author: MOTTO, J.,

text:
    Hinebaugh v. Pennsylvania Snowseekers Snowmobile Club

      David L. Gropp, for plaintiff.

      Scott G. Dunlop and Christian D. Marquis, for defendant.
    August 14, 2003
   MOTTO, J.,

Before the court for disposition is the motion for summary judgment filed by the defendant. The defendant, the Pennsylvania Snowseekers Club, contends that as to Count I of the complaint, that as a matter of law, the defendant is not in violation of the Pennsylvania Dram Shop Act. It contends that it is not a licensed entity in accordance with the Pennsylvania Liquor Code, nor does any evidence exist that the plaintiff was visibly intoxicated; therefore, no issue of material fact exists and it cannot be found negligent per se. Defendant also contends as to Count II of the complaint, that as a matter of law, the defendant cannot be held liable under the common-law negligence theory of social host liability.

Defendant filed its motion on February 28,2002 seeking summary judgment against plaintiff John W. Hinebaugh. The matter was given the date of May 28, 2002 for oral argument. On June 7, 2003, this court entered an order stating that defendant’s motion for summary judgment is denied because it was premature to determine that plaintiff cannot produce enough evidence that he was visibly intoxicated at the time he obtained alcoholic beverages from defendant’s social room. The parties were ordered to complete discovery by September 30, 2002.

On December 16, 2002, the defendant filed a supplemental motion for summary judgment. This court, by order dated April 2, 2002, found that the plaintiff must be given the opportunity to prove at trial the allegation of “visible intoxication” of plaintiff’s decedent, as such issue can be proved by circumstantial evidence. The defendant then filed a motion for reconsideration and clarification. The court granted reconsideration.

This case arises out of a snowmobile accident on the evening of January 7, 1995. The defendant is a duly incorporated nonprofit entity with a registered address in Ellwood City, Lawrence County, Pennsylvania, with its stated chartered purpose being:

“To promote good fellowship and to promote the sport of snowmobiling activities and to exercise care and supervision over the operation and use of snowmobiles; to participate in games, not for profit, but conducive to physical and mental development and the amusement of its members and for the purpose of acquiring such property and other necessary equipment to be used for the furthering of the purposes of the corporation.”

Plaintiff was at the defendant’s clubhouse to partake in various club-related activities. The defendant maintained a clubhouse which contains lodging room, a kitchen and a dining area, with various other facility rooms therein including a social room equipped with bar and its related accouterments. Per the defendant club’s bylaws, it had a standing committee therein referred to as the “bar committee,” to. which its officials or members sometimes refer as the “social room committee,” to operate the bar in said social room. .

Per the defendant club’s requirements to have the privilege of purchasing beverages at the bar in the social room, a person had to either be a regular member or social member of the club. The defendant required any person using the clubhouse facilities for any reason to become at least a social member; such person could then purchase a beverage at the bar. Payment of the purchase price for a beverage was accomplished via a punch-out card which a regular member or social member could obtain for a fee. The amount equal to the cost of the drink was punched out when a beverage was obtained from the bar. It is not disputed that the plaintiff consumed alcohol on the night in question.

At approximately 8:50 p.m., the plaintiff and other club members of the defendant departed the clubhouse to take a snowmobile ride. Approximately one-half mile from the clubhouse, the plaintiff, riding his own snowmobile, collided with a tree while riding the snowmobile. As a result of the collision, the plaintiff sustained serious personal injuries.

Plaintiff’s complaint consists of two counts. Count I alleges negligence per se against the defendant for the sale of alcoholic beverages to the plaintiff when he was visibly intoxicated in violation of that portion of the Pennsylvania Liquor Code known as the Pennsylvania Dram Shop Act. Count II states a theory of common-law negligence in providing the plaintiff with alcoholic beverages as a social host.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id. The non-moving party must adduce sufficient evidence on issues essential to its case on which he bears the burden of proof such that a jury could return a verdict in its favor. Ertel v. Patriot-News Company, 544 Pa. 93, 647 A.2d 1038 (1996), reargument denied (1996), certiorari denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), alloc. denied, 532 Pa. 663, 616 A.2d 985 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001).

The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). For summary judgment purposes, a “material fact” is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). In passing on a motion for summary judgment, the court must examine the record in a light most favorable to the nonmovant and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999).

The moving party has the burden of proving the nonexistence of any genuine issue of material fact; the non-moving party must demonstrate that there is a genuine issue for trial. The party moving for summary judgment may not rely solely on its own testimonial affidavits or depositions or those of its witnesses to establish the nonexistence of a genuine issue of material fact. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), alloc. denied, 532 Pa. 663, 616 A.2d 985 (1992). With the above rales in mind, we will now consider defendant’s motion for summary judgment.

It is well-settled in this Commonwealth that in order to be held liable under the Pennsylvania Dram Shop Act, 47 P.S. §4-493(a), an injured plaintiff must prove two things: “(1) that [he] was served alcoholic beverages by a licensee while visibly intoxicated and (2) that [the] violation of the statute proximately caused [his] injuries.” Johnson v. Harris, 419 Pa. Super. 541, 550, 615 A.2d 771, 775 (1992). Section 4-493(1) of the Pennsylvania Liquor Code holds that it is unlawful:

“(1) For any licensee or the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor or to habitual drunkard, or person of known intemperate habits.” 47 P.S. §4-493(1).

The statutory prohibition of said section 4-493(1) is not limited to a “licensee” as the words of “any other person” includes non-licensees of the Pennsylvania Liquor Control Board. Commonwealth v. Randall, 183 Pa. Super. 603, 133 A.2d 276 (1957).

The defendants are asserting that they were not receiving remuneration via its prepaid punch-card system. As defined by the Pennsylvania Liquor Code, a “sale” shall include any transfer of liquor, alcohol, or malt or brewed beverage for a consideration. Pennsylvania Liquor Code 47 P.S. §1-102. To purchase a beverage from the defendant’s bar, the person was not asked to make a donation, but was required to first obtain either a $20 or $10 punch-out card on which the defendant, at the time of purchase of the beverage, arranged to punch-out a sufficient number of the 50-cent increments credits thereon to equal the price the defendant was charging for the type of beverage purchased. The prepaid punch-card system created by the defendant club constitutes a sale requiring the defendant club to have procured a license from the Liquor Control Board to so operate its bar. Pennsylvania Liquor Code 47 P.S. §1-104; Goodwill Fire Company of Bethlehem License Case, 166 Pa. Super. 42, 70 A.2d 706 (1950).

These facts allow the court to conclude that the defendant has “licensee status,” and the transfer of alcohol at the defendant club constituted a sale for consideration.

The mere selling of alcoholic beverages in and of itself does not constitute negligence per se violation of the aforesaid section of the Pennsylvania Liquor Code. Said section also requires that the sale is to have occurred while the buyer is visibly intoxicated. The defendant asserts that there is no issue or material fact to Hinebaugh being visibly intoxicated at the clubhouse that day.

Both direct and circumstantial evidence of visible intoxication is admissible in negligence per se or dram shop action. Particularly, it has been held “a plaintiff can prove dram shop liability in the absence of direct eyewitness evidence that an individual was served alcohol at a time when he or she was visibly intoxicated.” Fandozzi v. Kelly Hotel Inc., 711 A.2d 524, 527 (Pa. Super. 1998). The blood alcohol content of a person is usually only one element for a jury to consider in determining whether or not a person was visibly intoxicated when served. Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984). Blood alcohol content and expert testimony alone relating the blood alcohol content at previous time frames, while deemed proper to evidence a person being physically impaired to operate a vehicle, when standing alone has been deemed insufficient to evidence that the person was visibly intoxicated at the time he was served alcoholic beverages. Other evidence, including but not necessarily limited to consumption of alcohol and the time of last consumption, odor of alcohol, slurred speech, staggering gait or erratic driving, and the shortness or longness of passage of time since leaving the establishment where intoxicating beverages were consumed are matters of direct evidence necessary to be admitted along with the testimony of the toxicologist. Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964); Speicher v. Reda, 290 Pa. Super. 168, 434 A.2d 183 (1981); Ackerman v. Delcomico, supra; Conner v. Duffy, 438 Pa. Super. 277, 652 A.2d 372 (1994).

There is enough circumstantial evidence of visible intoxication in this case to warrant a denial of summary judgment on Count I of the complaint. All of the persons deposed thus far relate minimal observation of the plaintiff so as not to be able to state whether or not he appeared visibly intoxicated. By the plaintiff’s own admission, absent the surfacing of a person yet unknown, the plaintiff will not be able to present any witness to state or provide direct evidence that plaintiff was visibly intoxicated while being served at defendant’s bar. All the people deposed to this date have stated that they did not observe plaintiff for sufficient periods of time, thereby verifying that they were unable to support their written affidavits that plaintiff was not visibly intoxicated.

To date, the evidence of visible intoxication includes: (1) the defendant club’s clubhouse was the only establishment in which plaintiff consumed alcohol, (2) testimony as to the behavioral outbursts at various times by the plaintiff after speaking to his wife on the phone as related by Richard Hayes and Art Amsler, (3) the short distance of the snowmobile trek from the defendant’s clubhouse (2,600 feet) with the straight-line path of snowmobile going off the highway trait at its initial curve, (4) the heavy smell/odor of alcohol about his person as stated or noted by the ambulance/emergency personnel who commenced treatment at the accident scene as of 9:12 p.m., (5) the blood alcohol content of. 192 of blood drawn at the hospital at 10:19 p.m., and (6) the testimony of a toxicologist expert witness to educate the fact-finder as the number of alcoholic drinks required to be consumed to achieve that blood alcohol level and the impairment it would have on a person.

This court notes that “relation back” testimony by an expert based on blood alcohol content is insufficient to prove that a person was visibly intoxicated at the time of being provided with alcoholic beverages. Conner v. Duffy, 438 Pa. Super. 277, 652 A.2d 372 (1994). In Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771 (1992), the Superior Court held that a licensee could not be held liable under the Dram Shop Act absent evidence that the patron in question was visibly intoxicated at the time he was served alcohol by the licensee. The injured plaintiff in Johnson only produced an expert affidavit of a physician, who opined that the driver who caused the accident would have displayed visible signs of intoxication at the time of being served, given the driver’s blood alcohol content level one hour after the accident. However, the plaintiff produced no eyewitness who could testify to the driver’s visible intoxication. In the absence of such direct evidence, the Superior Court affirmed the trial court and held that the opinion of the expert was not sufficient to create a genuine issue of material fact to overcome summary judgment. Johnson, supra. Additionally, it is noted that evidence of alcoholic beverages being served to a person is not sufficient to establish visible intoxication. Holpp v. Fez Inc., 440 Pa. Super. 512, 656 A.2d 147 (1995).

The evidence presented thus far to this court includes more than just a physician’s report. Several of the depositions have stated that plaintiff was consuming alcohol throughout the day and that he was visibly upset after he received a phone call from his wife. Those two factors along with the circumstances surrounding the accident and a toxicologist’s report is enough circumstantial evidence so that the court cannot conclude that defendant is entitled to judgment as a matter of law, as the case is not clear and free from doubt as to the existence of a question of fact in the issue of visible intoxication.

Most recently, the Superior Court has relied on circumstantial evidence to create a jury question as to whether a person was served while visibly intoxicated. Fandozzi v. Kelly Hotel Inc., supra. In that case, the individual was staggering, slurring his speech and falling down. But that list is not exhaustive. The facts of the case pending before this court, including the testimony of a toxicologist as to the blood alcohol level of plaintiff, per the holding and guidelines in Fandozzi v. Kelly Hotel Inc., supra, is enough circumstantial evidence to submit to the fact-finder the issue of visibly intoxicated while served alcohol.

As to Count II of the complaint, the plaintiff asserts that the defendant club having undertaken to sponsor and provide two activities concurrently for remuneration, namely operation of snowmobiles and consumption of alcoholic beverages by persons it knew were or were likely to operate snowmobiles, created for itself a duty to preclude the operation of the snowmobiles while patrons were under the influence of alcohol.

This court can find no case law that defendant club had a corporate duty to exercise care and supervision over the operation and use of snowmobiles by persons using its clubhouse for its sponsored activities, and that the defendant club had a duty to a class of persons to whom the defendant club had established and held itself out to provide safe amusement.

It is the common-law view in this Commonwealth that “there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.” Klein v. Raysinger, 504 Pa. 141, 148, 470 A.2d 507, 511 (1983). A social host is a person or entity that provides free alcoholic beverages. Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), involving an employer party for employees where alcoholic beverages were provided without charge, i.e. no remuneration; Couts v. Ghion, 281 Pa. Super. 135, 421 A.2d 1184 (1980), wherein social host business employer paid corporate liquor licensed holder to provide free drinks to participants in social host’s business meeting held at licensed establishment; Klein v. Raysinger, supra, involving private homeowners serving alcoholic beverages to a visitor to their home without remuneration therefore; Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), involving an employer Christmas party for employees where alcoholic beverages were provided without charge, i.e. no remuneration to the employer. Because this court previously held that defendant accepted remuneration of alcohol via the punch-card system, the defendant cannot be considered a social host. It is undisputed that plaintiff was an adult individual on the day of the accident; therefore, they cannot prevail under a common-law theory of negligence, regardless of where defendant is held to the standard of liquor licensee or a social host. Congini, supra (imposing social host liability on an individual who serves alcohol to a minor).

In conclusion, the court finds that even if the defendant was a social host, the law imposes no liability on the defendant. Furthermore, this court has already determined that the defendant was more than a social host by accepting remuneration for alcohol on the day of the accident. Therefore, this court finds that no genuine issue of material fact exists and as a matter of law, summary judgment should be granted in favor of the defendants on Count II.

ORDER

And now, August 14,2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

(1) Defendant’s motion for summary judgment as to Count I of the complaint, alleging a violation of the Dram Shop Act is denied.

(2) Defendant’s motion for summary judgment as to Count II of the complaint alleging negligence is granted and Count II of the complaint is dismissed.


source: Caselaw Access Project

author: ALLEN, J,

license: Public Domain

text:
    Holmes v. SEPTA

      Frederic I. Weinberg, for plaintiffs.

      Michael A. Hamilton and Jennifer M. McHugh, for defendant.
    June 25, 2003-
   ALLEN, J,

PROCEDURAL HISTORY

On October 23, 2003, defendant Southeastern Pennsylvania Transportation Authority (SEPTA) filed a motion for judgment on the pleadings, to which plaintiffs filed a timely response. On December 20,2002, this court denied SEPTA’s motion with prejudice. This opinion is in response to SEPTA’s appeal of that order.

FACTS

This action arises out of plaintiffs’ allegation that SEPTA acted in bad faith while handling plaintiffs’ first-party and uninsured motorist benefits. SEPTA may raise the following issues on appeal:

• Whether the court erred when it held that SEPTA is not clearly entitled to the defense of sovereign immunity when SEPTA, a mass transportation agency, acted as an insurer;

• Whether the court erred in finding that limitations on damages is not grounds for dismissal of the Bad Faith Statute, 42 Pa.C.S. §8371;

• Whether the court erred in finding that plaintiffs’ claims were not barred by Pa.R.C.P. 1020(d) as the transaction upon which this suit is based differed from that of the original suit;

• Whether the court erred in not dismissing plaintiffs’ cause of action based on the parties’ dispute of the application of the statutory term “insurer.”

• Whether the court erred in finding that the law is not clear as to whether a special relationship existed between the self-insurer and the injured party so as to invoke a cause of action for breach of good faith and fair dealing.

DISCUSSION

A. Legal Standards for Judgment on the Pleadings

Pennsylvania Rules of Civil Procedure provide that “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). In ruling on a motion for judgment on the pleadings, the court should confine itself to the pleadings: complaint, answer, reply to new matter and any documents or exhibits properly attached therein.

Judgment on the pleadings may be granted “where, on the facts averred, the law says with certainty that no recovery is possible.” Lindstrom v. City of Corry, 563 Pa. 579, 583, 763 A.2d 394, 396 (2000) (emphasis added); Ridge v. State Employees’ Retirement Board, 690 A.2d 1312, 1314 n.5 (Pa. Commw. 1997). (citations omitted) This court accepted as true all well-pleaded facts of the non-moving party and considered only those facts not at issue. See Singer v. School District of Philadelphia, 99 Pa. Commw. 553, 513 A.2d 1108 (1986); Mellon Bank v. National Union Insurance Co. of Pittsburgh, 768 A.2d 865, 868 (Pa. Super. 2001). This court determined that the law is not as clearly defined as defendant would have this court conclude. The issues raised by the defendant’s motion simply are not that clear-cut. Accordingly, said motion was denied.

B. Whether the Court Erred When It Held That SEPTA Is Not Clearly Entitled to the Defense of Sovereign Immunity When SEPTA, a Mass Transportation Agency, Acted As an Insurer

Pennsylvania’s sovereign immunity provides protection to “the Commonwealth, and its officials and employees acting within the scope of their duties.” 1 Pa.C.S. §2310. (emphasis added) SEPTA is an agency of the Commonwealth responsible for the mass transportation system in Philadelphia and its neighboring counties and is entitled to sovereign immunity when acting within the scope of its duties. See 74 Pa.C.S. §1711. With respect to insurance, SEPTA must provide insurance, self insured or otherwise, against any risks or hazards. 74 Pa.C.S. §1741(10). Based on the facts presented, this court cannot hold, with the requisite certainty, that the handling of plaintiffs’ insurance claims fell within SEPTA’s scope of duties thus entitling it to sovereign protection.

C. Whether the Court Erred in Finding That Limitations on Damages Is Not Grounds for Dismissal of the Bad Faith Statute, 42 Pa.C.S. §8371

Pennsylvania’s General Assembly created the bad faith statute to provide first-party beneficiaries with a remedy against a company that engages in bad faith conduct when processing claims. 42 Pa.C.S. §8371. The statute provides a number of remedies including interest on the amount of the claim, punitive damages, and/or court costs and attorney fees.

SEPTA argues that, as a governmental entity, it cannot be held liable for punitive damages. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). While this is certainly true, there is no mandate which requires the court, in an appropriate case, to award only punitive damages under a bad faith claim. See Collins v. Allstate Indemnity Co., 426 Pa. Super. 197, 626 A.2d 1162 (1993). SEPTA, as a governmental entity, is not shielded from all remedies available under the bad faith statute.

D. Whether the Court Erred in Finding That Plaintiff s’ Claims Were Not Barred by Pa.R. C.P. 1020(d) As the Transaction Upon Which This Suit Is Based Differed From the Original Suit

Defendant asserts an affirmative defense pursuant to Pa.R.C.P. 1020(d)(1). Pennsylvania Rule of Civil Procedure 1020(d)(1) provides that when “a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.

A bad faith claim is a separate cause of action and differs from a claim for first-party benefits and uninsured motorist benefit. In a first-party benefits action, the plaintiff must prove injuries and medical expenses related to injuries sustained in the accident. In an uninsured motorist benefit action, the plaintiff must prove that the party causing the injury is uninsured and that the injuries are related to the accident. In a bad faith action, the plaintiff must prove frivolous or unfounded refusal to pay, lack of investigation into the facts, or a failure to communicate with the insured. Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa. Super. 545, 553, 646 A.2d 1228, 1232 (1994). Consequently, Pa.R.C.P. 1020(d) is inapplicable to this action.

E. Whether the Court Erred In Not Dismissing Plaintiffs’ Cause of Action Based on the Parties’ Dispute of the Statutory Term “Insurer”

The Bad Faith Statute, 42 Pa.C.S. §8371, uses the term “insurer.” The dispute goes to the interpretation of this term. SEPTA asserts that the term “insurer” is specific and applies only to insurers, not self-insurers. Plaintiffs assert that the term is general and includes self-insurers. “If the meaning of the language of a statute is doubtful or if it was doubtful as to whether or not the act affected a party to the proceedings, we would then have a question of fact which would have to be determined upon trial.” David v. Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa. 335, 343-44, 35 A.2d 346, 350 (1944). Therefore, judgment on the pleadings was correctly rejected based on this issue.

F. Whether the Court Erred in Finding That the Law Is Not Clear As To Whether a Special Relationship Existed Between the Self-Insurer and the Injured Party So As To Invoke a Cause of Action for Breach of Good Faith and Fair Dealing

A cause of action for breach of good faith and fair dealing under an insurance policy may be maintained only if there is privity of contract between the insured and the insurer. Johnson v. Beane, 541 Pa. 449, 664 A.2d 96 (1995). A fact-finder must determine whether privity existed between the self insurer, SEPTA, and the injured party, plaintiffs. Neither parties identified cases in which this issue was addressed. Cases cited by the defendants address third-party beneficiaries, not first-party beneficiaries.

Plaintiffs allege privity under an implied contract theory. “Where unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred.” Schenck v. K.E. David Ltd., 446 Pa. Super. 94, 666 A.2d 327 (1995). Evidence of unjust enrichment are “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Id. See also, Ameripro Search Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa. Super. 2001); Mitchell v. Moore, 729 A.2d 1200 (Pa. Super. 1999).

Plaintiffs’ position is that SEPTA was unjustly enriched by the use of plaintiffs’ property. Whether the withholding of insurance funds constitutes unjust enrichment is a factual question to be determined at trial.

CONCLUSION

Because the court could not find “with certainty” that no recovery is possible, this court’s December 27, 2002 order denying defendant’s motion for judgment on the pleadings was well-founded and should not be reversed.

      . SEPTA did not file a statement of matters complained of in accordance with Pa.R.A.P. § 1925(b).

      . Here plaintiffs identify themselves as first-party beneficiaries and SEPTA does not dispute this assertion.


author: CULLEN, J.,

text:
    Prudential Property and Casualty Insurance Co. v. Garlin

      Karl R. Hildabrand, for plaintiff.

      Richard J. Palazzo, for defendant.
    May 23, 2003
   CULLEN, J.,

Before the court for disposition are the cross-motions for summary judgment filed by Prudential Property and Casualty Insurance Company and Niles L. Garlin. The issue is whether Niles L. Garlin is entitled to claim underinsured motorist benefits under motor vehicle insurance policies issued by Prudential to his two adult daughters who resided in his household at the time of his injury in addition to recovering'underinsured motorist benefits under his own Prudential policy.

PROCEDURAL AND FACTUAL BACKGROUND

On June 19, 2000, plaintiff, Prudential Property and Casualty Insurance Company filed a complaint for declaratory judgment against defendants, Niles L. Garlin, Jennifer Garlin and Chrissy Lynn Garlin, seeking a judicial determination that Garlin was not entitled to coverage for underinsured motorist benefits under the terms of separate Prudential motor vehicle insurance policies issued to his two adult daughters who resided with him at the time he was injured in a motor vehicle accident.

On July 13, 2000, Garlin filed an answer to the complaint.

On January 4,2002, pursuant to a stipulation of counsel, Garlin filed an amended answer and new matter to the complaint.

On January 22, 2003, Prudential filed its motion for summary judgment.

On January 31, 2003, Garlin filed a response to Prudential’s motion for summary judgment and contemporaneously filed his own motion for summary judgment to which Prudential responded on February 19, 2003.

The parties have filed briefs in support of their respective positions, and the matter is ready for disposition.

The pertinent facts are not disputed.

On December 23,1998, Garlin was injured while operating his 1985 Ford LTD when he was involved in a motor vehicle accident in East Hempfield Township, Lancaster County, Pennsylvania. The accident was the result of the negligence of the other driver, Janet L. Fisher. At the time of the accident, Garlin was insured under a policy issued by Prudential. (Complaint, exhibit A.) Ms. Fisher was insured by State Farm Insurance Company with $50,000 liability coverage. Following the accident, State Farm paid the $50,000 liability limit under its policy.

Garlin’s Prudential policy provided $15,000 per person and $30,000 per accident underinsured motorists coverage (with stacking). (Complaint, exhibit B.) Two automobiles were listed as covered under Garlin’s policy, the 1985 Ford LTD and a 1989 Oldsmobile Cutlass. Id. The licensed drivers listed as residing in the household in addition to Garlin were Martha L. Garlin, Chrissy L. Garlin and Jennifer S. Garlin. (Id.)

Garlin made a claim for underinsured motorists benefits to Prudential, and Prudential paid him $30,000.

At the time of the accident, Garlin’s two adult daughters resided in his household. One daughter, Jennifer Garlin, had a separate motor vehicle insurance policy with Prudential (complaint, exhibit A) which provided underinsured motorists coverage in the amount of $50,000 per person and $100,000 per accident. (Complaint, exhibit C.) The vehicle listed on this policy was a 1998 Ford Escort and the same four individuals identified on Garlin’s policy were listed as licensed operators residing in the household. (Id.)

Chrissy Lynn Garlin also had a motor vehicle insurance policy issued by Prudential (Complaint, exhibit A) covering her 1989 Mercury Topaz. (Complaint, exhibit D.) Her policy provided underinsured motorists coverage in the amount of $15,000 per person and $30,000 per accident. (Id.) Again, the same four people were listed on her policy as licensed operators residing in the household.

Anticipating that Garlin would seek underinsured motorists benefits under the policies issued to his daughters who resided in the same household, Prudential filed its declaratory judgment action.

DISCUSSION

According to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after the pleadings are closed any party may move for summary judgment where (1) there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) after completion of discovery, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury. Pa.R.C.P. 1035.2.

A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. McCarthy v. Dan Lepore & Sons Co. Inc. 724 A.2d 938 (Pa. Super. 1998). If the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. Id. (citing Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

The adverse party may not rest on the allegations in the pleadings, but must respond to the motion as provided in Rule 1035.3(a) and (b). If the adverse party fails to respond to the motion as required, summary judgment may be entered against him. Pa.R.C.P. 1035.3(d); Harber Philadelphia Center City Office Limited v. LPCI Limited Partnership, 764 A.2d 1100 (Pa. Super. 2000), appeal denied, 566 Pa. 664, 782 A.2d 546 (2001).

The court must view the record in the light most favorable to the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992).

In Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), the Pennsylvania Supreme Court summarized the law of this jurisdiction with respect to the interpretation of insurance contracts:

“The principles governing our interpretation of a contract of insurance are familiar and well settled. The task of interpreting a contract is generally performed by a court rather than by a jury____The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. . . . Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. . . . Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Id. at 304-305, 469 A.2d at 566. (citations omitted)

Contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. Madison Construction Company v. Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100 (1999). The court, however, is not to distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. Id. Generally, a clear and unambiguous contract provision must be given its plain meaning unless to do so would be contrary to a clearly expressed public policy. Eichelman v. Nationwide Insurance Company, 551 Pa. 558, 711 A.2d 1006 (1998).

The pertinent definitions in the policy are:

“Household Resident
“A household resident is someone who lives in your household. A household resident includes a resident relative. . . .
“Resident Relative
“A resident relative is someone who lives in your household and is related to you by blood, marriage, adoption or is a ward or foster child. ...
“You or Your
“You or your means the person shown as the named insured on the declarations of this policy, and your spouse, if he or she lives in your household....
“We, Us, or Our
“We, us, or our means Prudential Property and Casualty Insurance Company or one of its subsidiaries as shown on your declarations.” (Complaint, exhibit A, definitions, p. 2.)

Part 5 of the policy deals with underinsured motorists coverage and contains the following:

“Who Is Insured (Part 5)
“In Your Car (Includes a Substitute Car)
“You and a resident relative are insured while using your car or a substitute car under this part.
“Other people are insured while using your car or a substitute car covered under this part if you give them permission to use it. They must use the car in the way you intended.
“In a Non-Owned Car
“You and a resident relative are insured while using a non-owned car. The owner must give permission to use it. It must be used in the way intended by the owner....
“Losses We Will Not Pay For (Part 5)...
“Other Household Vehicles
“We will not pay for bodily injury to anyone occupying or struck by a motor vehicle owned or leased by you or a household resident which is not covered under this policy, or if the liability coverage of that vehicle is used to pay any portion of an insured’s bodily injury liability claim.
“Regularly Used Non-Owned Motor Vehicles “We will not pay for bodily injury to you or a household resident using a non-owned motor vehicle not insured under this part, regularly used by you or a household resident. . . .
“Stacking of Underinsured Motorists Coverage Limits
“If you have selected this option (the declarations will indicate stacking applies) then stacking of coverage under this part applies to you and a resident relative insured under this part. This means that you or a resident relative can add or stack the underinsured motorists coverage limits of other cars insured for this coverage by us upon the underinsured motorists coverage limits of the car involved in the accident or loss.
“The Limit of Coverage in the general provisions and section titled Limit of Coverage under ‘How we will settle a claim’ under part 5 do not apply.” (Complaint, exhibit A, part 5, pp. 8-9.)

The parties initially dispute whether Garlin is an insured under his daughters’ policies. Under the Motor Vehicle Financial Responsibility Law, an “insured” is defined as any of the following:

“(1) An individual identified by name as an insured in a policy of motor vehicle liability insurance.
“(2) If residing in the household of the named insured:
“(i) a spouse or other relative of the named insured; or
“(ii) a minor in the custody of either the named insured or relative of the named insured.” 75 Pa.C.S. § 1702.

The policy at issue here states:

“Who Is Insured (Part 5)
“In Your Car (Includes a Substitute Car)
“You and a resident relative are insured while using your car or a substitute car covered under this part.
“Other people are insured while using your car or a substitute car covered under this part if you gave them permission to use it. They must use the car in the way you intended.
“In A Non-Owned Car
“You and a resident relative are insured while using a non-owned car. The owner must give permission to use it. It must be used in the way intended by the owner.”

Prudential argues that Garlin is not an insured under his daughters’ policies since he was driving his own vehicle and not either of his daughters’ vehicles at the time of the accident. It is apparent that he was not driving a “substitute car” or a “non-owned car” at the time of the accident.

The issue of whether the narrower definition of “insured” in the policy language cited above conflicts with the MVFRL was decided in Prudential Property and Casualty Insurance Company v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002). In Colbert, a motorist was injured in an automobile accident while driving his own vehicle which was insured by State Farm Insurance Company. Id. At the time of the accident, the motorist resided with his parents who owned three vehicles all of which were insured with underinsured motorists coverage under a single policy issued by Prudential. Id. The injured motorist settled his claim with the negligent party and received the policy limits. Id. He also recovered the maximum underinsured motorists benefits under his own policy with State Farm. Id. He then made a claim for underinsured motorists coverage under his parents’ policy with Prudential. Id.

Prudential denied coverage on two grounds: first, the motorist was not an “insured” under his parents’ policy; and second, the “other household vehicle” exclusion in the Prudential policy expressly excluded coverage for accidents occurring while the insured or household resident was using another owned vehicle not insured under the Prudential policy. Id.

Prudential filed a declaratory judgment action against the injured motorist and his parents in federal court. Id. The parties filed cross-motions for summary judgment, and the district court granted Prudential’s motion, finding that the motorist was not an “insured” under the Prudential policy and that he was excluded from coverage under the “other household vehicle” exclusion. Id. The motorist and his parents took an appeal to the United States Court of Appeals for the Third Circuit which certified two questions of Pennsylvania law to the Pennsylvania Supreme Court. Id.

The first question certified was whether the definition of “insured” in the Prudential policy, which is identical to the language in exhibit A, impermissibly narrowed and conflicted with the statutory definition of “insured” in the MVFRL. Id. The Pennsylvania Supreme Court held that the policy language conflicted with the MVFRL because it deemed a resident relative to be “insured” only when using a vehicle specifically insured under the Prudential policy. Id.

The decision in Colbert is controlling in this case. The definition of “insured” in exhibit A, part 5, impermissibly narrows and, therefore, conflicts with the plain language of the MVFRL. Accordingly, the court concludes that Garlin is an “insured” under the motor vehicle insurance policies issued by Prudential to each of his daughters pursuant to section 1702 of the MVFRL. Prudential Property and Casualty Insurance Company v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002).

Even though Garlin is an “insured” under his daughters’ policies, it still must be determined whether he is precluded from recovering underinsured motorists benefits due to the “other household vehicle” exclusion.

The “other household vehicle” exclusion in the subject policies provides:

“Other Household Vehicles
“We will not pay for bodily injury to anyone occupying or struck by a motor vehicle owned or leased by you or a household resident which is not covered under this policy, or if the liability coverage of that vehicle is used to pay any portion of an insured’s bodily injury liability claim.” (Complaint, exhibit A, part 5, p. 8.)

This identical language was described as a “family car exclusion” in Colbert as it excludes coverage for an otherwise insured individual where that person is occupying a separately owned vehicle that is not insured under the subject policy. Prudential Property and Casualty Insurance Company v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002). Since Garlin was driving his own vehicle at the time of the accident which was not listed on either Prudential policy issued to his daughters, the plain language of the “other household vehicle” exclusion would warrant Prudential in denying his claim for underinsured motorists benefits under those policies unless the exclusion is unenforceable as violative of clearly expressed public policy. Id.

This leads to the next point of contention between the parties which is the same as the second question certified by the United States Court of Appeals for the Third Circuit in Colbert, i.e., whether the “other household vehicle” exclusion in the Prudential policy is void as against public policy. Id.

“Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term ‘public policy’ is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy. . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.” Burstein v. Prudential Property and Casualty Insurance Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Eichelman v. Nationwide Insurance Company, 551 Pa. 558, 711 A. 2d 1006, 1008 (1998)).

“It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring [that the contract is against policy].” Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941).

The application of public policy concerns in determining the validity of an insurance exclusion is dependent upon the factual circumstances presented in each case. Paylor v. Hartford Insurance Co., 536 Pa. 583, 640 A.2d 1234 (1994).

The legislative concern for the increasing cost of insurance is the public policy that is to be advanced by statutory interpretation of the MVFRL. Burstein v. Prudential Property and Casualty Insurance Co., 570 Pa. 177, 809 A.2d 204 (2002). The court commented there:

“In light of the primary public policy concern for the increasing costs of automobile insurance, it is arduous to invalidate an otherwise valid insurance contract exclusion on account of that public policy. This policy concern, however, will not validate any and every coverage exclusion; rather, it functions to protect insurers against forced underwriting of unknown risks that insureds have neither disclosed nor paid to insure. Thus, operationally, insureds are prevented from receiving gratis coverage, and insurers are not compelled to subsidize unknown and uncompensated risks by increasing insurance rates comprehensively.” Id. at 184-85, 809 A.2d at 208.

Prudential asserts that the present case is controlled by Colbert and that Garlin should not be permitted to obtain coverage under his daughters’ policies for which he did not pay.

Garlin argues that Colbert is not dispositive of the issue presented because the facts in this case differ from those in Colbert. In the present case, unlike Colbert, all four vehicles owned by members of the Garlin family were insured under policies issued by Prudential. Garlin and his daughters each purchased underinsured motorists coverage and paid the premium for this coverage. Each policy listed all four members of the family as licensed operators residing in the household.

After careful consideration of the parties’ arguments and the applicable law, the court must conclude that Prudential’s position is correct.

The Supreme Court has reiterated that the legislative concern for the spiraling consumer cost of automobile insurance is the public policy to be advanced by the statutory interpretation of the MVFRL. Prudential Property and Casualty Insurance Company v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002); Burstein v. Prudential Property and Casualty Insurance Company, 570 Pa. 177, 809 A.2d 204 (2002); Paylor v. Hartford Insurance Co., 536 Pa. 583, 640 A.2d 1234 (1994). In the present case, Prudential may not be asked to underwrite an unknown risk since it insures each vehicle owned by members of the Garlin family. However, the spectre of providing Garlin with coverage for which he has not paid remains.

Both Garlin and his daughter, Chrissy, purchased the minimum $15,000/$30,000 underinsured motorists coverage. Jennifer, however, purchased more than three times the minimum coverage when she obtained underinsured motorists coverage of $50,000 per person and $100,000 per accident. Under the policy as it is written, Garlin would not be able to recover this higher level of underinsured motorists benefits. He would and did receive the coverage for which he paid. Voiding the “other household vehicle” exclusion, however, would allow him to collect underinsured motorists benefits under both his daughters’ policies and in an amount far greater than that for which he paid.

This is similar, although not identical, to the mischief the Supreme Court sought to discourage in Eichelman v. Nationwide Insurance Company, 551 Pa. 558, 711 A.2d 1006 (1998). In Eichelman, a motorist who had waived underinsured motorists coverage on his own policy sought to recover such benefits under the policies issued to his mother and her husband with whom the motorist resided. Id. The Supreme Court upheld the “household exclusion” under the circumstances noting:

“Allowing the ‘household exclusion’ language to stand in this case is further bolstered by the intent behind the MVFRL, to stop the spiralling costs of automobile insurance in the Commonwealth. If appellant’s position were accepted, it would allow an entire family living in a single household with numerous automobiles to obtain underinsured motorist coverage for each family member through a single insurance policy on one of the automobiles in the household. If this result were allowed, it would most likely result in higher insurance premiums on all insureds (even those without family members living at their residence) since insurers would be required to factor expanded coverage cost into rates charged for underinsured motorist coverage. Thus, allowing the ‘household exclusion’ language of the two insurance policies at issue to bar recovery by appellant of underinsured motorist benefits is consistent with the intent behind the enactment of the MVFRL.” Id. at 567, 711 A.2d at 1010.

Accepting Garlin’s argument and permitting him to recover underinsured motorists benefits would allow an entire family living in a single household with numerous automobiles to obtain a significantly higher level of underinsured motorists benefits through the device of obtaining minimum coverage on all of the vehicles except one. Premiums would certainly increase if insurers were required to provide the higher level of underinsured motorists benefits selected by one policy-holder to all drivers in the household even though only one premium for such higher coverage had been paid.

Accordingly, consistent with the reasoning of the Supreme Court in Colbert, Garlin’s claim for underinsured motorists benefits under the policies issued to his daughters must be rejected.

Garlin also claims that he is entitled to collect underinsured motorists benefits under his daughters’ policies because the policy language in the sections Other Household Vehicles, Regularly UsedNon-OwnedMotor Vehicles and Stacking of Underinsured Motorists Coverage Limits is reasonably susceptible of two different interpretations and should be construed in his favor to afford coverage. Garlin does not clearly articulate how he arrived at his determination that the sections referred to are reasonably susceptible of two different interpretations, and the court sees no ambiguity in the cited provisions which would warrant such a conclusion. Further, the court remains mindful of the admonition that it is not to distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. Madison Construction Company v. Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100 (1999). Garlin’s argument in support of this final proposition is unpersuasive.

For the reasons stated above, the court finds that Prudential is entitled to judgment in its favor. Therefore, the following order is entered:

ORDER

And now, May 23, 2003, the motion of plaintiff, Prudential Property and Casualty Insurance Company, for summary judgment is granted. The cross-motion for summary judgment filed by defendant, Niles L. Garlin, is denied.

      . Although they are named as defendants and were served with the complaint, neither Jennifer Garlin nor Chrissy Lynn Garlin have responded to the complaint and no entry of appearance has been filed on their behalf.

      . According to the docket, Prudential did not file a reply to new matter. It does not appear that the amended answer and new matter was endorsed with a notice to plead. See Pa.R.C.P. 1026(a).

      . The purpose of underinsured motorists coverage is to protect the insured from the risk that a negligent driver of another vehicle will cause injury to the insured and will have inadequate insurance coverage to compensate the insured for his injuries. Eichelman v. Nationwide Insurance Company, 551 Pa. 558, 711 A.2d 1006 (1998).

      . The motor vehicle insurance policies issued by Prudential to Garlin and his daughters are identical. The identity of the named insured, the vehicle covered and the coverage limits are reflected on the individual declaration pages for each policy.

        . Part 5 of the policy defines Substitute Cars as follows:

        “Substitute Cars

      “If a car owned under this part breaks down, is being serviced or repaired, or is stolen or destroyed, we will cover a car you borrow temporarily (with the owner’s permission) while your car is being repaired or replaced. This car cannot be owned by you or a household resident. The substitute car has the same coverage as the car that is out of service.” (Complaint, exhibit A, part 5, p. 7.)

      . The term non-owned car is also defined in the policy:

        “Non-Owned Car

        “A non-owned car is a car which is not owned by, registered in the name of or furnished or available for the regular or frequent use of you or a household resident.” (Complaint, exhibit A, definitions, p. 2.)


author: SCHMEHL, J.L.,

text:
    Santiago v. Bishop

      Jaffa F. Stein and Bonnie R. Love, for plaintiff.

      Kenneth A. Goodman, for defendant.
    May 16, 2003
   SCHMEHL, J.L.,

This is a negligence action for damages arising out of a collision involving a pedestrian and an automobile at the intersection of 5th Street and Walnut Street in the City of Reading. Fifth Street runs north and south and there is a traffic light at the intersection. Sometime between 9:30 p.m. and 10 p.m. on December 24, 1994, the plaintiff, Angel Santiago, began walking westbound across the south side of 5th Street in the crosswalk. David Bishop was traveling in an automobile northbound on 5th Street when he struck the plaintiff on the front driver side of his vehicle. As a result of this collision, the plaintiff suffered severe injuries.

On December 18, 2002, following a trial, the jury returned a verdict against Angel Santiago and in favor of David Bishop. Specifically, the jury apportioned the negligence between the parties as follows:

“David Wayne Bishop — 47 percent negligent
“Angel M. Santiago — 53 percent negligent.”

On December 27, 2002, the plaintiff filed post-trial motions. On February 14, 2003, this court heard argument on plaintiff’s post-trial motions. On March 11,2003, this court issued an order, denying plaintiff’s motions for post-trial relief. This appeal followed.

Pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure and an order of this court, the plaintiff filed a concise statement of matters complained of on appeal, asserting the following claims:

“(1) The trial court incorrectly charged the jury on assumption of the risk in a motor vehicle negligence case which doctrine [misled] and confused the jury. Once given, over plaintiff counsel’s objection, there was no curative instruction given as requested.
“(2) The trial court’s charge granting a directed verdict to defendant limited to speeding only was a misstatement of the law, confusing and erroneous, leading the jury to conclude that defendant had not breached other duties contrary to the evidence and law.
“(3) The trial court failed to instruct the jury as to defendant’s duty of care applicable to a motor vehicle operator facing a red, green or yellow light. In this case there was no credible evidence upon which this jury could conclude that defendant had a green light at the time of impact and the jury should have been charged accordingly.
“(4) The court erred in charging comparative negligence because defendant failed to meet its burden of proof on that issue.
“(5) The trial court’s charge on comparative negligence was a misstatement of law, misleading, confusing and erroneous. The charge as given was piecemeal and confusing. The trial court provided no factual context or criteria for an application of the charge to the facts of the case. The trial court failed to give plaintiff’s requested charge.
“(6) The [trial court’s] charge on substantial factor was flawed and erroneous because the charge failed to include the fact that there can be more than one substantial factor.
“(7) The trial court erroneously allowed counsel for defendant to cross-examine plaintiff’s expert with sections of the Pennsylvania Motor Vehicle Code which impose[s] a duty of care on a pedestrian not crossing within a crosswalk, which does not apply to the facts in this case. Under this section improperly referenced the pedestrian has a duty to yield to a motor vehicle operator. It was error for the trial court to allow a section of the Pennsylvania Motor Vehicle Code, which had no application to the facts in this case to the referenced, because the jury would naturally conclude that plaintiff had a duty to yield to defendant when he did not. Moreover, the court denied plaintiff’s request for a curative instruction which further unduly prejudiced the plaintiff.
“(8) In light of uncontroverted evidence produced at trial that defendant David Wayne Bishop, was negligent as a matter of law, [t]he jury’s verdict that plaintiff’s percentage of causal negligence was greater than defendant is contrary to the weight of the evidence and law.”

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure and for the following reasons this court asks that the instant appeal be denied.

THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE

The standard of review for a claim that the verdict is against the weight of the evidence is as follows: conflicting and the finder of fact could have decided either way.” Ty-Button Tie Inc. v. Kincel and Co. Ltd., 814 A.2d 685, 692 (Pa. Super. 2002).

“Our standard of review in denying a motion for a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion. A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the verdict is so contrary to the evidence it shocks one’s sense of justice. An appellant is not entitled to a new trial where the evidence is

In reviewing such a claim, the evidence must be viewed in the light most favorable to the verdict winner. Bey v. Sacks, 789 A.2d 232 (Pa. Super. 2001).

The relevant facts of this case are as follows: Sometime between 9:30 p.m. and 10 p.m. on December 24, 1994, the plaintiff, Angel Santiago, was walking west on the sidewalk of Walnut Street in the City of Reading. His girlfriend, Vanessa Rodriguez was walking two to three feet behind him. After the two approached the intersection of 5th Street and Walnut Street, Angel Santiago began walking across the southeast side of 5th Street in the crosswalk. David Bishop was traveling in a 1988 Hyundai Excel northbound on 5th Street when he struck the plaintiff on the front driver side of his vehicle. The windshield of the defendant’s car impacted the plaintiff’s head with such force that the windshield shattered, leaving a head-sized hole on the driver side of the glass. (See plaintiff’s exhibit 20.)

The plaintiff introduced eyewitness testimony from Charles He wins, another pedestrian in the vicinity of the accident. He testified that he was walking in the same direction of the plaintiff, except on the opposite side of the street. He stepped one foot off the curb in an effort to cross 5th Street when he witnessed the defendant’s vehicle strike the plaintiff. He also said that the defendant’s car struck the plaintiff with such force that the plaintiff literally flew up in the air and landed several feet from the point of impact. According to Charles Hewins, the traffic light for traffic traveling on Walnut Street was green. (N.T. 12/9/2002 pp. 146-50.)

The plaintiff’s engineering expert, George P. Widas, opined that the defendant caused the accident because there was “more than enough time from when Mr. Santiago stepped off of the curb and reached the point of impact for Driver Bishop to perceive, react and brake to a stop, as well as more than enough time to do other things such [as] just slow down and let Mr. Santiago clear his path of travel.” (N.T. 12/11/2002 p. 373.)

Although the defendant admitted to traveling 30 to 35 miles per hour, in excess of the 25 miles per hour speed limit, he did not admit that he ran the intersection’s red light. In fact, he testified that the last time he looked up at the traffic light, before crossing the intersection, the light was green. (N.T. 12/12/2002 pp. 323, 326.) In support of this claim, an independent eyewitness, taxi driver Michael Zocco, testified that he was stopped in his cab at a red traffic light on the west side of Walnut Street, facing east, at the time of the accident. He saw the defendant’s car approach the intersection, and he saw the plaintiff and his girlfriend walking toward the intersection. He then heard a loud thud and saw the plaintiff hurling through the intersection and landing on the southbound side of Fifth Street. During this entire time, according to Michael Zocco, the traffic light for traffic traveling on Walnut Street was red. (N.T. 12/13/2002 pp. 482-90.)

Moreover, the defendant introduced expert testimony from engineer James C. Druecker. He opined that the plaintiff should have been able to see the defendant’s vehicle as it was approaching northbound on 5th Street. He also testified that he believed that the plaintiff had more time to perceive, view, and react to the defendant’s vehicle than the defendant had with respect to the plaintiff. (N.T. 12/17/2002 pp. 267-69.) He also found significant that the plaintiff’s girlfriend, who was walking with the plaintiff, was able to avoid the accident, while the plaintiff was not. Id. at 256. Finally, he opined that no driver should “expect a pedestrian to be crossing against a red light in darkness at 9:30 at night on Christmas Eve.” Id. at 270.

“It is beyond argument that the fact-finder is free to accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence.” Gunn v. Grossman, 748 A.2d 1235, 1240 (Pa. Super. 2000), appeal denied, 564 Pa. 700, 764 A.2d 1070 (2000). The jury has the power to resolve conflicting testimony and determine which of the conflicting testimony, if any, it will accept. Goldmas v. Acme Markets Inc., 393 Pa. Super. 245, 574 A.2d 100 (1990). Conversely, a trial court lacks the authority to disregard the jury’s credibility determinations and substitute its own simply because the trial court would have reached a different conclusion. Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001).

In the instant case, there was conflicting testimony concerning two issues of the plaintiff’s case: (1) whether the defendant’s traffic signal was green, yellow, or red? and (2) assuming the defendant’s light was green, which party had the better opportunity to avoid the accident? In accordance with the standard set forth in Ty-Button Tie Inc. v. Kincel and Co. Ltd., supra, the plaintiff is not entitled to a new trial because the jury could have decided this case in either party’s favor. Obviously, the jury accepted the testimony of Michael Zocco, engineer James C. Draecker, and the defendant, over the testimony of the plaintiff and his witnesses. Accordingly, the jury was within its rights to resolve both of these questions in the defendant’s favor and conclude that the plaintiff was more negligent than the defendant in causing this accident.

Nevertheless, the plaintiff argues that because the defendant was negligent as a matter of law (i.e., the fact that he was speeding) the jury could not have found that plaintiff’s percentage of causal negligence was greater than defendant’s. This court disagrees.

Negligence as a matter of law often called “negligence per se” is conduct that may be treated as negligence without further argument or proof as to the particular surrounding circumstances. Gravlin v. Fredavid Builders and Developers, 450 Pa. Super 655, 677 A.2d 1235 (1996). Violation of a statute constitutes negligence per se. Id. at 661, 677 A.2d at 1238. Speeding is a violation of the Vehicle Code, 75 Pa.C.S. §3362, and therefore constitutes negligence per se. However, a violation of a statute, although negligence per se, does not constitute grounds for imposing liability unless it can be shown to be a substantial factor in causing the injury and no other negligence also a substantial factor was found by the finder of fact to be greater. Id. Moreover, the determination that a party has been negligent per se does not foreclose the jury from considering the comparative negligence of both parties.

The evidence from engineer James C. Druecker was that the plaintiff, notwithstanding the defendant’s speeding, had the better opportunity to perceive, view, and react to the defendant’s vehicle. Assuming that the defendant traversed the intersection with a green light and the plaintiff did not, reasonable minds could differ as to whether or not the speed at which the defendant drove outweighed any and all other negligence. Consequently, the jury may and did reasonably conclude that plaintiff’s percentage of causal negligence was greater than that of the defendant.

THE COURT DID NOT ERR IN ALLOWING THE DEFENDANT TO CROSS-EXAMINE THE PLAINTIFF’S EXPERT ON THE VEHICLE CODE

The Superior Court has held that “[t]he scope of cross-examination is within the sound discretion of the trial court, and we will not reverse the trial court’s exercise of discretion in absence of an abuse of that discretion.” Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579, 592 (Pa. Super. 2002). “[I]n setting limits on cross-examination, the trial court may consider whether the cross-examination would be likely to confuse or mislead the jury.” Id. (quoting General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 635 A.2d 173 (1993)). As with any other type of evidence, to be admissible it must be relevant and also not unfairly prejudicial. See Pa.R.E. 403.

In the instant case, during direct examination, plaintiff’s counsel posed questions to their expert engineer concerning the Pennsylvania Driver’s Manual:

“Ms. Stein: How did you use the Pennsylvania Driver’s Manual, what portion of it?
“The witness: It describes driver performance and responsibilities.
“Q: What portions of that did you rely upon in this case?
“A: There is a right-of-way section in the driver manual that explains drivers’ and pedestrians’ rights of way.
“Q: What does the Pennsylvania Driver’s Manual tell us?
“A: It says that the law does not give anyone the right-of-way. It only tells who must yield the right-of-way. It goes on to say drivers must yield to pedestrians in crosswalks.
“Q: There’s no qualification to that?
“A: Correct.” (N.T. 12/13/2002 pp. 374-75.) (emphasis added)

Therefore, the plaintiff’s expert witness improperly characterized portions of the driver’s manual as “the law.” Moreover, the expert’s report stated that the law does not give anyone the right of way; it only says who must yield. When the defendant’s counsel attempted to clear this up during cross-examination, the plaintiff objected. (N.T. 12/13/2002 p. 421.) During a lengthy in-chambers discussion, the court ultimately ruled that the defendant could cross-examine the expert on whether he reviewed the Pennsylvania statutes and whether he was aware that there is a statute giving rights to both parties. However, the court specifically ruled that defense counsel was prohibited from going into detail with the statute. Id. at 426.

In view of the fact that the plaintiff purposely elicited legal opinions from the expert, this court believes the ruling was fair to both sides. Moreover, the impact that this ruling had on the outcome of the trial was minimal since the court, not the parties, ultimately instructed the jury on the law.

THE COURT DID NOT ERR IN CHARGING THE JURY ON COMPARATIVE NEGLIGENCE

The standard of review for determining whether a trial court erred by giving a jury instruction on comparative negligence is as follows:

“The standard for determining whether a jury instruction on comparative negligence is warranted under Pennsylvania law is well settled. The burden of establishing comparative negligence rests on the defendant. Pascal v. Carter, 436 Pa. Super. 40, 647 A.2d 231, 233 (1994) (citing McCullough v. Monroeville Home Association, Post 820 Inc., 270 Pa. Super. 428, 411 A.2d 794, 795 (1979)). “[I]f there is some evidence of [comparative] negligence produced in any of the evidence, it is reversible error not to charge the jury on the issue, when requested to do so by the defendant.” Id. (citing Matteo v. Sharon Hill Lanes Inc., 216 Pa. Super. 188, 263 A.2d 910 (1970)). See e.g., Rizzo v. Michener, 401 Pa. Super. 47, 584 A.2d 973 (1990), appeal denied, 528 Pa. 613, 596 A.2d 159 (1991) (citing Levine v. Rosen, 394 Pa. Super. 178, 575 A.2d 579 (1990), affirmed, 532 Pa. 512, 616 A.2d 623 (1992)); Binder v. Jones & Laughlin Steel Corp., 360 Pa. Super. 390, 520 A.2d 863 (1987), appeal denied, 516 Pa. 631, 533 A.2d 90 (1987); Speer v. Barry, 349 Pa. Super. 365, 503 A.2d 409, 412 (1985), appeal denied, 514 Pa. 623, 522 A.2d 49 (1987). In addition, a plaintiff’s negligent conduct must be a proximate cause of his injury if his conduct is to affect his recovery. Pascal, supra (citing Koelle v. Philadelphia Electric Co, 443 Pa. 35, 277 A.2d 350 (1971)). For negligent conduct to be a proximate cause of an injury, it must be a substantial factual cause of the injury for which damages are sought (citing Dornon v. Johnston, 421 Pa. 58, 60, 218 A.2d 808, 809 (1966)).” Zieber v. Bogert, 747 A.2d 905, 908 (Pa. Super. 2000).

In the instant case, the defendant produced evidence that the plaintiff was walking against a red light at 9:30 p.m. and stepped out in front of a moving vehicle. Clearly, the jury could have concluded that this was negligent behavior on the part of the plaintiff which was a proximate cause of the accident. Accordingly, it would have been reversible error had this court not given an instruction to the jury on comparative negligence.

THE PLAINTIFF WAIVED ANY CHALLENGE TO THE COURT’S JURY INSTRUCTION ON COMPARATIVE NEGLIGENCE

Although the plaintiff argues that the comparative negligence charge should never have been given, the plaintiff alternatively argues that the substance of the jury instruction on comparative negligence was a “misstatement of law, misleading, confusing and erroneous. The charge as given was piecemeal and confusing. The trial court provided no factual context or criteria for an application of the charge to the facts of the case. The trial court failed to give plaintiff’s requested charge.”

“There can be no doubt that [pursuant to the provisions of Rule 302] issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Truesdale by Truesdale v. Albert Einstein Medi cal Center, 767 A.2d 1060, 1063 (Pa. Super. 2001) (quoting Commonwealth Liquor Control Board v. Willow Grove Veterans Home Association Inc., 97 Pa. Commw. 391, 509 A.2d 958, 961 (1986)). A litigant’s failure to object to jury instructions at the time they are given constitutes a waiver of that issue on appeal. See Reardon v. Meehan, 424 Pa. 460, 468, 227 A.2d 667, 672 (1967) (holding that “[CJounsel shall not sit idly by, takfing] his [or her] chances with instructions given at trial, and then, having lost the case, seek a new trial and second opportunity, on the ground that the charge was prejudicial to his client”).

In the instant case, after the court gave the substance of its closing instructions to the jury and the jury was sent into the deliberation room, counsel for the plaintiff objected, as follows:

“Ms. Stein: And it’s in the comparative negligence statute, and I didn’t hear that language, judge.
“The Court: All right. Hold that. Let’s bring the jury— tell them they’ve got to come back in the courtroom.
“Ms. Love: Before you get there, judge, why don’t we get it out.”

(Whereupon, the jury returned to the courtroom at 1:50 p.m.)

“Ms. Stein: I can give you the statute, judge.
“The Court: All right, ladies and gentlemen. Sorry to interrupt your lunch. But before you begin your deliberations, as counsel and I were discussing the exhibits, there was one more point brought up that you must be instructed on. I’m in the process of getting that. Is it in the book? Is it in the book you have?
“Ms. Stein: Yes, judge, but you have to kind of—
“The Court: Just bring it here and I’ll start. All right.
“This last part deals with the apportionment which would be question three on the verdict slip. If you would find that the plaintiff was contributorily negligent and that such contributory negligence was a substantial factor in bringing about his harm, then you must apply the Comparative Negligence Act which provides as follows: The fact that a plaintiff must have been guilty of negligence shall not bar a recovery by the plaintiff where such negligence was not greater than that causal negligence of the defendant. But any damages sustained by the plaintiff shall be diminish[ed] in proportion to the amount of negligence attributed to the plaintiff. All right. Is there any other part of that that you request read?
“Ms. Stein: Yes
“The Court: All right. All right. Let me see counsel at side-bar.”

(Whereupon, discussion was held off the record at sidebar.)

“The Court: I’ll read this again so I can read the whole thing in context for you, ladies and gentlemen. The fact that a plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff where such negligence was not greater than the causal negligence of the defendant, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributable to him. If you have found the plaintiff’s causal negligence to be greater than 50 percent, then the plaintiff cannot recover in this case, and you should not go on to the question about damages; and then you should return to the courtroom. That would be if you find the plaintiff’s causal negligence to be greater than 50 percent, then don’t go on to the final question, just return to the courtroom.
“After you return your answers to these questions on the verdict form signed by the foreperson, the court will then determine the amount to be awarded to the plaintiff, if any, by reducing the amount of damages found by you in proportion to the percentage of the plaintiff’s causal negligence, if any.
“I again caution you that you are not to make this reduction yourselves in reaching the amount of the plaintiff’s damages, period.
“All right. Any counsel want to see me?
“Ms. Stein: No. Thank you, judge.
“Mr. Goodman: No. Thank you very much, your honor.
“The Court: All right. Everybody is now happy. You may now resume your deliberations.” (N.T. 12/13/ 2002 pp. 76-79.)

Therefore, not only did the court read twice the language from the comparative negligence statute, as requested by the plaintiff’s counsel, the court also gave the plaintiff ample opportunity to object or request changes after the court’s jury instructions were completed. When asked by the court whether either party wanted to see the court again at side-bar, Ms. Stein stated, “No. Thank you, judge.” Id. Any objections could have been dealt with at that time and corrected before the jury resumed their deliberations. Counsels’ failure to do so constituted a waiver of a challenge to that jury instruction.

Assuming arguendo, that the plaintiff did not waive this issue, then the standard of review for a challenge to jury instructions is “to determine if the trial court abused its discretion or committed an error of law. We will not grant a new trial because of an erroneous jury instruction unless the jury charge in its entirety was unclear, inadequate, or tended to mislead or confuse the jury.” Hall v. Jackson, 788 A.2d 390, 399 (Pa. Super. 2001) (quoting Fragale v. Brigham, 741 A.2d 788, 790 (Pa. Super. 1999). Further, “a trial judge has wide latitude in his or her choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law.” Id.

The court has reviewed the transcript with respect to its instructions to the jury on comparative negligence. This court found this charge to be a correct statement of Pennsylvania law and fair to both the plaintiff and the defendant. Accordingly, this post-trial claim is without merit.

THE COURT DID NOT ERR IN ITS INSTRUCTIONS TO THE JURY ON THE DEFENDANT’S DUTY OF CARE

Next, the plaintiff argues that the court’s instruction to the jury on the defendant’s duty of care was inadequate because, “there was no credible evidence upon which this jury could conclude that defendant had a green light at the time of impact and the jury should have been charged accordingly.”

This is simply a restatement of the plaintiff’s argument that the verdict was against the weight of the evidence. We have already addressed this argument above.

THE COURT ISSUED A SUFFICIENT CURATIVE INSTRUCTION

The defendant requested that the court give an instruction to the jury on assumption of the risk. The court held an in-chambers charging conference prior to closing arguments. At this charging conference, the plaintiff did not object to this charge, nor did the defendant formally withdraw his request for this jury instruction. Therefore, the court read the standard charge to the jury on assumption of the risk. (See N.T. 12/17/2002 pp. 54-55.) After the court read the substance of its instructions, the court asked whether either party wanted to see the court at sidebar. Id. at 68. At this point, counsel for the plaintiff objected to the assumption of the risk charge, asserting that they had recently given a written objection to the court’s clerk. Id. at 68-69. The court then asked both counsel how it wanted the court to respond, as demonstrated by the following dialogue:

“The Court: What would you like me to do?
“Ms. Stein: I think you need to tell the jury that [assumption of the risk] doesn’t apply in this case.
“The Court: Okay.
“Ms. Stein: Tell them what you read them and they can disregard that, that that defense is not available to the defendant in a negligence case.” Id. at 72-73.

Whereupon the court issued the following curative instruction.

“The Court: Ladies and gentlemen, in order to complete my charge, I need to inform you of certain things.
“Number one, when I charged you on assumption of the risk, that does not apply in this case under the facts and under the decisions that I have already made, so you are just to take that part out of the case.” Id. at 73.

The plaintiff complains that no curative instruction was given as requested. This court disagrees. The record clearly demonstrates that a curative instruction was given, that instruction was consistent with plaintiff’s request, and it was sufficient to apprise the jury that they were to disregard the assumption of the risk doctrine. It was only after the jury was sent back into the deliberation room that plaintiff’s counsel stated that she wanted to “place an exception on the record” with respect to the sufficiency of the court’s curative instruction. Id. at 74-75. Specifically, she stated that she wanted the court to reread the assumption of the risk instruction and then tell the jury to disregard it. This court believes that this objection was untimely. Moreover, rereading the assumption of the risk instruction was unnecessary, repetitive, and such repetition may even have been prejudicial to the plaintiff. Accordingly, this claim is without merit.

THE COURT DID NOT ERR IN ITS INSTRUCTION TO THE JURY ON SUBSTANTIAL FACTOR

Next, the plaintiff argues that the charge on substantial factor was flawed and erroneous because the charge failed to include the fact that there can be more than one substantial factor. In support of this argument, the plaintiff at trial referred the court to the following two cases: Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997), and Kruczkowska v. Winter, 764 A.2d 627 (Pa. Super. 2000).

In Kruczkowska, a bicycle rider was injured when she collided with an automobile because the automobile pulled out onto the roadway without first looking to see if the path was clear. The jury found that the automobile driver was negligent but that her negligence was not a substantial factor in bringing about her injuries. When the trial court denied post-trial motions, the Superior reversed, holding that the jury’s determination that the car driver’s negligence was not a substantial factor bore no rational relationship to the evidence adduced at trial.

The Superior Court summarized its holding in Craft as follows:

“In Craft, the plaintiff and defendant were involved in a motor vehicle accident. At trial, both parties presented expert medical testimony regarding the nature of plaintiff’s injuries. The medical experts testified that plaintiff was injured as a result of the accident and differed only with regard to the severity and duration of the injuries. In response to interrogatories, the jury found the defendant was negligent in causing the accident, but found that the negligence was not a substantial factor in causing plaintiff’s injuries. On appeal, [the Superior Court] affirmed the trial court’s grant of a new trial based upon its finding the verdict was against the weight of the evidence.” See Kruczkowska at 629.

At trial, this court addressed the plaintiff’s substantial factor argument as follows:

“The Court: Well, it doesn’t talk about two substantial factors. And if I feel that the jury has a right to determine whether or not Mr. Santiago’s negligence was a substantial factor in causing the accident. Where does it talk about two substantial factors or superseding substantial factor?
“Ms. Stein: Well, judge, there is — frankly, the jury can decide that there are two substantial factors and one of the substantial factors, whether it be Mr. Santiago or Mr. Bishop, was more negligent than the other.

“Ms. Love: Right.

“The Court: That’s what I just asked you.
“Ms. Stein: Yes, I believe that they can.
“The Court: But where does it say that? I was looking for language saying that there can be two substantial factors.” (N.T. 12/17/2002 pp. 36-37.)

Contrary to plaintiff’s assertion, neither Craft nor Kruczkowska stand for the proposition that there must be two substantial factors where both parties are negligent. Furthermore, the court ruled as a matter of law that the defendant’s negligence was a substantial factor and left it up to the jury to determine whether or not the plaintiff’s negligence, if any, was also a substantial factor. Therefore, the issue of one or more substantial factor is not a real issue in this case. The jury concluded that both parties committed negligence that rose to a substantial factor in bringing about the harm. Therefore, the issue is simply that of comparative negligence. Accordingly, the court did not err in its instruction to the jury on substantial factor.

THE COURT DID NOT ERR IN ITS CHARGE TO THE JURY CONCERNING THE DIRECTED VERDICT

Finally, the plaintiff complains that the trial court erred in “granting a directed verdict to defendant limited to speeding only” because such an instruction “was a misstatement of the law, confusing and erroneous, leading the jury to conclude that defendant had not breached other duties contrary to the evidence and law.”

It should first be noted that the court granted a directed verdict in favor of the plaintiff — not the defendant. The court instructed the jury that because of the defendant’s admitted speed violation, the defendant, as a matter of law, was negligent and that that negligence was a substantial factor in bringing about the plaintiff’s harm. (N.T. 12/18/2002 p. 51.)

This instruction was clearly not a misstatement of the law. Whether the defendant breached any other duties was irrelevant to the issue of a directed verdict and was a matter for the jury. Plaintiff fully argued this to the jury and the charge by the court supported that argument. The plaintiff was not entitled to a directed verdict on defendant’s negligence greater than the one received. Accordingly, the court did not err in its charge to the jury on the directed verdict and for all the foregoing reasons, the instant appeal should be denied.


author: TERESHKO, J.,

text:
    Perlberger v. American Lawyer Media Inc.

      Norman Perlberger, pro se.

      Mary Elizabeth Kohart, for defendants.
    January 11, 2001
   TERESHKO, J.,

Now pending before this court are the separate but compatible motions for summary judgment filed by defendants American Lawyer Media Inc. d/b/a The Legal Intelligencer (Legal) and Metrocorp d/b/a Philadelphia Magazine (Philadelphia Magazine). These motions seek to dismiss in its entirety the defamation action of Norman Perlberger.

Perlberger brings his complaint upon a series of three articles published in Legal dealing with his ongoing personal litigation stemming from his divorce and issues collateral and related thereto. Within one article commonly referred to as the “ethics article” is a side article penned by a Professor Hazard, who was an ethics expert opining on Perlberger’s ethical behavior.

As a matter of course, courts are cautioned to use their power to grant summary judgment wisely and sparingly. This caution is tempered when the subject is the right to free speech exercised by a free press. Matters which would sometimes be left to a trial judge must receive closer scrutiny to avoid the potentially tyrannical environment of a trial. To do otherwise would subject this most cherished of rights to such legal assault which would eventually impoverish this freedom.

With this as a benchmark, the court reviewed each article and finds as a matter of law as follows: Each of the three articles provide a fair, accurate and balanced report on the pending litigation. Any reader of these articles could never be reasonably left with an understanding other than that they were seeing allegations or counterallegations made in legal pleadings or findings of a court. At each critical place in the writing, whether it be at the beginning of a paragraph or at the beginning of sentences mid-paragraph, the reader is advised and reminded of the nature of what is being reported, be it allegations of parties or findings of a judge.

Therefore, the court finds that the three litigation articles are privileged and protected under the Fair Reporting Doctrine. First Lehigh Bank v. Cowen, 700 A.2d 498 (Pa. Super. 1997).

The scope of Perlberger’s claims also encompass the “Hazard side article” which was a summary of the expert opinion which was produced as part of the Strausser litigation. A full reading of the article makes clear that it is doing no more than reporting the opinion of an expert in this area of legal ethical behavior. The opening phrases of the first and second paragraphs make no mistake about what is being offered.

“If the case of Strausser v. Perlberger had gone to trial ....” (1st paragraph, Hazard article.)

“In my opinion . . . .” (2nd paragraph, beginning a lengthy direct quote from the Hazard opinion.)

Continuing this same format throughout the article, a reader could never reasonably conclude that what is being stated is fact, but must conclude that they are reading opinion only. Therefore, the court finds as a matter of law that the Hazard article includes only opinion and none of its content is statement of fact; as such, it cannot support an action for libel.

Perlberger’s complaint includes as a defendant, Metrocorp (Philadelphia Magazine). This defendant also seeks summary judgment. As an integral part of resolving this motion, this court must decide whether Perlberger is a “general public figure” or a “limited purpose public figure.” If Perlberger is found to be either, the burden then shifts to him to prove malice by defendants in publishing the article.

Considering the extent to which Perlberger sought the public eye during his legal career and the extent of the public nature of this controversy, it is but a small leap to conclude as a matter of law, that Norman Perlberger, Esquire, is a “limited purpose public figure.”

Following this conclusion, the court further finds that none of the evidence proffered by plaintiff could support a finding of malice by defendant (Philadelphia Magazine). The court further finds that none of the evidence proffered by plaintiff could support a finding of malice by defendant (Legal).

The Philadelphia Magazine article was further defended on a number of points which for the purposes of this summary judgment, is presented in succinct form. A full and exhaustive reading of the article compels the court to conclude that where pertinent, the article presents opinion, a fair reporting of legal proceedings, statements that are not capable of a defamatory meaning or statements that cannot reasonably be shown to be untrue. These findings now render the article as deserving of the full protection of the First Amendment and the Fair Reporting Doctrine.

For the above reasons, the court grants summary judgment for both defendants and dismisses plaintiff’s complaint in its entirety.

ORDER

And now, January 11, 2001, upon consideration of plaintiff Norman Perlberger’s motion for partial summary judgment, plaintiff’s motion in limine as to American Lawyer Media and American Lawyer Media Inc.’s omnibus response in opposition to both motions, it is hereby ordered that said motions are denied as follows:

(1) Plaintiff’s motion for partial summary judgment is denied as it relates to defendant American Lawyer Media Inc.; and

(2) Plaintiff’s motion in limine is denied in its entirety.

ORDER

And now, January 11, 2001, upon consideration of plaintiff’s motion for partial summary judgment and the opposition to that motion by defendant Metrocorp d/b/a Philadelphia Magazine, it is hereby ordered that plaintiff’s motion is denied. It is further ordered that summary judgment is entered in favor of Metrocorp on any claims asserted against it by plaintiff that relate to any illustrations, photographs, and other artwork published by Philadelphia Magazine.

      . This democracy is “married” to the First Amendment. As such, we take it, “for better or for worse.”