author: SCOTT, J.,

text:
    Gibbs v. Ernst

      Samuel C. Totaro Jr., for plaintiffs.

      Edwin L. Scherlis, for defendants Paul Ernst, Marsha A. Hiester and Concern Professional Services for Children and Youth.

      Stephen G. Baratía, for defendants R. Nancy Haley, Brenda Messa and Northampton County Children and Youth Division.
    March 19, 1991
   SCOTT, J.,

Frank A. Gibbs, Jayne C. Gibbs and Michael J. Gibbs, a minor, appeal our orders of January 7 and 8, 1991, granting certain preliminary objections of the various defendants, including those in the nature of a demurrer. The cause of action in this case arises out of an alleged wrongful adoption and negligent placement of the adoptive child, Michael Gibbs.

The facts of this case are extensive and involve three principal parties: the Gibbses, Concern and Children and Youth. Frank A. Gibbs and Jayne C. Gibbs are husband and wife. They were married in 1979 and have resided since their marriage in Philadelphia, Pa. Michael J. Gibbs is the minor adopted child of the Gibbses. Michael was born on May 21, 1977. Concern Professional Services for Children and Youth is a child-placing adoption agency licensed by the Commonwealth of Pennsylvania. Concern maintains its principal place of business in Fleetwood, Pa., but also has an office for the conducting of business in Doylestown, Pa. Paul Ernst was the executive director of Concern and Marsha A. Hiester (hereinafter Hiester) was an adoption specialist with Concern.

Northampton County Children and Youth is a agency of the Commonwealth of Pennsylvania which has as its responsibilities the placement of children who are wards of the state with adoption agencies for the purpose of subsequently placing the children with suitable adoptive parents. R. Nancy Haley was the executive director of Children and Youth and Brenda Messa was a caseworker for Children and Youth.

The alleged facts of the case as set forth in the complaint are as follows: In 1983, the Gibbses contacted Concern regarding the availability of a healthy Caucasian infant for adoption. Upon learning that there was a waiting list for Caucasian infants, the Gibbs decided to submit a dual application, for an infant and secondarily for a “hard to adopt due to age” child. In 1984, the Gibbses were informed by Hiester of the availability of Michael, a 5-year-old Caucasian child residing in Northampton County. In October 1984, the Gibbses met with Messa at her office in Easton, Pa. Certain medical records of Michael and his biological parents were given to the Gibbses by both Concern and Children and Youth. In October 1985 the adoption was finalized by the Berks County Court of Common Pleas.

During the summer of 1986, shortly after the adoption became final, Michael began to act out in a violent and aggressive manner toward other children. Michael’s behavior continued to deteriorate. From early 1987 until late 1990, Michael was an inpatient in four different facilities. Michael has been diagnosed as schizophrenic and as undersocia-lized aggressive, and his prognosis is guarded due to his severe anger, vengeance, and extreme self-justification. In September 1989, a caseworker with Human Services in Philadelphia told the Gibbses that Michael had been physically and sexually abused by his biological parents.

In April 1990, the Gibbses filed a civil action in the Bucks County Court of Common Pleas. The complaint sets forth in count I (wrongful adoption) that defendants had information regarding Michael’s background and the mental and physical health of both Michael and his biological parents. The Gibbses further assert that defendants misstated and misrepresented the truth about Michael in a deliberate attempt to deceive them.

In count II (negligent placement of adoptive child) the Gibbses assert that defendants breached their duty both to the Gibbses and to Michael by their failure to disclose all of the relevant information in their possession regarding Michael.

Count III is for the intentional infliction of mental distress, and in this count, the Gibbses assert that the intentional failure to disclose all relevant information about Michael was extreme and outrageous.

Finally, in count IV, for punitive damages, the Gibbses assert that the conduct of defendants was so outrageous as to justify the award of punitive damages.

The order of January 7, 1991 granted certain preliminary objections of defendants Ernst, Hiester and Concern. The preliminary objections granted included a demurrer to count I, wrongful adoption; demurrer to count II, negligent placement of adoptive child; and a motion to strike count IV, punitive damages. Our order of January 8, 1991 granted certain preliminary objections of defendants Messa, Haley and Children and Youth. The preliminary objections of Children and Youth granted include a demurrer to count I, wrongful adoption; a demurrer to count II, negligent placement of adoptive child; and a motion to strike count IV, punitive damages. In the same order we denied certain of the preliminary objections of defendants Children and Youth. They include: (1) change of venue; (2) motion to strike paragraph 74 of the complaint (intentional infliction of emotional distress); and (3) motion for more specific pleading. Children and Youth have now filed a cross-appeal appealing our denial of their preliminary objections.

All defendants filed preliminary objections in the nature of demurrers and a motion to strike to counts I and II (wrongful adoption and negligent placement of adoptive child). Defendants aver in the preliminary objections that wrongful adoption and negligent placement of an adoptive child are not causes of action that have been formally recognized by the Pennsylvania courts.

The Gibbses agree that this is a case of first impression. They argue in response that while the Pennsylvania courts may not have recognized these causes of action, courts in other states are beginning to recognize such actions in situations involving adoptive children. See, for example, Burr v. Board of County Commissioners of Stark County, 491 N.E.2d 1101 (Ohio 1986), and Meracle v. Children’s Service Society of Wisconsin, 437 N.W.2d 532 (Wis. 1989).

While the Gibbses and their adoptive son Michael may have undergone an ordeal we must agree, at this time, with defendants. We believe that the recognition of such causes of action is not the function of this court, a trial court. Such an issue of public policy is best left to the legislature and at present the legislature has not acted in this area.

The current Adoption Act, 23 Pa.C.S. §2101 et seq., does not impose a requirement on adoption agencies or an intermediary that an investigation be made to ascertain or verify whether the medical and social history of the child is accurate or complete. Nor is there a requirement for full disclosure of all medical information.

All defendants filed motions to strike count IV for punitive damages. The basis of defendants’ argument is that the complaint did not set forth facts sufficient to support a claim for punitive damages. Pennsylvania courts have long recognized the principles set forth in the Restatement (Second) of Torts, §908, subparagraph (2).

“Punitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or as a reckless indifference to the rights of others.”

Additionally, there is ample case law to offer guidance to us in making this determination. In Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985), the Supreme Court stated:

“In Pennsylvania, the function of punitive damages is to deter . . . Punitive damages are appropriate to punish and deter only extreme behavior and, even in the rare instances in which they are justified, are subject to strict judicial controls.”

In Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980), the Superior Court opined that the conduct must have been done with “reckless indifference to the interests of others,” or “wanton misconduct,” which consists of intentionally doing an act of an unreasonable character, in disregard of a risk known to the actor or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow.

In light of this extremely high standard for the pleading of punitive damages we must agree with the perception of defendants. For that reason we granted the preliminary objection of defendant.

With regard to the cross-appeal, the following preliminary objections of defendants were denied: (1) change of venue; (2) motion to strike paragraph 74 of the complaint; (3) motion for a more specific pleading.

On the venue issue, defendants, Children and Youth, Haley and Messa, averred that since Children and Youth is a division of the Department of Human Services of the County of Northampton, and since Northampton County is a “political subdivision” within the Commonwealth of Pennsylvania, pursuant to Rule 1006(b) of the Pennsylvania Rules of Civil Procedure an action against it can be brought in, and only in, counties designated by Rule 2103 of the Pennsylvania Rules of Civil Procedure. Children and Youth alleges that Pa.R.C.P. 2103(b) provides for venue in an action against a “political subdivision” only in the county in which the political subdivision is located, except when the Commonwealth of Pennsylvania is the plaintiff or when otherwise provided by an Act of Assembly. Children and Youth’s prayer for relief in the preliminary objections was that the action be transferred to Northampton County.

In the memorandum, Children and Youth argues that Township of Whitpain v. Goldenberg, 131 Pa. Commw. 144, 569 A.2d 1002 (1990), controls the issue of venue in cases involving multiple defendants where one of the defendants is a political subdivision. In Whitpain the Commonwealth Court indicated that under Pa.R.C.P. 2103(b) the legislature may pre-empt this rule by “an act of the assembly” and that section 333 of the JARA Continuation Act of 1980, 42 P.S. §20043, is such an act. Section 333 reads in pertinent part:

“Actions . . . for claims against a local agency may be brought in an only in a county in which the local agency is located or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose.”

The Gibbses allege that venue is clearly proper in Bucks County, since Concern maintains an office for the conducting of business in Doylestown, Bucks County, and under present case law and the Pennsylvania Rules of Civil Procedure, when there are multiple defendants venue is proper in the county where one of them is located.

The Gibbses cite Pa.R.C.P. 1006(b) and (c) for general rule that since venue is proper for Concern in Bucks, it is proper for all defendants including the political subdivision. In support, they cite Peaceman v. Cades, 272 Pa. Super. 568, 416 A.2d 1042 (1979), in which Superior Court determined that Pa.R.C.P. 2103 would not control and that the political subdivision could be sued in another county where there are multiple defendants.

Children and Youth argue that since Peaceman was decided the year before section 333 was enacted, there does not appear to be a conflict between the interpretation of Pa.R.C.P. 2103 in Peaceman in 1979 and Whitpain in 1990, and Whitpain controls. The difficulty with this argument is Alter v. Pennsylvania Gas and Water Co., 110 Pa. Commw. 349, 532 A.2d 913 (1987), in which the Commonwealth Court cited Peaceman with approval seven years after section 333 was enacted.

In Alter, the political subdivision in Lackawanna County argued that venue was not proper in Luzerne County. The Commonwealth Court stated:

“[W]e believe that, pursuant to Peaceman v. Cades, 272 Pa. Super. 568, 416 A.2d 1042 (1979), the trial court did have venue. Peaceman held, inter alia, that, pursuant to Pa.R.C.P. 1006(c) (providing that where there are multiple defendants, except the Commonwealth, any action can be brought where venue is authorized against any defendant) venue against a political subdivision lies not only in the county where the political subdivision is located but also in any county where other defendants are amenable to suit.” Alter, supra at 353, 532 A.2d at 915.

Even if Whitpain controls, Children and Youth is not entitled to its requested relief since Berks County would also be proper. Concern did not appeal from our order denying their preliminary objections for change to Berks County. Therefore, given the positions of the parties, we believe Bucks is a proper place for venue.

Defendants aver that plaintiff’s did not plead anything to support a claim for intentional infliction of mental distress. A careful reading of Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), reveals that while the Supreme Court has not officially adopted section 46 of the Restatement (Second) of Torts it is a cause of action receiving more and more judicial attention. This court believes that plaintiffs should be afforded every opportunity to develop through discovery this cause of action and that this court should not hinder the litigation process (at this stage) by granting the preliminaiy objection of defendant.

Finally, defendants aver that plaintiffs (in the event that all counts are not stricken) should be required to file a more specific pleading. Pennsylvania is a fact-pleading state. Pa.R.C.P. 1019(a) requires that: “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.”

A complaint must not only give defendant notice of what plaintiff’s claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980).

In light of this rule we must disagree with defendants. The lengthy complaint filed by plaintiffs contains sufficient facts plead in a satisfactory manner. Nothing else is required.


source: Caselaw Access Project

author: HILL, Member,

license: Public Domain

text:
    In re Anonymous No. 67 D.B. 87
    Disciplinary Board Docket no. 67 D.B. 1987.
    April 19, 1990
   HILL, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

Respondent, [ ], Esq., was born in 1949 and was admitted to practice in the Commonwealth of Pennsylvania in 1982. His office is located at [ ].

On March 1, 1988, the Office of Disciplinary Counsel filed a petition for discipline alleging that respondent had violated the following Disciplinary Rules: D.R. 6-101(A)(3) (three violations alleged), D.R. 7-101(A)(2), D.R. 1-102(A)(1), and D.R. 1-102(A)(6). The alleged violations stemmed from respondent’s representation of three clients, his dealings with an assistant disciplinary counsel, and after receiving notice, his failure to appear before the board to receive a private reprimand.

On April 18, 1988, respondent through his legal counsel timely filed his answer to the petition for discipline. Respondent admitted that he had failed to take any action on behalf of two of his clients as charged. However, he denied any wrongdoing in his handling of the third client’s case or his interaction with the assistant disciplinary counsel. Regarding his failure to appear before the board, respondent asserted that he never received the notice advising him of his required appearance before the board.

The parties entered into a stipulation on September 12, 1988, concerning only the factual background surrounding the charges of misconduct. No stipulation concerning Disciplinary Rule violations was agreed to.

On November 28, 1988, a hearing on the matter was held in [ ] before Hearing Committee [ ] consisting of [ ]. At this hearing, respondent stipulated to two violations of D.R. 6-101(A)(3), but denied any further misconduct. After hearing the evidence, in addition to the violations to which respondent had stipulated, the hearing committee found that respondent had also violated D.R. 7-101(A)(2), D.R. 1-102(A)(1), and D.R. 1-102(A)(6). The hearing committee filed its report and recommendation on the matter on October 17, 1989, and recommended that respondent receive a public censure for his misconduct.

Neither Office of Disciplinary Counsel nor respondent filed exceptions to the hearing committee report and recommendation. The matter was adjudicated at the December 8, 1989 meeting of the Disciplinary Board.

FINDINGS OF FACT

The Disciplinary Board adopts the following findings of fact:

(1) That the respondent was bom in 1949 and was admitted into practice in this Commonwealth in 1982. (Exh. 1.)

(2) That at all times relevant to the charges herein at issue, the respondent was a sole practitioner with offices located at [ ]. (Exh. 1, N.T. 49.)

(3) That at all times relevant to the charges herein at issue, the building in which respondent’s office was located was shared by several other attorneys, and that their individual practices relied on an extremely informal interoffice arrangement for such things as the handling of business correspondence. (N.T. 39, 43-4 and 53-4.)

Charge I

(4) That by order dated February 7, 1984, respondent was appointed by Judge [A], of the [ ] County Court of Common Pleas, to represent [B] in a petition filed pursuant to the Post-Conviction Hearing Act. (Exh. 7.)

(5) That following a hearing at which respondent represented [B], Judge [A] entered an order dated November 13, 1985, in which he denied [B] any relief under the PCHA and dismissed his petition. (Exh. 3.)

(6) That on December 13, 1985, on behalf of [B], respondent filed a timely notice of appeal with the Superior Court of Pennsylvania from Judge [A’s] order of November 13, 1985. (Exh. 4.)

(7) That on two occasions subsequent to November 13, 1985, respondent spoke personally with Judge [A] and asked informally that he be allowed to withdraw as [B’s] counsel. (N.T. 81-3.)

(8) That by notice dated March 18, 1986, respondent was advised by the Superior Court that his brief for [B] had to be filed on or before April 26, 1986, and that upon failure to timely file that brief, [B’s] appeal would be dismissed. (Exh. 8.)

(9) That at no time between December 13, 1985 and April 26, 1986 did respondent take any steps to either formally withdraw as [B’s] counsel or to effectively and affirmatively represent him on the appeal. (N.T. 83.)

(10) That by order dated May 2, 1986, the Superior Court dismissed [B’s] appeal by reason of respondent’s failure to file the required brief. (Exh. 9-)

Charge II

(11) That in March 1985, one [C] hired respondent to defend her in a divorce action which included various collateral claims. (Exh. 1.)

(12) That in July or August, [C] moved from the [ ] area to Akron, Ohio and accepted new employment with the [D] Hospital in Akron. (N.T. 87-9.)

(13) That from approximately June 1985 to December 1985, respondent and [E’s] attorney engaged in negotiations concerning the division of marital property, custody, child support and alimony. (Exh. 1.)

(14) That by January 18, 1986, the terms of a marriage settlement agreement and custody order had been agreed to by respective counsel and the parties, with only the amount of child support and the question of who could claim the children as exemptions for federal income tax purposes left to be resolved. (Exh. 1.)

(15) That during much of 1986, the negotiations regarding the latter two points languished due in large measure to a failure on the part of the respondent to communicate meaningfully with either his client or with opposing counsel. (N.T. 24; Exh. 40.)

(16) That [C] filed a complaint against respondent with the Office of Disciplinary Counsel in early 1987, complaining of his inactivity in handling the divorce action and the collateral claims. (Exh. 16.)

(17) That despite having complained to the Office of Disciplinary Counsel regarding his handling of the case, [C] wrote respondent on April 22, 1987, and requested several substantial changes in the marriage settlement agreement. (Exh. 18.)

(18) That the respondent and [C] talked by telephone on May 27, 1987, but essentially the respondent undertook no further activity on her part after that date. (Exh. 40.)

(19) That by letter dated October 1, 1987, [C] discharged respondent as her attorney. (Exh. 19.)

(20) That despite having retained new counsel in early 1988, [C] had still not procured a divorce, nor had she entered into a marriage settlement agreement as of the date of the disciplinary hearing (November 28, 1988), even though the parties, as of that date, would have been eligible for a divorce under the Divorce Code. (See 23 P.S. §201(c), (d); N.T. 27-8.)

Charge III

(21) That by order dated March 29, 1985, respondent was appointed by Judge [F] of the [ ] County Court of Common Pleas to represent [G] in his appeal of judgment of sentence to the Pennsylvania Superior Court. (Exh. 20.)

(22) That by praecipe filed on May 16, 1985, respondent entered his appearance with the Superior Court on behalf of [G]. (Exh. 22.)

(23) That respondent’s representation of [G] was made unusually difficult by reason of the facts that [G] filed many motions himself in related cases and concurrently in both state and federal courts. (N.T. 99-101.)

(24) That sometime prior to October 24, 1985 [G] complained to Office of Disciplinary Counsel concerning respondent’s handling of his case. (Exh. 1.)

(25) That after investigation, [G’s] initial complaint was dismissed. (Exh. 26.)

(26) That [G] filed a second complaint dated March 4, 1986. (Exh 17.)

(27) That the Office of Disciplinary Counsel interceded with respondent on [G’s] behalf when [G] became dissatisfied with respondent’s efforts, and made a conscientious attempt to monitor the respondent’s efforts on [G’s] behalf during the period March 4, 1986 through August 26, 1986 (Exh. 1, 23 and 24.)

(28) That by notice dated July 24, 1986, respondent was advised by the Superior Court that his brief for [G] had to be filed on or before September 1, 1986, and that upon failure to timely file that brief, [G’s] appeal would be dismissed. (Exh. 33.)

(29) That at no time between May 16, 1985, and September 1, 1986, did respondent take any steps to either formally withdraw as [G’s] counsel or to effectively and affirmatively represent him on the appeal. (N.T. 106.)

(30) That by order dated September 9, 1986, the Superior Court dismissed [G’s] appeal by reason of respondent’s failure to file the necessary brief. (Exh. 35.)

(31) That the respondent’s recollection of the foregoing facts relating to charge III is extremely vague. (N.T. 105-6.)

Charge TV

(32) That by order dated September 15, 1987, the Disciplinary Board directed that respondent be subjected to a private reprimand concerning disciplinary complaints investigated under file reference numbers [ ] and [ ] (which are the subject matter of charges II and III herein, respectively), of which order respondent was given due notice. (Exh. 37.)

(33) That on December 21, 1987, the Secretary of the Board sent a notice to appear for private reprimand following informal proceedings to respondent at [ ], by certified mail, return receipt requested, which notice directed respondent to appear before the board on Friday, January 15, 1988 at noon in the [ ] room of the [ ] Hotel located at [ ], for the purpose of receiving a private reprimand concerning the above-mentioned disciplinary complaint files. (Exhs. 38 and 39.)

(34) That the formal notice to respondent also advised him, among other things, that the willful failure to appear before the board to receive a private reprimand would be an independent ground for discipline and that it would result in the institution of formal proceedings relating to the misconduct to which the private reprimand to be administered related.

(35) That the notice was sent to respondent by certified mail in a correctly processed envelope and was received at the respondent’s place of business on December 23, 1987. (Exh. 39.)

(36) That at all times relevant to this matter, the respective secretaries for the professional occupants of the building in which respondent worked had an informal but efficient method of routing all incoming mail. (N.T. 35-54.)

(37) That on January 15, 1988, respondent failed to appear before the board as directed, for the imposition of a private reprimand. (N.T. 114.)

(38) That respondent failed to communicate with any member or representative of the Disciplinary Board as to why he did not appear before the board on January 15, 1988. (Exh. 1.)

(39) That on two uncertain dates in March or April 1988, respondent’s secretary went through his office and discovered approximately 100 pieces of unopened mail. (N.T. 61.)

(40) That among the unopened pieces of mail discovered by the secretary was a letter addressed to respondent from “The Disciplinary Board of the Supreme Court of Pennsylvania” postmarked December 21, 1987 in Harrisburg, Pennsylvania. (N.T. 157-7; respondent’s exh. A.)

CONCLUSIONS OF LAW

Based upon the findings of fact set forth above, the Disciplinary Board concludes that evidence of a clear and convincing nature establishes the following:

(1) Respondent’s actions in the [B] and [G] matters violated D.R. 6-101(A)(3).

(2) Respondent’s actions in the [B] case violated D.R. 7-101(A)(2).

(3) Respondent’s failure to appear before the Disciplinary Board to receive a private reprimand in violation of Pennsylvania Rule of Disciplinary Enforcement 203(b)(2) constituted a violation of D.R. 1-102(A)(1).

(4) Respondent’s failure to appear before the Disciplinary Board violated D.R. 1-102(A)(6).

DISCUSSION

Respondent stipulated to two violations of D.R. 6-101(A)(3), in that he twice neglected a legal matter entrusted to him. In both the [B] and [G] matters, respondent was appointed by a trial judge to represent a criminal defendant on appeal. Respondent indicated that he had handled many criminal matters and was very familiar with the Crimes Code and criminal procedure. (N.T. 77-8.) Nevertheless, respondent neglected both matters resulting in their dismissal. (Findings of Fact 10 and 30, supra.)

In the [B] matter, respondent asserted that his neglect resulted from his belief that the appeal lacked merit and his informal discussions with the trial judge about withdrawing from the case. Both assertions or explanations are meritless.

Under the Code of Professional Responsibility then in effect, respondent had the obligation to “represent [his] client zealously within the bounds of the law.” See Code, Canon 7. (emphasis supplied) Moreover, doubts regarding the soundness of [B’s] legal position should have been resolved in favor of the client. See Code, Ethical Consideration 7-3. Even if we assume that [B’s] appeal was totally devoid of merit, respondent could have petitioned the court by filing a written request to withdraw. Unfortunately, even after respondent received a letter from Superior Court advising him that a supporting brief had to be filed by April 26, 1986, or the court would dismiss the appeal, he did nothing.

The hearing committee found, and we agree, that respondent violated D.R. 7-101(A)(2) when he failed to carry out a contract of employment in his representation of [B], In his brief to the hearing committee, respondent asserted that because [B] was a court-appointed client and therefore not paying respondent for his legal services, there could be no employment contract between the parties. As one would expect, no legal precedent is cited to support this position. Even assuming, arguendo, that ‘Technically” the contract of employment was not with [B], but was with [ ] County, respondent’s duty under the contract was to represent [B] in his appeal. That representation required that respondent “seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue, or defense.” (Code, Ethical Considerations 7-1.) Therefore, respondent’s conscious failure to act on [B’s] behalf was an intentional failure to carry out an employment contract, in violation of D.R. 7-101(A)(2).

Our conclusion, that respondent’s neglect in the [B] case constituted two separate violations, is consistent with other board decisions. D.R. 6-101(A)(3) and 7-101(a)(2). See In re Anonymous No. 56 D.B. 77, 13 D.&C. 3d 379 (1978).

Respondent’s conduct in the [G] case was strikingly similar to his neglect in [B]. In [G’s] case, respondent was again appointed to represent a client. After entering his appearance on behalf of [G], respondent took no action — again, even after the court notified him of the filing deadline for [G’s] brief. However, the one distinguishing factor of this charge was that [G] notified the Office of Disciplinary Counsel and complained of respondent’s neglect. After dismissing an initial complaint, and in response to a subsequent letter to the Office of Disciplinary Counsel from [G] criticizing respondent, the office began to personally monitor respondent’s efforts in the case. Those efforts involved numerous phone calls and letters in an attempt to prod respondent into fulfilling his obligation. Respondent ignored the Office of Disciplinary Counsel and his duty to his client, [G]. In his brief to the hearing committee, respondent admitted that despite the fact that [G] was a difficult client, his failure to file the appellate brief in a timely manner and his failure to formally withdraw from the case constituted a violation of D.R. 6-101(A)(3). We concur.

Although respondent’s handling of [C’s] divorce action was less than exemplary, his conduct did not rise to the level of neglect contemplated by D.R. 6-101(A)(3). Respondent was apparently dealing with a very difficult client whose wishes vacillated throughout the course of his representation. Indeed, although [C] subsequently retained other counsel to handle her action, she has not yet obtained a divorce as of the date of the hearing. A careful examination of the evidence leads to the conclusion that respondent’s dealings in the [C] matter did not constitute a violation of D.R. 6-101(A)(3), because it was apparently impossible to ascertain exactly what objectives [C] sought.

The final charge alleged in the petition for discipline concerns respondent’s conduct with respect to the Disciplinary Board. On September 15, 1987, the Disciplinary Board issued an order directing respondent to appear at its January 1988 meeting to receive a private reprimand. Respondent failed to appear before the board and we refuse to accept his excuse as a satisfactory explanation for his absence. Respondent has acknowledged that his agent received the certified mail from the Office of Secretary informing him of the private reprimand. (Exh. 1.) However, respondent failed to open the letter. Although he has argued that this should excuse his failure to appear before the Disciplinary Board, respondent also insisted at the November 1988 hearing that he competently represented clients during this time. Apparently, respondent’s “depression,” which had no effect on his ability to represent some clients competently (N.T. 239-40), prevented him from opening his mail. We reject this assertion.

We are not unsympathetic to respondent’s personal problems being experienced at this time. But personal problems that do not rise to the point of causing a disability are not an excuse for disregarding professional responsibility. The board desires to make it abundantly clear that a respondent’s failure to open mail, where no disability is demonstrated, is not in this case and will never be an excuse for failing to appear before the board.

Respondent in failing to appear not only violated D.R. 1-102(A)(1), but his failure also adversely reflects on his fitness to practice law, in violation of D.R. 1-102(A)(6). The Rules of Disciplinary Enforcement recognize the serious nature of failing to appear for a private reprimand. “The neglect or refusal of the respondent-attorney to appear before the board for the purposes of private reprimand without good cause shall automatically convert the decision of the board on private reprimand into a recommendation to the Supreme Court for censure.” Pa.R.D.E. 89.205(e).

We believe that public discipline is appropriate in this case. Previous cases recognized the necessity for public discipline in situations such as the instant case. See In re Anonymous No. 3 D.B. 85, 41 D.&C. 3d 70 (1986), and In re Anonymous No. 42 D.B. 80, 20 D.&C. 3d 341 (1981).

In summary, the board finds by clear and convincing evidence that respondent committed two violations of D.R. 6-101 (A)(1) and violations of D.R. 7-101(A)(2), D.R. 1-102(A)(1) and D.R. 1-102(A)(6).

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that respondent receive a public censure. The board recommends further that respondent be ordered to pay the costs of investigating and prosecuting this matter.

Ms. Hey and Mr. Stoelker did not participate in the adjudication.

ORDER

And now, June 4, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated April 19, 1990, it is ordered that [respondent] be subjected to public censure by the Supreme Court at the session of court commencing September 24, 1990, in Pittsburgh. It is further ordered that respondent shall pay costs, if any, to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.


author: SUBERS, J.,

text:
    Lambert v. Lambert

      Lynne Z. Gold-Bikin, for plaintiff.

      Susan K. Lambert, in propria persona.
    January 29, 1991
   SUBERS, J.,

This custody matter was the subject of a long court hearing, resulting in a custody order and opinion (Lawrence, J., dated August 1, 1989). Since that time defendant/ appellant, mother, resided in Virginia until August 1990 when she and the children moved to Colorado, and plaintiff/appellee, father, has resided in Pennsylvania and has had partial physical custody basically in accord with the August 1, 1989 order.

Sometime in early August 1990, mother and the children and a male friend, Scott Neill, moved to Colorado without any notice to father. After arriving in Colorado mother notified father of the removal of the children from Virginia to Colorado. Prior to that notice father had been unsuccessful in telephoning the children and/or mother in Virginia as the telephone had been disconnected.

Father filed his petition to modify custody on August 30, 1990, a copy of which was served on mother by the Sheriff’s Office of Teller County, Colorado, on October 23, 1990, notifying mother of the hearing on November 14, 1990 in Montgomery County, Pennsylvania. In addition, mother was served by the Sheriff’s Office of Teller County with a copy of a petition for contempt on September 28, 1990, with a rule returnable and hearing date of November 14, 1990. Mother did not appear on November 14, 1990 even though she acknowledged receipt of both petitions. (See P-1 of 11/14/90.) The hearing was held, testimony transcribed and an order entered on November 16, 1990. We note also that mother failed to appear before Logan H. Bullitt IV, custody conciliator, on October 17, 1990.

DISCUSSION

This court’s paramount concern is the best interests and permanent welfare of these minor children: Albright v. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). The children have lived the last five years of their lives in Virginia, with the exception of several months when they lived in the Pottstown, Montgomery County, area. The paternal grandparents and the father reside in the Pottstown area. Mother is from Australia and has no relatives in this area or in Virginia. The testimony revealed that mother has no friends or relatives in Colorado nor do the children, nor does Scott Neill.

We take notice of the findings of fact and the conclusions made by the Honorable Marjorie C. Lawrence of this court in her comprehensive opinion and order of August 1, 1989. We further note that the mother has been the primaiy caretaker of these children. While the role of primary caretaker is a substantial factor to be considered, it is only one of several factors that should be considered. We also note that the father has demonstrated his ability to assume the role of primary caretaker during his times of partial physical custody when the children have been with him both on their long weekends and vacations.

Mother clearly violated the shared legal custody provisions of the order of August 1, 1989 when she failed to consult or discuss with father the move to Colorado and by removing the children to Colorado and registering them in a new school in the new area without any consultation whatsoever with father. Such conduct certainly does not foster the best interests of the children nor does it promote father’s relationship with them. It obviously would seriously interfere with the partial physical custody granted to father by the order of Judge Lawrence of August 1, 1989 which, inter alia, granted him the second and fourth weekends of each month from Friday at 6 p.m. to Sunday at 8 p.m. and five three-day weekends over the holidays such as Martin Luther King’s Birthday, President’s Day, Memorial Day, Columbus Day, and Veterans Day.

In the very recent case of Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), the court (Beck, J.) set forth a three-prong test to be considered in a custody relocation matter which must be analyzed by the court:

(1) The advantages of a move outside the jurisdiction by the custodial parent and whether the move would enhance the quality of life of the custodial parent, and

(2) Scrutinize the motives of the parent attempting to relocate and those of the parent seeking to prevent the move, and

(3) Consider a visitation schedule with the noncustodial parent which is realistic and will foster an ongoing relationship between the child (or children) and the non-custodial parent.

Before making our analysis, we do note that in Gruber v. Gruber, supra, the court said that where a relocation to a geographical distance is sought for the custodial parent and the non-custodial parent challenges the move, the custodial parent has the initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children. We point out that in the instant case the mother removed the children to Colorado without any notice, consultation, or court proceeding and that father learned of the move after it had been accomplished.

Looking at considerations 1 and 2 from Gruber, we must review the record. From the record taken as a whole, we can ascertain that the mother’s reasons for the move to Colorado were solely because real estate was cheaper and she could purchase a house. We note, of course, that mother previously was living in Virginia and father, as a practical matter, had no mid-week visitation. Father, however, certainly had partial physical custody on alternate weekends, visitations which certainly would not be practical between Pennsylvania and Colorado. The testimony revealed nothing in Colorado that was predicated upon some economic, education, religious, health or emotional compulsion to justify such a drastic change in the lives of these two children. This is not a case of the mother returning to an area where her relatives reside or a case of mother and new husband relocating for employment purposes. The record certainly indicates that the children’s ties are here in the Eastern Corridor area between Montgomery County and Virginia.

As we previously noted, the order of August 1, 1989 provided for shared legal custody. Despite this order, mother never advised father of the move and he learned about it after it had been completely accomplished. Such actions, and failure to abide by the order of August 1, 1989 for shared legal custody, certainly indicated to this court that mother was considering her own best interests and not those of the children, and was attempting to limit or prevent the visitation by father and preventing the father from sharing in the process of raising his two minor children. This relocation certainly was not motivated by any desire to return to an extended family or friends, nor to pursue educational opportunity nor an improved physical environment in which to live and raise these children. Mother, by pre-emptively removing these children to Colorado at this stage in their lives, particularly where the testimony revealed that they have lived in four or five different locations since the separation in 1986, and in removing them far from their father and from any realistic opportunity for frequent contact with their father, will certainly upset the continuity of their lives. Mother’s motivation clearly indicates a lack of concern for the visitation rights of father. What better indication of such lack of concern could there have been than moving unannounced to Colorado and then informing father when same has been accomplished, particularly in view of the August 1, 1989 order granting joint legal custody? Mother has shown that she cannot and will not comply with present visitation arrangements nor can it be said that she would cooperate with any alternate visitation arrangements. Mother simply announces by letter marked P-2 that father’s visitation will no longer be possible. Father, on the other hand, has shown his sincere desire to continue and deepen his relationship with his children. During most of his scheduled visits, father made the long trip to Leesburg, Virginia and back. He made the effort to bring the children back to Pennsylvania where they could be with the extended family, rather than just go to a motel in Virginia. (See N.T. at 20.)

Prior case law also gives this court guidelines in a relocation situation. It is clear that mother has a right to move to another state or location. However, this right must take into account the best interest of the children. In Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa. Super. 444, 427 A.2d 1370 (1981), the court said:

“Although one’s desire to relocate his or her place of residence hardly suggests a lack of stability or renders him or her unfit to serve as a custodial parent, the manner in and care with which such a relocation is accomplished may serve as one indication of that person’s stability and consequent parental fitness.” Id. at 449, 427 A.2d at 1372.

This court may not give preference to the parent who will remain in the jurisdiction. Commonwealth ex rel. Lettie H.W. v. Paul T.W., 281 Pa. Super. 262, 422 A.2d 159 (1980); G.M.P. v. A.P., 282 Pa. Super. 372, 421 A.2d 769 (1980). The law is clear that the custodial parent should be permitted to move with the children as long as there is no evidence of the parent’s motivation to alienate the children’s affection for the non-custodial parent: McCourt v. Meyers, 268 Pa. Super. 152, 407 A.2d 875 (1979), which was a case where mother relocated with her new husband to Arizona where her new husband had a job and where the father sought a transfer of primary physical custody from the mother based on the mother’s relocation. The court stated emphatically that it would not order mother to forfeit her custody to the child if she moved to Arizona:

“To condition [the mother’s] custody on her remaining [in Pennsylvania] as [the father] suggests would be to use the child to force [the mother] into a situation unreasonable as to her and not to the advantage of the child. There is no evidence that [the mother] is attempting to alienate the child’s affections for [the father]. No doubt the arrangement [permitting the mother to move] is not satisfactory to [father], but it recognizes his interests and places no financial hardship on him. Custody orders are seldom satisfactory to both parties.”

In the case of K.D. v. M.H., 201 Pa. Super. 36, 446 A.2d 1323 (1982), the mother indicated her intention to relocate to Vermont and the court held that such an intention was not the basis for transferring custody to the father. In that case the children had been in mother’s primary physical care since separation and the mother was moving to Vermont in connection with her new husband’s job opportunity there. In this case, also, the mother had informed the father of the proposed move and had offered him liberal visitation rights. The court confirmed custody of the children in the mother.

The basic principle of all of the above cases is that in the determination of an award of custody the relocation should be taken into account. However, it is not controlling and the best interests and the welfare of the children is paramount. The court should consider whether there is evidence that the custodial parent is attempting to alienate the other parent by relocation. In all of the above-cited cases there was a valid and compelling reason for the relocation. In McCourt, supra, the mother was moving to Arizona where her new husband had obtained employment. In K.D. v. M.H., supra, the mother relocated to Vermont in connection with her new husband’s job.

While a desire to relocate does not necessarily reflect a lack of stability or render a parent unfit to serve as a custodial parent, it is important to look at the manner in which and the care with which any relocation is accomplished or is to be accomplished as an indication of the parent’s stability and consequent parental fitness. In the case of Commonwealth ex rel. E.H. T. v. R.E. T., supra, the court, in awarding custody to the father, found that:

“[Rjather than a factor precipitating the move, the children’s welfare, educational or otherwise appears to have been given little, if any, consideration. Even if parental fitness had been the controlling question, therefore, there is evidence in the record to support a conclusion that appellant lacks sufficient stability to provide a proper home for her children.” (footnotes omitted)

The facts of this case are important and can be summarized as follows: The mother, the custodial parent, and the children left for a vacation in North Carolina, a state in which they had neither family or friends prior to their arrival. After 14 days, mother decided that she and her children would become residents of North Carolina. Seven days later mother returned to Pennsylvania to supervise the transfer of her family’s belongings to their new home in North Carolina. The children remained in North Carolina with people who had been complete strangers only days earlier. Mother contended that one of the factors was the quality of education the children would receive in North Carolina but there was nothing of record that their education was in need of improvement, particularly since they were enrolled in enrichment programs in Pennsylvania and had good levels of achievement. Only six days after mother decided to relocate in North Carolina she enrolled the children in Heritage Christian Day School, a school that had not been accredited as of the date of the children’s enrollment nor had it been completely constructed at time of the investigator’s report.

In the recent case of Lozinak v. Lozinak, 390 Pa. Super. 597, 569 A.2d 353 (1990), the court affirmed the award of custody to father where mother was moving to Iowa, stating:

“There is nothing in Iowa where the mother wishes to take Heather that is predicated upon some economic, educational, religious, health or emotional compulsion dictating or justifying such a drastic move in the life of Heather at this time. All of the child’s ties are in Pennsylvania. Her significant relationships are bound up in her teachers, classmates, friends and relations who give her that abundance of self-assurance and a glowing view of life at this crucial time in her young life.”

In Clapper v. Clapper, 396 Pa. Super. 49, 578 A.2d 17 (1990), Mrs. Clapper informed Mr. Clapper that she intended to move to Connecticut with the children. Mr. Clapper refused to consent to the proposed relocation. It should be noted that he had a partial physical custody award for visitation every Tuesday evening, every other weekend from Friday night through Sunday night, for six weeks during the summer and for rotating major holidays. Mrs. Clapper’s desire to move to Connecticut was for the purpose of bettering her education, occupational skills and opportunities and quality of life. These goals, of course, relate to Mrs. Clapper’s desire for self-improvement. The court said:

“While we cannot fault Mrs. Clapper for wanting to better her life, she may be accomplishing her goals at the expense of the children. The effect of the move would be to uproot Jessica and John from familiar and congenial surroundings and to remove them from their father, who up to this time has maintained a steady and frequent relationship with his children.”

We hasten to add that under the facts of this case, the order of this court will not cause an infringement of mother’s right to travel and relocate. Although it is not controlling, the court in deciding questions of custody may consider what an effect a change of location may have on the child. Here we are not transferring custody to father merely because of mother’s plan to move. As this court well understands, a move by one parent is not dispositive in determining custody. When, however, the record is bare of any compelling reason for a move to a state as distant as Colorado, beyond the fact that real estate was less expensive and a home could be purchased, the move and relocation takes on added significance. As we noted, the removal to another jurisdiction is not controlling in the custody case and this is especially true when the child’s or children’s relationship with the parent without custody will not be unduly limited: Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). By implication, the fact that a parent moves and removes the children to a distance assumes a greater significance in weighing the best interest of the children when their relationship with the non-custodial parent will be severely restricted. It is obvious that mother’s move will severely restrict the relationship of the children with their father and also their extended family.

The third Gruber consideration calls for a visitation schedule that will insure a continuing, meaningful relationship between the children and the noncustodial parent. We readily recognize that we did not set forth any visitation schedule. We had no input from mother, who chose not to appear at the hearing to determine custody. We readily recognize that such a schedule should be established and we will do so upon remand from the Superior Court and after a hearing which will give this court the desires of mother, which we can then balance against the best interests of the children. If the parties have agreed as to visitation said agreement has not been submitted to this court for incorporation into this order.

CONCLUSION

The unilateral move to Colorado by mother and children without notice to father and in violation of the order of August 1, 1989 (Lawrence, J.) certainly indicates to this court that the motives of the mother were calculated to defeat the relationship of father with his children, with no showing that such a move would enhance the quality of life for the children or, for that matter, the quality of life for mother. Mother did not attend the custody hearing even though she had notice of the time and place. That she had to travel from Colorado was a matter of her own choosing. No effort was made by mother to advise father of the move prior to its accomplishment nor did she petition this court to modify the order of August 1, 1989. Obviously father had no opportunity to petition this court prior to the move since he was not informed that it was to take place. The first two prongs of Gruber, supra, clearly have been met.

The third prong of Gruber could not be met as mother chose not to appear at the hearing for custody and presented no testimony re visitation or partial custody.

The best interests of these children, Corey and Erin, will best be served by this award of primary physical custody to father, Thomas Jay Lambert, with such partial physical custody to mother, Susan Kennedy Lambert, as may be decided at a later day after hearing.

      . Note that there was a petition for special relief and order of August 20, 1990, which directed the immediate return of the children to father. This was accomplished and on September 5, 1990 the children were returned to mother since the court felt that it had been misled by the allegations that the whereabouts of the children were unknown on August 20,1990 when in fact father acknowledged receipt of a letter from mother from Colorado on August 18, 1990. The matter was to proceed in the normal orderly fashion on the petition to modify custody. In view of the court’s harsh admonitions to father’s counsel on September 5,- 1990, it was suggested that counsel could seek another judge. Counsel for father chose not to do so.

      . The emotional well-being of a parent is not a factor to be considered in determining custody.

      . We did not overrule this order. Mother did not abide by this order which failure acts to the detriment of the children.

      . Note that this decision was handed down after this court’s order of November 16, 1990.

        . Note that this is very similar to the visitation arrangement which was granted to Mr. Lambert by the August Í, 1989 order.


author: KANE, J.,

text:
    Taras v. Wausau Insurance Companies

      Philip Laurer, for plaintiffs.

      Robert M. Britton, for defendants Wausau Insur-anee Co. and Barbara Eckels.

      Eric Hall, for defendant Philadelphia Psychiatric Center.

      Gordon Brent Simmons, for defendants Penn Executive Diagnostic Center and David L. Scasta.
    February 19, 1991
   KANE, J.,

Plaintiffs have appealed from the entry of our order of December 20, 1990, wherein we granted the preliminary objections and dismissed the complaint with prejudice against defendants, Wausau Insurance Companies and Barbara Eckels, R.N.

Plaintiffs, Brian and Nancy Taras, filed suit against Wausau, Eckels, and others. The complaint alleges Mr. Taras suffered physical injuries as well as depression and anxiety as the result of an automobile accident on April 5, 1985, while he was engaged in the course and scope of his employment. He received workers’ compensation benefits from defendant Wausau as his employer’s carrier. Defendant Eckels, on behalf of Wausau, suggested various courses of treatment and arranged for evaluation and treatment of Mr. Taras by various physicians. The complaint alleges these arrangements made by defendant Eckels and on behalf of defendant Wausau were accomplished under circumstances where Eckels informed Mr. Taras that he was required to undergo such analysis and treatment in order to continue his eligibility for benefits.

On August 23, 1985, Eckels arranged an appointment for an evaluation to be conducted by Penn Diagnostic Center. As a result of this evaluation, Penn Diagnostic recommended to Mr. Taras that he be hospitalized at Philadelphia Psychiatric Center, and he was admitted. While hospitalized, Mr. Taras came under the care of David L. Scasta, who recommended Mr. Taras undergo electroconvulsive therapy which he did on February 17, 1987. Later, on April 24, 1987, Mr. Taras was diagnosed as suffering from post-traumatic stress disorder, and in September 1987, he was informed that the prior treatment was inappropriate. Plaintiffs allege that defendants Wausau and Eckels acted negligently and carelessly in the selection of medical providers, and in so doing, have caused a worsening and prolonging of Mr. Taras’ psychological condition.

Defendants Wausau and Eckels filed preliminary objections in the nature of demurrers submitting that Pennsylvania law does not provide a cause of action to a claimant of workmen’s compensation benefits against the compensation insurance carrier or its representative for negligent handling of a claim. After review of the complaint and following oral argument, we granted the defendants’ preliminary objections and dismissed the complaint with prejudice.

Rule 1017(b)(4), Pa.R.C.P., allows any party to raise preliminary objections in the nature of a demurrer. A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985). Preliminary objections in the nature of a demurrer admit as true all well-pled factual averments and all inferences fairly deducible therefrom, but not conclusions of law. Rosipal v. Montgomery Ward, 360 Pa. Super. 570, 521 A.2d 49 (1987).

Plaintiffs argue that the injuries suffered by Mr. Taras did not arise from and were not sustained in the course of his employment and therefore not within the scope of immunity provided by sections 303(a) and 305 of the Workmen’s Compensation Act. In addition, plaintiffs allege that defendants provided services and expertise which occupied a second capacity and duty to plaintiffs, thereby allowing this action under the dual-capacity doctrine. We find the Workmen’s Compensation Act and relevant case law to clearly support our decision in sustaining the demurrer that both defendants are immune from suit.

The Superior Court was presented with similar facts and arguments in Alston v. St. Paul Insurance Companies, 389 Pa. Super. 396, 567 A.2d 663 (1989). The court found that “the express language of section 305, coupled with judicial interpretation of that section in relation to section 303(a), confers all of the employer’s immunities and protections under the act to the Workmen’s Compensation insurer.” In addition, the court stated that “the social policies underpinning the grant of immunity to employers and their compensation insurers apply equally to those individuals employed by the insurer to review the case.” It was therefore clear that both Wausau and Eckels were immune from suit and entitled to demurrers.

Further support for our ruling can be found in the supreme Court decision of Kuney v. PMA Insurance Company, 525 Pa. 171, 578 A.2d 1285 (1990), which involved an action against an insurance carrier for fraud and deceit in depriving an injured employee of his workers’ compensation benefits. The Supreme Court held that “inasmuch as the appellee’s claim is ultimately based upon an injury compensable under the Workmen’s Compensation Act, he is limited to the remedies provided within the framework of the act.” As all the injuries suffered by Mr. Taras originated from the automobile accident and were compensated for under the act, this action cannot be maintained.

The Workmen’s Compensation Act as well as case law have repeatedly found workers’ compensation carriers and those working on their behalf to be immune from suit. Therefore, we appropriately sustained the demurrers as to Wausau Insurance Companies and Barbara Eckels, R.N. and dismissed the complaint as to these defendants.


author: KOPRIVA, J.,

text:
    Dodson v. Nationwide Insurance Co.

      Robert W Lape Jr., for plaintiff.

      Gregory S. Olsavick, for defendant.
    January 29, 1991
   KOPRIVA, J.,

Now before this court is a motion for summary judgment. Defendant sets forth two alternative arguments in support of its position that plaintiffs are barred from maintaining this action. Firstly, defendant asserts plaintiffs’ no-fault action is barred by a general release which plaintiffs executed on October 29, 1987. Secondly, defendant contends this action is time-barred under the provisions of 40 P.S. §1009.106(c)(1). We will address the arguments se-riatim.

Plaintiff Susan E. Dodson was injured in a one-vehicle accident which occurred on August 22,1984. Plaintiff had been a passenger in a vehicle driven by Christine Dodson. Plaintiffs filed a negligence action against Christine Dodson. Nationwide insured Christine Dodson and paid the policy limit of $25,000 to plaintiffs in settlement of the third-party claim. In conjunction with the settlement, plaintiffs executed a release in favor of Christine Dodson and Nationwide on October 28, 1987. Said release reads as follows:

“For the sole consideration of $25,000, the receipt and sufficiency where is hereby acknowledged, the undersigned hereby releases and forever discharges Christine Dodson and Nationwide Insurance Company, their successors and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned, but all expressly deny any liability, from any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the second day of August, 1984, at the intersection of Business Route 220, and U.S. Route 220 in Greenfield Township, Blair County, Pennsylvania.
“Undersigned hereby accepts the draft as final payment of the consideration set forth above.”

Thereafter, plaintiffs filed a complaint against Nationwide to collect first-party no-fault benefits. Coincidentally, Nationwide insured both the third-party tort-feasor and plaintiffs. Therefore, defendant claims the above-stated release serves to discharge Nationwide’s obligation to plaintiffs under their first-party no-fault policy in addition to settling the third-party claim.

Generally, written releases are construed according to the rules governing the construction of contracts. Sparler v. Fireman’s Insurance Company, 360 Pa. Super. 597, 521 A.2d 433 (1987). The intent of the parties to the release is paramount, and in construing a release, a court should adopt an interpretation which “ascribes the most reasonable, probable and natural conduct of the parties.” Sparler, supra, citing General Mills Inc. v. Snavely, 203 Pa. Super. 162, 168, 199 A.2d 540, 543 (1964). A signed release is binding upon the parties unless executed and procured by fraud, duress, accident or mutual mistake. Applebaum v. State Farm Mutual Automobile Insurance Company, 626 F.Supp. 1299 (M.D. Pa. 1986).

At first blush the language of the release seems to indicate Nationwide is completely released from “any and all claims, demands, damages, actions, causes of action or suits of any kind” with regard to the accident involving plaintiffs of August 2, 1984. Therefore, on the face of the release, it would seem the within claim for no-fault benefits would be included in such broad language. However, in considering the circumstances surrounding the execution of the release, the question of whether it serves to bar this action is far from clear. In consideration for said release defendant paid to plaintiffs for their third-party claim the sum of $25,000. That amount is equal to the policy limit of defendant’s insurance contract concerning Christine Dodson. The release is totally silent regarding no-fault benefits. Had the discharge of defendant’s no-fault obligation been intended by the parties, it is reasonable to expect that the release would have so stated.

The most persuasive factor in support of the argument that the parties never intended the release to discharge the no-fault obligation is failure to comply with 40 P.S. §1009.106(b)(1). This statute sets forth the provisions that must be followed in order to effectuate a valid release of a no-fault contractual obligation. Plaintiff argues that this statute is not applicable to the situation at bar, as the sections applies only to claims for no-fault benefits, and therefore would not affect a general release which perhaps “inadvertently” included no-fault carriers by its broad language. Further, since the release at issue involved a third-party tort action and not a no-fault claim, the provisions of section 106(b)(1) are not applicable. This court finds no merit to counsel’s argument.

Subsection 106(b)(1) of the No-fault Act applies to any settlement or release purporting to discharge no-fault obligations. The obvious purpose for this section is to protect claimants by requiring judicial determination to insure that any settlement discharging an insurer from no-fault payments be in the best interest of the claimant and give the insurance company no advantage. The legislature made it more difficult for insurers to release themselves from no-fault responsibility than it is to release themselves from liability for payment of tort claims. Despite this obvious and sound reasoning, defendant would have us find that where no-fault benefits are allegedly discharged through settlement of a tort claim rather than a no-fault claim, somehow the judicial safeguards of section 106(b)(1) are not applicable. Such reasoning has no logical basis and we will not permit defendant to circumvent the clear legislative intent of section 106(b)(1).

There is no question in this court’s mind that the release of no-fault liability was not intended by either party when the release was signed on October 28, 1987. It would appear defendant is attempting to take advantage of the coincidence in this situation that it insures both tort-feasor and plaintiff. To interpret the release as discharging Nationwide’s first-party no-fault obligation to plaintiff without court approval under these circumstances, would defeat the purpose for which the act was created; to compensate accident victims for injuries suffered, with court review. See 40 P.S. §1009.102(b). Defendant’s reliance on Applebaum, supra, is misplaced. Had the reasonable anticipated net loss in Applebaum been found to be greater than $2,500, court approval would have been required and the release would not have served to bar the claim for work-loss benefits. Applebaum, supra, at 1306.

We therefore find that the release does not bar the instant claim for no-fault benefits. The failure to obtain court approval for the alleged discharge of no-fault liability is a fatal flaw in defendant’s attempt to obtain summary judgment based upon the executed general release in the third-party claim.

Defendant’s alternative argument proposes that this action is time-barred under the terms of 40 P.S. §1009.106(c)(1). Said subsection sets forth time limitations governing when no-fault actions may be brought. Defendants rely on the first part of section 106(c)(1), which reads as follows:

“If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant, may be commenced not later than two years after the last payment of benefits.”

Plaintiffs rely upon the appropriate portion of 106(c)(1) as it appears that no-fault benefits have previously been paid to plaintiffs in the form of medical benefits. Plaintiffs supplied this court with an affidavit from Diane J. Gehret, secretary for Dr. Dennis Ridenour. Ms. Gehret states that no-fault medical payments were received from Nationwide for services rendered to Susan Dodson. No-fault payments were made as recently as November 13, 1987. The complaint in this matter was filed August 4,1988. Thus, the action for further no-fault benefits was commenced well within two years of the last no-fault payment in compliance with section 106(c)(1). See Jones v. Keystone Insurance Co., 364 Pa. Super. 318, 528 A.2d 177 (1987).

In light of the foregoing opinion, we enter the following

ORDER

And now, January 29, 1991, it is hereby ordered, directed and decreed that defendant’s motion for summary judgment is denied and dismissed.

       Under 40 P.S. §1009.106(b)(1), court review is required when the amount paid exceeds $2,500. We have no value to consider other than the $25,000 sum paid through the general release.


author: YOHN, J.,

text:
    Bilger v. Bilger

      Arthur Lefkoe, for plaintiff.

      John D. Conroy, for defendant.
    December 12, 1990
   YOHN, J.,

Marilyn P.G. Bilger filed a complaint in divorce on November 16, 1980. James D. Bilger petitions the court to bifurcate the divorce claim from the remaining unresolved economic claims in the case. On June 8, 1990, the court granted defendant’s petition and ordered bifurcation. Plaintiff filed exceptions to this order which the court dismissed on August 16, 1990. Pursuant to the bifurcation, the court entered a decree granting the divorce on September 10, 1990. Plaintiff appealed, arguing that the court improperly granted bifurcation of the claims and therefore erred in entering the final divorce decree.

Plaintiff and defendant were married on August 16, 1975. Ironically, although it was plaintiff who initiated divorce proceedings four years later, the 11-year history of this case is a saga of plaintiff’s resistance both to resolving the underlying economic issues and to the entry of a final divorce decree. Plaintiff filed her affidavit of consent in March 1982, acknowledging that the marriage was irretrievably broken and agreeing to the entry of a final divorce. The Honorable Richard S. Lowe entered an order on November 3, 1982, appointing a master to resolve the economic claims and deferring entry of the final decree until the claims were resolved. Since the master in equitable distribution scheduled the first hearing in March 1983, either plaintiff herself or through counsel has requested at least six continuances. Six years after Judge Lowe’s order appointing a master, the equitable distribution hearing had not yet occurred. Therefore, in November 1988, defendant petitioned the court for bifurcation of the divorce and economic claims.

The court held a hearing on this petition and several related petitions on April 28, 1989. At this time plaintiff, who was represented by counsel, entered into an agreement with defendant which provided in relevant part:

“Mr. Lefkoe: It is my understanding further, that the court will order a listing of a hearing before the master in equitable distribution to be held within 90 days from today’s date for which there is to be no continuance. It is further my understanding that we have agreed that if this matter is not resolved finally within six months from this date, that the court will issue an order bifurcating the divorce action.” (N.T., April 28, 1989, at 5.)

Plaintiff stated, on the record, that she understood and assented to the agreement stated by counsel and consented to its being entered as a court order. (N.T., April 28, 1989, at 9-10.) Within the same week, however, plaintiff dismissed the attorney who had represented her at this hearing. Through new counsel, plaintiff requested a continuance of the equitable distribution hearing scheduled 90 days later, to which she had agreed there would be no continuance.

In November 1989, because six months had elapsed since the court entered its order pursuant to this agreement and the equitable distribution hearing had still not taken place, defendant petitioned the court for bifurcation of the claims according to the terms of the agreement. The court held a hearing on the bifurcation issue on April 17, 1990. Both sides were represented by counsel and presented evidence. On June 8, 1990, the court entered an order granting defendant’s petition for bifurcation. Plaintiff filed exceptions to this order which the court dismissed on August 16, 1990. The court entered the final decree in divorce on September 10, 1990.

DISCUSSION

On appeal, plaintiff apparently attacks the underlying decision to bifurcate the claims which formed the basis for the subsequent entry of the divorce decree. Although plaintiff filed two sets of exceptions to the bifurcation order, she did not file either exceptions or post-trial motions after the court entered the divorce decree. In order to preserve issues for appellate review, plaintiff must file post-trial motions:

“Where, as here, an order of bifurcation is opposed prior to the entrance of the divorce decree, opposition must be expressed in some fashion at the time the court granted bifurcation, and then, after the entrance of the divorce decree, post-trial motions must be filed pursuant to Pa.R.C.P. 227.1 stating how the grounds were asserted in the earlier proceeding. . .
“Because appellant has failed to file motions in accordance with Rules of Civil Procedure, 227.1 to 227.4 inclusive, following the issuance of the divorce decree, she has not preserved any issues for review.” Mosier v. Mosier, 359 Pa. Super. 187, 195-6, 518 A.2d 843, 847 (1986).

However, even though plaintiff waived her right to raise any issues on appeal, there is no merit to her assertion that the court erred in granting the order to bifurcate.

The Pennsylvania Divorce Code permits the severance or bifurcation of economic claims from divorce claims. 23 P.S. §401(b). “Bifurcation separates the termination of the marriage from the distribution of property so that the marriage and each party’s personal life are not held hostage to economic demands.” Wolk v. Wolk, 318 Pa. Super. 311, 315, 464 A.2d 1359, 1361 (1983). The court need not find compelling reasons before making a decision to bifurcate. Id. However, this decision should be an individualized rather than a pro forma determination:

“Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition. . .
“Since the decision to bifurcate is discretionary, we will review lower court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, thoughtfully studies the information and then explains his decision regarding bifurcation, we defer to his discretion.” Id.

The court conducted a full hearing on the sole issue of the petition to bifurcate on April 17, 1990. The evidence presented revealed that the parties had been married for four years and separated for 11. Both sides agreed that the marriage was irretrievably broken. Since 1987, defendant has been living with another woman whom he intends to marry. Plaintiff not only initiated the divorce but filed an affidavit of consent to divorce eight years ago. The parties have been awaiting a hearing in equitable distribution since that time. The delay in hearing was largely attributable to plaintiff. The sole marital asset is now sold and the funds are in escrow awaiting distribution.

Plaintiff opposed bifurcation because her medical benefits through defendant’s former employer would terminate upon divorce. In addition, the social security benefits which plaintiff received as the wife of a social security recipient would also end when the divorce was final.

Weighing all the factors, the court determined that the advantages far outweighed the possible disadvantages. Although termination of medical benefits would be seriously detrimental to plaintiff, this matter could be resolved through alimony pendente lite, alimony and the wife’s obtaining continued coverage from another carrier. Divorce does not alter the right of a former spouse to a support or alimony award. Pastuszek v. Pastuszek, 346 Pa. Super. 416, 426, 499 A.2d 1069, 1074 (1985). In this regard, the court also found that plaintiff had not made a good-faith effort to secure alternate coverage. The court in Taylor v. Taylor, 349 Pa. Super. 423, 428, 503 A.2d 439, 442 (1986), found that the loss of medical benefits, even when plaintiff had a current medical problem, was not so overwhelming a disadvantage as to outweigh the advantages of bifurcation:

“While we may be sympathetic to appellant’s plight, the disadvantages that she has alleged are not so overwhelming or of such magnitude that we are compelled to reverse the discretionary decision of the trial court. Appellant has an enforceable support order in place. If appellee is not making the required payments, as alleged, appellant has a remedy which is unrelated to the bifurcation issue. If a significant change in circumstances occurs, such as the loss of medical benefits, appellant can petition for a modified support order.”

In the present case, plaintiff has an enforceable support order and also the option to petition for modification. As far as the loss of social security benefits were concerned, the court found that this loss was counterbalanced by the fact that the parties had only lived together for four years prior to their separation.

There was no question that this marriage was irretrievably broken and divorce was certain. As is often the case, there were unfortunate but unavoidable consequences to the dissolution of this marriage. Plaintiff was destined to lose both the medical and social security benefits after equitable distribution resolved the economic claims. Resistance to bifurcation at this point in time was merely an attempt to postpone the inevitable.

The court assembled sufficient information in this case, carefully weighed its decision and fully explained its reasons for granting the petition. (See orders of June 8, 1990 and August 16, 1990.) These parties had appeared before this same court on several occasions and the circumstances surrounding this case were well-known to the court. In fact, this court had previously heard argument on the bifurcation issue on December 12, 1989 but agreed to postpone making a decision hoping that an equitable distribution conference scheduled for January 1990 would resolve the issue. However, the parties appeared before the court in April 1990 with the economic claims still unresolved. The decision to bifurcate was an informed, reasoned and deliberate decision, not a pro forma determination.

The court did not abuse its discretion in bifurcating the economic claims from the divorce claim and subsequently entering the divorce. Therefore, the September 10, 1990 order of the court entering a final decree in divorce should be affirmed.

      . Plaintiff initially appealed the court’s order granting bifurcation. The Superior Court denied plaintiff’s petition for permission to appeal because bifurcation is an interlocutory matter. While the bifurcation order is not a final, appealable order, it is appropriate to raise the issue of bifurcation on appeal from the divorce decree itself. Mosier v. Mosier, 359 Pa. Super. 187, 518 A.2d 843 (1986).

      . Plaintiff requested most of these continuances due to counsel changes. Since plaintiff filed for divorce, she has changed counsel four times and within two separate intervals has appeared pro se. Plaintiff’s exhibit 1, received into evidence at the bifurcation hearing on April 17, 1990, chronicles these counsel changes and requests for continuances.

      . Another principle part of the agreement reached at this hearing concerned the sole marital asset of the parties, a farm owned by defendant prior to the marriage. The parties agreed to execute an agreement of sale for the property. Since that time, the farm has been sold and defendant and plaintiff have each received $50,000 from the sale. The balance of the proceeds are being held in escrow pending equitable distribution.

      . Plaintiff filed additional “exceptions” to the August 16, 1990 order dismissing the original exceptions. Because these “exceptions” did not raise any new issues not previously considered, the court also dismissed these exceptions by order dated August 24, 1990.


author: ROSENWALD, J.,

text:
    Pellot v. D&K Financial Corp.

      Joseph Di Giovanni, for plaintiffs.

      James Moughan, for defendant.
    January 28, 1991
   ROSENWALD, J.,

This case comes before the court on a motion in limine filed by defendant. Defendant requests this court to preclude plaintiffs from introducing or referring to any evidence regarding special damages, in particular medical bills or wage losses.

This case arose out of a motor vehicle accident between Eleuterio Pellot and David Sperduto, which occurred on February 13, 1987. At the time of the accident, plaintiff, Eleuterio Pellot, was the owner of a registered motor vehicle but he did not have the requisite financial responsibility required by 75 Pa.C.S. §1701 et seq. Plaintiff William Ortiz was a passenger in the Pellot vehicle at the time of the accident. Ortiz, however, was the registered owner of an uninsured motor vehicle.

In the present action, liability and the alleged injuries are in dispute. The outstanding medical bills, lost wages and property damage of both plaintiffs are as follows:

Eleuterio Pellot

Medical Bills $2,082.00

Wage Loss $1,533.84

Property Damage $1,110.65

William Ortiz

Medical Bills $1,485.00

Counsel for defendant asserts that both plaintiffs are barred from recovering their first-party benefits [medical bills and wage losses] because neither plaintiff is eligible to recover first-party benefits pursuant to sections 1714 and 1722 of the Motor Vehicle Financial Responsibility Law. Plaintiff, on the other hand, argues that neither plaintiff is barred from recovering first-party benefits under the Motor Vehicle Financial Responsibility Law.

DISCUSSION

A. Section 1714 of the Motor Vehicle Financial Responsibility Law

The issue before this court is whether section 1714 and section 1722 of the Motor Vehicle Financial Responsibility Law, hereinafter the act, prevents the owner of a registered uninsured motor vehicle from recovering his/her medical bills and wage loss (first-party benefits under the act) against a third-party tort-feasor. To answer this question, this court must examine the appropriate sections of the act in light of its legislative purpose.

The act specifically delineates between those claimants who are eligible to recover first-party benefits and those who are ineligible to recover first-party benefits. Section 1714 of the act states:

“An owner of a currently registered motor vehicle who does not have financial responsibility or an operator of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle, motorized pedacycle or like type vehicle required to be registered under this title cannot recover first-party benefits.”

Section 1714 of the act has been interpreted to prohibit the registered owner of a motor vehicle from recovering first-party benefits from an insured third-party tort-feasor. This prohibition has been challenged on constitutional grounds as a violation of the Equal Protection Clause of the 14th Amendment.

In Mowery v. Prudential Property and Casualty Insurance Co., 369 Pa. Super. 494, 535 A.2d 658 (1988), the Superior Court of Pennsylvania was faced with the issue of whether section 1714 of the act denies equal protection of the law to individuals who have failed to obtain the requisite financial responsibility. The court answered in the negative and held:

“The purpose of Motor Vehicle Financial Responsibility Law is to require owners of registered vehicles to be financially responsible, and the exclusions of persons from benefits under the act, if they are not financially responsible by having automobile insurance, is clearly reasonable as it fosters the goal of promoting financial responsibility among motorists. The appellant may not be heard to complain about her exclusion from benefits under a system of insurance to which she willfully refused to participate by failing to obtain the insurance required by the act. ” Mowery, at 502-3, 535 A.2d at 663. (footnote omitted; emphasis supplied)

Furthermore, in DeMichele v. Erie Insurance Exchange, 385 Pa. Super. 634, 561 A.2d 1271 (1989), the Superior Court reasoned that any person who owns a registered motor vehicle which is required to be insured under the act is ineligible to receive first-party benefits, regardless of the involvement of his or her automobile in the underlying incident. In the case at bar, William Ortiz, as an allegedly injured passenger, falls into the class of individuals that the DeMichele court precluded from recovering first-party benefits. The preclusion of recovering first-party benefits is reasonable because such preclusion reduces the number of uninsured motorists consuming the benefits of liability insurance without contributing toward their expense.

Preclusion under section 1714 is reasonable because it fosters the goal of promoting financial responsibility among motorists. Moreover, preclusion under section 1714 is in consonance with the purpose of the act. “The statute was created to ensure that one may not receive first-party benefits unless he has the ability to provide them to another.” DeMichele at 637, 561 A.2d at 1273. Moreover, the preclusion is “designed to reduce the number of uninsured motorists consuming the benefits of liability insurance without contributing toward their expense.” Blair v. Travelers Insurance Co. et al., 21 Phila. Rep. 289, 292 (1990), quoting Kresge v. Keystone Insurance Company, 389 Pa. Super. 548, 567 A.2d 739 (1989).

In the case at bar, both plaintiffs are precluded from recovering first-party benefits [medical bills and wage losses] from defendant. Mr. Pellot and Mr. Ortiz, as owners of registered motor vehicles, were required to obtain the requisite financial responsibility. The failure of both plaintiffs to obtain the necessary financial responsibility has caused them to become ineligible claimants under section 1714 of the act.

B. Section 1714 and Section 1722 of the Motor Vehicle Financial Responsibility Law

The next step in the analysis is to determine whether an ineligible claimant under section 1714 is precluded from introducing into evidence or recovering the amount of benefits paid or payable under section 1711 or section 1715(a) (1.1). Section 1722 states:

“In any action for damages against a tort-feasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverage set forth in section 1711 (relating to required benefits) or the coverage set forth in section 1715(a)(l.l) (relating to the availability of adequate limits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under section 1711 or 1715(a)(l.l). This preclusion only applies to the amount of benefits set forth in section 1711 and 1715(a)(l.l).”

Section 1722 operates to preclude an eligible claimant from the possibility of double recovery to the “extent of the minimum first-party benefits from an alleged third-party tort-feasor.” Reeder v. Young, 48 D.&C. 3d 432, 433 (1988). While section 1722 precludes eligible claimants from pleading or proving benefits paid or payable under sections 1711 and 1715(a)(1.1), the act is silent as to whether an ineligible claimant, i.e., an uninsured motorist, may plead and prove all benefits which would have been paid under sections 1711 and 1715(a)(1.1).

A strict reading of the act would lead one to conclude that section 1722 only applies to eligible claimants rather than ineligible claimants as defined in section 1714; thus, preclusion under section 1722 is not applicable to the ineligible (section 1714) claimant. This view was adopted in Gladfelter v. Robinson, Adams County No. 86S34 and 86S732 (1986), and Frye v. Pierrotti, 49 Fayette L.J. 124 (1986). On the other hand, when construing an insurance statute, courts must apply a liberal interpretation to the statute and avoid a result which is contrary to the purpose of the statute. See generally, Miller v. U.S. Fidelity and Guaranty Co., 304 Pa. Super. 43, 450 A.2d 91 (1982) (where court held that since insurance statutes are not among those types of statutes designated by the legislature as requiring strict construction, courts are to construe them liberally in order to effect their purpose.) 1 Pa. C.S. §1928(c).

When “construing a statute which is not explicit, we are required to presume that the General Assembly intended the entire statute to be effective, and that the General Assembly did not intend a result which is absurd or unreasonable.” Pennsylvania Public Utility Commission v. Commonwealth, 23 Pa. Commw. 566, 574, 353 A.2d 887, 891 (1976). (footnote omitted) Moreover, when ascertaining the intention of the General Assembly in the enactment of a statute it is presumed that the General Assembly intends to favor the public interest as against any private interest. See 1 Pa.C.S. §1922(5); Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976). Therefore, this court must examine the rights of an individual who has willfully failed to obtain the requisite financial responsibility against the purpose of the Motor Vehicle Financial Responsibility Law.

When construing sections 1714 and 1722 of the act, this court is “required to presume that the General Assembly intended the entire statute to be effective, and that the General Assembly did not intend a result which is absurd or unreasonable.” Pennsylvania Public Utility Commission v. Commonwealth, supra, at 574, 353 A.2d at 891 (1976). Section 1722 when read in conjunction with the purpose of the act and the relevant statutes regarding the recovery of first-party benefits will not allow an ineligible claimant under section 1714 to plead or introduce into evidence his/her medical bills and wage losses merely because it is silent as to ineligible claimants. Allowing an uninsured motorist to plead, prove or introduce into evidence the amount of medical bills and wage losses would lead to an absurd result and be contrary to the purpose of the act.

The legislature intended to exclude ineligible claimants [uninsured registered owners of motor vehicles] from recovering first-party benefits [medical bills and lost wages] under section 1714. Based on the intention of the General Assembly, this court finds that an unreasonable and absurd result would occur if the courts would allow an ineligible claimant under section 1714 to prove, plead and introduce into evidence any medical bills or wage losses as the result of an automobile accident under section 1722, merely because section 1722 is silent as to ineligible claimants.

An absurd result would occur because an ineligible claimant would be allowed to plead, prove and introduce into evidence the very thing he is excluded from recovering against a third-party tort-feasor, his medical expenses and wage losses.

Therefore, this court finds that section 1722 of the Motor Vehicle Financial Responsibility Law does not allow an ineligible claimant under 75 Pa.C.S. §1714 to plead, prove or introduce into evidence his would’be first-party benefits under section 1711 of the act [medical expenses, wage loss] during any part of the litigation process.

CONCLUSION

Mr. Pellot and Mr. Ortiz as ineligible claimants are precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under sections 1711 or 1715(a)(l.l) of the act. This ruling, however, does not limit the rights of either plaintiff because each plaintiff may still bring an action against defendant under any theory of liability.

       Section 1722 of the act was amended to read as follows:
      “§1722. Preclusion of recovering required benefits

      “In any action for damages against a tort-feasor, or in any uninsured or underinsured motorist proceeding ... a person who is eligible to receive benefits under the coverage set forth in this subchapter . . . shall be precluded from recovering the amount of benefits paid or payable under this subchapter . . . or other arrangement for payment of benefits as defined in section 1719.” 75 Pa.C.S. §1722, as amended by Act of February 7, 1990 (effective July 1, 1990).