author: WOLFE, P.J.,

text:
    Scalise v. LeTrent

      Thomas E. Africa, for plaintiffs.

      William A. Beveviho, for defendants.
    September 11, 1990
   WOLFE, P.J.,

For disposition are defendants’ preliminary objections to strike plaintiffs’ reply to defendants’ new matter. Also for disposition is plaintiffs’ petition to file an amended complaint.

Initially, plaintiffs commenced their action in the District Justice Court, seeking redress against defendants on an agreement of sale wherein plaintiffs purchased defendants’ realty, and after plaintiffs took possession, concluded defendants exercised a fraud upon plaintiffs in that there were latent defects in the realty as well as personal property. The district justice entered judgment for plaintiffs in the amount of $1,435.72 from which defendants took a timely appeal.

Plaintiffs have filed their complaint alleging fraud in count I and in count II make claim for attorney fees. On preliminary objections of defendants we denied the demurrer to count I and granted the demurrer to count II, to wit, attorney fees. Thereafter, defendants filed their answer and new matter and, inter alia, raised the bar of the statute of limitations of two years, Act of December 20, 1982, P.L. 1409; 42 Pa.C.S. §5524(7). The answer and new matter carried a notice to plaintiffs to respond thereto within 20 days of service. Plaintiffs filed their reply to defendants’ new matter of August 1, 1990; however, defendants on July 27, 1990, filed their motion for judgment on the pleadings. This motion is grounded in plaintiffs’ admission of the bar of their cause of action by the two-year statute of limitations in that there was not a timely reply despite the notice to plea (rule 1029(b)). In their untimely reply plaintiffs allege they are not time-barred for the reason their action is in contract, to which a four-year statute of limitation is applicable, and in the alternative their claim is under the Unfair Trade Practice and Consumer Protection Law governed by a six-year statute of limitation.

Defendants thereafter filed preliminary objections to strike plaintiffs’ untimely reply.

Finally, on August 17, 1990, plaintiffs filed their petition for leave to file an amended complaint and allege relief under the Unfair Trade Practice and Consumer Protection Law (73 P.S. §201-1). Plaintiffs allege therein if defendants are correct on the two-year statute of limitations they will be “out of court.”

In resolution of a motion for judgment on the pleadings which is in essence a summary judgment motion, the informative case of Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968), is applicable:

“The language of rule 1035, adopted in 1966, was taken verbatim from Federal Rule of Civil Procedure 56(c). Interpretation of the scope of rule 1035 can be aided by reference to the cases decided under the federal rule, which establish the following criteria. ‘On motion for summary judgment the court must consider the entire setting of the case and all the papers that are included in the record . . . One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact. . . The court must consider both the record actually presented and the record potentially possible at the time of trial... A hearing on a motion for summary judgment is not a trial on the merits, and the court on such motion should not attempt to resolve conflicting contentions of fact.’ International Latex Corporation v. Lexicon Products Inc., 37 F.R.D. 524, 525, 526 (E.D. Pa. 1965). The court is to accept as true all well pleaded facts in the plaintiff’s pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Pittsburgh Hotels Assn. Inc. v. Urban Redevelopment Authority of Pittsburgh, 202 F.Supp. 486 (W.D. Pa.), aff’d, 309 F.2d 186 (3d Cir. 1962), cert. denied, 372 U.S. 916 (1963). The record must be examined in the light most favorable to the non-moving party. Fiumara v. Texaco Inc., 204 F.Supp. 544 (E.D. Pa.), aff’d, 310 F.2d 737 (1962). In passing upon a motion for summary judgment ‘it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.’ (In the instant case, appellee.) Admiral Corporation v. Cerullo Electric Supply Co., 32 F.R.D. 379, 380 (M.D. Pa. 1961). ‘[A] party should not be deprived of an adequate opportunity to fully develop [sic] his case by witnesses and a trial, when the issues involved make such procedure the appropriate one ... It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts . . . Under such circumstances the case is not one to be decided by the trial judge on a motion for summary judgment.’ S.J. Groves & Sons Company v. Ohio Turnpike Commission, 315 F.2d 235, 237, 238 (6th Cir.), cert. denied, 375 U.S. 824 (1963).” '

Instantly, plaintiffs have recognized their initial complaint is bottomed in fraud, and in our opinion it is inescapable the statute of limitations of two years is applicable. Plaintiffs, recognizing this difficulty, now attempt to circumvent the statute by the Unfair Trade Practice and Consumer Protection Act and its lengthened statute of limitations.

We recognize it is within the sound discretion of the court to grant amendments to pleadings if the case may be resolved on its merits and no prejudice befalls the non-moving party. In this regard rule 1029(d) is controlling:

“Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subsection (c) of this rule, shall have the effect of an admission.”

Instantly, it is conclusive plaintiffs have admitted the two-year statute of limitations by their failure to reply to defendants’ new matter. We may not ignore defendants’ motion for summary judgment because plaintiffs request an amendment under these circumstances. If defendants are entitled to judgment on the law, to wit, the statute of limitations of two years, the case is concluded; and, as plaintiffs recognize, they are “out of court.”

Plaintiffs rely heavily on the holding of Gabriel v. O’Hara, 368 Pa. Super. 383, 534 A.2d 488 (1987). This case resolved, inter alia, that the UTPCPL is governed by a six-year statute of limitations and that the . trial court abused its discretion in denying appellants’ amendment of their complaint, “on the basis that a claim pursuant to the UTPCPL was untimely. ” (emphasis supplied)

Here, we are not coping with the same issue of timeliness.

Defendants'further contend that, notwithstanding plaintiffs are permitted to amend their complaint and claim relief under the UTPCPL, nonetheless, plaintiffs are confronted with the terms of the parties’ agreement and any testimony to. the contraiy would be in violation of the parol-evidence rule in that paragraph 5 and paragraph 16 of the agreement provide:

“(5) It is hereby understood between Buyer and Seller that the property has been inspected by Buyer or his agent, that the same is being purchased solely in reliance upon such inspection and that there has not been and are no representations nor warranties expressed or implied, with respect to the physical condition of the property made by Seller except those provided by this agreement or those set forth in this paragraph.

“(16) This agreement contains the entire agreement between the seller and Buyer, and there are no other terms, conditions, obligations, covenants, representations or statements, oral or otherwise, of any kind whatsoever.”

Gabriel v. O’Hara, supra, clearly holds, under circumstances here under consideration, that a cause of action for the sale of a single-family home when an allegation of fraud and deceit by the seller is alleged falls within the orbit of the UTPCPL which is controlled by a six-year statute of limitations. Thus, plaintiffs could have pleaded violation of the act initially and therefore it is arguable with rationale the amendment should be granted as the courts are compelled to allow amendments with “great liberality” at any stage of the case unless they violate the. law or prejudice the rights of the opposing party. Del Turco v. Peoples Home Savings Assn., 329 Pa. Super. 258, 478 A.2d 456 (1984). Thus, if we deny plaintiffs’ amendment plaintiffs could suffer a voluntary nonsuit and recommence the action, pleading the act; however, in such instance plaintiffs would then be confronted with the agreement which categorically excludes parol evidence. Plaintiffs do not explain how they intend to escape these provisions of the contract. Alternatively, if we permit the amendment, plaintiffs are still confronted with the parol-evidence rule at time of hearing. We therefore conclude, either way, as a matter of law there would be no genuine issue of fact to resolve as plaintiffs have foregone the issue of fraud by (1) the admission that their case is controlled by the two-year statute of limitations, and (2) by the exclusion of the issue of fraud in the parties’ agreement. We are not at liberty to amend the parties’ agreement as the law strongly sanctions contracts between parties as they have written them.

For the foregoing reasons we enter the following

ORDER

And now, September 11, 1990, plaintiffs’ petition to file an amended complaint is denied.

Defendants’ motion for judgment on the pleadings is granted.

       The complaint alleged the parties entered into a contract of sale of the premises on or about December 31, 1986. '


source: Caselaw Access Project

author: BALDWIN, J.,

license: Public Domain

text:
    Commonwealth v. Gulliksen

      Claude A. L. Shields, district attorney, for the Commonwealth.

      George T. Dydynsky, for defendant.
    August 13, 1990
   BALDWIN, J.,

On July 24, 1989, defendant was issued a citation charging him with violating section 1543(b) of the Vehicle Code, driving while under suspension — DUI related. Defendant appealed his conviction before the district justice, and on April 23, 1990, was found guilty by this court after trial de novo. Timely post-verdict motions have been filed and are currently before the court for disposition.

On July 23, 1989, defendant was stopped by Patrolman Smith of the Tamaqua Police Department for going through a red light. When requested to produce his driver’s license, defendant informed the officer that he did not have his license because it had been suspended. The officer obtained defendant’s name, address and birth date and attempted to verify the status of his license by reference to the Department of Transportation uniscope computer. Because the computer was down at the time, the officer could not make verification and permitted defendant to leave, advising him that he would receive a citation at a later date. When the officer received certification of defendant’s driver’s license, he discovered that the license had been suspended effective October 12, 1988, for a period of one year as a result of a conviction for driving under the influence. The citation.for violating section 1543(b) of the Vehicle Code was then issued.

Evidence at the hearing revealed that defendant was convicted of driving under the influence on July 25, 1988, and that the sentencing court required him to surrender his license at that time. The Honorable John P. Lavelle of Carbon County, at the time of sentencing, informed defendant that his license would be suspended for a period of one year due to the DUI conviction. Defendant admits understanding that his license was to be suspended for a year, but he denies knowing when the year was to commence.

On September 7, 1988, the Department sent notice to defendant that his license would be suspended for one year effective October 12, 1988. The notice was sent to the last address that defendant had reported, but was returned unclaimed. Defendant had moved from that address without notifying the department, and by the time the notice of suspension was mailed defendant had become a resident in the Monroe County Prison. He was not released from that prison until April 5, 1989, when he began serving a 30-day sentence for the DUI conviction in Carbon County.

In a prosecution for violating section 1543(b) of the Vehicle Code the Commonwealth must prove that the defendant received notice that his license was suspended because of a DUI conviction, and evidence that the suspension notice was mailed is insufficient in itself to prove receipt of notice by the defendant. Commonwealth v. Gamble, 376 Pa. Super. 590, 546 A.2d 681 (1988); Commonwealth v. Martin, 346 Pa. Super. 129, 499 A.2d 344 (1985). However, when the department’s records do not establish actual notice to the defendant, the Commonwealth may seek to prove such notice through other evidence. Commonwealth v. Burkett, 300 Pa. Super. 72, 445 A.2d 1304 (1982).

In Burkett the Commonwealth was able to establish that the Department sent the defendant notice that his license would be suspended commencing with receipt of the license by the Department. The department records also indicated receipt of that license shortly thereafter. When the defendant was subsequently stopped by the police, the officer observed him attempting to switch seats with one of his passengers. The court found the evidence sufficient to establish the defendant’s knowledge that his license has been suspended.

In the instant case while there is no showing that the department’s notice of suspension was ever actually received by defendant, defendant clearly confirmed his awareness that his license was suspended at the time that he was stopped by Patrolman Smith. His license had been confiscated by the Carbon County Court at the time of his sentencing for driving while under the influence, and he had been advised by the court that the license was being suspended because of that conviction. Defendant clearly had notice when he operated his vehicle on July 23, 1989, that he was doing so while his license had been suspended as a result of his DUI conviction. The only confusion related by defendant was the effective date of that suspension. That confusion might constitute a defense if defendant had been stopped by Patrolman Smith on July 25, 1989, or any date thereafter. Then defendant might reasonably have assumed that the suspension of his license had expired one year from the date he had surrendered it to the Carbon County Court. At the time he was stopped on July 23, 1989, defendant admits to knowledge that his license had been suspended because of a DUI conviction. That is all that is required to establish a violation of section 1543(b) of the Vehicle Code.

Finally, defendant argues that his violation of the Vehicle Code was justified because he was rushing to the home of his girlfriend’s sister, whom he believed to be in danger. He supports this contention with evidence that he was at his residence in Landsford when he answered a phone call from the sister, who was 16 years old and yelling for help. He explained that he knew she had a boyfriend who was much bigger than she and believed that she was being beaten at the time. Immediately upon hearing her call for help, defendant dropped the phone and ran outside where he met his girlfriend and two of his friends. Because none of those three could drive his vehicle, which was equipped with a manual transmission, he drove to the girlfriend’s home in Tamaqua and was stopped by Patrolman Smith.

Defendant contends that his actions in driving while under suspension were justified under section 503 of the Crimes Code, 18 Pa.C.S. §503, in that he believed his assistance was necessary to prevent imminent harm to his girlfriend’s sister. There is nothing in the record to support this contention. Although the testimony reveals that the young lady was upset and screaming while requesting that he help her, she had at no time told him that she was being beaten, or even that anyone else was with her. Additionally, defendant had available to him the more reasonable course of calling the police in the municipality where the young lady resided, since they would have been able to get there much sooner than he.

Having found defendant’s arguments in support of post-verdict motions to be without merit, we enter the following

ORDER OF COURT

And now, August 13, 1990, after careful consideration of defendant’s post-verdict motions and the briefs pro and con, it is hereby ordered that defendant’s motion for arrest of judgment be denied and that the defendant appear for sentencing on Wednesday, August 22,1990, at 10:15 a.m. in Courtroom no. 3.


author: BROMINSKI, J.,

text:
    Fairway Consumer Discount Co. v. Mulhern

      David E: Schwager and Fred A. Pierantoni III, for plaintiff.

      Arthur L. Piccone and Ronald V. Santora, for defendants.
    June 20, 1990
   BROMINSKI, J.,

This matter copies before the court by way of plaintiff Fairway Consumer Discount Company’s motion for summary judgment.

On or about May 18, 1989 plaintiff, Fairway . Consumer Discount Company, brought an action in mortgage foreclosure against defendants, Mary A. Mulhern, James R. Elliott and Mary Jane Elliott, his wife, alleging that defendants were in default on a mortgage on improved real estate owned by defendant Mary A. Mulhern. Plaintiff has asserted, and defendants have not denied, that notice of the default was properly made upon defendant Mary Mulhern.by certified mail, return receipt requested. Defendants filed a timely answer to plaintiff’s complaint in foreclosure pro se, basically asserting that the annual percentage rate of the mortgage, as well as amounts of insurance and costs, and total amount of payback, were not disclosed to defendants prior to closing.

A motion for summary judgment may be granted only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party, and resolve all doubt against the moving party. Mariscotti v. Tinari, 335 Pa. Super. 599, 485 A.2d 56 (1984); Vend-A-Matic Inc. v. Frankford Trust Co., 296 Pa. Super. 492, 442 A.2d 1158 (1982).

In the present matter defendants’ main contention in opposition to summary judgment centers on the argument that a factual dispute exists as to alleged violations of the Truth in Lending Act and Regulation Z issued thereunder. More specifically, defendants assert plaintiff did not disclose the annual percentage rate, total amount of repayment, additional charges such as costs and interest and life insurance premiums.

After carefully reviewing the arguments of plaintiff and defendants and taking into consideration the discovery and pleadings, this court finds that summary judgment should be granted in this matter.

An action in mortgage foreclosure is strictly an in rem proceeding and the purpose of a judgment in mortgage foreclosure is solely to effect a judicial sale of the mortgaged property. Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964); New York Guardian Mortgage Corp. v. Dietzel, 362 Pa. Super. 426, 524 A.2d 951 (1987). A judgment in a mortgage foreclosure action is not a judgment for money damages and, therefore, cannot be an action to collect amounts owed or “an action to collect the debt” as required under section 1640(h) and (r) of the Truth in Lending Act. New York at 431, 524 A.2d at 953.

As set forth above, defendants’ defense of this claim does not attack the existence of the mortgage or that they are in default, but rather only challenges the mortgage lender’s failure to disclose as required by the federal Truth in Lending Act, 15 U.S.C. §1601 et seq.

The Truth in Lending Act is a federal consumer protection statute which, inter alia, requires prospective creditors to fully disclose the credit costs of a given loan to prospective debtors. Household Consumer Discount v. Vespaziani, 490 Pa. 209, 415 A.2d 689 (1980); Fleet Real Estate Funding v. Smith, 366 Pa. Super. 116, 530 A.2d 919 (1987). Where a defendant raises as a defense to a mortgage foreclosure action a failure to disclose these costs, our courts have held that such a defense is considered a claim for setoff and cannot therefore be asserted in such actions because mortgage foreclosure actions are considered in rem and not actions for personal judgments. Fleet at 127, 530 A.2d at 919.

Guided by the above law in this Commonwealth and taking into consideration the defense raised by defendants, we find that no genuine issue of material fact exists as to plaintiff’s action in foreclosure. We therefore hold that summary judgment be entered in favor of plaintiff and against defendants for foreclosure and sale of the property in question together with all additional costs and expenses incurred by plaintiffs.

ORDER

It is hereby ordered, adjudged and decreed that plaintiff’s motion for summary judgment is granted.


author: MUNLEY, J.,

text:
    Chrysler v. Zigray

      Peter Loftus, for plaintiff.

      Albert Nichols, for defendants.
    September 13, 1990
   MUNLEY, J.,

Before the court is the motion for a protective order, pursuant to Pa.R.C.P. 4012, of defendants James Zigray and Deborah Leiber, in which they request the court to designate certain materials as confidential/trade secrets and thus prohibit the examination and use of these documents by plaintiff, Creavey Seal Company. Protective orders are governed by the language and purpose of Pa.R.C.P. 4012 which reads in relevant part as follows:

“(a) Upon motion by a party or by the person from whom discovery or deposition is sought and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense. . .”

As the matter now stands, this is an action against the defendants for an alleged violation of a covenant not to compete. Covenants are agreements in which the covenantor agrees for a specific period of time and within a particular area to refrain from competition with the covenantee. Black’s Law Dictionary 712 (5th edition 1979). As the term is commonly used, covenants signify the existence of a profound personal relationship contingent on mutual trust. Defendants entered into such covenant as employees of the original Creavey Seal Company. When ■the company was sold, the defendants departed and subsequently incorporated a similar business under the name of Sealmor Industries. Plaintiff argues that certain business practices of Sealmor Industries are in breach of this covenant. Through discovery, plaintiff has sought blueprints, designs and other information relating to defendants’ business. It is clear that precomplaint discovery is contemplated and allowed by the Rules of Civil Procedure; its purpose is to lay bear the appropriate facts. Pa.R.C.P. 4001(c). However, “the granting of relief in a discovery proceeding is dependent upon a prima facie showing of necessity, since the relief is not to be granted as a matter of right.” In re Estate of Roart, 390 Pa. Super. 38, 568 A.2d 182 (1989).

First, defendants contend, under the construction of rule 4012, that a protective order restricting the dissemination of information provided through discovery would issue whenever the information provided contains trade secrets or other confidential information, the dissemination of which would assist competitors or otherwise disadvantage the party. This court must determine whether or not the documents here in question may properly be characterized as trade secrets and whether harm will occur to the defendant corporation if such order is granted. In making its determination whether these materials rise to the level of a trade secret, the court will be guided by considerations as are embodied in the Restatement of Torts. “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use 'it.” Restatement of Torts, §757, comment b (1939). Further, a trade secret requires, inter alia, that the owner of the secret maintain a substantial amount of secrecy. Substantially, matters of public knowledge or general knowledge in an industry or matters which are completely disclosed by the goods which one markets cannot be appropriated by one as secret. West Mountain Poultry Company v. Gress, 309 Pa. Super. 361, 455 A.2d 651 (1982).

A party moving for a protective order based on Pa.R.C.P. 4012 bears the burden of establishing the objectionable nature of the discovery he is withholding. The judicial sanction of a protective order should rarely be employed. 6 Standard Pa. Practice 2d §34:35; see also, Bealla v. Zuba, 4 D.&C. 2d 545 (1955). A party objecting to discovery has not sustained his burden with a showing of mere annoy-anee, oppression or expense as unreasonable. Knappenberger v. Feldman, 6 D.&C. 2d 728 (1956). In accord Klein v. Commonwealth, 9 D.&C. 2d 792 (1956); Miller v. Bethlehem Steel Corp., 56 D.&C. 2d 269 (1972); Lynn Engineering & Mfg. Co. v. Achey, 73 D.&C. 2d 129 (1976); Provident Nat. Bank v. Soltoff, 1 D.&C. 3d 600 (1977). This court is prompt to say it will not deprive plaintiff of the right of discovery in this case on the grounds of unreasonable annoyance. Plaintiff is making a bona fide attempt to discover facts to assist him in presenting a more complete case. “So far as annoyance is concerned, litigants must reconcile themselves, to the fact that under the rules every inquiry carries with it some degree of annoyance. . .” Klein v. Commonwealth, 9 D.&C. 2d 792 (1956).

Defendants posit that the information requested should not be disclosed because much of the information is confidential. Defendants contend that the court should liberally grant a protective order, and in support of this claim, defendants cite rule 4012(a), supra, which permits a court to enter a protective order, but rule 4012(a) also provides that an order shall be entered only “for cause shown ... to protect a party or person from unreasonable annoyance, . embarrassment, oppression, burden or expense.” In their motion for a protective order, defendants have not set forth specific and concrete factual allegations that would support either a finding that the information which they are producing constitutes confidential research, development or commercial information or a finding that the dissemination of such information would harm defendants. Defendant’s request for a protective order is overly broad. They seek a court order barring the general dissemination of all information instead of identifying specific information which might be protected. Generally, defendants contend that unlimited use of this information by plaintiff would severely prejudice defendants’ right to privacy and would place them at a competitive disadvantage and deprive, them of the proprietary value of “trade secrets.” Compare West Mountain Poultry Co., supra.

In determining whether there is good cause to issue a protective order restricting dissemination, the federal courts (Pennsylvania discovery rules are modeled upon the federal discovery rules) require the moving party to show that the information sought to be protected is confidential and that public disclosure of the information will result in a clearly defined and very serious injury. Furthermore, these cases hold that general allegations of competitive harm are insufficient to meet this burden. Koster v. Chase Manhattan Bank, 93 F.R.D. 471 (S.D.N.Y. 1982); Waelde v. Merck, Sharpe & Dohme, 94 F.R.D. 27 (C.D. Mich. 1981); U.S. v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421 (W.D.N.Y. 1981); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F.Supp. 866 (E.D. Pa. 1981); and Parsons v. General Motors Corp., 85 F.R.D. 724 (N.D. Ga. 1980). The court opines none of these materials have been shown by the defendant to be trade secrets or that they are of a confidential propriety matter which should not be obtainable through discovery in this case.

Second, defendants allege they have no control over such materials because they are in the control of the parent company, Sealmor Industries, located in Ohio. However,. this controlling factor is in dispute. Plaintiff argues that defendants own two-thirds of Sealmor Industries’ stock. Defendants argue that they only own one-third of the stock, have no control over Sealmor Industries, and cannot provide the information that plaintiffs request. Defendants state that the documents “are for the most part” documents located at Sealmor Industries in Ohio. The materials Sealmor Industries is seeking to protect and prevent from being disseminated by others may be in the care, custody and control of Sealmor, Ohio and/or Sealmor, Pennsylvania. Nevertheless, it is evident that (the party defendants) Sealmor, Pennsylvania have some control over such materials and can produce them if only “in the spirit of cooperation.”

Further, addressing defendants’ argument that dissemination of such material is a violation of the “right to privacy,” any litigant has a legitimate entitlement to privacy which is granted by the constitution, as well as by statute. There also exists a legitimate interest in the discovery of relevant information which will enable a party to adequately prepare his case for trial. In light of plaintiff’s theory of the lawsuit, I believe that the items sought are relevant for purposes of discovery. Our discovery rules should not be applied in a manner that hinders the efforts of an alleged victim of breach of contract to present his case. Rule 4012 is obviously not intended to prevent a party who is preparing his pleadings with reasonable diligence from completing necessary discovery for the proper preparation of his case. Further, under the construction of rule 4012, no protective order should issue unless defendants show that public dissemination of the information would result in a clearly defined and serious injury. Disclosure of general information as to a party’s financial status in a breach of covenant case is necessary to permit the opposing party to evaluate and present a claim. The disclosure of such information will not in most cases unduly invade a party’s privacy.

Defendants have failed to demonstrate good cause or compelling reasons for denying plaintiff access to the documents in question. The court cannot agree with defendants’ general contention that the information contains “trade secrets” and/or that defendants have no control over such matters. It is neither important nor necessary, at this juncture in the proceedings, to be informed of the previously existing business relationship between plaintiff and defendant. The established facts are that after being employed by plaintiff and entering into a covenant relationship, defendants’ employment was terminated and he established proprietary identity with a similar business.

Under ordinary circumstances, business lists and records are unquestionably private domain. However, in light of the covenant agreement, supra, these circumstances must be considered extraordinary. Consequently, we have claims of abrogated contractual agreements and entitlements to legal protections against competitive use of confidential and secret information obtained out of previous employment. On the balance the rules of discovery in our jurisprudence require us to provide the relevant information sought by plaintiff. For these reasons, we deny defendants’ motion for a protective order barring plaintiff from the use of certain information. .This opinion and the accompanying court order, while denying defendants’ motion, outlines specific limitations and restrictions within which the party plaintiff must use the material provided.

ORDER

Now, September 13, 1990, the request of defendants, James Zigray and Deborah Leiber, for a protective order pursuant to the provisions of Pa.R.C.P. 4012 is denied and defendant is directed to comply with plaintiff Gerald Chiysler’s request for production, part IV., nos. 1, 3, 4, 5 and 6, within 30 days.

With respect to requests nos. 2, 7 and 8, the defendant is directed to provide a complete copy of said documents to the elerk of judicial records within 30 days. As to requests nos. 7 and 8 (tax returns, receipts, etc.) defendants will only be obliged to produce the corporate or business tax returns, receipts, etc. and not defendants’ personal or individual tax records and statements. The clerk of judicial records is ordered to impound these documents and the possession of copies thereof should be restricted to plaintiff’s counsel in this case, and the use thereof should be limited strictly by plaintiff’s counsel to the preparation of pleadings and the preparation or trial of this case, which are the limits of the scope of permissible pretrial discovery. Pa.R.C.P. 4001.

       Sealmor Industries is a fictitious name of Telfex Incorporation, an Ohio corporation doing business in Pennsylvania.


author: WALKER, J.,

text:
    Nelson v. Stine, Davis and Peck Insurance

      Kenneth A. Wise, for plaintiff.

      John W Heslop Jr., for defendant Stine, Davis and Peck Insurance.
    September 10, 1990
   WALKER, J.,

This is a companion case to Scott H. Nelson, M.D. v. Old Guard Mutual Insurance Company, Richard’s Insurance Service, and Elton Schoen, Fulton County Branch, Civil Action — Law, no. 105 of 1988-C. Defendant Stine, Davis and Peck Insurance has succeeded to the assets and liabilities of Richard’s Insurance Service.

Plaintiff Scott H. Nelson and defendant Elton Schoen owned a farmhouse as tenants in common. The property was know as Stone Top Mountain Farm and was located in Todd Township, Fulton County, Pennsylvania.

In 1980, Nelson acquired insurance coverage on the house with defendant Old Guard Mutual Insurance Company through its agent, Richard’s. He instructed Richard’s to send all billings and notices to the plaintiff at his New Cumberland, Pa., address. Richard’s did in fact send the notices to that address and the bills were paid through 1984. However, Richard’s failed to send any premium renewal, non-renewal or cancellation notices for the November 10, 1985 to November 10, 1986 policy period.

In November or December 1985, Schoen contacted Richard’s and requested that a bill be sent to plaintiff in New Cumberland. John Brown, an agent with Richard’s, told Schoen that the billings would be sent to that address. No billings or notices were sent to the plaintiff.

Nelson learned in February, 1986, that no payments had been made for insurance in 1985 and requested Schoen to contact Richard’s and request a billing. Schoen did so and Richard’s agent informed Schoen that bills had been sent to plaintiff and would be mailed to him in the future. No bills were sent. The agent did not tell Schoen at the meeting that the policy had earlier been canceled,

Schoen again contacted Richard’s when no bills were received and was informed by the agent that bills would be mailed. No bills were sent.

. A fire destroyed the farmhouse on May 13, 1986, causing $75,000 in damage to the structure, beyond the limits of the $46,000 policy', and resulting in content loss of $12,000.

Nelson sent Old Guard a check for $200, the approximate 1985-1986 premium, on May 18, 1986. Old Guard accepted and negotiated the check. Plaintiff demanded payment from Old Guard pursuant to the terms of the,policy on July 28, 1986, and Old Guard refused to make payment.

Plaintiff filed a complaint against Stine Davis as Richard’s successor on April 18, 1989. Stine Davis filed preliminary objections in the nature of a demurrer on the ground that none of the facts alleged in the complaint alleged fraudulent conduct for the purposes of a cause of action under the Consumer Protection Law. President Judge John W. Keller delivered the opinion of this court on September 15, 1989, sustaining Stine Davis’ preliminary objections and granting Nelson leave to file an amended complaint.

Nelson filed a corrected amended complaint on October 23, 1989, and Stine Davis filed preliminary objections to the amended complaint in the nature of a demurrer on March 12, 1990. Again, Stine Davis demurred on the grounds that the amended complaint failed to allege facts which would fall within the purview of the Consumer Protection Law.

Stine Davis filed a brief in support of its preliminary objections on June 7, 1990. Arguments were heard on the objections on June 26, 1990 in Fulton County. Nelson filed a brief in opposition to Stine Davis’ preliminary objections on July 2, 1990.

DISCUSSION

Two statutory mandates control the disposition of this case. The first is the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. The second is Pennsylvania Rules of Civil Procedure, rule 1019(b).

The Consumer Protection Law provides a limited range of protection. The specific activities which are prohibited in the law are provided in subsections 201-2(4)(i) through (xvi). Subsection (xvii) is the so-called “catchall provision,” which provides that it is a violation of the Consumer Protection Law for any person to engage “in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.”

This court has carefully studied the plaintiff’s complaint and must assume that it is this catchall under which he hopes to recover. Plaintiff has not alleged that the complaint fits within the ambit of any of the act’s other provisions and this court, after careful consideration, believes that it could not fit within any of the more specific prohibitions. Count 2 of the complaint merely provides:

“(25) The willful or wantonly negligent misrepresentation of defendant with respect to insurance coverage constitutes an unfair or deceptive trade practice of law within the meaning of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq.”

We are quite aware that we must interpret the wording of the Consumer Protection Law very broadly. The Pennsylvania Supreme Court had the opportunity to interpret the law in a 1974 decision, in which it stated:

“Although the Consumer Protection Law did articulate the evils desired to be remedied, the statute’s underlying foundation is fraud prevention. . . . Since the Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense, it is to be construed liberally to effect its object of preventing unfair or deceptive practices.” Commonwealth v. Monumental Properties Inc., 459 Pa. 450, 459, 329 A.2d 812, 817 (1974), on remand 26 Pa. Commw. 399, 365 A.2d 442.

Although we are aware of our mandate, and although plaintiff says that the defendant’s alleged misrepresentation is an unfair or deceptive practice, such an allegation does not make it so. Pennsylvania Rules of Civil Procedure 1019(b) requires that “averments of fraud . . . shall be averred with particularity.” We hold today that the complaint fails to do so.

We are persuaded by the Commonwealth Court’s decision in Commonwealth by Zimmerman v. National Apartment Leasing, 102 Pa. Commw. 623, 519 A.2d 1050 (1986). There, the attorney general brought an action against a group of landlords alleging that the defendants wrongfully used portions of security deposits to clean apartments.

In its complaint, the attorney general’s only reference to fraud was in its recitation of subsection (viii) of the Consumer Protection Law section 201-2(4), that it is unfair for any person to engage “in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.” The Commonwealth Court sustained the landlords’ preliminary objections that the complaint failed to plead fraud with sufficient particularity.

The complaint at bar fails to extract or even paraphrase the language of the Consumer Protection Law provided in section 201-2(4)(xvii) which prohibits fraudulent conduct. In fact, no where in the plaintiff’s complaint is the word “fraud” ever used. We must hold that this is insufficient to satisfy the requirements of Pa.R.C.P. 1019(b).

Turning our attention now to Stine Davis’ demurrer, we are mindful that its preliminary objection has the effect of admitting as true all relevant facts which are sufficiently pleaded in plaintiff’s complaint, but not conclusions or averments of law or unjustified inferences. Ross v. Shawmut Development Corp., 46 Pa. 328, 331, 333 A.2d 751, 752 (1975). The preliminary objection should be sustained only if it is clear and free from doubt that, upon the facts averred, the law will not permit recovery. Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 111, 299 A.2d 585, 587 (1973).

Assuming that defendant did in fact misrepresent to plaintiff that it had sent renewal notices to his New Cumberland address and withheld notice of cancellation, are those facts alone sufficient to authorize a suit under the Consumer Protection Law? This court holds that it is not.

Again, we must note that unless the alleged misrepresentations were in some way fraudulent, the facts averred would be inadequate to make out a cause of action under the Consumer Protection Law. Plaintiff fails to aver any facts which show fraud on the defendant’s part.

The Commonwealth Court has just recently held that there must be some showing of intentional misconduct on the part of the defendant to violate the catchall provisions of the Consumer Protection Law, Chatham Racquet Club v. Commonwealth, 116 Pa. Commw. 55, 541 A.2d 51 (1988). There, the trial court granted a preliminary injunction on the basis that the club’s increase in fees violated the fraudulent conduct provision. The court vacated the injunction because there was no express finding of fraud, saying:

“It is only when the confusion and misunderstanding created by the actor is fraudulent that the provisions of the act may be activated. . . . Our review of the trial judge’s comments during the course of the hearing indicate that he was not convinced that the club had done any intentional wrong but rather that there was a valid reason for a bona fide difference of opinion in interpreting what was intended in the purchase agreement by the words ‘subject to’ existing memberships. In our judgment such circumstances fall short of fraud or fraudulent conduct.” 116 Pa. Commw. at 60, 541 A.2d at 54.

Fraud consists of some intentional and deceitful practice, or, at the very least, some facts that might allow us to imply that the defendant intentionally misrepresented the situation to the plaintiff. This court is unaware of any insurance company that would deliberately not collect premiums due. Plaintiff offers no facts averring that this js what occurred.

It may well be that plaintiff can indeed aver facts that will overcome the deficiencies in his complaint. We are at a loss to understand why he did not do so when afforded the opportunity. As the complaint presently stands, the facts alleged, even when viewed in light most favorable to the plaintiff, do not state a possible cause of action for fraud.

Accordingly, Stine Davis’ preliminary objection to plaintiff’s amended complaint is sustained and count 2 of the complaint must be dismissed.

ORDER OF COURT

September 10, 1990, Stine Davis’ preliminary objection to count 2 of plaintiff’s amended complaint is sustained.

Count 2 of the amended complaint is dismissed.

Plaintiff is, once again, granted 20 days to file an amended complaint.


author: LEVIN, J.,

text:
    Hill v. Smith

      Dennis G. Kuftic, for plaintiffs.

      James D. McDonald and Daniel J. Pastore, for defendant Standard Oil Co.
    August 15, 1990
   LEVIN, J.,

Before this court is a motion for summary judgment filed by defendant Standard Oil Company. It is Standard Oil’s contention that plaintiff Hill’s action is barred by 75 Pa.C.S. §4702.1 regarding the limited liability of inspection stations.

This action arises out of a collision between vehicles operated by defendants Vernie Smith and Kevin Weum on November 4, 1984. At the time of the accident, plaintiff Gary Lee Hill was a passenger in the front seat of a 1967 Volkswagen operated by defendant Weum. The injuries Hill suffered in this accident underlie this cause of action.

Defendant Standard Oil Company had conducted a Pennsylvania State Motor Vehicle Inspection of this Volkswagen on October 11, 1984. Plaintiffs’ action against Standard Oil is based upon a claim that Standard Oil wrongfully passed this Volkswagen for inspection when it was not in compliance with Pennsylvania State Motor Vehicle Inspection Regulations.

Plaintiffs assert that the vehicle failed to comply with Pennsylvania State Motor Vehicle Inspection regulations in two ways. First, plaintiffs allege that the vehicle did not have seat belts as required by the regulations. All 1967 vehicles are not required to have seat .belts per the regulations. However, if a 1967 vehicle was originally equipped with them, then the regulations require the belts to be in the car and operational for inspection purposes. Plaintiffs allege that this vehicle was originally equipped with belts and thus was required to have them at the time of inspection. Whether or not this vehicle was originally equipped with belts and whether they were present at the time of inspection remains an issue of fact. Secondly, plaintiffs allege that the passenger seat-lock mechanism was not functional, as it was missing a lock lever, contrary to state law.

Plaintiffs contend that these alleged defects existed at the time of inspection. Plaintiffs further allege negligence in Standard Oil’s failure to detect them and negligence in Standard Oil’s passing the vehicle for inspection purposes in light of these defects. Plaintiffs do not allege that Standard Oil created or caused either of these conditions. Similarly, plaintiffs do not allege that the condition of the vehicle caused the accident, but rather that these conditions contributed to plaintiff’s injuries.

Since this case involves a motion for summary judgment against plaintiff, the court must resolve all factual disputes and allegations in favor of the plaintiff. Trenco Inc. v. Commonwealth of Pennsylvania, Department of Transportation, 126 Pa. Commw. 501, 560 A.2d 285 (1989); Pennsylvania Gas and Water Company v. Nenna &. Frain Inc., 320 Pa. Super. 291, 467 A.2d 330 (1983). Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Peluso v. Walter, 334 Pa. Super. 609, 483 A.2d 905 (1984). It is not the court’s function to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. Thorsen v. Iron & Glass Bank, 328 Pa. Super. 135, 475 A.2d 928 (1984).

Defendant Standard Oil asserts that its motion for summary judgment should be granted based on 75 Pa.C.S. §4702.1. Inasmuch as the controlling issue on this motion for summary judgment is not one of fact, but one of law, the issue is ripe for summary judgment determination. The relevant portion of the statute reads as follows:

“[N] either the official inspection station issuing the certificate of inspection nor the official inspection mechanic performing the inspection shall be liable to the owner or occupants of any inspected vehicle for any damages caused by the failure or malfunction of that vehicle or to the owner or occupants of any vehicle . . . unless it can be shown by a preponderance of the evidence that the failure was caused by the negligence of the inspection station or mechanic.” ;

Plaintiff does not assert that Standard Oil’s negligence actually caused the defects in the car, thus the cause of action does not fit within that exception to immunity. Therefore the issue before this court, simply put, is whether the lock mechanism and/or seat belt “failed or malfunctioned” so as to bar Standard Oil’s liability for injuries to plaintiff, Hill.

The statute is a liability-limiting statute and plaintiffs must bring themselves within the exceptions to confer liability on Standard Oil. The statute, in essence, is designed to protect inspection stations from liability for nonfeasance. The exception allowing the imposition of liability for failures “caused by the negligence of the inspection stations or mechanic,” leaves the door open to impose liability on inspection stations for active malfeasance. For example, if the inspection station were to improperly adjust or repair the brakes on a car and an accident resulted from negligence in these repairs there would clearly be liability under-the statute. Conversely^ the statute protects inspection stations from liability where the station inspects and passes the brakes for inspection purposes without adjustment or repair, and brake failure later causes an accident.

Another door is left open by the statute which also allows the imposition of liability. Per the actual verbiage of the statute it bars liability specifically for only “failures and malfunctions.” If a problem is neither a failure or malfunction, it is not covered by the statute and liability is not barred. Plaintiff has not alleged that the failure was caused by defendant’s malfeasance, but contrarily hás alleged that the defective condition existed at the time of the inspection. Therefore, the question before this court is whether the failure of the lock mechanism and the non-existence of seat belts constitutes a failure or malfunction under 75 Pa.C.S. §4702.1 barring defendant’s liability.

Preliminarily, this court notes that no cases have been found by this court or either party which construe, interpret or apply this statute. Hence, the question before this court becomes one of statutory construction.

The statute itself does not define the words “failed or malfunctioned,” so according to the rules of statutory construction the court will construe the words according to their common and approved usage. See 1 Pa.C.S. §1903. The Webster’s Riverside University Dictionary (1976) defines malfunction as “a failure to function” or “functioning abnormally or imperfectly.” Webster’s defines failure as “a cessation of proper functioning; nonperformance of what is requested.” Further Black’s Law Dictionary (5th ed. 1979), defines failure as “abandonment or defeat; lapse; deficiency; ineffectualness.” Black’s Law Dictionary does not definé malfunction.

Applying the above definitions first to the seat-lock mechanism, this problem or defect was both a failure and a malfunction. As such, the defendant cannot be held liable for such within the meaning of the statute. The seat-lock mechanism, a fixture in the car, failed to function properly or was defective. This failure was not caused by the negligence of the mechanic or the inspection station. The locking system itself existed at the time of inspection, but allegedly failed during the accident. Standard Oil is not even alleged to have caused the failure. A mere failure to discover this problem, if it even existed at the time of inspection, is not adequate to confer liability. An inspection station cannot predict what systems will fail in the future. This is a clear nonfeasance situation for which the statute bars liability. Therefore, by the plain language of the statute, the seat-lock mechanism failure does not fit within the exceptions to immunity conferred by the statute. Standard Oil cannot be held liable to plaintiffs for this failure and summary judgment is hereby granted in favor of Standard Oil on the limited issue of the seat-lock mechanism.

With regard to the seat belt, again plaintiff does not allege that the belt’s absence is a failure or malfunction caused by defendant’s negligence. Plaintiff alleges no active negligence, but alleges a failure to detect the lack of belts and to fail the car for inspection purposes therefore. As there is no alleged malfeasance, the issue again boils down to whether the lack of belts is a failure or malfunction bringing it within the purview of the statute. Since all issues of fact must be viewed in light most favorable to plaintiff, this court will assume for the purposes of this argument only that this Volkswagen was originally equipped with seat belts. -

Most importantly it must be noted that this seat belt or seat-belt system was not in the car at the time of inspection nor is it alleged to have been. Its absence was the alleged error, and how can that which does not exist fail or malfunction? The words failure and malfunction presuppose the existence of the thing which fails. Here there was no seat belt system to fail or malfunction. Had there been evidence before the court that the seat belt system had been attached to the car as a fixture, but the buckle mechanism failed or malfunctioned, the statutory immunity would apply. Therefore, the court cannot help but reach the inescapable conclusion that there cannot be a failure or malfunction of a thing entirely absent from the car.

The word “absence” or its equivalent is not contained in this statute and cannot be added by the court directly or by implication. A fundamental rule of statutory construction is that, where a statute contains given words and provisions, the courts have no authority to insert a word into a statute where the legislature has failed to supply it. Garcia v. Community Legal Services Inc., 362 Pa. Super 484, 524 A.2d 980 (1987); Worley v. Augustine, 310 Pa. Super. 178, 456 A.2d 558 (1983). Also, exceptions expressed in a statute shall be construed to exclude all others. See 1 Pa.C.S. §1924. With this in mind, the court cannot add an additional exception to this statute. Thus, this court cannot find the limited immunity provided under 75 Pa.C.S. §4702.1 applicable to the seat belt question as it neither failed nor malfunctioned.

Another analogous factual scenario would arise if the Commonwealth, by newly enacted legislation, mandated that all cars in operation, regardless of when built, be required to have air bags. With the placement of air bags in new vehicles this is a distinct possibility. In such a situation there would be no question that the failure to have air bags was not a “failure or malfunction” of the vehicle. If such a legislation were to pass, it would be incumbent upon an inspection station to prevent a vehicle lacking such bags from entering the public roadways.

Defendant’s argument for summary judgment as to the seat belt must further fail since its interpretation of the statute creates an absurd result barred under 1 Pa.C.S. §1922(1). See also, Lehigh Valley Co-Op Farmers v. Commonwealth, 498 Pa. 521, 447 A.2d 948 (1982); Fairmont Insurance Company v. Commonwealth Insurance Department, 85 Pa. Commw. 131, 481 A.2d 696 (1984). The. inspection stations are granted a privilege by the state when they are licensed to do vehicle inspections. With this privilege comes the corresponding duty to ensure that vehicles have in place that equipment which is required by law to ensure safety. Inspection stations are the logical party, in fact it is their duty, to see that cars do not enter the roads without the required equipment. To impose that duty on another, or to construe inspection stations as entirely immune from the consequences of not fulfilling their duty, is absurd.

Defendants contend that they cannot be held liable for a negligent inspection unless the failure is caused by their own active negligence. This interpretation functionally emasculates and pre-empts the Department of Transportation’s State Inspection Regulations which specifically enumerate the elements to be inspected by authorized inspection stations. These regulations set standards for inspections statewide. The statute and the inspection regulations are in “part materia” as they relate to the same thing, and should be construed together if possible. See 1 Pa.C.S. §192(2. To construe the statute as defendant wishes would not “construe them together,” but would create a contradiction effectively pre-empting the regulations. On the other hand, this court believes that its interpretation of the statute would allow full import to be given to both the statute and the regulations and in so doing reconciles any conflicts.

As to the other contentions of Standard Oil dealing with the question of strict liability, the preamble and the similarity between the instant statute and sovereign immunity statutes, the court will deal with them ad seriatim.

Standard Oil contends that the statute must be construed as they propose because to interpret it otherwise would be an imposition of negligence per se which is equivalent to strict liability. Defendant argues that this would destroy the clear intent of the statute which requires a plaintiff show “by a preponderance of the evidence that the failure was caused by the negligence of the inspection station or mechanic.” 75 Pa.C.S. §4702.1. This court, however, cannot accept this narrow interpretation of the statute, as strict liability and negligence per se differ in several ways.

Although the statute may impose negligence per se if the evidential requirements are met, causation remains to be proven. Further, the defenses of contributory or comparative negligence and possibly assumption of the risk remain available to the defendant Standard Oil. These defenses would be unavailable in a strict liability scenario. See Staymates v. ITT Holub Industries, 364 Pa. Super. 37, 527 A.2d 140 (1987); see also, Restatement (Second) of Torts §402(a), comment n and section 483 providing that a plaintiff’s contributory negligence bars his recovery for negligence of a defendant consisting of a violation of a statute, ordinance or administrative regulation. To impose strict liability, all that is necessary is proof of the “defective condition.” Considering all this, it becomes apparent that the interpretation of this statute by the court does not amount to the imposition of strict liability.

Defendant can take little solace in the preamble to 75 Pa.C.S. §4702.1. This preamble is not definitive as it is subject to interpretations that support the positions of both plaintiff and defendant. Further, under the rules of statutory construction “a preamble may be considered in the construction of a statute.” Its consideration is not mandatory. See 1 Pa.C.S. §1924.

Finally, Standard Oil errs when it states that the statute is similar to those affording governmental units sovereign immunity. The exceptions to governmental immunity have traditionally been strictly construed and held to apply only when the act or omission of the government unit was the direct cause of the injuiy. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). Primarily the court notes that each statute must be read individually. The statute in question is not a governmental immunity statute, but serves an entirely different purpose dealing with an entirely different subject matter. Based on this, it would be error for the court to use the same rules of construction applicable to sovereign immunity statutes.

Based on the foregoing reasons, defendant Standard Oil’s motion for summary judgment based on 75 Pa.C.S. §4702.1 is hereby granted in part against plaintiff Hill on the issue of the seat-lock mechanism. Defendant’s motion for summary judgment on the issue of the missing seat belts is hereby denied.

ORDER

And now, August 15, 1990, it is hereby ordered, adjudged and decreed that defendant Standard Oil’s motion for summary judgment is granted in part solely on the limited issue of the failure of the seat-lock mechanism against plaintiffs Gary Lee and Barbara, Hill. However, defendant Standard Oil’s motion for summary judgment on the issue of the absence of seat belts is hereby denied for the reasons set forth in the foregoing opinion.


text:
    Haupt v. Haddox

      Michael Visnosky, for plaintiffs.

      Robert Ward, for defendants.

      Judith Thomas, for additional defendant.
    August 7, 1990
   LEVIN, J.,

Before this court is the motion of defendant, Carriage Hill of Erie Co., requesting that this court grant summary judgment in their favor based on the Recreational Use of Land and Water Act, 68 P.S. §477-1, et seq.

The case arises from a bicycle accident which occurred on October 9, 1985. On that date, plaintiff Michael Haupt was the guest of the Shaunessy family, tenants in the Carriage Hill apartment complex. That evening, plaintiff was shown around the Carriage Hill complex by the Shaunessys. Plaintiff rode a bike while the Shaunessys walked. While riding the bike on Georgetown Drive, the Carriage Hill roadway, the front wheel of plaintiff’s bike lodged in a storm sewer grate, causing him to be thrown from the bicycle. Plaintiff alleges injuries as a result of this fall.

Defendants have moved for summary judgment on the basis that the Recreational Use of Land and Water Act, 68 P.S. §477-1 et seq., gives them immunity from liability for injuries incurred in this roadway. The basis for their argument is that people other than tenants are allowed to use this area for biking and play, and thus the area is recreational and protected by this statute. The immunity section of the act provides as follows:

“§477-3. Duty to keep premises safe; warning

“Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe to entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

“§477-4. Assurance of safe purposes; duty of care; responsibility, liability

“Except as specifically recognized by or provided in section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

“(1) Extend any assurance that the premises are safe for any purpose;

“(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;

“(3) Assume responsibility for or incur liability for any injury to the persons or property caused by an act or omission Of such person.” 68 P.S. §§477-3, 477-4.

Since this case involves a motion for summary judgment against plaintiff, the court must resolve all factual disputes in favor of the plaintiff. Trenco Inc. v. Commonwealth of Pennsylvania, Department of Transportation, 126 Pa. Commw. 501, 560 A.2d 285 (1989). Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It is not the court’s function to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. Thorsen v. Iron & Glass Bank, 328 Pa. Super. 135, 475 A.2d 928 (1984).

Inasmuch as the controlling issue on the motion for summary judgment is not one of fact but one of law, the issue is ripe for summary judgment determination. The legal issue, simply put, is whether the immunity provided under the Recreational Use of Land and Water Act is applicable to the situation and exempts the defendant from liability for accidents occurring on the property.

The essence of the statute in question is that it protects landowners from liability for injuries incurred on their property by. uninvited licensees using the land for recreational purposes. The act has been construed to apply to municipal parks, Kniaz v. Benton Borough, 112 Pa. Commw. 416, 535 A.2d 308 (1988); Jones v. Cheltenham Township, 48 D.&C. 3d 425 (1987); to owners of a stream crossing real estate, Smith v. Mosier, 27 D.&C. 3d 660 (1984); to owners of a lake created by damming, Livingston v. Pennsylvania Power and Light Company, 609 F.Supp. 643 (E.D. Pa. 1985); to a baseball field owned by a utility company, Lowman v. Indiana Area School District, 96 Pa. Commw. 389, 507 A.2d 1270 (1986); Heintzelman v. Brushtown Athletic Association, 2 D.&C. 4th 222 (1989); to a state forest, Commonwealth Department of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986); to a bicycle accident on a playground, DiMino v. Borough of Pottstown, 129 Pa. Commw. 154, 564 A.2d 1329 (1989); to an inner-city playground, Walsh v. City of Philadelphia, 126 Pa. Commw. 127, 558 A.2d 192 (1989), allocator granted, 565 A.2d 1169; and to snowmobiling on a private tract of land, Gallo v. Yamaha Motor Corporation, USA, 363 Pa. Super. 308, 526 A.2d 359 (1987).

It is Carriage Hills’ argument that this paved area in which plaintiff rode the bike is the type of recreational area that the statute is intended to protect. Defendant relies on the fact that the area is frequented by skaters and bikers from the general public using the premises for play without charge. In construing this statute and its applicability to the case at bar, the court must look at the status of the person using the area, before looking at the type of recreational facility. The cases interpreting the statute which are relied upon by the defendant involve members of the general public entering the various properties uninvited and without charge. These persons would be licensees, to whom an owner of land traditionally owed no duty except to refrain from willful or wanton failure to guard or warn against dangerous conditions. Mathews v. Spiegel, 386 Pa. 203, 122 A.2d 696 (1956). Thus the application of the statute to those circumstances is basically a codification of the common-law duty owned by a landowner to a licensee. The facts of this case, however, warrant a different result.

By contrast, plaintiff herein was more properly categorized as an invitee. Invitees under common law were originally defined as those persons from whom the landowner expected to derive an economic benefit. Wiegand v. Mars National Bank, 308 Pa. Super. 218, 454 A.2d 99 (1982). At common law a landowner was under a duty to exercise reasonable care to make premises safe for invitees. Plaintiff was an invitee because at the time of the accident he was the guest of one of defendant’s tenants. The general rule is that the duties of the landlord to guests of a tenant are the same as those he owes to the tenant himself. Portee v. Kronzek, 194 Pa. Super. 193, 166 A.2d 328 (1960). A landlord’s duty to a tenant is to exercise reasonable care to make the premises safe. “A landlord may be held liable for bodily harm suffered by his or her tenants caused by dangerous conditions on portions of property retained in the landlord’s control, if the landlord, by exercising reasonable care, could have discerned the condition and made the condition safe.” Speer v. Berry, 349 Pa. Super. 365, 503 A.2d 409 (1985); Pierce v. Philadelphia Housing Authority, 337 Pa. Super. 254, 486 A.2d 1004 (1985). The landlord owes such a duty because a tenant is an invitee, a person from whom the landlord receives a fee for the use of the premises. Plaintiff, as the guest of a tenant, is entitled to the same status and protection. Portee, supra.

Neither the statute, nor any of the cases decided under it, deal with a factual situation involving a landlord/tenant or invitee relationship. This case does not involve a vacant lot or baseball field as cited in the cases relied on by defendants. The land in question is a private roadway used by tenants as an integral part of the leased premises. It was built for tenants’ use, and is maintained by the overhead paid as part of the rent. Thus the defendant has a duty to maintain such in a safe condition and is potentially liable for a failure to do so. Speer, supra; Pierce, supra. If the statute were applied to landlord/tenant relationships, it would essentially repeal Pennsylvania’s landlord/tenant laws enunciated by both the courts and the legislature. Such a construction of the statute would close the door to landlord liability for any accident occurring during play activity in an area open to the public. For example, no landlord could be liable for defective playground equipment if it was used by the public as well as tenants since the use was recreational. The statute in question simply does not pre-empt landlord/tenant law.

The court also reaches the same result when applying the rules of statutory construction. Thus, in construing the statute in question, the court must keep several principles of construction in mind. First, in ascertaining the intention of the General Assembly in the enactment of a statute, the presumption to be used is that the Assembly does not intend a result that is absurd or unreasonable. 1 Pa.C.S. §1922(1). Secondly, when the words of a statute are not explicit, the intent of the General Assembly may also be ascertained by considering, among other things, the object to be attained thereby. 1 Pa.C.S. §1921(c)(4).

There is no question but that defendant’s interpretation to the statute creates an absurd result barred under 1 Pa.C.S. §1922(1). If the court were to carry defendant’s argument to its logical extreme, the statute would prevent liability of a store that advertises a playground for children to use while parents shop. For example, many McDonalds restaurants now offer “playgrounds” for children. Under defendant’s analysis of the statute, McDonalds could not be liable for damages caused by defective swings or slides, or even broken glass in the play area, for the sole reason that it is a recreational area utilized by the public. Also, under. defendants’s analysis, an apartment owner could open a swimming pool to not only their tenants, but the general public, and by doing so could escape all types of liability, including something as flagrant as putting a diving board at an area of the pool with only a three-foot depth.

Also, under defendant’s analysis, the applicability of the statute turns on the recreational nature of the use, not the status of the person using the land. The court believes, however, that such an analysis contradicts the object of the statute intended by the General Assembly. See 1 Pa.C.S. §1921(c)(4). Application of defendant’s analysis would result in functional pre-emption of not only landlord/tenant laws but other laws protecting the public from harm. For example, public health laws require clean and sanitary water conditions at any bathing area. See 35 P.S. §675. Under defendant’s analysis, the statute in question would pre-empt such a law and permit unsafe water conditions as long as the pool is open to the general public for recreational purposes and no gate fee is charged.

From the language of the statute itself and the cases construing it, this court believes the act was not meant to apply to situations such as the one at bar. This opinion does not address, nor is it intended to apply to a situation where a stranger, unconnected to the owners or tenants of the property, enters property similar to that of defendant and is injured. This opinion should be viewed only as construing the statute’s application to business invitees or guests of tenants.

For the foregoing reasons, this court finds that the immunity provisions of the Recreational Use of Land and Water Act, 68 Pa.C.S. §477-1 et seq., are not applicable to the case at bar. Defendant’s motion for summary judgment based on the same is hereby denied.

ORDER

And now, August 7, 1990, it is hereby ordered, adjudged and decreed that defendant’s motion for summary judgment against plaintiffs is denied.


author: TUMOLO, Chairman,

text:
    In re Anonymous No. 71 D.B. 88
    Disciplinary Board Docket no. 71 D.B. 88.
    August 15, 1990
   Opinion of the Disciplinary Board of the Supreme Court of Pennsylvania:

TUMOLO, Chairman,

Respondent, born in 1953, was admitted to the practice of law in the Commonwealth of Pennsylvania in 1978. Respondent’s office is located at [ ].

By Form D.B. 7 letter dated February 13, 1987, respondent was advised of the complaint filed against him. By letter of response, respondent admitted a violation of D.R. 6-102(A). On March 9, 1988 respondent was administered an informal admonition for violation of D.R. 6-102(A) and D.R. 9-102(B)(4). Respondent made a request to vacate the informal admonition and institute formal charges.

On July 6, 1988, Office of Disciplinary Counsel filed a two-charge petition for discipline against respondent. In charge one, respondent was accused of attempting to exonerate himself from or limit his liability to his client for his personal malpractice. In charge two, it was alleged that respondent failed to promptly return to his client property which his client was entitled to receive. On August 3, 1988, respondent filed an answer to the petition for discipline and request to be heard in mitigation. On August 4, 1988, the matter was referred to Hearing Committee [ ].

By order dated November 14, 1988, the Disciplinary Board granted Office of Disciplinary Counsel’s request for a continuance of the hearing. On November 28, 1988, Office of Disciplinary Counsel filed a petition for leave to withdraw charge II of the petition for discipline and/or motion to dismiss charge II which was granted by the Disciplinary Board on December 9, 1988. Due to the dismissal of charge II, respondent, through counsel, requested the matter be resubmitted to a reviewing hearing committee member for an independent determination concerning the remaining charge of violation of D.R. 6-102(A). Respondent was scheduled to appear for an informal admonition on November 30, 1989. However, by letter dated November 21, 1989, respondent reiterated his request for a formal hearing.

On January 1, 1980, the matter was reassigned to Hearing Committee [ ] consisting of [ ]. A hearing was held on February 28, 1990. The hearing committee filed its report on June 5, 1990, in which the committee recommended the matter be dismissed. Neither petitioner nor respondent filed exceptions to the hearing committee report. Thereafter, the matter was adjudicated by the Disciplinary Board at its regularly scheduled meeting on June 22, 1990.

FINDINGS OF FACT

In 1982, respondent was retained to represent [A] and her sons in various legal matters. Respondent competently represented [A] until she discharged respondent as counsel in 1986. At the time respondent was discharged, [A] did not have a telephone. Respondent telephoned [B] in an effort to advise [A] about certain legal matters. During this telephone call to [B], respondent was advised that [A] informed them that respondent was no longer her attorney and they were not permitted to release any information.

By letter dated October 23, 1986, sent to [A], respondent sought to settle all matters concerning the status of their attorney-client relationship and to obtain a receipt for the release of [A’s] documents. In the letter, respondent requested [A] to turn over to him a check in the amount of $2,000 which respondent had in his possession. Respondent advised [A] that he would accept the $2,000 check in full payment of the outstanding amount of $10,944 [A] owed to respondent for legal fees. Respondent also informed [A] that before he could turn over all the documents pertaining to her numerous cases, [A] must sign the enclosed release form. The release, which respondent had copied from a form used by a law firm in [ ] County, included the following statement: “I ([A]) am satisfied with the work that [respondent], Esq., has performed on all cases in my file, and do hereby release him from any and all liability which may exist from any work which he had done on my behalf.” [A] did not execute the release form and did not endorse to respondent the $2,000 check.

On October 23, 1986, at about 9:15 p.m., respondent went to [A’s] home with all of her files, intending to return to [A] all. of her documents. It was not unusual for respondent to meet with [A] at her home in the evening. Respondent often accommodated [A] by meeting with her at such times on prior occasions. On the evening of October 23, 1986, [A] refused to admit respondent to her home. [A] told respondent to leave, threatened to call the police, and told respondent to come back during “normal business hours.” Respondent appeared at [A’s] home on October 24, 1986 at about 9:30 a.m. However, [A] again refused to accept her files which respondent attempted to return to her. Respondent then left a copy of the release form in [A’s] screen door, left the premises, and never returned to [A’s] home.

Respondent made numerous attempts to return to [A] both her file and the $2,000 check. Respondent in no way held up the $2,000 check as an inducement to coerce [A] to sign the release. Respondent’s initial attempts at returning the file and check to [A] were unsuccessful because [A] refused to accept any mail from respondent. In fact, [A] accused respondent of harassing her through the mail. Eventually, respondent returned to [A] her file through an intermediary. Respondent also had his attorney turn over the $2,000 check to Disciplinary Counsel who returned it to [A]. Respondent never received any payment for legal fees [A] owed in the amount of .$10,944.

Although respondent believed he handled all of [A’s] matters competently, respondent prepared a release form to be executed by his client. [A] did not discuss, threaten or indicate she had any intention of filing a legal malpractice claim against respondent prior to the time respondent prepared the release. Respondent prepared the release form in fear that his client would attempt to harm him in some way. [A], had a reputation for filing unfounded claims against- lawyers, judges and district magistrates. Respondent simply assumed he was next. Respondent’s fears proved to be justified. In addition to the charges brought against respondent in the petition for discipline, [A] made the following accusations: Respondent had forged her son’s name on a $30,000 settlement check, unilaterally increased the contingent fee from 33 percent to 50 percent and improperly retained the difference, failed to remit the proceeds of a $2,000 settlement, and defrauded her son of $500 in regard to a separate matter. Although Office of Disciplinary Counsel did not charge respondent with misconduct in regard to the above complaints, respondent was still forced to respond to these allegations, causing him to expend considerable amounts of time and money. [A] also filed two pro se malpractice actions against respondent in [ ] County. No other malpractice claims have ever been filed against respondent and respondent has no record of disciplinary action prior or subsequent to [A’s] complaints. ,

CONCLUSIONS OF LAW

Respondent’s conduct has constituted a violation of the following Disciplinary Rule of the Code of Professional Responsibility:, D.R, 6-102(A), which prohibits an attorney from attempting to exonerate himself from or limit his liability to his client for his personal malpractice.

DISCUSSION

The matter before the board presents no factual dispute. Respondent admits violating D.R. 6-102(A), which prohibits an attorney from attempting to exonerate himself from or limit his liability to his client for his personal malpractice. In reviewing this matter de novo the sole issue before the board is the appropriate measure of discipline to be imposed on respondent, if any. The hearing committee has recommended dismissal of the matter to which neither Disciplinary Counsel nor respondent have taken exception.

The purpose of this disciplinary proceeding is to determine whether respondent’s conduct make him unfit to practice law from the standpoint of protecting the public and the courts. See Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 579, 506 A.2d 872, 875 (1986); Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1982).

Despite the dearth of cases, various jurisdictions have imposed discipline for conduct which involved attempting to limit liability for personal malpractice in violation of D.R. 6-102(A). Some reported disciplinary cases involve attorneys who attempt to obtain releases from their clients under false pretenses after the malpractice has occurred. In one case, the attorney typed a restrictive endorsement on the back of the check issued to his client which would have limited his malpractice liability to the amount of the repaid fee. The attorney was suspended as a result of his conduct which included commingling of funds. People v. Good, 195 Colo. 177, 576 P.2d 1020 (1978). In another matter, the attorney failed to timely file an action on behalf of his clients. The attorney then falsely informed his clients that he was negotiating a settlement with the defendant’s insurance company when, in fact, the attorney obtained the settlement from his own malpractice insurer. A suspension was imposed. In re Craven, 271 Ind. 67, 390 N.E.2d 163 (1979).

In other cases, discipline was imposed on attorneys who attempted to obtain releases from their clients through coercive means. In one such case, the attorney failed to timely perfect an appeal from the order of the trial judge denying motion for judgment notwithstanding the verdict. Therefore, the attorney withheld his client’s file from subsequent counsel demanding the client to first sign the release. The sanction of public reprimand was imposed. In re Clarke, 300 S.E.2d 595 (S.C. 1983).

In the matter of In re Preston, 111 Ariz. 102, 523 P.2d 1303 (1974), the attorney was approached by his client who expressed his dissatisfaction with the attorney’s representation and requested the return of his file to take to another lawyer. The attorney refused to return the file unless the client signed a release. The sanction of public censure was imposed.

There are some cases in which an attorney was disciplined for attempting to settle an existing malpractice claim despite the fact the attorney did not engage in deception or coercion. In the case Florida Bar v. Nemec, 390 So.2d 1190 (Fla. 1980), the attorney overlooked the statute of limitations, explained his neglect to his clients, and offered the clients $10,000 in settlement of the matter. The clients agreed to the settlement conditioned on the fact the attorney pay all medical bills. The attorney then attempted to settle the medical bills for less than the amount owed. A public reprimand was imposed due to the attorney’s failure to advise his clients to seek the advice of another attorney. In the matter In re Tallon, 447 N.Y.S. 2d 51, 86 A.D. 2d 897 (1982), the attorney allowed the statute of limitations to expire on the claims of his. client. Thereafter, the attorney had his client execute a general release of all claims of malpractice without first advising the client of the existence and nature of such claims and of the client’s right to consult with another attorney. Due to the fact the attorney had a substantial prior disciplinary history, a six-month suspension was imposed. The board believes respondent’s conduct in the matter can be distinguished from the above-cited cases in which discipline was imposed.

As indicated above, when an attorney is forced or threatened with a charge of malpractW, any action taken by the attorney on his own behalf to limit liability will pose ethical problems due to the potentially conflicting interest of the attorney and the complaining client. Disciplinary Rule 6-102(A) was implemented to preserve the attorney-client relationship and protect the client’s interest in any type of action against the attorney for malpractice. Respondent’s conduct did not cause or threaten the harm sought to be prevented by the statute. As dictated by the Pennsylvania Supreme Court, the board has adjudicated this matter on its own unique facts and circumstances. See Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). In this matter, respondent was informed by a third party that his client, [A], discharged him as her attorney. Knowing the peculiarities of his client, respondent prepared a release form which he copied from a form used by a law firm in [ ] County. At the time respondent prepared the release form to be executed by his client, there was no threat or any indication [A] intended to file a legal malpractice claim against respondent. In fact, [A] did not even express any dissatisfaction with respondent’s representation. Although respondent believed he handled all of [A’s] matters competently, respondent prepared the release out of fear that his client would attempt to harm him. [A] had a reputation for filing unfounded claims against lawyers, judges and district magistrates. Respondent’s fears proved to be justified. In her original complaint filed with the Office of Disciplinary Counsel, [A] made numerous accusations against respondent including forgery and conversion of funds. These allegations were proven to be unsubstantiated by the evidence and Office of Disciplinary Counsel chose not to charge respondent with misconduct in regard to these matters. [A] also filed two pro se malpractice actions against respondent in [ ] County. No other malpractice claims have ever been filed against respondent and respondent has no record of disciplinary action prior or subsequent to [A’s] complaints.

In addition, respondent did not engage in any type of deception or coercion. At the time respondent prepared the release, respondent had in his possession a $2,000 check payable to [A]. Initially, respondent advised [A] that he would accept the $2,000 check in full payment of the outstanding amount of $10,944 [A] owed to respondent for legal fees. After [A] declined to execute the release form, respondent did not withhold the $2,000 check or [A’s] files as an inducement to coerce [A] to sign the release. In fact, respondent made a great effort to return to [A] the $2,000 check and the files, but she.refused to speak to or accept any mail from respondent. Eventuálly respondent returned to [A] her file and the check through an intermediary. Respondent never received any payment for legal fees [A] owed in the amount of $10,944. [A] did not suffer any harm as a result of respondent’s conduct.

In conclusion, the board finds that the conduct of respondent in this case did not in any way defeat the primary purpose of the disciplinary system, namely, protecting the public from an unfit attorney.

DETERMINATION

Based upon the finding that respondent’s violation of D.R. 6-102(A) is de minimis the Disciplinary Board has determined that the complaint against the respondent should be and hereby is dismissed.

Ms. Heh did not participate in the adjudication.

The board’s adjudication and this opinion resulted from the efforts of the Honorable D. Michael Stine during his tenure with the board.

ORDER

And now, August 15, 1990, upon consideration of the report and recommendation of Hearing Committee [ ] filed June 5, 1990; it is hereby ordered that the charges against [respondent] docketed at no. 71 D.B. 88 be dismissed.