author: SOLOMON, J.,

text:
    Renze v. Bush
    C.P. of Fayette County,
    no. 2269 of 1996, G.D.

      Gary F. Lynch, for plaintiff.

      Louise D. Monaghan, for defendant.
    December 21, 1999—
   SOLOMON, J.,

Presently before the court is the motion for partial summary judgment of the defendant, Elda M. Bush, requesting that the plaintiff, David Renze, be bound to a limited tort option for recovery, and that he be precluded from recovering economic damages.

BACKGROUND

This action arises out of an automobile accident which occurred on July 17, 1995. The plaintiff, David Renze, was driving a vehicle owned by his wife, Mary Renze, when it was struck by a vehicle being driven by the defendant, Elda M. Bush. The vehicle the plaintiff was driving was titled and insured in the name of Mary Renze. Mrs. Renze, as the named insured, had selected a limited tort option under her insurance policy with Flagship City Insurance Company. Additionally, the policy included a named driver exclusion endorsement excluding the plaintiff as an insured driver, signed by the plaintiff and Mrs. Renze. The excluded driver provision was the result of the plaintiff not having a valid driver’s license, his license having been suspended in 1978. However, in spite of the endorsement and his not having a valid driver’s license, the plaintiff continued to drive the vehicle.

DISCUSSION

In her motion for partial summary judgment, the defendant contends that the plaintiff is bound by the limited tort selection on Mrs. Renze’s automobile insurance policy with Flagship City. The defendant also asserts that the plaintiff is deemed to have selected the limited tort alternative as an owner and operator of an uninsured vehicle at the time of the accident. Lastly, the defendant argues that the plaintiff, as an owner and operator of an uninsured vehicle, should be precluded from recovering economic damages for lost wages and medical expenses from the defendant. In response, the plaintiff argues that he is entitled to pursue a claim for injuries under a full tort option, and that he is not deemed to have selected the limited tort alternative because he was not an owner of the vehicle nor was the vehicle uninsured.

Initially, we will examine the standard of proof required when passing upon a motion for summary judgment. This court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences and resolving all doubt against the moving party. Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988). Summary judgment may only be invoked if the record shows there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Young v. Eastern Engineering and Elevator Co., 381 Pa. Super. 428, 554 A.2d 77 (1989). Further, the case must be clear and free from doubt before a court should grant summary judgment. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986). With these principles in mind, we shall proceed to determine if the granting of summary judgment is proper in this case.

The defendant first argues that under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1705(b)(2), the plaintiff is bound by the limited tort selection on his wife’s automobile insurance policy, and may not recover full tort benefits. We agree.

“The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy.” 75 Pa.C.S. § 1705(b)(2). An “insured” is defined as any individual residing in the household of the named insured, including a spouse of the named insured. 75 Pa.C.S. § 1705(f). In this case, Mrs. Renze was the named insured who selected the limited tort option on the insurance policy. The plaintiff was the husband of Mrs. Renze and resided with her in the same household. Additionally, the plaintiff was not the owner of any other registered vehicle nor was he a named insured under any motor vehicle insurance policy. These facts lead to the conclusion that the plaintiff was an “insured” person under the MVFRL, and that he is bound by the limited tort option selected by the “named insured.”

The plaintiff argues that he is not an “insured” person under the insurance policy because he was specifically excluded from coverage under the policy with Flagship City. Thus, as he contends, he should be able to pursue the full tort alternative as an uninsured person. However, this exclusion only rendered the plaintiff as uninsured with regard to Flagship City’s responsibility to provide coverage for him if he operated Mrs. Renze’s vehicle. The exclusion did not have any effect on the definition of insured as contained in the MVFRL where the accident is caused by a third party. Therefore, for purposes of the MVFRL, the plaintiff was an insured person, and is bound by the limited tort selection on the Flagship City insurance policy.

In further support of the defendant’s argument that the plaintiff is only entitled to recover under a limited tort option, the defendant asserts that the plaintiff is deemed to have selected the limited tort alternative as an “owner” and operator of an uninsured vehicle pursuant to 75 Pa.C.S. § 1705(a)(5). This section provides that “an owner of a currently registered private passenger motor vehicle who does not have financial responsibility shall be deemed to have chosen the limited tort alternative.” 75 Pa.C.S. § 1705(a)(5). In order to accept this argument, we must determine if the plaintiff was an owner of Mrs. Renze’s vehicle.

This determination begins with the fact that the vehicle was only titled in Mrs. Renze’s name. However, in determining whether an ownership interest exists, Pennsylvania courts look beyond the title and registration to the undisputed facts of the case. Elder v. Nationwide Insurance Company, 410 Pa. Super. 290, 295, 599 A.2d 996, 998 (1991). Title ownership is not the sole factor governing eligibility for insurance benefits. Bethea v. Pennsylvania Financial Responsibility Assigned Claims Plan, 407 Pa. Super. 57, 59-60, 595 A.2d 122, 123-24 (1991). Whether the vehicle constituted marital property is another factor in determining ownership under the MVFRL. Id., 407 Pa. Super. at 59-60, 595 A.2d at 123-24. Other factors considered have been the frequency of the use of the vehicle and whether the spouses resided together. Ibarra v. Prudential Property & Casualty Insurance Co., 402 Pa. Super. 27, 33, 585 A.2d 1119, 1122 (1991).

The case of Allen v. Merriweather presented the issue of whether a husband is entitled to receive first party benefits when he suffers injuries in a motor vehicle accident while operating an uninsured vehicle titled only in his wife’s name. 413 Pa. Super. 410, 605 A.2d 424 (1992). The court found that the husband, who resided with his wife and who used the vehicle, had a cognizable property right in the vehicle as well as factual indicia of ownership. Id., 413 Pa. Super. at 415, 605 A.2d at 426.

In this case, it is clear that the plaintiff had a property right in the vehicle and could be considered an owner for purposes of the MVFRL. The plaintiff resided with his wife at the time of the accident and when she purchased the vehicle. The record also indicates that the plaintiff personally used the vehicle at his discretion and was doing so on the date of the instant accident. By virtue of these factors, it is clear that the plaintiff had a cognizable property interest in the vehicle and can be considered an owner for purposes of the MVFRL, albeit as an uninsured owner. Accordingly, since he did not have financial responsibility, the plaintiff is deemed to have selected the limited tort alternative pursuant to 75 Pa.C.S. § 1705(a)(5).

Lastly, the defendant contends that since the plaintiff was an uninsured owner of a vehicle and is deemed to have chosen the limited tort option, the plaintiff cannot recover economic damages for lost wages and medical expenses from the defendant. “An owner of a currently registered motor vehicle who does not have financial responsibility... cannot recover first party benefits.” 75 Pa.C.S. §1714. The term “first party benefits” is defined as “[mjedical benefits, income loss benefits, accidental death benefits and future benefits.” Id., section 1702.

The Superior Court of Pennsylvania interpreted these statutes and held that an owner and operator of an uninsured vehicle cannot recover these types of economic damages from a third party tort-feasor where he would be ineligible to recover them from his own insurer. McClung v. Breneman, 700 A.2d 495, 497 (Pa. Super. 1997). The McClung court concluded that allowing uninsured motorists to recover in this way would lead to an “absurd result and would be contrary to the purpose of the MVFRL.” Id. at 498.

As discussed above, the plaintiff was an owner and operator of an uninsured vehicle, and is only entitled to seek the limited tort alternative. Therefore, the plaintiff is precluded from seeking first party benefits in the form of economic damages from the defendant.

Based upon the within discussion, it is the opinion of this court that the plaintiff is deemed to have chosen the limited tort option, was an owner and operator of an uninsured vehicle, and is precluded from recovering first party benefits. Thus, the defendant’s motion for partial summary judgment must be granted.

ORDER

And now, December 21, 1999, for the reasons stated in the foregoing opinion, the motion for partial summary judgment filed by the defendant is ordered granted and the plaintiff is bound by the limited tort alternative of the MVFRL and is precluded from recovering economic damages for lost wages and medical expenses from the defendant.


source: Caselaw Access Project

author: ENDY, S.J.,

license: Public Domain

text:
    Diament v. Diament

      C.P. of Chester County,
    no. 1511 N 1996.

      Nancy Akbari, for plaintiff.

      Elizabeth A. Plasser, for defendant.
    February 2, 2000—
   ENDY, S.J.,

The above-referenced matters are before this court on Carol Diament’s motion for reconsideration of our order and opinion dated December 1, 1999. Having reviewed our decision against the record and applicable law, we issue the following final determinations of fact and conclusions of law.

John and Carol Diament separated in August 1993 after 13 years of marriage. They have two children, Evan, bom February 25, 1982, and Elizabeth, bom May 16, 1984, both of whom reside primarily with Mr. Diament. The parties first appeared before this court in 1997. At that time we found Mr. Diament, a builder of high-end custom homes, had a net monthly income of $17,500. We assessed Mrs. Diament, then a corporate catering manager, an earning capacity of $2,000 net per month. Applying a Melzer analysis, we determined that Mrs. Diament did not have sufficient funds to meet her own reasonable needs and therefore ordered Mr. Diament to be fully responsible for the children’s financial support. We awarded Mrs. Diament the sum of $3,600 per month as spousal support. We entered the support order on July 3, 1997.

The parties have not rested since the entry of our July 3, 1997 order. Mr. Diament filed and withdrew at least two petitions for modification in 1997 and 1998. Mrs. Diament is correct in her assertion that Mr. Diament’s February 2, 1998 petition for modification was among those withdrawn. However, on April 9, 1998 Mr. Diament filed a new petition for modification of spousal support in no. 1511 N 1996 and a petition for child support in no. 637 N 1998. Neither of these petitions have been resolved. Additionally, on October 21, 1998 Mr. Diament filed a petition to suspend Mrs. Diament’s health insurance coverage and an emergency petition to suspend spousal support. Mrs. Diament filed a petition to increase spousal support on July 23, 1999. These last three petitions were consolidated by our order dated August 19,1999. This order will dispose of all five outstanding petitions in the above-referenced matters.

In support of their cross-petitions for modification, the parties have alleged substantial and material changes in circumstances. For example, Mr. Diament’s income has increased. Mrs. Diament’s employer laid her off and she has not resumed gainful employment to this date. However, in December 1997, Mrs. Diament received a substantial sum in settlement of a tort action. As a result, her net monthly earning capacity has increased as well.

We are satisfied with and affirm our assessment of Mr. Diament’s net monthly income at $ 18,534. We agree with Mrs. Diament that it was error to deduct the sum of $3,600 per month from Mr. Diament’s income, representing the spousal support he was required to pay pursuant to the July 3, 1997 order under scrutiny.

Mrs. Diament’s net income requires some recalculation. On December 31, 1997, Mrs. Diament received $343,857.33 in settlement of a tort action. In addition, she was awarded $35,000 as special relief in the same action. Finding no Pennsylvania cases providing guidance to a fact-finder as to the proper method of applying lump-sum distributions in the context of an action for child support and separate maintenance incident to divorce, we opted to follow our sister state in Connell v. Connell, 313 N.J. Super. 426, 712 A.2d 1266 (1998), and apply imputed interest earnings on the lump-sum distribution to the parent’s income for support purposes. At an interest rate of 5 percent, Mrs. Diament is correct that the interest on the settlement money amounts to $17,193 rounded to the nearest dollar. Five percent of the lump-sum special relief amounts to $1,750.

Mrs. Diament suggests that we mistakenly “double-dipped” when we charged her with the receipt of $9,350 in dividend and interest income as reported on her 1998 personal tax return. Mrs. Diament claims she testified that this sum represented her actual interest income from the proceeds of her lump-sum tort award. Having reviewed the transcript, we find no such testimony. Mrs. Diament did testify that she placed some of the proceeds from her settlement into a Dean Witter account (see N.T. 233-34, 9/28/99), but she did not testify as to the amount. Excluding her Dean Witter investment income, we find Mrs. Diament maintains interest, dividend, and capital gain income of $5,247.

Lastly, we are satisfied that Mrs. Diament retains an earning capacity of $2,000 net per month, despite her thumb injury. As we pointed out in our December 1,1999 opinion, Mrs. Diament is an innovative and accomplished entrepreneur. She has owned and operated three businesses. She is college-educated and has employment experience in many different fields, from real estate to retail sales. She is a licensed esthetician and is at present in the process of developing two businesses in which she will be a principal participant. We are certain with her talent and experience she can find employment sufficient to net $2,000 per month.

Exclusive of her imputed monthly net earnings, Mrs. Diament has gross annual unearned income in the amount of $24,190. With her itemized deductions we estimate that Mrs. Diament would not pay federal taxes on this sum and would only pay $677 in state taxes. Her net unearned income would be $23,513 annually. When added to her net imputed income, Mrs. Diament has net earnings of $47,513 annually, or $3,959 per month.

Again, because the parties’ aggregate net monthly income exceeds $15,000 per month, the parties’ respective child support obligations must be determined according to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Pa.R.C.P. 1910.16-2(e). The first step under Melzer is to determine the Diament children’s reasonable needs. Two years ago we concluded that the Diament children required an expenditure of $3,500 per month for their reasonable needs. Although neither party has introduced evidence that the children’s needs have increased, Mrs. Diament correctly pointed out the “presumptive minimum” amount of support, the figure representing the least amount of child support a court applying Melzer may award, has increased as a result of the changes to the statewide guidelines. Consequently, we find that the Diament children’s needs can be satisfied with an expenditure of $3,653 per month, the new presumptive minimum for parents at the parties’ income levels.

The next step is to determine each parent’s respective ability to meet the children’s reasonable needs. This requires a determination of each parent’s net income available for support; that is, each parent’s income after deducting his or her own reasonable needs and expenses. Melzer v. Witsberger, 505 Pa. 462, 472, 480 A.2d 991, 996 (1984). We affirm our previous finding that each party may meet his or her own reasonable needs with an expenditure of $4,700 per month. Deducting this figure from Mr. Diament’s net monthly income leaves the sum of $13,834 per month available for support. Mrs. Diament’s income remains insufficient to meet her own reasonable needs; therefore she will have no obligation to contribute to her children’s financial support. Based on our application of Melzer and our finding that Mrs. Diament’s economic situation absolves her of the obligation to contribute financially to her children’s support, Pa.R.C.P. 1910.16-4(e) is not applicable.

Turning to the formula for spousal support which takes into consideration a parent’s obligation to his or her children, Pa.R.C.P. 1910.16-4(a)(IV)( 12)-( 18), we find Mr. Diament is liable to support Mrs. Diament in the amount of $3,277 per month. Mr. Diament will be required to continue to provide Mrs. Diament with health insurance coverage at his sole expense. Based on the foregoing, Mr. Diament’s petition for modification of spousal support, filed April 9,1998, is granted. Mr. Diament’s petition for child support, filed April 9,1998, is denied. Mrs. Diament’s petition for modification of spousal support, filed July 23,1999, is denied. Mr. Diament’s emergency petition to suspend support and petition to suspend health insurance coverage, both of which were filed October 21, 1998, are hereby denied. Mr. Diament will be entitled to a credit against spousal support in the amount of $300 per month until the credit is absorbed in full. This order shall be effective April 9, 1998.

ORDER

And now, February 2, 2000, consistent with the foregoing opinion and based on this court’s determination that Mr. Diament’s monthly net income is $18,534 and Mrs. Diament’s monthly net earning capacity is $3,959, the order, dated December 1, 1999 is vacated and it is hereby ordered and decreed that:

(1) Mr. Diament’s petition for modification, filed April 9, 1998, is granted; John Diament shall be required to pay to the support collection and disbursement unit in Harrisburg, Pennsylvania for transmission to Carol Diament the sum of $3,277 per month as spousal support;

(2) Mr. Diament’s petition for child support, filed April 9, 1998, his petition to suspend health insurance coverage, filed October 21,1998, and his emergency petition to suspend spousal support, filed October 21, 1998 are denied;

(3) Mrs. Diament’s petition for modification, filed July 23, 1999, is denied;

(4) Mr. Diament shall continue to provide health insurance coverage for Mrs. Diament and the children at his sole expense; in addition, Mr. Diament shall be required to pay 100 percent of Mrs. Diament’s and the children’s unreimbursed medical expenses, as that term is defined in Pa.R.C.P. 1910.16-6(c)(l);

(5) Mr. Diament shall be entitled to a credit against spousal support in the amount of $300 per month for payments made since April 9, 1998 in excess of the amount required by this order, until such credit is absorbed in full;

(6) The effective date of this order is April 9, 1998.

IMPORTANT LEGAL NOTICE

Parties must within seven days inform the domestic relations section and the other parties, in writing, of any material change in circumstances relevant to the level of support or the administration of the support order, including, but not limited to, loss or change of income or employment and change of personal address or change of address of any child receiving support. A party who willfully fails to report a material change in circumstances may be adjudged in contempt of court and may be fined or imprisoned.

Pennsylvania law provides that all support orders shall be reviewed at least once every three years if such a review is requested by one of the parties.

A mandatory income attachment will issue unless obligor is not in arrears in payment in an amount equal to or greater than one month’s support obligation and (1) the court finds that there is good cause not to require immediate income withholding; or (2) a written agreement is reached between the parties which provides for an alternate arrangement.

It is further ordered, that upon obligor’s failure to comply with this order, obligor may be arrested and brought before the court for a contempt hearing; obligor’s wages, salary, commissions and/or income may be attached in accordance with law.

      . But see Humphreys v. DeRoss, 737 A.2d 775 (Pa. Super. 1999) (5-4 decision [with sharp dissent] discussing application of lump-sum inheritance in child support action; no divorce pending); Darby v. Darby, 455 Pa. Super. 63, 686 A.2d 1346 (1996) (application of lump-sum award in child support context; no divorce pending); Witherow v. Witherow, 288 Pa. Super. 519, 432 A.2d 634 (1981) (application of lump-sum workers’ compensation award in child support action; no evidence of pending divorce).


author: THOMSON, P.J.,

text:
    Anchel v. Shea

      C.P. of Pike County,
    no. 1005-1999-Civil.

      John J. Schneider, and Rolin R Bissell, for Anchel.

      John H. Klemeyer, and Steven L. Friedman, for Shea and Altec Lansing Inc.
    December 13, 1999—
   THOMSON, P.J.,

This opinion is entered to address the petitions for preliminary injunction filed by both parties in the above-captioned matters. A hearing was held on November 22,1999. The court is acting pursuant to its authority as a court of equity or chancery as related to the supervision and control of corporations. 15 Pa.C.S. §104 and 15 Pa.C.S. §1793.

BACKGROUND

These findings and conclusions are preliminary in nature, are based upon the record before the court, and are mainly limited to the facts necessary for the determination of the present injunctive requests. As a matter of comment, the court is surprised that the corporate documents rely upon the “significant transactions” provisions (located in three locations) for issues related to the executive employment of a controlling shareholder, who would seemingly have wanted to more explicitly protect his position; further, it is astounding that resolutions of import would not be recorded in the form of minutes, and that notice provisions for the holding of meetings where the control of the company is at issue would not be scrupulously followed. These facts, showing a certain disregard to the formalisms of corporate activity, belie a weakness on the part of the request for equitable action. When the issue of irreparable harm to the corporation is raised, the harm really befalls the shareholders ... the vast majority of whom are responsible for the very problems of loose drafting, poor record keeping, and devious tactics which have presented this situation. Were it not for uninvolved shareholders and innocent employees, the court may have seen fit to allow the litigation to go forth without injunctive action while the participants continue to foul their own nests.

All of the arguments presented aside, the court finds the whole idea that a person with the control of a majority of shares cannot maintain a simple board majority which will continue to support him to be quite suspect (except in the case of a for cause removal, which this is not). The only way this would seem possible, would be through a certain amount of either treachery by directors or inattention by the executive which prevents the executive from knowing the true activities and intentions of the board and its members. In other words, even if only a simple majority is required to remove the CEO who controls a share majority, with enough notice, he should be able to elect a majority of directors whose judgment would allow for his retention.

Truly an odd case it is where there is essentially a claim by a majority shareholder of oppression committed by a minority shareholder. Such is a case where the victim may deserve his fate. Anchel may bargain away the contractual safeguards he has in the ownership and control of the company, and on several occasions it would appear that he has — first with the introduction of outside investors in 1994, and later with the renewal and modification of the employment contract. Further, the retaining of Tommyca Freadman as designee where the other party has required his placement on the board seems like a foolish dilution of one’s own position. A little forethought and attention to the contents of the corporate documents should prevent such a case from coming before the court. Inattention can, and maybe should, be taken advantage of. But failure to follow proper notice procedures, which in itself causes another’s inattention, is unfair, and intolerable under the law. Both sides have tried to act in this manner.

The factual circumstances which are at issue involve: the existence and interpretation of certain provisions found in the documents relating to the relationship of the parties (articles of incorporation, bylaws, shareholders agreement, voting trust, employment agreements and collateral writings); and the corporate actions which occurred on the several occasions. Those occasions are: (1) the board meeting of April 27,1999, where Anchel’s employment contract was renegotiated and extended; (2) the October 26, 1999 meeting, where the purported removal of Anchel as CEO, and the rescission of the voting trust occurred; (3) and the meetings of November 12, 15 and 19 where there were various attempts to reconstitute the board and undo the actions of the October meeting.

The injunctive orders/decrees herein are made to preserve the status quo of the corporation during the pendency of the action. The “status quo” in this circumstance is a changeable thing, as the corporation must continue to function, and the shareholders must be able to expect the corporation to act in their best interest. The court cannot see the benefit of having the company and its shareholders left without the ability to act and would therefor provide injunctive measures to maintain status which would have existed had the powers of the corporation, its shareholders and its directors been exercised appropriately. The court is constrained, however, to maintain the status quo as it existed immediately prior to the wrongful conduct. See e.g., Lewis v. City of Harrisburg, 158 Pa. Commw. 318, 631 A.2d 807 (1993) and Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992).

The court has done what it can to avoid giving any advantage to either side merely on the basis of timing. The parties have showed their hands, and there is no way to put the parties back into the tactical positions that existed in the days leading up to the October 26,1999 meeting. The advantages of the differing notice requirements for calling meetings of the board and the shareholders have already been gained or lost. The court is now faced with the prospect of determining what valid actions have happened, and maintaining the integrity of the corporation through the current controversy as though it had been properly represented by its directors and shareholders.

The issue of bond was not addressed other than the general claims by both parties that the corporation will be harmed if the other is in control. The court must set bond in an amount that will approximate the “reasonably foreseeable” damages which could be wrought by the injunction. See Pa.R.C.P. 1531(b), and see Christo v. Tuscany Inc., 368 Pa. Super. 9, 533 A.2d 461 (1987) and Greene County Citizens United v. Greene County Solid Waste Authority, 161 Pa. Commw. 330, 636 A.2d 1278 (1994). Determining the difference in value of the business judgment of the parties is speculative at best. Both parties in their respective petitions have, of course, suggested a nominal bond. Neither has contested the other’s bond recommendation. The issuance of the injunction is for the purpose of maintaining the value of the corporation as a whole, and represents, in part, granting the petitions of both sides, and a protection of both their interests in the value of the corporation. The parties have in fact agreed that it is in the benefit of all parties that the management of the corporation be clarified during the pendency of the action. Wherefore, only nominal bond shall be required.

Lastly, following a lengthy hearing, and considering the many pleadings and briefs filed, the court finds: that irreparable harm will befall the corporation without the issuance of an injunction; that there is no adequate remedy at law; that greater injury will occur if the injunction does not issue; and that public policy should not allow the control and management of the corporation to remain fractured. Wherefore, the court issues the orders that follow.

PRELIMINARY FINDINGS AND CONCLUSIONS

A. Removal of Edward Anchel as President and CEO of Altec Lansing

(1) At the April 27, 1999 meeting of the board of directors, Edward Anchel’s contract as president and CEO was renewed for a period of three years, with an increase in base salary, and with a provision that Anchel may be removed as CEO by a majority vote of the board of directors.

(2) As evidenced by the current factual dispute as to a change in voting requirements, the removal of Anchel as CEO shall be considered a “significant transaction.”

(3) “Significant transactions” require five days prior notice which describes the proposed transaction. P-3 stockholders agreement, article II., section 2.05(b)-(b)(i); P-9 articles of incorporation, article V.(2)(c)(i); P-8 bylaws, article III., section (4)(b) (“notice for meetings at which a significant transaction may be considered shall be provided at least five business days prior to any such meeting ...”).

(4) The proposed removal of Anchel was not noticed five days prior to either the special meeting, or the regular meeting.

(5) The removal of Edward Anchel as CEO which was purportedly carried out at the October 26,1999 meeting of the board of directors was without effect.

(6) The status immediately prior to the challenged conduct found Edward Anchel as president and CEO.

Wherefore, for the purposes of this prehminary injunction, and as of the present date, it is hereby ordered and decreed that Edward Anchel shall be reinstated as president and CEO effective retroactively to October 26,1999 immediately prior to the purported removal.

B. The Election and Designation of Directors and the Actions of the Newly Constituted Board During the Meetings of November 12,15 and 19

(1) The shareholder meeting held November 12,1999 was properly noticed for the purpose of removing Tommyca Freadman as director, and placing David Anchel as Edward Anchel’s designee, and was adjourned for lack of quorum.

(2) The shareholder meeting held November 15,1999 which represented a reconvening of the meeting of November 12, was properly noticed; however, it was not properly convened, as a shareholder who was present at the premises, Shea, was excluded from the meeting.

(3) The board of directors meeting held on November 15,1999 was not properly noticed, as no notice was provided to Tommyca Freadman.

(4) The shareholder meeting held November 19,1999 was properly noticed, and was properly convened with a quorum present. The parties were unable to proceed due to their disagreements. Anchel believed that the actions of removing Freadman and electing David Anchel had been previously accomplished, but nonetheless was seeking ratification. Shea believed that Freadman could not be removed, believed that he held a majority of the shares, and refused to act toward accommodating, acknowledging, or ratifying any of the proposals.

(5) The status immediately preceding the challenged conduct found the board comprised as it was on November 11,1999, with the actions of the board on November 15, 1999 having not occurred.

Wherefore, for the purposes of this preliminary injunction, it is hereby ordered and decreed that the actions taken at the shareholders and the directors meetings of November 15,1999 shall be considered as null and void, and the board shall be comprised as it was on November 11, 1999.

Furthermore, the meeting of November 19 shall be immediately stayed pending further order of the court.

C. The Removal of Tommyca Freadman as Director, and the Dissolution of the Voting Trust

(1) Because Edward Anchel remains CEO, Tommyca Freadman’s either voting to rescind the voting trust agreement, or giving of his proxy to another party, are in contravention of his agreement with Edward Anchel. See D-13, supplemental letter agreement with Tommyca Freadman, May 17, 1994, paragraph 2.

(2) Edward Anchel cannot entirely remove Tommyca Freadman as a director in contravention of the agreements with Tommyca Freadman, Altec Lansing and Soundco, provided that Freadman is still employed with Altec Lansing. See D-12, supplemental letter agreement with Tommyca Freadman, May 17, 1994, paragraph 4; and D-14 supplemental letter agreement with Tommyca Freadman, May 12, 1994, paragraph 2.

(3) Both Freadman and Soundco must support Anchel’s designees to the board of directors. See D-14 supplemental letter agreement with Tommyca Freadman, May 12,1994, paragraph 2; and P-3 stockholders agreement, article II., section 2.01(a), (e) and article V., section 5.05.

(4) Soundco must support the removal of Anchel’s designees from the board of directors. Stockholders agreement, article II., section 2.02.

(5) The status immediately preceding the challenged conduct found the board comprised as it was on November 11, 1999, with the board, on the basis of notice requirements for significant transactions, unable to proceed with the removal of Edward Anchel until after the reconstitution of the board on November 19.

Wherefore, for the purposes of this prehminary injunction, it is hereby ordered and decreed that the actions taken at the shareholders and the directors meetings of November 15,1999, shall be considered as null and void, and the board shall be comprised as it was on November 11, 1999.

Furthermore, it is ordered and decreed that the board is precluded from considering the removal of Edward Anchel as president and CEO, and that all action of the board shall be valid only if approved by at least a five-sevenths vote of the entire board until further order of the court.

In the meantime, the court further orders that until final resolution of this action, all meetings of the directors and shareholders must be noticed in a verifiable format (such as certified mail, by signed acknowledgment or by process server), that the minutes and resolutions of those meetings be transcribed in full by a licensed stenographer and acknowledged by signed verification of the secretary, and that all resolutions be verified by the signatures of those voting on the issue.

These orders shall be effective immediately, and shall remain in effect until further order of the court.

Each party shall post a bond in the amount of $1,000 with the prothonotary.


author: SIMPSON, J.,

text:
    PennDOT v. Hosler

      C.P. of Northampton County,
    no. 1999-C-05464.

      Frank M. O’Neil, for PennDOT.

      Brian M. Monahan, for appellant.
    December 10, 1999—
   SIMPSON, J.,

David Richard Hosier, appellant, appeals from a one-year suspension of his operating privileges entered by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing. After a hearing on September 16, 1999 and submission of argument on October 26,1999, we make the following narrative.

FINDINGS OF FACT

On March 19, 1999, appellant, a licensed Pennsylvania driver, operated a vehicle while under the influence of liquor or drugs in New Jersey contrary to N.J.S.A. 39:4-50(a).

Appellant was convicted of the offense on April 19, 1999.

Both New Jersey and Pennsylvania belong to the driver’s license compact codified at 75 Pa.C.S. §1581.

In compliance with its obligation under article III of the compact, and NJ.S.A. 39:5F-3, the New Jersey Division of Motor Vehicles electronically reported appellant’s DUI conviction to PennDOT. A copy of the report is attached and made a part hereof by reference.

PennDOT, in compliance with article IV(l)(b) of the compact, treated the New Jersey conviction as if the conduct had occurred in Pennsylvania. 75 Pa.C.S. §1532 mandates that PennDOT impose a one-year suspension for violations under 75 Pa.C.S. §3731.

Appellant appeals the suspension.

During the license suspension hearing before this court, the Commonwealth submitted a certified record of the appellant’s driving history, including a record of the appellant’s conviction in New Jersey.

DISCUSSION

1. Validity of Driver’s License Compact

Appellant contends the compact, 75 Pa.C.S. §1581, is invalid.

The Commonwealth Court in Sullivan v. PennDOT, 682 A.2d 5 (Pa. Commw. 1996), appeal granted, 547 Pa. 734, 689 A.2d 237 (1997), aff’d, 550 Pa. 639, 708 A.2d 481 (1998), held the compact invalid for failure to follow required enactment procedures.

The legislature re-enacted the compact into law, effective December 10, 1996. 75 Pa.C.S. §1581.

Because the dates of appellant’s offense (March 19, 1999) and conviction (April 19,1999) are subsequent to the re-enacted compact, the Sullivan ruling does not control PennDOT’s current authority to pursue reciprocal license suspensions.

2. Burden of Proof/Specificity of Report of Conviction

Appellant contends that the report of conviction is not sufficient to support the suspension under the compact.

When an appeal is taken from the suspension of an operator’s license, the Commonwealth has the burden to produce a record of conviction sufficient to support such a suspension. PennDOT v. Tarnopolski, 533 Pa. 549, 552, 626 A.2d 138, 140 (1993); Commonwealth v. King, 9 Pa. Commw. 200, 204, 303 A.2d 848, 849 (1973); Pfeiffer v. PennDOT, 114 Pa. Commw. 390, 392, 539 A.2d 4, 5 (1988). In PennDOT v. Meckler, 160 Pa. Commw. 609, 614, 635 A.2d 718, 721 (1993), the court considered license suspension based on proof of convictions of specified offenses. In Meckler, PennDOT did not introduce a certified record of licensee’s underlying conviction, and, therefore, failed to carry its burden of proof. Id.

Once evidence of a conviction is received, the burden of proceeding shifts to the licensee to rebut or challenge the Commonwealth’s proof. See id. at 612, 635 A.2d at 720. A licensee must submit evidence which challenges the validity of the underlying conviction. See Pfeiffer at 392, 539 A.2d at 5. The argument of counsel that the record might not be valid is insufficient to sustain appellant’s burden. See id. at 392-93, 539 A.2d at 5-6.

A report of conviction under the compact must contain “(1) the identity of the person convicted; (2) a description of the violation including the section of the statute, code or ordinance violated; (3) the identity of the court in which the person was convicted; and (4) an indication of the plea or whether the conviction resulted from a forfeiture of security.” Kiebort v. PennDOT, 719 A.2d 1139, 1143 (Pa. Commw. 1998); Mazurek v. PennDOT, 717 A.2d 23, 25 (Pa. Commw. 1998). The reporting requirements of the compact are mandatory. See id.

Our Commonwealth Court has recently addressed whether a New Jersey report of an underlying DUI conviction supports a one-year suspension in Pennsylvania pursuant to the compact. The court concluded that New Jersey’s report of conviction did not contain the identity of the court in which the person was convicted and an identification of the plea, or whether the conviction resulted from a forfeiture of security. See Kiebort, 719 A.2d at 1143. As a result, the suspension was reversed. Id. at 1143-44. See also, Hook v. PennDOT, 718 A.2d 381, 383 (Pa. Commw. 1998) (New York notice of driving under the influence conviction which contained neither specification of the statute violated nor identification of what plea was entered, or if the conviction resulted from forfeiture of security could not support Pennsylvania suspension under the compact).

Here, the Commonwealth attached a certified copy of the electronic notification supplied to PennDOT from the State of New Jersey. See 75 Pa.C.S. §1550(d). The notification consists of the operator’s name, the violation date, the applicable New Jersey statute, and a description of the offense. However, as in Kiebort, the notice does not contain the identity of the court in which the person was convicted, or an identification of the plea, or whether the conviction resulted from a forfeiture of security. Pursuant to Kiebort, the notice is deficient and the license suspension must be reversed.

However, after Kiebort, the legislature passed an amendment which purported to relax the reporting requirements under the compact. See 75 Pa.C.S. §1584, effective December 21, 1998. This amendment reads in pertinent part:

“The omission from any report received by the department from a party state of any information required by article III of the compact shall not excuse or prevent the department from complying with its duties under articles IV and V of the compact.”

In Commonwealth v. Harrington, 47 Ches. Co. Rep. 142 (June 30, 1999, MacElree, J.), allocatur granted sub nom., Harrington v. Commonwealth, 209 M.D. appeal docket 1999 (Supreme Court). The Chester County court held that this unilateral amendment to the compact is unconstitutional because it violates due process. As a result, the Chester County court concluded that a New Jersey report of an underlying DUI conviction was insufficient to support a Pennsylvania license suspension pursuant to the compact, and the unconstitutional December 21, 1998 amendment did not remedy the situation. The Harrington court reversed the suspension.

We are persuaded that the court’s analysis in Harrington is sound, and we adopt it here. Accordingly, we conclude that the December 21,1998 amendment to the compact at 75 Pa.C.S. §1584 is unconstitutional. As a result, it will not save the license suspension here which otherwise fails to comply with the reporting requirements of the compact.

Scott v. PennDOT, 730 A.2d 539 (Pa. Commw. 1999) and Correll v. PennDOT, 726 A.2d 427 (Pa. Commw. 1999), relied upon by PennDOT, do not compel a different result. Neither of these cases address the constitutionality of the December 21, 1998 amendment to the compact, 75 Pa.C.S. §1584, or compliance with the compact’s reporting requirements. As a result, this cited authority is not controlling.

CONCLUSIONS OF LAW

(1) Commonwealth’s exhibit no. 2, report from New Jersey of appellant’s conviction for driving under the influence, did not contain all the information required by the compact.

(2) The December 21, 1998 amendment to the compact, 75 Pa.C.S. §1584, is unconstitutional in that it denies due process.

Wherefore, we enter the following:

ORDER

And now, December 10, 1999, appellant’s appeal is sustained. Accordingly, the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, shall not suspend for one year the operating privileges of David Richard Hosier as a result of a conviction on April 19,1999 of a New Jersey offense occurring on March 19, 1999.

STATE OF NEW JERSEY DIVISION OF MOTOR VEHICLES OUT OF STATE DRIVER VIOLATIONS REPORT AVF 135R1 04/24/1999 PAGE 35. 62 PENNSYLVANIA

      . Pursuant to the Vehicle Code, a conviction includes the entry of a guilty plea. 75 Pa.C.S. §6501.

      . 75 Pa.C.S. §1581 article IV Effect of conviction
      “(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state in the case of conviction for:...
      “(2) driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug or under the influence of any drug to a degree which renders the driver incapable of safely driving a motor vehicle....
      “(C) If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subdivision (a) of this article, such party state shall construe the denominations and descriptions appearing subdivisions (a) of this article as being applicable to and identifying those offenses or violations of a substantially similar nature and the laws of such a party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this article.”

      . See also, Rouse v. PennDOT, 732 A.2d 35, 37 (Pa. Commw. 1999) (December 21, 1998 amendment, 75 Pa.C.S. §1584, not retroactive, so that New York report of underlying driving while intoxicated conviction which did not comply with the compact could not support Pennsylvania license suspension); McCann v. PennDOT, 728 A.2d 1009, 1011 (Pa. Commw. 1999) (December 21, 1998 amendment, 75 Pa.C.S. §1584, not retroactive, so that Delaware report of underlying driving under the influence conviction which did not contain all the information required by the compact could not support a Pennsylvania license suspension); Sweet v. PennDOT, 724 A.2d 1004, 1005 (Pa. Commw. 1999) (December 21, 1998 amendment, 75 Pa.C.S. §1584, not retroactive, so that New Jersey report of underlying driving under the influence conviction which did not contain all the information required by the compact did not support a Pennsylvania license suspension).


author: FORD, J.,

text:
    In re Kelcie Nicole Kramer
    C.P. of Lehigh County,
    no. 1999-C-1087.

      Joseph P. Maher, for petitioner.

      Daniel J. Sabetti, for respondent.
    October 20, 1999—
   FORD, J.,

ORDER

Now, October 20,1999, following a hearing conducted on July 30, 1999, on the petition for change of name by Shawn P. Zupa, wherein Shawn P. Zupa seeks to change the name of the minor child, Kelcie Nicole Kramer, who is the child of petitioner and Joni L. Kramer, it is hereby ordered that the petition is denied.

       Petitioner, Shawn P. Zupa, seeks a change of name for the minor child, Kelcie Nicole Kramer, from the court of common pleas, pursuant to the authority granted to the court under 54 Pa.C.S. §702. Petitioner and Joni L. Kramer are the biological parents of Kelcie who was bom on August 8, 1996. Ms. Kramer objects to the name change.
      Name change procedural requirements are set forth in 54 Pa.C.S. § 101. As noted by the Pennsylvania Supreme Court in In re Change of Name of Zachary Thomas Andrew Grimes to Zachary Thomas Andrew Grimes-Palaia, 530 Pa. 388, 609 A.2d 158 (1992), the statute provides no guidance for the courts in deciding whether to grant these petitions. The Supreme Court declared the provisions of the statute to be procedural only.
      However, the Supreme Court, in that same case, set forth standards for courts of common pleas to follow in adjudicating name change petitions.
      The Supreme Court first noted that the standard to be applied in acting on a petition is the best interests of the child. The court must use sound discretion in determining what is in the best interests of the child.
      The Supreme Court continued that it is the petitioner who must bear the burden of establishing that a name change would be in the best interests of the child. According to the Supreme Court, specific guidelines are difficult to establish because each case will necessarily be different. Nevertheless, “general considerations should include the natural bonds between parent and child, the social stigma or respect afforded a particular name within the community, and where the child is of sufficient age, whether the child intellectually and rationally understands the significance of changing his or her name.” In re Change of Name of Zachary, 530 Pa. at 394, 609 A.2d at 161.
      We turn to a consideration of what was presented at this hearing. It is our determination, after careful consideration of the evidence, that the petitioner has not met his burden of proving that the name change is in the best interests of the child.
      At the time of the hearing, Kelcie was about a week away from her third birthday.
      The father advanced two themes in arguing in favor of the name change.
      The name change proposed by the father is a compound last name of Zupa-Kramer. Presently, the child has only the same last name as the mother, which is Kramer. The father argues that the addition of his surname, combined with the mother’s surname, will have a tendency to strengthen the bond of the father with the child and foster a more loving relationship between them.
      The second argument, however, is the primary argument made by the father. Most of his testimony addressed this. Very simply, the father argues that the absence of his surname from the child’s name creates confusion in the child. The addition of his surname would assist the child in identifying him as her father. It will eliminate the need for explanations to the child of the relationships of adults to the child. It will foster the child’s calling the father “daddy” or some similar name rather than “daddy Zupa” as the child presently does.

        The mother objects to the name change but her reasons for objection were not articulated well at the hearing. The argument advanced by her attorney is that the creation of a compound last name with the use of a hyphen will have the tendency to cause greater confusion in the child than the present name of Kramer, which is the surname of the mother. Additionally, the mother describes, in her answer to petition for change of name, her relationship with the father of the child as rancorous. This was also apparent at the hearing, not in the sense of misconduct at the hearing but in the sense of how they reacted to each other. For these reasons, she objects to the name change.
      There is no basis for the first reason advanced by the father. There is nothing in the record to indicate that the change of last name, to include the father’s surname, would strengthen the bond of father and child or increase the affection of the child for the father.
      Moreover, the father has not met his burden of proof in the presentation of his second argument. We question the statements of confusion attributed to this 3-year-old child. If we were to accept the father’s testimony in this regard, we would have a child who is preoccupied with the relationship of her biological parents to her and the fashion in which she refers to these people. We find that to be unlikely. The evidence has not convinced us that the name change will eliminate confusion in the child, if any exists.
      The child will easily identify her father and mother by the love and care given by the parents to her, even without the name change. Perhaps that is already done. Despite a less than ideal relationship between the parents for this first part of the child’s life, it strikes us that both parents care deeply about the child, and the name change is not needed to improve the relationship with the child or to foster an appropriate parent/child relationship of each parent with the child.
      From the evidence that we heard, social stigma is not attached to the surnames “Zupa” or “Kramer.” There is no reason to believe, from the record, that the mother’s family and the father’s family and their respective surnames are not well regarded in their respective communities.
      Finally, we have noted the child’s tender age and we are not at all satisfied that she understands the significance of a name change that the father would have us attach to it. In this regard, we have considered an interview with the child but we deem it inappropriate because of her young age, because no party suggested such an interview, and because of a concern that we might be creating an issue for the child (concern over last name) which does not presently exist in her young mind.
      We do not reject the name change petition because of the strength of the mother’s position in this case. As we stated, there is vagueness about the position which she took with the court. We reject the petition because the father has not met the burden of proof which we have described above.


author: THOMSON Jr., P.J.,

text:
    Pike County Children & Youth Services v. Strueli

      C.P. of Pike County,
    nos. 640-1998 and 641-1998 Civil.

      Bruce DeSarro, assistant district attorney, for plaintiff.

      Gregory Chelak, for defendants.
    November 16, 1999—
   THOMSON Jr., P.J.,

Upon consideration of the motion for summary judgment, and hearing held thereon the court finds the following:

(1)All facts have been stipulated and filed with this court on September 23, 1999.

CONCLUSIONS OF LAW

(1) There is a sound policy favoring retroactivity in most cases. Sutliff v. Sutliff, 339 Pa. Super. 523, 556, 489 A.2d 764, 781 (1985); Gerland v. Gerland, 703 A.2d 70 (Pa. Super. 1997).

(2) Consequently, an order denying retroactive support will only be upheld where the trial court articulates a specific and appropriate reason to justify a nonretroactive order. Shovlin v. Shovlin, 318 Pa. Super. 516, 465 A.2d 673 (1983).

(3) Case-by-case approach is warranted in determining the issue of parental liability for expenses incurred by third party in performance of services for minor child. Trosky v. Mann, 398 Pa. Super. 369, 581 A.2d 177 (1990).

(4) Parents are obligated to provide only for the reasonable expenses of raising their children. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

(5) A reasonable expense in raising children is based upon the particular circumstances; the needs, the customs, and the financial status of the parties. Melzer v. Witsberger, supra.

(6) A person’s earning capacity is defined not as an amount which a person could theoretically earn, but as that amount which a person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training. Strawn v. Strawn, 444 Pa. Super. 390, 664 A.2d 129 (1995); Myers v. Myers, 405 Pa. Super. 290, 297, 592 A.2d 339, 342 (1991).

RELEVANT PENNSYLVANIA STATUTES

(1) Pa.R.C.P. 1910.17(a). 42 Pa.C.S.

An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.

(2) 62 P.S. §704.1(a) Payments to Counties for Services to Children

(A), The department shall reimburse county institution districts or their successors for expenditures incurred by them in the performance of their obligation pursuant to this Act of December 6,1972 known as the “Juvenile Act.”

(3) 62 P.S. §704.1(a)(5)

[and the expenses of the appointment of a guardian pendente lite, summons, warrants, notices, subpoenas, travel expenses of witnesses, transportation of the child, and other like expenses incurred in proceedings under the Act, December 6,1972, known as the “Juvenile Act.”]

(4) 62 P.S. §704.1(e)

If, after due notice to the parents or other persons legally obligated to care for and support the child, and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses stated in subsection (a), the court may order them to pay the same and prescribe manner of payment.

DISCUSSION

The first question presented before this court to decide is whether the child support order entered in this matter should be made retroactive only to the date of filing of the support complaints.

The court finds that there is a sound policy favoring retroactivity in most cases. Consequently, an order denying retroactive support will only be upheld where the trial court articulates a specific and appropriate reason to justify a nonretroactive order.

In this case, the court does not find a specific and appropriate reason to justify a nonretroactive order. The Pennsylvania statute specifically provides that, “an order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” Pa.R.C.P. 1910.17(a). The orders contain such provisions specifying what date the order is to begin. The court finds that within the original court order, dated July 13,1998, that the effective date is March 31,1998 for James Strueli. The language of the statute is clear and this court finds no reason to deviate from the statute. Therefore, the retroactive order is to begin on March 31, 1998 for James Strueli. However, the effective date is only appropriate to James Strueli: The other two children, Kimberly and Ryan, were not taken into protective child custody until July 17, 1998. Therefore, the order entered on March 28, 1999 for the remaining two children places the effective date as July 17,1998. The defendants were placed on notice at the time of the court orders that they were to be responsible for payment from those specific dates retroactively, as per the order. Therefore, both support orders shall be effective from the dates as specified in the actual orders dated July 13, 1998 and March 28, 1999.

The second issue presented before the court is whether the court should deny the plaintiff’s request for recoupment of attorney fees incurred in the juvenile proceedings.

A case-by-case approach is warranted in determining the issue of parental liability for expenses incurred by third parties in performance of services for a minor child. As observed by our Supreme Court in Melzer v. Witsberger, supra, “parents are obligated to provide only for the reasonable expenses of raising their children.” What constitutes a reasonable expense in raising children is based upon the need, the customs, and the financial status of the parties.

In the present issue, the cost of attorney’s fees incurred in the juvenile proceedings would be considered a reasonable expense. When examining the relevant Pennsylvania statutes and the applicable state law, the attorney’s fees fall directly into what will be considered a reasonable expense. The parents had due notice because within the order can be found a breakdown of the parents’ financial obligations. The parents received this order and modification on March 28,1999 and were afforded the opportunity to be heard. The court finds that the defendants are financially able to pay all or part of the costs. Furthermore, subsection 704.1(a)(5) holds the parents liable for numerous expenses, including transportation of children and other like expenses incurred in proceedings. When examining the present case, it is clear that both parents were aware of incurring legal fees as part of dependency proceedings for their children. The parents were also aware of their liability to a third party based on the order entered against them on March 28, 1999. Therefore, the parents are liable for attorney’s fees.

The third issue for the court to decide is whether the fees of travel expenses incurred in returning the minor children to the United States should be paid by the defendants.

Using the law as stated in the previous paragraph, the defendants again are liable for the costs of transporting the children back to the United States. Although the order from England states the fees should be assessed to the plaintiff, this does not mean that they are later not recoverable. Again, the best interest and safety of the children are what is at issue. The cost of getting the children back to the United States was reasonable under the circumstances. Parents are liable for the costs of transporting their children. Furthermore, the parents again had notice of their responsibility to pay these fees in the order dated March 28, 1999. It would be reasonable for the parents to believe that they would be responsible for the costs of transporting the children back to the United States. After all, the children would not have even been in England had it not been for the actions of the parents. Therefore, it would be reasonable for a parent to assume that they would be responsible for the costs of returning their child to its original location.

The final issue for the court to decide is whether to defer the imposition of the child support order with regard to the defendant, Lorraine Strueli, until she obtains gainful employment.

A person’s earning capacity is defined “not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training. There are no facts to indicate that Mrs. Strueli cannot realistically obtain any other sort of employment. The fact that she does not receive any more assignments from the Kelly Services, regardless of the reason, does not justify her failure to pay the child support due. Mrs. Strueli has not presented any evidence that she cannot find other employment. Also, Mrs. Strueli has not presented any evidence that she would be unable to find other employment due to a physical, mental or age-related condition.

ORDER

And now, November 16, 1999, upon consideration of plaintiff Pike County Children and Youth Services’ motion for summary judgment, briefs filed thereto, and argument held thereon, plaintiff’s motion for summary judgment is granted as to all parts, except as to the date of retroactive payments of Kimberly and Ryan Straeli, which shall be July 17, 1998. The date of retroactive payments for James Straeli will be March 3, 1998.

      . See 62P.S. §704.1(e).

      . See 62 P.S. §704.1(a)(5).


author: HOOVER, J.,

text:
    Szczypta v. Herco Inc.
    C.P. of Dauphin County,
    no. 979 S 1995.

      Timothy A. Shollenberger, for plaintiff.

      Harvey Freedenburg, for defendant.

      August 31, 1999—
   HOOVER, J.,

This action was commenced by a complaint that was filed on March 10,1995. The complaint alleged that on June 13,1993, the defendant, who was acting as an agent of Herco at the time of the accident, struck the rear of a vehicle driven by the plaintiff. The plaintiff alleged that she received injuries to her right shoulder, that she suffered myofascial pain syndrome and chronic regional pain syndrome. Liability was admitted and the plaintiff’s claim for noneconomic damages was governed by the limited tort option which provides that she had to prove a serious impairment of body function in order to recover these damages. Trial commenced on January 25,1999 and the jury returned a verdict in favor of the plaintiff in the amount of $29,768. The jury concluded that the plaintiff did not suffer a serious impairment of bodily function and the plaintiff’s recovery was limited to economic damages. Post-trial motions were filed on behalf of the plaintiff and this matter is now before the court for disposition.

The plaintiff argues that the court erred in refusing the plaintiff’s request to question the jury regarding their election of tort options under the Pennsylvania Motor Vehicle Financial Responsibility Law. The plaintiff contends that perhaps a juror’s philosophy concerning the propriety of lawsuits can be ascertained by their selection of tort options. For example, a person who selected the limited tort option could believe perhaps that people do not have a right to sue for noneconomic damaged such as pain and suffering. A person who chooses fqll tort could perhaps believe that those who opt not to. pay the extra premium for full tort coverage should not then be able to recover under any circumstances noneconomic losses. The plaintiff wanted to ask the prospective jurors about their personal tort option selection to gain an insight as to their propensity to award a plaintiff who selected the limited tort option damages.

The court did not permit the plaintiff to ask these questions because there is no basis for the plaintiff’s theories concerning the significance of the tort option selection as it relates to the jurors’ propensity to award damages. The plaintiff was not precluded from asking the prospective jurors about their possible bias concerning the recovery of noneconomic damages. We are reminded that “[t]he purpose of voir dire is to ‘ensure the empaneling of a fair and impartial jury [that is] capable of following the [court’s] instructions on the law as provided by the trial court.’ ” See DiFeliceantonio v. Armstrong World Industries, 451 Pa. Super. 533, 536, 680 A.2d 893, 895 (1996). This line of questioning would have added nothing to the quest for a jury that could follow the court’s instructions on the law and render a fair and impartial verdict. Accordingly, the court did not err in failing to permit this line of inquiry.

The plaintiff next contends that the court erred in refusing the plaintiff’s request to ask the prospective jury panel the questions found in Pennsylvania Rule of Civil Procedure 220.1(a)( 1)-(16) with a printed jury questionnaire. The plaintiff indicates that she was prejudiced because the amount of the medical bills that was awarded was exactly 80 percent of the total amount claimed by the plaintiff. The plaintiff argues that this is significant since under the Motor Vehicle Financial Responsibility Act, the amount of the medical bills is reduced to 80 percent and this also is the amount generally paid by Blue Cross/Blue Shield to participating providers. This suggests to the plaintiff that someone on the jury was familiar with insurance practice and that the questions on the questionnaire would have identified prospective jurors with this kind of insurance knowledge.

This argument is without merit as well. The court’s denial of the request to use this questionnaire did, in no way, prohibit the plaintiff from asking the prospective jurors whether they or their family members had any experience with insurance. The plaintiff’s theory that the award of 80 percent of the medical bills meant that a member of the jury had to be familiar with insurance practices is highly speculative.

The plaintiff next contends that the court erred in denying her request that the issues of substantial factor and serious impairment of bodily function be combined. The plaintiff reasoned that since the defendant presented no evidence on the issue of serious impairment of bodily function, the issue was really whether the negligence was a substantial factor in causing her injuries. The plaintiff argues that the defendant’s theory was that there was no injury caused by the accident. The jury found that the negligence caused the plaintiff injury and since the defendant chose not to present any evidence on the serious impairment of bodily function, the plaintiff argues that the court should have directed a verdict in her favor on this issue. The plaintiff argues that a new trial is warranted as a result.

We find that this argument is without merit as well. The plaintiff had the burden of proof to prove two separate things by a preponderance of the evidence: that the negligence was a substantial factor in causing her injuries and that she suffered serious impairment of a bodily function. The defendant did not have the burden of proof on either of these issues and did not have to present any evidence. The jury determined that the negligence was a substantial factor in causing the plaintiff’s injuries but they determined that the plaintiff did not prove by a preponderance of the evidence that she sustained serious impairment of a body function as a result. These were two separate inquiries and we instructed the jury that these were two separate inquiries and that their only connection was that they did not have to answer the question concerning the serious impairment of a body function if they determined that the negligence was not a substantial factor in causing the injuries. There is a difference in the proof required between showing that an injury occurred and showing that the plaintiff suffered a serious injury such that a body function has been seriously impaired. See Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). Therefore, this argument is without merit.

The plaintiff next contends that the court should set aside the verdict because it was so against the weight of the evidence as to shock one’s sense of justice. “A new trial [should] be granted on the grounds that the verdict is against the weight of the evidence ‘only where the verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail____’ ” Watson v. American Home Assurance Company, 454 Pa. Super. 293, 302, 685 A.2d 194, 198 (1996). A new trial is not warranted where the evidence is conflicting and the jury could have decided either way. Id. We find that this argument is without merit. It is within the province of the jury to assess the credibility of witnesses, both lay and expert, and the jury is free to assess whatever weight it chooses to the testimony of the witnesses. There was ample evidence to support the jury’s conclusion that the plaintiff suffered an injury as the result of the defendant’s negligence but that this injury did not result in the serious impairment of a body function. In fact, the plaintiff testified that she was told that her rehabilitation potential was good. (N.T. 82.) The plaintiff in fact cancelled a number of appointments with her physical therapist and she was finally discharged from treatment since she failed to show up for many of her appointments. (N.T. 82-86.) The plaintiff stated that she missed only a few days of work because of the injuries suffered in this accident. (N.T. 74-75.) There was sufficient basis for the jury to have concluded that although she was injured as a result of this accident, these injuries did not result in the serious impairment of body function. Dr. Kothari testified that based on his examination of the plaintiff and on his review of the case, he found no objective evidence to support her subjective complaints. (N.T. 30 Kothari deposition.) He stated that he disagreed with a lot of the diagnoses that she had been given in the past. (N.T. 30 Kothari deposition.) He did not find any evidence to support the diagnoses given to the plaintiff by her various doctors. (N.T. 32 Kothari deposition.) He determined that the plaintiff would not benefit from any further treatment. (N.T. 32 Kothari deposition.) Finally, Dr. Kothari offered the expert opinion that based on a reasonable degree of medical certainty that the plaintiff did not suffer any serious impairment of bodily function. (N.T. 32-33 Kothari deposition.) The plaintiff’s claim that the evidence on the issue of serious impairment of body function was uncontradicted was unfounded in light of Dr. Kothari’s deposition testimony. Therefore, we find that a new trial is not warranted.

Finally, the plaintiff contends that the court erred in refusing to allow the plaintiff to introduce evidence on the difference between the amount billed by plaintiff’s health care providers and the amounts accepted as payment for such services. The plaintiff relies on Moorhead v. Crozer Chester Medical Center, 705 A.2d 452 (Pa. Super. 1997), in support of her argument that she was entitled to plead and prove the total amount billed for medical services rendered as evidence of the fair and reasonable value of the medical care that she received. This argument is without merit. The Crozer Chester decision does not apply to negligence actions involving automobiles. This issue is controlled by 75 Pa.C.S. §1797 which states that:

“The General Assembly finds that the reimbursement allowances applicable in the Commonwealth under the Medicare program are an appropriate basis to calculate payment for treatments, accommodations, products or services for injuries covered by liability or uninsured and underinsured benefits or first party medical benefits insurance.” 75 Pa.C.S. § 1797(a).

Therefore, the reimbursement for medical expenses is limited to the amount actually paid by the applicable insurance and accepted by the provider as payment in full.

Accordingly, we enter the following:

ORDER

And now, August 31,1999, the post-trial motions filed on behalf of the plaintiff are hereby denied.


author: IOLE, Member,

text:
    In re Anonymous No. 1 D.B. 98
    Disciplinary Board Docket no. 1 D.B. 98.
    February 4, 1999—
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

IOLE, Member,

I. HISTORY OF PROCEEDINGS

A petition for discipline was filed by Office of Disciplinary Counsel against respondent, [ ], on January 6, 1998. The petition charged respondent with violations of Rules of Professional Conduct 1.2(a), 1.16(a)(1), and 8.4(c) based on his conduct during his representation of the estate of [A]. Respondent filed an answer to the petition on January 20,1998.

A disciplinary hearing was held on April 20, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire.

The Hearing Committee filed a report on September 21, 1998 and recommended a public censure. No briefs on exceptions were filed by the parties.

This matter was adjudicated by the board at the meeting of November 18, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was born in 1952 and was admitted to practice law in Pennsylvania in 1977. His office is located at [ ]. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) In or around July 1996, [B] contacted respondent for legal advice concerning the handling of the estate of his father, [A].

(4) At the time [B] approached respondent, his father was incapacitated and in a coma, resulting from a very serious motor vehicle accident.

(5) Respondent met with [B] at his law office on July 18, 1996.

(6) During this meeting, respondent advised [B] that an incapacity petition could be filed by the immediate family, which consisted of the three children of the father — [B], [C] and [D]. Respondent explained that this filing would result in the appointment of a guardian for the father.

(7) [B] told respondent that the family wanted to avoid the expense and effort of going to court.

(8) Thereafter, respondent advised [B] that:

(a) a power of attorney could be made if the father could sign it or if someone would sign it on behalf of the father;

(b) he would prepare the power of attorney in favor of [B] if all three children were in agreement.

(9) Respondent knew from [B] that the father was incapacitated and unable to execute legal documents.

(10) Respondent counseled [B] to engage in conduct that respondent knew was improper and potentially fraudulent.

(11) [B] retained respondent to draft a power of attorney.

(12) On July 22,1996, in the presence of [B], respondent drafted a power of attorney.

(13) In respondent’s presence, and with [B’s] sister, [C], in the office, [B] signed his father’s name on the power of attorney.

(14) Respondent notarized [B’s] signature as that of the father despite knowing that it had been executed by [B].

(15) At the July 22, 1996 meeting, [B] and [C] told respondent that their brother, [D], was in agreement with this course of conduct but that he was in the middle of a divorce and did not want to be involved.

(16) Respondent testified he was paid between $85 to $100 for his services. Respondent indicated he received no other compensation, benefits, or legal fees for his services in this matter.

(17) On August 6,1996, [B] informed respondent that he had lost the power of attorney.

(18) On August 6,1996, respondent drafted and notarized another power of attorney signed by [B] in his father’s name.

(19) On November 13, 1996, respondent received a telephone call from [D] who advised him that [B] had left the state and had taken all of the father’s money.

(20) Respondent testified that, between July 1996 and November 1996, he had not heard from either the sister or brother, nor did he receive any complaints from them. Further, respondent testified that [D] was living with [B] at the father’s house in [ ].

(21) Respondent testified he retained an investigator and made efforts to locate [B] or to have the allegedly missing money returned.

(22) Respondent then reported himself through his attorney, [E], Esquire, to the Office of Disciplinary Counsel by letter dated November 29,1996, wherein he fully admitted his misconduct.

(23) Respondent has no prior record of discipline.

(24) Respondent testified that, as part of his investigation, he discovered that [B] held most of the allegedly missing assets in joint name with his father. Therefore, [B] would have been able to take these assets without the power of attorney.

(25) Respondent fully cooperated with the Office of Disciplinary Counsel after reporting himself and sent follow-up letters providing additional information to Assistant Disciplinary Counsel on December 27, 1996 and January 8, 1997.

(26) Respondent testified that, in his many years of practice, he had never done anything like that before and would never do it again. Respondent testified that he tried to help the family through his actions but he fully admitted it was a major mistake of judgment. He admitted that he should have filed for a guardianship.

(27) Respondent has given up his notary license.

(28) Other than respondent’s self-reporting, no complaint has been filed with the Office of Disciplinary Counsel by either the brother, the sister or anyone acting on behalf of the father or any family member.

(29) Respondent expressed sincere and complete remorse for his misconduct.

III. CONCLUSIONS OF LAW

Respondent’s conduct has violated the following Rules of Professional Conduct:

(1) R.P.C. 1.2(d) — A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

(2) R.P.C. 1.16(a)(1) — A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the board upon consideration of a petition for discipline filed against respondent by Office of Disciplinary Counsel on January 6, 1998. The petition charged respondent with violations of Rules of Professional Conduct 1.2(a), 1.16(a)(1), and 8.4(c)

This matter was brought to the attention of the Office of Disciplinary Counsel by respondent, who self-reported his misconduct on November 29, 1996. Respondent admitted the facts of the matter and his violations of the rules.

The facts of record evidence that respondent counseled and assisted his client to engage in conduct which respondent knew to be actually or potentially fraudulent. Respondent’s client, [B], sought advice from respondent relative to his father’s estate. His father was incapacitated and in a coma at the time. Respondent advised [B] that an incapacity petition could be filed by the family for the appointment of a guardian. [B] wanted to avoid the expense of such proceedings, so respondent advised [B] that a power of attorney could be made if someone signed on behalf of the father. Respondent knew the father was incapacitated and unable to execute legal documents. Nevertheless, respondent drafted the power of attorney. In the presence of respondent, [B] signed his father’s name to the document and respondent notarized the signature, despite knowing it was not a true signature.

Respondent has practiced law for more than 20 years and knew that his advice to his client was wrong. Prior cases with similar facts have resulted in public discipline. In two reported cases, attorneys executed false documents. In each case, the attorney received a public censure. In re Anonymous No. 20 D.B. 77, 14 D.&C.3d 239 (1978) (false affidavit of fair market value for real estate transfer); In re Anonymous No. 61 D.B. 82, 29 D.&C.3d 534 (1983) (false signature of township supervisors affixed to purchase agreement).

While the instant case shares similar facts, there are mitigating factors that differentiate this case from the cited cases, and that persuade the board that a public censure is not appropriate discipline in this specific case.

Foremost in importance is the fact that respondent reported his own misconduct to Office of Disciplinary Counsel. It is a rare case in which an attorney self-reports unethical behavior. Nor was this a situation where respondent was prodded into action by a client threatening to make a complaint to the Disciplinary Board. No complaint ever was made by any of the [B] family members. Indeed, there was no proof that [B] actually disappeared with assets.

Other mitigating factors are respondent’s full cooperation with petitioner, his other attempts to rectify any harm engendered by his misconduct, his sincere expression of remorse, his lack of personal gain from his misconduct, and his lack of prior disciplinary record. In the board’s view, these factors mitigate the discipline from a public censure to a private reprimand.

V. DETERMINATION

The Disciplinary Board of the Supreme Court of Pennsylvania determines that the respondent, [ ], shall receive a private reprimand. The expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Elliott did not participate in the November 18, 1998 adjudication.

ORDER

And now, February 4,1999, upon consideration of the report and recommendation of Hearing Committee [ ] filed September 21, 1998; it is hereby ordered that the said [respondent] of [ ] be subjected to a private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in Rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement.

Costs are to be paid by the respondent.


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    Pawlak v. Wharton Township
    C.P. of Fayette County,
    no. 1399 of 1999, G.D.

      James T. Davis, for plaintiff.

      John W. Zotter, for defendant.
    December 9, 1999—
   SOLOMON, J.,

Presently before the court are the preliminary objections of the defendant, Wharton Township, in the nature of a motion to strike a claim in the wrongful death action and a motion to strike a claim in the survival action.

BACKGROUND

This action arises out of the death of Jennifer M. Haines, which occurred on July 11, 1998. The decedent was a passenger in a motor vehicle being driven by defendant, Lucas M. Leonardo, when the vehicle left Wharton Township Road 798 and struck a tree. The decedent was pronounced dead at the scene of the accident. This subsequent lawsuit was filed by the decedent’s mother, Darlene Pawlak, as administratrix of the estate of Jennifer M. Haines, and includes a claim for wrongful death and a survival action. Defendant, Wharton Township, then filed these prehminary objections.

DISCUSSION

The first preliminary objection raised by the defendant asserts that Pennsylvania law does not permit a parent of a decedent to claim damages for loss of comfort, aid, and society in a wrongful death action. We agree.

It has been well settled by Pennsylvania case law that the right to enter a claim for loss of consortium is limited to spouses. Quinn v. Pittsburgh, 243 Pa. 521, 525, 90 A. 353, 354 (1914). Thus, when a parentis injured, a child may not bring a loss of filial consortium claim against the tort-feasor to recover damages for the loss of comfort, aid, and society that the parent would have otherwise provided. Schroeder v. Ear, Nose and Throat Associates of Lehigh Valley Inc., 383 Pa. Super. 440, 444, 557 A.2d 21, 22-23 (1989). Similarly, a parent may not bring a loss of consortium claim for the injury or death of a child. Jackson v. Tastykake Inc., 437 Pa. Super. 34, 39-40, 648 A.2d 1214, 1217 (1994). The rule that loss of consortium claims may only be brought by spouses has remained undisturbed as the law of Pennsylvania. Steiner by Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 517 A.2d 1348 (1986); Brower by Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989), appeal denied, 525 Pa. 604, 575 A.2d 569 (1990).

The plaintiff relies upon a recent opinion handed down by the Honorable R. Stanton Wettick Jr., of the Allegheny County Court of Common Pleas, in which the court permitted a parent to maintain a wrongful death action for the loss of filial consortium of a child. Ehrman v. Mid-American Waste Systems of Pa. Inc., 39 D.&C.4th 235 (Allegheny Cty. 1998). The court therein reasoned that prior case law had considered the issue of loss of consortium under the common law; however, the case then before the court was brought under the Wrongful Death Act, 42 Pa.C.S. §8301(b), which allows recovery for “other damages.” Id. at 239-40. Finding that the appellate courts never addressed the issue of loss of consortium for a parent or child from a statutory perspective, he allowed that a plaintiff could recover under a loss of consortium claim based upon the Wrongful Death Act, 42 Pa.C.S. §8301(b). Id. However, absent appellate authority, or specific legislative authority, we are constrained to not follow the holding in Ehrman.

The Superior Court, in Steiner, supra, succinctly stated the law which controls this issue when it held as follows:

“We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of parental consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered ... by the legislature, we do not recognize a child’s cause of action for loss of parental consortium due to tortious interference of a third party.” Id., 358 Pa. Super. at 522, 517 A.2d at 1357.

The same rule applies equally as well to filial consortium. Therefore, the defendant’s motion to strike the claim for loss of consortium must be granted.

We next address the defendant’s second preliminary objection which contends that Pennsylvania law does not permit, recovery of damages for loss of prospective happiness and enjoyment and pleasures of life in a survival action.

“A survival action ... is brought by the administrator of [a] decedent’s estate in order to recover the loss to the estate of the decedent resulting from [a] tort.” Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994). “The measure of damages awarded in a survival action include the decedent’s pain and suffering, the loss of gross earning power . . ., and the loss of his earning power — less personal maintenance expenses, from the time of death through his estimated working life span.” Id. at 226-27, 648 A.2d at 4. Thus, in a survival action, damages are measured only by the pecuniary loss to the decedent and his estate, not the loss of prospective happiness and enjoyment and pleasures of life. Tulewicz v. SEPTA, 529 Pa. 588, 597, 606 A.2d 427, 431 (1992).

To support her contention, the plaintiff cites, as her only authority, West’s Pennsylvania Forms §11.5. The defendant contends, and we agree, that no other authority exists for such a claim, and that case law is specifically to the contrary. Therefore, since it has been established that damages are only to be pecuniary in nature, no claim may be made for the decedent’s loss of happiness, enjoyment, and pleasures of life.

Lastly, we will address the issue raised by the defendant as to whether this claim for damages is being raised in the survival action, or the wrongful death action. The plaintiff raised this claim, as a general allegation, and did not specify if it was being raised under the survival action or the wrongful death action. Since we have already decided that this claim may not be made in a survival action, we must now determine if it can be made in a wrongful death action.

An “action of wrongful death is not for damages sustained by the decedent but for damages sustained by the plaintiff by reason of the decedent’s death.” Dennick v. Scheiwer, 381 Pa. 200, 201, 113 A.2d 318, 319 (1955). The purpose of the Wrongful Death Act is to compensate certain enumerated relatives of the deceased for the pecuniary loss suffered as a result of the death of the decedent. Hodge v. Loveland, 456 Pa. Super. 188, 193, 690 A.2d 243, 246 (1997), reargument denied.

Thus, under a wrongful death action, as with a survival action, the loss is limited to pecuniary loss, and is for damages sustained by relatives of the deceased. Therefore, the claim for damages suffered by the decedent for loss of happiness, enjoyment, and pleasures of life is not appropriate since the damages are neither pecuniary nor sustained by relatives of the decedent. Thus, the defendant’s motion to strike the claim for damages for loss of prospective happiness, enjoyment, and pleasures of life must be granted.

ORDER

And now, December 9,1999, it is ordered and decreed that the motion of the defendant, Wharton Township, to strike claim for prospective happiness, enjoyment and pleasures of decedent’s life, is hereby granted.

It is further ordered and decreed that the motion of the defendant, Wharton Township, to strike claims for comfort, aid and society, is also hereby granted.