author: TURGEON, J.,

text:
    Lanza v. Lewis

      C.P. of Dauphin County,
    no. 2881 S 1992.

      Leslie Jacobson, for defendant.

      Tracy McNamara, for plaintiff.
    September 8, 1998
   TURGEON, J.,

Plaintiff Carlo Lanza has filed a petition seeking to open a non pros judgment entered in favor of defendant Ereno Lewis September 27, 1996. For the reasons set forth below, plaintiff’s petition is denied.

PROCEDURAL HISTORY

Plaintiff initiated this action by filing a complaint on July 17, 1992 to which defendant filed an answer with new matter. Thereafter, plaintiff filed an amended complaint to which defendant again filed an answer with new matter. Plaintiff filed his reply to new matter on January 12,1993. No further docket activity occurred until January 5, 1996, almost three years later, when plaintiff filed an objection to the proposed termination of this case due to inactivity.

On March 11, 1996, Judge Lewis entered an order requiring the case be settled or listed for trial by July 1, 1996, or face termination. On April 11, 1996, defendant filed a petition for judgment of non pros and on June 21, 1996, plaintiff requested a bench trial. Defendant objected to the bench trial and it was ordered deferred pending the outcome of the non pros petition. Thereafter, the non pros issue was briefed and orally argued before an en banc panel of this court, following which non pros was granted, by order of September 27, 1996.

On October 7,1996, plaintiff filed a petition for relief from judgment of non pros, seeking to open the judgment, pursuant to Pa.R.C.P. 3051, 42 Pa.C.S. That petition was originally denied by order of October 25, 1996; however, the October 25 order was thereafter vacated on October 30, 1996 and the parties were directed to proceed under local rule to file briefs and list the matter for oral argument. All briefs were filed by November 15, 1996; however, the matter was not listed for argument until March 1998. The parties filed supplemental briefs, and oral argument on the petition for relief from non pros was held on May 20, 1998 before a panel of this court.

LEGAL DISCUSSION

To open a non pros judgment, the petitioner must allege facts showing (1) the petition is timely filed; (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa.R.C.P. 3051(b); Jacobs v. Halloran, 710 A.2d 1098, 1100 n.4 (Pa. 1998). Plaintiff timely filed his petition to open, doing so within 10 days following entry of non pros. Plaintiff has also alleged facts establishing a meritorious breach of contract action wherein he avers as follows: he loaned $100,000 to defendant in February 1985 to be repaid within one year at 10 percent interest; after plaintiff was not paid within a year, defendant reaffirmed the debt various times between February 1986 and February 1992, causing plaintiff to forebear from instituting legal action; and that in February 1992, defendant advised plaintiff he would not repay the loan prompting this action. Therefore, plaintiff’s entitlement to relief rests on whether he has a reasonable explanation or legitimate excuse for his inactivity or delay.

In determining whether plaintiff can meet this requirement, the court reviews the three elements necessary to issue a non pros judgment. Gohel v. Montgomery Hospital, 698 A.2d 653, 654 (Pa. Super. 1997). At the time non pros was entered, the applicable standard under Penn Piping permitted non pros when (1) plaintiff had not diligently proceeded with reasonable promptitude; (2) there was no compelling reason for the delay; and (3) the delay caused prejudice to the defendant. Penn Piping Inc. v. Insurance Co. of North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992). Under Penn Piping, a defendant was presumed to have been prejudiced where the docket indicated inactivity of two years or more. Id. at 357, 603 A.2d at 1009. In April of ¿lis year, however, the Supreme Court in Jacobs v. Halloran overruled the presumption of prejudice and reverted to the actual prejudice test enunciated in James Bros. Co. v. Union Banking and Trust Co., 432Pa. 129, 247 A.2d587 (1968); Jacobs v. Halloran, 710 A.2d 1098, 1103 (Pa. 1998).

Turning to the first requirement, we conclude plaintiff did not proceed diligently. In meeting his burden, plaintiff may point to non-docket activity. Gohel v. Montgomery Hospital, 698 A.2d at 654. See also, Davis v. Lexeen Inc., 117 Dauph. 138 (1997) (Clark, J.). Plaintiff notes the following non-docket activity occurred: On June 3, 1993, plaintiff forwarded interrogatories to defendant; June 18, 1993, defendant directed interrogatories to plaintiff; March 11, 1994, defendant forwarded answers to plaintiff and at some unspecified time, plaintiff responded to defendant’s interrogatories; September 14, 1994, the parties’ depositions were conducted following which a lengthy settlement conference was held; between September 1994 and June 1995, ongoing settlement negotiations were held; and on June 28, 1995, a second settlement conference was held. (Plaintiff’s brief in opposition to non pros pp. 1-2.) Plaintiff also asserts that during this time, the parties had unspecified telephone discussions, exchanged correspondence and requested production of documents. (Brief in opposition at 3; petition for relief from non pros ^4a.)

These activities indicate a lack of diligence whereby, during an almost three-year period, the only activities occurring in this simple breach of contract action were two depositions, an exchange of interrogatories, two settlement conferences and some unspecified communications.

Plaintiff has also failed to show he had compelling reasons for any delay or inactivity. In a companion case to Jacobs v. Halloran, the Supreme Court held non-docket activity may be considered in deciding whether a compelling reason for delay exists. Marino v. Hackman, 710 A.2d 1108, 1111 (Pa. 1998). Even upon consideration of non-docket activity, there were considerable delays in moving this case along. Discovery appears to have been completed by September 14, 1994, when the parties’ depositions were taken. Nevertheless, following a discovery conference that day, no further activity occurred until almost nine months later, June 28, 1995, when a second settlement conference was held. Furthermore, following that conference, no activity was initiated by plaintiff for another six months until plaintiff filed an objection to the proposed case termination. Plaintiff has not submitted any compelling reasons why this relatively simple contract action has undergone such considerable delays.

Finally, plaintiff has failed to show defendant has not been actually prejudiced by the inactivity. Actual prejudice may be established by “any substantial diminution of a party’s ability to properly present its case at trial.” Jacobs at 1103. (citation omitted) Defendant is now 87 years old, suffers from memory loss and other cognitive difficulties, and asserts he may be unable to accurately testify to activities occurring over 10 years ago. Plaintiff has not contested this assertion.

Accordingly, we enter the following:

ORDER

And now, September 8, 1998, plaintiff’s petition for relief from judgment of non pros, in the nature of a petition to open judgment, is hereby denied.

      . Plaintiffs filing was prompted by inclusion of this action on the court’s November 1995 “purge” list: civil actions slated for termination due to docket inactivity of two years or more pursuant to local rule. Dauphin County Rule of Judicial Administration 1901.

      . Plaintiff asserted ongoing settlement negotiations occurred between September 1994 and June 1995, but has not substantiated this claim. It remains plaintiff’s burden to show his entitlement to open non pros judgment.

      . When non pros was originally entered in this case, defendant had been entitled to the presumption he suffered prejudice due to the almost three-year docket inactivity. Defendant had specifically relied upon the Penn Piping presumption of prejudice in seeking non pros and did not allege actual prejudice. Petition for non pros ¶¶7,9. However, in arguing non pros before this court, he has asserted actual prejudice.


source: Caselaw Access Project

author: FARINA, J.,

license: Public Domain

text:
    Baird v. Congello
    C.P. of Lancaster County,
    no. 3700-1992.

      H. Charles Benner, for plaintiff.

      Linda Porr Sweeney, for defendant.

      August 11, 1998
   FARINA, J.,

Before the court is plaintiff Ralph Baird’s motion for post-trial relief seeking judgment on the pleadings, judgment n.o.v., or a new trial. Plaintiff contends that the trial court erred by failing to deem as admitted paragraphs 50 through 59 of plaintiff’s complaint and permitting defendant to amend his answer prior to trial as to these allegations. Plaintiff further contends that the trial court erred in refusing to deem paragraph 9 of defendant’s answer admitted because defendant’s answer constituted a general denial. The issues have been briefed and argued, and are ready for disposition.

The case was tried on September 29, 1997 through October 1, 1997, before the undersigned. In his case in chief, plaintiff alleged that defendant had negligently performed an operative repair of a recurrent inguinal hernia and, as a consequence, plaintiff’s right testicle was ultimately removed because of atrophy, and that nerves and blood vessels were entrapped, necessitating subsequent procedures to free them. Although defendant had filed an answer to plaintiff’s complaint on October 30, 1992, the answer failed to include responses to complaint paragraphs 50 through 59. In chambers, immediately before trial began, plaintiff’s counsel moved to deem the averments of the unanswered paragraphs admitted. Plaintiff further moved that paragraph 9 of plaintiff’s complaint be admitted as a general denial. Plaintiff renewed both of these motions in open court. The court denied both motions and permitted defendant to amend the answer as to paragraphs 50 though 59. Upon trial, the case went to the jury who returned a defense verdict. Plaintiff’s post-trial motions followed.

Judgment n.o.v. is proper only if the moving party is entitled to judgment as a matter of law or if the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the moving party. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). Granting judgment n.o.v. is appropriate in a clear case where, viewing the evidence in the light most favorable to the verdict winner, and granting the verdict winner every reasonable inference, there is insufficient evidence to sustain the verdict. Ingrassia Construction Co. v. Walsh, 337 Pa. Super. 58, 486 A.2d 478 (1984). Granting a new trial is appropriate only where it clearly appears in the uncontradicted evidence that the verdict bears no reasonable relation to a loss suffered by the plaintiff, or where there has been an evident failure of justice to the plaintiff. Guidry v. Johns-Manville Corp., 377 Pa. Super. 308, 547 A.2d 382 (1988).

Plaintiff first argues that defendant’s failure to respond in his original answer to paragraphs 50 though 59 of plaintiff’s complaint constitutes the failure to file a responsive pleading and that under Pa.R.C.P. 1029(b), these averments should be deemed admitted. Plaintiff cites Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 681 A.2d 167 (1996), for the proposition that a party who files an untimely answer must show just cause for the delay and only after just cause has been shown can the trial court require the objecting party to demonstrate it will be prejudiced by the delay. Here, plaintiff argues, the trial court erred by requiring plaintiff to show prejudice and not first requiring defendant to show just cause.

While we agree with the principles enunciated in Peters Creek, these rules are inapplicable here. In the present case, defendant did not fail to file an answer to the complaint; thus, the standards in Peters Creek are not controlling. Defendant filed an answer but inadvertently overlooked and did not respond to paragraphs 50 though 59 of the complaint. Defendant was permitted to amend and file the answer prior to trial. Defendant was not granted leave to file an untimely answer. If the latter scenario occurred, Peters Creek might control, but it does not apply to amendment of a timely filed answer.

Pa.R.C.P. 126 provides that a court at every stage of any action may disregard any error or defect or procedure which does not affect the substantial rights of the parties. Moreover, the decision to permit an amendment to pleadings is a matter of judicial discretion. Tanner v. Allstate Insurance Co., 321 Pa. Super. 132, 467 A.2d 1154 (1983). Amendments to pleadings are to be liberally allowed in order to secure the just determination of cases on their merits, unless surprise or prejudice to the other party would result, or where the proposed amendment is against a positive rule of law. Id. In the present case, none of the above instances exist to deny defendant the opportunity to amend the pleading where an inadvertent error of counsel was its cause. Since permitting defendant to amend his answer to respond to paragraphs 50 through 59 of plaintiff’s complaint was not, nór could not be shown by plaintiff to affect his substantial rights, the court committed no error permitting eve of trial amendment.

Additionally, the allegations plaintiff pled in paragraphs 50 through 59 of the complaint are no more than conclusions of law, requiring no response. “Averments in a pleading to which no responsive pleading is required shall be deemed to be denied.” Pa.R.C.P. 1029(d). Rule 1029(a) requires a responsive pleading to admit or deny only averments of fact. Kappe Associates Inc. v. Aetna Casualty and Surety Co., 234 Pa. Super. 627, 632, 341 A.2d 516, 519 (1975). Whether an allegation is of fact or law is determined by its context disclosing the circumstances and purpose of the allegation. Id.

Upon review of the allegations in paragraphs 50 through 59 of the complaint, the negligence count of the complaint, we are satisfied they are mere conclusions of law to which a specific denial was not required. Paragraph 50 incorporates by reference all preceding paragraphs which comprise the factual underpinnings of the negligence count. Paragraph 51 includes sub-paragraphs (a) through (g). Paragraph 51 is the malpractice allegation of defendant’s alleged breaches of the standard of care more specifically set forth in sub-paragraphs (a) through (g). Thus, paragraph 51 pleads the conclusion of law that defendant was negligent for the reasons set forth in (a) through (g). Since the underpinnings for the conclusion of negligence pled in paragraph 51 are in paragraphs 1 through 49 of the complaint to which defendant’s original answer did specifically respond, there is nothing more to plead other than to deny plaintiff’s conclusion of negligence which needed no response.

Paragraphs 52 through 59 of the complaint are more of the same. Paragraph 52 pleads causation of injuries and paragraphs 53 through 59 plead damages. They are conclusory pleadings requiring at best a denial in the form of a demand for proof or as conclusions of law. Accordingly, there was no error of law when the trial court permitted defendant’s amended answer.

Plaintiff next contends that the trial court erred when it refused to deem as admitted the following averment contained in paragraph 9 of plaintiff’s complaint:

“(9) During the course of the surgery, Dr. Congello did not identify or protect the ilioinguinal nerve, the iliohypogastric nerve, or the genitofemoral nerve.”

Plaintiff claims that defendant’s answer failed to specifically respond to this averment when it pled the following response:

“(9) Denied. It is denied that Dr. Congello did not identify or protect the ilioinguinal nerve, the iliohypogastric nerve, or the genitofemoral nerve during the course of the surgery in question. On the contrary, under the particular facts and circumstances of this case, Dr. Congello acted reasonably, properly and within the standard of care in performing the surgery in question upon Mr. Baird.”

Plaintiff contends that because the second portion of defendant’s response does not affirmatively aver the events that did occur in place of the facts which are denied, paragraph 9 should be deemed admitted as a general denial.

In determining whether a party has admitted the material factual allegations of a complaint, the court should examine the pleadings as a whole. Cercone v. Cercone, 254 Pa. Super. 381, 391, 386 A.2d 1, 5 (1978). Furthermore, Pa.R.C.P. 126 permits the court to disregard error or defects that do not affect substantial rights. When taking defendant’s answer in its entirety, at paragraph 7 the defendant admits that the operative report regarding the plaintiff’s August 17,1990 procedure contains the description of the procedure in question. At paragraph 8, the defendant sets forth a portion of the operative report which states, in part: “Care being taken not to strangle the cord at the internal ring.” Finally, at paragraph 9, defendant denied that he did not identify or protect the ilioinguinal nerve, the iliohypogastric nerve or the genitofemoral nerve during the course of the surgery in question, and that under the particular facts and circumstances of the case, he acted within the applicable standard of care in performing the surgery. By necessary implication, these paragraphs set forth that the defendant asserted that he acted in accordance with what is written in the operative report and that the operative report met with the appropriate standard of care for the surgery in question.

While the defendant did not affirmatively set forth the manner of identifying or protecting the nerves which met with the applicable standard of care, he is not required to deny the plaintiff’s allegations in explicit detail. Commonwealth by Preate v. Rainbow Associates Inc., 138 Pa. Commw. 56, 587 A.2d 357 (1991). Requiring a responsive pleading to explain what occurred would be contrary to the fundamental principle that the plaintiff has the obligation of proving defendant’s liability. Id. It was not the defendant’s burden to establish the standard of care which the plaintiff alleged he had violated. It was sufficient for the defendant to deny that he failed to identify or protect the anatomy in question, and set forth that he had acted appropriately and as had been set forth in the operative report. When the answer is reasonably read in its entirety, it is clear that the defendant’s denial was sufficiently specific. There was no error in refusing to deem paragraph 9 admitted.

Defendant requested leave to file an amended answer out of an abundance of caution. The court, in the exercise of its discretion, granted the request, seeing that such amendment would cause no surprise or prejudice to plaintiff. Even now, plaintiff cannot demonstrate any surprise or prejudice resulting from the court permitting the amendment or in refusing to deem admitted paragraph 9 of plaintiff’s complaint. Plaintiff was prepared and ready to move forward to trial with his case. Long before trial, he had his liability and damage experts ready, as evidenced by his April 1,1997 pretrial memorandum. He expected that his experts would testify live at trial concerning the very matters which plaintiff now complains should have been deemed admitted. (See the expert reports of Bruce Garber M.D. dated June 30, 1992, and November 16, 1992.) In plaintiff’s supplemental pretrial memo, filed two months before trial, plaintiff restated his witness list, including the expert witnesses he intended to call on plaintiff’s behalf. (See amended pretrial memorandum.) Those experts were expected to testify and did testify in conformity with the medical records and reports that had been previously furnished to the defendant. The reports of Dr. Garber addressed the allegations of negligence which plaintiff claims defendant had admitted by failing to respond to paragraphs 50 through 59 of the complaint.

As a result, it is clear that the plaintiff did not suffer prejudice or unfair surprise when the court refused to deem paragraphs 50 through 59 or paragraph 9 of plaintiff’s complaint as admitted. Plaintiff was ready to go forward with trial and to prove each allegation of negligence and causation in his complaint. He had available to him, and ultimately fully utilized, his expert witness. The court’s rulings on these issues did not change how plaintiff intended to proceed with his case.

Accordingly, we enter the following order:

ORDER

And now, August 11, 1998, upon consideration of plaintiff Ralph Baird’s motion for post-trial relief and defendant Anthony Congello’s response thereto, the briefs, and oral argument of the parties, it is ordered and directed that plaintiff’s motion is denied and that the prothonotary enter judgment on the jury’s verdict in favor of defendant Anthony M. Congello D.O. and against plaintiff Ralph Baird.

      . Argument on this motion was originally scheduled for the February 11, 1998, argument court list. On January 28, 1998, we entered an order stating that in accordance with the order of liquidation entered by the Commonwealth Court in M. Diane Koken, Insurance Commissioner of the Commonwealth of Pa. v. PIC Insurance Group on January 21, 1998, staying for 90 days all pending court actions in which PIC Insurance Group is obligated to defend a party, this argument was to be rescheduled for the June 10, 1998 argument court list. We heard argument June 10, 1998.


author: SCHMEHL, P, J.,

text:
    Busch v. Busch

      C.P. of Berks County,
    no. 96-11961.

      Randy A. Rabenold, for plaintiff.

      Frederick R. Mogel, for defendant.
    May 6, 1998
   SCHMEHL, P, J.,

This matter comes before the court on Mr. Busch’s petition for special relief to declare the parties’ prenuptial agreement invalid. Mrs. Busch filed a complaint in divorce and Husband filed a counterclaim containing claims for equitable distribution, APL and alimony. Wife filed an answer to the counterclaim and raised as a defense the prenuptial agreement between the parties. Husband also filed a complaint for support, and again, Wife answered and raised the defense of the prenuptial agreement. At the request of counsel, the matter was decided on deposition testimony and argument without hearing.

Husband requested the prenuptial agreement in order to protect Wife from his encroaching upon her estate. Husband was familiar with the concept of prenuptial agreements because he had such an agreement with his previous wife. Wife, on the other hand, was not familiar with prenuptial agreements because she never had one. Furthermore, she had never been through a divorce.

On December 28, 1984, the parties executed their prenuptial agreement. The agreement was executed in a bank in Robesonia, and was witnessed by two bank employees. Execution of the agreement came only after each party had the benefit of independent legal advice. Furthermore, at the time of the execution, the parties exchanged financial disclosure statements that were to be attached to the agreement but, for whatever reason, were not so attached. These disclosure statements were prepared prior to execution of the agreement and were based on the parties’ personal knowledge.

The financial disclosure statements were exchanged between the parties at or before the time of the execution of the agreement. In his deposition testimony, Husband testified that he did not know for sure how Wife came to have a copy of his statement, but it was possible that Attorney William Forry made a copy of his statement and gave it to Wife. He also testified that he did not care to have a copy of Wife’s statement because he felt that he understood what it said. He was not personally aware of any particular items not disclosed. He said, “she is very precise, very good,” when it comes to such matters.

Husband now suggests that there was not full and fair disclosure of Wife’s estate. Husband’s disclosure statement revealed an estate of approximately $50,000. Wife’s disclosure statement reflected her estate to be valued in excess of $300,000. Some of the values reflected in Wife’s statement, however, were a year old and some assets, though listed, were not valued. The only thing missing from her statement was her income, solely derived from her listed investments. The true value of her estate was, in fact, over $400,000. Based on this $100,000 difference and Husband’s share of the household expenses being more costly than he anticipated, a specious argument in this context, Husband alleges that the agreement did not provide full and fair disclosure of Wife’s assets and therefore must be set aside. Husband’s disavowal of the agreement is also based on the fact that Wife’s disclosure statement provided only a general description of certain stock assets without indicating their value. Husband argues the vagueness of the agreement actually obscured the value of each parties’ respective estate.

Full and fair disclosure of the financial positions of the parties is required in order to have a valid prenuptial agreement. Simeone v. Simeone, 525 Pa. 392, 402, 581 A.2d 162, 167 (1990). The disclosure need not be exact so long as it is “full and fair.” Id. The adequacy of the disclosure is based on the facts and circumstances of each individual case. Nigro v. Nigro, 371 Pa. Super. 625, 631, 538 A.2d 910, 912-14 (1988). Apresumption of full and fair disclosure arises if an agreement provides that such a disclosure has been made. Simeone at 403, 581 A.2d at 167. This assumption can be rebutted through an assertion of fraud or misrepresentation but only if proven by clear and convincing evidence. Id.

Because the agreement between Husband and Wife states that full disclosure has been made, a presumption arises that such disclosure was, in fact, made. Husband has the burden of proving by clear and convincing evidence that such is not the case. Because Husband was satisfied with the agreement and the parties’ financial disclosure statements when the parties executed the agreement and because he failed to prove by clear and convincing evidence that the agreement was not based on full and fair disclosure, the court declares the prenuptial agreement to be valid and denies Husband’s requested relief.

Between the disclosures provided by Wife and his living in her home for a few weeks before their marriage, Husband must have had a fair understanding of the value of Wife’s estate. Although Wife’s disclosure statement did not list her income or list the values for each asset listed in her statement, she did her best to use the closest value available to her. Wife did not hide anything from Husband, and her failure to list the values for each individual asset was not sufficient to “obscure” the general financial resources of Wife. Husband had the ability to look up stock values and ask for more up-to-date values if he was concerned.

There was no material misrepresentation by Wife. Husband acknowledged that he was satisfied with Wife’s disclosure statement at the time that he executed the agreement, and, in fact, testified that her statement was complete, that Wife was very precise, very good, and that he was not aware of anything that she missed. In light of this testimony, Husband cannot be heard to say that Wife’s disclosure was not “full and fair,” especially since disclosure need not be exact.

Full and fair disclosure need not be in the prenuptial agreement. The failure to use a staple to attach the financial disclosure statements to the prenuptial agreement will not suffice to declare the agreement invalid. The agreement is not invalid, but rather, it is simply an inconvenience to a man who has changed his mind about wanting a piece of his Wife’s estate.

For the above reasons, the court enters the following order:

ORDER

And now, May 6, 1998 the defendant’s petition for special relief is dismissed.

      . There was conflicting testimony as to whether the statements were exchanged for the first time at Attorney William Forry’s office or at the bank.


author: WHERRY, J.,

text:
    Erie Insurance Exchange v. Fry
    C.P. of Mercer County,
    no. 1997-3271.

      Richard W. Kooman II, for plaintiff.

      Miles K. Karson Jr., for defendant Fry.

      R. Charles Thomas, for defendant Floch.

      August 20, 1998
   WHERRY, J.,

In March of 1997, defendant Timothy L. Floch Jr. initiated a civil action against defendant Donald R. Fry in the Court of Common Pleas of Mercer County, Pennsylvania, at civil action no. 992 of 1997, the “underlying lawsuit.” At all times relevant to the cause of action in the underlying lawsuit, Fry was insured by plaintiff Erie Insurance Exchange, pursuant to the terms of the Pioneer 21st Century Home Protector insurance policy, no. Q493104197. Erie initiated this declaratory judgment action to have this court determine whether Erie has any duty or obligation under the Erie policy to defend and indemnify Fry from any claim arising out of the incident between Floch and Fry that occurred on March 26, 1995, which incident is the subject of the underlying lawsuit. Currently pending before this court is Erie’s motion for summary judgment. For the reasons set forth below, this court grants Erie’s motion for summary judgment and declares that Erie has no duty or obligation to either defend or indemnify Fry in the underlying lawsuit.

STANDARD OF REVIEW

A motion for summary judgment is properly granted if, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Pa.R.C.P. 1035.2. The trial court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Britamco Underwriters Inc. v. Weiner, 431 Pa. Super. 276, 279, 636 A.2d 649, 650-51 (1994). “Summary judgment may be granted only where the right is clear and free from doubt.” 431 Pa. Super, at 279, 636 A.2d at 650.

DISCUSSION

The Declaratory Judgments Act, 42 Pa.C.S. §§7531-7541, may be invoked to determine whether an insurer has a duty to defend and indemnify its insured with respect to an underlying lawsuit. General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997), on remand to, 708 A.2d 828 (Pa. Super. 1998). As the Pennsylvania Supreme Court in Allen explained:

“A court’s first step in a declaratory judgment action concerning insurance coverage is to determine the scope of the policy’s coverage. . . . After determining the scope of coverage, the court must examine the complaint in the underlying action to ascertain if it triggers coverage. If the complaint against the insured avers facts that would support a recovery covered by the policy, then coverage is triggered and the insurer has a duty to defend until such time that the claim is confined to a recovery that the policy does not cover. The duty to defend also carries with it a conditional obligation to indemnify in the event the insured is held liable for a claim covered by the policy. . . . Although the duty to defend is separate from and broader than the duty to indemnify, both duties flow from a determination that the complaint triggers coverage.” 547 Pa. at 706, 692 A.2d at 1095. (citations omitted)

Section II of the Erie policy, entitled “Home and Family Liability Protection,” provides in relevant part:

“We will pay all sums up to the amount shown on the Declarations, which anyone we protect becomes legally obligated to pay as damages because of bodily injury or property damage resulting from an occurrence during the policy period. We will pay for only bodily injury or property damage covered by this policy. . . .
“If anyone we protect is sued for damages because of bodily injury or property damage covered by this policy, we will provide a defense with a lawyer we choose, even if the allegations are not true.” (emphasis added)
“Occurrence” is defined in the Erie policy as an “accident, including continuous or repeated exposure to the same general harmful conditions.” “Accident,” however, is not defined in the Erie policy.
“In Pennsylvania, whether bodily injury ... is caused by an accident must be determined from the perspective of the insured.” State Farm Mutual Automobile Insurance Co. v. Martin, 442 Pa. Super. 442, 444, 660 A.2d 66, 67 (1995). Although this court has been unable to find a case defining “accident” in the context of a liability insurance policy, this court did find a Pennsylvania Supreme Court case discussing the definition of the phrase “accidental means” in the context of a life insurance policy. In Urian v. Equitable Life Assurance Society, 310 Pa. 342, 165 A. 388 (1933), the Pennsylvania Supreme Court stated:
“Our cases have uniformly held that where the cause of injury or death was an act of the insured, the means which caused the result, to be accidental, must be undesigned and unintentional, that accidental injury or death is an unintended and undesigned result arising from acts done, while injury or death by accidental means is a result arising from acts unintentionally done.” 310 Pa. at 346, 165 A. at 390 (quoted in Martin, 442 Pa. Super, at 444-45, 660 A.2d at 67).

Section II of the Erie policy also excludes coverage to named insureds for bodily injury intentionally inflicted:

“What We Do Not Cover — Exclusions
“Personal Liability Coverage
“Medical Payments To Others Coverage
“We do not cover under Personal Liability Coverage and Medical Payments to Others Coverage:
“(1) Bodily injury or property damage expected or intended by anyone we protect.”

For the purpose of an insurance policy provision excluding coverage for bodily injury “expected or intended by the insured,” “[a]n insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result.” United Services Automobile Association v. Elitzky, 358 Pa. Super. 362, 375, 517 A.2d 982, 989 (1986). After a thorough analysis of “the expected or intended harm” clause, the Superior Court in Elitzky held that the clause “is ambiguous as a matter of law and must be construed against the insurer,” 358 Pa. Super, at 375, 517 A.2d at 989, and further held that the words “intended” and “expected” are synonymous for the purpose of interpreting these types of exclusionary clauses. 358 Pa. Super, at 377-78, 517A.2d at 990. Both terms connote an element of conscious awareness on the part of the insured. Id. at 379, 517 A.2d at 991. If the actor does not have the ability to formulate an intent, the resulting act cannot be intentional. Nationwide Mutual Insurance Co. v. Hassinger, 325 Pa. Super. 484, 493, 473 A.2d 171, 176 (1984).

In the amended complaint in the underlying lawsuit, Floch seeks to recover money damages against Fry for injuries and damages allegedly sustained as a result of an assault on Floch by Fry. In paragraph 9 of the amended complaint, Floch describes the alleged actions of Fry as follows:

“That on March 26, 1995, the defendant, Donald Fry, shouted obscenities at the plaintiff for driving off his driveway into his yard. The defendant, Donald Fry, then reached through the window of the vehicle and grabbed the plaintiff, Timothy L. Floch Jr., by the hair and pounded the plaintiff’s head against the window of the vehicle and slammed the plaintiff’s head against the car snapping his neck back and forth.” See paragraph 9 of the amended complaint in the underlying lawsuit, attached as exhibit A to Erie’s motion for summary judgment.

Although the actions alleged in paragraph 9 certainly suggest intentional conduct, other paragraphs of the amended complaint refer to Fry’s actions as negligent, reckless, and wanton. See paragraphs 12, 13 and 14 of the amended complaint in the underlying lawsuit, attached as exhibit A to Erie’s motion for summary judgment. After the complaint in the underlying lawsuit was filed, Erie undertook a defense on behalf of Fry pursuant to a reservation of rights.

In an attempt to establish that the claim against Fry in the underlying lawsuit falls outside the scope of coverage in the Erie policy, Erie took the deposition of both Floch and Fry in this declaratory judgment action. In his deposition, Floch’s description of Fry’s alleged actions is consistent with that in the amended complaint:

“When I was getting, you know, pulling up behind him and stopping, he was getting out of his truck, and he come up and reached through the window and called me a fucking idiot and smashed my head up — grabbed me through the window, because the window was down about eight inches to nine inches, and he reached through and grabbed me by the hair and just started yanking my head, pulling up against the door, and he was, like, How much of an idiot are you backing into my yard? and, I don’t know, I don’t remember too much after that. I just kind of — I don’t know.” See deposition of Floch at p. 7, attached as exhibit D to Erie’s brief in support of motion for summary judgment.

Fry, on the other hand, contends that he never attacked or assaulted Floch:

“Q. So you’re still in your vehicle as you pull down to the road?
“A. Right. And I pulled down to the road and I looked in the mirror, and instead of him backing in the turn-around, he backed around my car and right over into my front yard and got the fender up against the house. Well, at that point I got out of the truck and walked back up the driveway. He had the window down two to three inches, and I said to him, What the hell do you think you’re doing in my front yard? I said, There’s the turn-around over there. And he didn’t answer me, and I said, Look at me, and I shook my finger at him like that (indicating), and I guess I swore at him, and in return, the grandfather, he said, Don’t swear at my grandson, and I said, Well, you ain’t no goddamn better than he is if you’re that ignorant to back into my front yard. I just had it rolled. He started swinging his arms and—
“Q. Did you reach inside?
“A. No. I was shaking my fist, but my hand never went in, because the window was only down about that much (indicating), and I had a heavy winter coat on and there was no way I could’ve got my hand inside the truck.” See deposition of Fry at p. 20, attached as exhibit E to Erie’s brief in support of motion for summary judgment.

Floch’s deposition testimony establishes that Fry’s alleged actions that form the basis for the underlying lawsuit were neither accidental nor negligent. Furthermore, no facts were established or revealed during the deposition of Floch or Fry to show that Fry did not have (1) a conscious awareness of his actions or their consequences, or (2) an ability to formulate an intent. Consequently, this court concludes as a matter of law that the alleged actions of Fry described in Floch’s deposition are all intentional actions. There is no alleged action of Fry that could possibly be characterized as accidental or negligent. Therefore, there is no coverage under the Erie policy because the underlying lawsuit does not contain a claim for bodily injury resulting from an “occurrence.” In addition, the claim contained in the underlying lawsuit is excluded under the Erie policy because the alleged bodily injuries sustained by Floch are the types of injuries intended or expected as a result of the alleged intentional actions of Fry. In other words, Fry’s alleged actions are of such a nature that an intent to inflict the type of injuries allegedly sustained by Floch can be inferred as a matter of law. Consequently, as a result of the deposition testimony of Floch and Fry, Erie has now confined Floch’s claim to a claim (1) not covered under the Erie policy, and/or (2) specifically excluded by the Erie policy.

CONCLUSION

For the reasons set forth above, this court grants Erie’s motion for summary judgment and declares that Erie has no duty or obligation under the Erie policy to defend and indemnify Fry in the underlying lawsuit.

An appropriate order follows.

ORDER

And now, August 20, 1998, upon consideration of the motion for summary judgment of Erie Insurance Exchange and brief in support, defendant Fry’s brief in opposition, the lack of any response from defendant Floch, and the argument of counsel for plaintiff Erie and defendant Fry on Monday, August 3, 1998, it is hereby ordered that:

(1) Erie’s motion for summary judgment is granted.

(2) Pursuant to the terms of the Pioneer 21st Century Home Protector insurance policy, no. Q49-3104197, issued by the Erie Insurance Group, Erie has no duty or obligation to defend and indemnify defendant Fry in the underlying lawsuit, Floch v. Fry, Mercer County Court of Common Pleas, no. 992 of 1997.

      . The fact that Fry denies the allegations in the underlying lawsuit does not give rise to a duty to defend on the part of Erie. Erie’s duty is not a duty to defend all claims that its insured contends are groundless, false or fraudulent. Rather, Erie’s duty is a duty to defend all claims covered under the policy, even if the allegations are not true. See Erie policy, section II at p. 13, attached as exhibit B to Erie’s motion for summary judgment. See also, General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 702, 692 A.2d 1089, 1093-94 (1997) (an insurer’s duty to defend lawsuits even if groundless, false, or fraudulent is limited to lawsuits raising claims covered under the policy), on remand to, 708 A.2d 828 (Pa. Super. 1998).

      . For example, if an insured was intoxicated at the time of the commission of the alleged acts, that fact must be considered in determining if the insured had the ability to formulate an intent. Nationwide Mutual Insurance Co. v. Hassinger, 325 Pa. Super. 484, 493, 473 A.2d 171, 176 (1984). See also, Stidham, v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 618 A.2d 945 (1992) (even though the insured shot and killed a person and pled guilty to third-degree murder, the insurer still had a duty to defend the civil case against the insured because (1) the civil complaint against the insured alleged negligent, careless, reckless, and/or willful conduct, and (2) evidence established that the insured was intoxicated at the time of the shooting incident).

      . In the amended complaint in the underlying lawsuit, Floch’s attorney labeled Fry’s actions as negligent, reckless and wanton. See paragraphs 12,13 and 14 of the amended complaint in the underlying lawsuit, attached as exhibit Ato Erie’s motion for summary judgment. Under Pennsylvania law, “[a]n insurer’s duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiff’s pleadings ....” Gene’s Restaurant Inc. v. Nationwide Insurance Co., 519 Pa. 306, 308, 548 A.2d 246 (1988) (emphasis added) (quoting 7C J. Appleman, Insurance Law and Practice §4683, at 42 (W. Berdel ed. 1979)). However, now that the parties have engaged in discovery and had the opportunity to fully develop the factual record in support of Floch’s claim in the underlying lawsuit, this court is no longer limited to a consideration of the allegations in the amended complaint and the labels placed therein on Fry’s actions. Moreover, those labels are nothing more than legal conclusions — which this court, has now determined, based upon the evidence obtained through discovery, to be erroneous legal conclusions.

      . As a result of Fry’s alleged assault on Floch, Floch alleges to have sustained serious injuries, including, but not limited to, the following:
      (a) Thoracic and cervical strain;
      (b) Concussion;
      (c) Neck-injury — right arm numbness;
      (d) Headaches;
      (e) Back pain;
      (f) Abrasions;
      (g) Emotional distress.
      See amended complaint in the underlying lawsuit at paragraph 11, attached as exhibit A to Erie’s motion for summary judgment.

      . Because the duty to defend is broader than the duty to indemnify, Erie could not be required to indemnify Fry without also being obligated to defend him.


author: HODGSON, J.,

text:
    Williams v. Hockman
    C.P. of Montgomery County,
    no. 94-11927.

      Richard W. Rogers, for plaintiff.

      Richard Yost, for defendant.
    May 13, 1998
   HODGSON, J.,

Appellants, Kevin Williams and Iris Williams, appeal the March 10, 1998 order of this court granting the appellee Donald Hock-man’s motion for summary judgment and dismissing the appellant’s complaint with prejudice.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case are largely undisputed. The appellant, Donald Hockman, is a dentist. On August 9, 1993, Hockman extracted the right maxillary second molar from appellee, Kevin Williams. During this procedure, the root of the tooth fractured. Unable to locate the root, Hockman ordered an x-ray. The x-ray indicted that the root had been lodged in the maxillary sinus. After the procedure, Hockman informed Williams of the problem and referred him to an oral surgeon. Thereafter, the oral surgeon performed a procedure to remove the root.

The appellants filed a complaint on September 8, 1994, claiming negligence and lack of informed consent. We granted summary judgment dismissing the appellants’ complaint with prejudice on March 10, 1998. The appellants timely filed their appeal on April 7, 1998.

Appellants raise one issue on appeal:

Did the appellants’ expert testimony provide sufficient evidence so that a jury could decide whether the fractured root was a material risk of the extractions and, therefore, whether the appellant gave an informed consent to the extractions?

DISCUSSION

After revisiting the litany of cases on this issue, we are compelled to find that the expert testimony produced by the appellants provided sufficient evidence so that the question of informed consent should be decided by a jury. Thus, we request that our order granting summary judgment be dissolved thereby allowing appellant to present his case to a jury.

The Supreme Court has held that, “[i]n order for a consent to be considered informed it must be shown that the patient was advised of those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.” Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992). Furthermore, “the jury must be supplied with expert [testimony] as to the nature of the harm attendant to the procedure, and the probability of that harm occurring.” Id. at 405, 604 A.2d at 1008. Once the jury is supplied with this information, it is for them to determine whether the risk is material. Id.; see also, Festa v. Greenberg, 354 Pa. Super. 346, 511 A.2d 1371 (1986). In addition, the Superior Court has held that,

“The law is very clear that once expert testimony establishes that there was a risk of any nature to the patient that he or she was not informed of, and after surgery the patient suffers from that undisclosed risk, it is for the jury to decide whether the omission was material to an informed consent.” Levy v. Jannetta, 423 Pa. Super. 384, 389, 621 A.2d 585, 587 (1992), quoting Jozsa v. Hottenstein, 364 Pa. Super. 469, 528 A.2d 606 (1987). (emphasis added)

The appellants in this case offered the expert testimony of Dr. Howard S. Glazer. He found that the type of fracture which Kevin Williams experienced was “not uncommon” in tooth extractions. See exhibit C of defendant’s motion for summary judgment. At the same time, Dr. Glazer found that this type of fracture occurs with a small degree of probability. Id. Initially, we believed that this evidence did not fulfill the expert testimony requirement. However, in Jozsa, supra, expert testimony established that there was a 4-5 percent risk of harm. The court there determined that this was sufficient to establish the existence of the risk. Thus, the jury was supplied with the necessary evidence which allowed them to decide whether the risk was material. Josza, 364 Pa. Super, at 474, 528 A.2d at 608. Once the existence of the risk is determined by expert testimony, it is for the jury to decide what constitutes a material risk, no matter how slight the probability of the risk occurring. Although we predict that a jury would not find this risk material, ultimately, the jury must make their own determination. Accordingly, we find that the expert testimony of Dr. Glazer established the existence of a risk and that we erred in granting summary judgment in favor of the defendant on the issue of informed consent.

      . In their concise statement, appellants also raise the issue of whether a tooth extraction is surgery which would require informed consent. We will not address this issue since we were always in agreement with the appellant that this was surgery. In fact, the Superior Court clearly indicates in Sinclair by Sinclair v. Block, 406 Pa. Super. 540, 594 A.2d 750 (1991), that the extraction of teeth is surgery.


author: BIGHAM, J.,

text:
    Valentine v. Mickiewicz

      C.P. of Adams County,
    no. 97-S-970.

      Thomas M. Schultz, for plaintiffs.

      D.J. Hart, for defendant Mickiewicz.

      Andrew T. Kravitz, for additional defendant Eyler.
    July 21, 1998
   BIGHAM, J.,

On October 14, 1997, plaintiffs, Timothy J. Valentine and Michelle C. Valentine, filed a complaint against defendant, Douglas Mickiewicz t/d/b/a Mick Builders. On January 9, 1998, defendant answered plaintiffs’ complaint and filed a complaint joining additional defendant, Terry Eyler t/d/b/a Eyler Siding. On March 5, 1998, additional defendant filed preliminary objections.

STATEMENT OF FACTS

This cause of action arises out of the construction of a residential home. Plaintiffs allege that they entered into a written agreement for the construction of the home with defendant on August 9, 1995. Plaintiffs further allege that defendant performed the construction in a poor and unworkmanlike manner, including the use of substandard lumber and the improper installation of vinyl siding. The alleged faulty workmanship caused the vinyl siding to wave and buckle. Defendant alleges that it was additional defendant, as subcontractor, who performed all siding-related labor on plaintiffs’ home.

LEGAL DISCUSSION

Additional defendant raises two issues in his preliminary objections. First, he claims that defendant failed to conform to Pa.R.C.P. 2253 because the additional defendant complaint was filed more than 60 days after plaintiffs served the original complaint upon defendant. Second, additional defendant argues that the framer of the residence, Tony Hippensteel, is a necessary party but has failed to be joined, thereby requiring the additional complaint to be dismissed.

Rule 2253 provides as follows:

“Except as provided by Rule 1041.1(e), neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than 60 days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.” Pa.R.C.P. 2253, 42 Pa.C.S.

In the case at hand, the original complaint was served upon defendant on October 31, 1997. The complaint joining additional defendant was filed on January 9, 1998, 70 days after original service. No permission of the court was obtained to file the additional defendant complaint late. To justify late joinder, the defendant must show: “(1) some reasonable justification or excuse for the delay; (2) a statement of the facts alleged to render the proposed additional defendant alone hable, or liable with, or liable “over to defendant, or liable to the defendant on a proper cross-claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. . . .

“Whether cause is shown to justify late joinder is a matter for the sound discretion of the trial court . . . .” Consul v. Burke, 403 Pa. Super. 400, 406, 589 A.2d 246, 249 (1991). (citations omitted)

Defendant argues that the delay was due to negotiations with plaintiffs, causing defendant’s answer to the complaint and subsequent filing of the additional defendant complaint to be late. However, the Superior Court has held that “[tjhere is simply no reasonable nexus between appellant’s settlement efforts and appellant’s failure to file a timely joinder complaint.” Glabbatz v. Terminal Freight Handling Co., 386 Pa. Super. 447, 453, 563 A.2d 151, 153 (1989). Therefore, this argument is without merit.

Defendant also argues that after having been served with the original complaint he attempted to have discussions with additional defendant about the case but had problems contacting and discussing the case with him. Again, this is not a sufficient reason for the tardiness in filing the additional defendant complaint. Plaintiffs’ original complaint clearly states that the lawsuit is brought due to the problems with the vinyl siding. (Plaintiffs’ complaint ¶¶6-7.) Defendant’s complaint against additional defendant states that “additional defendant in fact performed all siding-related labor on said property.” (Defendant’s complaint ¶5.) As contractor, defendant knew that additional defendant was the subcontractor responsible for the vinyl siding from the time the original complaint was filed. This is not something that defendant needed to discuss with additional defendant before filing the additional defendant complaint. See Taylor v. Kemper National Insurance Co. Inc., 39 Ad.Co.L.J. 137 (holding that a late joinder be stricken where the defendant had been fully aware of the facts justifying joinder). Thus, defendant has shown no reasonable justification for the delay in filing the additional defendant complaint.

Although this court is aware that procedural rules applying to third party procedures are to be liberally construed, “the goal of judicial economy does not alleviate the necessity of establishing ‘cause’ for allowing late joinder.” Exton Development v. Sun Oil Company of Pennsylvania, 363 Pa. Super. 17, 22, 525 A.2d 402, 404 (1987). Additionally, as pointed out in GoodrichAmram:

“The enforcement of the 60-day limitation will not ordinarily work any hardship on the moving party who is barred from joining an additional defendant. If the moving party has a claim against the proposed additional defendant, he may bring a subsequent separate action against him, and thus, while subjected to delay, his substantive rights are not impaired. If the contention of the moving party is that the proposed additional defendant is solely liable to the plaintiff, the defendant may assert that defense in the plaintiff’s action even though the proposed additional defendant is not joined as a party to the action.” Goodrich-Amram 2d §2253:5.

Thus, defendant’s complaint joining additional defendant is properly dismissed.

Accordingly, the attached order is issued.

ORDER

And now, July 21, 1998, additional defendant’s preliminary objections are sustained in part. Defendant’s complaint joining additional defendant is hereby dismissed.

      . The court need not address additional defendant’s second objection because the first objection is sustained thereby causing the complaint against him to be dismissed.

      . The court notes that there is authority suggesting that if a defendant attempts to join an additional defendant after the 60-day limit and without permission of the court that the joinder should be stricken without further consideration of cause shown. See Leonard v. Parkway Corp., 373 Pa. Super. 283, 541 A.2d 13 (1988). However, more recent authority suggests that a defendant may be permitted to show cause even when the additional defendant complaint has been filed without court permission. See Glabbatz v. Terminal Freight Handling Co., 386 Pa. Super. 447, 563 A.2d 151 (1989). In the case at hand, which analysis the court applies is of no consequence as the additional defendant complaint will be dismissed under either rationale.


author: GARB, P.J.,

text:
    Wills v. County of Bucks

      C.P. of Bucks County,
    no. 96-8227.

      Richard A. Stoloff, for plaintiff.

      Martin J. King, for defendants.
    October 14, 1998
   GARB, P.J.,

Plaintiff was injured on November 9, 1994 at a time when he was an inmate of the Bucks County Correctional Facility. On that date, he was assigned to perform community service work on behalf of the Bucks County Department of Adult Probation and Parole. His job was to move certain office furniture and equipment from one area in the office of Adult Probation and Parole to another.

At that time, he and another resident were directed by the person supervising the work to move a bookshelf which was sitting on a table to a dolly with wheels on it. The plaintiff protested that the bookshelf was too heavy with the books still upon it, but that protest was disregarded by the supervisor on the basis that it was only going to be moved a few feet to the dolly. As plaintiff and the other resident lifted the bookshelf off the table, the bookshelf “jerked down” and landed on the plaintiff’s leg, causing the injury. The other inmate assisting plaintiff stated that a piece broke off of the bookshelf causing it to fall from his grasp.

As a result, the plaintiff allegedly suffered a laceration to his leg and subsequent back problems. He thereupon filed this complaint in trespass naming the County of Bucks, Bucks County Adult Probation, and Bucks County Department of Corrections as parties defendant.

The pleadings being closed and discovery completed, defendants have moved for summary judgment. Based on the complete record before us, summary judgment will be entered for defendants.

A motion for summary judgment is properly granted when the moving party has established that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Hall v. Acme Markets Inc., 110 Pa. Commw. 199, 532 A.2d 894 (1987). In making this determination, all well pleaded facts in the nonmoving party’s pleading must be accepted as true. Estates of Harding and Cooper, 117 Pa. Commw. 371, 544 A.2d 1060 (1988). See also, Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d 398 (1989).

The foregoing facts are established primarily from the deposition of the plaintiff himself. The defendants have interposed as their defense the application of the local agency Tort Claims Act. The Act as amended on July 6, 1995, P.L. 290, no. 43, §1,42 Pa.C.S. §8542. That Act provides that except as specifically provided, no local agencies shall be liable for any damages on account of any injury caused by any act of the local agency or an employee thereof. This statute was enacted by the legislature in response to the abrogation by the Supreme Court of the previously judicially created doctrine of governmental immunity. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). This Act, legislatively, created govemmental immunity against any damages on account of any injury caused by any act of a local agency or employee thereof except as provided by the exceptions set forth in the Act. Those exceptions are found in section 8542 of the Act. The exceptions must be narrowly construed in view of the express legislative intent to shield political subdivisions from tort liability. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

Section 8542 provides that a local agency shall be liable for damages on account of injury within the limits set forth therein if the damages would be recoverable under common law or statute creating a cause of action if the injury were caused by a person not having available a defense under this Act and 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 subparagraph (b) of that section. The only exception relevant hereto set forth in subsection (b) is exception (3), real property. That section, in relevant part, provides as follows:

“(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____” 42 Pa.C.S. §8542(b)(3).

The evidence in this case establishes that plaintiff’s injury occurred as a result of the bookcase falling on his leg. Assuming, for purposes of this motion, that the supervisor who directed the plaintiff to lift the bookcase was negligent under the circumstances in doing so, the question is whether that bookcase constituted real property in the care, custody or control of the local agency. Obviously, the bookcase does not fit the classic definition of real estate. However, this real property exception to governmental immunity includes articles of personal property or chattels which have been affixed to real property so as to become realty itself, namely, fixtures. See Kelly v. Curwensville Area High School, 141 Pa. Commw. 449, 595 A.2d 787 (1991). Whether or not a chattel or article of personal property has become a fixture or realty necessarily involves certain factual considerations such as the manner in which the chattel was physically attached or installed, the extent to which the chattel is essential to the permanent use of the building or other improvement, and the intent of the parties who attached or installed the chattel. Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994). A thing is deemed to be affixed to real property when it is attached to it by its roots, embedded in it, permanently resting upon it or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws. Davis v. Brennan, 698 A.2d 1382 (Pa. Commw. 1997). In that case, the plaintiff was allegedly injured as a resident of the Susquehanna County Correctional Facility while taking a shower and falling when the “grab bar” in the shower stall broke free from the shower unit. The trial court granted summary judgment on the grounds that the shower stall was not real property under the terms of this Act. The Commonwealth Court reversed and remanded on the grounds that the record was insufficient to establish the nature or manner in which the shower stall was attached to the realty.

Under most circumstances, we would find it difficult to understand a determination that a shower stall is not essentially affixed to the real property as that term is applied in Davis v. Brennan, supra. At the very least, the shower stall is attached by virtue of the pipes carrying the water to the showerhead from within the walls and to the source of water of the building in which the shower stall is installed. In the case before us, the instrumentality causing the injury was not a shower stall but rather a bookcase positioned upon a table, which was in no way fastened to anything nor intended to be. It was totally moveable by merely picking it up and carrying it to a dolly so that it could be moved to another location or even to another building. At most, it is a piece of furniture which was never intended to, nor was it ever attached to any portion of the real estate.

We do not believe that Martin v. City of Philadelphia, 696 A.2d 909 (Pa. Commw. 1997) as cited by the plaintiff, derogates from our conclusion. In that case, the minor child was injured when he ran into a pile of leaves in which an iron pipe was hidden from sight. Once again, the grant of summary judgment by the trial court based upon a real estate exception to the local agency Tort Claims Act was reversed by the Commonwealth Court and remanded. The basis of the remand was the fact that the record did not clearly establish that the metal pipe was not a part of the real estate as a goal post or former goal post installed upon the school playing field. The court in that case held that the instrumentality did not necessarily have to be permanently affixed or attached to the real property in order to qualify as the real property exception. That was on the basis, however, of whether or not the instrumentality in that case, the metal pipe, had been part of the goal post and still remained on the property of the local agency. We believe that that case is factually distinguishable from the instrumentality in this case, a bookcase which was never, at any time, secured to the real property.

For the foregoing reasons, we will enter summary judgment for the defendants.

ORDER

And now, to wit, October 14,1998, it is hereby ordered that summary judgment be entered for the defendants and against the plaintiff and the complaint dismissed.


author: NICHOLAS, J.,

text:
    Millers Mutual Insurance Co. v. Euler

      C.P. of Montgomery County,
    no. 96-12982.

      Robert Devine, for plaintiff.

      Reginald Krasney, for defendants Robert Euler, Linda Euler, King Transportation and Guilerma Griffith.

      Elliot Kolodny, for defendant Amy Eick.
    August 5, 1997
   NICHOLAS, J.,

Plaintiff, Millers Mutual Insurance Company, has appealed to the Superior Court of Pennsylvania from our order dated May 16,1997 which denied its motion for summary judgment and granted defendants’ motion for summary judgment, with respect to the duty to defend only.

Amy Eick engaged King Transportation Service Inc. on September 9, 1995 to transport her from her home to the airport for a trip to Europe, and then from the airport to her home upon her return from her trip. King assigned employee Guillermo Griffiths to drive her to the airport. Ms. Eick arrived at the airport late and caught her flight only by delaying the flight and rushing to the departure gate. While abroad, still disgruntled, Ms. Eick contacted King and requested a different driver to pick her up from the airport. Despite this request, King assigned Mr. Griffiths for the return trip. Mr. Griffiths transported Ms. Eick from John F. Kennedy International Airport in New York to her home in Lambertville, N.J., where a dispute over the fare escalated into a scuffle to which the police responded.

On October 25, 1995, Ms. Eick filed a civil action in the Superior Court of New Jersey, Hunterdon County, Law Division, against King and Mr. Griffiths. By her complaint, Ms. Eick alleged that Mr. Griffiths assaulted her and that “[a]s a result of the negligence of the defendant, Guillermo A. Griffiths, as agent, servant and/or employee of defendant, King Limousine [and] Transportation Service Inc., [she] was caused to suffer severe and grievous personal injuries requiring extensive medical treatment.” Complaint, First Count, ¶¶ 5-6. Ms. Eick also alleged that Mr. Griffiths’ actions were “intentional, willful, wanton and reckless.” Complaint, Second Count, ¶2.

On November 7, 1995, the Eulers, the principals of King, who had purchased insurance from Millers Mutual, contacted Millers Mutual and requested defense and indemnification pursuant to a controlling commercial lines insurance policy which named King and its employees as insureds. By this policy, Millers Mutual agreed to defend and indemnify when bodily injury was caused (1) by accident or (2) by “reasonable force to protect persons or property.” Commercial General Liability Coverage Form, §§I(A)(2)(a). The Eulers believed that Millers Mutual promised to provide a defense and so did not file a responsive pleading to Ms. Eick’s complaint. Eick’s motion for summary judgment, ¶8. On January 12,1996, the New Jersey trial court entered default judgment against King and Mr. Griffiths. Eick’s motion for summary judgment, ¶7. A proof hearing was scheduled for November 4, 1996 in preparation for which Ms. Eick filed a trial memorandum on October 30, 1996. Eick’s motion for summary judgment, ¶¶7, 10. By this memorandum, Ms. Eick characterized Mr. Griffiths as intending to cause injury, if not the precise injury he caused. See trial memorandum, pp. 6-7. Ms. Eick presented some evidence at the hearing but her evidence exceeded the time allotted. Eick’s motion for summary judgment, ¶11. The hearing was continued indefinitely as King had filed a motion to set aside default judgment on November 27,1996. Eick’s motion for summary judgment, ¶12; Eick’s brief filed March 3, 1997, p. 12. King’s motion to set aside default judgment was granted on January 10, 1997. Eick’s brief filed March 3, 1997, p. 12.

Meanwhile, Millers Mutual had filed the instant action for declaratory judgment on July 17, 1996, requesting this court to declare that Millers Mutual owes no duty to defend or indemnify King, the Eulers or Mr. Griffiths. On February 4, 1997, Millers Mutual filed its motion for summary judgment arguing that it agreed to defend and indemnify only when bodily injury was caused by accident and that Ms. Eick’s injuries were caused intentionally, as a matter of law.

The defendants filed answers to Millers Mutual’s motion for summary judgment as well as cross-motions for summary judgment. King, the Eulers and Mr. Griffiths supported their cross-motion with a supplemental memorandum of law to which they attached the affidavit of Mr. Griffiths. By this affidavit, Mr. Griffiths gave his account of what happened after he transported Ms. Eick from the airport to her home. Mr. Griffiths asked Ms. Eick to pay her fare for the trips to and from the airport, but Ms. Eick took the position that the inconvenience of the first trip discharged her duty to pay. Affidavit, ¶¶2-3. Mr. Griffiths kept her luggage locked in the trunk to enforce his demand, which angered Ms. Eick. Affidavit, ¶2. She escalated a non-violent disagreement to a violent confrontation by “hitting [him] in the chest with the open palm of her hand, pushing him] and scream[ing] repeatedly that she wanted her bags.” Affidavit, ¶6. She rushed to the limousine’s front passenger seat to release the trunk latch but Mr. Griffiths got there first and covered the latch release with his hand and the two found themselves sprawled across the limousine’s front seat. Affidavit, ¶¶7-11. Ms. Eick brought her feet up to kick Mr. Griffiths out of the limousine but he cradled her in a fetal position by positioning his chest against her feet as he grasped her shoulders. Affidavit, ¶¶13-14. Ms. Eick squirmed to escape which caused Mr. Griffiths to lose his grip on her shoulders and accidentally injure her throat. Affidavit, ¶14.

On April 23, 1997, the undersigned heard oral argument on all motions at which time all parties agreed that Mr. Griffiths’ affidavit was of record. This court ruled that Millers Mutual has a duty to defend the defendants in the underlying action in New Jersey brought by Amy Eick as plaintiff by order dated May 16, 1997. Millers Mutual timely filed its notice of appeal and concise statement of matters complained of on appeal.

DISCUSSION

Millers Mutual raises a single issue on appeal: “[w]hether the [c]ourt erred in denying plaintiff’s [m]otion for [sjummary judgment.” Concise statement, ¶1. This court did not err.

“The duty to defend is a distinct obligation, separate and apart from the insurer’s duty to provide coverages. . . . Moreover, the insurer agrees to defend the insured against any suit arising under the policy ‘even if such suit is groundless, false, or fraudulent.’ . . . Since the insurer agrees to relieve the insured of the burden of defending even those suits which have no basis in fact, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy.” Redevelopment Authority of Cambria County v. International Insurance Co., 454 Pa. Super. 374, 390, 685 A.2d 581, 589 (1996). (citations omitted) (emphasis added)

Thus it follows that an insurer must defend when a plaintiff files a complaint alleging that his or her bodily injury was caused by an insured combatant’s negligence. Compare Britamco Underwriters Inc. v. Weiner, 431 Pa. Super. 276, 282, 636 A.2d 649, 652 (1994), allocatur denied, 540 Pa. 575, 655 A.2d 508 (1994) (insurer had duty to defend where complaint alleged that plaintiff’s injuries resulted from combatant’s “intentional or negligent acts”) and Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 553, 618 A.2d 945, 948 (1992), allocatur denied, 536 Pa. 630, 637 A.2d 290 (1993) (insurer had duty to defend where joinder complaint alleged that plaintiff’s injuries resulted from combatant’s “negligent, careless, reckless, and/or willful conduct”) with Gene’s Restaurant Inc. v. Nationwide Insurance Co., 519 Pa. 306, 308, 548 A.2d 246, 246 (1988) (insurer had no duty to defend where plaintiff alleged that her injuries resulted only from a “willful and malicious assault and beating”) and Britamco Underwriters Inc. v. Grzeskiewicz, 433 Pa. Super. 55, 61, 639 A.2d 1208, 1211 (1994), appeal discontinued, 538 Pa. 639, 647 A.2d 895 (1994) (insurer had no duty to defend where plaintiff “allege[d] that he received his injuries solely as the result of the intentional acts of one or more of the defendants”). Indeed, it has been held that an insurer’s duty to defend “is fixed solely by the allegations in the underlying complaint.” Lebanon Coach Co. v. Carolina Casualty Insurance Co., 450 Pa. Super. 1, 15, 675 A.2d 279, 286 (1996), allocatur denied, 546 Pa. 695, 687 A.2d 378 (1997). Here, Ms. Eick alleged that her injuries resulted from Mr. Griffiths’ negligence. For this reason her complaint may potentially come within the coverage of the policy, irrespective of her allegation that Mr. Griffiths intended to injure. Millers Mutual is bound to defend King and Mr. Griffiths.

Millers Mutual disagrees, arguing that Grzeskiewicz holds that a complaint cannot possibly come within the coverage of a policy when it contains a separate count against the attacker. Brief filed March 24, 1997, p. 3. This argument ignores the central issue in Grzeskiewicz which was whether the complaint’s allegation of a business host’s negligence was sufficient to potentially bring the complaint within the coverage of the policy. The Superior Court held that the allegations pertaining to the defendant business host were immaterial and that Gene’s Restaurant commands that the allegations pertaining to the defendant combatant control. The insurer in Grzeskiewicz had no duty to defend because the plaintiff alleged in a separate count that the defendant combatant acted intentionally, willfully and purposefully while failing to allege that “her injuries were incurred as a result of any negligence by [the defendant combatant.]” Id. at 61, 639 A.2d at 1210-11. The separate count in Grzeskiewicz limited the plaintiff to proof of intent and disallowed proof of negligence. This distinguished Grzeskiewicz from Weiner where the complaint’s failure to allege a separate count against the defendant combatant allowed the possibility that the complaint’s general allegations of negligence pertained to the defendant combatant. The Superior Court’s earlier decision in Weiner thus comported with Gene’s Restaurant. While Millers Mutual’s reading of Grzeskiewicz is reasonable, it is not the better view because it would command that an allegation of intent supersedes an allegation of negligence. This is contrary to Weiner which held just the opposite, that an allegation of negligence allows the possibility that bodily injury was caused by accident.

Millers Mutual argues, second, that Ms. Eick’s allegation of negligence is “preposterous [and] clearly nothing more than an attempt to invoke coverage.” Millers Mutual’s response to Eick’s motion for summary judgment, ¶17. This lacks merit as it ignores an insurer’s duty to defend against a claim which is groundless, false, or fraudulent so long as the claim is potentially within the scope of coverage.

Millers Mutual argues, third, that this court is obliged to ignore Ms. Eick’s allegation of negligence because Ms. Eick took an inconsistent position before the New Jersey trial court when she filed her trial memorandum. Brief filed February 11, 1997, pp. 1-2. Millers Mutual argued that Ms. Eick’s description of the scuffle amounted to a “judicial admission” that Mr. Griffiths intended to injure Ms. Eick. Id. This argument has appeal because it has been held that the duty to defend is discharged once “the claim is confined to a recovery that the policy does not cover.” General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997). This implies that a duty to defend against an allegation of accidental injury is discharged once an injured party is precluded from recovery under the theory of negligence. However, Ms. Eick’s trial memorandum does not preclude recovery under the theory of negligence.

It is the law in New Jersey that “[t]he doctrine of judicial estoppel operates to bar a party to a legal proceeding from arguing a position inconsistent with one previously asserted.” Cummings v. Bahr, 295 NJ. Super. 374, 385, 685 A.2d 60, 66 (App.Div. 1996). The object of the doctrine is to prevent a party from playing “fast and loose with the courts.” Id. at 387, 685 A.2d at 67. However, the doctrine has its limits and will not be applied unless the legal position previously asserted has “helped form the basis of a judicial determination.” Id. at 387, 685 A.2d at 67. Here, nothing suggests that Ms. Eick’s trial memorandum helped form the basis of a judicial determination. The proof hearing was never concluded and damages were never awarded. Moreover, Ms. Eick’s default judgment against King was set aside. All evidence before this court suggests that Ms. Eick remains free to pursue before the New Jersey trial court her theory that Mr. Griffiths injured her by accident. This court correctly considered the allegations of Ms. Eick’s complaint.

There is another reason why this court did not err when it ruled that Millers Mutual has a duty to defend. Millers Mutual would have a duty to defend even if (1) Ms. Eick had failed to allege that her injuries resulted from Mr. Griffiths’ negligence or (2) Ms. Eick was otherwise precluded from pursuing her theory of negligence. Millers Mutual agreed to defend and indemnify when bodily injury was caused by reasonable force to protect persons or property. Here, a trier of fact could find that Mr. Griffiths intended to injure Ms. Eick, but that he employed only reasonable force to protect himself from Ms. Eick’s aggression. Millers Mutual would have a duty to defend even if Ms. Eick had alleged that the sole cause of her injuries was Mr. Griffiths’ intent to injure.

This analysis may appear to be contrary to the rule of law providing that an insurer’s duty to defend “is fixed solely by the allegations in the underlying complaint.” Lebanon Coach, supra at 15, 675 A.2d at 286. However, it is “well settled that, in interpreting a contract of insurance, Pennsylvania courts are required to give effect to clearly worded provisions manifesting the intent of the parties.” Pempkowski v. State Farm Mutual Automobile Insurance Co., 451 Pa. Super. 61, 65, 678 A.2d 398, 400 (1996). Here, the parties provided expressly in their contract that the insured’s reason for causing intentional bodily injury is material. Resort to Mr. Griffiths’ affidavit gives force to the parties’ intent as it allows him to tell his side of the story which triggers the duty to defend.

For the reasons set out above, our order dated May 16, 1997 should be affirmed.

      . All parties’ motions for summary judgment as to the issue of Millers Mutual’s duty to indemnify were denied as premature.

      . We note that Ms. Eick’s allegation of negligence comports with Mr. Griffiths’ intent to testify at trial that he never meant to hurt Ms. Eick, that is, that his actions were purely defensive and that Ms. Eick’s injuries were unavoidable.


author: SCHMEHL, P.W., J.,

text:
    Bohn v. Schell

      C.P. of Berks County,
    no. 97-3682.

      Gary L. Dorsett, for plaintiff.

      John M. Stott, for defendant.
    September 10, 1998
   SCHMEHL, P.W., J.,

In this custody matter, Father simply wants visitation with the parties’ child, whereas Mother desires to move to Ohio with the parties’ child and, in any case, wishes Father’s visitation to be limited. Before a determination on visitation can be made, the court must determine whether Mother shall or shall not be permitted to move to Ohio with the parties’ child.

The court must consider several factors in determining whether to permit the custodial parent to relocate at a significant geographical distance. Initially, the custodial parent has the burden of showing that the move is likely to significantly improve the quality of life for that parent and the children. Gruber v. Gruber, 400 Pa. Super. 174, 184, 583 A.2d 434, 439 (1990). Relocation will not be permitted if the decision was based on a momentary whim on the part of the custodial parent. Id. “[E]ach parent has the burden of establishing the integrity of his or her motives in either desiring to move or seeking to prevent it.” Id. at 186, 583 A.2d at 440. “The court must assure itself that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy, loving relationship between the child and the non-custodial parent.” Id. at 185, 583 A.2d at 439. The court must also consider the motives of the resisting non-custodial parent. Id. Finally, the court must consider the availability and adequacy of realistic substitute visitation arrangements which would foster an ongoing relationship between the child and the non-custodial parent. Id.

Mother testified that she had gone to Cincinnati, Ohio as a getaway for three weeks. She stayed with another couple and their child. These people were Father’s friends and, according to his testimony, Mother did not like them. While staying in Ohio, Mother asserts she received a job offer and made arrangements to live with her friends until she could find a place of her own. She found that the environment in Ohio was healthier, cleaner, that there were no drugs or shootings, that the cost of living was lower, and that the school was a block away. Mother testified that it was never her intent, stated or otherwise, to frustrate Father’s visitation with their child. Father, on the other hand, testified that Mother has always tried to frustrate his visitation and specifically told him that frustrating his visitation was the reason for her planned relocation to Ohio. Father also testified that he did not wish for his child to be relocated to Ohio absent a sufficient visitation plan.

The court does not believe that Mother has met her burden and at this time shall not allow Mother to relocate to Ohio with the parties’ child. Mother’s motives for the move do not appear to be completely pure, and she did not present evidence sufficient to demonstrate that the quality of her and the child’s lives would be substantially improved by the move. The move does not appear to be in the child’s best interest. Mother’s job offer has since expired and she has offered no proof that she could not obtain a similar position with a similar salary here in the local region. Furthermore, and although temporary, Mother’s living arrangements would not seem to be adequate. Three adults and three children living in what Mother described as a two and three-quarter bedroom townhouse for an unspecified period of time does not strike the court as being a healthy and secure living arrangement for the parties’ child. Additionally, the court finds it hard to believe that Cincinnati, although composed of neighborhoods with differing qualities and standards of life, has no drugs or shootings. Even if she has found such a neighborhood in Cincinnati, she apparently made no effort to find a neighborhood with similar qualities within a reasonable distance of the parties’ current residences. Finally, the parties’ families and friends are here in Berks County and, with the exception of the couple with whom Mother intends to reside, she has no other friends or family in Ohio.

Mother’s planned relocation to Ohio appears whimsical, with a flavor of frustration of Father’s visitation with their child. Mother testified that, if permitted to relocate, a visitation schedule for Father in the nature of one weekend per month would be sufficient. The court disagrees because this would be unlikely to adequately foster an ongoing relationship between Father and the child. In denying Mother’s request for approval to relocate to Ohio with the parties’ child, the court also finds that Father should be granted regular visitation with the parties’ child so as to re-establish and maintain an ongoing relationship between them.

Although the court finds that Mother wants to frustrate Father’s visitation and has done so in the past, the court has not heard anything regarding Mother’s willful failure to comply with the custody order. Father’s petitions for contempt are dismissed.

For the foregoing reasons, the court enters the following order:

ORDER

And now, September 10, 1998, it is hereby ordered and decreed that custody of the parties’ minor child, Darius S. Bohn, date of birth October 22, 1996, shall be as follows:

(1) The parties shall have joint legal custody of the child.

(2) Mother shall have primary physical custody of the child.

(3) Father shall have partial physical custody of the child as follows:

(a) Alternate weekends from Thursday at 5 p.m. to Sunday at 7 p.m. The first two weekends for which Father has partial physical custody, his custody shall be exercised for eight hours per day for Friday, Saturday, and Sunday with no overnights and, thereafter, all following periods of partial physical custody shall proceed normally as stated above. Father’s weekend visitation shall commence the weekend of September 19, 1998.
(b) If, for whatever reason, Father is unavailable to pick up the parties’ child, his mother or his grandmother shall be permitted to do so.
(c) Transfer of custody shall occur at a location agreed upon by the parties. If they are unable to agree on a location, pickup and drop-off of the child shall occur at the child’s maternal grandmother’s house.

(4) Mother shall have custody of the minor child on Mother’s Day and Father shall have custody of the minor child on Father’s Day each year from 10 a.m. to 6 p.m.

(5) The parties shall alternate custody on the following named holidays as follows: in the even-numbered years, Father shall have custody from 10 a.m. to 8 p.m. on New Year’s Day, Memorial Day and Labor Day, and Mother shall have custody from 10 a.m. to 8 p.m. on Easter, Independence Day and Thanksgiving. The holidays shall reverse in the odd-numbered years.

(6) The parties shall alternate the following time periods regarding Christmas: On odd-numbered years, Mother shall have custody of the child from December 24 at 2 p.m. to December 25 at 2 p.m., then Father shall have custody of the child on December 25 at 2 p.m. to December 26 at 8 p.m., with the parties to reverse schedules on even-numbered years.

(7) Father shall have custody of the child for three weeks vacation time each summer and two of those three weeks may be uninterrupted. Father shall give Mother at least 30 days notice of the weeks he intends to exercise his vacation option. Mother may likewise reserve two uninterrupted weeks for vacation each summer by giving 30 days notice to Father. If both parties seek to vacation with the child during the same time frame, the parent to give notice to the other first shall be given priority.

(8) The holiday and vacation schedules shall take precedence over the regular custody and partial custody schedule.

(9) At this time, Mother’s request for approval to move to Ohio with the child is denied.

(10) Father’s petitions for contempt filed of record on May 21, 1998 and June 4, 1998 are dismissed.

(11) In addition to any provisions which may be contained herein regarding custody and visitation, Father and Mother shall have the following rights with respect to the child: reasonable telephone calling privileges, access to report cards and other relevant information concerning the progress of the child at school, approval of extraordinary medical and/or dental treatment except in the case of any emergency provided such approval shall not be unreasonably withheld, approval of summer camp and schools provided that such approval shall not be unreasonably withheld.

(12) In the event of any serious illness of the child at any time, any party then having custody of the said child shall immediately communicate with the other party by telephone or any other means, informing the other party of the nature of the illness. During such illness, each party shall have the right to visit the child as often as she or he desires consistent with the proper medical care of said child. The word “illness,” as used herein, shall mean any disability which confines the child to bed under the direction of a licensed physician for a period in excess of 48 hours.

(13) Each party shall immediately notify the other party before changing residence and provide the other party with her/his new address.

(14) Neither party will insult, disparage or downgrade the other party in the presence or hearing of the child, nor shall they unduly influence the child against the other party.

(15) Certain rules of conduct generally applicable to custody matters are set forth in paragraphs (a) through (h), below, and are binding on all parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for amendment of the custody order. If these general rules conflict with the specific requirements of the custody order, the order shall prevail.

(a) No party will undertake nor permit in his or her presence the poisoning of the minor child’s mind against any other party by conversation which explicitly or inferentially derides, ridicules, condemns, or in any manner derogates any other party.
(b) The parties shall not conduct arguments or heated conversations when they are together in the presence or hearing of their child.
(c) No party will question the child as to the personal lives of the other party except as is necessary to insure the personal safety of the child. In other words, the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of a “spy.”
(d) No party will make extravagant promises to the minor child for the purposes of ingratiating himself or herself to the minor child at the expense of the other party. Any reasonable promise to the child should be made with the full expectation of carrying it out.
(e) The parties should at all times consider the child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying desperately to cope with the fact of his or her parents’ separation, and needs help in loving both parties, rather than interference or censure.
(f) The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the party who maintains a double standard will lose the respect of his or her child.
(g) Periods of custody shall be subject to the following rules:
(1) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.
. (2) The party having custody of the child should prepare her both physically and mentally for the visitation with the other party and have her available at the time and place upon which the parties agree.
(3) If either party or the child has plans which conflict with a scheduled visit and wish to adjust such visitation, the parties should make arrangements acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.
(4) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.
(h) During the time that the child is living with a party, that party has the responsibility of imposing and enforcing the rules for day-to-day living. However, unless otherwise ordered, both parents should consult with one another on the major decisions affecting the child’s life, such as education, religious training, medical treatment, and so forth.


author: VOGEL, S.J.,

text:
    Day v. Berwick Place Development Corp.
    C.P. of Montgomery County,
    no. 96-20176.

      Ellis M. Saul, for plaintiff.

      Robert G. Dobslaw, for defendant.
    August 26, 1998
   VOGEL, S.J.,

In the summer of 1995, plaintiff, David Day, purchased from defendant, Berwick Place Development Corp., a new home at 29 Bristol Court in the Fairview Village Section of Worcester Township, Montgomery County for the consideration of $153,900. The agreement of sale did not contain specific warranties. Section 2 of its standard residential construction addendum provided for a procedure to be followed if the premises were not complete but could still be occupied at the time of settlement. In accordance with that procedure, on August 22, 1995, Mr. Day and a representative of the defendant walked through the premises. The inspection report they prepared included a reference to a depression in the driveway, which had been patched and was crumbling.

Berwick Place repaired the driveway by digging and applying a patch that conformed to industry standards for that particular work, but refused Mr. Day’s request to seal the driveway or otherwise make it uniform. The repair left a large scar on the driveway, of a different color. Around the patch is a sealer which is sticky and gets tracked into the house. The fair and reasonable cost of sealing or coating the entire driveway to make it uniform is $750.

Following an arbitration hearing, this case was tried on June 2, 1998, before the undersigned, without a jury, pursuant to Pa.R.C.P. 1038. On June 24, 1998, we rendered a decision in favor of David Day and against Berwick Place Development Corp. in the sum of $750. On July 27, 1998, defendant filed an appeal to the Superior Court of Pennsylvania. Motions for post-trial relief pursuant to Pa.R.C.P. 227.1 et seq. were not filed within 10 days of notice of filing our decision, as required by Pa.R.C.P. 227.1(c)(2).

This appeal should be quashed. Pa.R.C.P. 227.1(g) provides for one exception from the requirement of filing motions for post-trial relief. The note following Pa.R.C.P. 227.1(c) lists several exceptions to that requirement provided for by specific rules. There is no exception for appeals from arbitration, either noted in Rule 227.1, in the rules governing compulsory arbitration, Pa.R.C.R 1301-1314, nor in the statute providing for compulsory arbitration, 42 Pa.C.S. §7361. Pa.R.C.P. 1311 provides that appeals from awards of arbitrators are de novo. Motions for post-trial relief were required to preserve issues for review in this case, but none were filed, and for this reason, as mentioned, the appeal should be quashed. However, in spite of the foregoing, we consider the merits of the defendant’s appeal.

Berwick Place characterizes plaintiff’s claim as one that could be sustained only if plaintiff had a “satisfaction contract.” We disagree. Plaintiff is entitled to recover because Berwick Place breached the implied warranty of reasonable workmanship. That warranty, and the warranty of habitability were established by the Pennsylvania Supreme Court in Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972). The court held that a “builder vendor” of new residential construction: “impliedly warrants that the home he has built and is selling is constructed in a reasonably workmanlike manner and that it is fit for the purpose intended— habitation.” 447 Pa. at 128, 288 A.2d at 777.

Defendant argued that in Krugh v. Laurich, 17 D.&C.4th 666 (C.P. Franklin Cty. 1991), the court held that the implied warranty of good workmanship is “somewhat less demanding” than the warranty of habitability. Defendant asserts this means that if the premises are habitable, the warranty of good workmanship has not been breached. From the context, it is clear that the court in Krugh v. Laurich meant that the warranty of good workmanship may be breached by a lesser defect than would render the premises uninhabitable. The court in Krugh v. Laurich, quoting Elderkin, noted that good workmanship does not require perfection, “but must be viewed as meaning reasonable under the circumstances.” 17 D.&C.4th at 672.

Neither party has cited, nor does our research disclose, a Pennsylvania case that addresses the implied warranty of good workmanship in the context of esthetics or uniformity of appearance. We find there has been a breach of the warranty of good workmanship under the particular circumstances of this case. The testimony and corroborating pictures introduced disclose a major portion of the driveway has a large scar, a patch of non-uniform color that is sealed around the edges with a sticky substance. (Exhibits P-5, 6, 8 and 10, and D-4.) While defendant is correct in asserting that the repair it performed conformed to industry standards in the manner in which it was performed, and that the sticky substance used to seal the edges of the repair conforms to Pennsylvania Department of Transportation standards, that does not end the inquiry. The standards referred to also address the type of sealer or coating that Mr. Day contends should have been applied. (Exhibit D-3, pp. 14-15,18-20.) The standards do not speak at all to what should be done to repair the driveway of a new home to conform to the warranty of good workmanship.

We determine the purchaser of new residential construction reasonably expects uniformity of appearance, and not a scarred driveway. Obviously, while not every nick or scratch would breach this warranty, major differences in appearance do. For example, if a section of siding is defective, the owner of a new home can reasonably expect that it will be replaced with siding of identical material and color and, in default of that, that sufficient siding be replaced to establish a uniform color. If it is necessary to replace a section of drywall, but then impossible to match the original paint, the owner of a new home would reasonably expect the wall, or if necessary, the entire room, to be painted so that it is uniform in color. The same reasonable expectation applies to the instant case for a driveway which is new and such an integrated part of plaintiff’s home.

Plaintiff is therefore entitled to the cost of resealing or recoating to provide this uniformity. The uncontradicted testimony establishes that to be $750.