author: WALSH, P.J.

text:
    Old Forge School District v. Thorne

      Lawrence Moran, for petitioner.

      Ralph Carey, for respondent.
    December 19, 1990
   WALSH, P.J.

This suit comes before us today by way of the Old Forge School District’s petition to strike off a judgment or in the alternative to open the judgment. Before discussing the merits of petitioner’s claim, we will briefly set forth the factual and procedural history of the case.

The Thorne’s purchased the premises known as 1276 Mine Street, Old Forge, Pennsylvania, sometime in 1962. The purchase is evidenced by a deed dated October 6, 1963 which is recorded in Lacka-wanna County Deed Book 596, page 604. The premises are described as being 50 feet in front and 160 feet in depth, being lot no. 118 as shown upon map identified as “Smith Lots,” Austin Heights, which was recorded on December 15, 1899 in Map Book no. 1, page 79.

In 1985 the Thornes, upon reviewing their deed after paying off their mortgage, discovered that they did not own all the land in their possession. They subsequently initiated an action to quiet title against the original developers of the “Smith Lots,” their successors and all other parties who claimed title by, through or from any of them in regard to the parcel described as lot 117 in the “Smith Lots.” Final judgment was entered in favor of the Thornes on December 12, 1985.

In May 1987, the owner of lot no. 116, Dorothy Yaroslosky, in the aforesaid “Smith Lots” filed an action of ejectment against the Thornes docketed to no. 87 Civil 2412 in the Court of Common Pleas of Lackawanna County. Yaroslosky claimed a portion of lot 117 by asserting ownership by adverse possession for 21 years. By order of court per Harhut, J., the Thornes were directed to convey a strip of lot no. 117 by quitclaim deed. The Thornes by deed dated April 21, 1988 conveyed a strip of land beginning six feet in front on Mine Street, five feet in the rear and 55 feet in depth.

The school district filed the present petition on April 28, 1988. The petition requests that we strike the judgment entered December 12, 1985, or in the alternative that we open the said judgment. The district claims title to lot no. 117 through a conveyance by Rudolph Yagoda to the district in 1916. The deed evidencing this conveyance was recorded May 22, 1916 in Deed Book 288, page 125. The abstract of title shows the aforementioned Smiths conveying the land to John Tetlock on April 31, 1904. Mr. and Mrs. Tetlock deeded the land to Rudolph Yagoda on May 6, 1916 and Mr. Yagoda subsequently sold the property to the school district for $175.

The school district was never served with a copy of the quiet title action nor was the district named as a defendant. Therefore, they never had the opportunity to object to the suit. The district also claims in their petition that they own the subject lot no. 117 and that the Thornes are barred from claiming title to this property through adverse possession.

A motion to strike off a judgment is in the nature of a demurrer to the record. The general rule is that a judgment regular on its face will not be stricken from the record. It is only when the fact upon which the court is asked to strike off a judgment, regular on its face, is admitted or not questioned that it may be stricken off. Peterson v. Schultz, 162 Pa. Super. 469, 58 A.2d 360 (1948). A motion to strike off a judgment is confined to matters of record. F.C.L. Games Inc. v. Safeguard Mutual Insurance Company, 226 Pa. Super. 84, 310 A.2d 285 (1973).

Petitioners rely on the case of Hoyman v. Commonwealth of Pennsylvania, 29 Pa. Commw. 131, 370 A.2d 753 (1977), for the proposition that an action to quiet title may not be brought against the Commonwealth since such action is barred by the doctrine of sovereign immunity. Petitioners’ reliance is misplaced. Hoyman dealt with an action against the Commonwealth’s Department of Environmental Resources. Hoyman, 29 Pa. Commw. at 132, 370 A.2d at 753. The present case is clearly distinguishable.

The Old Forge School District is a political subdivision of the Commonwealth. Pennsylvania case law clearly demonstrates that a party cannot assert a claim of adverse possession against the Commonwealth. Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719 (1951). However, a party can obtain title to property by adverse possession when the property is owned by a political subdivision unless such property has been devoted to public use. Torch v. Constantino, 227 Pa. Super. 427, 323 A.2d 278 (1974). Pennsylvania does recognize that local governments have immunity from a claim of adverse possession when the land in question is devoted to public use. Id. The record before us is void of any evidence as to the use of the parcel in question or whether it was devoted for public use.

The record before us reveals that petitioner claims to own lot no. 117, which is the basis of their petition. However, the Thornes have not admitted that the district owns the lot and they specifically deny, in their answer to the petition, the district’s claim of ownership. With the aforementioned standard in mind and the case law dealing with adverse possession of a political subdivision’s property, we do not believe the judgment should be stricken. However, for the reasons set forth below, we will grant petitioner’s petition to open the judgment.

The facts reveal that the school district’s claim of ownership may be valid. The deed conveying title to the district was recorded. The fact that the Thorne’s title search failed to identify this deed was detrimental to the district’s claim. Since the deed was not discovered, the Thorne’s failed to notify the district of their action. All these mistakes were the result of the negligent abstract. If the district was notified they could have made their case in the quiet title action. We will not strike the judgment because the district still has the burden of proving the parcel was devoted to public use. Failure by the district to meet this burden will vest title in the Thornes. Accordingly, the judgment entered on December 12, 1985 will be opened.

An order granting the school district’s petition to open the judgment will be entered.

ORDER

Now, December 19, 1990, it is hereby ordered and decreed that the Old Forge School District’s petition to open judgment is granted.

       The caption to the action to quiet title read: “Ronald F. Thorne and Delores I. Thorne, his wife, v. H.G. Smith and Rhea Smith, his wife, of Clarks Summit, Pa., T.B. Smith and Fannie Smith, his wife, J. Frank Smith and Anna Smith, his wife, and Mame A. Smith and J. Frank Smith, her attorney in fact, all of Wyoming, Luzerne County, their heirs, executors, administrators, successors and assigns and any and all persons claiming by, through or from any of them.”


source: Caselaw Access Project

author: BROWN, P.J.,

license: Public Domain

text:
    Earon v. Earon

      Frank Miceli, for plaintiffs.

      Donald Faulkner, for defendant Colette Earon.

      Dari J. Earon Jr., in propria persona.
    February 9, 1991
   BROWN, P.J.,

Defendants are the natural parents of Laura Marie Earon who was born on April 3, 1985. Laura is the subject of these partial custody proceedings. She is presently five years of age and attends kindergarten at the Salona Elementary School from about 8 a.m. until 2:30 p.m.

Plaintiffs are Laura’s paternal grandparents. For the first several years of Laura’s life plaintiffs as grandparents occupied a relationship with Laura that provided for frequent contacts and also resulted in the development of a close relationship. This relationship included attendance at various family gatherings including reunions and on special holidays. In this regard both plaintiffs have extensive family consisting of parents, brothers and sisters and nieces and nephews. The family attends several family reunions each year and during her early years Laura attended these reunions.

In November 1988 defendants’ marriage broke up, at which time defendants separated. They were divorced on February 22, 1989. After the separation and divorce defendant Dari Earon Jr. returned home to live with plaintiffs, his parents.

On March 11, 1989 a custody decree was entered which provided for defendants to have shared legal custody of Laura, with defendant Colette Earon, Laura’s natural mother, to have primary physical custody and with defendant Dari J. Earon Jr. to have rather liberal partial custody privileges. These included every Wednesday from 5:30 p.m. until 8 p.m., two weeks each summer, Laura’s birthday from 3 p.m. until 8 p.m., the division of Christmas Day predicated upon even and odd numbered years, an alternating of traditional holidays in even and odd numbered years, and alternating weekends from 10 a.m. on Saturdays until 8 p.m. on Sundays. It is the court’s understanding that these visitation rights have been exercised in accordance with the aforesaid decree.

Plaintiffs have filed the present petition seeking an award of partial custody privileges in their own right and not derivative from the rights of their son, Dari J. Earon Jr. Specifically, plaintiffs have alleged that they have not been able to do things with Laura on their own time without cutting into Dari Jr.’s partial custody privileges.

In this regard plaintiffs have made five specific requests to the court. They wish to have court-ordered partial custody privileges for some period of time on each of their respective birthdays. Mr. Earon’s birthday is on May 4 and Mrs. Earon’s birthday is on July 31. Secondly, they wish to have Laura made available for partial custody privileges for family reunions. Third, they wish to have Laura made available for one day during the Thanksgiving season and one day between Christmas and New Year’s. Fourth, they wish to have one week of visitation every other year. Fifth and finally, they are requesting a weekend of visitation once every three months for a period from Friday evening through Sunday evening.

ISSUE

Whether plaintiffs/grandparents are entitled to an award of partial custody or visitation under 23 Pa.C.S. §5312 when they see the grandchild regularly pursuant to their son’s partial custody.

DISCUSSION

Plaintiffs have stated a claim under the Custody and Grandparents’ Visitation Act, 23 Pa.C.S. §5301 et seq. Although the complaint is styled as a “complaint for grandparents’ partial custody,” the order of court prepared by plaintiffs’ counsel and filed December 18, 1989 suggests plaintiffs are seeking either partial custody or visitation. Accordingly, the court will address both partial custody and visitation. The original Custody and Grandparents’ Visitation Act, 23 Pa.C.S. §1001 et seq. took effect January 5, 1982 and “merely codified the law which had evolved through various appellate decisions dealing with the rights of grandparents in seeking visitation and/or custody of their grandchildren.” Hughes v. Hughes, 316 Pa. Super. 505, 463 A.2d 478 (1983). In 1985 the General Assembly repealed the original act and re-enacted it in its current form, 23 Pa.C.S. §5301 et seq.

The applicable section to this action is section 5312, which provides:

“§5312. When parents’ marriage is dissolved or parents are separated
“In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.”

This section differs from the corresponding section to the original act, 23 Pa.C.S. §1013, in only two respects: (1) dissolution of the marriage is no longer a prerequisite — a six-month separation will suffice; and (2) a grandparent may now seek visitation and/or partial custody rather than simply visitation.

The burden of proof for grandparents seeking custody or visitation is as follows:

“[I]n a dispute between a parent and a third party, including a relative such as a grandparent, the parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party. In re Hernandez, 249 Pa. Super. 274, 287, 376 A.2d 648, 654-5 (1977). Since visitation is correlative to custody a similar test should apply when a third party seeks visitation, although the burden on the third party should not be so heavy, for an order granting visitation is a far lesser intrusion, or assertion of control, than is an award of custody. . . .
“When seeking visitation, a third party must show reasons to overcome the parent’s prima facie right to uninterrupted custody. However, the reasons need not be so convincing as in a custody case. In a custody case, the third party must convince the court that it is in the child’s best interest to take custody from a parent and award it to a third party. In a visitation case, the third party need only convince the court that it is in the child’s best interest to give some time to the third party. As the amount of time requested moves the visit further from a visit and closer to custody, the reasons offered in support of the request must become correspondingly more convincing.” Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (1978). (emphasis supplied)

The Supreme Court of Pennsylvania has characterized this standard as a “sliding scale” approach. Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983).

In Hughes, supra, the Superior Court noted that “[t]he guiding polestar in deciding all cases involving a child, including whether grandparent visitation rights should be awarded, is the best interest of the child.” The Supreme Court of Pennsylvania has defined the “goal” of custody and visitation awards as “foster[ing] those relationships which will be meaningful for the child, while protecting the child from situations which would have a harmful effect.” Zaffarano, supra.

Normally grandparents seek visitation or partial custody under this section when their child, the parent of the grandchild[ren] in question, is unavailable or does not have custody or visitation rights. See, e.g., Bucci v. Bucci, 351 Pa. Super. 457, 506 A.2d 438 (1986) (father in prison); Bishop v. Piller, 43 Lehigh L.J. 429 (1990) (father in prison); Pipp v. Pipp, 17 Lycoming Rep. 354 (1989) (father in military); Pluebell v. Greenaway, 28 D.&C. 3d 466 (1984) (father “absent”). At least one court has ruled, however, that grandparents state a claim under section 5313 even where their child is in the picture and has visitation rights. Baron v. Klein, 24 D.&C. 3d 53 (1982) (court dismissed natural mother’s demurrer to complaint filed by paternal grandmother). The court in Baron noted that in ruling on the merits of the complaint it would consider (1) the relationship between the grandmother and her son, the children’s natural father; (2) the extent of the natural father’s visitation rights; and (3) the relationship between the grandmother and grandchildren prior to this action.

Clearly the courts do not look at the grandparents’ rights in a vacuum. Normally if a father has the legal right to visit with his children, he will provide his parents access to their grandchildren. The Baron court indicated that the first factor it would consider was the grandparent/parent relationship. Likewise, in Pluebell, the court noted that the father was absent and that “if he were present, [he] could assure access to the grandmother and stepgrandfather.” 28 D.&C. 3d at 468.

To award partial custody to plaintiffs in this action would require that the court take custody from one of the natural parents. Plaintiffs do not dispute that they see their grandchild when she is in her father’s custody. Plaintiffs insist, however, that they want a period of time with the child that will not cut into their son’s time with the child. In other words, they are interested in cutting into the natural mother’s time with the child. Plaintiffs have failed to convince the court that it is in their grandchild’s best interests to have the court carve up her time three ways.

The court believes it is in the child’s best interest to maintain meaningful relationships with her paternal grandparents. The court is confident that she will be able to do so without a court order. There is no evidence that plaintiffs are not seeing their granddaughter. On the contrary, plaintiffs’ son, who has liberal custody privileges, is living with plaintiffs. Thus, when the child visits her father, she also sees her grandparents. Moreover, it appears to the court that in the past calendar year (1990) on various occasions defendant’s partial custody privileges, particularly during the summer, coincided with various reunions and events for which plaintiffs as grandparents wished to have Laura. In summary, were the court to award visitation or partial custody to plaintiffs, which the court will not do, it would do so by reducing Dari J. Earon Jr.’s partial custody privileges. See Agati v. Agati, 342 Pa. Super. 132, 492 A.2d 427 (1985). The court believes plaintiffs can work out some sort of de facto arrangement with defendants that will enable plaintiffs to enjoy the company of their grandchild on special occasions.

The court is not unsympathetic with the plaintiffs’ position as grandparents. Furthermore the court agrees with the principle that Laura should have a meaningful relationship with plaintiffs as grandparents as well as with her maternal grandparents. The issue is not whether she should have such a relationship but the extent to which she should have it taking into account the reality that her parents are separated and the court’s first obligation is to provide for the needs of each of the parents.

In attempting to analyze and treat plaintiff’s request with some degree of fairness and reasonableness the court is faced with the inescapable given in this case that the court has only the time of one child which in the first instance has already been carved up between the two parents. This in itself usually presents a difficult task. To recognize plaintiffs’ claim under the present circumstances would require the court to carve up the child’s time among three people. It is also theoretically possible that the maternal grandparents would have the same rights as the paternal grandparents which creates a prospect of further division of the child’s time between four different households. It could even be observed that in some cases grandparents themselves are separated or divorced and the court could be involved in even further divisions with five or six people. The precedent that would be set in a case like this of allowing partial custody privileges to the grandparents when they already have access to the child through their son is one which the court chooses not to set.

In assessing the provisions of section 5312, the court notes that the legislature has provided that the court may grant visitation rights or partial custody in this situation. It is the court’s considered judgment that given the circumstances of the case the discretion reposed in it by the legislature mandates that such a request not be granted at the present time. In making this decision the court means to encourage the parties to work out meaningful times for the fostering of Laura’s relationship with her grandparents and this could well include being able to see them on their respective birthdays for a reasonable period of time. The court is aware that certain hostilities still pervade the dissolution of the marriage and have carried over to the respective families that suffer from that dissolution, but it is also to be noted that with the passage of time those hostilities should subside and all parties should act accordingly in the best interest of the child who was the unwilling and blameless participant in the dissolution.

ORDER

And now, February 9, 1991, based upon the foregoing opinion, it is hereby ordered that plaintiffs’ complaint for grandparents’ partial custody be dismissed and the requested relief denied.

      . Act of November 5, 1981, P.L. 322, no. 115, §§ 1-15.

      . Act of October 30, 1985, P.L. 264, no. 66 §3.


author: BOZZA, A.J.,

text:
    Hiles v. Steinbrink

      Leonard E. Price, for plaintiffs.

      Irving O. Murphy and Craig R.F. Murphey, for defendant William Steinbrink, M.D., and Stein-brink, Finn and Associates Inc.

      T. Warren Jones, for defendant Hamot Medical Center.
    February 8, 1991
   BOZZA, A.J.,

This is a medical malpractice action brought on behalf of Michael Hiles, a minor, and his parents, Warren E. Hiles and Debra M. Hiles, against defendant William Steinbrink, M.D., an obstetrician and gynecologist, and additional corporate parties. Defendants have filed preliminary objections which inter alia include a demurrer to Warren E. Hiles’ claim for the voluntary relinquishment- of one of his kidneys to be transplanted in his son, Michael.

Plaintiffs allege that Dr. Steinbrink negligently treated Debra Hiles during her pregnancy by failing to properly monitor the development of her fetus, by not employing or improperly employing sonograms. On December 16, 1987, Michael Hiles was delivered with complications to both kidneys caused by urinary obstruction. Subsequent surgery was unsuccessful and Michael was left with only one partially functioning kidney. The treatment alternatives were limited to either continual dialysis or a kidney transplant operation. The transplant alternative was investigated and it was determined that Warren Hiles was a compatible potential donor of a kidney. On November 27, 1990, Warren Hiles’ left kidney was transplanted into his son, Michael.

Defendants argue that they cannot be held legally responsible for Warren Hiles’ damages because at the time of Dr. Steinbrink’s allegedly negligent conduct, he could not have foreseen that Mr. Hiles would suffer personal injuries as a result of that conduct; therefore, he did not owe to Mr. Hiles a legal duty to exercise due care. Defendants further contend they are not legally responsible for the loss of Mr. Hiles’ kidney because the loss of the kidney was essentially too remote an occurrence and therefore Dr. Steinbrink’s conduct was not the proximate cause of Mr. Hiles’ loss.

Initially, this court notes that the appellate courts of the Commonwealth have not previously addressed these issues. Indeed, it appears that only New York State has dealt directly with the subject matter at hand, rejecting the claim of an organ donor. Moore v. Shah, 458 N.Y.S.2d 33 (A.D. 1982).

Perhaps this case demonstrates in an unusually apparent manner the inherent weakness of the common-law approach to determining the extent of liability for conduct falling below the minimum standard of care. In the absence of a direct relationship between a physician and a person ultimately claiming injury, a determination of the foreseeability of the injury is required. Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2d 1332 (1985). While a traditional tort analysis includes foreseeability as an aspect of both a “duty” analysis and a “proximate cause” analysis, the position delineated in the Second Restatement of Torts has had the effect of significantly limiting the role of foreseeability in the context of the latter and emphasizing it in the former. See generally, Restatement (Second) of Torts §§430, 435 (1965); Little v. York County Earned Income Tax Bureau, 333 Pa. Super. 8, 481 A.2d 1194 (1984). Unfortunately, the use of a term such as “foreseeability” within the context of what is usually described as an objective test of negligence presents a paradox. Notwithstanding one’s interest in what a “reasonable person” would do or know, the notion of foreseeability requires at best a speculative determination of the future consequences of present behavior. Indeed, it is unclear whether the inquiry is an assessment of probability or possibility. See Restatement (Second) of Torts §281, comment d. Unless one is strictly applying the laws of science, a foreseeability determination is largely a matter of individual supposition. The le-gaily infamous decision of the New York Court of Appeals in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), provides a good example of the difficulty. Most noteworthy because of the court’s use of the foreseeability standard to determine the existence of a “legal duty” the actual result of the court’s analysis has apparently warranted little interest. Specifically, the court concluded that a person who carries fireworks onto a train would not foresee someone getting hurt by a falling object set in motion by the force of an explosion resulting from the fireworks being dropped. Perhaps a lay person may understandably ask, “Why not?” and argue that it is entirely reasonable to assume that as a result of an explosion, people will likely get hurt by falling objects or in a myriad of other ways not easily predicted. The subjective nature of the inquiry dictates disagreement.

In the context of the case at bar an assessment of foreseeability is complicated by the necessity of determining what a physician would have reasonably foreseen about the consequences of the treatment he was providing. The relevant inquiry centers on what would be foreseeable to a reasonably competent obstetrician. To such a person would Mr. Hiles’ decision to relinquish a kidney be a possible or perhaps probable consequence of the failure to properly monitor the development of a fetus? If such a question was submitted to a lay jury, it would be necessary for jurors to rely on the expertise of witnesses called to testify about the state of obstetric practice at the relevant time. The court when asked to determine whether a cause of action is stated must rely on the recitation of facts in the complaint setting forth what a reasonably competent obstetrician would have foreseen about the consequences of his carelessness. Unfortunately, in this case no such facts are pled and the breadth of the concept of foreseeability notwithstanding, the court would be required to speculate. In the absence of allegations of fact in his complaint supporting a finding of foreseeability, Warren Hiles has failed to set forth a prima facie case on each of the elements of negligence and a demurrer must be sustained. Feingold v. Hill, 360 Pa. Super. 539, 521 A.2d 33 (1987).

Assuming arguendo the existence of facts supporting a finding of foreseeability, the issue of liability is by no means resolved. As the New York Supreme Court noted in Moore v. Shah, supra, foreseeability is not the sole criteria for determining the right to recover for personal injuries. This is exemplified in the line of cases in Pennsylvania which have limited recovery to individuals who have suffered harm by being within the “zone of danger” or, alternatively, sustained injury as a result of the direct personal observation of a negligent event. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Hoar v. Hamot Medical Center, C.P. of Erie County, no. 2220 of 1989 (January 3, 1990); Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). There must be a realistic concern for the consequences of extending liability to new circumstances or to a new class of potential plaintiffs. In Sinn, the Pennsylvania Supreme Court had to wrestle with this issue in deciding that a parent who observed a child being injured could recover damages for emotional distress. Certainly it was apparent to the court that as a result of a child being injured in an automobile accident, the child’s parents would be upset and that the emotional pain may be most traumatic in the event the parent observes the actual infliction of the injury. It was not, however, the foreseeability of severe emotional stress per se which allowed recovery. The direct personal observation of the negligent event was a necessary ingredient. Indeed, it may be far more painful, perhaps even debilitating, for a parent to have to care for and observe a seriously injured child suffer through a prolonged period of invasive medical treatment, recuperation, or even worse, the prospect of death. While this must also be considered a foreseeable consequence of a negligent act harming a child, liability has been imposed in this Commonwealth only in the circumstance of direct observation.

Obviously then, the question directed to the court is under what circumstances — existence of foreseeability notwithstanding — should liability be extended. It is this essentially policy determination that the court is ill-equipped to address in the circumstances presented by the facts of this case. Extending the prospect of recovery to a class of plaintiffs whose common characteristic is the voluntary relinquishment of a body part raises profound ethical, moral and practical issues. Any decision in this regard would necessarily require extensive inquiry into the present state of medical science and answers to a number of compelling questions. Should liability extend to injuries suffered by the entire class of body part donors or should it be restricted to parents and siblings or within some other degree of consanguinity? Perhaps there is a sub-class of claimants whose members, because of some unusual anatomical or perhaps genetic characteristic, are significantly more likely to be called upon as a donor. Should the circumstances surrounding an ostensibly voluntary decision to relinquish an organ or body part be a consideration? Is the degree to which the transplant is medically necessary a factor? While the existence of these unresolved questions should not necessarily preclude recovery, they indicate a need for a decision-making forum which would provide the opportunity for a more thorough and in-depth inquiry, not available in the normal course of civil litigation. In this circumstance, and recognizing the current state of the law does not encompass a cause of action for damages associated with the voluntary relinquishment of a body part for purposes of transplantation, it must be concluded that plaintiffs have failed to state a claim upon which relief may be granted.

Finally, defendants have requested that plaintiffs’ assertion that they were “otherwise being negligent under the circumstances. . .’’be struck. While this court does not believe that such an averment in any way expands plaintiffs’ right to amend their complaint beyond the limitations imposed in Pennsylvania Rule of Civil Procedure 1033, it is none the less a superfluous legal conclusion and defendants’ motion will be granted accordingly.

ORDER

And now, February 8, 1991, upon consideration of defendants’ preliminary objections in the nature of demurrer to count III of plaintiffs’ complaint and motion to strike paragraph 29(n) of plaintiffs’ complaint, it is hereby ordered, adjudged and decreed that said demurrer and motion to strike are granted.

      . Although occurrence of the compatibility testing and transplantation were not pled, it was agreed by the parties during argument that the court would be notified if and when these things occurred. Plaintiffs’ attorney has done so and no further pleading in that regard is required.

      . Having resolved the issue of the existence of a legal duty, this court need not address the issue of proximate cause.


author: O’MALLEY, J.,

text:
    Paone v. City of Scranton

      Ralph P. Carey, for plaintiffs.

      Vito P. Geroulo, for defendant.

      Richard G. Fine, for defendant.

      Richard A. Polachek, for defendant.
    February 15, 1991
   O’MALLEY, J.,

Plaintiffs, Anthony Paone and Mildred Paone, his wife, brought an action in trespass against defendants, the City of Scranton and Walter G. Stocki, trading as Stocki Demolition Company. In their complaint they averred that they were the owners of a building located at 524V2 Lackawanna Avenue in the city; that defendant city had an adjoining building demolished, said demolition work being performed by defendant Stocki and directed by the city; that damage, as the result of same, was done to the windows, roof and siding of plaintiffs’ building as well as exposing the latter to the elements; that, because of the city’s negligence in directing the demolition, the demolition was not done in a workmanlike manner; and that as a result of the negligence of defendants, plaintiffs were required to expend sums of money to repair damages to their windows and roof and for lathing and stuccowork.

Defendant city filed preliminary objections in the nature of a demurrer grounding its argument on two points: (1) that it is safe from such an action by reason of the Governmental Immunity Act (42 Pa.C.S. §8541 et seq.) and the situation not coming under any of the exceptions included in that act; and (2) that, as a matter of law, it can have no liability here because the Pennsylvania Commonwealth Court has declared it is virtually impossible to prove liability of a local agency where the local agency’s negligence is concurrent with that of another tort-feasor. See Crowell v. City of Philadelphia, 131 Pa. Commw. 418, 570 A.2d 626 (1990).

Because we do not agree with either of defendant city’s contentions, the preliminary objections will be dismissed.

Preliminary objections in the nature of a demurrer, pursuant to Pa.R.C.P. 1017(b)(4), will be sustained only when it appears with certainty that the law permits no recovery under the facts pled, and any doubts in the determination should be resolved by overruling the objections. A demurrer admits as true all well-pled facts in the petition or complaint. Township of Upper Moreland v. Commonwealth, Dept. of Transportation, 48 Pa. Commw. 27, 409 A.2d 118 (1979).

“A demurrer admits those facts that are well pleaded and says simply that their legal consequences are such as to excuse the demurring party from answering them or proceeding further with the cause. In effect it implies, "What you say may be true, but so what? You haven’t stated a cause of action.’” Shertzer v. Shutter, 16 Lebanon L.J. 162 (1976).

The role of the court in ruling on preliminary objections in the nature of a demurrer is to determine whether or not the facts pled are legally sufficient to permit the action to continue. This is so whether the legal determination to be made is relatively simple or relatively difficult. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976).

I

Plaintiffs claim that damage was done to the windows, roof, and siding of their building, as well as exposing it to the elements. The negligent actions or omissions of defendants, plaintiffs allege, mean that they will have to expend additional money for lathing and stuccowork in addition to having the lathing and stuccowork comply in color and texture with the building. As we read plaintiffs’ complaint, it asserts that the alleged damage may all be the city’s responsibility.

In Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), involving a claim against the Department of Environmental Resources, the Supreme Court stated that:

“It is instructive to turn to the real property exception of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542(b)(3), and its accompanying .case law for guidance as to the scope of liability imposed for negligent care of real property. As is true for sovereign immunity, exceptions to the rule of governmental immunity are narrowly interpreted, given the express legislative intent to insulate political subdivisions from tort liability.”

It therefore appears that section 8542(b)(3), dealing with local agency real estate, and section 8522(b)(4), concerning Commonwealth real estate, are subject to common interpretation.

Having said that, we can look to the case of Trenco Inc. v. Commonwealth, Dept. of Transportation, 126 Pa. Commw. 501, 560 A.2d 285 (1989), for guidance, although it is not on all fours with the present case. There, motor vehicles of the plaintiff while traveling Route 11 suffered damages in a landslide originating from land abutting Route 11, of which PennDOT was the fee owner or right of way owner. The court said:

“[W]e believe that [the plaintiff] has established issues of material fact concerning DOT’S alleged negligent maintenance of the property adjacent to Route 11, and therefore, has established a claim within section 8255(b)(4) of the Judicial Code.” (emphasis supplied)

In the case before us it has been alleged, in substance, that a dangerous condition resulted from the demolition of the building the defendant city had ordered demolished which had been situated adjacent to that of plaintiffs. Whether it be mud and slate issuing forth from PennDOT lands as in Trenco Inc., supra, or demolition and exposure as in the present case, the adjoining governmental property is the origin of the plaintiffs’ woes. We are aware that the standard of liability imposed upon a political subdivision is no greater than that imposed upon a private landowner, and that is to maintain the property safely for activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). However, the injuries allegedly sustained here did not stem from activities for which the offending property is regularly used, etc. It is not the duty a possessor of land owes toward a third person entering the said land that is here involved. Rather, the legal theory present here is that an owner or possessor of land has a duty to use and maintain his land so as not to injure an adjoining landowner. McArthur v. Balas, 402 Pa. 116, 166 A.2d 640 (1961). See Filipelli v. Commonwealth, Department of Transportation, 68 Pa. Commw. 619, 450 A.2d 237 (1982), where it was held no cause of action was present where the plaintiffs, owners of land abutting a state highway, alleged that due to the closing of a washed-out road by the Commonwealth for repairs, they suffered damages. The court said:

“Had [the plaintiffs] sustained property damage because of the initial overflow, rather than the closing of the roadway for repair, the complaint would have been well founded. 42 Pa.C.S. §8522(b)(4).” (citations omitted)

With regard to other criteria pertaining to this case, it may be, as we have alluded to before, that the acts of others, i.e. Stocki, were not involved in the harm allegedly caused here, only the failure of defendant city to act. Mascaro v. Youth Study Center supra. Further, the requirement that the artificial condition or defect of the land allegedly must cause the injury, not merely facilitate injury by acts of others (Snyder v. Harmon, supra) is met by the alleged direct failure (not facilitation) to act by the city itself and the demolition, obviously an artificial and not a natural condition, of the pulled-down building.

II

Defendant city’s other point is that it is entitled to a demurrer because of the holding in Crowell v. City of Philadelphia, supra, which “effectively eradicates joint tort-feasor liability on the part of a local agency. . .”

This argument goes beyond a consideration of the contents of the complaint and assumes, at this early stage of the proceedings, that local agency negligence will be found to be concurrent with that of another tort-feasor. It may be that defendant city will be found solely responsible for plaintiffs’ damage, disposing of a potential complication concerning joint tort-feasor liability of governmental and non-governmental defendants. Defendant city’s argument here seems to be in the nature of a speaking demurrer which relies for its support on facts not of record and which should therefore be dismissed. Commonwealth, Department of Justice v. Knox, 29 Pa. Commw. 302, 370 A.2d 1238 (1977).

One further matter should be noted. Though not set forth in its preliminary objections, the city, in its brief, contends that punitive damages cannot be assessed against it. This is correct. Nowhere in 42 Pa.C.S. §8553, dealing with the subject, are punitive damages mentioned. “The general rule, as stated by our Supreme Court as long ago as 1847, [Hermits of St. Augustine v. County of Philadelphia, 4 Clark 120, 7 Pa. L.J. 124 (1847)] is that punitive damages are not recoverable against a municipality.” Feingold v. SEPTA, 339 Pa. Super. 15, 488 A.2d 284 (1985).

ORDER

Now, February 15, 1991, for the reasons stated in the accompanying opinion, it is hereby ordered as follows:

(1) The preliminary objections in the nature of a demurrer filed by defendant, City of Scranton, to the claim for punitive damages as contained in paragraph 12 of the complaint against defendant, City of Scranton, is granted and said paragraph 12 of the complaint is stricken as claimed against the City of Scranton;

(2) The remaining preliminary objections of the City of Scranton in the nature of a demurrer are denied;

(3) The City of Scranton shall file a responsive pleading to the complaint within 20 days of the date hereof.


author: TAYLOR, P.J.,

text:
    Keith v. Northwestern National Life Insurance Co.

      David A. Ody, for plaintiff.

      Darryl R. Slimak, for defendant.
    January 3, 1991
   TAYLOR, P.J.,

This action was initiated through the filing of a complaint on March 24, 1986, seeking recovery of certain medical benefits allegedly due under a policy of insurance issued by defendant. The complaint alleges breach of contract arising from the failure to pay said benefits. Specifically, plaintiff seeks payment of certain medical expenses as “eligible medical expenses ” under the insurance policy. Defendant denies responsibility for payment, contending that they are not “allowable expenses” as defined by the policy.

While employed as a nurse at the Cleveland Clinic Foundation in Cleveland, Ohio, plaintiff was insured under an employee welfare benefit plan. Defendant provided group life and aggregate excess risk coverage to the plan. As part of said coverage, defendant offered a health conversion option. Plaintiff exercised this option when she terminated her employment and converted her insurance coverage from the group plan to an individual conversion insurance agreement.

Based upon these undisputed facts, defendant filed a motion for judgment on the pleadings and/or summary judgment. Defendant submits that plaintiff’s insurance policy is a conversion insurance agreement of an employee welfare benefit plan, and as such, is subject to federal law governing the Employee Retirement Income Security Act.

Defendant further contends that federal law preempts all state law claims seeking recovery of benefits under conversion insurance agreements of employee welfare benefit plans. Finally, defendant argues that federal law pertaining to such claims for benefits does not recognize a state law claim for breach of contract.

DISCUSSION

At the outset, we note that this opinion is limited solely to the consideration of defendant’s motion for summary judgment and/or judgment on the pleadings.

Having thoroughly evaluated the respective positions of the parties, we believe that the seminal question herein is whether a dispute with respect to coverage under the converted group policy is covered by the ERISA pre-emption doctrine and, therefore, subject to federal law or whether the converted group policy is simply an individualized contract between plaintiff and defendant, and, therefore, subject to interpretation under state law.

Case law is, at best, sparse on the issue of ERISA and its application to group plan conversion privileges. In fact, the only case which even remotely applies to the instant matter is one which defendant has brought to the attention of the court. Howard v. Gleason Corporation, 901 F.2d 1154 (2d Cir. 1990). Our reading of Howard is that the case merely declared that the ERISA pre-emption doctrine shall govern a dispute arising from an employer’s affirmative duty to inform an employee of his right to convert a group policy to an individualized policy. To link Howard to the instant matter would, in our view, be imprudent.

Turning to the ERISA statute itself, it is clear that the right to convert a group policy is provided for in the act. 29 U.S.C. §1162(5). Further, it is evident that conversion coverage provided beyond the date of employment is not subject to a requirement of the person’s submission of new evidence of insurability. 29 U.S.C. §1162(4). Perhaps the closest statutory connection to the instant matter is the requirement that coverages under converted policies must remain identical to the coverages of continuing employees and/or equal to the coverages of similarly situated former employees.

The statutory provisions of ERISA which deal with continuation coverage under group health plans are, in many respects, highly detailed and specific with respect to events triggering one’s right to continue coverage, the duration of such coverage, premium payments for such coverage and evidence of insurability. Such specificity in these areas leads us to believe that in failing to address disputes arising after policies are converted, the lawmakers have, by their silence, intended that the instant matter not be subject to federal pre-emption.

A point worthy of note is the fact that if plaintiff would have ceased making premium payments for the coverage, the coverage would have terminated. Does this not mean that the converted policy is, first and foremost, an individual contract between plaintiff and defendant? Although ERISA governs the type of coverage that must be provided in the converted policy, plaintiff still paid the premiums.

Under ERISA, it is clear beyond doubt that if a state law relates to an employee benefit plan, it is pre-empted. 29 U.S.C. 514(a). However, this broad pre-emption provision is not without qualification and, pertinent to this case, excepts from pre-emption laws that regulate insurance. 29 U.S.C. §1144(b)(2)(A). Plaintiff alleges that her converted policy with defendant is unconscionable. Plaintiff cites Bishop v. Washington, 331 Pa. Super. 387, 480 A.2d 1088 (1984), in support of the provision that the unconscionability provision of the Uniform Commercial Code, 13 Pa.C.S. §2302, is a state law that “regulates insurance” companies and, therefore, falls within the purview of the saving clause of ERISA. An examination of this specific issue is not warranted, for we believe that the instant contract is appropriately classified as an individual contract, as opposed to a benefit arising from an employee benefit plan.

Insofar as ERISA and its attendant case law does not directly address the matter at hand, coupled with the individualized nature of the contract between the parties, we must find that ERISA does not pre-empt in this instance and, therefore, the motion for judgment on the pleadings and motion for summary judgment should be dismissed.

ORDER

Now, January 3, 1991, after consideration of the pleadings and briefs filed by counsel and the authorities set forth therein, and after oral argument held on October 5, 1990, the court denies the motion of defendant for summary judgment and/or judgment on the pleadings for reasons set forth in the attached opinion filed this date.

       The policy defines “allowable expenses” as “any necessary, reasonable and customary item of expense for medical or dental care or treatment. . .”


author: WOOD, J.,

text:
    West Chester Area School Board v. West Chester Area Education Association

      Ross A. Unruh, for appellant.

      Joseph W. Chupein Jr., for appellee.
    February 5, 1991
   WOOD, J.,

This case is presently before me for disposition of appellant School Board’s petition to vacate and/or modify the award of the arbitrator, Arthur A. Sloane, entered in this matter on May 18, 1990. Oral argument was heard on January 7, 1991.

The case arose from an incident which occurred on June 8, 1989. On that date, while school was in session, Daniel Reitmeyer, a teacher at Pierce Middle School, produced a sheet of paper labeled “Jesse Jackson’s White Friends Quiz” containing 40 questions and answers highly offensive and demeaning to persons of the black race. Reitmeyer proceeded to copy the quiz on a school photocopy machine, and distributed the sheets to three white colleagues that same day.

On or about August 17, 1989, in accordance with the School Code, the board met at a public hearing and unanimously decided to terminate Reitmeyer’s employment on the grounds of incompetency, immorality, intemperance, cruelty, and willful violation of the school laws. The board then issued a formal decision with findings of fact and conclusions of law which it served upon Reitmeyer on August 24, 1989. The following day, Mr. Reitmeyer elected to “grieve” his dismissal, that is, to pursue the matter through arbitration under the auspices of the American Arbitration Association as provided for in Article VI of the collective bargaining agreement between the School Board and the teacher’s union. Professor Arthur A. Sloane was appointed arbitrator and five days of hearing were held thereafter at the West Chester Inn.

Professor Sloane issued his decision on May 18, 1990. In it, he modified Reitmeyer’s dismissal to a six-month suspension without pay. In his 17-page statement, Sloane found that Reitmeyer had committed acts of malfeasance, including a conclusion that he “blatantly violated his moral responsibilities as a teacher. . .” Sloane, however held that Reit-meyer was not fifed for “just cause.”

The School Board appeals on the grounds that the arbitrator’s decision did not comply with the essence of the collective bargaining agreement and therefore is “manifestly unreasonable” and contrary to the law. The board contends that the arbitrator exceeded his authority by circumventing the board’s standards governing the termination of professional employees, and that the decision effectuates institutionalized racism by denying students of the school district their right to equal education under the law.

It is necessary at this point to spell out some fundamental concepts governing appeals from arbitrators’ decisions, particularly as regards disciplining or dismissing a public employee. The arbitrator’s decision must grow out of the “essence” of the agreement. AFSCME District Council 88 v. City of Reading, 130 Pa. Commw. 576, 568 A.2d 1352 (1990). Most such agreements (at least those which are involved in reported court decisions) appear to have provisions authorizing discipline for “cause”; hence, while an arbitrator’s finding as to whether “cause” or “just cause” exists for discipline (including dismissal) comes within the “essence” of the agreement, the selection of punishment is reserved to the employer, and an arbitrator may not, once he or she finds “cause,” then substitute another punishment. County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988). Finally, the only grounds for dismissal are those spelled out in the Public School Code found at 24 Pa.C.S. §11-1122. i will discuss these concepts as they apply to the facts of this case.

Did the Arbitrator Find That There Was Cause for Discipline?

To a certain extent, in answering this question, we are dealing with nice semantic distinctions. As I read his decision, the arbitrator appears to find that Reitmeyer did what he was charged with doing, that is, copy and disseminate blatantly racist and horribly offensive literature. It will serve no useful purpose for me to quote it in this opinion. The arbitrator referred to that as an act which “violated . . . moral responsibilities,” but noted that Reitmeyer had a number of other good qualities, and concluded by saying that “Reitmeyer was not dismissed for just cause.” He appears to acknowledge that Reitme-yer’s conduct did amount to just cause for some sort of discipline, because he then proceeded to approve a six-month suspension without pay in lieu of the dismissal.

In Manheim Central Education Association v. Manheim Central School District, 132 Pa. Commw. 94, 572 A.2d 31 (1990), the grievant was also a teacher, who had a good record as a teacher and athletic coach for over 20 years, up until the time of the complained-of incidents. He then wrote love letters to female students and personally professed his love to one of the girls. He never had physical contact with either student. It appeared that he was going through a personal crisis in his own life at the time, and that this crisis may have precipitated the conduct described.

In that case, the arbitrator apparently did essentially what the arbitrator in this case has done. In Manheim, the arbitrator agreed that an act of immorality had occurred, but said that act was not sufficient cause for dismissal, and that some lesser penalty was warranted. The Commonwealth Court observed, however, based on Pa. Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989), that once an arbitrator acknowledges that a grievant has committed an act which amounts to “cause” under the collective bargaining agreement, the arbitrator has no authority to, and may not, substitute his thinking as to punishment for the thinking of the School Board. It is, after all, the School Board’s responsibility to discipline employees, once the employees have given grounds for such discipline. The Commonwealth Court therefore affirmed the decision of the Court of Common Pleas of Lancaster County and set aside the arbitrator’s decision ameliorating the penalty of dismissal which had been imposed upon the grievant.

I cannot find any meaningful distinction between the Manheim case and the one presently before me. The acts complained of here were at least as immoral as the acts complained of in Manheim (see discussion infra). The whole tenor of the arbitrator’s decision is that in fact those acts were committed, and that they amounted to immoral acts, and furthermore provided cause for discipline. I see no meaningful distinction between a finding that a teacher “violated his moral responsibilities” and a finding that he indulged in immorality. If he felt that nothing had been done which warranted discipline, he should not even have ordered a suspension. The arbitrator simply sought to substitute his judgment for the judgment of the School Board as to what discipline was appropriate.

Does the Arbitrator’s Decision Arise Out of the Essence of the Agreement?

It should be obvious by now from what I have said above that the answer to this question must be “no.” The agreement itself reserves to the School Board the right to discipline employees for “cause” or “just cause,” depending on which paragraph one is looking at. The job of an arbitrator in a grievance procedure is to decide whether or not there is “cause.” See Independent State Stores Union. It is not the arbitrator’s job to substitute his judgment concerning appropriate discipline for that of the School Board. Since that is exactly what the arbitrator tried to do, his decision does not arise out of the “essence” of the agreement. Philadelphia Housing Authority v. Union of Security Officers No. 1, 500 Pa. 213, 455 A.2d 625 (1983).

Does Reitmeyer’s Act in Copying and Disseminating the Racist “Humor” Amount to Immorality?

Section 11-1122 of the Public School Code of 1949 supersedes the collective bargaining agreement, in that it prohibits the dismissal of a teacher on any grounds other than those enumerated in that section. In my estimation, the two sections of that statute which come closest to the conduct in question here are “immorality” and “cruelty.” However, I do think it would be stretching things a bit to call what Reitmeyer has done “cruelty.” After all, he did not distribute the hate jokes to any students, or even to black teachers: compare Bovino v. Board of School Directors of Indiana Area School District, 32 Pa. Commw. 105, 377 A.2d 1284 (1977).

On the other hand, I have little hesitation in categorizing what Reitmeyer did as immoral. I have resorted to the dictionary for a definition of “immorality,” and as might be expected, that definition refers me back to the definition of “moral.” The definition of “moral” is rather lengthy, and covers a lot of ground, but the substance seems to be that morality is concerned with right and wrong, and I don’t imagine that anybody can disagree with that. Our Commonwealth Court, in Everett Area School District v. Ault, 120 Pa. Commw. 514, 548 A.2d 1341 (1988), approved the following definition: “that term has been defined as a course of conduct as [sic] offends the morals of the community and is a bad example to the youth whose ideals the teacher is supposed to foster.” 120 Pa. Commw. at 517, 548 A.2d at 1342.

That definition applies to the facts of this case. The policy of the courts, and indeed, of our nation as a whole, ever since Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), has been that school students are entitled to be taught by teachers who treat all the races equally and without bias pr prejudice. To fail to do so is immoral, in that it is wrong. The preservation and fostering of an attitude evidenced by these so-called “jokes” constitutes immorality, in my opinion.

One may also ask whether or not a single act of immorality is enough to warrant dismissal. I note that the structure of section 11-1122 of the School Code is to spell out certain things which are cause for dismissal, some of which are preceded by the word “persistent.” “Immorality” is not preceded by that word. To me, “persistent” means a course of conduct indulged over a period of time. Therefore, by not using the word “persistent” as applied to the term “immorality,” the legislature is suggesting that immoral acts need not be indulged in over a period of time in order to authorize dismissal. I find further support in a Commonwealth Court case involving a dismissal of a state employee for saying “I hate that goddamn Jew bastard too.” King v. Commonwealth, Unemployment Compensation Board of Review, 46 Pa. Commw. 575, 406 A.2d 1211 (1979). In that case, the Commonwealth Court noted that “the law in Pennsylvania has been perfectly clear that unprovoked obscene and vulgar language, even in a single instance resulting in discharge, may be the basis for a decision that a claimant is ineligible for unemployment compensation benefits. . .” 46 Pa. Commw. at 577, 406 A.2d at 1212. (emphasis supplied)

Finally, I note that the arbitrator, in language quoted earlier in this opinion, found that Reitmeyer “blatantly violated his moral responsibilities as a teacher.” (emphasis supplied)

In short, I have no hesitation in finding that what Reitmeyer did here does in. fact constitute “immorality,” as that term is used in the School Code. Accordingly, I enter the following

ORDER

And now, February 5, 1991, based on the foregoing reasoning, I set aside the decision of the arbitrator in the above matter, and reinstate the decision of the West Chester Area School Board to terminate the employment of Daniel Reitmeyer.

      . The pertinent parts of the contract governing discipline and dismissal read as follows:

        “Article II”

        “Vested Board Authority”

      “2.02. The operation and management of the district and the direction of its staff are vested in the board .... In accordance with the Pennsylvania School Code, the board has, among other things, the rights ... to discipline and discharge bargaining unit members for cause.

        “Article XII”

        “Teacher’s Rights”

      “12.01. No bargaining unit member shall be disciplined, reduced in rank or compensation, or deprived of any professional advantage without just cause . . ..”

      . The specific finding was as follows:
      “Daniel W. Reitmeyer was not dismissed for just cause. He is to be reinstated and given a six-month suspension in lieu of the dismissal, and to be made whole for wages, benefits and seniority lost in excess of these six months.”

      . Public School Code of 1949:
      “§11-1122. Causes for termination of contract

      “The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employee shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and willful violation of the school laws of this Commonwealth on the part of the professional employee. . .”

      . I don’t mean to make light of what he did do. The problem is not that he published the material to black people, but that he harbored these sentiments and wanted to share them surreptitiously with others.


author: MILLER, P.J.,

text:
    Roberts v. Roberts

      Joan D. Mason, for plaintiff.

      R. Charles Thomas, for defendant.
    February 5, 1991
   MILLER, P.J.,

Defendant has filed a petition for bifurcation of the divorce from the other issues raised in this case and we now dispose of that request.

BACKGROUND

The parties were married on June 11, 1961, were separated in January 1983 and have not lived together since then except for a brief period of about two weeks within the last few years.

On May 3, 1983 plaintiff brought this action for divorce, custody, equitable distribution, alimony, fees, costs and expenses. Even though there has been a long period of separation nothing else has been done of record until the middle part of last year. On May 31, 1990 defendant filed an affidavit under section 201(d) of the Divorce Code and an answer to plaintiff’s complaint. On November 14, 1990 defendant filed an income and expenses statement and an inventory and appraisement.

Plaintiff has not filed her income and expense statement or inventory and appraisement even though they were due years ago.

The parties had five children but only one remains at home with plaintiff. They both want a divorce for there is no hope of reconciliation. Defendant lives with another woman, voices a desire to marry her and wants to start a new life.

Defendant paid the plaintiff $800 to apply on attorneys’ fees years ago. He has had a support obligation (for whom was not established) and he is miserably in arrears. Whether or not there will be any attempt to recover that from his share of the marital property was never explored.

They own residential real estate and some household furnishings. It appears that the debts exceed the value of the assets. There apparently is a mortgage due and owing on the property, a loan of about $20,000 to a Mrs. Snodgrass (although verbal with no written documentation) and a loan of approximately $21,000 from people by the name of Carlson. They may owe the Internal Revenue Service back taxes for joint returns filed through 1983. Defendant may owe the Internal Revenue Service back taxes for periods since then when he was filing on his own.

Defendant is willing that economic issues be preserved. He did not indicate a willingness to waive the Dead Man’s Act should he die before the economic issues have been resolved.

DISCUSSION

The Divorce Code seems to allow for a bifurcation so that a court could enter a divorce decree without resolving the other economic issues (23 P.S. §401(b.l). A strict reading of that section seems to justify bifurcation only if the court is unable to determine and dispose of the divorce and related matter after a master’s report has been filed. Nonetheless bifurcation has been considered, sometimes granted and sometimes refused, by lower courts and appellate courts, even when there has been no master’s report filed. Therefore it appears that bifurcation can occur whether or not there has been a master’s hearing and report.

If a bifurcation were to occur and a divorce granted, the economic issues are still preserved (even if death intervenes) and the court has a right to enter orders protecting assets, rights of dependent spouses, etc. pending final conclusion of the economic issues. (23 P.S. §401(b.l)(c)(j)).

There are many advantages as well as disadvantages to a bifurcation. This includes tax advantages and disadvantages. These matters are set forth in list form in Pennsylvania Matrimonial Practice by Rounick, section 18:4. See also, Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359 (1983).

We think that all matters raised in a divorce action should be resolved at one time and therefore we are not inclined to separate the issues and grant a divorce pending disposition of economic matters. However, trial courts may not establish a pro forma policy to grant or deny bifurcation requests. Trial courts are required to carefully explore and analyze the advantages and disadvantages of bifurcation on a case-by-case basis and must spell out and state the reasons for granting or denying bifurcation requests. Wolk v. Wolk, supra; Hall v. Hall, 333 Pa. Super. 483, 482 A.2d 974 (1984); Mandia v. Mandia, 341 Pa. Super. 116, 491 A.2d 177 (1985).

In one of the early appellate court decisions on bifurcation, Tose v. Tose, 297 Pa. Super. 592, 441 A.2d 790 (1982), the Superior Court permitted a bifurcation where a wife’s substantive rights to alimony and equitable distribution were not affected.

Defendant maintains that he wants to get on with his life, and should not be held hostage to economic claims. That is not only an advantage to bifurcation but is a fact which the court must seriously consider. If this were the only factor present here we would, without further delay, bifurcate the issues joined in this case and grant the divorce.

Defendant has indicated no other advantages or reasons why we should permit bifurcation, such as tax considerations, etc. We need not discuss tax matters, pro or con.

The major disadvantages center around what happens if the defendant dies before the economic issues are resolved, and potential intervening liens. Even though the record is far from clear there is some inference that the parties may jointly owe delinquent state and federal taxes; defendant may owe delinquent state and federal income taxes for periods of time after 1983 when he filed separate returns, and defendant may have creditors who could potentially obtain intervening liens.

If defendant dies while the divorce action is pending the action abates and the rights of plaintiff, as a surviving spouse, albeit estranged, are determined by the Probate, Estate and Fiduciaries Code.3 Haviland v. Haviland, 333 Pa. Super. 162, 481 A.2d 1355 (1984); Pastuszek v. Pastuszek, 346 Pa. Super 416, 499 A.2d 1069 (1985); Clingerman v. Dadowski, 513 Pa. 179, 519 A.2d 378 (1986). Plaintiff, as the surviving spouse, would be competent to testify in the proceeding to determine her elective share as a surviving spouse (20 Pa.C.S. §2209). All of this is a definite advantage to her. There is a corresponding disadvantage to defendant because under this set of facts if plaintiff is able to “outlast” him, neither he, nor his heirs after his death, will get the same economic benefit that he would get if he were to live and enjoy some equitable distribution of marital property.

If we were to bifurcate now plaintiff would be greatly disadvantaged. Although the divorce action would be abated on death, the economic issues would not abate. 23 Pa.C.S. §401(d)(l). The court would retain jurisdiction over economic issues but plaintiff, as a surviving spouse, would not be competent to testify under the Dead Man’s Act. 42 Pa.C.S. §5930; Wolk v. Wolk, supra.

Additionally she would not be a surviving spouse and would have no right to share any portion of decedent’s estate or to take an elective share.

The court could reduce the disadvantages to plaintiff on the death of defendant post-bifurcation by entering appropriate orders' to protect her interests pending final resolution of the economic matters and by requiring defendant to waive the protections his personal representative would have under the Dead Man’s Act, 23 Pa.C.S. §401(b.1)(c)(j). Up to this point the court could arrange bifurcation to the greater benefit of both parties and lessen most, if not all, of the disadvantages to each. Wolk v. Wolk, supra; Tose v. Tose, supra. But we must go further.

If the parties are divorced without a resolution of the economic issues they become tenants in common with respect to property now held as tenants by the entireties. 68 P.S. §501. A creditor of defendant could obtain an intervening lien against defendant’s half-interest in marital property. Jawork v. Jawork, 378 Pa. Super. 89, 548 A.2d 290 (1988). Federal tax liens which extend to property rights or interests of a taxpayer, which are liens on property as determined by the law of Pennsylvania, cannot attach to entireties property unless the taxes were owed by the entireties. After divorce, when the parties hold marital property as tenants in common, taxes owed solely by defendant could then be a lien against his one-half interest in the marital property. 35 Am. Jur. 2d 20, Federal Tax Enforcement, section 11.

If defendant’s creditors, including the IRS, obtain rights against defendant’s one-half interest in assets held by tenancy in common then there may not be unencumbered assets from which plaintiff could recover if it turns out that she is entitled to more than 50 percent of the marital property or if she is entitled to alimony pendente lite, permanent alimony, counsel fees and expenses.

The substantial potential inequities that may result, if the defendant dies or if there are intervening liens against his interest in property which cannot be completely avoided by a court order granting bifurcation, lead us to conclude that bifurcation of the issues is not proper at this time. This is not a case where defendant has already set aside substantial assets and is generously providing for plaintiff as in Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374, alloc den. 527 A.2d 542 (1986).

Both parties want the divorce and far too much time passed since this suit was instituted. Defendant and, for that matter, plaintiff should have their freedom and begin new lives. We think all of the issues raised in this matter should be decided at once and should be done so quickly. We are directing plaintiff to file her income and expense statement and inventory and appraisement forthwith. Her delay over all of these years is inexcusable. She has violated the strict letter of the rules (Pa.R.C.P. 1920.31, 1920.33) as well as the. purpose and spirit of the Divorce Code. We intend, in a later order when we dispose of alimony pendente lite, counsel fees and expenses, to set a strict timetable that the parties must follow to bring this matter to a completion during which they shall have some brief period of time to prepare for a hearing and a timetable by which the hearing must be concluded. This is not a case where more years will pass before economic issues are settled, Taylor v. Taylor, 349 Pa. Super. 423, 503 A.2d 439 (1986), for we will insist that this matter be concluded with all deliberate speed.

      . 42 Pa.C.S. §5930.

      . 20 Pa.C.S. §101 et seq.


author: SPICER, P.J.,

text:
    Arnold v. Lachman

      Daniel M. Frey and Thomas E. Miller, for plaintiffs.

      Richard A. Bramhall, for defendants.
    February 5, 1991
   SPICER, P.J.,

Defendants, who are Maryland residents, seek dismissal of this action for breach of contract. Defendants were purchasers in two agreements involving 59.398 acres in Conewago Township. There is no question that a residence was included in the sale, the purchase price for which was $375,000. When defendants were unable to perform according to an initial agreement, dated June 23, 1990, an addendum was added extending the time for settlement, so that defendants could sell their Maryland residence.

By their preliminary objections and supporting affidavit, defendants contend they executed all documents in Maryland and are not subject to service under 42 Pa.C.S. §5322.

The statute, insofar as applicable to this case, provides:

“(a) General rule — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
“(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
“(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
“(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.
“(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.
“(5) Having an interest in, using, or possessing real property in this Commonwealth.” 42 Pa.C.S. §5322(a)(l)(ii), (iv), (4) and (5).

Defendants properly have raised jurisdiction as an issue through preliminary objections. We are admonished to sustain such objections only if, after viewing evidence or allegations in the complaint in a light most favorable to plaintiffs, the case is clear and free from doubt. As moving parties, defendants have the burden of supporting their objections. The mere filing of preliminary objections does not necessarily raise the issue to a level requiring plaintiffs to rebut the allegations. Where, however, defendants properly raise the issue it becomes incumbent upon plaintiffs to prove jurisdiction. Scoggins v. Scoggins, 382 Pa. Super. 525, 555 A.2d 1314 (1989). Normally, the issue is determined after some evidence has been produced but it may be decided on pleadings alone. Id.; Letteri v. Kubik, 389 Pa. Super. 391, 567 A.2d 660 (1989).

Analysis is twofold. The court must first determine a statutory basis for jurisdiction and then view all circumstances through a due-process perspective to determine if defendants could reasonably have anticipated being called before the courts of this jurisdiction. Id.

Plaintiffs contend that jurisdiction is vested in Pennsylvania by virtue of the following facts:

(1) The contract was for the sale of Pennsylvania real estate.

(2) Paragraph 9 of the complaint alleges that defendants intended to use the land not only for residential purposes but also “to engage in the business of breeding and selling Welsh ponies.”

(3) Paragraph 10 states that defendants were able to obtain financing from Farm Credit of Adams County “due to the fact that defendants were going to engage in the above agricultural business.”

(4) Not only did defendants execute the original contract, they signed an addendum which gained them time to sell their Maryland residence.

Sale of the residence was not a contingency. Financing was the sole condition and was satisfied.

Defendants contend, on the other hand:

(1) Both the contract and its addendum were executed by them in Maryland offices of Maryland brokers.

(2) They never intended to raise ponies as a business, only for pleasure.

(3) Financing was obtained because the land was primarily agricultural. At no time did they represent to Farm Credit they intended to engage in an agricultural business.

The original contract is attached to the complaint. It is basically illegible. It states nothing about the character or intended use of the land. The sole pertinent provision describing the land indicated it was zoned residential.

Even taking plaintiffs’ allegations as true, we do not find them sufficient to establish jurisdiction under the act, supra, (a)(l)(iv). It is clear that defendants never conducted business, as such. Intending to conduct business and conducting it are two different things. Plaintiffs did not sell a business. The question becomes whether this sales agreement is covered by the single-transaction provisions of subsection (a)(l)(ii), supra.

Authority in Pennsylvania is somewhat unsettled. Superior Court has decided the issue in a case involving a defendant who sold a residence and then moved. Stepnowski v. Avery, 234 Pa. Super. 492, 340 A.2d 465 (1975). After stating that the act, supra, was not intended to reach an occasional transaction between private parties, when the transaction is not incidental to their business activities, the court held that Pennsylvania had no jurisdiction over the former resident. This was despite buyer’s claims that seller had failed to divulge facts about deficiencies in the home. As we will see, this case may have been eroded by later panel decisions, but its business-transaction holding comports with the general trend. (See discussion, infra.)

There is no indication that our sale was incidental to a business activity. If anything, the most that can be said about plaintiffs’ allegations are that any business was incidental to a sale of a residence. The real estate is a type which is very popular in this day and time — a residence with some acreage. Almost all small estates involve some animals, but such activity, even if some are periodically sold, does not necessarily amount to conducting a business. Old Guard Mutual Insurance Co. v. Quigley, 31 Adams L.J. 261 (1990). See also, Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990), which holds that the primary character of an enterprise is determinative, even though some aspects of a business are present (maintaining hospital personnel in Philadelphia was an educational, not business pursuit).

Neither party engaged in an ongoing business activity. Plaintiffs did not deal with defendants with the ultimate goal of selling ponies. Service cannot be justified under subsection (a)(l)(iv), supra.

There are indications that Stepnowski v. Avery, supra, may be of dubious precedential value. It involved, as we have noted, allegations that a seller failed to reveal conditions of the real estate. Several lower courts understandably interpreted the decision as covering cases of misrepresentation in residential sales. See, e.g., Levin v. Kirschner, 21 D.&C. 3d 366 (1981). This approach has proven erroneous. Letteri v. Kubik, supra.

Cases collected in 4 ALR 4th 955, III section (b) indicate that most jurisdictions hold buyers subject to jurisdiction under provisions similar to subsection (a)(5), supra. One case cited, Bryan Manufacturing Co. v. Harris, 459 N.E.2d 1199 (Ind. App. 1984), is illustrative. The Indiana court specifically held that a buyer of property which was not an ongoing business was not doing business, but was subject to jurisdiction because he became an equitable owner when the contract was signed. The analysis is that buyers avail themselves of the benefits of the forum state’s laws. They may seek specific performance or damages. There should be, it is held, concomitant liabilities.

Collected cases in 4 ALR 4th 955, supra, indicate no difference in approach between buyers and sellers. Jurisdiction has been upheld over sellers who move from the jurisdiction. The Superior Court gave subsection (a)(5), supra, scant attention in Stepnowski v. Avery, supra. In footnote 4, Superior Court explained that it could justify dismissal on the basis that seller was no longer a resident. It termed this approach as too technical and opted for more general declarations of policy and purpose. It may well be that this holding binds us, but Letteri v. Kubik, supra, indicates that Superior Court may have shifted from its position. At any rate, that court has not ruled on situations involving buyers and we think the general trend should be followed.

It is clear that all requirements for jurisdiction are met. In the situation before us, defendants could certainly have expected to appear in a Pennsylvania court to answer the complaint filed against them.

Although our holding makes it unnecessary to consider whether subsection (a)(4), supra, applies, we decide that it does not validate jurisdiction. It is true, as plaintiffs suggest, that defendants’ breach caused monetary damage to them, but this is true any time a resident is not paid. Cases involving business uphold plaintiffs’ position, Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa. Super. 103, 568 A.2d 215 (1989), but policy declarations in Stepnowski v. Avery, supra, dictate a different result for sales such as the one involved in this case.

ORDER OF COURT

And now, February 5, 1991, defendants’ preliminary objections are overruled. Defendants shall have 20 days to file an answer.


author: DAVENPORT, S.J.,

text:
    Electro Chemical Engineering and Manufacturing Co. v. Kovatch Truck Center Inc.

      Platte B. Moring III, for plaintiff.

      Steven M. Cormier, for defendant.
    January 31, 1991
   DAVENPORT, S.J.,

specially presiding,

On March 20, 1989 plaintiff initiated a cause of action against defendant seeking $152,988, plus interest and costs, for breach and repudiation of the parties alleged agreement, and $5,300, plus interest, for labor and materials furnished for 10 units already completed.

By order dated November 8, 1990, the undersigned entered summary judgment for defendant and against plaintiff on counts I and II of plaintiff’s complaint, and further ordered that summary judgment be entered for plaintiff and against defendant on count III of plaintiff’s complaint in the amount of $5,300.

Plaintiff appeals.

FACTUAL BACKGROUND

Plaintiff and defendant have stipulated to the following agreed statement of facts:

(1) On or about February 2, 1988, plaintiff issued to defendant its proposal to furnish labor and materials to fabricate and install a 3/32-inch-thick plasticized PVC sheet lining to the internal areas of water tanks on P-2 crash trucks at defendant’s facility at Nesquehoning, Pennsylvania, for the price of $5,300 per unit for 120 units.

(2) By letter dated February 29, 1988, plaintiff at the request of defendant provided additional cost information concerning its February 2, 1988 proposal.

(3) On or about March 28, 1988, plaintiff at the request of defendant completed and furnished to defendant a “Contract Pricing Proposal Cover Sheet” relating to the lining of the P-2 water tanks.

(4) On or about August 1, 1988, defendant issued to plaintiff its purchase order for plaintiff to furnish labor and materials for the lining of the water tanks on the P-2 crash trucks.

(5) Defendant’s August 1, 1988, purchase order stated that the work was to be performed by plaintiff “as required.”

(6) On or about August 9, 1988, plaintiff issued to defendant an order acknowledgment relating to defendant’s August 1, 1988 purchase order.

(7) The order acknowledgment, dated August 9, 1988, stated, in part, that plaintiff’s price “is based on doing two tanks per month for 60 months and will be firm for a three-year period. . .”

(8) The parties entered into a contract whereby plaintiff was to furnish the labor and material described in its proposal at the price of $5,300 per unit.

(9) Plaintiff commenced work under the contract during the month of August 1988 and completed 10 units before the end of October 1988.

(10) By letter dated August 19, 1988, plaintiff notified defendant, among other things, that its proposal was based on a minimum of two trailers per month, working five days per week, excluding Saturdays, Sundays and holidays.

(11) Plaintiff temporarily discontinued performance under the contract in October 1988. See paragraph 13.

(12) During the months of October and November 1988, defendant made several requests by telephone that plaintiff resume performance under the contract. Plaintiff rejected these requests and responded that it did not have sufficient personnel to resume the work at that time.

(13) By letter dated November 3, 1988, plaintiff stated to defendant that the 10 units already completed had fulfilled plaintiff’s contractual obligations through the end of December 1988, and further stated that plaintiff did not anticipate having personnel available to continue performing the contract until January 1989.

(14) By letter dated December 2, 1988, defendant notified plaintiff that it was terminating the contract between plaintiff and defendant effective immediately for the reasons stated therein.

(15) By letter dated December 5, 1988, plaintiff notified defendant that it would have personnel available to work on the contract as of December 7, 1988.

(16) The parties stipulate that plaintiff’s damages in this action are $38,300 ($300 per unit for 110 units plus $5,300 unpaid for one unit), and defendants have zero damages on their counterclaim.

ISSUE ON APPEAL

Whether the Agreement Between the Parties Is Governed by Common Law or Pennsylvania Uniform Commercial Code Sales

Plaintiff alleges that since the agreement provides that plaintiff was to supply defendant with specially manufactured goods, it was a contract for the sale of goods under the Pennsylvania Commercial Code. This court disagrees.

Title 13 Pa.C.S. §2102 is the applicable statute. Section 2102 deals with the scope of the Uniform Commercial Code — Sales. It provides, in part, “Unless the context otherwise requires, this division applies to transactions in goods. . .”

Goods are defined by 13 Pa.C.S. §2105(a). It provides, in part, ‘“Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale. . .”

Initially, this court must ascertain whether the subject matter of the contract was movable at the time of its identification to the contract. The facts indicate that plaintiff proposed to furnish labor and materials to fabricate and install a 3/32-inch-thick plasticized PVC sheet lining to the internal areas of water tanks on P-2 crash trucks.

There is nothing in the record which indicates that the materials were movable at the time of their identification to the alleged contract. Moreover, there is nothing to indicate that plaintiff was ever the seller of the liners.

The facts, however, do indicate that there is a mixed proposal where plaintiff was to provide both materials and labor (services). Generally, it is said that where materials are furnished or consumed in connection with the rendering of services, the contract will ordinarily be considered to be outside the coverage of the Uniform Commercial Code. Glover School and Office Equipment Co. Inc. v. Dave Hall Inc., 372 A.2d 221 (Del. Super. 1977). Clearly, not every mixed contract is outside the statute. Id. at 223.

Further, where a mixed contract is involved, it is necessary that the court review the factual circumstances surrounding the negotiation, formation and contemplated performance of the contract to determine whether the contract is predominantly or primarily a contract for sales of goods or for services. Id. at 223.

Also, the relationship of the cost of goods to the total contract price is one factor to consider in determining whether the contract is predominately for services or the sale of goods. Clearly, in the instant matter, as to the circumstances surrounding the contract, the installation (labor) is the predominant factor. This is what the dispute is about. Plaintiff alleges that the agreement required the lining of two tanks (units) per month for 60 months. Conversely, defendant alleges that installation would be “as required.”

As to the price breakdown, the cost breakdown sheet shows that labor costs are $3620 and direct costs (materials, etc.) are $1447. This indicates that the contract is predominately for services and not the sale of goods.

Plaintiff’s contention that since the agreement provides that plaintiff was to supply defendant with specially manufactured goods, it was a contract for the sale of goods under the Pennsylvania UCC Sales Act, is without merit.

In the case of Lincoln Pulp and Paper Co. Inc. v. Dravo Corporation, 436 F.Supp. 262 (1977), the action arose from an engineering and construction contract under which defendant Dravo Corporation agreed to design and construct a new heat and chemical recovery boiler and associated equipment to modify the existing chemical recovery system at the Kraft Pulp Mill. Lincoln Pulp & Paper Co. is similar to the instant case. In the instant case, plaintiff presented a proposal to defendant where it would furnish defendant with a 3/32-inch-thick plasticized PVC sheet lining for the internal areas of water tanks on P-2 crash trucks.

In determining the applicability of the UCC, the court in Lincoln Pulp & Paper Co., supra, held that a contract which is predominantly for the rendition of services, even though it involves the furnishing of equipment, is not a transaction in “goods” and therefore not governed by Article 2 (UCC). The court further held that the contract is a typical engineering construction contract involving predominantly the rendition of services, not the sale of goods. As such, it falls outside the scope of Article 2 (UCC).

Lincoln Pulp & Paper Co. suggests that the presence of design or engineering services, rather than mere installation services, may tip the thrust of the proposal toward the services side. Thus, by proposing to furnish defendant with 3/32-inch sheet lining plaintiffs were merely providing engineering design services to defendant and not the sale of goods.

Since the Pennsylvania UCC does not apply, a brief discussion of the common law as it pertains to contracts is warranted.

The first determination by the court is whether the parties in fact entered into a contract. This court has determined that there was no contract. A discussion of the element of mutual assent (offer and acceptance) is all that is necessary in this matter.

Mutual assent is where the parties agree to the same bargain — basically a meeting of the minds. In order for an offer to be present the offer must be definite and certain.

Terms of delivery are an essential element of an offer. Clearly, in the instant case, the element of delivery warrants a discussion. The facts indicate that plaintiff’s proposal was based upon lining two tanks per month for 60 months. Conversely, defendant’s purchase order provided that delivery would be “as required” by defendant.

At this point, it is evident that defendant’s purchase order was a counteroffer. Because the terms of the purchase order changed the terms of the delivery in the original proposal it was a rejection of plaintiff’s offer. As such, no agreement was ever entered into.

Lastly, in order to avoid any unjust treatment the undersigned entered summary judgment for plaintiff on count III in the amount of $5,300, which is the amount owing plaintiff on the 10 trucks (units) it completed, in spite of the lack of a contract.

CONCLUSION

For all the foregoing reasons this court’s order of November 8, 1990 should be affirmed.

       Please note citations to the Uniform Commercial Code are analogous to the Pennsylvania Commercial Code.


text:
    Commonwealth v. McCloskey

      Ted McKnight, district attorney, for the Commonwealth.

      Paul Ryan, for defendant.
    February 1, 1991
   BROWN, P.J.,

Defendant has been charged with the offense of driving under the influence under section 3731(a)(1) as well as under section 3731(a)(4). Defendant’s motion to dismiss is predicated upon constitutional double jeopardy grounds.

The probable cause affidavit filed in support of the driving under the influence charge alleges that on October 2, 1990, at approximately 3:50 a.m., Trooper Cavanaugh of the Pennsylvania State Police observed defendant driving a 1979 Ford vehicle. This occurred as the vehicle was traveling on State Route 2008 from State Route 220 in Lamar Township. The officer followed defendant’s vehicle and noted that initially it was operated in the eastbound lane and was weaving within the eastbound lane to a moderate degree. As defendant traveled onward his vehicle began to weave into the westbound lane, straddled the double yellow line on several occasions and did also travel totally within the westbound lane. Defendant’s vehicle was followed for one mile. An attempt was made to stop defendant with red lights and flashing high beams. It is alleged that defendant, upon observing the lights, applied his brakes in an area where he could have stopped and pulled off the roadway but instead he continued on an additional one-half mile before stopping on the roadway, prior to reaching State Route 477.

Upon being stopped defendant was asked to present his operator’s license and registration. He did this. Upon Trooper Cavanaugh’s speaking with defendant he detected an odor of alcoholic beverages about his person. Defendant was then asked what the problem was to which he replied that his fender was rubbing, causing him to weave. Defendant exited the vehicle and shook his fender and lifted the vehicle hood. Defendant, while standing, was observed swaying, and it was also noted that he spoke with slurred speech.

Defendant was asked to consent to sobriety testing which he did. With respect to the finger count defendant performed in a satisfactory manner. He failed the leg-lift test and the horizontal-gaze ny-stagmus test. He was then transported to the Lock Haven Hospital where blood was drawn which produced a blood alcohol level reading of 0.182 percent. Defendant was thereafter transported to his residence and released.

On October 3, 1990 a citation was filed against defendant, charging him with the summary offense of failing to maintain the right lane of travel. The present driving under the influence charge was filed on October 5, 1990. Thereafter defendant appeared before the district justice, pled guilty to the summary offense and paid the fine and costs.

Defendant now advances thé proposition that he is being prosecuted for driving under the influence in violation of his double jeopardy rights under the Constitution since he entered a prior plea of guilty to the summary offense. It is the Commonwealth’s position that it intends to prosecute defendant on the evidence with respect to his failing to stop as well as his failing to pass the field sobriety tests and the blood alcohol level test.

Defendant’s position is predicated upon the recent cases of Grady v. Corbin, 495 U.S. _, 109 L.Ed. 2d 548, 110 S.Ct. _ (1990), and Commonwealth v. Labelle, 397 Pa. Super. 179, 579 A.2d 1315 (1990). Those cases indicate that the double jeopardy clause of the Fifth Amendment bars the present prosecution if the Commonwealth intends to establish as an essential element of the DUI prosecution a matter which also establishes conduct that constituted the offense for which the defendant had already been prosecuted, i.e., driving in the wrong lane of traffic.

As in the recent case of Commonwealth v. Robert A. Confer, no. 361-90 (Criminal Division), the Commonwealth contends that it intends to pursue the prosecution without reference to evidence of defendant’s being in the wrong lane of travel. That course of action was approved by this court in an opinion and order dated and filed December 28, 1990.

The court notes that the Commonwealth has predicated the DUI prosecution on two separate subsections. The first relates to defendant’s being incapable of safe driving and the second relates to defendant’s blood alcohol level being in excess of 0.10 percent.

In addressing the incapable of safe driving ground, the Commonwealth could present evidence as to defendant’s demeanor in driving in his own lane of travel as well as his response after being signaled to stop by the officer and including his conduct and comportment following the stop, including the use of any field, sobriety test. The Commonwealth of course would be precluded from introducing evidence making any reference to defendant’s traveling in the wrong lane of travel, including any conduct or actions that occurred during the stop which would have referred to being in the wrong lane of travel.

In addition, unlike Confer, supra, the Commonwealth is also prosecuting on the basis of defendant’s blood alcohol level. In order to prove this particular charge it is not necessary for the Commonwealth to establish defendant’s traveling in the wrong lane of travel. Accordingly defendant’s motion to dismiss on double jeopardy grounds will be denied.

ORDER

And now, February 1, 1991, based upon the foregoing opinion, it is hereby ordered that defendant’s motion to dismiss be dismissed and the requested relief be denied.