author: MIRARCHI, Jr., ].,

text:
    Hatfield v. Continental Imports Inc.
    November 30, 1989

      James Womer, for plaintiffs.

      Bruce McCullough, for defendant.

      Raymond Quaglia, for additional defendant.
   MIRARCHI, Jr., ].,

This case involves a personal injury claim whereby plaintiffs, Agnes and Herbert Hatfield, in their complaint, set forth causes of action in negligence and products liability under section 402A (of the Restatement of Torts) against Continental Imports Inc., and Marvin Gross and Leonard Gross individually and trading as Warehouse Imports (hereinafter called Continental and Gross). Counsel for original defendants, Continental and Gross, filed a writ to join as an additional defendant Talin Industria Arredamenti, an Italian manufacturer.

Trial was scheduled for October 25, 1988, and the day before trial was to begin, the additional defendant, Talin, presented a motion in limine to this court, seeking permission to introduce into evidence a settlement agreement and release dated June 20, 1983, between Agnes and Herbert Hatfield, plaintiffs, and Continental and Gross, defendants. After oral argument Talin’s motion was granted.

In response to the numerous objections to that ruling this court granted counsel for Continental and Gross 24 hours to file written responses to additional defendant’s motion in limine.

On October 27, 1988, counsel for original defendants filed a memorandum in opposition to the motion in limine. Additionally, plaintiffs filed a motion for reconsideration of the order of October 25, 1988. At the October 27, 1988 session, counsel met in chambers whereby the undersigned orally denied plaintiffs’ motion for reconsideration and reaffirmed the order of October 25, 1988.

On December 7, 1988, the court confirmed the orders entered in court on October 25, 1988 and October 27, 1988.

From this order plaintiffs and original defendants filed a petition for permission to appeal to the Superior Court of Pennsylvania under 42 Pa.C.S. § 702(b), which this court granted.

The issue presently before this court is the admissibility of the agreement and release executed on June 20, 1983, by plaintiffs and original defendants, Continental and Gross. Plaintiffs, Agnes and Herbert Hatfield, initiated this suit on February 6,1980, to recover monetary damages for personal injuries Mrs. Hatfield sustained on April 15, 1978. On that date, plaintiff alleged she incurred serious permanent injuries to her back, when the chair she was sitting in suddenly collapsed.

The chair involved had been purchased from original defendants, Continental and Gross. On February 26, 1980, defendants joined the manufacturer, Talin, as additional defendant.

Prior to trial, plaintiffs and the original defendants entered into a structured settlement. This settlement agreement, executed on June 20, 1983, released the original defendants from liability, in return for $200,000 paid to plaintiffs.

Under the terms of the agreement plaintiffs were required to pursue an action against additional defendant, Talin. Part one of the settlement agreement provided:

“In addition to the foregoing, the plaintiffs also agree to pursue an action against Talin Industria Arredamenti. If the action against Talin Industria Arredamenti is successful the plaintiffs will return $50,000 to releasees, free and clear of all fees and expenses except that releasors agree to pay 50 percent of the expenses of the litigation against Talin Industria Arredamenti, incurred after the signing of this release. If releasees are able to settle their claim against Talin prior to trial, they will return to the releasees $25,000 free and clear of all fees and expenses.”

A day before the case was called for trial, Talin filed a motion in limine to have this settlement agreement and release admitted into evidence.

Talin’s primary contention is that this settlement agreement between plaintiff and defendants Continental and Gross constitutes a “Mary Carter” agreement and should be admitted into evidence at trial.

The underlying premise is that the agreement constitutes a “Mary Carter” agreement. A Mary Garter agreement is similar to a general release. The term arose from the agreement made popular by the case of Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. App. 1967). It is an agreement between plaintiff and some, but less than all defendants, whereby the parties place limitations on the financial responsibility of the agreeing defendants, the amount of which is variable and usually in some inverse ratio to the amount of recovery which plaintiff is able to make against the non-agreeing defendant or defendants. Maule Industries Inc. v. Roundtree, 264 So.2d 445 (Fla. 1972), rev’d. 284 So.2d 389 (Fla. 1973).

The opinion issued in Ward v. Ochoa, 284 So. 2d 285 (Fla. 1973) said that if the agreement shows that the signing defendant will have his maximum liability reduced by increasing the liability of one or more co-defendants, such agreement should be admitted into evidence.

These agreements tend to encourage collusion which could result in a denial of a fair trial to non-agreeing defendants.

“Secrecy is the essence of such an agreement because the court or jury as trier of the fact, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendant, ...” Ward v. Ochoa, supra, at 387.

Although no Pennsylvania court has addressed admissibility of Mary Carter agreements, other jurisdictions concur in the notion that such agreements must be admitted into evidence. Ward v. Ochoa, supra. “All of the authority, direct authority on Mary Carter releases comes from sister jurisdictions.” (N.T. October 27, 1988, at 5.)

In reliance on the Mary Carter case of 1967, and the Florida Supreme Court case reversing it, in the matter of Ward v. Ochoa, supra, this court finds the more recent Florida law most persuasive.

Plaintiffs and settling defendants have a common interest in seeing that Talin, the non-settling defendant, is found liable at trial. Such an agreement undermines the adversary nature and integrity of the proceedings against defendant Talin. G.M. Corp. v. Simmons, 558 S.W.2d 855 (Texas 1977).

“It would be reversible error not to tell the jury of this agreement. This agreement is so far outside the bounds of our sense of fairness, that actually people are conspiring against the additional defendant, and we’re keeping this from the jury.” (N.T. October 25, 1988, at 11-2.)

Defendant, Talin, strongly supports the view stated in Mayle Industries Inc. v. Roundtree, supra, that such agreements tend to encourage collusion and dishonest practices.

The settlement agreement involved here was unduly prejudicial and biased against.Talin.

Plaintiffs in consideration of the settlement and the monies received must pursue their action against defendant. Defendants Continental and Gross have a distinct pecuniary interest in having the jury render a verdict against Talin, additional defendant.

For this reason, the release must be admitted into evidence and permitted to be shown to the jury. Plaintiffs maintain that 42 Pa.C.S. §6141(c) bars the use of settlement agreements between plaintiffs and defendants for any use at trial. 42 Pa.C.S. §6141(c) provides:

“Admissibility in evidence — Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement. . . shall not be admissible in evidence on the trial of any matter.”

In Wilkerson v. Allied Van Lines Inc., 360 Pa. Super. 523, 521 A.2d 25 (1987), appeal granted, 517 Pa. 594, 535 A.2d 81 (1987), the court interpreted the statute to ban the introduction into evidence of a pretrial settlement agreement to attack the credibility of the witnesses. However, this case did not require plaintiffs to pursue their action against remaining defendant(s).

According to plaintiffs, the settlement agreement does not comport with the elements of a “Mary Carter” agreement. They contend that the agreement was fully and properly disclosed to the court.

This court does not overlook the rule that settlement agreements are generally not admissible in evidence. See Weingrad v. Philadelphia Electric Co., 324 Pa. Super. 16, 471 A.2d 100 (1984). However, contrary to plaintiffs’ assertions, 42 Pa.C.S. §6141(c) does not govern because this settlement agreement did constitute a “Mary Carter” agreement.

Footnote 3 in Weingrad, supra states:

“[T]he public policy of promoting settlements would not be frustrated by a law which permits the admission of evidence of settlements when offered to prove bias or prejudice of a witness.”

In the interests of fairness and justice, to ensure that the jury fairly weighs the credibility of the witnesses, and properly determines liability, the jury must be apprised of the settlement agreement.

Therefore, it would not constitute prejudicial error to admit this agreement into evidence at trial. In fact, in the opinion of this court, it would be error for this court to deny the jury of knowing all the facts and weighing the motives and financial interests of the respective parties.

The non-disclosure of releases in cases concerns itself with final settlement. This is not a final settlement; original defendants have a specific pecuniary interest in the outcome of this case which remains open until the “final conclusion” of litigation.

In summary, this court’s order granting additional defendant, Talin’s, motion in limine seeking introduction into evidence of the settlement agreement and release was proper.


source: Caselaw Access Project

author: CAESAR, J.,

license: Public Domain

text:
    Coates v. Ontario Corp. Inc.
    October 25, 1989

      Aron Arbittier, for plaintiff.

      Joseph Goldberg, for defendant.

      Joel P. Fishbein, for defendant.
   CAESAR, J.,

On April 16, 1984, plaintiff, Jennell Coates, sustained personal injuries as a result of a fall on premises owned by defendant, Ontario Corporation Inc. and leased to plaintiff’s employer, Sterling Dye Corporation. It is agreed by the parties that plaintiff was acting within the course and scope of her employment when she was injured. Her injury was caused by an allegedly defective condition of the floor of her work premises.

Plaintiff brought suit against Ontario, who then joined Sterling as an additional defendant, alleging that Sterling was negligent and that Sterling was liable over to Ontario for contractual indemnity pursuant to the lease, which included an indemnity clause.

As the case approached trial, insurance carriers for Ontario and Sterling each contributed the sum of $50,000 to an agreed-upon settlement of plaintiffs claim. Payment was made with the understanding that only one defendant is liable for the full amount of $100,000 and that, depending upon this court’s ruling as to the above-mentioned indemnity clause, the party found liable would reimburse the other defendant.

Evidence was submitted in the form of briefs. Both defendants agreed that this court should assume that both Ontario and Sterling were negligent.

Defendant Ontario contended that the indemnification clause entitles it to be indemnified by Sterling for the $50,000. Sterling, on the other hand, contended that the indemnification clause does not provide for indemnifying Ontario as to a claim made by an employee of Sterling which is covered by the Pennsylvania Workmen’s Compensation Act.

Defendant Ontario has filed an appeal to the Superior Court of Pennsylvania from this court’s July 3, 1989 order, which denied Ontario’s motion for summary judgment and ordered judgment in favor of Sterling.

Ordinarily, the joinder of an employer, such as Sterling, as an additional defendant in an action brought by an employee against a third party, such as Ontario, is barred by section 303(b) of The Pennsylvania Workmen’s Compensation Act (77 P.S. §481). Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977). Section 303 of the act does not, however, bar an action by the third party against the employer if “liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.” 77 P.S. §481(b). Therefore, it is clear that although an employer is generally immune from suit for injuries to its employees, that immunity can be waived by an express contractual provision for indemnity. Gerard v. Penn Valley Constructors Inc., 343 Pa. Super. 425, 495 A.2d 210 (1985). Further, an asserted indemnification provision must.be carefully scrutinized and strictly construed. Id. A contract will not be construed to indemnify a party for his or her own negligence unless the contractual language and surrounding circumstances clearly indicate an intention of the parties to do so. Potts v. Dow Chemical Co., 272 Pa. Super. 323, 415 A.2d 1220 (1979).

As it is undisputed that Sterling was the employer of plaintiff at the time of the accident, Sterling can only be fiable to Ontario if Sterling expressly obligated itself by a specific contract of indemnity in its lease agreement with Ontario. Defendant, Ontario, argues that the provision in section 11(a) of the lease agreement is such an express contractual undertaking to indemnify Ontario. It provides:

“Lessee (Sterling) also agrees to be responsible for and to relieve and hereby relieves lessor (Ontario) from all liability by reason of any damage or any injury to any person or thing which may arise from or be due to the use, misuse, or abuse of all or any of the elevators, hatches, openings, stairways, hallways, of any kind whatsoever, which may exist or hereafter be erected or constructed on the said premises, or from any kind of injury which may arise from any other cause whatsoever on the said premises of the budding of which the demised premises is a part, whether such damage, injury, use, misuse or abuse be caused by or result from the negligence of lessor (Ontario), his servants or agents or any other person or persons whatsoever.”

The lease in question was a standard “Uniform Lease 50,” prepared by the landlord, Ontario. This landlord now seeks indemnification for its own negligence. “Contracts against liability for negligence are not favored by the law . . . such contracts are to be construed strictly, with every intendment against the party seeking their protection.” Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963). The burden of proving the applicability of an indemnification provision falls on the party seeking such relief, and the burden is even greater where the party seeking relief drafted the agreement. Gimbel Bros. Inc. v. William H. Vanderkerchen Inc., 468 F.2d 597 (3d Cir. 1972).

Strict scrutiny and strict construction led this court to conclude that when Sterling signed this standard form lease agreement it did not intend to waive its statutory protection and assume unlimited liability for damages arising from harm suffered by its employees. The lease provision in the present case was not an express undertaking by Sterling to indemnify Ontario for injuries suffered by Sterling’s employees. Therefore, we denied Ontario’s motion for summary judgment and entered judgment in favor of Sterling against Ontario.


author: CORSO, J.,

text:
    Holmes v. Becker
    September 15, 1989

      Gerald Dugan, for plaintiffs.

      William H. Kinkead III, for defendant Andrew Becker.

      James F. Chelius Jr., for defendant William Kauff-man.

      Harry Mahoney, for defendant Montgomery Township.

      Theodore Chylack, for defendant PennDOT.
   CORSO, J.,

Defendant, Montgomery Township, filed a motion for summary judgment pursuant to Pa.R.C.P. 1035. Plaintiffs instituted this action against multiple defendants including the township for alleged wrongful conduct and negligence in the maintenance and control of state highway Route 202. More specifically, plaintiffs assert that Montgomery Township should have corrected a dangerous condition created by a sight clearance problem in the vicinity of the intersection of Gray’s Lane and Route 202.

The premise of the township’s motion is that the accident occurred on state highway Route 202, which has never been owned, possessed, maintained and/or controlled by the township. Since the township has no duty to control or maintain this state highway, the township is not liable.

Montgomery Township is a “local agency” as defined in 42 Pa.C.S. §8501 and therefore the township is immune from liability unless the alleged act falls within the exceptions set forth in section 8542(b). Considering the possibly applicable subsections, the township does not own state highway Route 202 therefore section 8542(b)(6)(i) is not applicable. Section 8542(b)(6)(ii) is only applicable if the township, as a local agency, had contracted with the commonwealth to maintain or repair Route 202. Defendant commonwealth admits that no such contract exists between the township and the commonwealth. Since the prerequisites to establish an exception to the township’s immunity are not met, Montgomery Township is immune from liability in this case.

In opposition to the township’s motion for summary judgment, defendant, the commonwealth, has asserted that the township has a statutorily imposed duty pursuant to the following: Second Class Township Code at 53 P.S. §66125, “Acquisition of views”; State Highway Laws, 36 P.S. §2662, “Shrubs or trees on highways on improved land”; and under the Motor Vehicle Code, 75 Pa.C.S. §6109 “Specific powers of department and local authorities.” The statutes on which the commonwealth relies do not state affirmative duties, but represent grants of discretionary authority and powers. The courts have refused to impose liability on a township for failure to correct a hazardous condition of a state road where the exclusive responsibility fox such maintenance and repair rests with the commonwealth. Calvanese v. Leist, 70 Pa. Commw. 225, 452 A.2d 1127 (1982). Additionally, even if a township attempts to use its discretionary authority to correct a dangerous situation on a state road, such does not create a duty. Swank v. Bensalem Township, 68 Pa. Commw. 520, 449 A.2d 837 (1982). (Township applied for permit to erect flashing light. Plaintiff claimed that township failed to erect lights within a reasonable time period.)

The commonwealth maintains that the Supreme Court’s decision in Mindala v. American Motors Corp., 518 Pa. 350, 543 A.2d 520 (1988) establishes a duty on the township under section 6109 of the Motor Vehicle Code. In that case the court found that section 6019 did not necessarily create a duty to act but that the particular facts did. Duty is a question of law, and the court applied the following criteria to determine the existence of a duty: a special relationship between police and plaintiff, notice, ability to correct the danger and the availability of resources to do so. The court held that the failure of the police chief to replace a missing stop sign at a dangerous intersection with the township’s available portable sign was negligent. The urgency and ability to correct the hazardous condition in Mindala, and the ability of the township to correct the condition in this case are quite different and clearly distinguishable. The corrective actions needed to alleviate the “dangerous condition” on the state highway in this case were not readily available, and would have severely drained police manpower and township resources. As such, it is the opinion of this court that the township had no duty to correct the condition on the state highway.

Since the township is immune from liability, and no duty to correct existed, summary judgment was properly entered in favor of the township and should be affirmed on appeal.


author: GOODHEART, J.,

text:
    Cheronis v. SEPTA
    June 8, 1989

      S.G. Litvin, for plaintiff.

      Armando Pandóla, for defendant City of Philadelphia.

      Joseph R. Livesey, for defendant SEPTA.
   GOODHEART, J.,

This is the last vestige of litigation arising from a grievously unfortunate incident that occurred on March 3, 1980, in the nether reaches of Philadelphia’s Suburban Station. On that date, plaintiffs incompetent, Mary Brown was violently assaulted, raped, and left for dead in the catacomb-like tunnels beneath the station platforms.

Suit was instituted in August 1980, against SEPTA and Conrail, which at the time operated the local commuter trains under contract from SEPTA. In December 1980, SEPTA and Conrail filed a third-party complaint against the City of Philadelphia, the Commonwealth of Pennsylvania, Wendell Long, and the members of the Pennsylvania Board of Probation and Parole, claiming that these additional defendants, were solely, jointly or severally liable to plaintiff, or, alternatively, liable over to them (SEPTA and Conrail) for any recovery by plaintiff.

In the fall of 1981, plaintiff reached a settlement with the original defendants, and plaintiff is no longer an active party to this matter.

On December 4, 1981, this court granted the commonwealth and the Parole Board members judgment on the pleadings, on the basis that they were immune from this suit. This order was affirmed. The sole remaining issue in this case is whether or not the City of Philadelphia is liable over to SEPTA, in whole or in part, pursuant to a contract under which the city provided police services to SEPTA for an agreed-upon sum per year.

This question, was framed as a motion for summary judgment by the City of Philadelphia. Briefs were submitted, and oral argument was held, after which this court granted the city’s motion, dismissing all claims against the city with prejudice.

It is conceded by counsel that the city is immune from tort liability in the instant suit. The Municipal Subdivision Tort Claims Act (42 Pa.C.S. §8541 et seq.) bars tort recovery against defendants such as the city unless the claim falls within one of several exceptions contained in the act. The only exception that could possibly apply is the “real-estate” exception (42 Pa.C.S. §8542(b)(3)). Under Mascaro v. Youth Study Center, 89 Pa. Commw. 388, 492 A.2d 786 (1985), the city cannot be held liable under the real-estate exception for criminal acts of third parties committed on city property.

Therefore, the only issue before this court is whether the city can be liable under a written contract in a situation where it is immune from recovery in tort. This question was answered in the affirmative in Ludwin v. Port Authority Transit Corporation, 102 Pa. Commw. 36, 517 A.2d 1006 (1986). In Ludwin, the plaintiff brought suit against PATCO, SEPTA and the City of Philadelphia, for injuries suffered as the result of a criminal assault in the subway concourse at Eighth and Market Streets in Philadelphia. The city pleaded immunity and moved for judgment on the pleadings. The trial court granted the city’s motion and PATCO appealed.

Commonwealth Court (per MacPhail, J.) reversed and remanded, holding that the city could waive its immunity through the terms of a contract it signed (here, a lease agreement), and that it apparently had done so. Commonwealth Court cited the following language from the lease agreement:

“10.B. Unless the following shall be proximately caused by the negligence of . PATCO’s employees, agents, operators, lessees or concessionaires, city agrees to defend, indemnify, and hold PATCO harmless from ... all claims, actions, suits, judgments, liability, damages, losses and expenses . . . with respect to any injury or death of any person . . . resulting: . . .
“(4) from any cause or causes growing out of crime, riot, disorder, fire, flood, or bursting or leaking water mains, gas mains or sewers.” 102 Pa. Commw. at 41-2, 517 A.2d at 1009. (emphasis supplied)

By way of contrast, the relevant language in SEPTA’S contract with the city is much more limited in scope:

“(9) The city agrees to indemnify and hold harmless SEPTA, its officers, agents or employees against liability for bodily injury or property damage arising out of any act or omission by the city or any of its officers, agents, employees utilized by the city to perform its obligations under this agreement.” Agreement in record at 3-4. (emphasis supplied)

Unlike the agreement in Ludwin, this contract speaks only of indemnification in cases where the city’s employees (that is, the police officers provided pursuant to the contract) actually cause an injury, either through action, or through inaction.

Mary Brown’s injuries were the result of an attack by a third party, clearly not an “act” of a city employee as contemplated by the contract. On the other hand, the failure of the city police officers to prevent this horrible incident cannot be characterized as an “omission” within the terms of this agreement.

A city’s duty to provide police protection is a public one. Absent a “special relationship” between an individual and the city, there can be no liability in tort for a city’s alleged failure to prevent a specific assault. The mere fact that the city might have been aware that a particular location was dangerous but did nothing about it is insufficient to establish this “special relationship,” and the city cannot be held liable. Chapman v. City of Philadelphia, SEPTA, and Conrail, 290 Pa. Super. 281, 285, 434 A.2d 753, 754-5 (1981).

A “special relationship” exists only where an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide him adequate protection. Chapman, supra. In the instant case, plaintiff was subject only to the same hazards that any other commuter faced. This is not a special relationship, and creates no special duty of protection. Accordingly, the failure of the city to prevent this attack is not a breach of its duty of care to Mary Brown, and, therefore, we cannot find that Mary Brown’s injuries were caused by an “omission” on the part of the city.

It is for the foregoing reasons that this court granted the City of Philadelphia summary judgment, by its order dated March 14, 1989.

      . A pseudonym.

      . The local transportation authority.

      . The alleged perpetrator of this attack.

      . Fred W. Jacobs; Paul Descano, John Jefferson, Verdell Dean and William Forbes.

      . Followed by a procedural morass not here relevant.

      . Cheronis v. SEPTA, 114 Pa. Commw. 412, 539 A.2d 15 (1988).

      . On March 13, 1989.

      . March 14, 1989.

      . PATCO cross-claimed against the city, on the basis of an agreement between them.


author: GARB, P.].,

text:
    In the Interest of Guralnick
    February 6, 1990

      Diane E. Gibbons and Lawrence M. Cherba, district attorneys, for the commonwealth.

      Mark S. Guralnick, in properia persona.
   GARB, P.].,

Following a hearing, Mark S. Guralnick, Esq., was found in contempt of court. A fine of $1,000 was imposed. He has appealed that finding of contempt to the Superior Court.

On October 20, 1989, Guralnick was appointed, by order of this court, to represent Taylor B., a juvenile. That order was transmitted to Guralnick, either on that day or the following day, by first class mail, postage pre-paid to his registered office in this county. It was never returned undelivered.

The juvenile hearing was fixed for Monday, November 6, 1989. The hearing was to be a joint one with the juvenile and another juvenile likewise charged with acts of delinquency arising out of the same occurrence. The public defender was representing the other juvenile. Due notice of the hearing was given to Guralnick.

On the afternoon of Friday, November 3, 1989, Guralnick’s paralegal called the juvenile probation officer requesting a continuance. She was advised by that officer that a continuance could not be agreed upon because of the late time of the request. Guralnick’s paralegal and Guralnick then spoke with the juvenile probation officer’s supervisor, and they received the same answer. Guralnick spoke to the chief deputy district attorney who likewise declined to agree to a continuance. Guralnick’s paralegal then called the chambers of the undersigned and was advised by our secretary that a continuance would not be granted. In the course of the conversation with our secretary, Guralnick’s paralegal advised that he would not appear on Monday because he was not prepared for the hearing and had not met his client, because of another hearing scheduled elsewhere, and finally, because he had to study for his Ph.D. examinations.

On Monday, November 6, 1989, true to his word, Guralnick did not appear. His client and the client’s parents were present, as were the other juvenile and his parents. The public defender was present, and the witnesses were present. Due to the fact that Guralnick had failed to appear, the matter was continued. We thereupon entered an order vacating the appointment of Guralnick and appointing another attorney.

On November 8, 1989, we entered a rule upon Guralnick to show cause why he should not be held in contempt of court for his failure to appear on November 6, 1989, as directed. That rule was made returnable on November 17, 1989 at 2 p.m. in courtroom no. 2 of the courthouse. That rule was duly personally served upon Guralnick.

The hearing was held on November 17, 1989. Guralnick presented no testimony. However, evidence was presented by the commonwealth from C. Theodore Fritsch, Esq., chief deputy district attorney; Jack Sillery, juvenile probation officer; Michael Clisham, chief deputy juvenile probation officer; and Anne M. Rogers, judicial secretary. Each of these witnesses testified to the facts heretofore recited. At the close of said hearing, the finding of contempt was made and the fine imposed. -

With respect to contempt of court, as most recently amended in the Judicial Code by the Act of December 20, 1982, P.L. 1409, 326, Article II, section 201, 42 Pa.C.S. §4132, the power of the several courts of this commonwealth to issue attachments and to impose summary punishments for contempt of court shall be restricted to the following cases:

“(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.”

A citation and finding of contempt for an attorney’s willful and deliberate failure to appear at a court hearing is appropriate under this Act of Assembly. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980).

It is abundantly clear, however, that before a finding of contempt can be made where an attorney fails to appear as directed for a court proceeding, there must be a showing that his failure was intentional. Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977); In the Matter of Ring, 492 Pa. 407, 424 A.2d 1255 (1980); and In rejones, 307 Pa. Super. 570, 453 A.2 1033 (1982) (attorney late for court proceeding because he overslept).

It is abundantly clear that Guralnick failed to appear consciously, intentionally and willfully. He advised various employees of this court that he intended not to appear for a variety of reasons. He knew that there had been no agreement for a continuance and that none had been granted by the court. Notwithstanding, he intentionally failed to appear and did not deny that at the hearing ultimately held on November 17, 1989. In this respect, this case is indistinguishable from Commonwealth v. Marcone, supra, and is controlled by it. The Supreme Court therein held that where it had been established that the appellant had deliberately neglected a scheduled court appearance of which he had sufficient notice, without a legitimate excuse, he was in violation of the predecessor to this same section of the Act of Assembly establishing con-tempts of court. No excuse was entered at our hearing. In fact, although afforded the opportunity to do so, Guralnick offered no evidence. He clearly did not establish that his presence was required or that he was, in fact, appearing in some other court.

We have no difficulty in finding the requisite intent in this case. However, it is worthy of note that our appellate courts have now established that direct intent is not necessary where a reckless disregard for the directions of the court can be established. See Medve v. Walakovits, 305 Pa. Super. 75, 451 A.2d 249 (1982), and Appeal of Arthur Henry James, 323 Pa. Super. 149, 470 A.2d 174 (1984). In each of those cases, the appellants did not fail to appear but rather merely appeared late. In each case, the finding of contempt was sustained by the Superior Court on the grounds that a reckless disregard for the orders of the court was established. That was held to be tantamount to an intentional contumacious act.

The foregoing explains the reason for our finding of contempt.

       That appointment was made from a list of attorneys, including Guralnick, who had volunteered to accept such appointments where the juvenile qualifies for the appointment of a public defender, and the public defender petitions the court for conflict counsel alleging a conflict of interest.


author: FREEDBERG, J.,

text:
    Lichty v. Kucharczuk

      Richard P. Abraham, for plaintiff.

      Joann L. Drust, for defendants.

      October 31, 1989
   FREEDBERG, J.,

This matter is before the court for disposition of defendants’ preliminary objections in the form of demurrers and motions to strike, or in the alternative, a motion for a more specific pleading. According to the complaint, on January 23, 1987, Linda Lichty, who was pregnant with her fourth child, consulted with, defendants, Dr. Kucharczuk and Dr. Smith, about her pregnancy. These doctors had delivered Mrs. Lichty’s third child, Amber, in 1984. Amber was bom with a neural tube defect, known as anenceph-aly, and died immediately after birth. Because defendants were aware of Mrs. Lichty’s problem with her third child, they undertook certain testing during her fourth pregnancy which revealed that the then-unborn plaintiff, Jenine Lichty, had a neural tube defect. Plaintiff claims that defendants did not perform all the testing which should have been performed. Furthermore, plaintiff alleges that defendants advised Mrs. Lichty that the baby would be normal. Plaintiff claims that as a result of this, Mrs. Lichty was deprived of an opportunity of having specialized physicians assist at the plaintiffs birth which resulted in injury to the plaintiff. For this she seeks compensatory damages in count I.

Plaintiff also claims that defendants, after the birth of plaintiff, created documents designed to appear as though they had been created on January 23, 1987, with the intent of falsifying the medical record, deceiving anyone who read the medical record and fraudulently defeating a potential lawsuit which they suspected, or had reason to suspect, would be filed against them by Mrs. Lichty. For this she seeks punitive damages in count II.

Defendants first preliminary objection is in the nature of a demurrer or, in the alternative, a motion to strike regarding plaintiff’s count II for fraud, breach of fiduciary duty, and intentional spoliation under the circumstances alleged in her complaint. Defendants claim that under the facts of this case, the Commonwealth of Pennsylvania does not recognize a cause of action for intentional spoliation, so that punitive damages are not available. Defendants also object in the nature of a motion to strike, or in the alternative, a motion for a more specific pleading regarding paragraphs 15(a), (b), (n), (o), (p), (s), (t), (v), (w), and (x) in plaintiffs complaint.

Defendants first preliminary objection is a demurrer to count II of plaintiff s complaint, asserting that a cause of action for intentional spoliation (i.e. the destruction, mutilation or alteration of evidence by a party to an action) under the facts of this case does not exist. A preliminary objection in the nature of a demurrer admits all well pleaded facts, as well as all reasonable inferences therefrom, and may not be sustained unless it is clear on the face of the pleading that the law will not permit the recovery sought. Thus, any doubts as to whether such an objection should be sustained must be resolved against the moving party. Chartiers Valley School District v. Virginia Mansions Apartments, 340 Pa. Super. 285, 293, 489 A.2d 1381, 1386 (1985). Plaintiffs malpractice suit has not been disposed of adversely to plaintiff.

We hold that no cause of action for spoliation exists where the alleged spoliation is known prior to the trial of the principal case and the alleged spoli-ator is a party to that case.

In so holding, we note that no civil cause of action for false oral testimony is permitted in this jurisdiction. The Pennsylvania Supreme Court in Ginsburg v. Halpern, 383 Pa. 178, 180, 118 A.2d 201, 202 (1955) held:

“Even if defendants had been shown to have volunteered to be witnesses and then [gave] false testimony against plaintiff [it] would not constitute a valid cause of action. . . . We believe there is no civil action for perjury and apparently the plaintiff recognizes this doctrine of law but seeks to avoid it by claiming conspiracy. The courts have uniformly held that where such assertions have been made . . . they do not constitute a cause of action.”

More recently, the Pennsylvania Superior Court in Pelagatti v. Cohen, 370 Pa. Super. 422, 432, 536 A.2d 1337, 1342 (1987), held that “it is well settled that private witnesses, as well as counsel, are absolutely immune from damages liability for testimony, albeit false, given or used in judicial proceedings.” Additionally, trial courts in Homer v. Ciamacco, 2 D.&C. 3d 755 (1977) and Barr v. Susquehanna Broadcasting Co., 45 D.&C. 3d 622 (1987) held that no civil cause of action for perjury exists. Because Pennsylvania does not recognize a civil cause of action for false oral evidence, we believe that a cause of action for false physical evidence should not be recognized. See Annotation, Spoliation of Evidence, 70 ALR 4th 984 (1989).

Second, a sufficient sanction to discourage spoliation already exists. 18 Pa.C.S. §4910 provides criminal sanctions for a party who tampers with or fabricates physical evidence.

Third, a party who knows of the spoliation by an opposing party can effectively impeach his opponent at trial. A neighboring jurisdiction has observed:

“The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that evidence would have been unfavorable to his cause, but would not in itself amount to substantive proof of a fact essential to his opponent’s cause. The maxim, omnia praesumuntur contra spoliatorem, ‘all things are presumed against the spoliator,’ rests upon a logical proposition that one would ordinarily not destroy evidence favorable to himself.” Miller v. Montgomery County, 494 A.2d 761, 768 (Md. App. 1985). In the instant case, plaintiff can effectively employ the alleged spoliation at trial to undermine the credibility of defendants, who allegedly committed the act. Thus, there is no need for a separate cause of action for spoliation under these facts.

Finally, since no cause of action for spoliation exists, a cause of action for fraud and breach of fiduciary duty based on spoliation cannot be maintained by a party. See Ginsburg v. Halpern, supra.

For these reasons, the demurrer to the cause of action for punitive damages for spoliation is sustained.

Defendants’ third preliminary objection deals with paragraph 15(a), (b), (n), (o), (p), (s), (t), (v), (w) and (x) of plaintiff’s complaint. Defendants claim that because these contain general allegations of negligence and vague conclusions of law, the allegations should be stricken or, in the alternative, they ask for a more specific pleading. Additionally, defendants’ claim that these allegations dp not contain material facts as required by Pa.R.C.P. 1019(a) and that the allegations are prejudicial to them because they are sufficient to toll the statute of limitations and allow the plaintiff to amend her complaint at any time to include new theories of recovery.

The allegations in question are as follows: (a) failing to adhere to the standard of medical care within the community; (b) failing to adhere to the standard of practice of obstetricians and gynecologists; (n) failing to possess and employ adequate knowledge of neural tube defects; (o) failing to communicate; (p) failing to possess and employ adequate knowledge of ultrasound testing; (s) failing to promptly and properly recognize, diagnose and treat the condition of Linda Lichty and/or Jenine Lichty; (t) failing to properly and promptly respond to the needs of Linda Lichty and/or Jenine Lichty; (v) failing to provide proper and prompt medical, gynecological and obstetrical advice, care and treatment to Linda Lichty and Jenine Lichty; (w) failing to exercise proper skill, diligence and care under the circumstances; and (x) otherwise pursuant to the doctrine of respondeat superior.

In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983) the court reversed the grant of summary judgment for the defendant which resulted from a refusal to permit the plaintiff to amend the complaint to assert that her injuries resulted from a failure to discover and remedy an existing perforation of the abdominal cavity. The complaint, as originally drafted, alleged that the defendant caused the perforation. The lower court refused to permit the amendment because it introduced a new theory of negligence after the statute of limitations had expired. The Supreme Court reversed because the complaint contained the allegation that defendant was negligent “in otherwise foiling to use due care and caution under the circumstances.” This language, characterized by Justice Nix in his dissent as “boilerplate,” was held by the majority to be sufficient to justify the allowance of the amendment as merely amplifying the generalized allegation. The Supreme Court stated in a footnote that “[i]f appellee did not know how it ‘otherwise fail[ed] to use due care and caution under the circumstances,’ it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellant’s complaint.”

The Connor case makes clear that a defendant seeking protection from amendments representing a significant change in theory after the statute of limitations must purge the complaint of generalized averments as in the instant case. See Farmer v. Rhoads, 43 D.&C. 3d 393 (1986). We conclude that the averments targeted by the preliminary objections are too generalized and should be stricken.

ORDER OF COURT

And now, October 31, 1989, defendants’ demurrer to count II for spoliation is sustained. Defendants’ motion to strike averments 15(a), (b), (n), (o), (p), (s), (t), (v), (w), and (x) is granted. Plaintiff is granted leave to file an amended pleading within 20 days of the date of this order.

       Defendants’ argument that the claim is premature since no actual loss has been established misses the point that if a cause of action is established, an award of punitive damages is permissible even if there are no compensatory damages awarded. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800 (1989).


author: FARINA, J.,

text:
    City of Lancaster v. Germer

      October 25, 1989

      William C. Crosswell, for plaintiff.

      Stephen W. Cody, for defendant.
   FARINA, J.,

Before the court are defendant’s exceptions to a June 9, 1989 adjudication and decree nisi which ordered the humane destruction of defendant’s dog.

At trial the Chancellor found the following facts. Defendant is the owner of an American pit bull terrier registered under the name “Red and White Macke Attack,” which defendant kept at his residence in the City of Lancaster. The dog escaped or was permitted to run loose on a number of occasions. Five written warnings concerning the dog running loose were issued by Lancaster’s Dog Law enforcement officer to defendant or a member of his residence. These warnings were dated September 29, 1987, January 29, 1988, August 31, 1988, February 7, 1989 and February 13, 1989. Neither defendant nor any member of his household ever responded to the warnings.

On March 10, 1989, defendant’s dog attacked Kathleen Antol as she and her husband were walking. The attack was unprovoked and came without warning. Mrs. Antol escaped injury because defendant’s dog had bitten her gloved hand, and she was able to free her hand from the glove and flee. Following the attack on Mrs. Antol, defendant’s dog attacked a leashed dog as it was being walked by its owners, the Hermans. The attack on the Herman dog stopped only after defendant’s dog was repeatedly kicked and stabbed several times with a pocket knife. In addition to the March 10, 1989 attacks, defendant’s pit bull has, on various occasions, attacked several other dogs and killed two cats and a squirrel.

Following the attack on Kathleen Antol, the City of Lancaster, plaintiff, filed a complaint in equity against defendant, seeking a preliminary injunction to seize defendant’s dog and. a final injunction ordering its humane destruction. By order dated March 17, 1989, an ex parte injunction was entered directing seizure of defendant’s dog and its confinement at the Humane League of Lancaster. A preliminary injunction confirming the earlier order followed. A final hearing was held on May 19, 1989 and May 23, 1989. On June 9, 1989 the Chancellor issued his adjudication and decree nisi with findings of fact and conclusions of law and ordered humane destruction of defendant’s dog. The cost of maintenance of the dog at the Humane League during the pendency of the proceeding was imposed. on defendant, as were the costs of the proceedings. In addition, the Chancellor fined defendant for past violations of city ordinances regulating the ownership and maintenance of dogs. On June 19, 1989, defendant filed exceptions to the Chancellor’s adjudication and decree nisi. Briefs were submitted by the parties, and oral argument was held on August 16, 1989. For the following reasons defendant’s exceptions, which we have considered as a motion for post-trial relief, are dismissed.

Defendant’s first allegation of error is that the Chancellor abused his discretion in permitting Thomas Watts, Dog Law enforcement officer for the City of Lancaster, to testify as an expert witness in regard to the characteristics of the breed of dogs known as American pit bull terriers. The testimony at trial established that Watts has been employed as Dog Law enforcement officer for over six years and as part of his job he has handled over 1,100 dogs per year. Although Watts has no formal degrees he is well read in his field, and through his job, has come into contact with thousands of dogs including pit bull terriers. Defendant argues that Watts’ personal experience falls short of what is required of an expert. We disagree. In Pennsylvania the standard of qualification for an expert witness is quite liberal: “A witness will be qualified as an expert if he or she has any reasonable pretension to specialized knowledge on the subject under investigation.” Yoho v. Stack, 373 Pa. Super. 77, 83, 540 A.2d 307, 310 (1988). We do not believe that Watts’ lack of formal education or training is sufficient to render him unqualified as an expert. There was no error in our finding that Watts’ on-the-job acquired knowledge and experience was sufficient to qualify him as an expert.

Defendant has next alleged that a number of the Chancellor’s findings of fact are not supported of record by substantial evidence. In support of this contention, defendant cites the testimony of defense witnesses which conflicts with the Chancellor’s factual findings. Most of this testimony was at odds with the .testimony of plaintiffs witnesses, however, and the Chancellor simply made a determination that the testimony of plaintiff’s witnesses was, in these instances, more credible than the testimony presented by defendant’s witnesses. “It is well established that the finder of fact is free to believe all, part, or none of the evidence,” Commonwealth v. Carter, 377 Pa. Super. 93, 112, 546 A.2d 1173, 1182 (1988). Even where defense testimony was not contradicted by plaintiff, the credibility of defendant’s witnesses was still at issue. Hill v. Reynolds, 384 Pa. Super. 34, 557 A.2d 759 (1989). The Chancellor as fact finder was therefore free to make findings of fact which contradicted the testimony of defense witnesses.

Defendant’s third contention is that plaintiff does not have standing to bring the instant action since the dog has been removed from the City of Lancaster and allegedly will not return. Defendant has moved outside the city and has proposed that his father, who resides in Conestoga, take over ownership of the dog. It is well established that in order to have standing, “one must plead facts which establish a direct, immediate and substantial injury.” Paratransit Assoc. of Delaware Valley Inc. v. Yerusalim, 114 Pa. Commw. 279, 538 A.2d 651 (1988). The instant action was commenced while defendant resided within the city and defendant still resided within the city when the special injunction was granted. These facts, together with the possibility that the dog might someday be brought to the City of Lancaster, establish standing because the pit bull's attacks are capable of repetition yet evade review. See Reichly v. North Penn School District, 113 Pa. Commw. 528, 537 A.2d 391 (1988).

Defendant next claims that conclusions of law numbers (3), (6), (7) and (9) are not supported by substantial evidence. Conclusions of law (3) and (6) find that defendant’s dog has a vicious disposition and is capable of seriously injuring or killing humans. Defendant asserts that the single incident where the dog bit Mrs. Antol does not indicate the dog has a vicious disposition. Defendant claims that the Chancellor’s findings are based on the testimony of Dog Law enforcement officer Watts who demonstrated obvious prejudice against the breed of dogs known as pit bulls. We disagree.

Various witnesses testified with regard to the dog’s vicious disposition, including Mrs. Antol’s husband, as well as Mr. Herman, Mr. Shelly and Mrs. Mumma, persons whose dogs had been attacked by defendant’s pit bull. Indeed, defendant’s own father stated at trial that if the dog were to go after someone, that person would not be able to escape. Conclusion of law (7) finds that the pit bull either intentionally or through the inability of someone to confine him, had been permitted to run at large. Despite defendant’s arguments to the contrary, this conclusion was clearly supported both by the testimony of a neighbor who testified to watching the dog leave the property on a number of occasions, as well as by the testimony of defense witness Mr. Ewing who discussed how the dog managed to escape when defendant’s gate was opened to admit a visitor. Conclusion of law (9) finds that defendant failed to complete an animal bite report after his dog’s attack on Kathleen Antol as he was obligated to do under section 715.14(a)(1) of the Codified Ordinances of the City of Lancaster. Defendant claims that it was the duty of the Willow Run Veterinary Clinic who held the dog in quarantine to file the report, and alleges the clinic did so. We disagree. The document defendant claims is the dog bite report was in fact completed by personnel at Saint Joseph’s Hospital and concerns only the hospital’s treatment of Mrs. Antol’s injuries. Additionally, we note that the statute requires that the “owner or custodian” of the animal complete the report.

Defendant’s fifth contention is that his maintenance of the dog does not constitute a nuisance. He alleges that a single incident of the dog biting a person does not rise to the level of a nuisance. Defendant ignores the fact that the pit bull has attacked a number of other dogs and killed two cats. A pattern of repeated attacks by the dog was demonstrated at trial, and it was also demonstrated that defendant was unable or unwilling to prevent or even acknowledge this behavior. We therefore find that because the pit bull’s propensity to violence may affect any member of the community, defendant’s maintenance of the dog constitutes a public . nuisance.

Defendant next claims that plaintiff has an adequate remedy at law, and that the Dog Law, 3 P.S. §459-101 et seq., controls the instant action. The Dog Law provides an avenue by which persons attacked by a dog may file a complaint and seek an order directing that the dog be confined. The dog owner may be required to post a bond to insure payment of damages for injuries the dog might inflict. The Dog Law was not meant to be the exclusive law regulating dogs. In Baehr v. Commonwealth ex rel. Lower Merion Township, 51 Pa. Commw. 241, 244, 414 A.2d 415, 416 (1980), the Commonwealth Court characterized the field of dog regulation as one which particularly “encourages regulation adapted to local conditions.” Not only is the Dog Law not the exclusive remedy, it is an inadequate remedy as well. In the instant case defendant has already demonstrated his inability to keep his dog confined. Additionally, the potential injury to members of the public which may result from the running at large of defendant’s pit bull constitutes irreparable harm. An award of damages is inadequate compensation for disfigurement or death as a result of an attack by a dog which has previously proved itself to be dangerous.

Defendant’s final contention is that destruction of the dog is not the least drastic remedy available to the court. Under the law an injunction must be carefully tailored to remedy only the specific harm shown and be no broader than needed to prevent reoccurrence of the harm. See Northeast Women’s Center Inc. v. McMonagle, 665 F.Supp. 1147 (E.D.Pa. 1987); King v. Township of Leacock, 122 Pa. Commw. 532, 552 A.2d 741 (1989). Defendant argues that the remedy imposed in the decree nisi is too severe, and claims that the public can be adequately protected if ownership of his pit bull is transferred to defendant’s father, a more responsible person, under conditions of close and strict confinement. While conceivably the dog could be confined as wild and dangerous animals are in public and private zoos, we are not satisfied that the conditions of confinement proposed by defendant’s father are adequate. To simply lessen the probability of the dog inflicting grave injury is just not enough. Experience with defendant’s pit bull demonstrates that when he attacks an animal he will try to kill it; when he attacks a man we have no reason to doubt he may attempt the same. If the attack were on a defenseless child, death could be a likely result. Under the circumstances we regrettably conclude the only appropriate remedy to ensure public safety is the humane destruction of defendant’s dog.

Accordingly, we enter the following

FINAL DECREE

And now, August 25, 1989, upon consideration of defendant’s exceptions to the Chancellor’s adjudication and decree nisi, considered by the court as post-trial motions, the motions are denied and the decree nisi is hereby entered as the final decree.

       Pa.R.C.P. 1518, which authorized the filing of exceptions following an equity trial, was rescinded effective January 1, 1984. Post-trial relief procedure in both actions at law and in equity is governed by Pa.R.C.P. 227.1 which provides for the filing of motions for post-trial relief. We will therefore treat defendant’s exceptions as a motion for post-trial relief.


author: GRIMES, ].,

text:
    Scherer v. Old Guard Mutual Insurance Company
    August 29, 1989

      David B. Lingenfelter, for plaintiff.

      James R. Schadel, for defendant.
   GRIMES, ].,

Defendant, Old Guard Mutual Insurance Company, opposes the plaintiff’s application to compel arbitration for un-derinsurance benefits.

Plaintiff, Virginia Scherer, was a passenger in a car owned and operated by Wanda Washko when the vehicle was involved in a one-car accident on January 2, 1987. As a result of the accident, Scherer suffered personal injuries. The Washko vehicle was insured by State Farm Insurance Company and it paid the policy limits of $15,000 to Scherer in exchange for a general release.

In addition to seeking recovery from State Farm for liability coverage, Scherer sought underinsurance benefits from her automobile insurance carrier, Old Guard. Old Guard denied Scherer’s claim for underinsured motorist coverage based on the following language contained in a policy endorsement:

“If there is other applicable similar insurance available under more than one policy or provision of coverage:
“(1) The following priorities of recovery apply:
“First, the uninsured/underinsured motorist coverage applicable to the vehicle the covered person was occupying at the time of the accident.
“Second, the policy affording uninsured/ underinsured motorist coverage to the covered person as a named insured or family member.”

Old Guard alleges that this language requires Scherer to obtain underinsurance benefits from the driver’s insurer first, and presumably after recovery, but only thereafter, can Scherer look to Old Guard, her own insurer, for underinsurance benefits.

On April 4, 1989, Scherer filed an application to compel arbitration in the Court of Common Pleas of Allegheny County, Pennsylvania. The case was later transferred, to this court and argument was set for July 20, 1989. Prior to the commencement of argument, Old Guard served its brief on Scherer’s counsel, who, in turn, filed a reply brief a few days later.

At the outset, it must be decided whether this dispute is initially subject to arbitration rather than judicial determination.

The Pennsylvania Uniform Arbitration Act sets forth a comprehensive scheme for the resolution of disputes with minimal judicial intervention. 42 Pa.C.S. §7301 et seq. Of particular relevance is section 7304(a) which sets forth the procedure and the issues which must be focused upon in deciding whether the parties must arbitrate their differences:

“On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.” 42 Pa.C.S. §7304(a).

The statute mandates examining the validity of the agreement and whether Old Guard has wrongfully refused to arbitrate. Old Guard has not attacked the insurance contract’s validity, choosing instead to have this court, and not a panel of arbitrators, decide the issues in this case. Implicit in this course of action is Old Guard’s recognition that the agreement is valid. Equally apparent is Old Guard’s refusal to arbitrate the underinsured motorist claim of Scherer. Therefore, Scherer’s application to compel arbitration has satisfied the statutory requirements.

In anticipation of this holding, Old Guard claims the issues to be resolved in this case fall outside the scope of its arbitration clause and thus should be determined by this court and not by a panel of arbitrators.

It is well established under Pennsylvania law that a party against whom arbitration is sought under an arbitration agreement has a right to a judicial determination of (1) whether the parties entered into an agreement to arbitrate, and (2) whether the dispute falls under the agreement. Lincoln University v. Lincoln University Chapter of the Association of University Professors, 467 Pa. 112, 354 A.2d 576 (1976); Independence Development Inc. v. American Arbitration, 460 Pa. 390, 333 A.2d 781 (1975); see also, Allstate Insurance Co. v. Gammon, 838 F.2d 73 (3d Cir. 1988). The agreement to arbitrate is to be strictly construed and is not to be extended beyond its terms. Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964); Cumberland-Perry v. Bogar and Bink, 261 Pa. Super. 350, 396 A.2d 433 (1978); Allstate Insurance Co., supra.

The provisions in the Old Guard policy relating to arbitration provide:

“If we and an ‘insured’ do not agree:
“(1) Whether that person is legally entitled to recover damages from the owner or operator of an ‘uninsured motor vehicle’ or ‘underinsured motor vehicle;’ or
“(2) As to the amount of damages:
“[T]hen the matter may be arbitrated. However, both parties must agree to arbitration.”

This provision is essentially the same as the provisions federal courts have interpreted. See Myers v. State Farm Insurance Co., 842 F.2d 705 (3d Cir. 1988); Little v. USF&G, no. 88-1320, slip op. (W.D. Pa., December 2, 1988); Schemberg v. Progressive Casualty Insurance Co., no. 89-8904, slip op. (E.D. Pa., March 29, 1989). In each of these. cases, the court held that the arbitration provision applied to disagreements concerning fault and amount, but it did not mandate arbitration of disputes over coverage. Myers, supra, at 707; Little, supra, at 4; Schemberg, supra, at 3.

Old Guard, in reliance upon these federal cases, argues that the dispute between it and Scherer is one of coverage and urges this court to adopt the interpretation federal courts have given similar arbitration clauses. The primary issue is not one of coverage but of “entitlement” to certain benefits. Questions, or disputes, concerning entitlement to underinsurance benefits are provided for in the arbitration agreement. Therefore, whether Scherer is entitled to recover both underinsured motorist coverage and liability coverage under the same policy (State Farm) “fits squarely within the subject matter of the arbitration provision.” Anderson v. Erie Insurance Group, 384 Pa. Super. 387, 558 A.2d 886 (1989).

ORDER

And now, August 29, 1989, it is ordered that plaintiff’s application to compel arbitration is granted.

      . 42 Pa.C.S. §7319.

      . All counsel, not just those in this case, are reminded of our local practice regarding argument court. The brief of the moving party is due 10 days prior to the date of argument. The responding party’s brief is due five days prior to the date of argument.

      . Counsel are also reminded that the practice of submitting briefs, memoranda of law, or similar documents to the trial judge prior to being filed with the prothonotary is not advocated. Had this case depended upon filing dates, Old Guard would have problems. Old Guard’s brief was presented to the court on July 20, 1989. It was not time-stamped until August 17, 1989. The responsibility of time-stamping filed documents rests with the prothonotary who then forwards the documents to the trial judge. Therefore all documents must be filed with the prothonotary so that they may be time-stamped before being presented to the trial judge.


author: SOKOLOVE, J.,

text:
    Harty Estate

      September 6, 1989

      Marvin L. Fortney, for estate.

      John J. Kerrigan Jr., for Aurora C. Harty.
   SOKOLOVE, J.,

William Edward Harty Jr., the executor of the estate of his late father, William E. Harty, has filed a petition for declaratory judgment pursuant to 42 Pa.C.S. §7535 for direction in the administration of the estate. The executor has asked us to make the following determinations: (1) Whether the decedent’s widow, Aurora C. Harty, was a slayer under 20 Pa.C.S. § §8801 et seq. and, therefore, prohibited from benefiting from decedent’s death; (2) If the widow is deemed to be a slayer, whether certain trusts created by the decedent become nullities; (3) If the trusts are nullities, whether all of decedent’s assets should be administered by the executor; and (4) How the real estate which was owned by the decedent and his widow as tenants by the entireties should be treated. Because the practice and procedure for a declaratory judgment follows the rules governing an action in equity, Pa.R.C.P. 1601(a), we enter this adjudication.

FINDINGS OF FACT

(1) William E. Harty died on February 12, 1987 as the result of stab wounds inflicted by his wife, Aurora C. Harty.

(2) Decedent was survived by his wife, Aurora C. Harty, and three sons, William Edward Harty Jr., Christopher Harty and Richard Harty, all of whom are adults.

(3) Decedent died testate, and his will, dated September 20, 1982, was admitted to probate before the Register of Wills of Bucks County, Pennsylvania, on March 2, 1987.

(4) In accordance with decedent’s will, William Edward Harty Jr. was appointed executor of decedent’s estate.

(5) The executor filed an inventory and appraisement of decedent’s estate, showing assets, all of which were personal property, of $361,407.25.

(6) The following accounts listed on the inventory were individual retirement accounts (IRAs), naming Aurora C. Harty as the primary beneficiary:

Fidelity Puritan Fund
Account 004-0260925979 $46,004.40
Vanguard Group
Account 979843463-3 2,387.84
Oppenheimer High Yield Fund
Account 2800652157 18,600.00
Guarantee First Trust
Account 00-3341-3 60,000.00

(7) In addition to the assets set forth in the inventory, decedent owned certain real estate located at 62 Upland Road, Leyittown, Bucks County, Pa., by the entireties with his widow, Aurora Hardy.

(8) Decedent also owned joint accounts with his widow in the following approximate amounts:

RCA Federal Credit Union H o 00
Home Unity Savings & Loan O o O
Vanguard (IRA) to o O

(9) Decedent’s will, which was admitted to probate, was dated September 20, 1982 and contained, in pertinent part, the following:

“Second: Specific Bequests and Devises
“(A) I give all of my tangible personal property, including any automobiles, together with all insurance on such property, to my wife, Aurora C. Harty, if she survives me by 30 days; otherwise, I give such property to such of my children as survive both my wife and myself to be divided among them as they shall agree, my executor to represent children under the age of 21 years in such division. Should there be no agreement, such property shall be divided among them as my executor, in its sole discretion, shall determine. Any of such property to which a child under the age of 21 years thus becomes entitled may be delivered, without bond, to the person taking care of such child at such time as my executor, in its sole discretion, shall determine, and the receipt of such person shall be a complete release of my executor. Any of such property to which a child under the age of 21 years would become entitled and which my executor thinks unsuitable for such child’s use may be sold and the proceeds thereof added to my residuary estate.
“Third: Dispositive Provisions
“If my wife survives me (and for the purpose of this article she shall be deemed to have survived me if the order of death of my wife and myself cannot be established by proof) I give, devise and bequeath the entire residue of my estate to the trustee hereinafter named to administer as follows:
“(A) Commencing from the date of death, and during the lifetime of my said wife —
“(a) All of the net income therefrom shall be paid to her in quarterly or other convenient installments, but at least annually, and so much of the principal as she may from time to time, or at any time, request in writing.
“(b) Trustee may pay to or apply for her use so much of the principal of this trust as trustee may in its discretion deem proper for her welfare, comfort, health and support.
“(B) Upon the death of my said wife, trustee shall, after distributing the sum of $5,000 to my mother-in-law, Aurora Grande, if she survives, continue in trust any remaining principal together with all income accrued and unpaid, to the date of her death for the benefit of my son, Christopher Harty, during his lifetime, and all income and so much principal thereof as my trustee in its discretion may from time to time deem proper for the health, maintenance and support of my said son.
“(C) Upon the death of my son, Christopher, any remaining principal shall be paid to my son, William Harty, or in the event he does not survive, to the persons who would be entitled to inherit from me under the intestate laws of Pennsylvania then in existence as if I had then died intestate, unmarried and without issue.
“(D) My son, Richard Harty, is not herein provided for because of any lack of affection for him, but rather because he has been provided for during my lifetime.”

(10) Decedent’s will contained no direction for the disposition of the residue of the estate in the event Aurora C. Harty failed to survive the decedent.

(11) The decedent executed an indenture of trust on April 27,1970 to create a trust which was to hold certain life insurance policies payable to the trustee of the trust as primary or contingent beneficiary and any additional inter vivos transfers made by decedent. The trust income and principal was payable to decedent at his discretion during his lifetime. The trust instrument contained the following provisions, in pertinent part, to take effect upon decedent’s death:

“Second: Dispositive Provisions at my Death
“If my wife, Aurora C. Harty, survives me, trustee shall apportion all assets in or becoming a part hereof between two separate trusts to be known as Trust ‘A’ and Trust ‘B,’ such apportionment being by fractional shares which shall be determined upon the basis of the final Federal Estate Tax values. In the distribution of residue to said Trust ‘A’ and Trust ‘B’ any fluctuation in the value thereof pending such distribution, shall be equitably and ratably apportioned.
“(A) Marital Deduction Trust — Trust ‘A’ shall comprise the fractional share of all of said assets, undiminished by any estate or inheritance taxes, which when added to all property passing to my wife otherwise than herein which qualifies for the marital deduction, will obtain for my estate the maximum marital deduction permitted under the applicable provision of the Federal Internal Revenue Code. The assets of said Trust ‘A’ shall be administered as follows:
“(1) Commencing with the date of my death and thereafter during the lifetime of my said wife —
“(a) All the net income shall be paid to my said wife in quarterly or other convenient installments.
“(b) Trustee may from time to time pay to or apply for the use of my said wife so much of the principal of the trust as my trustee may in its discretion deem proper for her welfare, comfort, maintenance and support.
“(2) Upon the death of my said wife, trustee shall pay over the then remaining principal, together with all income accrued and unpaid to the date of her death.
“(a) To such person or persons including her estate, in such proportions in such manner and for such estates as my wife shall appoint by will or deed, expressly referring to the power of appointment herein given, my intention being that such general power may be exercised by my wife alone and in all events; or,
“(b) In default of such appointment, trustee shall add the same to Trust ‘B’ to be held as though originally forming a part thereof, after first paying or providing for the payment from the remaining assets of Trust ‘A’ such portion of the Federal Estate Tax and Pennsylvania Estate Tax, including penalties and interest thereon, as may be imposed on my wife’s estate by reason of the inclusion of the principal of Trust ‘A’ in her gross estate subject to Federal or Pennsylvania Estate Tax.
“(3) Notwithstanding any other provisions herein —
“(a) If the assets of the marital deduction Trust ‘A’ shall at any time have a market value of less than $10,000, trustee shall pay over and deliver the same free and clear of all trusts to my wife, absolute.
“(b) If my said wife shall not survive me, or if my total estate subject to Federal Estate Tax shall not be sufficient to require the filing of a Federal Estate Tax return, then in lieu of all the other provision of this Article Second A, the assets which otherwise would form a part of this Trust ‘A’ shall be made a part of and held as Trust ‘B.’
“(c) Trustee of Trust ‘A’ shall not have any rights, powers, duties, authority, privileges, immunities or discretion given by any provision of this deed, if or to the extent that such would disqualify Trust ‘A’ for the maximum marital deduction.
“(d) If any property which forms a part of Trust ‘A’ shall be or become unproductive, my said wife may require trustee to make it productive or to convert it within a reasonable time to property which is currently productive of income consistent with the value of such corpus.
“(B) Non-Marital Trust — Trust ‘B’ shall comprise the remaining fractional share of all said assets, together with any interest in profit-sharing or pension plans, and shall be administered as follows:
“(1) During the lifetime of my said wife —
“(a) All of the net income shall be paid to my said wife in quarterly or other convenient installments.
“(b) As much of the principal as my trustee in its discretion may from time to time deem proper for the health, maintenance, and support of my said wife, my mother-in-law, Aurora Grande, or. the health, education, support and maintenance of my children shall be paid to or applied directly for them or said children, provided, however, that no part of the principal of this Trust ‘B’ shall be used for my said wife’s personal maintenance and support until the principal of Trust ‘A’ is first exhausted, and, provided further, that the use of principal hereunder for the education of my children shall be subordinate to the welfare of my said wife and mother-in-law. Trustee shall be completely exonerated in the exercise of its discretion in this regard.
“(2) Upon the death of my said wife, or upon my death if she does not survive me, and providing my mother-in-law, Aurora Grande, is deceased, the then remaining principal of Trust ‘B’ shall be continued in trust, the income from which shall be accumulated and added to the principal, with power and authority in my trustee to use combined funds in its sole and absolute discretion for all of my children then living and my said mother-in-law, if she is living, until the youngest of such children attain the age of 21, and my mother-in-law is deceased.
“(a) Until the youngest of my children shall have attained the age of 21 years, any income or principal which may have been used by my trustee for the welfare, support, education, or any emergency of any children who shall not have attained the age of 21 years, shall not be charged against the interest of such child, provided, however, that if any principal shall be used for the benefit of any such child after he or she shall have attained the age of 21 years, then the principal so used shall be charged against the interest of such child at the time for distribution of the principal of the trust estate.” (emphasis supplied)

(12) The indenture of trust contained no other provisions regarding disposition should Aurora C. Harty fail to survive the decedent.

(13) The indenture of trust named First Pennsylvania Banking and Trust Company (now First Pennsylvania Bank, N.A.) as trustee.

(14) On April 26, 1977 decedent executed an amendment to the indenture of trust, which stated in pertinent part:

“First: I do hereby revoke Item Second B. (Non-Marital Trust) in its entirety and in lieu thereof and in substitution therefore, provide as follows:
“Second B. Non-Marital Trust — Trust ‘B’ shall comprise the remaining fractional share of all of said assets together with any interest in profit-sharing or pension plans, and shall be administered as follows:
“1. Five thousand dollars of Trust ‘B’ shall be paid and distributed as soon as practicable to my mother-in-law, Aurora Grande, if living.
“2. The remaining balance of Trust ‘B’ shall be held in trust and thereafter:
“(a) During the lifetime of my wife, Aurora C. Harty:
“(1) All of the net income shall be paid to my said wife in quarterly or other convenient installments;
“(2) As much of the principal as my trustee, in its sole discretion, may from time to time deem proper for the health, maintenance and support of my said wife or the health, education, support and maintenance of my children, Christopher Harty and William E. Harty Jr., shall be paid to or applied, directly for her or said children, provided, however, that no part of the principal of this Trust ‘B’ shall be used for my said wife’s personal maintenance and support until the principal of Trust ‘A’ is first exhausted.
“(3) Upon the death of my said wife or upon my death if she does not survive me, the then-remaining principal of Trust ‘B’ shall be continued in trust for the benefit of my son, Christopher Harty, and thereafter:
“(a) All of the net income shall be paid to such son in quarterly or other convenient installments; and
“(b) As much of the principal as trustee may, from time to time, deem proper for such son’s support, welfare, education, or any emergency, shall be paid to such son or applied directly for his benefit.
“(c) Upon the death of my son, Christopher Harty, the remaining balance of the trust shall be paid to my son, William E. Harty Jr., or to his issue; and if he should be deceased without leaving issue to survive, then to my son, Richard Harty, if living; and if deceased, then to the persons who would be entitled to inherit from me under the Intestate Law of Pennsylvania, as if I had then died intestate.” (emphasis supplied)

(15) At the time of his death, the decedent owned insurance policies on his life with New York Life Insurance Company and Metropolitan Life Insurance Company, naming the trustee under the indenture of trust as primary beneficiary.

(16) On November 18, 1987, decedent’s widow, Aurora C. Harty, entered a plea of guilty to the charge of voluntary' manslaughter stemming from decedent’s death and was duly sentenced.

(17) William Edward Harty Jr. and Christopher Harty do not wish the trusts created by the indenture of trust to be funded.

(18) Aurora C. Harty desires that the real property owned by decedent and her be maintained in kind and not sold.

DISCUSSION

The Slayer’s Act, 20 Pa.C.S. §8801 et seq., provides that “[n]o slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent. ...” 20 Pa.C.S. §8802. The first issue before us, therefore, is whether Aurora C. Harty was a slayer of her husband, the decedent.

A slayer is defined as “any person who participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of any other person.” Mrs. Harty was convicted of voluntary manslaughter, set forth at 18 Pa.C.S. §2503 as:

“(a) General rule — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
“(1) the individual killed; or
“(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
“(b) Unreasonable belief killing justifiable — A person who intentionally or knowingly Mils an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
“(c) Grading — Voluntary manslaughter is a felony of the second degree.”

Our courts have held that the specific intent to kill is a necessary element of voluntary manslaughter. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979); Commonwealth v. Mason, 474 Pa. 308, 378 A.2d 807 (1977). Voluntary manslaughter contemplates an intentional or voluntary act on the part of the defendant. Commonwealth v. Mason, supra. The legislature has mandated that the Slayer’s Act be construed broadly. 20 Pa.C.S. §8815. Following these guidelines, we conclude that Mrs. Harty is a slayer as defined by the Slayer’s Act. She intentionally or willfully killed the decedent in an unlawful fashion. Her conviction of voluntary manslaughter is a conclusive bar of her right to take any portion of decedent’s estate. Craig Estate, 27 Pa. Fiduc. 102 (1976). See Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965).

The Slayer’s Act directs the distribution of the decedent’s assets that would otherwise have passed to Mrs. Harty, the slayer. “Property which would have passed to or for the benefit of the slayer by devise or legacy from the decedent shall be distributed as if he had predeceased the decedent.” 20 Pa.C.S. §8804. One-half of any property held by the slayer and the decedent as tenants by the entirety shall pass to the decedent’s estate, and the other half shall be held by the slayer during, his life, subject to pass upon his death to the estate of the decedent. 20 Pa.C.S. §8805. The slayer shall be deemed to have predeceased the decedent with respect to any contingent remainder or future interest held by the slayer which was subject to vest upon the decedent’s death. 20 Pa.C.S. §8809. Insurance proceeds payable to the slayer as beneficiary of any policy or certificate of insurance on the life of the decedent shall be paid to the estate of the decedent unless an alternative beneficiary is designated. 20 Pa.C.S. §8811(a).

When we apply these rules to Mr. Harty’s estate, we see initially that, pursuant to 20 Pa.C.S. §8805, one-half of the joint accounts belongs to the estate. The other half shall be held by Mrs. Harty during her lifetime, and she may receive the income therefrom. The principal shall be maintained intact and shall pass to Mr. Harty’s estate upon Mrs. Harty’s death. We direct that these funds be placed in a restricted account with only the income allowed to be withdrawn by Mrs. Harty.

Given the broad construction accorded the Slayer’s Act, we will treat the IRAs like insurance policies under 20 Pa.C.S. §8811. These proceeds are the estate’s.

Pursuant to 20 Pa.C.S. §8809, the insurance proceeds payable to First Pennsylvania Bank, N.A. as trustee under the indenture of trust and its amendment shall be administered by said trustee in accordance with the provisions of Trust “B” as if Aurora C. Harty had predeceased the decedent. We cannot accept the executor’s position that the trust cannot come into being if Mrs. Harty is treated as if she died before the decedent.

In interpreting a trust instrument, the intent of the settlor is paramount and must prevail if it is not contrary to law. Estate of Taylor, 361 Pa. Super. 395, 522 A.2d 641 (1987). The trust writing itself is the best and controlling evidence of the settlor’s intent. In re Girard Trust Corn Exchange Bank, 418 Pa. 112, 208 A.2d 857 (1965). Although the language and structure of the trust documents are not as clear as they might be, it is apparent upon reading them as a whole that the decedent intended the establishment and funding of Trust “B” for the benefit of his mother-in-law and his sons if Aurora C. Harty did not survive him. Article Second A. 3(b) of the original indenture states that “[i]f my said wife shall not survive me,. . . then in lieu of all the other provisions of this Article §econd A, the assets which otherwise would form a part of this Trust ‘A’ shall be made a part of and held as Trust ‘B.’ ” Article Second B.2.(a)(3) of the amendment specifies that “[u]pon the death of my said wife or upon my death if she does not survive me, the then remaining principal of Trust ‘B’ shall be continued in trust for the benefit of my son, Christopher Harty,. ...”

We recognize the executor’s argument that the first sentence of Article Second seems to condition the formation of the trusts on the survival of Mrs. Harty. This interpretation, however, directly contradicts the provisions recited above. A reading of the documents in their entirety compels us to resolve this ambiguity in favor of the foundation of Trust “B” as intended by the decedent. Cf. Richley Estate, 394 Pa. 188, 146 A.2d 281 (1958). While we sympathize with the beneficiaries, their wishes are irrelevant in this matter. The insurance proceeds designated for the trust shall be placed in trust with First Pennsylvania Bank, N.A. Five thousand dollars shall be distributed immediately to Aurora Grande, or to her estate if she survived decedent, and the remainder shall be held in trust in accordance with Article Second B.2.(a)(3) of the indenture of trust as amended;

We reach a different result regarding decedent’s testamentary estate under 20 Pa.C.S. §8804. Although we suspect that decedent meant for all his assets to pour into the same trust if Mrs. Harty predeceased him, the dispositive trust provisions of the will do not contemplate her prior death. The tangible personal property passes to decedent’s children by Article Second A. The residue, no provision being made in the event of Mrs. Harty’s failure to survive the decedent, must pass according to the statutes of descent and distribution. The law looks with disfavor upon a finding of intestacy and presumes that the testator intended to die testate as to all his property, but this presumption is rebuttable. Bowman v. Brown, 394 Pa. 647, 149 A.2d 56 (1959). The presumption against intestacy does not authorize the courts to interpolate provisions not contained in a will in order to avoid an intestacy. In re English’s Estate, 242 Pa. 545, 89 Atl. 680 (1914). Unfortunately, no doubt by mistake, the residuary clause of decedent’s will completely fails to address the situation where Mrs. Harty does not survive, and all but the tangible personal property must be distributed by the laws of intestate succession.

The last question is the treatment of the entireties real estate. 20 Pa.C.S. §8805 requires that the estate take one-half of the real estate and that Mrs. Harty hold the other half, which passes to the estate upon her death. The executor contends that, in satisfaction of section 8805, he may sell the real estate, giving Mrs. Harty a life interest in, or the income from, one-half of the proceeds of sale. Mrs. Harty asks that the real estate remain intact. Unless the parties agree or obtain partition, we cannot order the sale of the property.

Larendon Estate, 439 Pa. 535, 266 A.2d 763 (1970) influences our decision. There the court analyzed the earlier version of the Slayer’s Act and concentrated on the joint property section, which stated:

“One-half of any property held by the slayer and the decedent as joint tenants, joint owners or joint obligees shall pass upon the death of the decedent to his estate, and the other half shall pass to his estate upon the death of the slayer, unless the slayer obtains a separation or severance of the property or a decree granting partition.” 20 P.S. §3446(a). This is identical to the current 20 Pa.C.S. §8806.

Entireties property passes the same way pursuant to section 8805, with the exception that section 8805 makes no reference to severance or partition. The Larendon court held that, at the decedent’s death, the slayer retained an undivided one-half interest in the joint property (together with all normal incidents thereto) that he had previously enjoyed, except that passage of the remaining one-half interest to the estate of the decedent effectively extinguished the slayer’s right of survivorship. Larendon Estate, supra. The court reasoned that the purpose of the Slayer’s Act is to prevent the slayer’s self-enrichment without necessarily diminishing the property rights possessed by the slayer immediately before the slaying, id Following this reasoning, the decedent’s estate, and Mrs. Harty now hold the real estate in a unique type of joint tenancy. Each possesses an undivided one-half interest in the property, and Mrs. Harty’s interest devolves to the estate upon her death. As in any joint tenancy, the property cannot be sold without the permission of both tenants. Either tenant may, however, seek partition, with the caveat that, after partition, the principal of Mrs. Harty’s share must still pass to the estate when she dies. We do not believe that section 8805 limits the ordinary right to partition incident to a joint tenancy. See Larendon Estate, supra.

We add that the estate and Mrs. Harty must share the expenses and liabilities of the real property, too. Because of this and other complexities of this estate, we recommend that the executor file a schedule of distribution when this estate is ultimately settled.

CONCLUSIONS OF LAW

(1) This court has jurisdiction over this estate and the parties in interest.

(2) Aurora C. Harty was a slayer, as that term is defined by 20 Pa.C.S. §8801, of her husband, the decedent, William E. Harty, and, as such, she may acquire no property or benefit as the result of his death.

(3) One-half of the funds in the accounts at RCA Federal Credit Union, Home Unity Savings & Loan and Vanguard belongs to the decedent’s estate. The other half may be held by Aurora C. Harty, who may receive only the interest during her lifetime, and passes to the decedent’s estate upon her death.

(4) The funds of the following individual retirement accounts are assets of the decedent’s estate: Fidelity Puritan Fund Account 004-0260925979; Vanguard Group Account 979843463-3; Oppenheimer High Yield Fund Account 2800652157 and Guarantee First Trust Account 00-3341-3.

(5) The proceeds of the life insurance policies on decedent’s life with New York Life Insurance Company and Metropolitan Life Insurance Company are payable to First Pennsylvania Bank, N.A. as trustee and are to be administered by the trustee pursuant to Article Second B and the following articles of the indenture of trust dated April 27,1970 and amended April 26, 1977.

(6) Decedent’s tangible personal property is distributable to his sons pursuant to Article Second A of the decedent’s will dated September 20, 1982.

(7) The residue of decedent’s testamentary estate is distributable to his heirs at law.

(8) The real estate located at 62 Upland Road, Levittown, Bucks County, Pa., is held jointly by decedent’s estate and Aurora C. Harty, each possessing an undivided one-half interest in the property. Decedent’s estate and Aurora C. Harty are each responsible for one-half of the expenses and the liabilities associated with the property. The property may not be sold or otherwise disposed without the permission of both decedent’s estate and Aurora C. Harty. Either decedent’s estate or Aurora C. Harty may, in appropriate circumstances, seek separation, severance or partition of the property.

DECREE NISI

And now, September 6, 1989, it is hereby ordered and decreed that Aurora C. Harty shall acquire no property or receive no benefit as the result of her slaying of William E. Harty. William Edward Harty Jr., the executor of the estate of William E. Harty, shall receive, for credit to the estate, one-half of the funds in the accounts at RCA Federal Credit Union, Home Unity Savings & Loan and Vanguard formerly held by William E. Harty and Aurora C. Harty as tenants by the entireties. The executor shall deposit the other one-half of said accounts in a federally insured institution in an account in the name of Aurora C. Harty, captioned “principal to be withdrawn only after death of Aurora C. Harty by the estate of William E. Harty.” The executor shall receive, for credit to the estate, the funds from the following individual retirement accounts in the name of William E. Harty:

Fidelity Puritan Account 004-0260925979
Vanguard Group Account 979843463-3
Oppenheimer High Yield Fund Account 2800652157
Guarantee First Trust Account 00-3341-3

First Pennsylvania Bank, N.A. shall receive the proceeds of the life insurance policies on the life of William E. Harty with New Life Insurance Company and Metropolitan Life Insurance Company and shad, hold the proceeds as trustee under the indenture of trust of William E. Harty dated April 27, 1970 and amended April 26, 1977. The sum of $5,000 shall be paid by the trustee from said funds as soon as practicable to Aurora Grande or to her estate if she was living at the time of William E. Harty’s death. The trustee shall hold the remainder of the funds in trust and administer them pursuant to Article Second B.2.(a)(3) and the subsequent provisions of the indenture of trust as amended. The executor shall distribute the tangible personal property of William E. Harty to the sons of William E. Harty pursuant to Article Second A of William E. Harty’s will dated September 20, 1982. The executor shall distribute the remaining assets of William E. Harty to the heirs at law of William E. Harty. The executor, on behalf of the estate of William E. Harty, and Aurora C. Harty each possess an undivided one-half interest in the real property located at 62 Upland Road, Levittown, Bucks County, Pa. The estate and Aurora C. Harty shall each be liable for one-half of the expenses and liabilities of said property accruing since February 12, 1987. The property shall not be sold, leased or otherwise disposed or encumbered without the agreement of both the executor, on behalf of the estate, and Aurora C. Harty. Either the executor, on behalf of the estate, or Aurora C. Harty may, if appropriate, seek separation, severance or partition of the property. Upon the death of Aurora C. Harty, her principal interest in the property, whether or not severed, shall pass to the estate.

If no exceptions are filed within 10 days of the date hereof, the clerk is directed to enter this decree nisi as a final decree upon praecipe.

       The court in Richley Estate reconciled conflicting provisions of a will by ascertaining the testator’s intent from a reading of the entire will. The court also acknowledged the canon of construction that, if two conflicting paragraphs cannot be construed together, the latter prevails. This canon-applies here as well.