court, pursuant to the alimony section of the Divorce Code, 23 P.S. 501(e), change the alimony award because of the “changed circumstances of either party of a substantial and continuing nature”?

The husband argues that he had a right to rely upon the obvious intent of the parties that alimony terminate three months after the wife obtained a standard college degree, and the wife’s wish to make herself “more employable” by obtaining a master’s degree is not such a sufficient “changed circumstance” to warrant continuation of alimony. The wife’s posture is that this recent change in educational requirements to become employable in her professional specialty was not anticipated at the time the order was entered. Further, even with her outstanding undergraduate scholastic record, her future employment in this specialty on a permanent basis is unlikely unless she obtains a master’s degree.

We note in this regard that due to her high scholastic achievement and excellent regard by the faculty at her university, she has been accorded a graduate- assistant position for which she is paid $1,250' per semester and apparently received an additional $150 to $200 per semester to cover book and miscellaneous expenses. It is projected that obtaining her master’s degree will take an additional 15 to 18 months, and the director of her department at the university projects a late summer or early fall 1991 completion of her studies and the granting of a master’s degree.

We have been cited no case law controlling of this rather unusual “alimony for education” situation, but believe a fair interpretation of legislative intent expressed in section 501(e) requires that we not terminate the original alimony award in this case. The purpose of the alimony award in this case was to provide the former spouse with an education giving her the opportunity for meaningful employment in the future. Because the marketplace now requires additional education to procure meaningful employment is not the fault of either party in this divorce action. In refusing to terminate the husband’s obligation to pay alimony, we note that with the last payment under the present order the wife would receive no further alimony after April 1, 1991, and thus, would still have a five- to seven-month period of time before she secured her master’s degree to meet her own living expenses without the benefit of the monthly alimony payments.

A collateral issue was also raised and heard on the issue of whether alimony should be terminated under section 507 of the code because of the cohabitation with a person of the opposite sex.

We held two hearings on the issues in this case and at the conclusion of the hearing held May 11, 1990, we declined to terminate alimony under the provisions outlined in section 507, and noted that the facts heard by the court on her association with a person of the opposite sex did not meet the requirements of section 507 and cited to counsel the case of Miller v. Miller, 352 Pa. Super. 432, 508 A.2d 550 (1986), as the basis for our ruling.

We will deny defendant’s petition to terminate alimony.

Request for Counsel Fees

After conclusion of the two hearings in this case counsel for plaintiff submitted to the court a request for additional attorney’s fees in the amount of $525. Applying common sense and equitable principles we will allow plaintiff one-half of these counsel fees.


author: BAYLEY, J,

text:
    Commonwealth v. One 1988 Camaro

      John L. Sullivan, for General Motors Acceptance Corporation.

      Johnna Deify, assistant district attorney, for the Commonwealth.
    April 11, 1990
   BAYLEY, J,

Paul Perry was arrested on November 2, 1988, for violations of The Controlled Substance, Drug, Device and Cosmetic Act. At the time of his arrest his two 1988 Chevrolet Camaro automobiles were seized by the Commonwealth pursuant to the Controlled Substances Forfeitures Act. Mr. Perry was convicted on his violations on April 28, 1989. He was sentenced to prison on September 5, 1989.

On January 18, 1990, the General Motors Acceptance Corporation filed a “petition by lienholder for recovery of delivery of property which is its collateral under a security agreement,” pursuant to section 6208(k) of the Forfeitures Act.

The vehicles involved are one 1988 Camaro, VIN no. 1G1FP21S9JL117084, purchased in Pennsylvania; and one 1988 Camaro, VIN no. 1G1FP21S4JL112116, purchased in Georgia. Both vehicles were purchased by Mr. Perry and financed through GMAC.

At the time of the seizure the encumbrance on the Pennsylvania Camaro was approximately $4,700, and the encumbrance on the Georgia Camaro was approximately $13,000. GMAC introduced evidence at a hearing on March 21, 1990, that the current market value of each car is approximately $6,000. The loans on both vehicles are in default and GMAC seeks an order directing the Commonwealth to deliver to it the cars.

On February 7, 1990, the Cumberland County District Attorney’s Office filed a “petition for forfeiture” pursuant to the Forfeitures Act. The Commonwealth seeks an order that the Pennsylvania Camaro be forfeited “to the Commonwealth, who will pay off the existing loan and retain the proceeds” and that the Georgia Camaro be forfeited and “ordered returned to GMAC.” The petition was served on Mr. Perry and he has not filed a response to the rule to show cause issued against him as to why both vehicles should not be forfeited. GMAC filed an answer to the Commonwealth’s petition with new matter. It alleges that the Commonwealth denied it due process by its delay in these proceedings and that it should be compensated for the value of the vehicles as of the time they were seized. Additionally, it renewed the request made in its suit, that this court order the return of both vehicles to it for the purpose of selling them, with the proceeds of the sale applied to pay “(a) the principal debt and interest for the two accounts, (b) attorney’s fees and court costs incurred by GMAC in this proceeding, (c) an amount equal to 15 percent of principal debt and interest due [on the Georgia Camaro pursuant to Georgia law],” and any remaining proceeds to be turned over to the Commonwealth as forfeited.

DISCUSSION

The Forfeitures Act provides at section 6801(a)(4)(iii) that “no bona fide security retained or acquired [by finance companies, like GMAC] shall be subject to forfeiture or impairment.” The Commercial Code and the Retail Installment Sale Contract between GMAC and Paul Perry specifically provide remedies for default situations. See 13 Pa.C.S. §9501. GMAC’s allegation that the Commonwealth has impaired its due process rights because of an unreasonable delay in resolving the disposition of the vehicles is clearly specious. The fact that GMAC waited until January 18, 1990 to institute a suit to secure its remedies is hardly a denial of due process by the Commonwealth. GMAC had the option, pursuant to its contacts, to take immediate action upon the failure of Mr. Perry to “pay according to the schedule.” Thus, GMAC has always had the ability to secure its remedies in this case.

The Pennsylvania Camaro appears to be the only vehicle with any value above its encumbrance and GMAC seeks to offset that value against its probable loss on the Georgia Camaro. The Commonwealth seeks to forfeit the Pennsylvania Camaro, pay off the lien, and retain the vehicle; it seeks to forfeit the Georgia Camaro and return it to GMAC. In accordance with the Forfeitures Act at section 6802(k), this court is empowered to release the vehicles to GMAC if it can show, by competent evidence, that it has a lawful right to the vehicle and it had no prior knowledge of the unlawful use by Paul Periy. GMAC had no such knowledge; however, this result is not mandatory since upon forfeiture we may still order the vehicle retained for official use in accordance with section 6801(e), which provides:

“Whenever property is forfeited under this chapter, the property shall be transferred to the custody of the district attorney, if the law enforcement authority seizing the property has local or county jurisdiction, or the Attorney General, if the law enforcement authority seizing the property has statewide jurisdiction. The district attorney or the Attorney General, where appropriate, may:

“(1) Retain the property for official use.”

GMAC’s request to commingle the proceeds of both sales to pay both loans, costs and attorney’s fees is without authority. GMAC’s retail installment sale contract specifically states: “Security Interest. You are giving a security interest in the vehicle being purchased.” There is no ambiguity in this language, nor have the security interests been cross-collateralized; thus, the property subject to the security interest is the individual vehicle. Accordingly, we will enter an order forfeiting Paul Perry’s interest in both vehicles. We will allow the Commonwealth to retain the Pennsylvania Camaro for official use pursuant to section 6801(e) on condition that it pays off the balance on the lien on the vehicle to GMAC to make it whole on that car. Thus, GMAC’s security in that vehicle has not been forfeited or impaired. See, section 6801(a)(4). Pursuant to section 6802(k), we will order the release of the Georgia Camaro to GMAC. It may dispose of it in a commercially reasonable manner from which it may deduct, pursuant to state law, the reasonable expenses and the amount of the lien. Any remaining proceeds must be paid to the Commonwealth.

Accordingly, the following order is entered.

ORDER OF COURT

And now, April 11, 1990, it is ordered that:

(1) The 1988 Camaro, VIN no. 1G1FP21S9JL117084, (Pennsylvania Camaro) is forfeited as to Paul Periy, to be retained by the Commonwealth for official use in accordance with 42 Pa.C.S. §6801(e), on condition that the payoff due GMAC on its lien shall be paid forthwith by the Commonwealth. (

(2) The 1988 Camaro, • VIN no. 1G1FP21S4JL112116, (Georgia Camaro) is forfeited as to Paul Perry, and shall be forthwith returned to GMAC for lawful disposition pursuant to the security of its lien. Any proceeds remaining following disposition shall be forthwith paid to the Commonwealth.

(3) GMAC shall account by affidavit to the Commonwealth for all monies received and disbursed from the disposition of the Georgia Camaro.

      . 35 P.S. §780-101 et seq.

      . 42 Pa.C.S. §6801(a)(4).

      . This action was brought at 220 Civil 1990.

      . This action was brought at 19 Miscellaneous 1990.

      . 13 Pa.C.S. §1101 et seq.


author: SHEELY, P.J.,

text:
    Commonwealth v. Mitchell

      Mark Sindler, deputy attorney general, for the Commonwealth.

      Robert J. Mulderig, for defendant.
    August 16, 1990
   SHEELY, P.J.,

In this case we are asked to determine whether the conduct of the prosecutor which led to defendant’s successful motion for a mistrial was intended to provoke defendant into moving for a mistrial, therefore invoking double jeopardy and barring a new trial. We answer in the negative.

FACTS

On or about October 26, 1989, a riot occurred at the State Correctional Institution at Camp Hill. At that time defendant, Raymond Mitchell, was an inmate at SCIC. On that same date two individuals broke into MOD no. 1 at SCIC, and one of those two individuals was identified as Mitchell. Subsequently, charges were brought against him.

A preliminary hearing was held on January 30, 1990. The trial was to be held during trial term on June 18, 1990. On Thursday, June 21, 1990, the prosecutor informed defense counsel that the witness Lamont Anderson might be called to testify. The prosecutor explained that if Anderson was called, he would be called to identify the co-defendant Frederick Singleton, not Mitchell. On June 25, 1990, in the judge’s chambers and on the record, the prosecutor once again reiterated the same statement. When Anderson was called to testify, however, he identified Mitchell along with Singleton.

Believing that his identification was a spur of the moment identification, defense counsel cross-examined him as to when he first identified Mitchell. Anderson replied that he had identified him at a photographic line-up. At sidebar and in the judge’s chambers, the prosecutor admitted that there was evidence in the file of the photographic line-up, but this was the first time he (the prosecutor) had ever seen it. Defense counsel motioned for a mistrial which was granted.

Defense counsel then filed a motion to dismiss for double jeopardy. An evidentiary hearing was scheduled for August 16, 1990.

At the hearing, the prosecutor in the original trial testified that he did not intentionally withhold the fact of Anderson’s pretrial identification of the defendant from defense counsel. The prosecutor also admitted that he had interviewed Anderson on at least one occasion prior to trial but did not recall whether he asked Anderson specifically about Mitchell. He did ask Anderson to tell him everything he had heard and seen, but Mitchell’s name never came up.

Defense counsel then called Anthony Arthur’s defense counsel. Arthur was an inmate at SCIC who, like Mitchell, was charged with participation in the SCIC riots. Arthur’s counsel testified to similar actions taken by the prosecution. Defendant alleges that based on the similarity of both cases, there is a pattern of intentional misconduct.

DISCUSSION

Due to the United States Supreme Court’s decision in Oregon v. Kennedy, 456 U.S. 667 (1982), we feel that it is necessary to begin our analysis of double jeopardy with a distinction between mere prosecutorial error and overreaching which “signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect us against.” Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980).

In Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987) the court held that administrative error by a prosecutor is one thing; prosecutorial overreaching which triggers double jeopardy is another. In Commonwealth v. Starks, supra, prosecu-torial misconduct was divided into two types. The first type was designed to provoke a mistrial and the second was undertaken in bad faith to prejudice the defendant. A retrial was barred only if the plaintiff could prove bad faith or an intent to provoke a mistrial. This dual mistrial process was streamlined by Oregon, supra. The rule set out by the Supreme Court in Oregon, and the rule followed in Pennsylvania today as set forth in Commonwealth v. Simons, supra, will prevent a new trial only where planned misconduct is calculated to force a mistrial.

The facts of this case clearly indicate that there was a prosecutorial error. Our decision, however, rests upon whether the error was intentional. Mitchell asserts that the prosecutor had interviewed Anderson previously and should have anticipated his testimony and that if he had not anticipated the answer, he should not have asked the question. Mitchell also asserts that the prosecutor should have known what was in the file. Based on these observations, Mitchell believes that his case is an appropriate one for dismissal.

In our view, however, Mitchell has fallen short of bringing his case within the scope of the exception in Oregon v. Kennedy, supra. While persuasive but not controlling, the court in Merriweather v. United States, 466 A.2d 853, 856 (D.C. App. 1983) held, “It is one thing to show that the prosecutor was negligent in his pretrial investigation of his witnesses, but to say that such carelessness was part of a deliberate scheme to induce the defense to move for a mistrial is non sequitur.” Our findings of fact are as follows: In the present case we had a prosecutor trying only his second case, who admits that he negligently overlooked the police report in his file which showed Anderson’s previous identification of Mitchell. We believe such an oversight to be based on negligence or inexperience but hardly the intention to deceive. When questioned about his motives for asking the question which led to the mistrial, he responded that his only goal was to disclose the weaknesses in his own case. To further substantiate the lack of motive on the part of the prosecution, the facts indicate that Anderson’s identification of Mitchell was superfluous when the prosecution had several other witnesses to call, whom Mitchell knew about, who could have made positive identifications of Mitchell. Therefore, while we are satisfied that the record in this case does, in fact, show that the prosecutor was at least palpably negligent in the pretrial investigation of his witnesses, and that the prosecution could have operated more efficiently in preparing for trial, we do not believe that the record supports a finding of prosecutorial misconduct which would prevent a new trial, thus subjecting Mitchell to double jeopardy. As to the matter concerning Arthur’s trial, we feel that it is irrelevant to the matter before us. We feel that the Arthur matter is best left to another tribunal.

ORDER OF COURT

And now, August, 16, 1990, it is hereby ordered that the motion to dismiss for double jeopardy is denied.


author: LAWRENCE, J.,

text:
    Pennsylvania Department of Revenue v. Dascoli

      Mark O. Prenatt, for the Commonwealth.

      Jonathan DeYoung, for defendant.
    February 1, 1989
   LAWRENCE, J.,

The matter is before this court to consider defendant’s petition to open judgment. After consideration of plaintiff’s objection to the petition to open judgment and memoranda of law submitted by each party, and following oral argument in open court, the undersigned denied defendant’s petition to open judgment. A timely appeal was erroneously filed with Superior Court on December 8, 1988. Subsequently, the Superior Court granted defendant’s petition to transfer to Commonwealth Court. On December 12, 1988 the undersigned ordered defendant to file concise statement of matters complained of within 14 days of December 12, 1988. No such concise statement was filed. The undersigned respectfully requests that the appeal be dismissed for failure to comply with rule 1925(b).

If the appeal is not dismissed on those grounds, the court respectfully requests that it be dismissed in consideration of the following discussion.

DISCUSSION

The subject of the petition to open judgment is the imposition on September 29, 1987, of a sales tax lien in the amount of $19,178.99 against defendant in the Court of Common Pleas of Montgomery County.

On October 29, 1987 defendant filed a petition to open judgment in the Court of Common Pleas of Montgomery County.

First, defendant’s petition to open judgment is an improper pleading to attack the validity of the sales and use tax lien filed by the Commonwealth of Pennsylvania, Department of Revenue in Montgomery County. There is no judgment to be opened. There is a tax lien. The correct pleading should have been a “petition to strike off tax lien.” Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales and Use Tax v. Street, 81 Pa. Commw. 539, 474 A.2d 718 (1984). Although the court in Street treated the petition to open judgment as though it were a petition to strike off tax lien, and applied section 241 of the Tax'Reform Code, 72 P.S. §7241, the reasoning in that case mandates the same result here.

Appellant’s petition to open judgment fails to state when notice was received, however the “memorandum of law in support of petitioner’s motion to open judgment” states that “on or about November 9, 1987, the petitioner became aware of a lien in the amount of $8,518.18 had been filed against her by respondent, Commonwealth of Pennsylvania, Department of Revenue. However, the petition to open judgment was filed with the prothonotaiy of Montgomery County on October 29, 1987.

The Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§7232, 7234 and 7235 prescribe the procedures to be followed where a taxpayer is dissatisfied with an assessment.

Section 7232 requires the:

“[T]axpayer against whom assessment is made to. petition the department for a reassessment. Notice of intention to file such petition shall be given to the department within 30 days of the date the notice of assessment was mailed to the taxpayer, except that the department for due cause may accept such notice within 90 days of the date the notice of assessment was mailed.”

Section 7232 further provides that the grounds upon which taxpayer claims assessment is erroneous or unlawful shall be set forth in the petition.

Thereafter, section 7234 provides that a taxpayer may, within 60 days after the date of mailing of notice by the department of the decision, request review by the Board of Finance and Revenue. If still dissatisfied, the taxpayer may appeal to the Commonwealth Court. 72 P.S. §7235.

Appellant failed to pursue the statutory remedies mandated by the Tax Reform Code in this case.

A taxpayer who fails to exhaust his statutory remedies may not thereafter raise an issue which could have and should have been raised in the proceeding afforded by his statutory remedy. Bynum v. Commonwealth, Department of Revenue, 86 Pa. Commw. 155, 484 A.2d 210 (1984) citing Commonwealth v. Lentz, 353 Pa. 98, 104, 44 A.2d 291, 293 (1945). See also Commonwealth v. Atlantic & Gulf Coast Stevedores Inc., 422 Pa. 442, 221 A.2d 128 (1966); Commonwealth v. Hitzelberger, 419 Pa. 354, 214 A.2d 223 (1965).

Finally, in Meyers v. Commonwealth, Department of Revenue, 55 Pa. Commw. 509, 423 A.2d 1101 (1980), the court stated, “Since exclusive appeal procedure provided by the Tax Code vests jurisdiction in the Department of Revenue’s Board of Appeals and Board of Finance and Revenue, with ultimate appeal to the Commonwealth Court, initial phases of tax assessment appeals are within the exclusive jurisdiction of those boards.” The instant petition is simply an assessment appeal brought in the Court of Common Pleas of Montgomery County. Since the boards and the Commonwealth Court have exclusive jurisdiction to hear these matters, the Court of Common Pleas of Montgomery County lacks jurisdiction to rule on defendant’s petition to open judgment.

For the foregoing reasons the court was without jurisdiction to hear appellant’s petition to open judgment and properly denied it.

It is respectfully requested that the appeal be dismissed.

      . On January 24, 1989 the Commonwealth Court ordered the matter transferred to the Superior Court, “it appearing that this appeal is not an appeal from determination by the Department of Revenue, but rather an appeal from an order of the court of common pleas. . . .”

      . The court notes that a companion case, Commonwealth of Pennsylvania, Department of Revenue v. Janice T. Dascoli, Individually and as President of Dascoli’s Inc. t/a Dascoli’s Restaurant, Montgomery County Court of Common Pleas no. 87-15817 also on appeal, contains the identical memorandum of law.


author: SPICER, P.J.,

text:
    Commonwealth v. Etter

      Roy A. Keefer, district attorney, for the Commonwealth.

      Gary Lysaght, for defendant.
    August 9, 1990
   SPICER, P.J.,

CONCLUSIONS OF LAW

(1) Entry into defendant’s home technically violated Pa.R.Crim.P. 2007.

(2) Judged from the circumstances of this case, the rule violation did not render the search unreasonable. '

(3) Evidence seized is not subject to suppression.

DISCUSSION

The court entered findings of fact and, at the request of counsel following the suppression hearing, deferred further disposition to afford the parties an opportunity to brief issues. Facts are simple and undisputed. State police went to defendant’s home around 7:10 to 7:15 p.m. on January 18, 1990, to execute a valid search warrant. They were not in uniform but wore standard state police jackets.

After knocking, Trooper Fenstermacher said words to the effect, “Hey, Peanut, open up. Hey, Peanut, are you going to let us in?” The officer’s tone at the hearing indicated this was delivered in somewhat a bantering tone. When repeated knocks and statements failed to produce defendant, Fen-stermacher opened the unlocked front door and began entry. In football parlance, as his body broke the plane of the goal line (threshold) he announced his identity and purpose.

There was, unquestionably, a technical intrusion into the home’s interior before full compliance with the knock and announce rule. Pa.R.Crim.P. 2007(a), which embodies this rule, states:

“(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.”

Defendant argues that the failure by police to fully comply with the requirements of the rule require suppression of all evidence seized.

At one time, his position would have been unassailable. In fact, a case he cites, Commonwealth v. Golden, 277 Pa. Super. 180, 419 A.2d 721 (1980), is virtually indistinguishable.

However, legal climates change and another sports idiom tells us that nothing is final until a portly female delivers a musical rendition. Perhaps we have not heard the final notes but Supreme Court delivered the musical rendition in Commonwealth v. McDonnell, 512 Pa. 172, 516 A.2d 329 (1986). That court discussed the knock and announce rule as embodied in rule 2007 and disapproved the mechanical approach taken by lower courts. Every violation is not grounds for suppression. The rule must be applied in a case-by-case basis.

“The ‘knock and announce’ rule’s origins predate the United States Constitution. It was born in English Common Law and was subsequently adopted in America. In recent times, the ‘knock and announce’ rule has assumed a ponstitutional dimension. Both our court and United States Supreme Court have held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to the manner of a warrant’s execution. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). Even a valid warrant may not be executed in an unreasonable manner; unreasonableness is determined on a case-by-case basis. Id. The rule’s primary purpose is to prevent resistance to lawful authority based on the occupant’s efforts to protect his privacy expectation against unauthorized entry of persons unknown to him. It gives the individual a chance to surrender the premises peacefully in the face of lawful authority. Commonwealth v. Beard, 501 Pa. 385, 461 A.2d 790 (1983); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. DeMichael, 442 Pa. 553, 277 A.2d 159 (1971) (plurality opinion).” McDonnell, 512 Pa. at 176-7, 516 A.2d at 330-1.

Frankly, we do not understand the officer’s failure to faithfully follow the rule in our case. He is an experienced policeman and fully aware of the rule. There were no exigencies, hardships or inconvenience that explain his deviation from format. All that has been accomplished by his individualistic approach has been the creation of an issue for litigation and appeal.

Even so, we do not find the departure to lead to unreasonableness. In some locales, slight deviation from the rule might invite violence. In Adams County that is, thankfully, not the case. The officer’s departure from the script does not warrant closing down the play.

ORDER OF COURT

And now, August 9, 1990, defendant’s motion to suppress is denied.

       A weekly newspaper magazine recently published results of interviews having to do with desired changes in the world. Some said they wished drugs would be legalized. Others worried about drugs being legalized. A young man said he wanted to quit worrying about the threat of getting shot just because he might accidentally step on a sneaker worn by someone high on crack.


author: CASSIMATIS, J.,

text:
    Weeks v. The Travelers Companies

      Lewis H. Markowitz, for plaintiff.

      James A. Stapleton, for defendants Travelers Companies and Karl A. Kemble.
    July 16, 1990
   CASSIMATIS, J.,

This matter is before the court pursuant to plaintiff Arthur D. Weeks’ motion to dismiss the objections of defendant, The Travelers Companies, to plaintiff’s request for production of documents. For the reasons set forth below, the motion to dismiss the objections is granted.

Plaintiff, a lawyer, represented defendants Timothy Myers and Cathy Myers on a contingency fee basis in their action against defendant Travelers. Plaintiff claims that Travelers wrongfully induced the Myerses to discharge him. Shortly thereafter, Travelers settled with the Myerses, allegedly for a fraction of the claim’s worth. Plaintiff avers that the Myerses never remitted any portion of the settlement to him.

Plaintiff has filed a writ of summons as well as a request for production of documents which sought the claims and investigation file prepared by Trav elérs during its investigation of the Myerses’ claim. Travelers provided the requested documents with the exception of six documents relating to strategy, evaluation and negotiation of the claim. Travelers objected to the request for these documents on the grounds that they are not properly discoverable material. Plaintiff then filed the instant motion to dismiss Travelers’ objections.

In support of its position, defendant relies on Pennsylvania Rule of Civil Procedure 4003.3 which in relevant part provides:

“With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.”

Defendant argues that because the six documents contain the mental impressions and conclusions of its employees regarding the value, merit, negotiation or evaluation of the Myerses’ claim, plaintiff is not entitled to discovery of these documents.

Plaintiff counters by asserting that the documents are relevant as evidence of the allegedly improper actions taken by defendant Travelers. Plaintiff maintains that these documents will provide information on defendant Travelers’ alleged interference with the attorney-client relationship between himself and the Myerses. Plaintiff also contends that the documents will have a bearing on damages, reflecting the true value of the case and, hence, the potential contingency fee.

In resolving this matter, the court is guided by the sound reasoning of Judge Wettick in Little v. Allstate Insurance Co., 16 D.&C. 3d 110 (1980). Here, defendant refused to pay no-fault benefits. Plaintiff sued and also sought attorney’s fees due to defendant’s unreasonable failure to pay benefits. Plaintiff then requested documents relating to defendant’s investigation of the claim. Defendant provided the documents but deleted all references to its investigator’s opinions and evaluation of the claim. The court granted plaintiff’s motion to compel, concluding that the protections afforded under rule 4003.3 only extend to the litigation for which the documents containing opinions and evaluations of defendant’s employees were made. The court held that 4003.3’s protection does not extend to subsequent litigation, in anticipation of which the documents were not prepared. See also, Harvey v. Whatley, 2 Phila. Rep. 443 (1979).

In the instant case, the documents in question were prepared by defendant’s employees for purposes of possible litigation against it by the Myerses. In this context, the documents would have been privileged. The documents, however, were not prepared in anticipation of the instant action by plaintiff. Since 4003.3’s protections do not apply to subsequent litigation, the documents sought by plaintiff are not protected as they were not prepared in anticipation of this lawsuit. As a result, defendant’s objections will be dismissed and defendant will be ordered to produce the documents in question.

Accordingly, we enter the following

ORDER

And now, July 16, 1990, plaintiff Arthur D. Weeks’ motion to dismiss the objections of defendant, The Travelers Companies, to plaintiff’s request for production of documents, is granted. Accordingly, defendant’s objections are dismissed.

Defendant is directed to produce the documents sought by plaintiff’s request for production of documents within 30 days from the date of this order.

The prothonotary is directed to provide notice of the entry of this opinion and order as provided by law.


author: KELLER, Member,

text:
    In re Anonymous No. 69 D.B. 89
    Disciplinary Board Docket no. 69 D.B. 89.
    March 16, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

KELLER, Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations regarding the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

On July 11, 1989, the Office of Disciplinary Counsel filed a petition for discipline on respondent. The petition alleged various Disciplinary Rule violations in connection with respondent’s representation of [A] and [B].

Respondent failed to file an answer to the petition for discipline.

On September 19, 1989, Hearing Committee [ ] convened to take evidence on the matter. The committee consisted of [ ].

On October 18, 1989, petitioner filed a lengthy brief to Hearing Committee [ ], requesting that respondent be suspended from the practice of law for a period of three years.

On December 1, 1989, the hearing committee filed its report, recommending that respondent be suspended from the practice of law for a period of three years.

The matter was adjudicated at the January 26, 1990 meeting of the Disciplinary Board of the Supreme Court of Pennsylvania.

FINDINGS OF FACT

(1) Respondent was born in 1949 and admitted to the Pennsylvania Bar in 1977.

(-2) During most of the time the disciplinary rule violations occurred, respondent maintained an office out of his home in [ ].

The [C] Estate

(3) On November 23, 1983, [C] died intestate as a result of an automobile accident. [C’s] surviving heirs were her parents, [D] and [A].

(4) On January 9, 1984, [D] filed letters of administration and a renunciation by [A], and was named administratrix of her daughter’s estate. The first and final account of [D] was filed by [E], Esq., attorney for the estate, on October 21, 1984.

(5) [A] excepted to the first and final account through his counsel, [F], Esq.; [A] questioned the accounting’s failure to list alleged assets of' the estate and the resolution of wrongful death and survival claims and actions against [G], driver of the other vehicle involved in [C’s] accident.

(6) [G] faced criminal charges in the matter of [C’s] death. [G] was represented by defense attorney [H], Esq., and prosecuted at the end of District Attorney [I’s] tenure. Judge [J] presided over the case, in which [G] entered a plea of guilty to homicide by vehicle, non-DUI.

(7) On February 4, 1985, [A’s] successor counsel, [K], Esq., withdrew his client’s exceptions on prae-cipe and executed a settlement of estate for $19,000 in exchange for relinquishment of all claims against the estate. An order dated February 4, 1985 confirmed the settlement.

(8) On July 6, 1987, [L], Esq., filed a petition for citation on behalf of [A] concerning certain stock which had been excluded from the settlement.

(9) On May 26, 1988, Attorney [L] withdrew his appearance for [A] and respondent entered his appearance.

(10)'On July 11, 1988, respondent filed a “petition for summary removal of [D] as administratrix and other appropriate relief.” The single-paragraph petition included and incorporated by reference an unverified nine-page letter from respondent to [M], an officer of the Department of Public Welfare, Office of Fraud and Abuse Investigations and Recovery. The letter to [M] contained numerous, unfounded allegations against [D]; Judge [J], who had adjudicated the [C] matter; Attorney [E]; and various other individuals. The allegations were of case “fixing,” criminal fraud, and other illegal and unethical activities.

(11) On July 11, 1988, the petition was dismissed without prejudice and respondent’s motion for re-cusal was denied. Respondent failed to refile the petition in accordance with the Rules of Civil Procedure.

[B] v. [N]

(12)On September 2, 1987, respondent initiated an action by writ of summons in the Court of Common Pleas for [ ] County on behalf of his client, [B], against [N], [O], and [P]. The gravamen of the action was a possible civil rights violation.

(13) On October 6, 1987, defense counsel [Q], Esq., filed a petition for removal to the U.S. District Court for the [ ] District of Pennsylvania. The case was removed and assigned to Judge [R] in [ ].

(14) At 4:53 p.m. on October 23, 1987, defendant .filed an answer. Seven minutes later, respondent filed a motion for default seeking a declaration of default on the issues of liability and a trial on the issue of damages.

(15) On November 3, 1987, the court denied the motion for default without prejudice, after defendants had filed an answer to the motion.

(16) On November 12, 1987, defendants filed an amended answer, and respondent filed a motion to strike defendants’ original answer.

(17) On December 7, 1987, respondent filed a motion to strike the amended answer. The motion contained various accusations concerning defense counsel and other members of the Pennsylvania Bar: That the defendant District Attorney [P] was protecting the narcotics trade in Pennsylvania and that the Pennsylvania Supreme and Superior Courts, Pennsylvania Attorney General, Federal Bureau of Investigation, United States Attorney’s Office, and the Justice Department are all involved in “case fixing.”

(18) On December 24, 1987, plaintiff’s motion to strike was denied.

(19) On February 1, 1988, respondent filed plaintiff’s surreply brief on his motion to strike the amended answer. This brief also contained unsubstantiated, bizarre remarks concerning defense counsel, and the motion was denied on March 9, 1988.

(20) On May 11, 12, and 13, 1988, defendants served respondent with interrogatories and requests for admissions. Respondent’s response, filed June 13, 1988, was a blanket condemnation of the “perversion of the.legal process.”

(21) On June 15, and 17, 1988, defense counsel moved to compel respondent to answer the interrogatories and requests for admission, and requested that sanctions be imposed on respondent for his conduct in the matter.

(22) Respondent’s July 8, 1988, brief in opposition to the motion; of defendants [N] and [O] for a continuance contained additional indictment of defense counsel’s conduct.

(23) Respondent’s July 11, 1988 brief in opposition to motion of defendants [N] and [O] to compel discovery opened with respondent’s condemnation of his opposing counsel: “Well, here we go again, struggling just to stay afloat in the ocean of slime generated by Messrs. [Q] and [S].”

(24) Trial began before Judge [R] on August 22, 1988.

(25) On August 23, 1988, respondent made a verbal motion for the recusal of Judge [R] and accused the judge of being crazy, corrupt, and biased. Later that day, Judge [R] invited respondent into his chambers and asked him to explain the factual basis for his attack on the judge’s credibility. Respondent’s response was a litany of attacks on decisions the judge had made on pretrial motions which were well within his discretion and did not smack of any sort of bias.

(26) At the same time he attacked Judge [R’s] credibility, respondent also accused members of the Pennsylvania Supreme Court and the United States Justice Department of fixing cases.

(27) On August 25, 1988, respondent refused to proceed with any further action on the matter, although the case was at the height of its trial, and would not withdraw as counsel.

(28) On August 26, 1988, the jury entered a special verdict against the plaintiff, which was entered on August 29, 1988.

(29) On August 30, 1988, respondent filed a brief in opposition to defendant [P’s] motion to vacate answers. The brief opened: “Contrary to yet another stinking, filthy, rotten lie by [T]. . .”

(30) On September 21, 1988, respondent filed a motion for new trial and to alter or amend the judgment, at which time he alleges that Judge [R] specifically sought to hinder his representation of [B].

[B] v. [P]

(31) On April 22, 1988, respondent initiated an action by writ of summons, [B], Plaintiff v. [P] et al., Defendants, in the Court of Common Pleas of [ ] County.

(32) On June 28, 1988, respondent filed a complaint, on behalf of his client, alleging two causes of action against [U] Police Department officers, members of the District Attorney’s Office, officials of the Court of Common Pleas of [ ] County, and various other individuals. Respondent accused [P] and others of engaging in unethical behavior and protecting drug dealers and' other criminals, although he stated no factual basis for these allegations.

(33) On July 15, 1988, the matter was removed to the U.S. District Court for the [ ] District of Pennsylvania. One month later, respondent filed a brief in response to motion of two of the defendants, which he categorized as “a disgrace” and a response to the defendants’ “sick-minded collection of moronic lies and perverted filth.”

(34) On September 26 and 30, 1988, respondent made further filings as part of his representation of [B]. His briefs in response to the defendants’ motion to strike entry of default and motion to dismiss contained further allegations of wrongdoing on the part of Judge [R] and Chief Judge [V] whose “more powerful allies will come crawling from under their rocks in the coming weeks.”

(35) On October 5, 1988, Judge [R] struck this inflammatory language from the record as scandalous. A motion for reconsideration was stricken from the record by order dated November 10, 1988, for the same reason.

(36) On November 18, 1988, respondent filed a brief in support of motion to remand which further alluded to Judge [R’s] fixing of the case.

(37) Respondent’s actions in the course of his representation of [B] led to his suspension from the practice of law before the United States District Court for the [ ] District of Pennsylvania on May 31, 1989.

CONCLUSIONS OF LAW

The board adopts the following proposed conclusions of law set forth in petitioner’s brief to the hearing committee.

(1) By his conduct in the Estate of [C] case, respondent violated the following Pennsylvania Rules of Professional Conduct:

(a) Rule 1.1, which requires a lawyer to provide competent representation to a client;

(b) Rule 3.1, which prohibits a lawyer to bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so which is not frivolous;

(c) Rule 3.3(a)(1), which prohibits a lawyer to knowingly make a false statement of law or fact to a tribunal;

(d) Rule 3.4(c), which prohibits a lawyer, when appearing before a tribunal, to assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of the accused;

(e) Rule 3.5(c), which prohibits a lawyer to engage in conduct disruptive to a tribunal;

(f) Rule 4.1(a), which prohibits a lawyer, in the course of representing a client, to knowingly make a false statement of material fact or law to a third person;

(g) Rule 8.2(b), which prohibits a lawyer to knowingly make false accusations against a judge or other adjudicatory officers;

(h) Rule 8.4(c), which prohibits a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and

(i) Rule 8.4(d), which prohibits a lawyer to engage ,in conduct that is prejudicial to the administration of justice.

(2) Operation of the doctrine of collateral estoppel renders the decision of the United States District Court for the [ ] District of Pennsylvania as to the [B] matters conclusive for purposes of this proceeding.

(3) By his conduct in the [B] v. [N] case, as described in count II of the petition for discipline, respondent violated the following Pennsylvania Rules of Professional Conduct:

(a) Rule 1.1, which requires a lawyer to provide competent representation to a client;

(b) Rule 3.1, which prohibits a lawyer to bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so which is not frivolous;

(c) Rule 3.3(a)(1), which prohibits a lawyer to knowingly make a false statement of law or fact to a tribunal;

(d) Rule 3.4(c),. which prohibits a lawyer, when, appearing before a tribunal, to assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of the accused;

(e) Rule 3.5(c), which prohibits a lawyer to engage in conduct disruptive to a tribunal;

(f) Rule 4.1(a), which prohibits a lawyer, in the course of representing a client, to knowingly make a false statement of material fact or law to a third person;

(g) Rule 8.2(b), which prohibits a lawyer to knowingly make false accusations against a judge or other adjudicatory officers;

(h) Rule 8.4(c), which prohibits a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and

(i) Rule 8.4(d), which prohibits a lawyer to engage in conduct that is prejudicial to the administration of justice.

(4) By his conduct in the [B] v. [P] case, as described in count III of the petition for discipline, respondent violated the following Pennsylvania Rules of Professional Conduct:

(a) Rule 1.1, which requires a lawyer to provide competent representation to a client;

(b) Rule 3.1, which prohibits a lawyer to bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so which is not frivolous;

(c) Rule 3.3(a)(1), which prohibits a lawyer to knowingly make a false statement of law or fact to a tribunal;

(d) Rule 3.4(c), which prohibits a lawyer, when appearing before a tribunal, to assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of the accused;

(e) Rule 3.5(c), which prohibits a lawyer to engage in conduct disruptive to a tribunal;

(f) Rule 4.1(a), which prohibits a lawyer, in the course of representing a client, to knowingly make a false statement of material fact or law to a third person;

(g) Rule 8.2(b), which prohibits a lawyer to knowingly make false accusations against a judge or other adjudicatoiy officers;

(h) Rule 8.4(c), which prohibits a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and

(i) Rule 8.4(d), which prohibits a lawyer to engage in conduct that is prejudicial to the administration of justice.

DISCUSSION

The issue before the Disciplinary Board is how to discipline an attorney whose lack of respect for the court and its officers has led to the assertion of scandalous and inflammatory accusations of widespread corruption, conduct which has been prejudicial to the administration of justice, and suspension from the federal bar.

An appropriate starting point in the dispensation of such a case is with an examination of respondent’s conduct in relation to the Disciplinary Board. It should be noted that respondent has chosen from the outset not to participate in the adjudication of this matter. He failed to file an answer to the petition for discipline or to file any sort of brief or memorandum to the hearing committee. Respondent also failed to participate in the hearing on the matter before the hearing committee, having determined that the imposition of disciplinary sanctions was a foregone conclusion. On the day of the hearing, committee chair [W] spoke directly with respondent and inquired whether respondent was going to attend the hearing. Respondent was “apparently disturbed and unresponsive to the questions that were posed to him,” and characterized the hearing as a “farce,” according to [W].

Respondent’s attitude toward the Disciplinary Board and the serious nature of formal disciplinary sanctions is akin to the erratic manner in which he behaved while representing [A] and [B], The gravamen of respondent’s misconduct in the [C] matter was his scandalous accusation of case fixing and criminal, fraudulent activity by members of the bench and bar. Respondent’s wild accusations are documented and without foundation. Because respondent had no basis for making these allegations and his conduct hampered the administration of the [C] matter, his conduct can only be described as a reckless, deceitful, prejudicial interference with the administration of justice and not a competent representation of his client. Respondent’s conduct was therefore a direct violation of the following Pennsylvania Rules of Professional Conduct: 1.1, 3.1, 3.3(a)(1), 3.4(c), 3.5(c), 4.1(a), 8.2(b), 8.4(c), and 8.4(d).

Respondent’s misconduct in the [B] cases was more egregious, evidenced by the fact that it led to his May 31, 1989 suspension from the United States District Court for the [ ] District of Pennsylvania. In [N] and [P] respondent raised various frivolous challenges to judicial and his opponents’ competence. He also leveled baseless inflammatory allegations at various members of the bench and bar. The wild, slanderous accusations had no basis in fact and ultimately led to incompetent representation of his client, specifically when respondent refused to proceed any further with the trial yet remained the counsel of record. A cursory examination of the facts underlying the [N] and [P] cases lead to the conclusion that respondent violated the following Pennsylvania Rules of Professional Conduct: 1.1, 3.1, 3.3(a)(1), 3.4(c), 3.5(c), 4.1(a), 8.2(b), 8.4(c), and 8.4(d).

Respondent’s conduct in these instances is highly unacceptable and requires discipline. Respondent has offered no explanation for his erratic behavior and apparent disenchantment with the Pennsylvania bench and bar. We are therefore compelled to ascertain the appropriate disciplinary sanctions to be imposed based upon petitioner’s uncontroverted evidence. According to rule 204(a)(2), Pa.R.D.E., misconduct shall be grounds for suspension from the practice of law for a period not to exceed five years. (See section 85.8(a)(2), Disciplinary Board Rules). Suspension of one’s license to practice iaw is an appropriate disciplinary measure where respondent’s continuing active membership in the bar compromises its integrity. We believe this is exactly such a case.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that respondent be suspended from the practice of law for a period of three years. The board recommends further that respondent be ordered to pay the costs of investigating and prosecuting this matter.

Mr. Douglas recused himself and Ms. Heh and Mr. Padova did not participate in the adjudication.

ORDER

And now, May 25, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated March 16, 1990, it is hereby ordered that [respondent], be and he is suspended from the bar of this Commonwealth for a period of three years, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.

Mr. Chief Justice Nix and Mr. Justice Larsen did not participate in the consideration or decision of this case.

Mr. Justice Papadakos dissents and would issue a rule to show cause why respondent should not be disbarred.


author: NATALE, J.,

text:
    Tonkovic v. State Farm Mutual Automobile Insurance Co.

      David L. Lutz, for plaintiff.

      Stephen L. Banko Jr., for defendant.
    July 27, 1990
   NATALE, J.,

Presently before the court are motions for summary judgment filed by both parties. The parties agree that there are no issues of material fact and that the only issue for the court to decide is the construction of the statute of limitations provision of the repealed Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, no. 176, 40 P.S. §1009.101 et seq., repealed, effective October 1, 1984.

THE FACTS

On March 26, 1982, plaintiff was seriously injured in a head-on automobile accident. Her legs were subsequently amputated below the knees. Defendant, her no-fault insurance carrier, paid for accident-related medical expenses and lost wages. Defendant paid for prosthetic devices and associated supplies. The last payment of benefits was made by defendant directly to plaintiff on March 5, 1986.

During the next two years plaintiff incurred no accident-related medical expenses. At a subsequent point, plaintiff’s physician prescribed replacement prosthetic devices. Plaintiff incurred a bill dated December 8, 1988 of $5,406 from Tuefel Ortholic-Prosthetic Associates for the replacement of prosthetic devices and submitted the bill to defendant. The parties have stipulated that the cost of the prosthetic devices is reasonable, necessary and causally relates to plaintiff’s automobile accident injuries of March 26, 1982. Defendant denied the claim citing the statute of limitations set forth in 40 P.S. §1009.106(c)(i), stating that more than two years had elapsed since the date of the last payment of benefits.

THE ISSUE

Does the statute of .limitations found at 40 P.S. §1009.106(c)(1) bar recovery for a replacement prosthetic device, where the parties agree the cost of the device is reasonable, necessary and causally related to the accident?

DISCUSSION

Summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b).

The applicable statute of limitations, 40 P.S. §1009.106(c)(1), states as follows:

“(c) Time limitations on actions to recover benefits —

“(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant may be commenced not later than two years after the last payment of benefits.”

Defendant asserts that a plain reading of the section and the Superior Cpurt’s decision in Reed v. Pennsylvania National Mutual Casualty Insurance Co., 342 Pa. Super. 517, 493 A.2d 710 (1985), bars any claim whatsoever (other than from death) which is made more than two years beyond the date of the last payment of benefits. This court cannot agree.

In Reed, supra, the plaintiff was advised by a physician other than her treating doctor that residual cosmetic and functional problems she continued to experience could be treated by specialists outside her geographic area. The Reed, supra, plaintiff had knowledge throughout the two-year period that she had injuries caused by the accident. The Pennsylvania Superior Court quoted with approval a decision of our Dauphin County bench, McGlade v. Ohio Casualty Insurance Co., 18 D.&C. 3d 676 (1980):

“ ‘Once a benefit has been paid, . . . and there is an acknowledged accident-related loss, both the insurance company and the injured party are on notice that a new statute of limitations begins to run from the last payment. This new period may expire prior or subsequent to four years after the accident. If no claim is made for a period of two years, it is presumed that any loss after this trouble-free period is unrelated to the accident and further benefits need not be paid. On the other hand, if a loss is suffered within two years of the last payment, the new loss may be found to have been accident related.’ 18 D.&C. 3d at 680.” Reed, 342 Pa. Super. at 524, 493 A.2d at 713.

In this case, the parties agree the replacement prosthetics were necessary and causally related to the accident. This overcomes the presumption quoted with approval by the Superior Court that “any loss after this trouble-free period is unrelated to the accident.” Reed, 342 Pa. Super. at 524, 493 A.2d at 713; McGlade, 18 D.&C. 3d at 680.

The court finds the situation at bar to fit the analysis given in Rigotti v. J.C. Penney Casualty Insurance Company, 13 D.&C. 3d 472 (1980); and Bauman v. Nationwide Ins. Co., 29 D.&C. 3d 189 (1984). In those two cases an analysis was made of statutory construction and the legislative history of the No-fault Act. For example:

“The Legislature’s express purpose in enacting the No-fault Act was to create ‘a low cost,comprehensive, and fair system’ which uniformly would provide for ‘maximum feasible restoration’ of all victims of motor vehicle accidents. 40 P.S. §1009.102; Tabner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981).

“Strict application of the formula set up in section 106(c)(1) of the act would preclude plaintiff from recovering expenses caused by the automobile accident but not known of until two years after the last payment. Insurance statutes are not among those types of statutes designated by our legislature as requiring strict interpretation. We must liberally construe the No-fault Act in order to assure that its purpose is given effect. See Goodwin v. Hartford Life Insurance Co., 359 F.Supp. 20 (1973), reversed on other grounds, 491 F.2d 332 (1974); West American Insurance Company v. Oberding, 305 Pa. Super. 55, 451 A.2d 239 (1982). Although the court cannot disregard the clear and unambiguous language of the No-fault Motor Vehicle Insurance Act, it must construe the statute with the recognition that the legislature ‘does not intend a result that is absurd, impossible of execution or unreasonable.’ See Platts v. Government Employees Insurance Company, 301 Pa. Super. 379, 447 A.2d 1017 (1982); Pa.C.S. .§1922(1) (1972). Cognizant of the remedial spirit of the No-fault Act, if a court is to err in ascertaining the intent of the legislature in close or doubtful cases, it should err in favor of coverage for the insured. Crawford v. Allstate Insurance Co., 305 Pa. Super. 167, 451 A.2d 474 (1982).” Bauman, supra, at 193-4.

This court finds it should rule, consistently with prior decisions of our bench. In Carroll v. GEICO, 48 D.&C. 3d 335 (1988), Judge Dowling, of this bench, noted “if plaintiff Carroll were claiming benefits for additional surgical treatment related to the chest injuries she already received benefits for, the action would not be barred by the statute of limitations.” Carroll at 338.(1988).

Surely the legislature did not intend to exclude a claim for replacement' prosthetic devices. Such an interpretation would go directly against the express stated purpose of the No-fault Act, 40 P.S. §1009.102 and be absurd, impossible of execution and unreasonable. 1 Pa.C.S. §1922(1) (1972).

Accordingly, summary judgment is granted for plaintiff.

ORDER

And now, July 27, 1990, upon consideration of the cross-motions for summary judgment, and in accordance with the opinion issued this date, plaintiffs motion for summary judgment is granted. Defendant^ motion for summary judgment is denied. Judgment shall be entered for plaintiff in the amount of $5,406.


author: KUHN, J.,

text:
    Commonwealth v. Taylor

      Roy A. Keefer, district attorney, for the Commonwealth.

      Michael A. George,- for defendant.
    July 13, 1990
   KUHN, J.,

The facts have been stipulated. On November 26, 1989, defendant was involved in a one-car accident in Adams County. As a result thereof he was taken to the York Hospital in York, Pennsylvania. Robert Gano of the Pennsylvania State Police investigated the accident but had no contáct with defendant at the scene. Instead, Trooper Gano telephoned the York Hospital and requested that blood be drawn from defendant for criminal purposes. After this call, hospital personnel drew blood from defendant for medical purposes. The results of a blood alcohol test upon this sample was forwarded to Trooper Gano by letter. After receipt of the test results (blood alcohol content 0.116 percent) the officer filed a complaint charging defendant with violation of 75 Pa.C.S. §3731(a)(l) and (4), driving under the influence.

Defendant seeks to suppress the results of the blood tests by relying upon Commonwealth v. Hipp, 380 Pa. Super. 345, 551 A.2d 1086 (1988). There the primary issue was whether the results of a medical purposes blood alcohol test, voluntarily provided by hospital personnel to a police officer, are admissible at trial. The court found such test results admissible. There the officer had probable cause to believe the defendant was violating section 3731 when he requested the hospital to obtain a blood sample. We agree with defendant that the stipulated facts fail to demonstrate that Trooper Gano had probable cause to request hospital personnel to perform a blood alcohol test pursuant to 75 Pa.C.S. §1547(a)(l) or that the hospital personnel had probable cause to believe he had violated section 3731. 75 Pa.C.S. §3755.

However, it should be noted that the Implied Consent Law, 75 Pa.C.S. §1547, is not limited to cases wherein the officer must have probable cause to believe the operator was under the influence of alcohol while operating the vehicle. Section 1547(a)(2) provides that one who operates a vehicle shall be deemed to have given consent to a blood alcohol test if a police officer has probable cause to believe the person was operating a vehicle involved in an accident in which the operator required treatment at a medical facility. Here, the inferences from the stipulated facts are sufficient to satisfy defendant’s implied consent. Thus, the officer had probable cause to order a blood test. Commonwealth v. Smith, 382 Pa. Super. 288, 297-8, 555 A.2d 185, 189 (1989).

Defendant first argues that he had no opportunity to refuse the test and therefore the results are inadmissible. In Hipp the accused had no opportunity to consent to or refuse the medical purposes test but he did subsequently refuse a request by the officer to submit to a second test. The court held that the Implied Consent Law does not require the affirmative consent of the driver to the administration of a blood alcohol test.

“Nor does it create an exclusionary rule where (1) the suspect did not affirmatively consent to the test, or (2) where such a test was administered before or even after the suspect refused to consent to the test . . . Thus, we find that the refusal to submit to the blood alcohol test as requested by the officer has no bearing upon the admissibility of the results of the medical purposes blood alcohol test.” Commonwealth v. Hipp, supra, 380 Pa. Super. at 360, 551 A.2d at 1093.

Therefore, consent or lack thereof in this case is not dispositive of the issue of the test result’s admissibility.

Lastly, defendant argues that the results should be inadmissible because those results were obtained without a warrant in violation of his privacy rights. We disagree.

As noted above, defendant impliedly consented to a blood alcohol test, 75 Pa.C.S. §1547(a)(2). The officer, therefore, had the right to request that the' test be performed. No medical personnel may refuse to perform such a test and provide the results to the officer. 75 Pa.C.S. §1547(j). Here the hospital personnel complied with this provision when they released the results to the officer without a warrant. Hipp held that releasing medical purposes blood alcohol test results does not violate the confidentiality provisions of 28 Pa. Code §5.53 or §115.27 nor does the admission of those test results violate one’s constitutional expectation of privacy in her personal medical records. Furthermore, warrantless searches are authorized by 75 Pa.C.S. §1547(a)(2). Commonwealth v. Smith, supra.

Thus, we find no constitutional violation of defendant’s rights in obtaining the blood alcohol test result. Therefore, defendant’s motion to suppress will be denied. Accordingly, we enter the attached

ORDER OF COURT

And now, July 13, 1990, defendant’s motion to suppress blood alcohol tests is denied. ■


text:
    Sechrist v. Penn Mutual Insurance Co.

      Hetman A. Gailey III, for plaintiff.

      Val E. Winter, for defendant.
    July 24, 1990
   CASSIMATIS, J.,

This matter is before the court pursuant to the motion for summary judgment of defendant Penn Mutual Insurance Company. For the reasons set forth below, the motion is granted and the complaint of plaintiff, Charlotte Sechrist, dismissed.

The relevant facts are as follows: Plaintiff’s decedent, Stanley Sechrist, signed an application for a life insurance policy issued by defendant. The application contained a question inquiring whether decedent had smoked cigarettes within the last 12 months, the answer to which was “No.” By plaintiff’s own admission, Mr. Sechrist did not read the application before signing it. The application contained the following language just above where Mr. Sechrist signed it.

“I . . . represent that the statements and answers in this . . . application are written as made by me and are complete and true to the best of my knowledge and belief. I . . . agree that they will be part of the contract of insurance if issued; that I will be bound by such statements and answers and that Penn Mutual, believing them to be true, will rely and act upon them. I also understand and agree that: (1) . . . no insurance will be in force . . . while the health, habits, occupation and other facts relating to the proposed insured, are the same as described in this Part I of the application.”

Shortly thereafter, defendant issued a life insurance policy for Mr. Sechrist, which named plaintiff as the beneficiary. According to an affidavit filed by an employee of defendant, premiums under the policy were assessed at the lower non-smoker rate as opposed to the higher smoker rate. Less than one year later, Mr. Sechrist died as a result of respiratory failure caused by lung cancer. Plaintiff submitted a claim for benefits, which defendant rejected upon learning that Mr. Sechrist had misrepresented his smoking habits.

Plaintiff then filed a complaint, claiming benefits under the policy. In her reply to defendant’s new matter, plaintiff concedes that the answer on the application regarding Mr. Sechrist’s smoking was false and, in fact, Mr. Sechrist had smoked cigarettes in the 12 months prior to signing the application. Plaintiff had also filed an affidavit stating that she was present during the application process, did not recall any questions regarding smoking and that Mr. Sechrist signed the application without reading it. Plaintiff further states that it was the agent of defendant, not her husband, who filled out the application. In addition, plaintiff recalls that at no time did the agent inform decedent that a lower premium would result from a non-smoker status.

In support of its motion, defendant argues that Mr. Sechrist’s representation regarding his smoking habits was knowingly false, material to the risk assumed by defendant, made in bad faith and relied on by defendant. As a result, defendant submits that plaintiff as a matter of law is barred from recovery under the policy. Defendant also contends that plaintiff is not entitled to recover the benefits he would have been able to recover had he disclosed that he was a smoker.

Plaintiff counters by asserting that the materiality of the risk assumed by defendant is a jury question not properly subject to summary judgment. Plaintiff also maintains defendant has not met its burden of proving, as a matter of law, that the representation of Mr. Sechrist was made in bad faith. Plaintiff further submits that the mere fact that a different rate schedule might have applied had Mr. Sechrist disclosed his smoking habit does not void the policy, but rather allows plaintiff to recover the benefits that would have been available to a smoker.

In order to avoid its obligations under an insurance policy, the insurer has the burden of proving that the statements made by an applicant on the application were false and material and that the applicant must have known that the statements were false and made in bad faith. In addition, the insurer must establish that it relied upon the misstatements in issuing the policy. Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa. Super. 519, 463 A.2d 1017 (1983).

With regard to the first element of avoidance, namely, falsity, it is clear the answer regarding Mr. Sechrist’s smoking habits was false. As for the second element, materiality, normally the question of materiality is for the jury. Baldwin v. Prudential Insurance Co. of America, 215 Pa. Super. 434, 258 A.2d 660 (1969). However, where the answer is false and the matter involved manifestly material to the risk, the question is one of law which may be decided by the court. Baldwin, 215 Pa. Super. at 437, 258 A.2d at 662. In discussing materiality, the court in Baldwin stated:

“Generally, it has been held that ‘Every fact untruly asserted or wrongfully suppressed must be regarded as material if the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of the premium. ’ 7 Couch on Insurance 2d, §35:79, p. 94 (1961).” 215 Pa. Super. at 437, 258 A.2d at 662.

In the instant case, we have no problem concluding that the materiality of Mr. Sechrist’s representations regarding his smoking habits can be resolved by this-court as a matter of law. Defendant’s employee filed an affidavit stating that the rates defendant charged Mr. Sechrist for life insurance would have been more expensive had it been known that Mr. Sechrist smoked. Since Mr. Sechrist’s false representation regarding his smoking habits affected the rates charged by defendant, we are inclined to conclude that the representation was material. Additionally, we find that since the rates charged by defendant were affected by whether Mr. Sechrist smoked, defendant relied on his representations regarding his smoking habits.

Turning to the issue of known falsity and bad faith, the .test of recovery is the good faith of the insured, and the burden of proving the answers given were known to be false is on the insurer who asserts it. Prevete v. Metropolitan Life Insurance Co., 343 Pa. 365, 22 A.2d 691 (1941). The court’s opinion in Prevete provides useful guidance to the dispute here.

The court stated:

“In the present controversy, plaintiff admits that the answers in the application are false. Then, in view of the insured’s unqualified certification that he had read these false answers before signing the application, that they were correctly written as given by him, and that they were true and complete, how can it be said that he did not know the answers were false and did not deliberately intend to deceive the company. In such a situation the necessary and inevitable conclusion is that insured did not act in good faith when he signed the application, and the policy should have been avoided without the intervention of a jury. His beneficiary should not have been heard to say that insured gave other answers than those set forth in the application. To permit such a thing would be to open wide the door to fraud.” Prevete, supra.

The teachings.of Prevete are applicable here. In the instant case, Mr. Sechrist signed a certification stating that all the answers contained therein were true when in fact they were not. Also, through her affidavit plaintiff is claiming that questions regarding smoking were not asked of Mr. Sechrist. Pursuant to the holding in Prevete, a beneficiary cannot assert that the decedent gave answers other than those appearing in the application.

In all fairness to plaintiff, it is noted that unlike the application certification in Prevete, the certification in question here did not contain a statement indicating that Mr. Sechrist had read the answers contained. in the application. However, this will not change the result reached here. One who signs an application for insurance without reading it, when he might have done so, will be held to have read it, and be treated as knowing what he would have learned by reading the application. Applebaum v. Empire Life Assn. Co., 311 Pa. 221, 166 Atl. 768 (1933); Equitable Life v. McCousland, 331 Pa. 107, 200 Atl. 85 (1938).

Based on the foregoing, it can be gleaned that the law imputes knowledge of the contents of an insurance application to a person who, with the opportunity to read the application, signs it, regardless of whether that person has in fact read the application. Accordingly, Mr. Sechrist is deemed to have knowledge of the contents of the application, including the false information regarding his smoking habits. Since Mr. Sechrist is considered to have knowledge of the false answer in his application, his certification that the answer was true is knowingly false, and, in accordance with the holding in Prevete, constitutes bad faith as a matter of law. Consequently, plaintiff is barred from recovery on the policy.

We now consider whether plaintiff can recover benefits in the amount which the premiums would have purchased for a smoker. Plaintiff argues that a non-forfeiture section of the policy dealing with misrepresentation of sex or age should be applied to Mr. Sechrist’s misrepresentation regarding his smoking habits. Plaintiff submits that the adjustments in policy benefits made for a misrepresentation of age or sex should be applied to Mr. Sechrist’s misrepresentation of his smoking habits.

Defendant counters by citing a Second Circuit case, Mutual Benefit Life Insurance Co. v. JMR Electronics Corp., 848 F.2d 30 (2d Cir. 1988). Here, the court held that the insured’s misrepresentation about his smoking history was material and justified rescission of the policy under New York law. The court also rejected plaintiff’s contention that the appropriate remedy in this situation is to permit recovery under the policy in the amount that the premium actually paid would have purchased for a smoker. The court stated:

“The purpose of the materiality inquiry is not to ■ permit the jury to rewrite the terms of the insurance agreement to conform to the newly disclosed facts but to make certain that the risk insured was the risk covered by the policy agreed upon. If a fact is material to the risk, the insurer may avoid liability under the policy if that fact was misrepresented in an application for that policy whether or not the parties might have agreed to some other contractual arrangement had the critical fact been disclosed. [A] contrary result would reward the practice of misrepresenting facts critical to the underwriter’s task because the unscrupulous (or merely negligent) applicant ‘would have everything to gain and nothing to lose’ from making material misrepresentations in his application for insurance.” 848 F.2d at 34.

In addition to the Second Circuit case, defendant cites a line of Pennsylvania cases which stand for the proposition that a material representation will result in the avoidance or rescission of the policy. See Prevete, supra; Piccinini, 316 Pa. Super. at 532, 463 A.2d at 1025. Defendant also argues that plaintiff’s attempt to classify a misrepresentation about smoking habits as similar to an age or sex misrepresentation is inappropriate as the nature of the two misstatements differ. Defendant maintains that a misrepresentation regarding age or sex would not cause an insurer to make further inquiry, while a misrepresentation regarding smoking might have prompted further inquiry.

Having reviewed the arguments, the court is inclined to grant defendant’s motion for summary judgment' on this issue. We- note that the Second Circuit case, decided under New York law, is, of course, not controlling in this situation. However, the sound reasoning enunciated in that decision warrants the .conclusion reached here. It is our view that an insured should not be able to benefit from a false material statement such as the one made here. Moreover, the Pennsylvania cases cited herein justify the conclusion that a material misrepresentation is grounds for avoiding the policy. As a result, plaintiff’s argument must fail.

Accordingly, we enter the following

ORDER

And now, July 24, 1990, the motion for summary judgment of defendant, Penn Mutual Insurance Company, is granted, and the complaint of plaintiff, Charlotte Sechrist, is dismissed.

The prothonotary is directed to enter judgment for defendant and provide notice of the entry of this opinion and order as required by law.


author: SCHAEFFER, P.J.,

text:
    Dawson v. Atochem North America

      William P. Barrett, for plaintiffs.

      Edward J. Marcantonio, for defendant Stokes Division, Pennwalt Corp.

      Peter N. Hileman, for defendant Howard Billman.

      Douglas R. Drucker, for additional defendant.
    July 16, 1990
   SCHAEFFER, P.J.,

On February 23, 1988, plaintiffs Cyndi K. Dawson and Scott Dawson, her husband, filed a complaint against defendant Atochem North America. Count I of plaintiffs’ complaint contains a claim for damages based on negligence; count II contains a claim for damages based on strict products liability; count III contains a claim based on breach of warranties; and count IV contains a claim for loss of consortium.

On April 27, 1988, defendant Atochem filed a complaint against additional defendant General Ecology Company, and Howard Billman, containing claims for indemnity and/or contribution. Plaintiffs also filed a complaint identical to that filed against Atochem against the additional defendant on May 20, 1988.

Additional defendant General Ecology filed a motion for summary judgment against Atochem on November 1, 1989. Subsequently, on November 20, 1989, plaintiffs filed a praecipe to have this case marked discontinued or settled, removing plaintiffs from the case.

General Ecology’s motion for summary judgment is now before this court for disposition.

The facts of this case as adduced from the pleadings, depositions, and affidavits submitted may be briefly summarized as follows: On October 9, 1984, Cyndi Dawson, an employfee of Poole Plastics and Tooling Company, was operating a plastic injection molding machine manufactured by Atochem and containing a mold with its own ejection mechanism. Dawson was manually removing a molded plastic piece from the machine when suddenly the movable ejection mechanism retracted, catching three fingers of Dawson’s left hand in the ejection system, which caused serious injury.

General Ecology was the owner or supplier of the mold and accompanying ejection mechanism involved in the accident. General Ecology, a manufacturer of water filters, contracted with Poole Plastics to produce the plastic canister component of General Ecology’s water filters. Poole Plastics, a plastics molding company, in turn contracted with Howard Billman to design and assemble a mold and ejection mechanism to produce General Ecology’s canisters. Billman designed the mold and accompanying ejection mechanism, and General Ecology became the owner of it. Poole had possession of it and used it to produce the plastic canisters for General Ecology.

General Ecology contends that summary judgment in its favor should be granted since General Ecology cannot, as a matter of law, be held liable under the theories of strict products liability, breach of warranties and negligence. We agree.

It is obvious that General Ecology cannot be found liable under a theory of strict products liability as embodied in section 402(a) of the Restatement (Second) of Torts. The threshold requirement of section 402(a) of the Restatement (Second) of Torts is that the defendant be engaged in the business of manufacturing or selling the culprit product. General Ecology is not a manufacturer or seller of mold/ejection mechanisms. Rather General Ecology is a manufacturer of water filters. Therefore, General Ecology could be found liable under section 402(a) for a dangerously defective water filter, but not for something it neither manufactured nor sold.

Atochem argues that General Ecology should be held strictly liable as a manufacturer of a component part of its water filter and cites Burbage v. Boiler Engineering and Supply Co. Inc., 433 Pa. 317, 249 A.2d 563 (1968) in support thereof. We agree that component-part manufacturers can be found strictly liable where the facts provide for such liability; however, as discussed above, the instant case does not concern the manufacture or sale of its water filters, or a component part thereof. It concerns a piece of equipment used to make a component part of the water filter.

Accordingly, General Ecology cannot as a matter of law be held liable under a theory of strict products liability.

We also agree that General Ecology cannot be found liable on a breach of warranty theory.

In Pennsylvania, breach of warranty actions are governed by the Uniform Commercial Code, 13 Pa.C.S. §§2313 and 2314, concerning express and implied warranties. In general, an action for breach of an express or implied warranty requires a sale or exchange of goods between the seller and buyer. Whitmer v. Bell Telephone Co. of Pa., 361 Pa. Super. 282, 291, 522 A.2d 584, 587-8 (1987). Here there is no evidence of a sale or exchange of the mold/ejection mechanism from General Ecology to plaintiff’s employer, Poole. Hence, General Ecology cannot, as a matter of law, be found liable under either theory of breach of warranty.

Finally, General Ecology argues that it can not be found liable under a theory of negligence. We also agree with this contention.

According to the Restatement (Second) of Torts §388:

“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in a manner for which and by a person for whose use it is supplied, if the supplier:

“(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

“(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

Comment (c) to section 388 of the Restatement (Second) of Torts defines a “supplier” as:

“[A]ny person who for any purpose or in any mariner gives possession of a chattel for another’s use . . . sellers, lessors, donors, or lenders, irrespective of whether the chattel is made by them or by a third person.”

There is sparse case law defining who may be a supplier. Recently, in Gray v. H.C. Duke & Sons Inc., 387 Pa. Super. 95, 111-2, 563 A.2d 1201, 1209 (1989), the Superior Court had occasion to rule on this issue. Gray involved an action for indemnity and/or contribution brought by defendant H.C. Duke & Sons Inc. against defendant Dairy Queen Inc. for injuries sustained by Dairy Queen employee Gray, while operating an ice cream machine manufactured by H.C. Duke & Sons Inc. according to Dairy Queen’s specifications and direction. On appeal to the Superior Court, Dairy Queen Inc. sought to have the award against it reversed for the reason that there was not sufficient evidence from which the jury could find that Dairy Queen Inc. was a supplier of the machine and'therefore liable under section 388 of the Restatement (Second) of Torts. The Superior Court disagreed with Dairy Queen and held that an employer may be found to be a supplier of a machine which injured an employee where the employer had significant ties with the manufacture, design, and modification of the machine and promoted its sale and distribution.

Unlike Dairy Queen Inc.,, the pleadings, depositions, testimony, and affidavits submitted disclose no evidence that General Ecology Inc. had any significant ties to the design, manufacture, modification, sale or distribution of the mold and accompanying ejection mechanism. General Ecology Inc.’s sole input into the process was to provide the design of the product which the mold v^as to produce. General Ecology Inc. never saw the mold and accompanying ejection mechanism or had actual possession of the mold and accompanying ejection mechanism, even though General Ecology Inc. was in effect the “owner” of the mold in that General Ecology Inc. had paid Poole for the design and production of the mold. Therefore, we find that General Ecology Inc. is not a “supplier” subject to the liability of section 388 of the Restatement (Second) of Torts.

CONCLUSION

For all of the foregoing reasons, we find that additional defendant General Ecology Inc. is entitled to summary judgment against defendant Ato-chem North America. Accordingly, we enter the following

ORDER

And now,' July 16, 1990, upon consideration of additional defendant General Ecology Inc.’s motion for summary judgment against defendant Atochem North America Inc., briefs, affidavits, ..and depositions of testimony submitted, and after oral argument thereon, it appearing that there are no disputes as to any material facts, and that additional defendant General Ecology Inc. is entitled to judgment as a matter of law, it is hereby ordered that additional defendant General Ecology Inc.’s motion for summary-judgment is granted. Judgment is entered in favor of additional defendant General Ecology Inc. and against defendant Atochem North America Inc.


author: REILLY, P.J.,

text:
    Ream v. Delerme

      Kimberly M. Kubista, for plaintiff.

      James F. O’Malley, for defendant.
    January 24, 1989
   REILLY, P.J.,

Plaintiff was injured in a work-related accident and commenced receiving workmen’s compensation benefits. Following surgery, he was subsequently examined by defendant who was retained by the workmen’s compensation carrier for plaintiff employer. During the course of the examination the doctor allegedly applied pressure to the site of plaintiff’s'fracture (left zygomatic arch) causing severe pain. Plaintiffs further allege in their complaint that despite Edward L. Ream’s protestations, defendant continued to apply pressure to the fractured site with sufficient force to refracture the left zygomatic arch which was in the process of healing.

Defendant has filed a motion for summary judgment alleging that defendant is immune from liability as his sole duty to use professional skill and ability runs to the workmen’s compensation carrier that engaged his services.

Plaintiff argues that defendant’s conduct constituted a battery and negligence. This court agrees with plaintiffs herein and denies defendant’s motion for summary judgment.

In the instant case, viewing the well-pled facts in a light most favorable to plaintiffs, it appears that defendant was an independent contractor engaged by the workmen’s compensation carrier for plaintiff’s employer to ascertain his then-current physical condition and further that during the course of the examination defendant reinjured plaintiff. This is not a situation wherein the carrier’s doctor made incorrect conclusions in his medical report to the carrier which thereafter resulted in injuries to plaintiff as occurred in defendant’s cited case of Craddock v. Gross, 350 Pa. Super. 575, 504 A.2d 1300 (1986), but involved a situation wherein additional injuries were caused directly by defendant. Moreover, this court is of the opinion that defendant’s effort to escape liability on the basis of Budzichowski v. Bell Telephone Co., 229 Pa. Super. 392, 445 A.2d 811 (1982) is misplaced. In that case the employee sought to recover damages for an alleged negligent act on behalf of physicians who were employed in defendant’s dispensary and the court held that the physicians were employees rather than independent contractors and, therefore, under the Workmen’s Compensation Act were not answerable in damages.

In like manner, defendant relying on Workmen’s Compensation Appeal Board v. Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977) is, in the opinion of this court, misplaced. In Berger the court held that after the employee, who had been injured in a work-related accident, had voluntarily sought treatment from a chiropractor which totally disabled him, he still would be eligible for workmen’s compensation benefits. In Berger, however, the employee sought treatment from a chiropractor of his choice contrary to the present case wherein the employee was directed by the insurance carrier to submit to the instant examination. Further, the Berger case did not designate the Workmen’s Compensation Act as the exclusive remedy. It merely prevented the employer from terminating compensation under the circumstances of that case.

Wherefore, the court enters the following

ORDER

Now, January 24, 1989, it is the order of this court that defendant’s motion for summary judgment be arid is hereby dismissed.