author: KOPRIVA, J,

text:
    Van Scoyoc v. General Foam Corp.

      Andrew J. Leger Jr., for plaintiffs.

      Walter F. Wall, for defendants.
    March 15, 1990
   KOPRIVA, J,

Before the court for disposition are the preliminaiy objections of both named defendants.

FACTUAL BACKGROUND

Plaintiffs initiated this action on April 19, 1989 by filing a complaint which alleges damages against defendant General Foam Corporation (count I — warranty) and Cambria Equipment Company (count II — warranty). These damages consist of inter alia, damages arising as a result of personal injuries suffered by plaintiff Herbert Van Scoyoc as a result of carpet and/or carpet padding allegedly manufactured, sold, supplied, designed, assembled, prepared, distributed and/or serviced by defendants. Both defendants filed preliminary objections to the complaint. Defendant General Foam joins in the preliminary objections of its co-defendant Cambria Equipment Company and further incorporates by reference Cambria Equipment’s argument into its brief. Defendants raise the following issues.

DEMURRER

Whether a Claim Based on Breach of Warranty Seeking Damages Exclusively for Physical Harm Sets Forth a Valid Cause of Action

Defendants argue that a warranty action cannot be maintained where damages sought are solely for personal injuries. Defendants submit the proper theory of recovery to be negligence and/or strict liability. Defendants have asked this court to dismiss plaintiffs’ complaint as it fails to set forth a cause of action upon which relief may be granted.

In their argument, defendants cited cases which hold that when a defective product injures only itself, and thus damages are sought for economic loss, the action may only be maintained under breach of warranty and not in negligence or strict liability. Defendants assume the inverse of these holdings to be true. In other words, a plaintiff seeking only recovery for personal injuries, caused by a defective product, must proceed in negligence and/or strict liability and not under breach of warranty.

This court cannot accept defendants’ reasoning in light of our research of Pennsylvania law governing warranty actions. We direct defendants to Pennsylvania’s adoption of the Uniform Commercial Code found at 13 Pa.C.S. §2715, entitled Incidental and Consequential Damages. Section 2715(b)(2) states:

“Consequential Damages — Consequential damages resulting from breach of the seller include:

“(2) injury to person or property proximately resulting from any breach of warranty.”

The above-quoted section from Pennsylvania’s adoption of the Uniform Commercial Code clearly provides for the recovery of damages for personal injury in an action for breach of warranty. However, the question still remains as to whether an action for breach of warranty is proper where the plaintiff is seeking damages exclusively for physical harm. Although there appears to be no case directly on point with this issue, we find instructive several Pennsylvania cases which analyze the question of the proper statute of limitations to apply in breach of warranty actions.

One such case is Jablonski v. Pan American World Airways Inc., 863 F.2d 289 (3d Cir. 1988). In this case, plaintiff-passenger sought only to recover damages for personal injuries sustained during a rough landing. The court’s discussion centered on which Pennsylvania statute of limitations should be applied, the two-year period applicable for tort actions, or the four-year contract period. The Court of Appeals, citing Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964), stated as follows:

“We have uncovered only one exception to the general rule that an action brought solely to recover damages for personal injuries must be commenced within the two-year limitation period. A suit to recover damages for personal injuries arising from breach of warranty in the sale of goods must be commenced within the four-year limitation period.”

Gardiner, supra, involved a personal injury claim based on breach of warranty. Defendants filed preliminary objections claiming that the action was barred by the two-year statute of limitations applicable to actions for damages for personal injury. In concluding that the “four-year period of limitation on all actions for breach of contracts for sale, irrespective of whether the damages sought are for personal injuries or otherwise,” would apply, the Pennsylvania Supreme Court stated that:

“In this Commonwealth we have always recognized that a personal injury claim based upon a breach of warranty is a distinct claim from a personal injury claim based on negligence.” Gardiner, supra, (citations omitted)

In light of the above discussion, we find that a claim based on breach of warranty seeking damages exclusively for physical harm does set forth a valid cause of action according to Pennsylvania case law. See also, Hahn v. Atlantic Richfield Company, 625 F.2d 1095 (1980), cert. denied 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed. 2d 816; Williams v. West Penn Power Co., 502 Pa. 577, 467 A.2d 811 (1983); Engelman v. Eastern Light Co., 30 D.&C. 2d 38 (1964).

MOTION FOR A MORE SPECIFIC PLEADING

Whether a Party Alleging in Their Complaint Liability Upon Express Warranties Must Specify Whether the Express Warranties Were Reduced to a Writing or Oral in Nature and if in Writing, Must Attach a Copy of Same

Pennsylvania Rule of Civil Procedure 1019(h) states:

“A pleading shall state specifically whether any claim or defense set forth therein is based upon a writing. If so, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to him, it is sufficient so to state, together with the reason and to set forth the substance of the writing.”

Pennsylvania Rule of Civil Procedure 1019(h) simply provides that if an action is based on a writing, of any sort, the complaint must so state. Plaintiffs in their complaint do not aver that their warranty action is based on a writing. In both count I and count II, plaintiffs refer to the breach of express and implied warranties as the basis for their claim. Defendants argue that rule 1019(h) requires plaintiffs to specify whether the express warranties are written or oral.

Our research of Pennsylvania case law indicates that defendants are asking plaintiffs to do more than the rule requires. If a complaint says nothing about the existence of a written agreement, as a general rule it is automatically an averment that the agreement is not written. 2 Goodrich-Amran 2d §1019(h):l, at 164; Harvey Probber Inc. v. Kauffman, 181 Pa. Super. 281, 124 A.2d 699 (1956); Goodbody & Co. v. Levine, 46 D.&C. 2d 494 (1969). It is only if the claim is “based upon a writing” that the duty is placed upon the plaintiff to set forth whether the agreement is written or oral. Goodrich-Amran 2d, supra at 165; Johnston v. Shapp, 57 D.&C. 2d 753, 756 (1972). Plaintiffs have not asserted that the action is based on a writing. Therefore, defendants may correctly conclude that the express warranties alleged are oral.

We have reviewed the case that defendants cite in support of their position, Grove v. York County Gas Company, 25 D.&C. 2d 522 (1962). Although Grove does involve alleged express and implied warranties, the opinion does not address rule 1019(h) nor does it discuss the reasoning behind requiring plaintiff to state whether the express warranty was written or oral. We do not consider Grove to be persuasive inasmuch as it is contrary to the consensus of authority which holds that silence is permissible unless the agreement sued upon is in writing. See Lohbrandt v. Smiley, 37 D.&C. 2d 459 (1965); Rosen v. Lufthansa Airlines, 41 D.&C. 2d 701 (1966); Reston v. Ambrosia Coal & Construction, 4 D.&C. 3d 132 (1977).

MOTION TO STRIKE

Whether an Allegation of a Breach of Warranty for Materials That Are “Fit and Safe for Their Anticipated and Intended Use Is Sufficient to Form the Basis of a Breach of Warranty Action and Complies With the Rules of Civil Procedure

Defendants point to paragraphs 6 and 15 of plaintiffs’ complaint in alleging that the complaint fails to set forth the facts needed to plead breach of warranty. Said paragraphs state in relevant part that defendants “expressly and impliedly warranted that the carpet and carpet padding were merchantable, fit and safe for their anticipated and intended use.” Defendants contend that these allegations are “void, vague and of such general nature that a response cannot be made without further clarification.” (Defendant Cambria Equipment’s brief at 7.)

To properly plead a breach of warranty, the warranty must be alleged as well as the facts constituting the breach. 22 Standard Pa. Practice 2d §22:62, 301. In determining the sufficiency of the complaint, we will look to the entire complaint and not just at paragraph 6 and 15 to which defendants refer.

In reviewing paragraphs 6, 7, and 8 of count I and 15,16, and 17 of count II, it is clear that plaintiffs are claiming a breach of the implied warranty of merchantability as set forth in 13 Pa.C.S. §2314. This warranty is implied by law in sales of goods by a merchant unless specifically excluded. Section 2314(b)(3) states as follows:

“(b) Merchantability standards for goods — Goods to be merchantable must be at least such as:

“(3) are fit for the ordinary purposes for which such goods are used;. . .”

Plaintiffs use the term “merchantable” or “merchantability” in paragraphs 6, 7, 8 and 15, 16, 17 when referring to the warranties that were allegedly breached. Additionally in paragraphs 6 and 7, plaintiffs use the phrase “fit and safe for their anticipated and intended use” to aver the warranties that were breached. Variations of this phrase are also used in paragraphs 6, 8, 16 and 17.

Fitness for the ordinary purposes for which goods of the type are used is a fundamental concept of the implied warranty of merchantability. See note 8 of comments to 13 Pa.C.S. §2314. As such, we find the phrase “fit and safe for their anticipated and intended use” to refer to merchantability. The intended use, or normal use (see complaint, paragraphs 7, 8, 15 and 16) of carpet and carpet padding is obvious. The complaint at paragraphs 5 and 14 states that the carpet was installed in plaintiffs’ home. In light of the above, we disagree with defendants’ allegation that plaintiffs have failed to set forth the facts essential to determine what is meant by “fit and safe” and the anticipated and intended use of the carpet and/or carpet padding.

We note that the complaint refers to express warranties in addition to the implied warranty of merchantability. Express warranties may be created by various means. See 13 Pa.C.S. §2313. The scope and purpose of an express warranty will vary from situation to situation. Plaintiffs’ complaint fails to set forth with sufficient specificity the substance of the express warranties averred, nor does it allege the manner in which the warranty was created. If plaintiffs intend to rely on an express warranty, such specific facts must be set forth in the complaint. See Sellers v. Sharon Chrysler-Plymouth Inc., 49 D.&C. 2d 483 (1970).

As we have determined that plaintiffs’ complaint alleges a breach of the implied warranty of merchantability, we will now address the question of whether the complaint sets forth facts constituting the breach with sufficient specificity. Defendants cite Toth v. Glessner, 16 D.&C. 3d 388 (1979), which discusses the specificity required when pleading breach of warranty. Toth holds that an allegation that a product is defective is inadequate in that it does not sufficiently apprise a defendant of the things against which he must defend.

The complaint in the case now to be decided clearly alleges more than a mere defect in the carpet and padding. Paragraphs 9 and 18 set forth that the carpet contained “excess amounts of formaldehyde and/or formic acid and/or other noxious chemicals.” We find that these paragraphs describe the alleged breach with sufficient specificity so as to allow defendants to prepare a defense.

In accordance with the above opinion, we find the following order to be appropriate.

ORDER

And now, March 15, 1990, it is hereby ordered, directed and decreed, that the preliminary objections of defendants, General Foam Corporation and Cambria Equipment Company, are disposed of as follows:

(1)Demurrer to the plaintiffs’ complaint is denied.

(2) Motion for a more specific pleading in regard to paragraphs 6 and 15 is denied.

(3) Motion to strike paragraphs 9 and 15 is denied in so far as plaintiffs intend to plead only breach of the implied warranty of merchantability. If plaintiffs intend to rely on an express warranty or on an implied warranty of some other sort, they must amend their pleadings to clearly set forth such allegations, and they are given 20 days from the date of this order to do so.


source: Caselaw Access Project

author: KOPRIVA, J.,

license: Public Domain

text:
    Dick v. Detwiler

      Terry W. Despoy, for plaintiffs.

      Edward T.J. Graboski, for defendant Marilyn Jane Detwiler.
    September 13, 1990
   KOPRIVA, J.,

Now before this court for disposition is a motion for summary judgment filed by defendant Marilyn Jane Detwiler.

The within action arises from an incident in which a dog, owned by defendant Shaw, allegedly chased the minor plaintiff causing him to fall and allegedly sustain injury therefrom. Plaintiffs and defendant Shaw were neighbors. Their properties were adjacent to each other and were not separated by any sort of barrier. At the time of the incident, defendant’s dog was not restrained by means of a leash or any such device.

Plaintiffs filed their complaint on October 11, 1989. Count I of the complaint sets forth a negligence action against Christine Shaw, as owner of the dog, for violation of the “Dog Law,” 3 P.S. 459-305, and for failing to take appropriate steps to confine the dog. Count II of the complaint sets forth a negligence action against Marilyn Jane Detwiler as owner of the property where defendant Shaw was living with the dog. Negligence on the part of Mrs. Detwiler is based on the premise that she permitted her tenant to keep a dangerous dog on the property without restraining it.

Defendant Detwiler filed the motion for summary judgment on March 7, 1990. Said motion asserts that plaintiffs have failed to plead material facts to set forth a cause of action against Mrs. Detwiler. Defendant Detwiler argues she cannot be liable for the violation of the “Dog Law” since she is not the owner of the dog. Further, defendant claims she had no duty to protect plaintiffs from her tenant’s dog in that she had no prior knowledge of the dog’s propensity for violence.

Pennsylvania Rule of Civil Procedure 1035 (b) sets forth the standard for the granting of a summary judgment motion.

“The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b).

In ruling on the motion we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). The moving party has the burden of proving that no genuine issue exists as to the material facts. Overly v. Kass, supra. We must examine the record in the light most favorable to plaintiffs as the party opposing the motion. Ferguson v. King, 362 Pa. Super. 543, 524 A.2d 1372 (1987). In addition to the pleadings, we have also considered and had the benefit of depositions taken of the plaintiffs, as well as an affidavit from defendant Detwiler and Michael Giarth, to consider in ruling on this motion.

The question to be decided is whether a landlord may be held liable for injuries to third persons caused by a tenant’s pet. Generally, it is the animal’s owner that is responsible for injuries to others caused by his or her pet. Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982); Villaume v. Kaufman, 937 Pa. Super. 561, 550 A.2d 793 (1988). However, the Pennsylvania Superior Court has held that a landlord may be held liable for injuries caused by animals owned by a tenant when the landlord has knowledge of the presence of the dangerous animal and where he/she has the right to control or remove the animal by retaking possession of the premises. Palermo v. Nails, 334 Pa. Super. 544, 483 A.2d 871 (1984). Therefore, Mrs. Detwiler may be held liable for the minor plaintiff’s injury if Mrs. Detwiler had control of the property and she was aware that her tenant’s dog had vicious propensities. We will now review the factual bases presented in support of these legal theories.

First, we address the issue of control. It is unquestioned that defendant Detwiler was the owner of the property on which her daughter, Christine Shaw, was living. Mrs. Detwiler testified, by way of affidavit, that she had an oral month-to-month lease agreement with Ms. Shaw, and that Ms. Shaw paid the sum of $130 per month rent. Plaintiffs argue that the rental sum of $130 is considerably less than a fair rental value for a home such as the one in question would be. This rental agreement could be viewed as a mother discounting the rent to her daughter and providing a dwelling at minimal cost.

The fact that there was no written lease agreement supports the inference that Mrs. Detwiler was doing her daughter a favor by allowing Christine to live on the property, and therefore had control of her presence on said property.

From the above-stated facts, it is possible for a fact finder to infer that defendant Detwiler had sufficient control of the property such that she could have removed the dog from the premises by retaking possession of the properly. We will now move on to the question of whether Mrs. Detwiler had knowledge of the dog’s alleged dangerous propensities such that she should have taken steps to remove the animal.

We note that defendant Detwiler denies having any knowledge prior to the incident of May 31,1987, of the dog being dangerous in any respect. Plaintiffs admit that they never spoke with Mrs. Detwiler, prior to the incident, regarding the dog. Although we have no direct evidence establishing Mrs. Detwiler’s prior knowledge of the dog’s propensity for viciousness, we do find facts which would support an inference that defendant had knowledge of the dog’s tendency to chase people.

Plaintiffs stated that Mrs. Detwiler frequently visited her daughter. Therefore, defendant was often in close proximity to the dog, and was able to observe the dog’s demeanor. Mrs. Detwiler was obviously aware the dog ran free at times, since plaintiffs stated they saw defendant at the property while the dog was loose. Husband-plaintiff testified to an incident when he chased the dog off his property while defendant Detwiler was visiting with her daughter and witnessed the incident. (Deposition of Denver Dick at 19.)

There was also an incident alleged where the dog chased the paper boy, Michael Giarth. It is alleged Michael was afraid of the dog and would not take the paper to the front door of the defendant’s property. Mr. Dick stated that because of the problem with the paper delivery, defendants had to erect an Altoona Mirror box so that Michael would not have to come into contact with the dog. (Deposition of Denver Dick at 21.) Michael Giarth testified by way of affidavit that the dog had chased him and that he had witnessed the dog chasing others. Husband/plaintiff stated that Dorothy Dick was another person who had been chased by the dog. (Deposition of Denver Dick at 20.)

In light of the above, we find sufficient evidence from which a fact finder could infer defendant Detwiler had knowledge of the dog’s dangerous propensities prior to the incident of May 31, 1987. This inference is further supported by the close personal relationship between defendants and the numerous instances testified to of the dog chasing people.

Therefore, we find that a factual dispute exists as to whether defendant Detwiler did indeed have knowledge of the dangerous propensities of her daughter’s dog. Although we have found evidence exists to support an inference of prior knowledge on the part of Mrs. Detwiler, the actual factual determination of prior knowledge is for a jury or court to determine. Likewise, a determinations of whether or not Mrs. Detwiler was able to exercise control over the property is also a factual matter for a fact finder to decide.

We therefore hold that plaintiffs may maintain a cause of action against Marilyn Jane Detwiler for injuries caused by her tenant’s dog. We find that plaintiff’s cause of action against defendant Detwiler has been sufficiently set forth in the complaint and that a factual dispute exists such that will prevent the grant of defendant Detwiler’s motion for summary judgment.

We will therefore enter the following

ORDER

And now, September 13, 1990, after review of the pleadings, depositions and affidavits of record, we find that a factual dispute exists in this matter.

It is therefore, ordered, directed and decreed that defendant Detwiler’s motion for summary judgment is hereby denied.

      . Further, Christine Shaw was renting the property at Box 318, Mount Pleasant Street, East Freedom, from defendant Marilyn Jane Detwiler, her mother.

      . 3 P.S. 459-305, Confinement of Dogs, states:

        “It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either:
      “(1) confined within the premises of the owner;

        “(2) firmly secured by means of a collar and chain or other devise [sic] so that it cannot stray beyond the premises on which it is secured; or
      “(3) under reasonable control of some person, or when engaged in lawful hunting, exhibition or field training.” December 7, 1982, P.L. 784, no. 225, Art. Ill, §305, effective January 1, 1983.

      . Michael Giarth is a paper boy for Christine Shaw. In his affidavit, Michael claims that the Shaw dog has chased him and that he has witnessed the dog chasing others.


author: NICHOLAS, J.

text:
    King’s Oak Liquidators v. Bala Cynwyd Hotel Associates

      Lawrence E. Feldman, for plaintiff.

      Robert N. Hunn, for defendant.
    October 17, 1990
   NICHOLAS, J.

This opinion is necessitated by the appeal to Superior Court by plaintiff King’s Oak Liquidators from our order dated August 10, 1990 which sustained the preliminary objections of defendant Bala Cynwyd Hotel Associates in the nature of a motion to strike and in the nature of a demurrer, striking plaintiff’s mechanics’ lien claim against defendant on the grounds that the services rendered to defendant by plaintiff do not fall within the scope of the Mechanics’ Lien Law of 1963, 49 P.S. §1101 et seq.

The pertinent facts and history of this case are as follows:

In September 1987 defendant hired plaintiff to perform work at the Dunfey City Line Hotel, a hotel complex with some 800 guest rooms and associated facilities owned by defendant and located in Bala Cynwyd, Pennsylvania. Plaintiff alleges that it was hired on the basis of an oral contract with defendant to perform work prepatory to the demolition of the hotel and the construction of office buildings on the hotel site. Plaintiff worked at the site between September 20, 1987 and October 20, 1987. Defendant subsequently terminated its oral contract with plaintiff and refused to pay plaintiff for the work already completed.

On December 3, 1987, plaintiff filed notice of a mechanics’ lien claim against defendant, asserting its right to payment of $109,361.50, plus interest and costs, for the work plaintiff had completed at the hotel. Plaintiff alleged that the work consisted of “cleaning kitchens, common areas and loading docks, verifying inventory, securing buildings, etc.” (Exhibit A — notice of mechanics lien claim, filed December 3, 1987.)

On March 25, 1988, plaintiff filed its complaint sur mechanics’ lien claim, and on May 16, 1988, defendant filed preliminary objections in the form of a motion to strike and demurrer, asserting that plaintiff’s mechanics’ lien claim was invalid because the work performed by plaintiff did not fall within the scope of the Mechanics’ Lien Law of 1963, 49 P.S. §1101 et seq. On April 2, 1990, defendant filed a preliminary objection in the form of a motion to dismiss for failure to state a cause of action, based on the same grounds.

After oral argument and careful consideration of the briefs of counsel, by order dated August 10, 1990, we sustained defendant’s preliminary objections in the nature of a motion to strike and a demurrer on the grounds that the services rendered by plaintiff do not fall within the scope of the Mechanics’ Lien Law of 1963, 49 P.S. §1101 et seq.

On September 18, 1990, plaintiff filed its notice of appeal from our order. On September 26, 1990, plaintiff filed its concise statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). In its somewhat vaguely phrased concise statement, plaintiff contends that the work performed by plaintiff was “all incidental to, in preparation for and in connection with the clearing of the site for construction of new office buildings,” and therefore is encompassed by the Mechanics’ Lien Law of 1963.

Plaintiff’s contention is without merit.

Title 49 P.S. §1301 addresses the question of when a party has the right to a mechanics’ lien. It provides as follows:

“Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction or the alteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act, shall exceed $500.” Act of August 24, 1963, P.L. 1175, no. 497, art. Ill, §301.

The work performed by plaintiff for defendant simply did not involve “erection or construction or the alteration or repair of the improvement.” Plaintiff is thus not entitled to a lien. In its notice of lien claim, plaintiff identified its services as cleaning, verifying inventory, and providing security, none of which are services encompassed by the plain language of the statute.

Mechanics’ liens are totally a creation of statute. They did not exist at common law. A long line of cases supports the proposition that statutes creating a right to a mechanics’ lien must be construed strictly, with the courts required to be specially cautious not to go beyond legislative intent. See Brann & Stuart Co. v. Consolidated Sun Ray Inc., 433 Pa. 574, 253 A.2d 105 (1969), certiorari denied 396 U.S. 840, 90 S.Ct. 102, 24 L.Ed. 2d 91; Sampson-Miller Associated Companies Inc. v. Landmark Realty Company, 244 Pa. Super. 25, 303 A.2d 43 (1973); McCarthy v. Reese, 419 Pa. 489, 215 A.2d 257 (1965).

In the instant case, plaintiff’s services cannot be considered to fall within the act without this court making an impermissible expansion of the rights granted by the act beyond legislative intent. The language of the act makes clear that only services related to actual construction or structural alterations of buildings are encompassed by the act, and a long line of cases has so held. Sampson-Miller Associated Companies Inc. v. Landmark Realty Company, supra; Yellow Run Coal Company v. Yellow Run Energy Company, 278 Pa. Super. 574, 420 A.2d 690 (1980); Joyce v. Sarnelli, 29 D.&C. 3d 544 (1984). The court in Yellow Run held that, under the act, mechanics’ liens are “limited to work which was connected with and an integral part of the erection, construction, alteration or repair of a building or other permanent structure.” 278 Pa. Super. at 575, 420 A.2d at 691.

The services provided by plaintiff were simply not an integral part of the erection, construction, alteration or repair of the hotel or the office buildings which were later built on the hotel site. In Metropolitan International v. Union Investment Co., 17 D.&C. 3d 519 (1981), the court held that security services provided during the construction of a building do not come within the provisions of the act. The court further held “it is readily apparent that the statutory provisions of this act are intended to cover only those services which are involved in the actual construction of a building.” 17 D.&C. 3d at 522-3.

Cleaning and verifying inventory are no more related to the actual construction or repair of a building than is providing security services. They are perhaps even less connected with actual construction and repair than are other services which courts have found to be excluded from the act, such as landscaping, Treacy v. 1600 Church Road Partnership, 45 D.&C. 3d 109 (1987), and installing supermarket fixtures, Joyce v. Sarnelli, supra.

Plaintiff argues that since office buildings were eventually constructed on the site, its work must be considered incidental to the construction of the offices and that its lien is therefore valid. This argument is without merit. The language of the Mechanics’ Lien Law is unambiguous, and our courts have consistently held that a mechanics’ lien is only valid where the services actually performed by a claimant were actually integral to the construction, repair, or alteration of a building. Accepting all plaintiff alleges as true, plaintiff actually performed only services which are not encompassed by the act before being discharged by defendant. It is irrelevant if plaintiff’s oral contract with defendant called for work which would have been encompassed by the act had it been performed; the act encompasses only work actually performed.

This case is clearly distinguishable from the recent case of Morehall Contracting Co. Inc. v. Brittany Estates, 396 Pa. Super. 265, 578 A.2d 508 (1990). In Morehall, the basic issue was the sufficiency of plaintiff’s pleadings, i.e. whether plaintiff alleged that an improvement had ultimately been constructed at the site. There was no doubt that plaintiff’s work qualified under the act (excavation and grading prior to construction of housing). In the instant case, it is irrelevant that offices were ultimately constructed on the hotel site because the work done by plaintiff is not encompassed by the statute.

Plaintiff’s proper remedy is to be found in an action in assumpsit based on defendant’s alleged breach of the oral contract between plaintiff and defendant. Plaintiff may indeed have been wronged, but plaintiff’s remedy cannot be found in asking this court to ignore legislative intent and precedent by an impermissible expansion of rights granted under the Mechanics’ Lien Law of 1963. Mechanics’ liens are designed to secure the rights of a specific type of claimant performing specific work in specific circumstances; mechanics’ liens are not vehicles by which any injured party may recover unliquidated damages for a breach of contract. See, e.g., Dyer v. Wallace, 264 Pa. 169, 107 Atl. 754 (1919).

For all the foregoing reasons, our order of August 10, 1990, granting defendant’s preliminary objections should be affirmed.


author: DAVENPORT, S.J.,

text:
    Danella Environmental Technologies Inc. v. V.J. Auto Service Inc.

      James P. Cousounis, for plaintiff.

      Robert C. McFadden, for defendant.
    September 27, 1990
   DAVENPORT, S.J.,

Petitioner appeals from this court’s order of June 13, 1990, sustaining preliminary objections of the respondents, V.J. Auto Service Inc., Mason Art Furniture Mfg. Inc. and Heimbach’s Auto Body Inc., ordering that these cases be transferred to Lehigh County.

BACKGROUND

The relevant facts for purpose of this appeal are as follows. Petitioner, Danella Environmental Technologies Inc., is a Pennsylvania corporation, whose principal place of business is at 2290 Butler Pike, Plymouth Meeting, Pa.

Respondent V.J. Auto Service Inc. is a Pennsylvania corporation, whose principal place of business is at 645 W. Union Street, Allentown, Pa. Danella entered into a written service agreement with V.J. Auto on February 22, 1990 to collect waste generated by V.J. Auto. The agreement was to begin on March 1, 1990 and end on February 28, 1992. On February 23, 1990 V.J. Auto canceled the agreement. On March 13, 1990 counsel for Danella sent a letter to V.J. Auto requesting a retraction within 10 days, no such retraction was made and Danella instituted a cause of action against V.J. Auto on April 20, 1990.

Respondent Mason Art Furniture Mfg. is a Pennsylvania corporation which maintains its principal place of business at 616 Union Boulevard, Allentown, Pa. On January 31, 1990 petitioner, Danella, entered into a written service agreement to collect the waste generated by Mason Art at its service location. The agreement was to begin on February 1, 1990 and end on January 31, 2000. On February 2, 1990, Mason Art advised petitioner Danella that they were terminating the agreement and that Da-nella should remove its containers from the property. On February 22,1990, counsel for Danella sent a letter requesting a retraction within 10 days, no such retraction was made and Danella instituted an action against Mason Art on April 20, 1990.

Respondent Heimbach’s Auto Body Inc. is a Pennsylvania corporation with its principal place of business located at 105 Walnut Street, Allentown, Pa. Petitioner Danella entered into a written service agreement with Heimbach on January 29, 1990 to collect waste generated by Heimbach at its service location. The agreement was to begin on February 1, 1990 and end on January 31, 1992. On February 2, 1990 Heimbach sent a letter to Danella (Hinkle Hauling) terminating its service agreement. On February 22, 1990 Danella sent a letter to Heimbach requesting a retraction within 10 days, no such retraction was made and Danella instituted a cause of action against Heimbach on April 20, 1990.

Respondents, V.J. Auto, Mason Art and Heimb-ach, filed preliminary objections requesting that the case be transferred to Lehigh County because of improper venue in Montgomery County. Petitioner Danella objects to respondents’ request for transfer contending that under the terms of the service agreement the respondents agreed that any action arising out of the agreement or any transaction contemplated by the service agreement shall be brought in the Court of Common Pleas of Montgomery County. The undersigned sustained respondents preliminary objections by order dated June 13, 1990, transferring the cases to Lehigh County. Petitioner now appeals.

ISSUES RAISED

Petitioner raises the following issues on appeal.

(1) The court committed an error of law in transferring to Lehigh County this action involving parties who made an agreement selecting this court as the forum for any dispute involving their agreement, and

(2) The court committed an error of law in transferring to Lehigh County this action involving a claim for damages by a Montgomery County-based corporation for repudiation of any agreement providing for the Lehigh corporations’ payment for services rendered.

DISCUSSION

Petitioner contends that the court erred in transferring this action involving parties who made an agreement selecting this court as the forum for any dispute involving their agreement. Title 42 Pa.C.S., Pa.R.C.P. 2179 (Venue) provides that a personal action against a corporation may be brought in and only in:

“(1) the county where its registered office or principal place of business is located,

“(2) a county where it regularly conducts business,

“(3) the county where the cause of action arose, or

“(4) a county where a transaction or occurrence took place out of which the cause of action arose.”

We must apply the above rule to the cases here. In the instant cases, all three respondents’ registered office or principal place of business is located in Lehigh County as opposed to Montgomery County. Respondents regularly conduct business in Lehigh County, not Montgomery County. Further, the cause of action arose in Lehigh County and not in Montgomery County. And finally, respondents do not and have not conducted any business in Montgomery County. As such, venue is proper in Lehigh County.

Moreover, generally, private parties cannot change by contract the rules of jurisdiction or venue embodied in the various laws of the Commonwwealth. Central Contracting Company v. C.E. Youngdahl and Company Inc., 418 Pa. 122, 209 A.2d 810 (1965), and Chelwyn Associates v. Harold B. Lupowitz, 256 Pa. Super. 159, 389 A.2d 649 (1978); Commonwwealth v. Casuccio, 308 Pa. Super. 450, 454 A.2d 618 (1982).

The court in Central Contracting Company v. Youngdahl and Company Inc., supra, expounded on this general rule by stating that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation. Youngdahl and Co. Inc., supra at 133, 209 A.2d at 816.

Applying the above case law to the instant case, the undersigned found that the agreement as to venue is unreasonable for the following reasons. In the instant case all three respondents are located in Lehigh County, whereas petitioner is the only party in Montgomery County. As such it would be more convenient for one party to come to Lehigh County' where all three respondents are located. As such, the agreement is unreasonable at the time of litigation and venue is improper in Montgomery County and the case should be transferred to Lehigh County, the proper forum.

Petitioner further contends that the court committed an error of law in transferring to Lehigh County this action involving a claim for damages by a Montgomery County-based corporation for repudiation of an agreement providing for the Lehigh corporation’s payment for services rendered.

The undersigned has already discussed the issue of venue above. As to the repudiation of the agreement and payment for services rendered, these are legal conclusions, which will be addressed at trial. This court is addressing the issue of venue.

CONCLUSION

For the foregoing reasons, this court concludes that the undersigned did not commit error in sustaining respondents’ preliminary objections, transferring these cases to Lehigh County and said order should be affirmed.


author: DOWLING, J.,

text:
    Dewalt v. Halter

      John-W. Frommer, for plaintiff.

      Robert B. Armour, for defendant.
    October 16, 1990
   DOWLING, J.,

We deal once again with the tort of intentional infliction of emotional distress, the status of which in Pennsylvania is discussed at length in our opinion of October 12, 1988. See Ford v. Sparotin, 109 Dauphin Rep. 52.

The setting is somewhat unusual, involving as it does a civil action for the crime of rape. Plaintiff was a patron in defendant’s Roma Cafe, and it is alleged that after she had gone to the ladies room on crutches (her left leg being immobilized), another patron, one Bernie Gearhart, entered and raped her. It is averred that defendant, through its employees, served excessive quantities of alcohol to Gearhart, and that they knew or should have known he had entered the ladies room; yet took no action to prevent him from doing so or to remove him. It is also stated that after the rape one of defendant’s employees made certain statements and placed a piece of gum in front of the plaintiff.

Defendant contends that these allegations do not rise to the level required for a claim of intentional infliction of emotional distress. The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tort-feasor. Section 46(1) of the Restatement (Second) of Torts provides as follows:

“§46. Outrageous Conduct Causing Severe Emotional Distress

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

The availability of recovery under section 46 is highly circumscribed. The tortious conduct contemplated by the drafters of section 46 is described in their commentary:

“(d) Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ’’See Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), and Ford v. Sparotin, supra.

Do the facts alleged rise to the level of extreme and outrageous conduct? Accepting, as we must, the pleading averments in the preliminary objections as being correct, we have a situation where the defendant’s employees allowed a drunken man to enter the ladies room after the plaintiff had gone in and did nothing to prevent his entrance or to secure his removal. In addition, we have the intriguing further allegation that one of defendant’s employees made “certain statements and placed a piece of chewing gum in front of the plaintiff after she had been raped, causing severe embarrassment and humiliation to the plaintiff.” (paragraph 25) We do not understand the significance of placing a piece of gum in front of the victim, and there is no hint as to what was said to her. No charge was made that defendant’s employees knew or should have known of the assailant’s intentions when he entered the ladies room. It might be concluded that in his intoxicated state he was mistaken about his whereabouts; or he may have thought he had some right to invade Ms. Dewait’s privacy.

Mr. Gearhart’s conduct was beyond doubt offensive, insulting, repugnant and obnoxious, but does it rise to the level of “extreme and outrageous conduct”? We think not.

This, of course, is only one count in a multi-count complaint, including claims for negligent infliction of emotional distress, punitive damages, and other charges of negligence. At this time these charges remain to be proven and accounted for.

Accordingly, we enter the following

ORDER

And now, October 16, 1990, defendant’s preliminary objection in the nature of a motion to strike count III — intentional infliction of emotional distress — is granted.


author: HESS, J.,

text:
    State Auto Insurance Co. v. Jones

      Thomas E. Brenner■, for plaintiff.

      Charles E. Schmidt Jr., for defendants.
    July 2, 1990
   HESS, J.,

This suit stems from an automobile accident, involving defendant and a second driver, which accident resulted in serious personal injuries to defendant, Emmie J. Jones. Having obtained a settlement with the second driver’s insurance carrier, defendant seeks recovery under underinsurance coverage from her own insurer, State Auto Insurance Company. State Auto, however, denies responsibility for this claim, believing that the terms of the policy require defendant to exhaust the limits of liability of the second driver’s insurance prior to making a claim for underinsurance coverage under her own policy. Due to State Auto’s refusal to honor the claim, defendant filed a petition to compel arbitration, as provided by the terms of the policy.

This suit is a declaratory-judgment action in which plaintiff, State Auto, seeks an order from this court declaring that defendants may not proceed to arbitration because the terms of their policy preclude underinsurance claims unless the tort-feasor’s limits of liability have been exhausted. This matter is presently before the court on the defendant’s preliminary objections, to the declaratory-judgment complaint, asserting that jurisdiction properly lies with the arbitrators to resolve the question of unde-rinsurance coverage.

DISCUSSION

The arbitration clause in the State Auto policy is as follows:

“Arbitration ”

“If we and an ‘insured’ do not agree:

“(1) Whether that person is legally entitled to recover damages from the owner or operator of an ‘uninsured motor vehicle’ or ‘underinsured motor vehicle’; or

“(2) As to the amount of damages;

“either party may make a written demand for arbitration. Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will:

“(1) Pay the expenses it incurs; and

“(2) Bear the expenses of the third arbitrator equally.

“Unless both parties agree otherwise, arbitration will take place in the county in which the ‘insured’ lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding.”

In Rocca v. Pennsylvania General Insurance Company, 358 Pa. Super. 67, 516 A.2d 772 (1986), our Superior Court had occasion to interpret the same arbitration clause. In Rocca, the insured was a passenger in a vehicle which collided with a second vehicle. After the insured settled with the second driver’s insurance company for an amount which was less than the total amount of her medical bills, she submitted a claim to her own insurance company seeking recovery of underinsurance benefits. When her insurer denied responsibility for the un-derinsurance claim, the insured filed a petition to appoint arbitrators, pursuant to the policy’s arbitration agreement. The insurer responded by stating that the petition was premature, because the insured, under the terms of the policy, was required to pursue a claim against the driver of the vehicle in which she was a passenger prior to bringing the underinsurance claim. According to the insurer, nothing was payable under the endorsement until the insured had exhausted her claims against the tort-feasors who had liability insurance.

The issue in Rocca was whether an insured can compel an insurer to arbitrate a claim for benefits, if a policy requirement has not first been met. In resolving the issue in Rocca, the Superior Court initially determined that the dispute involved the “amount of damages,” a topic within the scope of the arbitration clause. Having determined that the arbitration clause applied to the controversy, the court rejected the insurer’s argument that noncompliance with certain prerequisites set forth in the policy forecloses the matter from proceeding to arbitration. The court stated:

“The arbitrators can always set off the amounts received by the appellant when, and if, an award is made. The arbitrators may determine that the conditions precedent under the policy have not been satisfied, and thus abate the right to obtain damages until the contractual sine qua non has been met. However, it is for the arbitrators, and not the court, to decide whether the procedural requisites have or have not been satisfied.” Id. at 73, 516 A.2d at 775.

Additionally, the court noted:

“The last remark we wish to make in support of our ruling draws its strength from the Uniform Arbitration Act of October 5, 1980, P.L. 693, no. 142, section 501(a), 42 Pa.C.S. §7301 et seq. Neither the litigants nor the court below refer to its impact on the case.

“Of relevance to us is section 7304, which has been made specifically applicable to common law arbitration (see 42 Pa.C.S. §7342(a) (Supp. 1986)) and provides in unequivocal terms that a ‘court shall order the parties to proceed with arbitration’ when an application to compel arbitration shows an agreement to arbitrate and the opposing party is shown to refuse to so proceed. 42 Pa.C.S. §7304(a). The only way to circumvent the path leading to arbitration is by ‘showing that there is no agreement to arbitrate.’ If this transpires, then the court is empowered, if it wishes, to order a stay of the arbitration proceedings. 42 Pa.C.S. §7304(b). Otherwise, the course is clearly marked, and it leads directly to the arbitrators’ door.” Id. at 74, 516 A.2d at 776.

We believe Rocca controls the instant case. The arbitration clauses in both Rocca and the instant case are the same. Furthermore, the cases share the same general issue, namely, whether a disputed insurance claim should proceed to arbitration despite the insured’s apparent failure to comply with the prerequisites in the insurance policy. Rocca holds that this issue should be resolved in the affirmative, and therefore we are compelled to send the matter to arbitration.

State Auto relies upon Ostroff v. Keystone Insurance Company, 357 Pa. Super. 109, 515 A.2d 584 (1986), as authority for the proposition that arbitration is inappropriate in the instant case. Although we agree with State Auto that Ostrojf is a case which held that the arbitrators did not have jurisdiction over a certain insurance matter, we believe that case is distinguishable from the instant case on the facts. In Ostrojf, the insured gained access to the arbitration forum by seeking interpretation of their insurance contract. At the arbitration hearing, however, the insured pursued a tort theory, which went beyond mere interpretation of the insurance contract. Although the arbitration clause in the insurance contract did not grant the arbitrators power beyond interpreting the contract, they proceeded to render a decision in favor of the insured based upon a tort theory. On appeal to the Superior Court, the trial court’s order vacating the arbitration award was affirmed. Although Ostrojf is a case which demonstrates the limits of arbitration, those limits have not been exceeded in the instant case. Therefore the declaratory-judgment action by State Auto must be dismissed.

ORDER

And now, July 2, 1990, the preliminary objections of defendants, Emmie J. Jones and Robert Jones, are sustained.


author: SUGERMAN, P.J.,

text:
    PennDOT v. Sullivan

      Charles McCardell, deputy attorney general, for PennDOT.

      William J. Scott Jr., for defendant.
    October 2, 1990
   SUGERMAN, P.J.,

The Commonwealth of Pennsylvania, Department of Transportation, has appealed to the Commonwealth Court from our order dated March 22, 1990, in which we reversed the order of the Secretary of Transportation which suspended the operating privilege of Mark E. Sullivan, and we vacated the suspension.

From the record we observe that on January 9, 1990, Mr. Sullivan was admitted into the Montgomery County, Pennsylvania, Accelerated Rehabilitative Disposition Program, pursuant to Pa.R.Crim.P. 175 et seq., for driving while under the influence, by the Honorable Joseph A. Smyth of the Court of Common Pleas of Montgomery County, Pa. In Judge Smyth’s order admitting Mr. Sullivan to the ARD program, he imposed the usual conditions, including, inter alia, a suspension of Mr. Sullivan’s operating privilege for a period of three months, presumably pursuant to 75 Pa.C.S. §3731(e)(6)(ii). On January 19, 1990, Judge Smyth entered a revised order, revoking the earlier imposed three-month suspension.

Paragraphs 3 and 4 of Judge Smyth’s revised order set forth the following:

“(3) Whereas the defendant’s driver’s license was confiscated by the Upper Merion Township Police Department on July 11, 1989, in conjunction with the arrest that ultimately resulted in placement of the defendant in the ARD program, as aforesaid; and whereas the defendant has been deprived of his license from that date to the present; and whereas the defendant has not driven a motor vehicle during that time period, therefore, paragraph 2 of the order of January 9, 1990, requiring a suspension of the defendant’s license for a period of three months, is found and determined by this court to have been fully satisfied. The defendant shall receive no further suspension of his driving privileges as a result of paragraph 2 of the order of January 9, 1990.”

“(4) The Clerk of Courts Office is directed to transmit a copy of this revised order to the Bureau of Driver Licensing of the Pennsylvania Department of Transportation.

“By the court:

“/s/ Joseph A. Smyth, J.

Notwithstanding Judge Smyth’s revised order, on February 1, 1990, DOT notified Mr. Sullivan that “as a result of the order from the court of Montgomery County” Mr. Sullivan’s operating privilege was being suspended for a three-month period, effective January 9, 1990. It is obvious to us that in its notice of suspension, DOT inferentially referred to Judge Smyth’s original ARD order of January 9, 1990, and ignored Judge Smyth’s revised order of January 19, 1990.

DOT obviously refused to abide by Judge Smyth’s revised order in light of Cessna v. Commonwealth of Pennsylvania, Department of Transportation, 130 Pa. Commw. 163, 567 A.2d 760 (1989). Cessna holds quite clearly, as do the several decisions cited in Cessna, that a trial court lacks authority to grant a licensee “credit” against a suspension of the licensee’s operating privilege. Rather, the licensee must seek administrative relief from DOT. Id. at 166-7, 567 A.2d at 761-2.

We note initially that Judge Smyth did not give Mr. Sullivan credit against a suspension imposed by DOT but rather, he gave credit against the three-month suspension Judge Smyth himself imposed on January 9, 1990. One may argue that Judge Smyth was required to impose a suspension of at least one month, pursuant to 75 Pa.C.S. §3731(e)(6)(ii), and had DOT then suspended Mr. Sullivan’s license for the one-month period, under Cessna, Judge Smyth could not have then credited Mr. Sullivan for “time served.” We are, unfortunately, unaware of any appellate authority that considered a fact pattern similar to that presented here. In this case, as is seen, Judge Smyth modified an order he earlier entered within 10 days of the entry of his original order imposing the three-month suspension. Although Judge Smyth, in the view of DOT, may have acted without authority when he revised or amended his original order, we do not understand how DOT could simply ignore the revised order as it did here.

Of similar significance, by asking us to affirm the Secretary’s three-month suspension, DOT was in effect asking that we overrule or set aside Judge Smyth’s revised order. We did not believe that we had such authority.

       We note that DOT’S statement of matters complained of on appeal, filed pursuant to Pa.R.A.P. 1925(b), erroneously sets forth two Chester County docket numbers: 89-07676 and 90-01464. Only the matter appearing at 90-01464 is the subject of the within appeal.


author: RANCK, P.J.,

text:
    Bloomsburg Bank Columbia Trust Co. v. Mensch

      Gary L. Norton, for plaintiff.

      H. William Koch, for defendant.
    May 3, 1990
   RANCK, P.J.,

Before this court are defendants’ preliminary objections to late charges in plaintiffs’ complaint in this mortgage foreclosure case. Pa.R.C.P. 1141 and 1146 dictate that an in rem action on the mortgage cannot be brought in conjunction with the action in personam on the note; thus, the late charges must be stricken from the complaint. These charges may be recovered in a later action on the note.

The plaintiffs, mortgagees, filed a complaint in mortgage foreclosure against the defendants, mortgagors, on May 8, 1989. Preliminary objections were filed on June 21, 1989, and the complaint was amended on June 27, 1989. Defendants responded to the amended complaint with a second set of preliminary objections, which brings this matter before the court.

The issue is whether plaintiffs may claim liquidated late charges of $193.26, (which are penalties for defaulting on monthly installments for the months of September 1988 through April 1989, plus $24.16 per month which constitutes late charges on each monthly payment which was more than 15 days late after the payment that was due on May 2, 1989), in an action in rem, for possession on the mortgage. Pa.R.C.P. 1141(a) and 1146 govern an action to foreclose on a mortgage. Pa.R.C.P. 1141(a) defines an action of mortgage foreclosure as an action “upon any estate, leasehold or interest in land but shall not include an action to enforce a personal liability.” Pa.C.S. Title 13, section 3104(b), the Commercial Code, defines a “note” as a negotiable instrument, and Title 13, section 3104(a)(2) defines a negotiable instrument as an unconditional promise to pay a certain sum of money, which is a personal obligation.

Pa.R.C.P. 1146, dealing with mortgage foreclosure actions, provides that “the plaintiff may state in the complaint two or more grounds for foreclosure but may not state more than one cause of action.” Plaintiffs, in the instant case, elected to sue on the mortgage, deciding on an action in rem; thus the late charges, a personal obligation on the note, cannot appear in the complaint. The note and the mortgage are two separate and distinct obligations and give rise to separate and distinct rights. Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). The bond evidences the debt, and the mortgage provides the collateral security for the debt; hence the purpose served by the note and the mortgage are different, which explains why time must be taken to draft the two distinct instruments. In re Estate of Evanovich, 487 Pa. 55, 408 A.2d 1092 (1979). The mortgage is the foundation for the action de terris, which has a different character and nature from an action in the note. Rule 1141(a) blocks a contract claim, based on personal liability on the note, from making its way into court as a part of a claim for mortgage foreclosure. See Signal Consumer Discount Co. v. Babuscio, 257 Pa. Super. 101, 390 A.2d 266 (1978). In the present case, late charges which arise from a claim on the note, cannot appear in the complaint based on the mortgage foreclosure.

A few anomalies to the general rule barring a dual action have surfaced in case law; however, when the defendant objects to the combination in rem/in per-sonam cause of action, the action in the note must be stricken. Insilco Corp. v. Rayburn, 374 Pa. Super. 362, 543 A.2d 120 (1988). While it is true that the Pennsylvania Superior Court permitted a dual cause of action in Kretschman v. Stoll, 238 Pa. Super. 51, 352 A.2d 439 (1976), the court stated “had they [the defendants] raised the issue by preliminary objection, appellees would have been provided with opportunity to amend the complaint.” Hence, when a defendant raises no objection to the form of the complaint until after judgment is entered, the issue will not be preserved for appeal. In the present case, defendants have objected at the relevant stage of the proceedings and the objection is sustained.

For all of the foregoing reasons, we enter the following

ORDER

And now, May 3, 1990, it is ordered and directed that defendants’ preliminary objections are sustained, and the claim for late charges must be stricken from the amended complaint.

Plaintiff has 20 days from the date of this order to amend the complaint.


author: HORN, J.,

text:
    Commonwealth v. Mentley

      Jonelle H. Pepple, assistant district attorney, for the Commonwealth.

      Gary L. Snyder, for defendant.

      September 12, 1990
   HORN, J.,

Defendant is charged with a violation of the Uniform Firearms Act.

The offense occurred when defendant was stopped in York Township by Officer Ruth because he failed to use his left-turn signal in making a turn at 1:57 a.m. on August 19, 1989. The police officer testified that it was his intention, to give defendant a warning rather than a traffic citation.

When defendant got out of the vehicle voluntarily, the officer saw what appeared to be a gun in defendant’s right hip pocket. The bulge in the right hip pocket turned out to be a .25-caliber Baretta with nine rounds of ammunition.

The police officer advised defendant of his Miranda rights at the scene and later testified that he advised him of his Miranda rights at the police station as well.

Defendant stated that he had no license; however, on cross-examination it was established that he meant that he had no driver’s license.

After the gun was found, apparently defendant stated that he did not have a permit for the gun either. The officer stated on cross-examination that this statement was made at the scene.

Defendant testified in this proceeding and stated that he did not get out of the vehicle voluntarily, but was told to get out. Whether he was ordered out or got out voluntarily makes no difference. See Pennsylvania v. Minns, 434 U.S. 106 (1977). Defendant admitted that he stated he had no license. He further stated that the warning concerning the traffic violation was given to him at the police station when he was first advised of his Miranda rights and first advised why he was stopped.

An added objection as to the lawfulness of this arrest occurs because the Chief of Police of York Township on July 19, 1989, had issued a directive to his police officers to issue more written warnings for obvious mechanical defects and motor vehicle violations. It was suggested that the patrolman would issue at least five warnings per eight-hour shift.

Officer Ruth said that he had trouble finding five warning stops during an eight-hour shift and on that particular day he had issued three warnings.

Our first inquiry is whether or not probable cause existed for the police officer to make the stop. We find the police officer’s testimony that defendant did not utilize his turn signal to be credible; therefore, he had probable cause to stop defendant.

We further find that the police officer was justified in making a warrantless search when he saw as he testified what appeared to be a gun in the right hip pocket of defendant’s pants. He was further justified in engaging in the warrantless search because it was necessary for him to take the gun for his own protection under these circumstances. See Terry v. Ohio, 392 U.S. 1 (1968).

The weapon search is based totally upon independent probable cause because the officer personally saw the weapon after he made the initial stop, having personally witnessed a traffic violation.

We accept the policeman’s statement that as soon as he saw the weapon and took it into his custody that he gave defendant his Miranda warnings; therefore, any statements made by defendant would be admissible as evidence in this case.

Finally, defense argues that the charges should be dismissed because there existed in York Township a “quota system” that violated 71 P.S. §2001-002; that because of the “quota system” the original stop was unlawful, the arrest unlawful, and the physical evidence and incriminating statements were illegally obtained.

Clearly, York Township had a “quota system” in effect at the time of the offense in question. The “system” was created by special order no. 2-89, dated July 19, 1989, a month before this incident. The directive required all uniformed patrol officers to initiate five written warnings each shift; written warnings were to be for valid violations and were for officer-initiated events. The purpose given for this order is stated to insure that more traffic violators are stopped and thus to reduce the accident rates. The laudable policy articulated cannot make lawful the intrusive conduct the legislature intended to prohibit by enacting 71 P.S. §2001.

Clearly, any tickets or citations issued in violation of the act are unenforceable under section 2002; however, this applies to motor vehicle tickets and citations only. See Woolston v. Cutting, 103 Pa. Commw. 217, 474 A.2d 698 (1984).

The police officer in this particular case indicated that he rarely, if ever, stops people for turn-signal violations; hence, he was at the time acting pursuant to the “quota system” that had been established within his jurisdiction.

Section 2001 of 71 Pa.C.S. provides:

“No political subdivision or agency of the Commonwealth shall have the power or authority to order, mandate, require or in any other manner, directly or indirectly, suggest to any police officer . . . that said police officer . . . shall issue a certain number of traffic citations, tickets or any other type of citation on any daily, weekly, monthly, quarterly or yearly basis.”

Section 2002 of 71 Pa.C.S. provides:

“Any tickets or citations issued in violation of this act shall be unenforceable, null and void.”

A reading of this statute clearly indicates that the legislature intended the statute to only apply to motor vehicle violations; hence, we shall not expand the application of 71 P.S. §2001 et seq. to violations of the Criminal Code for which defendant is charged in this proceeding.

Having found the police officer acted with probable cause both in making the initial stop because of the violation of the Motor Vehicle Code and conducting the search because independent probable cause existed when he became aware of the gun, we feel the case is controlled by the recent Superior Court decision of Commonwealth v. Haupt, 389 Pa. Super. 614, 567 A.2d 1047 (1989).

Defendant’s motions to suppress and to quash are refused.


text:
    Laurel Bank v. Karstetter

      Blair V. Pawloski, for plaintiff.

      Charles Bierbach, for defendant.

      Walter L. Oswalt III, for additional defendant.

      August 15, 1990
   KOPRIVA, J.,

Now before this court for disposition are the preliminary objections of the additional defendant, Altoona Ford Inc., to the first amended complaint of original defendants, Richard and Dorothy Karstetter. The issue to be decided is whether the Pennsylvania Automobile Lemon Law, 73 P.S. §951 et seq., provides the Karstetters, as consumers, with a cause of action against the dealer, Altoona Ford, that sold them the “lemon.”

PROCEDURAL HISTORY

Laurel Bank filed the complaint in this matter on July 20, 1988 whereby they allege the Karstetters had defaulted on a loan which they had obtained from plaintiff for the purchase of a 1987 Ford pickup truck from Altoona Ford. The original defendant responded by way of an answer, new matter and complaint against third-party defendant on September 6, 1988. In the new matter, original defendants raise the Lemon Law as a defense to plaintiff’s complaint. The Karstetter’s complaint against third-party defendant, Altoona Ford, is also based on the Lemon Law and attempts to rescind the sale of the truck and recover the purchase price in addition to having the loan contract with plaintiff canceled.

Altoona Ford filed preliminary objections to the Karstetter’s complaint on October 21, 1988. The objections consisted of two demurrers and a motion for more specific complaint. Altoona Ford argued that the Lemon Law places no liability on a dealer, but rather places responsibility for restitution solely on the manufacturer of the vehicle. Thus, Altoona Ford claimed they are not a proper party to this action and the complaint against them should be dismissed.

Oral argument on the preliminary objections was held May 11, 1989. This court entered an order dismissing the demurrers and granting the motion for more specific pleading. The original defendants then filed an amended complaint on June 8, 1989. Preliminary objections to that complaint were filed by Altoona Ford on June 21, 1989, in which essentially the same objections were again raised. These objections were submitted to this court February 8, 1990. We now proceed to disposition.

DISCUSSION

In ruling on whether Altoona Ford may be held liable to the Karstetters under the provisions of the Lemon Law, we will begin by looking at the language of the statute. Section 1952 defines separately the term dealer and the term manufacturer. Therefore, the terms are not interchangeable and we cannot assume that the term manufacturer encompasses the term dealer. The chapter then goes on to outline the relief available to purchasers. Section 1954 specifies the obligation of the manufacturer to repair or correct a defective automobile. Section 1954(a) states in relevant part:

“The manufacturer of a new motor vehicle sold and registered in the Commonwealth shall repair or correct, at no cost to the purchaser, a nonconformity which substantially impairs use, value or safety of said motor vehicle. . .”

Although the actual repairs may be performed at the manufacturer’s authorized service and repair facility (see section 1954(b)) the obligation of paying for the necessary repairs falls clearly on the manufacturer.

At the heart of the instant case is section 1955 which sets forth the remedies available to the consumer as follows:

“If the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle with a comparable motor vehicle of equal value or accept return of the vehicle from the purchaser and refund to purchaser the full purchase price. . 73 P.S. §1955. (emphasis supplied)

The above-quoted portion of section 1955 clearly states that remedies provided for by the Lemon Law need only be supplied by the manufacturer.

The Karstetters argue that Altoona Ford is an authorized Ford service and repair facility and therefore they may be held liable under the Lemon Law. We find no merit in this argument. An authorized service and repair facility is mentioned only in section 1954(b) with regard to the delivery of nonconforming vehicles. This section gives the purchaser the option of delivering the vehicle to the service and repair facility rather than taking it directly to the manufacturer. We find that this provision is inserted mainly for the convenience of the purchasers and does not establish any liability on the part of a manufacturer’s authorized service and repair facility. Therefore, the fact that Altoona Ford may be an authorized Ford Motor Company service and repair facility does not provide a basis of liability on which the Karstetters may obtain the requested relief.

Finally, the original defendants claim that since dealers have an obligation to report the existence of a nonconforming vehicle to the manufacturer under section 1957, a failure to fulfill said obligation should result in liability under the Lemon Law. We note that the original defendants cite no case law in support of their position nor were we able to find any case in which a dealer was liable to a purchaser under the provisions of the Lemon Law. On the contrary we found two cases which held that the Lemon Law provides the consumer with remedies against the manufacturer only. See Davido v. Porreco Motors Inc., 45 D.&C. 3d 592 (1986); Ford Motor Credit Company v. Dunsmore, 374 Pa. Super. 303, 542 A.2d 1033 (1988).

Admittedly, the case law is not surprising, inasmuch as the provisions of this chapter are clear. The purchaser of a nonconforming vehicle may obtain relief under the Lemon Law only from the manufacturer of the vehicle. The law places no liability on dealers to compensate the purchasers of the “lemon.” It is the duty of the consumer to contact the manufacturer and negotiate with it in order to obtain relief. The process is no doubt lengthy and oftentimes frustrating for the consumer. Should a lawsuit result, the consumer is further disadvantaged in that he/she is forced to sue a huge corporate entity rather than the local party with whom he/she dealt. This surely is a major weakness in the attempted “consumer” protection intended.

After our review of Pennsylvania’s Automobile Lemon Law, we concur with Judge Levin’s opinion in Davido v. Porreco Motors, supra. As written, the law does not provide Pennsylvania’s auto buyers with an effective and meaningful remedy when a defective vehicle is purchased. This court must, however, deal with the law as it now exists. Any expansion of the protections afforded the consumer must come through the legislature.

In light of the foregoing, we now enter the following

ORDER

And now, August 15, 1990, it is hereby ordered, directed and decreed as follows:

(1) The demurrer of additional defendant, Altoona Ford, to the complaint of original defendant is sustained.

(2) The complaint against the additional defendant is hereby dismissed.

       Although no opinion was issued, the reasoning of this court for the dismissal of the demurrers was to give the original defendants the additional time to properly plead a cause of action against the additional defendant. The granting of the demurrers, at that time, would have been premature as this court was not convinced that the original defendants had no cause of action against Altoona Ford.


author: FARINA, J.,

text:
    Henrich v. Harleysville Insurance Companies

      Soren P. West, for plaintiff.

      Melinda S. Fisher, for defendant.

      July 23, 1990
   FARINA, J.,

Before the court are cross-motions for judgment on the pleadings by plaintiffs Elizabeth M. Henrich and Charles P. Getz and defendant Harleysville Insurance Companies. For the reasons discussed below, plaintiffs’ motion is denied and defendant’s cross-motion is granted.

Plaintiffs are related as father and daughter and reside together. In April 1986 defendant issued to plaintiff Getz a personal automobile insurance policy which covered three vehicles owned by Getz and which provided, inter alia, uninsured motorist coverage for “covered persons” under the policy. The policy defined “covered persons” to include persons related to the named insured by blood, adoption or marriage and who resided in the named insured’s household.

On October 2, 1986, plaintiff Henrich was injured while a passenger in an uninsured motor vehicle, owned and operated by Ralph E. Crites Jr., which went out of control and struck a tree. At the time of the accident, plaintiff Henrich was herself the owner of an automobile, but the insurance covering Hen-rich’s vehicle, issued by Erie Insurance Co., had lapsed in April 1986, due to non-payment of premiums. Plaintiff Henrich applied to defendant for the uninsured motorist benefits provided by her father’s automobile insurance policy. Defendant refused coverage on the ground that, as the owner of an uninsured registered vehicle, she had failed to comply with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., and was thus an ineligible claimant.

At the outset, we note that the policies and purposes underlying the MVFRL, enacted in 1984, are markedly different from those underlying the Uninsured Motorist Act of 1963, 40 P.S. §2000. The 1963 act was construed to extend coverage to an insured even when he or she owned and occupied an uninsured motor vehicle. See e.g., Wilbert v. Harleysville Mutual Insurance Co., 254 Pa. Super. 217, 385 A.2d 987 (1978). The purpose of the MVFRL, on the other hand, is to discourage drivers from operating uninsured vehicles on Pennsylvania roadways and is construed narrowly to penalize owners of registered vehicles who fail to comply with the law. Allen v. Erie Insurance Co., 369 Pa. Super. 6, 534 A.2d 839 (1987).

“In passing the [MVFRL], the legislature was primarily concerned with the rising consumer cost of automobile insurance, created in part by the substantial number of uninsured motorists who contributed nothing to the pool of insurance funds from which claims were paid. The act has the effect of requiring all owners of registered vehicles to share in the burden of insurance before they can obtain the benefits. By denying benefits to a certain class of people — those not insuring their registered vehicles — the act encourages the purchase of insurance by all owners who register vehicles which can be legally operated on the highways. It is logical and reasonable to conclude that any vehicle potentially operable, as evidenced by an owner’s registration of such a vehicle, was meant to be included.” Id. at 10, 534 A.2d at 840-1. (citations omitted)

Plaintiffs urge the court to follow the rationale of Wilbert v. Harleysville, supra, arguing that it is still good law because the decision has never been overruled and the 1963 act, interpreted in the Wilbert opinion, has never been repealed. We reject this course, recognizing as Judge Perezous did in his well reasoned decision in Bushman v. Old Guard Mutual Insurance Co., 71 Lancaster L. Rev. 250 (1988), that:

“[T]he Wilbert holding has neither been followed nor overruled since it was written 10 years ago. Instead, the legal focus has shifted from the old, albeit unrepealed, 1963 act to the recently passed Financial Responsibility Law. Without so much as a reference to, or an attempt to reconcile with, the older statute, the Superior Court rapidly has developed a new line of case law to address the many questions left unresolved by the 1984 legislation. Public policy has been the theme of these decisions.” Id. at 257.

Section 1714 of subchapter B of the MVFRL prohibits owners of currently registered but uninsured vehicles from collecting first-party insurance benefits. Plaintiffs point out that subchapter C, which provides for uninsured and underinsured benefits, contains no comparable limitation. However, uninsured/underinsured coverage is analogous to first-party coverage. See, e.g., Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 535 A.2d 1145 (1988). A fortiori, the policies and purposes underlying subchapter B are applicable to subchapter C.

Plaintiffs next argue that the facts of the instant case are distinguishable from those of Brown v. Travelers Insurance Co., 355 Pa. Super. 535, 513 A.2d 1051 (1986); Johnson v. Travelers Insurance Co., 343 Pa. Super. 560, 495 A.2d 938 (1985) and Bushman, supra, in that plaintiff Henrich was not operating her uninsured vehicle when she was injured. For this reason, plaintiffs argue, plaintiff Henrich’s situation does not warrant strict application of the public policies discussed in Allen, supra. While we agree that the facts sub judice are different, we cannot agree that they compel a different result.

Finally, plaintiffs contend, plaintiff Henrich, who resided with plaintiff Getz, the named insured, meets the policy’s definition of “covered persons” and, at least theoretically, was a member of the economic unit which paid the insurance premiums on the Getz policy. Thus, they continue, plaintiff Henrich did contribute to the insurance system from which she now seeks to benefit and the policy rationale of the MVFRL will not be transgressed if we award benefits. This last argument, we feel, misses the mark. The plaintiff in Bushman, supra, was the named insured on the policy from which underinsurance benefits were sought and was more obviously a contributor to the system than plaintiff Henrich who is, at best, merely a “covered person”; nevertheless, Bushman’s plaintiff was denied coverage because she owned a registered but uninsured vehicle. Bushman at 258. The fact of compliance in one instance does not negate the fact of non-compliance in another instance.

In closing, we observe, as did Judge Perezous, that “we are reluctant to construe the policy as written against plaintiff so as to deny her coverage under its provisions. . .” However, to rule in plaintiffs’ favor would require us to disregard the public policy of the MVFRL so clearly enunciated in Allen, supra.

Accordingly, we enter the following

ORDER

And now, July 23, 1990, upon consideration of the parties’ cross-motions for judgment on the pleadings and the briefs and oral arguments of the parties with regard thereto, plaintiffs’ motion is denied, defendant’s cross-motion is granted and judgment on the pleadings is entered in favor of defendant Harleys-ville Insurance Companies.