author: STALLONE, J.,

text:
    Reading Private Trash Haulers v. City of Reading

      C.P. of Berks County,
    no. 98-13655.

      Garland L. Thompson, for plaintiffs.

      David E. Turner and Keith Mooney, for defendants.
    May 20, 1999
   STALLONE, J.,

Earlier this decade, the residents of the City of Reading considered changing their form of government. A written “home rule charter” was drafted pursuant to the Pennsylvania Home Rule Charter Law. It was adopted by a majority of the voters of the City of Reading and became effective in January 1996, at which time the Honorable Paul J. Angstadt, mayor of the City of Reading, and the members of the newly-elected city council took office.

In May 1996, Mayor Angstadt and city council undertook what became known as the “clean city initiative,” pursuant to which they appointed seven citizens to be members of a non-paid, volunteer advisory group known as the “clean city coordinating committee.” The formation of that committee led to the creation of a solid waste collection task force whose purpose it was to examine trash collection practices in the City of Reading and to develop recommendations for legislative action by city council, because of what was perceived to be a city wide problem with illegal trash dumping and the failure of some city property owners to have their trash picked up.

Following an intensive six-month study, the solid waste collection task force issued a written report dated June 2, 1997, in which it recommended that the city council adopt a municipal trash collection system which would require the owners of residential properties to participate in a uniform system of trash collection. Under this proposal, the City of Reading would provide municipal trash collection for city residents which would be paid for by a flat yearly fee to be charged to city residents.

On December 8, 1997, following a series of public meetings and hearings on the advisability of a municipal trash collection system, city council recognized that it had a highly volatile political matter before it and, instead of voting on the proposed program, adopted ordinance no. 29-97, which was then approved by Mayor Angstadt on December 11,1997, and which provides as follows:

“Bill No. 29-97
“An Ordinance
“Placing the question of whether the City of Reading shall provide a comprehensive system of municipal trash collection for residences within the city limits on the ballot for the primary election of 1998.
“The City of Reading hereby ordains as follows:
“Section 1. The following question shall be placed on the ballot for binding referendum for the registered electors within the City of Reading for the primary election in May of 1998.
“Shall the City of Reading implement ordinance 30-97 establishing a comprehensive residential trash and recycling collection program at an annual fee, before penalty or rebate not to exceed $115 per household through June 30, 2001?
“Section 2. The city clerk is hereby authorized and directed to file a certified copy of this ordinance with the Berks County Board of Elections, together with a copy of the referendum question to be submitted to the electors as set forth in this ordinance.
“Section 3. The results of said referendum shall be binding upon the administration and upon the city council of the City of Reading.
“Section 4. This ordinance shall become effective immediately upon adoption.”

Proposed ordinance no. 30-97 was to provide a “comprehensive ” plan for the disposal of trash from all single-family and multi-family dwellings up to and including four units regardless of whether they were owner-occupied. On May 19,1998, the residents of the City of Reading voted to reject proposed ordinance no. 30-97 by a vote of 7,067 to 4,040.

However, six months later, on November 16, 1998, the City of Reading Public Works Department issued a 50-page written “Request for Bids, Collection & Disposal of Municipal Solid Waste & Recyclables from Public Buildings, Litter Baskets, Interim Assistance and Rental Properties, ” with a view toward receiving bids for mandatory municipal trash collection service for rental properties comprised of single-family and multifamily dwellings containing up to and including four units which were not occupied by the owners.

On December 21,1998, the plaintiffs filed the instant actions, no. 98-13655 and no. 98-13656, asking this court to prohibitorily enjoin the City of Reading, along with the individual defendants, from acting on any bids which the City of Reading had received pursuant to the aforesaid written request. The individual plaintiffs in action no. 98-13655 are the owners and operators of private trash hauling businesses who have collected trash from city residents for a number of years and are members of plaintiff Reading Private Trash Haulers Association. Wally Scott, the plaintiff in action no. 98-13656, is a resident and qualified voter of the City of Reading. In their complaints, the plaintiffs allege that the city’s written request for bids constituted an “evil attempt” to establish, albeit in stages, the same comprehensive municipal trash collection system which the residents of the city had rejected on May 19,1998, and that this decision was “binding,” as stated in ordinance no. 29-97, upon Mayor Angstadt and city council for two years which they allege is the prohibitory period for reconsideration under the home rule charter of the City of Reading.

Following the defendants’ filing of an answer to the plaintiffs’ complaint on January 12,1999, in which they contested the plaintiffs’ entitlement to injunctive relief, the plaintiffs filed a motion with this court on February 18,1999, seeking the issuance of a “preliminary” injunction, asking this court to stop any further action by the defendants in either implementing their written request for bids or in adopting pending ordinance no. 5-99 which provides in pertinent part as follows:

“Bill No. 5-99
“An Ordinance
“An ordinance of the City of Reading defining and regulating the collection, transportation, storage and disposal of solid waste and recycling; providing for the permits to authorize any commercial hauler that fulfills the obligations of the license process to collect solid waste and recycling within the City of Reading
“Section 1115.4 Solid Waste Collection Requirements
“(A) Contracts for collection; authority
“The city is authorized to award a contract for the alley collection, removal, transportation and disposal of unlimited refuse, large items, white goods and bulky waste which are generated from single-family residential dwellings and multi-family residential dwellings as described below. Said contract may be for a term not exceeding five years. The contract shall contain a provision that the contract is to be performed and carried out by the contractor in compliance with all applicable city ordinances.
“(1) Required collection
“(a) Non-owner occupied single-family and multi-fam-ily dwellings up to and including four units.
“Municipal waste generated by the occupants of non-owner occupied single-family and multi-family dwellings up to four units, inclusive, shall be included for collection by the authorized city contractor in accordance with all applicable sections of this ordinance.”

Inasmuch as the mayor agreed to refrain from awarding any contracts in the event that pending ordinance no. 5-99 was adopted (which it was on February 22, 1999), this court denied the plaintiffs’ request for a “preliminary” injunction and instead set aside dates certain for a non-jury trial on the entire matter. Following the close of the pleadings and the holding of two pretrial conferences with counsel for the parties, this court held that non-jury trial at which the parties submitted both testimonial and documentary evidence. We now file this adjudication and decree nisi in disposition of their respective claims and defenses.

Under Pennsylvania law, the plaintiffs must establish that their right to preliminary injunctive relief is “clear.” Sovereign Bank v. Harper, 449 Pa. Super. 578, 674 A.2d 1085 (1996); Moore v. Mobil Oil Company, 331 Pa. Super. 241, 480 A.2d 1012 (1984); Lewis v. City of Harrisburg, 158 Pa. Commw. 318, 631 A.2d 807 (1993). Therefore, in order for this court to conclude that the plaintiffs have met that burden, it would have to conclude that they have proven each of the following by clear and convincing evidence:

(1) That city council had the legislative authority pursuant to the provisions of the home rule charter, the Pennsylvania Home Rule Charter Law and/or the Pennsylvania Constitution to adopt ordinance no. 29-97, which placed the question on the ballot;
(2) That proposed ordinance no. 30-97, which was the subject of the May 19,1998 question, was properly placed on the May 19,1998 ballot notwithstanding the fact that it involved a matter of public health and safety;
(3) That if city council had the legislative authority from the home rule charter, the Pennsylvania Home Rule Charter Law and/or the Pennsylvania Constitution to place the question on the May 19,1998, ballot and that it was properly placed on the ballot notwithstanding the fact that it involved a matter of public health and safety, the results of the city residents’ vote on this ballot question are binding upon Mayor Angstadt and city council for a period of two years; and
(4) That because ordinance no. 5-99 is a “part and parcel” of the “comprehensive residential trash and recycling collection program” envisioned by ordinance no. 30-97, which was rejected by the city residents on May 19,1998, its passage was barred for a period of two years.

Beginning with article XI of the home rule charter, we find that article XI sets forth the manner in which the citizens of the City of Reading have the right to partid-pate in the governing of the City of Reading and which provides as follows:

“Article XI
“Citizen’s Rights And Participation
“Section 1101. General provisions.
“The council shall protect and promote the right of the citizens of the City of Reading to participate in a positive and constructive manner in the government of the city. Any citizens of the city may participate in the government of the city by:
“(a) Seeking elective office of the city as prescribed by this charter and voting for candidates for elective office;
“(b) Serving on boards, commissions, authorities or other agencies of the city government when requested by the appropriate officials;
“(c) Attending and being heard at public meetings of the council and other boards, commissions, authorities and agencies of the city government;
“(d) Addressing suggestions to the council and others to provide guidance for their actions;
“(e) Exercising the right of initiative, referendum, and recall of elected officials as provided in this charter or as otherwise may be provided by law.”

It is clear, therefore, that article XI provides the means by which qualified voters may “participate in the government of the city” . . . and that that “right of the citizens of the City of Reading” includes “[e]xercising the right of initiative, referendum ... as provided in this chapter or as otherwise may be provided by law.”

Sections 1102 through 1104 of article XI then describe in detail the manner in which the citizens shall exercise that right of initiative and referendum:

“Section 1102. Initiative and referendum.
“(a) Initiative. The qualified voters of the city shall have the power to propose ordinances to the council. If the council fails to adopt such an ordinance, the initiative process may be commenced giving the qualified voters of the city the opportunity to adopt or reject said ordinance at a city election.
“(b) Referendum. The qualified voters of the city shall have the power to require reconsideration by the council of any adopted ordinance. If the council fails to repeal an ordinance so reconsidered, the referendum process may be commenced giving the qualified voters of the city the opportunity to approve or reject said ordinance at a city election.
“Section 1103. Initiative and referendum; commencement of proceedings; petitioners’ committee; affidavit.
“Any five qualified voters of the city may commence initiative or referendum proceedings by filing with the city clerk an affidavit stating they will constitute the petitioners’ committee and be responsible for circulating the petition and filing it in proper form, stating their names and addresses and specifying the address to which all notices to the committee are to be sent, and setting out in full the proposed initiative ordinance of citing the ordinance sought to be reconsidered. In case of referendum, such an affidavit must be filed within 10 days of the adoption of the ordinance. Within five days after the affidavit of the petitioners’ committee is filed and validated, the city clerk shall issue the appropriate petition blanks to the petitioners.
‘'‘'Section 1104. Initiative and referendum; petitions.
“(a) Number of signatures. Initiative and referendum petitions must be signed by 2,000 qualified voters of the city.
“(b) Form and content. All papers of a petition shall be uniform in size and style and shall be assembled as one instrument for filing. Each signature shall be executed in ink or indelible pencil and shall include the address of the person signing and the date signed. Petitions shall contain or have attached thereto throughout their circulation the full text of the ordinance proposed or sought to be reconsidered.
“(c) Affidavit of circulator. Each paper of a petition shall have attached to it when filing a notarized affidavit executed by the circulator thereof stating that he or she personally circulated the paper, the number of signatures thereon, that all the signatures were affixed in the circulator’s presence, and believes them to be valid and that each signer had an opportunity before signing to read the full text of the ordinance proposed or sought to be reconsidered.
“(d) Time for filing referendum petitions. Referendum petitions must be filed within 35 days after the filing of the affidavit of the petitioners’ committee.
“(e) Time for circulation and filing initiative petitions. Initiative petitions must be circulated and signed within a period of 65 days from the date of the filing of the affidavit of petitioners’ committee with the city clerk.”

These sections 1102 through 1104 make it clear that only qualified voters of the City of Reading shall have the power to “commence initiative or referendum proceedings” under article XI of the home rale charter. And although city council now publicly acknowledges that it did not, nor could it ever have followed, those procedures that admission does not permit this court to conclude that city council had the necessary legislative authority to adopt ordinance no. 29-97 which, if it had, of course, would have given legal validity to the results flowing from the May 19, 1998 vote.

In response to city council’s acknowledgment, the plaintiffs contended at trial that sections 102 and 105(a) of article I of the home rule charter gave city council the legislative authority to place the question on the May 19, 1998 ballot, irrespective of the specific “initiative and referendum” procedures set forth in sections 1102 through 1104 of article XI. Sections 102 and 105(a) read as follows:

“Article I
“Power Of The City
“Section 102. Grant of power
“The city shall have the power to exercise any power or to perform any function not denied by the Constitution of the United States, by the Constitution of Pennsylvania, by act of the General Assembly of Pennsylvania, or by this charter.
“Section 105. Construction '
“(a) Powers. The powers of the city under this charter shall be construed liberally in favor of the city, and the specific mention of particular powers in the charter shall not be construed as limiting in any way the general power of this article.”

The plaintiffs, however, argue that section 105(a) would allow this court to reasonably infer that city council had the legislative authority to commence this process on its own initiative because the home rule charter did not specifically prohibit city council from doing so. We disagree inasmuch as this court must look to article II, which sets forth the powers of the city council, to determine what powers it has. Section 208 of article II sets forth the general powers and duties which may be exercised by city council as follows:

“Article II
“Powers Of Council — The Legislative Branch
“Section 208. General powers and duties
“All powers of the city not otherwise provided for in this charter shall be exercised in a manner to be determined by council. Council shall provide for the exercise and performance of any such other powers and duties in a manner consistent with the terms of this charter.

Therefore, what this court must decide is whether ordinance 29-97 was adopted by city council “in a manner consistent with the terms of this charter. ” Based upon our review of the entire home rule charter, we find that it was not. Although sections 215 through 220 of article II set forth the power, form, procedure, effective date, etc., relative to the passage of ordinances, there is no language to be found anywhere in article II from which this court could even remotely infer that city council has the legislative authority to place pending, but still not adopted or rejected, ordinances before the residents of the City of Reading for a vote. And this becomes emphatically clear when we read section 1204 of article XII of the home rule charter which contains the only reference whatsoever to city council on the subject of initiative and/or referendum and which provides as follows:

“Article XII
“General Provisions
“Section 1204. Amendments.
“The charter shall be amended by:
“(a) The citizens of the city through the initiative process provided by this charter;
“(b) City council through referendum; or
“(c) A charter review commission by amendments being placed on the ballot in accordance with section 1103 of this charter;
“(d) Proposed amendments by a charter review commission being placed on the ballot in accordance with section 1203 of this charter.’’'’

When we read section 1204(b), we find that it clearly gives city council the power to commence the referendum process of giving city residents the right to approve or disapprove amendments to the charter and that this is the only situation in which city council has the authority to commence the referendum process. Accordingly, city council’s action in the present situation is not only inconsistent with the terms and provisions of article XI, which specifically gives qualified voters the power to commence initiative and referendum proceedings involving legislative matters, but it is also inconsistent, with article XII which specifically gives city council the power to commence referendum proceedings for the sole purpose of placing before the voters the amendments proposed by the charter review commission.

Had the citizens of the City of Reading intended to vest such legislative authority in city council, they would have clearly set forth that authority somewhere in the home rule charter. However, they chose not to do so. And although city residents can perhaps amend their home rule charter to provide this governmental power to the citizens upon the sole initiative of city council, the fact remains that city council at the present time has no such legislative authority from its citizens. Therefore, we conclude that because city council did not have the legislative authority to adopt ordinance no. 29-97, it, as well as the results flowing from it, are null and void and of no legal effect.

Because of our decision on this fundamental issue, there is no need for this court to resolve the remaining arguments made by the parties. However, inasmuch as the charter review commission will, within the not too distant future, be engaged in determining what amendments, if any, should be recommended to the voters, we feel compelled to address the city’s argument that the 2 to 1 “no” vote on May 19, 1998 is not binding on city council inasmuch as the placement of the question on the ballot was in violation of sections 36030 and 36050 of the Third Class City Code. That position has been expressly rejected by the Commonwealth Court of Pennsylvania within the last month in Bell v. Lehigh County Board of Elections, no. 801 C.D. 1999 (April 26, 1999). In that case, five qualified voters of the City of Allentown submitted 93 petitions to the city clerk, containing more than the required 2,000 signatures, seeking to place a voter initiative relative to the City of Allentown’s Landlord Licensing Law on the May 18, 1999 primary election ballot, pursuant to the City of Allentown Home Rule Charter. Following the certification by the city clerk that enough signatures had been obtained, the Lehigh County Board of Elections agreed to place the initiative on the May 19,1999 primary ballot. The appellant subsequently commenced an equity action seeking to have the trial court enjoin the placement of the question on the ballot, arguing that sections 36030 and 36050 of the Third Class City Code prohibited the use of the initiative process because it involved a matter of public health and safety. The trial court denied the appellant’s request, which was affirmed by the Commonwealth Court on the basis of the trial court’s opinion, which said:

“Unlike the Third Class City Code, the provisions for ‘initiative and referendum’ in the Allentown Charter do not exclude ordinances for the preservation of public health or safety. The charter does not contain any limitation on the subject matter of ordinances that can be placed on the ballot. Obviously, proposed ordinances may not contravene constitutional principles; nor may they cover matters prohibited under the Pennsylvania Home Rule Charter Law. However, neither the Pennsylvania Constitution nor the Pennsylvania Home Rule Charter Law prohibits a home rale municipality from enacting public health or safety ordinances by vote of the electorate.
“Significantly, the Optional Third Class City Charter Law, under which the City of Allentown operated from 1970 to 1996, does provide that a city operating under that law may not exercise powers ‘[r] elating to public health’ contrary to or in limitation or enlargement of powers granted under the Third Class City Code. 53 P.S. §41305(l)(xi). The fact that the legislature did not include a similar limitation when it later adopted the Pennsylvania Home Rule Charter Law is a clear indication that it intended not to so limit municipalities operating under this more recent law.
“Plaintiff argues that since the Allentown Charter does not limit the subject matter of ordinances eligible for initiative or referendum, the limitations contained in the Third Class City Code must still be alive. This argument overlooks the fact that Pennsylvania Home Rule Charter Law and the Allentown Charter supersede the Third Class City Code. The Pennsylvania Home Rule Charter Law gives home rale municipalities much greater power, to be liberally construed, subject only to certain specified limitations not here applicable. The City of Allentown was free to adopt initiative and referendum procedures to the full extent of the broad grant of municipal authority given under the Pennsylvania Home Rule Charter Law.
“We believe that when city voters adopted a home rule charter with ‘initiative and referendum’ procedures and placed no restriction on the subject matter of these procedures, they intended these procedures to be available to the full extent of the city’s authority under the Pennsylvania Home Rule Charter Law. Since this law does not limit municipal power in the areas of public health and safety, it would be improper to read any such limitations into the initiative and referendum provisions of the Allentown Charter.”

Finally, this court, keeping in mind the advice of Justice Thurgood Marshall, that “[w]e must never forget that the only real source of power we as judges can tap is the respect of the people,” fully recognizes that its decision in this case will in all likelihood be unpopular with those fine citizens of the City of Reading who voted overwhelmingly against proposed ordinance no. 30-97 on May 19,1998. They may feel that this court is not being fair to the trash haulers or that this court is somehow saying to the citizens of the City of Reading that their vote did not count and, therefore, that it is overturning their vote and wishes. However, it should be understood that the court’s role in this case is the same as in all matters before it involving citizens against their government ... and that is to simply decide whether the latter acted in accordance with the rule of law ... for otherwise a democracy cannot survive. Having determined that the government of the City of Reading did not and perhaps that it even tried to abdicate or pass off to the public its legislative responsibility, this court has no alternative but to enter the following attached decree nisi.

DECREE NISI

And now, May 20, 1999, the plaintiffs having failed to clearly establish that city council had the legislative authority to adopt ordinance no. 29-97 pursuant to the provisions of the home rule charter, the Third Class City Code and/or the Pennsylvania Constitution, it is hereby ordered that the vote on this “referendum” question in the May 19,1998 primary was regretfully a meaningless nullity and of no legal effect. Therefore, the plaintiffs’ complaint requesting prohibitory relief in the form of a permanent injunction is denied.

      . Title 53, 53 Pa.C.S. §2901 et seq. (Supp. 1999).

      . This municipal trash collection system was designed to replace existing trash collection practices whereby property owners would contract with a private trash hauler, which the members of the solid waste collection task force concluded was inefficient, disorganized and resulted in the increase of illegal dumping of trash on public and private property by irresponsible property owners who do not pay for trash disposal.

      . Italicized type will be added throughout this adjudication for emphasis only.

      . Through June 30, 2001 would have been more than three years from the May 19, 1998 date of the allegedly binding decision.

      . Although other units were included, a discussion of those classifications is not material to the underlying issues raised in these two actions.

      . In their complaint, the plaintiffs sought not only injunctive relief but also the issuance of a writ of mandamus as an alternative form of relief which they have since withdrawn.

      . See footnote 5.

      . Despite having been directed by this court time and time again to do so, the plaintiffs have failed to cite any statutory provision of the Pennsylvania Home Rule Charter Law or to any other law or article and section of the Pennsylvania Constitution which would have given city council that authority.

      . Only after this court directed counsel for the parties, in preparation for the second pretrial conference, to address this issue in writing did the defendants acknowledge that city council’s authority to commence this “referendum” was spurred on not by the home rule charter but by its belief that a petition drive would be organized by at least five city voters to have this issue placed on the May 19, 1998 ballot for an “initiative and referendum” vote. Moreover, this court was advised that no effort was made by city council or the mayor to consult with the city solicitor’s office to determine whether the home rule charter permitted city council to pass such an ordinance (29-97) without first having “five qualified voters of the city” commence the “initiative or referendum proceedings.” Nor did the city council seek to determine the meaning of the term “referendum,” which, on legislative questions, is limited by the charter to situations where the voters are asking city council to reconsider a previously adopted ordinance.

      . We are not deciding whether such procedures would be a good way to run a government or whether the inclusion of such language under the home rule charter would be valid under Pennsylvania law inasmuch as those matters are not before us.

      . Title 53, 53 P.S. §§36030 and 36050 (Supp. 1999).

      . These limitations include, inter alia, collection of municipal tax claims, eminent domain procedures, boundary changes, public schools, rates and subjects of taxation, assessment of property for taxation, defining or providing for punishment of any felony or misdemeanor, and municipal planning.

      . Chicago Tribune, August 15, 1981.

      . Moreover, this court has no opinion as to whether private or public trash collection is in the best interests of the citizens of the City of Reading because that is not a matter for the judiciary to decide but instead is only for the considered judgment of the legislative branch (here the city council) and the executive branch (here the mayor) of our tripartite form of government.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    Cressman v. Muhlenberg College

      C.P. of Lehigh County,
    no. 96-C-1171.

      Richard L. Orloski, for plaintiff.

      Joseph B. Erwin, for defendant Muhlenberg College.

      Susan Ellis Wild, for defendant Zeiser Enterprises.
    April 30, 1999
   BLACK, J.,

Plaintiff, Thomas E. Cressman, seeks to recover damages for personal injuries sustained when he fell off an A-type ladder while at work for his employer, Phoebe Florists, on the campus of defendant Muhlenburg College. At the time of his fall, plaintiff was attempting to attach metal brackets to one of the center tent poles of a large tent erected by defendant Zeiser Enterprises d/b/a Van Tents, on the Muhlenberg campus. Van Tents had provided and erected the tent for use by Muhlenberg during its commencement exercises to take place a short time later in May of 1994.

Before the court are motions by both defendants for summary judgment on the ground that plaintiff has failed to produce evidence sufficient to make out a prima facie case of negligence against them. Pennsylvania Rule of Civil Procedure 1035.2(2), as revised in 1996, provides:

“If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

In response to a motion for summary judgment, a plaintiff may not rest upon the allegations in his complaint, but must identify evidence in the record establishing those facts that would warrant submitting the issue of negligence to the jury. See Pa.R.C.P. 1035.3; Borden Inc. v. Advent Ink Co., 701 A.2d 255 (Pa. Super. 1997).

In this case, no expert reports or affidavits have been submitted. Therefore, defendants’ motions must be decided on the basis of the depositions on file and any admissions in the pleadings. Those persons deposed were Bud Zeiser, owner of Van Tents; Richard Begbie, a representative of Muhlenberg; and plaintiff himself.

The depositions establish that Muhlenberg had retained plaintiff’s employer, Phoebe Florists, to decorate the tent with plants. The plants were to be hung from metal brackets that plaintiff was in the process of installing at the time of his injury. A Phoebe employee on the ground would hand the brackets up to plaintiff, who was on an A-type ladder. Plaintiff would then hand the brackets up still higher to another Phoebe employee, Pat Famiac, who was on an extension ladder leaning against one of the center tent poles. Ms. Farniac would then attach the brackets to the pole. The center tent poles were constructed in two pieces that were fastened together. For some unexplained reason, on this occasion the pole that Ms. Farniac’s ladder was leaning against “separated” or came apart, causing the pole to collapse and plaintiff to be knocked off the ladder he was on.

Plaintiff has not produced evidence of any specific defect in the tent pole that led to its collapse. Instead plaintiff alleges that an inference of causal negligence is warranted against both Muhlenberg and Van Tents under the doctrine of res ipsa loquitur. The rule of circumstantial evidence known as res ipsa loquitur is explained in the Restatement (Second) of Torts §328D(1) (1965), as follows:

“It may be inferred that harm suffered by plaintiff is caused by negligence of the defendant when
“(a) the event is of the kind which ordinarily does not occur in the absence of negligence; and
“(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
“(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”

This formulation has been adopted by the Pennsylvania Supreme Court. See Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974).

Based on the limited evidence produced by plaintiff, and in particular the lack of any expert report, we do not believe that the requirements of the doctrine of res ipsa loquitur have been established. Therefore, we grant defendants’ motions for summary judgment.

THE CASE AGAINST MUHLENBERG COLLEGE

Plaintiff acknowledges that Muhlenberg did not erect the tent and that Van Tents was an independent contractor of the college. Plaintiff argues, nevertheless, that Muhlenberg as the landowner owed an affirmative duty to invitees like plaintiff to use reasonable care to ascertain the actual condition of its premises. See Restatement (Second) of Torts §343 (1965).

The difficulty with plaintiff’s argument is that he has produced no evidence that Muhlenberg failed to exercise reasonable care. Muhlenberg is not an insurer of the safety of invitees on its premises. Unless there was a dangerous condition of the premises that Muhlenberg knew or had reason to know of, the college cannot be held responsible. Since plaintiff cannot identify any specific defect that caused the accident, it is impossible for a jury to conclude that Muhlenberg knew or should have known of such a defect. Although Muhlenberg had a duty to inspect the premises, plaintiff has not shown that a reasonable inspection would have disclosed the defect that caused the accident. Therefore, there is not enough evidence for this case to go to a jury against Muhlenberg.

Plaintiff cites D’Ardenne v. Strawbridge & Clothier Inc., 712 A.2d 318 (Pa. Super. 1998), where a plaintiff injured on a department store escalator was held entitled to a res ipsa jury instruction in a suit against the store. However, the doctrine of res ipsa loquitur does not help plaintiff against Muhlenberg. Here, there is no evidence that the tent pole, which had been installed by an independent contractor, Van Tents, would not ordinarily separate or come apart unless the property owner, Muhlen-berg, was negligent. Moreover, plaintiff has not eliminated other potentially responsible causes, such as the conduct of Van Tents in erecting the tent or the conduct of plaintiff’s co-worker, Pat Farniac, who was leaning against the pole on the extension ladder when the pole gave way.

Under Pennsylvania law, Muhlenberg is not vicariously liable for negligence on the part of an independent contractor such as Van Tents. See Speer v. Barry, 349 Pa. Super. 365, 503 A.2d 409 (1985). Although Muhlenberg as property owner has a nondelegable duty with respect to the premises, the scope of this duty is only to protect invitees from conditions of the premises that Muhlenberg knew or in the exercise of reasonable care should have known to be unsafe. A property owner is not liable for unknown defects unless a reasonable inspection would have disclosed the defects. See Miller v. Hickey, 368 Pa. 317, 81 A.2d 910 (1951); Kehres v. Stuempfle, 288 Pa. 534, 136 A. 794 (1927); Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719 (1997).

Significantly, plaintiff himself testified in his deposition that he did not see anything wrong with the tent pole, even though he had been working right next to it. If plaintiff could not see anything hazardous about the pole, we cannot infer that Muhlenberg knew or should have known of any danger.

For these reasons, plaintiff has failed to identify evidence that makes out a prima facie case of negligence on the part of Muhlenberg. Therefore, summary judgment must be granted in favor of Muhlenberg.

THE CLAIM AGAINST VAN TENTS

Plaintiff’s case against Van Tents also relies on the doctrine of res ipsa loquitur. Plaintiff argues that an inference can be drawn that Van Tents was negligent in installing the tent; otherwise the accident would not have happened.

We believe it is a fair inference from the deposition testimony of Zeiser and from ordinary human experience that a two-piece tent pole usually will not separate or come apart if it has been erected properly. Zeiser testified that he had been installing tents for eight years, that he was surprised that the tent pole had collapsed, and that he had no explanation. He could envision this happening perhaps in a time of extremely windy conditions, but that was not the situation here. Zeiser had never known a tent to collapse, and only once had he been unable to erect a tent because of bad weather. See deposition of Bud Zeiser at 39, 58.

However, plaintiff is unable to satisfy the second res ipsa requirement, i.e., that “other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence.” Restatement (Second) of Torts §328D(l)(b) (1965). Based on the limited evidence submitted, it seems quite possible that Ms. Famiac’s activity on the ladder could have caused the pole to collapse. We cannot reasonably infer, without expert testimony to this effect, that a properly installed tent pole should have been able to withstand the force of Ms. Famiac leaning against it on an extension ladder. The physical force involved was affected by many different factors, such as the height of the pole, the length of the ladder, the elevation of the ladder where it made contact with the pole, the angle of the ladder, the weight of the ladder, the weight of Ms. Famiac, her elevation on the ladder, and the direction or manner in which she was leaning or moving. Perhaps an engineering expert could analyze these factors and conclude that the actions of Ms. Famiac on the ladder were not a responsible cause of the accident. However, this court is in no position to make such a judgment. Nor could a jury of laypersons do so.

The testimony of Zeiser does not help plaintiff on this point. Zeiser was not asked, and did not testify, whether a properly installed tent pole is to be able to withstand the weight of a person such as Ms. Famiac leaning against it on a ladder of the type here involved. We do not know whether ladders were placed against the tent poles in any of Van Tents’ other installations. Nor did his testimony or that of any other witness provide a basis for finding that Van Tents should have foreseen that workers would be leaning ladders against tent poles in the manner that occurred here. Therefore, Zeiser’s testimony does not exclude Ms. Famiac’s actions as a possible cause of the accident.

This case is unlike D ’Ardenne v. Strawbridge & Clothier, supra, where the injury-causing escalator was operated solely by the defendant department store and expert testimony was presented to eliminate other potential causes. In the instant case, the actions of Van Tents are not the only possible cause of the accident because we have not been presented with any evidence, expert or otherwise, that sufficiently eliminates Ms. Famiac and her ladder as a responsible cause.

This case is also distinguishable from the “falling plaster” example cited by plaintiff from the restatement. Restatement (Second) of Torts §328D, cmt. e, illus. 4 (1965). In the example, plaster fell from the ceiling of a hotel onto a guest. The doctrine of res ipsa loquitur warranted an inference of negligent maintenance by the hotel, even though the falling plaster could have been caused conceivably by guests jumping up and down on the floor above. The distinction is that, in the restatement example, the possible other causes were merely theoretical without any evidentiary basis. There was no evidence that guests were in fact jumping up and down on the floor above. In the instant case, there is undisputed direct evidence that Ms. Famiac was working on a ladder that was leaning against the tent pole.

THE CASE FOR JOINT LIABILITY

Plaintiff argues that even if the res ipsa doctrine does not apply separately to each of the defendants, surely at least one of the defendants must have been at fault— either Van Tents in erecting the tent or Muhlenberg in maintaining or inspecting it. Therefore, plaintiff contends that we should send the case to the jury on a res ipsa theory and allow the jury to decide whether either or both defendants were negligent. See Restatement (Second) of Torts §328D cmt. g, illus. 8 (1965) (sign affixed to outside of building fell on passerby; jury could find against property owner or tenant or both on res ipsa lo-quitur theory).

The problem with this argument is the same problem referred to above. Plaintiff’s evidence does not exclude a third cause other than Van Tents or Muhlenberg, i.e., the actions of plaintiff’s co-employee, Ms. Famiac. Because this potential cause has not been excluded, plaintiff cannot meet the second requirement for the doctrine of res ipsa loquitur to apply. Ms. Famiac and the leaning ladder represent a potential responsible cause not attributable to either of the defendants on the record before this court. In the sign example cited above, if, when the sign fell, someone had been working on a ladder that was leaning against the sign, the doctrine of res ipsa lo-quitur would not have applied.

For the foregoing reasons, we have concluded that summary judgment should be entered in favor of both defendants.

ORDER

Now, April 30, 1999, upon consideration of defendants’ motions for summary judgment and plaintiff’s response thereto, after oral argument and for the reasons set forth in the accompanying opinion, it is ordered that defendants’ motions are granted, and judgment is hereby entered in favor of both defendants against plaintiff.


author: THOMSON, P.J.,

text:
    Russen v. Palmyra Township-Pike County

      C.P. of Pike County,
    no. 260-1996.

      Bruce Zero, for plaintiff.

      Lori Cerato, for Hawley.
    June 18, 1999
   THOMSON, P.J.,

This opinion addresses the motion for summary judgment filed by Gary and Karrie Kirchner to the personal injury action filed by Maria Russen. For the aforementioned reasons we find in favor of the defendants and grant their motion for summary judgment.

FACTS

This case arises out of an automobile accident which occurred on February 25,1994. On that date, at approximately 8:40 a.m. the plaintiff was operating her vehicle in the 700 block of Church Street, in the Borough of Hawley, Wayne County, Pennsylvania, whereupon Lynn Updegrove, while operating the Ford F600 plow truck owned by Palmyra-Pike County, which was proceeding in the opposite direction on said Church Street, swerved into the opposite lane of traffic in order to avoid the parked car owned by the defendants, causing the plaintiff to take evasive action in an attempt to avoid a collision, which, in turn, caused the plaintiff’s vehicle to strike a mound of ice and snow on the side of the roadway, as a result of which the plaintiff sustained severe and permanent injuries set forth in plaintiff’s complaint. The vehicle which was owned by the defendants was partially parked in the roadway on Church Street. Parking is prohibited on Church Street, via a borough ordinance, between 2 a.m. and 6 a.m. The defendants’ vehicle had been parked on Church Street in such a manner that snow engulfed almost the entire vehicle.

DISCUSSION

The issue in the instant case is whether the facts of the case as averred by plaintiff give rise to a genuine issue of material fact allowing for a denial of defendants’ motion for summary judgment. The Pennsylvania Rules of Civil Procedure provide that:

“Rule 1035.2. Motion
“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

A court should not decide issues of fact when resolving motions for summary judgment; instead, they should merely determine whether any genuine issues of material fact exist. E.g., Boring v. Erie Insurance Group, 434 Pa. Super. 40, 43, 641 A.2d 1189, 1190 (1994). In other words, in reviewing motion for summary judgment a court must examine the record in light most favorable to the nonmoving party, resolving all doubts in favor of the nonmoving party. E.g., White v. Owens-Corning Fiberglas Corp., 447 Pa. Super. 5, 17, 668 A.2d 136, 142 (1995), appeal denied, 546 Pa. 648, 683 A.2d 885 (1996). In resolving all doubts in favor of the nonmoving party, a court must give the nonmoving party the benefit of all reasonable inferences to be drawn from all well-pleaded facts relevant to the issues raised in the pleadings. E.g., Goldberg v. Delta Tau Delta, 418 Pa. Super. 207, 211, 613 A.2d 1250, 1252 (1993), appeal denied, 534 Pa. 639, 626 A.2d 1158 (1992). The burden is on the party moving for summary judgment to prove that no genuine issues of material fact exist. E.g., Butterfield v. Giuntoli, 448 Pa. Super. 1, 11, 670 A.2d 646, 651 (1995), appeal denied, 546 Pa. 635, 683 A.2d 875 (1996).

Now, we must apply the principles of summary judgment motion to the law of negligence, as it is the cause of action in this case. In order for a party to establish a cause of action for negligence, a party must aver “(1) a duty or standard of care; (2) a breach thereof; (3) proximate causation; [and] (4) actual damages.” E.g., Carlotti v. Employees of General Electric Federal Credit Union, 717 A.2d 564, 567 (Pa. Super. 1998). In this case, the only disputed elements of a basic action for negligence are that of the existence of a breach of a duty of care and that of proximate causation.

“In order to hold a defendant liable for injuries sustained by a plaintiff, it must be shown that the defendant breached a duty of obligation recognized by the law, which required him to conform to a certain standard of conduct for the protection of persons such as the plaintiff.” Merritt v. City of Chester, 344 Pa. Super. 505, 508, 496 A.2d 1220, 1221 (1985), citing Marina v. McAdams, 280 Pa. Super. 115, 120, 421 A.2d 432, 434 (1980). “Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution.” Cruet v. Certain-Teed Corp., 432 Pa. Super. 554, 558, 639 A.2d 478, 479 (1994); Brandjord v. Hopper, 455 Pa. Super. 426, 688 A.2d 721 (1997).

“The test for proximate causation is whether a defendant’s acts or omissions were a substantial factor in bringing about [a] plaintiff’s harm.” Blum v. Merrell Dow Pharmaceuticals Inc., 705 A.2d 1314, 1316 (Pa. Super. 1997). “[A] cause can be found to be substantial so long as it is significant or recognizable; [thus,] it need not be quantified as considerable or large.” Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998). Furthermore, factors which a court can use to determine if an act is a substantial factor in causing a plaintiff’s harm include (1) the number of other factors which contribute in producing the harm and extent of the effect which they have in producing it, (2) whether the defendant’s conduct created a force or series of forces that are in continuous and active operation up to the time of the harm, or has created a situation that is harmless unless acted upon by other forces for which the actor is not responsible, and (3) lapses of time. Restatement (Second) of Torts §433; Talarico v. Bonham, 168 Pa. Commw. 467, 474-75, 650 A.2d 1192, 1195-96 (1994).

Another issue on the subject of proximate causation is the intervention of a superseding cause. A superseding cause is an act of a third person or other force which by its intervention prevents an actor from being liable for harm to another for which the third party’s antecedent negligence is a substantial factor in creating. Restatement (Second) of Torts §440; Frey v. Smith, 454 Pa. Super. 242, 685 A.2d 169 (1996), appeal denied, 549 Pa. 437, 700 A.2d 441 (1997). An intervening negligent act will not be a superseding cause relieving the original negligent actor from liability if that actor at the time of his negligent act should have realized that another person’s negligence might cause harm, or if a reasonable man would not regard the occurrence of the intervening negligence as highly extraordinary, or if the m-tervening act is not extraordinarily negligent. Id. at 250, 685 A.2d at 173; Restatement (Second) of Torts §447.

In the instant case, the relevant facts of the case are largely undisputed. Defendants’ car was parked on the opposite side of the road from the plaintiff’s lane of travel. A snowplow going in the opposite direction from plaintiff’s direction of travel moved toward the center of the road to avoid defendants’ parked car. The maneuvering of the snowplow toward the center of the road caused the plaintiff to veer to the right, leading to plaintiff’s collision with a snow mound. It is also undisputed that at the time of the accident the defendants had their car parked legally.

Plaintiff makes the following alternative arguments in her brief in opposition to defendants’ motion for summary judgment:

“Since defendants’ vehicle was obviously parked illegally for quite some time it is apparent that they violated the parking ordinance of the Borough of Hawley and as such, were negligent per se. In the alternative, the moving defendants were negligent in that Church Street could not be plowed appropriately due to the illegally] parked vehicle to clear all lanes of travel. Since there is a question as to when and when not the vehicle was present on Church Street, this results in genuine issues of material fact for trial.” (Id. at 5.)

Under the circumstances of this case, this court cannot find the defendants breached any duty of care to plaintiff nor did they proximately cause plaintiff’s injury. Plaintiff’s theory of negligence, as summarized above, focuses on the averment that the defendants’ car was parked in violation of an ordinance at the time of the accident. However, defendants had their car parked legally on the roadway. There is no question the vehicle was parked legally because the time of the accident is unquestioned, which was at a time when parking was permissible. Thus, defendants breached no duty of care in the parking of their vehicle.

Even if plaintiff’s averment that the car was parked illegally at some time before the incident is true, the car at the time of the incident was legally parked. The time of the accident was the only relevant time to compare a violation of the parking ordinance to the actions of defendants for the purposes of plaintiff’s cause of action. Thus, there are no genuine issues of material fact that enable plaintiff to establish negligence in that defendants violated no duty of care.

Any fault for the injuries to plaintiff lies either with the snowplow driver or the plaintiff, even if one found defendants to be negligent in some way. The possible fault with either party being their inability to control their vehicles under the conditions in which they were driving. The condition the defendants’ car created in being parked along the roadway was harmless and not a substantial factor in the accident. Thus, the acts of the other parties in this case superseded the acts of the defendants. Therefore, we cannot find the defendants were the proximate cause of plaintiff’s injuries. In that the defendants were not the proximate cause of plaintiff’s alleged injuries, the court cannot find the defendants to be found negligent.

For the aforementioned reasons, we issue the following order:

ORDER

And now, June 18, 1999, upon consideration of the defendants Gary and Karrie Kirchner’s motion for summary judgment, the briefs thereto, and the argument thereon, the court hereby grants the defendants’ motion. Accordingly, judgment is entered in favor of the defendants, Gary and Karrie Kirchner.

      . We note that this factual summary is nearly identical to the one provided by plaintiff in their brief.


author: FIELD,

text:
    Landherr v. Kmart Corp.

      Lawrence Hannaway, for plaintiffs.

      W. Kelly McWilliams, for defendant.

      June 18, 1999
   FIELD,

Plaintiffs, Joseph E. Landherr and Carol Landherr, appeal from the denial of their motion for post-trial relief following a jury verdict for the defense on November 12, 1998. Plaintiffs’ motion listed several reasons for granting the relief requested, but this court found none of them to be persuasive. For the reasons which follow, judgment entered for the defendant was proper and should be affirmed.

This matter arose from an incident which occurred on October 5,1995, at a Kmart store, located at 900 Orthodox Street in Philadelphia. Although the facts were in dispute, it was agreed that at that time, plaintiff Joseph Landherr was a customer and was injured when something fell from a shelf. The questions for the jury was what actually fell, what caused the object(s) to fall and what was the extent of Mr. Landherr’s injuries. Trial commenced in this matter on November 4, 1998. After four days of testimony and one and a half days of deliberations, the jury returned a unanimous verdict for the defense. Plaintiffs timely filed their post-trial motion, seeking a new trial, claiming, inter alia, that the verdict was “a miscarriage of justice” as well as against the weight of the evidence. Plaintiffs also allege that the court erred in allowing defense expert witnessess to testify beyond the scope of their reports. Each of these arguments is without merit.

When reviewing a jury’s verdict, the evidence must be viewed in the light most favorable to the verdict winner. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). A jury’s determination is not to be disturbed as long as there is sufficient evidence on the record to support it. Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984). It is the province of the jury to determine the credibility of each witness. Commonwealth v. Glover, 399 Pa. Super. 610, 582 A.2d 1111 (1990). The jury may decide to accept all, some, or none of a witness’ testimony. Id.

In this case, the jury was presented with the following testimony. Plaintiff Joseph Landherr stated that at approximately 4 p.m. on October 5, 1995, he was shopping in the Kmart store located at 900 Orthodox Street in Philadelphia. He wanted to purchase some large Rubbermaid totes (i.e. large plastic storage boxes with matching lids, 18" x 18" x 10"), but they were located on a shelf too high for him to reach. He requested assistance and John Gerding, a departmental manager, came to help him. According to Mr. Landherr, Mr. Gerding brought a six-foot ladder and placed it against the shelving unit where the totes were situated. Mr. Landherr then variously testified: (1) that a shelf collapsed, causing 30 to 50 small containers to fall on him; (2) that Mr. Gerding knocked containers off a shelf which hit him in the face; (3) that a shelf hit him in the face; (4) that he fell against a shelf on the opposite side of the aisle, thereby injuring his back; (5) that he fell against a shopping cart in the aisle, thereby injuring his back; (6) that 10 small containers with a total weight of less than 10 lbs. hit him; (7) that 80 lbs. of merchandise fell on him; (8) that his nose was broken; and (9) that his nose was not broken. Mr. Landherr testified that the incident injured his back so severely that he had to retire on a disability pension. Further testimony revealed that he had injured his back at work a few years earlier. Further, both Mr. Landherr and his wife testified that since the incident at Kmart, Mr. Landherr could not do house and yard work, or lift groceries and rarely, if ever, attended social functions.

John Gerding testified that on the day in question, he was asked to assist a customer, Mr. Landherr, in removing two totes from the high shelf. He stated that in the housewares department where the totes were located, one side of the aisle contained shelving full of such containers. Across the aisle was pegboard which held hangers, garment bags and the like. Mr. Gerding testified that using a two-step stool from a display in an adjacent aisle, he got down the totes. He stated that while he was turned away from Mr. Landherr, he heard a noise. When he turned around, he saw Mr. Landherr picking up a few lids from one gallon containers, each lid weighing less than two ounces. He asked Mr. Landherr if he realized his nose was bleeding, and offered him first aid.

Mr. Gerding then escorted the plaintiff to the office of Linda Sergei, loss control manager of the store. Ms. Sergei testified that she offered Mr. Landherr ice and a band-aid. She filled out a report according to what he told her had happened, that “the merchandise was stacked too high,” and sent him across the street to a hospital for a nasal x-ray. Mr. Landherr did not complain about his back nor did he tell her that he had hit his back on anything. In fact, Ms. Sergei stated that Mr. Landherr seemed to make light of the whole incident. She conducted no follow-up investigation because she did not deem the incident to have been serious. The hospital records reflect only injury to Mr. Landherr’s nose. There is no mention of any complaint or examination regarding his back.

Mr. Gerding further testified that he later realized that he and his wife knew the plaintiffs, as both couples parked trailers at the same campgound in Mays Landing, New Jersey. In order to reach their trailer, the Gerdings had to pass the Landherrs’ trailer. A few weeks after the incident, the Gerdings were heading to their trailer when they saw both of the Landherrs unloading shopping bags from their car. The Gerdings stopped their car and Mr. Gerding asked Mr. Landherr how his nose was. Mr. Landherr responded that it was fine. Mrs. Landherr asked how the Gerdings knew about her husband’s nose, and then asked if it was because they had seen him at the campground Halloween party the previous week. Mr. Gerding told them that he and his wife had not attended the party, but that he was the salesman in Kmart who had been assisting Mr. Landherr on October 5. Both Mr. and Mrs. Gerding testified that after Mr. Gerding identified himself, both Mr. and Mrs. Landherr became quiet and changed their attitude from friendly to accusatory. Mrs. Gerding further testified that she had seen pictures of the Halloween party in the campground office which showed Mr. Landherr in costume and engaged in activities. Both Mr. and Mrs. Landherr had testified that they did not attend the party. Moreover, Mr. Gerding testified that Mr. Landherr had been observed by him doing maintenance work around his trailer.

In light of the conflicting testimony outlined above, it was within the jury’s discretion to discredit plaintiffs’ testimony. Based upon the record, the jury’s verdict should not be disturbed.

The jury was given a verdict sheet with three questions. The first question was whether the defendant was negligent. The jury was instructed to proceed to the next question only if they answered the first in the affirmative. The second question was whether the negligence was a substantial factor in bringing about the plaintiff’s harm. The jury was instructed to proceed to the third question only if they answered the second in the affirmative. Third, they were asked to state the damages sustained by the plaintiffs. Because the jury answered “no” to the first question, their deliberations ended at that point.

Several of plaintiffs’ allegations of error concern medical and vocational testimony presented. Since all of that testimony related only to the question of damages, which the jury did not reach, we need not address those issues. Other allegations of error concerned the admission of hearsay testimony. Since most of the testimony found objectionable by the plaintiffs consisted of admissions by parties, the statements were properly admitted as hearsay exceptions pursuant to Rule 803(25) of the Pennsylvania Rules of Evidence. Hence, these arguments, too, must be rejected.

For all of the above reasons, the judgment for the defendant entered on December 1, 1998 was proper and should be affirmed.


author: SALUS, J.,

text:
    Henderson v. Henderson

      C.P. of Montgomery County,
    no. 94-00241.

      Arthur S. Klein, for plaintiff.

      Daniel C. Barrish, for defendant
    June 8, 1998
   SALUS, J.,

This appeal arises from the court’s order dated February 10, 1998, granting judgment in favor of the plaintiff, Theodore H. Henderson Jr. In addition to judgment, the court awarded the plaintiff $750 in attorney’s fees. The defendant appealed on March 12, 1998.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff filed a complaint in this action on January 6, 1994. The complaint alleges actions to quiet title and for unjust enrichment. As alleged in the complaint, the plaintiff and his mother, defendant Millicent Cameron Gibbs, jointly purchased property situated at 236 Glen Place, Elkins Park, Montgomery County. The plaintiff alleges that through an agreement with Ms. Gibbs, legal title to the property would be held solely in the name of defendant Gibbs. By way of further agreement, as alleged in the complaint, the plaintiff was to, and did, pay all costs for the property, including mortgage payments, taxes, and maintenance costs.

After plaintiff and his defendant mother purchased the property, defendant Gibbs executed a power of attorney in favor of Doris Applebaum, Esquire. Applebaum used the power of attorney to convey the legal title for 236 Glen Place, Elkins Park, to defendant Jill Henderson, allegedly for Applebaum’s sole benefit and without authority from defendant Gibbs. The complaint further alleges that eviction proceedings were commenced by defendant Henderson against the plaintiff.

The defendants filed preliminary objections to the plaintiff’s complaint on April 6, 1994. The court sustained the preliminary objections by order dated September 9, 1994. The plaintiff filed a notice of appeal on September 20, 1994. The Superior Court reversed and remanded for further proceedings on August 9, 1995. An answer with new matter was filed on April 8,1996.

On April 10,1997, the plaintiff filed a motion to compel defendant Jill Henderson to appear for a deposition. The court granted this motion by order dated May 19, 1997. The defendant was given 14 days in which to be deposed. Ms. Henderson did not submit to the deposition. The plaintiff filed a motion for sanctions on July 8, 1997. The court issued an order dated August 22, 1997, ordering Jill Henderson to be deposed in the month of October, 1997. On November 3,1997, the plaintiff again filed a motion for sanctions, as defendant Henderson did not submit to a deposition in the month of October as ordered. By order dated November 12, 1997, the court ordered the defendant’s deposition to be taken between November 17 and November 25, 1997. The court also imposed a $1,000 fine due to the defendant’s contemptuous behavior.

The court again issued an order, dated January 16, 1998, ordering the defendant to be deposed within 18 days. The defendant again ignored the court’s order. The plaintiff again filed a motion for sanctions. The court, having extended every opportunity for the defendant to cooperate, granted judgment in favor of the plaintiff and added an additional $750 as recompense for attorney’s fees. It is from this order that defendant Jill Henderson appeals. The reasoning for the imposition of this order is set out below.

DISCUSSION

The court is granted the power to impose sanctions by Pennsylvania Rule of Civil Procedure 4019. The rule provides:

“(a)(1) The court may, on motion, make an appropriate order if....
“(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
“(c) The court, when acting under subdivision (a) of this rule, may make
“(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
“(5) such order with regard to the failure to make discovery as is just.” Pa.R.C.P. 4019.

Sanctions imposed under Pa.R.C.P. 4019 are vested in the sound discretion of the trial court. Therefore, the standard of review is one of abuse of discretion. “An abuse of discretion is not merely an error of judgment. It requires a showing of manifest unreasonableness, partiality, ill-will, or such lack of support as to be clearly erroneous.” Christian v. Pa Financial Responsibility Assigned Claims Plan, 454 Pa. Super. 512, 520, 686 A.2d 1, 4-5 (1996).

Here, the court did not abuse its discretion in entering judgment. The defendant ignored several court orders and failed to make arrangements to be deposed. Certainly between April 10, 1997 and February 10, 1998, nearly 10 months, defendant Jill Henderson could have made arrangements to appear for the requested deposition. Refusal to comply with a court-directed command to be deposed warrants the entry of judgment against the offending party. See Miller Oral Surgery Inc. v. Dinello, 416 Pa. Super. 310, 313-14, 611 A.2d 232, 234-35 (1992) (regarding refusal to answer interrogatories directed by the court to be answered); Taylor v. City of Philadelphia, 692 A.2d 308, 314 n.8 (Pa. Commw. 1997) (regarding the failure to respond to interrogatories and to comply with orders of the discovery judge).

The court did not abuse its discretion in that the entry of judgment was reasonable, the court demonstrated no partiality or ill-will, and there clearly was support for the order dated February 10, 1998. Christian, 454 Pa. Super, at 520, 686 A.2d at 4-5. For the reasons stated above, the court’s order of February 10,1998, should be affirmed.

      . The defendants’ new matter raises the statute of frauds, statute of limitations, laches, estoppel, and defenses relating to the plaintiff’s bankruptcy filing. Defendants’ new matter, paragraphs 23-27.

      . Order, dated February 10, 1998.


author: SOKOLOVE, J.,

text:
    In re Adoption of C.W.S.

      C.P. of Bucks County,
    no. 8487.

      Michael T van der Veen, for Kats.

      William E. Schaefer, for adopting parents.
    January 21, 1998
   SOKOLOVE, J.,

This case is before the court on issues arising out of my orders reducing adoption fees and costs as unreasonable and against the law.

The history of this otherwise unremarkable adoption is extensive. A hearing on the adoption was held on November 5,1993, at the conclusion of which I ordered a further hearing requiring the attendance of Marina Kats, Esquire, who served as intermediary. My particular concerns were her identification of the adoptee and her explanation of fees and costs totaling $20,000.

A further hearing was held on November 10, 1993 at which Ms. Kats was present and testified. The notes of testimony of that date consist primarily of a colloquy between Ms. Kats and me during which we discussed the fees charged and the law applicable thereto. (N.T. 11/10/93, pp. 6-10.) I entered an order approving the adoption, but not approving the fees, taking that issue under advisement pending further hearing.

On November 12, 1993, I entered the following order:

“And now November 12,1993, a rule is entered upon Dr. Marc A. Landsberg M.D., [birth mother], the firm of Rovner, Allen, Rovner, Zimmerman and Kats, and Marina Kats to show cause why payment made to them for medical services, legal fees and the costs of housing, clothing and food, respectively, should not be disallowed as unreasonable and/or contrary to the provisions of the Adoption Law.
“Said rule is returnable at a hearing on December 13, 1993 at 10 a.m., conference room 3, fifth floor, Bucks County Courthouse, Doylestown, Pennsylvania. .. .”

The court’s distribution page shows that copies of the order were sent to Marina Kats, Esquire, the law firm of Rovner, Allen, Rovner, Zimmerman and Kats (the law firm with which she was then associated), to Marc A. Landsberg M.D. at his office address, to R.A.S., the birth mother and to the adopting parents.

Pursuant to that order, a hearing on the fees and costs was held December 13,1993.1 received testimony from Dr. Landsberg, the adopting mother, the birth mother and Marina Kats.

The day after the hearing, I entered the following order:

“And now, December 14,1993, after issuance of a rule to show cause entered on November 12, 1993 and hearing thereon held on December 13, 1993, we enter the following:
“FINDINGS OF FACT
“(1) That the claimed reimbursement of medical and hospital costs paid by the adopting parents on behalf of the birth mother in the sum of $7,000 was excessive;
“(2) We allow as appropriate and reasonable the following charges;
“For delivery of the child, including initial office visit, pre-delivery testing (including ultrasound), and anesthesia, the sum of $2,000; for circumcision of the child, $150.
“(3) We therefore find that said payment charged to medical expenses exceeded fair and reasonable charges in the amount of $4,850.
“(4) The payment to the birth mother of the sum of $6,124.20, as ‘reimbursement of costs for housing, clothing, food’ is contrary to the provisions of the Adoption Act (23 Pa.C.S. §2533).
“(5) Under the circumstances, the attorney’s fee in the sum of $2,500 is excessive, and we find that $1,000 should be allowed for the services rendered.
“We, therefore, find the payment made by the adopting parents to the intermediary exceed the amounts permitted by law in the sum of $12,474.20.”

The court distribution sheet indicates that copies of that order were sent to Marina Kats, Esquire, at the Rovner law firm, to the attorney for the adopting parents, and to Dr. Landsberg at his office address. No exceptions, post-trial motions, or appeal were filed to that order.

Nothing occurred further until June 4,1997, when the adopting parents, represented by new counsel, filed “petition for certification for rule to show cause why excess payments made to respondents for medical services, legal fees and costs of housing, clothing and food should not be returned to petitioners” (sic).

Pursuant to that petition, we entered an order dated June 10, 1997 awarding a citation directed to Marina Kats, the Rovner law firm (with which Ms. Kats is no longer associated) and Dr. Mark A. Landsberg, requiring them to show cause why they should not be required to refund the sum of $12,474.20 to the petitioners, together with interest, attorney’s fees and costs.

The citation issued on June 10, 1997 set a return date of July 7, 1997. On that date, a response was filed on behalf of the Rovner firm. No response was filed by Marina Kats or Dr. Landsberg. Upon motion, including affidavits of service, a final order was entered against Kats and Landsberg on September 4,1997 as a result of their failure to respond to the citation and rule to show cause.

After the entry of the final order, a belated answer was filed on behalf of Ms. Kats, and on September 16,1997, she filed a petition seeking to vacate the order of September 4, 1997.

Dr. Landsberg filed his untimely response on September 29, 1997.

On October 29, 1997, I heard discussion and argument on Kats’ petition to vacate the order of September 4,1997. Although an argument, not an evidentiary hearing, these proceedings were recorded in notes of testimony. I initially recited the pertinent procedural background set forth above. (N.T., 10/29/97, pp. 4-9.) At page 9 thereof, I stated the following, beginning at line 17:

“On September 16, 1997, the petition to vacate my order of September 4, 1997, . . ., is what is presently before me today. It is moot.
“All of this which happened after June 4, 1997, up to this time really doesn’t matter. My judgment was entered on December 13,1993. No post-trial motions were filed. No appeal was taken. And the order entered on that date became a final order.
“And as far as I’m concerned the money is due since December 13, 1993.
“I am therefore entering the following order: That within 30 days from this date, Doctor Marc A. Landsberg, shall pay the sum of $4,850, with interest at 6 percent per annum from December 13, 1993. And Marina Kats and the law firm of Rovner, Allen, Rovner and Zimmerman are jointly and severally liable and ordered to pay the sum of $12,474.20, within 20 days of this date with interest from December 14, 1993.
“That latter amount to be reduced by the portion thereof paid by Doctor Landsberg, but if he falls to do so, they are responsible for the full amount....”

It is still my position that the issues of overcharge were determined by my order of December 14, 1993. However, since no post-trial proceedings followed, I submit the following legal justification for that order. At the end of the hearing of November 10, 1993. I supplied Ms. Kats with a copy of our opinion issued but a few months earlier in In re Adoption of A.R.D., Bucks Co. Court of Common Pleas, Orphans’ Court Division, no. 5042 (1993). I hoped this would enable her to understand the impropriety of the amounts charged. I here abstract portions of that opinion to explain the legal basis for my conclusions in the instant case.

In that earlier case, involving similar issues, the opinion states the following:

“At the time of the adoption hearing, we notified the parties that some of the charges to the adopting parents did not comply with the restrictions imposed by the Pennsylvania Supreme Court in In re Baby Girl D., 512 Pa. 449, 517 A.2d 925 (1986)....
“Since the decision was based upon the Adoption Act of 1980 and traditional, common law precepts of adoption, it is appropriate to apply its general holdings to this adoption.
“The Baby Girl D. court noted that allowable expenses to adopting parents had been limited to reasonable unreimbursed lying-in expenses, reasonable legal fees incident to the adoption proceedings and the costs of the proceedings. The court explained that limitations on fees were necessary to ensure that children be placed in homes which would promote their needs and welfare as opposed to those which were simply the wealthiest. Also, the limitations guaranteed that children would not be bought and sold like commodities, which violated the public policy of the Commonwealth. Thus, the court held that payments to or for natural parents by adopting parents are permissible when the payments are for services which directly benefit the child, such as medical expenses directly related to the birth. Payments which do not directly benefit the child are impermissible. Using these guidelines the court disallowed numerous expenses sought to be charged against adopting parents, such as the natural mother’s counseling and housing expenses and medical expenses unrelated to the birth, including Lamaze classes, prenatal care and sonograms.
“The General Assembly tempered the Baby Girl D. decision in modifying the requirements for an intermediary’s report as follows:
“Permissible reimbursement of expenses. — Payments made by the adoptive parents to an intermediary or a third party for reimbursement of the following expenses, calculated without regard to the income of the adoptive parents, are permissible and are not in violation of 18 Pa.C.S. §4305 (relating to dealing in infant children):
“(1) and those medical and hospital expenses incurred by the natural mother and child incident to birth.
“(2) Medical, hospital and foster care expenses incurred on behalf of the child prior to the decree of adoption. .. .” 23 Pa.C.S. §2533(d).
“This amendment expressly applies to expenses incurred for adoption decrees entered after its effective date, January 15, 1988.
“The final overlay to our decision was announced by the Supreme Court in In re Adoption of B.A.B., 517 Pa. 84, 534 A.2d 1050 (1987). There, the court prohibited any fee, exclusive of reasonable expenses, for intermediary services rendered by an attorney. The court’s holding was premised upon an analysis of the Adoption Act of 1980 and the implication of Baby Girl D. that an intermediary may not profit from the placement of an adop-tee. The court refused to enforce an agreement by the adoptive parents to pay the intermediary because it was against public policy.”

These same principles are clearly applicable to the instant case. The birth mother was compensated for precluded expenses, the doctor charged the adopting parents for procedures admittedly not related to the birth, and the attorney charged for intermediary services specifically precluded in the B.A.B. case.

Finally, Dr. Landsberg misconstrues the basis on which I found his fee excessive. He suggests that it was reasonable and that, in effect, any adopting parents would pay that sum. My conclusion was based on the finding that it was well in excess of his own regular charges for prenatal visits and delivery of a baby at that time. An adoptive baby is not a commodity whose value is based on “what anyone would pay.”

      . According to a supplemental affidavit of service dated September 2,1997, service on Dr. Landsberg was originally made on counsel representing him. Upon notice of withdrawal of counsel, further notice was sent directly to Dr. Landsberg on My 3, 1997.


author: FORD, J.,

text:
    Tahos v. Marte
    C.P. of Lehigh County,
    no. 98-C-1177.

      F. Paul Laubner and Andrew D. Hoffman, for plaintiff.

      Basil A. Disipio and Laura L. Reed, for defendant.
    July 8, 1999
   FORD, J.,

Before the court is the motion for partial summary judgment of defendant, Jose G. Marte. In the motion, the defendant asks for summary judgment precluding the plaintiff from recovering non-economic damages in this motor vehicle accident case. The basis for the motion is the undisputed fact that the plaintiff selected the limited tort option for his automobile insurance coverage in effect at the time of the subject accident. We granted the motion by our order of June 30, 1999 and now explain the reasons.

The complaint was filed on May 20, 1998. Plaintiff’s counsel immediately listed this case on the “arbitration track.” The arbitration limit in Lehigh County is $50,000.

In the complaint, the plaintiff alleges that he was operating a motor vehicle in an easterly direction on Hamilton Street in Allentown near its intersection with St. Elmo Street. He was stopped in the left-hand lane of traffic as the car in front of him was waiting to make a left-hand turn. While the plaintiff was stopped, his car was struck in the rear by the car operated by the defendant.

As a result of the collision, the plaintiff was struck in the rear of the head by an unknown object. This caused his head to bleed but he did not immediately feel pain. He did not recall that his body struck any other part on the interior of the vehicle. The plaintiff was not wearing a seat belt at the time of the accident. (Plaintiff’s December 4, 1998 deposition, pages 16-17. This deposition will hereafter be simply referred to as “N.T.” followed by the cited page.)

At the urging of the police officer who responded to the scene, the plaintiff went to the hospital with the police officer. He was treated as an outpatient at the emergency room. His head wound was treated. He was told that he had a slight concussion and he was released. (N.T., 19-21.) The head injury resolved completely after a few days. (N.T., 26.)

The plaintiff also alleges that he suffered pain in the middle of his low back but, at his deposition, he did not provide detail as to that alleged injury. (N.T., 27.) At the point that the plaintiff was asked to describe what inju-ríes remained from the accident as of the date of his deposition, which was almost 10 months after the accident, the plaintiff made no mention of the low back injury. (N.T., 30-31.) A fair inference from the testimony is that the low back injury resolved itself at some point between February and December of 1998.

The one other injury identified by the plaintiff was pain and loss of strength in his left arm and shoulder. That particular injury was described by him as causing pain, aches and loss of strength. The loss of strength caused him to drop items at work for some period of time after the accident. The pain and aches were particularly troublesome for approximately three or four months after the accident. Following that, the plaintiff has had good days and bad days but, by mid-summer of 1998, the plaintiff “started feeling pretty good.” (N.T., 23, 26, 27-28.) He stopped dropping things approximately one and one-half to two months after the accident. (N.T., 34.) His shoulder has improved a lot. (N.T., 34.)

As of the date of the plaintiff’s deposition, the only lingering problem for the plaintiff was his shoulder. (N.T., 34.) With pressure, he feels pain and a loss of strength in the left shoulder if he is attempting to work overhead.

The plaintiff’s medical treatment consisted of the outpatient treatment at the hospital which we have already mentioned, visits to a chiropractor, Dr. Ziegler, commencing approximately two to three weeks after the accident until the latter part of the summer of 1998, and an examination by an unspecified doctor. (N.T., 30.) Since the examination by the unidentified doctor, there has been no further medical treatment by the plaintiff.

The plaintiff has not missed any time from work. In fact, he returned to work the day following the accident. He was never given restrictions by the chiropractor for the work that he performed. (N.T., 31.) The plaintiff has changed jobs from working as a cook at one restaurant where he worked full-time to working approximately 20-30 hours per week at another restaurant since the date of the accident. The change in jobs had nothing to do with the accident. The change was made because of better working hours at the latter job and because of the plaintiff’s desire to return to school, which the plaintiff has done.

The plaintiff is able to perform his current occupation without difficulty, except with long days and weather changes and when attempting to work overhead as indicated. (N.T., 30, 33.)

The only restrictions in the plaintiff’s daily activities that he noted are that he has significantly curtailed his weight training and “workouts.” However, he did resume these, on a limited basis, several months after the accident. He used to “spar” but he has not tried that since the accident.

The plaintiff admitted he made the limited tort selection for coverage in this case. (N.T., 41.)

Pennsylvania Rule of Civil Procedure 1035.2(1) provides that summary judgment is proper “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report....” An adverse party may not rest merely upon the allegations or denials in the pleadings, but must file a response within 30 days-after service of the motion for summary judgment. Pa.R.C.P. 1035.3(a). To withstand the entry of summary judgment, in the response, an adverse party must identify “one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the [summary judgment] motion.” Pa.R.C.P. 1035.3(a)(1).

Pursuant to 75 Pa.C.S. § 1705(d), an insured, like the plaintiff, who opts for limited tort coverage is precluded from recovering noneconomic loss unless the insured is able to show that a serious injury was suffered.

The Pennsylvania Supreme Court addressed the issue of the limited tort threshold in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). The court stated that the ultimate decision of whether a plaintiff sustained a “serious injury” should be made by a jury in “all but the clearest of cases.” Id., 553 Pa. at 446, 719 A.2d at 740. After our careful review of the record in this case, which includes the deposition testimony of the plaintiff, placed before the court by the parties for decision on this issue, we find that this is a clear case whereby, as a matter of law, we are compelled to conclude that the plaintiff did not suffer a serious injury.

A serious injury has been defined as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702. Mr. Tahos did not suffer death nor did he suffer a permanent serious disfigurement. Accordingly, the parties restricted their arguments to whether the plaintiff suffered serious impairment of body function.

The determination of whether serious impairment of body function has been suffered requires us to make two inquiries. First, “[w]hat body function, if any, was impaired because of injuries sustained in a motor vehicle accident?” Washington, 553 Pa. at 449, 719 A.2d at 740, quoting DiFranco v. Pickard, 398 N.W.2d 896, 901 (1986). Second, “[w]as the impairment of the body function serious?” Id. When deciding these questions, the court should not focus on the injuries themselves, but should focus on how the injuries affected a particular body function. Id. Several factors should be considered when deciding whether an injury is serious, namely, the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. Id.

The parties do not dispute that the laceration on the back of the head and the back stiffness suffered by the plaintiff were not serious injuries. We therefore focus on the injury to the left arm and shoulder which ultimately resolved itself into a shoulder injury only.

In assessing the arm and shoulder injury, we do not focus on any one factor. In fact, no one factor is determinative. Rather, we have considered the entirety of the plaintiff’s testimony in assessing the shoulder injury.

In assessing the evidence in the light most favorable to the plaintiff, we determine that the injuries have been bothersome for the plaintiff, particularly in the months immediately following the accident. As of the time of the deposition, however, pain and discomfort were not ever present but were only present upon the application of pressure to the shoulder. A fair reading of the plaintiff’s deposition as to what he means by “pressure” equates to the attempt to lift, particularly overhead. On many occasions the pain and discomfort are not present.

The plaintiff has never been incapacitated from work as a result of the accident. In fact, his chiropractor placed no restrictions upon his work. Other than some initial problems with dropping items and difficulty in lifting things overhead, the plaintiff has not been impaired in his ability to perform his work.

As to the plaintiff’s leisure activities, there was some disruption in the leisure activities for several months after the accident in weight training and “working out.” The plaintiff has gradually reintroduced himself to the activities, perhaps not to the extent that he previously did them. The testimony is not that the plaintiff is restricted from doing “sparring,” but that he has not attempted to do that.

The facts from Washington are instmctive. The plaintiff there suffered contusions, sprains and strains. He missed four to five days of work. Six months following Mr. Washington’s motor vehicle accident, he was diagnosed with joint arthritis and coalition in the right foot requiring him to wear heel lifts. His foot caused him pain every other week. He was still able to perform his work duties. He was able to engage in normal daily activities except for having to use a riding lawn mower. The injuries suffered by Mr. Washington and the injuries suffered by the plaintiff here are truly comparable. In Washington, the Supreme Court ruled that summary judgment was appropriate. We do the same with this case.