text:
    Smith v. Smith

      Andrew Brown, for plaintiff.
    No appearance for defendant.
    August 16, 1989
   KUHN, J.,

The parties, James R. Smith and Brenda L. Smith, are engaged in protracted divorce litigation. One of the issues to be resolved is whether proceeds from a certain wrongful death action is marital property.

The parties were married on February 20, 1979, and were finally separated on April 11, 1988. Husband fathered a child, Raymond Smith, from a prior marriage. On December 2, 1985, Raymond Smith, then age 25, was killed in a construction accident in Dallas, Texas. Husband joined in litigation regarding his son’s untimely death. On or about October 20, 1988, husband received $62,806.08 as net proceeds from settlement of his action. Of this sum husband designated $15,000 to be paid to his divorce lawyer. Court approval of the settlement was signed by a Texas judge on November 11, 1988.

Husband filed the parties’ divorce action in Adams County on May 31, 1988, and wife answered September 12, 1988. However, the parties appeared in York County to pursue the divorce and on September 21, 1988, husband was ordered by Honorable Sheryl Domey of York County to place all settlement funds in escrow with his counsel. On December 6, 1988, Judge Domey dismissed the York County action and the proceedings were returned to Adams County.

On September 6, 1988, wife filed a petition for special relief in our court seeking, inter alia, an order directing husband to place all proceeds of the accident settlement in escrow pending equitable distribution. A hearing was set for October 24, 1988, but was not held because of the transfer of the divorce to York County. On January 5, 1989, we ordered the matter set for hearing on January 23, 1989. Husband filed an answer on January 17, 1989.

On December 19, 1988, without knowing the amount of husband’s settlement, wife filed a petition for temporary order that all settlement proceeds be deposited with the prothonotary. After review of the petition, in which she alleged her poor financial condition, a pending sheriff’s sale of marital real estate, and a belief that husband might leave Pennsylvania, we directed husband and his counsel to make that deposit within five days. Counsel responded properly but husband has yet to make any deposit.

On January 4, 1989, wife filed a petition for alimony pendente lite, counsel fees, costs and expenses. Hearing on this matter was also set for January 23, 1989.

On January 9, 1989, husband filed an action for declaratory judgment seeking a ruling that the settlement proceeds do not constitute marital property.

We have held hearings on the above petitions on January 23, April 18, April 20, June 7, and June 8, 1989, without completion of the testimony. Hearings scheduled for July 20, 1989, and August 4, 1989, were continued because husband filed bankruptcy and refused wife’s request to lift the stay of all proceedings resulting from said filing. However, because we are in a position to decide whether the settlement proceeds are marital property, whether those funds can be held in escrow and drawn upon for alimony pendente lite, and to expedite matters at the parties’ request, we have written this opinion.

The first issue presented is whether proceeds from a wrongful death action which accrued during the course of the marriage by a husband, who is the natural father of the decedent, is marital property. Based upon our research this is a case of first impression in Pennsylvania.

In section 401(d) of the Divorce Code, 23 P.S. §401(d), the legislature gave the courts authority to equitably divide and distribute marital property. The term “marital property” is defined as all property acquired by either party during the marriage except eight specifically enumerated types of property. 23 P.S. §401(e). Section 401(f) further provides that:

“All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by á method listed in subsection (e).”

Exception no. 8 in section 401(e) is the only place where settlement proceeds are specifically mentioned, wherein it excepts from marital property:

“(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.”

Wife argues that because the wrongful death cause of action accrued during marriage and the proceeds are not otherwise excluded by section 401(e) the proceeds are marital property. Husband contends that because wife had no right to seek redress for Raymond Smith’s death under Texas law nor to inherit from his estate as a stepmother an absurd result would be effected by declaring the proceeds to be marital property. He also suggests that such proceeds are more akin to an inheritance which would be excluded as marital property. Section 401(e)(3).

Our courts had occasion to discuss settlement proceeds in the context of marital property in several cases. In Platek v. Platek, 309 Pa. Super. 16, 454 A.2d 1059 (1982), the wife had been injured during the course of the marriage and sued for her injuries. Proceeds of settlement were received prior to separation. The wife argued that those proceeds were not marital property as they were property “acquired in exchange for property acquired prior to the marriage.” Section 401(e)(1). Instead, the court held that the legislature never intended to except the proceeds of the settlement of a personal-injury claim. The function of a body part was not considered to be property acquired prior to marriage, therefore, a settlement for loss of that function would not be the type of exchange contemplated by section 401(e)(1).

In Hurley v. Hurley, 342 Pa. Super. 156, 492 A. 2d 439 (1985) the issue was whether a verdict for personal injuries sustained by a spouse prior to separation, where the verdict is recovered and satisfied by payment after separation, is marital property. In holding that these proceeds were not marital property the court found the significance in the claim’s unliquidated status at the time of separation. The Hurley court noted that:

“Only after an unliquidated claim for personal injuries has became liquidated by settlement, verdict, or otherwise should it be deemed ‘marital property’ and become subject to distribution between the spouses. [The wife’s] claim for personal injury in the instant case became liquidated by verdict after the parties had separated. We conclude, therefore, that [the wife’s] recovery of damages for personal injuries in this case was not marital property which the court could properly divide between the parties. It represented property acquired after separation.” Hurley at 161, 492 A.2d at 442.

Importantly, however, the court did observe that:

“Modem decisions suggest that the term ‘property’ refers generally ‘to rights of action arising out of tort as well as contract, whether such right of action is for injury to the person or to the property.’ 73 C.J.S. Property, §22 (1983).” Hurley at 160, 492 A. 2d at 441.

However, section 401(e)(8), added February 12, 1988, appears to embody the legislative response to the holding in the Hurley decision. As noted above, that section only excepts from the definition of marital property proceeds from causes of action accruing before marriage or after separation regardless of when the payment is received. In those situations the claim is considered a premarital or post-separation asset. By not excepting tort actions accruing during marriage from the definition of marital property we can assume that the legislature intended those property rights to be included within the definition.

We conclude that settlement proceeds arising from a cause of action which accrued during marriage but which are received after separation is marital property. Certainly this is a logical response to Hurley, otherwise injured spouses could intentionally delay settlement after separation in order to gain substantial economic windfall.

The question now becomes whether a recovery occasioned by the wrongful death of husband’s son who is not wife’s son is the type of “award or settlement” intended by the legislature when it enacted section 401(e)(8). The language of the section itself makes no such distinction. The cases decided previously by our appellate courts dealt specifically with injuries to the spouse.

According to information provided to the undersigned, the Texas Wrongful Death Statute is set forth in Texas Civil Practice and Remedies Code, ch. 71, §71.001, et seq. Section 71.002(a) provides:

“An action for actual damages arising from an injury that causes an individual’s death may be brought if liability exists under this section.”

Section 71.004(a) sets forth who may bring the action.

“An action to recover damages as provided in this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.”

Section 71.010(b) provides the basis for awarding and apportioning damages.

“The damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at the time.”

Texas law also allows a parent in a wrongful death action to recover loss of companionship and society and for mental anguish resulting from a child’s death. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). In Pennsylvania, of course, wrongful death damages compensate the beneficiaries for pecuniary loss they have sustained by denial of future contributions the deceased would have made in his/her lifetime together with recovery of certain administration, funeral and medical expenses. Burkett v. George, 118, Pa. Commw. 543, 546-7, 545 A.2d 985, 987 (1988). No claim for mental anguish has been recognized in Pennsylvania in wrongful death actions.

Husband contends that wrongful death recovery is similar to an inheritance because in Pennsylvania the recovery is apportioned in accordance with intestate percentages. 42 Pa.C.S. §8301(b). An inheritance is not marital property. 23 P.S. §401(e)(3). However, it is clear that under Texas law the cause of action belongs to each, person within the designated class of beneficiaries and each must prove his/her respective actual damages which the jury then individually awards. In this respect Texas again differs from Pennsylvania.

Even though husband’s recovery was based upon a settlement we assume that his loss was related more to mental anguish than a pecuniary loss occasioned by the death of an adult married son who resided in another state. Therefore, it is our opinion that the recovery received by husband was more analogous to a personal-injury recovery, that is marital property, than an inheritance.

Having thus determined that the settlement proceeds are marital property, an issue is raised whether we had authority to order the escrowing of these funds. We recognize that hearings have not been completed to date. However, both parties have accused the other of dissipating substantial assets. Although there are some tangible assets such as the marital real estate and vehicles, wife filed for bankruptcy early in this proceeding and husband did likewise recently. Identified debts are substantial. The settlement proceeds are identified as the only liquid asset of the estate. Wife has not been employed and claims medical disability. The testimony to date suggests that husband has considerable marketable skill as a concrete construction supervisor. Husband has not voluntarily contributed to wife’s support nor suggested that he is earning any income despite no apparent physical disability.

In directing husband to escrow the settlement proceeds we felt a need to secure as many assets as possible and thereby to retain the status quo. Authority for this approach is set forth in sections 102(a)(4) and 401(c) of the Divorce Code. In retrospect this decision was appropriate. Although husband’s counsel transferred $15,000 to the prothonotary husband has yet to identify the whereabouts of the balance of the proceeds even though ordered by Judge Domey to escrow those funds as early as September 21, 1988. In fact, in a deposition taken April 4, 1989, husband stated that he “would cut my throat” before obeying a court order to deposit the funds.

We have used the escrowed funds as a source of payment of a temporary alimony pendente lite order favoring wife in the amount of $200 on the basis of Nika v. Nika, 382 Pa. Super. 551, 555 A.2d 1337 (1989).

Since May 23, 1989, wife has pursued this divorce pro se because she was unable to pay counsel. At that time she owed counsel almost $9,000. Husband has been represented by counsel at every stage of the proceeding.

Finally, husband asserts that we have no authority to escrow funds given his counsel as a retainer. A retainer fee is a fee given to counsel to secure his future services. Standard Pa. Practice §4.70. The fee does not automatically become the property of the attorney because, for example, if counsel is discharged he is only entitled to retain reasonable value for his services to the time of discharge. We are not trying to deny counsel their just compensation or deprive husband of counsel; however, based upon the circumstances we have outlined above and the authority of section 102(a)(4) and 401(c) of the Divorce Code, we cannot accept husband’s actions of placing $15,000 of marital property with counsel, apparently disposing of the balance of the settlement proceeds, and then refusing to pay support.

Accordingly, we enter the attached

ORDER OF COURT

And now, August 16, 1989, for purposes of this divorce action, it is hereby directed that the settlement proceeds received by plaintiff as a result of his son’s death are marital property subject to equitable distribution and, pursuant to the equitable powers of this court, shall be held in escrow, unless ordered to be distributed as alimony pendente lite or for such other purpose as the court shall from time to time determine.

       No further hearing is anticipated because the Federal Bankruptcy Court has indicated that it will retain jurisdiction and stay further proceedings in this court.


source: Caselaw Access Project

author: PEREZOUS, J.,

license: Public Domain

text:
    Commonwealth v. Miller

      Kim L. White, assistant district attorney, for the commonwealth.

      William W. Boyd, for defendant.
    June 8, 1989
   PEREZOUS, J.,

Presently before the court are the post-trial motions of defendant, Charles Walter Miller, to his convictions for rape, 18 Pa.C.S. §3121; statutory rape, 18 Pa.C.S. §3122; incest, 18 Pa.C.S. §4302; corruption of minors, 18 Pa.C.S. §6301; and indecent assault, 18 Pa.C.S. §3126.

Defendant has advanced three reasons to support his motion in arrest of judgment and five reasons to support his motion for a new trial. Defendant has briefed only two of the reasons supporting his motions. Therefore, pursuant to local rule 31 the reasons which have not been briefed by defendant are waived.

On August 9, 1988, an omnibus pretrial motion was filed by defendant which included a motion to dismiss and a motion in limine. The commonwealth answered both of these motions. On August 22, 1988, the court in an order by the Honorable Louis J. Farina denied the motion in limine. On September 7, 1988, the court, under an order issued in open court by the writer of this opinion, denied the motion to dismiss. On September 8, 1988, pursuant to 18 Pa.C.S. §3104, defendant presented “defendant’s offer of evidence of victim’s sexual conduct.” After argument on the record this offer was refused.

The commonwealth alleged at trial that on one occasion during July or August 1985, defendant sexually assaulted his 12-year-old daughter, Christy Miller. Defendant attempted to introduce a statement by the victim made after September.1985 to her sister, Veena Miller, that she had had sex with a boyfriend after September 1985 and it was her first sexual experience. Defendant claimed that the statement impeached the victim’s credibility since it was evidence that the victim had sex with no one during the summer of 1985. Defendant was therefore contradicting the victim’s assertion that she had sexual intercourse with her father during the summer of 1985. The commonwealth objected to the introduction of the statement and this objection was sustained.

In rebuttal the commonwealth introduced statements made by the victim to two of her friends. In each of these statements the victim said to her friends that her father had had sexual intercourse with her. The commonwealth contended that these statements were admissible as prior consistent statements which tended to bolster the victim’s credibility. Defendant’s objection that the statements were inadmissible hearsay was overruled.

ISSUES

The first issue is whether the Rape Shield Statute, 18 Pa.C.S. §3104, prohibited the introduction of the victim’s statement to her sister that she had sexual relations with a boyfriend in September 1985 and it was her first time. On September 8, 1988, Mr. Boyd, defense counsel, and Ms. White, assistant district attorney, were in the judge’s chambers when the following occurred:

THE COURT: Let’s go on the record. There has been filed by counsel for the defendant an offer of evidence of the victim’s sexual conduct whereby Charles Miller would offer testimony by another of his daughters, Veena,, V-e-e-n-a, that the victim, her sister, Christy Miller, admitted to her that she, Christy, had sexual relations with a boy her age and it was her first time.

Thése relations taking place approximately in September of 1985.

Now, Mr. Boyd, do you wish to elaborate at all on that?

MR. BOYD: Yes. Well, it’s the defense’s position that the testimony would come in either on cross-examination of the victim, Christy Miller, or on the defense’s case in chief.

The sole purpose for which is to permit the jury to determine the credibility of the victim when — as to the time that this offense took place.

It would be our contention that if the testimony comes in and the testimony is that this incident with Christy and the boy her own age took place in or after September 1985 and the jury were to find or were to believe that this indeed was her first sexual encounter of this nature, that they would not be inclined to believe that she had a sexual relationship with her father prior to that and it would be for that purpose that we would offer this testimony.

THE COURT: All right, Miss White?

MS. WHITE: It would be the commonwealth’s position that there was an in camera hearing held that the victim would testify that, in fact, this conversation did take place; that, in fact, she did say yes to the question, I had sex for the first time and that she would go on to explain that she did not consider being sexually abused by her father from the time she was a little girl as the same thing as having voluntarily and consensual sexual intercourse with someone that she has feeling for and wanted to participate with.

Consequently, that negates any inconsistent statement that the defense would want to raise any issue of credibility and would leave that evidence only in to show the moral turpitude of the victim, which is directly against the rape shield statute.

THE COURT: Off the record for a moment.

(Discussion off the record.)

THE COURT: Back on the record. I have reviewed Commonwealth v. Black at 331 Pa. Super. 548[, 487 A. 2d 396 (1985)] and based on the motion and offer of proof as has been stated, the court determines that they are not sufficient on their faces to show — to reveal — strike to reveal — to impeach the credibility of the prosecutrix and certainly not to reveal a specific bias against the defendant or a motive to falsely accuse the defendant.

Furthermore, the court also determines that the introduction of the proffered evidence by the defendant constitutes a collateral issue which would likely —which would be likely to distract the jury. And the court thereby refuses the offer of proof. MR. BOYD: Off the record.

(Discussion held off the record.)

MR. BOYD: Then, Your Honor, defense would like the opportunity to present testimony during its case in chief as to the conversation alluded to earlier and argue at that time, out of the presence of the jury, or in chambers, that the sexual experience about which Veena Miller had a conversation with her sister, Christy Miller, took place after the time of the relationship between Christy and her father, the defendant in this case, and we would at that point argue then that this is not past sexual conduct as that term is used in section 3104 of the Crimes Code but that it is conduct which occurred after the date of the contacts between the defendant and his daughter, Christy, and therefore, would not come within the parameters of the rape shield statute.

And I would then make a point, if we demonstrated that, to proceed to reopen this issue.

THE COURT: All right. The record is protected to that extent and your course of action can be determined by the evidence that’s introduced in behalf of the commonwealth. Okay, Now, off the record.

The introduction into evidence of Christy Miller’s statement and her explanation of that statement would have had three consequences. The first would have been to cast doubt upon the credibility of the victim’s statement that defendant had had sexual relations with her in July/August 1985. The second would have been to introduce evidence of another sexual experience of the victim. The third would have been to introduce additional and possibly myriad allegations of sexual abuse of the victim by defendant.

Although the trial judge, in announcing his ruling, stated that the offer of proof and motion of defendant were insufficient “on their faces” to impeach the credibility of the prosecutrix under the Rape Shield Law or to reveal a specific bias against defendant under Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396 (1985) or a motive to falsely accuse defendant, it would appear, on review of the transcript, that the court indicated the basis for its ruling too narrowly and that, instead, should have expressly stated that its rationale was based not only on the stipulated summaries of testimony but also upon the clarification of the victim herself that “she did not consider being sexually abused by her father from the time she was a little girl as the same thing as having voluntarily and consensual intercourse with someone that she had feeling for and wanted to participate with.”

Without the victim’s explanation, her statement as to having had sex for the first time becomes nothing more than an admission of sexual conduct with someone other than defendant which is specifically proscribed by section 3104 of the Crimes Code. With her explanation, her statement is expanded into an accusation of sexual abuse by the father from the time she was a little girl. This would have been extremely prejudicial so as to inflame the minds of the jury against defendant. The trial court made the balancing determination between the probative value of the entire statement of the victim and the unfair prejudice to defendant and disallowed its introduction into evidence because the possible relevancy was substantially outweighed by the likelihood of prejudicial effect. Whether the evidence should have been admitted or excluded must rest in the exercise of a sound discretion by the trial court, Black at 561, 487 A.2d at 401. After all the effects of victim’s statement and her explanation were considered and weighed, the court in its discretion decided to not allow the prejudicial statement into evidence.

Defendant’s second argument in support of his post-verdict motion is that the court erred when it allowed into evidence hearsay testimony of Dawn Thompson and Barbara Barnett that in 1986 and 1987 the victim had stated to them that she had been sexually abused by her father. In effect the commonwealth offered into evidence prior consistent statements of the victim concerning her sexual abuse by defendant.

Prior consistent statements may be offered for the purpose of rehabilitating a witness who has been impeached by an allegation that his trial testimony is “recently” fabricated, biased, or influenced by corrupt motives and, when so offered, do not constitute hearsay. Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986). In order for the prior statement to be admissible, it must have been made before its effect on the case could have been foreseen or before the corrupt motive or influence existed. Commonwealthv. Wilson, 394 Pa. 588, 148 A.2d 234 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed. 2d 82 (1959); Commonwealth v. Gore, 262 Pa. Super. 540, 396 A.2d 1302 (1978). “It is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” Gore at 550, 396 A.2d at 1307.

The aforementioned cases disclose two conditions which must be met before prior consistent statements will be admitted into evidence: (1) That there is at least an implied allegation of recent fabrication of the prior consistent statements; and (2) that the prior consistent statement antedated the existence of the motive for fabrication.

Defendant denied the accusations against him. He offered other witnesses’ testimony that he was not at the location of the alleged incident during the period of time it was alleged to have occurred. Defendant was denying that the incident took place and in so doing he was implying that the victim was fabricating the charges. Hence, the first precondition was satisfied.

The statements to the witnesses clearly antedated the existence of a motive for fabrication since the statements occurred in 1986 and 1987 and charges were not filed until 1988. Therefore, the two conditions which must be met before prior consistent statements will be admitted were satisfied and the statements were properly admitted into evidence.

Accordingly, we enter the following

ORDER

And now, June 8, 1989, for the reasons stated in the attached opinion, defendant’s, Charles Walter Miller, motions in arrest of judgment and for a new trial are hereby denied and he is directed to appear for sentencing at the call of the district attorney, after a presentence investigation has been prepared and filed by the Lancaster County Office of Probation and Parole.


author: DOWLING, J.,

text:
    Commonwealth v. Lawrence

      Jerry J. Russo, assistant district attorney, for the commonwealth.

      Thomas A. Thornton, for defendant.
    February 20, 1990
   DOWLING, J.,

What are the parameters within which a valid search warrant permits the police to investigate a suspect and his property, when the specific focus of the search is outside the precise limits of the warrant?

The facts are comparatively simple. Defendant was stopped while driving away from his residence, one mile from his home, by agents of the Bureau of Alcohol, Tobacco and Firearms of the U.S. Treasury Department, who were executing a valid warrant for the search of the defendant’s residence, issued by a federal magistrate. The warrant authorized a search for firearms, ammunition, and other related accessories, as well as the documentation relating to their purchase or possession.

When defendant stepped from his car in response to the agents’ request, he was patted down for weapons, and was found to be carrying a large folding knife in a leather holster. Upon detection of a round object in defendant’s left front pocket, the agents requested that he produce it for inspection. The accounts vary as to exactly what happened next, but no one disputes that the object, a film container which was later found to contain methamphetamine, went flying into the adjoining bushes. (Defendant claims it “went flying” when one of the agents pulled his hand out of his pocket; the agents claim defendant threw it away, prior to striking one of them in the face.) Lawrence wás then placed under arrest for unlawful possession of a controlled substance.

The only material issue is whether the search and seizure was lawful and properly conducted. The question of whether defendant has standing to challenge the search and seizure — a matter which the commonwealth has seen fit to brief for the court’s review — is, in this instance, moot, since, even if that question is answered in the light most favorable to defendant —r affirmatively — it will avail defendant little if we find that there is nothing about the proceedings which will yield to such a challenge. In addition, we can easily dispose of the issue of the “abandonment” of the film container which was found to contain methamphetamine. If defendant’s account of how the film container happened to fly into the adjoining foliage is accurate, the container was, in essence, dropped by accident; and it staggers the imagination to suggest that an article otherwise within the penumbra of a valid search can be taken out of it by an accidental dropping. If, on the other hand, the account of the agents is accurate, and the container was tossed deliberately away, we concur with the commonwealth’s reliance on Commonwealth v. Rodriquez, 385 Pa. Super. 1, 559 A.2d 947 (1989), which holds that where evidence is abandoned, the defendant is deprived of his expectation of privacy in its contents.

For the reasons set forth below, we find that the search and seizure of defendant was consonant with the standards currently set forth in both case and statutory law, and that it was therefore proper and lawful.

We are unpersuaded by virtually every facet of defendant’s reasoning in this matter. The argument that the agents “had complete control of the property through sheer numbers,” and were therefore unjustified in searching defendant, ignores a basic element of a search for weapons: namely, that firepower gives a single individual a destructive capability which bears no relationship to his numerical inferiority. Nor does defendant’s statement that “it defies the imagination to come up with a weapon that looks like a round film canister” strike any responsive chords in this court’s heart. If this were the year 1890 instead of 1990, defendant would be on solid ground. But, living as we do in an era when a single individual can blow up an entire commercial airliner over a Scottish village, with a sickening loss of life on both air and ground, using a weapon so small and light that it can pass for a portable tape recorder, we consider that to require law enforcement officers to decide on sight what a container could or could not possibly hold is to demand that they have powers of divination. We will not insist upon any. such unrealistic standard by which to judge the conduct of agents engaged in the otherwise above-board discharge of their duties.

Much more central to the instant case, however, is the issue of the propriety of the search and seizure occurring at a distance from the defendant’s residence. We can see no other interpretation that can be drawn from the existing case law than to agree that a warrant authorizing the search of a residence also justifies a search of the occupant under certain defined conditions.

The premier case cited by the commonwealth, Commonwealtkv. Reicherter, 317 Pa. Super. 256, 463 A.2d 1183 (1983), stands for the proposition that:

“The frisk of [the defendant’s] person, in the course of which the handgun that led to the instantly considered charges was discovered, was also properly conducted. Detective Chishlsom, the officer who frisked Reicherter, was aware that Reicherter’s residence was to be searched for narcotics and had previously observed Reicherter in possession of a shotgun. The Supreme Court held in Michigan v. Summers, supra, ‘the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence. . . . The risk of harm to both the police and the occupants is minimized if the officers exercise unquestioned command of the situation.’ 452 U.S. at 702-3. Based on the circumstances present here, the police had a reasonable belief that Reicherter was armed and their frisk of him was fully justified. In any event, as Reicherter was arrested at the time he was placed in the police car for return to his residence (Commonwealthv. Lovette, 498 Pa. 665,450 A.2d 975 (1982)) and as the arrest was proper, the search is justified as incident to lawful arrest. Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980).” Id. at 260-1, 463 A.2d at 1185. (emphasis supplied)

As to the distance of the defendant from his home at the time of the search, we share the view of the Reicherter court when it stated: “Although Reicherter was initially stopped by the police while several blocks from his apartment while the defendant in Michigan v. Summers, supra, was stopped on the front steps of his residence, this is not a difference such as would require a different result: in both cases some transportation of relatively short duration was required to return the defendant to the residence to be searched. ” Id. at 260,463 A. 2d 1185. A distance of one mile certainly qualifies as a distance which can be covered by “transportation of relatively short duration.” This is especially pertinent when one recalls that defendant was asked by the agents to “go back and search” for his firearms at his residence.

Defendant has been unable to cite any case authority contrary to the commonwealth’s base of precedent; indeed, the cases cited by defendant, by his own admission, uphold the “limited right to detain” the occupant of premises that are to be searched. The only arguments to be made are, essentially, subjective ones as to what constitutes the precise limits of this “limited right”; and, as we have stated above, we feel that this case falls securely within these limits.

Accordingly, we enter the following

ORDER

And now, February 20, 1990, defendant’s post-trial motions are denied, and the district attorney is directed to present him for sentencing.


author: RAUSCHENBERGER, P.J.,

text:
    In re Wylie

      Kathryn Linn-Stevenson, deputy attorney general, for the commonwealth.

      Lawrence P. Lutz, for petitioner.
    January 23, 1990
   RAUSCHENBERGER, P.J.,

Presently under consideration before this court is an appeal by petitioner from an order of the Department of Transportation suspending petitioner’s driver’s license.

Petitioner Wylie was notified by the Department of Transportation on July 28, 1989, that his operator’s license had been suspended due to his failure to maintain financial responsibility on a motor vehicle involved in an accident on May 29, 1989.

The Department of Transportation seeks to impose a suspension upon petitioner’s operator’s license pursuant to 75 Pa.C.S. 1785. The statute reads as follows:

“§1785. Proof of financial responsibility following accident
“If the department determines that the owner of a motor vehicle involved in a reportable accident requiring notice to a police department pursuant to section 3746 (relating to immediate notice of accident to police department) did not maintain financial responsibility on the motor vehicle at the time of a reportable accident, the department shall suspend the operating privilege of the owner, where applicable, and the department shall revoke the registration of the vehicle.”

Petitioner was operating an all-terrain vehicle on a public road, which bisects his farm, at the time of the accident. Petitioner and his daughter, a co-rider on the ATV, were struck by a motorcycle while they were traveling from one bam to another on the farm. Both petitioner and his daughter were injured in the accident.

It is uncontroverted that the ATV is a motor vehicle under the broad definition of 75 Pa.C.S. §102.

“ ‘Motor Vehicle.’ A vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.”

Due to petitioner’s injuries this accident was a reportable accident pursuant to 75 Pa.C.S. §3746(a)(1). It is also clear that petitioner did not maintain any financial responsibility on the ATV.

The issue to be determined is whether financial responsibility is required to be maintained on this particular type of vehicle.

The relevant statute in this regard states as follows:

“(a) General rule — Proof of financial responsibility may be furnished by filing evidence satisfactory to the department that all motor vehicles registered in a person’s name are covered by motor vehicle liability insurance or by a program of self-insurance as provided by section 1787 (relating to self-insurance) or other reliable financial arrangements, deposits, resources or commitments acceptable to the department.” 75 Pa.C.S. §1782.

The intent of the legislature is clear that financial responsibility is required on all registered vehicles. In addition, 75 Pa.C.S. § 1781 requires all applicants for registration of a motor vehicle to sign a form acknowledging that the applicant is put on notice that failure to maintain financial responsibility may result in the loss of the motor vehicle registration. A person with a motor vehicle which is not required to be registered would not be aware of the sanctions imposed on registered vehicles. This is further evidence that the legislature intended registered motor vehicles to maintain financial responsibility. In addition, 67 Pa. Code §221.1 defines financial responsibility: “A motor vehicle liability insurance policy or program of self-insurance, complying with the requirements of 75 Pa.C.S. §1787 (relating to self-insurance) and approved by the department, covering all motor vehicles registered in a person’s name. ” As per this definition, financial responsibility only covers all motor vehicles registered in a person’s name. A motor vehicle which does not require registration does not require proof of financial responsibility for the purposes of 75 Pa.C.S. §1781-1787.

Therefore, the decision in this case must rest on whether petitioner’s ATV requires registration. As a general rule ATV’s require a registration. 75 Pa.C.S. §7713(a). The definition of an ATV is “a motorized off-highway vehicle, 50 inches or less in width, having a dry weight of 600 pounds or less, traveling on three or more low-pressure tires and having a seat designed to be straddled by the operator is designated as a Class I all-terrain vehicle.” 75 Pa.C.S. §7702(1).

Since it is uncontested that the vehicle is an ATV, the court finds that the vehicle in this case fits the definition:

There are certain vehicles which are exempt from registration. Included among them are multipurpose agricultural vehicles:

“Any multipurpose agricultural vehicle. Vehicles exempt from registration under this paragraph shall be used exclusively upon a farm or farms owned or operated by the owner of the vehicles or upon highways between: (i) Parts of one such farm, (ii) Such farms located not more than two miles apart.” 75 Pa.C.S. §1302(17).

The definition of multipurpose agricultural vehicle as given in 75 Pa.C.S. §102 is:

“A motor vehicle which is 50 inches or less in width and 600 pounds or less in dry weight and which is used exclusively for agricultural operations and only incidentally operated or moved upon the highways.”

According to testimony of workers on the farm the ATV was used exclusively for agricultural purposes. Pictures of the ATV show a basket on the front of the vehicle and further testimony reveals a trailer is normally attached to the ATV for hauling purposes.

This court finds that the evidence showed that the ATV was exempt from registration as a multipurpose agricultural vehicle, and therefore the petitioner in this case was not required to maintain financial responsibility on this motor vehicle.

ORDER OF COURT

And now, January 23, 1990, the petition for appeal from order of Department of Transportation suspending operator’s license filed by petitioner is sustained.

The secretary is directed to dismiss the petitioner’s license suspension.


author: LOUGHRAN, J.,

text:
    Vigilante v. Knights of Columbus

      James A. Nardelli, for plaintiffs.

      Scott Millhouse, Wesley Long, John R. Orie Jr., Edward Rowe and Ralph Spencer, for defendant Knights of Columbus.
    January 22, 1990
   LOUGHRAN, J.,

Defendant, Knights of Columbus, has moved for summary judgment in the above matter. The facts giving rise to plaintiffs’ complaint and defendants’ motion are as follows.

Defendants Robert L. Kowalkowski and Gloria Kowalkowski leased the social hall of the Knights of Columbus, New Kensington Counsel no. 1381, for the purpose of having a high school graduation party. The leased premises was a social hall which was not licensed by the Pennsylvania Liquor Control Board for the sale of alcoholic beverages. A key for the premises was given to Mr. and Mrs. Kowalkowski and they opened and closed the premises and controlled the graduation event. Allegedly, Mr. and Mrs. Kowalkowski purchased a keg of beer and tap from an outside source and brought the same to the leased premises. There were no employees, agents, servants, workmen or supervisory personnel of the Knights of Columbus assigned or directed to regulate the event or the social hall. Allegedly, minors consumed alcoholic beverages on the premises át the party and an automobile accident occurred resulting in the deaths of the minor plaintiffs, with the driver of the vehicle being in an intoxicated condition.

There is no evidence whether the Knights of Columbus served, furnished or provided alcoholic beverages to a minor or otherwise actively participated in the consumption of alcoholic beverages by a minor. Plaintiffs, however, point out that there was a beer cooler on the premises and that an officer of . the Knights of Columbus was present at the graduation as a guest. However, the evidence also reveals that the beer cooler was locked and that the use of the cooler was restricted to times when the Knights of Columbus held their lodge meetings. Also, an officer of the lodge present at the party was not in attendance at the direction of the lodge and at the time of the party was not acting in his capacity as an officer of the lodge.

The Knights of Columbus argue that they in no way acted in a manner to furnish promote or agree to furnish, or promote alcoholic beverages to a minor, so as to act as any substantial assistance to any negligence resulting in the death of the minor plaintiffs.

The controlling case in matters of this sort is the Supreme Court’s decision Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). In Congini, the Supreme Court extended the scope of liability to include social hosts, who knowingly serve or furnish alcoholic beverages to a minor. The Supreme Court in Congini did not determine the scope of liability for social host. The important fact in Congini was that the intoxicated driver had actually been served the alcoholic beverages by the social host.

Further expansion of social host liability occurred in the case of Jefferies v. Commonwealth of Pennsylvania, 371 Pa. Super. 12, 537 A.2d 355 (1988). The Superior Court of Pennsylvania in Jefferies adopted much of the reasoning of the Court of Appeals for the Third Circuit in the case of Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir. 1986) and extended social host liability to defendants who did not actually furnish, serve, or provide the alcoholic beverages to the minor. The extension occurred through the Criminal Accomplice Statute, 18 Pa.C.S. §306(c). The Jefferies court established a test which should be used to determine the extent of liability in a social host situation involving an intoxicated minor as follows:

“(1) The defendant must have intended to act in such a way so as to furnish, agree to furnish, or promote the furnishing of alcohol to the minor, and
“(2) The defendant must have acted in a way which did furnish, ágree to furnish, or promote the furnishing of alcohol to the minor, and
“(3) The defendant’s act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor.”

The Superior Court, in a case decided a month and a half prior to Jefferies, sustained preliminary objections in the nature of a demurrer filed by two defendants who were landowners where the evidence was such that the landowners did not actually furnish or serve alcoholic beverages to minors. Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987). In Sullivan, the court stated as follows:

“Additionally, it is of note that the plaintiff in Congini also attempted to impose, under a theory of landowner liability, a duty upon the minor plaintiff’s employer, Portersville Valve Co., to have prevented the furnishing of alcohol to the minor plaintiff. The Congini court rejected this theory on the basis that Portersville, while potentially liable as the social host of the function in question, had not committed any affirmative or active negligence, and could not be held liable as a possessor of land in the absence of willful and wanton injury to the licensee-plaintiff. Congini, supra, [at 165,] 470 A.2d at 519. This holding was reiterated by the McCrery court, with respect to a similar argument by plaintiff McCrery that the corporate owner of the restaurant at which he was served should be deemed vicariously liable for the actions of the restaurant’s employees, who were not employees of the corporation itself: ...” Sullivan, supra, citing McCrery v. Scioli, 366 Pa. Super. 455, 485 A. 2d 1170 (1984). (emphasis supplied)

Consequently, the courts of the Commonwealth of Pennsylvania have established a duty not to provide alcohol to minors. However, Jefferies established that the breach of said duty occurred whenever a person or entity intentionally rendered substantial assistance in the furnishing, agreement to furnish, or the promotion of alcohol to the minor. Sullivan determined that a landowner cannot be held liable as a matter of law where said landowner did not commit any affirmative or active negligence. Obviously, if a person or entity committed any affirmative or active negligence in the social host arena, the same would or may constitute substantial assistance under the test enunciated by the Jefferies court. Thus, without affirmative or active negligence, the requirement of substantial assistance cannot be met. It is obvious that the cases require more than the mere ownership or leasing of the premises in order to constitute substantial assistance in the furnishing, agreement to furnish, or the promotion of alcohol to a minor. In the instant matter, the Knights of Columbus, New Kensington Council no. 1381, merely owned and leased the premises to an adult sponsor of a party. Plaintiffs contend that defendant should have provided supervisory personnel. However, this was the precise argument that was advanced and rejected by the appellate courts of Pennsylvania in Congini, Sullivan, and McCrery.

As stated in Sullivan, supra, “Under our analysis, an actor’s negligence exists in furnishing intoxicants to a class of persona legislatively determined to be incompetent to handle its effects. It is the person’s service which forms the basis of the cause of action, not whether or not a putative plaintiff is entitled to recover...” Sullivan at 604, 535 A.2d at 1099, citing Congini, supra, (emphasis supplied by Sullivan court) Plaintiffs in this case have shown nothing more than the fact that the Knights of Columbus leased a social hall to the Kowalkowskis for a graduation party. Having failed to show any of the requisites of liability as set forth and required by the existing state of the case law in Pennsylvania, defendant, Knights of Columbus, is entitled to a grant of a summary judgment.

ORDER OF COURT

And now, January 22, 1990, after review of the within matter, it is hereby ordered, adjudged and decreed that the motion of Knights of Columbus, New Kensington Counsel no. 1381, for summary judgment is hereby granted.


author: THOMSON, P.J.,

text:
    In re Adoption of CJ-MW

      C.P. of Pike County,
    no. A11-1998.

      Stacey Beecher, for petitioner.
    January 20, 1999
   THOMSON, P.J.,

This opinion addresses this court’s denial of a petition to terminate the parental rights of the above incaptioned minor. The court denied the petition because an adoption to the prospective adoptive parent, who filed the petition, was not in the best interests of the child. The court issues the following statement of issues, findings of fact, conclusions of law and discussion in support of its decree.

STATEMENT OF ISSUES

(1) Is a termination of parental rights, for the purpose of a later adoption, in the best interests of a child, where the biological mother of a child will continue to play a role in the child’s life and the child’s maternal grandmother, who already has legal custody of the child, will serve as the child’s mother?

FINDINGS OF FACT

(1) At the time of the hearing on this matter, the biological father, mother, and child were the ages of 20, 22, and 3, respectively.

(2) The parents knew each other approximately two years before the pregnancy, however, the pregnancy was unplanned and the couple have never been married or lived together.

(3) Upon hearing of the pregnancy, the father recommended an abortion but the mother refused.

(4) Since the birth of the child (a male), the mother and the child have lived with the child’s maternal grandparents, however, the maternal grandfather died approximately a year prior to the hearing.

(5) The maternal grandmother has acted as the primary caretaker for the child.

(6) The mother has not participated in caring for the child, describing her relationship with the child as more of a sibling relationship.

(7) The child appears to prefer the care and attention of its grandmother more than that of its mother.

(8) The mother works one day a week and the grandparents have provided the financial sustenance of the child.

(9) The child is medically insured through the medical insurance of its deceased grandfather.

(10) The father has had limited contact with the child. The father has only seen the child approximately three times, each time at the request of the mother.

(11) The father always has recommended the child be given for adoption.

(12) Both the father and mother believe they are to young to raise the child.

(13) The father was not working at the time of the hearing, but was seeking a part-time job.

(14) Parents have signed consent forms to have their parental rights terminated.

(15) The father didn’t appear at the hearing to confirm his and the mother’s consent to terminate their parental rights.

(16) The father has been paying support since child was two years old. He began making the payments after the mother obtained a court order requiring the support payments. The father contested paternity for the purpose of attempting to avoid his support obligation, but since the order he has been in full compliance, paying $50 a week.

(17) The mother is aware of the option of receiving counseling regarding her decision to terminate her parental rights but has decided not to seek such counseling.

(18) The mother believes she is not a financially secure source for the child’s care.

(19) The mother is currently attending a college in pursuit of an associates degree. After obtaining the degree, she is interested in pursuing an bachelor’s degree and ultimately a law school degree.

(20) Grandmother has consented to take custody of the child.

(21) The grandmother is 48 years old and has no apparent health problems.

(22) The grandmother acts as the main nurturer for the child, providing such care as seeking any needed medical care and disciplining the child.

(23) The grandmother works as a child care provider as an assistant director at the Kiddie Academy with daily working hours between 8:30 a.m to 4:30 p.m.

(24) The grandmother brings the child to the Kiddie Academy each day and the child receives care at the facility.

(25) The grandmother seeks medical care for the child and provides any treatment that he ever needs, (bronchial blockage), and the grandmother disciplines the child.

(26) In addition to the income from her job, the grandmother receives $850 monthly from her deceased husband’s pension plan and has significant other assets in the form of investments.

(27) The mother believes she is financially unable to care for the child.

CONCLUSIONS OF LAW

(1) The best interests of the child are not served through a termination of the mother and father’s parental rights for the purpose of an adoption by the grandmother.

(2) The child’s best interests are for the grandmother to take legal custody of the child and care for the child while continuing her legal status as a grandparent.

DISCUSSION

The main issue in this instant case is whether the voluntary relinquishment of parental rights to a grandmother for the purpose of an adoption is in the best interests of the child, where the mother of the child will continue to play a role in the child’s life. It is the opinion of this court that such legal tinkering with a family structure is unnecessary in this case and poses a great risk for psychological harm to the child. Therefore, we have denied the request for a relinquishment of parental rights.

The grandmother of the subject child petitioned the court under 23 Pa.C.S. §2504. This section of what is referred to as the Adoption Act allows the potential adoptive parent to petition for the termination of parental rights if the parents of the child have failed to do so within 40 days after filing consents to an adoption. After a hearing on the matter, a “court may enter a decree of termination of parental rights in the case of a relinquishment to an adult.” Id. Thereafter, if a court does grant a petition for termination of parental rights, the interested party may petition for a hearing for the purposes of confirming an adoption.

In this case, the court held a hearing where the grandmother and mother attended, along with counsel. Only the grandmother and mother provided testimony, both of whom believed an adoption to the grandmother was the most favorable option for the child. During the hearing, the court indicated its concerns as to why the adoption did not serve the best interests of the child, namely, that it was simply unnecessary and possibly harmful to the child. However, the court took the case under advisement, and, soon after, the court denied the petition to terminate the parental rights of the child’s biological parents.

Since the denial of the petition, the grandmother has sought and obtained legal custody of the child through this court under a different case and file number. Although this court finds the granting of legal custody to the grandmother as being in the best interests of the child, we still believe that an adoption is unnecessary and poses too great a risk of creating harm for the child.

In examining the issues presented in an adoption case a court must remember that, “[a]doption is a statutorily created mechanism, unknown at common law.” Gibbs v. Ernst, 538 Pa. 193, 206, 647 A.2d 882, 888 (1994). The Adoption Act must be strictly construed, and exceptions to the Act may not be judicially created. Id. Under the Adoption Act, it is the best interests of the child that governs over other interests in determining the propriety of an adoption. In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992) (in this case, the other interest was a family service agency).

In interpreting the Adoption Act, the Pennsylvania Supreme Court has found, “that [while] no presumption exists in favor of the grandparents, it is equally true that no presumption exists against them.” Id. at 224, 608 A.2d at 13. The court reasoned that the Adoption Act contemplates that a grandparent may adopt a child because of its provision which allows a grandparent to forego the execution of a report of intention to adopt. Id.; see also, 23 Pa.C.S. §2531(c). In stating that no preference exists in favor or against grandparents, the court noted that “our society has many examples of grandparents successfully raising their grandchildren.” Id. at 224 n.6, 608 A.2d at 13 n.6.

In the instant case, the grandmother — through her counsel — essentially argued that because the basic requirements of the Adoption Act were satisfied, and no opposition was raised by any parties, the court must allow the adoption to occur. We disagree with this conclusion. As already noted, the section of the Adoption Act under which the grandmother brought forth her petition states a court may enter a decree for termination of parental rights after the various parties have completed their respective responsibilities, but clearly does not require such. Instead, the provision allows a court the necessary deference to protect the best interests of a child when the interested parties have failed to do so, such as in this case. Thus, the Adoption Act does not appear to create a right, but a privilege for an adoption.

The parents and prospective adoptive parent of the subject child have failed to act in the best interests of the child because they have failed to consider the ramifications of an adoption to this child. As noted by the Superior Court,

“The entire body of law pertaining to adoption harmonizes in order to place an adopted child in the shoes of a natural child in all legal respects, failing only to alter the biological makeup of the child. The intention and result of the law is to enfold an adopted child in his new family so as to be indistinguishable from his new siblings in every possible respect.

“Rights of inheritance are changed; parental and filial rights and duties are altered; birth records are substituted; adoption records are impounded. In every possible respect, all family relationships are thus reestablished within the adopting family and all ties with the natural family are eradicated.” Faust v. Messinger, 345 Pa. Super. 155, 160-61, 497 A.2d 1351, 1353 (1985), appeal dismissed, 514 Pa. 286, 523 A.2d 741 (1987).

Under the circumstances of the instant case, the grandmother and mother do not intend to eradicate the current family structure, but, instead, they wish to create a legal fiction from their current relationships, all of which will only serve to confuse and harm the child in time. The mother testified that she believes she acts more as a sibling to the child and she will continue to play a similar role with the child.

We do not attempt to contradict that role reversals may be a reality for this family where a biological mother acts more as a sibling and a biological grandmother acts more as a mother, such relationships certainly would not be the first of their kind. However, an attempt to create a legal fiction in these relationships is inappropriate. Regardless of whether there is an adoption, the role the grandmother now serves can continue, especially now that she has legal custody. This court believes that it is, to say the least, confusing for a child to grow up in a household where its mother is known as its sister, its grandmother is known as its mother, and its father does not exist.

The grandmother testified that this confusing relationship is something that she will not hide from the child, but will explain it to the child “at an age where he could understand . . . that [the mother] is what she is.” Hence, the child will likely live in a household with both its mother and grandmother, and he will constantly be reminded — simply by their presence — of the his biological relationships with those people. Hence, the parties wish to have an adoption of the child, but fail to consider the primary purpose for which an adoption serves.

As noted, an adoption serves to create an illusion of normality for a child, an illusion which eventually can become real if properly managed. The illusion becomes real when the legal relationships of the adoptive parents become natural to the child, providing a sense of stability as if they always existed. Ideally, the adopted child will accept its adoptive parents as its true parents, if not its biological parents. Such acceptance by an adopted child comes most easily where there is a “clean break” with the biological family.

But, in the instant case, by the parties’ own admission, the purpose of an adoption cannot be served because such an illusion will be ineffective. The child will not only know the truth of its heritage but will be constantly reminded of it by the presence of both the mother and grandmother in its life. Hence, an adoption in this family will serve as a tool ill-suited for its purpose. An adoption would not create stability for the child because it will always serve more as an illusion than a reality.

In denying this decree for a termination of parental rights, we do not intend to demean the role of the grandmother. In this family, it appears that the grandmother is the glue holding it together against destructive forces largely created by the other family members’ irresponsible behavior. However, the role that the grandmother now plays can be accomplished without an adoption and an adoption’s corresponding confusing legal fictions. Without an adoption, the grandmother can continue to play the role of the main nurturer of the child, the mother can continue her education, and the father will continue his existence in the child’s life — albeit with a very limited role.

The grandmother or mother never explained adequately why creating such legal fiction is necessary, despite being confronted with this court’s concerns at the hearing. The grandmother did note that she thought that an adoption would secure the child with certain financial interests through the grandmother, but we fail to see-why any such interests cannot be secured through other means without creating such potential harm. This court has granted legal custody to the grandmother, allowing her to participate in the child’s life with the same power as its parents originally had, without unnecessarily altering the family structure, an alteration which would foreclose the possibility of a change in heart by those family members who are currently reluctant to persevere on with their responsibilities. Thus, we believed an adoption to be unnecessary.

Finally, we note that we do not believe our decision creates a presumption by this court against the adoption of a child by its grandparents. The court would not deny a grandparent’s attempt at an adoption of a grandchild where she was attempting to create a new family structure, as opposed to renaming the members of an existing relationship. Thus, we certainly recognize there are many situations where it would be appropriate for a grandparent to adopt a grandchild. However, we must note that in examining the best interests of the child, it is impossible to create any general guidelines as to what is or is not an appropriate situation for an adoption. Each request for an adoption must be analyzed according to the unique factual variables that every family possesses. Nonetheless, we believe that we have not created any presumptions against grandparents in adopting their grandchildren. Thus, for the aforementioned reasons, we issue the following decree:

FINAL DECREE

And now, January 20, 1999, upon consideration of a petition to terminate parental rights for the purpose of a future adoption in accord with such termination, the court hereby denies the request for termination of parental rights.

      . We note that this court denied a petition for the termination of parental rights as opposed to a petition for adoption because, in a case such as this, where the party intending to adopt is known at the time of the hearing on termination, it is appropriate for a court, if it wishes, to conduct a preliminary consideration as to the fitness of the potential adopting parent. Although such a consideration is not specifically proscribed by the Adoption Act, there is ample reason to believe that such preliminary considerations are in furtherance of the Act, namely, aiding in determining the best interests of the child. Where parents intend to terminate their parental rights as a condition precedent to a certain person becoming the adoptive parent, and the court finds that the adoptive parent is unfit at the time of the termination hearing, it would be, inter alia, very inefficient to terminate the parent’s rights but then later deny the adoption. This sort of preliminary consideration appears to be especially appropriate under an adoption brought forth through 23 Pa.C.S. §2504, where the petitioning party is the prospective adoptive parent.

      . We do not mean to suggest that this adoption would be any more appropriate if the mother and grandmother attempted to hide the realities of the family. Allowing the child to believe its mother was its sister and its grandmother was its mother would create an incredible risk of harm to the child if it ever became aware of the true nature of the family, after he was told otherwise.

      . In denying this adoption, the court considered as a factor the fact that the child, if adopted, would no longer have two parents but instead only one. Although this was not a detenninative factor, this court considers the basic family structure of a mother and father to be quite valuable to our society and a child, and the existence of such a structure in a family serves as more than an amusing antiquity. Even where a father plays a limited role, a father’s mere existence provides a child with a sense of identity that it ordinarily would not otherwise have.

      . With the understanding of the moving party and the court, the court has issued a final decree as opposed to a decree nisi. The understanding being that the moving party’s previous exceptions serve the same function as those that would be filed under Pa.R.C.P. 227.1.


author: NICHOLAS, J.,

text:
    Bonn-Miller v. Carella

      C.P. of Montgomery County,
    no. 96-14603.

      Ronald Yen, for plaintiff.

      Richard Galli, for defendant Carella.

      Mary March, for defendant Bryn Mawr Hospital.

      Kevin Wright, for defendant Cohen.
    April 16, 1998
   NICHOLAS, J.,

The plaintiff appeals from this court’s order dated February 19, 1998 which granted Dr. Carella’s motion for judgment of non pros and entered judgment in favor of Dr. Carella on all of the plaintiff’s claims and cross-claims.

On September 30, 1996, the plaintiff, represented by counsel, Stephen Long, Esquire, filed a complaint seeking recovery for personal injuries resulting from medical malpractice. She alleged that Dr. Cohen and Dr. Carella treated her at Bryn Mawr Hospital with chemotherapy and radiation to cure her of invasive moderately differentiated squamous cell carcinoma of the anal and perianal area and that this treatment left her infertile and in pain. She further alleged that her injuries were caused by the defendants’ breach of express and implied warranties, by the defendants’ breach of their duty of due care, and by the defendants’ breach of their duty to obtain her informed consent.

The defendants filed preliminary objections which prompted the plaintiff to file an amended complaint onNovember 18,1996 omitting the allegations of breach of warranty but reiterating the allegations of breach of duty of due care and breach of duty to obtain informed consent.

Bryn Mawr Hospital and Dr. Carella filed preliminary objections to the amended complaint, both arguing (1) that the allegations pertaining to lack of informed consent should be stricken as the law imposes no duty to obtain a patient’s informed consent prior to chemotherapy and radiation, and (2) that the amended complaint fails to allege negligence with the required specificity. Bryn Mawr Hospital, alone, argued in the alternative that any duty to obtain informed consent is a nondelegable duty of the treating physician and that a hospital cannot be held liable for a physician’s failure to obtain informed consent. By order dated February 26, 1997, this court sustained both sets of preliminary objections by striking the allegations pertaining to lack of informed consent and directing the plaintiff to file within 60 days a second amended complaint setting forth specific allegations of negligence against Bryn Mawr Hospital and Dr. Carella.

On July 9, 1997, Dr. Cohen filed preliminary objections to the plaintiff’s amended complaint. As did the defendants before him, Dr. Cohen argued that the allegations pertaining to lack of informed consent should be stricken and that the allegations of negligence lack the required specificity.

On August 27, 1997, Bryn Mawr Hospital filed a motion for judgment upon default and on September 8, 1997, Dr. Carella filed a motion for judgment of non pros. These two defendants styled their motions differently but they advanced the same argument, specifically, that the plaintiff has no intent to file a second amended complaint and that dismissal of the plaintiff’s case is an appropriate sanction for the plaintiff’s failure to file a second amended complaint within 60 days. The plaintiff filed answers admitting that she does not intend to file a second amended complaint.

Meanwhile, this court sustained the pending preliminary objections filed by Dr. Cohen by order dated September 18, 1997. In doing so, this court struck the plaintiff’s allegations of breach of the duty to obtain informed consent and struck the plaintiff’s allegations of negligence which lacked the required specificity.

On December 9,1997, this court granted Bryn Mawr Hospital’s motion for judgment upon default. Regarding Dr. Carella’s motion for judgment of non pros, oral argument was scheduled for February 19, 1998. At oral argument, Mr. Long, plaintiff’s former counsel, candidly explained that he agrees with this court that the law applicable at the time this case arose imposes no duty to obtain informed consent prior to chemotherapy and radiation, and that a hospital cannot be liable under such a theory under any circumstances. Mr. Long further conceded that there was no basis for a negligence claim, apart from a claim for lack of informed consent. This court granted Dr. Carella’s motion for judgment of non pros by order dated February 19, 1998.

On March 13, 1998, Mr. Long withdrew his appearance for plaintiff, and new counsel, Ronald C. Yen, Esquire, entered his appearance. The plaintiff filed timely her notice of appeal and supplied this court with a concise statement of matters complained of on appeal. The entirety of the plaintiff’s concise statement is as follows:

“(1) The court erred in sustaining defendant Carella’s preliminary objections to plaintiff’s amended complaint and in striking Count II of said complaint. The court should have permitted plaintiff to proceed with her claim that defendant Carella failed to obtain informed consent with respect to the administration of radiation.
“(2) In addition, the court erred in granting Carella’s preliminary objections and in striking Count II of plaintiff’s amended complaint by failing to attach any legal significance to the fact that Carella had undertaken to obtain informed consent, but had done so improperly and inadequately by failing to inform plaintiff of the fact that radiation would render her sterile and cause premature menopause and other associated medical or physical problems.
“(3) For the foregoing reasons, the court erred in granting judgment in favor of defendant Carella and against plaintiff.
“(4) For the reasons set forth in paragraphs 1 and 2 above and paragraph 5 below, the court erred in sustaining defendant Bryn Mawr Hospital’s preliminary objections to plaintiff’s amended complaint, in striking Count VI of said complaint and, consequently, in entering judgment in favor of the hospital and against plaintiff. The court also erred in concluding in this case that, as a matter of law, a physician’s duty to obtain informed consent is nondelegable.
“(5) The court erred in granting defendant Cohen’s preliminary objections to plaintiff’s amended complaint and in dismissing Count IV of said complaint. The court should have permitted plaintiff to proceed with her claim that defendant Cohen failed to obtain or obtain proper and adequate informed consent with respect to the administration of chemotherapy and/or radiation.”

DISCUSSION

This court properly ruled that the defendants had no legal duty to obtain the plaintiff’s informed consent prior to the administration of the chemotherapy and radiation. It is the applicable law in Pennsylvania that the informed consent doctrine does not apply to radiation or chemotherapy. Dible v. Vagley, 417 Pa. Super. 302, 612 A.2d 493 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993). This is because the doctrine is based exclusively on traditional battery theory and distinguishes between surgical procedures, to which the doctrine applies, and nonsurgical procedures, to which the doctrine does not apply. This is because “the performance of a surgical procedure upon a patient without his consent constitutes a technical assault or a battery because the patient is typically unconscious and unable to object.” Morgan v. MacPhail, 704 A.2d 617, 620 (Pa. 1997) (citing Gray v. Grunnagle, 423 Pa. 144, 155, 223 A.2d 663, 668-69 (1966)). This court properly ruled that the defendants had no legal duty to obtain the plaintiff’s informed consent.

The plaintiff argues that “[t]he court also erred in concluding in this case that, as a matter of law, a physician’s duty to obtain informed consent is nondelegable.” Concise statement, ¶4. And the plaintiff argues that “the court erred ... by failing to attach any legal significance to the fact that Carella had undertaken to obtain informed consent, but had done so improperly and inadequately by failing to inform plaintiff of the fact that radiation would render her sterile and cause premature menopause and other associated medical or physical problems.” Concise statement, ¶2. These arguments lack merit. Pennsylvania law does “not imposte] upon hospitals the duty of obtaining informed consent.” Kelly v. Methodist Hospital, 444 Pa. Super. 427, 433, 664 A.2d 148, 151 (1995). “Under normal circumstances only the physician who performs the operation on the patient has the duty of obtaining the patient’s informed consent.” Id. at 431, 664 A.2d at 150 (quoting Foflygen v. Zemel, 420 Pa. Super. 18, 615 A.2d 1345 (1992), alloc. denied, 535 Pa. 619, 629 A.2d 1380 (1992)). Similarly, it has been held that attempts to inform a patient of the risks of medical treatment do not amount to the assumption of a legal duty to obtain informed consent greater than that imposed by law. Id. at 434, 664 A.2d at 151.

For the reasons set out above, our order dated February 19, 1998 should be affirmed.

      . It should be noted that the law has changed. It is now the law that, “[e]xcept in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting . . . radiation or chemotherapy.” 40 P.S. §1301.811-A(a)(2). However, this statute became effective January 25, 1997 and did not apply to this case because the plaintiff complained of conduct which occurred prior to August 14, 1996, the date she file a praecipe for the issuance of a writ of summons. 1 Pa.C.S. §1926 (“No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.”).


author: MINORA, J.,

text:
    Adams v. Allstate Insurance Co.

      C.P. of Lackawanna County,
    no. 97 CV 4731.

      Mark W. Bufalino and Stephen A. Menn, for plaintiff.

      George E. Mehalchick, for defendant.
    November 10, 1998
   MINORA, J.,

This matter arises out of an automobile accident that occurred in Newark, New Jersey on June 6, 1995, and is before the court by way of plaintiff’s petition to modify, correct and/or vacate an arbitration award that was handed down in favor of the defendant. Oral argument was held before this court on October 21,1998. The parties have briefed their respective positions and this memorandum and order follows.

FACTS AND PROCEDURAL HISTORY

On June 6,1995, Luisa Adams, plaintiff, was crossing mid-block in Raymond Boulevard in Newark, New Jersey, on foot, when she was struck by a vehicle operated by Melissa Colon. Raymond Boulevard is a six-lane roadway and Colon was traveling in the third of three westbound lanes of traffic. Upon being struck, the plaintiff was thrown into the air, landing on the asphalt roadway. The plaintiff contends that she sustained serious, severe and possibly permanent physical and emotional injuries.

At the time of the accident, the plaintiff was insured under her husband’s automobile insurance policy, issued in the State of Pennsylvania. The plaintiff’s insurance policy provides for arbitration between Allstate and the policyholder at page 13 as follows:

“If we cannot agree
“If the insured person and we don’t agree:
“(1) on that person’s right to receive damages, or
“(2) on the amount of those damages,
“then upon the written request of either party the disagreement will be settled by arbitration as provided under the Pennsylvania Uniform Arbitration Acts 1927 and 1980.”

After receiving Allstate Insurance Company’s consent, the plaintiff’s third party claim against Colon was settled for their full automobile policy limits of $15,000 with Claredon National Insurance Company. The plaintiff then made a claim for underinsured motorist benefits against the defendant, which was submitted to arbitration, in accordance with the above clause in the plaintiff’s insurance policy.

On October 9, 1996, the plaintiff selected Malcolm Limongelli, Esquire, as her arbitrator. On December 19, 1996, Allstate Insurance Company, defendant, selected Joseph O’Brien, Esquire, as its arbitrator. On October 7, 1997, the plaintiff filed a petition for the appointment of an arbitrator because the parties to this action were unable to agree on a neutral arbitrator. On October 21, 1997, Frank Eagen, then a judge of the Lackawanna County Court of Common Pleas, appointed Cal Levanthal, Esquire, as the third and neutral arbitrator.

On May 29,1998, a hearing was held by the arbitrators and on June 25, 1998, by a two to one majority, the arbitrators issued a written award in favor of defendant and delivered it to the parties. Attorney Limongelli dissented. Plaintiff then filed the instant petition to modify, correct, and/or vacate the arbitration award currently ripe for decision before this court.

DISCUSSION

Initially, this court must determine the clarity of the governing language contained in the insurance contract at issue.

With regard to insurance contract interpretation the Supreme Court of Pennsylvania has held:

“The interpretation of a contract of insurance is a matter of law for the courts to decide. In interpreting an insurance contract, we must ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, we will give effect to the language of the contract.” Paylor v. Hartford Insurance Co., 536 Pa. 583, 586, 640 A.2d 1234, 1235 (1994).

The Pennsylvania Superior Court has stated that “it is also a legal axiom that we will not create an ambiguity where there is none.” Lebanon Coach Co. v. Carolina Casualty Insurance Co., 450 Pa. Super. 1, 31, 675 A.2d 279, 294 (1996). We find the governing insurance contract language is clear and unambiguous; therefore we give effect to its exact language.

Page 14 of the plaintiff’s insurance policy dealing with underinsured motorist coverage states: “we will pay damages to an insured person for bodily injury which the insured person is legally entitled to recover from the owner or operator of an underinsured auto.” This court finds that the provision unambiguously states that the plaintiff will have the same rights of recovery against the defendant insurance company as she would have against Colon, the underinsured driver.

Next, we must address the issue of which substantive law the arbitrators should have applied in this case. The arbitrators panel applied the substantive law of New Jersey. The plaintiff contends that because the insurance policy giving rise to the arbitration was issued in Pennsylvania, then Pennsylvania’s substantive law should have been applied. The defendant avers that the arbitrator’s application of New Jersey’s substantive law was proper. We concur with the defendant.

In determining which state’s substantive law should properly have been applied it must be determined which state has the greatest interest in the application of its laws to the case. Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). This court finds guidance from the Pennsylvania Supreme Court’s holding in Cipolla that “[i]n determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident . . . .” Id. at 566, 267 A.2d at 856. Upon examination of the facts of the case sub judice, we find that New Jersey had the greater contact and, thus, the greater interest with the accident at issue than did Pennsylvania. The accident occurred in New Jersey; both Colon (the alleged tortfeasor) and the plaintiff were residents of New Jersey.

In a more recent decision, the Pennsylvania Commonwealth Court has held: “Under the Pennsylvania choice of law standard, the state having the most interest in the problem, and which is the most intimately concerned with the outcome, is the forum whose law should apply.” Byard F. Brogan Inc. v. W.C.A.B. (Morrissey), 161 Pa. Commw. 453, 459, 637 A.2d 689, 692 (1994). Substantial contacts exist between the State of New Jersey and the accident at issue. Had this action been commenced against Colon, the alleged tort-feasor, we feel that New Jersey would have the most interest and would be the most intimately concerned with its outcome. The only Pennsylvania contact is that the policy of insurance was issued in Pennsylvania.

Thus, in light of this determination, as well as the fact that the clear and unambiguous language of the plaintiff’s insurance policy places the defendant in the shoes of the tort-feasor, this court finds that the arbitrators’ application of New Jersey substantive law to this case was proper.

This court will now examine the proper standard of review to be applied to the plaintiff’s petition to modify, correct and/or vacate the arbitration award. Neither party has contested that Pennsylvania procedural law applies to the determination of the propriety of the arbitration award at issue. Additionally, the parties to this action submitted to an arbitration hearing within this state. Therefore, we shall proceed to analyze the issue of the correct standard of review applicable under Pennsylvania law.

The plaintiff avers that under Pennsylvania law, a court reviewing an arbitration award shall modify or correct the award where it is contrary to law and is such that had it been a verdict of a jury, the court would have entered a different verdict or judgment n.o.v. This standard is derived from the 1927 Arbitration Act. Conversely, the defendant maintains that the more narrow standard of review found in the 1980 Arbitration Act (42 Pa.C.S. §7302(d)) applies. Pursuant to 42 Pa.C.S. §7302(d), a statutory arbitration will be modified or corrected where the award is contrary to law, but only in the following circumstances:

“(i) The Commonwealth government submits a controversy to arbitration.
“(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
“(in) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.” Cotterman v. Allstate Insurance Co., 446 Pa. Super. 202, 207-208, 666 A.2d 695, 698 (1995).

It is clear that (i) and (ii) do not apply to the current action, because the Commonwealth did not submit the current controversy to arbitration and it does not involve a political subdivision submitting a controversy with an employee or representative of employees to arbitration. Therefore, the only remaining question deals with whether the plaintiff was required by law to submit to arbitration.

Pennsylvania law does not require persons involved in a dispute over uninsured and underinsured motorist coverage to submit their controversy to arbitration. Dearry v. Aetna Life & Casualty Insurance Co., 415 Pa. Super. 634, 639, 610 A.2d 469, 472 (1992). Furthermore, no Pennsylvania law requires that parties to insurance policies enter an agreement that any dispute surrounding coverage be submitted to arbitration. Id. The Cotterman court, discussed supra, explained 43 Pa.C.S. §7302(d)(iii) by holding that “there are only two cases which, without more, shall be viewed as falling within section 7302(d)(iii):

“(1) agreements to arbitrate made prior to December 4, 1980, the effective date of the 1980 Act, expressly providing for arbitration pursuant to the laws of the Commonwealth; and
“(2) agreements to arbitrate, made either before or after 1980, expressly providing for arbitration under the 1927 Act [which provided for a contrary to law standard of review].” Cotterman, supra at 208, 666 A.2d at 698. (emphasis added)

In Cotterman, as in the case at bar, the insurance policy was executed after the effective date of the 1980 Act and the policy’s arbitration provision expressly provided that arbitration would be governed by both the 1927 and 1980 Acts. The Cotterman court went on to acknowledge that the 1980 Act sets forth a more stringent standard for vacating, modifying and/or correcting statutory arbitration awards. Id.

The issue of whether to apply the standard of the 1927 or 1980 Act when they are both listed in the policy was resolved by the Cotterman court as follows:

“To reconcile the conflicting standards in Allstate’s arbitration provision, we find it more prudent, and more in line with the previous decisions of this court, to apply the latest enactment of the Pennsylvania Legislature — the 1980 Act — to review the instant arbitration award. While the inclusion of both Acts in Allstate’s policy is most likely the result of poor draftsmanship, we think it more consistent with the parties’ intent to apply the later Act, which sets forth a narrow legal standard, as compared to the 1927 Act’s broad scope of review.” Id. at 210, 666 A.2d at 699.

In light of the above holding by the Superior Court when faced with such an analogous case, we must find that the more stringent 1980 Act applies to the case sub judice.

The standard of review of an arbitration governed by the 1980 Act is embodied in section 7341 of the Act, which provides in pertinent part:

“(1) On application of a party, the court shall vacate an award where:
“(i) the court would vacate the award under section 7341 (relating to common-law arbitration) if this sub-chapter were not applicable;
“(ii) there was evidence of partiality by an arbitrator
“(in) the arbitrators exceeded their powers;
“(iv) the arbitrator refused to postpone the hearing upon good cause being shown . . . MGA Insurance Co. v. Bakos, 699 A.2d 751, 753 (Pa. Super. 1997). (footnote omitted)

Therefore, in light of the current state of the law discussed supra, this court holds that the standard of review properly applied to plaintiff’s petition to modify, correct and/or vacate arbitration award is found in 42 Pa.C.S. §7341. In order for the plaintiff’s petition to succeed, she must clearly show that she “was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S. §7341.

The plaintiff avers that the arbitrators’ award violates public policy and that the award imports such bad faith as to constitute an irregularity, causing , the rendition of an unjust, inequitable and/or unconscionable award. However, upon thorough review of the documents presented to this court and in light of the total lack of specific plaintiff’s averments, we find no basis pleaded for the plaintiff’s bald assertions that the arbitrator’s award violated public policy or was initiated in bad faith.

Thus, this court has determined that the proper standard of review applicable, to the arbitration at issue in this matter does not warrant our disturbing the arbitrators’ award. Therefore, based on the above facts and applicable case law, the plaintiff’s petition to modify, correct and/or vacate arbitration award is denied. An appropriate order follows.

ORDER

And now to wit, November 10, 1998, the plaintiff’s petition to modify, correct and/or vacate arbitration award is denied. The parties are to proceed with this case in a manner consistent with this opinion.


text:
    Hofstetter v. Century Products Inc.

      C.P. of Lackawanna County,
    no. 95 CV 2992.

      Larry E. Coben, Garrett J. Olexa and Nicholas S. Mattise, for plaintiffs.

      Deborah P. Nason and Mary Lou Maierhofer, for defendants.
    April 14, 1998
   MINORA, J.,

This matter is before the court by way of plaintiff’s motion to compel discovery from Century defendants. The plaintiff instituted a cause of action alleging that she was a passenger in an automobile involved in a collision, and that her resulting injuries were caused by the defective design of the Commander booster seat in which she was riding. Plaintiff further avers that the defendants marketed alternative designs to the Commander booster seat which would have provided an adequate level of protection to the plaintiff. Plaintiff therefore seeks information relating to the design, manufacture, and test information for the defendant’s Safe-T-Rider, Breverra and CR-3 model booster seats. The defendants argue that the plaintiffs should not be entitled to the requested information on the other model child seats because the plaintiffs have failed to demonstrate that the other models are substantially similar to the Commander.

Additionally, the plaintiff seeks to obtain information the defendant was ordered to produce in the case of Hartmann v. Century Products, 92-562-TUC-RMB, U.S. District Court, State of Arizona.

Briefs were submitted and oral argument was heard before this court on January 27, 1998. This memorandum and order follows.

DISCUSSION

The Pennsylvania Rules of Civil Procedure limit, the scope of pretrial discovery to “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery.” Pa.R.C.P. 4003.1. The purpose of discovery is to expedite litigation and not to provide an intermediate arena for jousting in the time between the pleadings and the actual trial. Boyle v. Steiman, 429 Pa. Super. 1, 631 A.2d 1025 (1993).

Rule 4011 authorizes the court to limit discovery that is sought in bad faith or designed to create unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party. Pa.R.C.P. 4011. See also, Szarmack v. Welch, 456 Pa. 293, 318 A.2d 707 (1974).

Pennsylvania law is well settled that discovery rules are to be interpreted liberally in favor of allowing discovery, and limitations on the scope of discovery are to be narrowly construed. Id. at 298, 318 A.2d at 709.

Finally, we note that the rule specifically states that the court is not to consider whether the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Pa.R.C.P. 4003.1. See also, Stenger v. Lehigh Valley Hospital Center, 382 Pa. Super. 75, 554 A.2d 954 (1989).

I.

In the instant case, we must first determine whether the plaintiffs are entitled to the requested information on other model booster seats manufactured by the defendant.

This case arose as the result of an accident that occurred when Brandy Hofstetter, a 23-pound, 15-month-old child, was involved in an automobile collision while seated in a Commander booster seat in the rear seat of a vehicle equipped with a two-point (lap belt only) vehicle restraint system. The complaint specifically alleges that the Commander booster seat was not crash-worthy and that it was defectively designed because it did not provide safe and necessary upper and lower torso restraint. Plaintiffs also allege that the defendants marketed alternative child restraints that would have substantially restrained plaintiff’s upper torso, thereby significantly reducing the forward displacement of plaintiff’s head and spine.

Conversely, the defendants argue that the plaintiffs are not entitled to the requested information on other model child booster seats because the plaintiffs have failed to demonstrate that the other models are substantially similar to the Commander, and therefore the information requested is irrelevant. Specifically, the defendants allege that the Safe-T-Rider, CR-3 and the Breverra each vary widely from the Commander in a number of crucial characteristics.

For the purposes of illustration, the defendants allege that the Safe-T-Rider differs from the Commander in that it was manufactured for use in vehicles equipped with either a two-point (lap belt only) or three-point (combination lap and shoulder belt) vehicle restraint system. This booster seat had to be used in combination with a “body harness guard” to provide the proper upper body restraint. Because research revealed that over 85 percent of consumers misused this product, the Safe-T-Rider was discontinued in 1986.

The defendants next allege that the CR-3 is a completely different design developed to address the needs of an older/larger child within a specified weight range. The CR-3 was equipped with a removable sliding shield that was higher, wider and positioned at an angle distinct from the low shield design of the Commander.

Thirdly, the Breverra, manufactured in 1993, is a shieldless “high back” booster car seat that provides head and back support. The Breverra can be properly used with either the two-point or three-point restraint system, depending upon the weight of the child.

Thus, the defendants object to the relevancy of the designs of the other booster seats based upon the assertion that each seat was created to meet the needs of a particular consumer, are not interchangeable, and therefore do not provide any evidence of feasible alternative designs.

After careful consideration, we find that the nature and extent of these differences in design do not preclude plaintiff’s right to the discovery of the requested information. In our view, the discovery sought here would foster the general objectives set forth in our procedural rules. The plaintiff is entitled to any matter, not privileged, if it appears reasonably calculated to lead to the discovery of admissible evidence. At issue is whether the defendant included in the design of the Commander every element necessary to make the product safe for its intended use or included a feature that rendered this booster seat unsafe. As the Supreme Court noted in Azzarello v. Black Brothers Company Inc., 480 Pa. 547, 391 A.2d 1020 (1978): “the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.” Id. at 559, 391 A.2d at 1027. (emphasis added)

Because we are persuaded that the information sought is relevant and may be pertinent to prove alternative design feasibility, and the defendant’s knowledge of design-imposed risks, we find that the designs of the three other booster seats manufactured by the defendant are properly discoverable.

II.

We next consider the plaintiff’s request for all of the documents produced in nearly identical litigation brought in the State of Arizona titled Hartmann v. Century Products, supra.

The Hartmann case arose out of an accident that occurred on August 7, 1990. Jensen Hartmann, like the present plaintiff, was seated in a Century Commander, when the vehicle in which be was traveling was involved in a collision that resulted in paraplegia to Hartmann. Due to the similarities between the two cases, the plaintiff has specifically requested the discovery information produced to the plaintiff in Hartmann on the Breverra, Safe-T-Rider and CR-3 models.

In light of this court’s decision to allow plaintiff’s request for discovery, thereby including the information relating to the design, manufacture, and test information for the defendant’s Breverra, Safe-T-Rider and CR-3 booster seats, we find that compelling the defendant to additionally produce the Hartmann discovery will necessarily have a verifying result.

In attempting to secure the discovery produced in a separate case that overlaps or duplicates the discovery sought and allowed directly from the manufacturer in this case, what we are essentially allowing the plaintiff to do is to verify, from separate sources, similar materials and thereby assure, as much as possible, the completeness and the veracity of the information disclosed.

Pennsylvania law is well settled that exclusion of evidence which is irrelevant, confusing, misleading, cumulative or prejudicial is within the sound discretion of the trial court, and its decision, thereon, will not be disturbed in absence of clear abuse of discretion. Concorde Investments Inc. v. Gallagher, 345 Pa. Super. 49, 497 A.2d 637 (1985). Conversely, the courtis granted the authority to allow the introduction of evidence not deemed irrelevant or cumulative. Thus, plaintiff’s request for all of the documents produced in Hartmann v. Century Products is granted.

ORDER

And now, to wit, April 14, 1998, it is hereby ordered that plaintiff’s motion to compel discovery relating to the design, manufacture, and test information for the defendant’s Safe-T-Rider, Breverra and CR-3 model booster seats is granted. The plaintiff’s motion to compel discovery relating to Hartmann v. Century Products, 92-562-TUC-RMB, U.S. District Court, State of Arizona, is granted.