author: KUHN, J.,

text:
    Gettysburg Construction Co. v. Griffo

      C.P. of Adams County,
    no. 98-S-302.

      Robert G. Teeter, for petitioner.

      David R. Dearden, for respondents.
    August 11, 1998
   KUHN, J.,

— On September 22, 1994, petitioner, Gettysburg Construction Company, and respondents, Mark D. and Trudi E. Griffo, entered into an agreement for the construction of a residential home. The parties entered into a limited warranty agreement with Quality Builders Warranty Corporation. Respondents allegedly noticed problems with the walls and floors, and proceeded under the terms of the warranty agreement. That process led to arbitration. On October 30, 1997, an arbitration award was issued in favor of petitioner. Pursuant to terms of the warranty agreement, respondents appealed this award to an appellate arbitrator who denied the appeal. On March 26, 1998, petitioner filed a petition to confirm arbitration award and enter judgment. On April 27, 1998, respondents filed a response to this petition. A hearing was held by this court on May 11,1998, at which time respondents made an oral motion to amend their initial response, raising the argument that the arbitration is not binding common-law arbitration and, in the alternative, that the limited warranty agreement at issue violates Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

LEGAL DISCUSSION

Respondents first argue that the arbitration was not binding common-law arbitration under the terms of the warranty. The relevant terms of the warranty agreement, for purposes of respondents’ first argument, are as follows:

“Note: This limited warranty agreement includes a procedure for informal settlement of disputes. Homeowners should read this entire agreement carefully in order to understand the protection which it provides, the exclusions which are applicable to it, and the warranty standards according to which the builder’s compliance will be measured. For additional information, contact QBW at (717) 737-2522.

“IV. General terms and conditions/rights and responsibilities . . .

“E. General terms governing interpretation and operation.

“Certain generally applicable terms and conditions will govern the interpretation and operation of this agreement. These terms and conditions are: . . .

“8. This agreement is deemed to be binding on the builder, QBW, and the purchaser, his heirs, executors, administrators, successors and assigns.

“VI. Complaint and claim procedure

“A. Step one. Upon discovery of some fault or defect which you believe is covered by this agreement, you should first send a clear and specific written notice to your builder. You must make your home available for inspections and repairs during normal working hours. Notice to your builder does not constitute notice to QBW.

“B. Step two. If, after receiving notice, your builder does not respond within a reasonable time, you should then give written notice of your complaint to QBW by certified mail, return receipt requested. QBW must receive written notice of your complaint no more than 30 days after the expiration of the applicable warranty period. If your complaint is received by QBW after 30 days from the expiration of the warranty on the item, it will not be honored. Notice to your builder does not constitute notice to QBW. The notice to QBW must include: your warranty number and effective date, your name, address and telephone number, builder name and address, as well as a description of the defect and the warranty standard which applies specifying the page and section of the warranty, as well as all previous written correspondence to the builder pertaining to the defect. Telephone complaints will not be honored as notice. Photographs are not necessary, but if supplied will not be returned.

“C. Step three. QBW will review your complaint and, if necessary, QBW will cause an investigator, who may be an employee of QBW, to view the defect and to report to both you and your builder. The investigator’s report will be completed within 20 days of receipt of your request. The report will state the builder’s obligations. Upon receipt of this report, you have 30 days to accept the report.

“Where a claimed defect is filed that cannot be observed or determined under normal conditions, it is the homeowner’s responsibility to substantiate that the condition does exist. Any cost involved shall be paid by the owner, and if properly substantiated, reimbursement shall be made by your builder or QBW, whichever is liable for the claim.

“D. Step four. If you disagree with the investigator’s report, you have 30 days to notify QBW and the builder in writing, that you disagree. In such event, disputes on covered items shall be submitted for arbitration to the American Arbitration Association or such other independent arbitration service as may be designated by QBW, for resolution in accordance with the rules and regulations of the AAA, or such other service. You must pay the cost of arbitration when filing a claim. Such arbitration shall be a condition precedent to the commencement of any litigation by the homeowner or builder arising out of or connected with the rights and obligations created by this agreement. Upon delivery of an arbitration award to the parties, any party may, within 20 days, request an appeal of the award. A request for appeal must be sent, together with the appropriate administrative fee, to QBW, with copies of the request simultaneously being sent to all other parties. Upon receipt of the request for appeal and the appropriate administrative fee, QBW will forward the application to the AAA, or other service, for administration. The AAA, or other service, will appoint an appellate arbitrator, in accordance with its procedures, to review the matter, and visit the home and view the subject matter of the purchaser’s complaint. Within 10 days of receipt of notice of appeal from the AAA, or other service, the other parties must deliver a written reply to the appeal to the AAA, or other service, and simultaneously send it to all other parties. The AAA, or other service, will transmit copies of the appeal and the reply to the appellate arbitrator. The appellate arbitrator will schedule an additional hearing at the home. The appellate arbitrator shall render a decision regarding the application for appeal and reply, if no party wishes a site hearing, or within 20 days after the site hearing. The appellate arbitrator may not review any new or different complaints, but may modify or change the award if he or she finds that the award exceeds or does not meet the scope of the warranty or its coverage. The AAA, or other such party, will notify all parties of the decision of the appellate arbitrator, which will be final. The builder and QBW have agreed to be bound by the final award of arbitration or appellate arbitration, as applicable, in all states. Judgment upon the final award rendered in arbitration may be entered in any court having jurisdiction in those states where such arbitration is binding upon all parties thereto.

“This request for arbitration shall occur only after the investigation process has been completed. In states where this arbitration can be legally binding on all parties to the arbitration, then this arbitration is binding. In states where this arbitration is not binding on one or more parties to the arbitration, then arbitration in accordance with this contract shall be a condition precedent to the commencement of any litigation by the homeowner or builder to compel compliance with the warranty documents or to seek relief for any dispute arising out of this program.

“1. Acceptance. If you accept the decision, you must sign a copy of that decision which will be provided for this purpose and you must then return the signed copy to QBW within 30 days of its date. Your builder will then perform as required by the decisions, but neither QBW nor the builder will be responsible for damages caused or made worse by your delay in accepting the decision. If the decision places a time period on your builder’s performance, the time allowed will be measured from the date QBW receives your acceptance of the decision. Sixty days will be the standard time for compliance, weather conditions permitting.

“2. Rejection. If you decide to reject the decision, your builder is under no obligation to perform.

“3. Right of access. You must provide the builder, or if applicable, QBW, with reasonable weekday access during normal business hours in order to perform its obligations under this agreement. Failure by you to provide such access to the builder or QBW may relieve the builder or QBW of its obligations under this agreement.” (Petition to confirm arbitration award and enter judgment, exhibit 2.)

Respondents argue that the language of the warranty agreement fails to inform the purchaser that the “informal arbitration” (as they describe the process) will be considered binding common-law arbitration. In particular, respondents argue that the language indicating that arbitration is a condition precedent to litigation leads one to the conclusion that litigation is permitted. This court does not agree.

Arbitration agreements are contractual in nature and therefore are interpreted by referring to contract principles. Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 284, 687 A.2d 1167, 1171 (1997). (citations omitted) We note initially that the task of interpreting a contract is generally performed by the court with the primary objective being the effectuation of the intent of the parties as is reasonably “manifested by the language of the written instrument.” Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). Additionally, the plain and ordinary meaning of the language in the contract should control when possible. Toombs N.J. Inc. v. Aetna Casualty & Surety Co., 404 Pa. Super. 471, 477, 591 A.2d 304, 307 (1991).

In the matter sub judice, this warranty agreement clearly attempts to cover all possible purchasers. In furtherance of that goal, QBW has attempted to make the law of the state in which the contract is entered applicable. The terms of the warranty clearly state that if the agreement is entered into in a state in which arbitration may be binding upon all parties, it will be. This language could not be clearer. Thus, it is up to the purchaser at that point to discover if the arbitration would be binding upon them in their state. The language is not misleading. The reference to possible litigation after arbitration is clearly meant to apply only to purchasers in those states in which arbitration is not legally binding.

In Pennsylvania, if the language of an arbitration clause does not specifically refer to the Uniform Arbitration Act, 42 Pa.C.S. §7301 et seq., it is conclusively presumed that the parties agreed to common-law arbitration. Pennsylvania Social Services Union, Local 668, SEIU v. Pennsylvania Department of Labor and Industry, 105 Pa. Commw. 264, 272, 524 A.2d 1005, 1009 (1987). Common-law arbitration is binding and can be disputed only for the reasons set forth in 42 Pa.C.S. §7341. None of those reasons are raised presently. Thus, the parties contracted for binding arbitration and are bound by those terms.

Respondents argue, in the alternative, that the warranty violates Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. 73 Pa.C.S. §201-1 et seq. In particular, respondents claim that petitioner engaged in “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa.C.S. §201-2(4)(xxi). Respondents argue that the warranty is “illusory and does not provide the homeowner with any reasonable bargained for consideration.” (Respondents’ brief in support of amended response to petition to confirm arbitration award and enter judgment at 6.) Additionally, respondents allege that the warranty is an attempt by the builder to deprive the homeowner of any remedy for what are allegedly serious structural defects.

Respondents’ first argument is without merit. The warranty provides protection for what is defined as “major structural defects” with the home. The language clearly sets forth what is and what is not covered. It is not deceptive or fraudulent and provides protection for those defects set forth in detail in section V (warranty standards) of the warranty.

Respondents’ second argument is that petitioner is attempting to deprive them of any remedy for serious defects with their home. This is incorrect. The arbitration dealt with the issue of whether the alleged defects were covered under the express warranty contracted for by the parties. The determination that the alleged defects are not covered under the warranty is conclusive as to the parties’ responsibilities under that warranty only. However, it is not conclusive as to the respondents’ ability to bring an action against the builder under the construction contract and/or implied warranties. These are claims separate from the parties’ responsibilities under the express warranty agreement. There is no language in the warranty agreement precluding respondents from bringing such actions. As a matter of fact, the warranty language specifically states that it is separate and apart from the contract between purchasers and their builder. Thus, the warranty does not shelter petitioner from all responsibility in relation to the construction of the home.

Accordingly, the attached order is issued.

ORDER

And now, August 11, 1998, petitioner’s petition to confirm arbitration award and enter judgment is hereby granted.

      . The court notes petitioner’s objection to the filing of respondents’ amended response. However, respondents’ oral motion to amend was granted, and the amended response will be taken as an exhibit to this oral motion.


source: Caselaw Access Project

author: BATTLE,

license: Public Domain

text:
    PennDOT v. Troisi

      C.P. of Delaware County,
    no. 98-5221.

      Marc A. Werlinsky, for Commonwealth.

      Vincent P. DiFabio, for appellant.
    July 7, 1998
   BATTLE,

— The case captioned above

has been consolidated with other Driver License Compact cases for purposes of this opinion.

FACTS

Appellants are Pennsylvania motor vehicle operators appealing their driver’s license suspensions. Between March 5, 1997 and December 11, 1997, each of the appellants was convicted of violating New Jersey statute 39:4-50(a), with the exception of David Seidman, who was convicted of violating Florida statute section 316.193(b). All of the convictions were for driving under the influence of alcohol. Upon receipt of a record of each offense from the respective states, the Pennsylvania Department of Transportation notified each appellant that his/her license was being suspended for a period of one year. The language of the notice to the appellants who were convicted of violating New Jersey’s DUI statute was as follows:

“Section 1581 of the Vehicle Code requires the department to treat certain out-of-state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the department receiving notification from New Jersey of your conviction on_of an offense which occurred on_, which is equivalent to section 3731 of the Pa. Vehicle Code, Driving Under Influence, your driving privilege is being Suspended for a period of one year, as mandated by section 1532B of the Vehicle Code.”

The notice sent to David Seidman included the appropriate reference to the Florida DUI statute. Appellants timely appealed their suspensions pursuant to 75 Pa.C.S. §1550 (Motor Vehicle Code). The cases were consolidated on November 18, 1997, and a hearing was held before this court on January 22, 1998.

BACKGROUND

Pennsylvania entered into the Interstate Driver License Compact on December 10, 1996, by the addition of 75 Pa.C.S. §1581 to the Motor Vehicle Code. Prior attempts to impose the provisions of the compact by actions of the Secretary of Transportation were held to be invalid in Sullivan v. PennDOT, 708 A.2d 481 (Pa. 1998). Our Supreme Court held that driver’s license suspensions based on convictions which occurred prior to the legislative enactment of the compact were invalid and that the secretary had exceeded his authority. All of the cases now before this court involve convictions which occurred after the compact was in effect, and Sullivan therefore does not apply.

This court finds that: (1) Pennsylvania lacks statutory authority to suspend the appellants’ operating privileges under 75 Pa.C.S. § 1532(b)(3); (2) civil reservations permitted under New Jersey’s Rules of Civil Procedure must be given full faith and credit in Pennsylvania; and (3) the applicable portions of the New Jersey and Florida DUI statutes are not substantially similar to Pennsylvania’s DUI statute. We must therefore sustain the foregoing appeals.

Suspension of License for Conviction of Offense Equivalent to Section 3731

Pennsylvania has entered into a compact with other states in which the intent is for persons who have been convicted of driving under the influence of alcohol in other states to have their Pennsylvania driver’s licenses suspended as if the offense had occurred under Pennsylvania’s DUI statute. The compact has been legislatively enacted at 75 Pa.C.S. §1581 and states as follows:

“Article IV

“Effect of Conviction

“(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for: . . .

“(2) driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle; . . . .” 75 Pa.C.S. §1581.

In Pennsylvania, the DUI statute, 75 Pa.C.S. §3731, does not provide for driver’s license suspensions. Suspensions are imposed pursuant to 75 Pa.C.S. § 1532(b), which provides as follows:

“The department [of transportation] shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 (relating to driving under the influence of alcohol or controlled substance) . . . 75 Pa.C.S. § 1532(b)(3).

Section 1532(b) provides for the suspension of operating privileges for a conviction of section 3731. It does not provide for the suspension of operating privileges for an out-of-state conviction of an offense “equivalent to” section 3731.

The Statutory Construction Act, 1 Pa.C.S. §1901 et seq., requires this court to strictly construe the language of statutes. Section 1903 requires that words and terms in a statute be given their plain meaning. Our Supreme Court held in Kusza v. Maximonis, 363 Pa. 479, 70 A. 2d 329 (1950), that courts cannot supply omissions in a statute. Id. In addition, Pennsylvania law requires that, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b). Therefore, it would be an abuse of this court’s authority to give PennDOT the power to suspend driver’s licenses for violations of offenses “equivalent to” section 3731, where the language of the statute is clear and free from ambiguity.

Because 75 Pa.C.S. § 1532(b) does not mandate a one-year license suspension for a violation of an offense “equivalent to” 75 Pa.C.S. §3731, the appellants were not properly charged and the suspension appeals must be sustained.

Civil Reservations

Five of the appellants pled guilty to New Jersey DUI charges, with civil reservations, pursuant to New Jersey Rule of Civil Procedure 3:9-2, which states as follows: “For good cause shown the court may, in accepting a plea of guilty, order that such plea not be evidential in any court proceeding.” N.J.R.Crim.P. 3:9-2. In Gallo Asphalt v. Sagner, 71 N.J. 405, 365 A.2d 932 (1976), two businesses pled guilty with civil reservations in a criminal proceeding. Based on these pleas, the New Jersey Department of Transportation disallowed them from bidding on Department of Transportation contracts. New Jersey’s Supreme Court held that the Department of Transportation hearing was a civil proceeding and therefore the guilty pleas could not be used against the defendants. 365 A.2d at 935. In the case at bar, a license suspension is a civil sanction for a criminal conviction. This would clearly not be allowed in New Jersey and, under the full faith and credit clause of the United States Constitution, U.S.C. Constitution Article 4 Section 1, cannot be permitted in Pennsylvania.

Our Commonwealth Court explored the application of the full faith and credit clause of the constitution to a license suspension proceeding in PennDOT v. Adcock, 103 Pa. Commw. 298, 520 A.2d 118 (1987). At issue was a statute requiring that PennDOT suspend the license of a driver against whom a judgment has been entered. A judgment was entered against Adcock in Massachusetts and, thereafter, PennDOT suspended his license. Our Commonwealth Court upheld the suspension, relying on its holding in PennDOT v. Granito, 70 Pa. Commw. 123, 452 A.2d 889 (1982) and stating that “full faith and credit demands that we recognize the judgment of our sister states and give them at least the same effect and validity as they enjoy in the rendering state.” The New York Court of Appeals addressed the full faith and credit issue regarding New Jersey’s Rule of Criminal Procedure 3:9-2 in Farmland Dairies v. Barber, 478 N.E.2d 1314; 489 N.Y.S.2d 713 (1985). In Farmland Dairies, a company was convicted of price rigging, to which it pled guilty with a civil reservation in New Jersey. While the conviction generally would be admissible in New York as evidence in its application for a license extension, the New York Court of Appeals held that N.J.R.Crim.P. 3:9-2 precluded the use of the guilty plea in the civil proceeding. We believe the judgment of New York’s highest court to be sufficiently persuasive in this matter. Therefore, the civil reservations will be given full force and effect by this court, and the driver’s license suspensions appeals of Susan Salerno, Alice Taylor, Francis Doyle Jr., and Wayne Congar are therefore granted.

Whether New Jersey and Florida DUI Statutes Are Substantially Similar to Section 3731

The compact does not require that the DUI statutes of New Jersey and Florida be identical to Pennsylvania’s DUI statute in order for Pennsylvania to “give the same effect to the conduct reported.” The compact only requires that the statutes be “substantially similar.” 75 Pa.C.S. §§1581(a) and (c). Pennsylvania’s DUI statute, section 3731, provides in pertinent part as follows:

“(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:

“(1) While under the influence of alcohol to a degree which renders the person incapable of safe driving.

“(4) While the amount of alcohol by weight in the blood of ... an adult is 0.10 percent or greater; . . . .” 75 Pa.C.S. §3731.

New Jersey’s DUI statute defines a DUI offender in pertinent part as:

“A person who operates a motor vehicle while under the influence of intoxicating liquor ... or operates a motor vehicle with a blood alcohol concentration of .10 percent or more by weight of alcohol in the defendant’s blood . . . .” N.J.S. 39:4-50(a).

Florida’s DUI statute states that a person is guilty of DUI: “(2) if such person is driving or in actual physical control of a vehicle within this state and: . . .

“(b) The person has a blood or breath alcohol level of .08 percent or higher.”

The issue of whether the Florida and Pennsylvania DUI statutes are “substantially similar” has not previously been addressed by the Pennsylvania courts. David Seidman was convicted of violating section (b) of the Florida statute, which requires a .08 blood/breath alcohol level, while Pennsylvania’s statute requires a .10 level. Pennsylvania’s statute, by using a .10 level, is less restrictive. This difference prevents this court from seeing them as “substantially similar.”

The Commonwealth cites Commonwealth v. Whisnant, 390 Pa. Super. 192, 568 A.2d 259 (1990) in support of its claim that the New Jersey and Pennsylvania statutes are substantially similar. In Whisnant, the defendant was sentenced as a repeat offender, based on previous DUI convictions in New Jersey. Whisnant, 390 Pa. Super. at 194, 568 A.2d at 260. The defendant claimed that the New Jersey convictions should not be included in his sentencing because the degrees of the offenses differed. While Whisnant held that the two were “substantially identical” for the purposes of sentencing, the court specifically noted that the part of the New Jersey statute providing for a conviction for allowing another person to drive defendant’s vehicle while intoxicated was not an issue on appeal. In the case at bar, the evidence introduced by PennDOT does not specify that the appellants were operating motor vehicles, or that they had blood alcohol levels of .10 percent or more. The section of New Jersey’s DUI statute providing for conviction for allowing another person to drive while intoxicated has no parallel in section 3731. In Olmstead v. PennDOT, 677 A.2d 1285 (Pa. Commw. 1996), affirmed per curiam, 707 A.2d 1144 (Pa. Super. 1998), our Commonwealth Court found that New York’s Driving While Ability Impaired statute was not substantially similar to Pennsylvania’s statute section 3731. Discussing the holding of Olmstead, our Commonwealth Court stated in Franz v. PennDOT, no. 3545 C.D. 1997 (Pa. Commw. 1998):

“In Olmstead, the Commonwealth Court reversed the trial court’s decision to uphold the imposition of a licensee’s one-year license suspension, since we concluded that violations of New York’s DWAI statute and Pennsylvania’s DUI statute are not substantially similar offenses. We so concluded because New York’s DWAI statute, which punishes any alcohol-related impairment in driving a motor vehicle, has no equivalent in the laws of this Commonwealth.”

This court notes that New Jersey’s statute differs from Pennsylvania’s in two respects: The first is that a New Jersey defendant can be convicted of driving while intoxicated, even if not to a degree which renders him or her incapable of safely driving a motor vehicle. Second, New Jersey’s statute permits a defendant to be convicted for allowing another person to drive his or her vehicle while intoxicated. The first New Jersey provision is similar to New York’s DWAI statute, and the second has no parallel in Pennsylvania’s section 3731. While part of New Jersey’s statute is substantially similar to section 3731 (the part providing a .10 percent threshold), this court does not know which section of New Jersey’s DUI statute was violated by each appellant, and will therefore apply the holding of Olmstead, because it is as likely as not that the appellants were convicted of violations which are not “substantially similar” to Pennsylvania’s DUI statute.

Finally, article III of the compact requires that the state reporting the violation “describe the violation specifying the section of the statute, code or ordinance violated.” While PennDOT specified the correct section of the statute, New Jersey’s DUI statute section 39:4-50(a) describes several different situations, which are not all equivalent to Pennsylvania’s statute. For the reasons stated above, this court finds that the offenses for which appellants were convicted were not “substantially similar” to Pennsylvania’s DUI statute, as required by the compact.

For all of the reasons stated in the above opinion, appellants’ appeals from the suspension of their driver’s licenses are hereby granted.


author: WALLACH MILLER,

text:
    Gehris v. Gehris

      C.P. of Monroe County,
    no. 636 Civil 1998.

      Steven E. Krawitz, for plaintiff Susan Gehris.

      Richard J. Shirojf, for defendant Kerry Gehris.

      June 5, 1998
   WALLACH MILLER,

— On January 29, 1998, Mother’s ninth lawyer filed a custody complaint on her behalf in Monroe County. Father filed preliminary objections based on improper venue.

There is much history to this dispute which begins on January 18, 1989, prior to this couple’s divorce, when Susan Gehris, Mother, and Kerry Gehris, Father, entered into a custody agreement providing shared legal custody of their two children, Kelly and Kevin. The parties further agreed that physical custody would be almost equally divided with Father having custody every week from Thursday after school until Sunday after church, with the exception that once per month the children would be returned to Mother’s custody prior to the church service. Since both parties lived in Northampton County, Pennsylvania, at the time that they entered into this agreement, it was approved and made enforceable as an order of the Northampton County Court of Common Pleas. Over the years that followed, the Northampton County Court of Common Pleas heard numerous requests for custody modification and many petitions for contempt filed by these parties. In considering the current petition before us, it is unnecessary for us to set forth the details of each of the custody changes, but we summarize a few details only for clarity of the current situation which impacts our decision.

First, since Kelly has reached the age of emancipation, we need only focus on the 12-year-old, Kevin. Second, it appears that Kevin has lived primarily with his father since 1994, subject to Mother’s periods of partial physical custody. Third, in July 1996, Father remarried and moved to Brodheadsville, Monroe County, Pennsylvania. Mother’s residence remains in Northampton County.

Northampton County continued to exercise jurisdiction in this matter even after Father’s move into Monroe County. On March 19, 1997, after a two-day hearing, Father, once again, was granted primary physical custody of Kevin subject to Mother’s partial periods of physical custody every other weekend, alternating holidays and two weeks during summer vacation. Furthermore, the Northampton County Court specifically ordered Mother to relinquish Kevin’s passport to Father within five days, and denied Mother’s request to remove Kevin from school for a month-long trip to Europe. Mother did not object to the jurisdiction or venue of the Northampton County Court.

Ten months later, on January 29, 1998, Mother filed a custody complaint in Monroe County, Pennsylvania, requesting this court to exercise jurisdiction over the custody dispute and award Mother primary custody of Kevin. Mother contends that under the Uniform Child Custody Jurisdiction Act, Monroe County satisfies the “home state” jurisdictional test since Kevin and Father have resided in Monroe County for more than six months. Furthermore, Mother argues that Kevin has substantial contacts in this county as he attends school in Monroe County and she is currently employed in Monroe County.

Father contests the filing of Mother’s custody complaint in Monroe County and objects on the basis that this complaint was filed in the improper venue. Father supports his argument with practical considerations since there has been a long and arduous history of litigation between the parties, and the Northampton County Court of Common Pleas is not only familiar with the specifics of the case but is well aware of the historical difficulties involved in this custody matter. Father believes Mother is forum shopping and seeking a new jurisdiction to begin relitigating the custody dispute. Father further argues that there is a pending contempt petition before the Northampton County Court of Common Pleas; thus, in accordance with the UCCJA, Monroe County should decline to act on this matter.

We specifically note that this case is particularly different from most we see in applying the UCCJA. Ordinarily, it is the parent that has moved into a new county or state that petitions a court in the new geographic location to establish jurisdiction in hope of initiating a custody action or modifying a current custody arrangement with a beneficial outcome in their favor.

In our current case, we encounter the opposite situation. Mother, who remains in Northampton County, seeks to move the custody action to Monroe County, Father’s new county of residence. We do note, however, that Mother and Father lived in Northampton County for approximately two years with Father having primary physical custody of Kevin. Nearly two years ago, Father moved a few miles over the county line into Monroe County, with the same custody arrangement in effect. Additionally, at the time Mother filed this recent custody complaint, the parties had been operating under the most recent March 1997 arrangement for almost one year.

We begin our analysis with a review of the pertinent Pennsylvania Rules of Civil Procedure and the applicable statutory provisions as argued by Mother in her custody complaint, and address Father’s preliminary objections regarding Monroe County as the improper venue.

Initially, Mother argues that “Pennsylvania’s enactment of the Uniform Child Custody Jurisdiction Act codified at 23 Pa.C.S. §5341 et seq., has virtually no application to intrastate venue/jurisdiction questions.” (Mother’s brief at p. 3.) She also argues that such questions regarding venue are exclusively addressed by Pa.R.C.P. 1915.2. Id. This interpretation is clearly erroneous. We specifically point to Pennsylvania’s Divorce Code, Children and Minors, section 5364 which provides for intrastate applicability, and states:

“Section 5364. Intrastate Application.

“(a) General rule. Except as otherwise provided in this section, the provisions of this subchapter allocating jurisdiction and functions between and among courts of different states shall also allocate jurisdiction and functions between and among the courts of common pleas of this Commonwealth.” 23 Pa.C.S. §5364. (emphasis added)

Furthermore, we also note that the rule regarding venue as set forth in Pa.R.C.P. 1915.2 closely parallels the same language as used in UCCJA section 5344. The explanatory comment following Rule 1915.2 states, in pertinent part, “[subdivision (a) of Rule 1915.2 incorporates the four categories of 23 Pa.C.S. §5344(a)(l) to (4) as the venue provision for these rules, restating them in rule form without change in substance.” Pa.R.C.P. 1915.2. See also, Brady v. Brady, 25 D.&C.3d 196 (1982).

Next, Mother argues that Father only filed a petition for civil contempt of custody order in Northampton County, on February 24, 1998, after Mother filed the instant custody complaint in Monroe County in order to “create a pending issue” before the Northampton County Court thereby constraining Monroe County to decline jurisdiction. (Mother’s brief at p. 5.) Although Mother does not cite to a specific UCCJA provision, we believe Mother is relying on UCCJA section 5347 which specifically states:

“Section 5347. Simultaneous proceedings in other states.

“(a) General Rule. — [a] court of this Commonwealth shall not exercise its jurisdiction under this subchapter if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction . . . unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons.” 23 Pa.C.S. §5347(a). (emphasis added)

In applying this provision to the facts of our instant case, we agree that Father’s petition for contempt was filed after Mother’s petition for custody. Thus, if his petition were heard by the Northampton County Court, then Monroe County would be precluded from exercising jurisdiction. However, we acknowledge that the March 19, 1997 custody order is still in effect and since custody orders are continually modifiable until the child who is the subject of the dispute becomes emancipated, then a custody dispute continues to be a pending matter until such time that a custody order is no longer needed. Therefore, we find that since Northampton County has presided over this custody dispute, even after Father moved to Monroe County, then the custody matter is still pending in Northampton County.

Furthermore, in accordance with UCCJA sections 5347(b) and 5364(h), we conclude after speaking to Judge Kimberly McFadden of Northampton County Court of Common Pleas, that in order to effectuate the best interests of this minor child, jurisdiction should remain in that county. Section 5347(b), states:

“(b) Stay; communication with other court.

“If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged . . . 23 Pa.C.S. §5347(b).

In light of the litigious nature of this case, we find Northampton County Court of Common Pleas to be a more appropriate forum to consider another modification to the current custody arrangement. We reviewed the Northampton County Prothonotary’s docket activity detailing the history of this case and observed that Mother has changed counsel nine times from August 21, 1987 through February 1998. We also noticed that there were numerous custody modifications and petitions for contempt filed between the parties since their divorce in December 1990. By our count, not less than eight custody orders and approximately nine contempt and special relief petitions were filed.

Furthermore, section 5364, paragraph (h) states:

“(h) Modification of custody decrees.

“(1) If another court has made a custody decree, a court before which a petition for modification is pending shall not modify the decree of the other court unless it appears to the court before which the petition is pending that the other court which rendered the decree does not have jurisdiction under jurisdiction prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify its decree and the provisions of subsection (f)(2) will not be violated by an exercise of jurisdiction by the court before which the petition is pending.” 23 Pa.C.S. §5364(h).

Applying this statutory provision to our case at bar, Northampton County Court of Common Pleas has presided over this case since its inception and has not declined jurisdiction to further modify its current order. Therefore, we are prohibited from modifying Northampton County’s order unless Northampton County declines to assume jurisdiction.

Next, Mother argues that since Father and minor child have lived in Monroe County for more than six months, Monroe County satisfies the “home state” jurisdictional requirement set forth in UCCJA section 5344 and therefore, it is the appropriate forum in which to file this custody complaint. This provision states, in pertinent part:

“Section 5344. Jurisdiction.

“(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

“(1) this Commonwealth

“(i) is the home state of the child at the time of commencement of the proceeding, or

“(ii) had been the child’s home county within six months before commencement of the proceeding and the child is absent from the county because of the child’s removal or retention by a person claiming the child’s custody or for other reasons and a parent or person acting as parent continues to live in the county;” 23 Pa.C.S. §5344.

Perhaps if our analysis was limited solely to a strict interpretation of the UCCJA definition of “home state,” we may be constrained to find that jurisdiction exists in Monroe County since the minor child has lived here for almost two years. However, we are not required to end our analysis at this point. Our Commonwealth has continuously stressed that a court’s paramount concern in a custody proceeding should be focused on the best interest of the child. We must keep in mind that the bases for jurisdiction outlined in the statute are alternative, and the fact that one state is the child’s “home state” does not automatically confer jurisdiction upon that state. Merman v. Merman, 412 Pa. Super. 247, 603 A.2d 201 (1992). Furthermore, when viewing the totality of the rules and statutory provisions regarding custody actions, we note that jurisdiction is not set in stone, but rather the rules are set forth as guidance for the court but may be applied with discretion in order for the court to respond in the child’s best interest. Carpenter v. Carpenter, 326 Pa. Super. 570, 474 A.2d 1124 (1984). To clarify, we point to the note stated directly after Rule 1915.1 which provides:

“Under the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §5341 et seq., the court may decline to exercise its jurisdiction in a particular action despite the action having been brought in a county of proper venue.” Pa.R.C.P. 1915.1, note, (emphasis added)

The UCCJA was generally established to provide stability to the home environment and to family relationships by discouraging continuing controversy over child custody, to avoid jurisdiction disputes, to avoid relitigation and to assure that litigation concerning child custody takes place ordinarily in the state in which the child and the child’s family have the closest connection. 23 Pa.C.S. §5342; Barndt v. Barndt, 397 Pa. Super. 321, 580 A.2d 320 (1990).

We find that the best interests of this minor child would be served with a forum that has had optimum access to all relevant evidence about the child and family. By filing a custody complaint in Monroe County, Mother is asking this court to begin the custody process over again in our jurisdiction. We do not find this to be a practical mechanism to effectuate a modification of a current custody order or in the best interests of Kevin. First, our local rules require parties involved in a custody dispute initially attend a custody conciliation conference with our court-appointed custody conciliator to try to work out a mutually acceptable custody arrangement. Viewing the past history of this case in the most favorable light, we believe the prospect of these parties solving this custody dispute at that conference to be slim. Following that, the parties would be required to undergo homestudy evaluations and more than likely psychological evaluations. While the parents, the alleged adults, in the case continue their battle, Kevin, the 12-year-old, must try to survive the tension wrought by the ongoing litigation. Since Northampton County has already established an understanding of the issues involved in this case and a familiarity with the parties, we do not find Mother’s petition to this court to be in the best interests of Kevin. Moreover, we take notice that Monroe County and Northampton County are geographically contiguous. Thus, while we acknowledge that Father did relocate to Brodheadsville, Monroe County, his residence is only a few miles across the geographic county line and is still closer to the county seat in Northampton County than that of Monroe County. Consequently, since Northampton County has presided over this case throughout the parties’ divorce and custody proceedings, it would be more appropriate that Northampton County retain jurisdiction over this case.

ORDER

And now, June 5, 1998, in accordance with the attached opinion, defendant’s preliminary objection regarding improper venue is granted. Jurisdiction is deferred to Northampton County.


author: CHESLOCK, J.,

text:
    In re Estate of Tosi

      C.P. of Monroe County,
    no. 00064 OC 1997.

      Jennifer Harlacher Sibum, for John Tosi.

      George W. Westervelt Jr., for Frank Tosi.

      Robert M. Maskrey Jr., for Rosa Tosi.
    June 30, 1998
   CHESLOCK, J.,

— On June 30, 1997, the petitioner, John Tosi, filed a petition to adjudicate his mother, Rosa Tosi, incompetent and have himself appointed guardian of Rosa Tosi and her estate. A hearing was conducted on April 28, 1998 and May 28, 1998 in order to determine whether Rosa Tosi should be declared incompetent by this court. Furthermore, in the event Rosa Tosi is adjudged incompetent, a particular person or entity would be appointed as guardian of Mrs. Tosi and her estate. The petitioner filed a brief in support of the petition to appoint a guardian on June 18, 1998. Petitioner’s brother, Frank Tosi, filed a brief contra to the petition to appoint a guardian on June 18,1998. Furthermore, Frank Tosi requests that he continue in his capacity as attorney-in-fact for his mother, Rosa Tosi. We are now ready to dispose of the petition to appoint a guardian for Rosa Tosi.

In Pennsylvania, an “ ‘[ijncapacitated person’ means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.” 20 Pa.C.S. §5501. Petitioner requests that Rosa Tosi be declared incompetent and a guardian be appointed. In order for a court to declare an individual incompetent, certain statutory requirements must be met:

“(a) Resident. — The court, upon petition and hearing and upon the presentation of clear and convincing evidence, may find a person domiciled in the Commonwealth to be incapacitated and appoint a guardian or guardians of his person or estate. The petitioner may be any person interested in the alleged incapacitated person’s welfare. The court may dismiss a proceeding where it determines that the proceeding has not been instituted to aid or benefit the alleged incapacitated person or that the petition is incomplete or fails to provide sufficient facts to proceed.” 20 Pa.C.S. §5511(a).

In the instant case, this court must determine if Rosa Tosi should be adjudged an incapacitated person. Dr. Harold Pascal, a psychiatrist, interviewed Mrs. Tosi. Dr. Pascal concluded that, although her short-term memory was satisfactory, Mrs. Tosi exhibited the signs of primary degenerative dementia. He stated that dementia gradually worsens over time and that Mrs. Tosi was disorganized in her thinking and could be a possible victim of “designing persons.” Finally, Dr. Pascal stated that Mrs. Tosi cannot handle her financial affairs as a result of the mental deterioration. Dr. Pascal’s mental evaluation of Mrs. Tosi was uncontested.

The petitioner and his brother, Frank Tosi, both agree that Mrs. Tosi is incapable of handling her own physical and financial affairs. Testimony presented before the court indicated that Mrs. Tosi is indeed totally dependent upon others for her physical and financial well-being. When Mrs. Tosi was examined by counsel, her lack of understanding regarding her financial affairs was painfully apparent. For example, Frank Tosi stated that his mother had paid for part of his new home when he moved. Mrs. Tosi testified that she could not recall whether she had given Frank Tosi money for his new home. Furthermore, Mrs. Tosi had created a last will and testament while residing with her son, Frank Tosi. Upon examination, she could not recall creating her will. Under the will, her home in Queens, New York is to go to her son, Frank Tosi. But upon examination by counsel, Mrs. Tosi testified that she wanted the home in Queens, New York to go to both sons. Mrs. Tosi had also created a power of attorney whereby her son, Frank Tosi, would act as her attorney-in-fact. She created this document while in the care and custody of Frank Tosi. At the hearing, Mrs. Tosi could not remember creating a power of attorney.

At the hearing, it was obvious that Mrs. Tosi is incapable of handling her own affairs. As a result of the progressive primary dementia, she is incapable of recalling significant events. We thereby conclude that the petitioner has proven by clear and convincing evidence that Rosa Tosi is an incapacitated individual.

Once a court has adjudged a person an incapacitated individual in need of a guardian of their person and estate, 20 Pa.C.S. §5511(f) governs who the court may appoint as guardian:

“The court may appoint as guardian any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency ... or a county agency. . . . The court shall not appoint a person or entity providing residential services for a fee to the incapacitated person or any other person whose interests conflict with those of the incapacitated person except where it is clearly demonstrated that no guardianship support agency or other alternative exists. Any family relationship to such individual shall not, by itself, be considered as an interest adverse to the alleged incapacitated person. If appropriate, the court shall give preference to a nominee of the incapacitated person.” 20 Pa.C.S. §5511(f).

In the instant case, the petitioner, John Tosi, requests that this court appoint him as guardian of his mother, Rosa Tosi, and her estate. Conversely, Frank Tosi requests that the power of attorney executed by Rosa Tosi be recognized so that he may continue to exercise control over his mother’s affairs. First, we will address the issue as to whether the power of attorney executed by Rosa Tosi continues in effect with Frank Tosi as her attorney-in-fact.

Courts have determined “that a person executing a power of attorney normally names as attorney-in-fact that person whom he or she reposes great confidence.” In re Howard, 9 Fiduc. Rep.2d 338, 339 (York Co. 1989). In In re Conover, 4 Fiduc. Rep.2d 200 (Bucks Co. 1984), the court had to decide whether to appoint an individual or entity to administer the estate of an adjudged incapacitated individual or whether the attomey-in-fact should continue in their capacity as administrator of the estate. In ultimately deciding that the attorney-in-fact should continue in their capacity as guardian of the individual and the estate, the court reasoned that “the evidence revealed that [the incapacitated individual’s] affairs are being managed in an efficient manner under a durable power of attorney, we see no necessity for the appointment of a guardian.” In re Conover, 4 Fiduc. Rep.2d at 202. The court reached this conclusion after hearing exhaustive testimony from the attorney-in-fact that she “had acted wisely in the conduct of her fiduciary duties under the durable power of attorney.” Id. at 201.

The Pennsylvania Superior Court, in In re Sylvester, 409 Pa. Super. 439, 598 A.2d 76 (1991), utilized the above cited cases in determining that the appointed attorney-in-fact should continue in their capacity as guardian. The court stated that “[a] person has the right to choose who shall have control over his finances in the event of incompetency without interference by the courts, which should become involved only in circumstances indicating that the incompetent’s interests are not being served.” In re Sylvester, 409 Pa. Super. at 455, 598 A.2d at 84.

The instant case is distinguishable from the above cited cases. Frank Tosi, the appointed attomey-in-fact under the power of attorney, has failed to provide an accounting to the court regarding his mother’s estate. Frank Tosi argues that he does not have to provide an accounting to the court. With regards to whether a guardian should be appointed, we vehemently disagree. This court finds that the incompetent’s interests are not being properly served by Frank Tosi, the appointed attorney-in-fact. Frank Tosi’s credibility and trustworthiness is questionable in light of his actions and testimony. Therefore, we find that it is appropriate to displace Frank Tosi as attorney-in-fact of the incompetent’s estate and appoint a guardian.

The petitioner, John Tosi, requests that this court appoint himself as guardian of his mother and her estate. In the alternative, the petitioner requests that an impartial third party be appointed as the incompetent’s guardian in the event this court deems that the petitioner should not be appointed guardian. We find that the alternative is the most proper action in this case because the incompetent will be best served by an impartial third party. Therefore, in accordance with 20 Pa.C.S. §5511(f), this court appoints Catholic Social Services as guardian of Rosa Tosi and her estate.

Accordingly, we enter the following order:

ORDER

And now, June 30,1998, the petition to appoint guardian is hereby granted. Catholic Social Services is hereby appointed as guardian of Rosa Tosi and her estate.


author: McANDREWS, J.,

text:
    Kraus v. Taylor

      C.P. of Bucks County,
    no. 92-09787-20-2.

      James L. Rosenbaum, for plaintiff.

      Thomas P Bracaglia, for defendants.
    June 9, 1997
   McANDREWS, J.,

— This matter is before the court upon post-trial motion of plaintiff Timothy Kraus.

This negligence action arises out of an accident involving plaintiff, a pedestrian, and a motor vehicle driven by defendant James E. Taylor and owned by defendant Harris Fuels. Plaintiff sought compensation for medical expenses, as well as past and future pain and suffering, allegedly related to personal injuries sustained in the accident. Plaintiff named defendant Harris Fuels in the suit under a theory of vicarious liability, as the employer of defendant Taylor.

The case was called to trial on October 1, 1996. At the close of plaintiff’s case on liability, compulsory nonsuit under Pa.R.C.P. 230.1 was granted in favor of defendant Harris Fuels. On October 8, 1996, the jury returned a verdict in favor of defendant Taylor. The jury found on the specific interrogatory verdict sheet that defendant Taylor was negligent but that his negligence was not a substantial factor in bringing about plaintiff’s injuries. It is from this verdict that plaintiff has filed the post-trial motions.

The trial record reveals the following. At approximately 11:45 p.m. on October 20, 1990, plaintiff was crossing a five-lane highway on foot when he was struck by a motor vehicle driven by defendant James E. Taylor. Plaintiff was on his way to work. Plaintiff admitted that he was wearing dark clothing. Plaintiff stated that he had consumed several beers during the evening. It was not disputed that the area of the accident was neither illuminated by street lights nor marked as a pedestrian crossing.

At the time of the accident, defendant Taylor operated a vehicle owned by Harris Fuels. Taylor worked from the vehicle on an on-call basis. He was not on call the night of October 20, 1990.

Police Officer Dale Adams was the first to arrive on the scene. Plaintiff was lying in the street unconscious. Officer Adams examined plaintiff and detected an odor of alcohol on his breath. The officer investigated the scene of the accident and compiled a report. No citations were issued to defendant Taylor.

Plaintiff was taken by ambulance to St. Mary’s Hospital. Within the hour, blood alcohol tests were performed. Plaintiff’s blood alcohol content was shown to be .26.

Defendant James E. Taylor testified at trial that he did not see plaintiff until immediately prior to the accident. Taylor stated that plaintiff “darted out” into the street. A witness testified that he saw a “dark object” in the road prior to the accident. On cross-examination, the witness described the dark object as “darting” into the street.

Plaintiff presents 13 grounds for relief in the brief in support of the motion for post-trial relief. Numerous additional grounds were asserted in the original motion for post-trial relief but do not appear in the brief. These grounds are, therefore, abandoned. Specifically, plaintiff asserts that the court erred' by:

(1) instructing the jury as to the law of substantial factor;

(2) granting of nonsuit against defendant Harris Fuels;

(3) allowing evidence of plaintiff’s drug and alcohol use prior to the date of the accident;

(4) allowing evidence of plaintiff’s subsequent use of drugs and alcohol;

(5) allowing evidence of plaintiff’s seizures prior to the date of the accident;

(6) denying plaintiff’s motion for mistrial based upon the testimony given by Officer Dale Adams;

(7) allowing evidence of plaintiff’s use of alcohol and blood alcohol content on the date of the accident;

(8) restricting plaintiff from testifying as to the reasons possibly underlying his history of alcohol and drug use;

(9) restricting cross-exam of defendant’s medical expert Dr. Katz;

(10) “failing to give the jury instructions requested by plaintiff’;

(11) interjecting “personal opinion” to the jury regarding the probative value of the evidence of plaintiff’s alcohol use;

(12) permitting defendant’s “access to privileged and confidential records relating to plaintiff’s subsequent detoxification for his subsequent use of drugs and alcohol”; and

(13) permitting evidence of plaintiff’s prior suicide attempts.

The court addresses each of these contentions, ad seriatim, as follows:

As an initial matter, the court highlights that the decision whether to deny or grant a motion for a new trial rests soundly within the discretion of the trial court. Houseknecht v. Walters, 404 Pa. Super. 85, 590 A.2d 20 (1991). Inanegligence case, a new trial is appropriate only where substantial reason exists. Solomon v. Baum, 126 Pa. Commw. 646, 560 A.2d 878 (1989). Substantial reason exists where there was a manifest abuse of discretion or a clear error of law. Chanda v Commonwealth, 86 Pa. Commw. 532, 485 A.2d 867 (1984).

When a motion for new trial is denied, the appealing party bears the burden of showing that an abuse of discretion or clear error of law occurred. Chanthavong v. Tran, 452 Pa. Super. 378, 384-85, 682 A.2d 334, 337-38 (1996). Appellant would also bear the burden of establishing that contested rulings actually prejudiced their case. Dougherty v. Edward J. Meloney Inc., 443 Pa. Super. 201, 225, 661 A.2d 375, 387 (1995). The Superior Court stated in Dougherty.

“The appellants] bear a heavy burden in persuading this court that such an error occurred. In considering all of the evidence in the light most favorable to appellee[s] we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted .... [E]videntiary ruling [s] which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.” Id. (citations omitted)

Plaintiff’s first argument, that the jury’s verdict was based on an erroneous charge, is devoid of merit. The jury was read the standard charge. The charge included an explanation of “substantial factor.” This was appropriate because substantial factor is one of the elements in a negligence action. It was also proper because testimony had indicated that plaintiff had darted into the street while intoxicated and wearing dark clothing. Further, plaintiff failed to object to the charge at the, time of trial, which constitutes a waiver. See Carlson Mining Co. v. Titan Coal Co. Inc., 343 Pa. Super. 364, 494 A.2d 1127 (1985).

Plaintiff’s second contention, that nonsuit as to Harris Fuels was improperly entered, is meritless. It is well settled in Pennsylvania that compulsory nonsuit may be entered in cases where it is clear that the plaintiff has wholly failed to establish a cause of action. Coatesville Contractors & Engineers Inc. v. Borough of Ridley Park, 509 Pa. 533, 506 A.2d 862 (1986). Plaintiff attempted to establish a cause of action against Harris Fuels under a theory of vicarious liability. An employer may be held vicariously liable under the doctrine of respondeat superior for a servant’s tortious conduct only if that conduct fell within the scope of the servant’s employment. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir. 1979). A servant’s conduct falls within the scope of his employment only if: “(a) it is of the kind he is employed to perform;

“(b) it occurs substantially within the authorized time and space limits; and

“(c) it is actuated, at least in part, by a purpose to serve the master. . . .” Butler v. Flo-Ron Vending Co., 383 Pa. Super. 633, 646, 557 A.2d 730, 736 (1989) (quoting Restatement (Second) of Agency §228).

Harris Fuels could not, as a matter of law, be vicariously liable for any negligence committed by defendant Taylor. Taylor testified at trial that he was given a Harris Fuels vehicle to use for regular work and emergency calls. Uncontroverted testimony revealed that at the time of the accident, Taylor acted neither in the course of his regular work schedule nor in response to any emergency call. He was merely on his way to a convenience store to purchase cigarettes. He happened to use the Harris Fuels vehicle because it was convenient. He acted solely for his own purposes and in no way for the purposes of Harris Fuels. Thus, although plaintiff purported that Taylor acted in the course of his work for Harris Fuels, absolutely no fact supported this claim.

The court next turns to plaintiff’s third, fourth and seventh contentions, related to evidence of plaintiff’s use of drugs and alcohol. Plaintiff challenges the court’s decision to admit into evidence:

(1) Plaintiff’s history of alcohol and drug use;

(2) Plaintiff’s alcohol use on the date of the accident; and

(3) St. Mary’s blood alcohol test results from the night of the accident.

All three of these grounds must fail.

As an initial matter, the court notes that rulings on the admission and exclusion of evidence fall within the discretion of the trial judge and will not be overturned on appeal absent a manifest abuse of discretion. General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 543, 635 A.2d 173, 182 (1993). Prejudicial evidence may be admitted where relevant, and then cured by a cautionary instruction by the trial judge. Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969). The instruction guards against any possible inflammatory and prejudicial effects on the jury. Id.

In addition, the determination of whether a person is intoxicated is a question of fact for the jury. Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974). Under Pennsylvania law, blood alcohol levels may be admitted in a civil case for the purpose of proving intoxication where there is corroborating evidence showing conduct suggesting intoxication and the court finds it would not be too prejudicial. Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984).

Corroborating evidence could come from either lay or expert testimony pertaining to conduct suggestive of intoxication. Gallagher v. Ing, 367 Pa. Super. 346, 532 A.2d 1179 (1987). Once blood alcohol test results are admitted, testimony must then be offered to explain the significance of the blood alcohol levels found. Emerick v. Carson, 325 Pa. Super. 308, 472 A.2d 1133 (1984).

In the case at bar, the court did not conclude that the evidence of alcohol use would necessarily prejudice the jury against plaintiff. Further, the relevance of the evidence was plain. The gravamen of defendant Taylor’s case was that plaintiff’s own negligence was the sole cause of his injuries. Evidence of plaintiff’s intoxication on the date of the accident was a key component of this theory.

Evidence of alcohol abuse also went to the heart of the plaintiff’s case. Plaintiff sought damages for a permanent injury. This necessitated application of mortality tables. To apply the tables accurately, the jury had to consider factors such as alcohol and drug abuse that could affect plaintiff’s life expectancy.

Last of all, the evidence of alcohol abuse rebutted plaintiff’s own assertion under oath that his health was excellent prior to the accident. Plaintiff’s medical expert admitted that such abuse would have an adverse impact upon one’s health. Thus, the evidence was relevant to the issue of plaintiff’s credibility.

Most significantly, however, the record reveals that the court gave numerous instructions to the jury that, although the evidence was relevant, it was for the jury to determine its inherent value. The court repeatedly stated that the jury was not to be inflamed in any way by the evidence. These instructions safeguarded plaintiff from any prejudicial effect that may have arisen. See Robinson, supra.

Plaintiff’s fifth assertion of error lacks any value. Plaintiff contests the court’s admission of evidence related to plaintiff having suffered a seizure prior to the accident. However, plaintiff fails to establish how this evidence may have prejudiced plaintiff’s case. Further, the evidence rebutted plaintiff’s claim to have been in excellent health, which was highly relevant to the issue of damages.

Plaintiff’s sixth contention, that mistrial should have been granted, similarly falls short. Prior to trial, plaintiff filed a motion in limine to preclude evidence of a citation issued to plaintiff. The court granted the motion.

Inexplicably, on cross-examination, plaintiff’s counsel then asked a series of questions that required Officer Dale Adams to comment on the citation. Fortunately, Officer Adams only stated “criminal trans . . .” before plaintiff’s counsel realized his error and made the motion for mistrial. However, the court could not grant the motion, given that plaintiff’s own counsel invited the response. The court did attempt to eliminate the possibility of prejudice, by instructing the jury to disregard the statement.

The eighth argument in plaintiff’s brief in support of the post-trial motion also fails. Plaintiff contends he should have been permitted to theorize about the possible reasons for his history of drug and alcohol abuse. The evidence had no relevance. Plaintiff testified that he continued to use drugs and alcohol up to the present date. Therefore, the possible reasons could be nothing more than speculative and could not advance any matter at issue in the trial.

Plaintiff’s ninth ground for relief, that cross-examination of defendant’s medical expert was erroneously limited, is easily dismissed. Plaintiff’s counsel attempted to have the defense expert testify as to causation of plaintiff’s injuries. Broad deference is given to the trial court’s limitation of cross-examination. Kearns by Kearns v. DeHaas, 377 Pa. Super. 200, 546 A.2d 1226 (1988). Unless the ruling altogether precluded the party from offering certain evidence, it will not be overturned. Id. Additionally, cross-examination cannot be used to prove facts which the cross-examining party must prove in order to establish his case. Commonwealth v. Lobel, 294 Pa. Super. 550, 440 A.2d 602 (1982). In short, a party cannot attempt to introduce evidence under the pretext of cross-exam. General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 635 A.2d 173 (1993). Because this is exactly what plaintiff’s counsel sought to do, the line of questioning was restricted.

The court likewise dismisses plaintiff’s eleventh allegation, that the jury’s verdict was tainted by comments made by the court. Remarks made by a trial judge during the course of trial may be grounds for a new trial only where they were prejudicial to a party’s case. Bloom v. Hopman, 173 Pa. Super. 292, 98 A.2d 414 (1953). When the jury is instructed to disregard the trial judge’s expression of opinion, no grounds for a new trial exist. Lester v. Century Indemnity Co., 356 Pa. 15, 50 A.2d 678 (1947). The record reveals that the court repeatedly instructed the jury to disregard any comments from the bench.

The court next dismisses with plaintiff’s twelfth argument, that certain medical records admitted at trial were privileged materials. Section 7111 of the Mental Health Act provides that a person undergoing treatment by a psychotherapist may assert a psychotherapist-patient privilege. 50 Pa.C.S. However, the privilege is waived when the patient places his or her medical condition at issue in a personal injury lawsuit. Sprague v. Walter, 441 Pa. Super. 1, 656 A.2d 890 (1995). Plaintiff not only placed his medical condition at issue by instituting the negligence action, but also by seeking future damages within the action. Plaintiff’s medical records thus became necessary to accurately apply the mortality tables. See Helm v. Eagle Downs-Keystone Racetrack, 385 Pa. Super. 550, 561 A.2d 812 (1989).

The thirteenth, and final, contention by plaintiff lacks merit. Plaintiff argues that plaintiff’s history of suicide attempts should not have been admitted into evidence. However, the evidence was clearly relevant to the issue of plaintiff’s life expectancy. It also rebutted plaintiff’s testimony that he enjoyed excellent health before the accident. The court weighed this relevance against any possibility of prejudice, and allowed the matter to come into evidence.

For the forestated reasons, the court enters the attached order denying plaintiff’s motion for post-trial relief.

ORDER

And now, June 9, 1997, upon consideration of the motion for post-trial relief of plaintiff, and the memoranda of law submitted thereupon, it is ordered and directed that said motion be and is hereby denied.


author: WETTICK, J.,

text:
    G.G. v. M.N.

      C.P. of Allegheny County,
    no. GD88-11327.

      William R. Caroselli, for plaintiffs.

      David R. Johnson, for defendants.
    July 14, 1998
   WETTICK, J.,

— Plaintiffs’ motion for partial summary judgment is the subject of this opinion and order of court.

Plaintiff-wife was a co-worker of Patricia James, the operator of an apheresis machine. The machine malfunctioned and the donor’s blood came in contact with both the plaintiff in this case and Ms. James. Ms. James subsequently developed AIDS from exposure to this blood and died from the disease.

Ms. James sued Dr. Nolan, the medical director of McKeesport Hospital Blood Bank, and her professional corporation. A jury returned a verdict in Dr. Nolan’s favor. It found that Ms. James became infected with the AIDS virus as a result of the blood exposure which occurred on December 4, 1986 and that Dr. Nolan negligently breached a duty of care which she owed to Ms. James. However, it also found that Dr. Nolan’s negligent breach of a duty of care owed to Ms. James was not a substantial factor in causing her harm.

Ms. James filed an appeal to the Superior Court from the judgment of the Common Pleas Court of Allegheny County in favor of Dr. Nolan. The Superior Court affirmed. See James v. Nolan, 418 Pa. Super. 425, 614 A.2d 709 (1992).

The remaining claim in the present case is plaintiff’s claim for the reasonable medical expenses incurred in medical testing and evaluation necessary to ascertain whether plaintiff was infected with the HIV virus. In her motion for partial summary judgment, plaintiff contends that defendants are collaterally estopped from relitigating the issue of whether they breached a duty owed to plaintiff.

If the jury had rendered a verdict against Dr. Nolan and her medical corporation, I would rule in plaintiff’s favor. Pennsylvania appellate court case law holds that the doctrine of collateral estoppel operates to prevent an issue of fact which has been litigated previously from being relitigated in a subsequent suit where the party against whom the doctrine is being asserted had a full and fair opportunity to litigate the issue in question in the prior action. In Capobianchi v. BIC Corp., 466 Pa. Super. 130, 666 A.2d 344 (1995), the plaintiff-husband instituted a personal injury action against a manufacturer and a supplier to recover damages for work-related neck injuries in connection with an exploding lighter. While this case was pending, a decision denying the plaintiff-husband’s claim for workers’ compensation became final. The denial of the claim was based on a finding that the neck injuries were a result of degenerative conditions. The manufacturer and supplier of the lighter filed an amended answer raising the defense of collateral estoppel. Thereafter, the trial court granted a motion for summary judgment on the ground that the plaintiff-husband’s claim was barred by principles of collateral estoppel. The Superior Court affirmed. The court ruled that the plaintiff was bound by the finding of the referee that the cause of the neck injuries was a degenerative condition and not an injury sustained at work. Also see, Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996); Grant v. GAF Corp., 415 Pa. Super. 137, 608 A.2d 1047 (1992), aff’d sub nom Gasperin v. GAF Corp., 536 Pa. 429, 639 A.2d 1170 (1994); Yonkers v. Donora Borough, 702 A.2d 618 (Pa. Commw. 1997).

The present defendants correctly state that the present case differs from a case in which a final judgment was entered against defendants. In the present case, Dr. Nolan was the prevailing party. Consequently, she never had the opportunity to challenge in the appellate courts the finding that she had negligently breached the duty of care owed to Ms. James. Defendants cite the Restatement (Second) of Judgments §28 comment a which states:

“If review is unavailable because the party who lost on the issue obtained a judgment in his favor, the general rule of section 27 is inapplicable on its own terms.”

Plaintiff contends that the doctrine of collateral estoppel should apply because it is clear from the record in James v. Nolan and from the opinion of the Superior Court that there is no basis for challenging the finding of the jury that Dr. Nolan negligently breached a duty of care. It is plaintiff’s position that the prevailing party should be bound by an adverse finding on an issue unless, at a minimum, this party offers substantial grounds for setting aside this adverse finding.

The law does not support plaintiff’s position. Pennsylvania case law holds that collateral estoppel is applicable only to essential issues of fact whose determination is essential to the judgment. Obviously, the finding against Dr. Nolan was not essential to the judgment in her favor. See Peach Bottom Township v. Peach Bottom Township Zoning Hearing Board, 106 Pa. Commw. 340, 526 A.2d 837 (1987) (where a party to a judgment cannot obtain appellate review because the matter is moot, the judgment against him or her is not conclusive in a subsequent action). Also see, section 27 of the Restatement (Second) of Judgments which states that a determination is conclusive in a subsequent action between different parties when (1) an issue of fact is actually litigated and determined by a valid and final judgment and (2) the determination is essential to the judgment.

The Restatement (Second) of Judgments §27 comment h, illus. 14, provides the following example:

“(14) A, as owner of a trademark, brings an action against B for infringement. B denies the validity of the trademark and denies infringement. The court finds that the trademark is valid, but that B had not infringed it, and gives judgment for B. Thereafter A brings an action against B alleging that since the rendition of the judgment B infringed the trademark. B is not precluded from defending this action on the ground that the trademark is invalid.”

For these reasons, I enter the following order of court:

ORDER

On July 14, 1998, it is hereby ordered that plaintiffs’ motion for partial summary judgment is denied.


author: FIELD, J.,

text:
    Commonwealth v. Culver

      C.P. of Philadelphia County,
    no. 9611-0749.

      Karen McRory, for Commonwealth.

      Marlene S. Cooperman, for defendant.
    August 17, 1998
   FIELD, J.,

— Defendant, Franklin Culver, appeals from the judgment of sentence, entered on December 10, 1997, arising from his conviction on the charges of rape, two counts of involuntary deviant sexual intercourse, aggravated indecent assault and terroristic threats. This appeal was timely filed. The defendant raises two issues on appeal in his statement filed pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. First, defendant asserts that trial counsel was ineffective for failing to file a pretrial motion to suppress physical evidence which was the fruit of a warrantless entry into the defendant’s home. Second, defendant asserts that trial counsel was ineffective for failing to properly cross-examine the Commonwealth’s expert witness regarding DNA evidence. For the reasons below, these arguments are without merit and the conviction was proper.

A bench trial commenced in this matter on October 6, 1997. The following facts were established. On November 5, 1996, the defendant lured his neighbor, Jenieda Marshall, into his house by telling her he needed someone to hold a flashlight for him in his basement. Jenieda was 12 years old at the time. Once inside his house, the defendant grabbed her and would not let her leave. He forced her into the basement, handcuffed her, and put duct tape on her mouth. He removed her clothes and attempted penetration. He then carried her up to his bedroom and forced her to engage in oral sex. The police were called by Jenieda’s grandmother when the girl could not be found. She told the police that Jenieda was last seen entering the defendant’s home. The police were directed to the defendant’s home. Upon arrival, they were met by the defendant’s teenage son, Desmond, who was standing near the front door. The officers asked Desmond where his father was and told him that they wanted to ask him some questions.

Desmond went in the house, with the police following him. As he went upstairs, the officers waited in the living room. The defendant appeared, wearing nothing but a pair of sweat pants and holding an open beer bottle. When asked about Jenieda’s whereabouts, the defendant stated that she had left for school. The police asked if they could look around, but the defendant told them they could not do so without a search warrant. Meanwhile, one of the officers had called their supervising officer, Sgt. Payne, and informed him of the situation. Sgt. Payne responded that he was on his way, and in fact, he arrived approximately five minutes later. Upon his arrival, the sergeant took Desmond into another room to try and get some information from him. The teen was unresponsive and became belligerent. When Sgt. Payne and Desmond returned to the living room, the defendant was shouting at the officers. Sgt. Payne told everyone to “shut up.” The whole room fell silent and the officers could hear the sound of muffled whimpering and crying coming from upstairs.

Two female officers were sent upstairs to investigate the sound. From the top of the stairs they could see into the front bedroom. There they found Jenieda, naked, handcuffed, and with duct tape over her face and mouth. Her shirt and bra were tied around her wrists. The officers tried to remove the tape, but some of it was caught in her hair. They asked her if she knew where the keys to the handcuffs were. She told them that the defendant had put them into his pants pocket when they were in the basement. Officer Bowman went to the basement. There she saw men’s and women’s clothing on the floor. Without touching anything else, she picked up the pair of men’s jeans and reached into the pocket, finding the handcuff keys. She returned upstairs and freed Jenieda. The girl, by then wrapped in a blanket, asked the officer to get her clothes for her. The officer went back to the basement and got the rest of Jenieda’s clothes. After getting dressed, Jenieda was taken to the hospital. Shortly thereafter, a search warrant was obtained, and the police confiscated the men’s clothing in the basement as well as the blanket in which Jenieda had been wrapped.

Evidence presented at trial included chemical and DNA analysis of samples taken from the victim and from the items of clothing seized.

Both grounds for defendant’s appeal are based on allegations that his trial counsel was ineffective. In order to prevail on a claim of ineffective assistance of counsel, a defendant must first demonstrate that the issue, argument or tactic which counsel has foregone and which is the basis of the ineffectiveness claim, is of arguable merit. If so, then it must be shown that counsel had no reasonable basis for the course of action taken. Finally, if the first two tests are met, the defendant must show that counsel’s course of action resulted in actual prejudice. Commonwealth v. Paolello, 542 Pa. 47, 75-76, 665 A.2d 439, 454 (1995). The burden is on the defendant because counsel’s actions are presumed to be effective. Id.

Defendant first asserts that his counsel should have filed a motion to suppress physical evidence taken from the house. He argues that even though the items were eventually taken pursuant to a warrant, but for the warrantless entry into the house, the items would not have been discovered.

Police originally entered the house for investigatory purposes. They told Desmond that they wanted to speak with his father. Desmond went in the house and allowed the police to follow. Where police have made their purpose known, and access is not refused, consent to enter can be inferred. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994). The initial search without a warrant was permissible because exigent circumstances existed. Police are not required to obtain a warrant if they have probable cause to believe someone is in imminent danger. Id. Under the totality of circumstances, which includes information obtained from the victim’s grandmother, the admission from the defendant that the victim had been in his house, and, most importantly, hearing sounds of muffled crying, the police were justified in going upstairs. They were further justified in looking for the handcuff keys, so that the victim could be released, and in retrieving her clothes so she did not have to travel to the hospital wrapped in a blanket. Any item not necessary for the care of the victim was left untouched until a warrant was obtained. Under these facts, a motion to suppress would have been unsuccessful. Hence, the failure to file a suppression motion cannot be the basis for an ineffectiveness claim.

Defendant’s second ground for appeal is that:

“Appellant’s trial counsel was ineffective in failing to emphasize to the trial court during cross-examination of the Commonwealth’s witness, Glenn Hall, a DNA analyst, and in closing argument, that the DNA tests done on the sperm fraction of the DNA obtained excluded appellant as the primary source of that DNA. Trial counsel’s inaction inured to appellant’s prejudice in that the results were material to creating a reasonable doubt as to appellant’s guilt of rape.”

Defendant has misstated the testimony. Mr Hall testified that upon examination of the vulva swabs taken, the defendant could only be excluded from the nonsperm fraction, because that fraction was determined to be of female origin, and was consistent with the genetic markers of the victim. Further, he testified that the sperm count in the sperm fraction was so faint that they could not reach any conclusions about its source. In short, the tests results were not sufficient to include or exclude the defendant as the source of the sample. This testimony was repeated and clarified on cross-examination and on redirect examination. Since the testimony was not that the defendant was excluded, raising such an argument would have been futile. This allegation of ineffectiveness, too, must fail.

For all the foregoing reasons, the conviction was proper. The judgment entered on January 16, 1998, imposing the sentence of 17 1/2 years to 70 years incarceration should be affirmed.


author: GARB, J.,

text:
    Piwonski v. Choe
    C.P. of Bucks County,
    no. 93-6263.

      Philip J. Cohen, for plaintiffs.

      Randolph A. Scott, for defendant.
    January 13, 1999
   GARB, J.,

— Plaintiffs sue for damages allegedly incurred as the result of a motor vehicle accident. Defendant has moved for partial summary judgment based upon the limited tort option of the Motor Vehicle Financial Responsibility Law. We determine that partial summary judgment should be granted for the defendant.

Section 7501(a)(1) of the Act provides essentially that each insurer shall notify each named insured of the latter’s right to choose the limited or full tort option with the understanding that a premium benefit is derived from the limited tort option. That section further provides for a mandatory notice to named insured which must state that “under the limited tort” option, the insured may seek recovery for all medical and out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury.” Section 1705(d) provides that each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. “Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss, . . . .” (emphasis added)

In view of the fact that the plaintiffs have admittedly chosen the limited tort option, the question for disposition is whether, on this record, Joseph Piwonski has demonstrated that he suffered “serious injury” in the context of a summary judgment analysis.

Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996) held, inter alia, that the resolution of whether a limited tort plaintiff has sustained “serious injury” is one for the court to be made in advance of trial, not an issue for the jury, and may be determined where there is an adequate record by summary judgment. Regardless of whether Dodson v. Elvey, supra, can be construed to have decided that the issue of “serious injury” is always one of law for the court, pretrial, that issue has now been set to rest by our Supreme Court in Washington v. Baxter, 719 A.2d 733 (Pa. 1998) which held that the issue of determination of “serious injury” may be determined by summary judgment upon the application of summary judgment principles. That court held that the traditional summary judgment standard is to be followed and that the threshold determination was not to be made routinely by a trial court judge, but rather, must be left to a jury “unless reasonable minds could not differ on the issue of whether a serious injury had been sustained.” Washington v. Baxter, 719 A.2d at 740. Therefore, in the context of summary judgment, the court must determine initially (1) whether the plaintiff as moving party has established that he or she has suffered serious impairment of a bodily function; (2) whether the defense as moving party has established that he or she has not suffered serious impairment of a bodily function; or (3) whether there remains a genuine issue of material fact for the jury to decide. Curran v. Children’s Service Center of Wyoming County Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991). As stated more succinctly in Washington v. Baxter, supra at 740, whether “reasonable minds could not differ on the issue of whether a serious injury had been sustained.”

In addressing the question of whether there is a serious impairment of body function, the court in Dodson adopted the standard established in Michigan in virtually identical language and as explicated in DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986). In this regard, in footnote 11, the Supreme Court in Washington v. Baxter affirms Dodson and restates the DiFranco standard. The court in DiFranco v. Pickard provided as follows:

“The ‘serious impairment of body function’ threshold contains two inquiries:

“(a) what body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

“(b) was the impairment of body function serious?

“The focus on these injuries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent and permanency of impairment ... In determining whether the impairment was serious, several factors must be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” 427 Mich. at 39, 398 N.W.2d at 901.

“An impairment involves more than the injury itself. The consequences of the injury must involve a serious impact for an extended period of time on a plaintiff’s life.” Dodson v. Elvey, supra at 499, 665 A.2d at 1234, citing Oswin v. Shaw, 129 N.J. 290, 318, 609 A.2d 415, 429 (1992). “It must interfere substantially with the plaintiff’s normal activities and not impose only a mild or slight limitation.” Dodson v. Elvey, supra, citing Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 573-74, 441 N.E.2d 1088, 1091 (1982). See also, McClung v. Breneman, 700 A.2d 495 (Pa. Super. 1997) and Leonelli v. McMullen, 700 A.2d 525 (Pa. Super. 1997) which, once again, adopted the factors to be considered by our courts as set forth in DiFranco v. Pickard.

Husband plaintiff was injured when he was driving his motor vehicle on February 28, 1993 when it was struck on the right passenger side by a vehicle driven by the defendant. He was treated in the emergency room of Delaware Valley Medical Center complaining of neck, back, right hip and bilateral knee pain. Although x-rays for fracture were negative, the x-ray of his left knee did show metallic staples at the proximal tibia at the site of an old osteotomy. The x-ray also showed mild degenerative changes. No treatment was rendered, and plaintiff was released.

Plaintiff sought treatment with Dr. Joseph Cammarata, a chiropractor. His complaints on his first visit on March 3, 1993 were neck pain and left knee pain. Physical therapy was initiated for these complaints, and the plaintiff was referred by Dr. Cammarata to Steven Meseri M.D. for an evaluation on March 8, 1993. Dr. Meseri’s diagnosis was of cervical strain and sprain, trapezius myofascitis, post-traumatic cephalgia, contusion to third finger of left hand, contusion of left knee.

Dr. Cammarata made a series of observations when he undertook treatment of the plaintiff. On March 3, 1993, with respect to personal care, it was noted that the plaintiff needs some help, but manages most of his personal care. Pain prevented all sex, and the plaintiff was able to sleep less than six hours even when taking tablets. Plaintiff was unable to sit for more than 60 minutes because of pain and was unable to lift or carry anything at all. Pain prevented him from walking more than a short distance and prevented him from standing more than 10 minutes. Pain restricted his social life to his home and his travelling except to the doctor or hospital.

On September 15, 1993, he noted that while the pain is bad, the plaintiff was able to manage without taking painkillers. As for personal care, the plaintiff was able to look after himself normally without causing any extra pain, and his sex life was normal, causing no extra pain. Pain did not prevent the plaintiff from sleeping well, but it did prevent him from sitting for more than 60 minutes. Pain prevented the plaintiff from lifting heavy weights, but he can manage light to medium weights if they are conveniently positioned. Pain prevented the plaintiff from walking more than one quarter of a mile and prevented him from standing for more than 30 minutes. Pain had no significant effect on the plaintiff’s social life apart from limiting his more energetic interests (dancing, etc.) and he could travel anywhere, although it gives him extra pain.

Plaintiff sought treatment with James Taitsman M.D., who had previously treated him for an infected prepatellar bursa of the right knee in July of 1984 and chronic low back pain due to discrepancy in the length of plaintiff’s legs as well as degenerative disc disease. Dr. Taitsman’s first examination was on March 17,1993 and notes that the plaintiff had a prior history of epiphysiodesis with pins or staples in his left knee. Dr. Taitsman’s diagnosis of plaintiff’s left knee complaints on this date was of resolving synovitis and a strain of the medial collateral ligament, probably second degree. He prescribed a knee immobilizer, quadricep setting exercises and oral anti-inflammatories. It was his opinion that the plaintiff was unable to work at that time because the plaintiff’s work involved walking up and down two flights of stairs all day. The plaintiff was a special education teacher in Trenton, New Jersey. On May 14, 1993, Dr. Taitsman found that the plaintiff was improving, with some stiffness and some medial joint tenderness lacking some flexion compared to his right knee, and walked with a slight limp on initiation of ambulation. The treatment was to continue physical therapy and anti-inflammatory medication and return to work on May 10, 1993.

On June 29, 1993, in his examination, Dr. Taitsman found the plaintiff doing well, without pain, and exercising on his own. He directed that the plaintiff continue home exercises and return if symptoms worsen. As the result of aggravation and pain, on August 10, 1993, plaintiff returned to Dr. Taitsman who noted that plaintiff may either have a patella problem or degenerative tear of his medial meniscus. An MRI was ordered, which revealed a posterior horn tear of the medial meniscus. Dr. Taitsman recommended arthoscopic surgery and agreed with the plaintiff’s request to delay that until Christmas so as not to interrupt his teaching schedule.

Plaintiff underwent left knee arthoscopic evaluation on February 9, 1994, and it was determined that he had a posterior horn tear of the meniscus and chondromalacia of the medial femoral condyle which was debrided. Thereafter, plaintiff began upon the physical therapy program prescribed by Dr. Taitsman, which was completed in April of 1994. Plaintiff returned to work on April 4, 1994. No further treatment was performed by Dr. Taitsman.

During litigation, plaintiff was evaluated at the insistence of his attorney by Michael S. Granis M.D. Dr. Granis noted the plaintiff’s left knee injuries and opined that they were related to the accident and that the plaintiff had a 30-degree loss of flexion of his left knee and an ongoing aggravation of a previously asymptomatic degenerative disease of the left knee.

Plaintiff’s deposition was taken with respect to damages on October 31, 1995. At that time, he testified that his worst injury was to his left knee, but that he also injured his neck and his middle finger. He testified that he had body aches and headaches for a month or so after the accident. He testified about the surgery performed by Dr. Taitsman on his left knee. He stated that he saw the doctor a week or so after the surgery and had fluid drained from the knee which was a very unpleasant experience. He then saw the doctor every week for a couple of weeks until the stitches were removed. That was the extent of Dr. Taitsman’s treatment. During that period of time, he was doing physical therapy under the prescription of Dr. Taitsman. He testified that he was discharged by Dr. Taitsman approximately two months after the surgery and that he had no pain in his knee when discharged. He testified that the knee bothers him if he walks on it for a long period of time and at night. He testified that he cannot cross his right leg onto his left leg or put his feet up on the couch because it causes pain. He testified that he sometimes had pain sleeping on that knee and had to get a special pillow to cushion it while in bed. As of the time of the deposition, he had no further treatment respecting the knee. With respect to his neck, he testified that he wore a collar for a couple of months and that his neck no longer bothered him. With respect to his middle finger, he no longer experienced any discomfort or restricted use as of the time of the deposition. As of the time of the deposition, he had returned to work.

Based upon the foregoing, and the totality of the record in this case, we are satisfied that there is no issue regarding “serious impairment of body function” for a jury to decide because reasonable minds could not differ on the issue of whether a “serious injury” had been sustained. It was not. Washington v. Baxter, supra. On that basis, there is no issue of material fact to be decided on this case, Curran v. Children’s Service Center of Wyoming County Inc., supra, and, therefore, partial summary judgment must be granted for the defendant.

ORDER

And now, to wit, January 13,1999, it is hereby ordered that summary judgment is entered for the defendant and against the plaintiffs for all claims of noneconomic loss.

      . 75 Pa.C.S. §1701.