author: PODCASY, J.,

text:
    Meier v. Heritage House

      Walter T. Grabowski, for plaintiff.

      James B. Jordan, for defendant.
    June 27, 1990
   PODCASY, J.,

This matter arises on the preliminary objections to plaintiffs complaint filed, by the captioned defendant.

Plaintiff, Janice Meier, initiated this action relative to her discharge from her employment with defendant, Heritage House, on October 7, 1988. Plaintiff was employed as a charge nurse with defendant on said date.

The complaint avers that two of Meier’s Heritage House supervisors summoned her to their office on said date and demanded her resignation, informing her that she should resign or be fired. The supervisors advised her that she was being fired because of her attitude toward other Heritage House employees. Plaintiff avers that she resigned because she believed she would otherwise be fired.

Ori October 9, 1988, plaintiff applied for unemployment compensation benefits and was initially denied. Plaintiff avers that Heritage House filed information and raised certain issues that constituted a question of “willful misconduct.” As such, plaintiff alleges that the Heritage House took actions and in turn conducted the discharge in a manner that would render her ineligible for unemployment compensation benefits.

Count I of the complaint avers that the discharge was undertaken in such a manner so as to have a direct and detrimental effect on Meier’s ability to subsequently collect Pennsylvania Unemployment Compensation. Plaintiff avers that the actions of Heritage House violated a stated and established public policy of the commonwealth, specifically section 752 of the Pennsylvania Unemployment Compensation Law, 43 P.S. §752.

Count II of the complaint avers that reasons given by Heritage House for plaintiffs discharge were made without any basis and, in fact, were improper, malicious and made with specific intent to harm plaintiff, or in reckless disregard of their probable effect. The averment again centers on the ability of plaintiff to collect unemployment compensation benefits.

Count III of the complaint avers that plaintiffs contract of employment with Heritage House included an implied covenant of good faith and fair dealing and defendant’s action breached the same.

Meier seeks judgment in excess of $20,000 plus punitive damages and costs associated with her loss of wages, economic benefits, humiliation and emotional harm.

Defendant brings forth the present preliminary objections in the nature of a demurrer to all three counts on the basis that plaintiff has failed to state a claim for which relief may be granted.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa. Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 133, 396 A.2d 677, 681 (1978). A demurrer that tests the legal sufficiency of the challenged complaint will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes for Youths Inc., 374 Pa. Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor or overruling the demurrer. Mull v. Kerstetter, 373 Pa. Super. 228, 229-30, 540 A.2d 951, 951 (1988).

With this standard as our polestar, we will review defendant’s objections seriatim.

First, defendant contends that absent a contractual or statutory provision to the contrary, the relationship between an employer and employee is at will, and in such circumstances there exists no common-law action for wrongful discharge. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306 (1986). We agree with this contention.

Our courts, however, have acknowledged that if a discharge was made with a specific intent to harm the employee, or if discharge contravened a clear mandate of public policy,, an action for wrongful discharge could lie. See Mudd v. Hoffman Homes for Youth, 374 Pa. Super. 522, 543 A.2d 1092 (1988); Tourville v. Inter-Ocean Insurance Co., 353 Pa. Super. 53, 508 A.2d 1263 (1986), allocator denied 514 Pa. 619, 512 A.2d 933 (1986); Darlington v. General Electric, supra.

The operable question in the first instance, considering the averments of count I, is whether the discharge of an employee at will, done in such a manner as to preclude unemployment compensation, is actionable.

Our research has revealed but one case on this particular subject, and we view the same to be controlling. The Federal District Court for the Western District of Pennsylvania in Monkelis v. Scientific Systems Services, 653 F.Supp. 680 (W.D. Pa. 1987), held that a plaintiffs allegation that a defendant contrived to prevent plaintiff from obtaining unemployment compensation, if true, would certainly contravene public policy. The court, therefore, found an actionable claim on this basis under the public-policy exception to the employment at-will doctrine. Given the high standard utilized by our courts in adjudicating a preliminary objection in the nature of a demurrer, we find the facts pleaded by plaintiff are sufficient and justify a denial of defendant’s preliminary objections.

Defendant also argues that even if the manner of discharge is violative of public policy, there is an exclusive statutory remedy under the following section of the Unemployment Compensation Act. Section 872 of the act provides as follows:

“Any employer (whether or not liable for the payment of contributions under this act) or any officer or agent of such employer or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact to prevent or reduce the payment of compensation to any employee entitled thereto, or to avoid becoming or remaining subject hereto [sic], or to avoid or reduce any contribution or other payment required from an employer under this act, or who willfully fails or refuses to make any such contribution or other payment or to furnish any reports required hereunder, or who willfully fails or refuses to produce or permit the inspection or copying of records as required hereunder, shall, upon conviction thereof in a summary proceeding, be sentenced to pay a fine of not less than $50 nor more than $500, and in default of the payment of such fine and costs shall be sentenced to imprisonment for not longer than 30 days, and each such false statement dr representation or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense.”

We disagree, finding that the section relates solely to criminal sanctions imposed on violative parties and is not. intended as a substitute for recognized civil cause of an action.

Defendant’s demurrer to count II contends that the averments do not meet the requirements of the specific-intent-to-harm exception to the employer’s right to terminate an at-will employee.

In Tourville v. Inter-Ocean Insurance Co., supra, the Superior Court utilizing directives of Geary, supra, attempted to define this specific-intent-to-harm exception to the at-will employee doctrine. The court directs us to search for the existence of one of two factors, disinterested malevolence or ulterior purpose. The court defined disinterested malevolence as follows:

“By this we take it to mean that there was no proper interest involved in the malevolent act, that there was no reason for the action (other than an atavistic desire to hurt another). This, certainly, is something that the trial court can look for in the pleadings or in the evidence at trial to test the legal sufficiency of a case. If there is not present a cause, which in every day, civilized life would serve as the basis for the action, then the malevolence surely is pure, unadulterated and disinterested.” (footnotes omitted)

The court spoke on ulterior purposes as follows:

“[A] harmful action is done with sufficient reason (unlike our first type), but it is done with an ulterior motive — to harm the other party. . .. [T]hat what is harmfully done is beyond the necessity of the justified harmful act. The quality of maliciousness could be discovered by the lack of proportionality or the impropriety or viciousness with which a thing is done.” Tourville v. Inter-Ocean Insurance Co. at 57-8, 508 A.2d at 1266; see also, Darlington v. General Electric, supra.

Given this standard, we believe that factual averments of the complaint fall within the realm of “ulterior purpose.” This is particularly so with relation to averments that defendant orchestrated and contrived the discharge with the intent to insure that plaintiff was refused unemployment compensation benefits. We therefore deny and dismiss defendant’s demurrer to count II.

Defendant’s next demurrer centers on plaintiffs count III averments that defendant breached the covenant of good faith and fair dealing. In reviewing this issue, we cannot overlook the clear lack of Pennsylvania case precedent implying the existence of the covenant of good faith and fair dealing in circumstances similar to the instant.

In Darlington v. General Electric, supra, at 196, 504 A.2d at 312, the court openly refused to imply the covenant in at-will-employee circumstances, citing language from the Connecticut Supreme Court precedent of Magnan v. Anaconda Industries Inc., 193 Conn. 558, 579 A.2d 781 (1984). The court stated:

“ ‘Although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right.’ ”

Absent any directives persuading us to the contrary, we find plaintiff lacking a viable cause of action in count III and presently grant defendant’s demurrer. We concomitantly dismiss this count.

Lastly, defendant raises the deficiency of plaintiffs prayer for punitive damages. In our view, the allegations, if true, may constitute such outrageous conduct as to warrant an award of punitive damages. Whether the allegations will prove to be competent evidence remains to be seen. The court, however, finds at this stage there are sufficient allegations of the same. See Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).

ORDER

It is hereby ordered, adjudged and decreed as follows:

(1) Defendant’s demurrer to counts I and II of plaintiffs complaint are denied and dismissed;

(2) Defendant’s demurrer to count III of plaintiffs complaint is granted. Count III of plaintiffs complaint is dismissed; and

(3) The prothonotary is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P. 236.


source: Caselaw Access Project

author: HESS, J.,

license: Public Domain

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

      Richard C. Angino, for plaintiffs.

      Robert E. Kelly Jr., for defendants.
    March 22, 1990
   HESS, J.,

This case is now before the court on a motion for judgment on the pleadings. Before we can grant such a motion, we must be satisfied that there exists no genuine issue of fact and that the moving party is entitled to a judgment as a matter of law. Beardell v. Western Wayne School District, 91 Pa. Commw. 348, 496 A.2d 1373 (1985). In arriving at its decision, the court must consider all the pleadings, together with attached exhibits, “keeping in mind that the moving party admits the truth of all allegations of his adversary and the untruth of his own allegations that have been denied.” Kline v. Pennsylvania Mines Corp., 120 Pa. Commw. 7, 9, 547 A.2d 1276, 1277 (1988). Where warranted, judgment on the pleadings should be entered since trial would be a fruitless exercise. Kline, supra.

The complaint in this case recites that Troy Robert Nealy, the son of the plaintiff administrators, died in a motor vehicle accident on February 6, 1988. The policy limits of $300,000 have been tendered by the tort-feasor whose negligence caused Troy’s death. The estate has now turned to underinsurance motorist coverage which it has with the defendant, State Farm Mutual Automobile Insurance Company. According to its written terms, while the liability limits of the Nealys’ automobile insurance police are $250,000/$500,000, their uninsured and underinsured motorists’ bodily injury limits are only $25,000/$50,000.

Plaintiffs bring this suit contending that, notwithstanding the provisions of their policy, their underinsured coverage should be $250,000/$500,000. They take this position for several reasons. First, they were never properly advised as to the nature of uninsured/underinsured coverage and the small cost differential involved. Second, defendant’s agent never indicated to them that the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., mandated that underinsured coverage be equal to bodily injury liability unless the insured specifically requested in writing a lower or higher limit. Finally, neither Robert nor Marilyn Nealy specifically requested the lower limit for underinsured motorist coverage in conformity with section 1734 of the Financial Responsibility Law.

Defendants have answered claiming that plaintiffs voluntarily selected lower underinsurance coverage and in so doing signed all of the necessary waivers and elections required to bind them under the Financial Responsibility Law. To this plaintiffs have replied that even though Mr. or Mrs. Nealy’s signatures do indeed appear on the documents, the forms were prepared by employees of State Farm, the papers were never read to the Nealys, uninsured and underinsured options were never discussed, the Nealys were given none of the applications to read before they signed them, and, finally, the print size of the documents, purporting to lower their underinsured motorist coverage, was. not in accordance with that required by statute. Defendants, in turn, counter that these factual averments are of no moment in light of the holding in Prudential Property and Casualty Insurance v. Pendleton, 858 F.2d 930 (3d Cir. 1988).

In Prudential, supra, the federal court dealt with questions concerning the Pennsylvania Motor Vehicle Financial Responsibility Law as to which our appellate courts have not yet spoken. Thus, as is so often the case, the federal court was engaged in predicting how the Pennsylvania Supreme Court would construe the statute, if faced with the identical issue. Like the matter sub judice, Prudential dealt with provisions regarding underinsured and uninsured motorist coverage:

“The Pennsylvania Motor Vehicle Financial Responsibility Law (‘PMVFRL’) imposes the requirement that an insurer provide uninsured motorist coverage in an amount equal to the bodily injury liability coverage unless the insured waives the requirement. Section 1734 provides that a named insured ‘may request in writing the issuance of coverages under section 1731 (relating to scope and amount of coverage) in amounts less than the limits of liability for bodily injury but in no event less than the amounts required by this chapter for bodily injury.’

“Section 1791 of the PMVFRL specified the form of notice which must be furnished to the insured concerning the availability of coverages and the insured’s right to select greater or lesser amounts of coverage. The section creates a presumption that an insured’s signature on the ‘Important Notice’ evidences ‘actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits . . . [the insured has] selected.’ ” Prudential at 932. (footnotes omitted)

In the Prudential case a question arose as. to whether the insured, Virgil Robinson, had completed a valid election of uninsured motorist coverage in amounts of only $15,000/$30,000 when his bodily injury limits were $50,000/$100,000. The Court of Appeals concluded that the election of the lesser amount was valid but based its finding on the factual conclusions of the Federal District Court. The District Court had, indeed, found as a fact that Prudential had included the necessary statutory form of notice in its policy application and, moreover, that Robinson had voluntarily signed the waiver necessary to lower his uninsured motorist coverage. ,

The holding of the court was, therefore, that “once it is proven that an insured voluntarily signs the waiver, he cannot be heard to rebut it.” Prudential, supra, at 936. (emphasis supplied) We do not disagree with this statement of the law. The instant defendants, however, err when they attempt to apply it to this case. They would have us construe thé ruling of the Court of Appeals to mean that anything other than a coerced signature on the section 1734 request establishes irrebuttably that an insured has waived the coverage. We do not accept such a narrow interpretation.

We find it hard to imagine any situation in which someone’s signature on an insurance document would be forced or “involuntary” in the conventional sense. Admittedly, the final sentence of section 1971, “Important Notice,” says:

“Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding and availability of these benefits and limits as well as the benefits and limits you have selected.” 75 Pa.C.S. §179i.

If, however, an insurance agent prevents one from reading the form containing this language, and it is not otherwise explained to the customer, then one’s signature on the form cannot possibly evidence “actual knowledge and understanding.” The requirement in Prudential, supra, that the signature on the waiver be “voluntaiy” must, we believe, be interpreted to mean that not only was the signing a volitional act, but that the insured read or at least had reasonable opportunity to read the form and understand its contents. In this latter regard, plaintiffs make certain factual allegations concerning a lack of this opportunity. These factual allegations are material and disputed. Summary judgment is therefore inappropriate.

ORDER

And now, March 22, 1990, the motion of defendant for judgment on the pleadings is denied.

       Wbiile Prudential Property and Casualty Insurance v. Pendleton, supra, dealt with uninsured motorists’ coverage and this case deals with underinsured motorists’ coverage, the statutory provisions are the same.


author: RUBRIGHT, J.,

text:
    Commonwealth v. Butler

      Jacqueline L. Russell, assistant district attorney, for the commonwealth.

      Thomas J. Pettish, for defendant.
    July 13, 1990
   RUBRIGHT, J.,

This matter is presently before the court on a petition for writ of habeas corpus in which defendant seeks dismissal of the charges against him on the grounds that the commonwealth did not establish a prima facie cáse at the preliminary hearing. Counsel have entered the following stipulation of facts in order to aid the court in its disposition of the matter: On or about January 29, 1990, defendant was arrested and charged with unauthorized use of a motor vehicle, 18 Pa.C.S. §3928, based upon a private complaint filed by David L. Wolfe. The incident took place oh January 19, 1990, when David L. Wolfe drove a .1987 Pontiac Coupe to his wife’s residence with the intention of picking up his son for visitation. At that time, Mildred Wolfe asked defendant to move the car because she was going to take possession of it pending the outcome of the Wolfes’ divorce. The vehicle was purchased by David and Mildred Wolfe on February 23, 1988, although it was titled only in the name of David Wolfe. At the time of the alleged offense, the vehicle was a disputed item of marital property in the Wolfes’ pending divorce action. As a result of defendant’s having moved the vehicle, he is charged with the instant offense.

In order for the court to properly issue a writ of habeas corpus, it must find that the prosecution failed to establish a prima facie case at the preliminary hearing. The commonwealth bears the burden of establishing, at least prima facie, that a crime has been committed and the accused is the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). In order to sustain this burden, the commonwealth need not produce evidence of such character and quantum of proof as to require a finding by a jury of the accused’s guilt beyond a reasonable doubt. However, the evidence must be such as to present sufficient probable cause to believe that the accused has committed the offenses charged. The evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury. Commonwealth ex rel. Scolio v. Hess, 149 Pa. Super. 371, 27 A.2d 705 (1942).

Section 3928 of the Crimes Code, 18 Pa.C.S. §3928, provides: .

“A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor propelled vehicle of another without consent of the owner.”

In order to establish a violation of that section, the commonwealth must show that defendant operated a vehicle without the owner’s consent and that defendant then knew or had reason to know that he lacked permission of the owner to operate the vehicle. In the Interest of Scott, 388 Pa. Super. 550, 566 A.2d 266 (1989)..

In the instant case, although it is undisputed that the vehicle was titled solely in the name of David L. Wolfe, it is also undisputed that the vehicle was an item of marital property which had been purchased by the Wolfes jointly and its disposition was being contested in the pending divorce action. Defendant was asked by Mildred Wolfe to move the vehicle. Under the circumstances, the commonwealth did not establish that defendant knew or had reason to know that he lacked the owner’s permission to operate the vehicle. Although we do not condone defendant’s actions, it has not been established that he committed a crime.

Accordingly, we enter the following

ORDER OF COURT

And now, July 13, 1990, it is hereby ordered that defendant’s petition for writ of habeas corpus is granted and the charge of unauthorized use of an automobile shall be dismissed.


author: NATALE, J.,

text:
    Dauphin Deposit Bank and Trust Co. v. Toyota Motor Corp.

      Anthony Stefanon, for plaintiff.

      Thomas B. Schmidt III and Robert E. Heideck, for defendant Campari USA Inc.
    July 6, 1990
   NATALE, J.,

Presently before the court are defendant’s, Campari USA Inc., preliminary objections in the nature of a demurrer to counts VII, VIII, IX and X of plaintiffs complaint. For the following reasons, the court sustains these demurrers and orders the complaint against Campari USA Inc. dismissed with prejudice and Carm pari USA Inc. deleted from the caption of this case.

Plaintiffs ward was severely injured when a drunken driver crossed over into her lane of travel and hit her car (her guardian did not sue the drunken driver). Plaintiff has sued Campari USA Inc., an importer of alcoholic beverages, alleging that it sold the alcoholic beverages to the tavern where the driver bought and consumed the beverages. Plaintiff alleges that Campari USA Inc. is liable for not warning of the hazards of driving while' intoxicated and because the dangers of alcohol outweigh their benefits to our society. As a result, plaintiff claims Campari USA Inc. is liable under count VII for negligence, under count VIII for strict tort liability, under count IV for breach of warranty, and under count X for joint and several liability.

The dangers of intoxication and of driving while intoxicated are so well known that every court that has considered the issue has held that manufacturers of alcoholic beverages need not warn about them. See, e.g., Maguire v. Pabst Brewing Co., 387 N.W.2d 565 (Iowa 1986); Morris v. Adolph Coors Co., 735 S.W.2d 578 (Tex. Civ. App. 1987).

These dangers are not merely examples of risks that are generally known to ordinary consumers — they are the classic examples cited as such risks. Azzarello v. Black Brothers Co., 480 Pa. 547, 556 n.10, 391 A.2d 1020, 1025 n.10 (1978); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 94, 337 A.2d 893, 898 (1975); Hon v. Stroh Brewery Co., 835 F.2d 510, 516 (3d Cir. 1987); Restatement (Second) of Torts §402A, comments i and j (1965).

In ruling on preliminary objéctions in the nature of a demurrer, the complaint must be examined to determine whether it sets forth a cause of action which, if proved by plaintiff, would entitle her to the relief she seeks. All well pleaded factual averments and all inferences fairly deducible therefrom are admitted as true, but conclusions of law are not. Higgins v. Clearing Machine Corp., Division of U. S. Industries Inc., 344 Pa. Super. 325, 496 A.2d 818 (1985). Turning to plaintiffs causes of action seriatim, the following can be noted.

Count VII Negligent Failure to Warn

Negligent warning cases are subject to the caveat that a product is not defective without warnings where the danger is obvious. Ellis v. Chicago Bridge & Iron Co., 376 Pa. Super. 220, 233, 545 A.2d 906, 913 (1988). Pennsylvania has adopted Restatement (Second) of Torts §388 (1965) as the standard for negligent failure to warn. Incollingo v. Ellis, 444 Pa. 263, 282 A.2d 206 (1971). Section 388 states that a supplier is liable if it “(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition. . .” The duty to warn under this section applied to latent dangers. There is no duty to warn of obvious dangers. As noted earlier, the dangers of drinking and driving are obvious to anyone in this country. Defendant Campari USA Inc.’s demurrer to count VII is sustained.

Count VII Strict Tort Liability

Pennsylvania has adopted Restatement (Second) of Torts §402A, comment j (1965) as the standard for warning defect claims. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984); Sherk v. Daisy-Heddon, 498 Pa. 594, 597 n.2, 450 A.2d 615, 617 n.2 (1982). Relying on comment j, Pennsylvania courts have repeatedly held that it is unnecessary to warn of an inherently dangerous condition of a product about which the ordinary consumer is aware. Hence, defendant Campari USA Inc.’s demurrer to. count VIII is sustained.

Count IX Breach of Warranty

Breach of warranty claims and strict liability under section 402A claims have identical elements. MacDougal v. Ford Motor Co., 214 Pa. Super. 384, 257 A.2d 676 (1969), allocatur denied, October 28, 1969. Warranty claims “must be coextensive with Restatement section 402A in the case of product liability,” Kassab v. Central Soya, 432 Pa. 217, 231, 246 A.2d 848, 854 (1968). Defendant’s, Campari USA Inc., demurrer to count IX is sustained.

Count X Joint and Several Liability

Count X alleges the joint and several liability of all the defendants. As no cause of action against Campari USA Inc. exists, there is no basis on which it could be jointly liable. The demurrer is sustained.

Risk/Utility Theory

Plaintiff argues that strict liability exists because the risks of alcohol outweigh their utility. The risk/utility theory has been rejected by several Pennsylvania courts, Faiella v. Bangor Punta Corp., 42 D.&C. 3d 534 (1985), aff'd without op., 353 Pa. Super. 648, 506 A.2d 1340 (1985); Sunsalus v. Celotex Corp., 674 F.Supp. 1149 (E.D. Pa. 1987); Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485 (E.D. Pa.), aff'd without op., 856 F.2d 184 (3d Cir. 1988). These cases have noted that a risk/utility theoiy would allow courts and juries to make the kind of policy judgments which are reserved for legislative bodies. The legislative bodies of this commonwealth and country have acted to allow the sale of alcohol. See, e.g., Constitution of the United States, Amendment XXI, §§1-2; 47 P.S. §§4-401 through 4-411. These enactments reflect legislative judgments that, under the prevailing social and legal values of our society, the risks associated with the consumption of alcohol do not outweigh the benefits.

Plaintiff has asserted that the recently passed Alcoholic Beverage Labeling Act of 1988, 27 U.S.C. §§212-219a (Supp. 1990) reflects a congressional judgment that the public “does not fully appreciate the hazards presented by alcoholic beverages.” The legislative history of the act directly refutes this assertion.

“The warning label required by this act is basically a reminder of what nearly all Americans already know about the problems of alcohol use and abuse, [statistics omitted] These figures indicated that there is widespread awareness of the health risks associated with alcohol use or abuse. . .” 134 Cong. Rec. S17301 (daily ed. October 21, 1988; remarks of Senator Ford).

A plaintiff must prove a product defect as an essential element of any products liability action, whether the action is negligence, strict liability or warranty. See, e.g., Rogers v. Johnson & Johnson Products Inc., 523 Pa. 176, 565 A.2d 751 (1989); Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989). As plaintiff cannot plead nor prove a defect in Campari’s product, all demurrers are sustained.

ORDER

And now, July 6,1990, the preliminary objections in the nature of a demurrer filed by defendant, Campari USA Inc., are hereby sustained. The complaint against Campari USA Inc. is dismissed with prejudice, and Campari USA Inc. is ordered deleted from the caption of this case.


author: BAYLEY, J.,

text:
    Shatto v. Hood

      Robert L. O’Brien,, for plaintiffs.

      Carol J. Lindsay, for defendant.
    April 10, 1990
   BAYLEY, J.,

Ben and Donna Shatto instituted this suit in equity on September 6, 1988, against defendants David and Resta Hood. Resta Hood has since died. The complaint seeks monetary and injunctive relief for an alleged “vegetative nuisance.” We took testimony on March 28 and 29 and the case is ready for decision.

FINDINGS OF FACT

(1) Plaintiffs and defendant live adjacent to each other in a developed, residential area on York Road in South Middleton Township, Cumberland County.

(2) Defendant planted some bamboo on his land in 1968, approximately 25 to 30 feet away from plaintiffs’ well maintained property. Bajmboo is not indigenous to this area.

(3) Within five years the bamboo was next to plaintiffs’ property. By the following year it had encroached onto plaintiffs’ property.

(4) Plaintiffs asked defendant to eradicate the bamboo from their property and his property so that the encroachment would end permanently.

(5) When defendant did nothing to remove any bamboo on plaintiffs’ property, plaintiffs consulted experts on how to get the bamboo permanently off of their property.

(6) Bamboo has underground stems thát grow several feet deep. The stems spread rapidly and in order to permanently remove them requires that they be dug out below the roots. The plant is very difficult to control. Conventional herbicides and solvents will not permanently eradicate the roots.

(7) In 1988, defendant’s bamboo grew approximately 30 feet into plaintiffs’ yard. In a .three-week period it had expanded approximately 15 feet. It grew several feet tall.

(8) On the advice of experts, plaintiffs spent $3,658.50 which was the amount necessary to eradicate the bamboo on their property, restore their property to the condition that it was before the encroachment, and install a barrier to prevent fu-. ture encroachment.

STATEMENT OF ISSUE

Are plaintiffs entitled to recover damages of $3,658.50, and have an order entered enjoining defendant from encroaching on their property with his bamboo?

DISCUSSION OF QUESTION OF LAW

Defendant maintains that he owes no duty to plaintiffs to prevent the encroachment of bamboo onto their property or to pay damages for such an encroachment. We disagree. In Barker v. Brown, 236 Pa. Super. 75, 80, 340 A.2d 566, 569 (1975), the Superior Court stated:

“Urban living, by altering the purpose for which the land is used, must also bring with it certain responsibilities. A tree growing in an urban or residential area does not have the same natural relation to surrounding land as a. tree located in a rural setting.”

Barker presented a question on the liability of the possessor of land for damages caused by his tree falling upon the property of an adjoining landowner. Reversing a motion for summary judgment entered in favor of the owner of the tree, the Superior Court stated:

“We hold that a possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor:

“(a) would have disclosed the defect and the risk involved therein, and
“(b) would have made it reasonably safe by repair or otherwise.” 236 Pa. Super, at 81, 430 A.2d at 569. (citations omitted) s

CONCLUSIONS OF LAW

We see no difference between a tree that causes damage to a neighbor’s land and a plant that is not indigenous to the land encroaching upon a neighbor’s land and ruining their well maintained lawn. Accordingly, plaintiffs had the right to exercise self-help to eradicate the bamboo; they have a right to an order enjoining defendant from such encroachment; and they have a right to damages. See Marzacco v. Crossley, 9 Lycoming Rep. 32 (1963); Marzacco v. Crossley (No. 1); 29 D.&C. 2d 173 (1962); Ludwig v. Creswald Inc., 7 D.&C. 2d 461 (1956); Covey v. Apfel, 72 D.&C. 420 (1950).

DECREE NISI

And now, April 10, 1990, it is adjudged that:

(1) Defendant, David Hood, is enjoined from encroaching on plaintiffs’ land with bamboo from his land.

(2) Damages are awarded to plaintiff in the amount of $3,658.50.

The prothonotary is directed to enter this decree nisi and send a copy of the adjudication and decree to the parties’ counsel by regular mail. If no exceptions are filed by any party within 10 days after the entry hereof, the decree shall be entered by the prothonotary as a final order.


author: LAVELLE, P.J.,

text:
    In re Muffley

      Joseph J. Matika, for petitioner.
    July 12, 1990
   LAVELLE, P.J.,

Lisa Marie Muffley asks this court to gr.ant her petition to change her surname from Muffley to Maurer. After a hearing on June 15, T990, we shall deny her request.

FACTS

Petitioner is 26 years of age, and was previously married to John R. Muffley. Their marriage produced three children, whose ages are nine, seven, and six years. The three children currently reside with petitioner and are surnamed Muffley. On January 28, 1988, this court granted petitioner and John R. Muffley a consensual divorce. Starting in 1987, before the divorce decree was entered, petitioner and Scott G. Maurer began cohabiting. Petitioner testified that she and Maurer postponed marrying immediately after the entry of the divorce decree to save their money to buy a home and pay for their wedding. Unfortunately, Maurer met an untimely death before he and petitioner were legally married.

Scott’s parents, Charlotte Maurer and George Maurer, testified that they have no objection to petitioner assuming their surname.

Petitioner wants her surname changed because she loves Scott and wants to perpetuate his name.

Creditors of petitioner had notice, as required by the statute, of petitioner’s desire to change her surname and no creditors made any objection to her petition. The natural father of petitioner’s children did not have notice of the petition.

Following the hearing, the court asked petitioner’s counsel whether it was petitioner’s desire that the surname of her three children also be judicially changed. On June 19, 1990, petitioner’s legal counsel, Joseph Matika, Esq., forwarded a letter to the court informing us that petitioner does not desire that the surname of her three natural children be changed from Muffley to Maurer.

DISCUSSION

The statute governing judicial change of an individual’s name is the Act of December 16, 1982, P.L. 1309, §2 (54 Pa.C.S. §§701 through 705. Under section 702„ “[T]he court of common pleas of any county may by order change the name of any person resident in the county.” (emphasis supplied)

The court has wide discretion to grant or refuse a [name change] petition after due hearing and notice. Petition of Alexander, 260 Pa. Super. 371, 374, 394 A.2d 597, 599 (1978), citing Petition of Falcucci, 355 Pa. 588, 50 A.2d 200 (1947). Whenever a court has discretion in any matter (as it has in the matter of a change of name) it should exercise that discretion in such a way as to comport with good sense, common decency and fairness to all concerned and to the public. Alexander, 260 Pa. Super, at 374, 394 A.2d at 599. Moreover, the court is required to enunciate some factual basis to support its decision concerning a name change.

Essentially, petitioner seeks this name change to carry out a marriage plan which her fiance’s death aborted. She seems to believe that, somehow, they can be united and bonded even after his death by now obtaining his surname. We do not believe that the act, permitting the court to judicially change a petitioner’s name, was ever intended to be used as a posthumous substitute for an aborted marriage. There are better, and far more permanent ways petitioner has to honor the memory and carry on the name of Maurer than for this court to change the name of a 26-year-old nubile petitioner with three minor children. For example, she could plan a tree in his memory or establish a. high-school award in his name for worthy students.

It is primarily because of the children, however, that we deny the petition. Petitioner states that she does not want the surname of her three children changed from their birth name to Maurer.

“[I]n all cases affecting children, they are the ones to be kept in mind by the court disposing of such [change of name] cases.” Rounick’s Petition, 47 D.&C. 71, 73 (1947).

If we were to grant petitioner’s request for name change, her surname would differ from that of her children. This would immediately create disparity in the family unit. It would also cause her children, all of whom are in elementary school, unnecessary hardship. Courts are continually being asked to grant petitions for change of name and adoption to save children the embarrassment of being asked by their classmates why their names differ from their parents. It would be naive of us to think that this would not happen here. We are unwilling to subject petitioner’s children to this humiliating inquisition, potential ridicule, and the appearance of illegitimacy.

Moreover, we have no evidence that petitioner’s children understand the meaning and significance of a change of their mother’s surname or how they would react to their mother carrying the surname of a man with whom she cohabited briefly but did not marry.

The rec'ord in this case simply does not move the court to exercise its discretion in favor of petitioner because we believe that more harm than good will follow.

We, therefore, enter the following

ORDER OF COURT

And now, July 12, 1990, upon consideration of the instant petition to change name, and the testimony offered to this court, it is hereby ordered and decreed that Lisa Marie Muffley’s prayer for change of name is hereby denied and said petition is dismissed.

      Title 54 Pa.C.S. §703 states:
      “(a) General rule — Whenever an order is made under this chapter changing the surname of anyone who is at the time thereof the parent of a minor child or adopted minor child, then under the care of such parent, the new surname of such parent shall, unless otherwise ordered by the court, thereafter be borne likewise by such minor child.”


author: SALUS, J.,

text:
    Williams v. Celina Group

      Lawrence D. Levin, for plaintiff.

      Roger T. Margolis, for defendant.
    June 11, 1990
   SALUS, J.,

On appeal from the court order of April 17, 1990 appointing an arbitrator, providing for the start of arbitration proceedings and denying the appellant’s request for leave to amend its answer to include a count seeking declaratory judgment, the appellant claims the following error:

(1) The court erred in finding that arbitration was appropriate where plaintiff/appellee had not exhausted all other potential sources of recovery before proceeding against the appellant/insurer of the municipality.

FACT SUMMARY

On July 1, 1989 the appellee suffered injuries as a result of the negligence of an uninsured motorist. At the time of the injury the appellee was acting within the scope of his employment as a police officer for Lower Gwynedd Township. The appellee’s complaint claimed that arbitration was appropriate even though no provision in the municipality’s uninsured motorist coverage specifically provided for arbitration.

DISCUSSION'

The Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. §1701 (1984) provides that:

“The coverage required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workers’compensation benefits payable as a result of the same injury.” 75 Pa.C.S. §1735. This relationship between the Workers’ Compensation Act and the MVFRA was dis-. cussed in full by the United States District Court in American National Fire Insurance Company v. Stewart, 709 F.Supp. 641, 642 (E.D. Pa. 1989). In its decision the court reasoned as follows:
“In Selected Risks Insurance Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989), the Pennsylvania Supreme Court discussed the relationship between the Workmen’s Compensation Act and the MVFRA. There, an employer’s insurance contract provided that any uninsured motorist liability would be reduced by money paid or payable under workers’ compensation laws. The Pennsylvania Supreme Court held the provision void as against public policy, explaining that section 1735 of the MVFRA [quoted above] ‘is certainly a persuasive statement of what the legislature perceives as the appropriate public policy in dealing with [workmen’s compensation] setoffs.’ Id. 522 A.2d at 1386.
“Following the reasoning of the Pennsylvania Supreme Court in Selected Risks, I find that the fact that the plaintiff received workmen’s compensation benefits for his injuries does not preclude him from recovering uninsured motorist benefits under his employer’s policy.”

In the instant case, as in Stewart, the fact that the appellee received workmen’s compensation should not preclude him from recovering uninsured motorist benefits under appellant’s policy. On the same basis, the appellee should not be required to exhaust all other remedies before filing for uninsured motorist benefits because the appellee’s other recovery does not afféct his ability to recover uninsured motorist benefits.

Prior cases such as Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), held that workmen’s compensation was the exclusive remedy available to an employee. Therefore no uninsured motorist benefits were available for a work-related accident. These cases can be distinguished from the case at bar because in these cases the accidents occurred before the MVFRA took effect. The MVFRA differs from prior law with respect to uninsured motorist coverage in primarily two manners: it came into effect after rather than before the Workmen’s Compensation Act and it specifically covers the issue of recovery of unin: sured motorist benefits in addition to workmen’s compensation. Therefore, now that the MVFRA is the controlling law in this instance, uninsured motorist benefits may be recovered in addition to other verdicts.

The appellant failed to appeal the issues of governmental immunity and the propriety of their right to arbitration. Therefore, the right to appeal these issues has been waived.


author: RUBRIGHT, J,

text:
    Commonwealth v. Rowlands

      James G. Caravan, assistant district attorney, for the commonwealth.

      Blair P. Warner, for defendant.
    July 6, 1990
   RUBRIGHT, J,

This matter is presently before the court on defendant’s omnibus pretrial motion in which he seeks the dismissal of the charges against him on the grounds that his arrest was in violation of the Municipal Police Jurisdiction Act, 42 Pa.C.S. §8953, or in the alternative, he seeks dismissal of the charges due to the commonwealth’s failure to establish a prima facie case' at the preliminary hearing. Counsel have agreed that the court may rule on the motion based on a review of the preliminary hearing transcript and the briefs submitted by counsel. We are now prepared to do so.

The facts of the case are essentially undisputed. On March 12, 1990, Minersville Borough police officers Andrew Rose and Michael Conway were on duty and in uniform. They drove from the Borough of Minersville into Cass Township on an investigation unrelated to defendant. At the Cass Township housing project in the 700 block of Sunbury Street, Officer Rose saw two individuals sitting on a stoop drinking what appeared to be beer. The two individuals entered an apartment at 722 Sunbury Street. Officer Rose recognized one of the individuals as defendant, whom he knew to be under 21 years of age. Officer Rose parked the police car and then approached and entered the apartment at 722 Sun-bury Street after speaking with one of the residents. He placed defendant under arrest for underage drinking and told him he would have to go with the officers to the Minersville police station. While he was being arrested,' defendant became loud and abusive toward Officer Rose. As a result, he has been charged with resisting arrest, disorderly conduct and terroristic threats. He argues that those charges should be dismissed because Officer Rose had no authority to arrest him for underage drinking.

The Municipal Police Jurisdiction Act, 42 Pa.C.S. §8953, provides in pertinent part:

“(a) General rule — Any duly employed municipal police officer who is within this commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
“(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.”

The commonwealth concedes that Officer Rose had no authority to arrest defendant under subsection (5) because underage drinking is a summary offense. However, we are urged to find that he did have authority to arrest defendant under that subsection because, after Officer Rose entered the apartment, defendant began to yell and curse at him. We cannot accept this argument. As stated in Commonwealth v. Ebersole, 342 Pa. Super. 151, 492 A.2d 436 (1985), “[a] careful reading of the subject statute reveals that its purpose is to provide police officers with authority to make arrests outside of their primary jurisdictions in limited situations. “ (emphasis added) Officer Rose had absolutely no authority under the act to either investigate what he suspected to be underage drinking taking place outside of his primary jurisdiction or to arrest defendant for such an offense. He was not engaging in activity of a type allowed by the act when he approached the apartment for the sole purpose of arresting defendant for a summary offense. If there had been compliance with the act, Officer Rose would not have even attempted an arrest of defendant for underage drinking and defendant would not have been subsequently arrested for resisting arrest, disorderly conduct and terroristic threats, all of which resulted from the initial unlawful arrest. While we believe it would be inappropriate to order dismissal of those charges, we find that the appropriate remedy is suppression of all evidence obtained as a result of the unlawful arrest.

Based upon our disposition above, we need not address defendant’s motion to dismiss for failure to establish a prima facie case at the preliminary hearing. We enter the following

ORDER

And now, July 6, 1990, upon consideration of the preliminary hearing transcript and the briefs of counsel, it is hereby ordered that defendant’s omnibus pretrial motion attacking the legality of his arrest is sustained and all evidence obtained as a result of the unlawful arrest is suppressed.


author: MORAN, J.,

text:
    Reiman v. Erie Insurance Co.

      John Vivian, for plaintiff.

      David M. McCormick, for defendant.
    June 22, 1990
   MORAN, J.,

The matter presently before the court involves two requests by defendant. First, defendant offers a motion for judgment on the pleadings. Second, defendant petitions the court to permit withdrawal of admissions pursuant to Pa.R.C.P. 4014(d).

Plaintiffs have filed this suit seeking payment of an accidental death benefit under a policy of insurance issued by defendant. Plaintiffs’ claim for said benefit is based on the death of an unborn fetus (in the 19th week of gestation) that allegedly resulted from a vehicular accident in which plaintiff Hope E. Reiman was involved.

As defendant’s motion for judgment on the pleadings depends in significant part on resolution of the issue concerning withdrawal of admissions, we will consider the latter first.

In September 1988, plaintiffs served a request for admissions on William Ross, Esq., who apparently was acting at that time as defendant’s counsel with respect to plaintiffs’ claim for underinsured motorist benefits. The request for admissions received no response, and on August 1, 1989 the Honorable Michael Franciosa of this court directed defendant to respond within 30 days. This order was directed to Mr. Ross as counsel for defendant. On August 22, 1989, Mr. Ross and his associate, Joanne Kelhart, filed a praecipe with the court for withdrawal of áppearance. However, plaintiffs’ request for admissions were not transferred from Mr. Ross to appropriate counsel for defendant until December 22,, 1989. On January 8, 1990, defendant’s answers to plaintiffs’ request were prepared by new counsel and filed with the court.

Under Pennsylvania law, this court may permit withdrawal of admissions when the preservation of the merits of the action will be promoted thereby and when the party who obtained the admissions fails to satisfy the court that withdrawal will prejudice him in maintaining his action on the merits. Pa.R.C.P. 4014(d).

In support of a showing of prejudice, plaintiffs contend that allowance of defendant’s withdrawal of admissions would “require plaintiffs to rethink, reargue and undergo a complete restructuring and re-evaluation of their arguments on defendant’s motion for judgment on the pleadings.” This is not the type of prejudice contemplated by rule 4014(d). The rule must be interpreted in accord with the public policy that favors resolution of an action on its merits rather than a summary judicial determination made as a penalty for improvidence or inadvertence. Goodrich-Amram 2d §4014(d)(3).

Absent any actual prejudice shown by plaintiffs, we grant defendant’s petition for withdrawal of admissions.

Defendant’s next contention is that it is entitled to judgment on the pleadings pursuant to Pa.R.C.P. 1034. A motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa. Super. 267, 476 A.2d 1322 (1984). In ruling qn defendant’s motion, we must consider as true all well-pleaded averments of plaintiffs and consider against them only those facts which they specifically admit. Id.

We note that defendant’s present motion is limited exclusively to the pleadings themselves and therefore no outside material will be considered. Harvey v. Hansen, 299 Pa. Super. 474, 445 A.2d 1228 (1982).

Based on our review of the pleadings in this matter, we are convinced that the relief sought by defendant in its present motion should be granted.

At the outset we recognize that plaintiffs’ claim for relief in this suit is contractual, based on the accidental death benefit provisions contained in the insurance policy issued by defendant. Because the subject insurance policy is a contract, interpretation of its terms should be made in light of the apparent object and intent of the parties. O’Donnell v. Independence Life & Accident Insurance Co., 229 Pa. Super. 259, 323 A.2d 387 (1974). However, where the words of a written contract are clear and unambiguous, intent of the parties must be determined by the agreement itself. Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957).

Thus, whether the accidental death benefit of the policy affords coverage to the unborn fetus of Mrs. Reiman depends upon the object and intent of the contracting parties. With that in mind, we look initially to the specific language of the agreement.

The automobile insurance policy issued by defendant in this case defines “insured” as:

“(A) if a resident of your household (even if temporarily residing elsewhere):
“(1) your spouse:
“(2) other relatives; or
“(3) a minor in your custody or in the custody of your relative;
“(B) any individual specifically named in the' policy as an insured.” (emphasis in original)

The plain meaning of the contractual terms used in the subject policy is clear and unambiguous. The insurance policy extended accidental death benefit coverage to relatives and minors residing in the household. The policy cannot reasonably be interpreted to afford coverage to the unborn fetus of Mrs. Reiman. Rather, the specific language must be construed to include only adult relatives and minors in the insured’s custody.

A minor is a person between birth and age 18. Similarly, the term “custody” in the context of the policy provision refers to the care and control of a person after birth and until his or her 18th birthday. These concepts do not include the unborn. Otherwise stated, a fetus is not in the “custody” of its mother or father in the normal usage of that term. Hence, the contracting parties cannot be presumed to have given either the term “custody” or “minor” such unusual and uncommon meanings.

Our determination regarding the plain meaning of the policy language results in a narrow holding based strictly on principles of contract interpretation. We recognize, that under general tort principles of Pennsylvania law, as annunciated by our Supreme Court, a fetus is considered a human life from the moment of conception, and is afforded appropriate protection pursuant to those principles. Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985). Moreover, we note that the standard for determining whether an unborn fetus can properly assert a claim in wrongful death and survival actions is based on viability. Coveleski v. Bubnis, 391 Pa. Super. 409, 571 A.2d 433 (1990). However, our research indicates that no such interpretation is required or even suggested under Pennsylvania contract law.

Given the ruling in Amadio, supra, we assume that an insurance company and its insured could contract for the protection of an unborn fetus. We determine in this case, based upon the clear language of the subject policy, that such an arrangement was hot undertaken by the contracting parties.

As a result, while parents and third parties have certain recognized tort responsibilities with respect to a fetus, an insurance company contracting for first-party benefits will not be deemed to be required to afford coverage to an unborn fetus of its insured, unless such insurance coverage is specifically provided by the plain language of such a policy.

Thus we deem it proper to grant the motion of defendant for judgment on the pleadings.

Wherefore, we enter the following

ORDER

And now, June 22, 1990, defendant’s petition for withdrawal of admissions is granted. Also, the motion of defendant for judgment on the pleadings is granted.


author: GARB, P.J.,

text:
    Mylett v. Adamsky

      Linda K. Caracappa, for plaintiffs.

      James Daly, for defendant Doylestown Township.

      July 3, 1990
   GARB, P.J.,

Plaintiffs have appealed to the Commonwealth Court from our order of May 7, 1990. By that order, we granted summary judgment in favor of defendant, Doylestown Township.

This is a death action. On the night in question, plaintiffs’ decedent was a passenger in a» motor vehicle operated by defendant, Adamsky. Adamsky and the decedent were proceeding on the Edison Furlong Road which is a thoroughfare containing two lanes. It was a dark, stormy night, and a tree had fallen completely across the roadway. The roadway was unlighted, and the vehicle collided with the tree. As á result, the decedent was killed..

The highway in question is a Pennsylvania State Highway. It is located within Doylestown Township. After the fall of the tree, and before the accident, Doylestown police officers had discovered the condition. They placed flares in the roadway to warn oncoming motorists of the danger. However, after having done so, they were called away on a criminal report and left the scene. While they were gone, the flares went out. They returned to the scene and rekindled the flares and then again left the scene. Pennsylvania Department of Highways had previously been advised of the condition in the roadway and had taken no action to correct it or to warn the traveling public. Thereafter, the accident occurred.

The foregoing facts are uncontested on this record. They are all the facts necessary to warrant our order.

A motion for summary judgment is properly granted when the moving party has established that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Hall v. Acme Markets Inc., 110 Pa. Commw. 199, 532 A.2d 894 (1987). In making this determination, all well pleaded facts in the non-moving party’s pleading must be accepted as true. Harding v. Galyias, 117 Pa. Commw. 371, 544 A.2d 1060 (1988). See Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d 398 (1989).

The Local Agency Tort Claims Act provides that except as specifically provided, no local agency shall be liable for any damages on account of any injury caused by any act of the local agency or an employee thereof. See the Act of October 5, 1980, P.L. 893, no. 142 §221(1), 42 Pa.C.S. §8541. This statute was enacted by the legislature in response to the abrogation by the Supreme Court of the previously judicially created doctrine of governmental immunity. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). This act legislatively created governmental immunity against any damages on account of any injury caused by any act of a local agency or employee thereof except as provided by the act. 42 Pa.C.S. §8542 sets forth the exceptions referred to in section 8541. The exceptions must be narrowly construed in view of the expressed legislative intent to insulate political subdivisions from tort liability. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). Title 42 Pa.C.S. §8542 provides that a local agency shall be liable for damages on account of injury within the limits set forth therein if the damages would be recoverable under common law or statute creating a cause of action if the injury were caused by a person not having available a defense under this act and the injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in (b) of that section. The ‘only possible exceptions applicable to this case are exceptions (4) and (6). They provide in relevant part as follows:

“(4) Trees, traffic controls and street lighting — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency. . .
“(6) Streets — A dangerous condition of streets owned by the local agency. . .”

We believe it is clear that the facts of this case do not activate the “streets” exception. That exception applies only to dangerous conditions of streets “owned by the local agency.” This highway was a state highway and was not owned by the local agency. As such, the township had no responsibility or duty to maintain this highway, and cannot be held liable for injuries occurring as a result of negligent maintenance of it. ,See Campbell v. Commonwealth of Pennsylvania, Department of Transportation, 105 Pa. Commw. 494, 524 A.2d 1066 (1987). By analogy, the “sidewalks” exception provides for liability for injury resulting from a dangerous condition of sidewalks within the right of way of streets owned by the local agency. It was held in Bruce v. Gadson, 121 Pa. Commw. 159, 561 A.2d 74 (1989) that the city is neither primarily nor secondarily liable for injuries occurring as a result of a negligently maintained sidewalk within the right of way of a state highway and not owned by the local agency.

It is the contention of plaintiff, however, that the township assumed liability by virtue of the officers having set about to set flares in order to warn the public and having allegedly done so negligently. It is argued that defendant, township, thereby assumed custody and control of the highway. However, the court held in Bruce v. Gadson, supra, that the alleged assumption of control is irrelevant under the sidewalk exception which we believe to be significantly indistinguishable from the streets exception, where it is established that the sidewalk is in the right of way of a state highway rather than the local agency. Here, clearly, the highway belongs to the commonwealth and not to the township. Therefore, any assumption of control by the local agency is irrelevant.

We are equally convinced that this cause of action does not fall within the “trees” exception. The tree in question was not “under the care, custody or control” of the township. It was not within the right of way of a township road nor was it situate upon township property. Where it had fallen, it had come to rest in a state highway and not on a township street or road. The township had no duty or obligation to do anything respecting this condition. That is not to say that the township officers should have ignored this situation and refrained from taking whatever reasonable actions were required to protect the public. In setting about to act, they may, conceivably, have acted negligently. However, the question is not whether or not they acted negligently, but rather whether their negligence relates to one of the specific exceptions, which must be narrowly construed, to the governmental immunity act. See Grula v. Commonwealth of Pennsylvania, Department of Transportation, 123 Pa. Commw. 458, 554 A.2d 593 (1989). At no time, and under no circumstances, did the township have any care, custody or control of this tree prior to the moment when the township police officers discovered the condition of it lying in the highway. We do not believe that their efforts to set out flares as a warning constitutes the assumption by the township of the care, custody and control of this tree as those terms are used and intended by the legislature in this Act of Assembly. We believe that it was the intention of the legislature in creating this specific exception that there be liability where a local agency negligently maintains and permits a dangerous condition to prevail over trees, traffip signs, lights or other traffic controls, street lights or street lighting systems which are under the care, custody and control of the municipality. That condition did not exist in this case, and the police officers’ efforts, appropriate or otherwise, to take some emergency protective actions, did not extend to the municipality the care, custody and control of this tree.

The foregoing explains the order from which this appeal has been taken.


author: RAUP, P.J.,

text:
    In re Callahan Settlement Proceeds

      Marc S. Drier, for petitioners.

      Richard J. Callahan, for respondents.
    November 8, 1989
   RAUP, P.J.,

Petitioners Marshall and Drier, attorneys at law, have petitioned for payment into court or into joint escrow account 33 and oneAhird percent of the gross personal injury claim proceeds of an action arising from an automobile accident in which Joni Brion and her minor son Kelly Brion were involved on January 23, 1988. We deny the petition for the reasons set forth below.

All parties agree to the following facts: Joni Brion and her minor son Kelly Brion sustained1 injuries in an automobile accident on January 23, 1988. On or about February 2, 1988, Ms. Brion entered into a contingent fee agreement with the law firm of Marshall and Drier (petitioners). The agreement provided that the petitioners would receive 33 and one-third percent of the gross recovery if the case was settled before trial; 33 and one-third percent of the gross amount recovered if tried; and 33 and one-third percent of the gross amount recovered if the case was appealed beyond the court of common pleas. Petitioners continued to represent the Brions until December 1, 1988, when Ms. Brion advised them that she had retained the law firm of Miele and Callahan to complete the action. She did not, however, indicate that petitioners had breached their contract with her or committed any act of legal malpractice, but only that she preferred Miele and Callahan’s services.

Petitioners turned their work product and files over to Miele and Callahan for completion of the contract, but requested the other motorist’s insurance carrier to place petitioners’ firm name on any settlement check. Petitioners also requested Miele and Callahan and Ms. Brion to notify petitioners of any significant developments in the matter.

Neither the insurance carrier, Ms. Brion, nor Miele and Callahan agreed to these requests. Thereafter, Marshall and Drier filed this petition, claiming that it has a charging lien on the settlement funds in the hands of Ms. Brion and her son in an amount equal to one-third of the settlement fund created.

Miele and Callahan succeeded in settling the action, and payment of the settlement proceeds is imminent. Petitioners urge that they are entitled to a charging lien against 33 and one-third percent of the gross settlement payments.

Respondents argue that the charging lien is inappropriate as petitioners had been discharged and it was respondents who settled the case. At most, respondents argue that petitioners are entitled to recover for their services on a quantum meruit basis.

An attorney is entitled to a charging lien if:

“(1) there is a fund in court or otherwise applicable for distribution on equitable principles,
“(2) that the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid,
“(3) that it was agreed that counsel look to the fund rather than the client for his compensation,
“(4) that the lien claimed is limited to costs, fees, or other disbursements incurred in the litigation by which the fund was raised, and
“(5) that there are equitable considerations which necessitate the recognition and application of the charging lien.” Recht v. Clairton Urban Development Authority, 402 Pa. 599, 608, 168 A.2d 134, 139 (1961).

After applying these criteria to the facts in the present case, we find that petitioners are not entitled to a charging lien. Our reasons are nearly identical to those set forth in Johnson v. Stein, 254 Pa. Super. 41, 385 A.2d 514 (1978). The case arose from a fee dispute between two attorneys. The plaintiff attorney had represented the plaintiffs in a tort case on a contingent fee basis. At the time he began his representation, he was an associate in the defendant’s firm and had been assigned to work on the case. Prior to settlement, the plaintiff was discharged, but the case remained in defendant’s office. Thereafter, the defendant negotiated a settlement. The plaintiff filed a notice of attorney’s lien, and the defendant paid the proceeds of the settlement into court. The trial court entered an order striking plaintiff s attorney’s lien and plaintiff appealed.

The Superior Court upheld the trial court’s decision. After citing the requirements for a charging lien as set forth in Recht, supra, it found that the fifth requirement had not been met. The court explained that:

“Requirement (5) focuses attention on the fact that there must be ‘considerations which necessitate’ imposition of a lien if the attorney whose efforts brought about the existence of a fund is to be paid for his services.” Johnson at 44, 385 A.2d at 516.

The Superior Court explained that the imposition of a charging lien is based on the court’s interest in protecting attorneys as officers of the court and making sure that a client does not “reap the fruits of the settlement without compensating the attorney without whose effort the settlement would not have been obtained.” Id. Therefore, the court continued, a charging lien will be imposed “where the fund from which the attorney’s fee is to come would be depleted by creditors with prior claims, leaving the attorney unpaid and unable to recover against his client . . . Where considerations of protecting the attorney do not necessitate imposition of a lien, the court will not impose one.” Id.

The court cited several factors to be used in determining whether conditions which necessitate imposition of a lien exist. They are: whether a client is attempting to defraud counsel; whether the client is insolvent; whether an adverse or third party is attempting to appropriate the fund; and, citing U.S. v. Fidelity Philadelphia Trust Company, 459 F.2d 771, 778 (3d Cir. 1972), whether there is anything in the record to indicate that the attorney is or will be precluded from pressing his claim directly against his client. Johnson at 45, 385 A.2d at 516.

With respect to the present case, we find that requirements 1, 3, and 4 have been met. Although the fund is not presently in court, settlement proceeds are available to be paid, and are therefore “otherwise applicable for distribution.” Under the contingent fee agreement, it was agreed that counsel would receive 33 and one-third percent of the recovery, and it is clear that petitioners’ claim is limited to costs, fees and other disbursements.

The parties dispute whether petitioners’ services “operated substantially or primarily to secure the fund,” as required by the second criterion. Neither party has made clear exactly what services they performed; however, we decline to resolve this issue as we conclude, as did the court in Johnson, supra, that requirement 5 has not been met.

Looking at the factors which the Johnson court set forth in considering whether protecting the attorney necessitates imposition of a lien, petitioner has not shown that any of those factors exist. We therefore conclude that petitioner is not entitled to a charging lien.

Despite the fact that we find petitioner is not entitled to a lien, we do note that petitioner might well have a valid cause of action in quasi-contract against respondents and for breach of contract against the clients. As the Superior Court said in Johnson at 46, 385 A.2d at 517:

“Implicit in what has just been said is the conclusion that there is an appropriate action by which appellant may have his claim against appellee adjudicated. In this regard, we note that the apparent absence of an agreement between the parties does not preclude an action by appellant, for recovery may be sought on a theory of quasi-contract, or contract implied-in-law. . .”

ORDER

And now, November 8, 1989, for the reasons set forth in the foregoing discussion, it is hereby ordered and directed that the petition of Marshall and Drier for a charging lien is hereby denied.


author: DOLBIN, J.,

text:
    Commonwealth v. Padelsky

      Claude A.L. Shields, district attorney, for the commonwealth.

      William C. Reiley, for defendant.
    July 10, 1990
   DOLBIN, J.,

A hunter on his quest for game, Must see a bird and then take aim.
For if he shoots sans diligence He’ll answer for his negligence.

This matter comes before the court on defendant’s petition for writ of habeas corpus contending that the commonwealth failed to establish a prima facie case before the magistrate.

Defendant was placed under arrest on or about November 21, 1989 for shooting at or causing injury to another human being while hunting game. The section of the Pennsylvania Game and Wildlife Code allegedly violated reads as follows:

“It is unlawful for any purpose while hunting dr furtaking, through carelessness or negligence, to shoot at, injure or kill any human being through the use of a firearm, bow and arrow or other deadly weapon.”

The relevant facts disclose that the victim and defendant were hunting near the intersection Route 901 and the Airport Road, the victim having concealed himself in dense brush while he called turkeys. He heard an answering call to his call, moved his head up from the place of concealment and was shot in the face with three pellets. He testified defendant was approximately 70 feet away, and after the shot, the defendant said, “I’m sorry, I thought you were a turkey.”

The Pennsylvania Game Commission and Wildlife Conservation Officer testified that he investigated the incident and interviewed defendant who told him that he had been grouse hunting and heard a turkey call which he answered. He said he thought he saw a turkey’s head move up and down in the heavy brush and although he did not see a turkey, he fired his weapon. The game warden further testified that the area was covered with heavy thicket and had very limited visibility but that he could see the area where the victim was located from defendant’s position.

In order for defendant to be held for á violation of this section, it is necessary that he exhibit carelessness or negligence in shooting at a human being. 34 Pa.C.S. §2522(a).

Negligence is defined in the Criminal Code under section 302 as follows:

“A person acts negligently with a respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

There is no definition given in the Criminal Code for carelessness and resort is therefore made to the Standard Jury Instructions or civil cases having to do with ordinary care. Civil Standard Jury Instructions, section 3.02 gives the following definition:

“Ordinary care is the care a reasonably careful person would use under the circumstances presented. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injuiy to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by the law must be in keeping with the degree of danger involved.”

In order that defendant be held to answer the within charges he must have failed to observe the above standards relating to carelessness or negligence.

The sport of turkey hunting is a dangerous one as are most other endeavors which involve firearms. Tom Turkey is a wily creature, sensitive to the sights and sounds of the hunter who generally stalks his prey from a place of concealment. The victim in the instant case even removed his orange vest lest his quarry observe him and be spooked. Moreover, those who seek the gallinaceous gobbler employ turkey calls by voice or instrument which are designed to attract the bird by pretending to be another turkey, either a friendly male or an attractive female. Some of these sounds are so genuine that no turkey in his right mind could resist the invitation to gregarious gathering. Once the unsuspecting bird presents himself in response to the seductive gobbling, he is rewarded by a barrel or two of buckshot and carried home to decorate the hunter’s mantelpiece or .dinner table.

Because of the hazards involved in seeking'out the friendly fowl, ordinary care would require that a turkey hunter first see the fowl before firing. If a hunter merely hears a distant gobble or sees a furtive movement in the thicket, he may not in safety discharge his fowling piece without further finding that he is shooting at his game and not at a gentleman gamester engaged in like pursuit. There is surely a risk involved in firing through thick brush at what one perceives to be a turkey, without further identifying a turkey’s head, wattles, beak, hackles, blade, breast, sickle feathers, hock or claw which gives the hunter some clue that he is about to dispatch a friendly turkey and not a fellow traveler employed in kindred activity.

We believe the law is reasonable enough to require that reasonable men act reasonably in the bush as in business, in the forest as by their fireside and in the hills as in their homes.

To discharge a deadly weapon at a distant target without identifying the object fired upon is to risk death or disabling and painful injury to a fellow nimrod. The sport of hunting is a grand outdoor adventure engaged in by millions of our citizens. If those who take up the sport disregard the risk involved, then calamity will cause chaos and careless crackshots will cause corpses and cadavers to cover the countryside.

We hold that the commonwealth has presented a prima facie case against defendant who was careless or negligent in his activities on November 11, 1989 in Foster Township, Schuylkill County, Pennsylvania while turkey hunting. District Justice Moran properly returned the case to court.

Defendant’s petition for writ of habeas corpus is dismissed.


author: UHLER, J.,

text:
    Commonwealth v. Runkle

      John D. Flinchbaugh, assistant district attorney, for the commonwealth.

      Barbara Lee Krier, for defendant.
    June 29, 1990
   UHLER, J.,

Before the court is an omnibus pretrial application of James Anthony Runkle to dismiss the pending driving under the influence charge, on grounds of double jeopardy pursuant to Article 1, section 10 of the Pennsylvania Constitution; the Fifth Amendment of the United States Constitution, as applied to the states through the 14th Amendment; and 18 Pa C.S. §§109-110, or in the alternative, estoppel.

The underlying facts are that defendant, James A. Runkle, on February 4, 1990, was operating a tractor-trailer on Route 30. The tractor-trailer struck a building in Abbottstown Borough, Adams County, Commonwealth of Pennsylvania, and continued in its eastward path into York County. The top portion of the trailer was lodged in the Abbottstown building as a result of the accident. The damaged tractor-trailer operated by defendant left a trail of debris, consisting of the trailer cargo, until he was brought to a stop in Jackson Township, York County, Pa. Based upon investigation, the Jackson Township officer immediately determined that charges of driving under the influence and two summary offenses relating to the trailer’s condition were warranted. The Pennsylvania State Police stationed at Gettysburg, Adams County, Pa., likewise charged defendant with driving under the influence, and the summary offenses of driving at an unsafe speed, failure to stop, and that defendant left the accident scene and failed to report the same.

Factually, the commonwealth does not challenge that Runkle’s eastward movement, undoubtedly precipitated by his unsober condition, charioted him from the collision site at the Adams County building to his debris-strewn travel and stop in Jackson Township, York County. There is no evidence suggesting Runkle came to a stop in Adams County. The flow of Runkle’s action compels the court to conclude the incident was a single criminal episode.

Notwithstanding the contemporaneous filing times, the Adams County case relating to Runkle, was the first to be disposed of by way of the pretrial diversionary ARD program as recommended by the district attorney of Adams County. Runkle further plead guilty to the summary offenses filed in Adams County.

In York County, Runkle plead guilty to the York County summary offenses; however the within omnibus pretrial motion seeks dismissal of the local DUI charge by reason of the Adams County ARD disposition. It is further stipulated as of the date of the application Runkle has not completed the ARD conditions imposed by Adams County.

While it is likely that similar cases would have been encountered within the court system on the numerous occasions wherein a DUI offender must have traveled from one county to another and prosecution was sought in both, the court’s research indicates the same is one of first impression.

Having found the incident in Adams and York counties was of the same criminal episode, it is further obvious that the offense of driving under the influence charged in both Adams and York counties is the same statutory provision. Consequently, the York County court has before it an undisposed charge of DUI challenged on a double-jeopardy basis or estoppel by reason of the prior Adams County ARD disposition of the same charges arising out of the same criminal episode.

The court notes at the outset, that under common law, all criminal offenses were said to be committed against the “peace of the county” which historically resulted in focus upon jurisdictional boundaries since the subject matter of jurisdiction of a criminal act extended to offenses committed within the county. Commonwealth v. Simione, 222 Pa. Super. 376, 294 A.2d 921 (1972), followed by Commonwealth v. Nicholson, 294 Pa. Super. 435, 440 A.2d 545 (1982).

The concept of “county” or “dual” sovereignty has eroded, however, with the adoption by the legislature of the Judicial Code, Act of July 9, 1976, P.L. 586, no. 142, implementing section 1 of Article V of the Constitution of Pennsylvania providing for a unified judicial system, 42 Pa.C.S. §301. It has been held that the 67 courts of common pleas of this commonwealth represent a single sovereignty for double-jeopardy purposes; thus barring the separate prosecution of an accused with the same criminal charge for a single criminal act. Commonwealth v. Downs, 334 Pa. Super. 568, 483 A.2d 884 (1984).

Since the underlying offense charged was part of the same criminal episode and resulted in the same misdemeanor charge filed in both Adams and York counties, the court finds, given the commonality of the charge, that the ARD acceptance by the Adams County court operates as an automatic deferral of any actions sought to be pursued in the York County court by reason of the Pennsylvaniá Rules of Criminal Procedure. See rules 180 and 181.

In light of the foregoing, the court finds that if the defendant either successfully completes the ARD disposition resulting-in dismissal of the DUI charge, or violates the ARD conditions resulting in disposition by trial or pleas in Adams County, the commonwealth in York County would be estopped from pursuing the local DUI charge at issue. Commonwealth v. McSorley, 535 Pa. Super. 522, 483 A.2d 15 (1984).

Only in the unlikely event (since the initial accident site and principle property damages occurred in Adams County) of non pros without disposition of the DUI charge in Adams County, would the York County court be in a position to proceed with the within DUI charges now before it.

ORDER

And now, June 29, 1990, upon consideration of the.within motion, it is ordered:

That the motion to dismiss on grounds of “double jeopardy” of the within DUI charge is denied without prejudice to resubmission in the event of successful completion by defendant of the Adams County Accelerated Rehabilitative Program or disposition other than a non pros of the Adams County DUI offense; at which time the same shall be granted, and that all proceedings on the within DUI charges are stayed or deferred pursuant to rules 180 and 181 of the Pennsylvania Rules of Criminal Procedure as a result of the Adams County proceeding, with time thereunder charged to defendant under rule 1100.


author: KEELER, J.,

text:
    Schreffler v. Pennsylvania Insurance Guaranty Association

      TV. Russell Carmichael, for plaintiff.

      Hugh M. Emory, for defendant.
    January 12, 1990
   KEELER, J.,

Defendant, Pennsylvania Insurance Guaranty Association, has filed preliminary objections in the nature of a demurrer to plaintiffs complaint. The basis for this preliminary objection is that the complaint fails to set forth a cognizable cause of action. The complaint enumerated three counts as bases for the recovery: bad-faith failure to settle a prior case, punitive damages, and strict liability for failure to settle prior litigation. The parties briefed their various positions with respect to the preliminary objections and counsel were afforded an opportunity to orally advocate their client’s respective positions at a hearing held on October 19, 1989.

Before addressing the legal issues presented by the preliminary objections, a review of the history of the claim is in order. In 1982, the plaintiff filed a wrongful death and survival action against Richard and Jean Keenan, trading as Keenan’s Tavern. Plaintiffs decedent was fatally injured in an automobile accident after he had been drinking at Keenan’s Tavern.

Keenan’s Tavern purchased premises liability insurance coverage and liquor liability insurance coverage from Amherst Insurance Company. This company became insolvent and the Schreffler claim was subsequently handled by PIGA. In 1985, PIGA filed a declaratory-judgment action seeking a determination of the nature and extent of the insurance coverage available under the Amherst policy. This court determined that $75,000 of insurance coverage was available under the policy issued to Keenan’s Tavern. In the previously filed wrongful death and survival action case, plaintiffs counsel made a demand for $75,000 in order to settle his client’s claim. PIGA did not respond to this demand within the time parameters set by plaintiffs counsel. Thereafter, the Keenans, as individuals, stipulated to the entry of a judgment in the amount of $1,042,535 in favor of plaintiff. In addition, the Keenans assigned any rights that they might have to prosecute an action against PIGA for its bad-faith refusal to settle the claim asserted by plaintiff. Plaintiff filed this action directly against PIGA asserting PIGA’s bad-faith refusal to settle the prior complaint for the $75,000 demand.

The Pennsylvania Insurance Guaranty Association is a creature of statutory creation. 40 P.S. §1701.101 et seq. It is designed tó handle claims of insolvent insurers within the commonwealth. Funding for the insurance guaranty association derives from assessments made against insurers who write property and casualty insurance policies in Pennsylvania. The fund created thereby is made available “to make payment to the extdnt of covered claims of an insolvent insurer existing prior to the determination [of the insolvency of the insurer]. ...” 40 P.S. §1701.201(b)(l)(i). For purposes for determining PIGA’s responsibilities,' the statute specifically provides that it shall “be deemed the insurer the extent of its obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if that insurer had not become insolvent.” Id. at section 1701.201(b)(l)(ii). Critical to an evaluation of this case, then, is the definition of the term covered claims for PIGA’s obligation extends to payment of such claims. Covered claims is defined in the statute to include an unpaid claim “which arises under a property or casualty insurance policy of an insolvent insurer. . ..” Id. at §1701.103(5)(a).

This allows us to underscore the sole question presented for our determination. Does a claim for bad-faith refusal to settle an underlying claim fall within the purview of PIGA’s responsibility? A simple review of the term covered claim suggests that PIGA’s responsibility does not extend tó bad-faith refusal to settle cases. The wrongful failure to settle a case does not “arise under” the terms of a property or casualty insurance policy. Rather, such a claim results from the actions of the entity handling the claim. It is therefore in the nature of a tort claim resulting from improper or wrongful adjustment of the claim. Clearly, it does not arise from the direct obligations of the insurance contract itself.

The court recognizes that prior case law allowed recovery for certain fees or costs which are not specifically within the terms of an insurance policy. Matusz v. Safeguard Mutual Ins. Co., 340 Pa. Super. 116, 489 A.2d 868 (1985). Yet, the situation in Matusz is readily distinguishable from the case present. In Matusz the plaintiff sought payment of counsel fees, costs and interest from PIGA in the context of a no-fault claim. In reaching its decision to allow such compensation, the Superior Court noted that the insurance guaranty association enabling legislation must be read in pari materia with the No-fault Insurance Act. See 1 Pa.C.S. §1932. As such, the specific provisions of the no-fault law which explicitly provided payment of counsel fees, costs and interest to a prevailing insured became, in effect, a portion of the covered claim under the terms of the policy issued by the now insolvent insurer.

No analogous statute exists which creates an entitlement to damages for bad-faith refusal to settle an insurance claim. Therefore, the Matusz case is inapposite.

Under these circumstances the court finds, as a matter of law that plaintiffs claims against PIGA for bad-faith refusal to settle a claim are not cognizable under Pennsylvania law. Therefore, defendant’s preliminary objections must be sustained and plaintiffs complaint dismissed.


author: SPICER, P.J.,

text:
    Daugherity v. Von Roll Habegger of America Inc.

      Paul H. Kahn, for plaintiffs.

      Richard W. Folz Jr., for defendant Von Roll Habegger of America Inc.

      July 10, 1990
   SPICER, P.J.,

Plaintiffs, on behalf of themselves and their deceased son, sue as a result of the accidental death of that son. Clayton Daugherity received injuries after falling from ski lift number three at the Ski-Liberty resort in Adams County on February 24, 1985. Suit was commenced in Philadelphia and later certified to this court.

There are multiple defendants, as the caption will attest. One defendant has already been awarded summary judgment and two more motions are pending. At present, we consider the request by Von Roll Habegger of America Inc., successor to Hall Ski-Lift Company Inc. Von Roll argues that the suit is barred by the statute of repose contained in 42 Pa.C.S. §5536. The section reads:

“§5536. Construction Projects
“(a) General rule — Except as provided in subsection (b), a civil action of proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
“(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
“(2) Injury to property, real or personal, arising out of any such deficiency.
“(3) Injury to the person or for wrongful death arising out of any such deficiency.
“(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).
“(b) Exceptions
“(1) If an injury or wrongful death shall occur more than ten and within 12 years after completion of the improvement a civil action or proceeding within the scope of subsection (a) may be commenced within thé time otherwise limited by this subchapter, but not later than 14 years after completion of construction of such improvement.
“(2) The limitation prescribed by subsection (a) shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death for which it is proposed to commence an action or proceeding.
“(c) No extension of limitations — This section shall not extend the period within which any civil action or proceeding may be commenced under any provision of law.”

The record, more particularly the deposition of Wallace B. Shank Sr., clearly establishes that the ski lift was constructed in 1970. The agreement between Charnita Inc., owner of the ski resort at the time of installation, and Hall provided that Hall furnish parts and engineering services. Installation, however, was to be arranged by Charnita, with supervision by Hall only if requested.

The complaint and expert reports provided Von Roll by plaintiffs clearly indicate a claim premised upon faulty design, manufacture, and assembly. The engineering report authored by R. Matthew Seiden states the ski lift should have been designed and built to prevent potentially dangerous access.

Von Roll argues that it is clearly entitled to summary judgment on the basis of the statute of repose. Plaintiffs argue that this is a products liability, not a construction, case. They also point to parts of Mr. Shank’s brief in which he said Hall service personnel corrected a gear alignment in the system in the late seventies or early eighties.

We thank Von Roll’s counsel for a thorough brief. It carefully discusses all issues and provides impressive authority for its position. The court’s opinion is not nearly so exhaustive because we find the case clearly governed by principles established by Supreme Court in McCormick v. Columbus Conveyer Company, 522 Pa. 520, 564 A.2d 907 (1989).

McCormick involved injuries sustained in a Bucknell University powerhouse. A conveyor belt which was part of a coal delivery system was the culprit. Plaintiff in that case argued, as have our plaintiffs, that the conveyor was part of “the overall system of machines” and, therefore, retained its status as a product. McCormick apparently did not involve the express argument that to hold otherwise would be tantamount to subverting products liability law.

The Supreme Court adopted the approach of the Superior Court in such cases as Mitchell v. United Elevator Company, 290 Pa. Super. 476, 434 A.2d 1243 (1981), and Leach v. Philadelphia Savings Fund Society, 234 Pa. Super. 486, 340 A.2d 491 (1975). These principles can be summarized as follows:

(1) “Improvement” is given its common and ordinary meaning.

(2) Items which otherwise might be considered as products become improvements to real estate when incorporated into such improvements.

(3) The statute is to be liberally construed.

(4) Any person furnishing or performing activities covered by the statute is immunized.

Thus, an acrylic skylight becomes a fixture when attached to the roof and subject to the statute. Catanzaro v. Wasco Products Inc., 339 Pa. Super. 481, 489 A.2d 262 (1985). An elevator installed in a building is an improvement, Mitchell, supra, as is the shaft. Fetterhoff v. Fetterhoff, 354 Pa. Super. 438, 512 A.2d 30 (1986), appeal denied, 514 Pa. 624, 522 A.2d 50 (1987).

Obviously, a ski lift system is an improvement to real estate. Under McCormick, so are its component parts.

As to plaintiffs’ argument that recognition of such facts subvert the law of products liability, we can only comment that the same argument could be made with respect to any statute of limitations. Nobody could seriously suggest that the legislature could not completely change the law of products liability, if it so decided.

Plaintiffs have not related how a gear alignment service call affects this statute. It had nothing to do with the “completion of construction.” It has been characterized as a repair. The gear mechanism had no causal connection with the accident.

If we were to hold that every repair or act of maintenance postpones completion, we would reduce the statute to absurdity.

ORDER OF COURT

And now, July 10, 1990, summary judgment is entered in favor of Von Roll Habegger of America Inc., and against plaintiffs.

       Aside from common sense, see Pinneo v. Stevens Pass Inc., 14 Wash. App. 848, 545 P.2d 1207, review denied, 87 Wash. 2d 1006 (1976).