author: FEUDALE, CASSIMATIS, ENDY, SJ.,

text:
    Merriweather v. Philadelphia Newspapers Inc.

      Geoffrey Johnson, for plaintiff.

      Robert Heim, for defendants.
    May 29, 2002
   FEUDALE, CASSIMATIS, ENDY, SJ.,

Defendants filed post-trial motions from the entry of a verdict in favor of plaintiff, Ronald B. Merriweather, and against defendant, Philadelphia Newspapers Inc. et al. (PNI) in this defamation action. The jury awarded Judge Ronald B. Merriweather $100,000 in compensatory damages and $400,000 in punitive damages. Record argument before a specially convened three-judge en banc panel was conducted on June 11, 2001.

I. HISTORY OF THE CASE

We incorporate by reference and attach the explanatory opinion by Feudale, J. which was docketed on October 10, 2000. [Not published here.]

Such sets forth the newspaper article that was the basis for this defamation action, as well as the basis for the trial. Defendants, in effect, assert that the case that was tried by the plaintiff and the trial court’s charge to the jury, was based on theory that had been disallowed or rejected by the Superior Court.

In the first appeal, the presiding judge, (Hon. James Buckingham) granted defendants’ motion for summary judgment. He found that as a matter of law PNI did not abuse the fair report qualified privilege as to the article in question.

The Superior Court upon review characterized and framed the issue, as set forth by appellant Merriweather, and stated the following:

“Judge Merriweather contends that the article which appellees published misconstrues the federal indictment and abuses the qualified privilege because, (1) the headline and article taken together falsely imply that Judge Merriweather fixed court reporter Massey’s trial or, (2) the article implies that the federal authorities accused, yet did not charge Judge Merriweather of fixing Massey’s trial. Appellant’s briefs at 7. We shall address both of Judge Merriweather’s contentions. We can summarily dismiss Judge Merriweather’s claim that the article implies that federal authorities accused, but did not charge Judge Merriweather of fixing Massey’s trial. The article clearly states that Judge Merriweather was not accused of any wrongdoing.
“However, we find merit in Judge Merriweather’s second argument that the title of the article, ‘FEDS: Court Reporter’s Pot Trial Fixed,’ coupled with the text of the article implies that he was instrumental in fixing Massey’s trial. At this point, it is important to compare the federal indictment against Judge Harris with the article written by the Philadelphia Daily News. The indictment alleges that the federal defendants, including Judge Harris and attorney Romaine Phillips, unlawfully conspired to participate in the conduct and affairs of the Court of Common Pleas of Philadelphia County through multiple acts of bribery and extortion. Indictment, paragraph 3,4. The indictment then charged that the defendants carried out the conspiracy by seeking to influence the outcome of judicial proceedings. This was accomplished through various means, including the steering of cases involving criminal defendants to certain attorneys and judges in the court system to obtain favorable results. Indictment, paragraphs 5,6. It was further alleged that the defendants acted overtly by seeking to fix the case of Commonwealth v. Massey, M.C. 8604-0570. Indictment, paragraph 38. The overt act purportedly occurred when Judge Harris told an attorney that Massey inquired as to whether the case “was fixed yet,” and when attorney Romaine Phillips discussed the need for a continuance in Massey’s case, which Harris granted. Indictment, paragraphs 39, 41.
“The indictment never mentioned Judge Merriweather. The article, however, did mention Judge Merriweather’s handling of Massey’s case. Specifically, the title of the article indicates that the federal authorities alleged that Massey’s trial was fixed. Moreover, the article states that ‘Judge Kenneth Harris — in apparently taped conversations^ — -suggested that a fix, not a doubt, would be behind her acquittal on drug charges by Municipal Judge Ronald A. Merriweather.’ Thus, the article focuses on the outcome of the trial, as well as the actions of the federal defendants. By suggesting that the trial and the acquittal, matters which were under the sole control of Judge Merriweather, were fixed, we find that the article can reasonably be interpreted to implicate Judge Merriweather in the federal conspiracy. Thus, we find that a reasonable person could conclude that the article implied that Judge Merriweather had a role in fixing the Massey case. Although the article states that Judge Merriweather was accused of no wrongdoing, the article can be construed to imply that Judge Merriweather was involved in the conspiracy. We therefore find that the trial court erred in holding, as a matter of law, that the article was a fair and accurate report of the federal indictment. A question of fact concerning this point remains and must be disposed of by the jury.
“Order reversed. The case is remanded for proceedings consistent with this memorandum. Jurisdiction is relinquished.
“Wieand, J. Dissents.”

In the second appeal to the Superior Court involving the issue of actual malice, the court reviewed its earlier 1992 panel decision and stated:

“On appeal, appellant argued that the trial court erred in granting summary judgment by finding that, as a matter of law, appellees did not abuse the qualified privilege to report on the federal indictment. A panel of this court agreed----The panel reversed the trial court’s order and remanded the matter for further proceedings. Appellees filed a petition for allocatur with our Supreme Court. Although the petition was granted and the appeal was briefed and argued, the Supreme Court entered an order dismissing the appeal as having been improvidently granted.

On March 8,1995, appellees filed another motion for summary judgment, this time claiming that, as a matter of law, appellant could not prove actual malice. After appellant filed a response, the trial court heard arguments and, by the order dated August 18, 1995, granted appellees’ motion for summary judgment.”

Appellant phrases the issue before us as follows:

“(1) Whether the trial court erred in granting summary judgment to (appellees) on the issue of actual malice where (appellees) published a false accusation that (appellant), a judge, ‘fixed’ the trial of a case, where there was absolutely no factual basis for the accusation in the only source materials admittedly relied upon by the (appellee) where the source material actually contradicted the accusation....” Appellant’s brief at p.3.

After discussing, reviewing, and reiterating its earlier panel decision, the Superior Court stated:

“Although we limited our review to whether the article was a fair and accurate report of the federal indictment, in the present appeal we find that our previous analysis of the evidence would also support a fact-finder’s determination that appellees published the article with actual malice. It is clear that the headline and content of the article when coupled together, do not reflect the contents of the federal indictment upon which it was based, (emphasis added) Now we must decide whether appellant has alleged sufficient facts to raise a material issue regarding whether appellees published the article with knowledge of or reckless disregard for the truth. In this regard, we find that the implications of appellant’s involvement in the federal conspiracy are obvious, and their lack of any basis within the actual federal indictment are equally obvious, (emphasis added) Although the article expressly relates a single line to the effect that appellant was not accused of any wrong doing we find that this does not negate the implication of involvement which permeated the article.”

So, to reiterate, defendants’ argument is that the plaintiff pled, claimed, and twice argued to the Superior Court, inter alia, two factual/legal defamation causes of action:

“(1) That the article implied that the federal authorities accused, yet did not charge, Judge Memweather of fixing Massey’s trial. That contention, according to the defendant, was both summarily dismissed and reiterated in the two Superior Court opinions. With that contention we concur.
“(2) The second claim was that the headline and the article taken together falsely implied or could be construed to imply when coupled or read in context by a reasonable person that Judge Memweather ‘fixed’ or was instrumental in fixing or ‘had a role in fixing court reporter Massey’s trial.’ ”

In summary, after reflection and careful review of the averments/arguments plaintiff/appellant made before the Superior Court, and the Superior Court’s holdings, we believe both panels clearly and unequivocally stated:

“(1) There is no cause of action that the article implies that federal authorities accused but did not charge Judge Memweather of fixing Massey’s trial since the article clearly stated that Judge Memweather was not accused of wrongdoing, (emphasis in original)
“(2) Both panels addressed the literal accuracy of two separate statements: (1) ‘Feds: Court Reporter’s Pot Trial Fixed’ and (2) ‘Neither Judge Merriweather or Massey is accused of any wrongdoing.’ ”

Again, a review of the Superior Court opinions reflected that neither statement appeared in dispute. For example, as to indicted defendants Judge Harris and attorney Romaine Phillips, it was alleged they acted overtly in seeking to fix the case, Commonwealth v. Massey, M.C. 8604-0570. As to Judge Merriweather, it was equally clear that notwithstanding the fact that the article clearly reflected that he was not accused of any wrongdoing, it was also clear that the article did not state or imply as a fact that the Harris indictment accused Judge Merriweather of fixing the trial of Loretta Massey.

With the issues thus framed, and in consideration of the “holdings of the Superior Court,” the case proceeded to trial. It is PNI’s contention that during the course of the trial, plaintiff argued “(1) against the introduction of certain evidence, (2) opposed the defendant’s motion for a nonsuit at the conclusion of the plaintiff’s case, and (3) requested a charge to the jury,” all of which contradicted plaintiff’s one remaining claim that was allowed by the Superior Court and which was clearly contrary to the Superior Court’s holdings.

In consideration and reliance on the Superior Court’s holding as to plaintiff’s remaining cause of action, the defendant listed and attempted to call Richard Barrett, the assistant district attorney who prosecuted the Massey case. In their offer of proof PNI indicated Barrett would have testified about the irregularities in, and concerns he had about, Judge Merriweather’s handling of the Massey case. Defendants argue that this evidence was directed to the truth of any implication that plaintiff was involved in a conspiracy to fix the Massey trial. Plaintiffs argued that the events at the trial of the case of Commonwealth v. Massey were not relevant to any issue and that there was nothing that Mr. Barrett could testify to that had any bearing on what Mr. Maryniak wrote. Plaintiff maintained unequivocally that Barrett’s testimony was not relevant to any element of his claim, including “the truth or veracity of what is asserted in the article.” Based on plaintiff’s assertions, the court excluded Barrett’s testimony except for impeachment on a limited issue.

It is the position of PNI that plaintiff and his counsel in contravention to the two prior Superior Court decisions engaged in an open and unequivocal strategic decision to craft the theory of defamation in a manner such as to avoid the issue of Judge Merriweather’s actual role in the Massey case. It was the position of the defendant that the federal prosecutors ultimately concluded that Harris had placed the Massey case “before a specific judge for (the) specific purpose of an acquittal, which in fact occurred.” Defendant referenced government’s trial memorandum, in United States v. Harris (cited in 1992 trial court opinion at 5). Again, according to PNI by adopting the theory that plaintiff actually tried, he was able to prevent litigating his role in the acquittal.

Next, on February 1,2001, when the defendant moved for a nonsuit, counsel for plaintiff argued inter alia “I think the allegation that a judge was accused of fixing a case by the federal government or implicated in a case fix by the federal government is certainly defamatory.” (N.T. 2/1/00 at 31 L. 7-10.)

Finally, and in defendant’s view, most persuasively, is the court’s charge to the jury that they would have to find “that the average newspaper reader, considering the article as a whole, understood the article to state or imply as a fact that the Harris indictment accused Judge Merriweather of fixing the trial of Loretta Massey.

In consideration of the aforegoing, we turn to an analysis of the applicable law regarding entry of judgment n.o.v. It is axiomatic that “[tjhere are two basis upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law,... and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). (citations omitted) To uphold judgment n.o.v. on the first basis, the court must review the record and conclude “that even with all [the] factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second [we] review the evidentiary record and [con-elude] that the evidence was such that a verdict for the movant was beyond peradventure.” Id.

When the courts review a motion for judgment n.o.v., they must consider the evidence in the light most favorable to the verdict winner, who must receive “the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Id. (citing Broxie v. Household Finance Co., 472 Pa. 373, 380, 372 A.2d 741, 745 (1977)). Any doubts must be resolved in favor of the verdict winner, and judgment n.o.v. should only be entered in a clear case. Id. Finally “a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.” Id., citing Brown v. Shirks Motor Express, 393 Pa. 367, 375, 143 A.2d 374, 379 (1958).

Clearly, the plaintiff chose to proceed to trial on a claim that the record on post-trial relief reflects was contrary to the law of the case, as rendered and reiterated by two Superior Court panels. Next plaintiff’s own testimony reflects his reliance on the theory/claim that was disallowed by the Superior Court. Plaintiff was asked on cross-examination the following questions:

“Q. When you read the article, the headlines, the article, was it your sense, your understanding that the article was saying that the federal government, the Feds, in their indictment was saying that Judge Merriweather fixed the pot trial?
“A. Yes.
“Q. And that was basically. . . the reason you were upset?
“A. Yes.
“Q. So you knew that the federal indictment had not charged you with fixing the pot trial, you thought this article said as much that the federal government had charged you with or accused you of fixing the pot trial, and it was that reading of it that outraged you.
“A. That’s a lie and that’s what upset me.” (N.T. 1/28/ 00 at 178-79.)

Finally, defendant points to plaintiff’s closing argument wherein plaintiff argued that “what this article says is, or what this article tries to tell the readers of the Daily News is, that the federal government has stated, accused or otherwise implicated Judge Merriweather of fixing the trial in Commonwealth v. Massey.” (N.T. 2/2/00 at 15.)

While this court cannot speculate on the basis for plaintiff abandoning his claim that the article in question taken in the context of the caption and the text, defamed him by implication, he apparently made a clear and unequivocal choice to proceed in such a fashion. Of course, it is defendant’s position that by adopting the theory (defendant characterizes it as “carefully crafting his theory of defamation”) that both plaintiff’s counsel argued, presented and strategized, and plaintiff himself testified to, they were able to avoid litigating the actual role plaintiff allegedly played in the acquittal of Massey.

Plaintiff contends that defendants are not entitled to judgment n.o.v. for three reasons. First, plaintiff argues that the relevant language of the 1992 Superior Court opinion was dicta. Second, plaintiff claims that the decision was implicitly overruled by MacElree v. Philadelphia Newspapers Inc., 544 Pa. 117, 674 A.2d 1050 (1996). Third, plaintiff maintains that he presented evidence supporting other alleged defamatory implications on which the jury could have based its verdict.

Dicta

In the first appeal in this case, plaintiff claimed that a jury could conclude that the article abused the fair report privilege because it carried two implications allegedly not supported by the official proceedings reported on: (1) that plaintiff was involved in the conspiracy to fix the Massey case and (2) that the federal authorities had accused plaintiff of participating in the conspiracy. The Superior Court rejected the latter argument because it concluded that the article cannot be read to carry the alleged defamatory implication; as the court noted, the article explicitly stated that plaintiff had not been accused of wrongdoing. This ruling was essential to the Superior Court’s holding that plaintiff could overcome the fair report privilege in this case only if the jury concluded that the article implied a direct accusation that plaintiff was involved in the conspiracy.

The definition of dicta is well-settled. “Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of adjudication.” Giffear v. Johns-Manville Corp., 429 Pa. Super. 327, 334 n.6, 632 A.2d 880, 884 n.6 (1993) (quoting Black’s Law Dictionary 409 (5th ed. 1979)), aff’d, 543 Pa. 664, 674 A.2d 232 (1996). Because determining the meaning that the jury could reasonably ascribe to the article was essential to determining the application of the fair report privilege in this case, the portion of the 1992 Superior Court opinion dismissing plaintiff’s claim at trial was not dicta.

MacElree Did Not Implicitly Overrule The 1992 Superior Court Opinion

Next, plaintiff maintains that MacElree v. Philadelphia Newspapers Inc., 544 Pa. 117, 674 A.2d 1050 (1996), effectively revived his claim that the article may reasonably be read to imply that the indictment accused him of wrongdoing and, thereby, implicitly overruled the 1992 Superior Court opinion. MacElree has no bearing on this case and does not mean what plaintiff says.

Plaintiff asserts that, notwithstanding the fact that the article expressly states that Judge Merriweather is not “accused of wrongdoing,” the reader, based on the headline and second paragraph of the article, might have drawn the opposite conclusion that the indictment did accuse him of wrongdoing. Again, this is the claim that the Superior Court rejected. The 1992 Superior Court opinion held that no reader could reasonably have concluded that the indictment accused Judge Merriweather of wrongdoing because this implication was expressly refuted in the article. Plaintiff argues that MacElree rejects this analysis and maintains that MacElree holds that a reader may draw a defamatory conclusion from an isolated portion of an article even if that conclusion is explicitly negated by other language in the article.

Plaintiff’s reading of MacElree is wrong. MacElree does not stand for the proposition for which plaintiff cites it and does not call into question in any way the holding of the 1992 Superior Court opinion. The publication in suit in MacElree reported on a brawl at Lincoln University, a historically black college in rural Chester County, between students and outsiders. The article, entitled “What goes on at Lincoln U?” also discusses the Lincoln administration’s reluctance to acknowledge the role that students played in the melee. Of the 24 paragraphs in the column, two refer to James MacElree, then the district attorney of Chester County. Those two paragraphs reported that, in response to remarks by MacElree that one of the outsiders had been stabbed, Lincoln’s lawyer accused MacElree of “electioneering — ‘the David Duke of Chester County running for office by attacking Lincoln.’ ”

MacElree sued, claiming that the article misquoted Lincoln’s lawyer and thereby defamed him. The Superior Court affirmed dismissal on the ground that “[t]he article was not about MacElree; to the extent that the reader would be left with any impression of MacElree at all, it would be a positive impression when contrasted with the dissembling university officials.” MacElree v. Philadelphia Newspapers Inc., 437 Pa. Super. 598, 602, 650 A.2d 1068, 1070 (1994). The Supreme Court reversed, holding that “[Sjpecific language may be defamatory even though the subject of the defamatory language is not the focus of the article. Moreover, a publication may be sympathetic towards its subject overall while particular portions have a defamatory meaning.” 544 Pa. at 125, 674 A.2d at 1054.

Thus, MacElree addressed the case where a plaintiff takes issue with a small portion of an article and the rest of the article has nothing to do with, and does not explain, the language complained of. That is not the case here. In this case, the remainder of the article includes a passage which expressly refutes the defamatory implication that plaintiff attempts to ascribe to the limited portion of the article about which he is complaining. Unlike the article in MacElree, the article in suit here expressly states the contrary of what plaintiff claims the headline and second paragraph imply.

The interpretation of MacElree that plaintiff urges would put it at odds with the axiom of libel law that to determine whether an article is capable of a defamatory meaning, the court must consider all of the language in the article. Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981), demonstrates the rule. In Thomas Merton Center, the plaintiff alleged that a newspaper article falsely implied that the plaintiff was an agent of the Soviet government. To support its claim, the plaintiff looked solely to the first paragraph of the article — where the defendant claimed that opponents of the B1 bomber were being funded by the Soviet Union — and the penultimate paragraph of the article — where the plaintiff was identified as an opponent of the Bl. Because the remainder of the article demonstrated that the plaintiff was not actively aiding the Soviet Union, the Supreme Court upheld the dismissal of the complaint, explaining that:

“If these two paragraphs of the article constituted the entire story... the innuendo urged by [the plaintiff] might be reasonable. However, ‘words which standing alone may reasonably be understood as defamatory may be so explained or qualified by their context as to make such an interpretation unreasonable’ Restatement (Second) of Torts, §563, comment d. Thus, we must consider the full context of the article to determine ‘the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. ’ ” 497 Pa. at 465, 442 A.2d at 216. (emphasis added and citations omitted) Numerous cases have reaffirmed this fundamental principle, both before MacElree and after. See e.g., Baker v. Lafayette Col lege, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987) (“the court must view the statements in context”); Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997) (“the court must consider the effect of the entire article”); Livingston v. Murray, 417 Pa. Super. 202, 209 n.3, 612 A.2d 443, 446 n.3 (1992). (The court “must examine the full context of the communication in which the statements appear to properly determine whether the statements are capable of defamatory meaning”), appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992).

MacElree — which neither mentions the 1992 Superior Court opinion nor questions the holding in Thomas Merton Center or any Supreme Court precedent — does not purport to change the law, nor does it, and it certainly does not revive the claim that the Superior Court rejected in 1992.

Other Alleged Defamatory Implications

Plaintiff takes the position that he presented evidence of more than one defamatory meaning to the jury. Specifically, plaintiff contends that there was evidence and argument in support of both of his original theories— that the article implied a direct accusation that he was involved in the conspiracy and that the article implied that the indictment accused him of such — as well as a third theory, “that plaintiff will be charged in the future.” Pl.’s post-trial mem. at 8-12. Plaintiff maintains that the jury was free to conclude that the article was defamatory for any of these reasons, thus the verdict should be upheld. This argument lacks merit for several reasons.

From opening to closing the jury was instructed at plaintiff’s request on a single theory of defamatory meaning. At the outset, the court instructed prospective jurors that plaintiff’s claim was that the article “falsely stated that a federal indictment charged that he had fixed a trial in collaboration with another judge, Judge Kenneth Harris, who had been charged in a federal court indictment with taking money to influence the outcome of cases.” N.T. 1/24/00 at 4. (emphasis added) Again, at the close of the case, the sole theory of defamatory meaning on which the jury was instructed was as follows:

“As the first element of his defamation claim, Judge Merriweather must prove by a preponderance of the evidence that the article was understood by the average, reasonable person who read the article to have the meaning Judge Merriweather claims it had.
“This means that Judge Merriweather must prove that the average newspaper reader considering the article as a whole understood the article to state or imply as a fact that the Harris indictment accused Judge Merriweather of fixing the trial of Loretta Massey.
“You must decide whether the average reader understood the article and headline when read in context to imply that the Harris indictment accused Judge Merriweather of fixing the trial of Loretta Massey.” N.T. 2/3/00 at 31-32. (emphasis added)

These instructions were given with plaintiff’s specific approval and plaintiff did not request any instructions on his supposed alternative theories of defamation.

Plaintiff cannot both request that the jury be instructed on a single theory of defamation and then speculate afterwards that the jury could have returned its verdict on other theories. A jury is presumed to have followed the instructions the court gives it. See e.g., Commonwealth v. Farmer, 758 A.2d 173, 178 (Pa. Super. 2000); Hutchi son ex rel. Hutchison v. Luddy, 560 Pa. 51, 72, 742 A.2d 1052, 1063 (1999) (Cappy, J., concurring). When a jury has been charged on only one theory of law, there is no reason to conclude that the jury reached —or would have reached — the same conclusion under a different theory. See e.g., Hutchison, 560 Pa. at 74, 742 A.2d at 1064 (Cappy, J., concurring).

The jury in this case was instructed that it could find the article defamatory only if it concluded that the article implied that the indictment accused plaintiff of wrongdoing. The jury was not instructed that it could find the article defamatory if it implied either that plaintiff was involved in the conspiracy or would be charged in the future. There is no basis in the law for upholding a jury verdict based on a legal theory on which it was not instructed.

In conclusion, the trial judge being sensitive to the fact that this case has been in existence since 1987, the subject of two separate appeals to the Superior Court and allocatur having been initially granted and reconsidered, we felt an en banc panel was the fair and prudent way to address an issue that raised in our mind the possibility the uncontested facts/law and inexplicably the cause of action actually pursued by plaintiff were such that the verdict may have been improper.

After careful consideration of the argument held on June 11, 2001, the en banc panel believes a closer review of the two Superior Court opinions and the theory of defamation pursued by the plaintiff in this case is such that “three reasonable minds” have concluded that the verdict is improper and PNI’s motion for post-trial relief seeking entry of a judgment n.o.v. shall be granted.

An order has been filed this date consistent with this memorandum.

ORDER

And now, May 29,2002, defendants’ motion for judgment n.o.v. is hereby granted.

      . Ronald B. Merriweather v. Philadelphia Newspaper Inc., before: Wieand, Tamilia and Cercone, JJ., filed October 23, 1992, and Ronald B. Merriweather v. Philadelphia Newspaper Inc., before Cavanaugh, Hudock and Jameson, JJ., filed September 11, 1996.

      . The trial court will address said ruling in a separate opinion since it falls outside the ambit of the issues framed before the en banc panel.

      . See trial transcript dated February 3, 2000, page 30, lines 5-24, 31 lines 8-25, 32 lines 1-25, 33 lines 1-4 and 34 lines 6-18.
      Plaintiff requested a jury instruction which explained what plaintiff needed to prove regarding the defamatory meaning of the article: “the average newspaper reader, considering the article as a whole, understood the article to state or imply as a fact that the Harris indictment accused Judge Merriweather of fixing the trial of Loretta Massey.”
      Also, prior to the charge conference, counsel conferred to determine the points that could be agreed upon, either as proposed or with some modification, and the points on which the court would have to rule. Defendants’ revised jury instruction no. 9 was modified by plaintiff and then submitted by agreement of counsel.

      . The fair report privilege is a general rule that a qualified privilege extends to reports of certain public proceedings if the report is accurate and a complete or fair abridgement of the occurrence reported.


source: Caselaw Access Project

author: McINERNEY, J,

license: Public Domain

text:
    Marra v. SmithKline Beecham Corp.

      Stephen Shelter, for plaintiffs.

      Arthur Makadon and Leslie E. John, for defendant.
    May 7, 2001
   McINERNEY, J,

Defendant Smith-Kline Beecham Corporation appeals from this court’s refusal to strike off plaintiffs’ voluntary discontinuance.

On June 12, 2000, plaintiffs Lydia and Frank Marra commenced this action by filing a complaint. The complaint alleged that the plaintiffs were injured in various ways by a Lyme disease vaccine manufactured by defendant SmithKline Beecham Corporation. Included with the Marras’ complaint was a civil trial cover sheet on which the plaintiffs checked a box marked “non-jury.” As a result, the case was listed in the major non-jury trials program.

After SB had answered the complaint and asserted new matter defenses, and the Marras had replied to the new matter, but before discovery had closed, on November 17, 2000, the Marras voluntarily discontinued this action. Three days later, on November 20,2000, the plaintiffs instituted a new suit against the same defendant on the same cause of action. In the new action, the Marras elected to proceed before a jury. The Marras followed this procedure because SB refused to agree to allow the Marras to demand a jury trial in the first action. Other than the jury trial demand, in all other material respects the first and second actions were identical.

On December 5, 2000, SB petitioned pursuant to Pa.R.C.P. 229(c) to strike the discontinuance. The Marras responded to the petition, and on January 19, 2001, this court refused the petition. On February 5,2001, SB timely filed a notice of appeal. In response to this court’s order pursuant to Pa.R.A.P. 1925(b), on February 12, 2001, SB filed a concise statement of matters complained of on appeal. Its 1925(b) statement alleges that this court erred by failing to strike the discontinuance.

Rule 229(c) of the Pennsylvania Rules of Civil Procedure provides that a court may strike off a discontinuance to protect a party from “unreasonable inconvenience, vexation, harassment, expense or prejudice.” Pa.R.C.P. 229(c); see Fancsali v. University Health Center of Pittsburgh, 563 Pa. 439, 761 A.2d 1159, 1162 (2000). In deciding whether a party has been prejudiced by a discontinuance, courts examine, among other things, the length of time the case had been pending, the effort and expense those parties incurred in discovery, and the disadvantage imposed by the passage of additional time. See Truesdale by Truesdale v. Albert Einstein Medical Center, 767 A.2d 1060, 1063 (Pa. Super. 2001). A ruling on a petition to strike a discontinuance will not be reversed absent an abuse of discretion. See Fancsali, 761 A.2d at 1162.

In Fancsali, our Supreme Court was called upon to decide whether the trial court improperly denied the plaintiffs’ petition to discontinue their minor daughter’s action without prejudice. Fancsali, 761 A.2d at 1161. Because a minor child was a party in Fancsali, Rule 2039 required the court’s permission to discontinue the action. Id., 761 A.2d at 1162; Pa.R.C.P. 2039. The court reversed the trial court, and opined that regardless of whether the court is faced with a petition to discontinue an action or to strike a discontinuance, the analysis remains the same. Id., 761 A.2d at 1162. In either case, the question at bottom is whether the plaintiff has obtained “some unjust disadvantage to the defendant or some other interested party ....” Id., 761 A.2d at 1162, quoting Consolidated National Bank v. McManus, 217 Pa. 190, 191-92, 66 A. 250, 251 (1907).

The Fancsali court further admonished the courts below for having viewed as dispositive the fact that the defendants would be subject to suit for some 12 years. Id., 761 A.2d at 1163, 1164, n.6. The Minority Tolling Statute, 42 Pa.C.S. §5533(b), permitted the plaintiffs to file suit until July 16, 2010. Id., 761 A.2d at 1164. Justice Zappala, writing for the court, explained that where the statute of limitations permitted the plaintiff to reinstitute suit, the possibility that the plaintiff could yet sue for years to come was not a proper consideration. Id., 761 A.2d at 1163. Rather than being contrary to the purpose of statutes of limitation, the Minority Tolling Statute was part and parcel of the statute of limitations. As such, the delay it occasioned could not be contrary to the purpose of the limitations statutes. Id., 761 A.2d at 1164 n.6. Justice Zappala also pointed out that Pa.R.C.P. 231 (a) similarly allows a plaintiff after a discontinuance, upon payment of the costs of the first action, to commence a second action upon the same cause of action. “Far from being ... prejudicial, [the possibility of a second suit] is expressly contemplated ....” Id., 761 A.2d at 1165 n.7.

In this case, SB did not argue that it was prejudiced in any way by the Marras’ discontinuance and reinstitution of suit. Instead, it pointed to what it termed the Marras’ “insidious motive” and Brown v. Phillips, 365 Pa. 155, 159, 74 A.2d 105, 108 (1950). On those grounds, SB insisted that the discontinuance should be struck. According to SB, the insidiousness lies in the Marras’ filing a second suit demanding a jury trial. Since Rule 231 “expressly contemplate^]” a second suit, Fancsali, supra, the Marras’ actions could hardly be termed “insidious.”

More to the point, in light of Rule 231 and the Supreme Court’s opinion in Fancsali, the discontinuance imposed no cognizable harm on SB. SB has not argued that the statute of limitations has run. The General Assembly has already determined that there is no harm in instituting a suit in the time frame involved. We are in no position to disagree. Any inconvenience SB has incurred could have been avoided by agreeing to the jury trial demand. The Marras simply have obtained no unjust advantage.

SB cites Brown v. Phillips for the proposition that discontinuing suit for the purpose of recommencing suit in a different forum is a per se cause to strike the discontinuance. Brown, however, was of a different character than the present case, and the Supreme Court’s holding was much narrower than SB would have. In Brown, the plaintiffs began suit by filing a complaint. The defendant responded, and in turn, the Browns filed an amended complaint. Id. at 157, 74 A.2d at 106. The defendant again filed a responsive pleading. Id. Eventually, the case proceeded to trial. At the close of the plaintiffs’ evidence, the defendant moved for a nonsuit. Id. at 156, 74 A.2d at 106-107. To avoid nonsuit, the plaintiffs moved for the withdrawal of a juror. Id. at 156-57, 74 A.2d at 107. The defendant did not object, and the court granted the motion and continued the case. Id. at 157, 74 A.2d at 107. The Browns then filed a second amended complaint, to which the defendant filed preliminary objections. The parties agreed that the court should sustain the preliminary objections, with leave to the plaintiffs to file a third amended complaint. Id. The third amended complaint came, and the defendant again countered with preliminary objections. Id. Those objections the court again sustained, and yet again granted the plaintiffs permission to file a fourth amended complaint within 20 days. Id. Instead of doing so, the plaintiffs instituted suit in the federal district court for the Western District of Pennsylvania. Id. On the twenty-first day after the common pleas court’s order, the plaintiffs moved to discontinue their state court suit. The trial court granted the discontinuance. Id. The Supreme Court held that permitting the discontinuanee was reversible error “after the extent of the litigation to which [the plaintiffs] had subjected the defendant in a competent and convenient jurisdiction which they voluntarily invoked.” Id. at 158, 74 A.2d at 107.

In the case presently under consideration, the Marras have not subjected SB to anything approaching the saga the Supreme Court recounted in Brown. Certainly, the parties have completed some of the initial stages of the litigation. But whenever a plaintiff discontinues a suit, it will nearly always be the case that the parties will have completed some aspect of the process. The question is one of degree. Precisely stated, the issue is whether the parties have proceeded so far with the litigation that to discontinue it would be unreasonably inconvenient, vexatious, harassing, expensive, or prejudicial to the defendant.

SB specifically noted the Brown court’s remark to the effect that a discontinuance ought not be permitted where the only reason to discontinue is to institute suit in a different forum. In the case at bar, the second suit was instituted in the same forum. Moreover, that statement is inconsistent with the court’s more recent pronouncements in Fancsali, supra. Under Fancsali’s understanding of the relationship between Rules 229 and 231, a discontinuance for the purpose of instituting a second suit within the statute of limitations is not improper. To the extent that Brown and Yachere v. Yachere, 52 D.&C.2d 768 (Somerset Cty. 1971), on which SB also relies, hold to the contrary, we cannot agree.

For the foregoing reasons, this court’s order should be affirmed.

      . Three companion actions were filed by other plaintiffs. The companion actions share the same procedural posture as the present case, and are also before the Superior Court on appeal. Those appeals are docketed at 477 EDA 2001, 479 EDA 2001, and 480 EDA 2001.

      . As a parting shot, in a footnote on the last page of its memorandum in support of its petition, SB declares that “Local Rule §9-5.0 ... specifically provides that ‘no continuances [shall be] granted.’ ” There is no local rule §9-5.0, at least not in Philadelphia. So far as we can determine, SB is citing to Steven A. Arbittier et al., Philadelphia Court of Common Pleas Civil Practice Manual §9-5.0. Although widely used, that tome is not among the court’s official publications. Even if it were, section 9-5.0 is not relevant here. That portion of Mr. Arbittier’s book discusses status/trial scheduling conferences in the major non-jury program, and does not purport to be an observation of the court’s general views on continuances, or perhaps more pertinent, striking discontinuances.


author: BRADLEY, J.,

text:
    Glenbrook Leasing Co. v. Beausang

      C.P. of Delaware County,
    no. 00-11481.

      Kevin William Gibson, for plaintiff.

      James W. Christie and Rex F. Brien, for defendants.
    April 29, 2003
   BRADLEY, J.,

The motion for summary judgment of defendants Michael F. Beausang Jr., Esquire and Butera, Beausang, Cohen and Brennan is the subject of this opinion. This motion is based on the affirmative defense of the statute of limitations.

STATEMENT OF THE CASE

Plaintiff Glenbrook Leasing Company is a real estate partnership consisting of four physicians who collectively practice as “Main Line Women’s Health Care” (MLWHC). On or about October 1987, Michael F. Beausang Jr., Esquire and his firm Butera, Beausang, Cohen and Brennan were retained by plaintiff to prepare an agreement of sale and deed in connection with plaintiff’s proposed purchase of office space for medical offices at the Radnor House. In addition to the sale and purchase of office space, the agreement of sale also contemplated that:

“Seller shall reserve 26 parking spaces for the sole use of buyer, and in addition, nine other parking spaces reserved for patients for the period Monday through Friday, of each day of each week from 9 a.m. to 5 p.m.” Paragraph 31, agreement of sale, exhibit A to plaintiff’s complaint.

On October 30,1987, Glenbrook signed and executed the agreement of sale which included paragraph 31. The real estate closing occurred on April 21, 1988, at which time a deed for office space was conveyed to Glenbrook. The deed was silent with respect to the parking spaces. The defendant law firm’s representation of Glenbrook in the real estate transaction concluded in 1988.

A dispute arose between Glenbrook and the Radnor House Condominium Association in 1994 regarding a restriction of Glenbrook’s use of the 35 parking spaces as a result of proposed construction to be performed by RHCA. Complaint, paragraph 10. Glenbrook objected to the temporary loss of the parking spaces as too disruptive to the medical practice of lessee MLWHC whereupon RHCA informed plaintiff that because Glenbrook was not the owner of the parking spaces, Glenbrook had no legal right to object to the proposed construction. Id. at paragraph 11; see also, letter dated October 11, 1994, from counsel for RHCA to MLWHC and Glenbrook (“Our internal investigation indicates that in GLC’s agreement of sale with Radnor House Associates Inc. there is merely a provision reserving 35 [s]paces for GLC, but there is no transfer of title.”) (Certification of Rex F. Brien in support of motion for summary judgment at exhibit E.)

On October 11,1994, RHCA’s counsel sent a letter to Glenbrook wherein he advised: “[p]lease also look at your conveyancing documents. You will see that Radnor House Associates Inc. has conveyed no title to common element spaces. The reservation of use contained in your agreement of sale was not lawfully made and, even if lawful, merged into your deed. Your deed does not transfer title or confer an exclusive easement.” (Brien certif. at exhibit E, p. 3.)

RHCA threatened suit and the assessment of back charges for the cost of maintenance and reasonable rental for the subject parking spaces if the dispute was not amicably resolved. On November 21, 1994, RHCA’s counsel sent a letter to defendant Beausang, Glenbrook’s counsel at the time, accusing Beausang of legal malpractice. (Brien certif. at exhibit F.) A copy of this letter was faxed to Glenbrook by Beausang. Id.

In November 1994, Glenbrook sought a “second opinion” from Bradley Rainer, Esquire, regarding RHCA’s position with respect to the subject parking spaces. See Rudolph deposition at pp. 112-14. (Brien certif. at exhibit C.) Subsequent discussions ensued between Rainer and Barbara Engler, Glenbrook’s office manager and Dr. Rudolph, a physician with MLWHC regarding the possibility of a claim against Beausang. See Rainer dep. at pp. 18, 23-29, 42, 73-74, 77-78. (Brien certif. at exhibit G.) On December 29, 1994, Rainer sent Glenbrook his opinion letter on this subject. See Rainer’s letter attached to the Brien certif. at exhibit H. Mr. Rainer concluded that Glenbrook “has a potential claim against the seller and the condominium association. However, the success of each claim is questionable.” Id. at 1. Rainer ended his opinion letter by noting that “[a]s you know, Glenbrook and/or Main Line may have claims against other parties which have not been addressed in this letter.” Id. at 5. By “other parties,” Rainer was referring to, inter alia, Beausang. See Rainer deposition at pp. 67-68; (Brien certif. at exhibit G); see also, July 3, 2002 letter from Glenbrook’s attorney in this action, Kevin Gibson, Esquire, to Mr. Rainer at p. 1 (“When we recently spoke you advised that with now having your ‘notes’ retrieved from your file that you have a specific recollection that you had conversations with Dr. Rudolph present wherein you advised that one of those other parties could have been Glenbrook’s then counsel Michael Beausang.”). (Brien certif. at exhibit 1.)

In January 1995, RHCA began charging Glenbrook a $20 per parking space fee which Glenbrook refused to pay. Complaint, paragraphs 12-13. Glenbrook’s dispute with RHCA over the subject parking spaces escalated into litigation. Id. Glenbrook requested BBCB to defend their interests in the action. The litigation in the RHCA suit culminated in a bench trial before the Honorable Clement J. McGovern in November and December 1999. Judge McGovern found in favor of RHCA and held that the intention of the parties at the time of the signing of the agreement of sale was to create a lease of parking spaces. Radnor House Condominium Association v. Eric A. Corkhill Jr. M.D., no. 95-7433 (Delaware Cty. C.C.P. 2002). (Certification of Rex F. Brien attached as exhibit 2 to reply brief in further support of defendants’ motion for summary judgment.) This matter was ultimately settled after appeal.

The instant action was initiated by the filing of a writ of summons on or about December 6,2000. Glenbrook’s complaint was filed on or about March 13, 2002. The complaint alleges a negligence claim against Beausang (Count I), seeks an offset with respect to defendants’ attorneys fees that Glenbrook has refused to pay (Count II), and alleges that BBCB is liable for Beausang’s acts and/or omissions under the doctrine of respondeat superior (Count III). (Brien certif. at exhibit A.)

Glenbrook alleges that Beausang committed professional negligence in 1987-1988 when he prepared the deed and agreement of sale on behalf of Glenbrook. Specifically, Glenbrook alleges that Beausang failed to secure ownership of the 35 parking spaces through the deed and failed to follow the provision of Pennsylvania condominium law that detail the manner in which an ownership interest in a limited common element can be conveyed. These failures in turn allegedly led to the nonjury verdict against Glenbrook in the RHCA trial before Judge McGovern.

SUMMARY JUDGMENT

After the pleadings closed, defendants moved for summary judgment based on the affirmative defense of the statute of limitations. See 42 Pa.C.S. §5524. After extensive briefing and oral argument on this issue, summary judgment in favor of defendants was granted by order entered October 29, 2002.

In their statement of matters complained of on appeal and amended statement of matters complained of on appeal, Glenbrook claims that the trial court abused its discretion in entering summary judgment. Specifically, plaintiff asserts (1) defendants tolled the applicable statute of limitations by their continuous legal representation of plaintiff; (2) defendants’ agreement with plaintiff that plaintiff need not pay legal fees at all for defense of the RHCA action or alternatively, would not have to pay legal fees until a final disposition of the RHCA action constituted an equitable tolling agreement which tolled the applicable statute of limitations; and (3) the two-year statute of limitations did not commence running until February 24, 2000, the date when Judge McGovern issued his opinion in the RHCA matter because this was the first time plaintiff discovered it had been harmed by defendants’ negligence.

Pennsylvania’s two-year statute of limitations governs claims for legal malpractice sounding in tort. See 42 Pa.C.S. §5524(7); Robbins & Seventko Orthopedic Surgeons Inc. v. Geisenberger, 449 Pa. Super. 367, 372, 674 A.2d 244, 246 (1996). In Pennsylvania, the occurrence rule is used to determine when the statute of limitations begins to accrue in a legal malpractice action. Under this rule, the statutory period commences upon the happening of the alleged breach of duty. Id. at 372, 674 A.2d at 246, citing Bailey v. Tucker, 533 Pa. 237, 251, 621 A.2d 108, 115 (1993). In the action sub judice, Glenbrook alleges that in 1988, Beausang committed legal malpractice, “by failing to ensure that the subject matter 35 parking spaces were referenced and defined in the deed whereby plaintiff took title to the office space pursuant to the agreement of sale dated October 30, 1987.” See complaint, paragraph 24.

An exception to the occurrence rule is the equitable discovery rule which is applied when the injured party is unable, despite the exercise of due diligence, to know of the injury or its cause. Robbins & Seventko Orthopedic Surgeons Inc. v. Geisenberger, supra, 449 Pa. Super, at 372-73, 674 A.2d at 246, citing Pocono Raceway v. Pocono Produce Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Lack of knowledge, mistake or misunderstanding, will not toll the running of the statute. Id., 503 Pa. at 85, 468 A.2d at 471.

In this case, it would be unreasonable to expect Glen-brook learned of the injury in 1988 when it received the deed to the office space which had no mention of the 35 parking spaces referenced in the agreement of sale. As non-attorneys, the individuals that constitute Glenbrook had no reason to know that the real estate doctrine of merger operated to exclude the 35 parking spaces from their ownership notwithstanding the spaces were referenced in the agreement of sale. Therefore, it is proper to invoke and apply the discovery rule in this matter. The question becomes when does the discovery rule begin to run.

On November 21, 1994, RHCA sent a letter to Glenbrook’s then counsel, Beausang, which very explicitly accused Beausang of legal malpractice and detailed its basis for that opinion. See a copy of the Bennett letter attached to Brien certif. at exhibit F of defendants’ motion for summary judgment. Beausang faxed a copy of this letter to Glenbrook. Moreover, in November 1994, Glenbrook sought a second legal opinion from Bradley Rainer, Esquire, regarding RHCA’s position with respect to the 35 parking spaces. Numerous discussions were had with Rainer on this topic. In December 1994, Rainer sent Glenbrook his opinion letter wherein he explained the doctrine of merger and the questionable nature of a claim against RHCA or the seller. Id. at exhibit H. Rainer also indicated in his letter that Glenbrook may have claims against other parties and testified in his deposition that by that statement he was referring to Beausang, among others. Id. at exhibit G.

From the foregoing facts, it is beyond dispute that Glenbrook acquired knowledge of the harm in late 1994 when RHCA informed them of a problem with the deed. At the same time, this was confirmed by Bradley Rainer, Esquire, from whom they sought a second legal opinion. Armed with this knowledge, however, plaintiff chose not to initiate this action until December 6, 2000, when a writ of summons was filed. Using the discovery rule to find an accrual date of November 1994 for the two-year statute of limitations, it is beyond dispute that this 2000 action is time-barred.

Glenbrook seeks to avoid the bar of the statute of limitations by asserting that equitable estoppel precludes Beausang and BBCB from raising the statute as a defense. Specifically, Glenbrook alleges that because Beausang represented Glenbrook as a defendant in the RHCA litigation, Glenbrook was “lulled” into not filing this malpractice action. (Glenbrook terminated defendants as its counsel in December 2000. See Glenbrook’s answer to defendants’ motion for judgment on the pleadings.) This is actually an assertion of the “continuing representation” exception. Pennsylvania courts have not adopted the continuous representation rule under which a plaintiff’s claim for malpractice accrues upon the termination of the professional relationship giving rise to the malpractice dispute. Indeed, there are several slip and memorandum opinions expressly rejecting the continuous representation rule. See Price v. Nogi, Appleton, Weinberger & Wren PC., no. 3278 Civil 1996, slip opinion (Monroe Cty. C.C.P. May 7, 2002); Amoroso v. Morley, no. 00-3496, 2002 U.S. Dist. Lexis 4989, 13-14 (E.D. Pa. March 25, 2002); Svarzbein v. Saidel, Sand and Saidel P.C., no. 97-3894, 1999 U.S. Dist. Lexis 14516, 19-20 (E.D. Pa. September 10, 1999).

Plaintiff maintains that the Pennsylvania Superior Court in Robbins v. Geisenberger, 449 Pa. Super. 367, 674 A.2d 244 (1996), tacitly acknowledged that Pennsylvania has adopted the “continuous representation rule,” because it relied on the Pennsylvania Supreme Court’s earlier decision in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993). Bailey v. Tucker did not involve tolling of a statute of limitations but rather the question of when a malpractice action by a criminal defendant against his former defense counsel accrues. The Bailey court held that a claim for legal malpractice arising out of criminal representation accrues on the date the attorney-client relationship is terminated. Nothing in Bailey suggests, however, that it is applicable outside the criminal context. Courts applying Pennsylvania law have chosen not to extend the Bailey rule to civil malpractice cases, relying instead on the basic occurrence or discovery rule. See Fiorentino v. Rapoport, 693 A.2d 208 (Pa. Super. 1997) (applying occurrence rule); Robbins & Seventko, supra, 449 Pa. Super, at 372-73, 674 A.2d at 246 (applying discovery rule).

Plaintiff also argues that Pennsylvania courts are out of step with courts in numerous other jurisdictions that have recognized the continuous representation rule as a derivative of the continuing treatment rule applied in medical malpractice actions. What plaintiff fails to acknowledge, however, is that Pennsylvania courts have uniformly rejected the continuing treatment rule as a means to toll the statute of limitations in a medical malpractice action. See e.g., Haggart v. Cho, 703 A.2d 522, 526-27 (Pa. Super. 1997). Instead, Pennsylvania courts apply the discovery rule to determine the date when a patient can reasonably be expected to know of his injury. Applying the same to the facts of this legal malpractice action it is clear that as of 1994, Glenbrook was on notice of the harm it suffered by the failure to obtain title to the parking spaces. Accordingly, its action, commenced in 2000, is time-barred.

Glenbrook also asserts that the doctrine of equitable estoppel precludes defendants from asserting the bar of the statute of limitations. (It is noteworthy that neither in its complaint, nor in its answer to defendants’ new matter asserting a statute of limitations defense, has plaintiff pleaded estoppel.) Where through fraud or concealment the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is es-topped from invoking the bar of the statute of limitations. Molineux v. Reed, 516 Pa. 398, 402, 532 A.2d 792, 794 (1987). The burden of proving fraud or concealment, by evidence which is clear and convincing, is on the party asserting it.

There is no conduct remotely arising to fraud or concealment by Beausang or BBCB. Indeed, it was Beausang who sent the letter to Glenbrook from RHCA wherein RHCA explicitly accused Beausang of malpractice in failing to secure the ownership of the 35 parking spaces. Glenbrook further argues that defendants “lulled” it into a false sense of security by advising Glenbrook that it would prevail against the claims by RHCA and as indicative of this confidence, Glenbrook need not pay counsel fees to BBCB for representation in the RHCA suit. Accepting these assertions as true, plaintiff’s argument is still contradicted by the admitted fact that it actively sought a second legal opinion and was advised by counsel that it may have a legal malpractice claim against defendants. Plaintiff cannot actively investigate and receive the information that harm has occurred and then seek equitable tolling of the statute of limitations. See Murphy v. Saavedra, 560 Pa. 423, 746 A.2d 92 (2000).

Finally, Glenbrook asserts that the court abused its discretion in entering summary judgment in favor of defendants because the two-year statute of limitations did not begin to run until February 24,2000, the date the Honorable Clement J. McGovern issued his findings of fact, conclusions of law and verdict, in the underlying RHCA case. Plaintiff claims this represents the first time it discovered it had been harmed by defendants’ negligence.

First, this issue was not raised until two months after entry of the order granting summary judgment. It was raised in an amended statement of matters complained of on appeal. On its face, this is untimely and will not be considered. Moreover, in support of its argument, plaintiff relies on the case of Spang & Co. v. Reed, Smith, Shaw & McClay, 37 D&C4th 452 (Allegheny Cty. 1997). Obviously, this 1997 case could have been brought to the court’s attention prior to appeal. Finally, this argument is belied as a matter of law given Glenbrook’s actual knowledge in 1994 that it may have suffered harm as a result of defendants’ legal representation.


author: SOLOMON, J.,

text:
    Good v. Kantorik

      C.P. of Fayette County,
    no. 2181 of 2001, G.D.

      Ernest DeHaas, for plaintiff.

      Marvin Snyder, for defendant.
    April 11, 2003
   SOLOMON, J.,

BACKGROUND

This is a motion for summary judgment filed on behalf of the plaintiff, Thomas T. Good. The plaintiff brought suit against the defendant, Charles F. Kantorik, alleging that the defendant has failed to comply with the terms of a sales agreement between the parties. The parties agree that they entered into an agreement on November 2,1987, for the sale of the plaintiff’s accounting practice to the defendant, and that this was the only binding agreement between them. In his complaint, that plaintiff alleges that the agreement was breached by reason of the defendant’s failure to pay amounts due under the agreement. By way of answer and new matter, the defendant has asserted that the agreement contains a warranty provision in which it is warranted that the “accounting practice [grossed] at least $65,000 per year.”

The defendant also asserts that after he purchased the practice, he discovered that it was in fact not grossing $65,000 per year, and that, under the terms of the agreement, he was entitled to make sporadic payments. Further, in 1991, the defendant made no payments for the entire year. After 1991, the defendant made sporadic payments up until May 5,2000, the date of his last payment.

In his motion for summary judgment, the plaintiff contends that it is clear from the unambiguous terms of the contract that a reduction in sale price was only to occur if the accounting practice lost any major clients.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which rule provides:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

Summary judgment may only be invoked if the record shows there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Young v. Eastern Engineering and Elevator Co. Inc., 381 Pa. Super. 428, 554 A.2d 77 (1989). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). Further, the court must examine the record in the light most favorable to the non-moving party, Sebelin v. Yamaha Motor Corp., 705 A.2d 904 (Pa. Super. 1998), and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999); Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25 (Pa. Super. 2000), alloc. granted in part, 563 Pa. 125, 758 A.2d 166 (2000), affirmed, 564 Pa. 264, 767 A.2d 548 (2001). Additionally, the non-moving party may respond to the motion by relying solely on an affidavit to create a genuine issue of material fact, i.e., a credibility determination for the jury. Gruenwald v. Advanced Computer Applications Inc., 730 A.2d 1004, 1009 (Pa. Super. 1999). With these precedents in mind, we now consider the motion of the plaintiff for summary judgment.

Instantly, the plaintiff asserts that there is no material issue of fact as to the issue of the terms of the agreement and that by virtue of the defendant having failed to pay the amount due, he is entitled to judgment as a matter of law. The plaintiff also asserts that, under the agreement, the only provision which allowed for any reduction in the amount due would only take effect if any of the “major clients” of the practice departed.

In response to the motion for summary judgment, the defendant has filed an affidavit which states that after he took control of the accounting practice, it grossed approximately $50,115.55. Under his interpretation of the warranty provision of the agreement, this constituted a breach by the plaintiff, thereby allowing the defendant to reduce the agreed upon purchase price of the accounting practice.

Thus, the initial determination by this court must be one of contract interpretation, since the interpretation of an agreement is a question of law for the court. Pa.R.C.P. 1035, 42 Pa.C.S. Where the parties disagree as to the meaning of a contract’s terms, a court should attempt to interpret the contract using the standard rules of interpretation. Cohen v. McLafferty, 53 D.&C.4th 155 (Philadelphia Cty. 2001), citing Banks Engineering Co. v. Polons, 561 Pa. 638, 644 n.4, 752 A.2d 883, 886 n.4 (2000). In general, “a clear and unambiguous contract provision must be given its plain meaning unless to do so would be contrary to a clearly expressed public policy. Insurance Co. of Evanston v. Bowers, 758 A.2d 213, 220 (Pa. Super. 2000) citing, Antonovich v. Allstate Insurance Co., 507 Pa. 68, 76, 488 A.2d 571, 575 (1985).

Under Pennsylvania law, a contract is ambiguous “when a contract provision is reasonably susceptible to more than one meaning.” West Conshohocken Restaurant Associates Inc. v. Flanigan, 737 A.2d 1245, 1248 (Pa. Super. 1999). A court must not “distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.” Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999) (the fact that the parties have different interpretations of a contract does not render the contract ambiguous). If no ambiguities are found, the court may then regard the interpretation to be a question of law. Lapio v. Robbins, 729 A.2d 1229, 1232 (Pa. Super. 1999). Furthermore, it is appropriate to grant summary judgment where the court finds the contract terms to be clear and unambiguous and where there is absence of substantial factual disputes. Henry v. First Federal Savings & Loan Association of Greene County, 313 Pa. Super. 128, 134-35, 459 A.2d 772, 775 (1983).

An examination of the instant agreement reveals no ambiguities. Specifically, the provision in question states,

“Thomas T. Good hereby warrants that his accounting practice grosses at least $65,000 per year. Adjustment of the sales price will be enacted if any of the major clients depart. Major clients are those whose yearly billings exceed 10 percent of the sales price or $6,500.
“In the event of departing major clients a reduction in the sales price will be necessary. That adjustment will be computed as follows:
“If a major client departs during the first year the contract will reduce by the annual billing rate of the client.
“During the second year, a reduction of 80 percent of the client annual billing.
“Third year a 60 percent reduction.
“Fourth year a 40 percent reduction.
“Fifth year a 20 percent reduction.” (Plaintiff’s motion for summary judgment, exhibit A.)

Thus, it is clear from the plain language of the contract that the only way a reduction in the agreed-upon sales price could occur was if any of the “major clients” were lost. Therefore, the correct remedy to be pursued by the defendant would have been to sue under a theory of breach of warranty, not by refusing to pay the scheduled payments under the agreement.

Simply because the parties have different interpretations of the provisions of a contract provision does not make the agreement ambiguous. Lapio v. Robbins, supra. Thus, since the defendant has admitted that he did not make the payments under the terms of the contract, he is in breach of the agreement as a matter of law.

However, the defendant also contends that the plaintiff’s cause of action for breach of contract is barred by the statute of limitations. Under Pennsylvania law, specifically 42 Pa.C.S. §5525, the statute of limitations for a breach of contract claim is four years.

Here, it is not disputed that the defendant failed to make agreed-upon contractual payments beginning in 1991, and then made sporadic payments until May 5, 2000, when he made his last payment. The plaintiff argues that, under Packer Society Hill Travel Agency Inc. v. Presbyterian University of Pennsylvania Medical Center, 430 Pa. Super. 625, 635 A.2d 649 (1993), the date to determine when the statute of limitations begins to run is when the last payment was made by the defendant. Thus, according to the plaintiff, the statute of limitations began to run on May 5,2000, the last date upon which the defendant made any payments under the agreement.

The defendant contends, in the alternative, that if the court finds him in breach of contract, then the statute began to run when he failed to make payments to the plaintiff in accordance with the terms of the agreement. Thus, according to the defendant, the statute of limitations began to run no later than 1991, when the defendant went an entire year without making any payments to the plaintiff. Hence, we must determine when the statute of limitations began to run with regard to this agreement, and whether any action taken by either of the parties tolled the statute.

As stated, supra, it is the position of the plaintiff that the statute of limitations begins to run on the date of the last payment under the agreement. While partially true as a statement of law, it is not applicable in all situations, nor is it a complete statement of the law. Specifically, in Packer, supra, a travel agency, the plaintiff, brought action against a client, the defendant, for breach of a contract executed by the parties on April 10, 1985. The plaintiff commenced its action on November 22, 1991, alleging that the defendant made periodic payments, but not in accord with the terms of the contract, and then ceased all payments after January 13, 1986. The court in Packer, in applying the four-year statute of limitations, held that since it was not disputed that the defendant stopped making payments on January 13, 1986, the court could use that date, as a matter of law, to determine that the statute of limitations had run on the plaintiff’s action.

As we can see, the court, in Packer, did not hold that the date to determine the accrual of the statute of limitations was the last date of payment. It simply used the date of last payment in the specific set of facts before it because this date was not disputed. This allowed the court to use this date as a matter of law and, even by utilizing this later date, clearly demonstrated that the statute of limitations precluded the plaintiff’s cause of action.

The law is clear that the statute of limitations begins to run on a claim from the time the cause of action accrues. S.T. Hudson Engineers Inc. v. Camden Hotel Development Associates, 747 A.2d 931 (Pa. Super. 2000). The right to recover damages for the breach of a contract accrues as soon as the contract is broken, Selig v. Philadelphia Title Insurance Co., 380 Pa. 264, 111 A.2d 147 (1955), or, in other words, when one has the right to institute suit. Bell v. Brady, 346 Pa. 666, 321 A.2d 547 (1943). A “breach of contract is a nonperformance of any contractual duty of immediate performance.” Barnes v. McKellar, 434 Pa. Super. 597, 608, 644 A.2d 770, 775 (1994), citing Camenisch v. Allen, 158 Pa. Super. 174, 177, 44 A.2d 309, 310 (1945). Thus, in an action for breach of contract, the statute of limitations begins to run from the moment a party to the contract breaches. Romeo & Sons Inc. v. P.C. Yezbak & Son Inc., 539 Pa. 390, 652 A.2d 830 (1995); Packer Society Hill Travel Agency Inc. v. Presbyterian University of Pennsylvania Medical Center, supra. When the contract is continuing, the statute of limitations runs from the time when the breach occurs or when the contract is in some way terminated. S.T. Hudson Engineers Inc. v. Camden Hotel Development Assocs., supra.

However, in fairness to the “would-be” plaintiff who foregoes litigation based on a promise by the breaching party to pay on a contract, the courts recognize an “acknowledgement doctrine.” The “acknowledgement doctrine” provides that a statute of limitations may be tolled, or its bar removed, by a promise to pay a debt. S.T. Hudson Engineers Inc. v. Camden Hotel Development Assocs., supra; Huntingdon Finance Corp. v. Newtown Artesian Water Co., 442 Pa. Super. 406, 659 A.2d 1052 (1995). For this doctrine to apply, or to be sufficient to toll the statute, there must be a clear, distinct, and unequivocal acknowledgment of a debt as an existing obligation, such as is consistent with a promise to pay. S.T. Hudson Engineers Inc. v. Camden Hotel Development Assocs., supra; Gurenlian v. Gurenlian, 407 Pa. Super. 102, 114, 595 A.2d 145, 151 (1991). As a result, where such acknowledgment is given, the statute of limitations for a non-breaching party’s claim in a contract action is tolled up, and until, either (1) the breaching party has breached the express or implied agreement to pay, or (2) when the parties sever their relationship. See S.T. Hudson Engineers Inc. v. Camden Hotel Development Assocs., supra; see also, Gurenlian v. Gurenlian, supra.

Instantly, as of August 23,1996, the defendant clearly and unequivocally admitted, via a letter, that he owed $23,630.39. (Motion exhibit E, and answers to requests for admissions.) Specifically, the letter stated:

“Tom,
“Enclosed are five checks dated to August 23, 1996. All payments are interest except the last check which is $500. principle + 178 int. I’m showing a bal. Due at August 9,1996 of $24,130.39. The August 23,1995 payment will reduce principle $500. — and the principle after the August 23 payment will be $23,630.39.
“This is a preliminary figure but should be very near accurate. I will send you my schedule after I double check the computation. I can’t do it today but schedule will follow within a week.
“I will send you a monthly check of from $500. to $1000. — a month, or more in tax season plus monthly interest. Nov. Dec. + Jan. are really tight months for me.
“You will have a hard time trying to call me because I’m generally out on field work until late October. You’d be better off writing.
“P.O. Box 966
“Mt. Pleasant PA 15666”

An examination of this letter reveals that the defendant clearly and unequivocally admitted that he owed the plaintiff $23,630.39, as of August 23, 1996. From the record, it is also agreed upon that the defendant made payments under the agreement until May 5, 2000, the date on which the defendant admits he stopped making payments. Thus, under the “acknowledgment doctrine,” we must find, as a matter of law, that the defendant severed the agreement as of May 5, 2000, and that the statute of limitations began to run from the date the next payment was due under the agreement. Hence, as in Packer, taking the last undisputed date, May 5, 2000, and finding from the record that the plaintiff’s action was commenced on October 2, 2001, this action is not barred by the applicable four-year statute of limitations for contract actions.

Therefore, by reason of the foregoing, we will grant the motion for summary judgment filed by the plaintiff.

ORDER

And now, April 11, 2003, it is hereby ordered and decreed that the motion of the plaintiff for summary judgment is granted as to liability, and denied as to the damages due the plaintiff after the payments admitted to be made by the defendant after August 23, 1996, are applied to interest and principal.


author: KOPRIVA, J,

text:
    Scalice v. Pennsylvania Employees Benefit Trust Fund

      C.P. of Blair County,
    no. 02 GN 2511.

      James D. Belliveau and Nathanial Smith, for plaintiff. Richard Kirschner, for defendant.
    March 12, 2003
   KOPRIVA, J,

PROCEDURAL HISTORY

Plaintiff initiated this action in Allegheny County by filing a complaint for declaratory judgment on March 13, 2000. On May 1, 2002, defendant filed a petition for change of venue on the basis of forum non conveniens. The Honorable Eugene B. Strassburger III ordered all pleadings, briefs and related matters in this case transferred to this court by May 28, 2002.

On August 16,2002, defendant filed a motion for summary judgment and/or judgment on the pleadings. After reviewing the matter, this court granted defendant’s motion on October 29, 2002. However, on November 8, 2002, plaintiff filed a petition to open judgment and for reconsideration. Plaintiff also filed his brief in opposition to defendant’s motion for summary judgment and/ or judgment on the pleadings on the same day. On November 14, 2002, defendant filed an answer to the petition to open judgment and for reconsideration and a brief in support thereof. Defendant also filed a reply brief to plaintiff’s brief in opposition to defendant’s motion for summary judgment and/or judgment on the pleadings. On November 14, 2002, this court opened the October 29,2002judgment and granted reconsideration. We heard oral argument on defendant’s motion for summary judgment and/or judgment on the pleadings on January 28, 2003. This matter is currently ripe for disposition.

FACTUAL HISTORY

On October 30, 1997, plaintiff was seriously injured in an automobile accident. Plaintiff possessed medical insurance benefits under a policy of insurance issued pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). However, he exhausted the policy limits for his medical insurance. At the time of the accident, plaintiff possessed health insurance with his employer, the Commonwealth of Pennsylvania, Department of Corrections. Defendant/Pennsylvania Employees Benefit Trust Fund (PEBTF) insured plaintiff as an employee of the Commonwealth of Pennsylvania, under a group health benefits plan that defendant issues and administers. After exhaustion of his first party benefits, plaintiff submitted claims for payment of medical expenses to the PEBTF and the PEBTF paid a number of bills for expenses related to injuries suffered by plaintiff in relation to the October 30, 1997 accident.

The liable third party offered plaintiff the sum of $100,000 for his injuries. Defendant is currently asserting a subrogation lien in the amount of $43,795.96 against the funds received from the third party’s liability carrier. Defendant asserts that 75 Pa.C.S. §1720 does not bar its subrogation right because of the Employee Retirement Income Security Act (ERISA) preemption pursuant to the ruling in FMC Corp. v. Holiday, 498 U.S. 52 (S.Ct. 1999).

DISCUSSION

Section 1720 of the MVFRL provides the general rule that no right of subrogation from a claimant’s tort recovery exists with respect to benefits paid by a healthcare benefits plan. This section provides:

“In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to... benefits paid or payable by a program, group contract or other arrangement....” 75 Pa.C.S. §1720.

An exception to this rule exists where the employee benefit plan qualifies under ERISA. 29 U.S.C. §1001 et seq. In FMC Corp., supra, the Supreme Court of the United States ruled that ERISA employee benefit plans are entitled to subrogation.

“In view of Congress’ clear intent to exempt from direct state insurance regulation ERISA employee benefit plans, we hold that ERISA preempts the application of section 1720 of Pennsylvania’s Motor Vehicle Financial Responsibility Law ....” FMC Corp., 498 U.S. at 65.

At the time of the accident, the PEBTF was an ERISAqualified plan. As of January 1,1998, the PEBTF relinquished its ERISA-qualified status and became an ERISAexempt governmental plan. The PEBTF paid $23,724.81 for services rendered to plaintiff in 1997 and $19,978.87 for services rendered in 1998. No documentation exists to indicate when the PEBTF actually made the payments for the aforementioned services. Plaintiff argues the actual payment dates become a critical issue in light of the ruling of the Honorable Gary P. Caruso’s Decision and Order in Wimer v. PEBTF, 5322 of 2001 (C.P. Westmoreland), which held that subrogation rights do not arise until payments are actually made. Plaintiff argues that since we do not know the date defendant actually made the payments, a material issue of fact exists and no summary judgment can be awarded. Defendant argues that the date of injury, not payment, dictates whether it is entitled to subrogation. Since the accident occurred while the plan was an ERISA-qualified employee benefit plan, the PEBTF may seek subrogation even if it did not make payments for services rendered in connection with the accident until after the plan lost its ERISA status.

Plaintiff relies on two cases to support his position: Haney v. Commonwealth of Pa. Treasurer’s Office, 1992 WL 209265 (E.D. Pa. 1992) and Wimer, supra. We will individually address the relevance of each case.

In Haney, supra, the plaintiff worked for the Commonwealth of Pennsylvania until she took a leave of absence in 1989 due to an injury. While on leave she continued to maintain health insurance coverage under her group health plan with the PEBTF. When the plaintiff’s leave with benefits expired on July 24, 1989, she exercised her right to elect continuation of health-care coverage. Soon thereafter, the plaintiff learned of the closing of her department at the treasurer’s office and the need to apply for disability retirement immediately or forever lose her right to do so.

On November 2, 1989, the State Employees Retirement Board approved the plaintiff’s application for disability retirement retroactive to January 20,1989, based upon her permanent injury. She also received free retired employees group health insurance, although she was not required to accept the free coverage as a condition of her receiving disability retirement. On November 7,1989, the Pennsylvania Employees Health and Welfare Fund notified the plaintiff that she was no longer eligible for her continuation coverage as a result of her enrolling in another group health plan. Id.

The plaintiff filed suit alleging inter alia that the termination of her continuation coverage violated the ERISA. The court held that the plaintiff’s employee benefit plan was a governmental plan as defined by the ERISA statute and therefore excluded from coverage thereunder. Id.

We do not find Haney relevant to the present action. In Haney, the controlling issue became whether the benefit plan fit the definition of “governmental plan” within the ERISA statute. The court held that the plan did fit such definition and therefore correctly deemed the plan exempt from ERISA status. In the case herein, the issue is not whether the plan qualifies under ERISA (we already know that it did in 1997 but not after January 1, 1998), but rather, whether the plan’s right of subrogation under ERISA is determined as of the date of the accident or when benefits are paid.

In Wimer, supra, the plaintiff was involved in a motor vehicle accident. At the time of the accident, the plaintiff, employed by the Commonwealth of Pennsylvania, belonged to the PEBTF. Following exhaustion of his first party automobile insurance benefits, the plaintiff’s medical bills were forwarded to PEBTF for payment. The PEBTF paid two medical bills in 1997, and then made no additional payments until after January 1, 1998. As of April 12, 2001, the PEBTF asserted a lien against the plaintiff for $35,815.90, representing the total amount of benefits paid by the PEBTF both before and after January 1, 1998.

The plaintiff filed a declaratory judgment action requesting, inter alia, a declaration that the subrogation rights of the PEBTF are limited to the amount of medical bills paid on the plaintiff’s behalf prior to January 1, 1998. The defendant argued, as defendant does herein, that its subrogation rights must be determined as of the date of the accident and not as to the dates on which payments were actually made. The court noted that the only change that occurred involved the qualification and status of the defendant under ERISA. Therefore, the court held that “[t]he change in the status of defendant does not warrant the conclusion, as defendant would propose, that the defendant is entitled to subrogation for all payments made after it was no longer qualified under ERISA merely because it was ERISA-qualified on the date of the plaintiff’s injury.” Wimer, supra.

We find the Honorable Gary P. Caruso’s decision uncompelling. Variables that do not appear accounted for within the analysis and holding in Wimer, supra, may have the unintended consequence to allow/promote manipulation of the process of determining whether a plan possesses the right of subrogation. For instance, providers must send a bill to the plan/PEBTF in order to receive payment. Neither the PEBTF, nor the claimant, nor any court can control when the provider sends the bill for payment. The provider may wait one week, one month, six months or longer after providing the service before seeking reimbursement. In the time it takes the provider to send a bill, the status of the plan may change. Additionally, neither the claimant nor this court can dictate when the plan/PEBTF makes payment to the medical provider. A situation may occur where the PEBTF receives a bill while classified as a governmental plan but holds the bill for such a period of time that when it finally sends payment, the plan has been reclassified as an ERISA-qualified plan and therefore entitled to subrogation.

In summary, we fear that following the reasoning of the Honorable Gary P. Caruso’s opinion will create a blueprint for inconsistency and manipulation in regards to this and similar cases. Such a result would not be desirable for fair and just treatment of all parties. Conversely, it the plan’s right of subrogation under ERISA is deterijnined by the date of injury, the above-mentioned tactical decisions cannot and do not arise. A neutral starting point defines the obligations. From the instant the claimant suffers injury, both the claimant and those administering the employee benefit plan will have a clear and “manipulation free” point of reference as to whether the plan is entitled to subrogation. Members will know clearly and concisely the appropriate expectation for their coverage and benefits. In addition, the provider and those administering the benefit plan will not possess the opportunity to manipulate the system and dictate results. Further, it is a common insurance industry standard that the benefit and duty of coverage arises at the time of an insured incident.

This court shall grant a motion for judgment on the pleadings only in cases free from doubt and where no issues of fact exist. Otterson v. Jones, 456 Pa. Super. 388, 690 A.2d 1166 (1997), alloc. granted, 550 Pa. 696, 705 A.2d 1310 (1997); Miketic v. Baron, 450 Pa. Super. 91, 675 A.2d 324 (1996). Likewise, an entry of summary judgment may be granted only in cases where the right is clear and free from doubt. A motion for summary judgment may properly be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). See also, Liles v. Balmer, 389 Pa. Super. 451, 453, 567 A.2d 691, 692 (1989); Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa. Super. 420, 423, 576 A.2d 72, 73 (1990); Craddock v. Gross, 350 Pa. Super. 575, 578, 504 A.2d 1300, 1301 (1986); Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771 (1992); Carns v. Yingling, 406 Pa. Super. 279, 282, 594 A.2d 337, 339 (1991); Buckno v. Penn Linen & Uniform Service Inc., 428 Pa. Super. 563, 631 A.2d 674 (1993), appeal denied, 538 Pa. 639, 647 A.2d 895 (1994).

Since we have held that an employee benefit plan’s right of subrogation is determined by the date of injury and defendant’s plan was indisputably an ERISA-qualified plan on the date of the accident, it is clear to this court that the aforementioned standards are met. Defendant possesses a right to subrogation against all payments it made on behalf of plaintiff relative to the October 30, 1997 automobile accident.

In light of the above opinion, this court enters the following:

ORDER

And now, March 12, 2003, it is ordered, directed and decreed that defendant’s motion for summary judgment and/or judgment on the pleadings is granted, and plaintiff’s complaint for declaratory judgment is dismissed with prejudice. Judgment is hereby entered in favor of the PEBTF on its counterclaim against plaintiff in the amount of $43,795.94 plus interest and costs.

      . Plaintiff did not file an initial response to defendant’s motion for summary judgment and/or judgment on the pleadings. Plaintiff’s counsel was unaware of the requirements of Blair County Local Rule 325, which mandates all response briefs to be filed no later than 20 days of receipt of the moving party’s brief, and allows the court to dispose of the motion without a timely-filed response brief.

      . Tommy Teague, executive director of the PEBTF, stated in his affidavit that “the PEBTF continued to maintain its ERISA status [from at least 1996 when the U.S. Department of Labor confirmed the PEBTF’s ERISA status] through, and until January 1,1998, when most of the private employers voluntarily withdrew with only de minimis private employer participation thereafter.” William Schantzenbach, chief financial officer of the PEBTF, also acknowledged in his affidavit that the PEBTF relinquished its ERISA status on January 1, 1998.

      . See FN 1. In addition, plaintiff admits, “as of January 1, 1998, the PEBTF became a government plan, as that term is defined in the ERISA.” (Plaintiff’s brief in opposition to defendant’s motion for summary judgment and/or judgment on the pleadings, 3.)

      . Wimer, supra, is presently on appeal to the Pennsylvania Superior Court.

      . The parties made the following pertinent stipulations: (1) At the time of the accident on October 3,1997, PEBTF was an ERISA-qualified plan; and (2) As of January 1, 1998, PEBTF relinquished its ERISA-qualified status and became an ERISA-exempt governmental plan. Wimer, supra.