author: WORTHINGTON, J.,

text:
    M. A. Bruder & Sons Inc. v. Williams

      C.P. of Monroe County,
    no. 159 Civil 2000.

      Mattes & Mattes, for plaintiff.

      Edwin L. Stock, for defendant Steubner.

      David J. Jordan, for defendant Williams.
    June 29, 2000
   WORTHINGTON, J.,

Plaintiff filed a writ of summons on January 11,2000 and an amended writ of summons on January 12, 2000. On February 28, 2000, counsel for defendants E.R. Stuebner Inc. and U.S. Fidelity & Guaranty Co., n/k/a St. Paul Fire & Marine filed a praecipe to issue a rule upon plaintiff to file a complaint against all three defendants. Plaintiff filed a timely complaint on March 20,2000. On April 10,2000, counsel for Stuebner and St. Paul filed preliminary objections and a supporting brief. Plaintiff filed a response and an opposing brief on June 2, 2000. Oral argument was heard on June 5,2000. We are now ready to dispose of Stuebner’s and St. Paul’s preliminary objections.

Stuebner and St. Paul have filed a preliminary objection in the nature of a demurrer to Count III, V and VI of plaintiff’s complaint and a preliminary objection for insufficient specificity to Count IV. In ruling on preliminary objections in the nature of a demurrer, the court must accept as true all well-pleaded facts and all reasonable inference that can be deduced from those facts. Turner v. Pennsylvania Board of Probation and Parole, 749 A.2d 1018, 1020 (Pa. Commw. 2000). The court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations or expressions of opinion. Myers v. Ridge, 712 A.2d 791,794 (Pa. Commw. 1998), petition for allowance of appeal denied, 560 Pa. 677, 742 A.2d 173 (1999).

The question presented by a demurrer is whether on the facts averred the law says with certainty that no recovery is possible. McKeeman v. Corestates Bank N.A., 751 A.2d 655 (Pa. Super. 2000). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Emerich v. Philadelphia Center for Human Development, 554 Pa. 209, 213, 720 A.2d 1032, 1034 (1998). Stuebner’s and St. Paul’s first preliminary objection in the nature of a demurrer is against Count III of plaintiff’s complaint. Count III contains abad faith claim pursuant to 42 Pa.C.S. §8371 against St. Paul and a claim that St. Paul’s actions constituted an unfair or deceptive act or practice in violation of the Pennsylvania Unfair Insurance Practices Act, 40 PS. §1171.1 et seq. We will address each statute in turn.

42 Pa.C.S. §8371 states:

“In an action under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent;
“(2) Award punitive damages against the insurer; and
“(3) Assess court costs and attorney fees against the insurer.”

Stuebner and St. Paul assert, and we agree, that the threshold question is whether St. Paul’s surety bond is an insurance policy for the purposes of section 8371. Plaintiff cites Turney Construction Co. v. First Indemnity of America Insurance Co., 829 F. Supp. 752 (E.D. Pa. 1993) and Reading Tube Corp. v. Employers Insurance of Wassau, 944 F. Supp. 398 (E.D. Pa. 1996) as extending section 8371 to include surety bonds. Stuebner and St. Paul argue that Superior Precast Inc. v. Safeco Insurance Co. of America, 71 F. Supp.2d 438 (E.D. Pa. 1999) is controlling in the present case. It stands for the proposition that a surety contract is distinct from an insurance policy and therefore 42 Pa.C.S. §8371 does not apply to the facts in the present matter.

In Turner Construction Co. v. First Indemnity of America Insurance Co., 829 F. Supp. 752,763 (E.D. Pa. 1993), the federal court of the Eastern District of Pennsylvania addressed whether the defendant’s conduct constituted bad faith pursuant to section 8371. The district court never addressed whether section 8371 extends to surety bonds and it appears from the opinion that none of the parties to the litigation raised the issue. Although the district court in that case proceeded under the belief that section 8371 included surety bonds, it never addressed the issue squarely and therefore plaintiff’s reliance on this case is mistaken.

Plaintiff also cites Reading Tube Co. v. Employers Insurance of Wassau, 944 F. Supp. 398 (E.D. Pa. 1996), as standing for the proposition that surety bonds are within the scope of section 8371. Plaintiff’s reliance on such is also mistaken. The district court in that case relied on Turner, supra, in applying section 8371 to a surety bond without undertaking an analysis of whether section 8371 was meant to include surety bonds. The district court’s entire analysis is contained in the following sentence:

“Courts have extended this statute to actions against sureties for failure to honor performance bonds. See Turner Construction Co. v. First Indemnity of America Insurance Co., 829 F. Supp. 752 (E.D. Pa. 1993) (considering whether there were sufficient facts to entitle plaintiff to damages against performance bond surety for bad faith under section 8371).” Reading Tube Co., 944 F. Supp. at 403.

The issue of whether a surety bond falls within the scope of section 837 V was never addressed in either case and it appears that none of the named parties disputed this issue before the district court.

In Superior Precast Inc. v. Safeco Insurance Co. of America, 71 F. Supp.2d 438 (E.D. Pa. 1999), the federal court for the Eastern District of Pennsylvania squarely addressed the issue of whether a surety bond falls within the scope of section 8371. The district court first sought guidance from the Pennsylvania Superior and Supreme Court and found that neither of these courts had addressed this issue. It also found that the Third Circuit Court of Appeals had never addressed this issue. In discussing Turner, supra and Reading Tube Co., supra, the district court stated:

“Thus, although both courts concluded, implicitly or explicitly, that a party could recover under section 8371 in an action against a surety under the right set of facts, neither had cause to address the specific issue presented to this court and these decisions therefore cannot control this court’s statutory analysis.” Superior Precast, 71 F. Supp.2d at 49.

The district court undertook an extensive analysis of the statutory language. It first found that the term “insurance policy” was not defined in the statute and therefore the court must apply its ordinary meaning. Id. at 451. The district court listed numerous cases and legal treatises that highlighted the vast differences between a surety bond and an insurance policy. The district court also refused to adopt the definition of insurance policy in 40 P.S. § 1171.1 et seq. The court reasoned that “where a statutory term is specially defined in one statute but undefined in a later statute, a court-must assume that the omission was intended by the legislature and that the special definition applies only to the one statute and not to the latter statute.” Superior Precast, 71 F. Supp.2d at 454. The district court found that the term “insurance policy” in section 8371 did not include surety bonds.

In the present case, the court faces the same issue. Stuebner and St. Paul have filed a preliminary objection in the nature of a demurrer to plaintiff’s bad faith allegation. The cause of action is based on a surety bond issued by St. Paul. The threshold question is whether a surety bond is an insurance policy for the purposes of section 8371. We agree with the well-reasoned analysis of the district court in Superior Precast, supra, and find that section 8371 was not intended to include surety bonds. Therefore, Stuebner’s and St. Paul’s preliminary objection in the nature of a demurrer to Count III of plaintiff’s complaint is granted.

Stuebner and St. Paul also filed a preliminary objection in the nature of a demurrer to Count III of plaintiff’s complaint on the grounds that 40 P.S. §1171.1 et seq. does not provide a private cause of action. 40 P.S. § 1171.7 states:

“The commissioner may examine and investigate the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by this act.”

This statute gives the insurance commissioner of Pennsylvania sole authority to investigate claims pursuant to the Pennsylvania Unfair Insurance Practices Act 40 P.S. § 1171.1 et seq. “It is well settled, however, that the UIPA does not provide a private citizen with a cause of action against an insurer.” Great West Assurance Co. v. Levithan, 834 F. Supp. 858,863 (E.D. Pa. 1993); Lombardo v. State Farm Mutual Automobile Insurance Co., 800 F. Supp. 208, 212 (E.D. Pa. 1992). Plaintiff in the present matter is a private citizen attempting to bring a cause of action pursuant to 40 P.S. §1171.1. As it states in both 40 P.S. §1171.7 and in Levithan, supra, only the insurance commissioner may bring a claim pursuant to the UIPA. Therefore, Stuebner’s and St. Paul’s preliminary objection in the nature of a demurrer to the UIPA cause of action in Count III of plaintiff’s complaint is granted.

Stuebner’s and St. Paul’s next preliminary objection in the nature of a demurrer requests that the court dismiss Count V of plaintiff’s complaint. Count V alleges that plaintiff supplied goods to both Stuebner and Williams at their insistence for use in the Monroe County Area Vocational Technical School project. Plaintiff alleges that on or about March 3,1999, plaintiff gave written notice to all three defendants that an obligation in the amount of $1,061.20 remained unpaid. Plaintiff referenced exhibit D of the plaintiff’s complaint as evidence of that written notice. Plaintiff now requests that the court enter judgment against Stuebner and Williams in said amount.

Stuebner and St. Paul allege that the notice referenced as exhibit D is actually a notification to St. Paul of an unpaid obligation in regard to the Stroudsburg School project, not the Vo-Tech project. Stuebner and St. Paul argue that a conflict exists between plaintiff’s averment and the writing referenced exhibit D of the complaint. They further argue that where an inconsistency exists between the allegations in a complaint and a written instrument, the latter will prevail. Framlau Corp. v. Delaware County, 223 Pa. Super. 272, 277, 299 A.2d 335 (1972). Further, when such inconsistency exists, a demurrer will not admit the truth of the averments in the complaint that conflict with the exhibit. Id.

We find that no such inconsistency exists in the present case. Although exhibit D is a letter in regard to the Stroudsburg School project and plaintiff’s averments in Count V concern the Vo-Tech project, this is insufficient to grant Stuebner’s and St. Paul’s preliminary objection in the nature of a demurrer. The exhibit and the averment are not in direct conflict. Exhibit D is proof that a written notice was sent to defendants regarding the Stroudsburg School project. Proof that this letter was sent does not contradict the fact that another letter could have been sent as alleged in the plaintiff’s complaint. Whether written notice was sent with regard to the Vo-Tech project is a question of fact to be resolved by the trier of fact at trial. Therefore, Stuebner’s and St. Paul’s preliminary objection in the nature of a demurrer to Count V of plaintiff’s complaint is dismissed.

Stuebner and St. Paul also assert that because of the contradiction between the averment and exhibit D, the court cannot admit the truth of the averment in assessing whether plaintiff’s cause of action is legally sufficient. Therefore, without this averment plaintiff has no basis upon which to assert its claim against Stuebner and Williams. Since we have already dismissed Stuebner’s and St. Paul’s preliminary objection in the nature of a demurrer to Count V of plaintiff’s complaint, we need not address this claim as it is moot.

Stuebner’s and St. Paul’s next preliminary objection in the nature of a demurrer requests that the court dismiss Count VI. Count VI of plaintiff’s complaint was filed against St. Paul, alleging that St. Paul issued a payment bond for materials supplied to the Vo-Tech project. Plaintiff also alleges that plaintiffs have made a demand for payment and St. Paul has failed to honor the bond. Plaintiff requests relief in the amount of $1,061.20.

Stuebner and St. Paul argue that the court should grant their preliminary objection in the nature of a demurrer because plaintiff has failed to allege that a proof of claim for this amount has been submitted to St. Paul as required by the terms of the payment bond. Without submitting a proof of claim for the amount owed, plaintiff’s claim is not ripe for disposition. St. Paul has not at this juncture breached their duty of payment in regard to the Vo-Tech project. Without plaintiff’s averment that plaintiff has filed a proof of claim with St. Paul, the court finds no method of recovery. St. Paul has not breached any duty owed and therefore the court can find no cause of action under which plaintiff can make a viable claim. Therefore, Stuebner and St. Paul’s preliminary objection in the nature of a demurrer to Count VI of plaintiff’s complaint is granted.

Defendants Stuebner and St. Paul also filed a preliminary objection on the grounds of insufficient specificity in the pleadings of Count IV of plaintiff’s complaint. In Count IV, plaintiff brings a claim against Williams for a separate amount owed on a “shop account.” Plaintiff alleges that at the demand of Williams, plaintiff supplied Williams with goods and merchandise as outlined in exhibit J of the complaint. Plaintiff alleges that it has not been paid on this “shop account” and therefore requests that the court enter judgment in his favor against Williams in the amount of $23,589.83 plus attorneys fees, costs, interest and punitive damages. Stuebner and St. Paul allege that plaintiff refers in Count IV to defendants (plural) although Count IV is initially captioned solely against Williams. Stuebner and St. Paul file this preliminary objection against plaintiff on the grounds of insufficient specificity because it is unclear as to whether plaintiff directs Count IV only against Williams or against all three defendants.

When considering a claim of insufficient specificity, the court must determine if the pleading “adequately explain[s] the nature of the claim to the opposing party so as to permit him to prepare a defense.” Drapeau v. Joy Technologies Inc., 447 Pa. Super. 560,574,670 A.2d 165, 172 (1996) (Beck, J.) (concurrence) (citing Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966) cert, denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967)). The court finds that Count IV is specifically against Williams. Typed just below “Count IV” in the complaint is the caption “M.A. Bruder v. Williams. ” In paragraph 30, plaintiff specifically alleges that Count IV concerns a separate “shop account” held by Williams only. At oral argument, counsel for plaintiff argued that the plural term was used because in the caption to the complaint, any cause of action against defendant Williams includes a cause of action against David Williams both individually and d/b/a Painting & Maintenance Service, a/k/a Williams Painting Service, a/k/a Williams Maintenance Service. These indications are sufficiently clear as to put Stuebner and St. Paul on notice that Count IV only concerns Williams. Therefore, Stuebner’s and St. Paul’s preliminary objection is dismissed.

Accordingly, we enter the following order:

ORDER

And now, June 29, 2000, in consideration of the preKminary objections filed by defendants E.R. Stuebner Inc. and U.S. Fidelity & Guaranty Co., n/k/a St. Paul Fire & Marine, it is ordered as follows:

(1) The first preliminary objection in the nature of a demurrer to Count III of plaintiff’s complaint is granted.

(2) The second preliminary objection in the nature of a demurrer to Count V is dismissed.

(3) The third preliminary objection in the nature of a demurrer to Count VI is granted.

(4) The fourth preliminary objection for insufficient specificity in the pleadings of Count IV of the plaintiff’s complaint is dismissed.

Pursuant to Pa.R.C.P. 1028(e), defendants E.R. Stuebner Inc. and U.S. Fidelity & Guaranty Co., n/k/a St. Paul Fire and Marine shall file an answer to plaintiff’s complaint within 20 days of the date of this order.

      . Both Stuebner and St. Paul are represented by the same counsel and the preliminary objections for counts relating to both parties are contained in the same filing.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Shankler v. Providian Insurance Company

      C.P. of Lackawanna County,
    no. 99-CV-2559.

      Gregory DeVero, for plaintiff Shankler.

      Kevin Canavan, for plaintiff NJM.

      Edward Monsky, for defendant.
    April 6, 2000
   MINORA, J.,

The defendant comes before this court with two preliminary objections to the plaintiffs’ amended complaint. Specifically, the defendant asserts that the plaintiffs’ amended complaint (1) is subject to an alternative dispute resolution agreement which denies the court jurisdiction over the subject matter, and (2) fails to allege a legally sufficient claim or conform to the law or rules of court because under Pennsylvania law, uninsured motorist benefits are not subject to the subrogation rights that a compensation carrier would normally have if the driver of the automobile causing the injury had the common form of liability insurance. Oral arguments were heard before this court on January 20, 2000. Both sides have submitted their respective briefs. As such, this matter is ripe for disposition.

FACTUAL HISTORY

This case results from an automobile accident involving Mr. Shankler while he was acting within the scope of his employment as a bus driver for his then employer Lakeland Bus Lines Inc. New Jersey Manufacturers Insurance Company was the workers’ compensation carrier for Mr. Shankler’s employer at the time of the accident. Providian Insurance Company, defendant, provided Lakeland’s uninsured motorist coverage in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law.

Following the accident, Mr. Shankler received workers’ compensation benefits from NJM under the laws of the state of New Jersey in the amount of $47,288.38. $36,038.38 of this amount was in compensation for medical expenses. Mr. Shankler and the defendant have scheduled an uninsured motorist arbitration hearing pursuant to the terms of the uninsured motorist policy. NJM seeks to recover on a lien settlement distribution or award. Unfortunately, the parties were unable to come to an agreement and the arbitration hearing was stayed pending a determination of the complaint presently before the court.

This opinion concerns the disposition of the defendant’s two preliminary objections: (1) this matter is subject to an alternative dispute resolution agreement which denies the court jurisdiction over the subject matter, and (2) the plaintiffs’ amended complaint fails to allege a legally sufficient claim or conform to the law or rules of court because under Pennsylvania law, uninsured motorist benefits are not subject to the subrogation rights that a compensation carrier would normally have if the driver of the automobile causing the injury had the common form of liability insurance.

DISCUSSION

I. Alternative Dispute Resolution

NJM alleges that because it was never a party to the arbitration agreement entered into between Lakeland and the defendant, it cannot be bound by said agreement. The defendant argues that NJM is bound by the arbitration agreement, thus denying this court jurisdiction over the subject matter of the case. To decide this issue, the court must ask two questions. (1) Was an agreement to arbitrate entered into; and (2) does the dispute in question fall within the arbitration clause. Lincoln University of the Commonwealth System of Higher Education v. Lincoln University Chapter of American Association of University Professors, 461 Pa. 112, 119, 354 A.2d 576, 580 (1976). It is uncontested fact that NJM was not a party to the insurance policy between Lakeland and the defendant. See defendant’s supplemental brief in support of its preliminary objections to the amended complaint,, p. 3. Therefore, although there was an agreement to arbitrate, it did not involve NJM. Accordingly, the dispute which is the subject of this memorandum is not subject to the arbitration clause.

Because NJM was not a party to the agreement, the court lacks the authority to compel NJM to submit to the arbitration agreement within the insurance policy. This is so because an agreement to arbitrate is a contract to submit to the authority of the arbitrators derived from the mutual assent of the parties to the terms of submission. Neshaminy Federation of Teachers v. Neshaminy School District, 59 Pa. Commw. 63,67, 428 A.2d 1023, 1025 (1981). Therefore, even though Mr. Shankler was a party to the arbitration agreement and thus bound to the terms thereof, NJM was not a party and is not bound. As such, the court cannot compel it to submit to the terms thereof. Accordingly, the defendant’s preliminary objection as to this specific issue is denied.

II. Subrogation Lien

The defendant’s second preliminary objection asserts that under Pennsylvania law, uninsured motorist benefits are not subject to the subrogation rights that a compensation carrier would normally have if the driver of the automobile causing the injury had the common form of liability insurance. Standish v. American Manufacturers Mutual Insurance Co., 698 A.2d 599, 601 (Pa. Super. 1997), citing Rhodes v. Automotive Ignition Co., 218 Pa. Super. 281, 275 A.2d 846 (1971). Premised on this, argues the defendant, the court should either dismiss this action (because there is no valid workers’ compensation lien of NJM under Pennsylvania law) or in the alternative, preclude Mr. Shankler from presenting or recovering any amounts with regard to payments of NJM.

The plaintiffs counterargue that New Jersey law should apply under the facts of this case. Further, while Pennsylvania law does not allow for subrogation rights under these circumstances, New Jersey law does. At issue, therefore, is which state’s law is appropriate under the facts of this case.

Pennsylvania decides conflicts of law questions by determining which state has the most significant interest in the matter under dispute. Byard F. Brogan Inc. v. W.C.A.B. (Morrissey), 161 Pa. Commw. 453, 459, 637 A.2d 689, 692 (1994). Under this analysis, the court will apply the law of the state having the most significant (i.e., measured by quality rather than quantity) contacts with the matter in dispute. Brogan, citing Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). Put another way, the state having the most interest in the problem, and which is the most intimately concerned with the outcome, is the state whose law should apply. Brogan, citing Spratley v. Aetna Casualty & Surety Co., 704 F. Supp. 595 (E.D. Pa. 1989).

In the case sub judice, it is the court’s opinion that New Jersey has the most significant interest in the matter and therefore, its laws should apply. NJM is a corporation organized under the laws of New Jersey with its principal place of business in New Jersey. Furthermore, under the facts of this case, Mr. Shankler originally sought and received his workers’ compensation benefits under the laws of New Jersey. In the similar case of Allstate Insurance Co. v. McFadden, 407 Pa. Super. 537, 595 A.2d 1277 (1991), the Superior Court ruled that Pennsylvania had the most significant interest in determining the right of an employer to subrogation where Allstate had made payments to an insured employee under the color of Pennsylvania law. McFadden at 541, 595 A.2d at 1279. Instantly, Mr. Shankler has already been paid benefits under the laws of New Jersey. Accordingly, we find that New Jersey has the most significant interest in this issue and therefore the laws of New Jersey should and shall be applied. Because New Jersey allows for a subrogation lien under the present circumstances, the defendant’s preliminary objection as to this issue is denied.

An appropriate order will follow.

ORDER

And now, to wit, April 6, 2000, it is hereby ordered and decreed that the defendant’s preliminary objections are denied.


author: BLACK, J.,

text:
    Estate of Cooper v. Pinebrook Services for Children and Youth Inc.

      C.P. of Lehigh County,
    no. 93-C-2177.

      Charles Mandracchia and Bruce L. Baldwin, for plaintiffs.

      Frank L. Baker III, for defendants Laidlaw Transit Inc. and Reppert.
    June 28, 2000
   BLACK, J.,

In this wrongful death and survival action plaintiffs have moved for a new trial following a jury verdict in favor of the defendants. The case arises from an incident on October 8, 1991, when plaintiffs’ decedent, April Renee Cooper, a 9-year-old child, was fatally injured. April was struck by a pickup truck as she was attempting to cross 15th Street in the City of Allentown. Shortly beforehand, April had alighted from a school bus owned by defendant Laidlaw Transit Company and operated by defendant Shirley Reppert, a Laidlaw employee.

Plaintiffs Catherine M. Cotturo and George Rick Cooper brought the action as April’s parents and as administrators of her estate. However, legal custody of April at the time of her death was in the Montgomery County Office of Children and Youth Services. This agency had placed April in the physical custody of defendant Pinebrook Services for Children and Youth Inc., a nonprofit organization under contract with the agency to provide foster care services. Pinebrook had placed April in the foster home of defendant Judith Rehrig since November of 1990.

At trial, plaintiffs contended that Reppert and Laidlaw were negligent in dropping April off at an unauthorized and unsafe location. Plaintiffs settled their claims against Pinebrook and Rehrig prior to trial, but these defendants remained as parties in the case for the purpose of apportioning liability.

In response to special interrogatories, the jury found (1) that Reppert was not negligent; (2) that Laidlaw was negligent other than as employer of Reppert, but that Laidlaw’s negligence was not a substantial factor in bringing about April’s death; (3) that April was contributorily negligent, but that her contributory negligence was not a substantial factor in bringing about her death; and (4) that Rehrig was negligent and her negligence was a substantial factor in bringing about April’s death, but that plaintiffs were entitled to zero damages. A molded verdict in favor of all defendants was then entered.

We believe that plaintiffs received a very fair trial and that their allegations of trial error are meritless. Therefore, plaintiffs’ post-trial motion is denied.

FACTS

In reviewing a motion for post-trial relief, we are required to examine the evidence in a light most favorable to the verdict winners, in this case the defendants, and to give them the benefit of all reasonable inferences that may be drawn from that evidence. Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 330, 676 A.2d 1205, 1206 (1996). Hence, for purposes of plaintiffs’ motion the relevant facts are as follows:

April was a hyperactive, impulsive 9-year-old child with a learning disability. She was in the legal custody of OCYS, which had placed her in the physical custody of Pinebrook. Pinebrook assigned Rehrig as April’s foster parent, and from November of 1990 until her death April resided with Rehrig at her home in the City of Allentown. Rehrig is a widow with three children and five grandchildren. She has been a foster parent for 14 years, caring for approximately 55 children over that period of time.

In the fall of 1991, April was enrolled in classes for the learning disabled at the Union Terrace Elementary School in the Allentown School District. She was transported to and from that school on a bus owned and operated by Laidlaw, under contract with the Allentown School District. The bus- was driven on the date of the incident by a Laidlaw employee, Reppert. The contract for school bus service gave the school district the right to select the bus routes and drop-off points. At the beginning of the 1991-1992 school year, the transportation plan established by the school district provided that April would be dropped off every afternoon after school on the east side of 15th Street, directly in front of the Jackson Elementary School. The Rehrig residence was a block and a half from this school, but was on the west side of 15th Street. Thus, for April to get from the drop-off point to her foster home, she had to cross 15th Street.

On several occasions at the beginning of the school year, Reppert observed April darting in front of the school bus and into traffic on 15th Street, presumably to return to her foster home located on the west side of 15th Street. As a result, Reppert changed the bus drop-off point from the east to the west side of 15th Street. Before doing so, Reppert consulted with her supervisor at Laidlaw, Helen Marrah, who obtained verbal authorization for the change from the school district. However, the records of the school district did not contain any mention of this authorization, and school district personnel had no recollection of a request for change.

April often attended activities at the Allentown Girls Club after school. On some days the Girls Club van was available to pick her up in front of the Jackson Elementary School on the east side of 15th Street, opposite the side on which her foster home was located and also opposite the side of the new drop-off point. On other days April would walk from the drop-off point to the Girls Club, which required her to cross a number of streets.

On the afternoon of Tuesday, October 8, 1991, after school, April was picked up at the Union Terrace School and transported by Reppert on the Laidlaw school bus. April was dropped off with some other children at the new drop-off point on the west side of 15th Street. One of the children crossed to the east side of 15th Street under the protection of the flashing red lights on the bus. April did not immediately cross to the east side. However, shortly afterwards, she attempted to do so, presumably to board the Girls Club van in front of the Jackson Elementary School. In attempting to cross the street, April ran into the path of an oncoming pickup truck driven by Thomas Ritter. As a result, she suffered fatal injuries and was pronounced dead on the afternoon of October 8, 1991.

Plaintiffs initially instituted an action in the United States District Court for the Eastern District of Pennsylvania against the current defendants as well as the Allentown School District, its superintendent, and other parties. Federal jurisdiction was alleged on the theory that the actions of the school district and its superintendent had violated the United States Constitution. The district court dismissed the federal claims and refused to exercise pendent jurisdiction over the remaining state claims. Plaintiffs then commenced this action in the Lehigh County Court of Common Pleas against the current defendants and OCYS.

Plaintiffs discontinued their claim against OCYS prior to trial for reasons that do not appear of record.

DISCUSSION

The grant or denial of a motion for a new trial is a matter within the discretionary powers of the trial court. See Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994); Spang & Co. v. United States Steel Corp., 519 Pa. 14, 545 A.2d 861 (1988). Such a motion should be granted where the trial court “has committed an error of law that controlled the outcome of the case.” Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298,305 (Pa. Super. 1999). The trial court may also grant such a motion “when the jury’s verdict is so contrary to the evidence that it ‘shocks one’s sense of justice.’ ” Neison v. Hines, 539 Pa. 516,520,653 A.2d 634,636 (1995) (quoting Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994)); see also, Livelsberger v. Kreider, 743 A.2d 494 (Pa. Super. 1999).

Plaintiffs do not assert as a ground for new trial that the verdict was contrary to the weight of the evidence. However, they do claim that the court committed various errors of law during the course of the trial. Two of plaintiffs’ contentions relate to evidentiary rulings; two relate to the closing argument; and a final contention relates to the jury instructions. We will review these issues in the order in which they arose during the trial.

I. Evidentiary Rulings

A. Evidence That Plaintiffs Asserted Claims Against Other Persons in the Federal Action

Defense counsel was permitted to inquire of Catherine M. Cotturo, one of the plaintiffs, on cross-examination whether her attorneys had filed suit on her behalf in the United States District Court for the Eastern District of Pennsylvania against certain other parties not involved in the current lawsuit, including OCYS; Walter Junowicz, its executive director; Florence Applebaum, Pinebrook’s executive director; the Allentown School District; and Diane Scott, its superintendent. Ms. Cotturo recalled that suit had been filed against OCYS and against the Allentown School District. At first she did not recall the other referenced defendants, but later said she thought they probably had been included in the federal suit.

These questions followed a lengthy sidebar conference, at which counsel discussed with the court the best way to handle this issue. We ruled then, correctly we believe, that defense counsel could ask Ms. Cotturo whether she had filed suit against other parties as a result of this accident, but that defense counsel could not go into the details of the other suit. We further ruled that plaintiffs could then establish that the federal action had been dismissed and that these other parties were not parties to the Lehigh County action.

Plaintiffs’ counsel questioned Ms. Cotturo briefly about the federal lawsuit on redirect examination, eliciting from her the explanation that at the time that lawsuit was filed she had only limited information about the possible involvement of the other parties. The tack taken by plaintiffs’ counsel on redirect examination was to suggest that thé federal action had been filed based on inadequate information, thus implying that the case was dropped once additional information was learned.

On recross-examination defense counsel then asked:

“Miss Cotturo, your attorney got you to say that when you filed these lawsuits you only had a little bit of information about these agencies. Do you recall that testimony a minute ago?”

Defense counsel then had Ms. Cotturo confirm through a few additional questions that she had in fact included the school district and other parties in the federal action. Nothing was said to imply that the school district or any of the other parties had settled the claims against them. The innuendo that remained from the redirect examination was that the federal suit had been filed prematurely before plaintiffs’ counsel had fully investigated the case.

At the trial of this case, one of the central issues was whether the Allentown School District had approved the change in the bus drop-off point from the east to the west side of 15th Street. The school district had the right by contract to designate the bus stops, and Laidlaw’s representative testified that the school district had verbally authorized the change. However, the school district records and personnel could not confirm this. Therefore, plaintiffs argued that the change was made without authorization and hence was improper. They further argued that the result of the change was to increase the risk of harm to April, since she now had to cross 15th Street if she wanted to meet the Girls Club van or walk to the Girls Club. Therefore, it was certainly relevant for the jury to know that plaintiffs, who were now blaming Laidlaw and Reppert for the change in the location of the bus stop, had previously asserted that the Allentown School District and its superintendent, Diane Scott, were at fault in causing April’s death.

Also, since Rehrig and Pinebrook were still in the current case as defendants for alleged inadequate supervision of April, it was relevant to show that plaintiffs had previously sued OCYS, which had legal custody of April, and its executive director. Evidence of the prior federal claims against these other persons tended to show a lack of sincerity on the part of plaintiffs in now seeking to place all the blame for April’s death on Laidlaw and its driver.

As a general rule, all relevant evidence is admissible except as otherwise provided by law. Pa.R.E. 402. However, relevant evidence may be excluded “if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.

Plaintiffs contend that reference to the federal action created the inference that there was a settlement of claims against the other parties. This argument is patently false. There was no mention of a settlement, directly or indirectly. The only inference to be drawn from the evidence was, as plaintiffs’ counsel suggested on redirect ex ami - nation, that the federal action had been filed prematurely before plaintiffs’ investigation had been completed and that the federal action was not pursued once all the facts were learned.

The court specifically authorized plaintiffs’ counsel to elicit the fact that the federal suit had been dismissed, if counsel wished to do so. Plaintiffs’ counsel was not precluded from inquiring about the federal case on redirect examination so long as the information was accurate. During the sidebar conference, plaintiffs’ counsel was asked by the court, “What do you want to ask in response?” His suggestion was that he be allowed to establish that the other defendants were no longer parties in this case, to which the court readily agreed. When plaintiffs’ counsel suggested further the possibility of discussing the jurisdictional issues in the federal case, the court expressed its view that this would cause too much confusion but added, “But if you have any ideas I’ll be glad to consider it.” Plaintiffs’ counsel did not offer any further suggestions.

We do not believe the brief questions regarding the federal claims created any unfair prejudice, confused the issues, or misled the jury. The whole episode consisted of a few questions in a three-day trial. The point was not addressed at all during closing arguments. No request was made by plaintiffs for a special instruction.

Plaintiffs cite Pennsylvania Rule of Evidence 408, which precludes evidence that a valuable consideration was furnished or accepted in compromising or attempting to compromise a claim, for the purpose of proving liability for, or invalidity of, the claim. However, as we have noted, no evidence of a compromise settlement or an offer to settle was presented at trial. Therefore, this rule was not violated.

B. Evidence of the Route April Cooper Followed in Walking From the Bus Stop to the Girls Club

Plaintiff called Rehrig, April’s foster mother, as a trial witness. April had resided with her from November 1990, until the fatal accident of October 8, 1991. On direct examination, plaintiffs’ counsel established from Rehrig that April was involved in the Girls Club after school and that most of the time she was transported there by the Girls Club van, which picked her up on the east side of 15th Street in front of the Jackson school.

On cross-examination, Laidlaw’s counsel questioned Rehrig regarding the route that April followed in walking to the Girls Club from the Jackson school on those days when she did not take the Girls Club van. The following exchange ensued:

“Q. (by Mr. Baker) On line 12 (referring to Mrs. Rehrig’s deposition) your question was, ‘Could you show me where your house is or where she walked?’ And what was your answer?
“Mr. Mandracchia: Your honor, I’m going to object. Only if she was there. . . . I’m not sure if she was there when she walked.”

The court then required Laidlaw’s counsel to establish a foundation. Some other questions followed, and Laidlaw’s counsel never returned to the objected-to ques-. tion. It was never answered. Shortly afterwards, Laidlaw’s counsel asked:

“Q. And then farther down the page the question was asked — you asked, ‘From Jackson?’ And then the question was, ‘Is that where she started?’ meaning from Jackson. And would you read your answer, please.
“A. ‘Yes, they would go up there and down one more street, up Turner and then down.’
“Mr. Mandracchia: Your honor, still the same objection.
“The court: Okay. Are you familiar with the route that April would have followed in walking to the Girls Club?
“A. Yes.
“The court: How are you familiar with that? Did you see her walking there on occasion?
“A. I must have. I must have at one time.
“The court: Okay. We’ll allow the question.
“Q. (by Mr. Baker) Didn’t you walk her to the Girls Club a couple of times to show her the route?
“A. Yes.
“Q. All right. And is it correct that you walked along 15th Street with her?
“A. Yes.
“Q. And that you would cross Liberty Street?
“A. Yes.
“Q. And also that you had showed her how to cross Gordon Street?
“A. Yes.
“Q. And is Chew Street also in there before you get to Turner?
“A. Yes.”

Laidlaw’s counsel continued to develop through Rehrig that April would have had to cross a number of streets in order to reach the Girls Club from the Jackson Elementary School. No further objections were made to this testimony.

Thus, Plaintiffs’ counsel objected to Rehrig’s testimony on only one ground, that no foundation had been established. Plaintiffs’ counsel did not object to her testimony on the ground of lack of relevance.

In its motion for new trial, plaintiffs now claim that this testimony was irrelevant. They also repeat their objection that there was a lack of foundation. As to the alleged lack of foundation, we believe that this objection was properly handled. The witness was prevented from answering the two questions that were objected to until a proper foundation had been developed. The witness never answered the first of these questions. She answered the second only after testifying that she was familiar with the route that April would have followed; that she saw April walking that route on occasion; and that she herself walked April to the Girls Club several times to show her the route.”

As to the alleged lack of relevance, plaintiffs have waived any such objection since their only objection to this testimony at trial was for lack of foundation. See Takes v. Metropolitan Edison Co., 548 Pa. 92, 98, 695 A.2d 397, 400 (1997) (“It is axiomatic that in order to preserve a trial objection for review, trial counsel is required to make a timely, specific objection during trial.”); Aiello v. SEPTA, 687 A.2d 399,403 (Pa. Commw. 1996) (“A party complaining on appeal of the admission of evidence objected to in the court below will be limited to the specific objection made at trial.”); Holy Family Collegev. W.C.A.B. (HalynaKycej), 84Pa. Commw. 109, 115,479 A.2d 24,28 (1984) (“Moreover, the rule is well settled that where the grounds upon which an objection to evidence is based are specifically stated, all other reasons for exclusion are waived and may not be raised on appeal.”). Accordingly, plaintiffs cannot now assert, as a ground for a new trial, that the testimony was not relevant.

Moreover, the questions regarding April’s route to the Girls Club were relevant for several reasons. First of all, plaintiffs themselves opened up this line of inquiry on direct examination by establishing that April went to the Girls Club after school by van most of the time and also went there on days when the van was not available. It was appropriate on cross-examination for the defense to establish the route that April followed on those days when she did not take the Girls Club van. In addition, there were issues in the case as to the negligence of Rehrig and the comparative negligence of April. April’s training and experience in crossing streets was relevant to the jury determinations as to whether Rehrig failed to exercise due care by not meeting April at the bus stop and as to the standard of care to which April should be held.

Finally, it is inconceivable that testimony regarding the route that April would have followed could have been prejudicial to plaintiffs. Whatever April’s precise route was, it was obvious that she would have to cross a number of streets to reach the Girls Club on foot from the Jackson Elementary School.

II. Closing Argument

A. Unrecorded Comments From Defense Table During Plaintiffs’ Closing Argument to the Jury

According to plaintiffs’ counsel, defendant Reppert and Laidlaw representative Helen Marrah, who were seated at the defense table in front of the jury box, made comments that the jury could hear during Mr. Mandracchia’s closing argument. However, as the record shows, although Mr. Mandracchia registered a complaint during his closing argument that comments were being made from the defense table, he never placed on record what those comments were. As the trial judge, I did not hear any such comments, and I have no idea what they allegedly consisted of. Therefore, there is no way in which this issue can justify a new trial.

The record discloses that in the course of his closing argument Mr. Mandracchia stated, “Your honor, I’ve asked for no comments from the defense table.” The court responded, “I’m sorry, I didn’t hear. But if there are, that’s quite out of order.” Mr. Mandracchia then continued his closing argument. Neither at the time of his statement nor at any later time in the trial did he make a record of what he claims was said. Nor did he request any special instructions from the court on this point, nor did he move for a mistrial.

At this late date, plaintiffs’ counsel now complains that the court should have specially instructed the jury to disregard these allegedly improper comments. First of all, the court did not hear any comments and plaintiffs’ counsel never placed on the record the substance of these comments. Second, the court specifically stated that any such comments were “quite out of order.” Any juror would have understood this to mean that such comments were not to be considered. Third, since plaintiffs’ counsel never requested a special instruction during the trial, his complaint at this time is untimely. As the Superior Court stated in Vernon v. Stash, 367 Pa. Super. 36, 49, 532 A.2d 441, 447 (1987):

“An assignment of error that the trial court failed to give a specific instruction will not be considered unless it affirmatively appears from the record that a request for such an instruction was made, that it was denied by the trial court, and that an appropriate objection was taken to the action of the court.”

B. The Closing Argument of Laidlaw’s Counsel

Plaintiffs’ counsel objected to the following closing argument of Laidlaw’s counsel:

“This case is about greed. How many times did Mr. Mandracchia say to you during his closing about what a big company Laidlaw is and how this is a commercial business. Of course it is. Is there anything wrong about hiring employees, paying citizens in the City of Allentown to have employment? No, there isn’t. This case is about sympathy and greed. As I mentioned to you earlier in this case, the sympathy that we feel for April, her parents, has nothing to do with who was at fault for this accident, if anybody was at fault.
“It may be easy for you to go into the jury room and say, well, Laidlaw’s a big company, let’s give them something. That’s not the way our system works and it’s not the way it ought to work, and it will be a grim day for people in our city and in our country if some kid runs out in front of your car sometime or some child — somebody falls on somebody’s sidewalk and some jury looks at this case that way and says, well, let’s give them something. And there was no negligence and no responsibility — .”

Mr. Mandracchia interrupted the argument at this point to interpose the following objection: “Your honor, I object to the way another jury will look on this case.” At first Mr. Mandracchia’s objection was not audible, but after he repeated it several times, the court sustained the objection, stating:

“Oh, yes. We’re not concerned with what another jury would do. That’s true. We’re just dealing with this case.”

Laidlaw’s counsel then continued with another line of argument.

Again, plaintiffs belatedly complain that the court should have given the jury a special instruction to disregard the argument of Laidlaw’s counsel. However, again, Mr. Mandracchia did not request any instruction at the time of his objection. Nor did he request any special instruction during the court’s final charge to the jury. Had such a request been made, the court may have given such an instruction. However, in the absence of a request for a special instruction, the court had no obligation to give one. See Vernon v. Stash, supra.

Moreover, although the court sustained plaintiffs’ objection, a closer reading of the record indicates that plaintiffs’ objection misstated the argument of Laidlaw’s counsel. It appears that Mr. Baker was not asking the jury to consider the way another jury might look on this particular case. He was arguing that it would be wrong for any jury to say that, simply because a defendant is a big company, an injured party should be given an award even though there was no negligence. What Mr. Baker was attempting to impress upon the jury was the need to judge each case on its merits.

Mr. Baker was responding to a clearly “over-the-line” statement by Mr. Mandracchia in his closing about what a big company Laidlaw is. Mr. Baker was also responding to Mr. Mandracchia’s blatant appeal to sympathy in his closing argument, which he delivered in overly theatrical tones, waving around the blown-up photograph of the deceased child. Compared to plaintiffs’ closing argument, the argument presented by Laidlaw’s counsel was a model of propriety.

III. The Jury Charge

Plaintiffs’ complaint about the jury charge is puzzling. The court correctly instructed the jury:

“In determining damages you are not to guess or speculate or engage in conjecture, nor are you to award damages based on sympathy.”

This principle is well established, and our refusal to so instruct the jury would have been improper. See Carroll by Burbank v. Philadelphia Housing Authority, 168 Pa. Commw. 275,280, 650 A.2d 1097, 1100 (1994) (“[A] jury may not award damages on the basis of speculation or conjecture.”).

Plaintiffs complain that the jury was confused because our instruction on pain and suffering damages immediately followed this point. However, plaintiffs’ argument is incorrect in several respects. First, the instruction on pain and suffering did not immediately follow the instruction against guessing or speculating; two other paragraphs intervened. Second, the two instructions are not inconsistent. Obviously, pain and suffering cannot be proven in a specific dollar amount and some degree of estimation is always required. This does not mean that pain and suffering damages may never be awarded. It means that a jury is not to speculate on the extent of the injuries or the extent of the pain and suffering resulting therefrom. But if pain and suffering have been proven, then an amount of money may be awarded even if this requires some degree of estimation.

Finally, this issue was not raised in the charge conference or at any other time during the trial. At the close of the charge, the court asked counsel if there were any additions or corrections they wished to bring to the court’s attention.

At this point, counsel approached and the following sidebar discussion took place:

“Mr. Mandracchia: Just one question. And maybe I heard it wrong, on the pain and suffering what you said was that it still — out of respect for the pain and suffering, that there’s no way to measure — I mean it—
“The court: I didn’t say that.
“Mr. Mandracchia: Okay.
“The court: I said the damages were not to be based on the speculation, guess or conjecture. It’s a pretty standard charge. Do you want me to change that? I can’t. Okay?
“Mr. Mandracchia: Okay.”

Thus, plaintiffs’ counsel never objected to any portion of the charge. He merely asked for clarification of what the court had said. When this was explained, he replied, “Okay.”

Now, at this late date, though acknowledging that the substance of the charge was legally correct, plaintiffs’ counsel claims that the instruction against speculating was stated too close to the instruction on pain and suffering damages. If plaintiffs’ counsel wished to raise this point, they should have objected or asked for a clarifying instruction. This they failed to do. Therefore, this issue has been waived.

Moreover, the jury found that Reppert was not negligent and that Laidlaw, while negligent, was not causally negligent. As to Rehrig, who was the only defendant found causally negligent, the claim against her was settled before trial on a joint tort-feasor release. Therefore, even if there was an error in the charge on damages, it had no effect on the outcome of this case. It certainly cannot be the basis for a retrial of plaintiffs’ claim against Reppert or Laidlaw.

Finally, plaintiffs argue that the jury verdict in this case, awarding zero damages against Rehrig, reflects jury confusion about the charge on damages. However, plaintiffs’ post-trial motion did not claim that the verdict was against the weight of the evidence. Hence, we cannot consider such an issue. Moreover, an award of zero damages was not shocking based on the evidence. The jury could have found that April, who died at the scene, was in a dazed or semiconscious condition from the moment of the impact until she expired shortly thereafter, thus negating any claim for pain and suffering. The jury could also have found that as a learning disabled child, April’s gross earnings during her work life would not have exceeded her maintenance expenses. Laidlaw’s counsel did a very effective job of cross-examining plaintiffs’ expert economist on this point.

For all of these reasons, plaintiffs’ motion for post-trial relief is denied.

ORDER

Now, June 28, 2000, upon consideration of plaintiffs’ motion for post-trial relief, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered that said motion be, and hereby is, denied.

      . During the course of the trial the wrongful death claim was withdrawn. The only claim submitted to the jury was the claim under the Survival Act, 42 Pa.C.S. §8302.

      . N.T. at 25-26.

      . N.T. at 25-30.

      . N.T. at 18-25.

      . N.T. at 18-23.

      . Plaintiffs’ counsel did not request the court monitor to transcribe the redirect examination of Ms. Cotturo. Therefore, we base this statement on our recollection, which is confirmed by the questioning of defense counsel on recross-examination. See N.T. at 27.

      . N.T. at 27.

      . N.T. at 22.

      . N.T. at 21.

      . N.T. at 23

      . N.T. at 70-72.

      . N.T. at 83.

      . N.T. at 84-86.

      . N.T. at 85.

      . N.T. at 69-73.

      . N.T. at 115.

      . Id.

      . N.T. at 129.

      . Id.

      . N.T. at 130.

      . N.T. at 156.

      . N.T. at 156-57.

      . N.T. at 163-64.


author: CUNNINGHAM, P. J,

text:
    Nationwide Mutual Insurance Co. v. Catalfu

      C.P. of Erie County,
    no. 14121-1998.

      John B. Cromer, for plaintiff.

      Craig Markham, for defendant.
    July 14, 2000
   CUNNINGHAM, P. J,

The issue before the court is whether Debbie Jo Catalfu can collect underinsured benefits from an automobile policy issued by the plaintiff, Nationwide, to Ms. Catalfu’s father, Richard Catalfu. Nationwide seeks enforcement of a “household” or “family car” exclusion barring recovery. In response, Ms. Catalfu contends the household exclusion cannot be enforced because it is void for public policy reasons.

The facts are not in dispute. On February 9,1995, Ms. Catalfu was injured when the 1991 Hyundai Excel which she owned and was operating was struck from behind by an automobile driven by Terry A. Fitch. Fortunately, Mr. Fitch was insured and Ms. Catalfu settled her claim against Mr. Fitch for the full limits of his automobile liability policy.

Ms. Catalfu then turned to her own insurance policy for additional benefits. Ms. Catalfu had purchased a contract of insurance with the plaintiff which provided underinsurance coverage in the amount of $25,000 per person/$50,000 per accident. Nationwide paid Ms. Catalfu the full amount ($25,000) of underinsured benefits under this policy.

It is undisputed that at the time of the accident, Ms. Catalfu was living with her parents. Further, her father Richard Catalfu, had purchased an insurance policy with Nationwide covering two family vehicles with under-insured benefits in the amount of $15,000 per person/ $30,000 per accident. Mr. Catalfu also paid an extra premium for the “stacking” option. Accordingly, the maximum underinsured benefits available are $30,000 per person/$60,000 per accident.

Nationwide concedes Ms. Catalfu is a relative who is insured under Richard Catalfu’s policy. However, Nationwide contends that the following contractual language excludes coverage for any underinsured claim by Ms. Catalfu:

“Coverage exclusions
“This coverage does not apply to: ...
“(6) Bodily injury suffered while occupying a motor vehicle owned by you or a relative but not insured for underinsured motorist coverage under this policy; nor to bodily injury from being hit by any such motor vehicle.” See Nationwide endorsement 2358.

Nationwide has filed this declaratory judgment action asserting the household exclusion denies coverage for Ms. Catalfu under her father’s policy. Before the court are cross-motions for summary judgment on this issue. Since the facts are not in dispute, the matter is ripe for summary judgment. See Pennsylvania Rule of Civil Procedure 1035.2.

In the case sub judice, the interpretation of the insurance contract between Nationwide and Richard Catalfu is not at issue. It is uncontroverted the household exclusion, if enforced, would bar any recovery by Ms. Catalfu. The issue is whether this exclusion violates public policy and therefore should not be enforced.

Pennsylvania courts have been rightfully reluctant to rewrite unambiguous contractual language between parties. Antonovich v. Allstate Insurance Company, 507 Pa. 68, 76, 488 A.2d 571, 575 (1985). In essence, a court should only interfere in the contractual relations among parties to prevent action which is clearly against public policy. See Hall v. Amica Mutual Insurance Company, 538 Pa. 337, 347, 648 A.2d 755,760 (1994).

Whether the household exclusion should be rendered unenforceable as against public policy has been the subject of much appellate litigation. According to the Pennsylvania Supreme Court:

“The enforce[ment] of the exclusion is dependent upon the factual circumstances presented in each case.” See Paylorv. Hartford Insurance Company, 536 Pa. 583, 595, 640 A.2d 1234, 1240 (1994).

In Paylor, a husband and wife were killed in a one-car collision involving their motor home. The motor home was insured by Foremost Insurance Company. After recovering benefits from Foremost Insurance Company, the decedents’ estate asserted a claim under a policy with Hartford Insurance Company covering three other vehicles owned by the decedents. Relying on the household exclusion, Hartford denied coverage. Ultimately, the Pennsylvania Supreme Court upheld the enforcement of the household exclusion on the rationale the decedents had intentionally chosen to underinsure their motor home and were attempting to convert the underinsured provisions of the Hartford policy into additional liability coverage for the motor home.

Shortly thereafter, the Pennsylvania Supreme Court likewise allowed the enforcement of the household exclusion in Windrim v. Nationwide Insurance Company, 537 Pa. 129, 641 A.2d 1154 (1994). In Windrim, the claimant was driving an uninsured automobile when allegedly struck by an unknown hit-and-run driver. At the time, the claimant lived with his mother and sought uninsured coverage under a Nationwide policy owned by his mother. Nationwide denied the claim applying the household exclusion. This denial was affirmed by the Pennsylvania Supreme Court on the theory that a party cannot intentionally decide not to purchase insurance for a vehicle and then attempt to rely on a family member’s uninsured motorist coverage in the event of a claim.

Next, the Pennsylvania Supreme Court decided Hart v. Nationwide Insurance Company, 541 Pa. 419, 663 A.2d 682 (1995) again enforcing the household exclusion to deny insurance coverage. In Hart, the claimant recovered the policy limits from an intoxicated individual who struck Hart’s vehicle. At the time of the accident, Hart was insured but had opted not to purchase uninsured or underinsured motorist coverage. Instead, UIM benefits were sought under a separate policy of insurance issued for a family member. While the trial court and Superior Court held the household exclusion was void as against public policy, the Pennsylvania Supreme Court reversed in a per curiam order, citing Windrim v. Nationwide Insurance Company, supra.

More recently, in Eichelman v. Nationwide Insurance Company, 551 Pa. 558,711 A.2d 1006 (1998), the Pennsylvania Supreme Court allowed enforcement of the household exclusion of underinsured coverage for a claimant who had voluntarily chosen not to purchase underinsured coverage on his own vehicle. Specifically, Eichelman received injuries when his motorcycle, collided with a pickup truck. After receiving the policy limits from the truck driver’s insurance carrier, Eichelman sought coverage under two insurance policies maintained by his mother and her husband with Nationwide Insurance Company. At the time, Eichelman had opted not to insure his motorcycle for underinsured motorist coverage. The Pennsylvania Supreme Court concluded: “a person who has voluntarily elected not to carry underinsured motorist coverage on his own vehicle is not entitled to recover underinsured motorist benefits from separate insurance policies issued to family members with whom he resides where clear and unambiguous ‘household exclusion’ language explicitly precludes underinsured motorist coverage for bodily injury suffered while occupying a motor vehicle not insured for underinsured motorist coverage.” 551 Pa. at 567, 711 A.2d at 1010.

A different result was reached by the Superior Court in Burstein v. Prudential Property and Casualty Insurance Company, 742 A.2d 684 (Pa. Super. 1999). The Bursteins were husband and wife returning from a night out when they were involved in. a two-car collision. The Bursteins were in a car provided by Mrs. Burstein’s employer but for which the Bursteins paid $25 per week for personal use. After settling for the liability limits from the tort-feasor’s insurance carrier, the Bursteins sought underinsured coverage under Mrs. Burstein’s employer’s insurance policy. However, the employer’s policy did not have underinsured motorist coverage. Thereafter, the Bursteins filed a claim for underinsured benefits under their personal policies which had underinsured motorist coverage. Pmdential denied the claim based on the household exclusion. The Superior Court, sitting en banc, weighed the competing public policies and determined the household exclusion was unenforceable under these facts.

Against this appellate background, the question of whether the household exclusion is enforceable is still dependent upon the facts of each case. Paylor, supra. In the case at bar, the facts dictate the household exclusion should not be enforced as it would violate the weight of public policy.

The persuasive facts are that Ms. Catalfu has paid for an insurance policy on her Hyundai Excel, including payment for UIM coverage. She collected the full amount of liability coverage from the tort-feasors. Ms. Catalfu had no control over the amount of coverage secured by the tort-feasor. It is not Ms. Catalfu’s fault that her damages exceed the tort-feasor’s coverage. It is likewise not her fault that her damages may exceed the maximum amount of underinsured benefits under her policy with Nationwide. In addition, Ms. Catalfu is clearly insured as a member of the household under her father’s policy with Nationwide, for which a premium was paid for UIM coverage.

Importantly, Ms. Catalfu is not attempting to receive benefits for free. Unlike the claimant in Windrim, Hart and Eichelman, Ms. Catalfu in fact had purchased insurance for the vehicle she was operating and had paid for UIM coverage. Therefore Ms. Catalfu has contributed to the insurance pool from which she now seeks relief consistent with the intent of the Motor Vehicle Financial Responsibility Law that all owners of registered vehicles share in the burden of insurance before obtaining benefits. Windrim, supra, 537 Pa. at 134, 641 A.2d at 1157, quoting Allen v. Erie Insurance Company, 369 Pa. Super. 6, 10, 534 A.2d 839, 840-41 (1987).

It is likewise undisputed that Richard Catalfu paid an additional premium for UIM coverage under his policy. Hence this is not a situation where a household purchased one insurance policy with UIM benefits and other policies, at a reduced premium, without UIM benefits. Thus, the concern expressed by the Pennsylvania Supreme Court in Windrim does not exist in this case since this is not a situation where the Catalfus are attempting to rely on one policy to provide UIM coverage for the entire household.

Further, this is not a case where Ms. Catalfu is attempting to convert UIM coverage to liability coverage. Ms. Catalfu has followed the hierarchy of coverage as set forth in the Motor Vehicle Financial Responsibility Law by first seeking recovery from the tort-feasor, then recovery under her policy and next recovery under her father’s policy. It is only when these underinsured limits have been exhausted, which they have, and her injuries remain, that she sought coverage under the policy of her father. In so doing, Ms. Catalfu has not attempted to convert UIM benefits into liability coverage. In fact, as Ms. Catalfu correctly points out, there is no additional insurance coverage she could have purchased.

This is also not a case where the containment of the “spiraling” costs of insurance is a policy issue. Ms. Catalfu and her father have purchased separate policies. The Catalfus are not uninsured claimants seeking to pass along the costs of an uninsured claim to those who pay for insurance. Instead, the Catalfus are simply asking for benefits for which they have each paid a premium.

As the Pennsylvania Superior Court recognized: “the MVFRL was enacted in order to establish a liberal compensatory scheme of underinsured motorist protection.” See Burstein, supra, 742 A.2d at 687.

Further, “[I]t is in the public’s best interest for insurance companies to provide underinsurance motorist coverage.” Burstein, 742 A.2d at 687.

By its holding in Baylor, supra, obviously the Pennsylvania Supreme Court recognized the existence of a factual scenario in which the household exclusion was void and unenforceable. The facts of the instant case present just such a scenario; indeed this case is a classic example of the need to provide UIM coverage under the Motor Vehicle Financial Responsibility Law.

CONCLUSION

For the foregoing reasons, the household exclusion is void as against public policy and unenforceable. Therefore the motion for summary judgment filed by Nationwide Insurance Company is hereby denied. The motion for partial summary judgment filed by the defendant is hereby granted.

ORDER

And now to-wit July 14,2000, for the reasons set forth in the accompanying opinion, the motion for partial summary judgment filed by the defendant is hereby granted; the cross-motion for summary judgment filed by the plaintiff is hereby denied

      . Nationwide initially filed this declaratory judgment action alleging Ms. Catalfu waived any right to stack underinsured benefits because the policy she purchased for the Hyundai Excel waived any stacking. The waiver issue was resolved in favor of Ms. Catalfu by order dated October 11, 1999.


author: LOUGHRAN, P.J.,

text:
    Lauffer v. Sheetz Inc.

      C.P. of Westmoreland County,
    no. 2200 of 1999.

      Kevin Flaherty, for plaintiffs.

      Alexander P. Bicket, for defendant.
    July 10, 2000
   LOUGHRAN, P.J.,

On June 9, 1998 at approximately 8 p.m., the husband plaintiff was lawfully on defendant’s premises for the purpose of purchasing cigarettes. As the husband plaintiff was in the process of exiting the premises he encountered another patron entering defendant’s place of business and proceeded to hold the door open for the patron. Upon releasing his hand from the door and turning to continue to exit the husband plaintiff collided into a pipe batten, that was approximately 30 3/8 inches in height, was taken off his feet and landed on top of the pipe batten. As a result of this incident, the husband plaintiff sustained severe and serious injuries to his scrotum and testicles.

The defendant Sheetz has moved for summary judgment contending that the danger was so obvious and known that Sheetz cannot be held liable to the plaintiffs.

Summary judgment should not be entered unless a case is free from doubt; the moving party must prove that there is no genuine issue of material fact to be tried and that it is entitled to judgment as a matter of law and, moreover, the record must be viewed in light most favorable to non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Richland Mall Corp. v. Kasco Construction Co., 337 Pa. Super. 204, 486 A.2d 978 (1984).

The Pennsylvania cases that discuss known or obvious dangers have adopted section 343A(1) of the Restatement (Second) of Torts which in pertinent part states:

“Section 343A. Known or obvious dangers
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

In the opinion of this court, the placement of a pipe batten 30 3/8 inches in height near a doorway itself creates a question of fact as to the foreseeability of harm to those business invitees using the doorway. Comment f to section 343A of the Restatement (Second) of Torts is appropriate to the fact situation at hand. It states:

“Such reason to expect harm to the visitor from known or obvious dangers may arise, for example where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.”

Under the facts here, the husband plaintiff was distracted by holding the door open for another patron and while in the process of doing that, could well have forgotten or been distracted from the pipe which was in such close proximity to the door.

These are all questions of fact for the fact-finder and, as such, prevent the granting of a summary judgment motion.

Accordingly, defendant’s motion for summary judgment will be denied.

ORDER

And now, to wit, July 10,2000, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the defendant’s motion for summary judgment is hereby denied.


text:
    Lake Naomi Club v. Pinecrest Development Corp.

      C.P. of Monroe County,
    no. 3679 CV 2000.

      Ronald J. Reybitz and Brian E. O’Neill, for plaintiff.

      John T. Carroll, for defendant.
    June 23, 2000
   WORTHINGTON, J.,

On May 31, 2000, plaintiff filed an action for declaratory judgment, requesting that the court decide the legal relationship between the plaintiff and defendant by reason of an agreement entered into in 1984. Plaintiff requests that the court find that a valid, enforceable contract exists between plaintiff and defendant for the use of the Beaver Brook recreational facility by reason of the aforesaid agreement. Plaintiff simultaneously filed a petition for preliminary injunction, requesting that the court prohibit defendant from denying plaintiff access to Beaver Brook, pending a further hearing. We held a hearing on the preliminary injunction on June 15, 2000 and will now rule on the matter.

FINDINGS OF FACT

(1) Plaintiff, Lake Naomi Club, (LNC), is a developed resort community comprised of the Lake Naomi and Timber Trails subdivisions. These two subdivisions include approximately 1,850 family residences, 85 percent of which are occupied only on a seasonal basis as vacation homes.

(2) Membership in the Lake Naomi Club requires ownership of property within the Lake Naomi Club community and payment of membership fees. Approximately 1,350 of the 1,850 homeowners are members of the Lake Naomi Club.

(3) Logan Steele was the president of the Pinecrest Lake Club, (PLC), a subsidiary of Deer Run Inc., until his death on September 14,1986. Pinecrest Development Corporation, (PDC), owned and operated by Edward Carroll, purchased Deer Run Inc., including PLC, from Mr. Steele’s estate.

(4) Pinecrest Lake Club (now PDC) is a developed resort community that consists of families who utilize the residences mostly as weekend and vacation homes.

(5) LNC and PLC (now PDC) are adjoining properties separated only by Pa. Route 940. LNC is north of Route 940 and PDC is to the south.

(6) Logan Steele developed LNC in the early 1960s and PLC in 1984.

(7) Logan Steele sent a letter, dated May 14,1984, to A1 Weigand, then serving as president of the LNC Board of Governors, proposing to move LNC’s then existing recreation center to a location on PLC property at no cost to LNC. Mr. Steele would also expand the facility to include an ice-skating rink, an all-purpose sports field, hiking trails and cross-country skiing trails. (See plaintiff’s exhibit 1.)

(8) LNC must allow PLC members to use the Lake Naomi Clubhouse, the Timber Trails Golf Club, and the Timber Trails Equestrian Center.

(9) On July 28,1984, the Lake Naomi Board of Governors Ad Hoc Pinecrest Committee met to discuss Mr. Steele’s proposal and the minutes of that meeting were transcribed. (See plaintiff’s exhibit 2.)

(10) Mr. Steele sent a letter, dated September 12,1984 to A1 Weigand stating that he had reviewed at length the Board of Governors Ad-Hoc Pinecrest Committee minutes of the July 28, 1984 meeting and that he was in agreement with the plan that was “spelled out in the minutes of the ad-hoc committee” meeting. (See plaintiff’s exhibit 3.)

(11) PDC, at the direction of PLC commenced construction of the Beaver Brook recreational facility, located on PLC (now PDC) property, in late 1984 and continued until early 1986.

(12) From 1986 until present, LNC has created and administered summer day camps at Beaver Brook which are open to members of LNC, PLC, and presently to members of PDC.

(13) From approximately 1990 to June of 1997, Wee Wons Day Care Center, at the behest of PDC, created and administered summer day camp programs at Beaver Brook. PDC received $25,000 in rental income from Wee Wons annually. Both Wee Wons’ programs and LNC programs were run at the Beaver Brook recreational facility.

(14) LNC has been responsible for all expenses related to indoor maintenance and operation of Beaver Brook and PDC is responsible for all expenditures related to property ownership. LNC pays approximately $ 15,000 per year in operating expenses for Beaver Brook.

(15) LNC has spent approximately $17,000 in expenses related to advertising their upcoming summer programs. The advertising includes the creation and distribution of flyers and booklets outlining the facilities, the programs and the events scheduled.

(16) LNC has expended approximately $10,000 in payroll for the 30 staff members who will be directly involved in the LNC summer day camps.

(17) Since the fall of 1999, the parties have attempted to negotiate different terms for the management of the Beaver Brook recreational facility. The parties ceased negotiating on April 29,2000, when the most recent proposal was declined by LNC.

(18) PDC, by letter dated May 10,2000, informed LNC that it would be denied access to the Beaver Brook facility.

(19) PDC has contracted with Wee Wons to provide summer camp programs during the year 2000 summer. PDC is not receiving any rental or other income from Wee Wons for use of the Beaver Brook facility.

(20) LNC cannot operate its summer camp without disruption if Wee Wons is allowed to operate at the same location.

DISCUSSION

LNC requests that the court grant them a preliminary injunction, enjoining PDC from denying LNC and its ¿mployees exclusive access to the Beaver Brook recreational facility until further hearing. Pa.R.C.P. 1531 states that in determining whether a preliminary injunction should be granted, the “court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require.” A preliminary injunction is an extraordinary remedy that should only be granted where a party established a clear right to the relief requested and when there exists a need for unusual haste so that a clear right may be protected from immediate and irreparable harm. Soja v. Factoryville Sportsmen’s Club, 361 Pa. Super. 473,478 n.l, 522 A.2d 1129,1131 n.l (1987).

The purpose of a preliminary injunction is to preserve the status quo and to prevent irreparable harm until the merits of the dispute can be heard. Kee v. Pennsylvania Turnpike Commission, 743 A.2d 546,549 (Pa. Commw. 1999). It operates to maintain the status of affairs as they existed prior to the underlying dispute. The court must determine whether the activity sought to be restrained is actionable and reasonably subject to abatement by the issuance of a preliminary injunction. New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978); West Penn Specialty MSO Inc. v. Nolan, 737 A.2d 295 (Pa. Super. 1999).

Once the court has determined that the activity sought to be restrained is actionable and that it is reasonably subject to abatement, the court must also determine whether: (1) relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) greater injury will occur from refusing the injunction than granting it; and (3) whether the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful act. Warehime v. Warehime, 722 A.2d 1060, 1063 (Pa. Super. 1998); Schaeffer v. Frey, 403 Pa. Super. 560,565,589 A.2d 752, 754-55 (1991); Ucheomumu v. County of Allegheny, 729 A.2d 132, 134 (Pa. Commw. 1999).

In the present matter, the court must first determine whether the conduct sought to be restrained is actionable. A court sitting in equity cannot grant a preliminary injunction unless this first requirement is met. Warehime, 722 A.2d at 1063. As stated earlier, LNC has filed a declaratory action, requesting that the court find that a valid, enforceable contract exists between LNC and PDC by reason of the agreement reached in 1984 between Logan Steele, then president of PLC, and LNC. On May 14, 1984, Mr. Steele sent a letter to A1 Weigand stating that he wished to address the board of governors regarding a proposal to create a new recreational facility that would be beneficial to both groups. Plaintiff’s exhibit 2 is the minutes of the meeting of a special committee created for the purpose of addressing Mr. Steele’s proposal. On September 12, 1984, Mr. Steele sent a letter to A1 Weigand stating that he had reviewed at length the minutes of the meeting. He also stated that although the minutes of the meeting committed him to do more than he had planned and restricted some of the actions which he might have taken, he agreed to the terms of the agreement as spelled out in the minutes of the meeting. Within a few months, construction of the new facility by PDC began and Beaver Brook was fully constructed by the spring of 1986. Relying on Mr. Steele’s proposal to construct a new recreational facility, LNC converted their former recreational facility into administrative offices. The question before us is not whether a contract does exist, but whether at a later hearing on the merits of the underlying action, LNC has a reasonable probability of success.

After reviewing all the pertinent facts, the court finds that LNC has a reasonable probability of success in proving that the agreement between PLC and LNC created an irrevocable license to use the Beaver Brook recreational facility for LNC’s summer camp programs. We will first address the formation of the license agreement between the parties. A contract is created where there is mutual assent to the contract by parties who have the capacity to contract. Shovel Transfer and Storage Inc. v. Pennsylvania Liquor Control Board, 559 Pa. 56, 62-63, 739 A.2d 133, 136 (1999). If the parties agree upon the essential terms and intend them to be binding, a contract is formed even though they intend to adopt a formal document with additional terms at a later date. Hartman v. Baker, 2000 WL 527891 *3 (Pa. Super. 2000). Where the existence of an informal contract is alleged, it is essential to the enforcement of such an informal contract that the minds of the parties should meet on all the terms as well as the subject matter. “If anything is left open for future [negotiation], the informal paper cannot form the basis of a binding contract.” Isenbergh v. Fleisher, 188 Pa. Super. 99, 106,145 A.2d 903, 907 (1958). The conduct of the parties may be taken into consideration to show whether the parties are engaged in a contract. Schreiberv. Olan Mills, 426 Pa. Super. 537,541-42, 627 A.2d 806, 808 (1993). An agreement is definite if it indicates that the parties intended to make a contract and if there is an appropriate basis upon which the court can fashion a remedy. Biddle v. Johnsonbaugh, 444 Pa. Super, 450, 458, 664 A.2d 159, 163 (1995).

In the present matter, the court finds that LNC has a reasonable probability of success at a future hearing on the merits of whether a contract exists. We believe that a meeting of the minds occurred on all the essential elements for the creation of a contract for an irrevocable license. Mr. Steele sent a letter to A1 Weigand outlining a proposal by which Mr. Steele would undertake moving LNC’s then recreational center to a location on PLC property and expand it. He agreed to accomplish this at his own expense. In return he asked that members of PLC be allowed access to certain facilities controlled by LNC.

At the Board of Governors Ad-Hoc Pinecrest Committee meeting on July 28, 1984, the specific issue of Mr. Steele’s proposal was discussed. The minutes of that meeting show that LNC was concerned about their present recreational facility. The board members discussed the advantages and disadvantages of Mr. Steele’s proposal and outlined what each party’s prospective duties would be. In a letter dated September 12,1984, Mr. Steele wrote to A1 Weigand that he had read the minutes of that meeting. He noted that there were differences between what he had proposed and what the board believed that he had proposed. Nevertheless, Mr. Steele agreed to the undertaking as spelled out in the minutes of that meeting. The Beaver Brook recreational facility was completed in 1986, and since that time LNC has operated summer day camps every year until the present year when PDC refused LNC access to the site. Jeffrey Evans, executive vice president of LNC stated that PLC and PDC members are allowed access to all the LNC facilities and programs outlined in the agreement.

The only term not discussed was the termination date of the agreement. In Pennsylvania, a license is generally considered a mere personal “privilege to perform an act or series of acts on the land of another.” Dailey’s Chevrolet Inc. v. Worster Realties Inc., 312 Pa. Super. 275, 281, 458 A.2d 956, 960 (1983). A license is ordinarily revocable at will. Kovach v. General Telephone Co. of Pa., 340 Pa. Super. 144, 148, 489 A.2d 883, 885 (1985). If a license is granted and is then followed by the expenditure of money on faith of that agreement, the license is irrevocable and is treated as a binding contract. Id.; Cole v. Ellwood Power Co., 216 Pa. 283,289, 65 A. 678,680 (1907). “Once irrevocability is established successor in title takes subject to an irrevocable license if they had notice of the license before the purchase.” Id. (quoting Harkins v. Zamichieli, 266 Pa.Super. 401,407-408, 405 A.2d 495, 498 (1979)).

In the present matter, LNC has expended money in reliance on the agreement. The former LNC recreational facility was destroyed to make room for an administrative building. They never built their own recreational facility because they relied on the Beaver Brook facility. They have paid for the year round maintenance and operating costs of the facility even though LNC uses the facility primarily during the summer months. Further, LNC has expended approximately $17,000 in advertising the upcoming events as well as $10,000 for personnel for the summer camps. We find that the activity sought to be restrained is actionable and that LNC has a reasonable probability of success.

The second requirement for a preliminary injunction is that the issuance of a preliminary injunction will abate the alleged wrongdoing. In this matter, the issuance of the preliminary injunction would abate the alleged wrongdoing because it would allow LNC to access the Beaver Brook facility and resume preparations for the summer camps. LNC has been planning these summer camps since September of 1999 and has spent money advertising these events. The grant of the preliminary injunction would also allow the parties to return to the positions that they were in prior to PDC denying LNC access to Beaver Brook.

LNC must also prove that they will suffer irreparable harm that is not compensable by damages. Warehime v. Warehime, 722 A.2d 1060, 1063. An injury is regarded as ‘irreparable’ if it will cause damage which can be estimated only by conjecture and not by an accurate pecuniary standard. Sheridan Broadcasting Networks Inc. v. NBN Broadcasting Inc., 693 A.2d 989 (Pa. Super. 1997). In this case, LNC will suffer more than money damages. If the preliminary injunction is not granted, LNC would have wasted $17,000 in advertising expenses plus any payroll expenditures in preparation for the summer camps. The irreparable harm that will be suffered is that its members will be unable to use these advertised children’s summer camps. As testified by Jeffrey Evans, executive vice president of LNC, a majority of the homes in the LNC and Timber Trails communities are comprised of vacation and summer homes. Members of these communities have come to expect these summer camps, especially since the camps have been advertised. LNC may lose members because they do not have the facilities to provide these programs without the use of Beaver Brook. This loss would amount to loss of goodwill, which the Superior Court in West Penn Specialty MSO Inc. v. Nolan, 737 A.2d 295 (Pa. Super. 1999) found to be an irreparable harm. Many of the people who vacation in LNC expect that there will be summer camps. Without these camps, some vacation-goers may simply cease to visit the area or cease their memberships to the Lake Naomi Club. Therefore, LNC will suffer irreparable harm if this court does not grant the preliminary injunction,

The fourth requirement that LNC must prove is that a greater injury will occur from refusing the injunction than granting it. Warehime v. Warehime, 722 A.2d at 1063. Edward Carroll, president of PDC testified that Wee Wons, a third party, has been hired to provide summer camp activities at Beaver Brook. He testified that he knows of 27 children who have been enrolled in the Wee Wons program. Jeffrey Evans testified that over 100 youths have already signed up for the summer programs provided by LNC, but this number could increase as high as 200 youths, The LNC programs are open to both members of LNC and PDC and have been in existence since 1986 at the Beaver Brook facility. Mr. Carroll also testified that he is not receiving any rental income from Wee Wons for the use of Beaver Brook.

If the court does not grant the preliminary injunction, LNC will suffer a greater harm in that they have expended money and made preparations for the summer events. In addition, 100 children would have to be enrolled in another program, if such an alternate program exists. PDC would not suffer any great harm. Only 27 children have been enrolled in the Wee Wons program as compared to over 100 children in the LNC programs. Mr. Carroll also testified that he is not receiving any rental income from Wee Wons and therefore the grant of a preliminary injunction would not cause him any monetary loss. The court finds that greater harm will result if the preliminary injunction is not granted than if the court were to grant LNC a preliminary injunction.

The final requirement that LNC must meet is whether the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful act. Warehime v. Warehime, 722 A.2d at 1063. If the preliminary injunction is granted, LNC will regain access to the Beaver Brook facility, as they did prior to PDC refusing them admittance. LNC has created and administered summer day camps at Beaver Brook since 1986 and is ready to continue doing so. The preliminary injunction will return the parties to their positions prior to PDC denying LNC access. We find that LNC has met this burden.

Accordingly, we enter the following order:

ORDER

And now, June 23, 2000, it is ordered as follows:

(1) Plaintiff’s petition for preliminary injunction is granted. Defendant Pinecrest Development Corporation is enjoined from denying plaintiff Lake Naomi Club exclusive access to the Beaver Brook Recreational Facility for the duration of the plaintiff’s summer camp programs.

(2) A hearing on plaintiff’s action for declaratory judgment is set for September 20,2000 at 9:30 a.m. in courtroom no. 5, Monroe County Courthouse, Stroudsburg, Pennsylvania.

(3) All discovery shall be concluded within 60 days from the date of this order.

(4) Counsel shall file with the court and provide to opposing counsel a pre-trial memorandum meeting the requirements of 43 J.D.R.C.P. 212(6) at least 15 days prior to hearing.

(5) Within seven days from the date of this order, plaintiff shall deposit the sum of $5,000 with the Monroe County prothonotary’s office in accordance with Pa.R.C.P. 1531(b)(2).

(6) Donna Conte, official court stenographer is directed to transcribe the notes of testimony of the hearing held on June 15,2000 and make copies thereof available to counsel for both parties. The foregoing testimony shall be admitted as part of the record at the trial of this proceeding. Each counsel is directed to deposit the sum of $ 125 with the official court stenographer toward the costs of transcription of the notes of testimony.