author: MINORA, J.,

text:
    School District of Scranton v. Fowler

      C.P. of Lackawanna County,
    no. 98-CV-6134.

      Paul A. Kelly for plaintiffs.

      Brian J. Cali, for defendants.
    April 17, 2000
   MINORA, J.,

Presently before the court are the defendants’ preliminary objections to the plaintiffs’ amended complaint. At issue is whether the defendant, Norman Fowler, has operated his business such that he is personally liable for its taxes. Oral arguments were heard on February 23,2000 and both parties have submitted their respective briefs, making the matter ripe for disposition. Based upon their briefs and oral arguments, and for reasons discussed below, the defendants’ preliminary objections are overruled.

FACTUAL HISTORY

On December 16, 1998, the School District of Scranton and the City of Scranton filed a complaint alleging that Norman Fowler and Fowler Floor and Wall Covering were liable for unpaid business privilege and/or mercantile taxes. The defendants subsequently filed preliminary objections to the plaintiffs’ complaint asserting, inter alia, the plaintiffs inappropriately identified Mr. Fowler as jointly liable for the taxes owed by Fowler Floor and Wall Covering. On May 26, 1999, Judge Cottone of the Lackawanna County Court of Common Pleas sustained the preliminary objections and granted the plaintiffs 30 days to amend. On June 29, 1999, the plaintiffs filed an amended complaint which again named Norman Fowler as jointly liable for the taxes owed by Fowler Floor and Wall Covering. The defendants have renewed their preliminary objections to this.

DISCUSSION

Initially, it must be pointed out that this memorandum concerns the disposition of preliminary objections in the nature of a demurrer. A demurrer under the Pennsylvania Rules of Civil Procedure is a preliminary objection, asserting the legal insufficiency of the pleading. Pa.R.C.P. 1028(a)(4) (1999). A demurrer challenges the legal sufficiency of a complaint by alleging its failure to set forth a cause of action upon which the court can grant relief under any theory of law. PennDOT v. Wilkinsburg Penn Joint Water Authority, 740 A.2d 322, 324 (Pa. Commw. 1999). The test of a demurrer is whether the facts averred in a pleading, if true, are legally sufficient to state a cause of action for which relief may be granted. Id.

There are two issues before the court. The first issue is whether the plaintiffs’ amended complaint sufficiently alleges a failure to adhere to corporate legal formalities, thus allowing the court to “pierce the corporate veil” and hold Mr. Fowler personally liable for any unpaid corporate taxes. The second issue is whether the plaintiffs have pled sufficient facts to hold Mr. Fowler liable under a participation theory.

I. Piercing the Corporate Veil

Pennsylvania law does not favor the remedy of piercing the corporate veil. As such, there is a strong legal presumption against it. Miners Inc. v. Alpine Equipment Corp., 722 A.2d 691, 694 (Pa. Super. 1998), citing Lumax Industries Inc. v. Aultman, 543 Pa. 38, 41-43, 669 A.2d 893, 895 (1995). The court must start from the general proposition that the corporate entity should be recognized unless specific and unusual circumstances call for an exception. Id. The reason behind this policy is to maintain the theoretical integrity of the corporate entity. Miners, supra at 694, citing Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir. 1967).

The plaintiffs argue that the corporate veil should be pierced because the corporation has failed to follow corporate formalities specifically by failing to keep a ledger, a corporate stock book, minutes of meetings, and commingling funds. Plaintiffs’ brief, p. 3. Disregarding corporate formalities is a legitimate reason for piercing the corporate veil in Pennsylvania. Longenecker v. Commonwealth of Pennsylvania, 142 Pa. Commw. 130, 133, 596 A. 2d 1261, 1262 (1991), citing Kaites v. Commonwealth of Pennsylvania, Department of Environmental Resources, 108 Pa. Commw. 267, 273-74, 529 A.2d 1148, 1151 (1987). To counter this allegation, Norman Fowler merely denies that the corporation has failed to adhere to the corporate formalities. Defendants’ brief, p. 6. Because the plaintiffs’ claim (when accepted as true for the purposes of a demurrer) presents a legally sufficient claim as to this issue, the court must overrule the defendants’ preliminary objection.

II. Participation Theory

The plaintiffs also argue that Norman Fowler is liable under a participation theory. In Pennsylvania, the participation theory does not impose liability predicated on a finding that the corporation is an alter ego of an individual corporate officer. Rather, under this theory, liability attaches where the record establishes the individual’s participation in tortious activity. Kaites, supra at 273, 529 A.2d at 1151, citing Wicks v. Milzoco Builders Inc., 503 Pa. 614, 470 A.2d 86 (1983). However, although the individual may be held liable for misfeasance, he may not be held liable for simple nonfeasance. Kaites, supra at 274, 529 A.2d at 1151. In support of their contention, the plaintiffs assert that Mr. Fowler, through his position as corporate officer, failed to file the corporation’s business privilege and/or mercantile taxes despite being notified that the taxes were owed. Plaintiffs’ brief, p. 5. The question which now presents itself is whether the nonpayment of the corporation’s taxes amounts to something more than simple nonfeasance.

The Superior Court has relied on the following distinction between misfeasance and nonfeasance:

“[N]egligence might consist not only of ‘nonfeasance, that is, omitting to do, or not doing, something which ought to be done, which a reasonable and prudent man would do,’ but also of ‘a misfeasance, that is, the doing of something which ought not be done, something which a reasonable man would not do, or doing it in such a manner as a man of reasonable and ordinary prudence would not do it, in either case leading to mischief or injury.’ ” Brindley v. Woodland Village Restaurant Inc., 438 Pa. Super. 385, 394, 652 A.2d 865, 869 (1995), citing Nelson v. Duquesne Light Co., 338 Pa. 37, 44, 12 A.2d 299, 303 (1940).

Instantly, the plaintiffs have asserted that Mr. Fowler, despite being notified of his failure to file the corporation’s returns and pay its taxes, has continued to refuse to do so. Plaintiffs’ brief, p. 5. If this is accepted as true, then the court has no choice but to overrule the defendants’ preliminary objections as to this issue. Certainly, a reasonable corporate officer who is charged with the responsibility of filing the corporation’s tax returns would have filed them, and the failure to do so would amount to more than nonfeasance or negligence. It could amount (when accepted as true for the purposes of a demurrer) to a misfeasance. As such, the plaintiffs have pleaded their complaint with adequate legal sufficiency, and the defendants’ preliminary objection as to the participation theory is likewise overruled.

An appropriate order will follow.

ORDER

And now, to wit, April 17, 2000, it is hereby ordered and decreed that the defendants’ preliminary objections to the plaintiffs’ amended complaint are overruled. The defendant is further ordered to file his answer and new matter within 20 days of the date of this order.

      . The “alter ego” theory is applicable only where an individual or corporate owner controls the corporation to be pierced and the controlling owner is to be held liable. Miners, supra at 695. A court will pierce the corporate veil on an alter ego theory when there is a showing of injustice after the establishment that corporate owner wholly ignored the separate status of a corporation and so dominated and controlled its affairs that its separate existence was a mere sham. Lycoming County Nursing Home Association Inc. v. Commonwealth, Department of Labor and Industry, Prevailing Wage Appeal Board, 156 Pa. Commw. 280, 290, 627 A.2d 238, 243 (1993).


source: Caselaw Access Project

license: Public Domain

text:
    Schrank v. Borough of Moosic
    C.P. of Lackawanna County,
    no. 95 CV 3249.

      Lawrence A. Durkin and Dawn M. Guzzi, for plaintiffs.

      Daniel T. Brier and Donna A. Walsh, for defendants.
    February 7, 2000
   MINORA, J.,

I. INTRODUCTION AND BACKGROUND

On or about July 10, 1995, this action was commenced through the filing of a writ of summons. A seven-count complaint was filed on February 20, 1996 alleging various claims for slander, negligence, fraud, wrongful termination and loss of consortium. Defendants filed preliminary objections on March 11, 1996 and the Schranks filed a seven-count amended complaint on April 9, 1996.

Count I of the amended complaint alleges that councilpersons Dolores Zurek, Robert Gronski, Maryann Nawrocki and Germaine Helcoski made slanderous statements concerning Mr. Schrank during the January 4, 1994 official borough council meeting. (Amended complaint ¶¶42-45.) Count II purports to state a cause of action for slander against Moosic Borough for the same alleged statements under the doctrine of respondeat superior. (Id. ¶¶46-48.) In Count III, Mr. Schrank alleges that former Mayor William McDonough, the mayor of Moosic Borough on January 4, 1994, was negligent and acted fraudulently in purportedly removing his name from the list of officers submitted to council on January 4, 1994. (Id. ¶¶49-53.) Count IV purports to state a claim for unlawful termination. (Id. ¶¶52-55.) Finally, Barbara Schrank alleges derivative claims for loss of consortium against the councilpersons, Moosic Borough and Mayor McDonough in Counts V through VII, respectively. (Id. ¶¶56-64.)

Defendants again filed a second set of preliminary objections on April 29,1996, which were granted in part and denied in part on July 25, 1996.

Specifically, the court sustained, in part, defendants’ demurrer to Count I of the amended complaint and dismissed that count as it relates to councilpersons Nawrocki and Helcoski.

Extensive pretrial discovery including deposition testimony was elicited. On May 14, 1999, the defendants filed this instant motion for summary judgment and a brief in support thereof. On June 16,1999, plaintiffs filed an answer to defendants’ motion for suiúmary judgment and a brief in opposition thereto. Oral argument was conducted on November 16,1999, rendering this matter ripe for disposition.

II. STATEMENT OF LEGAL DEFENSES AND ISSUES RAISED IN DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The defense names the following legal defenses in support of its motion for summary judgment:

(1) The doctrine of absolute privilege accorded high public officials entitles a high public servant to absolute immunity for statements made within the scope of his official duties during an official meeting;

(2) The Pennsylvania Political Subdivision Tort Claims Act affords a municipality absolute immunity from a suit for defamation;

(3) A local agency official is immune from liability under the Pennsylvania Political Subdivision Tort Claims Act for the alleged negligent failure to satisfactorily perform his official duties;

(4) Plaintiff fails, as a matter of law, to state a claim for fraud where he does not allege that the defendant made a false representation upon which he relied to his detriment;

(5) Plaintiff fails, as a matter of law, to state a claim for wrongful discharge where he was at all times an at-will employee subject to summary dismissal and where there is no alleged violation of public policy; and

(6) A spouse fails, as a matter of law, to state a claim for loss of consortium where defendants cannot be held liable to the claimant’s spouse.

We will deal with the legal defenses/issues in order unless one is dispositive of the instant matter.

III. THE STANDARD FOR SUMMARY JUDGMENT

Before addressing the six specific issues mentioned above, we must first set forth the standards for summary judgment.

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure sets forth two bases for the entry of summary judgment. The rule provides in pertinent part:

“After the relevant pleadings are closed, but within such time as to not reasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of 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.”

A party may move for summary judgment after pleadings are closed in two situations. First, when there is no genuine issue of material fact that could be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc). When making this determination, the trial court must consider the evidence in a light most favorable to the non-moving party. Pa.R.C.P. 1035.1-1035.4; Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where a motion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

IV. DOES THE DOCTRINE OF ABSOLUTE PRIVILEGE ACCORDED HIGH PUBLIC OFFICIALS ENTITLE A HIGH PUBLIC SERVANT (I.E., COUNCILPERSON) TO ABSOLUTE IMMUNITY FOR STATEMENTS MADE WITHIN THE SCOPE OF THEIR OFFICIAL DUTIES DURING AN OFFICIAL MEETING?

With the above background in mind, it is now time to examine the individual issues raised by the defendants beginning with the doctrine of absolute immunity as it applies to individual councilpersons.

Our Supreme Court has recently upheld the doctrine of absolute immunity afforded high public officials in Linder v. Mollan, 544 Pa. 487, 677 A.2d 1194 (1996). The Linder court rejected the contention that the Pennsylvania Political Subdivision Torts Claims Act, 42 Pa.C.S. §8550, abrogates the long-standing common-law doctrine of absolute privilege for high public officials and noted that “[tjhis court has never called into question, much less overruled, the common-law doctrine of absolute privilege for high public officials.” Linder, 544 Pa. at 492, 677 A.2d at 1196. With regard to this doctrine, the Linder court found, in that case, a mayor clearly qualified as a high public official since he routinely made significant public policy decisions and was accountable to the voting public. Linder, 544 Pa. at 497, 677 A.2d at 1199. Since the alleged defamatory remarks were within the scope of his statutory authority over fiscal affairs in the borough, the mayor was held absolutely immune from suit for libel and slander. Linder, 544 Pa. at 497-98, 677 A.2d at 1199.

Under similar circumstances, township supervisors were held immune from suit for alleged defamatory statements made during a meeting of the board of supervisors regarding a township police officer. Zdaniewicz v. Sands, 288 Pa. Super. 420, 432 A.2d 231 (1981).

Also, our Commonwealth Court in Suppan v. Kratzer, 660 A.2d 226 (Pa. Commw. 1995), appeal denied, 546 Pa. 659, 684 A.2d 560 (1996), held that the mayor and borough council president were high public officials entitled to the absolute privilege and that alleged defamatory comments made in connection with a plaintiff’s application for a police officer’s position were within the scope of their authority as borough officials. Suppan at 230-31. Using the above cases as a guide, this court concludes that the councilpersons in this present case were high public officials entitled to the benefit of absolute privilege because the true test of whether a public official is protected “should depend upon the nature of his duties, the importance of his office, and particularly whether he has policy-making functions.” Montgomery v. Philadelphia, 392 Pa. 178, 186, 140 A.2d 100, 105 (1958).

Certainly, members of borough council routinely make policy decisions affecting the public and are accountable to the voting public. They certainly do wield the legislative and fiscal powers of municipality, including the power to appoint and remove police officers, and exercise important policy-making functions. See 53 P.S. §§46005-46006. Accordingly, councilpersons certainly do meet the test of what constitutes a high public official protected by the absolute privilege.

Other examples of high public officials include:

(1) Mayor. Linder, supra.

(2) Pennsylvania Attorney General. Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952).

(3) Pennsylvania Secretary of Transportation. Fischer v. Kassab, 25 Pa. Commw. 593, 360 A.2d 809 (1976).

(4) Borough council president. Suppan, supra.

(5) Township supervisor. Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968).

(6) County attorney. Mosley v. Observer Publishing Co., 422 Pa. Super. 255, 619 A.2d 343 (1993).

(7) District attorney and assistant district attorney. Freach v. Commonwealth, 23 Pa. Commw. 546, 354 A.2d 908 (1976), aff’d in part, 471 Pa. 558, 370 A.2d 1163 (1977); McCormick v. Specter, 220 Pa. Super. 19, 275 A.2d 688 (1971).

(8) Revenue commissioners of Philadelphia. Factor v. Goode, 149 Pa. Commw. 81, 612 A.2d 591 (1992), appeal denied, 533 Pa. 654, 624 A.2d 112 (1993).

(9) Deputy commissioner of public property of Philadelphia. Montgomery, supra.

(10) School superintendent. Petula v. Mellody, 158 Pa. Commw. 212, 631 A.2d 762 (1993).

(11) Individual school board directors. Jane Doe v. East Stroudsburg Area School District, civil action no. 3:96 CV 852, Federal Court for the Middle District of Pennsylvania; Judge A. Richard Caputo applying Pennsylvania law.

Cementing this analysis, we note that under the Borough Code, the power to appoint and remove police officers is entrusted to the borough council. 53 PS. §46121.

Therefore, as members of council, councilpersons were uniquely qualified and exclusively authorized to comment upon the qualifications for an individual applying to Moosic Borough as a police officer and the manner in which his application is considered and acted upon. Since council has statutory authority over Moosic Borough’s police force, any remarks concerning the police department are within the scope of the councilpersons’ official duties and are privileged. See Zdaniewicz, 288 Pa. Super. at 425, 432 A.2d at 233-34. This would be so, even if the comments were made outside of the meeting as long as they relate to the councilpersons’ official duties. Mosley, supra.

Based on the above analysis and as a matter of law, the councilpersons are entitled to the absolute privilege reserved for high public officials. Since their alleged remarks were clearly within the scope of their authority as members of Moosic Borough Council, they are immune from suit for slander. Therefore, the councilpersons named herein as defendants are entitled to summary judgment as a matter of law as to this count of plaintiff’s complaint.

V. IS MOOSIC BOROUGH IMMUNE FROM SUIT FOR DEFAMATION UNDER THE PENNSYLVANIA POLITICAL SUBDIVISION TORTS CLAIM ACT?

No dispute exists that Moosic Borough is a “local agency” for purposes of governmental immunity. See 42 Pa.C.S. §8501. The Tort Claims Act provides that exception to the immunity in the following categories:

(1) Vehicle liability;

(2) Care, custody or control of personal property;

(3) Real property;

(4) Trees, traffic control and street lighting;

(5) Utility service facilities;

(6) Streets;

(7) Sidewalks; and

(8) Care, custody or control of animals. 42 Pa.C.S. § 8542(b).

The Tort Claims Act makes no exception for claims sounding in defamation. Petula v. Mellody, 158 Pa. Commw. 212, 217, 631 A.2d 762, 765 (1993); Goralski v. Pizzimenti, 115 Pa. Commw. 210, 540 A.2d 595 (1988).

Further, Moosic Borough cannot be held secondarily liable for alleged slanderous statements uttered by its employees and officials since a governmental agency cannot be held liable under a theory of respondent superior. This is especially so in the present case, where the individual agency employees are public officials who themselves also enjoy their own absolute privilege. Mont gomery v. Philadelphia, 392 Pa. 178, 186, 140 A.2d 100, 105 (1958); Kuzel v. Krause, 658 A.2d 856, 858 (Pa. Commw. 1995).

Therefore, Moosic Borough is entitled to summary judgment as a matter of law as to Count II.

VI. IS MAYOR McDonough IMMUNE UNDER THE PENNSYLVANIA POLITICAL SUBDIVISION TORT CLAIMS ACT FROM LIABILITY FOR ANY ALLEGED NEGLIGENT FAILURE TO SATISFACTORILY PERFORM HIS OFFICIAL DUTIES?

It is clear that Count III of the plaintiff’s amended complaint sounds in negligence. (See amended complaint ¶¶51-52.) It is also clear that the basis for the plaintiff’s claim of negligence is that: “statements from the chief of police said my name was on the list of officers he gave to the mayor. That list as read at the council meeting did not have my name on it. The former and present council members said it should have my name on the list and he denied it.” (Plaintiff’s answers to interrogatories no. 38.)

As a matter of law, the Tort Claims Act provides that local agency employees such as Mayor McDonough are immune from suit arising from acts which are within their official duties to the same extent as the local agency by which they are employed. 42 Pa.C.S. §8545.

As mentioned before, only negligent acts falling within one of the eight enumerated exceptions may result in liability on a local agency employee. See 42 Pa.C.S. §8545(b) {supra). The doctrine of official immunity embodied in the Act affords immunity from personal accountability to public officials for negligence occurring within the scope of their duties absent showing that the conduct falls within one of the recognized exceptions. Considering that Mayor McDonough had no duty or authority to appoint and remove police officers in the first place, since 53 P.S. §46121 reserves that right to borough council, the plaintiffs cannot even establish a prima facie case of negligence. Moreover, assuming arguendo, they could establish negligence, it is not within one of the eight recognized exceptions of 42 Pa.C.S. §8542(b). Since the plaintiffs have not shown that a common-law or statutory cause of action for negligence exists nor have they shown that the negligent act falls within one of the recognized exceptions mentioned above, their claim in Count III against Mayor McDonough is insufficient as a matter of law and the mayor is entitled to summary judgment in his favor as per said Count III. Tyree v. City of Pittsburgh, 669 A.2d 487 (Pa. Commw. 1995).

VII. DOES MR. SCHRANK FAIL, AS A MATTER OF LAW, TO STATE A CLAIM FOR FRAUD AGAINST MAYOR McDONOUGH SINCE HE DOES NOT ALLEGE A FALSE REPRESENTATION UPON WHICH HE RELATED TO HIS DETRIMENT?

To establish a claim for fraud, a plaintiff must show (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker to induce the recipient thereby; (4) justifiable reliance by the recipient on the misrepresentation; and (5) damage to the recipient as a proximate result of the misrepresentation. Thomas v. Seaman, 451 Pa. 347, 350-51, 304 A.2d 134, 137 (1973).

Nothing in the record points to evidence which would establish a fraudulent misrepresentation by Mayor McDonough upon which Mr. Schrank relied to his detriment. If anything, the plaintiffs are alleging that the borough council relied on Mayor McDonough’s representation. It must be as a matter of law, the plaintiff who is the recipient of the fraudulent utterance, not the borough council. See Thomas, supra.

Therefore, Mr. Schrank’s claim of fraud does not meet the essential elements set forth as a matter of law and Mayor McDonough is entitled to summary judgment on Count III of plaintiff’s complaint dealing with fraud.

VIII. DOES MR. SCHRANK FAIL, AS A MATTER OF LAW, TO STATE A CLAIM FOR WRONGFUL DISCHARGE SINCE HE WAS AT ALL TIMES AN AT-WILL EMPLOYEE SUBJECT TO SUMMARY DISMISSAL?

In Count IV of the amended complaint, Mr. Schrank alleges a claim for unlawful termination based upon Moosic Borough’s failure to reinstate him on the police force on January 4, 1994. (Amended complaint atf][5355.) Mr. Schrank does not allege a contract for a definite term of employment or violation of a recognized public policy, but alleges that defendants breached a general, unspecified duty to carry out their official responsibilities in a fair and reasonable manner by failure to reinstate him without proper cause. (See amended complaint ¶¶53-55.)

In discovery, Mr. Schrank testified he was a non-union, non-civil-service employee of Moosic Borough. He has not brought forth any employment contract, collective bargaining agreement or statute, which would guarantee. him continued employment as a part-time police officer but stated he was hired for no express term or duration. (See Schrank dep. tr. (Vol. I) pp. 59-60; Schrank dep. tr. (Vol. II) pp. 4,26; Schrank dep. tr. (Vol. I) pp. 49,59-60; answers to interrogatories ¶39(0); Schrank dep. tr. (Vol. I) pp. 11-12, 59-60.)

The law is clear that governmental workers have no per se right to governmental employment. Pipkin v. Pennsylvania State Police, 548 Pa. 1, 2, 693 A.2d 190, 191 (1997). Instead, public employees are “at-will” and remain subject to summary dismissal unless the legislature explicitly conferred tenure as an integral part of a comprehensive governmental employment scheme embracing the public employee or terminating an “at-will” employee violates a clear mandate of public policy. Scott v. Philadelphia Parking Authority, 402 Pa. 151, 157, 166 A.2d 278, 281 (1960); Boldoc v. Board of Supervisors, Lower Paxton Township, 152 Pa. Commw. 248, 618 A.2d 1188 (1992); Pivarnik v. PennDOT, 82 Pa. Commw. 42, 45-46, 474 A.2d 732, 734 (1984); Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998).

Since, as a matter of law, Mr. Schrank is an “at-will” employee and has produced no evidence to submit to a jury that there exists a valid enforceable employment contract or that his dismissal violates a recognized public policy (for example, that he was terminated because he filed a workers’ compensation claim, see Shick, supra), he cannot, as a matter of law, maintain an action for wrongful discharge. Therefore, defendants are entitled to summary judgment in their favor as to Count IV of the plaintiff’s amended complaint.

IX. DOES MRS. SCHRANK FAIL, AS A MATTER OF LAW, TO STATE A CLAIM FOR LOSS OF CONSORTIUM?

Counts V through VII of plaintiff’s amended complaint allege a claim for loss of consortium on behalf of Mrs. Schrank. (Amended complaint ¶¶56-64.) Since the underlying claims by her husband have been dismissed, her derivative claim of loss of consortium must also automatically fail as a matter of law. Kiers by Kiers v. Weber National Stores Inc., 352 Pa. Super. 111, 507 A.2d 406 (1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (1985); Little v. Jarvis, 219 Pa. Super. 156, 162, 280 A.2d 617, 620 (1971). Therefore, defendants are entitled to summary judgment as to Counts V through VII of the amended complaint.

X. CONCLUSION

Reviewing the entire record in the light most favorable to the plaintiffs, they failed to establish the essential elements of any cause of action set forth in their amended complaint for the legal and factual reasons set forth above.

Therefore, defendants are entitled to summary judgment as to all counts of plaintiff’s amended complaint.

An appropriate order follows.

ORDER

And now to wit, February 7,2000, in accordance with the foregoing memorandum, it is hereby ordered and decreed that defendants’ motion for summary judgment is granted. Plaintiff’s action is hereby dismissed with prejudice and judgment is entered in favor of all defendants.


author: NEALON, J.,

text:
    Cordaro v. Hedderick

      C.P. of Lackawanna County,
    no. 95-CV-233.

      Michael C. Cowley, for plaintiff.

      James A. Doherty Jr., for defendant.
    April 12, 2000
   NEALON, J.,

Defendant, Steven J. Hedderick, has filed a motion for summary judgment seeking to dismiss any claims for noneconomic damages by plaintiff, Samuel J. Cordaro, on the grounds that Cordaro selected the “limited tort” option but has not suffered a “serious injury” under section 1705(d) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Hedderick’s motion raises a novel issue of apparent first impression under section 1705(d): whether a claimant who is already vocationally disabled at the time of an accident due to an impairment involving one part of his anatomy can suffer a “serious impairment of body function” by sustaining distinctive injuries to other areas of his body? Since Cordaro’s submissions create an issue of fact as to whether his neck and back injuries have sufficiently impeded his ability to engage in activities that he could previously perform, notwithstanding his heart-related disability, the motion for summary judgment will be denied.

I. FACTUAL BACKGROUND

On February 14, 1993, Cordaro was involved in an accident with Hedderick when his vehicle was rear-ended by Hedderick’s automobile on North Blakely Street in Dunmore. At the time of the accident, Cordaro was covered by an insurance policy for which he had selected the “limited tort” option that restricted his ability to recover noneconomic damages. (See defendant’s motion for summary judgment ¶3; plaintiff’s response to motion for summary judgment, ¶3.) In addition, Cordaro was already disabled as of February 14, 1993, due to a work-related heart condition and had been collecting workers’ compensation benefits since 1984 based upon that disability. (See plaintiff’s answer to defendant’s interrogatory no. 10; Samuel J. Cordaro depo. dated 9/5/97, pp. 6-7.)

On the day following the accident, Cordaro was examined by his family physician, Dr. Michael A. Minora, for complaints of back pain and bleeding from his mouth caused by impact with the steering wheel. (See Cordaro depo., pp. 21-22.) Dr. Minora advised Cordaro to consult with a chiropractor, (Id., pp. 22, 25), and on February 22, 1993, he began treating with Dr. Stanley J. Solack of the Mid-Valley Chiropractic Clinic. (See medical records attached to plaintiff’s answers to defendant’s interrogatories dated 2/13/97.) On March 23, 1993, Cordaro was also examined by a dentist, Dr. Niranjan Desai, who recommended extraction of six teeth, (see Dr. Niranjan Desai report dated 2/11/00), but that procedure was never performed since the damaged teeth spontaneously fell out shortly thereafter. (Cordaro depo., p. 34.)

Between February 22, 1993, and March 23, 1994, Dr. Solack examined Cordaro on 92 separate occasions and diagnosed his accident-related injuries as cervical cranial syndrome, cervical neuralgia, cervical sprain/strain, lumbar intervertebral disc syndrome and lumbago. Dr. Solack’s treatment consisted of chiropractic manipulations and spinal adjustments, electrical stimulation, hydroculator treatment, interferential therapy and hydrotherapy. In his report dated July 7, 1993, Dr. Solack remarked that “[pjrior to this incident, the patient was essentially asymptomatic. However, the symptoms which have appeared subsequently indicate that this injury is serious and will precipitate symptoms well into the future.” (See Mid-Valley Chiropractic records attached to plaintiff’s answers to defendant’s interrogatories dated 2/13/97.)

Notwithstanding his heart condition, Cordaro was reportedly capable of performing his customary duties such as gardening, garbage removal, laundry, cooking, sweeping and general housecleaning. (Cordaro affidavit ¶13.) As a result of his neck and back injuries, Cordaro can no longer engage in those activities, nor can he operate a motor vehicle for more than 30 minutes. (Id., ¶¶13-14.) Furthermore, Cordaro continues to experience chronic “difficulty sleeping, walking and doing chores due to back pain.” (Id., ¶5.)

With regard to his current treatment regimen, Cordaro performs home exercises and therapy that were prescribed by Dr. Solack and which are supervised by Cordaro’s son who is a certified chiropractic rehabilitation assistant. (Id., ¶9.) Since the date of the accident, Cordaro has undergone a coronary artery bypass graft and a heart transplant, as a result of which he is “presently required to engage in daily cardiac rehabilitation.” (Id., ¶11.) Cordaro’s back pain compromises his ability to perform many of the exercises that have been prescribed by his cardiologist. (Id.) According to Cordaro, “[although [his] heart condition was severely disabling for period of time, [he] led a relatively normal life despite that condition. As of today, the trauma from the automobile accident causes [him] much more pain and limitation than does [his] heart condition.” (Id., ¶16.)

Hedderick contends that he is entitled to summary judgment since “[i]t is undisputed that the plaintiff was totally disabled from a non-accident-related heart condition at the time of the accident” and “there is no genuine issue of material fact that the plaintiff did not suffer a serious injury as his injuries have not had a serious impact on his lifestyle for an extended period of time and do not interfere substantially with his normal activities.” (See defendant’s motion for summary judgment, ¶¶21, 26.) Cordaro maintains that his “life and sleeping patterns have been compromised as has his ability to move without pain on a regular and daily basis” and that his “loss of teeth, in and of itself, is a serious and permanent injury.” (See plaintiff’s answer to motion for summary judgment, ¶26.) The parties have submitted their memoranda of law and supporting documentation and this matter is ripe for disposition.

II. DISCUSSION

(A) Standard of Review

With the adoption of the 1990 amendments to the MVFRL, 75 Pa.C.S. § 1701 et seq., a named insured may now purchase full tort or limited tort coverage for a private passenger motor vehicle insurance policy. See 75 Pa.C.S. § 1705(a). If the consumer elects limited tort coverage, [s]he is entitled to a reduced premium charge but is generally precluded from claiming damages for non-economic loss unless [s]he sustains a serious injury. 75 Pa.C.S. § 1705(d). Cf. Price v. Guy, 558 Pa. 42, 49, 735 A.2d 668, 672 (1999) (trial court committed reversible error by informing the jury that the motorist had elected the limited tort option in exchange for reduced insurance premiums). Under the MVFRL, a serious injury is defined as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702.

It is now well settled that the traditional summary judgment standard governs threshold “serious injury” determinations which are “to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury ha[s] been sustained.” Washington v. Baxter, 553 Pa. 434, 446-47, 719 A.2d 733, 740 (1998); Furman v. Shapiro, 111 A.2d 1125, 1126 (Pa. Super. 1998). To withstand a motion for summary judgment a nonmoving party must adduce sufficient evidence on an essential issue to which [s]he bears the burden of proof such that a jury could return a verdict in favor of that party. Washington, 553 Pa. at 447, 719 A.2d at 737. In considering a summary judgment motion involving a “serious injury” challenge, the record must be viewed in a light most favorable to the nonmovant with all doubts as to the existence of a genuine issue of material fact being resolved against the moving party. Hames ex rel. Hames v. Philadelphia Housing Authority (HAmes II), 737 A.2d 825, 828 n.4 (Pa. Commw. 1999); Furman, supra. Even if the parties agree as to the salient facts, summary judgment should not be granted if those facts support conflicting inferences. Washington, 553 Pa. at 447 n. 10, 719 A.2d at 740 n.10; Rivera, 99 Lacka. Jur. at 136.

(B) “Serious Injury” Analysis

Regrettably, neither the MVFRL nor the legislative history accompanying the enactment of the 1990 amendments provide any guidance concerning the definition of “serious impairment of a body function.” Washington, 553 Pa. at 447, 719 A.2d at 740; Hellings v. Bowman, 744 A.2d 274, 276 (Pa. Super. 1999); Furman, 721 A.2d at 1126. Nevertheless, the Supreme Court of Pennsylvania has expressly adopted the following standard that was articulated in DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986):

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent and permanency of the impairment. ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Washington, 553 Pa. at 447, 719 A.2d at 740; Hellings, supra.

Consequently, in conducting a “serious injury” inquiry, the focus is not on the injury itself, but on the nature and extent of the impairment resulting from the injury. Hames II, 737 A.2d at 828; Rivera, 99 Lacka. Jur. at 137. As a result, a soft tissue injury may constitute a “serious impairment of a body function” if it has adequately interfered with a body function. Chanthavong v. Tran, 452 Pa. Super. 378, 392, 682 A.2d 334, 341 (1996); Murray v. McCann, 442 Pa. Super. 30, 38, 658 A.2d 404, 408 (1995). Moreover, an impairment need not be demonstrated by objective medical evidence in order to satisfy the serious injury test. Robinson v. Upole, 2000 Pa. Super. Lexis 355, *10 (Pa. Super. April 3, 2000); Hames II, 737 A.2d at 829 (the Washington court “did not adopt the language from Dodson [v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), rev’d and remanded, 554 Pa. 245, 720 A.2d 1050 (1998)] that objective medical evidence is required to cross the serious injury threshold”); Murray, 442 Pa. Super. at 37, 658 A.2d at 407 (holding that the trial court erred by stating “that serious bodily injury impairment could not be found in the absence of an injury that was objectively manifested” since the DiFranco standard does not limit “recovery of noneconomic damages to a plaintiff whose injuries can be seen or felt by a clinical test”).

The “serious impairment of body function” analysis “is not based on one determinant factor alone; it is based upon a totality of the facts of the case.” Kelly v. Ziolko (Kelly I), 705 A.2d 868, 874 (Pa. Super. 1997), rev’d on other grounds, 556 Pa. 57, 726 A.2d 1038 (1999) (remanded for a determination consistent with Washington); Rivera, 99 Lacka. Jur. at 138. Thus, while the length of time an impairment has lasted is relevant, the impairment need not be permanent to qualify as serious. Leonelli v. McMullen, 700 A.2d 525, 527-28 (Pa. Super. 1997); Murray, 442 Pa. Super. at 39 n.3, 658 A.2d at 408 n.3. Additionally, the fact that a plaintiff has returned to work does not bar the existence of a serious injury. Kelly v. Ziolko (Kelly II), 734 A.2d 893, 900 (Pa. Super. 1999); Furman, 721 A.2d at 1127. Nor is it fatal to a “serious impairment of body function” claim that the plaintiff has discontinued medical treatment for the injury. See Kelly II, supra (case remanded for jury trial even though plaintiff did not currently receive “treatment or prescriptive medication for his pain”); Furman, supra (although plaintiff had terminated her treatment and physical therapy within one year of the accident, a jury must decide “serious injury” issue); Leonelli, 700 A.2d at 529 (failure of plaintiff to seek medical treatment due to financial constraints does not prove that injuries were not serious).

Cordaro has suffered soft tissue injuries to his cervical and lumbar areas, as well as the loss of damaged teeth. Applying the Washington/DiFranco criteria, those injuries have allegedly impaired his capacity to perform his usual household chores and cardiac rehabilitation exercises and have compromised his proficiency to walk and drive. According to Cordaro, his symptoms continue to persist seven years after the accident and have adversely affected his ability to sleep. See Rivera, 99 Lacka. Jur. at 139-40 (accident-related sleeplessness may possibly constitute a serious impairment of body function); Powell v. Nettinger, 28 Mercer Co. L.J. 437, 440 (1998) (“reasonable minds could conclude that a significant reduction of a person’s sleep is a serious impairment of body function”). Moreover, Cordaro’s injuries required more than one year, and perhaps in excess of four years, of medical and chiropractic treatment. (See n.1, supra.)

Hedderick contends that Cordaro cannot establish a serious injury under section 1705 since he was already disabled at the time of the accident as a result of his work-related heart condition. Although neither party has cited any controlling case law, Washington and its progeny do not support the conclusion that a claimant who is vocationally disabled due to an impairment involving one organ is inexorably disqualified from later suffering a serious injury to another part of his anatomy. On the contrary, Pennsylvania courts have required individualized consideration of serious injury claims by analyzing on a case-by-case basis the impact that an injury has had on a particular body function.

An argument comparable to that being asserted by Hedderick was raised by the defendant in Sanderson-Cruz v. USA, 2000 U.S. Dist. Lexis 2379 (E.D. Pa. March 6, 2000). In that case, the plaintiff had a prior history of back pain caused by a herniated disc that had been objectively diagnosed by an MRI scan and which had been treated with physical therapy and epidural steroid injections. Id., 2000 U.S. Dist. Lexis 2379, at *3-4. Although the plaintiff sought to recover damages for exacerbation of her chronic back injury, the defendant asserted that since “Sanderson-Cruz suffered from chronic lower back pain prior to the accident and her inability to work was unrelated to the accident but rather stemmed from her pre-existing condition,” the plaintiff’s claims for non-economic damages should be dismissed due to the absence of a serious injury. Noting that the materials submitted by the parties “support an inference that as a re-suit of the accident, Sanderson-Cruz continues to have pain in her back and neck, cannot perform her former job as a physical therapy aid because of physical limitations and cannot enjoy some of life’s many pleasures such as gardening, horseback riding, and sexual intercourse,” the federal district court denied the motion for summary judgment and found that “there is a genuine issue of material fact as to whether the accident caused Sanderson-Cruz to re-injure or cause her lower back condition to be aggravated or whether the accident did in fact cause her any injury.” Id., at *20-21.

There is no logical basis for allowing a jury to determine whether an aggravation of a pre-existing injury to the same body part can constitute a serious impairment of body function, see Sanderson-Cruz, but denying the same opportunity to a plaintiff who has a prior disability affecting one portion of his anatomy and later sustains distinct injuries to other areas of his body. Examining the record in a light most favorable to Cordaro, reasonable minds could differ as to the extent of the impairment to his neck and back and the manner in which it has affected his former activities. See e.g., Hellings, supra (plaintiff’s injuries prevented him from skiing and limited his ability to hunt and ride horses); Kelly II, supra (although plaintiff returned to work within three days, he experienced trouble sleeping and could not engage in many recreational activities); Radziwon v. Zarezycki, 1999 WL 310662, *4 (E.D. Pa. 1999) (motion for summary judgment denied since plaintiff claimed she had difficulty lifting, carrying and riding a bicycle and her sexual relations with her husband had been diminished). Since “the provisions of the MVFRL are to be liberally construed to advance the policy of indemnifying victims of accidents for injuries sustained on state roadways,” Hames v. Philadelphia Housing Authority (Hames I), 696 A.2d 880, 882 (Pa. Commw. 1997); Rivera, 99 Lacka. Jur. at 138, a triable issue of fact exists in this case regarding the presence or absence of a serious impairment of body function and Hedderick’s motion for summary judgment will be denied.

ORDER

And now, April 12, 2000, upon consideration of “defendant’s motion for summary judgment,” the memoranda of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the motion of defendant, Steven J. Hedderick, for summary judgment is denied.

      . During his deposition on September 5, 1997, Cordaro testified that he had been examined by Dr. Solack one week earlier. (Cordaro depo., p. 29.) In his affidavit dated March 31, 2000, Cordaro again attested that he “saw Dr. Solack as late as 1997.” (See affidavit of Samuel Cordaro dated 3/31/00, ¶8.) However, in opposing Hedderick’s motion for summary judgment, Cordaro has not provided any records from Dr. Solack which post-date March 23, 1994, despite being granted leave of court to produce the same.

      . By letter dated April 6,2000, counsel for Hedderick forwarded a letter to the court objecting “to any consideration being given to [Cordaro’s] affidavit pursuant to the Nanty-Glo line of cases.” In Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), the Supreme Court of Pennsylvania formulated what is commonly referred to as the Nanty-Glo rule which generally prohibits the entry of summary judgment where the moving party attempts to demonstrate the absence of a genuine issue of material fact by submitting uncontradicted oral testimony via affidavits or depositions. Schroeder v. PennDOT, 551 Pa. 243, 247, 710 A.2d 23, 25 (1998); O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039, 1041 (Pa. Commw. 1999). While a moving party may not secure summary judgment based upon an affidavit, “the nonmoving party may respond to the motion by relying solely on an affidavit to create a genuine issue of material fact, i.e., a credibility determination for the jury.” Gruenwald v. Advanced Computer Applications Inc., 730 A.2d 1004, 1009 (Pa. Super. 1999). Hence, although the Nanty-Glo rule bars Hedderick from obtaining summary judgment based upon an affidavit, it does not preclude Cordaro from successfully opposing Hedderick’s motion with an uncontroverted affidavit.

      . An individual who is otherwise bound by the limited tort election may nonetheless be entitled to full tort status if: (1) the tort-feasor is convicted of or accepts Accelerated Rehabilitative Disposition for driving under the influence of alcohol or a controlled substance at the time of the accident; (2) the negligent party is operating a motor vehicle registered in another state; (3) the motorist who is at fault intentionally injured the plaintiff; (4) the tort-feasor has not maintained the required financial responsibility or insurance; (5) the injury was caused by a defect or unsafe condition involving the vehicle and the defendant is engaged in the business of designing, manufacturing, repairing, servicing or otherwise maintaining motor vehicles; or (6) the insured was injured while an occupant of a vehicle other than a “private passenger motor vehicle” as defined by section 702 of the MVFRL. Rivera v. Barone, 99 Lacka. Jur. 130, 133 n.2 (1998) (citing 75 Pa.C.S. §1705(d)(1), (2) and (3)).


author: FRIEDMAN, J.,

text:
    Spisak v. Margolis Edelstein

      C.P. of Allegheny County,
    no. GD 99-13642.

      Leonard E. Price, for plaintiff.

      William R. Haushalter, for defendant.
    May 15, 2000
   FRIEDMAN, J.,

Plaintiff has appealed this court’s order dated January 31, 2000, in which we sustained defendant law firm’s preliminary objections and dismissed plaintiff’s complaint with prejudice. The court’s decision to dismiss the complaint was based on estoppel principles, arising from the fact that the allegations of the instant complaint reveal that plaintiff had a full opportunity to raise the instant matters complained of in the prior action and that the prior action was the only appropriate place to raise them. In his statement of matters complained of on appeal, plaintiff contends that his failure to raise the defendant’s alleged misconduct in the prior case before the judges involved there does not constitute waiver. The allegations of the complaint involve defendant’s conduct in another case as counsel for a third party, and are briefly summarized below.

Instant plaintiff, Mr. Spisalt, had sued Penn National Insurance Company in a previous action, now finally decided. Instant defendant, Margolis Edelstein, is the law firm which represented Penn National in that litigation through one of its partners, Arthur Bloom. According to plaintiff’s complaint, the previous case involved an insurance bad faith action and resulted in a verdict in favor of Mr. Spisak “in the amount of $750,000 in punitive damages and $62,400 in interest.” Plaintiff also alleges that Mr. Bloom was untruthful and made false statements [as counsel for Penn National in the previous case] as follows:

“(A) In improperly redacting produced documents contrary to the order of court of October 23, 1998 [entered by Judge Wettick in the previous case].
“(B) In his undated affidavit [submitted pursuant to the direction of Judge Wettick in the previous case] when he alleged the documents were redacted in compliance with the order of court of October 23, 1998.
“(C) In his representations to Judge Johnson that Mr. McKenna told him (Mr. Bloom) that he could not produce citations to certain bad faith cases or copies of them (as referred to in Mr. McKenna’s letter of March 3,1998 plaintiff’s exhibit ‘21’) because they were not reported cases and had been written about in the Philadelphia Intelligencer.” (Complaint ¶17.)

Mr. Spisak’s complaint also contains the following averment of damages:

“Plaintiff believes and avers that the purpose of Mr. Bloom in violating the order of court of October 23,1998 regarding the redactions and in making the false representations to Judge Johnson regarding his phone conversation with Mr. McKenna were outrageous conduct arising from his evil motive or his reckless indifference to the rights of the plaintiff, and were designed solely to prevent the plaintiff from being awarded a fair and proper verdict [in the previous case]. Plaintiff believes and avers that these actions were done solely and maliciously with evil intent and motive to deprive Mr. Spisak of a fair and just award, that such actions did harm the plaintiff in that the verdict was adversely affected, that such actions constitute deliberate and conscious bad faith and that compensatory and punitive damages are justified.” (Complaint ¶18.)

We sustained defendant’s preliminary objections based primarily upon the doctrine of collateral estoppel.

“Collateral estoppel[, also referred to as ‘issue preclusion,’] applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.” Incollingo v. Maurer, 394 Pa. Super. 352, 356, 575 A.2d 939, 940 (1990), quoting City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989).

In the instant complaint, Mr. Spisak claims that the amount of damages he received in the previous case was inadequate because defendant had improperly redacted documents, had violated an order of a judge in the other case, and did not provide citations for case law referred to. However, those issues are all matters which plaintiff had a full opportunity to litigate at that time. Furthermore, the fact that Margolis Edelstein and Mr. Bloom were not parties in the underlying action is no impediment to the application of collateral estoppel. “There is no requirement under the doctrine of collateral estoppel that the party raising the defense [here, Margolis Edelstein] be involved in the original action, but only that the party against whom it is being raised [Mr. Spisak] was a party in the initial proceedings . . . .” Incollingo, 394 Pa. Super. at 357-58, 575 A.2d at 941. (emphasis added) Mr. Spisak’s right to question the propriety of the redaction made by defendant arose in the previous case and should have been litigated there. Similarly, the alleged disobedience of a court order in the other case, as well as the failure to provide case cites, should have been raised and argued before the other judges. Lastly, it is axiomatic that there must be an end to every litigation. The instant complaint is an improper attempt to circumvent that axiom.

Plaintiff’s counsel conceded at argument on the instant preliminary objections that there were no other facts he could plead. Furthermore, his comments indicate that he did not ask the judges in the prior case to review documents in camera nor to hold Penn National or its counsel, instant defendant, in contempt of the order of October 23, 1998, entered in the prior case. Waiver of an issue is one way of “litigating” it.

Since plaintiff’s counsel conceded he had pled all the facts he regarded as material to the cause of action asserted, the undersigned properly refused to grant leave to file an amended complaint. No cause of action lies in the circumstances of this complaint. We properly sustained defendant’s preliminary objections and dismissed plaintiff’s complaint with prejudice.

      . Mr. Bloom had been a partner in a law firm named Rosenberg Kirshner until 1997, which had represented Penn National up to that time. In 1997, Rosenberg Kirshner and Mr. Bloom withdrew their appearances on behalf of Penn National, and Margolis Edelstein and Mr. Bloom entered appearances.


author: PRATT, J.,

text:
    Colbert v. Boazzo
    C.P. of Lawrence County,
    no. 11224 of 1997, C.A.

      Vincent A. DeFalice, for plaintiffs.

      Richard J. Trankocy Jr., for defendant.
    March 22, 2000
   PRATT, J.,

The parties, by stipulation, have called upon the court to determine, using plaintiffs’ instant motion for summary judgment, whether the applicable statute of limitations was tolled prior to plaintiffs initiating their cause of action in this case.

Plaintiffs’ claim, arising from an automobile accident, was commenced by a praecipe for writ of summons filed on December 18,1997. A complaint, seeking money damages, was then filed by plaintiffs on February 3, 1998, in response to which the defendant filed an answer and new matter, raising the affirmative defense that plaintiffs’ cause of action was barred by the applicable two-year statute of limitations.

On March 16, 1998, plaintiffs filed a “reply to new matter and new matter/counterclaim,” in which they aver, under principles of equitable estoppel, that the defendant should be barred from raising the statute of limitations as a defense. Plaintiffs argue that, because of representations made by the defendant’s claims adjustor, Tammy Fasano, plaintiffs’ counsel, Attorney Lawrence M. Kelly, was led to believe that the statute of limitations would be tolled to allow time for plaintiff Shirley Colbert to undergo an independent medical examination, and that the defendant’s insurance carrier would tender the policy limits if the IME favored plaintiffs’ claim. As a result, plaintiffs contend defendant should be precluded from raising the statute of limitations as an affirmative defense.

The deposition of Tammy Fasano was taken on behalf of the defendant and, on July 30, 1998, the defendant filed a motion for summary judgment based on the statute of limitations defense. An affidavit by plaintiffs’ attorney, Lawrence M. Kelly, was then filed on August 18, 1998. This court ordered oral arguments and briefs by both parties on the defendant’s motion for summary judgment. Having considered the arguments and briefs, the court determined that genuine issues of material fact did indeed exist as to the statute of limitations defense and, accordingly, the court denied the defendant’s motion for summary judgment.

Currently before the court is the plaintiffs’ motion for summary judgment, requesting the court to rule, as a matter of law, that defendant is estopped from raising the statute of limitations as a defense in this case.

During oral arguments, the parties agreed to waive the holding in Nanty-Glo Boro. v. American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932). In Nanty-Glo, the Pennsylvania Supreme Court held that summary judgment cannot be granted merely upon testimonial affidavits, even if such testimony is uncontradicted, because of the credibility issue. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 175, 553 A.2d 900, 903 (1989). The Nanty-Glo rule applies to the oral testimony in this action — specifically, the deposition of Tammy Fasano, defendant’s claims adjustor, and the affidavit of Attorney Lawrence M. Kelly — which is the basis upon which this court is asked to dispose of plaintiffs’ motion for summary judgment. By waiving the rule of Nanty-Glo, the parties agree that the court, rather than a jury, will decide on the credibility of the oral testimony presented in this case and thereby decide the plaintiffs’ motion for summary judgment.

Based on the deposition of Ms. Fasano and the affidavit of Mr. Kelly, the court finds that Mr. Kelly, acting on behalf of the plaintiffs, had reason to rely on Tammy Fasano’s representations during their August 1997 telephone conversation, regarding the significance of the IME and its effect on when Mr. Kelly would file plaintiffs’ lawsuit. In other words, the court finds that Mr. Kelly reasonably believed that there was an understanding between him and the defendant’s claims adjustor that the statute of limitations would be tolled until the IME report had been received.

In the case of Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964), our Supreme Court held that “[i]n order for the doctrine of estoppel to be applied in bar of the statute of limitations, fraud or concealment must necessarily be established. However, this does not mean fraud in the strictest sense encompassing an intent to deceive, but rather fraud in the broadest sense which includes an unintentional deception.” Id. at 96, 204 A.2d at 476. It was also noted in Nesbitt that the party seeking to invoke the doctrine of estoppel bears the burden of producing clear, precise and convincing evidence of such fraud or concealment. Id. at 92-93, 204 A.2d at 475 and authorities therein cited.

In the instant case, the deposition testimony of Ms. Fasano revealed that she explained to Mr. Kelly, during a telephone conversation which took place in early August 1997, that, based on the results of the IME, the parties would try to settle before the statute of limitations expired. (Dep. transcript, May 20,1998, pp. 14,15.) Ms. Fasano further testified that, after she had explained to Mr. Kelly that the insurance company would try to resolve matters before the statute expired, Mr. Kelly then stated to her that “he would hold off, then, on filing for the statute, to toll the statute.” (D.P., p. 14.) Ms. Fasano also testified in her deposition that she was aware of the date of the accident, the two-year applicable statute of limitations, and when the statute would have expired if it began running from the date of the accident. (D.P., p. 15.) In addition, Ms. Fasano testified that she did receive Mr. Kelly’s August 12, 1997 letter confirming their earlier conversation. (D.P., p. 23.) In his August 12, 1997 letter, Mr. Kelly stated that he “would not immediately file suit in this action.”

In regard to the IME report, Ms. Fasano’s deposition testimony revealed that she received the full report on August 29,1997, but that it was not sent to Mr. Kelly at that time because her company was short staffed and she had to attend to more important matters at the time. (D.P., p. 16.) Furthermore, Ms. Fasano agreed that the report was not sent to plaintiffs’ representative until February 10, 1998. (D.P., p. 23.) She also stated that delay was due to “simple forgetfulness.” (D.P., p. 23.)

Mr. Kelly, as representative of the plaintiffs, indicated, in part, in his affidavit, that, based on Ms. Fasano’s assurances made during the early August 1997 phone conversation, he did not file suit in August 1997 as he otherwise would have.

Defendant cites case law, holding that a mere offer to settle will not toll the statute of limitations. This holding, however, is not on point. Plaintiffs do not contend that the statute should be tolled because an offer to settle was on the table. Rather, plaintiffs assert that the defendant made representations, through the defendant’s insurance carrier’s claims adjustor, that amounted to an agreement that, if a lawsuit on behalf of the plaintiffs would be filed at all, it would not be until after the IME report had been received, thus leading counsel for plaintiffs to believe that the statute of limitations would be tolled or suspended pending receipt of the IME report.

Parenthetically, although the court finds that the evidence in this case clearly and convincingly establishes unintentional deception on the part of defendant’s claims adjustor, and that Mr. Kelly justifiably relied on Ms. Fasano’s understanding of the effects of the statute of limitations and was understandably misled by her statements so as to believe that the statute of limitations was tolled or suspended, Mr. Kelly’s actions must be called to task.

Mr. Kelly had a responsibility to vigilantly and zealously guard his clients’ rights. In preserving a client’s rights, nothing is procedurally more crucial than meeting the applicable statute of limitations. Settlement may be reached after a timely claim is filed just as well as it may be reached before the claim is filed. In this case, when Mr. Kelly contacted Ms. Fasano with the understanding that the statute would be tolled, it was approximately one year and nine months after the accident. Although Mr. Kelly’s reliance on Ms. Fasano’s knowledge and understanding of the statute of limitations and its effects on a claimant’s rights, as well as her representation and what Mr. Kelly may have considered to be a tacit agreement, were not unreasonable, he nevertheless had a responsibility to keep a close eye on the clock, and should have vigorously pursued the IME report or the filing of the lawsuit.

Notwithstanding, the court finds that Ms. Fasano had a similar but greater responsibility to contact plaintiffs’ counsel in a timely fashion with regard to the disposition of the IME report. Ms. Fasano’s delay in timely providing Mr. Kelly the IME report was unreasonable, whether the delay was intentional or unintentional, and this amounted to, at least, a sufficient unintentional deception to invoke the doctrine of estoppel regarding the statute of limitations.

Based on the foregoing, the court must find, as a matter of law, that the statute of limitations in this case was equitably tolled prior to its expiration and, therefore, the defendant must be estopped from further raising the statute of limitations as a defense in this case. Hence, plaintiffs’ motion for summary judgment shall be granted regarding this issue by appropriate order.

ORDER

Pursuant to the attached opinion, the plaintiffs’ motion for summary judgment is granted, and the court finds, as a matter of law, that the applicable two-year statute of limitations was tolled before its expiration by defendant’s agent’s conduct and, therefore, plaintiffs’ filing of their praecipe for writ of summons was timely. Consequently, defendant is precluded from raising the statute of limitations as an affirmative defense.


author: ANTHONY, J.,

text:
    Estate of Mathews v. Township of Millcreek

      C.P. of Erie County,
    no. 11693-1999.

      Peter Friday, for plaintiffs.

      Mark Mioduszewski, for defendant.
    March 13, 2000
   ANTHONY, J.,

This matter comes before the court on defendant’s preliminary objections to the plaintiffs’ amended complaint. After a review of the complaint and the briefs of the parties and considering the arguments of counsel, this court will sustain the objections. The factual and procedural history is as follows.

On My 16,1998, plaintiffs’ decedent, Paul M. Mathews, left the paved surface of West 29h Street at or about the intersection of West 29th Street and Atlantic Avenue in Millcreek Township, Erie County, Pennsylvania while operating his motorcycle. This caused Mathews to be thrown from the motorcycle and was later declared dead from the injuries sustained in the accident.

Plaintiffs filed a complaint on May 21, 1999, defendant filed preliminary objections to the complaint on September 21,1999 and an amended complaint was filed on October 8, 1999. Defendant filed its preliminary objections to the amended complaint and a brief in support on December 3,1999. Plaintiffs filed a reply brief on January 14,2000. Arguments were held in chambers in which all parties were represented.

There are two issues before the court on defendant’s objections. The first is whether Mathews’ mother can be a properly named plaintiff in the suit at issue. The second issue is whether the plaintiffs can maintain any claims for the loss of aid, companionship, etc. of Mathews. These claims are often referred to as parental or filial consortium claims. The court will address the issues in the order presented.

The first issue presented to the court is in the nature of a motion to strike. Defendant asserts that the Pennsylvania Rules of Civil Procedure, specifically Pa.R.C.P. 2202(a), provides that only the personal representative may bring a wrongful death action. Plaintiffs assert that they are proceeding under Pa.R.C.P. 2202(b), which allows both parties to be named plaintiffs in the lawsuit. Rule 2202 states that:

“(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.
“(b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.
“(c) While an action is pending it shall operate as a bar against the bringing of any other action for such wrongful death.” Pa.R.C.P. 2202. (emphasis added)

Thus, the rule allows that a personal representative is the only person who may bring a suit within the first six months after a decedent has died. However, (b) allows anyone entitled by law to recover damages to bring a suit after the six-month period has run. The rule does not specifically state whether a suit by a personal representative that is filed after the six-month period bars all claims by other parties under 2202(b) or whether they may bring actions on their own accord.

Defendant directs the court’s attention to a decision by the Honorable Judge George T. Kelton in Sedia v. Diggs, 42 D.&C.3d 307 (Bucks Cty. 1986), that has addressed the same issue. In Sedia, the personal administrator and the decedent’s parents joined in a single wrongful death action against a number of defendants. Sedia also arose out of a motor vehicle accident. Judge Kelton held that the parents’ claims could not be maintained and their names would be stricken from the complaint. Id. at 310. Judge Kelton stated that any damages would be distributed to the beneficiaries of the deceased under statute, which would have been the parents. Furthermore, Judge Kelton determined that Pa.R.C.P. 2202(b) authorized only one person to bring a lawsuit and that Pa.R.C.P. 2203 would protect any beneficiaries from a plaintiff who was derelict in his duties.

The court agrees with the opinion of Judge Kelton. By the terms of Pa.R.C.P. 2202(b), only one person is entitled to bring suit — either the personal representative or a person entitled to recover damages under law. In this case, a personal representative has brought suit and this forecloses any action by Mathews’ mother. Her name will be stricken from the caption as a party-plaintiff.

The next issue presented to the court is in the nature of a demurrer. Defendant contends that Pennsylvania law does not recognize a claim for parental or filial consortium. Therefore, any claims in the amended complaint based on parental or filial consortium should be dismissed. Plaintiff argues that a parent may recover for filial or parental consortium damages under the wrongful death statute and cite to a recent opinion by the Honorable Judge R. Stanton Wettick Jr., Ehrman v. Mid- American Waste Systems of Pennsylvania, 39 D.&C.4th 235 (Allegheny Cty. 1998) as support.

When addressing a demurrer, the court must accept as true all well-pled facts set forth in the complaint and give the plaintiff the benefit of all reasonable inferences from those facts. Aetna Electroplating Co. Inc. v. Jenkins, 335 Pa. Super. 283, 484 A.2d 134 (1984). Further, the court must overrule a demurrer unless it is certain that there is no set of facts under which the plaintiff could recover. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). Any doubt must be resolved in favor of overruling the demurrer. Id.; Moser v. Heistand, 545 Pa. 554, 681 A.2d 1322 (1996).

Both parties agree that there can be no claim for recovery of filial or parental consortium under the common law of Pennsylvania. Plaintiffs contend, however, that one may be maintained under the wrongful death statute. 42 Pa.C.S. §8301(b) allows for parents of the deceased to recover under a wrongful death action. Section 8301(c) states that a “plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” (emphasis added) Plaintiffs argue that the language “in addition to other damages” includes recovery for loss of consortium. Thus, they contend that they should be entitled to recover loss of consortium damages in this action.

Plaintiffs find support in Ehrman, supra. Ehrman involved a wrongful death action due to the death of a 19-year-old girl in a traffic accident. The decedent was unmarried and had no children or siblings. Her parents brought an action under the Wrongful Death Act and included a claim for loss of aid, companionship and services of the deceased. Ehrman, supra. Judge Wettick relied on a statement by the Pennsylvania Supreme Court decision in Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994), that the damages under a wrongful death action may be broader than under the common law.

Specifically, Judge Wettick referred to the majority’s statement in Kiser that “[t]he damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expense.” Ehrman, supra at 253, citing Kiser, supra at 226, 648 A.2d at 4. Judge Wettick also stated that the language of the statute does not differentiate between spouses, parents and children and all are entitled to recover “other damages.” Since this includes loss of consortium claims for spouses and children, it should also include them for parents. Finally, Judge Wettick stated that Pennsylvania Suggested Standard Jury Instructions are “consistent” with allowing a claim for loss of consortium. Based on this reasoning, Judge Wettick held that the plaintiffs were entitled to recover for loss of consortium of a child.

Plaintiffs urge the court to follow the opinion of Judge Wettick in Ehrman. This the court will not do. While the court has often looked favorably at the opinions of Judge Wettick in the past, it disagrees with Judge Wettick’s ruling in Ehrman. The Kiser decision does not expand the law in Pennsylvania. That case only involved damages for economic loss and not a loss for consortium. This court does not see how any statement made by the Supreme Court in Kiser would entitle plaintiffs to make a claim for loss of filial or parental consortium. Economic loss has been recoverable under a wrongful death action prior to the Kiser opinion. Simply put, the court does not read the language utilized by Judge Wettick from the Kiser decision to be anything other than a statement of the law on economic damages.

The court will also note that the Kiser opinion has not been cited for the proposition made by Judge Wettick in any opinion other than Ehrman. This is a 1994 case and had it, even by inference, allowed a claim of parental or filial consortium, it would have been addressed in subsequent case law. It has not been. Without an express statement by an appellate court, this court is unwilling to follow Judge Wettick’s lead utilizing a statement made in Kiser for which it has never been cited previously before Ehrman.

More importantly, we can find no statement from the legislature of Pennsylvania that the Wrongful Death Act is a change in the law on parental or filial consortium. Nor has the plaintiff or Judge Wettick in the Ehrman opinion cited any. The legislature would have been aware of Pennsylvania case law on the subject. Had they wanted to include claims for parental or filial consortium, they would have done so by an express statement. There is no such statement in 42 Pa.C.S. §8301(c). It only states that “other damages” are allowed. The court sees no reason to read this as anything other than allowing all “other damages” that would have been recoverable under the common law. Without an express statement, the court does not find that the legislature intended any expansion of the law.

In conclusion, if a personal representative brings a wrongful death action, then any action by any other party who could bring an action under Pa.R.C.P. 2202(b) is foreclosed. Furthermore, since this court does not find that the Wrongful Death Act includes claims for parental or filial consortium, those claims cannot stand. Therefore, the preliminary objections will be sustained.

ORDER

And now, to-wit, March 13,2000, it is hereby ordered and decreed that defendant’s preliminary objections to plaintiffs’ amended complaint are sustained. Louise Mathews’ name shall be stricken from the caption and the case shall continue with only the personal representative, Kathleen M. Crowe, as the plaintiff. This, in no way, affects Louise Mathews’ rights to recover as a beneficiary of the wrongful death action. Furthermore, paragraph 22(a) of the amended complaint is stricken with prejudice.

      . The administrator of the estate of Mathews, Kathleen M. Crowe, is the Mathews’ sister. Louise Mathews is the Mathews’ mother.


author: MILLIN, P.J.,

text:
    Haerich v. Phillips

      C.P. of Warren County,
    no. 272 of 1999.

      Thomas E. Africa, for plaintiffs.

      Wayne Hundertmark, for defendant.
    January 20, 2000
   MILLIN, P.J.,

On October 13, 1999, this court entered an order granting the defendant’s motion to strike off the default judgment, for the reason that the court was under the mistaken impression that the plaintiff, in taking the default judgment, had relied upon an agreement to extend time and had taken the default pursuant to Pennsylvania Rule of Civil Procedure 237.2, and the court found that the agreement of counsel did not comply with requirements of Pennsylvania Rule of Civil Procedure 237.6. The court as stated was mistaken in this regard. The record reveals that the plaintiff filed a complaint on May 18, 1999. The record also reveals that the complaint was served upon the defendant on June 14, 1999 by the Warren County Sheriff’s Department. On July 6, 1999, Attorney Thomas Bonavita, then representing the defendant, sent a letter to plaintiff’s counsel confirming a phone conversation stating that the plaintiff had granted Attorney Bonavita additional time to file an answer until July 19, 1999. Despite the foregoing agreement, plaintiff filed a notice to enter judgment by default on July 7, 1999 and served the same upon the defendant by first-class mail and filed a certificate of service. On July 14, 1999, the defendant signed an affidavit for an answer at the office of Attorney Bonavita. The answer itself is dated July 21. Attorney Bonavita failed to file the answer. The defendant entered a judgment by default on July 21,1999. On July 31,1999, the defendant received a copy of the default judgment which was mailed by the Warren County prothonotary on July 30, 1999. On August 9, 1999, defendant, through her current counsel, Wayne H. Hundertmark, Esquire, filed a petition to strike off and/or open default judgment.

A petition to strike a judgment is a common-law proceeding and operates as a demurrer to the record. Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will not be considered and if the record is self-sustaining, the judgment will not be stricken. Comyn v. SEPTA, 141 Pa. Commw. 53, 594 A.2d 857 (1991). Here, this court previously erred when it granted the motion to strike judgment on the grounds that the agreement of counsel did not comply with Pennsylvania Rule of Civil Procedure 237.6. Therefore, the court’s prior order shall be vacated. The record does not indicate that plaintiff’s counsel sent a copy of the notice of praecipe to enter default judgment to the defendant’s then-attorney, Thomas Bonavita. At the time plaintiff’s counsel filed the notice, he was aware that the defendant was represented by counsel by virtue of the conversation with Mr. Bonavita. The rule only requires the plaintiff to serve “the party against whom judgment is to be entered and to his attorney of record, if any.” Pennsylvania Rule of Civil Procedure 237.1(2)(ii). (emphasis added) The court therefore finds that there is no defect apparent on the record and the motion to strike off judgment shall be denied.

The court previously did not consider the defendant’s petition to open judgment as it had granted the petition to strike; therefore the court must now consider the defendant’s petition to open.

A petition to open judgment is an appeal to the court’s equitable powers and is a matter for judicial discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973). In considering a petition to open a judgment the court may consider matters dehors the record. Matlock v. Lipare, 243 Pa. Super. 167, 170-71, 364 A.2d 503, 504 (1976). A petition to open a judgment will not be granted unless three factors coalesce:

(1) The petition to open must be promptly filed;

(2) the failure to appear or file a timely answer must be excused; and

(3) the party seeking to open the judgment must show a meritorious defense.

Here, the petition to open was unquestionably filed promptly. The defendant received notice of the default judgment on July 31, 1999, obtained new counsel and filed the petition to open on August 9, 1999. It is also clear that the third aspect of the requirement is met in that the defendant has filed an answer which alleges what is, if true, a meritorious defense. The court must now consider the second aspect, that is, whether the failure to appear or file a timely answer may be excused. Here, the defendant received notice of intention to take a default on July 7, 1999. On July 14, 1999, the defendant signed an affidavit for an answer at her then-attorney’s office with the understandable expectation that an answer would be filed within the time allowed by law. She knew that her counsel had obtained an agreement for an extension until July 19. Therefore, the defendant had every right to properly believe that an answer had been filed within the time frame permitted. There is no explanation as to why Attorney Bonavita did not file the answer, although there is no indication that Attorney Bonavita had received the notice dated July 7,1999 from the plaintiff to defendant that plaintiff would enter a default judgment. Attorney Bonavita’s letter to plaintiff’s counsel is dated July 6,1999 and based on that letter, Attorney Bonavita may very well have anticipated that no notice of default had been sent, as counsel had agreed to an extension to July 19,1999. Sending a default notice on July 7,1999 would not seem appropriate.

“The power to open judgment should be exercised when the default is the result of oversight or mistake by counsel.” PennDOT v. Nemeth, 497 Pa. 580, 584, 442 A.2d 689, 691 (1982).

Here, the record establishes that the defendant’s attorney did not make a deliberate decision not to defend the suit, which would ordinarily preclude the opening of judgment. Versak v. Washington, 359 Pa. Super. 454, 519 A.2d 438 (1986).

“The rules permitting the entry of default judgments ‘were designed to prevent a dilatory defendant from unreasonably thwarting plaintiff’s efforts to establish a claim. They were not intended “to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from htigation.” ’ ” Bildstein v. McGlinn, 320 Pa. Super. 416, 420, 467 A.2d 601, 603 (1983).

For the foregoing reasons the defendant’s motion to open judgment shall be granted and the court enters the following order:

ORDER

And now, January 20,2000, the court’s order of October 13,1999 is vacated for the reasons herein stated. It is further ordered that the defendant’s motion to open default judgment is granted.

      . Bonavita letter of July 6, 1999 to Thomas E. Africa, Esquire, filed as an exhibit to the plaintiff’s response to motion to strike off.


author: MELODY JR.,

text:
    Commonwealth v. Alles

      C.P. of Chester County,
    no. 99-08418.

      Michelle Fioravanti, for Commonwealth.

      Dawson R. Muth, for defendant.
    February 15, 2000
   MELODY JR.,

We have before us a “license suspension appeal.” After hearing and oral argument, we make the following determinations:

The petitioner sets forth, in his petition, under paragraph 4, the reasons why his appeal should be sustained. The petitioner sets forth reasons (a) through (g) as the reasons. However, at the time of the hearing, the petitioner’s counsel advised the court that the petitioner was only going forward with two reasons: (d) and (g).

(1) Paragraph (d) provides as follows:

“The Pennsylvania Department of Motor Vehicles and the New Jersey Department of Motor Vehicles have not complied with the Driver License Compact with regard to the notice of defendant’s conviction by the Department of Motor Vehicles of New Jersey and the subsequent suspension of defendant’s Pennsylvania operating privileges.”

The Commonwealth’s case was based upon Commonwealth’s exhibit C-l, part of which is a certified copy of a “State of New Jersey, Division of Motor Vehicles, out-of-state driver violation report.” Said exhibit sets forth that the petitioner was convicted on August 5, 1999 for “operate under influence liq/drugs.”

New Jersey statute 39:4-50. Operating or allowing operation by person under influence of liquor or drugs provides in part:

“(a) A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug or operates a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood, shall be subject:....”

The issue before us is whether 75 Pa.C.S. §1581, article III of the Driver’s License Compact has been sufficiently complied with, so as to permit a judge of the court of common pleas to sustain the appellee’s license suspension by the bureau.

It is obvious that under the Commonwealth’s evidence C-l and the New Jersey statute, that the appellee was allegedly convicted of one or more of the following:

“(1) A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.
“(2) operates a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood.
“(3) permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or
“(4) permits another to operate a motor vehicle with a blood alcohol concentration of 0.10 percent or more by weight of alcohol in the defendant’s blood.”

The Commonwealth has not met its burden of proof. The Commonwealth has failed to provide us with sufficient evidence to enable us to determine whether the defendant was convicted of (1), (2), (3) or (4). Therefore, we have not been able to determine whether or not the New Jersey violation was “of a substantially similar nature” to our statute 75 Pa.C.S. §3731. Thus, we do not even reach the issue of “substantially similar.” The Commonwealth has failed to comply with article III of 75 Pa.C.S. §1581, Driver’s License Compact.

Further, with regard to 75 Pa.C.S. §1581, article III of the Driver’s License Compact, the Commonwealth has not met its burden of proof since we find that the New Jersey notice is deficient in that it lacks some of the information required by article III of the compact. We find that the notice failed to identify the convicting court and failed to indicate whether there was a plea of guilty or not guilty or whether the conviction resulted from forfeiture of bail or security as required by article III.

On December 21,1998, the Pennsylvania Legislature amended section 1584 to change the reporting requirements of article III. The amendment eliminated the mandated requirement for reporting states to report all of the information required under article III. The legislature did so by adding the following sentence:

“The omission from any report received by the department from a party state of any information required by article III of the compact shall not excuse or prevent the department from complying with its duties under articles IV and V of the compact.”

On June 30,1999, our judicial brother, the Honorable James P. MacElree II, in the case of Commonwealth v. Harrington, 47 Chester Cty. Rep. 142 (1999), determined that the action of the legislature through its amendment to section 1584 violates the specific requirements of article III of the compact and it violates the due process requirements of the United States and Pennsylvania constitutions. We are constrained by the decision and opinion of Judge MacElree.

(2) Paragraph (g) provides as follows:

“Appellant’s conviction in the State of New Jersey contained a civil reservation which pursuant to New Jersey Rule 3:9-2 prohibits the use of the judgment of conviction in any civil case. Appellant’s judgment of conviction with the civil reservation must be given full faith and credit, as is required by the Pennsylvania and United States constitutions and therefore the New Jersey judgment of conviction may not be used as evidence in appellant’s license suspension appeal.”

Initially, we note that although the petitioner’s conviction was in a municipal court of the State of New Jersey, petitioner has set forth, in his petition, that “New Jersey Rule 3:9-2 prohibits the use of the judgment of conviction in any civil case.” However, the above cited rule is not a municipal court rule, but is instead, a New Jersey Superior Court rule. There is also a similar but not identical rule, which is New Jersey Municipal Court Rule 7:6-2(a)(l), which is the rule that is applicable to the case sub judice.

The petitioner’s attorney argues that pursuant to the New Jersey Rule of Practice, anyone pleading guilty under that section does so making no civil admission and that subsequent civil proceedings, arising out of that guilty plea, cannot be admitted in any civil proceeding arising out of the criminal conduct of the driving while intoxicated charge. See exhibit D-l.

The attorney for the Commonwealth disagreed with regard to the civil reservation and cited the following cases: Eisenberg v. Commonwealth, Department of Public Welfare, 512 Pa. 181, 516 A.2d 333 (1986); Baker v. General Motors, 522 U.S. 222, 118 S.Ct. 657 (1998). In the Baker case, the Supreme Court held that a foreign state cannot determine evidentiary issues in a lawsuit by parties who are not subject to the jurisdiction of the foreign state.

Thus, the above arguments of counsel boil down to an issue, which is before us, but not specifically argued. That issue is as follows:

Whether New Jersey’s civil reservation provision applies to an administrative agency, which has acted under statutory authority to regulate its licensees.

We determine that neither Rule 7:6-2(a)(l) of the New Jersey Municipal Court Rules of Practice nor New Jersey Superior Court Rule of Practice 3:9-2 prevent the Commonwealth of Pennsylvania, Department of Transportation, from exercising its authority pursuant to 75 Pa.C.S. §1581, which is the “Driver’s License Compact.”

When the department acts under section 1581, it does so in an administrative proceeding, which is not equivalent to a “civil proceeding.”

“[W]e are not here dealing with a civil suit to enforce individual rights. Rather, we are dealing with an administrative agency of the sovereign, which seeks to carry out its duty to protect the citizens of the Commonwealth by regulating the conduct of its licensees. It is the interests of many rather than the interest of few which impels the board.” State Dental Council and Examining Board v. Friedman, 27 Pa. Commw. 546, 550, 367 A.2d 363, 366 (1976).

Further, in Eisenberg v. Commonwealth, Department of Public Welfare, 512 Pa. 181, 186, 516 A.2d 333, 336 (1986), the Pennsylvania Supreme Court stated, “However, the department here does not attempt to use the plea as a judicial admission of the fact of fraud. Rather, the conviction entered upon the plea itself is the operative fact which authorizes suspension. This evidence of the conviction itself is not affected by the procedure leading up to the plea, and it is admissible in this administrative proceeding.”

Finally, the United States Supreme Court determined that orders commanding action or inaction have been denied enforcement in a sister state when they purported to accomplish an official act within the exclusive province of that other state, or interfered with litigation, over which the ordering state had no authority. Thus, a foreign state decree cannot determine evidentiary issues in a lawsuit brought by parties who were not subject to the jurisdiction of the foreign state. Baker v. General Motors Corporation, 522 U.S. 222, 118 S.Ct. 657 (1998).

We find that Pennsylvania Department of Transportation’s action suspending a licensee’s driving privilege is an administrative act by an administrative agency. Further, we find that the civil reservation provision of New Jersey Municipal Court Rule 7:6-2 and exhibit D-l do not apply to an administrative agency which has acted under statutory authority to regulate its licensees.

ORDER

And now, February 15, 2000, upon consideration of the evidence, it is hereby ordered and decreed that the appeal of operating privilege suspension is sustained and the suspension is rescinded.

      . This is the caption of the New Jersey statute.

      . Since the Commonwealth has the burden of proof, we are not permitted to use exhibit D-l to provide us with the missing information.