author: GAVIN, J.,

text:
    North Coventry Township v. Pottstown Borough Authority

      October 25, 2001
    C.P. of Chester County,
    no. 01-00674.

      Lawrence R. Weider, for plaintiff.

      Elizabeth A. Witmer, for defendant.
   GAVIN, J.,

Presently before the court are the preliminary objections of Pottstown Borough Authority to North Coventry Township’s declaration of taking. North Coventry Township is seeking to exercise the power of eminent domain to condemn the water distribution system (water lines, pumps, meters, tanks and other facilities) located within its boundaries, but owned and operated by the authority.

BACKGROUND

Pottstown Borough Authority supplies portions of North Coventry Township with water. The authority owns and operates a water distribution system within the township composed of storage tanks, pumping stations, water lines, fire hydrants and usage meters. On January 24, 2001, the township filed a declaration of taking exercising the right of eminent domain to condemn the water system. The declaration of taking alleged that condemnation was necessary to secure sufficient water for the township’s fire protection and was authorized by Pennsylvania’s Second Class Township Code (53 P.S. §§65101-68701). On February 22, 2001, the authority filed preliminary objections to the declaration of taking alleging, inter alia, that the Second Class Township Code does not explicitly confer a right to the township to exercise the power of eminent domain against another municipality’s property.

DISCUSSION

The question before the court is whether the township has the requisite legislative authority to exercise the power of eminent domain to appropriate the water distribution system that the authority owns and operates within the township’s boundaries.

A municipal corporation possesses only those powers granted in express words, and those necessarily or fairly implied or incident to the powers expressly granted. Golding v. New Britain Township, 33 Pa. Commw. 635, 639, 382 A.2d 509, 511 (1978). “Eminent domain powers arise only when the legislature ‘points out the occasions, the modes and the agencies for its exercise... the body to which the power is entrusted has no authority beyond that legislatively granted.’ ” Condemnation of 110 Washington Street, 767 A.2d 1154, 1159 (Pa. Commw. 2001), quoting Interstate Cemetery Company Appeal, 422 Pa. 594, 596-98, 222 A.2d 906, 908-909 (1966). The authority to condemn must be strictly construed. Olson v. Whitpain Township, 141 Pa. Commw. 270, 274, 595 A.2d 706, 708 (1991).

Determining whether the legislature has granted the township power to condemn the authority’s water system requires construction of two provisions of the Second Class Township Code. The code addresses the acquisition of water systems at 53 PS. §67601, “contracts with water companies and municipal corporations and acquisition of water systems.” The code addresses acquisition of water protection services at 53 PS. §66802, “fire hydrants and water supply.”

In 53 P.S. §67601(a) the code grants second class townships the authority to contract for the use of municipally owned water systems. The provision states:

“The board of supervisors may by contract with any private corporation or any adjacent municipal corporation owning a waterworks system provide water for public and private uses, to be delivered through lines owned by that company or municipal corporation within the township. The contract shall provide the manner by which the cost of the water service shall be paid by the consumers.”

The code explicitly grants second class townships power to exercise the right of eminent domain to acquire privately owned water systems, with the Public Utility Commission’s approval, at 53 P.S. §67601(b). This provision states:

“The board of supervisors may purchase or acquire a privately owned water system to provide water for public and private uses. If a privately owned water company fails to render service as required by the Pennsylvania Public Utility Commission, the board of supervisors may with the approval of the Pennsylvania Public Utility Commission exercise the right of eminent domain to acquire the water system of the water company to provide water for public and private uses.”

At 53 P.S. §66802(a), the code grants second class townships the power to “provide for or acquire a water supply system equipped to supply sufficient water for the protection of property from fire.”

Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things. 1 Pa.C.S. § 1932(a). The above-cited provisions relate to the same thing — the acquisition of water systems — and are therefore in pari materia. Statutes in pari materia are to be construed together, if possible, as a single statute. 1 Pa.C.S. §1932(b). Reading the above-quoted statutes together presents no difficulty, as they are perfectly consistent. The provisions authorize second class townships to exercise eminent domain to condemn privately owned water systems only. They do not authorize North Coventry Township to condemn Pottstown Borough Authority’s water system, since it is a water system owned by a municipal corporation.

The township also claims however, that power to condemn the authority’s water distribution system is implied in the fire protection provision. In light of section 67601, it is difficult to conclude that the legislature intended to imply the power of eminent domain to appropriate municipally owned water systems in section 66802. If the legislature intended to empower second class townships to exercise the power of eminent domain to appropriate municipally owned water systems, it could have done so explicitly in section 67601, where the grant of eminent domain power to appropriate privately owned water systems appears. Instead, the legislature drafted a provision that addresses the acquisition of privately owned water systems and municipally owned water systems, and granted townships the power of eminent domain to condemn only one, and only the power to contract for the use of the other. The provision addresses the subject in great detail. In view of the well-established, previously cited rule that requires that grants of eminent domain.be strictly construed, I find that the legislature did not intend to imply the power of eminent domain to appropriate municipally owned water systems.

Additionally, the township contends that the word “acquire” used in section 66802 should be read to include the power to exercise eminent domain over municipally owned water systems. I do not agree, for this construction of the term is not supported by a review of other provisions of the Second Class Township Code. Other provisions of the code which grant townships the right to acquire property specifically include “eminent domain” in this right. (See 53 P.S. §§67104,67201,67312, 67501.) Thus, it is clear that when the legislature intended the term “acquire” to encompass the exercise of eminent domain, it specifically stated so, as it did in the above-cited examples. Accordingly, the township’s argument for a permissive reading of the statute is unpersuasive.

Finally, I note that the township presented evidence at the hearing on this matter that low pressure plagues the water system at issue and impairs its capacity to fight fires. My conclusion that the township lacks authority to exercise the right of eminent domain over the authority’s water system does not convey any opinion regarding the adequacy of the service that the Pottstown Borough Authority is providing to North Coventry Township. In light of the foregoing, I enter the following:

ORDER

And now, October 25, 2001, upon consideration of Pottstown Borough Authority’s preliminary objections to North Coventry Township’s declaration of taking, response thereto, and hearing held, it is hereby ordered and decreed that the objections are sustained and the declaration of taking filed January 24, 2001 is hereby dismissed.

Pursuant to 26 P.S. §1-406(e), Pottstown Borough Authority is entitled to damages, to be assessed as provided for in 26 P.S. §1-408.


source: Caselaw Access Project

author: FREEDBERG, P.J.,

license: Public Domain

text:
    In re E.K.

      October 24, 2001
    C.P. of Northampton County,
    no. 1969-1222 OC.

      Daniel G. Spengler, for petitioner.
   FREEDBERG, P.J.,

This matter is before the court on a petition for release of identifying information from the court file of an adoption which occurred in this county in 1970. Petitioner is an adult who seeks the identity of his full brother who was placed for adoption by their natural parents. Petitioner suffers from refractory Hodgkin’s disease and needs a bone marrow transplant.

Gerard Donnelly M.D., is petitioner’s attending physician on the Lymphoma Service of Memorial Sloan-Kettering Cancer Center in New York. He reports that petitioner has not responded to standard chemotherapy. He is now undergoing salvage chemotherapy to prepare him for an allogenic stem cell (bone marrow) transplant. The doctor states:

“Due to the refractory nature of the disease, allogenic stem cell transplantation is [the petitioner’s] only hope for a curative outcome. Ideally, patients have the best chance to survive the rigors of transplant if they have a compatible (HLA matched) donor from a sibling. Patients who receive stem cells from a related donor have the highest potential for cure and survival.

“When the patient is transplanted with the bone marrow from an unrrelated matched donor the risk of acute complications such as graft rejection and fatal graft-versus-host disease are more likely.

“[The petitioner’s] siblings have been tissue typed and are not compatible matches for an allogenic transplant. While we have initiated a search in the National Marrow Donor Registry for an unrelated donor, it has come to our attention that [the petitioner] has another sibling who was given up for adoption at birth.

“We are requesting your assistance to have [the petitioner’s] brother agree to have a blood sample drawn to assess whether he is an HLA-compatible marrow donor. While this may be difficult for the brother from a social and emotional perspective, it gives him the opportunity, in a broader sense, to perform a potentially life-saving act of kindness to another human being with minimal or no harm or risk to himself.

“I cannot state strongly enough that not only does this represent [the petitioner’s] only curative option, should [the petitioner’s] brother be a compatible donor, it significantly reduces [the petitioner’s] considerable risk of morbidity and mortality during the transplant course.”

Thus, petitioner’s only hope for a cure is a bone marrow transplant. The chances for success are significantly better if the donor is related. Other related donors have been tested and do not qualify. The child placed for adoption in 1970 offers the best hope for HLA-compatible marrow and petitioner’s best hope for life.

The Pennsylvania Adoption Act, 23 Pa.C.S. §2101 et seq., provides generally that adoption records shall be “withheld from inspection except on an order of court granted upon cause shown.” 23 Pa.C.S. §2905(a).

In In re Matter of Long, 745 A.2d 673 (Pa. Super. 2000), the court provided guidance as to the application of section 2905(a). “Good cause” must be shown for unsealing. Id. at 675; but, see In re Adoption of B.E.W.G., 355 Pa. Super. 554, 561, 513 A.2d 1061, 1065 (1986) (suggesting that “cause shown” is a lower standard than “good cause shown”). Petitioner is required to prove the existence of “good cause” by clear and convincing evidence. Long, 745 A.2d at 675. Further, the court “must consider the ramifications to those specifically affected by the unsealing, including the adoptive and biological parents and their families, as well as the impact on the integrity of the adoption process in general. Only if the adoptee’s need for the information clearly outweighs the considerations behind the statute may the records be unsealed.” Id.

In In re Petition to Release Adoption Records (Appeal of Kasparek), 439 Pa. Super. 273, 653 A.2d 1254 (1995), Judge Wieand described the interests sought to be protected by the general requirement that adoption records be sealed. He wrote:

“Adoption records were initially sealed to protect the best interests of the adoptee. At least during the adoptee’s childhood, sealed records are generally considered by most authorities to be in the best interest of the adoptee. Some courts have found that the birth parents also have a constitutionally based privacy interest in keeping adoption records sealed. See Mills v. Atlantic City Dept. of Vital Statistics, 148 N.J. Super. 302, 372 A.2d 646 (1977). Then, too, adoptive parents have an interest in keeping the record sealed, for after raising the child, they do not wish to lose their place in his or her life. Finally, the state has an interest in keeping adoption records sealed. It seeks to accomplish three goals: (1) to protect the welfare of the child; (2) to protect the adoptive family which the state has created; and (3) to ensure the integrity of the adoption process. See comment, ‘Severed Roots: The Sealed Adoption Records Controversy,’ by Arndt, 6 Northern Illinois University Law Review 103 et seq. (1986).” Kasparek, 439 Pa. Super. at 277, 653 A.2d at 1256.

Unlike the Long case, supra, in the instant case, petitioner is not the adoptee. Section 2905(a) does not preclude non-adoptees from petitioning for unsealing. The legislature recognized that circumstances may arise where good cause could be shown by others. However, because the adoptee is not the petitioner, we must consider the possibility that the adoptee with whom contact is sought may not know of the adoption. In 1970, the adoptee was an infant. Now, the adoptee is 32 years old. As noted in Petition to Release Adoption Records, supra, the concern for the privacy of the adoptee is greater during the adoptee’s childhood. Because the adoptee is now well into adulthood, the concern for emotional harm to the adoptee from the possibility that adoptee is unaware of the adoption is lessened. Further, it is only speculation that the adoptee is unaware of the adoption.

The adoptive parents, who would be in their 70s if they survive, may have an interest in keeping the record sealed. This is especially so if they did not disclose the adoption to the adoptee. But in weighing this possible interest, the passage of 32 years during which they have had the opportunity to engraft the adoptee onto their family tree diminishes the concern that contact on petitioner’s behalf might disrupt their relationship with the child they raised.

The birth parents have executed consents to the release of the information sought by petitioner. Thus, they have waived any privacy interest which they have in keeping the record sealed.

The Commonwealth’s interest in keeping adoption records sealed is protected by the statutory requirement of cause for issuance of a support order and the standards set forth in Long, supra. Further, it is important to note the Commonwealth’s significant interest in preserving life, In re Fiori, 543 Pa. 592, 608, 673 A.2d 905, 910 (1996), a factor which strongly supports unsealing in this case.

Petitioner’s need for contact with the adoptee to request testing and possible participation in the bone marrow transplant is urgent. He will die without the bone marrow transplant. The risk of morbidity and mortality may be significantly reduced if the donor is his sibling. Further, it is questionable whether a compatible unrelated donor can be found in time to help petitioner. The petitioner’s need clearly and convincingly outweighs the considerations for continued sealing of the adoption records. There is “good cause” to permit the contact.

The procedure for contacting the adoptee ought to be as minimally intrusive as possible. Therefore, we will require that a representative of the Children, Youth and Families Division of Northampton County attempt to find the adoptee. If successful, the representative shall advise the adoptee of the reason for the contact and explain the nature of the medical testing and possible bone marrow transplant procedure. Petitioner may provide the representative with information about the testing and bone-marrow procedure to be conveyed to adoptee. The representative shall offer the adoptee three options: to accept direct contact from petitioner; to decline disclosure of adoptee’s identity and whereabouts, but to agree to participate in, the testing and bone-marrow transplant procedure; or to decline disclosure and decline participation in the testing and bone-marrow transplant procedure.

Wherefore, we enter the following:

ORDER

And now, October 24,2001, the petition for unsealing pursuant to 23 Pa.C.S. §2905(a) is granted. The director of the Children, Youth and Families Division of Northampton County shall designate a staff member to perform the duties designated in the last paragraph of the attached opinion.

      . Subsection (b) authorizes a court to provide to an adoptee non-identifying information about the natural parents and subsection (c) authorizes the court’s agent to attempt to contact the natural parents to obtain their consent for contact from the adoptee.


author: REILLY, RJ.,

text:
    Lux v. Gerald E. Ort Trucking Inc.

      August 21, 2001
    C.P. of Clearfield County
    no. 01-466-C.D.

      Jeffrey R. Owen, for plaintiff.

      Michael F. Nerone, for defendnt Knight.

      Edward A. Yurcon, for defendant Roberts.

      Robert A. Seiferth, for defendant Parker.

      John R. Benty, for defendant PennDOT.

      Nancy L. Heilman, for defendant Simon Trucking.
   REILLY, RJ.,

In the early morning hours of October 24, 2000, two collisions occurred on Interstate 80 between DuBois and Clearfield, Pennsylvania. Both collisions were caused in whole or in part by the fact that a driver of a tractor-trailer truck was asleep at the wheel.

The first accident occurred when a vehicle driven by defendant Eddie C. Roberts drove at a high rate of speed into another truck traveling in front of him on the highway. The second occurred when a truck driven by defendant Samuel Thomas Knight collided with a rescue squad truck positioned on the highway with its warning lights flashing and an illumination boom brightly lighting the scene of the cleanup of the first accident. During the second collision, three volunteer firemen who were passengers in the rescue squad truck were severely injured, including the plaintiff, James U. Lux, who was permanently paralyzed from the waist down. Currently, defendants Roberts and his employer trucking company, R & F Miller Inc., seek to dismiss the claims of plaintiff against them by preliminary objections in the nature of a demurrer.

This court must now determine whether the negligent conduct of defendants Roberts and Miller, in falling asleep at the wheel and causing the initial collision was a substantial factor in bringing about the severe injuries suffered by the plaintiff or is reserved to the jury and not an appropriate issue for preliminary objections in the nature of a demurrer or in essence, summary judgment.

As conceded by defendants in their brief: In reviewing preliminary objections, the court must accept as true all material facts set forth in the plaintiff’s complaint, and all reasonable inferences deducible from those facts. All doubts as to whether a claim can go forward must be resolved in the favor of the pleader. Field v. Philadel phia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170 (1989).

Moreover, it is well established that summary judgment should only be granted in a clear case, and the moving party bears the burden of demonstrating that no material issue remains. Salerno v. LaBarr, 159 Pa. Commw. 99, 102, 632 A.2d 1002, 1004 (1993). In other words:

“The threshold a plaintiff must meet to satisfy pleading requirements is exceedingly low; a court may dismiss a complaint only if the plaintiff can prove no set of facts that would entitle the plaintiff to relief.” Velleca v. Jones, 2000 WL 1470214 at p.1 (E.D. Pa. 2000), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In addition, Pennsylvania law clearly establishes that in circumstances such as those presented in the case at bar, summary judgment will not be granted. Contrary to the theory asserted in the defendants’ brief, it is clear that under Pennsylvania law, summary judgment will not be granted to dismiss a claim against a negligent actor causing an initial collision, brought by a plaintiff injured in a subsequent collision occurring at the scene of the initial accident.

In Taylor v. Jackson, 164 Pa. Commw. 482, 643 A.2d 771 (1994), the Commonwealth court, in an opinion rendered in the year following Bell v. Irace, 422 Pa. Super. 298, 619 A.2d 365 (1993) determined that summary judgment was inappropriate in such two collision scenarios, reversing the decision of the lower court.

In Taylor, a tractor-trailer jackknifed at 6:15 p.m. while traveling on Interstate 80 as it attempted to avoid a vehicle that had stopped in the road. Traffic immediately began backing up behind the jackknifed vehicle, which blocked both lanes of the highway. Taylor, 164 Pa. Commw. at 488, 643 A.2d at 774.

At 8:15 p.m. two hours after the initial accident, a delivery truck collided with other vehicles stopped approximately one-half mile from the second accident scene. It was this accident, which caused the serious injuries to plaintiff Taylor, who was a passenger in the vehicle struck by the delivery truck.

Although the Taylor trial court had granted summary judgment as to the claims against the defendants causing the initial two collisions, on appeal, the Commonwealth Court expressly rejected the identical arguments raised by the defendants herein, and determined that summary judgment was not appropriate.

In its decision, the Taylor court examines the concept of proximate cause, under the analysis of section 431 of the Restatement (Second) of Torts and reviews the issue raised by the defendants herein, namely, whether the actions of the first collision drivers were a “substantial factor in producing the injury.” The court further cites section 433 of the Restatement (Second) of Torts, as establishing the method of determining whether the negligent conduct of the initial tort-feasor is a substantial factor in bringing about harm to another. Section 433 establishes the following considerations to be used in determining whether an actor’s conduct is a substantial factor in bringing about harm to another. These factors are:

“(a) The number of other factors which contribute in producing the harm and the extent of the effect, which they have in producing it;
“(b) Whether the actor’s conduct has created a force or series of forces, which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; and
“(c) Lapse of time.” Section 4.31 of the Restatement (Second) of Torts.

Applying the section 433 standard to the facts before it, the Taylor court reaches a conclusion that is in direct contravention to the position currently argued by the defendants in their brief, holding instead that the actions causing the first collision were indeed a substantial factor in causing the third collision.

In finding summary judgment to be inappropriate, the Taylor court specifically held that the passage of two hours between the first and the last accident did not provide a valid basis for summary judgment as the trial court had determined. Instead, the court cites comment (f) of the Restatement, which states that “where it is evident that the influence of the actor’s negligence is still a substantial factor, mere lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal cause of the other harm.” Taylor, 164 Pa. Commw. at 492, 643 A.2d at 776, citing the Restatement (Second) of Torts, section 433(c).

As to whether a jury could reasonably determine that the negligent actions of defendant Roberts in falling asleep at the wheel and causing the first collision is a foreseeable cause and substantial factor in the harm suffered by the plaintiff, one need only to refer to the decision rendered by the court in Herman v. Welland Chemical Inc., 580 F. Supp. 823 (M.D. Pa. 1984) by the United States District Court for the Middle District of Pennsylvania. In Herman, applying Pennsylvania law in a fact situation similar to the present, a volunteer fireman was struck while directing traffic at an accident scene also located in Pennsylvania on Interstate 80. In finding that the presence of a firefighter at the scene was a foreseeable consequence to the first collision, the Herman court stated:

“To the extent that [defendant] argues that these plaintiffs may not recover on the ground that they were not, as a matter of law, within the foreseeable zone of harm, the court rejects this contention by looking to Justice Cardozzo’s comments in another case:

“Danger invites rescue. The cry of distress in the summons to relief. The law does not ignore these reactions in the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. Wagner v. International R. Co., 232 N.Y. 176, 180, 133 N.E. 437 (1921).

“Cardozzo, then, believed that rescuers always should be regarded as foreseeable plaintiffs. Prosser, Handbook of The Law of Torts, section 43 at 258-59 (4th ed. 1971).” Herman, 580 F. Supp. at 826.

Moreover, Pennsylvania law clearly establishes that a jury is to determine the question of whether a sleeping driver causing an initial accident scene is responsible for the injuries sustained by one summoned to aid in response to the accident, even in cases where the foreseeability of the second incident “is in doubt.” Valleca v. Jones, 2000 WL 1470214 (E.D. Pa. 2000), other citations unavailable.

In Valleca, the court reserved for the jury the determination of whether a sleeping driver who caused an initial collision was responsible for injuries sustained by a tow truck operator when a vehicle involved in the accident suddenly buckled and collapsed, striking his head. The Velleca court cites the Taylor decision as the rational basis for its decision, applying the substantial factor test of the Restatement (Second) of Torts, section 433. Velleca, 2000 WL 1470214 at 1-2.

It is also clear that the second collision in the instant case was not caused by an extraordinary event, as the defendants argue, but is rather a foreseeable event.

It is clear that both collisions were caused, in whole or in part, by sleeping drivers and the foreseeability of such events is a determination for the jury to make in these proceedings. Defendants’ arguments certainly fall far short of the requirement that any and all doubts as to whether a claim can go forward must be resolved in favor of the pleader and that summary judgment should only be granted in a clear case with the moving party bearing the burden of demonstrating that no material issue remains.

Therefore, this court enters the following:

ORDER

Now, August 21,2001, it is the order of this court that all defendants’ preliminary objections are hereby dismissed.


author: WARMAN, J.,

text:
    Tabaj v. Fayette Society for the Prevention of Cruelty to Animals Inc.

      C.P. of Fayette County,
    no. 1867 of 1993 G.D.

      Thomas Bowlen, for plaintiffs.

      Joseph M. George Jr., for defendants.

      August 30, 2001
   WARMAN, J.,

Presently before this court for disposition is a motion for summary judgment, filed on behalf of defendant The Fayette Society for the Prevention of Cruelty to Animals Inc., to the complaint filed on behalf of plaintiffs John J. Tabaj and Ruth A. Tabaj. Defendant avers that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law.

After oral argument, full consideration of the record, applicable law, briefs and submissions of counsel, and for reasons more fully discussed herein, defendant’s motion for summary judgment is granted in part and denied in part.

BACKGROUND

This action arises as the result of an allegedly unlawful search conducted on plaintiffs’ dairy farm on April 27,1993, and alleged malicious prosecution for charges filed on May 3, 1993.

Plaintiffs allege that on the morning of April 27,1993, armed and uniformed officers of the defendant Fayette Society for the Prevention of Cruelty to Animals Inc. and Tri-County Humane Protection Inc. entered onto their property without permission or consent. Plaintiffs contend that said officers entered their property pursuant to a search warrant applied for by Tri-County to search for an allegedly stolen dog owned by Paul Perry, which was reportedly seen on their farm. Plaintiffs claim that said officers searched all of the buildings situated on their farm, including their dwelling house, for a period of over two hours.

Following the search, officers of the SPCA initiated criminal proceedings against plaintiff John J. Tabaj, by executing five citations charging him with cruelty to animals and owning a dog without a license. The citations were filed on May 3, 1993, with the office of District Justice Dwight J. Shaner. The citations, however, were withdrawn on June 10, 1993.

Thereafter, on October 14,1993, plaintiffs filed a five-count complaint against the defendant, Paul Perry, and Tri-County seeking both compensatory and punitive damages. Following a motion for summary judgment filed by defendant Paul Perry, plaintiffs’ defamation claim against said defendant was dismissed by order of the Honorable John F. Wagner Jr., dated December 18,1995.

On April 27, 1998, a pretrial conference was held, however, on or about February 16, 1999, plaintiffs filed a motion for reference to arbitration. On February 19, 1999, an order was entered granting plaintiffs’ motion. Thereafter, on or about August 17, 1999, plaintiffs filed a praecipe to discontinue this matter as to Tri-County. Thereafter, a board of arbitrators heard this matter and awarded plaintiffs $25,000 on each of the four remaining counts of their complaint. Defendant appealed said award and the matter was placed on the civil trial list. Thereafter, defendant filed the motion for summary judgment now before this court, and on July 17, 2001, we heard oral argument thereon.

Defendant advances three arguments in support of the motion for summary judgment. Defendant first argues that it is entitled to judgment as a matter of law because as a local agency, it is immune from suit under section 8541 of the judicial code pertaining to governmental immunity. Defendant next argues that it is entitled to judgment as a matter of law because all of the communications which gave rise to the instant action are privileged. Finally, defendant argues that it is entitled to judgment as a matter of law because plaintiffs have suffered no losses and are entitled to no damages.

DISCUSSION

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, if any, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corp. v. First State Insurance Co., 746 A.2d 649 (Pa. Super. 2000); Davis v. Resources for Human Development Inc., 770 A.2d 353 (Pa. Super. 2001).

Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Davis v. Resources for Human Development, 770 A.2d 353 (Pa. Super. 2001). The non-moving party must adduce sufficient evidence on issues essential to its case on which he bears the burden of proof such that a jury could return a verdict in its favor. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996); O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039 (Pa. Commw. 1999). If there are no material issues of fact or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 616 A.2d 985 (1992).

The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Commonwealth of Pennsylvania, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). For summary judgment purposes, a “material fact” is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Kenney v. Jeanes Hospital, 769 A.2d 492 (Pa. Super. 2001). In passing on a motion for summary judgment, the court must examine the record in a light most favorable to the non-movant and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999), allocatur denied, 561 Pa. 660, 747 A.2d 902 (1999); Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25 (Pa. Super. 2000), allocatur granted in part, 563 Pa. 125, 758 A.2d 166 (2000), affirmed, 564 Pa. 264, 767 A.2d 548 (2001).

The moving party has the burden of proving the nonexistence of any genuine issue of fact; the non-moving party must demonstrate that there is a genuine issue for trial. Davis v. Resources of Human Development, 770 A.2d 353 (Pa. Super. 2000). The party moving for summary judgment may not rely solely on its own testimonial affidavits or depositions or those of its witnesses to establish the non-existence of a genuine issue of material fact. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 616 A.2d 985 (1992). With the above rules in mind, we will now consider defendant’s motion for summary judgment to plaintiffs’ complaint.

Defendant first argues that it is entitled to judgment as a matter of law pursuant to the Political Subdivision Tort Claims Act. In support of its position, defendant argues that as a nonprofit corporation duly created pursuant to relevant law, and because it is the legally recognized official animal care and control society for Dunbar Township, Fayette County, it is entitled to local agency immunity.

Plaintiff disagrees and argues to the contrary that defendant is not a local agency entitled to assert governmental immunity under the Act. This court in considering defendant’s motion for summary judgment must first determine whether defendant is a local agency and therefore entitled to judgment as a matter of law.

The purpose behind the enactment of the Political Subdivision Tort Claims Act was to insulate political subdivisions from liability, except for injuries sustained in accordance with one of the specific exceptions listed within the Act. Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991).

42 Pa.C.S. §8541 provides:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541.

42 Pa.C.S. §8501 defines “local agency” as a governmental unit other than the Commonwealth government. The term includes an intermediate unit. “Government unit” has been defined as “any government agency ...” and that term has been defined as “any political subdivision, municipal authority or other local authority.” See Modern Shoppers World—Mount Airy Corp. v. Philadelphia Gas Works, 164 Pa. Commw. 257, 643 A.2d 136 (1994), allocatur denied, 539 Pa. 683, 652 A.2d 1327 (1994).

In Community College v. Seibert, 144 Pa. Commw. 616, 601 A.2d 1348 (1992), allocatur granted, 530 Pa. 658, 608 A.2d 32 (1992), affirmed, 533 Pa. 314, 622 A.2d 285 (1993), our Commonwealth Court summarized these definitions as follows:

“A local agency, therefore, includes a government unit other than the Commonwealth government. A government unit includes any government agency, which in turn is defined as any political subdivision or municipal or other local authority.” Community College v. Seibert, 144 Pa. Commw. 616, 622, 601 A.2d 1348, 1351 (1992), allocatur granted, 530 Pa. 658, 608 A.2d 32 (1992), affirmed, 533 Pa. 314, 622 A.2d 285 (1993).

Our Commonwealth Court has stated that an agency of a local government includes only traditional units of government: cities, boroughs, counties, authorities, etc., as well as school districts. Modern Shoppers World—Mount Airy Corp. v. Philadelphia Gas Works, 164 Pa. Commw. 257, 643 A.2d 136 (1994), allocatur denied, 539 Pa. 683, 652 A.2d 1327 (1994). The court further stated that, “for purposes of tort immunity, an agency of a local government is one that has no independent legal existence, but is merely part of the organizational structure of that local government of authority.” See also, Hough v. PennDOT, 155 Pa. Commw. 162, 624 A.2d 780 (1993), allocatur denied, 538 Pa. 613, 645 A.2d 1316 (1993), reconsideration denied, (1993).

In support of its position that it is entitled to local agency immunity, defendant relies on Kniaz v. Benton Borough, 164 Pa. Commw. 109, 642 A.2d 551 (1994). In Kniaz, the court considered the issue of whether or not a volunteer fire company can assert governmental immunity under the Political Subdivision Tort Claims Act. There, the plaintiff was injured when a picnic table overturned in a public park while she was attending a volunteer fire company picnic. The fire company asserted local agency immunity under the Political Subdivision Tort Claims Act. The Commonwealth Court held that local agency immunity under the Act applied to the volunteer fire department provided that two requirements are met: (1) the volunteer fire department must have been a nonprofit corporation duly created pursuant to relevant law; and (2) it must be legally recognized as the official fire company for a political subdivision. Defendant argues that because it is a nonprofit corporation duly created pursuant to relevant law, and because it is legally recognized as the official animal care and control society for Dunbar Township, Fayette County, that it satisfies the requirements and is, therefore, entitled to protection under the Political Subdivision Tort Claims Act and judgment as a matter of law. We do not agree. A thorough review of cases addressing the issue of local agency immunity under the Political Subdivision Tort Claims Act reveals that these factors have only been considered when the local agency asserting immunity is a volunteer local fire department. Because we believe that the factors enunciated in Kniaz are limited solely to determinations involving the local agency status of volunteer fire departments, we must reject defendant’s argument that the same apply here.

Further, our research has revealed no instances where a defendant, such as the one now before this court has been afforded local agency status under the Political Subdivision Tort Claims Act. Accordingly, because summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law, and because all doubts must be resolved against the moving party, we must Deny defendant’s motion for summary judgment based on its claim that it is entitled to local agency immunity under the Political Subdivision Tort Claims Act.

Defendant next argues in support of its motion for summary judgment that it is entitled to judgment as a matter of law because any statements made by the defendant are privileged. Further, defendant argues that since the statements made by Paul Perry which gave rise to the instant action were determined to be privileged by order of Judge John F. Wagner Jr., dated December 18,1995, the plaintiffs’ entire complaint should be dismissed.

We initially note that both at the time of oral argument on this matter and in their brief, plaintiffs’ counsel agreed that the statements in the citations prepared by officers of the defendant are privileged and that Count IV of plaintiffs ’ complaint should be dismissed. We agree and believe that defendant is entitled to judgment as a matter of law to the defamation claim contained in Count IV of plaintiffs’ complaint. However, the privilege applies to communications and therefore does not extend to the malicious prosecution and invasion of privacy claims contained in plaintiffs’ complaint. We, therefore, Grant defendant’s motion for summary judgment to the defamation claim contained in Count IV of plaintiffs’ complaint.

Defendant next argues in support of its motion for summary judgment that it is entitled to judgment as a matter of law because plaintiffs have suffered no actual losses and are unable to show that they are entitled to any damages.

Plaintiffs argue to the contrary that their damages claims are fully supported by the facts of record in this case and that these damages directly resulted from the defendant’s actions. After reviewing the record in this matter in a light most favorable to plaintiffs, and after resolving all doubt in their favor, we believe that there are genuine issues of material fact regarding plaintiffs’ damages that are sufficient to preclude the entry of summary judgment. We must, therefore, Deny defendant’s motion for summary judgment based on defendant’s claim that plaintiffs have suffered no actual losses and are unable to show that they are entitled to the same.

ORDER

And now, August 30,2001, upon consideration of the motion for summary judgment filed on behalf of defendant The Fayette Society for the Prevention of Cruelty to Animals Inc., to plaintiffs’ complaint, and upon further consideration of the record, applicable law, briefs, arguments and submissions of counsel, it is hereby ordered and decreed that defendant’s motion is granted in part and denied in part. Defendant’s motion for summary judgment is granted only to the defamation claim contained in Count IV of plaintiffs’ complaint. Summary judgment is denied to the remaining counts of plaintiffs’ complaint.

ORDER

And now, August 30, 2001, upon consideration of the plaintiffs’ motion to dismiss the motion for summary judgment filed on behalf of defendant Fayette Society for the Prevention of Cruelty to Animals Inc., and upon further consideration of the record, applicable law, and the opinion and order filed herewith granting in part and denying in part defendant’s motion for summary judgment, it is hereby ordered and decreed that plaintiffs’ motion to dismiss is denied.

      . In support of their claim, defendant has attached a portion of the arbitration hearing transcript. However, in ruling on a motion for summary judgment, a court can only consider the evidence of record in its determination of the existence of issues of material fact. Pa.R.C.P. 1035.1 defines the word “record” as including (1) pleadings; (2) discovery materials, i.e., depositions, answers to interrogatories, admissions and affidavits; (3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories. Accordingly, we will not consider the same.


author: FORD, J.,

text:
    Rothrock v. Rothrock Motor Sales Inc.

      July 19, 2001
    C.P. of Lehigh County,
    no. 1993-C-0211.

      Daniel Weinstock, for plaintiffs.

      Wallace B. Eldridge III and John P. Meyers, for defendant.
   FORD, J.,

On September 11, 2000, a jury found in favor of plaintiff, Theodore Rothrock (Ted, as he was called at trial), on his wrongful discharge from employment claim against defendant in the amount of $192,000. The same jury found that plaintiff, Douglas Rothrock (Doug), who is the son of Ted, was not terminated from his employment by the defendant, so a verdict was entered against Doug on his wrongful discharge claim. Post-trial motions were filed by the plaintiffs and by the defendant.

On June 28, 2001, after an earlier argument on these motions, we denied all of the motions. We provide the reasons for our June 28, 2001 order in this opinion.

The plaintiffs were at-will employees of the defendant corporation, a car dealership located in Allentown. They had no written employment contracts. Doug alleged that he suffered a work-related injury to his neck in May of 1992 and thereafter sought relief by filing a claim under the Workers’ Compensation Act. (N.T., vol. Ill, pp. 70-71.) Plaintiffs contended that the principal of the defendant corporation, Bruce Rothrock Sr., who is the brother of Ted, threatened Ted that both plaintiffs would lose their jobs if Doug did not withdraw his workers’ compensation claim. The claim was not withdrawn and was later honored through proceedings under the Workers’ Compensation Act. (Court’s restatement of earlier stipulation of counsel to this effect at N.T., vol. I, pp. 53-55.)

There is no serious challenge to the sufficiency of the evidence to support the jury’s verdict that Ted was fired and that Doug was not fired. Rather, the primary issue raised by the defendant is whether the court properly concluded that the firing of an employee (in this case, Ted) for failure to pursuade a fellow employee (Doug) to withdraw his workers’ compensation claim constitutes a violation of public policy which would fall under one of the very limited exceptions to Pennsylvania’s general at-will employment rule. With its motion for judgment n.o.v., the defendant challenges a variety of our rulings and the charge which allowed such a cause of action to go to the jury.

Plaintiff, Ted Rothrock, testified about a meeting held in June of 1992, with his brother, Bruce, the principal of the corporation. Ted stated that Bruce made it clear to him that if Doug did not withdraw his claim, both Ted and Doug would be fired. (N.T., vol. II, pp. 32-33.)

A second meeting was held on July 16, 1992. During this meeting, a heated argument occurred between Bruce and his nephew, Doug. Mrs. Douglas Rothrock and Ted were at the meeting too. There was testimony that Doug refused to sign a form releasing or waiving his workers’ compensation claim, despite Bruce’s insistence that he do that. According to Ted, Bruce then fired Doug (a point rejected by the jury through a specific interrogatory). Ted described what took place next:

“Q. Now, after they left did you have any further conversation or did you personally, I should say, have any conversation with your brother, Bruce?
“A. The only thing I said in that meeting was he looked at me and he told me, ‘Remember what I told you.’
“Q. What did you assume he meant by that?
“A. That if I didn’t get this release signed, not one would be out of a job, two would be out of a job....
“Q. And how did you respond?
“A. I responded to him by T will go down and I will clean out my desk and be off your premises.’
“Q. What did you do then after you were told that?
“A. I left.
“Q. Did you go down and clean out your stuff?
“A. Yes, I did.” (N.T., Vol. II, pp. 37-41, with quotation at pp. 40-41.)

The verdict slip for Ted’s claim had three interrogatories. The jury answered as follows:

“Question 1: Was plaintiff, Theodore C. Rothrock, terminated from his employment?
“Answer: Yes.
“Question 2: Was the termination of plaintiff, Theodore C. Rothrock, due to the filing or pursuit of a claim for workers’ compensation by plaintiff Douglas Rothrock?
“Answer: Yes.
“Question 3: What amount of compensatory damages do you award Theodore C. Rothrock?
“Answer: $192,000.” (N.T., vol. V, p. 148.)

Is it unlawful for an employer to fire an at-will employee who fails or refuses to persuade a fellow employee to withdraw a workers’ compensation claim? A fair and logical application of the principles set forth by the Pennsylvania Supreme Court in Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998) compels an affirmative answer to that question.

Pennsylvania has long been an at-will employment state. Absent an employment contract, the rule has historically been that an employer may terminate an employee for any reason. Henry v. Pittsburg & Lake Erie Railroad Company, 139 Pa. 289, 21 A. 157 (1891). There is an exception to the at-will employment rule whereby, under limited circumstances, it is illegal to terminate an employee if the firing constitutes a violation of a “clear mandate of public policy.” Geary v. United States Steel Corporation, 456 Pa. 171, 185, 319 A.2d 174, 180 (1974).

In Shick v. Shirey, supra, the Pennsylvania Supreme Court pronounced that firing an employee in retaliation for the filing of a workers’ compensation claim was an actionable event and one of the narrow exceptions to the employment at-will doctrine.

The defendant argued that the holding in Shick was not applicable here. Because it was Doug who filed the claim, the argument continued, the Shick decision should not be extended to provide recourse to Ted who the jury found was fired for not convincing his son to withdraw the workers’ compensation claim. However, such a narrow interpretation ignored the underlying considerations that the Supreme Court promoted with the Shick decision.

The Supreme Court of Indiana recognized a cause of action for retaliatory discharge for filing workers’ compensation claims in Frampton v. Central Indiana Gas Company, 260 Ind. 249, 297 N.E.2d 425 (1973). The Pennsylvania Supreme Court cited the Frampton decision with approval and adopted its rationale in providing a cause of action for at-will employees who allege retaliatory discharge for the filing of a work injury claim. Our Supreme Court quoted from the Indiana decision as follows:

“The [Indiana Workmen’s Compensation] Act creates a duty in the employer to compensate employees for work-related injuries (through insurance) and a right in the employee to receive such compensation. But in order for the goals of the Act to be realized and for public policy to be effectuated, the employee must be able to exercise his right in an unfettered fashion without being subject to reprisal. If employers are permitted to penalize employees for filing workmen’s compensation claims, a most important public policy will be undermined. The fear of being discharged would have a deleterious effect on the exercise of a statutory right. Employees will not file claims for justly deserved compensation — opting, instead, to continue their employment without incident. The end result, of course, is that the employer is effectively relieved of his obligation.” Shick v. Shirey, supra at 603-604, 716 A.2d at 1237.

In Shick, the Supreme Court acknowledged the power of the courts to pronounce public policy in the absence of contrary statements by the legislature. We have cautiously made the logical and necessary extension of the same public policy at work in Shick so that a retaliatory discharge under the scenario of our case is also prohibited. To hold otherwise would provide license to employers to create an atmosphere in a given work force that stifles legitimate work-related claims. To hold otherwise would permit the employer to penalize an employee because another employee exercised a right under one of our statutes. To hold otherwise would create a loophole for employers to circumvent and undermine the important policy set forth in Shick.

For these reasons, plaintiff, Ted Rothrock, stated a cause of action for retaliatory discharge in violation of law. Our jury charge and rulings in accord with that determination were accurate. Accordingly, the motions for judgment n.o.v. and for a new trial were properly denied.

The defendant also makes a motion for remittitur. Defendant’s position is that the compensatory damage award of $192,000 in favor of Ted was excessive and lacked an evidentiary foundation. The award was not excessive, and there is sufficient evidence at trial to support it. The plaintiffs accurately point out that the jury’s award was well within the confines of the damage evidence.

Ted Rothrock testified as to his income and authenticated his available financial records (exhibit P-39) from 1990 to 1999. His income was:

Year Income

1990 $47,027.37

1991 $46,954.01

1993 0

1994 $ 9,117.55

1995 $11,912.61

1996 $16,233.15

1997 $22,328.70

1998 $23,558.75

1999 $10,321.99

(N.T., vol. II, pp. 52-56.)

Ted testified that, if he had not been fired, he intended to work with defendant until the age of 62 or 65. At the time of the trial, Ted was 64 years old. The date he was fired, as we have noted, was July 16, 1992, when Ted was 56. (N.T., vol. II, p. 57.)

Ted began looking for a new job after he was fired. He had only a ninth grade education. He watched newspaper advertisements, answered ads, spoke to insurance adjusters and made multiple applications. He obtained a Pennsylvania appraiser’s license to increase his marketability. Ted was not able to find a position working in another body shop. He did available work in his own garage and ended up driving a school bus, earning $62.50 per day. (N.T., vol. II, pp. 47-51.)

Under this evidence, there were a number of ways that the jury could have calculated damages in favor of Ted in view of its finding that he was terminated in retaliation for Doug’s workers’ compensation claim. The exact reasoning of the jury in making its award is, of course, unknown. Nevertheless, the award fits easily within a calculation of the difference between Ted’s earnings before he was fired and his income after he was fired, all taken to a reasonable retirement age. Thus, the trial record shows a basis for the award.

In attacking the damage award, the defendant made other arguments. Defendant asserted that relief from the verdict was justified because Ted did not provide a tax return for 1992, and that Ted did not personally construct the financial summary (the face page of exhibit P-39) that was submitted to the jury. The financial summary was constructed by Ted’s accountant. However, Ted authenticated the income summary as accurate. Moreover, there is considerable documentation contained within exhibit P-39 to support Ted’s testimony about his income since 1990. Additionally, a party is not restricted to the presentation of tax forms to demonstrate income loss.

As to the missing 1992 tax return, the year during which Ted was fired, Ted claimed he made a search for the tax return but could not find it and believed that it was misplaced by the accountant. (N.T., vol. II, p. 56.) The court gave the jury an adverse inference instruction regarding that missing tax return. (N.T., vol. V, pp. 99-100.) Although the issue appeared to be inconsequential, any prejudice that may have been suffered by the defendant was cured by the adverse inference instruction.

In its brief, defendant also attacks the damage award because W-2 forms were not submitted for certain years, and the W-2s of Ted’s wife were not produced. These are arguments which affect the weight of Ted’s testimony only and not the admissibility of it or the overall sufficiency of Ted’s case. As we have pointed out, the jury had substantial information before it as to Ted’s earnings before the termination and after it. The alleged missing bits of information were not basis for altering the damage award in any way but, rather, went into the mix for the jury’s exercise of its fact-finding function.

The verdict in favor of Ted was not excessive. It did not shock our sense of justice. There was nothing to indicate that the verdict was influenced by partiality, prejudice, mistake or sympathy. The jury verdict will not be reduced.

In the defendant’s motion for judgment n.o.v., it is alleged that the court erred in denying a defense motion in limine (N.T., vol. I, pp. 5-10) and in allowing the testimony of Gus R. Lesnevich, a forensic document examiner, who testified that signatures on certain documents were forged. The only challenge goes to the relevancy of Mr. Lesnevich’s testimony on forgeries.

In order to find that a trial court’s evidentiary rulings constituted reversible error, such rulings must not only have been erroneous but must have been harmful to the complaining party. Actual prejudice to the complaining party must be shown. Romeo v. Manuel, 703 A.2d 530, 532 (Pa. Super. 1997) (citing Bessemer Stores Inc. v. Reed Shaw Stenhouse Inc., 344 Pa. Super. 218, 224, 496 A.2d 762, 765 (1985)). Competent, relevant evidence having probative value is generally admissible and the trial judge is accorded “a large measure of discretion” regarding its admission or exclusion. In re Commitment of Barbour, 733 A.2d 1286, 1287 (Pa. Super. 1999) (citing Engle v. West Penn Power Company, 409 Pa. Super. 462, 598 A.2d 290 (1991), alloc. denied, 529 Pa. 669, 605 A.2d 334 (1992)).

The alleged forgeries were exhibits P-32 and P-33. They were misconduct warning letters supposedly issued by the defendant to Ted prior to his discharge. The documents showed signatures purportedly by Ted. Ted claimed at trial that he never received the documents and never signed them. (N.T., vol. II, pp. 43,46.) Additionally, the plaintiff’s expert, Gus Lesnevich, rendered the opinion that the signatures were forgeries. (N.T., vol. II, p. 174.)

The defendant used a two-pronged approach to counter the plaintiffs’ evidence that Ted was terminated. First, defendant maintained that Ted resigned. Second, the defense claimed that his position was in serious jeopardy because of misconduct on the job, and he was about to be fired for that misconduct. (N.T., vol. I, p. 8.) If the paper trail of the alleged misconduct was fabricated through forgeries, that evidence was relevant and probative of significant issues in the case, namely, whether Ted was fired, and the motivation and credibility of the defendant and its principal officer, Bruce Rothrock.

The defendant had full opportunity to respond to these issues. It presented Edward Kelly, a forensic document examiner, who testified that he did not think the documents were forged. (N.T., vol. IV, p. 82.)

The plaintiffs filed a post-trial motion. It lists several issues in an attempt to get a new trial for Douglas Rothrock. However, only one issue was briefed. We address that below. The other issues which were not briefed and argued were waived. Equipment Finance Inc. v. Toth, 328 Pa. Super. 351, 476 A.2d 1366 (1984).

The remaining issue, as presented in plaintiffs’ motion, was:

“The trial court improperly permitted RMS (defendant Rothrock Motor Sales) to defend this case on the basis that it believed Doug’s (plaintiff Douglas Rothrock) claim for workers’ compensation benefits was improper, but refused to permit plaintiffs to attack the bases and credibility of that belief.”

This contention is vague. We do not know what court rulings were challenged. The defendant, in its brief in opposition to the plaintiffs’ post-trial motion, accurately points out that the plaintiffs failed to cite the record or legal authority in support of their position of improper rulings by the court. Because of the vagueness of this allegation, we have dismissed it. However, a few comments about the issue are in order.

Aspects of Doug’s workers’ compensation claim were relevant to the wrongful discharge case. The challenge for the court was to walk the fine line of allowing those relevant issues to be placed before the jury and preventing a needless and improper retrying of issues from the workers’ compensation case. The task was made easier by the stipulation of the parties that Doug’s workers’ compensation claim was honored and that he received compensation benefits. (N.T., vol. I, pp. 53-56.) The jury heard the stipulation several times during the trial.

As the reader knows, one of the defenses to the wrongful discharge claims was that the plaintiffs were not fired on July 16, 1992, but quit out of anger when Bruce Rothrock questioned the veracity of the workers’ compensation claim. The defense was permitted to bring out those points even with the concession that the workers’ compensation claim was honored. Considerable latitude was then given to plaintiffs’ counsel in cross-examination of Bruce Rothrock in exploring and attacking his thoughts about the lack of legitimacy of the workers’ compensation claim. The lawyers faced few objections as they explored these points. Nevertheless, the discussion about the claim’s legitimacy was part and parcel of the episode that led to the severing of both plaintiffs’ relationship with the defendant. The areas explored were relevant, and plaintiffs’ counsel was not foreclosed in cross-examination. Thus, we fail to see error by the court in how we handled these matters. Nevertheless, we dismiss this argument of the plaintiffs because of the general and vague way that the issue was raised. There were no references to specific witnesses or rulings so meaningful evaluation or comment on the topic are not possible.

We have addressed all issues which have been briefed and argued. There are several other issues in the post-trial motions of both attorneys which were not briefed and argued. Those are waived, and we have dismissed them.


author: WIEST, J.,

text:
    Susquehanna Coal Company v. Mount Carmel Area School District
    C.P. of Northumberland County,
    no. CV-89-1105.

      William C. Cole, for plaintiff.

      May 24, 2001

      J. David Smith, for defendant.
   WIEST, J.,

Defendant Mount Carmel Area School District enacted a privilege tax of 10 percent on rental amounts received from the leasing of unimproved lands in 1988. This business privilege tax was enacted by the school district pursuant to section 2 of the Local Tax Enabling Act (Act 511), the Act of December 31, 1965, P.L. §1257, as amended, 53 P.S. §§6901-6924. This tax was applicable to the 1988-1989 school year. Defendant then reenacted the privilege tax for the next two school years (1989-1990, 1990-1991). Susquehanna Coal Company is a Pennsylvania corporation that owns certain tracts of land within the school district. Susquehanna Coal Company is the only taxpayer subject to this tax. The tax, according to the testimony of those involved in the imposition of the tax, was enacted to generate revenue for the school district’s maintenance needs. The tax resolution required a 10 percent assessment on net receipts from the leasing of unimproved property within the Mount Carmel Area School District. The resolution also contained a penalty provision which imposed a penalty rate of 10 percent per month on the unpaid sums due.

Susquehanna Coal Company owned, at the time the tax was imposed upon them, a landfill that it leased to Mount Carmel Township. Mount Carmel Township received dumping fees from this land. Fifteen percent of the fees that the township charged were remitted to Susquehanna Coal. The school district’s imposed 10 percent privilege tax resulted in the following amounts averred due (the parties at trial stipulated to these amounts which are 10 percent of the total amounts received by Susquehanna Coal from Mount Carmel Township during the school years mentioned below):

“(a) $6,871.60 for the school year 1988-1989;

“(b) $38,311.08 for the school year 1989-1990; and

“(c) $1,238.37 for the school year 1990-1991.”

Susquehanna Coal has not paid any of these taxed amounts and avers this is because they are contesting the validity of the tax.

Susquehanna Coal initiated suit in June of 1989 seeking a declaratory judgment that the tax was invalid. In November of 1989, the school district filed preliminary objections. This trial court granted and denied these in part by order dated June 18, 1990. The school district then answered the complaint on January 26,1992 by filing an answer with new matter and a counterclaim for the collection of the tax. In March of 1992, Susquehanna Coal filed its answer to the school district’s new matter and counterclaim with a subsequent affidavit verifying the facts contained in their answer. This court, after argument, granted the school district’s summary judgment motion in part by order dated April 15,1997. An opinion was entered by this court on September 18,1997 which made reference to and cited City of Harrisburg I, infra. The opinion stated as its reasoning for this court’s decision the holding in City of Harrisburg I. City of Harrisburg I was overturned by the Supreme Court of Pennsylvania’s decision in City of Harrisburg II, infra. Therefore this court now can rule on the merits in light of the Supreme Court’s decision.

The issues to be decided are as follows: (1) Is the tax unreasonable and unnecessary? (2) Does the tax violate the State Uniformity Standards and Equal Protection Guarantees under the Pennsylvania Constitution (as an arbitrary form of classification) and the Federal Constitution? (a) If the answer is yes to both issues one and two, then the plaintiff is required to pay the basic tax amount stipulated by the parties ($46,421.13), and the next question is what is the applicable interest rate plaintiff must pay? (3) Is the tax’s penalty provision valid? (a) If the answer to this issue is yes, then the next question is what is the appropriate penalty? (4) Should defendant be awarded attorney’s fees? (5) Should plaintiff be awarded attorney’s fees?

This court now addresses the first issue, (1) whether the tax is unreasonable and unnecessary? The pertinent statutes and case law are as follows:

Pennsylvania statute 53 P.S. §6902, Delegation of taxing powers and restrictions thereon, provides:

“The duly constituted authorities of the following political subdivisions, . . . school districts of the second class, school districts of the third class, and school districts of the fourth class . . . may, in their discretion, by ordinance or resolution, for general revenue purposes, levy, assess and collect or provide for the levying, assessment and collection of such taxes as they shall determine on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivisions, and upon the transfer of real property, or of any interest in real property, situate within the political subdivision levying and assessing the tax ... 53 P.S. §6902.

Pennsylvania statute 53 P.S. §6906, Appeals by taxpayers, explains the 30-day appeal period after the tax takes effect and the rights of the taxpayers to appeal. This statute is instructive as to the intended statutory limitations to be imposed on the courts by this law:

“It shall be the duty of the court to declare the ordinance and the tax imposed thereby to be valid unless it concludes that the ordinance is unlawful or finds that the tax imposed is excessive or unreasonable; but the court shall not interfere with the reasonable discretion of the legislative body in selecting the subjects or fixing the rates of the tax. The court may declare invalid any portion of the ordinance or of the tax imposed or may reduce the rates of the tax.” LTEA, 53 P.S. §6906. (emphasis added)

The Commonwealth Court of Pennsylvania provides:

“In determining whether a tax is unreasonable or excessive under the LTEA, a court must look to that Act’s underlying purposes and its reasonable effect. . . . [Sjection 6 does not leave a court at large to strike down any tax it considers ‘too burdensome.’ Rather it directs the court to consider the entire Act, as well as other expressions of the law of this Commonwealth, to ascertain whether they indicate that the tax imposed is so far divergent from the policies embodied therein as to be ‘excessive or unreasonable.’ ” Capitol Associates v. The School District of the City of Harrisburg, 684 A.2d 1119, 1124 (1996), quoting Wm. Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 216, 346 A.2d 269, 293 (1975). (citation omitted) (emphasis added)

The case at bar can be distinguished from the decision in Capitol Associates, supra, where the Commonwealth Court of Pennsylvania held that a school district’s imposed parking tax did not violate constitutional uniformity and equal protections requirements and was not unreasonable or excessive under the LTEA on the theory it fell disproportionately of the private operators. In Capitol Associates, “the tax burden imposed by the parking tax is borne equally by all nonexempt parking patrons, and nothing in the record supports the lower court’s conclusion that the private operators disproportionately bear the burden of the tax.” Capitol Associates at 1124. An imposed tax which falls squarely on the shoulders of one taxpayer must “disproportionately bear the burden of the tax.” Therefore, this court concludes as to the issue of whether the tax is excessive or unreasonable, that the imposed tax by Mount Carmel Area School District is excessive and unreasonable.

Additionally, it should be noted that the language of the statute, 53 PS. §6906, specifically states, “but the court shall not interfere with the reasonable discretion of the legislative body in selecting the subjects or fixing the rates of the tax.” The language specifically uses the wording, subjects of the tax. This indicates that the legislature did not intend for an imposed tax to fall squarely on the shoulders of one taxpayer, but that a tax is to be borne by more than one.

This court now addresses issue two, (2) whether the tax violates the State Uniformity Standards and Equal Protection Guarantees under the Pennsylvania Constitution (as an arbitrary form of classification) and the Federal Constitution.

The Pennsylvania State Constitution’s Uniformity Clause provides:

“All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under the general laws.” Pa. Const. Art. VIII, §1. (emphasis added)

The Pennsylvania Supreme Court has held:

“[U]nder the equal protection clause, and under the uniformity clause, absolute equality and perfect uniformity in taxation are not required. In cases where the validity of a classification for tax purposes is challenged, the test is whether the classification is based upon some legitimate distinction between the classes that provides a non-arbitrary and ‘reasonable and just’ basis for the difference in treatment. Stated alternatively, the focus of judicial review is upon whether there can be discerned ‘some concrete justification’ for treating the relevant group of taxpayers as members of distinguishable classes subject to different tax burdens. When there exists no legitimate distinction between the classes, and, thus, the tax scheme imposes substantially unequal tax burdens upon persons otherwise similarly situated, the tax is unconstitutional.” City of Harrisburg v. School District of City of Harrisburg (City of Harrisburg II), 551 Pa. 295, 303, 710 A.2d 49, 53 (1998), quoting Leonard v. Thornburgh, 507 Pa. 317, 489 A.2d 1349 (1985). (emphasis added)

“The taxpayer bears a heavy burden to demonstrate that the challenged tax classification is unreasonable.” Id. citing Pennsylvania Builders Ass ’n v. Commonwealth, Department of Revenue, 122 Pa. Commw. 493, 552 A.2d 730 (1989), aff’d, 524 Pa. 134, 569 A.2d 928 (1990).

This court will repeat its logic and reasoning stated in issue one. The intent of the Pennsylvania Constitution is clear, a tax is to be levied upon more than one entity or person, “[a]ll taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax.” This notion is bolstered by the court’s language in City of Harrisburg II, “the focus of judicial review is upon whether there can be discerned ‘some concrete justification’ for treating the relevant group of taxpayers as members of distinguishable classes subject to different tax burdens.” The case at bar contains no relevant group of taxpayers but only one taxpayer, and although it could be stated that the tax uniformly falls on the shoulders of one taxpayer, this does not appear to be within the intent of the above-stated case law and constitution. Where, as in the case at bar, there exists only one taxpayer under the tax, it must be concluded that “the tax scheme imposes [a] substantially unequal tax burden[] upon [the] person[] otherwise similarly situated [and] the tax is unconstitutional.” City of Harrisburg II, supra. And, the taxpayer has met his heavy “burden in demonstrating] that the challenged tax classification is unreasonable.” Id.

Therefore, it is the conclusion of this court that the imposed tax by Mount Carmel Area School District violates the State Uniformity Standards and Equal Protection Guarantees under the Pennsylvania Constitution as an arbitrary form of classification, and is thus invalid.

Issues two a. (2.a), three (3), and three a. (3.a) are not examined by this court. These issues address the applicable interest rate plaintiff must pay if the tax is valid, the validity of the penalty provision, and what the appropriate penalty should be. As this court has already determined, the tax imposed by the school district is invalid, thus these questions are moot.

This court now addresses and consolidates issues four (4) and five (5). These issues raise the same basic question: when should the court allow a party to recover attorney’s fees?

In order to be awarded counsel fees under section 2503(9) [of the Judicial Code], the trial court needs to find that the action was commenced arbitrarily, vexatiously or in bad faith. Arbitrary conduct is that which is based on random or convenient selection or choice rather than based upon reason or nature. Litigation is vexatious when suit is filed without sufficient grounds either law or fact and if the suit served the sole purpose of causing annoyance. A lawsuit is commenced in bad faith when it is filed for purposes of fraud, dishonesty or corruption. Township of Lower Merion v. QED Inc., 762 A.2d 779, 781-82 (Pa. Commw. 2000).

A review of the record reveals there was a good faith dispute as to whether plaintiff was required to pay the imposed tax, neither the claim nor the counterclaim filed by defendant were commenced, “arbitrarily, vexatiously or in bad faith.” Township of Lower Merion, supra. Therefore, neither party is entitled to attorney’s fees from the other.

ORDER

And now, May 24, 2001, for the logic and reasoning provided in the opinion filed this same day, this court hereby finds the tax imposed invalid as applied to plaintiff Susquehanna Coal Company.

      . Several entities were sent notices of enactment of the tax in question on December 5,1988; these were: Reading Anthracite Co., Consolidated Railroad Corp., Kerris & Helfrick, Lehigh Valley Depot, and Susquehanna Coal Company. See defendant’s answers to plaintiff’s interrogatories (first set), p. 5. However, as the following testimony reveals, apparently only one company, Susquehanna Coal, was made subject to the tax:
      “Cross-Examination. . .
      “Q. Besides the entities that you were shown as certified mail exhibit do you remember any other entities that were contacted regarding this particular tax? You had identified them prior on your direct testimony.
      “A. To the best of my recollection we just sent — we sent our certified — I thought it was four, I may be wrong — to the four offices I indicated before.
      “There may have been a telephone call from Kessler’s. I’m not sure if he called and asked for a copy, or if he sent a letter and asked for a copy. But that doesn’t show that he got anything.

        “Q. Just so we’re clear on this point, it’s my understanding that there were no taxes paid by any of those entities as far as you know?
      “A. As far as I know, there were no taxes paid.” N.T., videotape deposition of Joseph Warner, January 25, 1993, pp. 42-43.
      This notion was bolstered by the testimony of Kevin Jones (school board member at the time the tax was enacted) who stated at trial held on February 2, 2001, that he was unaware of any other entity, other than Susquehanna Coal who had made payments under this tax.

      . The memorandum opinion by Judge Flaherty filed June 4,1999, included the following language:
      “Therefore, because in this case the trial court did not include any Rule 341 language in its order that the order was an appealable 341 order, and because the counterclaim of the school district has not been disposed of in the record, the order and opinion of the trial court is vacated and the matter remanded back to the trial court to dispose of the matter on the merits in light of the Pennsylvania Supreme Court’s decision in City of Harrisburg II, infra, and to specifically dispose of the school district’s counterclaim.” Memorandum opinion no. 1386 C.D. 1997, Flaherty, J., filed June 4, 1999, pp. 5-6.

      . This court does not address whether the imposed tax is invalid under the Federal Constitution since it has already determined the tax to be invalid under the State Constitution.

      . As the tax is invalid as applied to Susquehanna Coal Company, so too are the penalty provisions. This decision determines on the merits both the initial claim instituted in June 1989, and the counterclaim attached to the answer with new matter filed on January 26, 1992. This decision is entered in accordance with Pa.R.C.P. 1038.


author: FIELD, J.,

text:
    Bowman v. Plumbarama Co. Inc.

      March 1, 2001

      Michael N. Borish, for plaintiff.

      Joseph M. DeMarco, for defendants.
   FIELD, J.,

Plaintiff Lisa Bowman appeals from the denial of her motion for post-trial relief following a defense verdict on July 25, 2000. For the reasons which follow, the motion was properly denied, and judgment for the defendants as entered on December 6, 2000, should be affirmed.

This case arises from a motor vehicle accident which occurred on May 26, 1998, in which plaintiff’s car was rear-ended by defendants’ truck. Defendants disputed neither their negligence nor the fact that such negligence caused the accident. Prior to trial, plaintiff was compensated for all of her economic damages, including automobile repair and lost wages. The only issue at trial was that of her noneconomic damages.

Under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., each person seeking insurance must elect either “full tort” or “limited tort” coverage, the latter being less expensive. Ms. Bowman elected “limited tort” coverage. Section 1705(d) of the Act provides:

“(d) Limited tort alternative — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss ....” 75 Pa.C.S. § 1705(d).

Serious injury is defined as a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. 75 Pa.C.S. §1702. Hence, under the limited tort option a claimant must show more than an impairment of bodily function; the impairment must be “serious.” The question of whether an injury is “serious” is one which must be left to the jury except in the clearest of cases. Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998).

In the instant matter, three questions were presented to the jury: causation, whether the injury was “serious,” and amount of damages. The jury was instructed after each question to proceed to the next question only if the previous question was answered affirmatively. The jury found that Ms. Bowman was injured in the accident, but that her injury was not “serious” within the meaning of the statute, and returned a verdict for the defense.

Plaintiff seeks a new trial based on alleged defects in the court’s instructions to the jury. In determining the adequacy of jury instructions, the charge must be viewed as a whole. A new trial is not warranted so long as the charge in its entirety adequately and accurately reflects the law. Von der Heide v. PennDOT, 553 Pa. 120, 718 A.2d 286 (1998).

“In this case, plaintiff did not call one of the treating physicians, Dr. Conroy. There is a rule that says where a potential witness is within the control of one party and they have special information relevant to the case, that the testimony would not be cumulative, the relationship to the party is such that the witness would be expected to favor that party, then if the party does not produce that testimony, there’s no explanation, you may draw [an] inference that the testimony would not be favorable.” Notes of testimony, 7/25/00, at 7-8. This language reflects that of Pa.S.S.C.J. 5.06.

In determining whether this instruction was appropriate, the court relied on Rule 4003.6 of the Pennsylvania Rules of Civil Procedure, which provides that information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. Clearly, the plaintiffs counsel was in a position superior to that of defense counsel with respect to securing plaintiff’s release and Dr. Conroy’s testimony. Additionally, it was the plaintiff, not the defendants, who introduced evidence as to her visits to Dr. Conroy, medical advice given to her by Dr. Conroy, and the fact that Dr. Conroy had examined her both before and after the accident at issue in this case. Under these circumstances, the instruction as given was proper.

For all of the above reasons, plaintiff’s post-trial motion seeking a new trial as to damages was properly denied. Judgment for the defendants as entered on December 6, 2000, should be affirmed.


author: WETTICK, J.,

text:
    Shelly Foundations Inc. v. Able-Hess Associates Inc.

      C.P. of Allegheny County,
    no. GD00-10445.

      Robert A. King and John M. Tedder, for plaintiff.

      Christopher R. Opalinski and Jarrell D. Wright, for defendant Able-Hess Associates.

      Andrew F. Szefi and Charles A. Merchant, for additional defendant Board of Public Education.

      Michael E. Lang, for additional defendant Pittsburgh Water & Sewer Authority.

      February 8, 2001
   WETTICK, J.,

The motion of Able-Hess Associates Inc. for leave of court to file a complaint to join additional defendants is the subject of this opinion and order of court. The motion is opposed by plaintiff and one of the proposed additional defendants.

Able-Hess served as the general trades contractor on a construction project pursuant to a contract with the Board of Public Education of the School District of Pittsburgh. Shelly Foundations Inc. was a subcontractor to Able-Hess.

Shelly has sued Able-Hess for money allegedly due under the subcontract. In its complaint, Shelly alleges that while it was drilling in the precise location identified in the drawings provided by Able-Hess, it unexpectedly tapped into a sewer line. Most of Shelly’s claims involve extra work and wait/delay costs resulting from the misidentification of the location of the sewer line, including expenses incurred in repairing the sewer line.

The original complaint was served on June 16, 2000. On September 11, 2000, Able-Hess filed its complaint to join as additional defendants the Board of Public Education of the School District of Pittsburgh and the Pittsburgh Water & Sewer Authority. In its proposed complaint to join additional defendants, Able-Hess alleges that these additional defendants had incorrectly identified the location of the sewer line. Consequently, if it is determined that Able-Hess is liable to Shelly with respect to claims relating to misidentification of the location of the sewer line, additional defendants are liable over. In addition, Able-Hess seeks damages from proposed additional defendants, unrelated to plaintiff’s claim, for its direct costs related to sewer remediation and foundation design work and for delays it experienced.

Under Pa.R.C.P. no. 2253, an original defendant may not join an additional defendant which is not already a party more than 60 days after the service upon the original defendant of the initial pleading of the plaintiff unless such filing is allowed by the court “upon cause shown.”

In this case, defendant missed the 60-day period by less than 30 days. The pleadings are not yet closed. There has been no discovery. The case has not been placed at issue. Consequently, the late joinder will not cause any prejudice to proposed additional defendants or to plaintiff.

However, Pennsylvania case law holds that the absence of prejudice does not establish good cause. NPW Medical Center of N.E. Penna. Inc. v. LS Design Group P.C., 353 Pa. Super. 341, 509 A.2d 1306 (1986). Furthermore, Able-Hess cannot establish any cause for the late joinder because it was aware of the claims which it is raising against the proposed additional defendants prior to the date upon which it was served with plaintiff’s complaint. Consequently, I cannot grant the motion for late joinder under the cause shown standard of Rule 2253.

I now address the question of whether the 60-day time period set forth in Rule 2253 is mandatory or whether Rule 2253 may be read in conjunction with Pa.R.C.P. no. 126 which reads as follows:

“The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defective procedure which does not affect the substantial rights of the parties.”

In Carlos R. Leffler Inc. v. Hutter, 696 A.2d 157, 166 (Pa. Super. 1997), the Pennsylvania Superior Court, citing Rule 126, ruled that the trial court erred in refusing to consider the merits of a post-trial motion filed one day late:

“This is in keeping with our long-standing policy that the rules should be construed liberally in order to effectuate their intent; which, as always, is the timely and fair adjudication of disputes. See Pa.R.C.P. 126. While both the parties and the court should strive for steadfast compliance with the rules, dictatorial adherence to the letter of the rules may oftentimes have the effect of undermining and frustrating their intent.” Also, see Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989).

The Pennsylvania Supreme Court has ruled that a trial court, in the exercise of its discretion, may overlook errors of procedure where no party is prejudiced. In Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), a defendant first filed a pleading to raise the defense of the statute of limitations more than one year after service of the complaint and after the jury had been picked. The Pennsylvania Supreme Court held that the ruling of the trial court permitting the late filing was not an abuse of discretion:

“We have considered this question previously and our position is clear: ‘... a lower court will not be reversed either for waiving or refusing to waive non-compliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party.’ This practice comports with Pa.R.C.P. 126 which mandates a liberal construction of the rules in general and the disregarding of any ‘error or defect of procedure which does not affect the substantial rights of the parties.’ ” Id. at 151, 285 A.2d at 112. (citations omitted)

In Paden v. Baker Concrete Construction Inc., 540 Pa. 409, 658 A.2d 341 (1995), the plaintiff filed an amended complaint naming a new defendant on the day before the statute of limitations expired. The amended complaint was filed without leave of court or the consent of the other party in violation of Pa.R.C.P. 1033. The trial court struck the complaint. The Superior Court reversed; it ruled that there was no prejudice, so the trial court was required to apply Rule 126. The Pennsylvania Supreme Court reinstated the ruling of the trial court, because a trial court is never required to apply Rule 126. The Pennsylvania Supreme Court ruled that in the situation where the improper filing works no prejudice against the improperly joined defendant or the other parties to the action, it is entirely up to the trial court to decide whether to enforce or overlook the procedural error:

“There is little doubt that this is a situation in which Rule 126 might appropriately have been applied, had the trial court deemed it to be required in the interest of justice. Nevertheless, the trial court having rejected the reprieve allowed by Rule 126, we do not deem the striking of the improper joinder to show manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. Thus, even if we might have reached a different conclusion had the decision been ours in the first instance, it was not an abuse of discretion for the trial court to rule as it did.

“Though Rule 126 would have permitted the trial court to overlook the procedural errors of trial counsel, it is not an abuse of the trial court’s discretion to enforce the rules of civil procedure, even when the result has a serious adverse effect on the party violating the rules; the rules are essential in order to insure the orderly and equal administration of justice and it is within the discretion of a trial court to require compliance.” Id. at 414, 658 A.2d at 344.

I am not aware of any appellate court case law that has considered the interplay between Rule 126 and the cause shown provision of Rule 2253. However, there are several appellate court cases that have applied Rule 126 to effect the goals of the third-party joinder rules where a defendant seeks to raise a cross-claim against another defendant.

In Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974), the jury entered a verdict in the plaintiff’s favor against both the physician and the hospital in a medical malpractice action. The trial court molded the verdict and entered a judgment for indemnity against Dr. Steen and in favor of the hospital. Dr. Steen argued that the court did not have the authority to do so because the hospital had failed to join Dr. Steen as an additional defendant for the purpose of indemnity. The Superior Court affirmed the ruling of the trial court:

“The rule was amended again in 1969 to provide a procedure for joining any party, plaintiff or defendant, who might be solely liable, liable over or jointly or severally liable with the joining party. The purpose of these amendments was to provide a shortcut procedure for disposing of matters involving numerous parties with divergent interests, avoiding the cumbersome three-step process of severance, joinder and consolidation formerly required if one wished to join a person already a party to the action.

“In construing this rule as it applies to the circumstances of this case, a number of principles are to be kept in mind. Generally applicable to all the rules of civil procedure is Rule 126 which provides that ‘[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.’ Such an approach is particularly pertinent where multiple parties are involved since in such cases the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. This court has favored the policy of broadly interpreting Rule 2252 ‘not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.’ ” Id. at 525-26,331 A.2d at 729-30. (citations omitted)

In Hileman v. Morelli, 413 Pa. Super. 316, 605 A.2d 377 (1992), the Superior Court held that the trial court had committed reversible error when it allowed the plaintiff’s discontinuance of an action as to a hospital without allowing another defendant, after the statute of limitations had run, to join the hospital on the ground of sole liability. The court cited the portion of the Ragan v. Steen opinion set forth above in support of its position that the joinder rules cannot be read without considering Rule 126. Id. at 325-26, 605 A.2d at 382.

In Bianculli v. Turner Construction Co., 433 Pa. Super. 237, 640 A.2d 461 (1994), the trial court dismissed a cross-claim because of a 17-month delay in the service of the cross-claim. The Superior Court, citing the portion of the Ragan v. Steen opinion set forth above, ruled that it was an abuse of discretion to dismiss the cross-claim “in view of the lack of any prejudice to appellee Healy & Long, and the purposes sought to be realized by the rules pertaining to cross-claims ....” Id. at 245, 640 A.2d at 465-66.

In the present case, I will, in the exercise of my discretion, apply Rule 126 because the pleadings are not closed; there has not been any discovery; joinder will not delay the trial of the case; and the case does not involve a substantial noncompliance with the rules.

Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970) (citations omitted), continues to be the controlling case on the issue of the purposes of the third-party joinder rules (Pa.R.C.P. 2251-2256):

“The court . . . should be guided by the objectives sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules are an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.”

I find that joinder in this case will further the intent of the third-party joinder rules of avoiding a multiplicity of lawsuits and adjudicating all of the rights and liabilities of those involved in the incident in a single lawsuit where this can occur without delaying the resolution of the plaintiff’s claims and without prejudice to any party.

The application of Rule 126 to the situation, in which joinder will not interfere with the expeditious resolution of the litigation, is not inconsistent with NPW Medical Center v. LS Design Group, supra, 353 Pa. Super. 341, 509 A.2d 1306. The issue which the Superior Court addressed in that case was whether the cause shown requirement of Rule 2253 should be dispensed with when the plaintiff agrees to the late joinder of the additional defendant. The Superior Court ruled that the cause shown requirement of Rule 2253 had purposes in addition to preventing the plaintiff from suffering prejudice. The court stated that the rule was premised on a more general purpose of ensuring the expeditious resolution of multi-party lawsuits. Obviously, the application of Rule 126 to the situation in which joinder will not interfere with the expeditious resolution of the lawsuit is consistent with this general purpose.

The court also stated that the appellant’s reading of Rule 2253 ignored the clear language of Rule 2253, which does not limit the requirement that cause be shown to cases where the plaintiff objects to the joinder. The court said that if it adopted this position, it would be emasculating Rule 2253 by ignoring its clear requirement that cause must be shown for delay in joinder. The purpose of Rule 126 is to permit a court to exercise discretion to ignore procedural requirements, such as a 60-day filing requirement, in the situation in which the strict application of the requirement may have the effect of thwarting the purposes for the rule.

For these reasons, I enter the following order of court:

ORDER

On February 8, 2001, upon consideration of defendant’s motion for leave of court to permit nunc pro tunc filing of complaint to join additional defendants and the proposed additional defendants’ brief in opposition to the late joinder, it is hereby ordered that defendant’s motion is granted and that a complaint joining the Board of Public Education and the Pittsburgh Water & Sewer Authority as additional defendants may be filed within 20 days.

      . On May 10, 2000, Able-Hess sued the Board of Public Education and the Pittsburgh Water & Sewer Authority in this court at GD-00-8271 to recover the costs it incurred in repairing the sewer line and various indirect costs, including demobilization and remobilization costs, productivity losses, and extended home and field expenses.