author: DiFRANCESCO, J.,

text:
    Tabib v. Highmark Inc.

      James R. Walsh, for plaintiff.

      Stephen Ban, for defendant.
    November 18, 2005
   DiFRANCESCO, J.,

This matter is before the court as a result of a motion for judgment on the pleadings filed by the plaintiff. The dispute in question centers on whether the plaintiff must repay to the defendant insurance company an alleged overpayment for services to the defendant’s insureds. Oral argument was taken on October 21, 2005, and the court has subsequently taken this matter under advisement.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, Ralph Tabib M.D., was a physician and participating provider in the Highmark Blue Shield Premier Blue Shield Plan, a health insurance plan administered by Highmark Inc. (the defendant). The plaintiff, a specialist in the practice of rheumatology provided said heath care services to defendant’s insureds. For his services, the plaintiff submitted claims to the defendant for payment in accord with the defendant’s applicable payment schedule. The defendant in turn made payment upon said claims to the plaintiff in accord with the claims submitted.

On or about October 3, 2003, the defendant advised the plaintiff that it was conducting a post-payment review of the plaintiff’s medical practice. The plaintiff responded to the October 3,2005 request by providing the defendant in a timely manner the requested medical and chart information regarding the patients for whom he had submitted claims for services rendered.

On April 27,2004, the defendant notified the plaintiff via a letter that it had completed its review of the plaintiff’s records and had determined in its opinion that the files lacked the required documentation to substantiate the procedure codes utilized for certain patients, and as such, that it had adjusted the procedure codes for such treatment, which reduced the applicable payment rate, and that after consulting an independent consultant, that it contended it had overpaid the plaintiff for services rendered in the amount of $28,168.75. As a result, the defendant was demanding from the plaintiff repayment.

The plaintiff disputed the defendant’s contentions, and requested a hearing before the defendant’s review committee. Such a request was proper under the Highmark Blue Shield Regulations for Participating Providers. The hearing was held on August 3, 2004. Pursuant to the defendant’s regulations for participating providers, the defendant was to provide the plaintiff within 30 days after the hearing date a written notification of the committee’s decision.

By letter dated September 3,2004 (which was 31 days after the hearing), which was post-marked September 7, 2004 (which was 35 days after the hearing), and was received by the plaintiff on September 9, 2004, the defendant advised the plaintiff that its Medical Review Committee had upheld the determination regarding the changes in the codes for the procedures rendered, and therefore, determined that an oveipayment of $28,168.75 had occurred. In response, the plaintiff by counsel notified the defendant that it was precluded from seeking repayment from him, since it failed to adhere to its own regulations regarding the notification requirements of its Medical Review Committee.

On November 4, 2004, the defendant wrote the plaintiffs counsel, and informed him that “there is no legal reason to overturn the Medical Review Committee’s decision based on an immaterial deviation from an administrative guideline.” The defendant further wrote that the plaintiff was “not harmed in any manner by the clerical oversight.” The defendant subsequently withheld payments from the plaintiff on six different dates from November through December 2004, which totaled the amount of repayment, which the defendant was seeking.

As a result of the defendant’s actions, the plaintiff filed suit against the defendant on January 13, 2005 in the Cambria County Court of Common Pleas seeking repayment of the $28,168.75 plus interest, which the defendant collected from the plaintiff. In his complaint, the plaintiff contended that since the defendant failed to adhere to its own regulations in not providing written notice to him within 30 days of the hearing of the committee’s decision, the defendant was then precluded from collecting the funds it was allegedly owed.

The defendant has vigorously contested the plaintiff’s complaint, contending that its Medical Review Committee’s decisions can only be judicially reviewed if fraud or other misconduct or substantial due process violations are alleged. The defendant asserts that because the plaintiff makes no such allegations, then the complaint fails to state a claim for which relief can be granted. Further, the defendant contends that the plaintiff has not alleged any prejudice as a result of the untimely mailing, and therefore, he is not entitled to any monetary damages.

The plaintiff’s motion for judgment on the pleadings now follows.

DISCUSSION

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Newberry Township v. Stambaugh, 848 A.2d 173, 174-75 n.1 (Pa. Commw. 2004), petition for allowance of appeal denied, 580 Pa. 708, 860 A.2d 491 (2004). (citation omitted)

Medical Review Committees such as that of the defendant, are statutorily governed by the Pennsylvania Professional Health Services Plan Corporations Act, 40 Pa.C.S. §6301 etseq.

Regarding the rights of doctors in a health service plan, the Act provides:

“40 Pa.C.S. §6324(.a)-(c): Rights of Health Service Doctors

“(a) Admission to plan. — Every health service doctor practicing within the area covered by any professional health service corporation shall have the right, on complying with such regulations as the corporation may make with the approval of the Department of Health, to register with such corporation for such general or special professional health services as he may be licensed to practice, within that area, but the corporation may, with the approval of the Department of Health, refuse to place the name of any health service doctor on its register. Any professional health service corporation may, with the approval of the Department of Health, remove from its register the name of any health service doctor after due notice and opportunity for hearing for cause satisfactory to the corporation.

“(h) Freedom from control. — Subject to the provisions of section 6322(e) of this title (relating to liability of corporation limited), a professional health service corporation shall impose no restrictions on the health service doctors who administer to its subscribers, as to methods of diagnosis or treatment. The relation between a subscriber, or any of his dependents, and the health service doctor shall be identical with the relation that ordinarily exists in the community between a health service doctor and his patient. Subject to the provisions of subsection (a) of this section, no person shall be permitted to interfere with the choice or selection by a patient of his health service doctor after that choice or selection has been made by an adult of sound mind.

“(c) Disputes. — All matters, disputes, or controversies relating to the professional health services rendered by the health service doctors, or any questions involving professional ethics, shall be considered and determined only by health service doctors as selected in a manner prescribed in the bylaws of the professional health service corporation.”

In interpreting the rights of physicians in regards to settling payment disputes per the administrative remedies of the Act, the Supreme Court has been explicit in holding that “the requirement of due process of law extends to administrative as well as judicial proceedings . . . Commonwealth v. Cronin, 336 Pa. 469, 473, 9 A.2d 408, 410 (1939). The defining decision by the Supreme Court setting forth the due process rights of physicians per the Act is former Chief Justice Flaherty’s decision in Rudolph v. Pennsylvania Blue Shield, 553 Pa. 9, 717 A.2d 508 (1998).

In Rudolph, a participating Blue Shield physician rendered services to patients and was denied payment. Dr. Joseph P. Rudolph had submitted a claim to a medical review committee, which denied the claim. Subsequently, Dr. Rudolph filed a contract action in the Court of Common Pleas of Allegheny County, and the matter was referred to a panel of physician arbitrators. The panel found in Dr. Rudolph’s favor, and the common pleas court confirmed the award. On Blue Shield’s appeal, the Pennsylvania Superior Court vacated the common pleas court’s judgment. See Rudolph v. Pennsylvania Blue Shield, 451 Pa. Super. 300, 679 A.2d 805 (1996). The Supreme Court reversed the Superior Court’s order and reinstated the common pleas court’s judgment. Rudolph v. Pennsylvania Blue Shield, 553 Pa. 9, 717 A.2d 508 (1998). The Supreme Court determined that a medical review committee, formed pursuant to the Act, was a “creature of the state” and must adhere to due process standards. Id. at 14, 717 A.2d at 510. Regarding the due process rights of a physician, the court further noted:

“The majority of the Superior Court is correct that due process requires that a person aggrieved by the award of a medical review committee is entitled to judicial review for notice and the opportunity to be heard in an appropriate forum and for fraud or other misconduct. But it is axiomatic that due process also requires that the forum be fair and impartial. Without that, the guarantee of notice, a hearing, and the right to be heard would be no more than an illusion.” Id.

In understanding the full scope of due process protection as it pertains to the Act, this court takes note of the Commonwealth Court’s decision Greenstein v. Department of Health, 98 Pa. Commw. 445, 512 A.2d 739 (1986). In this precursor to Rudolph, the court noted:

“One is entitled to a due process hearing where, by state action, he suffers the loss of a protected property interest. Arnett v. Kennedy, 416 U.S. 134, 164, [94 S.Ct. 1633, 1649, 40 L.Ed.2d 15] (1974); Levine v. Department of Education, 79 Pa. Commw. 357, 468 A.2d 1216 (1984). ‘Property interests are not created by the Constitution, “they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ....’” Cleveland Board of Education v. Loudermill, [470 U.S. 535, 105 S.Ct. 1487, 1491,] 84 L.Ed.2d 494, 501 (1985), quoting Board of Regents v. Roth, 408 U.S. 564, 577, [92 S.Ct. 2701, 2709, 33 L.Ed.2d 548] (1972).” Greenstein v. Department of Health, 98 Pa. Commw. 445, 452, 512 A.2d 739, 742-43 (1986).

In other words, the Commonwealth Court in Greenstein acknowledged that due process rights of physicians under the Act extended to those situations where the physician suffers the loss of a protected property interest.

Accordingly, in the present matter, the plaintiff is afforded full due process rights in regards to the defendant’s administrative process as to the alleged overpayment issue. Furthermore, both the plaintiff and the defendant are guided by the Highmark Blue Shield Review Committee Guidelines. The guidelines provide for both notice and a hearing for an aggrieved physician regarding payments. Furthermore, paragraph 10 of the guidelines provides that following a review committee meeting, that the physician will “be advised in writing within 30 calendar days of all determinations made by the committee.” There is no dispute between the parties that the plaintiff received notice of the committee’s decision more than 30 days beyond the original date. In fact, the letter received by the plaintiff was dated 31 days after the hearing, and post-marked 35 days after the hearing, and finally, not received until 37 days after the hearing. Based on this time line, it is obvious that the defendant has willfully chosen to deviate from its own regulations regarding payment dispute with its participating physicians.

The issue then becomes, does this willful deviation by the defendant in disregarding its regulations, constitute a violation of the plaintiff’s due process rights? The court finds that such a deviation does constitute a violation of the plaintiff’s due process rights. While the defendant vigorously asserts that the plaintiff was afforded notice and a hearing, the defendant has completely overlooked the most important element of due process protection, which it is compromising by disregarding its regulations, that being the loss of the plaintiff’s protected property interest, which is of course, the $28,168.75. The defendant is bound by its regulations under the Act, and the defendant’s regulations clearly state that written notice to an aggrieved physician must be issued within 30 calendar days. In the present matter, not only did the plaintiff not receive notice within 30 calendar days, the notice was actually dated beyond the 30-day limit in which the notice was to be issued. By demanding repayment outside the notice requirements of its regulations, the defendant is blatantly harming the plaintiff’s property interest in the $28,168.75, which was created upon the defendant’s failure to provide proper notice.

In making this conclusion, the court is guided by the Commonwealth Court’s decision in Greenstein v. Department of Health, 98 Pa. Commw. 445, 512 A.2d 739 (1986), where as previously stated in this decision, the court found that a person is entitled to due process protection where by state action, he or she suffers the loss of a protected property interest. In Greenstein, the court found that where a physician electively chose to not attend a hearing challenging a professional health service corporation’s decision to remove him from its register for cause, the physician was still afforded due process, because he was given notice, and the opportunity to be at a hearing, though he waived his protected property interest by failing to attend the hearing. See Greenstein v. Department of Health, 98 Pa. Commw. 445, 512 A.2d 739 (1986).

In reviewing Greenstein, this court notes that the physician had a vested property right, that being his inclusion in the professional health service corporation’s register. As such, the physician was afforded full due process protection per the corporation’s regulations. Applying Greenstein to the present matter, this court would note that if the plaintiff chose to disregard the hearing before the defendant’s committee, he would have waived any opportunity to challenge the defendant’s decision to order a repayment of its funds. Furthermore, this court has no doubt that if the plaintiff willfully disregarded the defendant’s regulations on disputes, that the defendant would contend that the plaintiff had waived his rights and interests to the payment. However, the plaintiff did not disregard the defendant’s regulations, and fully complied with their requirements. Unfortunately, it is the defendant who has disregarded its own regulations and is now attempting to circumvent its own notice requirements by failing to repay the physician the funds owed.

The court notes that due process rights are not a creature of flexibility that can be molded to accommodate the whims of a state actor as so attempted by the defendant. Due process rights are firm: notice must be given, a hearing conducted, protected property interests must be preserved, and regulations must be followed. In the present matter, the defendant has chosen to mold its regulations to accommodate its own whims or “clerical oversights”; such actions are not acceptable, and are a violation of the plaintiff’s due process rights. As such, the plaintiff’s motion for judgment on the pleadings is granted.

Accordingly, the following order is granted.

ORDER

And now, November 18, 2005, it is hereby ordered and decreed that the court finds that with no genuine issue of facts existing, the plaintiff is hereby entitled to judgment as a matter of law. As such, the plaintiff’s motion for judgment on the pleadings is granted, and the defendant is hereby ordered to pay the plaintiff the amount of $28,168.75, together with interest at the statutory rate from the date of each setoff.

      . See also, the Commonwealth Court’s decision in Carlini v. Highmark, 756 A.2d 1182 (Pa. Commw. 2000) which reasserted the holding in Rudolph that physicians are entitled to due process rights under the Act, because a professional health services plan corporation was a “state actor.”


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    O’Kane v. Bacon

      Edward F. Silva, for plaintiff.

      Frank A. Baker, for defendant.
    November 18, 2005
   BLACK, J.,

Before the court is the motion of the plaintiff, Laura M. O’Kane, for post-trial relief following a jury verdict in favor of the defendant, David J. Bacon. In her motion the plaintiff seeks a new trial of this motor vehicle/pedestrian accident case. She contends that the court erred (a) in refusing her motion for mistrial after defense counsel asked a witness whether the defendant had been issued any traffic citations for the accident, a question that went unanswered after the objection of plaintiff’s counsel was sustained; and (b) in declining to instruct the jury on the assured clear distance ahead rule. For the reasons stated, we find no merit in the plaintiff’s contentions and therefore deny her motion for post-trial relief.

FACTUAL AND PROCEDURAL HISTORY

On the evening of August 23,1999, at approximately 10:20 o’clock p.m., the plaintiff, then age 16, was struck by a vehicle driven by the defendant. As a result of the accident the plaintiff sustained serious and permanent injuries. At the time of the accident, the plaintiff was attempting to cross Route 378, a four-lane highway, on foot, at a point where the highway traverses the Hill-to-Hill Bridge in Bethlehem, Pennsylvania. The plaintiff and her mother, Linda O’Kane, were leaving a music festival known as Musikfest in the City of Bethlehem. They had watched the fireworks display that closed Musikfest from a ramp leading to the bridge. The four lanes of traffic over the bridge, two southbound and two northbound, were separated from the bridge walkway by barricades 40 inches high when measured from the sidewalk and 52 inches high when measured from the surface of the highway.

When they decided to depart, the plaintiff and her mother could have taken a pedestrian walkway that went under the bridge. However, they instead climbed over a barricade and attempted to cross the four lanes of traffic. The plaintiff’s mother had said to the plaintiff just before they scaled the barricade, “Laura, no. It’s a busy street. We shouldn’t do it.” A police officer on duty on the bridge had specifically warned the plaintiff and her mother that they should not attempt to cross the highway, but this directive was ignored. The plaintiff had no recollection of what happened after she decided to cross the highway.

The two-day jury trial began on May 16, 2005. The plaintiff stipulated at trial that she had been negligent in attempting to cross the four-lane highway and that her negligence was a factual cause of the accident.

The sole non-party eyewitness who testified, Lonnie White, explained that the accident occurred almost directly in front of him. He was standing on the bridge walkway when he observed the plaintiff and her mother climb over the barricade and proceed onto the highway. According to him, they “walked fast” or ran onto the highway across the two northbound lanes of travel. As they approached the double-yellow centerline, the plaintiff’s mother stopped and reached out with her hand to slow down the plaintiff. However, the plaintiff continued across the centerline into the left-hand southbound lane. At this point the plaintiff was struck by a van operated by the defendant in a southerly direction in the left-hand southbound lane. Mr. White reported to the responding police officer that the plaintiff “ran directly into the path of [defendant’s vehicle] traveling south on the bridge in the left lane.” He reaffirmed this recollection in his trial deposition. Mr. White explained that the plaintiff had not stopped, but instead went directly into defendant’s lane of travel. “It was continuous,” Mr. White explained; the plaintiff “basically kept going” into defendant’s lane of travel. The plaintiff was struck almost immediately after entering the highway and crossing the centerline. She was only on the highway itself for “a couple of seconds” before being struck.

The Bethlehem Police Department investigated the accident. Sgt. Robert Meixell, the lead investigator, was called by the plaintiff as a trial witness. In response to questions from the plaintiff’s counsel, he opined that the defendant had been traveling at approximately 51 miles per hour when his van struck the plaintiff. He based his opinion on the assumption that the defendant had fully applied his brakes from the moment of impact until his vehicle came to rest. The defendant testified, however, that he had eased up on the brakes after impact because the plaintiff was on the hood of his vehicle and he did not want her to fall off.

During the defendant’s testimony, defense counsel asked him whether he had ever been cited by the police for any violations as a result of the accident. Before the question could be answered, plaintiff’s counsel objected, and the objection was sustained. The defendant never answered the question. Plaintiff’s counsel then moved for mistrial. This motion was denied.

At the close of the testimony the court charged the jury on the law of negligence including the concept of negligence per se. The court declined to charge the jury on the assured clear distance ahead rule, as requested by plaintiff’s counsel, on the ground that the evidence did not support a finding that this rule had been violated.

On May 17, 2005, the jury returned a special verdict finding that both parties were causally negligent. The jury assigned 85 percent of the total causal negligence to the plaintiff and 15 percent to the defendant. As a result, a molded verdict was entered in favor of defendant.

The plaintiff now seeks post-trial relief in the form of a new trial.

DISCUSSION

I. The Motion for Mistrial

During the trial the defendant was called as witness by plaintiff’s counsel. When defense counsel had an opportunity to question the defendant, the, following exchange took place:

“Q. [By defense counsel]: You were never cited by the police for any violations in this accident, were you?

“[By plaintiff’s counsel]: Objection, your honor.

“[By the court]: Sustained.”

The question was never answered. The entire episode consisting of question, objection and trial judge’s ruling . consumed less than a minute. Nevertheless, immediately following this exchange, plaintiff’s counsel moved for a mistrial. After argument at side-bar, the motion for mistrial was denied.

The plaintiff contends that evidence of the lack of any traffic citation is inadmissible and that defense counsel’s leading question irreversibly tainted the jury. He argues that the trial court should have granted the motion for mistrial for this reason.

Initially, we note that the plaintiff did not assign this specific exchange as error in her motion for post-trial relief. Instead the plaintiff asserted that the court had erred in refusing to grant a motion for mistrial during the questioning of Bethlehem Police Sergeant Robert Meixell regarding the issuance of traffic citations to the defendant. In point of fact, Sergeant Meixell was never asked about any traffic citations. The question referred to by plaintiff’s counsel in his brief and at oral argument was addressed to the defendant himself. Therefore, the issue has been waived. Lane Enterprises Inc. v. L.B. Foster Co., 551 Pa. 306, 710 A.2d 54 (1998); Standard Pipeline Coating Co. Inc. v. Solomon & Teslovich Inc., 344 Pa. Super. 367, 377, 496 A.2d 840, 845 (1985).

Even if the issue had been properly preserved, there are several reasons why it cannot form the basis for a new trial. The decision to grant or deny a motion for mistrial rests primarily in the sound discretion of the trial court. The reason is that the trial judge is in the best position to observe the atmosphere in which a trial is being conducted and to determine whether a statement in the heat of trial by counsel or a witness has had a prejudicial effect on the jury. Narciso v. Mauch Chunk Township, 369 Pa. 549, 552, 87 A.2d 233, 234 (1952). Absent a clear abuse of discretion, the ruling of the trial judge ought not to be disturbed. Abrams v. Philadelphia Suburban Transportation Co., 438 Pa. 115, 119, 264 A.2d 702, 704 (1970); Speer v. Barry, 349 Pa. Super. 365, 372, 503 A.2d 409, 413 (1985).

Whether a court has abused its discretion in refusing a motion for mistrial must be determined by the circumstances under which the statement was made and the precautions taken to prevent its having a prejudicial effect on the jury. Martin v. Philadelphia Suburban Transportation Co., 435 Pa. 391, 394, 257 A.2d 535, 537 (1969). The remedy of a mistrial is an extreme one, and is required “only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial.” Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (citations omitted); see also, Harman ex rel. Harman v. Borah, 562 Pa. 455,466,756 A.2d 1116, 1121 (2000); Carpinet v. Mitchell, 853 A.2d 336, 340-41 (Pa. Super. 2004).

In the instant case, the unanswered question posed by defense counsel was not so inflammatory or prejudicial as to prevent a fair trial. The question, objection and ruling altogether consumed less than a minute and were a very minor part of the case. The question itself was not so egregious as to warrant a mistrial, and the issue of possible citations was adequately handled by a curative instruction. The jury verdict, in which the jury found the defendant to have been negligent, demonstrated the validity of the trial court’s approach.

Although plaintiff’s counsel did not request a curative instruction, we stated in our closing instructions to the juiy that no evidence had been presented as to whether or not the police cited either party for a violation of the Motor Vehicle Code. We explained the reason, i.e., that such evidence was irrelevant to the issue of negligence, which was for the jury to decide. The full instruction on this point was as follows:

“Now, there has been no evidence presented in this case as to whether or not the police [who] have investígated this accident, cited either the plaintiff or the defendant for any violation of the Motor Vehicle Code and that is for a very simple reason.

“Evidence of that nature would be irrelevant because the decision as to whether a party is negligent in a civil case is for you the jury to determine, not for anyone else, so we do not consider whether or not any citations were issued. It’s totally irrelevant and there has been no evidence in this case for that very reason.”

Plaintiff’s counsel did not object to this instruction; nor did he request an earlier instruction on this point. The instruction was given as part of the final instructions in this relatively short two-day trial, rather than earlier, because this was the most effective place for the instruction to be given.

There is a presumption that a jury has followed the court’s instructions. Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1275 (Pa. Super. 2001). In this case there is more than a presumption. The jury found in answering special interrogatories that the defendant was in fact negligent and that his negligence was a factual cause of the accident. Therefore, any claim of error in the trial judge’s refusal to grant a mistrial is moot. The question whether a citation was issued to the defendant went to the question of his negligence The absence of a citation might tend to suggest that he was not negligent. However, the jury found just the opposite, i.e., that he was negligent. Thus, the plaintiff’s claim that the jury was irreversibly tainted by the question of defense counsel is demonstrably false.

Finally, although defense counsel did not pursue it, there was a strong argument for the admissibility of the no-citation evidence in the particular circumstances of this case. The reason for the general rule prohibiting reference to traffic citations is that it allows the police officer to give an opinion as to negligence, i.e., whether the defendant was operating his vehicle in accordance with the Motor Vehicle Code. The issue of negligence, as we indicated in our jury charge, is for the juiy to determine, not the police officer. Flowever, in this case plaintiff’s counsel elicited opinion evidence from Sergeant Meixell that, based upon his investigation of the accident scene, the defendant had been operating his motor vehicle at a speed of 51 miles per hour where the maximum lawful speed was 30 miles per hour. In this context, where the police officer was asked by plaintiff’s counsel to offer an opinion that the defendant had been operating his vehicle at an unlawful speed, it was not so unreasonable for defense counsel to challenge the officer’s opinion by pointing out that he had not cited the defendant for a speeding violation. In this case the objection of plaintiff’s counsel was immediately sustained and defense counsel did not pursue the matter further. However, the question posed by defense counsel as to the absence of a citation was not in these circumstances an egregious violation, if a violation at all, of the rules of evidence. The plaintiff’s counsel had opened the door by eliciting testimony from Sergeant Meixell that the defendant had operated his vehicle in violation of the Motor Vehicle Code. Thus, the rationale for holding inadmissible questions regarding the issuance or non-issuance of a citation no longer applied. In this respect, the case at bar is distinguishable from the cases relied on by the plaintiff where reference to the issuance or non-issuance of a traffic citation was held inadmissible. In none of these cases had the police officer himself been asked to render an opinion by opposing counsel as to whether the Motor Vehicle Code had been violated. See e.g., Gatling v. Rothman, 267 Pa. Super. 566, 407 A.2d 387 (1979) (no opinion testimony by police officer) and Shepard v. Martin Century Farms, 245 Pa. Super. 552, 369 A.2d 765 (1977) (same).

For all of these reasons, the trial court’s refusal to grant the plaintiff’s motion for mistrial was a proper exercise of its discretion and is not a sufficient basis for ordering a new trial.

II. The Jury Instructions on Negligence

The jury was charged on negligence, including negligence per se and the sudden emergency doctrine, in accordance with the Pennsylvania Suggested Standard Jury Instructions. The charge considered as a whole properly instructed the jury on this issue and was fair to both parties. Significantly, the jury found the defendant to have been negligent, so that the plaintiff’s objection to the negligence charge is a moot point.

The plaintiff contends that the jury should also have been instructed on the assured clear distance ahead rule. However, the trial evidence did not support a finding that the defendant had violated this rule. Therefore, any reference to this rule was unnecessary and had the potential of causing confusion. It is well-settled that “a trial court is bound to charge only on that law for which there is some factual support in the record.” Levey v. DeNardo, 555 Pa. 514, 517, 725 A.2d 733, 735 (1999) (citing Lockhart v. List, 542 Pa. 141, 147, 665 A.2d 1176, 1179 (1995)).

Under the assured clear distance ahead rule, the operator of a motor vehicle is not to drive “at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.” Under the evidence presented by both parties, this was essentially a “dart-out” case in which the plaintiff thrust herself into the defendant’s lane of travel a moment before impact. Such a case does not bring into play the assured clear distance ahead rule. Unangst v. Whitehouse, 235 Pa. Super. 458, 344 A.2d 695 (1975) (holding that the assured clear distance ahead rule does not apply where another vehicle darts into the driver’s path within his assured clear distance).

In discussing the assured clear distance ahead rule, our Supreme Court has stated:

“ ‘Assured clear distance ahead’ means only what it says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome all fortuitous hazards which suddenly face him. Assured does not mean guaranteed Fleischman v. City of Reading, 388 Pa. 183, 185-86, 130 A.2d 429, 431 (1957). (emphasis in original)

The most common application of the rule is where there is a static or essentially static object, such as a person or another vehicle, in the driver’s path. By way of contrast, where a person or vehicle suddenly moves into the driver’s path immediately before impact, the rule does not apply. Instead, the driver’s conduct is governed by the sudden emergency rule, i.e., that a driver’s duty to respond must be determined in light of the circumstances and the time he had to react. Cunningham v. Byers, 732 A.2d 655, 658 (Pa. Super. 1999).

In discussing jury instructions, the Superior Court stated in Cunningham that “[gjenerally a jury should not be instructed on both the assured clear distance ahead rule and the sudden emergency doctrine since the two are mutually exclusive. This is based on the rationale that the assured clear distance ahead rule applies to essentially static or static objects including vehicles moving in the same direction, while the sudden emergency doctrine applies only to moving instrumentalities thrust into a driver’s path of travel.” Id. at 658. (citations omitted) (footnote omitted)

In Lockhart, supra at 154, 665 A.2d at 1182, the Supreme Court made the same distinction, noting that “this court agrees generally with the Superior Court’s distinction between fixed and moving objects since it is quite reasonable to hold a person accountable for colliding with a stationary object on the road which is, and has been, in plain view for everyone to see, while it is quite a distinct matter when an object or instrumentality suddenly moves into the path of an oncoming vehicle.” (emphasis added)

Although there are unusual cases where application of the assured clear distance ahead rule to moving objects can be justified, this is not such a case. The evidence was undisputed that the plaintiff entered the defendant’s lane of travel a moment before the impact. The sole non-party witness, Lonnie White, testified by videotape deposition that the plaintiff “ran directly into the path of (defendant’s vehicle) traveling south on the bridge in the left lane.” The plaintiff, according to Mr. White, was only on the highway for “a couple of seconds” and was struck almost immediately upon crossing the center line into the defendant’s southbound lane of travel. Plaintiff’s mother confirmed that only “a few seconds” elapsed from the time the plaintiff climbed over the barrier, crossed the two lanes of northbound travel, and stepped into the defendant’s southbound lane of travel. The defendant testified that the plaintiff was moving when she suddenly appeared in front of him “just before impact.” The plaintiff herself had no recollection of the accident.

From this evidence it is clear that the plaintiff was not a static object in the defendant’s lane of travel. She was not present in that lane of travel for any significant length of time. In the language of the Cunningham court, the plaintiff “thrust [herself] into [defendant’s] path of travel” immediately before the impact. Cunningham, 732 A.2d at 658. Because the plaintiff moved suddenly into the defendant’s assured clear distance, the defendant did not have the benefit of that distance to stop. Under these circumstances it would have been improper to charge the jury on the assured clear distance ahead rule.

In an analogous case our Supreme Court stated the following:

“Assured clear distance ahead does not embrace a state of affairs where a truck lurks behind parked cars and then suddenly moves into the highway. Assured clear distance does not include a situation where a vehicle is ambushed in the shadows of other parked cars and then, without warning, charges into the street....

“[W]hen the truck moved into the plaintiff’s path of travel... the assured clear distance became un-assured. By this time, however, fate’s course had been shaped beyond man’s alteration.” Flesichman v. City of Reading, supra at 186, 130 A.2d at 431-32.

In the instant case the defendant was also confronted with a sudden emergency. The plaintiff suddenly and without warning scaled the barrier separating the pedestrian walkway from the highway and darted into his lane of travel. It would be patently unreasonable to apply the assured clear distance ahead rule under such circumstances. The relevant doctrine for the jury to consider was the sudden emergency rule, on which the jury was charged. Therefore, the court’s charge to the jury on the issue of negligence was proper.

Plaintiff’s counsel makes reference to the testimony of Sergeant Meixell that an average person walks at the rate of three miles per hour, and that if the plaintiff had been walking at this pace, it would have taken her five seconds to move from the barrier across the two lanes of northbound travel into the southbound lane in which the defendant was operating his van. Plaintiff’s counsel argues that, based on this testimony, the assured clear distance ahead rule, rather than the sudden emergency rule, applied. This argument is specious. First, there is no evidence that the plaintiff was walking at such a slow pace. The evidence indicates that she was walking rapidly or running. Second, the relevant time frame does not begin when she climbed over the barrier, but when she entered the southbound lane in which the defendant was driving. It was only when she entered the southbound lane that she intruded into the defendant’s assured clear distance ahead. The plaintiff’s movement into that lane of travel occurred just momentarily before she was struck. As we have seen, the assured clear distance ahead rule does not apply in such situations.

Furthermore, since the jury found that the defendant was negligent, any error in the jury instructions on negligence did not harm the plaintiff. Thus, even it if the jury should have been instructed on the assured clear distance ahead rule, the court’s refusal to so instruct was at most a harmless error. The effect of the assured clear distance ahead rule is to assign negligence to a party who is driving too fast for conditions. In the present case the plaintiff presented evidence that the defendant was speeding before the impact. The jury obviously accepted this evidence because it specifically found that the defendant was negligent and that his negligence was a factual cause of the accident. Given these jury findings, an instruction on the assured clear distance ahead rule would not have made any difference in the outcome of the trial.

Our conclusion on this point is consistent with the holding in Griesel v. Seaser, 26 D.&C.4th 289 (Berks Cty. 1996). Griesel was an automobile accident case in which the plaintiff contended that the trial court should have given a jury instruction on the assured clear distance ahead rule. The court determined that the plaintiff’s argument was moot because the jury had found that the defendants were negligent and that their negligence was a substantial factor in the accident.

Accordingly, not only were the jury instructions on negligence proper, but even if they were not, any error in these instructions would fall into the category of harmless error.

CONCLUSION

For all the above reasons, the plaintiff’s motion for post-trial relief must be denied.

ORDER

Now, November 18, 2005, upon consideration of plaintiff’s motion for post-trial relief, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered that the motion for post-trial relief is denied. Judgment shall be entered on the verdict in favor of defendant against plaintiff.

      . The motion for post-trial relief alleges other errors, but they were not briefed and are therefore waived.

      . Notes of Testimony (N.T.) 5/16/05, 45.

      . N.T. 10/21/04 videotaped deposition of Lonnie White, 24.

      . Id. at 12.

      . Id. at 19.

      . Id. at 24.

      .N.T. 5/16/05, 157-58.

      . Motion for post-trial relief by plaintiff Laura O’ Kane.

      . N.T. 5/17/05,43.

      . See verdict slip, 5/17/05.

      . N T. 5/17/05, 41-44; Pennsylvania Suggested Standard Jury Instructions 3.01, 3.02, 3.18 and 3.30.

      . 75 Pa.C.S. §3361.

      . N.T. 10/21/04 videotaped deposition of Lonnie White, 12.

      . Id., 24.

      . N.T. 5/16/05, 75.

      . Id, 143-44, 146.


author: PICCIONE, J,

text:
    Kingston v. Kingston

      Norman Levine, for plaintiff.

      Phillip L. Clark Jr., for defendant.

      November 14, 2005
   PICCIONE, J,

The defendant has appealed the order of court dated August 31, 2005 wherein the court ordered the sale of the marital residence and found there was no basis for the enforcement of the marital agreement.

This matter was before the court on July 15, 2005 for a hearing. The issues before the court at that time were whether the plaintiff was entitled to a forced sale of the marital residence and whether there was a valid basis to enforce the proposed marital settlement agreement.

Christine Kingston (plaintiff) and David Kingston (defendant) separated on December 23, 2000. The parties conditionally entered into a marital settlement agreement on May 4,2004. The marital agreement called for plaintiff to assume sole interest and financial responsibility in the marital residence and for defendant to receive $55,000 in consideration for his interest in the marital residence. Plaintiff and the parties’ children had occupied the marital residence after plaintiff and defendant separated; however, she vacated the marital residence, which is now unoccupied, upon her remarriage. Although she currently resides elsewhere, plaintiff remains financially responsible for the marital residence.

The effectiveness of the marital settlement agreement was discussed within the transcript of counsel’s presentation to the court concerning that agreement:

“This agreement is entered into based upon an understanding that once the Qualified Domestic Relations Order is in place, if defendant were to die, plaintiff’s interest, pursuant to the Qualified Domestic Relations Order, would survive his death .... If it is determined that plaintiff’s interest in the qualified Domestic Relations order would not survive defendant’s death, then, in that event, the basis for this agreement is no longer existent and the parties would either have to renegotiate or go through a hearing.” (N.T. 05/04/04 p. 3 par. 3.)

The parties agree that this condition determines whether the marital settlement agreement is valid; however, they are in dispute as to who is responsible for showing whether plaintiff’s interest in the pension would survive if defendant predeceased her. During the July 15,2005 hearing, plaintiff’s attorney stated, in open court, that plaintiff’s interest in the pension would not survive if defendant predeceased her. His statement, taken from the transcript was: “Well, apparently it does not, from everything that we have learned today and, therefore, we say, your honor, there is no basis for the court enforcing this marital settlement agreement and compelling her to sign this.” This statement was not objected to or contested by defendant’s attorney. (N.T. 07/15/05 p. 10 par. 2.)

A grant of special relief lies within the discretion of the trial court. McMahon v. McMahon, 706 A.2d 350 (Pa. Super. 1998). The standard for granting equitable relief in divorce actions is the same as a request for equitable relief generally. Zeigler v. Zeigler, 365 Pa. Super. 545, 530 A.2d 445 (1987); Mayhue v. Mayhue, 336 Pa. Super. 188, 485 A.2d 494 (1984). The criteria for granting special relief includes: (1) The relief should be necessary to prevent immediate and irreparable harm that cannot be compensated with money damages; (2) the injury resulting from the denial of the requested relief should outweigh the injury from the relief itself; (3) the relief should serve to maintain or restore the status quo to the state prior to the facts giving rise to the request for the relief; (4) the party seeking the relief should show a clear right to relief on the merits. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982); Credit Alliance Corporation v. Philadelphia Minit-Man Car Wash Corporation, 450 Pa. 367, 301 A.2d 816 (1973); Joanne R. Wilder, Pennsylvania Family Law Practice and Procedure 14-2 (2002).

Defendant’s first contention is that the court erred in ordering the immediate listing for sale of the marital residence on the basis that there was no evidence supporting any conclusion that immediate sale was necessary to preserve the marital asset. The court found sufficient evidence demonstrating that, without the immediate sale of the marital residence, the plaintiff would potentially suffer unjust economic hardship. The plaintiff is currently responsible for the mortgage, utilities and all other expenses pertaining to the marital estate. Since plaintiff remarried and has moved out of the marital residence, she would essentially be paying for two residences where only one is being used.

Defendant’s second contention is that the court’s order to list the marital residence for immediate sale will result in that marital asset being irreparably lost prior to the establishment of an equitable distribution scheme as between the parties. Proceeds from the sale are to be placed in escrow and it is in the interests of both parties to maximize the value of the residence. Furthermore, the court is using one of the real estate agents submitted by the defendant.

Defendant’s third contention is that the court erred in denying the defendant the ability to purchase and receive the marital residence as part of an ultimate equitable distribution scheme. The facts indicate that it is in the best interest of both parties for the marital residence to be immediately listed for sale. It is notable that defendant has expressed no desire to occupy the marital residence until this time.

Defendant’s fourth contention is that the court erred in granting special relief without a showing that special relief was necessary or supported by any competent evidence. The court has found that the plaintiff may suffer unjust economic harm if the marital residence is not immediately sold. Because the marital residence is no longer used by the plaintiff and is reportedly no longer occupied by either party, there is no justification for plaintiff to continue her financial responsibility for it without the possibility of sale. Because the parties could not come to an agreement, special relief is necessary to prevent further potential economic harm to the plaintiff and defendant.

Defendant’s fifth contention is that the court erred in finding that, if the defendant predeceased the plaintiff, plaintiff would not receive pension benefits through defendant’s pension. The court has found that, as of July 15, 2005, the parties had determined that, in the event defendant predeceased her, plaintiff would not be entitled to any benefits from defendant’s pension. This finding is based on the uncontroverted statement of plaintiff’s counsel during the July 15, 2005 proceeding. (N.T. 07/15/05 p. 10 par. 2.) This statement indicated to the court that plaintiff’s counsel had become aware that his client would not be entitled to pension benefits if the defendant predeceased her. This statement was made by plaintiff’s counsel in open court and was not contested by defendant’s counsel.

Defendant’s sixth and seventh contentions complain that the court erred in shifting the burden from the plaintiff to the defendant to show plaintiff would receive a portion of defendant’s pension if defendant predeceased her. The defendant is in the best position to determine whether plaintiff’s interests would survive. The defendant would have access to information regarding his pension that the plaintiff may not be entitled to or have independent authority to obtain.

Defendant’s final contention is that the court erred in failing to enforce the parties’ marital settlement agreement. Both parties have agreed that the marital settlement agreement would be nullified if, in the event that the defendant predeceased the plaintiff, plaintiff would not receive pension benefits through defendant’s pension. The court has accepted the plaintiff’s assertion that plaintiff would not be entitled to pension benefits in the event that the defendant predeceased her. Since the marital settlement agreement is predicated upon the plaintiff’s interest in defendant’s pension surviving in the event that defendant predeceases the plaintiff, there is no basis for upholding the marital settlement agreement.

For the reasons stated above, the defendant’s appeal is without merit and should be dismissed.

ORDER

And now, November 14, 2005, the court having received a notice of appeal that defendant appealed the order of court dated August 31, 2005, the court issues the attached opinion pursuant to Pa.R. A.R Rule 1925(a). It is hereby ordered and decreed that the prothonotary shall assemble the record and transmit the same to the prothonotary of the Superior Court as required by the applicable rules of appellate procedure.

The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: HECKLER, J.,

text:
    Ruddy v. Springfield Township Zoning Hearing Board

      Donald C. Ruddy, pro se.

      James M. McNamara, for Springfield Township.

      Rodney D. Henry, for intervenor Suelke.
    October 14, 2005
   HECKLER, J.,

On June 27,2005, this court entered an order denying the land use appeal filed by Donald C. Ruddy (appellant) from the decision of the Springfield Township Zoning Hearing Board. Appellant had applied to the Zoning Hearing Board seeking a special exception and a series of dimensional variances. Appellant sought this relief so as to enable him to construct a single family residence upon a vacant and dramatically undersized lot which predated zoning in Springfield Township. The Zoning Hearing Board denied appellant’s application. He appealed from that denial to this court. After a conference held pursuant to Bucks County Local Rule *27, consideration of the record of the proceedings before the Zoning Hearing Board and consideration of the submissions of the parties hereto, we entered our June 27, 2005 order affirming the Zoning Hearing Board’s decision and denying the appellant’s appeal.

Appellant has sought review of our order by the Pennsylvania Commonwealth Court. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), we file this opinion.

FACTUAL BACKGROUND

The subject premises is located on the north side of Mine Road in a rural upland area of Springfield Township. The parcel has a width of roughly 80 feet on its Mine Road frontage tapering to 60 feet at the rear lot line. Its depth is 200 feet. The lot contains a total of .32 acres. The parcel is unimproved and has remained in single and separate ownership since it was created by subdivision in 1950.

Since the adoption of Springfield Township’s first zoning ordinance in 1971, the subject premises has been nonconforming. The subject premises is presently zoned RP Resource Protection District. In that district, the appellant’s proposed use — single family residence — is permitted of right. Article 6, Section 603B of the Springfield Township Ordinance establishes the following dimensional requirements:

Minimum Lot Area 3 acres

Maximum Impervious Surface Ratio . 15

Minimum Lot Width at Building

Setback Line 200 feet

Yards: Front 75 feet

Side (each) 30 feet

Rear 75 feet

Appellant acquired the subject premises from the Bucks County Tax Claim Bureau in 1996 with a payment of $559.87. He subsequently obtained a quitclaim deed in November of that year for stated consideration of $1 from its previous owner, Milton Aronauer, who himself had acquired the property at a tax sale.

The Mine Road area of Springfield Township is not served by public water or public sewer. The appellant, a semi-retired developer, seeks the right to erect a single family dwelling on the premises. He does not propose to reside on the premises but rather to establish the premises as an approved building lot and to construct a small residence thereon for sale on a spec basis. Appellant’s exhibit 3 as received by the board depicts the subject premises with a proposed construction footprint for a 27.5 foot by 39 foot house. With those dimensions, the residence would have an 86 foot front yard, a 67 foot rear yard, a 9 foot side yard to the west and a 30 foot side yard to the east.

Of necessity, the residence on the premises would be served by an on-site well and septic disposal system. The appellant testified that preliminary testing for a suitable sewage discharge area had been performed on the parcel. However, no Board of Health testing had occurred and no permit for an on-site system had been obtained. A proposed site for a sand mound type system is depicted in the front yard, roughly 10 feet in front of the proposed residential building envelope. Appellant identified a proposed location for a well to the northeastern corner of the parcel. He testified, however, that this proposed location was solely the product of an attempt to achieve separation from adjacent septic drainfields as required by Department of Health regulations. The proposed well location was not the product of any geological or hydrological analysis of the site.

Intervenor Brian Suelke owns the lot which immediately adjoins the subject premises to the west. His parcel has the same 200 foot depth with a width of 180 feet. His parcel is served by an on-site well and septic disposal system. The well on Mr. Suelke’s property is 500 feet deep and produces 3 gallons of water per minute. Beginning two days after he moved into the residence on his property in 2001, Mr. Suelke’s well has gone dry at regular intervals. In an attempt to achieve an adequate water supply, Mr. Suelke had a second well drilled in 2003. That well was drilled to a depth of 340 feet and was dry. Mr. Suelke’s well driller advised him that the Mine Road area of Springfield Township is the worst area in Bucks County for the establishment of producing water wells.

Ms. Charlene Gero resides in the same neighborhood as the subject premises. She testified at the hearing that she also had encountered situations in which her well was running out of water “all the time.” She further testified that she spent “a lot of money” trying to get more water and so far had gotten some. Ms. Gero also alluded to the fact that various of her neighbors had experienced water supply difficulties at least as severe as her own.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Appellant has filed a far less than concise statement of matters complained of in this appeal. In fairness, as we entered an order without supporting opinion, we recognize that the appellant is not in a position to identify with precision the legal basis for this court’s decision. However, as the effect of our order was to uphold the decision of the Zoning Hearing Board below, the appellant should nevertheless be able to define with some greater precision the principles which form the basis for the relief to which he claims he is entitled.

We will not burden this opinion with a restatement of the appellant’s eleven distinct assertions of error, as we perceive that many are redundant and others are less than clear. Rather, we will endeavor to discuss what we perceive to be the salient issues in this matter.

DISCUSSION

Whereas in the instant case, no new evidence is taken on appeal, the scope of our review was limited to determining whether the Zoning Hearing Board abused its discretion, committed an error of law or made findings of fact which are unsupported by substantial evidence. Moses v. Zoning Hearing Board of the Borough of Dormont, 87 Pa. Commw. 443, 447, 487 A.2d 481, 483 (1985). Substantial evidence has been defined to be such evidence as reasonable minds would find adequate to support such findings. Collier Stone Company v. Zoning Hearing Board for Township of Collier, 710 A.2d 123, 125 (Pa. Commw. 1998).

Our review of the record in this matter indicates that the factual findings of the Springfield Township Zoning Hearing Board had adequate foundation in the record of the hearing held by the board. Thus, we perceive that the only basis upon which the appellant in this matter could have been entitled to a reversal of the board’s decision would be by establishing that the board had erred in its application of existing law to those facts. Evaluating this question requires discussion of both the special exception and the several variances sought by the appellant and the basis upon which the board denied them.

Special Exception

It is beyond dispute that the vacant parcel acquired by appellant at tax sale is dramatically undersized, having been created long before the advent of municipal zoning in Springfield Township. Article 11 of the Springfield Township Zoning Ordinance defines a nonconforming lot to be “a lot the area or dimension of which was lawful prior to the adoption or amendment of this zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment.” Springfield Township Zoning Ordinance, section 1100. In relevant part, section 1101 of the ordinance concerning Continuation provides:

“A nonconforming lot which lawfully existed prior to the enactment of this ordinance... may be developed by special exception for uses permitted in the particular district and shall conform to all other requirements specified in this ordinance other than lot size, provided that the nonconforming lot is in single and separate ownership from adjoining properties.” Springfield Township Zoning Ordinance, section 1101(B).

As noted in the factual statement above, the appellant’s lot is so small that, in addition to being unable to meet the minimum 3 acre lot size and the minimum lot width of 200 feet, no building may be erected on the parcel which will meet the side and rear yard requirements. Further, even construction of a modest residence will result in construction of impervious surfaces on the parcel which exceed the maximum impervious surface ratio of. 15. As noted above, the appellant separately sought variances from each of these dimensional requirements. If the board was correct in denying those variances, then the special exception application must also fail, as the lot would not conform to “all other requirements.”

In addition to the above noted dimensional requirements, appellant’s application was also subject to the provisions of section 1009(B) of the ordinance which provides:

“Special exceptions — Where this ordinance has provided for stated special exceptions to be granted or denied by the board pursuant to express standards and criteria, the board shall hear and decide requests for such special exceptions in accordance with such standards and criteria.” Springfield Township Zoning Ordinance, section 1009(B).

The ordinance goes on under paragraph C to provide:

“In passing upon applications for special exceptions and variances the board shall consider all relevant factors and procedures specified in other sections of this ordinance, including article 4, Use Regulations, as well as the following:...

“(3) Consider the proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary conditions. Where applicable, a certificate of adequacy of sewage and water facilities shall be provided.” Springfield Township Zoning Ordinance, section 1009(C).

Appellant presented no testimony before the Zoning Hearing Board which demonstrated that either the water supply or sanitation system proposed for the subject premises would be adequate. He presented no testimony suggesting that the digging of a well on the subject premises, assuming that it reached water, would not adversely affect neighboring properties. As to the suitability of the subject premises for an approved septic disposal system, the only representations made by the appellant on this subject were in response to cross-examination.

“Question: Now, first, concerning the sewers, do you have anything with you today to show the board that the sewage system can be placed on the property?

“Answer: Well, number one, they did come out and set that at the site and we are now exceeding the scope of zoning. We are now getting into the Department of Health and Engineering matters.”

When pressed upon the subject, the appellant responded further:

“Answer: The only thing that I have tonight with me is the proposed approval of the sewerage construction concerning the area of the Health Department.” See N.T., Zoning Hearing, 8/2/04, p. 21.

These obscure and uninformative responses constitute the high water mark of appellant’s representations concerning a sanitation system. When pressed on the subject of water supply, appellant responded:

“Answer: I have a difficult time answering that question because there are two phases. Zoning approval and then if I flunk on the well, nothing goes anywhere. But that’s another step. That’s another scope so that we are mixing oranges and apples on this thing.” N.T., Zoning Hearing, 8/2/04, p. 22.

Accordingly, appellant presented no evidence which would have enabled the Zoning Hearing Board to discharge its obligation under the ordinance to “consider the proposed water supply and sanitation systems ....” This lack was underscored by the fact that the fundamental basis for opposition to the granting of the relief sought by the appellant was the difficulty which Intervenor Suelke and other neighboring properties had experienced with water supply.

We note that the evidence of the intervenor and his neighboring property owners was anecdotal. Apart from relating general statements made to him by his well driller, neither the intervenor nor any other party introduced expert testimony bearing upon the issues of water supply or sewer adequacy. In considering this issue, the court is mindful that where special exceptions are concerned, one must consider whether the ordinance requirement in question is generalized or specific so as to determine where the burden of persuasion and the duty to go forward with evidence rested. See Bray v. Zoning Board of Adjustment, 48 Pa. Commw. 523, 410 A.2d 909 (1980). In the instant case, we perceive that the direction “where applicable, a certificate of adequacy of sewage and water facilities shall be provided” renders this particular criteria sufficiently specific as to place both the burden and the duty upon the appellant as regards sewage, because in Bucks County no sewage system may be constructed or used without authorization from the County Department of Health. In this respect, the appellant simply failed.

As to the issue of water supply, there being no specific method for determination of adequacy, we perceive that this should be treated as a general condition and thus that the opponents of the application did bear both the duty and the burden to present evidence on this issue. We do not perceive that the Zoning Hearing Board abused its discretion in concluding that the intervenor and other opponents had demonstrated that it was unlikely that appellant could achieve an adequate water supply for the subject premises. As we will discuss with reference to the variance denials, the entire structure of the ordinance itself and the location of this particular property each tend to support the significance attached by the zoning board to the water supply question.

Variances

Generally, a nonconforming undersized lot must be considered subject to an unnecessary hardship and entitled to dimensional variances which will permit reasonable use of the property. It is rare that a neighboring property or the general public will be so affected by the granting of such dimensional variances as to warrant their denial. In the instant case, the board’s rejection of appellant’s variance requests would appear to rest upon its determination that appellant had failed to demonstrate that his construction of a single family residence with well and septic disposal systems would not aggravate existing ground water shortages in the neighborhood. In this regard we note that the question of the feasibility and sustainability of the use of lands in the RP District in light of existing natural resources is the reason for the fairly restrictive dimensional provisions applicable to the subject premises.

Section 304 of the ordinance contains “Statements of Purposes and Intent for the Districts.” The subject premises is zoned RP Resource Protection District. As to the Resource Protection District, the ordinance provides:

“The purpose of this district is to protect areas consisting largely of natural features such as forest, steep slopes, scenic areas, wetlands, streams, floodplains, and ponds including those identified in the Bucks County Natural Resources Plan. Intensities are such as to insure that these resources are preserved, while providing for residential development with suitable sewage disposal.” Springfield Township Zoning Ordinance, section 304.

The large minimum lot area required (three acres) and low impervious surface ratio (.15) bear testimony to the desire of the township to limit runoff, promote ground water recharge and limit the impact of land development upon fragile and limited natural resources. Apart from the bald assertion that he has as much right to ground water as his “neighbors,” appellant did nothing to demonstrate that a well, or for that matter a septic system, on the subject premises would adequately serve the ultimate occupants of the property, or that these installations would not adversely affect existing precariously limited water supplies. Thus, we do not perceive that the board abused its discretion when it concluded that the appellant had not proven that the several variances he requested, including a variance from the impervious surface ratio, would not substantially or permanently impair the appropriate use or development of adjacent property or be detrimental to the public welfare.

While it arose from a somewhat different procedural situation, we note the recent decision of our Commonwealth Court in In re Cutler Group Inc., 880 A.2d 39, 46 (Pa. Commw. 2005). In that case, the court recognized the importance of ground water considerations and the deference to be given to the fact-finder in the determination of such matters. We also note the holding of Judge Garb of this court in Batco Inc. v. Milford Township Zoning Hearing Board, 25 Bucks L. Rep. 346 (1974) that adequate water and sewer services are within the realm of health and welfare and are, therefore, matters to be considered by the zoning hearing board in an application for special exception. Id., at p. 354.

While it is not dispositive in this case, we note that the Zoning Hearing Board did err in concluding that the appellant was not entitled to relief because he had purchased the property with knowledge of its nonconformity and for a distress value and thus experienced only an economic hardship.

We recognize the teachings of Manayunk Neighborhood Council v. Zoning Board of Adjustment of the City of Philadelphia, 815 A.2d 653, 657 (Pa. Commw. 2002) that generally the transfer of property does not create a hardship. While in human terms, the appellant’s indifference to the potential impact which his development of a dramatically undersized lot will have upon those who reside nearby is made the more irksome by his acquisition of the parcel at a nominal price, nevertheless the circumstances by which he acquired the property cannot be a basis upon which to deny him relief to which he would otherwise have been entitled. In the instant case appellant failed to establish that entitlement.

For the foregoing reasons, we are satisfied that the Zoning Hearing Board of Springfield Township did not err in denying the appellant the special exception and multiple variances he sought in this matter.

      . In Cutler the decision in dispute involved a conditional use— essentially a special exception which is decided by the governing body of the municipality. While the approval criterion in question was the adequacy of basins proposed for ground water recharge rather than the feasibility of a well for ground water extraction, we perceive that case to be conceptually similar to the instant matter.


author: ABRAMSON, J.,

text:
    North American Publishing Company v. SunGard Availability Services, LP

      Alan Turner, for plaintiff.

      Dennis Marconi, Angelo Scaricamazza Jr., Joseph Connor III, James Breslin, Martin Lisman, Rebecca Ward and Nancy J. Leddy, for defendant.
    October 7, 2005
   ABRAMSON, J.,

Presently before the court are the preliminary objections of defendant SunGard Availability Services LP and the preliminary objections of defendants Gerald S. Kaufman Corporation, 440 E. 62nd Street Co. LP, Benlo LLC, Callowhill Management Inc., and Allan Stillman (collectively, Landlord and, together with SunGard, defendants) to the second amended complaint of plaintiff North American Publishing Company (NAPCO).

According to the second amended complaint, until a recent relocation, NAPCO was a commercial tenant occupying the entire fifth floor of the North American Building pursuant to a lease with Landlord. SunGard, also a commercial tenant, occupies the sixth through eleventh floors and the mezzanine of the building. Landlord is the owner, operator, and manager of the building.

For its own benefit, SunGard installed a temperature and humidity control system on the fifth floor roof. Defendants entered into a lease for SunGard’s use of the roof. The system caused water to intrude into NAPCO’s leased space repeatedly. These leaks resulted in several problems for NAPCO, including mold, lighting failure, loss of ceiling and floor tiles and loss of usable space. Defendants were aware of the damage caused by the system and claimed they would resolve the matter. As neither defendant rectified the situation, NAPCO was forced to terminate its lease and find another facility for its operations.

Previously, SunGard filed preliminary objections to NAPCO’s first amended complaint. The court issued an order on May 16, 2005, directing NAPCO to file a second amended complaint or Count V would be dismissed against SunGard and punitive damages would be stricken from Count I.

In response, NAPCO filed a second amended complaint that makes claims against SunGard for continuing trespass (Count I) and breach of third-party beneficiary contract (Count VI) and against Landlord for continuing trespass (Count I), breach of lease agreement (Count II), breach of implied warranty of habitability (Count III), breach of implied covenant of quiet enjoyment (Count IV), constructive eviction (Count V), and for a declaratory judgment regarding rent under lease and breach of lease (Count VII). Defendants contend the second amended complaint exceeds the parameters of the order of May 16, 2005, by adding defendant Allan Stillman, Count VI and Count VII. The order of May 16,2005, did not impose any limits upon NAPCO in filing its second amended complaint. As the court directed NAPCO to file the second amended complaint and the inclusion of Allan Stillman, Count VI and Count VII is permitted under Pa.R.C.P. 1033, defendants’ objections are denied.

In its preliminary objections, SunGard asserts that Count VI lacks a sufficient factual basis. Under Pennsylvania law, a party must satisfy a two-part test in order to be considered an intended beneficiary of a contract. As set forth in Cardenas v. Schober, 783 A.2d 317, 322 (Pa. Super. 2001), “the recognition of the beneficiary’s right must be ‘appropriate to effectuate the intention of the parties’ and . . . the circumstances [must] indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” A review of the second amended complaint reveals that SunGard’s system caused problems in NAPCO’s leased space and that defendants were aware of this situation. Thereafter, defendants agreed to have SunGard repair or replace the roof in order to resolve the problems. Clearly, NAPCO’s problems led to defendants’ agreement and that agreement directly benefits NAPCO. Therefore, the allegations in the second amended complaint are sufficient to support NAPCO’s third-party beneficiary-based breach of contract claim.

SunGard also seeks to strike all claims for punitive damages and all claims for any type of damages, except for contractual damages, from the second amended complaint. Although NAPCO concedes that it is not pursuing certain categories of damages, it does seek punitive damages from SunGard in connection with Count I. Punitive damages may be awarded for “acts done with a bad motive or with reckless indifference to the rights of others.” SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). SunGard knew the system was creating damage in NAPCO’s leased space no later than 2000. In particular, SunGard understood that water generated by the system led to the growth of mold spores in the fifth floor ceiling tiles and the destruction of floor tiles containing asbestos on the fifth floor. Although SunGard promised to rectify the situation, it did nothing. This alleged course of conduct demonstrates “reckless indifference” on the part of SunGard, potentially sufficient to support the imposition of punitive damages.

In its preliminary objections, Landlord asserts that the gist of the action doctrine bars NAPCO’s tort claims. This doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” Etoll Inc. v. Elias/Savion Advertising Inc., 811 A.2d 10, 14 (Pa. Super. 2002). As applied to this matter, a tort claim is barred where the duties allegedly breached were created and grounded in the contract itself or the tort claim essentially duplicates a breach of contract claim. Id. at 19. Since all allegations in the second amended complaint against Landlord arise out of the lease between NAPCO and Landlord, all tort claims against Landlord are barred by the gist of the action doctrine.

Landlord also asserts that NAPCO’s claims for punitive damages should be stricken from the second amended complaint. NAPCO cannot recover punitive damages for an action solely sounding in breach of contract. DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 370 (Pa. Super. 2003). As all tort claims against Landlord are no longer viable, all claims for punitive damages against this defendant will be stricken.

ORDER

And now, October 7,2005, upon consideration of the preliminary objections of defendant SunGard Availability Services LP (Control no. 062064) to plaintiff North American Publishing Company’s second amended complaint and the response thereto, the preliminary objections of defendants Gerald S. Kaufman Corporation, 440 E. 62nd Street Co. LP, Benlo LLC, Callowhill Management Inc., and Allan Stillman (Control no. 070154) to plaintiff North American Publishing Company’s second amended complaint and the response thereto, and in accordance with the attached memorandum, it is hereby ordered and decreed that:

(1) All tort claims and all claims for punitive damages against defendants Gerald S. Kaufman Corporation, 440 E. 62nd Street Co. LP, Benlo LLC, Callowhill Management Inc., and Allan Stillman are hereby stricken from the second amended complaint;

(2) The remaining preliminary objections of defendants Gerald S. Kaufman Corporation, 440 E. 62nd Street Co. LP, Benlo LLC, Callowhill Management Inc., and Allan Stillman are overruled and defendants are further ordered to file an answer to plaintiff’s second amended complaint within 20 days of this order;

(3) All claims for damages based upon property damage or loss, lost employee time, business interruption, loss of personal property, or personal injury are hereby stricken from the second amended complaint; and

(4) The preliminary objections of defendant SunGard Availability Services LP are overruled and defendant is further ordered to file an answer to plaintiff’s second amended complaint within 20 days of this order.


author: NEW, J.,

text:
    Curran v. Archdiocese of Philadelphia

      Theodore Schwartz, for plaintiff.

      C. Clark Hodgson Jr., Timothy R. Coiné, Christine Debevec and Byron Milner, for defendant.
    November 23, 2005
   NEW, J.,

The trial court properly granted defendant Archdiocese’s motion for judgment on the pleadings as the two-year statute of limitations had run, therefore dismissing plaintiff’s complaint as to defendants Archdiocese of Philadelphia.

PROCEDURAL AND FACTUAL HISTORY

Linda Curran (plaintiff) initiated this present action against the Archdiocese of Philadelphia, Cardinal Anthony J. Bevilacqua (Archdiocese defendants) and the Congregation of the Sisters, Servants of the Immaculate Heart of Mary (defendant IHM) on July 23,2004. Plaintiff alleged instances of childhood sexual abuse by Eileen Rhodes, who had been a sister of defendant IHM and was a teacher within the Archdiocese within the relevant time. The alleged sexual abuse occurred in 1980, 1984 and 1985. During plaintiff’s sixth grade year, 1977, at Holy Cross Parish School, Rhodes was her teacher and a personal relationship was formed. By the time plaintiff was in ninth grade the relationship became sexual. Plaintiff alleges the sexual relationship continued through her eighteenth birthday while she was a student at Cardinal O’Hara High School. Plaintiff contends that she perceived the relationship to be a consensual and loving relationship.

Until plaintiff sought psychological counseling in 2002, she alleges that she did not know or understand that she had been sexually abused by Rhodes and that she had been unable to “connect” her psychological and psychiatric injuries to the sexual abuse. In July 2002, a treating physician informed plaintiff that her injuries were caused by Rhodes’ sexual abuse, but, at that time, plaintiff refused to understand, believe or acknowledge that Rhodes had harmed her by the sexual contact. Instead, plaintiff allegedly continued to believe the relationship was consensual and harmless.

After pleadings were closed, Archdiocese defendants filed a motion for judgment on the pleadings. By an order dated May 17,2005, this court granted Archdiocese defendants’ motion for judgment on the pleadings and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals that order, arguing the statute of limitations was tolled as a result of the discovery rule.

LEGAL ANALYSIS

According to the Pennsylvania Rules of Civil Procedure, “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for a judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is in the nature of a demurrer as it gives the means to test the legal sufficiency of the pleadings. All of the plaintiff’s allegations must be taken as true for the purposes of a motion for judgment on the pleadings. In addition, the motion should be granted where the law is clear and trial would be “a fruitless exercise.” Bata v. Central Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). It is well-settled that judgment on the pleadings is appropriate if there are no disputed issues of fact. Williams v. Lewis, 319 Pa. Super. 552, 555, 466 A.2d 682, 683 (1983).

Plaintiff argues the discovery rule tolls the statute of limitations in her case. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 454, 622 A.2d 1388, 1391 (1993). The discovery rule applies in only the most limited circumstances, where the plaintiff, despite the exercise of reasonable diligence, was unable to discover his or her injuries or its cause. Id. at 458, 622 A.2d at 1393.

Plaintiff initiated this action in 2004. Up until 2004, plaintiff states that while she recognized a sexual conduct did occur at the hands of Rhodes, her belief was that this was a consensual loving relationship. Plaintiff’s situation is similar to that found in E.J.M. and A.McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128 (1993). In both E.J.M. and A.McD., the plaintiffs conceded that they never repressed their memories of physical acts, but claimed that they did not know the acts were “abuse” and had caused them psychological and emotional harm. See also, Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164, 176 (1997). In both cases, the Superior Court held the plaintiff’s lack of awareness that the defendant’s conduct was wrongful and injurious was irrelevant to the discovery rule analysis. Id. The court also held that once the plaintiff knew what was happening to him or her and who was doing it, the plaintiff had a duty to investigate the matter and institute suit. Id.

Plaintiff argues the discovery rule should apply because, to her, the relationship was a loving and consensual relationship and not an abusive relationship. It was not until 2004 when plaintiff learned about an abuse case, involving Rhodes, taking place in Virginia that she realized what had happened to her was abuse as well. Therefore, according to plaintiff, the statute of limitations began to run in 2004. Plaintiff is incorrect in her thinking.

“The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite reasonable diligence.... The standard of reasonable diligence is objective, not subjective. It is not a standard of reasonable diligence unique to a particular plaintiff, but instead, a standard of reasonable diligence as applied to a ‘reasonable person. ’ ” Dalrymple, 549 Pa. at 224, 701 A.2d at 167. (emphasis added)

Therefore, although plaintiff may have thought the relationship was loving and consensual, the issue before this court was whether a reasonable person in the same situation would have thought the relationship was abusive or at least thought to diligently investigate the matter further. This court must determine the issue based upon the objective standard as applied to a reasonable person in the same or similar circumstances, and not upon a person sharing the same beliefs, understanding, and tendencies unique to the specific plaintiff in this case. Under the objective standard set out in Dalrymple and its progeny, the relationship between plaintiff and Rhodes was abusive from its inception; thus, when plaintiff realized that a sexual contact had occurred at the hands of Rhodes, a reasonable person in her circumstances had a duty to diligently investigate the matter and institute suit within two years from that point in time. While this court is sympathetic towards plaintiff’s situation, this court is bound by clearly stated case precedent in which the standard for “reasonable diligence” is objective. Plaintiff has not met her legal burden of establishing her inability to know of her injury despite reasonable diligence.

Additionally, plaintiff attempts to distinguish her case from the repressed memory in Dalrymple by arguing that she was aware of the touching that occurred, but was unaware the touching was harmful. “[Plaintiff]’s argument is creative. However, creativity cannot replace common sense. Regardless of how [plaintiff] categorizes repressed memory she cannot escape the fact that the original injury was a battery which is commonly defined at law as a harmful or offensive contact.” Dalrymple, 549 Pa. at 229, 701 A.2d at 170. Plaintiff was aware of the batteiy when it occurred. The discovery rule does not apply to toll the statute of limitations. Therefore, defendant is entitled to judgment as a matter of law because the two-year statute of limitations expired before plaintiff initiated the cause of action.

Wherefore, for the above mentioned reason, this court’s order should be affirmed.