author: MOSS, J.,

text:
    Auger v. Children’s Hospital of Philadelphia

      Keith S. Erbstein, for plaintiffs.

      Lisa Luborsky, for defendant PIGA.

      Allan H. Starr, for defendant CHOP.

      William J. O’Brien, for defendant Bridges.

      Mathew T Corso, for defendant Norwood.
    March 5, 1999
   MOSS, J.,

FACTS AND PROCEDURAL HISTORY

This medical malpractice action resulted from events surrounding a July 1, 1992, operation on 6-month-old Jeanie Auger to correct a congenital heart defect. During the operation, plaintiffs’ child hemorrhaged when the right atrial line that had been placed near her heart during surgery was discontinued. As a result of internal bleeding, she sustained hypoxic encephalopathy (brain injury).

The parties reached a settlement of $2,350,000 on August 19, 1997, subsequent to negotiations we conducted. Disbursement, however, awaited orphans’ court approval under Pa.R.C.P. 2039 and correspondingly Phila.Civ.R. *2039.1 concerning settlement distribution in a minor’s compromise action. Plaintiffs (Auger) filed the required minor’s compromise petition on November 14,1997, which the Honorable Petrese B. Tucker granted on April 24, 1998. All settlement proceeds were then paid to plaintiffs except $200,000 tendered by Dr. William Norwood and his private medical malpractice insurer, PIC Insurance Group Inc.

PIC could not pay its share because between settlement and orphans’ court approval, PIC had been placed into liquidation on January 21, 1998 by the Commonwealth Court of Pennsylvania. The PIC bankruptcy resulted in a court-ordered 90-day stay until April 23,1998 on all proceedings against PIC or any party PIC was obligated to defend. Thus, between January 21,1998 and April 23,1998, the orphans’ court could not rule on said minor’s compromise petition. Thereafter, the Pennsylvania Property and Casualty Guaranty Association (PIGA) became responsible for PIC’s obligations pursuant to the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §991.1801 et seq., PIC’s policies, and Commonwealth Court’s liquidation order.

Plaintiffs filed a petition to enforce settlement on June 24, 1998 to recover the remaining $200,000 settlement funds from Dr. Norwood. PIGA filed a petition to intervene pursuant to Pa.R.C.P. 2327 which we granted conditioned upon PIGA’s $200,000 escrow payment to the prothonotary pending our decision. PIGA did not dispute its obligation to pay out settlement proceeds to the plaintiffs, thereby indemnifying (at least partially) Dr. Norwood and PIC. However, PIGA asserted it should be entitled to a statutory offset under the Act for any payments made by other insurers resulting from the alleged malpractice. We heard oral argument on October 26,1998 on said petition to enforce settlement and signed an order on November 2, 1998 directing PIGA to pay plaintiffs the full $200,000 plus interest. We denied the petition to enforce as to defendants Norwood and Children’s Surgical Associates Ltd.

PIGA did not file a timely appeal. However, we granted PIGA’s petition for return of security and leave to appeal nunc pro tunc to Superior Court on February 9, 1999 since they alleged they had not received a copy of our November 2, 1998 order. Plaintiffs have filed a cross-appeal.

DISCUSSION

The main issue is whether PIGA would be responsible for the full $200,000 in unpaid settlement funds, or whether it is entitled to deduct a “statutory offset” for any insurance proceeds plaintiffs received. The parties stipulated if the statutory offset applied, PIGA could deduct the full $200,000. Related issues were whether the money was a liquidated claim when PIC tendered its policy limits or remained open until the orphans’ court approved said minor’s compromise; and whether Dr. Norwood would be personally liable for any shortfall if we decided in PIGA’s favor. For reasons discussed below, we granted plaintiffs’ petition to enforce settlement, holding PIC’s bankruptcy triggered PIGA’s obligation to pay the entire $200,000 liquidated claim PIC and its insured had tendered in the August 1997 settlement agreement.

Despite PIGA’s arguments, situations do arise where it is not entitled to a “statutory offset” under the Guaranty Association Act. We were aided in reaching our decision by a recent opinion entered by the Honorable Lawrence E. Wood. In McCarthy v. Bainbridge M.D., Pa. C.P., Chester Co., civil action no. 92-08969, October 1998, Judge Wood states:

“I am called upon to decide whether or not a claimant against the Pennsylvania Property and Casualty Guaranty Association whose claim arises out of the insolvency of a medical malpractice insurer must deduct from that claim amounts received from a life insurance company. I conclude that the claimant need not do so.” Id. at 1.

The timing, the PIC bankruptcy and settlement amount in McCarthy was similar to the Auger settlement: “the plaintiff’s family brought a wrongful death and survival action against defendants, and the matter was referred to PIC Insurance Group Inc. for defense. On January 19, the parties settled the case for $200,000. On January 21, PIC was declared insolvent, and a liquidator appointed. Under the terms of the relevant statutes, the claim was then assigned to the Pennsylvania Property and Casualty Insurance Guaranty Association, which we have all referred to in short as PIGA.” Id. at 2.

Judge Wood granted plaintiffs’ petition to enforce settlement even though PIGA contended the Guaranty Association Act, which amended similar earlier statutes, allows PIGA a setoff for “any kind of insurance.” Judge Wood held:

“The statutory authority governing such claims is set forth in 40 P.S. §§991.1801 through 1820. This statute replaces prior legislation which PIGA and the defendants appear to acknowledge did not allow a setoff for life insurance. Indeed their position is that by rewriting section 17 to refer to any kind of insurance the legislature intended to include life insurance among the appropriate setoffs. Plaintiffs respond by pointing out that at the time the amendatory statute was adopted, members of our State House of Representatives were assured that the changes in legislation affected other matters, and would not ‘make it more difficult for a customer to get a refund of his premium or get his claims paid.’ ” Id. at 3.

Judge Wood in discussing the applicable statutory purpose emphasized every insurer is required to join the association and stressed:

“The entire statute appears to address the problems concerned with the insolvency of property and casualty insurance companies, and not with the subject of insurance generally.” Id. at 3.

Certainly, one of the most serious concerns arises when a private insurer having tendered settlement funds declares bankruptcy and cannot pay those funds. Indeed, the Guaranty Association Act guarantees PIGA’s indemnification by the insurer and its insured if the insurer becomes insolvent. Full indemnification is particularly important in circumstances where all parties have agreed upon a final settlement with no foreknowledge of carrier’s future bankruptcy. Without such a guarantee, settlement negotiations would be impeded by discussions and calculations of unknowable financial contingencies.

The purpose of the Pennsylvania Property and Casualty Insurance Guaranty Association Act set forth in 40 P.S. §991.1801(1) is:

“To provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.’’'’ (emphasis added)

Either claimant or policyholder could face possible financial loss contrary to the Act’s stated purpose if PIGA were allowed an offset against tendered settlement funds from a solvent insurer. Here, either Auger would have settlement funds contractually bargained for decreased by an unforeseen offset, or Dr. Norwood’s personal assets would be risked despite having PIC coverage.

Intervenor, PIGA, agrees PIC’s bankruptcy resulted in the Augers having a liquid claim, defined by 40 P.S. §991.1802 as an unpaid claim subject to applicable insurance policy limits issued by an insolvent insurer. (Memorandum of law of PIGA in support of petition to intervene at 2-3.) However, PIGA contends it may deduct an offset pursuant to 40 P.S. §991.1817(a) — Non-duplication of recovery, which states in pertinent part:

“Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first- or third-party claim, and shall include without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of recovery under other insurance.”

The statute, however, is silent on what happens to a covered claim settled prior to insurer’s insolvency, thereby creating rights and corresponding obligations not necessarily subject to ex-post facto application of PIGA’s “statutory offset.”

Plaintiffs argue the disputed $200,000 constituted a liquidated claim after PIC’s August 1997 tender and plaintiffs’ release, thereby not includable in its bankruptcy estate, due and payable in full. We agree. The settlement amount was a sum certain agreed upon by all parties pledged, deposited and encumbered to plaintiffs’ benefit on the settlement date. Therefore, it was a liquidated claim capable of exact measurement as defined in Fifth Mutual Building Society of Manayunk ’s Appeal, 317 Pa. 161, 176 A. 494 (1935). Moreover, the party to whom insurance policy limits have been tendered in a civil suit has an “immediate right to the money.” Sun Pipe Line v. Tri-State Telecommunications Inc., 440 Pa. Super. 47, 65, 655 A.2d 112, 121 (1994). The Superior Court of Pennsylvania in Cohen v. Jenkintown Cab Company, 300 Pa. Super. 528, 536, 446 A.2d 1284, 1288 (1982) in discussing the nature of tender states:

“Money paid into court becomes the absolute property of the other party, Baldwin Township School District v. Pittsburgh Terminal Coal Corporation, 328 Pa. 17, 18-19 [194 A. 900] (1937), and the tenderer cannot ordinarily withdraw it or recover any part of it, even if he eventually prevails in the action. 15 Standard Pennsylvania Practice, ch. 74, §24, Berkheimer v. Geise, 82 Pa. 64, 67 (1876).”

Defendants’ assertion the settlement was not a liquidated claim until the minor’s compromise was approved is meritless. Pa.R.C.P. 2039 compromise, settlement, discontinuance, and distribution, provides the court has a ministerial function in overseeing settlements involving minors to the extent it approves or disapproves disbursement, counsel fees and reasonable expenses, (emphasis added) It is not a mechanism to undermine or discount a mutually agreed upon settlement. As Pa. R.C.P. 2039(d) states, “Nothing in this rule shall prevent payment into court of any money by the defendant.”

Although citations and wording of the Pennsylvania Property and Casualty Insurance Guaranty Association Act have been updated, its stated purpose has not changed since the United States District Court for the Eastern District declared in T & N PLC v. Pennsylvania Ins. Guar. Ass’n, 822 F. Supp. 275 (E.D. Pa. 1993):

“Moreover, under the Pennsylvania rules of statutory construction, section 1701.103(5) must be liberally construed to effect its objects and promote justice. 1 Pa.C.S. § 1928(c) . . . citations omitted . . . (The legislature requires insurance statutes to be construed liberally in order to effect their purposes.) Therefore, given that a purpose of the Insurance Guaranty Association Act, as noted above, is to protect Pennsylvania residents from financial loss or liability, our construction of 1701.103(5) will effectuate the intent of the General Assembly by ensuring that insured tort-feasors, who reside in Pennsylvania at the time of insured events, are protected from liability imposed in underlying tort action. Cf. Bullock v. Pariser, 11 D.&C.3d 77, 81 (Philadelphia County 1979) (the Act must be interpreted to protect insureds who are left exposed to liability due to the insolvency of their insurance carrier as well as injured parties whose attempts at recovery may be frustrated by the insolvency of the tort-feasor’s liability carrier), aff’d, 311 Pa. Super. 487, 457 A.2d 1287 (1983).”

T & N PLC v. Pennsylvania Ins. Guar. Ass’n involved a summary judgment motion against PIGA brought by T & N, a London parent corporation whose Pennsylvania subsidiary, Keasbey, an asbestos manufacturer and distributor, became a party to extensive mass tort and latent disease products liability litigation. T & N entered a settlement agreement with its and Keasbey’s insurer, American Mutual Liability Insurance Company, to cover numerous tort claims brought against Keasbey and T & N as controlling stockholder. Pursuant to the settlement agreement, American Mutual would, in several installments, pay agreed-upon limits of all Keasbey policies as well as T & N’s defense costs. When American Mutual failed to honor its obligations under the settlement agreement, T & N argued in its summary judgment motion PIGA should assume American Mutual’s obligations. The U.S. District Court granted summary judgment in part, holding PIGA liable for American Mutual’s policy limits on a case-by-case basis up to the full agreed settlement amount. Id. at 294, 295. The court reasoned:

“Since the insurance policies were extinguished, the settlement agreement, rather than the insurance policies, actually controls the resolution of the issues that will determine PIGA’s liability in the instant case. A settlement agreement, like any other contract, is governed by the intent of the parties. However, the settlement agreement provides little guidance on some of these issues. But since the settlement agreement merely represented the amounts due by American Mutual under the insurance policies for T & N’s liability in the underlying claims, the terms of the policies will govern these issues.”

We believe the U.S. District Court’s reasoning is not only sound, but remains good law where settlement was reached creating a liquidated claim prior to PIC’s bankruptcy. To hold otherwise is “contrary to Pennsylvania’s strong and historical public policy of encouraging good faith settlements.” Id. at 288. See also, Walton v. Avco Corp., 530 Pa. 568, 581-82, 610 A.2d 454, 461 (1992). Under said circumstances, PIGA must complete its mandated purpose to guarantee neither claimants nor policyholders are left with diminished protection when insurance insolvencies occur.

CONCLUSION

We hereby hold the entire disputed $200,000 is a liquidated claim immune from statutory offset pursuant to our November 2, 1998 order. Security is to remain in plaintiffs’ counsel’s escrow fund pending outcome of appellate review.


source: Caselaw Access Project

author: IOLE, Member,

license: Public Domain

text:
    In re Anonymous No. 125 D.B. 1997

      January 19, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

IOLE, Member,

I. HISTORY OF PROCEEDINGS

Office of Disciplinary Counsel filed a petition for discipline against respondent, [ ], on October 15, 1997. The petition contained one charge, alleging that respondent violated Rules of Professional Conduct 1.6(a), 8.1(a), and 8.4(c) as a result of assertions that respondent is alleged to have made regarding his client, [A], to an investigator for the office of the federal public defender for the United States District Court for the [ ] District of Pennsylvania. Respondent filed an answer to the petition on November 17, 1997.

Disciplinary Hearings were held on February 23,1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire. The parties entered into a stipulation of certain facts dated February 9, 1998.

The committee filed a report on July 24, 1998 and determined that respondent violated Rules of Professional Conduct 8.1(a) and 8.4(c) but did not make any express determination regarding Rule 1.6(a). The committee recommended a public censure. A brief on exceptions and request for oral argument was filed by respondent on November 19, 1997. Petitioner filed a brief on exceptions on August 17, 1998. Oral argument was held on September 25,1998 before a three-member panel of the board chaired by John E. Iole, Esquire, and consisting of board members Duke George Jr., Esquire, and Christine L. Donohue, Esquire.

This matter was adjudicated by the board on October 5, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1957 and was admitted to practice law in the Commonwealth of Pennsylvania in 1985. His office is located at [ ]. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) In 1991, respondent began representing [A] concerning a federal criminal investigation into the activities of Dr. [B] involving alleged mail fraud and rendering illegal prescriptions. Dr. [B] allegedly had illegally prescribed narcotic drugs for [A] and certain of his relatives.

(4) Respondent had represented [A] previous to 1991 on civil matters unrelated to the criminal investigation.

(5) During the time he was being represented by respondent, [A] was granted immunity from prosecution. On October 26, 1993, during respondent’s representation of [A], [A] testified before a grand jury investigating Dr. [B], On January 26, 1994, Dr. [B] was indicted on five counts of mail fraud and six counts of unlawful distribution of narcotics.

(6) In May 1994, Assistant Federal Public Defender [C] was appointed to represent Dr. [Bj.

(7) Attorney [D] was an investigator assisting Attorney [C] in the defense of Dr. [B].

(8) Respondent consulted with and was treated by Dr. [B] between December 1993 and continuing into 1994.

(9) Dr. [B] told Attorney [D] that respondent revealed to him (Dr. [B]) that [A] had admitted to having perjured himself before the grand jury investigating Dr. [B].

(10) Respondent was present at Dr. [B’s] office for purposes of treatment at the same time Attorney [D] was there investigating the defense of Dr. [B]. Though no meeting had been pre-arranged, at Dr. [B’s] request, respondent agreed to meet with Attorney [D] while respondent and [D] were there together. Attorney [D] telephoned Attorney [C] and received approval to have this meeting.

(11) Attorney [D] and respondent discussed the charges against Dr. [B]. Attorney [D] spoke to Attorney [C] by telephone after this meeting. There is absolutely no documentary evidence of record that memorializes the substance of the discussion between Attorney [D] and respondent.

(12) Several weeks or months after this discussion, Attorney [D] again encountered respondent coincidentally. Attorney [D] and respondent spoke to each other. Attorney [D] spoke to Attorney [C] following this meeting. There is absolutely no documentary evidence of record that memorializes the substance of the discussion between Attorney [D] and respondent.

(13) In the discussions identified in paragraphs 11 and 12 above, respondent is alleged to have told Attorney [D] that [A] told him (respondent) that he ([A]) bed when he ([A]) testified before the grand jury investigating Dr. [B]. Respondent also is alleged to have agreed to testify, in Dr. [B’s] criminal trial, to [A’s] admission of falsehood before the grand jury.

(14) Upon request by Attorney [D] and Dr. [B], respondent agreed to be a character witness for Dr. [B] at Dr. [B’s] criminal trial.

(15) As stipulated by the parties, [A] never told respondent that he ([A]) lied when he ([A]) testified before the grand jury.

(16) [A] was a witness for the prosecution at Dr. [B’s] criminal trial and testified.

(17) During cross-examination of [A], Assistant Federal Public Defender [C] asked [A] the following question:

“Didn’t you also tell your lawyer you had lied to the grand jury about Dr. [B] knowing his prescriptions for your family weren’t really for them?” Respondent’s exhibit 1 at 13 a.

This question prompted a stem series of comments from the United States District Judge presiding over the trial, during which the court questioned the propriety of such a question and chastised the assistant federal public defender for not raising the issue in previous conferences with the court. Id. at 13a-31a. The court ruled that this question was improper and gave a curative instruction to the jury.

(18) The assistant federal public defender attempted but did not successfully subpoena respondent to testify at the trial. There is absolutely no evidence that respondent attempted to evade service of the subpoena.

(19) During the course of petitioner’s investigation of respondent for possible disciplinary violations, respondent wrote a letter to petitioner dated November 8,1995. In that letter, respondent denied that he ever told Attorney [D] that [A] admitted telling a falsehood before the grand jury.

(20) Before the hearing committee, eight witnesses testified to respondent’s reputation for honesty, and approximately 12 additional witnesses were available to further testify to this.

(21) Respondent has no prior history of discipline.

III. CONCLUSIONS OF LAW

After carefully considering all of the evidence presented by the parties, along with the able briefs and oral argument of counsel, we conclude that respondent has not violated the following Rules of Professional Conduct with which he was charged:

(1) R.P.C. 1.6(a) — “A lawyer shall not reveal information relating to a representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.. ..”

(2) R.P.C. 8.1(a) — “A lawyer is subject to discipline if the lawyer has made a materially false statement in, or if the lawyer has deliberately failed to disclose a material fact requested in connection with, the lawyer’s application for admission to the bar or any disciplinary matter.”

(3) R.P.C. 8.4(c) — “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

IV. DISCUSSION

The Disciplinary Board conducts a de novo review of all disciplinary matters that come before it upon recommendation by a Hearing Committee. Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). The findings made by the Hearing Committee are guidelines for the board’s analysis of the conduct that brought respondent into the disciplinary system, but the board is not bound by the committee’s findings. Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (1976). The board is free to formulate its own opinions and conclusions as to whether respondent has breached the Rules of Professional Conduct. Matter of Green, 470 Pa. 164, 368 A.2d 245 (1977).

The burden is on the Office of Disciplinary Counsel to prove by a preponderance of the evidence “an attorney’s unprofessional conduct and the proof of such conduct must be clear and satisfactory.” Berlant Appeal, 458 Pa. 439, 328 A.2d 471 (1974). After consideration of the entire record before the Hearing Committee, the Hearing Committee’s findings and recommendation, and the objections, briefs and oral argument of petitioner and respondent, the board respectfully does not agree that respondent violated any of the Rules of Professional Conduct with which he was charged.

At the evidentiary hearing, petitioner’s proof consisted primarily of testimony from Attorney [D] and Assistant Federal Public Defender [C]. Their testimony tended to support the violations charged. The substance of respondent’s defense consisted of testimony from respondent. Respondent’s testimony directly refuted the violations charged.

After considering the credibility and demeanor of the witnesses, the committee concluded:

“Both the respondent and Attorney [D] made frank and straightforward appearances at the hearing before the committee. Were their testimony standing in a vacuum, the committee would be unable to state with certainty that petitioner has convinced us of the merits of its case. It is the committee’s finding, however, that there is simply no rational reason for Attorneys [D] and [C] to testify falsely and perjure themselves before the Hearing Committee. It is primarily for this reason that the committee has accepted Attorneys [D] and [C’s] testimony.” Hearing Committee report at 6.

The Hearing Committee also observed that respondent presented “significant character evidence.” Id. at 10. In the end, the committee found violations because it could not reconcile the testimony. Id.

For the board to conclude that respondent has violated the rules with which he has been charged, it would have to accept the following extraordinary propositions, which it declines to accept based on the evidence of record:

“Respondent willingly revealed a client confidence to Attorney [D] (i.e., telling [D] that [A] admitted to having lied to the grand jury).
“That revelation by respondent was itself a lie (i.e., [A] never made any admission to respondent).
“Respondent agreed to provide untrue testimony against his client ([A]) based on [A’s] supposed admission that respondent actually fabricated.
“Respondent then lied to the Office of Disciplinary Counsel about having told [D] that he would testify to his client’s admission.”

In addition, the board has considered an important circumstance that makes these propositions even less credible- — [A] was an immunized government witness whose immunity would have been placed in jeopardy by respondent’s alleged fabrication.

Under the peculiar circumstances of this case, it would require compelling evidence for petitioner to meet the “clear and satisfactory” standard necessary to prove a disciplinary violation. The board has carefully reviewed the testimony and documentary exhibits. The board con-eludes that the testimony of Attorney [D] and Assistant Federal Public Defender [C] simply is not sufficient to support the violations with which respondent is charged. In addition, the board considers the total absence of evidence on the following points to be critical in this case:

“(1) According to [D] and [C], they discussed respondent’s statements immediately after each of the two times respondent is claimed to have made them— but not a single contemporaneous memo or telephone note of these discussions (or of respondent’s revelation) ever was produced or introduced into evidence.
“(2) Respondent’s testimony obviously would be (and was) a bombshell at the trial of Dr. [B] — yet no notes or memoranda regarding respondent’s anticipated testimony were introduced into evidence, even though it was the federal public defender’s policy and practice to have such memoranda prepared and it was the personal practice of Attorney [D] to make such notes.
“(3) Respondent, a critical witness for the defense, was not successfully subpoenaed to testify at trial though there is no evidence that he attempted to evade service.
“(4) The assistant federal public defender’s office researched the ramifications of respondent’s revelation and the propriety of inquiring into that subject of [A] during cross-examination, yet no memorandum of this research was introduced into evidence.”

The board is mindful that the federal public defender’s office strenuously objected to petitioner’s efforts to gain cooperation in its disciplinary investigation. The board also is mindful of the fact that the documentary evidence referred to above would have been difficult to obtain, if it existed at all. While the board expressly is not setting forth a principle that would require such evidence to be obtained and introduced to prove a violation in all such cases, the board finds the absence of this evidence in the present case to be a factor that requires dismissal of the charges.

The Hearing Committee believed that, because it could not reconcile the testimony, it would have to conclude that either [D] and [C] were lying before the committee, or that respondent was lying. Ultimately, the Hearing Committee decided against respondent because it could not think of any reasons why [D] or [C] would lie. The presence of conflicting testimony in this case of charged professional misconduct is not sufficient, in the board’s view, to support the violations charged. Especially in a case where critical documentary evidence would tend to directly prove or disprove a central fact necessary to the case (whether respondent made the revelation with which he is accused), but was not introduced, we conclude that the proof falls short of the necessary clear and satisfactory standard.

In view of its disposition regarding the charged violation of Rule 8.4(c), the board finds no violation of Rule 8.1(a). That charge was based upon respondent’s assertion in his letter to petitioner that he did not make the disputed revelation regarding [A] to Attorney [D]. Respondent’s letter was a response to petitioner’s investigation of respondent. Petitioner’s theory is that, if respondent is in violation of Rule 8.4(c) for lying to Attorney [D], he is in violation of Rule 8.1(a) for telling petitioner that he never lied to Attorney [D]. Accordingly, because the board finds no violation of Rule 8.4(c), it finds no violation of Rule 8.1(a). Moreover, while the board acknowledges that Rule 8.1(a) serves a useful and important purpose by safeguarding the truth in disciplinary proceedings, Duffield, 537 Pa. at 499, 644 A.2d at 1192-93, the board likewise believes that violations of this rule should be charged with special care. Violations of Rule 8.1(a) subject the respondent to additional discipline for participating in the disciplinary process — once on the violation charged, and a second time on the denial of that violation. If employed routinely, disciplinary charges based on failed defenses would freeze respondents from cooperating in petitioner’s investigations. Petitioner is invested with duty and discretion regarding the investigation and charging of disciplinary violations, and the board believes that petitioner will exercise that discretion in a manner that protects the truth-finding aspects of the disciplinary process while simultaneously encouraging respondents to cooperate in that same process.

V. DETERMINATION

The Disciplinary Board of the Supreme Court of Pennsylvania determines that the charge against respondent, [ ], be dismissed.

Vice-Chair Caroselli did not participate in the consideration and disposition of this matter.

Board Member Schultz did not participate in the October 5, 1998 adjudication.

ORDER

And now, January 19,1999, upon consideration of the report and recommendation of Hearing Committee [ ] filed July 24,1998 and after oral argument before a three member panel of this board, it is hereby ordered that the charges against [respondent] docketed at no. 125 D.B. 1997 be dismissed.

      . The Hearing Committee did not expressly pass upon the charged violation of R.P.C. 1.6(a). Presumably, respondent was charged with this violation because he allegedly revealed a client confidence ([A’s] admission of perjury) to Attorney [D] without permission. This charge creates an inconsistency. The basis for at least one of the other two alleged violations is that respondent violated Rule 8.4(c) when he supposedly revealed a client confidence that never was made (falsely telling Attorney [D] that [A] admitted to perjury). Thus, to find violations of Rule 8.4(c), one has to conclude that no revelation occurred. The board points this out because it further illustrates improbable circumstances that cause the board to conclude that there has not been a sufficient showing that any violation of Disciplinary Rules occurred.


author: SWOPE, J.,

text:
    Love v. Nationwide Mutual Insurance Co.

      C.P. of Cambria County,
    no. 1998-2308.

      Blair V. Pawlowski, for plaintiffs.

      Dennis J. Stofko, for defendant.
    February 3, 1999
   SWOPE, J.,

This matter is before the court on the defendant, Nationwide Mutual Insurance Company’s, preliminary objections. A hearing was held on December 18,1998 at which time arguments of counsel were heard. On November 2,1998, plaintiffs filed a complaint pursuant to the Declaratory Judgments Act. The defendant filed preliminary objections to the complaint on November 16, 1998 in the nature of a demurrer, motion for a more specific pleading and failure to join an indispensable party.

The motor vehicle accident from which this case arose occurred on April 8, 1997. On that date, the plaintiff, Leonard Love, was a passenger in a motor vehicle owned by the Department of General Services of the Commonwealth of Pennsylvania and operated by a co-employee, Ronald Wills. Due to the negligence of the vehicle operator, Ronald Wills, an accident occurred and the plaintiff suffered serious personal injuries. At the time of the accident, both occupants of the vehicle were employees of the Commonwealth of Pennsylvania and the accident occurred within the scope of their employment. Accordingly, the plaintiff receives workers’ compensation benefits.

The issue in this case is whether the plaintiff can recover uninsured motorist benefits under the insurance policy of his co-employee, when the plaintiff, Leonard Love, was injured in a motor vehicle accident which occurred in the scope of his employment and due to the negligence of the co-employee who was operating the vehicle. As will be explained, this court finds that the plaintiff may not recover uninsured motorist benefits from the co-employee in this situation, and therefore the demurrer will be sustained.

The Pennsylvania Supreme Court recently addressed the issue of whether an employee’s receipt of workers’ compensation benefits relating to injuries sustained while driving a co-employee’s vehicle and arising out of wrongful third-party conduct barred him from recovering uninsured motorist benefits from the co-employee’s insurance carrier. Gardner v. Erie Insurance Co., 554 Pa. 59, 722 A.2d 1041 (1999). In aunanimous opinion, the court held that such an employee was not precluded by section 205 of the Workers’ Compensation Act from seeking uninsured motorist benefits. Id. at 69, 722 A.2d at 1046. This case is distinguishable from the instant case, however, in two important aspects.

First, in the case at bar, the vehicle was owned by the employer, the Commonwealth of Pennsylvania, whereas in Gardner, the vehicle occupied by the injured co-employee was owned by the other co-employee. More significant by far is the fact that, in the present case, the accident was caused by the co-employee’s negligence, and in Gardner, the accident was caused by the wrongful conduct of a third party. The court in Gardner noted that they were not faced with the question of whether recovery of underinsured motorist benefits should be permitted where the claim arises out of the negligence of the co-employee. Gardner v. Erie Insurance Co., 554 Pa. at 69-70 n.12, 722 A.2d at 1046-47 n.12. The court farther noted, albeit in dicta, “that many jurisdictions have found that the tort immunity of a co-employee means that the injured employee is not ‘legally entitled to recover’ from the co-employee and therefore, as a contractual matter, may not recover pursuant to an underinsured motorist benefits policy.” Id., citing Annotation, “Automobile Uninsured Motorist Coverage: ‘Legally Entitled to Recover’ Clause as Barring Claim Compensable Under Workers’ Compensation Statute,” 82 A.L.R.4th 1096, §5 (1996).

Having found no Pennsylvania case directly on point, we have looked to the decisions of other states on this issue. In Cormier v. National Farmers Union Property & Casualty Co., 445 NW2d 644 (ND 1989), the court held that a passenger injured when a car driven by her co-employee collided with a pickup truck was not entitled to uninsured motorist benefits under the driver’s insurance policy. The court stated that “legally entitled to recover” imports a condition precedent to the uninsured motorist insurer’s obligation that the insured have a legally enforceable right to recover damages from the owner or operator of the uninsured motor vehicle, and that because workers’ compensation is the exclusive remedy for an injured employee against a co-employee, the injured employee did not have a legally enforceable right to recover damages from the driver, and therefore was not legally entitled to recover. Cormier v. National Farmers Union Property & Casualty Co., 445 NW2d 644 (ND 1989). The same view was adopted by the court in Cope v. West American Insurance Co., 309 Or. 232, 785 P.2d 1050 (1990), an Oregon case in which an employee was struck by a co-employee’s car while walking in a parking lot leased by her employer and made available to employees, free of charge. In Cope, the court held that if the injured employee was deemed entitled to workers’ compensation benefits, then she would not be “legally entitled to recover” from her co-worker within the meaning of her own policy, and therefore would not be entitled to underinsured motorist benefits.

Applying the reasoning of the above cases to the case at bar, we must conclude that the facts of this case are such that a recovery of uninsured motorist benefits is precluded. Recovery is precluded because the facts indicate that the accident was caused by the co-employee operator’s negligence. Therefore, section 205 of the Workers’ Compensation Act prevents the plaintiff from recovering uninsured motorist benefits under the at fault co-employee’s insurance policy.

Accordingly, the following order is entered:

ORDER

And now, February 3, 1999, it is hereby ordered and decreed that the defendant’s preliminary objection in the nature of a demurrer is sustained and the plaintiffs’ complaint will be dismissed unless the complaint is amended within 20 days to allege that the accident was caused by the negligence of a third party.

      . Act of June 2,1915, P.L. 736, §§101-1526 (codified as amended 77 P.S. §§1-2626).


author: SCARICAMAZZA JR., Member,

text:
    In re Anonymous No. 139 D.B. 1995

      March 8, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SCARICAMAZZA JR., Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, [ ], filed a petition for reinstatement to the bar of Pennsylvania on April 3, 1998. He was suspended for a period of three years retroactive to October 2, 1995 by order of the Supreme Court dated June 13, 1997. Petitioner was suspended as a result of his conviction for two counts of mail fraud and two counts of aiding and abetting.

A reinstatement hearing was held on June 24, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ ], Esquire. Office of Disciplinary Counsel was represented by [ ], Esquire.

The Hearing Committee issued a report on July 28, 1998 and recommended that the petition be granted. No briefs on exception were filed by the parties.

This matter was listed for adjudication at the board meeting of August 13,1998. After that meeting, the board issued an order remanding the matter to Hearing Committee [ ] for receipt of additional evidence, pertaining to petitioner’s monthly compensation from 1995 through 1997. On October 29,1998, the Hearing Committee filed a stipulation relating to the evidence requested by the board.

This matter was then re-listed and adjudicated by the board at the meeting of November 18, 1998.

n. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was born on May 21, 1955, and was admitted to practice law in Pennsylvania on December 9, 1980. Petitioner’s address is [ ].

(2) By order of the Supreme Court dated June 13,1997, petitioner was suspended from the practice of law in Pennsylvania for a period of three years retroactive to October 2, 1995.

(3) Petitioner’s suspension was related to his conviction on April 5,1995 of two counts of mail fraud in violation of 18 U.S.C. §1341 and two counts of aiding and abetting in violation of 18 U.S.C. §2.

(4) Petitioner was sentenced to probation for three years and was required to perform 400 hours of community service and pay restitution of $11,700 and a fine of $5,000.

(5) Petitioner satisfied all requirements of his criminal sentence.

(6) Petitioner has not practiced law in Pennsylvania since his suspension.

(7) Petitioner’s exhibit 12 of the reinstatement questionnaire lists his compensation between 1995 and 1997 for files and cases prior to his suspension in 1995. The stipulation filed on October 29, 1998 verifies that the income was derived from referral fees for services rendered by petitioner prior to his suspension.

(8) Petitioner was suspended from the practice of law in New Jersey as a result of his conviction. He was reinstated to practice in that state in October 1997.

(9) During petitioner’s suspension, he worked as a paralegal for Attorney [A], whose office is located in [ ]. After petitioner’s reinstatement in New Jersey, he returned to the practice of law as a solo practitioner, with an office located at [ ].

(10) Petitioner has been active in charitable and community affairs, serving as a board member of the [B] and as a youth soccer and hockey coach.

(11) Petitioner completed more than 50 hours of continuing legal education credits, which fulfills the requirement for reinstatement.

(12) Petitioner submitted letters from friends and business associates supporting petitioner’s claim that he is morally fit and competent to return to the practice of law.

(13) If reinstated, petitioner desires to affiliate himself with a law firm and practice in the area of civil litigation.

(14) Petitioner expressed his remorse for his criminal misconduct and assured the Hearing Committee that he would not engage in such misconduct in the future, as he has learned from his experience.

m. CONCLUSIONS OF LAW

Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competence, and learning in the law necessary to practice in Pennsylvania.

Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

An attorney who is suspended from the practice of law for a period exceeding one year may not resume practice until reinstated by order of the Supreme Court of Pennsylvania. Pa.R.D.E. 218(a). In order for petitioner to gain reinstatement after suspension, he has the burden of demonstrating, by clear and convincing evidence, that he possesses the moral qualifications, competency, and learning in the law required for admission to practice law. Part of petitioner’s burden also requires that he demonstrate that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, nor subversive of the public interest. Pa.R.D.E. 218(c)(3)(i).

In determining whether petitioner clearly demonstrated his present fitness to practice law, the board considered the nature of petitioner’s misconduct, his present competence and legal abilities, his character, rehabilitation, and degree of remorse expressed. Philadelphia News Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was suspended for three years retroactive to October 2, 1995 for his criminal conviction of mail fraud and aiding and abetting. Petitioner helped to perpetrate fraud on an insurance company by submitting inflated medical bills and fictitious reports, thereby enabling an inflated recovery for his client. Petitioner was sentenced to three years of probation on September 8, 1995. He was also required to perform 400 hours of community service, pay restitution of $11,700, and a fine of $5,000. Petitioner satisfied all requirements of his sentence.

Petitioner expressed sincere remorse for his actions and provided satisfactory evidence of his rehabilitative efforts. Petitioner has involved himself in charity and community work. Petitioner worked as a paralegal for Attorney [A], his former partner. Petitioner took more than 50 CLE credits during his suspension.

Petitioner was also suspended in New Jersey, and was reinstated there in October 1997. Since that time, he has practiced law in New Jersey as a solo practitioner, handling a variety of cases. Petitioner is eager to return to the practice of law in Pennsylvania. He plans to associate himself with a law firm.

Letters were submitted by friends and community members attesting to petitioner’s character and moral fitness. Petitioner testified that his experience has changed him, and he assured the Hearing Committee that he would never involve himself in such a scheme again.

The concerns raised by the board were satisfactorily addressed by the submission of the stipulation relating to petitioner’s monthly compensation for files and cases from 1995 through 1997 as reported in his reinstatement questionnaire.

The record demonstrates that petitioner has met the requirements for reinstatement from his suspension. His misconduct was serious and appropriately addressed by the Supreme Court with a three-year suspension of his license to practice law. He completed his suspension without any difficulties or questionable activities. He is morally fit, competent and learned in the law.

For these reasons, the board recommends that the petition for reinstatement be granted.

Y. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Elliott did not participate in the November 18, 1998 adjudication.

ORDER

And now, April 23, 1999, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated March 8, 1999, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: THOMSON JR., P.J.,

text:
    Opitz v. Bowman
    C.P. of Pike County,
    no. 1118-1997 Civil.

      Charles Kannebecker, for plaintiffs.

      Gregory Chelak, for defendant Rite Aid.

      Maureen E. Kelly, for defendant Bowman.
    July 30, 1999
   THOMSON JR., P.J.,

The defendant, Bowman, seeks to discover certain information contained in the investigatory reports of the narcotics division of the attorney general’s office. The attorney general has brought this motion to quash and thereby asserts that the information is protected through the Criminal History Record Information Act. 18 Pa.C.S. §9101 et seq. The information sought through the Rules of Civil Procedure by subpoena upon the Bureau of Narcotics Investigation is “any and all case files pertaining to Michael Opitz’s arrest in January 1997.” In response to the subpoena, the bureau supplied copies of the criminal “complaint, arrest warrant affidavit, and numerous investigative reports with various sections redacted.” Brief in opposition at 2. The probable cause affidavit identifies the investigators, a pharmacist, defendant Bowman, and plaintiff Opitz, and was found to have supported a finding of probable cause by the district justice.

The government here admitted that the investigation is complete, but that persons referenced in certain statements which have been withheld may have CHRIA protection. Statement of facts at 3. It seems quite probable that there are other investigations involving the same witnesses. At the hearing, the government stated that it sought also to protect the statements and identity of several civilian witnesses. The defendant who seeks the information asserted that the information was relevant to his defense, the reason being that he wants to show that there were others who contributed information which led to Opitz’s arrest.

The court finds the protection of investigatory information to be of utmost concern to the investigating authority. In the case at hand, the investigatory authority is invoking the intent of the legislature to protect certain investigatory information by opposing the dissemination of information contained, presumably, in files to which CHRIA applies. There is no assertion that the files are not of a kind that fall within those governed by the statute. The government asserted that the illegal dissemination of CHRIA information would expose those responsible to civil liability or discipline. 18 Pa.C.S. §9181. Intelligence information covered by the protections of CHRIA shall not be disseminated except to a criminal justice agency, and shall be purged if no longer reliable or relevant. 18 Pa.C.S. §9106. Intelligence information may be extracted from the record when information is requested by other than a criminal justice agency. 18 Pa.C.S. §9121. By implicating the protections of CHRIA, the government implies that the information is still relevant to their activities.

The parties to this motion both cite to Commonwealth v. Kauffman, 413 Pa. Super. 527, 605 A.2d 1243 (1992). The case is based on the withholding of information contained in district attorney files where it was asserted that the information was protected under Pennsylvania’s Right to Know statute. There, the court held that the Right to Know law does not bar discovery of information for use in a civil action. Instead, the court said the interests of the government in maintaining the secrecy of confidential information must be balanced against the needs of private litigants. Unlike the Right to Know statute that considers information to which a citizen is entitled, CHRIA in this instance deals with information which the agency having its possession is prohibited from disseminating. CHRIA not only establishes and amplifies the government’s privilege against disclosure of investigatory information, it also mandates its assertion. The court finds that Kauffman does not compel discovery in this case in that it neither considered CHRIA nor did it involve any assertion of privilege.

The hearing, in hindsight, was.somewhat lacking in information from either party. The defendant did not produce the redacted documents to show their inadequacy. Nor did the government present the confidential information to the court for a determination of its protected status or irrelevancy. And neither party requested such a showing.

ORDER

And now, July 30,1999, as it appears that exculpatory information, if existent, may be available through other means, and since the interests of the government have not been sufficiently outweighed, the court hereby orders that the challenged subpoena, to the extent it has not already been complied with, be quashed. It is further ordered that information from the investigatory files of the attorney general’s office be no further disseminated outside of this litigation.


author: OLER, J.,

text:
    Estate of Gouse v. Miller & Norford Inc.

      C.P. of Cumberland County,
    no. 99-117.

      Ronald A. Turo, for plaintiff.

      J. Michael Flanagan, for defendant Miller & Norford Inc.

      Stephen E. Geduldig, for defendant Hershey Creamery Company Inc.
    BEFORE: HOFFER, P.J., OLER AND GUIDO, JJ.

    June 17, 1999
   OLER, J.,

This civil case presents an interesting parties/statute of limitations issue. Specifically, the question raised on preliminary objections to an amended complaint is whether a civil action is sustainable where (a) it was commenced within the statute of limitations in the name of an existing decedent’s estate (but without reference to the personal representative) and (b) an amended complaint was filed outside the statute of limitations (in response to preliminary objections) in the name of the administratrix of the estate.

For the reasons stated in this opinion, the question will be resolved in favor of the viability of the action.

PROCEDURAL HISTORY; STATEMENT OF FACTS

Robert A. Gouse, according to plaintiff, was killed in a construction accident on January 13, 1997. The accident allegedly resulted from the negligence of others.

Mr. Gouse died intestate, according to plaintiff. Margaret E. Reisinger was appointed administratrix of decedent’s estate in August of 1997, plaintiff alleges.

The present action was commenced as Estate of Robert A. Gouse v. Miller & Norford Inc., Landis Inc., Steel Buildings Erectors Inc., and Hershey Creamery Company Inc., by a praecipe for writ of summons on January 8, 1999. The action arises out of the aforesaid January 13, 1997 fatal accident.

Although commenced within two years of the alleged date of the fatal accident, the action did not generate the filing of a complaint until March 5, 1999. The complaint was captioned The Estate of Robert A. Gouse v. Miller & Norford Inc. and Hershey Creamery Co. Inc.; as with the praecipe for writ of summons, this pleading omitted any reference to the personal representative.

Preliminary objections based upon the omission of the personal representative were filed to the complaint by the defendants. In response to these preliminary objections, plaintiff filed an amended complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(1). The amended complaint was captioned The Estate of Robert A. Gouse, by Margaret E Reisinger, Administratrix v. Miller & Norford Inc., and Hershey Creamery Company Inc.; it identified the personal representative as having been “appointed administratrix of the estate of Robert A. Gouse, deceased [on or about August 28, 1997],” averred that “ever since her appointment [she] has been and is now acting as such administratrix,” and attached a copy of the certificate of the grant of letters of administration to Ms. Reisinger issued by the Register of Wills of Cumberland County on August 29, 1997.

Preliminary objections were filed by both defendants to the amended complaint. Both sets of preliminary objections are based upon the initial omission of a reference to the decedent’s personal representative in the praecipe for writ of summons and the subsequent running of the applicable two-year statute of limitations prior to the inclusion of a reference to the administra-trix, in the amended complaint. More specifically, the preliminary objections of defendant Hershey Creamery Company Inc. consist of (a) a demurrer noting that plaintiff “failed to obtain Rule 1033 consent or leave of court to substitute plaintiff ” and seeking dismissal of the complaint as to it “on the basis that the substitution of the plaintiff is beyond the statute limitations and is time-barred” and (b) a motion for dismissal of the complaint as to it for lack of capacity to sue on the part of the initiator of the action.

The preliminary objections of defendant Miller & Norford Inc. consist of (a) a motion to strike the complaint as to it, noting that plaintiff “did not obtain the consent of adverse parties or obtain leave of court to change the identification of the plaintiff ” as purportedly required by Pennsylvania Rule of Civil Procedure 1033, and that the “change of identification of the plaintiff is beyond the statute limitations governing this action,” (b) a demurrer, seeking dismissal of the complaint as to it “on the basis that it has been initiated by a non-party and accordingly fails to state a cause of action upon which relief can be granted,” and because “[t]he failure to initiate this action in the name of a personal representative of the estate of Robert A. Gouse is fatal and renders this lawsuit a nullity,” and (c) a motion for dismissal of the complaint as to it for lack of capacity to sue on the part of the initiator of the action.

Argument on defendants’ preliminary objections was held on May 26, 1999.

DISCUSSION

The question of whether a sufficiently substantive change is involved, when there is the addition of an estate’s personal representative to the designation of a party in a civil case, where the estate was in existence at all pertinent times, so as to implicate the statute of limitations, was answered in the negative by Judge Cercone in Erksa v. Schriver, 113 P.L.J. 154 (1964), aff’d, 205 Pa. Super. 746, 209 A.2d 444 (1965). In Erska, an existing estate was sued as “estate of William C. Schriver, deceased, defendant.”

Subsequent to the running of the statute of limitations, the plaintiff sought to amend the caption to identify the defendant as “John E. Schriver, administrator of the estate of William C. Schriver, deceased.” An objection to the amendment was interposed on the part of the defendant on the ground that a new party was being introduced into the case beyond the period permitted by the statute. In rejecting the argument that a new party was being subjected to suit, Judge Cercone reasoned as follows:

“In the present case there can be no legal entity apart from the administrator. While it is true that an estate has no legal existence, the term does stand for some identifiable body of assets that take on legal identity through the person of the administrator. The administrator in this case was the person who was served and who accepted service of the complaint. By changing the caption and allowing the name of the administrator to be added in no way brings on the record a new party because the administrator is none other than the legal representative of the estate and would be in no way answerable personally in the action.” Erska v. Schriver, 113 P.L.J. 154, 155 (1964), aff’d, 205 Pa. Super. 746, 209 A.2d 444 (1965).

In the case sub judice, the more proper designation of the plaintiff in the caption of the amended complaint by reference to the administratrix of the estate, did not, in the court’s view, introduce a new party to the case, where the estate was in existence at the time of the filing of the praecipe for writ of summons. The amendment corrected the name of, but did not add or change, the party. Cf. Powell v. Sutliff, 410 Pa. 436, 438, 189 A.2d 864, 865 (1963) (amendment after statute of limitations had run permissible where right party sued but under “wrong designation”). By virtue of Pennsylvania Rule of Civil Procedure 1028(c)(1), neither consent of adverse parties nor leave of court was required for the amendment.

This case is distinguishable from one where the estate had no pretense of existence prior to the running of the statute of limitations. Cf. Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa. Super. 1997) (attempt by administrator who had opened estate after statute of limitations had expired to relate appointment back to time of commencement of suit in name of estate rejected). In such a case the argument that an amendment to substitute a personal representative’s name for the name of a nonexistent entity would have the effect of introducing a new party to the litigation is far more persuasive.

For the foregoing reasons, the following order will be entered:

ORDER

And now, June 17, 1999, upon consideration of defendants’ preliminary objections to plaintiff’s amended complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied.

      . Plaintiff’s amended complaint, paragraphs 1, 5, 8.

      . Id., paragraphs 16-17, 21-22, 27-28, 32-33, 37-38.

      . Id., paragraph 1.

      . Id., paragraph 2 and attachment “A.” For purposes of this opinion, the court will assume that these allegations, which have not been challenged at this stage of the proceedings by defendants, are true.

      . Id., paragraphs 1-38.

      . The complaint was filed in response to praecipes of several defendants for rules to file a complaint.

      . Two defendants were obviously withdrawn from the action when the complaint was filed.

      . Preliminary objections of defendant Miller & Norford Inc. filed March 16,1999; preliminary objections of defendant Hershey Creamery Company Inc. filed March 24, 1999.

      . Pennsylvania Rule of Civil Procedure 1028(c)(1) provides that “[a] party may file an amended pleading as of course within 20 days after service of a copy of preliminary objections.”

      . Plaintiff’s amended complaint, paragraph 2 and attachment “A.”

      . Preliminary objections of defendant Miller & Norford Inc. to amended complaint, filed April 13, 1999; preliminary objections of defendant Hershey Creamery Company Inc. to plaintiff’s amended complaint, filed April 16, 1999. j

      . See Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524 (1999 Supp.).

      . Preliminary objections of defendant Hershey Creamery Company Inc. to plaintiff’s amended complaint, paragraph 3.

      . Preliminary objections of defendant Miller & Norford Inc. to amended complaint, paragraph 3.

      . Id., paragraph 6.

      . See id., paragraph 7.

      . Id., paragraph 8.

      . Id., paragraph 10.

      . See supra note 9 and accompanying text.


author: MELODY JR., J.,

text:
    Buysse v. Buysse

      C.P. of Chester County,
    no. 95-03579.

      Kathleen B. Vetrano, for plaintiff.

      Joseph P. Green, for defendant.

      Deborah A. McKenty, guardian ad litem for Brianna Marie Buysse.
    June 28, 1999
   MELODY JR., J.,

We have before us “Father’s petition for special relief to compel Mother to cooperate in school registration pursuant to Rule 1915.13.” After a hearing and arguments of counsel and the guardian ad litem, we determine and adjudicate as follows:

This petition involves the child, Brianna Marie Buysse, who is 6 years of age and who will become 7 years of age on August 28,1999. Although not subject to the petition and our decision, Brianna’s brother, Michael Thomas Buysse, is 5 years of age and will become 6 years of age on October 3, 1999.

We have not chosen a religion for the child, Brianna. We have, however, only chosen the better of the two schools, which are, realistically, the only two schools involved, as of the termination of the hearing.

As the hearing progressed, we heard testimony about 12 different schools.

However, after reality set in, it was obvious, and agreed to by the parties, that we were limited by common sense to only two schools. The two schools involved are St. Norbert’s Catholic School and Katherine D. Marldey Public School.

FINDINGS OF FACT

(1) At the time of the hearing, the child, Brianna, was attending kindergarten and her brother, Michael, was attending pre-kindergarten, at Good Samaritan School in Paoli, Chester County, which was the closest private preschool to their mother’s house. However, Good Samaritan School is only a preschool. It has no higher grades. (N.T. pp. 27, 28, 29 and 157.)

(2) With regard to St. Norbert’s School, we heard from Father, Mother and Mrs. Helen Locke, the principal of St. Norbert’s School. Through the testimony, we were able to learn much about St. Norbert’s School as follows:

(A) The school is kindergarten through eighth grade. (N.T. p. 82.)

(B) The physical plant includes classrooms and a gymnasium facility, which was built in 1992. (N.T. pp. 82 and 83.)

(C) The faculty is a totally lay faculty. (N.T. p. 83.)

(D) The average number of teaching years of the faculty is nine or 10 years, and maybe more. Some of the teachers have been there 20 years. (N.T. p. 83.)

(E) It is accredited by the Middle States Commission on Secondary Schools and Elementary Schools. (N.T. p. 83.)

(F) At the present time, the school consists of one class of each grade. (N.T. p. 84.)

(G) There are 32 children in each class, grades one through eight, and 25 children in the kindergarten, with full aid, for a total of 281 students attending the school. (N.T. p. 84.)

(H) It is intended that the class size will be reduced to 30 students per class, upon the completion of two new nearby schools, for which ground has been broken for construction. (N.T. p. 84.)

(I) There were 23 eighth graders in the Class of 1999, and every one of them was accepted into the school of their choice for ninth grade. (Exhibit PS-1.)

(J) In addition, 13 scholarships were awarded to the graduating students. The scholarships were based upon merit. The scholarships were not based upon financial information. They were based upon scholarship examinations. (Exhibit PS-1 and N.T. p. 87.)

Each year, the school has a minimum of 10 academic scholarships. Three years ago, 20 students received scholarships. (N.T. p. 87.)

(K) The school also received a $40,000 grant from the Connelly Foundation, plus $10,000 in matching funds, that were assigned to the entire school, for technology. (Exhibit PS-1 and N.T. p. 86.)

(L) Seven of the seventh graders qualified for the Johns Hopkins search for talented youth, by scoring over 900 on the College SAT exam, and two of the seven students were honored as distinguished, by scoring over 1200 on the same exam. (Exhibit PS-1.)

(M) In every subject area, the school is, across the board, higher than the norm for Chester County, as evidenced by the California Achievement Tests. (N.T. p. 87.)

(N) The teachers are not in the business of proselytizing students. (N.T. p. 91.)

(O) In the primary grades, the children are taught how to respect one another. How to get along with one another. How to love God. How to act in His image. (N.T. P- 91.)

(P) The teachers teach the children tolerance and love of one another. (N.T. p. 95.)

(Q) Computers are taught across the curriculum. In addition to the 17 computers in the computer lab, there are at least four computers in every classroom. (N.T. p. 97.)

(R) The school is also able to meet any special needs of a child through the Chester County Intermediate Unit, which provides remedial schooling, to wit, remedial math, remedial reading, speech therapy, and a guidance counselor. Said services are provided at the school. (N.T. pp. 98 and 99.)

(S) The school also receives nursing, psychological, and psychiatric services through Chester County. (N.T. pp. 98 and 99.)

(T) If Brianna attended first grade at St. Norbert’s and Michael attended kindergarten at St. Norbert’s, they would come in contact with each other during the course of the day, to wit, at recess in the morning, at different events, school assemblies and at a number of other events which take place, where the children, in kindergarten through fourth grade, mix. (N.T. pp. 88 and 89.)

(U) The kindergarten program, which Michael could attend, is half of a day, five days a week, with an option for a Tuesday and Thursday all day enrichment program. Thus, Michael could have lunch at the school on Tuesdays and Thursdays. (N.T. pp. 88 and 89.)

(V) Brianna has been accepted for admission to the first grade class at St. Norbert’s School in Paoli, Chester County, for the 1999-2000 school term.

Michael has been accepted for admission to the kindergarten class at St. Norbert’s School in Paoli, Chester County, for the 1999-2000 school term. (N.T. p. 88.)

(3) With regard to the Katherine D. Markley Public School, we heard from Mother and Mrs. Kathleen Seaton, the director of the Episcopal Day School of the Church of the Good Samaritan in Paoli. Through the testimony, we were able to learn very few actual facts about the Katherine D. Markley School as follows:

(A) The school is a general public school.

(B) The school is one of the schools in the Great Valley School District.

(C) There is no way to know either the teacher or the composition of the class that Brianna would attend next year. (Mrs. Kathleen Seaton, N.T. p. 161.)

(D) The Great Valley School District is considered to be in the 98th percentile of schools around the country and thus the schools would not necessarily be a bad environment for any child. (N.T. pp. 60 and 67.)

(4) Miscellaneous:

(A) Most frequently today, present time parents are looking for a values-based education. They are searching for some kind of stability in their children, learning how to appreciate one another, and want their children to grow up with some kind of values. (N.T. p. 100.)

(B) There is no issue before us with regard to the payment of tuition (N.T. p. 37.)

(C) Brianna and Michael form their own support group and it would be in the best interests of the children, if they attend the same school, particularly as children of divorcing parents and the fact that they are only 13 months apart in age. (N.T. pp. 30 and 33.)

(D) Mother and Father were married at St. Norbert’s Catholic Church. (N.T. pp. 39, 56 and 104.)

(E) The children were baptized Catholic at St. Norbert’s Church. (N.T. p. 39.)

(F) Later, Mother had the children rebaptized at the Paoli Presbyterian Church. (N.T. p. 40.)

(G) Brianna is the type of student who one would expect to excel in both the public school and St. Norbert’s. (Mrs. Kathleen Seaton, N.T. p. 163.)

(H) Mrs. Seaton has a concern for Brianna because she is a child who has had an extraordinary amount of stress and disruption in her short life. (Mrs. Kathleen Seaton, N.T. p. 160.)

(I) Mrs. Seaton met with Father and Mother, in 1998, about what would happen at the end of this past school year. Although they discussed a number of different educational settings, there was no agreement between Father and Mother. (Mrs. Kathleen Seaton, N.T. p. 156.)

(J) Mrs. Seaton’s only recommendation with regard to first grade was the different possibilities available to Mother and Father. (Mrs. Kathleen Seaton, N.T. p. 157.)

(K) In exhibit PS-2, dated March 2, 1999, Mother stated in the fifth paragraph of that fax, inter aha, “I am not opposed to a Catholic or Christian education per se.”

(L) Brianna and Michael attended The Good Samaritan School together, because it was Father and Mother’s desire not to separate Brianna and Michael, because their birth dates are only 13 months apart. The children attended Good Samaritan day school and kindergarten by agreement of Mother and Father. (N.T. p. 28.)

(M) We note that although Mother does not agree that they agreed not to separate the children, (N.T. p. 23), their schooling last year provided a de facto non-separation to different schools.

(N) Father chooses St. Norbert’s School over Katherine D. Markley School, because of results as outlined in exhibit PS-1. (N.T. pp. 60 and 65.)

(O) Although Father believes that public schools in the Great Valley School District would not provide as good an education as St. Norbert’s School, the public school in the Great Valley School District would be an acceptable alternative, if he had no other choice. (N.T. p. 71.)

(P) Father’s position is that St. Norbert’s School is the best alternative for his children. St. Norbert’s is his first choice as the best education available. (N.T. pp. 72, 73, 78 and 79.)

(Q) Mother has strongly opposed the child attending St. Norbert’s based upon the following:

(1) “Class size.” (N.T. pp. 123 and 124.)

(2) Katherine D. Markley School’s “gifted program.” (N.T. p. 125.)

(3) “Ancillary programs.” (N.T. p. 125.)

(4) Conflict resolution. (N.T. pp. 129, 130, 131 and 132.)

(5) The Catholic religion taught at the school. (N.T. pp. 133 and 136.)

DISCUSSION

Our decision and order will not create the religion issue or problem between the parents. The religion issue has existed for years. It existed before the hearing. It existed at the time of the hearing and most probably will exist long after our decision and order.

We have firsthand testimony about St. Norbert’s School and, therefore, firsthand information and knowledge about the school.

We do not have any firsthand testimony about the Katherine D. Markley Public School. We have been left with hearsay, probabilities, and maybes with regard to that school. Thus, we do not know enough about the Katherine D. Markley Public School. The only thing that the parents agree upon is that the Great Valley School District is a very good school district. The Katherine D. Markley School may be one of many schools in a very good school district, but that does not mean that it is a good school. As one of my teachers stated, “there are lies, damn lies and statistics.” The numerical ratings of school districts are no less misleading than statistics.

Most of the secondhand information which we have with regard to the Katherine D. Markley School is from Mother, which causes us to have considerable doubt as to its reliability. We also have secondhand information from Mrs. Kathleen Seaton. However, we have no information at all as to the results achieved by the students at the Katherine D. Markley School nor do we know anything about its curriculum. And finally, we do not know if the educational environment is sufficiently rigorous to assure that Brianna will receive a high quality education and be prepared for the next level of education.

We are greatly concerned with regard to the small amount of information that was placed in evidence with regard to the Katherine D. Markley School. If the Katherine D. Markley School measured up to the standards of St. Norbert’s School, why did we only hear secondhand information and hearsay, but no firsthand testimony from the principal, vice principal or some other knowledgeable person from the Katherine D. Markley School. We are bound by the evidence presented and by the lack of evidence presented. We certainly cannot decide this matter based upon the religious war testimony of the parents.

We do not believe much of the testimony of Mother, who we observed to be a stubborn, obnoxious and not credible witness. On several occasions, she did not even answer questions of her own lawyer. In addition, during her testimony, she answered many questions with her eyes closed.

We consider and conclude that the “Holy War” was a complete red herring, with regard to which of the two schools is the better school and which school would be in the best interest of the child.

All of us strive to overcome and survive the trials and tribulations of life. In addition, the child, Brianna, must also try to survive the heartaches of her parents’ divorce and custody battles, which are rooted in evil and are being fed by the hatred of the parents for each other. Her only chance to survive is through, inter alia, the principles and goals of an education at St. Norbert’s School.

We have chosen St. Norbert’s School as the school which we believe will be in the best interest of the child, Brianna. The evidence in this matter cannot support any other conclusion than the one which we have determined.

ORDER

And now, June 28, 1999, upon consideration of defendant “Father’s petition for special relief to compel Mother to cooperate in school registration pursuant to Rule 1915.13,” filed May 12, 1999, “answer of plaintiff (Mother) to petition for special relief regarding school registration,” filed June 1,1999, “defendant/Father’s reply to new matter concerning petition for special relief regarding school registration,” filed June 3,1999, after a hearing and arguments of counsel and the guardian ad litem, it is hereby ordered and decreed as follows:

(1) Brianna Marie Buysse (d.o.b. 8/28/92) shall attend St. Norbert’s Elementary School, beginning in the fall of 1999;and

(2) Both parties shall cooperate in the enrollment and attendance of Brianna Marie Buysse at St. Norbert’s Elementary School.

      . We credit the testimony of Father; however, we do not credit much of the testimony of Mother.

      . Although the petition in this matter does not involve Michael, his very being and his schooling is involved with certain aspects of this matter.

      . The Agnes Irwin School, Villa Marie Academy, Episcopal Academy, The Shipley School, Haverford School, Rosemont School of the Holy Child, Delaware County Christian School, The Christian Academy, The Baldwin School, St. Patrick’s School, Katherine D. Markley Public School and St. Norbert’s School.

      . Notes of Testimony, p. 134.


author: McANDREWS, J.,

text:
    Pennington v. Lombardi-Martelli

      C.P. of Bucks County,
    no. 97-000538-20-2.

      J. Davy Yockey, for plaintiffs.

      Gerald X. Smith, for defendant Donna Lombardi-Martelli d/b/a D.L.M. Equestrian School.

      Charles Stokes, for defendant Ellen Schmidt.
    August 3, 1999
   McANDREWS, J.,

This opinion is written in support of this court’s order of July 29, 1999 granting defendant Donna Lombardi-Martelli, individually and d/b/a D.L.M. Equestrian School Inc.’s motion for summary judgment.

Plaintiff Robyn Pennington filed a complaint on January 22, 1997 seeking compensation for injuries arising out of defendants’ negligence. Defendant D.L.M. Equestrian School Inc. filed for summary judgment on April 26,1999 after the close of all relevant pleadings and discovery.

Plaintiff’s complaint alleges she suffered injuries upon being bitten by a horse while a patron of D.L.M. In July of 1994, plaintiff and her daughters contracted with D.L.M. to board their horse and to take riding lessons. In exchange for reduced boarding fees of her horse “Bob,” plaintiff agreed to perform various work for defendant Donna Lombardi-Martelli who owned and operated D.L.M. As a condition to the agreement to provide riding lessons at the school, a document was presented to plaintiff for her signature. The document purports to be a general release absolving the defendant school from liability in the event plaintiff suffered injuries. Plaintiff signed the document on July 1, 1994.

On January 26, 1995, plaintiff was riding Bob at the school and was bitten on the leg by another horse named Winston. The horse Winston is owned by co-defendant Ellen Schmidt and was ridden by a minor. As part of Schmidt’s boarding arrangements, the school used the horse for riding instructions.

Defendant D.L.M.’s motion for summary judgment contends the document signed by plaintiff on July 1,1994 was a complete release from liability, and, therefore, there is no material fact in issue.

Under Pa.R.C.P. 1035.2, summary judgment is proper where there is no material fact in issue or where the non-moving party has failed to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Ertel v. Patriot-News Co., 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996).

First, there is a question whether the document signed is a valid release. A release is essentially a type of contract. See Restatement (Second) of Contracts §503. It is well-established that a contact is enforceable when the parties reach mutual agreement, exchange consideration and have outlined the terms of their bargain with sufficient clarity. An agreement is sufficiently definite if the parties intended to make a contract and there is a reasonably certain basis upon which a court can provide an appropriate remedy. If an essential term is left out of the agreement, the law will not invalidate the contract. Greene v. Oliver Realty Inc., 363 Pa. Super. 534, 539, 526 A.2d 1192, 1194(1987).

Plaintiff contends that the release is invalid because: (1) it is a contract of adhesion; (2) the release is incomplete and ambiguous on its face; and (3) the release does not absolve defendant of liability for defendant’s own negligence.

Plaintiff’s first argument is that the release is defective, because it does not identify a specific “rider.” Plaintiff argues that it could be applicable to either the mother, Robyn Pennington, or her daughters who also took lessons at D.L.M. An examination of the document indicates Robyn Pennington has signed the release underneath the statement “I have read and understand this release” on the line marked “Rider’s signature.” There is a separate line marked “Rider’s parent or guardian if rider is a minor.” This line contains no signature. The signature clearly evidences Robyn Pennington’s intent to be bound individually, rather than her signing as a guardian. The suggestion that the release was intended to apply to the daughters only is without merit.

Paragraph 9 also has a blank leaving open the state law that should apply. Since plaintiff both resides in and the business operates in Pennsylvania, it could be presumed that Pennsylvania law applies to and was intended to apply to this release.

The plaintiff’s next argument is whether the exculpatory clause is invalid because it is a contract of adhesion.

The general rule is that exculpatory clauses are valid where the contract does not “contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction.” Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 478, 385 A.2d 437, 439 (1978); Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 447, 603 A.2d 663, 664 (1992).

Plaintiff contends that the release is a contract of adhesion. Plaintiff notes that, according to defendant Martelli’s testimony, all prospective riders were required to sign a release or they could not participate in riding activities. Defendant testified that it was a standard form used and that if patrons choose not to sign it, “they don’t come and take lessons and they don’t board.” Therefore, it is argued that plaintiff had no choice but to sign the release if she wanted riding lessons.

Defendant, in opposition, contends that such contracts are not contracts of adhesion; “each party is free to participate or not participate.” See Valeo v. Pocono International Raceway Inc., 347 Pa. Super. 230, 500 A.2d 492 (1985). Plaintiff was free to board her horse elsewhere and take lessons elsewhere. In Seaton v. East Windsor Speedway Inc., 400 Pa. Super. 134, 139, 582 A.2d 1380, 1383 (1990), the court noted that “[h]e was not compelled to sign it [the release], but rather chose to sign it in order to go into the pit. He did not depend upon working at the racetrack for his livelihood. In fact, he worked full-time at Coplay Cement.” In this case, the plaintiff was not compelled to sign the release, since she was free to select another school without such requirements. The court, therefore, finds this argument unpersuasive.

Additionally, the claims that plaintiff did not read the release will not invalidate the release. See Seaton v. East Windsor Speedway Inc., 400 Pa. Super. 134, 140, 582 A.2d 1380, 1383 (1990) (“a releasor can ordinarily not avoid the effect of a release upon the ground that at the time he signed the paper he did not read it or know its contents, but relied on what another said about it”).

Plaintiff’s last argument is that the release does not release defendants from their own negligence and that releases hmiting liability are disfavored at law. See Brown v. Racquetball Centers Inc., 369 Pa. Super. 13, 15-16, 534 A.2d 842, 843 (1987). Plaintiff’s argument is based on the following language found in the release at paragraph 4:

“Rider agrees to hold manager/instructor and all successors, assigns, subsidiaries, franchisees, affiliates, officers, directors, employees and agents completely harmless and not liable and releases them from all liability whatsoever and agrees not to sue them on account of or in connection with any claims, causes of action, injuries, damages, costs or expenses arising out of rider’s use or presence upon manager/instructor’s property and facilities, including without limitation those based on death, bodily injury, property damage, including consequential damages except if the damages are caused by the direct, willful and wanton and gross negligence of the manager/ director.” (emphasis added)

Plaintiff suggests the defendant used a form referencing California law and claims that the reference to the term “direct negligence” is confusing and that it should not bar plaintiff from bringing suit in this instance. While direct negligence is not defined, wanton conduct has been defined as:

“Wanton misconduct... means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences.” Krivijankski v. Union Railroad Co., 357 Pa. Super. 196, 203-204, 515 A.2d 933, 936 (1986).

Plaintiff argues that D.L.M. was negligent in allowing the horses to come within range of each other against the rules of the ring. While this may be negligent, this act or omission does not rise to the level of “wanton.” Plaintiff also argues that since the release was drafted based on California law and direct negligence is unclear, the release should be found invalid. The court finds this argument unpersuasive. Clearly, the language direct, wanton and willful describes conduct rising above basic negligence. Additionally, the release states that it is the rider’s responsibility to obtain their own insurance coverage, which indicates the document was intended to relieve the defendant school from liability for negligence.

The court finds that the release is effective and summary judgment should, therefore, properly be granted.

For the foregoing reasons, defendant Donna Lombardi-Martelli, indiv. and d/b/a D.L.M. Equestrian School Inc.’s motion for summary judgment is granted.

ORDER

And now, August 3, 1999, upon consideration of defendant Donna Lombardi-Martelli, indiv. and d/b/a D.L.M. Equestrian School Inc.’s motion for summary judgment, plaintiff’s response thereto, and oral argument, it is hereby ordered and directed that defendant Donna Lombardi-Martelli, indiv. and d/b/a D.L.M. Equestrian School Inc.’s motion for summary judgment be and is hereby granted for the reasons expressed in the memorandum opinion attached.