author: RUBRIGHT, J,

text:
    Andrews v. North Schuylkill School District

      Peter M. Villari, for plaintiffs.

      Robert G. Hanna Jr., for defendant.
    June 26, 1990
   RUBRIGHT, J,

This matter is presently before the court on a motion for judgment on the pleadings filed by defendant. Briefs have been submitted and we are now prepared to dispose of the matter.

On October 7, 1986, Michelle Andrews was participating in a game of wiffle ball in the gymnasium of the North Schuylkill Junior-Senior High School. The wiffle ball game was a required gym class activity and was a regular and permitted use of the gymnasium. Plaintiffs allege that Michelle “attempted to touch or tag second base with her right foot when the device used by the defendant for second base suddenly and without warning slipped out from under her right foot, thereby causing her to fall violently to the floor” and sustain injuries. The second base device, a five-sided piece of rubber, was not secured to the gymnasium floor. Plaintiffs allege that this constituted a defect in the construction, design and placement of a base in real property regularly used as a site for a baseball-type activity.

Defendant has filed the instant motion for judgment on the pleadings on the grounds that plaintiffs’ claim is barred by governmental immunity. A motion for judgment on the pleadings may be granted only where no facts are at issue and the law is so clear that a trial would be a fruitless exercise. Beardell v. Western Wayne School District, 91 Pa. Commw. 348, 496 A.2d 1373 (1985). All well-pleaded allegations of the party opposing the motion must be taken as true, while only those facts specifically admitted by the opposing party may be considered against him. Nevling v. Natoli, 290 Pa. Super. 174, 434 A.2d 187 (1981).

Section 8541 of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq., provides that:

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

While the Political Subdivision Tort Claims Act generally provides for immunity, section 8542 of the act sets forth several conditions which, if fulfilled, will impose liability on a local agency. Specifically, section 8542 provides in pertinent part:

“§8542. Exceptions to governmental immunity

“(a) Liability imposed — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

“(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

“(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, ‘negligent acts’ shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

“(3) Real property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, ‘real property’ shall not include:

“(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;

“(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights of way;

“(iii) streets; or

“(iv) sidewalks.”

A plaintiff seeking to recover under section 8542 must meet two distinct requirements. First, he must show that he possesses a common-law or statutory cause of action against the local agency, 42 Pa.C.S. §8542(a), and second, the cause of action must fall within one of the exceptions to governmental immunity contained in section 8542(b). Rhodes v. Lancaster Parking Authority, 103 Pa. Commw. 303, 520 A.2d 122 (1987).

At issue in this case is whether plaintiffs’ claim falls within the real-property exception to governmental immunity. It is plaintiffs’ contention that the gymnasium was unsafe for an activity for which it was regularly used in that a non-slip base device or reasonable alternative, such as traffic cones or bases painted on the floor, was a necessary but absent element of the gymnasium’s floor when used for wiffle ball games. The lack of such a safety feature or element was an aspect within defendant’s care, custody and control of its real property and it is, therefore, actionable under the real-property exception to governmental immunity. Defendant has taken the position that the real-property exception does not apply because the base device was not affixed to the real estate and was, therefore, personalty.

Pursuant to the real-property exception, the conduct alleged in the complaint must directly relate to the condition of the property. Fizzano v. Borough of Ridley Park, 94 Pa. Commw. 179, 503 A.2d 57 (1986). This exception has been read to impose liability for negligence which makes government-owned real property unsafe for activities for which it is regularly used, intended to be used or reasonably foreseen to be used. Vann v. Board of Education, School District of Philadelphia, 76 Pa. Commw. 604, 464 A.2d 684 (1983).

Our review of the complaint reveals that it alleges negligence concerning the care, custody and control of the area of the gymnasium used for wiffle ball. Specifically, the complaint avers in paragraph 10 that defendant was negligent in, among other things:

“(c) failing to install or use a type of base that would not slip or slide out from under those who stepped upon same while participating in baseball-type activities in the said school gymnasium;

“(d) failing to know or reasonably foresee that the regular use of the school gymnasium as a baseball or wiffle ball facility would cause injury to minor-plaintiff as occurred aforesaid;

“(i) using a device for a base during a wiffle ball game that had a propensity to move, slip or slide when stepped upon during its regular and expected use.”

We find that the use of proper bases is an essential safety element of a gymnasium floor being utilized for wiffle ball and it is, therefore, an aspect within defendant’s care, custody and control of its real property, subject to the real-property exception. Our holding is consistent with those of other cases in which the courts have looked beyond whether or not movable fixtures or personalty are involved and have focused instead on whether the real property involved is unsafe for the activity for which it is being utilized by reason of the nature or condition of the property itself. In Singer v. School District of Philadelphia, 99 Pa. Commw. 553, 513 A.2d 1108 (1986), the court held that sufficient matting protection is a necessary element of a gymnasium’s hardwood floor regularly used for gymnastic stunts and, therefore, the lack of such comes within the real-property exception to governmental immunity. Similarly, in Cestari v. School District of Cheltenham Township, 103 Pa. Commw. 274, 520 A.2d 110 (1987), the court held that proper matting could constitute an essential safety element of a school district’s grounds being used for pole-vaulting and, accordingly, the case could come within the real-property exception. Based upon the holdings above, we must disagree with defendant’s argument that plaintiffs’ claims must fail because the base devices were personalty.

Accordingly, we enter the following

ORDER OF COURT

And now, June 26, 1990, it is hereby ordered that defendant’s motion for judgment on the pleadings is denied and dismissed.


source: Caselaw Access Project

author: KEELER, J.,

license: Public Domain

text:
    Quinn v. PennDOT

      John N. Salla, for plaintiffs.

      Robert L. Gallagher, for defendant.

      January 17, 1990
   KEELER, J.,

Plaintiffs, Carol and Joseph J. Quinn, are the parents of Joseph T. Quinn, the plaintiff decedent. On May 23, 1987, the decedent was a passenger in a vehicle involved in a collision on Baltimore Pike near its intersection with Turner Road in Nether Providence Township, Delaware County, Pennsylvania. Plaintiffs brought the present suit against the Commonwealth alleging various defects and/or dangerous conditions of the roadway at the accident scene. The complaint, under its “first cause of action” seeks, in part, compensation for the deprivation of the deceased’s “services, support, maintenance, advice, counsel, help, care, emotional support, companionship, comfort, society, guidance, solace and protection.”

Defendant filed a preliminary objection in the nature of a demurrer to plaintiffs’ complaint. The preliminary objections challenge the complaint to the extent that it seeks redress for loss of the decedent’s consortium by his parents. As is true in most cases where the Commonwealth is a defendant, damages which may be recovered are limited in both scope and amount by the Commonwealth’s sovereign immunity statute. 42 Pa.C.S. §8528 (1982). Defendant suggests that plaintiffs’ claim for loss of consortium due to the death of their son is improperly advanced as loss of consortium by definition does not contemplate the relationship between parent and child, but is limited to the bond between a husband and wife. Thus, the Commonwealth contends that the loss of consortium exception to sovereign immunity does not apply to the present case. See 42 Pa.C.S. §8528(c)(4).

The parties have provided extensive material on this issue and both parties refer to a single case. See Huda v. Kirk, 122 Pa. Commw. 129, 551 A.2d 637 (1988). Each side, however, reaches a different conclusion based upon that opinion and it is easy to see why such different positions can be taken from that single opinion. The problem arising from the opinion in Huda is that it says one thing but appears to do another. In Huda, the court attempts to define “consortium” as part of its analysis and takes a narrow view of its scope. The court defined “consortium” as “conjugal fellowship of husband and wife, and the right of each to the companionship, society, cooperation, affection, and the aid of the other in every conjugal relation.” Id. at 131, 551 A.2d at 638. (citation omitted) In that case, a husband and his minor children sued the Pennsylvania Department of Transportation for the death of .the wife/mother in an automobile accident because of dangerous conditions on the roadway. Id. Both the husband and the children sought, among other things, to collect for loss of consortium in their wrongful death claims. Despite the Huda court’s narrow definition of consortium which would exclude the children from recovering this type of damage, the court appeared to allow the consortium claim of the children to proceed without specifying that only the husband could recover this. Id. at 133, 551 A.2d at 639. The inconsistency between the Huda court’s language and its actions gives rise to the dispute in the instant case. The outcome of this case depends on whether this court decides to follow the definition of “consortium” in Huda or the apparent outcome of that case.

The reason the present opinion turns upon the scope of consortium is due to the sovereign immunity statute of this state. See 42 Pa.C.S. §8528(c). Section 8528(c) provides in part:

“Damages shall be recoverable only for:

“(1) Past and future loss of earnings and earning capacity.

“(2) Pain and suffering.

“(3) Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services. . .

“(4) Loss of consortium.

“(5) Property losses, except that property losses shall not be recoverable in claims brought pursuant to section 8522(b)(5) (relating to potholes and other dangerous conditions).”

Thus, in order for plaintiffs’ claim for companionship, comfort, society, etc., to be within an exception to the sovereign immunity, it must be characterized as a claim for loss of consortium. Because section 8528 does not define consortium, this court must look elsewhere to determine whether or not it includes losses arising from the death of a child.

The intent of the legislature in deciding to allow a claim for damages from loss of consortium is important in determining its scope. The present Sovereign Immunity Act was enacted in 1980, together with the Political Subdivision Tort Claims Act. See 42 Pa.C.S. §8553. If the legislature had wanted to provide for recovery from the Commonwealth in situations like the present case, they could have used more specific terms or defined “consortium” in the Sovereign Immunity Act. The legislature did not utilize such an approach. In contrast, the Political Subdivision Tort Claims Act specifically allows recovery of damages for “loss of support” against a political subdivision. See section 8553(c)(5). Since the present Sovereign Immunity Act was enacted at the same time as the Political Subdivision Tort Claims Act, but uses different language, it is reasonable to assume that the legislature did not intend to allow recovery for the unenumerated variety of damages against the Commonwealth. See 1 Pa.C.S. §1921(e)(5).

In addition to Huda, several cases have restricted recovery for loss of consortium to spousal relations. In one case, a mother sued for damages for loss of consortium for her daughter who was seriously injured in a fall from a bridge. Nevertheless, the court held that such damages are limited to cases where a husband sues for injuries to his wife. See Quinn v. City of Pittsburgh, 243 Pa. 521, 90 Atl. 353 (1914). More recently, the Superior Court was faced with a case claiming loss of consortium for the abortion of a child. See Schroeder v. Ear Nose & Throat Associates, 383 Pa. Super. 440, 557 A.2d 21 (1989). The Schroeder court refused to recognize filial consortium and stated that such claims are limited to spouses. These cases demonstrate the lack of any meaningful distinction between situations where the claimant is a parent seeking compensation for the loss of a child’s services, as opposed to cases involving a child seeking recovery for loss of a parent’s services. The analysis requiring a conjugal relationship under the sovereign immunity statute renders any such claim facially improper.

Based upon the foregoing, this court holds that the definition of “consortium” adopted by the Huda court is the appropriate one for the purpose of the Sovereign Immunity Act. Therefore, in suits against this state, , a parent is not entitled to recover for loss of consortium resulting from the death of a child and vice versa. This court reconciles its decision to follow the definition in Huda with the ultimate outcome in that case by noting that the primary focus in that case was whether a limited wrongful death action could be brought against the state in addition to the survival action. The Huda decision merely states that a limited wrongful death action for loss of consortium could be maintained but neglected to qualify that statement by specifying that only the husband could recover this type of damage.

Defendant’s preliminary objection is sustained and plaintiffs’ complaint is stricken to the extent it seeks recovery for loss of the deceased’s “services, support, maintenance, advice, counsel, help, care, emotional support, companionship, comfort, society, guidance, solace, and protection.”

      . This court is mindful of an existing split of authority with respect to claims for loss of consortium outside of a marital or conjugal relationship. See Anno., 11 ALR 4th 549 (1982) (children seeking recovery for loss of parent); Anno., 54 ALR 4th 112 (1987) (parent’s claim for loss of child).

      . The Equal Rights Amendment to the Pennsylvania Constitution now permits a wife to recover for the loss of her husband’s consortium. Pa. Const., Article I, section 27.

      . This opinion does not purport to determine the extent of recovery in cases against non-governmental bodies for the loss of a child or parent.


author: LEVIN, J.,

text:
    Barrett v. PennDOT

      Anthony DAmico, for plaintiff.

      Brian Baxter, for defendant PennDOT.
    May 25, 1990
   LEVIN, J.,

Before this court is a motion for summary judgment brought by defendant, Pennsylvania Department of Transportation.

This action arises from an .accident which occurred on March 7,1987. On that date, plaintiff was riding his bicycle on Pittsburgh Avenue (or the berm) and hit a pothole. Plaintiff has alleged injuries as a result of this incident and attempts to impose liability on PennDOT.

PennDOT denies liability and asserts that liability of Commonwealth parties is controlled by the limited statutory exceptions to sovereign immunity. 42 Pa.C.S. §5110 et seq. (repealed), now found at 42 Pa.C.S. §8522 et seq.

The Sovereign Immunity Act provides for liability of Commonwealth agencies for alleged dangerous conditions of highways as follows:

“(4) Commonwealth real estate, highways and sidewalks — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons; and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).

“(5) Potholes and other dangerous conditions — A dangerous condition of highways under the jurisdiction of the Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous conditions created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §5510(a)(4), (5) {repealed). Re-enacted in 42 Pa.C.S. §8522(b)(4) and (5). (emphasis supplied)

Since this case involves a motion for summary judgment against plaintiff, the court must resolve all factual disputes in favor of plaintiff. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” It is not the court’s function to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. Thorsen v. Iron and Glass Bank, 228 Pa. Super. 135, 475 A.2d 928 (1984).

The berm or shoulder of a state highway, as part of the highway right-of-way for which PennDOT is responsible, is included in this statutory provision requiring actual written notice of the dangerous condition. Further, it is clear to this court that a pothole is a condition created by natural elements, not artificial ones.

The requirement that actual advance written notice be given to PennDOT of dangerous conditions created by natural elements, as opposed to those created by artificial means, has been consistently upheld. Cressman v. Pennsylvania Department of Transportation, 114 Pa. Commw. 348, 538 A.2d 992 (1988); Stevens v. Commonwealth of Pennsylvania, Department of Transportation, 89 Pa. Commw. 155, 492 A.2d 490 (1985); Merling v. Commonwealth of Pennsylvania, Department of Transportation, 79 Pa. Commw. 121, 468 A.2d 894 (1983); Shestock v. General Braddock School District, 63 Pa. Commw. 204, 437 A.2d 1059 (1981).

The above authority makes it apparent that it is incumbent upon plaintiff to present evidence that PennDOT had prior written notice of the pothole in question. PennDOT asserts that it received no written notice of the pothole with which plaintiff had his accident. Further, plaintiffs have admitted that they have no such evidence. Thus, plaintiffs lack an essential element of their case.

Although this requirement may appear to be unduly cumbersome to a plaintiff, the Commonwealth’s burden in maintaining thousands of miles of Commonwealth highways is equally cumbersome. The task force on sovereign immunity of the Joint State Government Commission of the General Assembly of the Commonwealth of Pennsylvania has noted that while the actual written notice requirement of this category of waived immunity may appear unduly restrictive, the task force was cognizant of the potential liability exposure which arises from the difficulty of maintaining over 45,000 miles of designated Commonwealth highways. This is true particularly in light of the weather conditions existing in Pennsylvania. Sovereign Immunity, General Assembly of the Commonwealth of Pennsylvania, Joint State Government Commission, 14 (May 1978).

Plaintiff challenges the constitutionality of 42 Pa.C.S. §8522(b)(5), alleging that it creates an arbitrary and fortuitous restriction on the ability of a party to recover for damage from potholes, and thus violates both equal protection and due process. However, a statute is cloaked with a strong presumption of constitutionality and one who attacks it bears the burden of demonstrating that the legislation “clearly, palpably and plainly violates the constitution.” Haves v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981), citing Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975). Plaintiff has not met this burden.

The constitutionality of 42 Pa.C.S. §8511(b)(5) has recently been addressed by the Commonwealth Court in Ketterer v. Pennsylvania Department of Transportation, _ Pa. Commw. _, 574 A.2d 735 (1990). The court herein found that no fundamental constitutional right is affected by the written-notice requirement of section 8522(b)(5). Under an equal-protection analysis, the court applied a “heightened standard” of review and found that there is a legitimate basis for the notice requirement under the statute. Accordingly, plaintiff has not demonstrated a constitutional violation.

In conclusion, viewing the facts in a light most favorable to plaintiff, there exists no genuine issue of material fact. Plaintiff admittedly cannot prove that PennDOT had written notice óf the pothole in question, and the constitutionality of the requirement has been consistently upheld by the Pennsylvania courts.

ORDER

And now, May 25, 1990, it is hereby ordered, adjudged and decreed that summary judgment is granted in favor of defendant Pennsylvania Department of Transportation, against plaintiffs Urban S. Barrett and Sara Barrett, and defendant Pennsylvania Department of Transportation is hereby dismissed as a party in this matter.


author: BATTLE, J.,

text:
    Weathers v. Lintzmeyer

      Francis P. Connors, for plaintiff.

      David Auerbach, for defendant.
    June 26, 1990
   BATTLE, J.,

This court entered an order dated January 25, 1990, allowing bifurcation in the divorce action at issue. Thereafter, a divorce decree was signed by the Honorable Harry Bradley on February 2, 1990.

Defendant argues that bifurcation should not have been granted.

Husband has moved for a divorce based upon a statutory three-year separation from wife. The parties were separated in May 1986. Wife maintains that a bifurcation is adverse to her best interest and would jeopardize her security.

The question of whether or not a bifurcation should be granted must be made by the court after careful examination of all the factors with regard to bifurcation and an analysis to whether a bifurcation would be prejudicial to one party or the other.

Moreover, the question of whether to grant bifurcation of a divorce action must be reviewed on its own facts and should not be made pro forma. The determination should be made after the trial judge has examined both the advantages and disadvantages of bifurcation and determines that the consequences of bifurcating the case will be of greater benefit than not bifurcating. Mosier v. Mosier, 359 Pa. Super. 187, 518 A.2d 843 (1986).

This court initially notes that wife filed the complaint in divorce. At some point, when it was determined that pursuing said divorce would not be advantageous, wife opted not to further pursue this action. Consequently, upon the expiration of the statutory three-year waiting period, husband chose to pursue his entitlement to a divorce. In the interim period, husband has fathered two children and wishes to marry the mother of his children.

Since the separation in 1986, the parties have restructured their private lives and have filed separate tax returns for the last two years. In Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374 (1986), the Superior Court held that the bifurcation was properly allowed where the parties had lived separate and apart for more than three years and the marriage was irretrievably broken. In Katz, the court also pointed out that the parties had restructured their private lives following separation, had filed separate income tax returns, and that the husband was living with another woman and had fathered a child with her.

In Taylor v. Taylor, 349 Pa. Super. 423, 503 A.2d 439 (1986), the court held that bifurcation was proper where the husband’s purpose in seeking it was that he wished to remarry. In the Taylor case, the wife opposed bifurcation because she had medical problems and needed to rely on her husband’s medical insurance; she would lose spousal support upon divorce and did not yet have a property settlement to rely upon; and lastly, non-bifurcation provided greater stability for her. and her children. The court held that the disadvantages the wife alleged were not so overwhelming or of such magnitude to refuse bifurcation. The court reasoned that the entry of a divorce decree would not alter the wife’s right to alimony pendente lite, and that bifurcation would be advantageous in that it would accelerate the dissolution of an irretrievably broken marriage, and thus, not hold the husband’s personal life hostage to economic disputes. In the case of Leese v. Leese, 369 Pa. Super. 104, 534 A.2d 1101 (1987), the husband was 84 years old while the wife was only 56. In that case, the Superior Court held that the wife’s belief that she would benefit financially by delaying a divorce decree, i.e., that she would acquire greater interest in the entireties real estate if her husband died prior to the divorce decree being granted, was an inadequate reason for refusing to enter a bifurcated decree. The court reasoned that a more equitable result would be achieved if a bifurcated decree was entered which vested the rights of the parties to a distributive share of the marital property; bifurcation would permit the parties to move forward with their lives without holding the personal life of an 84-year-old man hostage to the economic claims of a younger, undivorced wife.

Wife opposes the bifurcation of this divorce action and the entering of a divorce decree for several reasons. Wife contends that -if the divorce decree were granted, there would be unnecessary delay in settling the equitable distribution of the marital assets. Wife also argues that if the divorce decree were granted, she would lose her medical insurance benefits. Lastly, wife argues that if a decree were granted, she would lose her rights to her husband’s pension benefits.

This court is of the opinion that under applicable case law, wife has not presented any compelling reason why bifurcation should not be permitted. This court addresses wife’s concerns seriatim.

As previously indicated, wife filed her action in divorce over three years ago and subsequently determined that it was not in her best interest to pursue the action further. It was after the three-year separation period had terminated that wife proceeded to comply with local rules and filed the necessary inventory and appraisement.

Once a divorce decree is entered in this matter, the parties can, without delay, proceed to equitable distribution. Wife would not be subject to any delay in settling the equitable distribution aspect of this case. Husband filed a motion for pretrial conference so that the matter could proceed to a hearing before the special master on the issues of equitable distribution. Accordingly, this court finds no merit to wife’s contention that there would be any delay relative to equitable distribution.

Wife has indicated that the entering of a divorce decree would jeopardize her entitlement to medical insurance benefits. The various pleadings in this case, together with the memoranda filed by counsel, indicate that wife is a college graduate with a teaching degree and has some experience in the teaching field. However, during the parties’ period of separation, wife has apparently not pursued any avenue of gainful employment.

Upon review of Rueckert v. Rueckert, 20 D.&C. 3d 191 (1981) and Hoffman v. Hoffman, 350 Pa. Super. 280, 504 A.2d 356 (1986), this court finds no reason to delay husband’s statutory entitlement to a divorce since it was, in fact, wife who filed the initial divorce pleadings. Wife additionally argues that a bifurcated decree would jeopardize her entitlement to her husband’s pension. Under federal law, a husband’s military pension can be divided into a portion for the husband and a portion for the wife. However, at the husband’s death the pension ceases to exist and neither husband nor wife is entitled to their respective portion. The pension’s survivor benefit clause allows the wife to obtain a benefit even after the husband dies. For this reason, it appears that wife is requesting the court to delay this divorce matter until husband’s pension benefits vest. This court is not willing to carve out an exception for Mrs. Weathers. Many cases have come before the bench which require a qualified domestic relations order to be ordered because the parties’ rights to pensions have not yet vested. The court has no control over the type of pension at issue. It is for this very reason that in order to protect non-vested pensions, the concept of a qualified domestic relations order was established. It is certainly unfortunate that the pension in this matter has not yet vested, but to delay a divorce decree until a pension is vested is wholly incongruous to the nature of divorce.

The parties have lived separate and apart for over three years and the marriage is clearly irretrievably broken. Husband has restructured his private life, has fathered two children, and wishes to marry the mother of his children. Bifurcation will not only allow these parties to avail themselves of equitable distribution procedures, it will also be beneficial for the welfare and stability of husband’s minor children in that he will be able to remarry and legitimize them.

This .court finds no justification for further delaying this divorce action.


author: MILLER, J.

text:
    McGinnis v. McGinnis

      James R. Irwin, for plaintiff.

      Joseph F. Kulwicki, for defendant.
    May 31, 1990
   MILLER, J.

Plaintiff has filed a petition for special relief asking that she be granted exclusive possession of the marital residence pen-dente lite.

FACTS

The parties were married several years ago. They separated in March 1987 when the defendant voluntarily moved frpm the marital residence. The reason for his voluntary withdrawal is not unanimously agreed upon. Plaintiff maintains that defendant had a girlfriend, was out of the house much of the time and came home in the early morning hours. She confronted him after this went on for some time and asked him to find another place to live. He moved out in late March 1987. They have not had physical relations since April 1985. Defendant claims that he did not have a girlfriend and that he left out of total frustration. He wanted companionship which he did not feel his wife was giving him. At all events, he now wishes to move back in. He states two reasons for that. One is that he cannot afford the support payments and the other is that he truly wants to reconcile.

In the meantime, defendant has lived in another part of town. Plaintiff has continued to reside in the marital residence, at first with her two sons and now with just the youngest, a 16-year-old. The older son now attends Grove City College.

The divorce complaint was filed in November 1987. Plaintiff claimed that she would not live with defendant, does not want to reconcile and gives us the impression that she would move out if he moved back in. She even thinks that if he lived in a separate room there would be tension in the house which would not be good for her or her son.

DISCUSSION

Before the various changes in the Divorce Code both parties had equal access to tenancy by the entireties property unless there was a protection from abuse order entered against one of them. Now the court has the power to award the right to reside in the marital residence to one of the parties pen-dente lite (23 P.S. §401(h)).

The legislative gives us little guidance as to the criteria we should use in making that decision other than the legislative findings and intent that appear in the preliminary provisions of the code.. It is the policy of this state to deal with the realities of matrimonial experience, encourage and effect reconciliation especially where children are involved, mitigate harm to spouses and children, use available resources to deal with family problems and effectuate economic justice. 23 P.S. §102.

To some extent we have in this case a clashing of some of these purposes. Defendant maintains that he legitimately has a good-faith intention to bring the family back together. He has talked to plaintiff about that on several occasions, sent her flowers on one occasion and attempted to send flowers on another occasion, and moved back in to start the reconciliation process. If that is the purpose we follow we should permit the husband-defendant to have equal access to the marital residence to effectuate a reconciliation.

If, on the other hand, we take plaintiff at her word, she is not interested in a reconciliation and might move out if he moves back in.

The only reported decision from the appellate courts in Pennsylvania is Laczkowski v. Laczkowski, 344 Pa. Super. 154, 496 A.2d 56 (1985).

If one of the parties must be excluded then clearly it should be the husband. The custodial parent and child should remain in the marital residence so that the child’s life does not become disrupted. There is authority to bar the husband from the residence once he has left.

Citing the New Jersey Superior Court, the Lacz-kowski court agreed that after the husband had voluntarily removed himself from the marital residence:

“[I]t would be inimical to the best interests and welfare of the plaintiff and the children to permit their lives, both emotionally and physically, to be traumatically invaded by defendant’s unilateral decision to resume residency in the marital home. The interests and welfare of the plaintiff and children will be best served by maintaining the status quo ante as initiated by the defendant himself.”

The New Jersey Superior Court held that a spouse may be excluded from the marital residence solely because that spouse had been living apart from the residence for a period of time.

A particularly instructive portion of the New Jersey court’s opinion was:

“[T]he mental and emotional health and welfare of the wife and children should not ‘be compromised by the ever-present knowledge that defendant can move in, out and about the. marital home with impunity’[.]”

However, the Laczkowski court cautions:

“Exclusion of a spouse from the marital home during the pendency of a divorce proceeding is a harsh remedy that will not be awarded cavalierly. The need for such an award must be clearly evident in the facts of each case.”

This is not an extreme case where there is a young, unemployed mother with several small children running around the housé where to dispossess her would be clearly wrong. Plaintiff in this' case is gainfully employed. The 16-year-old son, although not a party to this action, is probably flexible enough to live somewhere else. Yet, it was defendant who left in the first place, because of his greater income he is better able to live somewhere else now and the status quo ought to be maintained. Additionally, defendant’s rights and interests in the property can be properly, vindicated by fair rental payments which hopefully would be the subject of negotiation or a master’s recommendations. Gee v. Gee, 314 Pa. Super. 31, 460 A.2d 358 (1983); King v. King, 332 Pa. Super. 526, 481 A.2d 913 (1984); Vuocolo v. Vuocolo, 42 D.&C. 3d 398 (1987).

We will give plaintiff temporary exclusive possession of the marital residence. We do not think that should be forever. We also do not want to strike the critical blow to defendant’s attempt to reconcile if he genuinely wants to do that. Therefore, we will enter an order that will be prospective for three months only. Hopefully, during that period of time something permanent will happen in this case. Either this long-standing divorce should be concluded or the parties should reconcile. Failing all of that we are not foreclosing the right’of either party to file another petition for relief under section 401(h) of the Divorce Code at the expiration of the three months.


author: DOWLING, J.,

text:
    Commonwealth v. Vazquez

      Jill A. Devine, for plaintiff.

      Matthew R. Gover, for defendant.
    June 28, 1990
   DOWLING, J.,

On May 15, 1986, defendant Luis Vazquez Sr., filed a petition for bankruptcy in the United States Bankruptcy Court. Lawrence Frank, Esq. was appointed trustee under a Chapter 7 plan. Although Mr. Frank made an attempt to sell the real property involved, located at 1408-1430 Vernon Street, Harrisburg, in June 1988, the sale did not go through.

From October 1988 to November 1989, Harrisburg City Codes Enforcement Officer Charles Berry inspected the Vernon Street property on various occasions and found several violations of the Harrisburg City Codified Ordinances. Notices were sent, by certified mail, return receipt requested, to the defendant — but not to Mr. Frank — demanding that the assorted violations — which included windows unsecured against entry, broken window glass, and loose exterior brick — be corrected.

On January 23, 1990, a six-alarm fire destroyed the Vernon Street buildings, leaving 69 people homeless and doing extensive property damage in the area. Plaintiff contends that the fire occurred primarily because of defendant’s failure to secure his property, as requested in the citation. The certified mail notices had been sent to defendant’s last known address, where they were signed for by one Wanda Lamos, whose exact relationship, if any, to the defendant is unclear. On March 14, 1990, District Justice Michael Stewart found defendant guilty of violating the Harrisburg City Codified Ordinances, on the counts set forth in the earlier notices, sentenced him to 90 days in jail, and fined him $1,000 for each violation. Mr. Vazquez has appealed his summary convictions to the court.

Defendant argues that his 1986 bankruptcy filing relieves him of any responsibility for maintaining the buildings, according to code standards, during the pendency of the estate in bankruptcy. He further contends it acted as an automatic stay to all judicial proceedings against him, or the property, for the term of its existence, and that the city ordinances’ definition of “ownership” (under which he, defendant, would still be viewed as the “owner of record,” and thus as responsible) must yield to the view set forth in federal bankruptcy law, under which the debtor is no longer considered to be an effective owner.

The Commonwealth responds that the automatic stay provisions do not apply to “an action or proceeding by a governmental unit to enforce Such governmental units’ police or regulatory power.”. 11 U.S.C.S. §362(b)(4). It further contends that no duty to abate City Code violations attaches to a bankruptcy trustee, since this duty is not to be equated with the preservation of the estate and that this remains the owner/debtor’s responsibility.

We do not subscribe to defendant’s contention that a Chapter 7 bankruptcy proceeding acts as a stay against an action such as the one in the case at bar. A municipality’s or state’s police powers, which encompass the need to protect the public health and safety, would be greatly impaired if such were the case. Such a view would allow persons, properties and social conditions to become virtual equivalents of the notorious Typhoid Mary, who insisted that her desire to work as a food handler was her inalienable right as a citizen, irrespective of the fact that she was also a carrier of the typhoid fever virus — with the result that her proud exercise of individualism resulted in the spread of a dread disease.

While the right to file the citations was not affected by the bankruptcy, both the responsibility for maintenance and the capacity to be sued shifted from the title property owner to the trustee in bankruptcy.

The language of the cases construing section 362, relied upon by the Commonwealth, do not support its position in bringing the action against Mr. Vazquez. In the case of Cournoyer v. Town of Lincoln, 790 F.2d 971 (1st Cir. 1986) —which was a Chapter 11 proceeding, not a Chapter 7 — there was no trustee against whom the plaintiff could have proceeded until after the' action was commenced. This, of course, bears no relationship to the scenario in the case at bar, where the trusteeship antedated the action by over two years. In People of the State of Illinois v. Electrical Utilities, 41 Bankr. 874 (D.C. 1984), on the other hand, the bankruptcy petition itself was not filed until after the action was commenced — the reverse of what happened in this instance.

We would add that the single strand of the Commonwealth’s reasoning that has found the least favor with us is the assertion that there is a distinction between a duty to preserve the estate and a duty to abate code violations. If a trustee is to sell a piece of realty, it has to be both habitable and in conformance with the applicable city regulations.

Also, we are troubled by what seem to be procedural irregularities with this case. The Certified receipt card for the notices of the code violation was signed for, not by defendant, but by Wanda Lamos. There is not a clear indication of just who she is in relation to Mr. Vazquez. The testimony of Mr. Berry on this point is not entirely reassuring:

By Mr. Gover:

Q: And the person who signed for this, Wanda Lamos, do you have any knowledge whether she knows Mr. Vazquez?

A: I do not.

Q: Do you have any knowledge whether she communicated these citations to Mr. Vazquez?

Ms. Devine:

A: I do not.

It is well established that the filing of a petition in bankruptcy is a caveat to all the world, and is, in effect, an attachment and an injunction. Bankr. Act. §70, sub.d(5), 11 U.S.C. §§110(d)(5); In re American Home Furniture Co. of Pittsburgh, 265 F.Supp. 345 (D.C. Pa. 1967). It is likewise a first principle that title to the bankrupt’s property vests in the trustee.

In the instant case, there is no indication that there was any attempt, on the city’s part, to check public sources of information regarding the status of the realty (such as the bankruptcy court records) other than the title and tax assessment records for local real estate. While we would be able to understand a governmental entity being less than thorough in its research if the time span involved were a matter of hours or days, we are, in the instant case, dealing with a period of one year and four months — the period from the date of the first code violation notice to the date of the fire. With no response or action at all on this matter from the putative defendant during this time, it is not unreasonable to ask why no further attempts to elucidate the status of this realty were undertaken. Indeed, as far as anyone on plaintiffs side might have deduced from the available evidence, Mr. Vazquez could have died in this interim, and Ms. Lamos have been his executrix.

The Commonwealth should, it seems to us, have at least considered the specific possibility that a bankruptcy filing could account for this inaction. If bankruptcies were as relatively rare as they used to be, this might not be the case, but, in an era like our own, where every major urban area (and our fair state capital is, we regret to say, no exception) is pockmarked with literally hundreds of abandoned and decaying properties whose “owners of record” are in bankruptcy, this is not so remote a possibility that it should escape consideration by our municipal authority. If, as Mr. Berry testified, the necessary information about city properties in bankruptcy “[is] not listed on the [computer] screens” that are used for these research purposes, we would suggest that the person or persons charged with programming those units be instructed to expand their data input to include this all-too-typical area of what might be called “the reality of realty” in the 1990s.

Accordingly, we enter the following

ORDER

And now, June 28, 1990, the appeal is sustained, and defendant is found not guilty.


author: SOKOLOVE, J.,

text:
    Commonwealth v. Miles

      Gayle M. Baker, assistant district attorney, for the Commonwealth.

      Dean P. Arthur, for defendant.
    January 12, 1989
   SOKOLOVE, J.,

After a waiver trial on June 20, 1988, we found defendant Ronald D. Miles guilty of possession of a prohibited offensive weapon and not guilty of the summary offense of purchase, consumption, possession or transportation of intoxicating beverages. Defendant filed timely motions in arrest of judgment and for a new trial. We have reviewed counsel’s memoranda of law and heard oral argument. We deny defendant’s post-trial motions.

The evidence presented at trial revealed that Officer Ray Weldie of the Lower Southampton Police Department was summoned to an apartment complex at about 11:00 p.m. on February 19, 1988 to investigate two suspicious individuals. The apartment manager directed the officer to defendant and a companion who were in an automobile in the parking lot. The officer approached the automobile and spoke to defendant and the other passenger. The passenger ran away, but defendant walked up to the officer. Officer Weldie observed that defendant walked with a staggering gait, swayed and had slurred speech, bloodshot eyes and an odor of alcohol on his breath. Defendant submitted to a field sobriety test, which he failed, and the officer placed him under arrest. Subject to the arrest, the officer searched defendant, finding a “butterfly” knife and brass knuckles in his pockets. Defendant later. passed the breathalyzer test administered at the police station.

We did not find the “butterfly” knife to be a prohibited offensive weapon. The present controversy centers on the status of the brass knuckles. The brass knuckles were entered into evidence at trial, and we viewed them again aftér oral argument. They were somewhat unusual brass knuckles in that they consisted of a knife blade folded into a piece of metal containing four finger holes. When the knife is closed, it blocks the finger holes. In other words, the knuckles can only be used when the blade is open and exposed. Defendant testified that he had purchased the knuckles in a retail store.

Section 908(c) of the Crimes Code, 18 Pa.C.S. §908(c), defines the offensive weapons it prohibits as:

“Any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.”

We believe that the knuckles in this case fit within the specifically enumerated “metal knuckles” of the statute and are, therefore, prohibited offensive weapons. Defendant argues that, because the blade must be engaged to utilize the knuckles, the knuckles are a knife, not “metal knuckles.” We do not agree. We concluded from our close examination of the knuckles that they could definitely be used as metál knuckles, even with the knife exposed, and, further, because of the knife, that they were particularly threatening metal knuckles. Defendant claims that section 908(c) requires a thumb hole for metal knuckles, which these knuckles did not include. We see no such requirement in the statute or any case law interpreting it. Metal knuckles may consist of only four holes.

Defendant finally contends that his conviction must be reversed because the Commonwealth failed to prove that the knuckles had no common lawful purpose. We agree that if the knuckles had not been encompassed by the specific category, “metal knuckles,” the Commonwealth would have been forced to prove that the knuckles fell within the catchall of section 906(c) as an “implement for the infliction of serious bodily injury which serves no common lawful purpose.” Proof of no common lawful purpose would then have been an essential element of the Commonwealth’s case. Commonwealth v. Ashford, 263 Pa. Super. 100, 397 A.2d 420 (1979). This burden was not imposed upon the Commonwealth in this case because the knuckles were contained in the enumerated list of prohibited weapons. Just as the Commonwealth would not be required to prove that a grenade or a machine gun had no common, lawful purpose, the Commonwealth was not required to prove that the knuckles had no common, lawful purpose. The legislature, in drafting section 908(c), clearly identified the specifically enumerated items as prohibited weapons without further proof. The legislature found as a matter of policy that the particularly listed items had no common, lawful purpose.

For the foregoing reasons, we deny defendant’s post-trial motions and enter the following

ORDER '

And now, January 12, 1989, it is hereby ordered and decreed that defendant’s motions in arrest of judgment and for a new trial are denied and dismissed. Defendant is to appear for sentencing on February 13; 1989 at 9:30 a.m. in court room no. 7, Bucks County Courthouse, Doylestown, Pa.


author: D’ALESSANDRO, J.,

text:
    Bowser v. Wayne Avenue Medical Associates

      Lawrence Feldman, for plaintiffs.

      Frederic L. Goldfein, for defendant.
    July 31, 1990
   D’ALESSANDRO, J.,

Before this court is the Superior Court’s remand of an order and opinion of this court dated September 26, 1988, wherein this court entered judgment in favor of all defendants and against all plaintiffs. The Superior Court by order and memorandum filed August 16, 1989 remanded the case to this court with directions to supplement our opinion with our reasons for rejecting plaintiffs’ constitutional arguments.

The complaint alleges a misdiagnosis of Claudette Bowser’s pregnancy, which resulted in the birth of a normal and healthy child. The complaint contains four counts alleging negligence, loss of filial consortium, fraud and breach of warranties. By our order and opinion of September 26, 1988, we determined that:

“This lawsuit alleges that the defendants negligently failed to diagnose minor plaintiff Claudette Bowser’s pregnancy and that as a result, plaintiff was unable to obtain an abortion and, subsequently, gave birth to a healthy child.

“Plaintiff claims that but for defendants’ failure to diagnose, she would have known of her pregnancy in time to undergo an abortion. In other words, this is a ‘wrongful birth’ cause of action which is barred in Pennsylvania by 42 Pa.C.S. §8305.”

Accordingly, we dismissed plaintiffs’ entire complaint.

Plaintiffs appealed our order and opinion on the basis that (1) the trial court erred in holding that section 8305 was applicable to “all of appellants’ several causes of action”; and (2) section 8305 is unconstitutional because it (a) “unduly burdens [the] fundamental right to choose an abortion,” (b) “impermissibly discriminates according to exercise of [a] fundamental right,” and (c) retroactively abolishes their vested cause of action for wrongful birth.

We shall now address • plaintiffs’ constitutional arguments.

First, plaintiffs argue that section 8305 is unconstitutional because it unduly burdens the fundamental right to choose an abortion.

Plaintiffs argue that integral to the right to choose an abortion is “the physician . . . both assisting the woman in the decision-making process and implementing her decision should she choose abortion.” Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 427, 103 S.Ct. 2481, 76 L.Ed. 2d 687 (1983). Efforts to interfere with this physician-patient relationship unduly burden the right to choose an abortion and are unconstitutional. See Thornburgh v. American Coll. of Obst. & Gyn., 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed. 2d 779 (1986). It makes no difference whether this interference is accomplished by mandating medical practices which interfere with this right, or by inviting medical malpractice which undermines this right, as does section 8305. Both types of interference unduly burden the fundamental right to choose an abortion.

Section 8305(A) states:

“(a) Wrongful birth — There shall be no cause of action or award of damages on behalf of any person based on a claim that but for an act or omission of the defendant, a person once conceived would not or should not have been born.”

The Supreme Court of the United States in Maher v. Roe, 432 U.S. 453, 97 S.Ct. 2376, 53 L.Ed. 2d 484 (1977), stated:

‘Roe [v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 1471] did not declare an unqualified constitutional right to an abortion . . . Rather the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a state to make a value judgment favoring childbirth over abortion. . Id.., at 473-4, 97 S.Ct. at 2376.

In enacting section 8305, the Pennsylvania legislature made a value judgment favoring childbirth over abortion. The legislature found the cause of action for wrongful birth to be so reprehensible that it decided as a matter of public policy to abrogate a cause of action in wrongful birth.

The legislation does nothing to prevent a woman from obtaining an abortion. It simply prevents her from filing suit claiming that but for the act or omission of a defendant, a person once conceived would not or should not have been born.

Thus, we conclude that the legislation does- not impinge upon the right of a woman to have an abortion.

Secondly, plaintiffs argue that section 8305 im-permissibly discriminates against the fundamental right to choose an abortion. Plaintiffs argue that “any classification which serves to penalize the exercise of a [fundamental right] will violate equal protection absent a compelling state interest.” Dunn v. Blumstein, 405 U.S. 330, 339, 92 S.Ct. 95, 31 L.Ed. 2d 274 (1972).

Plaintiffs also argue section 8305 impermissibly discriminates against a woman who desires to exercise her right to an abortion and that section 8305 plainly modifies the common law of torts so as to limit the right of recovery according to how a woman exercises her fundamental right to control her reproductive life.

We conclude that the legislation does not operate to the disadvantage of a suspect class or impinge upon a fundamental right. Thus, the legislation passes constitutional scrutiny if it rationally furthers some legitimate state purpose. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed. 2d 16 (1973). When an issue involves sensitive policy choices, the appropriate forum for their resolution in a democracy is the legislature. “We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ ” Maher v. Roe, 432 U.S. at 480.

Here, the legislature has made a policy choice to abrogate wrongful birth causes of action. As a matter of public policy, this Commonwealth has recognized the intrinsic value of all individuals and decided that the failure to abort an unborn child should never constitute a wrong.

Thus, we conclude that the legislation rationally furthers the legitimate state purpose of recognizing the intrinsic value of human life. Therefore, the abrogation of a cause of action for failure to abort an unborn child is not unconstitutional.


author: McCLOSKEY, P.J.,

text:
    Stine v. Nagle Corp.

      Jack E. Feinberg, for plaintiffs Fenton D. Stine, Joseph J. Bluis and Mary A. Meza.

      Francis T. McDevitt, for plaintiff Donald C. Snyder.

      Oscar S. Schermer, for plaintiff Harold Bitting.

      David M. Kozloff, for defendants Nagle Corp., Selkirk Mining Co. and Gordon Land Co.

      Robert I. Cottom, for defendants Richard Ryon, Ryon Realty Co. Inc. and Richard Ryon Agency.

      Jessie L. Smith, for the Commonwealth of Pennsylvania, Department of Environmental Resources.

      James K., Thomas II, for defendant Donald C. Snyder Jr.
    May 17, 1990
   McCLOSKEY, P.J.,

On April 30, 1984, the bodies of Thomas Frew, Connie Bluis, Mark Bluis, Sheryl Bluis, Steven Meza and Patrice Yohey were discovered at the bottom of a coal hole which opened into an abandoned mine shaft on land of defendant Nagle Corporation. The decedents were occupants of the four-wheel-drive 1972 Chevrolet Blazer of decedent Thomas Frew. Six years have passed since suits were commenced by the various plaintiffs-administrators of the respective decedents’ estates against the various defendants.

The defendants Selkirk Mining Company of Pottsville, Selkirk Mining Company, Nagle Corporation, Gordon Land Corporation, Richard B. Ryon, Ryon Realty Co. Inc. and Richard Ryon Agency have filed motions for summary judgment. Extensive discovery has been made. Depositions, interrogatories, affidavits and other documents have been filed of record. No evidence was offered as to liability of defendants Selkirk Mining Company of Pottsville, Selkirk Mining Company, Gordon Land Corporation, Richard B. Ryon, Ryon Realty Co. Inc. and Richard Ryon Agency. Briefs have been filed and oral argument heard. At oral argument, David M. Kozloff, Esq. and Ronald E. Cirba, Esq. appeared on behalf of defendant, Nagle Corporation; Bobbie Ann Thornburg, Esq. appeared on behalf of the plaintiffs-administrators of the estates of Connie Bluis, Mark Bluis, Sheryl Bluis and Steven Meza. Oscar S. Schermer, Esq., counsel for the plaintiff-administrator of the estate of Patrice Yohey, and Francis T. McDevitt, Esq., counsel for the plaintiff-administrator of the estate of Thomas Frew, did not appear but by correspondence gave notice of their requests to join in the oral argument of attorney Thornburg.

Sharp Mountain is wilderness land riddled with active and abandoned coal-mining operations. Generations have used Sharp Mountain for hiking, camping, picnicking, and now also for biking, snowmobile riding, and operating off-the-road vehicles. Plaintiffs’ decedents were last seen on the evening of April 28, 1984. The decedents were known to have enjoyed camping and “four-wheeling” on the Sharp Mountain.

The Pennsylvania Recreation Use of Land and Water Act (February 2, 1966, P.L. 1860, §§1-8; 68 P.S. §§477-1 through 477-8) provides as follows:

“§477-1. Purpose, liability

“The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

“§477-2. Definitions

“As used in this act:

“(1) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.

“(2) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises:

“(3) ‘Recreational purpose’ includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports and viewing or enjoying historical, archaeological, scenic, or scientific sites.

“(4) ‘Charge’ means the admission price or fee asked in retúrn for invitation or permission to enter or go upon the land.

“§477-3. Duty to keep premises safe; warning

“Except as specifically recognized or provided in section6 of this act, an owner of land owes no duty of care to keep the premises safe W entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

“§477-4. Assurance of safe premises; duty of care; responsibility, liability

“Except as specifically recognized by or provided in section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

“(1) Extend any assurance that the premises are safe for any purpose.

“(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

“(3) Assume responsibility for or incur liability for any injury to persons or property caused by an act of omission of such persons.

“§477-5. Land leased to state or subdivision

“Unless otherwise , agreed in writing, the provisions of sections 3 and 4 of this act shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.

“§477-6. Liability not limited

“Nothing in this act limits in any way any liability which otherwise exists:

“(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

“(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.

“§477-7. Construction of act

“Nothing in this act shall be construed to:

“(1) Create a duty of care or ground of liability for injury to persons or property.

“(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

“§477-8. Repealer

“The Act of September 27, 1961 (P.L. 1696), entitled [section 1629 of Title 12], is repealed.

“All other acts or parts of acts are repealed in so far as inconsistent herewith.”

The situs of the incident sub judice was open woodland. The public in general, and plaintiffs’ decedents in particular, made use of defendant’s land for the recreational purpose of pleasure driving. Defendant knew of this use by the public. Defendant made no charge to the public or to plaintiffs’ decedents for this recreational use of the land. Defendant gave no warning to plaintiffs’ decedents of the alleged dangerous condition on its land. Defendant denies knowledge of the alleged dangerous condition of the situs prior to the incident.

Although others knew of the dangerous condition of the situs, plaintiffs’ counsel point to no evidence that defendant knew of this danger. Plaintiffs’ counsel contend that defendant had a duty to inspect its land of some several hundred acres of mostly mountain woodland and to protect the public from any dangerous condition discovered on its land.

Plaintiffs’ counsel cites Rosa v. United States, 613 F. Supp. 469 (D.C. Pa. 1985) in support of their contention that defendant’s failure to warn plaintiffs’ decedents, constitutes a willful failure to warn. However, Rosa defines “willful” at 476:

“[T]hree elements: (1) foreseeability of the danger; (2) defendants’ knowledge of the danger; and (3) the actions taken by the defendant in light of the first two factors.”

Plaintiffs’ counsel point to no evidence that defendant should have foreseen the danger or that defendant knew of the danger. Thus, the lack of action by defendant cannot constitute willful negligence.

Defendant’s knowledge that the public used defendant’s land for the recreational purpose of pleasure driving and that an abandoned mine shaft existed on its land, does not impute to defendant the knowledge that plaintiffs’ decedents would plummet 70 feet into an unknown opening of the abandoned mine shaft. Capriotti v. Bunnell, 685 F.Supp. 462, 466 (M.D. Pa. 1988).

Moreover:

“No argument has been advanced by plaintiff that defendant had the requisite intent to injure implied by the word ‘malice.’ Consequently, the inquiry turns on whether there was a willful failure to guard or warn.” Livingston by Livingston v. Pa. Power & Light Co., 609 F.Supp. 643, 648 (D.C. Pa. 1985).

Although the facts must be viewed in a light most favorable to plaintiffs, “An issue is ‘genuine’ only if the evidence is such that a reasonable jury could find for the party opposing the motion.” Capriotti v. Bunnell, 685 F.Supp. 462, 465 (M.D. Pa. 1988). Plaintiffs’ counsel point to no evidence of record that defendant knew or should have known of the danger which led to the deaths of plaintiffs’ decedents.

Plaintiffs contend that Sharp Mountain is so inherently dangerous that it is unfit for recreational use; thus, the Pennsylvania Recreation Use of Land and Water Act should be inapplicable. This court cannot agreq':

“[A]n owner who directly or indirectly invites or permits a person to use the property for recreational purposes does not extend any assurance that the premises are safe. . .” Barrett v. Pennsylvania Gas & Water Co., 631 F.Supp. 731, 734 (M.D. Pa. 1985).

Neither the act nor any judicial authority supports plaintiffs’ contention. Summary judgment must be entered in favor of defendants.

ORDER

And now, May 17, 1990, at 12:25 p.m., upon review of the pleadings, depositions, affidavits, interrogatories and other record papers, and upon consideration of the briefs of counsel and after argument, it is hereby ordered that the motions for summary judgment of the defendants, Nagle Corporation, Selkirk Mining Company of Pottsville, Selkirk Mining Company, Gordon Land Corporation, Richard B. Ryon, Ryon Realty Co. Inc., and Richard Ryon Agency, are granted.


author: PEREZOUS, J.,

text:
    Donegal Mutual Insurance Co. v. Progressive Casualty Insurance Co.

      Edward J. Coyle, for plaintiff.

      Jered L. Hock, for defendant Progressive Casualty Insurance Co.
    June 5, 1990
   PEREZOUS, J.,

On or about December 16, 1987, plaintiff Donegal Mutual Insurance Company commenced a declaratory-judgment action Seeking, inter alia, a decree that defendant Progressive Casualty Insurance Company is obliged to assume the defense of or provide insurance coverage to defendant Deborah Hart. An answer with new matter was filed by Progressive on or about June 23, 1988. Plaintiff filed a reply to the new matter. On or about September 7, 1988, plaintiff filed an amendment to the declaratory judgment complaint. Progressive responded with an answer and new matter filed on or about March 29, 1989. Subsequently, the parties engaged in discovery. On November 15, 1989, Progressive filed a motion for summary judgment which is currently before this court.

This suit is a declaratory-judgment action involving an automobile insurance coverage dispute arising out of a single-vehicle accident occurring on May 28, 1984. On this date, Hart was involved in an accident when the vehicle she was operating left the roadway and struck a tree. Defendants David Hart, Cheryl Foley and Shannon Foley were allegedly passengers in the vehicle. As a result of this accident, Cheryl Foley was rendered a quadriplegic. David Hart and Shannon Foley also suffered injuries.

At the time of the collision, David Hart was insured under a policy issued by plaintiff Donegal. He is alleged to have grabbed the steering wheel of the vehicle immediately prior to it having collided with a tree. Subsequently, coverage for both Deborah and David Hart was requested under his Do-negal policy.

It is Donegal’s position that Deborah Hart was an insured of Progressive at the time of her accident and that it is Progressive which , has the primary obligation to defend and indemnify her. While Progressive admits that it had insured Hart prior to the time of her accident, it specifically denies that this policy was in effect on the day of the accident, May 28, 1984. Progressive argues that Hart’s policy had been canceled prior thereto due to non-payment of premiums. Donegal maintains that Hart’s policy was not properly canceled and that it was in full force and effect at the time of the accident. This declaratory-judgment action was commenced in order to address this disputed issue of coverage.

The factual circumstances surrounding cancellation of the automobile insurance policy issued by Progressive are not in dispute. On or about November 22, 1983, Hart entered into a “premium finance agreement” with Progressive Premium Budget Inc. PPB is an Ohio corporation which provides premium financing for Progressive Casualty insureds and is not a party to this action. Pursuant to the terms of the agreement, PPB agreed to finance the full amount of Hart’s automobile insurance premium in exchange for a cash down-payment and a promise to make nine monthly installment payments to PPB.

According to the terms of the premium finance agreement, PPB was granted a power of attorney by Hart and had the authority to cancel insurance financed by the agreement if payment of any installment was not made according to schedule. Upon cancellation, the agreement provided that any unearned premiums would be applied against the outstanding balance and any credit balance after cancellation would be refunded.

Hart failed to timely forward her first installment payment to PPB and on January 4,1988 Progressive issued a courtesy “notice of cancellation due to non-payment of premium” advising Hart that cancellation of the policy would take effect on January 20, 1984 if payment was not received by PPB on or before the cancellation date. Sometime between January 4, 1984 and January 20, 1984, Hart forwarded her installment payment to PPB and a “notice of reinstatement” was issued which also notified her that the second installment payment was due on or before January 22, 1984.

Once again, Hart failed to timely make her second installment payment and on January 31, 1984, Progressive issued a second couftesy “notice of cancellation due to non-payment of premium” advising Hart that cancellation of the policy would take effect on February 16,1984 if payment was not received by PPB on or before the cancellation date. Progressive contends that they were not required to provide Hart with any notice of cancellation given the terms of the premium finance agreement and that the notices forwarded to Hart were merely courtesy notices. It is Progressive’s contention that the agreement provides that cancellation can be effectuated by PPB, as authorized agent of Hart, if any installment is not paid within 15 days after its due date.

Hart failed to forward her second installment payment on or before February 16, 1984 and the policy was canceled with cancellation effective February 16, 1984. Progressive claims that since cancellation was effectuated by Hart’s authorized agent, they are not required to comply with the statutory and regulatory requirements concerning cancellation notices.

Subsequent to cancellation, PPB forwarded three refund checks to Hart and she endorsed and cashed each of the checks prior to the accident. Moreover, Progressive was never notified, Cither by Hart or the insurance commission, that Hart sought review of the cancellation or challenged the cancellation in any manner whatsoever. Finally, it is Progressive’s contention that cancellation was not done at the initiative of Progressive, and therefore Progressive was not required to issue cancellation notices, but did so only as a matter of courtesy to Hart.

DISCUSSION

In deciding the instant motion for summary judgment, this court is bound by the provisions of rule 1035 of the Pennsylvania Rules of Civil Procedure which provides that summary judgment can be granted only where “there is no genuine issue as to any material fact.” Pa.R.C.P. 1035(b). The burden of proving that there is no genuine issue of material fact is on the moving party, and all doubts are to be resolved against him. Helinek v. Helinek, 337 Pa. Super. 497, 487 A.2d 369 (1985). Moreover, summary judgment “should only be granted in the clearest of cases.” Kotwasinski v. Rasner, 436 Pa. 32, 41, 258 A.2d 865, 869 (1969). Within this context, it must be recognized that rule 1035 states that summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Sergi v. School District of the City of Pittsburgh, 28 Pa. Commw. 576, 368 A.2d 1359 (1977).

The first issue this court must decide is whether an insurer must comply with the statutory and regulatory requirements concerning cancellation notices when an automobile insurance policy is canceled by an insurance premium finance company pursuant to the terms of an insurance premium finance agreement.

Hart voluntarily entered into a premium finance agreement with PPB whereby PPB agreed to pay her automobile insurance policy premium in return for a cash down-payment and a promise to make monthly installment payments. There is no dispute that Hart failed to timely forward her installment payments and the insurance policy was canceled. In asserting that the cancellation was ineffective because Progressive failed to comply with the statutory and regulatory requirements concerning cancellation notices, Donegal ignores the express provisions of the premium finance agreement as well as the statutory law applicable.

The statutory requirements concerning cancellation notices are set forth in the Pennsylvania Automobile Insurance Statute, 40 P.S. §1008.1 et seq. More specifically, 40 P.S. §1008.5 proscribes the manner in which certain parties may cancel and also outlines the contents of the cancellation notice those parties must provide. Prior to enumerating the specific requirements, the statute states:

“No cancellation or refusal to renew by an insurer of a policy of automobile insurance shall be effective unless the insurer shall deliver or mail, to the named insured at the address shown on the policy a written notice of the cancellation or refusal to renew.” (emphasis supplied)

This provision is significant because it expressly delineates that the notice requirements contained in the statute apply only to insurers. An insurer is defined as “any insurance company, association or exchange authorized to transact the business of automobile insurance in the Commonwealth of Pennsylvania.” 40 P.S. §1008.1(3).

In the present case, the statute is entirely inapplicable because the policy was canceled by the premium finance company. Pursuant to the power of attorney contained in the Premium Finance Agreement, PPB, as authorized agent of the insured, notified Progressive that the policy was canceled due to the insured’s failure to timely forward the installment payment within 15 days after it was due. PPB is not an “insurer” as defined in 40 P.S. §1008.1 and was not required to comply with the formal notice requirements. Moreover, since the policy was canceled by the insured’s agent acting under a valid power of attorney obtained from the insured as part of a plan for financing premium payment, Progressive was not required to comply with the statutory notice requirements. Prudential Property and Casualty Insurance Company v. Safeguard Mutual Insurance Company, 528 F.Supp. 709 (E.D. Pa. 1981).

Safeguard involved a declaratory judgment action between two insurance companies concerning the propriety of the defendant’s cancellation of an automobile liability policy and its facts are virtually indistinguishable from the present case. In Safeguard, the underlying insured had entered into a premium finance agreement whereby, in return for a down payment and a promise to make monthly installments, the finance company paid the insured’s automobile insurance premium and a policy was issued by defendant Safeguard. The premium finance agreement provided that the insured appointed the finance company as its attorney-in-fact to cancel any insurance and to receive and refund any unearned premiums. Subsequently, the insured failed to timely forward an installment payment and the policy was canceled. After cancellation, the insured was involved in a collision. The driver and passenger of the other vehicle then made a claim for uninsured-motorist benefits from Prudential and Prudential filed suit seeking a declaration that the policy issued by Safeguard was in force at the time of the accident because Safeguard had wrongfully canceled the policy. Prudential asserted that the insurance company’s failure to comply with the cancellation provisions of the Pennsylvania Automobile Insurance Statute, 40 P.S. §1008.1-10, rendered the cancellation ineffective.

The court summarily rejected the plaintiffs argument that the cancellation provisions of the statute were applicable in this instance and found that the notice provisions had no application because the insurer did not cancel the policy. Rather, the insured, acting through his duly authorized attorney-in-fact, canceled the policy himself. The .court stated:

“Plaintiffs assertion that [the insured’s] policy was canceled without proper notice as required in 40 P.S. §1008.5 cannot be sustained. Section 1008.5 requires that the insurer give 15 days notice to the insured when it cancels or refuses to renew the insured’s policy. 40 P.S. §1008.5. The clear and unambiguous language of this statute states that the notice requirement is applicable only when the cancellation is effected at the initiative of the insurer. That is simply not the case here . . . the fact that the power to cancel was exercised by [the insured’s] attorney-in-fact does not enhance plaintiffs argument.” Id. at 711. (emphasis supplied)

Progressive submits that Safeguard is controlling in the instant action. Since the Progressive policy was canceled by the insured acting through PPB, her authorized agent, the cancellation provisions of the Pennsylvania Automobile Insurance Statute are inapplicable.

The argument propounded by Progressive has been accepted by several state courts in construing their particular auto insurance cancellation statutes. Although this court is not bound to follow these cases, we find them persuasive due to the similarity of the particular statutory provisions of each state with the unambiguous language of the Pennsylvania statute.

This argument is also supported by the express provisions of the Insurance Premium Finance Company Act, 40 P.S. §3301 et seq. While the Insurance Premium Finance Company Act was not in effect on the day of the accident involved in this case, its provisions provide some guidance as to the insurer’s responsibility where insurance is secured through a premium finance agreement. The act specifically applies to insurance premium finance companies and sets forth procedures to be followed by the company when cancellation is effectuated under a premium finance agreement containing a power of attorney. More importantly, 40 P.S. §3310(d) provides “the insurer shall not be required to send the insured any notice of cancellation when the insurance policy is canceled by an insurance premium finance company pursuant to the terms of this section.” The above-cited provision amply illustrates defendant’s contention that the statutory and regulatory provisions concerning cancellation of an automobile insurance policy are inapplicable when cancellation is effectuated by an insurance premium finance company. As such, plaintiffs assertion that the policy issued to Hart by Progressive was in force on the date of this accident due to Progressive’s failure to comply with the statutory requirements is entirely without merit.

Assuming arguendo that the Pennsylvania Automobile Insurance Statute, 40 P.S. §1008.1-10, is applicable, it is this court’s view that Progressive’s actions were entirely in accordance with the provisions. Title 40 P.S. §1008.6(2) provides that the notice requirements set forth in section 1008.5 are inapplicable “if the named insured has demonstrated by some overt action to the insurer or its agent that he wishes the policy to be canceled or that he does not wish the policy to be renewed.”

In Federal Kemper Insurance Company v. Commonwealth Insurance Department, 509 Pa. 1, 500 A.2d 796 (1985), the plaintiff was issued an automobile policy for a six-month period. Prior to expiration, the carrier sent out a premium notice for coverage during the next six months. The insured received the notice but did not forward his premium. After expiration of the policy, the carrier sent a second notice which stated that if payment was made by a certain date, coverage would be retroactive to the original expiration date. Once again, the insured ignored this notice and did not pay the premium. Coverage was discontinued and the carrier sent a third notice advising the insured that if he paid the outstanding premium,' the policy would be reinstated within one day after payment, without retroactive coverage. Subsequently the insured was involved in an accident and attempted to tender the premium, seeking retroactive coverage. The carrier refused and the insured filed for review by the Insurance Commission claiming that the carrier had failed to comply with 40 P.S. §1008.5 concerning cancellation and non-renewal notices. The insurance commissioner held for the insured and the Commonwealth Court affirmed. On appeal, the Pennsylvania Supreme Court held that the insurer’s acts were proper in all respects and the carrier was not required to issue, a cancellation notice or notice of non-renewal because the insured effectively canceled the policy by “overt acts” under 40 P.S. §1008.6(2) when he failed to pay the premium despite knowledge that it was due. The court found that the insured’s knowing refusal to pay an overdue premium constitutes an overt act, thereby relieving the insurer of its obligation to issue any cancellation notice or notice of non-renewal.

The present case is substantially similar to Federal Kemper in that defendant Hart’s conduct, in authorizing PPB to cancel her policy if her premium was not paid, is sufficient to evidence her intent to cancel, thereby rendering the notice requirement inapplicable. Prior to cancellation of the policy at issue, PPB advised defendant that the policy would be canceled if the premium was not forwarded within 15 days. Plaintiff does not deny that Hart received this notice, nor does it deny that she failed to forward her premium payment despite knowledge that it was due.

As in Federal Kemper; the insured’s knowing refusal to make her installment payment constitutes an “overt act.” Not only did Hart fail to make her payment after being notified that it was overdue, but in addition she cashed the three refund checks issued by PPB representing a refund pursuant to provisions of the premium finance agreement. Hart cashed these checks and did not at any time challenge the cancellation. These facts are sufficient to amply illustrate Hart’s intent to cancel the policy, so that even if the statute were applicable in this case, Progressive was not required to issue any cancellation notice.

When PPB instructed Progressive to cancel Hart’s policy, it was acting for her. Her instruction, albeit given by PPB, certainly was “overt action to the insurer” which suspended operation of the notice provision of section 1008.5. In fact, section 1008.6(2) is directed specifically to this situation, i.e., cancellation of an insurance policy at the behest of the insured or his agent. Prudential Property and Casualty Insurance Company v. Safeguard Mutual Insurance Company, supra, at 711.

This case presents an issue of agency law. PPB was acting within the scope of the power Hart granted it under the premium finance agreement and therefore, PPB’s actions are deemed to be Hart’s. In actuality, it was Hart rather than Progressive who initiated the cancellation. For this reason, statutory notice provisions relating to cancellation by an insurer are not applicable. There being no genuine issue as to any material fact, summary judgment must be granted in favor of Progressive.

Accordingly, we enter the following

ORDER

And now, June 5, 1990, for the reasons set forth in the attached opinion, this court declares that the insurance policy issued to defendant Deborah Hart by defendant Progressive was effectively canceled on February 16, 1984 and therefore judgment is entered in favor of defendant Progressive Casualty Insurance Company and against plaintiff Donegal Mutual Insurance Company.

      . See Liguori v. Aetna Casualty and Surety Co., 384 A.2d 308 (R.I. 1978); Davis v. Roddie, 113 N.J. Super. 457, 274 A.2d 297 (1971); Lowe v. United States Fidelity and Guaranty Co., 171 Colo. 215, 466 P.2d 73 (1970); Ingram v. Nationwide Mutual Insurance Co., 5 N.C. App. 255, 168 S.E.2d 224 (1969); Hayes v. Hartford Accident and Indemnity Co., 274 N.C. 73, 161 S.E.2d 552 (1968); Sweers v. Malloy, 28 A.D.2d 955, 281 N.Y.S.2d 693 (1967); Daniels v. Nationwide Mutual Insurance Co., 258 N.C. 660, 129 S.E.2d 314 (1963); Stone v. Travelers Insurance Co., 40 Misc.2d 164, 242 N.Y.S.2d 583 (1962); Chamberlain v. Employers Liability Assur. Corp., 289 Mass. 412, 194 N.E. 310 (1935). But see, Martin v. Ritcheson, 306 So.2d 582 (Fla. App. 1975); Garber v. American Mutual Fire Insurance Co., 131 Ga. App. 366, 206 S.E.2d 86 (1974).

      . Donegal suggests that mere default is not overt action. Indeed, the Insurance Department of Pennsylvania has. issued a regulation to this effect which states that mere non-payment of a premium by the insured will not be considered overt action within the provisions of section 1008.6(2). 31 Pa. Code §61.10(b). Neyertheless, the regulation does not change the result in this case. The plain language of section 1008.6(2) refers to overt action directed to the insurer or its agent. PPB’s notice to Progressive, on behalf of Hart, to cancel the policy was certainly such action. Section 1008.6(2) does not purport to control matters between the insured and his agent.


author: RUBRIGHT, J.,

text:
    Watcher v. Watcher

      Raymond W. Dorian, for plaintiff.
    /. Robert Zane, for defendant.
    July 31, 1990
   RUBRIGHT, J.,

This matter is presently before the court on a petition to bifurcate filed by defendant. A hearing was held and we are now prepared to dispose of the matter.

The parties were married on July 16, 1977, and they separated in January 1987. On January 26, 1987, plaintiff filed a complaint in which she seeks a divorce on the grounds that the marriage is irretrievably broken, indignities and adultery. After the parties had been separated for three years, defendant filed a 201(d) affidavit. A master has been appointed to resolve the economic issues but, at the time of our hearing, no hearings had been held on those issues.

Defendant has filed the instant petition requesting the court to bifurcate the divorce from the economic claims. The decision to bifurcate should not be made pro forma. Rather, such a determination should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359 (1983). Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition. Id.

There are several advantages to bifurcation. It separates the dissolution of the marriage from the distribution of property so that the marriage and each party’s personal life are not held hostage to economic demands. At the same time, the dependent spouse is not economically disadvantaged by the fact of the divorce being issued because support and/or alimony pendente lite are required to continue at their pre-divorce levels pending resolution of the economic matters. Id. There are also tax advantages since a spouse may avoid filing status as married filing separately. Finally, bifurcation encourages case settlements between the time the divorce decree is issued and the economic issues reach trial.

Defendant testified that he desires bifurcation largely because he owns a used-car business and he is unable to borrow money due to the current status of his marriage. He has also been filing his income tax returns as married filing separately which puts him in a higher tax bracket than if he filed with single status. Plaintiff does not work or file an income tax return so she would not be disadvantaged in this respect by the entry of a divorce. Defendant has been paying support in the amount of $170 per week for plaintiff and their children as well as Blue Cross/Blue Shield, the mortgage and homeowners insurance on the marital home where plaintiff and children reside, and the real estate taxes. He agrees to the continued payment of those items pending resolution of the economic issues.

Plaintiff objects to bifurcation because she fears that once a divorce is granted, defendant will use his interest in the marital real estate as collateral for his business loans. We find this fear to be unfounded. It is true that, by operation of law, a tenancy by the entireties becomes a tenancy in common upon the divorce of the parties. 68 Pa.C.S. §501. Therefore, if a divorce decree is entered, defendant will become a tenant in common, seized of an undivided one-half interest in the property. However, we find plaintiffs fear to be unfounded because no lending institution would accept a one-half interest in real estate as collateral for a loan.

Plaintiff instituted this divorce action by filing a complaint in which she avers that the marriage is irretrievably broken. Defendant has filed a 201(d) affidavit in which he states that the marriage is irretrievably broken. Clearly, there is no chance of reconciliation here.

Plaintiff argues that defendant will not be inclined to settle the economic issues if a divorce decree is entered. Past experience has proven the opposite to be true. Once the marriage is dissolved, the parties are generally anxious to begin restructuring their lives and are more willing to enter into meaningful settlement discussions. Furthermore, the court will not deny a petition to bifurcate solely on the grounds that one spouse wishes to hold the other hostage to economic demands.

Based upon a careful analysis of the advantages and disadvantages, we conclude that bifurcation would be the fair alternative for both parties, provided that defendant continues to pay the support and other items he has been paying pending the resolution of the economic issues.

Accordingly, we enter the following

ORDER

And now, July 31, 1990, after hearing and careful consideration of the evidence, it is hereby ordered that defendant’s petition to bifurcate is granted.

It is further ordered that defendant shall continue to pay, pending resolution of the economic issues:

(1) support in the amount of $170 per week for plaintiff and the minor children;

(2) the cost of Blue Cross/Blue Shield coverage for plaintiff and the. minor children;

(3) the mortgage and homeowners’ insurance on the marital home; and

(4) the real estate taxes on the marital real estate.