author: WALSH, P.J.,

text:
    Kryeski v. Schott Glass Technologies Inc.

      Peter Loftus, for plaintiffs.

      John J. Meyers, for defendant.
    January 18, 1991
   WALSH, P.J.,

Today we are called upon to consider the preliminary objections of defendant, Schott Glass Technologies Inc., in the above-captioned action. Plaintiffs, Sarah and Ronald Kryeski, have filed. an eight-count complaint against Schott which includes: sexual harassment and discrimination, personal injury, intentional infliction of emotional distress, conspiracy, libel and slander, invasion of privacy, loss of consortium and punitive damages.

Defendant has filed preliminary objections to all counts except the sexual harassment and discrimination count. Defendants have raised a question of jurisdiction in regard to count II, personal injury, and count III, intentional infliction of emotional distress. Defendant has also demurred to count III, intentional infliction of emotional distress, count IV, conspiracy, count VI, invasion of privacy, and count VII, loss of consortium. Defendant has motioned to strike count VIII, punitive damages, and they have also motioned to strike certain scandalous and impertinent matters. Defendant finally motions for a more specific pleading in regard to count V, libel and slander.

Plaintiffs have made several allegations in support of their complaint. Sarah Kryeski was hired by Schott in 1972 as a clerk typist. She remained in this position until 1982 when she was transferred to the laboratory as an assistant lab technician. Plaintiff claims that in July 1987 she was approached by a male lab supervisor at a party. The supervisor made advances on Mrs. Kryeski by placing his hands on her. Mrs. Kryeski did not acquiesce to these advances. She maintains that those female employees who did succumb to the supervisor’s advances were given promotions, salary increases and additional training. Mrs. Kryeski asserts that her refusal to get involved with the supervisor led to retaliation by the supervisor and other employees against her. In support of these accusations she notes that a female R&D technician was receiving senior lab technician’s salary, but she was only assigned lab assistant responsibilities. The former R&D technician did not possess a high school diploma or GED equivalency. Plaintiff claims that she had to perform or assist this woman on many of the tasks assigned to her. The former R&D technician was then promoted over plaintiff as a senior lab technician. Plaintiff avows that the newly appointed senior lab technician was having an affair with the optical properties supervisor which is how she achieved her current status. Plaintiff believes the only way for advancement in the company is to give in to these sexual advances.

Plaintiff thereafter complained to the company’s manager of human resources about the sexual harassment, all to no avail. After this complaint, plaintiff’s desk was moved into a compressor room which was extremely loud and hot. She asked her supervisors to move the desk. The supervisors refused her request. Plaintiff then complained to the safety committee who moved her desk into an office with the former R&D technician who was promoted over her. Mrs. Kryeski claims this was another attempt to harass her by putting her in a room with the very person who allegedly used her promiscuity for company advancement.

Another employee brought suit against the company for age and sex discrimination after he had been terminated. Plaintiff was requested to testify on his behalf. Before plaintiff testified her supervisors asked her to change her testimony. The supervisors also informed her that the previous complaints by plaintiff had been redacted from her file. Notwithstanding this, plaintiff refused to change her story.

As time progressed, plaintiff claims she was being continually harassed concerning office procedures, certain measurements she had taken and using a wrong control for a specific type of glass.

On February 27, 1989 plaintiff notified Schott that she had to leave work due to work-related stress. Plaintiff’s doctor provided a note which was given to the company’s nurse. On March 3, 1989, plaintiff sought the services of a psychologist, who advised her to remain out of work until at least March 20, 1989. Plaintiff notified Schott that she had received a work-related injury on February 16, 1989, and that she was entitled to workmen’s compensation. The company denied her claim.

Plaintiff filed a complaint with the Pennsylvania Human Relations Commission on June 19, 1989. The commission held a fact-finding conference. On September 18, 1989 plaintiff was questioned by the company’s human resource manager concerning the testimony plaintiff gave at the fact-finding conference. Other witnesses who had witnessed the advances were also questioned. Although plaintiff’s testimony was corroborated action was still not taken. Plaintiff claims this discrimination and harassment continues to this day and that the agents, servants'and employees of Schott have made statements claiming plaintiff is crazy and emotionally unstable.

Count II and III of plaintiff’s complaint states a cause of action for personal injuries to plaintiff’s nerves and nervous system and intentional infliction of emotional distress which have rendered plaintiff sick and infirm. Defendant filed a preliminary objection in the nature of a petition raising a question of jurisdiction. It is the defendant’s contention that workmen’s compensation provides the sole and exclusive remedy for plaintiff under these two theories of recovery.

Section 303(a) of the Pennsylvania Workmen’s Compensation Act provides in pertinent part:

“(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employee, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.” 77 P.S. §481.

The Pennsylvania Supreme Court has held that the Workmen’s Compensation Act covers all injuries and the exclusivity clause bars tort actions flowing from any work-related injury. Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983). The act defines injury as follows:

“(1) The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employee, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury. . .. The term ‘injury arising in the course of his employment, as used in this article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment. . . ” 77 P.S. §411(1). (emphasis supplied)

Subsection 301(c)(1) of the act therefore creates a narrow exception to the exclusive nature of the act. Plaintiffs claim that they come under this exception.

In order to succeed on such an argument, plaintiffs must allege and prove that defendant’s acts were intentional in nature and committed because of reasons personal to defendant’s supervisors and agents. Counts II and III do contain the requisite allegations of intentional acts. Plaintiff claims to be sick and infirm because of the outrageous, intentional, wanton and malicious conduct of defendant. (Complaint paragraph 75.)

The decisive issue is whether defendant’s supervisors and agents acted intentionally because of reasons personal to them and not directed against plaintiff as an employee or because of her employment. Counsel for plaintiff argues that the ultimate objective behind the supervisors and agents conduct was to put plaintiff in such a position that she would have to acquiesce to the sexual advances. Plaintiff contends that sex is not an activity employees would generally be engaged in for furtherance of the business or affairs of the employer. It is further alleged that the retaliatory conduct commenced after plaintiff refused the sexual advances. We find the conduct and response of the supervisor to plaintiff’s refusal to cooperate was personal and in no way advanced or could have advanced the company’s business.

Plaintiff relies on Gillespie v. Vecenie, 292 Pa. Super. 11, 436 A.2d 695 (1981), in which the Superior Court upheld a cause of action by an employee against his employer when the employee was assaulted on the employer’s premises by a fellow employee. The court noted that the employee had pled sufficient facts, which if ultimately proven would show that the employee tort-feasor acted out of personal animosity, thereby taking the suit out of the exclusivity of the Workmen’s Compensation Act. Id. Our Superior Court has also held that the definition of injury, as relied on by plaintiff, specifically excludes from the act’s coverage an assault or attack by third persons because of personal animosity against the employee which does not result because of the relationship between employer and employee. Mike v. Borough of Aliquippa. 279 Pa. Super. 382, 421 A.2d 251 (1980).

As stated previously, plaintiff has pled numerous allegations in support of her claim which include among others: sexual discrimination, retaliation (placing plaintiff’s desk in a compressor room, etc.), requests and demands to have plaintiff commit perjury, oppressive work atmosphere, denial of promotions, tedious tasks, unwarranted reprimands and statements claiming she is crazy and unstable. It is readily apparent that such behavior and acts are manifested in plaintiff’s refusal to partake in the sexual advances. The supervisors and agents’ conduct was an intentional attempt to make plaintiff’s work day and life as miserable as possible. Because such conduct was performed to somehow soothe the supervisors male ego, we find that the retaliation was done for reasons personal to him and under the injury exception in 77 P.S. §411 and that this claim is not covered by the Workmen’s Compensation Act.

Count III of plaintiffs’ complaint (intentional infliction of emotional distress) is objected to on grounds that plaintiff has failed to state a cause action for which relief can be granted. Section 46 of the Restatement (Second) of Torts provides:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

The Pennsylvania Supreme Court has had occasion to consider the tort of intentional infliction of emotional distress in Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 988 (1987). The Kazatsky court stated that they have acknowledged the existence of the tort of intentional infliction of emotional distress as stated in section 46 of the Restatement (Second) of Torts, but they never had occasion to specifically adopt section 46 as the law in Pennsylvania. Plaintiff’s failure to establish a right of recovery in Kazatsky prompted the court “to leave to another day the question of the viability of section 46 in this Commonwealth.” The court further stated that “if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Plaintiff has alleged that she is currently seeing a psychologist to deal with her emotional instability.

A dichotomy exists in the Superior Court as to whether intentional infliction of emotional distress is recognized in Pennsylvania. In Daughen v. Fox, 372 Pa. Super. 405, 539 A.2d 858 (1988), the Superior Court stated that “[o]ur court has stated that section 46 of the Restatement (Second) of Torts has been adopted in Pennsylvania.” (citations omitted) However, a different panel of the Superior Court held that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania. Ford v. Isdaner, 374 Pa. Super. 40, 542 A.2d 137 (1988), appeal denied, 520 Pa. 617, 554 A.2d 509 (1988). The majority opinion in Ford stated:

“Kazatsky makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania.” Although Judge Melinson concurred in the result, he expressly disagreed with the majority’s interpretation of Kazatsky by stating:
“I disagree with the majority’s interpretation of Kazatsky. The majority states that Kazatsky ‘makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania.’ In Kazatsky, the Supreme Court of this Commonwealth held that a plaintiff must present competent medical evidence of intentional infliction of emotional distress.” Ford v. Isdaner, 374 Pa. Super. 40, 542 A.2d 137 (1988). (citation omitted)

In light of the Supreme Court’s decision in Kazatsky, we concur with Judge Melinson and the Daughen panel’s conclusion that the tort of intentional infliction of emotional distress is recognized in Pennsylvania. Accordingly, we find that plaintiff has set forth a cause of action in count III of her complaint. Plaintiff will have the opportunity to present competent medical testimony as she states in her complaint. Whether plaintiff has pled sufficient facts to establish extreme and outrageous conduct is best left to be decided in a motion for summary judgment. A decision concerning the out-rageousness of the conduct without all of the pleadings would be prejudicial to both parties.

Defendant next contends that plaintiffs’ complaint fails to allege facts sufficient to state a cause of action for civil conspiracy. To establish a civil conspiracy plaintiff must demonstrate that two or more persons combined or agreed with the intent to do an unlawful act or to do an otherwise unlawful act by unlawful means. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466 (1979). The requirement that two or more persons are necessary for the conspiracy to exist has not been established by plaintiff. Plaintiff claims that defendant conspired with its employees and agents. A conspiracy requires two conspirators. Thompson Coal Co., supra. The courts have consistently held that a corporation and its employees are not capable of a civil conspiracy. Chambers Development Company Inc. v. Browning-Ferris Industries, 590 F.Supp. 1528, 1541 (1984). Plaintiff has not cited any case law in support of their proposition that a corporation can conspire with its agents and employees. Therefore, we hold that defendant could not have conspired with its employees and the allegation of a civil conspiracy is dismissed for failure to meet the elements of that cause of action.

Defendants have also demurred to count VI of plaintiff’s complaint which is entitled invasion of privacy. The Commonwealth has adopted the Restatement (Second) of Torts §652 D which provides:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
“(a) would be highly offensive to a reasonable person, and
“(b) is not of legitimate concern to the public.”

Presently, defendant claims plaintiff has failed to state a cause of action for invasion of privacy because plaintiff failed to allege publication. However, plaintiff specifically alleged publication in paragraph 87 of her complaint. The preliminary objection is denied and the sufficiency of publication can be addressed by a motion for summary judgment.

Defendant has also demurred to plaintiff’s husband’s claim for loss of consortium. Since plaintiff has stated causes of action in counts II, III and VI, the claim for loss of consortium is viable and does state a cause of action for which relief may be granted. Defendant’s preliminary objection to count VII is denied.

Defendant next seeks to have alleged scandalous and impertinent matters stricken from the complaint as allowed by Pa.R.C.P. 1017(b)(2). The scandalous and impertinent material is contained in plaintiffs’ complaint, paragraphs 9, 18, 21, 30, 33, 34 and 35. These paragraphs contain allegations of sexual discrimination, office affairs, perjury and alteration of employee records.

Scandalous matters consist of any unnecessary allegation which bears cruelly upon the moral character of an individual, or states anything which is contrary to good manners, or anything which is unbecoming to the dignity of the court to hear, or which charges some person with a crime not necessary to be shown. Fromm v. Fromm, 42 D.&C. 2d 77, 83 (1967). When the allegations do not appear to be wholly irrelevant in every particular, the allegations will not be stricken. Id. The aforementioned paragraphs go to the heart of plaintiffs complaint and are wholly relevant. Defendant’s objection is without merit and therefore denied.

Plaintiff also seeks punitive damages and separately sets forth a cause of action for such in count VIII. A demand for punitive damages in a separate count with no cause of action stated in the count violates Pa.R.C.P. 1020(a). Rule 1020(a) provides: “[ejach cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.” Count VIII does incorporate by reference all preceding paragraphs of the complaint. However, the appropriate method in seeking punitive damages is to request such damages in each separate count of the complaint in accordance with Pa.R.C.P. 1020(a). Accordingly, plaintiffs must amend their complaint in conformity with Rule 1020(a).

Finally, defendants request a more specific pleading in regard to plaintiff’s claim for defamation. “A complaint for defamation must, on its face, identify specifically what allegedly defamatory statements were made and to whom they were made.” Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988). The complaint merely contains a general averment that defendant, through its agents and employees circulated untruths, false stories, and outward lies about plaintiff. There was no allegation as to what was said, who said it, or when it was said, as required by Pa.R.C.P. 1019(c). Accordingly, defendant’s request for a more specific pleading as to the defamation count is granted.

ORDER

Now, January 18, 1991, the following are hereby ordered and decreed:

(a) Defendant’s preliminary objection in the nature of a demurrer to count IV, civil conspiracy, is sustained;

(b) Defendant’s motion for a more specific pleading to count V, libel and slander, is sustained;

(c) Defendant’s preliminary objections to count II — personal injury, count III — intentional infliction of emotional distress, count VI — invasion of privacy, count VII — loss of consortium and defendant’s motion to strike scandalous and impertinent matter are denied; and

(d) Plaintiff shall amend their complaint by requesting punitive damages in each of the separate following counts of the complaint: counts II, III, V, VI, and VII, consistent with Pa.R.C.P. 1020(a).

       Justice Larsen in his concurring opinion states his approval of the adoption of section 46 and further stated that “I believe that the majority has by implication adopted section 46 in this case.” Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 989 (1987). Justice Papadakos also voiced his approval of section 46 in his concurring opinion in Kazatsky and he stated, “Because I believe that the language of section 46 of the Restatement of Torts is most appropriate for our needs in Pennsylvania, I have no hesitancy in adopting section 46 as the law in Pennsylvania.”


source: Caselaw Access Project

author: SPICER, P.J.,

license: Public Domain

text:
    Nationwide Mutual Insurance Co. v. Cover

      Jered L. Hock, for plaintiff.

      Mark David Frankel, for defendants James E. Cover and Ether M. Cover.
    March 6, 1991
   SPICER, P.J.,

Nationwide Mutual Insurance Company (Nationwide) has brought this declaratory judgment proceeding seeking judicial determination of two issues. One involves the refusal by another carrier to extend coverage and is not presently pertinent. The other involves policy provisions relating to benefits available to the insureds, James E. Cover and Ethel M. Cover. Nationwide alleges that it has paid policy limits for uninsured/underinsured coverage and should not be forced to arbitrate Mr. Cover’s demands for loss of consortium damages.

The Covers have filed preliminary objections and seek to dismiss this action because of their previously made demand for arbitration.

Although Nationwide’s request may appear reasonable, this court holds that all questions concerning policy coverage must be determined in accordance with the arbitration clause in the policy. Therefore, we sustain preliminary objections and dismiss this action as it relates to the Covers. This decision is made despite authority urged upon us and discussed, infra.

Policy provisions which apply to this case read as follows:

“If we and the insured do not agree about the insured’s right to recover damages or the amount of damages, the following arbitration procedure will be used:
“After written demand for arbitration by either party, each party will select a competent and disinterested arbitrator. The two so selected will select a third. If selection of the third arbitrator cannot be agreed upon within 30 days, the insured or the company may request that selection be made by a judge of a court of record in the county and state in which arbitration is pending. Each party will pay its chosen arbitrator, and bear equally expenses for the third and all other expenses of arbitration.
“Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.” Complaint, Exhibit A, at 12.

It is the court’s opinion that this language covers all disputes, including interpretation of policy provisions in light of applicable law.

Nationwide cites several federal cases in support of its position that it is entitled to judicial determination about the viability of Covers’ claim. It is, of course, entitled to have its complaint allegations viewed as true, with all favorable inferences to be drawn. Franklin Chalfont Associates v. Kalikow, 392 Pa. Super. 452, 573 A.2d 550 (1990). However, since we deal with matters of contract interpretation, that principle has little impact on our decision.

Federal cases cited by Nationwide seem rooted in the Pennsylvania Supreme Court ruling in Women’s Society for the Prevention of Cruelty to Animals v. Savage, 440 Pa. 34, 269 A.2d 888 (1970), wherein it was said:

“The issue of whether this dispute is one that is covered by the terms of the arbitration agreement is one for the court to determine. Westmoreland H. Assn. v. West. Const. Co., 423 Pa. 255, 223 A.2d 681 (1966); Phila. Mar. Assn. v. Longshoremen’s Assn., 382 Pa. 326, 115 A.2d 733 (1955). As Chief Justice Stern explained in his opinion in Phila. Mar. Assn., supra at 336, 115 A.2d at 738:
“ ‘The construction of a contract to determine what questions the parties have agreed therein to submit to arbitration is one, not for the arbitrators themselves, but for the court to decide, and the court will not readily infer that it was intended to empower the arbitrators to determine the extent of their own jurisdiction: International Association of Machinists v. Cutler-Hammer Inc., 61 N.Y.S. 317 (affirmed 297 N.Y. 519, 74 N.E. 2d 464); B. Fernandez & Hnos., S. en C. v. Rickert Rice Mills Inc., 119 F.2d 809, 814, 815.’” 440 Pa. at 36, 269 A.2d at 890.

In line with this, the Third Circuit has said:

“State Farm’s position is correct. It is well-settled law in Pennsylvania that:
“ ‘When a party to an agreement seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the question of (1) whether an agreement to arbitrate was entered into and (2) whether the dispute involved comes within the ambit of the arbitration provision.’ ” Myers v. State Farm Insurance Co., 842 F.2d 705, 707 (1988).

The District Court has echoed these statements:

“It is well established law in Pennsylvania that a party against whom arbitration is sought under an agreement to arbitrate has a right to a judicial determination of two issues: First, the court may determine whether the parties entered into an agreement to arbitrate, and second, the court may determine whether the dispute at issue falls under the agreement. Myers v. State Farm Insurance Co., 842 F.2d 705, 707 (3d Cir. 1988); Allstate Insurance Co. v. Gammon, 838 F.2d 73, 76, (3d Cir. 1988). The Third Circuit has held that Pennsylvania law requires that agreements to arbitrate be strictly construed, and they are not to be extended beyond their terms. Gammon, 838 F.2d at 76.” Nationwide Mutual Insurance Co. v. Bodenschatz, 715 F.Supp. 684, 685 (1989).

If our consideration ended here, we would follow the lead of our distinguished federal brethren and proceed to adjudicate the issue raised by Nationwide. In the words of the District Court, we would determine whether conditions sufficiently trigger policy application before deciding preliminary objections. This, in effect, would decide Nationwide’s declaratory-judgment action.

We agree that the court must determine initially if there is an issue to arbitrate. From that point, we part company with Nationwide’s position. We do not agree that the central issue of this case must be adjudicated in deciding arbitrability. Nationwide wants us to hold, as a matter of law and contract interpretation, that once it has paid policy limits, it cannot be forced to pay for loss of consortium. At present, the issue is not whether this position is correct, but who is entitled to make it. Phrased a different way, the question becomes whether this court should look beyond the arbitration clause and interpret other provisions of the policy. Since there is no question that the disagreement between the parties involves coverage, we hold that we are limited to provisions of the arbitration clause.

First of all, it is no longer true that arbitration is viewed with a hoary eye. In insurance matters, there is a “policy favoring the arbitration of all coverage related issues.” Hade v. Nationwide Insurance Co., 349 Pa. Super. 541, 547, 503 A.2d 980, 983 (1986). The Superior Court also said, citing National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968), that when policy language permits, “any dispute related to coverage should be arbitrated, not just those related to the claimant’s right to recover.” Hade, supra.

Although it is a court function to determine if a given dispute is within the terms of an arbitration agreement, a grievance is outside the arbitration clause only when it can be said with positive assurance that the clause was never intended to embrace the issue. Id.

In Hade, Superior Court, while expressing some serious reservations, could still not conclude with positive assurance that agent misconduct was beyond arbitration language. An award of $300,000 was sustained.

Supreme Court has cited Hade with approval for the propositions that “any issue relating to coverage is within the purview of the arbitration clause.” Brennan v. General Accident Fire & Life Assurance Corp., 524 Pa. 542, 574 A.2d 580 (1990).

In Brennan, arbitrators considered issues neither pursued nor raised by counsel, went beyond the main issue stated and considered facts, terms, provisions of the policy and applicable law to reach a fair and just decision. The approval was affirmed.

In Lamar v. Colonial Penn Insurance Company, 396 Pa. Super. 527, 578 A.2d 1337 (1990), arbitration was directed when the issue was the insureds’ intent to procure policy limits of $100,000 instead of the policy statement of $15,000.

Pennsylvania decisions have made it clear that when a policy states that all disputes shall be litigated, it means all disputes. As in the case before us, when a dispute concerns coverage or construction, it falls within the arbitration clause if the language so provides. If we were to look beyond the arbitration clause to interpret other policy provisions we would be, in the words of Hade, supra, compounding court proceedings upon the arbitra-tions process and would be resolving the veiy issue that the parties agreed to arbitrate.

We find no reason to retreat from this position. There are no issues of public policy which dictate a contrary result, such as were present in Kester v. Erie Insurance Exchange, 399 Pa. Super. 206, 582 A. 2d 17 (1990).

ORDER OF COURT

And now, March 6, 1991, preliminary objections filed by defendants Cover are sustained and the complaint is dismissed as to them.

       Perhaps we should observe that cases dealing with common-law arbitration differ from statutory arbitration only in the extent to which judicial review is available. All other principles are the same. Id. We deal with statutory arbitration, and review rights are considerably broader than were common-law arbitration involved.


author: O’BRIEN, J.,

text:
    Warenczuk v. PennDOT

      Frank M. O’Neill, assistant counsel-in-charge, for PennDOT.

      Wieslaw T. Niemoczynski, for petitioner.
    March 1, 1991
   O’BRIEN, J.,

FINDINGS OF FACT

(1) On May 24, 1990, at approximately 9:30 p.m., a Pennsylvania state policeman observed petitioner driving erratically on U.S. Route 611.

(2) When the officer stopped petitioner’s vehicle, he observed a strong odor of alcohol about petitioner.

(3) Since petitioner spoke only Polish, the officer was unable to communicate with him and therefore did not request him to take any field sobriety tests.

(4) The officer placed petitioner under arrest and took him to the state police barracks.

(5) The officer had petitioner sign a waiver of Miranda rights form and on the form the officer indicated that petitioner “does not understand.”

(6) The officer explained the implied consent law to petitioner in English but petitioner did not understand this explanation since he only spoke Polish. The officer did not seek the assistance of any Polish-speaking person to explain these provisions of law to petitioner.

(7) The officer submitted a report of refusal to submit to chemical testing to the Department of Transportation dated May 24, 1990. Petitioner did not know such a report was submitted.

(8) The Department of Transportation prepared an “official notice” with a mail date of June 8, 1990 addressed to petitioner stating that his driving privileges were suspended for a period of one year because of his refusal to submit to a chemical test.

(9) Petitioner never received the “official notice” of the suspension of his operating privileges.

(10) On October 8, 1990, petitioner’s driver’s license was confiscated by the Pocono Township Police on the occasion of a traffic stop for other purposes. Petitioner filed an appeal concerning the license suspension on October 15, 1990.

(11) On October 15, 1990, petitioner was accepted by another judge of this court into the Accelerated Rehabilitative Disposition Program for driving under the influence of alcohol. One of the conditions imposed in conjunction with the ARD was a 90-day license suspension.

DISCUSSION

The substantive issue in this case of whether or not petitioner’s alleged refusal of the chemical test was knowing and conscious is easily resolved. The trooper candidly testified that petitioner did not understand English sufficiently well for him to explain the field sobriety test. Subsequently when the trooper explained the Miranda rights at the state police barracks, he noted on the form that petitioner did not understand them. The officer did not testify that he believed petitioner understood the implied consent law provisions. Petitioner testified, with the aid of his Polish-speaking attorney, that he did not understand what the officer told him. Therefore, we conclude that petitioner has met his burden of establishing that he was incapable of making a knowing and conscious refusal. Department of Transportation v. Kyong Rok Yi, 128 Pa. Commw. 117, 562 A.2d 1008 (1989).

However, a resolution of the substantive issue does not end our inquiry in this case. The Commonwealth made a motion at the time of hearing to quash the appeal because it was filed more than 30 days following the “mail date” of the notice of suspension. Counsel for the Commonwealth correctly cites 42 Pa.C.S. §§5571(b) and 5572 for the proposition that the appeal must be filed within 30 days of the entry of the order of suspension by the Department of Transportation. Indeed our Commonwealth Court has held that a trial court is without subject matter jurisdiction to entertain an untimely appeal. Windrick v. Commonwealth, 80 Pa. Commw. 401, 471 A.2d 924 (1984). On the other hand, counsel for petitioner points out that there is no proof of record that the notice was mailed in the usual course of business or ever received by petitioner. Therefore, counsel for petitioner argues that the motion to quash should be denied and the issued decided on its merits.

The continuing refusal of the Department of Transportation to send notices of license suspensions by certified mail, or some other means where there is proof of receipt, cause recurring dilemmas for trial courts. On numerous occasions, trial courts are confronted with the allegation by a driver that he never received notice of the suspension. Determining whether these allegations are true or merely a fabricated excuse is not easy. This is particularly true in view of the numerous administrative errors by the Department of Transportation which are established in various evidentiary proceedings before this court. Frequently these allegations are raised in summary criminal proceedings where a driver is charged with the offense of driving under suspension. In Commonwealth v. Gray, 356 Pa. Super. 299, 514 A.2d 621 (1986), our Superior Court affirmed a' summary criminal conviction but dropped the following hint to the Department of Transportation:

“It is our concern in these cases that a driver convicted of driving while his license is suspended had actual notice of the suspension. We are concerned with the reliability, of notice by mail as there generally is not proof of actual receipt. It is curious that the bureau does not send a notice as important as a notice of suspension of driving privileges by certified or registered mail, where a return receipt can be used to show actual notice.”
However, when the department failed to take the hint, our Superior Court reversed a summary criminal conviction for failure to prove notice beyond a reasonable doubt. Commonwealth v. Taylor, 390 Pa. Super. 571, 568 A.2d 1320 (1990).

On the civil side, we receive numerous petitions requesting allowance of appeals nunc pro tunc from license suspensions. Frequently, these petitions come from drivers who claim they did not know they had been suspended until they were stopped for a subsequent traffic violation. However, our authority over such appeals is limited to circumstances which are equivalent to fraud or a breakdown in the operations of the court. Riddle v. Commonwealth of Pennsylvania, Department of Transportation, 136 Pa. Commw. 508, 583 A.2d 865 (1990). The absence of any statutory requirements for the department to send their notices by certified or other mail evidencing receipt establishes that the legislature has not imposed such a requirement. However, our appellate courts have held that a driver’s license cannot be revoked without the procedural due process required by the 14th Amendment. Brewster v. Commonwealth of Pennsylvania, Department of Transportation, 94 Pa. Commw. 277, 503 A.2d 497 (1986). Enforcing the due-process requirements of the 14th Amendment is the province of the courts and not the legislature.

In the case at bar, the only evidence offered by the Commonwealth to fix the date from which petitioner’s time for appeal began to run, is the “official notice” containing a “mail date of June 8, 1990.” While the certification page of Commonwealth’s exhibit 1 includes a statement “official notice of suspension dated and mailed 6/8/90,” our Commonwealth Court has held in Groff v. Bureau of Traffic Safety, 78 Pa. Commw. 580, 467 A.2d 1224 (1983), that the certification page may not be considered as evidence but only the official documents which it certifies. There is no evidence in the instant case to establish that the document was in fact mailed in the ordinary course of business. In Commonwealth of Pennsylvania, Department of Transportation v. Brayman Construction Corp. —Bracken Construction Co., 99 Pa. Commw. 373, 513 A.2d 562 (1986), the court held that the mailbox rule, upon which the Commonwealth relies in the case at bar, applies only when there is evidence that the document was in fact mailed. In the Brayman case, supra, as in the case at bar, no evidence was presented that the letter was written in the regular course of business nor was any evidence presented that the letter was in fact placed in the regular place of mailing. In Brayman, supra, as in the case at bar the Commonwealth relies on the fact that they have a copy of the letter in their file to establish that the letter was in fact mailed. This was found insufficient by our Commonwealth Court and we conclude is insufficient in the case at bar to support the Commonwealth’s motion to quash the appeal as untimely. See also, Moore v. Commonwealth, Department of Public Welfare, 129 Pa. Commw. 19, 564 A.2d 555 (1989).

On a previous occasion, our Commonwealth Court addressed the quandary of the licensee who filed an appeal contesting his suspension, thereby gaining an automatic supersedeas, but failed to provide notice of the appeal to the Commonwealth. In McNeilis v. PennDOT, 119 Pa. Commw. 272, 546 A.2d 1339 (1988), our Commonwealth Court squarely dealt with this issue in enunciating a new procedure to remedy the problem of proving perfection of service of appeal. Citing the unjustified extension of operating privileges which may accrue to motor vehicle operators by simply filing an appeal petition without perfecting the appeal through notice to the Commonwealth, Judge Craig (now President Judge of the Commonwealth Court) held that under 75 Pa.C.S. §1550, the person appealing shall effect service upon the department by certified mail, return receipt requested. We note the irony that, under McNeilis, a motorist is mandated to send a copy of his notice of appeal by certified mail to the department, while the department need only send by first-class mail a notice of suspension of operating privileges. We invite the Commonwealth Court to impose the same requirement of notice upon the Commonwealth so as to remedy the problem illustrated by the facts in the case at bar. The provisions of Pa.R.C.P. 403, which deal with service of process in any civil proceeding, would provide adequate protection for the Department of Transportation from the driver who refuses to accept certified mail.

CONCLUSIONS OF LAW

(1) The officer had reasonable grounds to believe that petitioner was operating a motor vehicle while under the influence of alcohol.

(2) Petitioner was not informed of the implied consent law in any means cognizable to him.

(3) Petitioner did not make a knowing and conscious decision to refuse to submit to the chemical test to determine blood alcohol content.

(4) The Commonwealth has failed to establish that petitioner’s appeal was untimely filed.

ORDER

And now, March 1, 1991, the order of the Department of Transportation of the Commonwealth of Pennsylvania dated June 8, 1990 suspending the driving privileges of Zdzislaw Warenczuk for a period of one year is reversed.


author: KAYE, J.,

text:
    Kosar v. PennDOT

      Philip L. Zulli, assistant counsel-in-charge, for the Commonwealth.

      David C. Wertime, for petitioner.
    September 14, 1990
   KAYE, J.,

In this proceeding, Franklin J. Kosar challenges the action of the Pennsylvania Department of Transportations’s action in suspending his operating privileges for one year for violation of 75 Pa.C.S. §1547, i.e., for failing to submit to a test to determine the alcohol content of his blood. In his petition, Mr. Kosar alleges, in the alternative, that: (1) he was not driving, operating or in actual physical control of the movement of a motor vehicle; and (2) he was not advised that a failure to comply with the proffered test would result in a suspension of his driver’s license for one year.

A hearing thereon was held on August 16, 1990, the parties have submitted memoranda of law in support of their respective positions, and the matter is before the court for resolution.

On May 5, 1990, at about 11:30 p.m., Officer Stephen T. Bourn of the Borough of Greencastle Police Department was on patrol on Carl Street in the borough where he observed a white vehicle parked along the street, extending about one foot beyond the line of other vehicles parked along the street. After close examination, he determined that a white male, whom he identified as petitioner, was asleep behind the steering wheel, and the keys were in the vehicle’s ignition, although the engine was not running and the transmission was not in gear. The officer knocked on the auto window several times, and roused petitioner. After detecting the odor of alcoholic beverage about petitioner, he ordered petitioner out of the car.

Petitioner appeared to have blood shot eyes, and had difficulty in walking. After petitioner failed several field sobriety tests, the officer placed him under arrest for driving under the influence, 75 Pa.C.S. §3731. The officer explained the provisions of the implied consent law to petitioner, including the provision that if he refused to take the proffered test, his license would be suspended for one year. Petitioner told the officer that he would not submit to the test, and he was transported to Greencastle Police Headquarters.

At headquarters, petitioner once again was advised of the implied consent law by Officer Bourn, and was told he would be taken to Waynesboro Hospital for the test. Once again, petitioner refused to undergo the testing. Thereafter, petitioner was formally charged with driving under the influence, and was taken before a district justice for preliminary arraignment, following which he was released on his own recognizance.

On May 17,1990, PennDOT notified Mr. Kosar of the suspension of his driving privileges for violation of the “implied consent” provision of the Vehicle Code, 75 Pa.C.S. §1547, which provides in part as follows:

“(a) General rule — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating, or in actual physical control of a motor vehicle:
“(1) while under the influence of alcohol or a controlled substance or both;. . .” 75 Pa.C.S. §1547.

Petitioner claims initially that PennDOT’s action is illegal as the implied consent law is applicable in the factual scenario set forth in this case, viz, that he was not operating, driving or in actual physical control of the movement of a motor vehicle, and thus, the averment is, the police did not possess the authority to request that he submit to a blood alcohol test.

It is clear that for the implied consent provision to apply, the request for testing must be supported by reasonable grounds for the officer to believe that petitioner was in violation of the DUI law, 75 Pa.C.S. §3731(a). Commonwealth, Department of Transportation v. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987).

This case is somewhat unusual due to the fact that the petitioner was asleep in a lawfully parked vehicle, whose engine was turned off, and all mechanical and electrical features of the vehicle were turned off at the time of the officer’s observation. While the keys were in the ignition, the ignition switch was in the intermediate “on” position, which causes dashboard lights to be on, and the petitioner was sleeping heavily. At that time, the only additional information the officer possessed was that his department had received a complaint of a suspicious vehicle, presumably petitioner’s, at the location at which petitioner was found.

There is no question that the officer acted properly to inquire of petitioner’s intentions, and that his subsequent observations of petitioner could lead a reasonable person to conclude that petitioner was under the influence of alcohol to such an extent that he was incapable of safe driving. The more significant question is whether a person in the position of Mr. Kosar, and the information available to the officer at the time, would lead a reasonable person to believe that petitioner was driving, operating or in actual physical control of the movement of any vehicle. See 75 Pa.C.S. §1547(a).

Clearly, the officer did not have information that petitioner was “driving” the vehicle. The vehicle was not in motion, nor did the officer possess information that would lead a reasonable person to conclude that it had recently been in motion. However, the question remains as to whether the observations of the officer would allow a reasonable person in the position of the officer to conclude that petitioner was either operating or in actual physical control of the movement of the vehicle.

We have found no appellate case dealing with this precise factual scenario. However, in Commonwealth v. Crum, 362 Pa. Super. 110, 523 A.2d 799 (1987), the court dealt with interpreting these provisions:

“[T]he concept ‘actual physical control’ in the present chemical test section conveys the same meaning as that which the Superior Court had accorded to the concept of operating and having physical control as involving control of the movements of either the machinery of the motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion.” Crum, supra, citing from Commonwealth v. Farner, 90 Pa. Commw. 201, 205, 494 A.2d 513, 515-6 (1985).

In Crum, supra, defendant was found by a police officer slumped over the front seat of his motor vehicle which was parked along a state highway with its lights on and engine running. Those observations were found sufficient to constitute a violation of the DUI statute, on the ground the occupant was in actual physical control of the machinery of the vehicle. While the facts in Crum obviously are somewhat different than those in the instant case, most significantly the fact the engine was running and the lights were on in Crum, while they were not in the instant case, we nonetheless feel compelled to reach the same result.

We observe little logical difference in the two situations as, in either case, the intoxicated front seat occupant of the vehicle clearly was in a position to exercise control over the machinery of the vehicle. Crum simply would have had to reach the transmission lever to engage the vehicle to commence movement, while petitioner simply had to turn the key and move the transmission lever, and we think that in including the provision regarding “being in actual physical control of the movement of a motor vehicle” is intended to apply to this situation.

Further, it is noted that in a license suspension case based upon a violation of the implied consent law it is necessary that the Commonwealth prove four elements: (1) an arrest for DUI; (2) a request that the defendant submit to chemical testing; (3) a warning that refusal would result in a suspension of the operating privileges; and (4) a refusal. Luckey v. Commonwealth, 131 Pa. Commw. 155, 569 A.2d 1008 (1990). All four elements have been proven herein, and thus the Commonwealth has met its burden of proof. We note specifically that, contrary to petitioner’s assertion, we find that petitioner was warned of the effect of a refusal to submit to the testing.

Finally, petitioner alleges, as we understand it, that the police acted in a manner that did not comply with the requirements set forth in Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), in which it was held, inter alia, that:

“[W]here an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.”

There is a dispute in the instant case as to whether or not petitioner requested an attorney. We find more credible the officer’s testimony that petitioner made no such request, and thus the holding in O’Connell, supra, is inapplicable.

However, even if we accept petitioner’s version, which is that he requested an attorney, and was told he could not have one, in essence, in connection with the breathalyzer, the advice essentially was correct. As noted in Commonwealth, Department of Transportation v. Tomczak, 132 Pa. Commw. 38, 571 A.2d 1104 (1990), the rule established in O’Con-nell is applicable in a case where a person is confused about the interplay between the right to an attorney (from the Miranda warnings) and the request that he submit to a chemical test to determine the presence of alcohol. In O’Connell the confusion may have led the driver to refuse the proffered test in the mistaken belief he could consult with an attorney first.

In the instant case, there is no such confusion, even under petitioner’s version, in which he was flatly told he could not see an attorney prior to deciding on whether to take the proffered test. He was also told that his refusal would lead to a one-year suspension of his driver’s license, but he nonetheless refused to take the test, and we thus on a factual basis reject petitioner’s second argument.

Under the circumstances, we find PennDOT’s position is correct.

ORDER OF COURT

Now, September 14, 1990, the license suspension appeal of Franklin J. Kosar is denied, and the license suspension previously imposed by the Pennsylvania Department of Transportation may be reimposed upon due notice to petitioner by the Commonwealth.


author: SALUS, J.,

text:
    In re Pine Road

      David N. Bressler, for petitioner.

      Elizabeth Read, James Willhite and Richard T. Abell, for respondents.

      November 27, 1990
   SALUS, J.,

This is an appeal from our order dated September 28, 1990 and our order dated October 17, 1990 denying, upon reconsideration, appellant’s petition for appointment of a Board of View.

Appellant, Daniel Tabas, is the owner of a 44-acre parcel of land located in Lower Moreland Township. The property is presently undeveloped but the appellant plans to use the property for a single-family housing development. The only access to the property is via Lockhart Road. Pursuant to his plans for development, appellant sought to purchase a right-of-way over a portion of land owned by Red-side Properties Inc. (the appellees) in order to gain additional access to the property. As such attempts were unsuccessful, appellant sought to open a private road over the desired land and thereby filed a petition for appointment of a Board of View pursuant to 36 P.S. §2731 (Purdon 1961).

On April 24, 1990, this court signed an order appointing a Board of View. After the appellees asserted that such action was premature as they did not have the opportunity to respond to the petition, this court agreed to entertain a motion to reconsider petition for the appointment of a Board of View. After argument by the parties, we determined that the original petition failed to state the requisite information so as to require that a Board of View be appointed. The petition was thereby denied and this appeal followed.

Proceedings to open private roads are governed by Title 36 of the Pennsylvania Code, section 2731, which provides:

“The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made in the same manner as is directed by said act of June 13, 1836.” 36 P.S. §2731 (Purdon 1961). The few cases dealing with the above section have not read said provision to require the appointment of a Board of View in each and every situation. The Superior Court, in In re Private Road in Nescopeck Township, stated:
“Our reading of the aforementioned statute (section 2731) and the relevant cases decided thereunder convinces [sic] us that the singular issue raised on a rule to show cause why a Board of Viewers should not be appointed is whether the petition contains the requisite information so as to require that a board be appointed. ” 281 Pa. Super. 341, 344-5, 422 A.2d 199, 201 (1980) (emphasis supplied), citing Little Private Road, Peters Township, 35 Wash. Co. 75 (1956).

In Nescopeck, the court held that the petition satisfied the prerequisites necessary for the appointment of a Board of View as it stated in detail that the parcel was presently landlocked such that there was no means of ingress from the parcel to any public or private road. Id.

The petition in the instant case failed to set forth the requisite information needed to mandate the appointment of a Board of View. The petition contained the following information: (1) the property is presently undeveloped; (2) the property is not landlocked as it is accessible via Lockhart Road; and (3) for the purposes of development a private road was requested in order to provide an additional and convenient ingress to the property for those who will in the future live in the development. As the Superior Court stated in Application of Little:

“While the act does not require an absolute necessity, such as being completely landlocked, the mere inconvenience in the use of an existing road is not enough. Pocopson Road, 16 Pa. 15, 17. The existing road must be of a limited privilege, Stewart’s Private Road, 38 Pa. Super. 339, 342, or ‘extremely difficult and burdensome’ in its use, Brecknock Twp. Road, 1874, 2 Woodw. 437, to warrant the appropriation of another more convenient course. In short, the act is said to require the ‘strictest necessity.’ Plumcreek Twp. Road, 110 Pa. 554, 558, 1 Atl. 431; In re Private Road in Restone Twp., 112 Pa. 183, 184, 5 Atl. 383.” 180 Pa. Super. 555, 559, 119 A.2d 587, 589 (1956).

The petition at bar failed to allege sufficient facts to meet the strictest necessity standard as there was no demonstration that Lockhart Road is unfit for the present use of the land, which is still undeveloped. To condemn a private road over another’s land for the purposes of proposed future development is not what is intended by the act. In this case, as was the situation in Application of Little:

“What in essence the appellant is seeking here is in [sic] advisory determination by the viewers that she will have a cheap, easy and direct access to her contemplated development before she goes to the trouble of expending any money on it. While this may be desirable from an investment standpoint, it reckons without consideration of appellees’ right to have their property taken only where the strict necessity is determined on the basis of existing conditions.” 180 Pa. Super. at 560, 119 A.2d at 589.

As the appellant failed to allege the requisite foundation for the appointment of a Board of View, his appeal should be denied.


author: KIESTER, S.J.,

text:
    Commonwealth v. Dagnon

      William Shajfer•, assistant district attorney, for the Commonwealth.

      Alexander Lindsay, for defendant.
    February 8, 1991
   KIESTER, S.J.,

The amount of work that counsel for the Commonwealth and defendant have devoted to defendant’s omnibus pretrial motion is substantial. It is evidenced by the lengthy testimony (that has not been transcribed) and the voluminous briefs that have been filed with the court. The key issues raised by defendant are condensed as follows.

ISSUES

Does the law (75 Pa.C.S. §1547) require that a blood alcohol test be made on whole blood or is a test made on blood serum admissible in a DUI prosecution?

Does the law (75 Pa.C.S. §1547) require the Department of Health to promulgate rules and regulations adopting procedures and approving equipment in testing whole blood and/or blood serum for alcohol?

Is the result of a blood alcohol test obtained at the hospital laboratoiy by search warrant, the blood having been drawn for medical purposes and tested by the blood serum method in the treatment of defendant and not at the request of the Commonwealth, admissible in evidence on a DUI charge (75 Pa.C.S. §1547)?

Does the Commonwealth have a duty to investigate and disclose to defendant in discovery and pretrial proceedings as well as trial all the treatment received by defendant from the time of the accident to the withdrawal of the blood when the blood alcohol results are offered for forensic purposes as evidence in a DUI prosecution?

Counsel have raised other issues but the foregoing are the principal issues upon which the court will rule.

FACTS

Defendant is being charged and prosecuted for homicide by vehicle, DUI-related and other criminal offenses. Defendant was involved in an automobile accident. He was removed from the scene of the accident and taken to the Allegheny General Hospital. At the hospital blood tests were performed for routine medical and diagnostic purposes. They were not requested by defendant or by any police agency. The blood of defendant contained an alcohol content of 0.186 percent.

When Patrolman Daniel J. Hahn of the Cranberry Township Police Department arrived at the scene of the accident on April 15, 1990 he found defendant in the drivers seat and noticed an odor of alcohol on his breath. His investigation discovered that there was a head-on collision and that defendant’s vehicle was on the wrong side of the highway. He called for an ambulance.

On May 2, 1990 a search warrant issued and the Commonwealth obtained from Allegheny General Hospital the results of the blood alcohol test. Defendant has not attacked the validity of the search warrant.

The accident occurred before midnight on April 15. The blood of defendant was drawn at 1:40 a.m. and tested at 6:26 a.m. The treatment of defendant during those intervals was not developed. The source of the blood, i.e. arterial or venous, is not cleár.

At Allegheny General Hospital whole blood is taken and reduced by a centrifuge machine to remove red blood cells. The result is blood serum.

The alcohol content of the blood serum is measured on a DuPont ACA 5 (discrete clinical analyzer). Blood serum shows a higher percentage of alcohol than whole blood. Allegheny General Hospital uses a conversion table from Clinical Diagnosis and Management by Laboratory Methods. The conversion factor of 1.18 is the average for the entire population.

In the case of this defendant the technician divided the machine result of 0.186 percent blood alcohol content by a 1.18 percent factor to obtain for defendant a blood alcohol content of 0.158 percent.

Allegheny General Hospital is approved by the Department of Health to determine blood alcohol content by both blood analysis and blood serum analysis. (Pa. Bulletin July 8, 1989, at 2389.) Allegheny General Hospital does its blood alcohol testing by the blood serum method.

The Clinical Laboratory Act empowers the Department of Health to license “laboratories” and to adopt rules and regulations for the proper enforcement of the act with regard to:

“(1) Contents of application;
“(2) Adequacy of laboratory and equipment;
“(3) Means and standards of accuracy of laboratory procedures;. . .” 35 P.S. §§2151, 2161.1.

The Commonwealth through the Department of Health has not promulgated specific rules and regulations detailing how specimens for blood alcohol analysis must be collected and processed other than as hereinafter stated. Licensees are required to use good laboratory practices. The Pennsylvania Department of Health is a member of the National Committee for Clinical Laboratory Standards “and endorses the standards which it establishes. . .” “None of the [Pennsylvania] statutes [35 P.S. §2151 et seq.; Motor Vehicle Code 75 Pa.C.S. §§1547 and 3755] or the regulations promulgated pursuant to them have detailed instructions for collecting or processing specimens for blood alcohol analysis.” Letter dated February 13, 1989 of M. Jeffrey Shoemaker, Ph.D., Chief, Toxicology Section, Division of Chemistry & Toxicology, Bureau of Laboratories, Dept. of Health (def. exh. B); Proposed Guideline, Blood Alcohol Testing in the Clinical Laboratory, of NCCLS (def. exh. A).

Inter alia, the NCCLS document — Technical and Administrative Guidance on Laboratory Procedures Related to Blood Alcohol Testing — states:

“2.2 Types of specimens — When the term ‘blood’ is used in m.v. stats, whole blood is the universal meaning. Most state laws define the alcohol element of drinking/driving offenses wholly or partly in terms of blood alcohol concentrations. Hence, if blood rather than breath is to be analyzed for alcohol, either exclusively or primarily, in connection with traffic law enforcement, it is best to analyze whole blood. ” NCCLS document, supra, at 190-1. (emphasis supplied)

Section 2.2 continues with an explanation of the difference between whole blood and serum blood as to alcohol concentration. Commencing at 191 and continuing through 202 is a discussion of NCCLS standards for specimen collection, handling and preservation (section 2.3); specimen handling (section 2.4); chain of custody procedures (section 3.00); and methods of analysis (section 4.00).

It is again noted that proposed guideline T/DM6-P, titled Blood Alcohol Testing in the Clinical Laboratory, is endorsed as the standard for blood alcohol testing by the Pennsylvania Department of Health. (Def. exh. B.) The guidelines contain 214 pages, plus several pages of bibliography and sample forms.

DISCUSSION

The Commonwealth maintains that at the pretrial stage the trial court is not empowered to rule on the suppression of evidence unless the issue involves a violation of defendant’s constitutional rights.

In this case defendant does not claim a violation of any constitutional rights. What defendant does claim is that the admission of certain evidence would violate his statutory and legal rights and would be highly prejudicial to him.

Rules of Civil Procedure 323 (omnibus pretrial motion for relief) and 306 (suppression of evidence) provide the opportunity for a defendant to have the court suppress any evidence alleged to have been obtained in violation of the defendant’s rights. The case cited by the Commonwealth as its authority was changed when the Supreme Court eliminated the word “constitutional” from “any evidence alleged to have been obtained in violation of the defendant’s constitutional rights. ” Pa.R.C.P. 323(a) (last amendment effective January 1, 1986).

The limiting of suppression of evidence to issues involving evidence alleged to have been obtained in violation of constitutional rights would lengthen jury trials and be a radical reversal of criminal practice and procedure. In the interest of both a fair trial for defendant and the administration of justice it is highly important that the complex legal issues raised by defendant be decided prior to a jury trial.

Defendant’s Motion to Suppress

In support of the omnibus pretrial motion, defendant has raised several issues. These will be discussed.

“Testimony of the witness, John Csakvary, should be suppressed. ”

The court on December 10, 1990 reserved a decision on this motion for an in camera hearing before the trial judge.

Act of Assembly 75 Pa.C.S. §1547(c) authorizes the chemical testing of defendant’s blood. It does not distinguish between whole blood and blood serum. Allegheny General Hospital has a clinical laboratory licensed and approved by the Department of Health. It is licensed under the Clinical Laboratory Act, and is a legal laboratory for medical and diagnostic purposes.

The guidelines promulgated by the Department of Health are those set forth by NCCLS (T/DM6-P, supra). There is insufficient evidence that in its testing Allegheny General Hospital follows those guidelines.

The testing of defendant for alcohol in the blood was on blood serum, not whole blood. This was proper and legal for medical and diagnostic purposes. Testing on blood serum for alcohol content for use as evidence of a violation of section 3731 of the Motor Vehicle Code is not authorized. Under section 1547, chemical testing to determine amount of alcohol must be made on whole blood for the test results to be admissible in evidence. (75 Pa.C.S. §1547; NCCLS standards, def. exh. A.)

In addition to the testing of the whole blood a laboratory is required to use the NCCLS guidelines as approved by the Department of Health. The Commonwealth also failed to establish that the Allegheny General Hospital complied with the procedures required by the Department of Health in adopting the NCCLS guidelines for testing blood alcohol. (Def. exhs. A and B.)

Assuming the legality of the blood serum testing for forensic purposes, the Commonwealth failed to establish that defendant is the “average” person described in the NCCLS guidelines, to which the 1.18 conversion factor would be applicable.

Another burden that the Commonwealth failed to address was the treatment, if any, (drugs, etc.) defendant received at the scene of the accident, in the ambulance and at the hospital prior to removal of the blood specimen. The duty was on the Commonwealth to develop all such relevant facts in order that the experts both for the Commonwealth and defendant could determine the effect, if any, on the test results.

The facts involving this defendant and the blood testing differ from the appellate court cases that have been cited.

As argued by the Commonwealth, the facts of the Hipp case are quite similar to this case. The distinction is that defendant did not dispute the validity of the blood test. The record fails to establish whether the test was made on whole blood or blood serum. Commonwealth v. Hipp, 380 Pa. Super. 345, 551 A.2d 1086 (1988).

In the Bullock case the issue of test results of whole blood versus blood serum was neither raised nor discussed. Bullock involved a defendant who was escorted by police to the hospital for a forensic blood test. Blood was not drawn for medical and diagnostic purposes as with Dagnon. In addition:

i£[D]efense counsel waived any objection he had to the legal efficacy of the blood test result. Defense counsel stipulated to the location of the subject test, the procedure employed to draw the blood, the type of test performed (ACA plasma alcohol, which determines alcoholic content of blood serum), the approval of said test by the Pennsylvania Department of Health, the chain of custody, the test result itself (0.135 percent alcohol in the blood serum), and the fact that the testing site and equipment used were licensed and approved by the Pennsylvania Department of Health. . . .
“In fact, everything to which counsel stipulated indicates that he agreed that the blood-alcohol reading complied with the statute.” Commonwealth v. Bullock, 359 Pa. Super. 150, 518 A.2d 824 (1986).

The law is explicit that test results be available to defendant and that a defendant has the right to have a physician of his own choosing administer a test the results of which may also be admissible in court. Defendant was not denied these rights although they may not have been explained to him. There is no requirement that defendant’s blood sample be preserved. 75 Pa.C.S. §1547(g),(h); Commonwealth v. Tillia, 359 Pa. Super. 302, 518 A.2d 1246 (1986).

The Departments of Health and Transportation have prescribed procedures for the chemical testing of breath on devices approved by the Department of Health. This was mandated by Act of Assembly. 75 Pa.C.S. §1547(c)(l). (emphasis supplied)

The Department of Health is required to prescribe the equipment and procedures used for the chemical testing of blood and urine under that same statute. The only procedures (guidelines) promulgated by the Department of Health in Pennsylvania for the testing of blood are those set forth by NCCLS in Blood Alcohol Testing in the Clinical Laboratory (def. exh. A). As already stated those procedures relate to the testing of whole blood. The Department of Health has neither approved equipment nor procedures for the chemical testing of whole blood for forensic purposes.

Under the Clinical Laboratory Act the Department of Health has licensed laboratories and prescribed standards and equipment for the chemical testing of blood serum but only for medical and diagnostic purposes.

Therefore, based on the facts and the conclusions of the court as to the law the court enters an order as follows.

ORDER OF COURT

And now, February 8, 1991 the motion of John M. Dagnon to suppress evidence of the blood alcohol test and results performed on him at the Allegheny General Hospital on April 16, 1990, as a result of a vehicle accident on April 15, 1990, is granted.

The test and its results shall not be used by the Commonwealth at the trial of defendant on the charges filed at the above term and number.


author: VANSTON, P.J.,

text:
    Commonwealth v. Freeman

      George P. Skumanick Jr., district attorney, for the Commonwealth.

      Paul R. Ackourey, for defendant.
    February 26, 1991
   VANSTON, P.J.,

This opinion is written following the receipt by the court of the Commonwealth’s notice of appeal. The sole issue presented to the court is whether the applicable statute of limitations was tolled by virtue of the relationship which may have existed between defendant and the victim.

It is important, first, to note the procedural history of this case: defendant was arrested in June 1990 and charged with five counts of involuntary deviate sexual intercourse and corruption of minors. The victim, Ellen August, now by marriage Ellen Nielson, was aged 13 or 14 years when these incidents occurred, in the autumn of 1981.

Defendant filed an omnibus pretrial motion and a supplemental motion raising a number of issues. This court filed an opinion on February 1, 1991, disposing of all issues then pending and denying the said motions. That opinion is incorporated herein by reference.

Subsequently, but prior to the date set for trial, defendant filed yet another pretrial motion, seeking dismissal of all charges on the assertion that the statute of limitations had expired. While all pretrial matters should be raised at the same time, this court elected to rule on this latest motion, deeming it to be required in the interest of justice and as contemplated by Pa.R.Crim.P. 306.

The applicable statute of limitations is five years on the charges of involuntary deviate sexual intercourse (see 42 Pa.C.S. section 552(b)). This period expired in November 1986. The Commonwealth claims that the statute is tolled by virtue of 42 Pa.C.S. §5554, which states in relevant portion:

“[T]he period of limitation does not run during any time when:
“(3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent.”

Statutes of limitations “must be liberally construed in favor of the defendant and against the Commonwealth.” Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985).

Ms. Nielson was under the age of 18 and was injured. She was not, however, the child of defendant, a resident of his home, nor was her parent a paramour of defendant. The sole issue, therefore, is whether defendant was “a person responsible for the child’s welfare.”

By agreement of counsel, the court received the transcript of the preliminary hearing in lieu of further testimony (see the court’s opinion of February 1, 1991). As of this, writing, this court cannot find (nor have counsel apparently found) appellate authority defining the phrase “person responsible for the child’s welfare.” It seems clear that the legislature, in adopting section 5554, took cognizance of the fact that a child victim could not be reasonably expected to divulge or report the occurrence of a crime when the child continued to live with or be controlled by (in some fashion) the perpetrator of that crime.

In the case at bar, the victim came to know defendant by enrolling as a student in a karate class, taught by the latter. (N.T. 6.) Parental consent to participate in such classes was given by the victim’s parents. (N.T. 7.) The classes involved 18 to 20 students. (N.T. 6.) One incident of indecent assault may have occurred when the victim and defendant were returning from a karate tournament in New Jersey. (N.T. 8, 9.) Karate classes were usually held two nights per week. (N.T. 71.) One incident may have occurred following a karate class. (N.T. 54.) Other than the foregoing there was no evidence presented from which the court could conclude (or even infer) that defendant was a person responsible for the victim’s welfare. There was no testimony as to any intimidation or threats by defendant. There was no evidence that he used his position as the victim’s karate instructor to facilitate the commission of his crimes.

Did the legislature intend to include karate instructors within the class of “responsible” persons in section 5554(3)? All other classes of people described in section 5554(3) have some connection with the victim’s family life or home life. A teacher is certainly someone who is responsible for a child’s welfare, but yet may not be someone whose acts could toll this statute of limitations. “Responsible” may be defined as answerable or accountable for something within one’s power, control or management. Therefore, a teacher, generally, cannot be expected to be responsible for a child’s welfare at such times when the child is not in school.

To sustain the Commonwealth’s view, we would have to conclude that the legislature intended to make everyone who has some regular contact with children “responsible” for their welfare. The legislature could have stated, had it chosen to do so, that whenever anyone commits a crime upon someone who is less than 18 years of age, the statute of limitation does not begin to run until the child’s 18th birthday. It obviously did not do so.

This court is compelled to conclude that something more than a relationship of karate class instructor/student (or little league coach/player or scoutmaster/scout, for example) must be established before we can conclude that such a relationship brings the perpetrator within the class of people contemplated by the relevant phrase of 42 Pa.C.S. §5554(3). In other words, there must be some showing of a connection between the relationship in which the perpetrator stands vis-a-vis the victim, and a reason why the victim would not be reasonably expected to report or divulge the criminal conduct of the perpetrator at or about the time it occurred. Here, there was no such showing. Section 5554(3) does not apply.

Assuming, however, that this court is incorrect in the above analysis, there is a second, fatal flaw in the Commonwealth’s case. Where the Commonwealth seeks to toll a statute of limitations by statutory exception in order to extend the period of time in which to bring criminal charges, the Commonwealth must specifically allege such exception in the criminal information or otherwise put defendant on notice in writing of such an effort. See Commonwealth v. Eackles, 286 Pa. Super. 146, 428 A.2d 614 (1981); Commonwealth v. Goldhammer, supra; Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980).

Here, the criminal informations are utterly devoid of any reference to a statutory exception requiring tolling of the statute of limitations. Further, there is nothing in the record giving defendant the required written notice of such exceptions. Consequently, the court lacked any alternative to a dismissal of all criminal charges.


author: LEVIN, J.,

text:
    Furyesz v. Lane Construction Corp.

      Craig A. Markham, for plaintiffs.

      John F. Mizner and S.E. Riley, for the Commonwealth.
    March 15, 1991
   LEVIN, J.,

Before this court is the motion of defendants Pennsylvania Department of Transportation and the Commonwealth of Pennsylvania requesting that this court grant summary judgment in their favor.

This action arises from a work-related accident which occurred on June 2, 1987, at a highway construction site on Interstate 90 in Harborcreek Township, Pennsylvania. At the time of the accident, defendant PennDOT had entered into a contract for construction and improvement of portions of this highway with defendant Lane Construction Company. The work involved removing and replacing five miles of concrete-reinforced highway and rehabilitation of bridges within that expanse of roadway. Before construction began, PennDOT delivered temporary possession of the project site to Lane. Defendant Lane entered into a subcontract with defendant Conn Construction Co., whereby Conn was to furnish all labor, materials and equipment necessary to complete the work at the construction site. At all relevant times, plaintiff Furyesz was an ironworker employed by Conn.

On June 2, 1987, plaintiff Furyesz allegedly suffered personal injuries when he slipped on an access road. This road permitted workers and equipment a means of access to the underside of the bridges being repaired. This access road had been cut by defendant Conn after possession of the property had passed to Lane.

Defendant PennDOT denies liability and asserts the immunity provisions of the Sovereign Immunity Act under 42 Pa.C.S. §8521 et seq. There are eight exceptions to the general rule of sovereign immunity. Plaintiff attempts to impose liability on Penn-DOT through 42 Pa.C.S. §8522(b)(4), an exception regarding Commonwealth real estate, highways and sidewalks. It is plaintiff’s argument that the access road in question was a dangerous condition of real estate because it lacked steps, a handrail and other safety measures. The section in question provides as follows:

“(a) Liability imposed — The General Assembly . . . does hereby waive, in the instances set forth in section (b) only and only to the extent set forth in this subchapter . . . sovereign immunity . . . for damages arising out of a negligent act where damages would be recoverable under the common law. . .
“(b)(4) Commonwealth real estate, highways and sidewalks — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).” 42 Pa.C.S. §8522.

Exceptions to the rule of governmental immunity are to be construed narrowly. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987); Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1980).

Since this case involves a motion for summary judgment against plaintiff, the court must resolve all factual disputes in favor of the plaintiff. Trenco Inc. v. Commonwealth, Department of Transportation, 126 Pa. Commw. 501, 560 A.2d 285 (1989). Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It is not this court’s function to decide issues of fact, but solely to determine whether there are issues of fact to be tried. Thorsen v. Iron & Glass Bank, 328 Pa. Super. 135, 476 A.2d 928 (1984).

Inasmuch as the controlling issue on this motion for summary judgment is not one of fact but one of law, the issue is ripe for summary judgment determination. The legal issue, simply put, is whether the immunity provided under the Sovereign Immunity Act, 42 Pa.C.S. §8521 et seq., exempts the defendants from liability for the accident in question.

As a general proposition of law, PennDOT is immune from suit unless plaintiff’s claim is cognizable under the common law and falls within one of the eight enumerated exceptions ,to immunity under 42 Pa.C.S. §8522(b). PennDOT has asserted the immunity provided by this statute, thus the burden lies with plaintiff to establish that its cause of action is cognizable under common law and falls within an enumerated exception.

Plaintiff’s theory is that PennDOT is directly liable to plaintiff under section 413 of the Restatement (Second) of Torts, and that such liability brings the action within the real property exception to government immunity, 42 Pa.C.S. §8522(b)(4). Section 413 of the Restatement (Second) of Torts reads as follows:

“§413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor
“One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
“(a) fails to provide in the contract that the contractor shall take such precautions, or
“(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.”

Plaintiffs have acknowledged in their brief that “the risk of harm to plaintiff arose from the dangers inherent in the manner in which Conn and Lane provided access for the steelworkers to the bridge’s substructure.” Thus, it is not an act of defendant PennDOT or a dangerous condition of Commonwealth real estate through which plaintiff seeks to impose liability, but an act of Conn.

In determining whether defendant, as a matter of law, is directly liable to plaintiffs under section 413, the court must first review the general scope of the real estate exception. In Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), the Pennsylvania Supreme Court examined section 8522(b)(4) to determine the scope of liability imposed for negligent care of real property. Therein, the court found:

“[T]he real estate exception to the rule of immunity under this section can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes injury, nor merely when it facilitates injury by acts of others. . .”

The Supreme Court of Pennsylvania has specifically construed such immunity provisions, holding that they preclude the imposition of liability on governmental bodies for acts of third parties. Mascaro, supra. Therein the court stated:

“Acts of others, however, are specifically excluded in the general immunity section, and are nowhere discussed in the eight exceptions. On this basis alone, we must conclude that any harm that others cause may not be imputed the local agency or its employees. ” 514 Pa. at 362-3, 523 A.2d at 1124. (emphasis supplied)

Under Snyder and Mascaro, PennDOT is subject to liability for an actual defect in the land which causes injury. They are not, however, liable if the land merely facilitated the negligent conduct of a third party.

Plaintiffs attempt to circumvent this construction of the rule by arguing that defendant may be held liable under sections 416 and 427 of the Restatement (Second) of Torts, which impose vicarious liability on landowners for injuries caused by the dangers inherent in the job or in the manner in which it is performed by the contractor.

Contrary to plaintiffs’ argument, Pennsylvania law holds that the Commonwealth is immune from vicarious liability imposed on employers of subcontractors. Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990); Maloney v. City of Philadelphia, 111 Pa. Commw. 634, 535 A.2d 209 (1987); Mascaro, supra. In Marshall, plaintiff, a construction company employee, was injured while performing demolition work on a railway bridge owned by a Commonwealth agency. The Pennsylvania Supreme Court reversed the trial court, holding that the Commonwealth agency was immune from vicarious liability as there had not been a negligent act by the Commonwealth such as to apply one of the exceptions to sovereign immunity set forth in 42 Pa.C.S. §8522(b). Therein, the Supreme Court stated:

“The exceptions provided in the statute expressly contemplate acts 'by a Commonwealth party’ as providing the requisite basis for liability. We need not further address the scope of . . . vicarious liability under the facts presented, for, where there has been no negligent act by a Commonwealth party, there is no basis for applying any of the exceptions to sovereign immunity. ” Marshall, supra. (emphasis supplied)

Similarly, in Maloney, supra, the Commonwealth Court held that the City of Philadelphia was immune from suit because the negligent acts complained of were those of a contractor, which did not fall within any of the eight exceptions to immunity. Under these holdings, PennDOT is immune from vicarious liability imposed on employers of contractors. By plaintiff’s own admission, it was an act of the subcontractor, not PennDOT or its employees, which created the risk of harm to plaintiff. Whatever harm the contractor or subcontractor is alleged to have caused may not be imputed to PennDOT and the Commonwealth. Thus, the court cannot find as a matter of law that defendants are directly liable to plaintiffs under section 413, bringing their action within the real estate exception to sovereign immunity.

Plaintiff argues that the Commonwealth Court is split on the issue of sovereign immunity in cases where the dangerous condition of real estate merely “facilitates the injury by acts of others,” and that such a split would dictate that summary judgment not be granted. This court cannot agree.

The cases plaintiff refers to are Crowell v. City of Philadelphia, 131 Pa. Commw. 418, 570 A.2d 626 (1990), alloc. granted 582 A.2d 1311 (1990); and Commonwealth v. Bendas, 131 Pa. Commw. 488, 570 A.2d 1360 (1990). In Crowell, the operator of a car collided with a plaintiff due to his reliance on an improper traffic control sign. The plaintiff sued the city, alleging that the negligent placement of the sign created a dangerous condition, excepting the city from immunity. Therein the court found that as the dangerous condition merely “facilitated the injury by acts of others,” liability cannot be imposed on the municipality. Contrarily, in Bendas, the Commonwealth Court found that PennDOT could be held liable for a two-vehicle accident that was caused by a failure to erect traffic control devices.

These cases, however conflicting their holdings, are distinguishable on the facts from the case at bar. In Crowell, there existed an improper signal. In Bendas, the city failed to supply a proper signal. Herein, PennDOT did not take either an improper action or fail to take a necessary action. There is no malfeasance on the part of PennDOT. PennDOT simply turned over temporary possession of a roadway and accompanying median to a construction company for repairs. No act or omission of Penn-DOT facilitated the injury to plaintiff. The mere fact that PennDOT owned the hillside into which Conn chose to cut a roadway does not facilitate an injury. As PennDOT cannot be held vicariously liable for the alleged negligence of its subcontractor in cutting this roadway, liability cannot be imposed. This is the case under either of the conflicting holdings relied upon by plaintiffs.

Even were this court to determine that liability under section 413 was within the enumerated exceptions to sovereign immunity, it would not provide plaintiff a basis for liability under the facts of this case. Section 413 applies only to “peculiar unreasonable risks” of physical harm involved in work entrusted to a contractor. Under comment (b) to section 413, a “peculiar risk” is better expressed as follows:

“(b) Peculiar risk and special precautions. It is obvious that an employer of an independent contractor may always anticipate that if the contractor is in any way negligent toward third persons, some harm to such persons may result. Thus one who hires a trucker to transport his goods must, as a reasonable man, always realize that if the truck is driven at an excessive speed, or with defective brakes, some collision or other harm to persons on the highway is likely to occur. This section has no reference to such a general anticipation of the possibility that the contractor may in some way be negligent. It is not concerned with the taking of routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may arise in the course of the contemplated work. Such precautions are the responsibility of the contractor; and if the employer has exercised reasonable care to employ a contractor who is competent and careful... he is not required to provide, in the contract or otherwise, that the contractor shall take them.” (emphasis supplied)

The “dangerous condition” herein complained of is an unpaved road cut into a hillside in a highway median to provide access to the underside of a bridge. The accident involved plaintiff slipping as he carried some construction equipment. Under the cases construing “peculiar unreasonable risks” sufficient to impose liability under section 413, the unpaved roadway does not qualify.

In Ortiz v. Ra-el Development Corp., 365 Pa. Super. 48, 528 A.2d 1355 (1987), the court confirmed the entry of summary judgment in favor of an employer of an independent contractor whose employee was injured when scaffolding collapsed. The court found the general task of working on a scaffold is not a “peculiar unreasonable risk.” The court noted:

“All construction work involves a risk of some harm; only where the work is done under unusually dangerous circumstances does it involve a ‘special danger’ or ‘peculiar risk.’ ” 365 Pa. Super. at 55, 528 A.2d at 1359.

Similarly, in Marshall v. SEPTA, 587 F.Supp. 258 (E.D. Pa. 1984), the court rejected a plaintiff’s argument that removing a gate section embedded in a hillside involved peculiar unreasonable risk of harm. The district court stated:

“In order for the liability concepts involving contractors to retain any meaning, especially in industry such as construction where almost every job involves the potential for injury unless care is exercised, peculiar risk situations should be viewed narrowly.” 587 F.Supp. at 264.

This court concurs in this vein of logic. Construction work, by its very nature, involves the potential for injury. Section 413 of the Restatement (Second) of Torts is limited to those situations involving a “peculiar unreasonable risk.” Within the wide scope of construction risks of harm, this court cannot construe the unpaved roadway in question as peculiar. Walking or carrying construction equipment down such a roadway is not “specially dangerous.” These are ordinary risks associated with a highway construction site. The conditions encountered by plaintiff are simply not of the type which are within the scope of section 413.

It is therefore the conclusion of this court that summary judgment be granted in favor of defendants PennDOT and the Commonwealth. PennDOT is immune from suit as the plaintiffs’ claim does not fall within one of the enumerated exceptions to sovereign immunity under 42 Pa.C.S. §8522(b).

ORDER

And now, March 15, 1991, it is hereby ordered, adjudged and decreed that summary judgment is granted in favor of defendants Pennsylvania Department of Transportation and the Commonwealth of Pennsylvania against plaintiffs, Richard Furyesz and Marcia Furyesz, and the aforementioned defendants are hereby dismissed from the suit.

       Although both Mascaro, supra, and Maloney, supra, involve governmental immunity under 42 Pa.C.S. §8541 et seq., the holdings of those cases are applicable by analogy to the instant case involving sovereign immunity pursuant to 42 Pa.C.S. §8522 et seq.