author: WALLACH MILLER, J.,

text:
    Chang v. Camelback Ski Corp.

      C.P. of Monroe County,
    no. 37 Civil 1999.

      Philip D. Lauer, for plaintiffs.

      Hugh M. Emory, for defendant.
    August 30, 1999
   WALLACH MILLER, J.,

VOLENTI: NON-FIT INJURIA

On January 7, 1997, 17 and a half year old Joseph Chang purchased a ski lift ticket and went skiing at Cam-elback Ski Area located in Tannersville, Monroe County, Pennsylvania. When he got off the ski lift and began skiing down a slope, he realized that the slope was covered with ice. He alleges the ice prevented him from having any control of the direction or speed of his skis. As a result of the icy slope, Chang claims he was propelled off the slope and crashed into a ski lift structure, suffering injuries.

Chang further claims that since he was a novice and possessed only minimal skiing ability, he could not have known or reasonably foreseen the outrageously dangerous icy condition of the slope. He further alleges that the icy condition was caused due to a severe weather anomaly-

On January 5,1999, Chang and his parents filed a summons against Camelback followed by a complaint on February 17, 1999. The complaint included counts for negligence, breach of warranty, loss of filial consortium and a request for reimbursement for an adult child’s past and future medical bills. Camelback filed preliminary objections on March 2, 1999.

Plaintiffs filed an amended complaint on March 22, 1999, amending only paragraph one of the original complaint and pleading that Joseph Chang was a minor, and not an adult, as originally alleged.

Camelback again filed preliminary objections on April 12,1999 in the nature of a demurrer/motion to strike the negligence claim; a demurrer/motion to strike the second cause of action which is based on a breach of warranty that the ski slope was not reasonably safe and fit for the purposes for which it was used; and, a demurrer to the claims of plaintiff parents for loss of filial consortium.

After reviewing the parties’ briefs and hearing oral argument, we are prepared to rule on defendant’s preliminary objections.

A demurrer tests the legal sufficiency of the pleadings. In determining the legal sufficiency of a complaint, at this stage of a proceeding, the court must accept as true every relevant fact sufficiently averred in the plaintiffs’ complaint together with every inference favorable to the non-moving party which is fairly deducible therefrom. Ganassi v. Buchanan Ingersoll PC, 373 Pa. Super. 9, 540 A.2d 272 (1988). However, we need not accept as true conclusions of law, inferences unwarranted by the admitted facts, argumentative allegations or expressions of opinion. Graham v. Harleysville Insurance Co., 429 Pa. Super. 444, 632 A.2d 939 (1993).

Since the sustaining of a demurrer results in a denial of a pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985).

Defendant argues that Count I of plaintiffs’ complaint fails to state a cause of action in negligence. To establish a viable cause of action in negligence, the pleader must aver in his complaint the following elements:

“(1) A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
“(2) A failure on the person’s part to conform to the standard[s] required: a breach of the duty.
“(3) A reasonably close causal connection between the conduct and the resulting injury.
“(4) Actual loss or damage resulting to the interest of another.” Ferry v. Fisher, 709 A.2d 399, 402 (Pa. Super. 1998), citing Prosser & Keaton on Torts §30 (5th ed. 1984).

Moreover, the mere happening of an accident does not entitle the injured person to a verdict; a plaintiff must show that the defendant owed him a duty and that the duty was breached. Engel v. Parkway Co., 439 Pa. 559, 266 A.2d 685 (1970).

In reading the complaint and giving all the benefit, including inferences, to the plaintiffs, the non-moving party, we find they allege that Camelback owed a duty to them to inspect, test and warn plaintiff of the icy slope, to stop the plaintiff from using this icy slope because the defendant knew it was unreasonably dangerous in light of the icy conditions; to instruct and render assistance to the plaintiff once he was on the icy slope and to provide to plaintiff a slope that was safe and not defective (we infer this means no ice on the slope).

The thrust of Camelback’s demurrer is that it has no duty to protect skiers from the inherent risks of skiing and that icy slopes and icy conditions on the slopes are inherent risks in downhill skiing. They further argue that plaintiff was a voluntary participant, chose to ski that particular day and that a ski trail consisting of snow, can and will develop icy conditions through skier traffic, changes in temperature and other factors which affect the outdoors during the winter. Further, they argue that they have no control over the weather. Thus, we must determine if, under the law, there is a recognizable duty of defendant Cam-elback to protect a skier from an icy slope.

The Pennsylvania Legislature passed the “Skiing Responsibility Act” on March 27, 1980, P.L. 52 (no. 19). This Act was repealed by section 222 of the JARA Continuation Act of October 5, 1980, P.L. 693 (no. 142). However, its substance was codified as subsection “c” of the Comparative Negligence Act, 42 Pa.C.S. § 1702(c) which provides:

“(c) Downhill skiing.
“(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of non-residents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
“(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (b).”

Assumption of risk is a legal doctrine which holds that a defendant, as a matter of law, does not owe a duty of care to a plaintiff who voluntarily exposes himself to the risks inherent in an activity. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Pagesh v. Ucman, 403 Pa. Super. 549, 589 A.2d 747 (1991); Valeo v. Pocono International Raceway Inc., 347 Pa. Super. 230, 500 A.2d 492 (1985); Iervolino v. Pittsburgh Athletic Co. Inc., 212 Pa. Super. 330, 243 A.2d 490 (1968); Schentzelv. Philadelphia National League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953) and Missar v. Camelback Ski Resort, 30 D.&C.3d 579 (1984).

Our appellate courts have found the rationale behind this rule to be that persons conducting the activity have no duty to warn or protect participants against risks which are common, frequent, expected and inherent in the activity itself. Thus, persons conducting an event are not negligent for failing to warn or protect a participant against risks which are inherent in the activity. Id.

While the Pennsylvania statute does not define the inherent risks in downhill skiing, we are able to look to other states whose legislatures have enacted similar legislation. For example, New York has passed General Obligation Law no. 18-101 which states:

“The legislature finds ... (1) that downhill skiing, like many other sports, contains inherent risks, including, but not limited to the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions, surface or subsurface snow, ice conditions, bare spots or areas of thin cover....”

At New Jersey Revised Statutes §5-13-5, it provides:

“A skier is deemed to have knowledge of and to assume the inherent risks of skiing ... created by weather conditions, conditions of snow, trails, slopes, other skiers and all other inherent conditions ....”

Our neighbor to the west, Ohio, has enacted Ohio Revised Code Annotated §4169.08(A) which states in part:

“The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for any losses or damages that result from the inherent risks of skiing, which include but are not limited to, losses or damage caused by variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, stumps and other forms of forest growth or debris ....”

We have also reviewed similar statutes enacted in Connecticut, Maine, Massachusetts and New Hampshire and find all of them include ice or ice conditions as an inherent risk of the sport of downhill skiing.

Skiing is a dangerous and hazardous sport. If we were to find that plaintiff pled a viable cause of action in this case under a theory that defendant was negligent in not maintaining a perfectly groomed downhill ski slope with no ice or other conditions usually found on ski slopes, particularly here where plaintiff tells us that the ice was caused by a weather “anomaly,” what would happen to one of the most popular winter sports in America? See Podvin v. Somerton Springs Swim Club Inc., 406 Pa. 384, 178 A.2d 615 (1962) (plaintiff slipped on sand while playing volleyball).

Thus, after a close reading of the complaint, we find that plaintiff voluntarily purchased a lift ticket, went to the top of the mountain, exited the lift, chose a ski trail, lost control of his skis on the way down due to ice on the trail, had an accident and was injured. Under the facts averred, we find plaintiff has not pled a legally sufficient cause of action and defendant is entitled to a demurrer on Count I of the complaint.

Plaintiffs’ second count asserts liability on an alleged breach of expressed and implied warranty that the ski slope was reasonably safe and fit for the purposes for which it was being used. This count appears to be further based on the fact that the plaintiff purchased a ski lift ticket. In their brief, plaintiffs argue that the lift ticket was purchased “in reliance on the expressed or limited warranties that the ski slope was reasonably safe and fit for the purposes for which it was being used.” (Plaintiffs’ brief, p. 11.) Plaintiffs cite three cases to bolster their argument. All three cases discuss the implied warranty of habitability in contracts between builders/sellers of new homes to residential purchasers. Plaintiffs ask us to analogize those contractual situations to the facts in this case.

Defendant argues that Pennsylvania has adopted the express and implied warranty principles set forth in the Uniform Commercial Code and under 13 Pa.C.S. §§2313 and 2314. The UCC applies these warranties to contracts or transactions for the sale of goods. See also, 13 Pa.C.S. §2102. The UCC defines goods as all things (including specially manufactured goods) which are movable at the time of identification of the contract for other than money in which the price is to be paid, investment securities ... and things in action. 13 Pa.C.S. §2105(a). This definition embraces every species of property other than real estate, choses in action or investment securities. In paragraph 43 of plaintiffs’ complaint, they allege as follows:

“(43) The defendant breached its implied and expressed warrant of fitness for a particular purpose in permitting the plaintiff to ski said slope which was unreasonably unsafe for human beings resulting in injuries and damages to the plaintiff herein and above set forth.”

While not articulated fully, we can infer plaintiffs imply that there was a contract between plaintiff and defendant based on the lift ticket where plaintiff paid Cam-elback for the use of defendant’s ski trails and lifts. Even if we were to find such a contract existed, we cannot, under the UCC, find that it involved a transaction in goods, as the use of a ski slope does not fit into the definition of goods in any section of the UCC. A ski slope is not movable, 13 Pa.C.S. §2105(a), and the definition of goods specifically excludes real property.

After a review of plaintiffs’ complaint and the relevant law, we find plaintiffs have not pled a viable cause of action based on warranty and thus grant defendant’s demurrer to Count II of plaintiffs’ complaint.

Lastly, in Count III, the parents of the minor plaintiff assert claims against defendant for loss of consortium arising from Camelback’s negligence and breach of warranty.

The parents claim that they have been deprived of the assistance, society and companionship of their son since the date of the accident up to the filing of their complaint, and they also allege that these deprivations will continue in the future. The parents further allege that these deprivations have constituted and will constitute a great financial loss to them.

• It is well settled in Pennsylvania that our law does not recognize loss of companionship as an element of damage in any relationship other than in a husband and wife relationship. Jackson v. Tastykake Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994); Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989), appeal denied, 525 Pa. 604, 575 A.2d 569 (1990); Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914).

Plaintiffs admit in their brief at page 13 that a cause of action for filial consortium does not exist in Pennsylvania but they urge us to ignore this law which has been in place for nearly 100 years. This court is cognizant of a decision issued by the Honorable R. Stanton Wettick Jr. of the Allegheny County Court of Common Pleas in Ehrman v. Mid-American Waste, no. 2665-12-00 1998, Allegheny Co., December 14, 1998 (Wettick, J.), allowing recovery for loss of filial consortium in a statutory wrongful death claim. However, in Verity v. Hershey Medical Center, 98 CV 3545, Lackawanna Co., May 17, 1999 (Minora, J.), the Honorable Carmen Minora did not find Ehrman persuasive and neither do we. Defendant’s demurrer to the paragraphs of the plaintiffs’ complaint asserting claims for loss of filial consortium is granted, and said counts and paragraphs are stricken from the complaint.

ORDER

And now, August 30,1999, the preliminary objections of the defendant are sustained, and plaintiffs shall have 20 days from the date of this order to file an amended complaint as to Counts I and II.

      . At oral argument, we learned that Chang had chosen to ski a “black diamond,” or expert trail, called “The Rocket.”


source: Caselaw Access Project

author: HERMAN, J.,

license: Public Domain

text:
    Shafer v. Waite

      C.P. of Fulton County,
    no. 191 of 1997-C.

      J. McDowell Sharpe, for plaintiffs

      James M. Schall, for defendant.

      Bryan K. Shreckengost, Jeffrey B. Rettig, Travis L. Kendall and Mary Lou Maierhofer, for additional defendants.
    October 27, 1999
   HERMAN, J.,

INTRODUCTION

Plaintiffs Patrick and Glenda Shafer filed a complaint seeking $103,936.77 for flood damage to their home on lot 27 in the Cold Spring Acres Phase III Development in Todd Township, Fulton County. The Shafers filed suit against the builder, Fred Waite, alleging negligence and breach of implied warranties. Mr. Waite filed a joinder complaint against additional defendants John and Polly Shimer, the subdivision’s owners and developers. Mr. Waite also joined Todd Township as an additional defendant. Before the court is the township’s motion for summary judgment to Waite’s joinder complaint. Waite and the Shimers oppose the township’s motion. Argument was held and counsel submitted briefs to the court. This matter is ready for decision.

BACKGROUND

John and Polly Shimer purchased farmland in Todd Township in the late 1960s from a Mr. and Mrs. Cooper. An open drainage ditch channeling an east-west tributary of nearby Cove Creek ran through the property. A 12-15-inch steel pipe had been laid in the ditch and channeled the tributary under a north-south dirt road which later became known as Cooper Lane. Mr. Shimer removed the pipe and submitted a subdivision plan for phase III to the Todd Township supervisors on October 3,1988. The plan featured the drainage ditch as an easement running east-west between lots 26 and 27, passing under Cooper Lane and continuing between lots 2 and 3. The plan also indicated the existence of a 36-inch reinforced concrete pipe within the drainage easement between lots 2 and 3. The township approved the plan at a public meeting on October 6, 1988. Mr. Shimer then extended the pipe between lots 26 and 27, backfilled the open drainage ditch and graded the lot.

The Shimers owned a 50-foot right-of-way over Cooper Lane which runs (roughly) north-south through the phase HI development. The Shimers deeded this right-of-way (and other roads within the development) to the township by deed of dedication on December 6, 1991: “Said grantors desire to grant an easement over said roads for the use of themselves and the general public and also to offer said roads or streets to the grantee herein for the purpose of dedication as public roads . . . .” The township assumed ownership of Cooper Lane by a resolution dated April 5, 1992 but the drainage easement containing the concrete piping was never deeded to the township and remained the property of the Shimers.

Mr. Waite purchased lot 27 from the Shimers in 1993 and began building a spec house in early 1994. He extended the drainage piping within the easement an additional 20 feet and regraded the lot. The Shafers purchased the lot and house from Mr. Waite on September 28,1994. Their house was damaged in January of 1996 and again in September of that year when the Cove Creek tributary overflowed its banks and flooded lot 27. The storm water dammed up at the mouth of the 36-inch pipe and was diverted toward the Shafers’ house.

DISCUSSION

Mr. Waite alleges the township was negligent in approving Mr. Shimer’s subdivision plan. Specifically, he contends the township did not properly size the culvert for the channeling of water from the Cove Creek tributary through the development and under Cooper Lane, and should not have approved Mr. Shimer’s subdivision plan without an engineering study of the anticipated storm water flow. Mr. Waite also alleges Mr. Shimer’s work violated the subdivision plan and this violation went undetected because the township did not inspect Mr. Shimer’s work after it approved the plan.

The Shimers allege that “Todd Township, by accepting the deed of dedication of Cooper Lane from Shimers, accepted full responsibility for the adequacy and maintenance of all drainage culverts and channels associated therewith, including the 36-inch concrete drainage culvert and drainage easement between lots 27 and 26, and thereby accepted all risk and responsibility with regard to the culvert and drainage easement.” (Paragraph 28 of the Shimers’ answer with new matter to Waite’s joinder complaint.) The township asserts immunity from suit under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq.

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2 which states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) when there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

The nonmoving party must come forward with evidence showing the existence of facts essential to his cause of action. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996). At the same time, the court, in reviewing the motion, must view the record in the light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992).

The Tort Claims Act provides: “[ejxcept as otherwise provided... no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541. Section 8542 provides for several exceptions to immunity:

“(a) Liability imposed — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
“(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having [immunity]; and
“(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b)....”

Section 8542(b) sets forth eight categories which may trigger liability on the part of a local agency. The claimant must satisfy a two-prong test. He must have a common-law or statutory cause of action against the agency, and his claim must fall within one of the exceptions to immunity under section 8542(b). Mickle v. City of Philadelphia, 669 A.2d 520 (Pa. Commw. 1996). Only three of those exceptions arguably apply to this case:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(3) Real property. — The care, custody or control of real property in the possession of the local agency ...
“(5) Utility service facilities. — A dangerous condition of the facilities of stream, sewer, water, gas or electric systems owned by the local agency ...
“(6) Streets.—
“(I) A dangerous condition of streets owned by the local agency ....” (emphasis added)

These exceptions must be narrowly interpreted in light of the clear legislative intent to shield political subdivisions from tort liability. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). We find the township is entitled to summary judgment because the two-prong test under section 8542 has not been satisfied.

A. There Is No Viable Common-Law or Statutory Cause of Action Against the Township

Mr. Waite contends the township was negligent for failing to enforce its own ordinance by not requiring Mr. Shimer to do a storm water management study to determine if the 36-inch pipe was adequate to handle any water which might flow through the subdivision. Although the ordinance was amended in 1996 to require such a study before a subdivision plan’s approval, it appears the ordinance in effect in 1988 did not feature that requirement, nor did it specify the particular size piping to be used in residential subdivisions. In this connection, we must point out that we cannot review the 1988 ordinance because it was not made part of the record. Our knowledge of the ordinance comes from the deposition of Stanley Mellott, who was a township supervisor in 1988. Mr. Mellott testified the ordinance in effect at the time the Shimers’ plan was approved contained no guidance on pipe size and did not require a storm water management study.

The absence of the 1988 ordinance from the record poses no difficulties because, even if it required an engineering study and particular size piping, a local agency does not have an affirmative duty to enforce its ordinances because enacting an ordinance does not give the agency sufficient control over real property to constitute possession for purposes of section 8542(b)(3). Buffalini by Buffalini v. Shrader, 112 Pa. Commw. 228, 535 A.2d 684 (1987); Chacho v. PennDOT, 148 Pa. Commw. 494, 611 A.2d 1346 (1992); Leggieri v. Township of Haverford, 98 Pa. Commw. 646, 511 A.2d 955 (1986), overruled on other grounds, Graybill v. Providence Township, 140 Pa. Commw. 505, 593 A.2d 1314 (1991). The drainage easement and piping were not in the township’s “possession” or “care, custody or control” for purposes of establishing an exception to immunity under section 8541 because such possession or control must be total and exclusive. City of Pittsburgh v. Stahlman, 677 A.2d 384 (Pa. Commw. 1996).

Another reason we are not stymied by the absence of the 1988 ordinance from the record is that negligent approval of a subdivision is not a viable cause of action. Leggieri, supra; Pastore v. Commonwealth, State System of Higher Education, 152 Pa. Commw. 111, 618 A.2d 1118 (1992); Smith v. Neshaminy Holding Co., 41 D.&C.3d 255 (1984). Equally untenable is the contention the township was negligent for not discovering Mr. Shimer’s alleged deviation from the approved plan because there is no authority for the proposition that the township had a duty to inspect Mr. Shimer’s work once it approved the plan. Neither Mr. Waite nor the Shimers have pointed to a cognizable common-law theory of recovery against the township.

As a statutory basis for liability, Mr. Waite alleges the township approved the subdivision plan in the absence of a permit from DEP pursuant to section 25 of the Pennsylvania Code, section 105.11. Section 105.11(a) provides: “A person may not construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment without first obtaining a written permit from the department.” This is not a cognizable cause of action because it is DEP which enforces those regulations, not the local agency. Furthermore, those regulations do not create a private cause of action.

Another statutory basis for township liability allegedly appears in section 67320 of the Second Class Township Code, 53 PS. §65101 et seq., which provides:

“(a) The board of supervisors or its agents may enter any land or enclosures and cut, open, maintain and repair drains or ditches through the property when necessary to carry the water from the roads.
“(b) Any person who damages or diverts any drain or ditch without the authority of the board of supervisors commits a summary offense and is liable for the cost of restoring the drain or ditch . . . .” The Shimers rely on subsection (b) for the idea that the township assumed responsibility for the easement and piping. We disagree. When the two subsections are read together in order, it is clear this section of the code, entitled, “Power to open drains and ditches,” merely allows the board of supervisors to take the necessary steps to remove water from roads to ensure safe passage, and prohibits individuals from undermining the township’s work without its permission. It does not impose responsibility to act or liability for failure to act on the township, nor does it impose responsibility with regard to the actions of others and therefore does not provide for a cause of action against the township under section 8542(a).

B. Even if the Shimers and Mr. Waite Had a Viable Cause of Action Under Common Law or Statute, the Township’s Actions Do Not Fall Within Any of the Exceptions to Immunity Set Forth in Section 8542(b)

Mr. Waite and the Shimers contend the township would be subject to a viable cause of action for the drainage system’s inadequacy under the real property exception to immunity in subsection (b)(3) because the township exercised control or possession over same by undertaking maintenance to that system. In support, they point to an incident in which the township received a complaint from the owner of lot 2 that water flowing from the pipe had eroded the soil, creating a large water hole which posed a potential danger to children in the development. Concerned about a public safety hazard, the township contacted an excavator to fill the hole. The work was never performed because the January 1996 flooding occurred and state and federal emergency agencies came to repair flood damage in the phase III development and other parts of the township.

We disagree that exception (b)(3) applies because this suit does not involve “the care, custody or control of real property in the possession of the local agency ... .” As discussed above, the township’s limited actions do not constitute “possession” or “control” over either the drainage easement or the concrete piping sufficient to overcome immunity under section 8541. Stahlman, supra; Sims v. Silver Springs-Martin Luther School, 155 Pa. Commw. 619, 625 A.2d 1297 (1993); Prescott v. Philadelphia Housing Authority, 124 Pa. Commw. 124, 555 A.2d 305 (1989); York Redevelopment Authority v. Keener, 101 Pa. Commw. 464, 516 A.2d 832 (1986); Mentzer v. Ognibene, 126 Pa. Commw. 178, 559 A.2d 79 (1989). The preliminary steps taken by the township to correct a public safety hazard did not constitute possession or control to the extent necessary to overcome its immunity under section 8541.

Mr. Waite and the Shimers next point to exception (b)(5) which would subject a local agency to a viable cause of action if a dangerous condition exists in the facilities of stream, sewer, water or other utility systems owned by the agency and located within rights-of-way. This exception does not apply because the township did not acquire ownership of the drainage easement and piping when it accepted dedication of Cooper Lane. Responsibility for the portion of the easement which passes under Cooper Lane cannot be imputed to the township because the dedication of Cooper Lane did not invest the township with fee title to the land on which the road sits and into which the pipe was laid. By acquiring ownership of the lane, the township acquired the right to use, maintain, regulate and control the property as a road for the public benefit, but the title to the land beneath the road, including the portion of land surrounding the concrete pipe, remained with the Shimers. In re City of Altoona, 479 Pa. 252, 388 A.2d 313 (1978); Versailles Township Authority v. City of McKeesport, 171 Pa. Super. 377, 90 A.2d 581 (1952). This is consistent with the well-established rule that interests in the surface and subsurface of realty can be separately conveyed and owned. Einsig v. Pennsylvania Mines Corp., 69 Pa. Commw. 351, 452 A.2d 558 (1982); Chartiers Block Coal Company v. Mellon, 152 Pa. 286, 25 A. 597 (1893).

Dedication of land or an easement by an owner and a municipality’s acceptance thereof are similar to offer and acceptance in the law of contracts. Borough of Lehighton v. Katz, 75 Pa. Commw. 388, 462 A.2d 889 (1983); TriCity Broadcasting Company v. Howell, 429 Pa. 424, 240 A.2d 556 (1968). Where a deed of dedication exists, its express language determines the nature and scope of the easement being granted to the public’s use. Merrill v. Manufacturers Light & Heat Co., 409 Pa. 68, 185 A.2d 573 (1962); Burger v. Rockhill Builders Inc., 278 Pa. Super. 430, 420 A.2d 616 (1980). If there is no written deed, dedication of land to public use is achieved only through an unequivocal act of the fee owner which indicates his clear intention that the land be accepted and used for a public purpose. Coffin v. Old Orchard Development Corp., 408 Pa. 487, 186 A.2d 906 (1962). Any implied acceptance of an easement on the part of a municipality can be shown only by the municipality’s unequivocal acts which continue over a long time, demonstrating beyond doubt the municipality’s clear intent to accept the easement for public use. National Christian Conference Center v. Schuylkill Township, 142 Pa. Commw. 308, 597 A.2d 248 (1991). The township’s single truncated attempt to remedy a safety hazard cannot be construed as an unequivocal acceptance of the drainage easement and piping.

In their attempt to shift liability onto the township, the Shimers also rely on Piekarski v. Club Overlook Estates Inc., 281 Pa. Super. 162, 421 A.2d 1198 (1980), which held that a developer’s negligent design or construction of a drainage system is cured by dedication of that system to the township. Piekarski does not support the Shimers’ position, however, because the drainage system in that case had been expressly dedicated to the local agency, in contrast to the case at bar in which no such dedication occurred.

Citing exception (b)(6) pertaining to dangerous conditions of township roads, the Shimers lastly argue the township accepted responsibility for the portion of the easement which passes under Cooper Lane when it accepted Cooper Lane. We disagree because the concrete pipe serves no purpose with respect to Cooper Lane. The subdivision plan clearly shows Cooper Lane was equipped with catch basins and drains specifically designed to keep storm water off its surface. Those drainage mechanisms are certainly an integral part of the road and, as such, are the township’s responsibility. This is not the case with the easement and 36-inch concrete pipe, which is buried 10 feet below the surface of the road and was designed, not to remove surface water from Cooper Lane, but to channel water from a Cove Creek tributary under and through the phase III development.

Mr. Waite and the Shimers have not come forward with a viable cause of action against the township to overcome its immunity from suit under section 8541 of the Tort Claims Act. The township is therefore entitled to summary judgment. An appropriate order of court will be entered as part of this opinion.

ORDER

Now, October 27,1999, the motion for summary judgment filed by the additional defendant, the Township of Todd, is hereby granted.

      . The subdivision plan submitted to the township for approval appears in the record as defendant’s exhibit no. 1 attached to the deposition of John R. Shimer. The Shimers filed the approved plan with the Fulton County Recorder of Deeds on July 21, 1989.

      . Both the deed of dedication and the township resolution appear in exhibit D of Mr. Shimer’s deposition. The resolution states: “Be it resolved that the Todd Township supervisors of Fulton County do hereby agree to assume ownership of Cooper Lane extension ... previously owned by John R. Shimer and Polly Shimer.”

      . Mr. Waite also alleged in paragraph 22 of his joinder complaint that the township was negligent for failing to enforce its building permit ordinance by issuing a building permit to Mr. Waite without determining whether the lot was in a flood-prone area. He did not pursue this allegation at oral argument or in his brief and has therefore waived it.

      . Mr. Waite argues the plan submitted to the township supervisors on October 3, 1988 and approved at the October 6,1988 public meeting showed the drainage easement as an open swale containing the piping, but that Mr. Shimer filled in that swale surrounding the piping. Mr. Waite alleges the backfilling of the open swale resulted in the closed pipe being the storm water’s only outlet when it overflowed the banks of the Cove Creek tributary and that an open swale would have been more effective in channeling the run-off away from the Shafer home. Whether Mr. Shafer in fact deviated from the approved plan is not an issue this court must decide because even if he did so deviate, there is no cognizable cause of action arising from a local agency’s failure to inspect a developer’s work
      The township argues that, since a subdivision plan is not required to meet standards which do not appear in the local ordinance, the township would have had no legal basis for withholding approval of the Shimers’ plan because the plan complied with the ordinance then in effect. Broujos v. Carlisle Borough Council, 685 A.2d 620 (Pa. Commw. 1996); Akin v. South Middleton Township Zoning Hearing Board, 120 Pa. Commw. 112, 547 A.2d 883 (1988). Although we recognize the cited precedents as correct statements of the law, we cannot rely on the township’s argument on this issue because we cannot confirm first-hand whether, in fact, the 1988 ordinance required a storm water management study or particular size pipe to be used.

      . The precise date of that complaint is not in the record.


author: WETTICK, J.,

text:
    N.H. v. L.W.
    C.P. of Allegheny County,
    no. GD98-2490.

      J. Kerrington Lewis, for plaintiffs.

      Peter B. Skeel, for defendants.

      Sandy B. Garfinkel, for defendants Mt. Lebanon and Mark Kubit.
    September 18, 1999
   WETTICK, J.,

A motion to quash subpoena/motion for protective order filed by Mt. Lebanon is the subject of this opinion and order of court. The issue raised by this motion is whether law enforcement records concerning a juvenile may be used in a civil action against the juvenile and his parents.

In this civil action, plaintiffs seek to recover damages for personal injuries which the minor plaintiff sustained. The complaint alleges that the minor plaintiff was sexually abused on several occasions by the minor defendant. Plaintiffs raise claims against the minor defendant as well as the minor defendant’s parents. The claims against the parents are based on their failure to supervise and monitor their child even though they allegedly knew or should have known that he had deviant sexual propensities with other children and their failure to investigate and act accordingly on suspicious behavior of their child.

The alleged incidents occurred when the minor plaintiff was between ages 6 and 8 and the minor defendant was between ages 10 and 12. The minor defendant is now 14.

Plaintiffs scheduled the deposition of a detective of the Mt. Lebanon Police Department. The notice of deposition instructed the deponent to bring investigative reports concerning the alleged incidents that are the subject of this litigation. In their brief, plaintiffs state that this detective investigated these incidents. In their brief, plaintiffs also state that the minor defendant admitted that he engaged in the conduct described in the complaint when confronted by municipal, county, and parental authorities and that he pled guilty in the juvenile section of the family division of the court of common pleas to the offenses for which he was charged.

At oral argument, counsel for Mt. Lebanon stated that Mt. Lebanon filed this motion because Mt. Lebanon will not produce the information which plaintiffs seek without a court order. However, Mt. Lebanon is not taking a position as to whether a court order should issue. The interests of the minor defendant are protected by defendants’ counsel who has filed a brief in support of Mt. Lebanon’s motion to quash subpoena/motion for protective order.

Rule 4003.1 provides that subject to the provisions of Rule 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action. The investigative file of the Mt. Lebanon Police Department is likely to contain information that will assist plaintiffs in the preparation and trial of the case. Nothing within the provisions of Rule 4003.2 to 4003.5 precludes this discovery. The provisions of Rule 4011 barring discovery which causes unreasonable annoyance, embarrassment, oppression, or burden to any party does not bar this discovery because the information that is sought directly concerns the core issues in this case and it can be readily produced at minimal expense. Consequently, the discovery which plaintiffs seek is permitted unless it involves a matter that is privileged.

Defendants contend that the discovery which plaintiffs seek is governed by a statutory privilege created by the Juvenile Act. Defendants rely on a provision of the Juvenile Act governing law enforcement records (42 Pa.C.S. §6308(a)) which reads as follows:

“Section 6308. Law enforcement records
“(a) General rule. — Law enforcement records and files concerning a child shall be kept separate from the records and files of arrests of adults. Unless a charge of delinquency is transferred for criminal prosecution under section 6355 (relating to transfer to criminal proceedings), the interest of national security requires, or the court otherwise orders in the interest of the child, the records and files shall not be open to public inspection or their contents disclosed to the public except as provided in subsection (b); but inspection of the records and files is permitted by:
“(1) The court having the child before it in any proceeding.
“(2) Counsel for a party to the proceeding.
“(3) The officers of institutions or agencies to whom the child is committed.
“(4) Law enforcement officers of other jurisdictions when necessary for the discharge of their official duties.
“(5) A court in which the child is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, or by officials of penal institutions and other penal facilities to which he is committed, or by a parole board in considering his parole or discharge or in exercising supervision over him.”

Plaintiffs contend that they are permitted to inspect the Mt. Lebanon law enforcement records and files under the provisions of section 6308(a) permitting inspection of records and files by (1) “[t]he court having the child before it in any proceeding” and by (2) “[cjounsel for a party to the proceeding.” Plaintiffs argue that the phrase “any proceeding” in subsection (a)(1) and the reference to “the proceeding” in subsection (a)(2) should be interpreted to include civil proceedings in which the child is the defendant.. Defendants, on the other hand, contend that the term “proceeding” refers only to those proceedings governed by the Juvenile Act.

I am construing section 6308(a) in the manner in which defendants propose for several reasons.

First, subsections (a)(1) and (a)(2) refer to proceedings in which the court has the child before it. This terminology describes proceedings governed by the Juvenile Act in which the court is making decisions involving the welfare of the child and the protection of the public. If this provision was intended to include civil proceedings, I would have expected the legislature to refer to proceedings in which the child is a party.

Second, the remaining exceptions, in which inspection of records and files is permitted, refer to instances in which the information will be used for the welfare of the child and the protection of the public. In the absence of clear language to the contrary, it is unlikely that the legislature intended for exceptions one and two to include inspections that are unrelated to the welfare of the child or the protection of the public.

Third, a reading of section 6308(a) which limits disclosures to proceedings governed by the Juvenile Act is consistent with the provisions of section 6308(b) prohibiting the disclosure to the public of the contents of law enforcement records and files concerning a child under 14 at the time of the alleged conduct.

Fourth, plaintiffs’ broad construction of section 6308 is inconsistent with section 6307 of the Juvenile Act (42 Pa.C.S. §6307) which governs the inspection of court files and records. (See 1 Pa.C.S. § 1932(b) which provides that parts of statutes should be construed as being in harmony with each other.) Section 6307 reads as follows:

“Section 6307. Inspection of court files and records
“All files and records of the court in a proceeding under this chapter are open to inspection only by:
(1) The judges, officers and professional staff of the court.
“(2) The parties to the proceeding and their counsel and representatives, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court.
“(3) A public or private agency or institution providing supervision or having custody of the child under order of the court.
“(4) A court and its probation and other officials or professional staff and the attorney for the defendant for use in preparing a presentence report in a criminal case in which the defendant is convicted and who prior thereto had been a party to a proceeding under this chapter.
“(5) A judge or issuing authority for use in determining bail, provided that such inspection is limited to orders of delinquency adjudications and dispositions and petitions relating thereto, orders resulting from disposition review hearings and histories of bench warrants and escapes.
“(6) The administrative office of Pennsylvania courts.
“(7) With leave of court,, any other person or agency or institution having a legitimate interest in the proceedings or in the work of the unified judicial system.”

Under these provisions, plaintiffs are prohibited from inspecting the court’s files and records for any proceedings involving the minor defendant because plaintiffs do not come within any of the seven categories listed in section 6307. Information in the files and records of a court will be more accurate and more complete than information within law enforcement records. Consequently, if the legislature wanted to permit private parties who bring civil actions against minors to obtain relevant information regarding a related delinquency proceeding, it would have made court files and records available to the parties. There is no reason why the legislature would have permitted law enforcement records and files concerning a child to be used in civil proceedings while barring the use in civil proceedings of files and records of juvenile court proceedings.

In V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325 (Pa. Super. 1998), aff’d, 556 Pa. 430, 728 A.2d 953 (1999), the plaintiffs, in their own right and on behalf of their daughter, sought damages for physical and sexual abuse which their young daughter suffered, allegedly at the hands of a foster child who had herself been a victim of physical and sexual abuse prior to entering the foster care system. The plaintiffs sued the foster parents and the social service agency that placed the child. The plaintiffs requested, inter aha, court records of proceedings under the Juvenile Act. The plaintiffs contended that they were entitled to the records under subsection (7) which permits inspections with leave of court by any person having a legitimate interest in the proceedings.

The Superior Court rejected this contention, stating:

“Analysis of the cited language in the context of the statutory section as a whole persuades us that the term, ‘person with a legitimate interest in the proceedings’ in the cited subdivision refers only to a person who has a direct involvement with the juvenile court proceedings or the events in question, in this case the dependency proceedings. The statutory exception to confidentiality thus does not extend to an unrelated civil plaintiff seeking information about the proceedings for purposes of prosecuting a personal injury lawsuit based on a separate incident involving the foster child. We therefore conclude that plaintiffs are not entitled to access to information in records of juvenile court proceedings under the express terms of the Juvenile Act.” 705 A.2d at 1331. (footnote omitted)

The trial court had ruled that while the discovery which plaintiffs sought was not covered by any of the exceptions to section 6307, section 6307 should not be strictly construed because this would cripple the plaintiffs’ ability to prove their case. The Superior Court responded to this argument as follows:

“As discussed in section III, above, the plaintiffs do not fall within any of the exceptions to confidentiality enumerated in the Juvenile Act. Moreover, the discovery they request is not constitutionally required, nor does it promote the purposes of the Act. Accordingly, we must conclude that the judgment of the legislature in protecting the interests of dependent children, their families, and the system put in place to aid and rehabilitate them should not be overridden. The discovery of materials protected by the Juvenile Act thus should not have been permitted by the trial court.” Id. at 1337. (footnote omitted)

I next address plaintiffs’ contention that their discovery request is permitted under 42 Pa.C.S. §6354(b)(3) which provides that an order of disposition or other adjudication in a proceeding under the Juvenile Act may be used against the child: “(3) if relevant, where he has put his reputation or character in issue in a civil matter.”

This provision does not apply to the discovery request that is the subject of this opinion because section 6354(b)(3) involves only information concerning the disposition of the child. Furthermore, it does not appear that the minor defendant has put his reputation or character in issue.

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

ORDER

On September 18, 1999, upon consideration of motion to quash subpoena/motion for protective order, it is hereby ordered that the motion is granted.

      . 42 Pa.C.S. §6308(b) governs public availability of law enforcement records and files. It prohibits disclosure, subject to exceptions for children who were 14 or more years of age at the time of the alleged conduct. This section is inapplicable to this case because the minor defendant was under 14 at the time of the alleged conduct.

      . The proceedings governed by the Juvenile Act are set forth at 42 Pa.C.S. §6303. The Act applies to proceedings in which a child is alleged to be delinquent or dependent; transfers from criminal proceedings; proceedings involving dispositions affecting other jurisdictions; proceedings under the Interstate Compact on Juveniles; and proceedings in which a child is charged with a summary offense arising out of an episode that also involves a delinquent act for which a petition is filed.

      . This opinion does not cite any case law construing section 6308(a)(1) and (2) because neither counsel for the parties nor my law clerk found any reported cases.

      . Section 6307 refers to files and records of the court “in a proceeding under this chapter.” Section 6308 refers to “[l]aw enforcement records and files concerning a child.” The explanation for the broader language within section 6308 is that law enforcement records and files may refer to investigations and arrests for which delinquency proceedings were not instituted.


author: KLEINEELTER, J.,

text:
    Dupes v. Lockard
    C.P. of Dauphin County,
    no. 2143 S 1997.

      James Pannebaker, for plaintiff.

      James G. Nealon III, Karen Durkin and Jarad W. Handelman, for defendant.
    August 30, 1999
   KLEINEELTER, J.,

It has recently been dubbed the “Capital Beltway,” a heavily traveled interstate highway that circles the greater Harrisburg area. A section of this beltway, technically 1-83, just north of the Route 581 connector, is the situs of the chain collision which gave rise to the instant complaint of operator negligence.

Plaintiff Kathy A. Dupes was the operator of the second (or middle) car involved. Defendant Michael J. Lockard was the operator of the first (or lead) vehicle. Defendant Jonathan E. Palmos was the operator of the third vehicle in the chain.

At a jury trial conducted before this court on March 3-5, 1999, the witnesses described the events as follows:

“Lockard: Cars or vehicles in front of me began to brake. They were braking hard because I was coming up on them pretty quick.
“I started braking hard, and that’s when the back end of my car started to fishtail to the — counterclockwise to the right, and then it was kind of like a 45-degree angle. I hit the median barrier and Mrs. Dupes’ car hit me from behind, and I felt the second impact. It was Mr. Palmos’ vehicle hitting her vehicle.” (N.T. 75.)
“Dupes: I remember being in the passing lane. I remember there was a white car in front of me, and I knew there was traffic behind me. Going down the highway, I remember there was a white car in front of me. There was also cars in the right lane beside me.
“For some unknown reason, this white car in front of me started to do a fishtail number back and forth in the passing lane. I tried — let’s see.
“I braked my car, thinking that he’s going to straighten the car out eventually. The whole time he’s fishtailing, and all of a sudden, he just swerves to the left and wildly hits the center median and completely stops broadside in my lane.
“Q: And what happened at that point?
“Dupes: I still had the brake on. My car hit his car, and I was hit in the rear....
“Palmos: I was — as I was coming up to, where 581 and 83 come together, it got pretty congested. And, well, you know how whenever it gets really congested when you’re driving, you can see through the back of a person’s windshield and through the front of their windshield and see the car in front of them? And I was just pretty much doing that.
“And then, I saw Mr. Lockard’s car — I saw the rear end of his car come up to — you know, where it naturally says that the brake — braking really hard, because all the weight goes to the front of the car.
“And then, the car — then the car started to, slide sideways. As then as soon as I saw his — his—actually, whenever I first saw, his rear end come up, I slammed on my brakes really hard to the point where they were — they start sliding, and then that’s whenever I started watching both vehicles, because I wanted to make sure — I wanted to make sure I could do what I could do so that nobody— or, try to keep other people from getting hurt or anything.
“And that’s when Mr. Lockard’s car started to go sideways, and whenever it started to go — whenever it started to go sideways, that’s whenever the front left-hand corner of it hit the concrete barrier.
“As soon as it hit the concrete barrier, it stopped. It just stopped it right, pretty much right in its tracks, and Mrs. Dupes hit the side of Mr. Lockard’s vehicle, and then — then I hit the back of Mrs. Dupes.” (N.T. 55-56.)

The jury was presented with an interrogatory form of verdict slip. Question no. 1 asked: “Do you find that any of the defendants were negligent?” As to both Lockard and Palmos, the jury answered this question “no.” Following the instructions on the verdict form, the jury then returned to the courtroom without addressing the issues of causation, Dupes’ contributory negligence, comparative negligence, or damages.

Dupes has now filed motions for post-trial relief in the nature of a motion for a new trial and for judgment n.o.v.

Dupes’ motion for a new trial claims error by the trial court in instructing the jury on the principles of the “assured clear distance ahead rule” and on the doctrine of “sudden emergency.” Although these issues are raised separately in Dupes’ argument headings, the discussion of one necessarily involves the other. In fact, Dupes’ brief argues that “it was improper to instruct the jury that the assured clear distance rule applied to the plaintiff without instructing the jury that if the plaintiff was confronted with a sudden emergency, the assured clear distance rule was not applicable to her.” (Plaintiff’s brief, 2.)

Dupes relies on Papandrea v. Hartman, 352 Pa. Super. 163, 507 A.2d 822 (1986) for the proposition that, where a sudden emergency arises, the “assured clear distance ahead” rale is inapplicable. Actually, what the case holds is that, where the evidence conclusively shows a sudden emergency, the rale is not applicable. “[I]f the facts giving rise to the emergency leave no room for doubt, [then] the issue becomes a matter of law for the judge.” Id. at 169, 507 A.2d at 825, citing Polumbo v. DeStefano, 329 Pa. Super. 360, 366, 478 A.2d 828, 831 (1984).

On the other hand, “it is proper for the court to charge on both points of law if the facts do not conclusively establish the existence of a sudden emergency situation.” Id. at 170, 507 A.2d at 826, citing Elder v. Orluck, 334 Pa. Super. 329, 343-44, 483 A.2d 474, 481-82 (1984). Thus, in every case where sudden emergency is asserted, the trial judge must make a preliminary assessment as to whether the existence of the emergency is a jury question or is clear as a matter of law. Given the fluid and problematic circumstances of modem expressway traffic, it would be a rare case where a court could determine, as a matter of law, that the actions of a driver ahead created a sudden emergency which would excuse what otherwise might be negligence of the plaintiff driver.

Such is the case at bar. The actions of the Lockard vehicle were claimed by Dupes to create a sudden emergency. But did they? Certainly what happened to Lockard created a hazard in front of Dupes; but was her failure to avoid hitting him a product of a sudden emergency? Or, was she following too closely, traveling too fast, or inattentive to the traffic ahead? “[A] person cannot avail himself of the protection of this doctrine if that person was himself driving carelessly or recklessly.” Lockhart v. List, 542 Pa. 141, 151, 665 A.2d 1176, 1180 (1995). These questions could not be answered as a matter of law and were clearly for the jury. Id.

Dupes also argues that the court failed to charge the jury that the “sudden emergency doctrine” could be applied to Dupes. Such is not the case. When discussing the principles of negligence, assured clear distance, and a “sudden change of circumstances” (term used in our charge) we applied the instruction to all of the parties. We instructed: “[I]n light of such a sudden change of circumstances, an operator — all of these operators are required to respond reasonably. . . . and I’ve used this male pronoun here, ‘he,’ in a lot of these instructions, but that should be heard by you as he or she under the circumstances of this particular case.” (N.T. 179.)

There is nothing mystical in the term “sudden emergency.” Nor, for that matter, is there anything extraordinary in the term “assured clear distance ahead.” Lawyers and judges are apt to attach some particular reverence to these phrases; but, stripped of their doctrinal veneer, they are nothing more than common-sense applications derived from the general principles of negligence.

We instruct a jury that negligence is the doing — or failing to do — some act which a reasonable, prudent person would do — or not do — under the circumstances presented. Even without a vehicle code mandate to operate one’s vehicle so as to be able to stop within the assured clear distance ahead, it would still be the reasonable, prudent thing to do. Likewise, a reasonable, prudent driver is not held to foresee every imaginable obstacle which might suddenly emerge in his path. Thus, both the assured clear distance rule and the sudden emergency doctrine are only formalized ways of stating the obvious; i.e., the reasonable driver should maintain a speed and distance that will allow safe stopping under normal circumstances. When the abnormal or unforeseen occurs, the operator is excused.

In today’s world of expressway driving, a jury must apply its own standard as to what is normal, what is foreseeable, and how a “reasonable man” should operate his vehicle. In this case, the jury was instructed to apply the general principles of negligent operation to a vehicle operator on the Capital Beltway in rush-hour traffic. They were instructed on assured clear distance and a “sudden change of circumstances.” Upon review of the record, our instructions, taken as a whole, adequately informed the jury of the legal principles applicable to this case. Cf., Commonwealth v. Williams, 522 Pa. 287, 561 A.2d 714 (1989).

Even were we to assume for argument that the instruction to the jury on sudden emergency was flawed, a new trial would be warranted only where the alleged error was prejudicial to the plaintiff. Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). The doctrine of sudden emergency exists solely as a defense to a claim of negligence. As applied to a plaintiff, the defense only has viability on a claim of contributory negligence. It must be obvious that the entire issue becomes moot if the jury never comes to the point of considering contributory negligence. Such is the case instantly.

One of the fringe benefits of a verdict form using interrogatories is that it permits some analysis of the jury’s rationale in returning a verdict. In this case, the first question to be answered by the jury was, “Do you find that any of the defendants were negligent?” The jury answered “no” both as to Lockard and to Palmos.

One can only conclude that the jury determined these operators to be driving prudently, within the assured clear distance ahead; or, if not, that they were confronted with a sudden change of circumstances which excused their inability to stop safely. In either event, the jury never reached the question of Dupes’ negligence. As to her operation, assured clear distance and sudden emergency became irrelevant.

A similar situation was presented in Sacco v. City of Scranton, 115 Pa. Commw. 512, 540 A.2d 1370 (1988).

“This court has held that the denial of a new trial will not be reversed unless the appellate court, upon [re] viewing the jury instructions as a whole, finds that those instructions have caused prejudicial error... . Upon reviewing the jury instructions in this case, we cannot conclude that the instructions have caused prejudicial error. Any error caused by the trial court’s instructions was harmless in light of the fact that the jury never reached the question of appellant’s comparative negligence. The jury determined only that appellee was negligent but that such negligence was not a substantial factor in bringing about appellant’s harm.” Id. at 520, 540 A.2d at 1374. (citation omitted) (emphasis in original)

In the present case, the applicability of either the assured clear distance rule or sudden emergency doctrine to Dupes was dependent on the jury’s reaching consideration of her contributory negligence. Since it did not, any error could not have been prejudicial to her.

Dupes’ final contention is that she is entitled to judgment n.o.v. since the verdict as to defendants Lockard and Palmos was against the weight of the evidence and contrary to law. As to Palmos, Dupes points to his testimony that he was doing “about 55” (the speed limit), the traffic was congested, and that he was following the Dupes car by “about two car lengths.” (N.T. 54-55, 58.) Dupes would have us declare that under these circumstances, Palmos was negligent as a matter of law since he could not stop within the assured clear distance when Dupes suddenly began to brake.

As for Lockard, Dupes points to his testimony indicating a speed of 60 m.p.h. following traffic at about 250-300 feet. (N.T. 75, 78.)

Dupes argues that in finding neither defendant negligent, the jury must have concluded that she “was solely negligent and the cause of the accident or that none of the parties were negligent and that these things just happen.” (Plaintiff’s brief, 17.)

While we will never know the exact rationale employed by the jury in finding no negligence in either defendant, we do know that the granting of judgment n.o.v. is a drastic remedy and that a court cannot lightly ignore the findings of a duly-selected jury. In considering judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Simmons v. Pacor Inc., 543 Pa. 664, 672, 674 A.2d 232, 236 (1996).

“There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, a court reviews the record and concludes that even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evi-dentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.” Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997), citing Moure v. Raeuchle, 529 Pa. 394, 402-403, 604 A.2d 1003, 1007 (1992).

Beyond peradventure? Could no two reasonable minds doubt or question this verdict? We would like to think that 12 reasonable minds considered the verdict. It is likely that many, if not all, of the jurors who heard this case travel the Capital Beltway, and at rush hour, on a regular basis. While this aging jurist might consider a speed of 55 m.p.h. at two car-lengths distance in rush hour traffic to be imprudent, personal experience shows it to be the rule rather than the exception. Perhaps the jury took this norm to be the act of a reasonable man in assessing the alleged negligence of Lockard and Palmos. Or perhaps, as plaintiff’s counsel suggests, they concluded “that these things just happen.” In either event, we decline to substitute our standards of driving reasonableness for those of the jury.

ORDER

And now, August 30,1999, plaintiff’s motions for post-trial relief are denied.

      . Plaintiff’s motion also claims error in the admission of certain psychiatric evidence; however, this issue is deemed abandoned since it was not briefed. Commonwealth v. Perry, 279 Pa. Super. 32, 420 A.2d 729 (1980).

      . In which case, the court could enter a directed verdict for defendant.


text:
    Roudebush v. Wolfe

      C.P. of Lawrence County,
    no. 10266 of 1998, C.A.

      George P. Micacchione, for plaintiffs.

      C. Gus Kwidis, for defendants.

      David A. Crissman, for interpleader claimant.
    September 23, 1999
   PRATT,/.,

On August 18,1994, the minor-plaintiff Nicole Roudebush sustained personal injuries while a guest passenger in a vehicle operated by defendant V. Gail Wolfe as a result of a collision which occurred in Slippery Rock Township, Lawrence County, Pennsylvania. Structured settlement proposals were offered by the defendants and accepted by the plaintiffs totaling $75,000, and consisting of the maximum insurance policy limits available through defendant Allstate Insurance Company, defendant V. Gail Wolfe’s insurance carrier.

As a result of her injuries, the minor-plaintiff required certain medical treatment for which expenses were incurred. These expenses were paid by Northwest through the employer of guardian-plaintiff Tony Roudebush. Northwest then asserted a subrogation lien against the structural settlement proposals prior to the settlement’s approval by the court. Seeking a court order to inter-plead the insurance policy limit of $75,000 into court pending resolution of Northwest’s subrogation lien, Allstate filed a petition for interpleader on March 12, 1998. Northwest, as an interpleader claimant, then filed an answer thereto on April 1,1998. Pursuant to a rule to show cause, the court granted Allstate’s petition and ordered the $75,000 to be deposited with the prothonotary of Lawrence County and scheduled a conference for May 26, 1998 to resolve the disputes between the plaintiffs and the interpleader claimant, Northwest. The conference was ineffective, and the court scheduled a hearing and directed the plaintiffs and Northwest to file briefs.

After a hearing, and with only Northwest filing a brief, the court issued an order on May 27,1999, directing that Northwest’s subrogation claim in the amount of $63,461.21 be paid from the interpleaded amount deposited with the prothonotary of Lawrence County by Allstate. From the court’s May 27,1999 order, plaintiffs filed a timely appeal, but failed to file a concise statement of matters complained of on appeal pursuant to PaJR.A.P. 1925(b), contrary to this court’s July 2, 1999 order. This opinion is issued in satisfaction of Pa.R.A.P. 1925(a).

At the hearing of Allstate’s petition, plaintiffs asserted that their underlying cause of action for personal injuries does not seek damages for medical expenses and, therefore, Northwest has no subrogation right. However, the applicable health insurance policy under the Northwest medical plan provides that Northwest is subrogated to any and all rights of recovery that the covered plaintiffs have against those who caused the minor-plaintiff’s injuries. Specifically, the medical plan states:

“[immediately upon payment of any benefits under the plan, Northwest Airlines Inc. shall be subrogated to any and all of the claimant’s rights of recovery against any person or organization whose course of conduct or action caused or contributed to the loss for which payment was made under the plan.” Northwest Airlines’ “Group Benefit Plans Booklet for Management Employees,” p. 72.

Additionally, Northwest’s medical plan is a self-funded plan governed by the Employee Retirement and Income Security Act, 29 U.S.C. §1001. ERISA provides that subrogation provisions are enforceable within any plan against a plaintiff falling under ERISA regardless of any state law or rule that would otherwise limit the medical plan’s subrogation rights. Therefore, this court must enforce the provisions of the medical plan as written. It is irrelevant under the medical plan’s provisions if the plaintiffs are not pursuing medical expense damages in their personal injury action, because the medical plan is sub-rogated to all rights of recovery. See MacIntosh v. Pacific Holding Company, 992 F.2d 882 (8th Cir. 1993), cert. denied, 510 U.S. 965 (1993); FMC Corporation v. Holliday, 498 U.S. 52, 112 L.Ed.2d 356, 111 S.Ct. 403 (1990); Associated Hospital Service of Philadelphia v. Pustilnik, 262 Pa. Super. 600, 396 A.2d 1332 (1979). Hence, this court concludes that Northwest is entitled to be paid its subrogation lien as compensation for the medical expenses paid by Northwest as a result of the minor-plaintiff’s injuries.

Consequently, the court’s order of May 27, 1999, directing that Northwest’s subrogation claim in the amount of $63,461.21 be paid from the interpleaded amount of $75,000 was proper and should be affirmed.

Parenthetically, as the appealing parties, the plaintiffs have failed to file a concise statement of matters complained of on appeal as directed by the court; the plaintiffs’ appeal should be summarily quashed by the Superior Court.

ORDER

The attached opinion shall be filed of record. The pro-thonotary is directed to immediately transmit the record to the Superior Court.


author: WALKER, P.J.,

text:
    Johnson v. Tray
    C.P. of Fulton County,
    no. 241 of 1997-C.

      Duane S. Barrick, for plaintiff.

      Michael A. Sosnowski, for defendant.
    October 4, 1999
   WALKER, P.J.,

FACTUAL AND PROCEDURAL HISTORY

On August 14, 1997, plaintiffs filed a medical malpractice complaint in Franklin County against the defendants. Defendants filed preliminary objections to the complaint objecting to venue. By stipulation of the parties and an order of court, the case was transferred to Fulton County on November 14, 1997. Defendants answered the complaint and asserted new matter. Plaintiffs replied to defendants’ new matter.

On February 4,1999, plaintiffs served defendants with interrogatories and requests for production of documents. The interrogatories for defendant Fulton County Medical Center related to its knowledge of Dr. Tray’s professional history prior to joining FCMC, any disciplinary action or inpatient treatment of Dr. Tray, and any information gathered by FCMC regarding Dr. Tray. Plaintiffs requested documents from FCMC which evidence the information asked in the interrogatories. The interrogatories for Dr. Tray related to his alcohol treatment, his current hospital privileges and application for privileges since January 1996, his bankruptcy, and his past employment at Tate Engineering.

On March 17, 1999, plaintiffs’ counsel wrote a letter to defendants’ counsel asking when the plaintiffs could expect answers to the overdue discovery. Defendants’ counsel replied, on April 13,1999, that he hoped to provide plaintiffs with answers to the discovery in the near future. Plaintiffs filed a motion to compel, and a rule was issued on May 12,1999, giving defendants 20 days to provide the requested answers and documents. Subsequently, defendants answered the overdue discovery, objecting to the majority of the discovery on the grounds that the information sought was irrelevant and protected by the Pennsylvania Peer Review Protection Act.

A second motion to compel was filed by plaintiffs requesting that the court strike the defendants’ objections and order defendants to file full and complete responses to plaintiffs’ interrogatories and requests for production of documents within 20 days. On August 30, 1999, an order to that effect was entered. The August 30, 1999 order also required defendants to pay plaintiffs’ counsel fees for the motions to compel. That same day, defendants filed a motion for protective order, seeking to have their objections to the interrogatories and requests for production of documents sustained. Plaintiffs filed a reply to defendants’ motion for protective order.

DISCUSSION

The purpose of the Pennsylvania Peer Review Protection Act is to encourage medical care providers to inform hospital committees about the performance of medical professionals and hospital providers. Plappert v. Kelley, 21 D.&C.4th 313, 315 (1993). This free exchange of information allows the committees to review and evaluate the qualifications and abilities of hospital employees. Id. at 315.

Information or documents presented to a review committee are not subject to discovery unless this information is available from some other source. 63 Pa.C.S. §425.4; Plappert, 21 D.&C.4th at 316. In other words, information obtainable from sources other than peer review meetings is subject to discovery. 63 Pa.C.S. §425.4; Plappert, 21 D.&C.4th at 316. “Information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee ....” 63 Pa.C.S. §425.4.

In Plappert, the plaintiffs sought information regarding staph infections. Plappert, 21 D.&C.4th at 316. The defendant argued that infection rates and infection control had been discussed during peer review. Id. at 316-17. The court found that this information was available from other sources such as original records or files. Id. at 316. As a result, the court found that this information was discoverable. Plappert at 316. If it were enough that this information was discussed at peer review, “any type of information or statistical data, regardless of its significance, relevance or necessity, could not be considered discoverable if mentioned or discussed in the setting of a peer review meeting.” Id. at 317. Thus, a party may not make information, documents, or records immune from discovery simply by discussing these items at a peer review committee meeting.

In the present case, plaintiffs seek information from FCMC regarding any disciplinary action or inpatient treatment of Dr. Tray while he practiced at FCMC and any information gathered by FCMC regarding Dr. Tray, including information from the National Practitioner Data Bank and other hospitals. Furthermore, plaintiffs sought information about FCMC’s knowledge of Dr. Tray’s professional history prior to joining FCMC. This information included FCMC’s knowledge about Dr. Tray’s bankruptcy, Dr. Tray entering the Pennsylvania Physicians Help Program and Dr. Tray’s privileges at other hospitals and his Delaware medical license being revoked.

This information sought by plaintiffs’ discovery is otherwise available from other sources and, thus, subject to discovery by plaintiffs. As in Plappert, this information is available from original records and files that FCMC has kept. The fact that this information may have been discussed at a peer review meeting does not prevent plaintiffs from obtaining this information through discovery. As a result, plaintiffs’ interrogatories and requests for production of documents directed to FCMC are not prohibited by the Pennsylvania Peer Review Act.

Next, defendants argue that the information sought by plaintiffs is beyond the scope of discovery. In addition to the interrogatories directed to FCMC, plaintiffs directed interrogatories to Dr. Tray. These interrogatories related to Dr. Tray’s alcohol treatment, current hospital privileges, and his past employment at Tate Engineering.

“A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action_” Pa.R.C.P. 4003.1(a). Information that would be inadmissible at trial is subject to discovery if the information sought appears reasonably calculated to lead to the. discovery of admissible evidence. Pa.R.C.P. 4003.1(b).

With regard to the interrogatories and requests for production of documents directed to FCMC, the court finds that these discovery requests are relevant to the lawsuit. The information sought by plaintiffs regarding FCMC’s knowledge of Dr. Tray is relevant to FCMC’s liability. Similarly, the interrogatories directed to Dr. Tray are relevant. The information regarding Dr. Tray’s alcohol treatment is relevant to his liability. The information regarding his current hospital privileges, bankruptcy, and past employment could lead to admissible evidence and is thus permissible.

ORDER

October 4,1999, after consideration of defendants’ motion for protective order and plaintiffs’ reply, defendants’ motion is denied. Defendants are ordered to provide full and complete discovery responses to the requested discovery within 20 days of service of this order. Defendants shall pay plaintiffs’ counsel fees for all pleadings regarding the motions to compel pursuant to the court’s August 30,1999 order.


author: CHESLOCK, J.,

text:
    Faust v. Stish

      C.P. of Monroe County,
    no. 2522 Civil 1999.

      Mark R. Kehoe, for plaintiff.

      James J. McCarthy and Charles J. Fonzone, for defendant.
    September 10, 1999
   CHESLOCK, J.,

Plaintiff commenced this action by filing a complaint against defendants on March 25,1999. Defendants Stish and Laubner filed a joint answer and new matter on April 20, 1999. On April 26, plaintiff filed an answer to defendants’ new matter. On June 4,1999, defendant William Cowell filed preliminary objections to plaintiff’s complaint and a memorandum of law in support thereof. Plaintiff filed an answer and a memorandum of law in opposition to defendant Cowell’s preliminary objections on June 23, 1999. On July 9, 1999, defendant filed a sur reply to plaintiff’s answer to defendant’s preliminary objections. Plaintiff filed a reply to defendant’s sur reply on August 16, 1999. Oral argument was heard before the court on September 7, 1999. We are now ready to dispose of the preliminary objections.

On May 2,1997, the plaintiff and defendant Stish were involved in a motor vehicle collision. Defendant Stish, operating a vehicle with a driver’s permit and accompanied by defendant Laubner, was racing a vehicle operated by defendant Cowell. As the defendants’ vehicles passed plaintiff’s vehicle, defendant Cowell applied his brakes. Defendant Stish lost control of his vehicle, cutting in front of the plaintiff’s vehicle. Defendant Stish’s vehicle forced plaintiff’s vehicle into the guardrail. As a result, plaintiff was injured.

Defendant’s preliminary objection is in the form of a motion to strike the punitive damages claim of plaintiff’s complaint for failure to comply with Rule 1019(a) of the Pennsylvania Rules of Civil Procedure. Rule 1019(a) states “[t]he material facts on which a cause of action or defense is based shall be stated in summary form. Pa.R.C.P. 1019(a). Defendant alleges that plaintiff’s complaint contains no material facts that support allegations that plaintiff is entitled to punitive damages.

The Pennsylvania courts have adopted the Restatement (Second) of Torts §908. According to the Restatement, punitive damages are damages awarded against a person to punish him for his outrageous conduct and to deter him and others from similar conduct in the future. Restatement (Second) of Torts §908(1), (2). Punitive damages must be based on conduct that is “ ‘malicious,’ ‘wanton,’ ‘reckless,’ ‘willful’ or ‘oppressive.’ ” Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984), quoting Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (Pa. 1944); see also, Moran v. G. & W.H. Corson Inc., 402 Pa. Super. 101, 586 A.2d 416 (1991). Comment (b) to section 908 provides:

“The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others [which] may provide the necessary state of mind to justify punitive damages. ” (emphasis added) Restatement (Second) of Torts §908, comment (b); Moran, 402 Pa. Super, at 113, 586 A.2d at 423.
“Reckless indifference to the rights of others” means that the “actor has intentionally done an act of unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 745 (1980), quoting Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965); see also, Martin v. Johns-Mansville Corp., 508 Pa. 154, 494 A.2d 1088 (1985).

In Smith, the defendant struck plaintiff’s minor child with her car. 283 Pa. Super at 119, 423 A.2d at 744. Plaintiff’s complaint averred that the defendant drove her car in a “wanton and reckless manner” and demanded punitive damages. Id. Specifically, plaintiff alleged that defendant was driving too fast for conditions and that defendant did not have her car under proper and adequate control. Id. at 119, 423 A.2d at 745. The court concluded that plaintiff failed to plead any facts that indicated defendant’s conduct was outrageous, and that plaintiff’s demand for punitive damages violated Pa.R.C.P. 1019(a). Therefore, said demand was stricken from the plaintiff’s complaint. Id. According to the court, the pleading was insufficient because the issue of whether defendant’s conduct was outrageous depended upon the nature of the conditions and the reasons why defendant lost control of her car. Id. at 120, 423 A.2d at 745. Here, defendant Cowell contends that plaintiff’s claim for punitive damages suffers from “precisely the same defects in pleading punitive damages as the complaint in Smith.” (See defendant’s memorandum of law in support of preliminary objections, p. 4.) We disagree.

In deciding whether to impose punitive damages, a court should not look at the end result, but at the “act itself together with all the circumstances including the motive of the wrongdoers and the relations between the parties . . . Chambers v. Montgomery, 411 Pa. 339, 345, 192 A.2d 355, 358 (1963). “The state of mind of the actor is vital.” Feld, 506 Pa. at 396, 485 A.2d at 748.

The instant matter is distinguishable from Smith. The facts of Smith give no indication that defendant’s collision with plaintiff’s minor child was anything other than an accident caused by mere negligence. On the other hand, in the instant matter, the defendants were intentionally racing at high speeds, at 11:30 p.m. in the evening, on a public highway. Furthermore, defendant Stish was an inexperienced driver, operating his vehicle with only a driver’s permit. In addition, defendant Cowell received a police citation for racing on highways.

Defendant argues that his actions were not reckless, willful and/or wanton and will not sustain a claim for punitive damages because he merely applied his brakes and was not involved in any collision with any other named parties to this action. In one sense, the defendant Cowell is correct; mere application of one’s brakes is not reckless. However, applying one’s brakes while traveling at a high rate of speed with the knowledge that there is a vehicle directly behind you also traveling at a high rate of speed and other vehicles on the same roadway moving at a much slower speed may constitute reckless indifference to the right of other motor vehicle occupants to safely travel on the Commonwealth’s roadways. We conclude that the plaintiff’s complaint contains material facts that could warrant the imposition of punitive damages and, therefore, complies with Rule 1019(a).

Furthermore, Rule 1019(b) states that “Malice, intent, knowledge and other conditions of mind may be averred generally.” Pa.R.C.P. 1019(b). Here, plaintiff alleges that the defendant operated his vehicle with “willful and wanton disregard of the rights and safety of others on the highway including plaintiff.” (See plaintiff’s complaint, ¶23.) This is a general averment of defendant Cowell’s state of mind and is sufficient under Rule 1019(b).

Accordingly, we enter the following order:

ORDER

And now, September 10, 1999, defendant Cowell’s preliminary objections are hereby dismissed.


text:
    Christy v. Wordsworth-At-Shawnee

      C.P. of Monroe County,
    no. 7070 Civil 1998.

      Brett J. Riegel, for plaintiff.

      Frank Baker III, for defendant.
    June 25, 1999
   CHESLOCK, J.,

Plaintiffs commenced this action by filing a praecipe for writ of summons on October 28, 1998. On March 26, 1999, plaintiffs filed a motion to compel answers to pre-complaint discovery. On March 29, 1999, this court filed a rule to show cause why plaintiffs’ motion should not be granted. On April 15, 1999, defendants filed an answer to plaintiffs’ motion to compel answers to pre-complaint discovery and praeciped the case for argument. Thereafter, defendants filed a brief in opposition to the motion to compel pre-complaint discovery. On May 24,1999, plaintiffs filed a brief in support of the motion. Arguments were heard on June 7, 1999. We are now ready to dispose of this matter.

Plaintiffs seek answers to interrogatories and documents relating to the minor plaintiff and minor defendant. Defendants argue that the information sought by plaintiffs is protected by the Mental Health Procedures Act, the Mental Health/Mental Retardation Act of 1966 and the psychologist/patient privilege. Defendants contend that plaintiffs are not entitled to the information sought. Plaintiffs contend that the argument set forth by defendants is inapplicable to the case sub judice and the information should be released. We agree with defendants that the mental health records are confidential and should not be released to plaintiffs.

In support of this conclusion, we rely on the holding in Hahnemann University Hospital v. Edgar, 74 F.3d 456 (3d Cir. 1996). In Hahnemann, the court had to determine whether disclosure by petitioner of the mental health records of two male patients who allegedly raped respondents’ daughter would violate the Pennsylvania Mental Health Procedures Act. Respondents filed a negligence action against petitioners for misconduct in failing to protect their daughter from the two perpetrators. Respondents requested the mental health records of the two alleged perpetrators in support of the case against petitioner. Petitioner objected on the basis that such disclosure would violate the MHPA. Petitioner filed a writ of mandamus with the court in order to resolve the issue.

Section 7111 of the MHPA provides the following:

“All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
“(1) those engaged in providing treatment for the person;
“(2) the county administrator, pursuant to section 110;
“(3) a court in the course of legal proceedings authorized by this Act; and
“(4) pursuant to federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a federal agency.” 50 PS. §7111 (a).
“The purpose of the MHPA is to further the policy of the Commonwealth of Pennsylvania ‘to seek to assure the availability of adequate treatment to persons who are mentally ill.’ ” Hahnemann University Hospital, 74 F.3d at 463, quoting 50 P.S. §7102. The language contained in section 7111 of the MHPA “indicates that disclosure of treatment records is forbidden unless one of the statutory exceptions applies.” Id. “When none of the four exceptions to section 7111 of the MHPA applies, the Pennsylvania state courts consistently have denied requests for production of documents that the statutory privilege [of section 7111] covers.” Id. “[T]he MHPA creates a much broader protection, forbidding the disclosure of any document ‘concerning persons in treatment’ regardless of the contents of that document.” Id. at 465.

This court is constrained to follow the holding in Hahnemann University Hospital. In the instant case, plaintiffs seek redress for a sexual assault allegedly perpetrated by defendant Matthew Mutchler, misidentified as defendant Matthew Muth, upon their son while they were in a mental health treatment center. If the Hahnemann University Hospital court could not force disclosure by petitioners, then we cannot force defendant Wordsworth-At-Shawnee to disclose the mental health records in their possession.

Although we will not permit disclosure of the mental health records in possession of defendant Wordsworth-At-Shawnee, we shall permit plaintiffs to inspect the juvenile record of the alleged perpetrator, defendant Matthew Mutchler. This court finds that preventing plaintiffs from obtaining certain information concerning the attack is inherently unfair. Plaintiffs should not be prevented from the court files because defendant Matthew Mutchler was fortunate to be a juvenile at the time of the offense. Therefore, plaintiffs should be permitted to examine all portions of the juvenile file of defendant Matthew Mutchler, with the exception of paragraph 8 of the juvenile petition, as part of the pre-complaint discovery.

Accordingly, we enter the following order:

ORDER

And now, June 25,1999, plaintiffs’ motion to compel discovery is granted in part and dismissed in part. The mental health records are protected from disclosure and not subject to discovery by plaintiffs. Plaintiffs shall be permitted to examine the juvenile file of Matthew E. Mutchler, with the exception of paragraph 8 of the juvenile petition which shall be redacted.