author: DOYLE, J,

text:
    Appleman v. Feathers
    C.P. of Blair County,
    nos. 2005 GN 1901; 2005 GN 1791.

      February 23, 2006

      John Daley, for plaintiffs Appleman.

      Jason Matzus, for plaintiffs Morgan.

      Kenneth Newman and Dennis J Stofko, for defendants.
   DOYLE, J,

This matter comes before the court on three motions filed by defendants Donald Feathers and Barnes Petroleum Products Inc. The motions include: motion to compel signing of medical, employment, and workers’ compensation authorizations directed to plaintiff/additional defendant Douglas Morgan; motion to compel directed to the Appleman plaintiffs; and motion to strike the Appleman plaintiffs’ insufficient answers to defendants’ third set of interrogatories and to compel appropriate responses thereto. The court has reviewed the motions and their accompanying briefs as well as plaintiff Morgan’s objection to the motion regarding authorizations. The court heard oral argument on the motions on February 14,2006. The motions are ready for disposition.

MOTION TO COMPEL SIGNING OF MEDICAL, EMPLOYMENT, AND WORKERS’ COMPENSATION AUTHORIZATIONS DIRECTED TO PLAINTIFF/ADDITIONAL DEFENDANT DOUGLAS MORGAN

Defendants’ first motion asks the court to require plaintiff/additional defendant Douglas Morgan to sign authorizations that would allow the defendants to obtain Morgan’s medical and employment records directly from the individuals having custody of those records. Defendants argue that it is insufficient for Morgan’s counsel to obtain the records and then provide Morgan’s counsel with copies of the “relevant” documents because Morgan has placed his medical and employment status at issue. Further, defendants argue that because Morgan claims total disability, his entire medical history is subject to discovery.

Morgan argues that it is improper procedure to allow defense counsel to review his medical records before his own counsel does. Morgan cites various common pleas decisions where judges rejected requests for the signing of broad medical releases in support of his position. Morgan indicates that he is not opposed to providing the defendants with the information they seek. The defendants concede that Morgan’s counsel offered to provide them with the “relevant” documents after having reviewed them; however, they maintain that the scope of what is relevant to this case is broader than the scope of what Morgan’s counsel intends to provide.

The scope of discovery in Pennsylvania is very broad. Pa.R.C.P. 4003.1(a) allows discovery of any matter, not privileged, which is relevant to the subject matter of the trial. Pa.R.C.P. 4003.1(b) further allows information to be discovered so long as it is reasonably calculated to lead to the discovery of admissible evidence. In cases where the plaintiff seeks damages for a personal injury, the plaintiff puts his medical condition at issue. Specifically, in this case, because Morgan is claiming total disability as the result of involvement in a car accident with defendants, any health issues that might have affected his ability to work the standard amount of years for a person of the same demographic are relevant to the action. Kraus v. Taylor, 710 A.2d 1142, 1143-44 (Pa. Super. 1998). Furthermore, the party claiming total disability implicitly waives statutory privileges pertaining to the confidentiality of information relevant to his condition. Id. at 1145. (citations omitted) For these reasons, medical and employment information beyond information specifically related to Morgan’s treatment for injuries arising out of this action is discoverable in this case. To the extent that Morgan is concerned that certain discoverable information may cause embarrassment to him, he is free to seek aprotective order under Pa.R.C.P. 4012 to have certain information sealed if it is to be included in the public record of the case.

Merely declaring that the information sought by defendants is discoverable does not mean that the court is free to compel the signing of the authorizations. The court must first determine whether such authorizations are the proper method of obtaining the information. Although it is unclear whether the cases cited by Morgan in support of his contention that his attorney should be able to review the records in question before turning them over involved situations in which permanent disability was claimed, the court feels that they are very persuasive. Even in cases where a permanent disability is. claimed, there are likely to be some medical records, which pertain neither to the injuries in question nor to the ability of the party in question to work. Hence, allowing unfettered access to an opposing party’s health records risks allowing access to information that is not discoverable.

Cases cited by Morgan suggest that the proper procedure for discovery of medical records in cases where the right to confidentiality in those records has been waived is to allow the counsel for the plaintiff to review the documents and then provide the discoverable documents to the defendant. See e.g., Greynolds v. McAllister, 130 P.L.J. 414 (Allegheny Cty. 1982); Arnone v. Acme Markets Inc., 1 D.&C.4th 281 (Phildelphia Cty. 1987); and Talarico v. Montefiore Hospital, 138 P.L.J. 210 (Allegheny Cty., 1990). Pa.R.C.P. 4009.12(b) provides adequate protection for parties who are concerned that opposing counsel’s review of the documents might not result in all of the relevant documents being turned over. Under Rule 4009.12(a) and (b), counsel must respond to the request for documents by providing copies of the documents to which there is no objection, identify what documents were produced, identify what documents were not produced with reasonable particularity, indicate why those documents were not produced, and provide information respecting whether the documents provided and the documents identified but not provided constitute the entire group of documents responsive to the request that is in the responding party’s control.

It is the opinion of this court that the procedure outlined in Rule 4009.12 should be sufficient in this case to precipitate the discovery of information concerning Morgan’s medical and employment records. Additionally, the use of Rule 4009.12 is preferable to compelling Morgan to sign a release because it better preserves Morgan’s right to privacy in any medical conditions he has not put at issue in this case and allows Morgan’s counsel to carry out his duty to protect his client. However, the procedures of Rule 4009.12 will only work if Morgan’s counsel recognizes that defendants are entitled to discoveiy of more than just those records relating to injuries suffered as a result of the instant car accident. For this reason, the court emphasizes that medical records concerning both injuries resulting from this incident and medical records relating to any individual characteristics of Morgan that might affect the length of his productive work life are within the scope of discovery in this case.

For the foregoing reasons, the order below was entered with respect to the motion to compel the signing of medical, employment, and workers’ compensation authorizations directed to David Morgan.

MOTION TO COMPEL DIRECTED TO THE APPLEMANS

Defendant’s second motion is directed toward the Appleman plaintiffs. Defendant initially requested that the court order plaintiffs to supply complete answers to seven parts of the first set of interrogatories, five parts of the second set of interrogatories, and five parts of the request for production of documents. At oral argument, the parties indicated that all the issues had been resolved except with respect to questions 10, 11, and 12 of the first set of interrogatories, and questions 19 and 20 of the request for production of documents. The parties were able to resolve all of the issues raised with respect to the second set of interrogatories.

Questions 10,11, and 12 of the first set of interrogatories deal with various expenses incurred by the decedent, Ja’Net Appleman. Question 10 asks for an itemization of expenses from medical, hospital and funeral expenses. Question 11 asks for the amount per week the decedent spent on personal maintenance. Question 12 asks for the amount of other costs, expenses, and amounts regularly paid by the decedent. The information requested in these three questions is all within the scope of discovery. Pa.R.C.P. 4003.1. For this reason, the order below was entered with respect to the first set of interrogatories.

Questions 19 and 20 of the request for production of documents deal with information about Ja’Net Apple-man’s automobile insurance. Question 19 asks for documents relating to claims filed with the insurance carrier as a result of the accident. Question 20 asks for copies of any insurance policies in effect at the time of the accident. The information requested in these two questions is within the scope of discovery. Pa.R.C.P. 4003.1. For this reason the order below was entered with respect to the request for production of documents.

MOTION TO STRIKE THE APPLEMAN PLAINTIFFS’ INSUFFICIENT ANSWERS TO DEFENDANTS’ THIRD SET OF INTERROGATORIES AND TO COMPEL APPROPRIATE RESPONSES THERETO

Defendants’ third motion is also directed to the Appleman plaintiffs. Defendant alleges that it was inappropriate for the Appleman plaintiffs to respond to the entire third set of interrogatories by saying that discovery is continuing and they reserve the right to amend their answers. The Appleman plaintiffs’ response is that it is premature for them to answer the questions that are asked at this stage of the proceedings. The third set of interrogatories requested information about the facts, witnesses, and documents that the Appleman plaintiffs are relying on in support of the allegations in their complaint at paragraph 8, subparts (a) through (1), and paragraph 9, subparts (a) and (b).

Defendants cite Frisby v. Zinner, 49 D.&C.3d 115 (1987), for the proposition that it is inappropriate for a plaintiff to answer interrogatories with “investigation continuing.” Although Frisby is not binding precedent on this court, the Frisby opinion cites to Royster v. McGowen Ford Inc., a Superior Court case from 1982. Royster dealt with a situation in which a party failed to identify an expert witness and the substance of that expert’s report. 294 Pa. Super. 160, 168, 439 A.2d 799, 803 (1982). The court in Royster specifically noted that a plaintiff might not have sufficient information to answer interrogatories that ask for the basis of their contentions during the early stages of discovery. Id. at 166. The Royster court also discussed the fact that Pa.R.C.P. 4007.4 placed a duty on the plaintiff to seasonably supplement the responses to interrogatories in cases where the plaintiff did not have sufficient information to answer an interrogatory at the time it was served. Id. at 167-68.

The information requested in the defendant’s third set of interrogatories directed to the Appleman plaintiffs was discoverable. The Appleman plaintiffs should have provided full and complete answers to the third set of interrogatories because they did not object to them. See Pa.R.C.P. 4006(a)(2). Referring to the complaint and stating that discovery is ongoing does not constitute full and complete answers. It is permissible for the Appleman plaintiffs to state that they do not have information about specific subparts of the interrogatories if that is the case. However, they are under a duty to supplement their responses when the information requested becomes available. See Pa.R.C.P. 4007.4. It is appropriate for the Appleman plaintiffs to respond to the third set of interrogatories as completely as they can at this stage of the proceedings. For these reasons, the order below was entered with respect to the defendants’ motion to strike the Appleman plaintiffs’ responses to the third set of interrogatories and compel appropriate responses thereto.

ORDER

And now, February 23,2006, it is hereby ordered, directed, and decreed as follows:

(1) Defendant’s motion to compel signing of medical, employment, and workers’ compensation authorizations directed to plaintiff/additional defendant Douglas Morgan is denied. The court notes that after reviewing his client’s medical, employment, and workers’ compensation information, counsel for plaintiff/additional defendant is obligated to turn over all discoverable information related to both the injuries from the car accident and any information that could affect the length of Mr. Morgan’s productive life because he is claiming total disability. Counsel for plaintiff/additional defendant is further obligated to comply with Pa.R.C.P. 4009.12(a) and (b) in all respects. Plaintiff/additional defendant shall serve the discoverable portion of his medical, employment, and workers’ compensation records on the defendants within 60 days from the date of this order.

(2) Defendant’s motion to compel directed to the Appleman plaintiffs is granted with respect to questions 10, 11, and 12 of the first set of interrogatories. The Applemans are directed to serve complete responses to questions 10,11, and 12 of the first set of interrogatories on the defendants within 30 days of the date of this order.

(3) Defendant’s motion to compel directed to the Appleman plaintiffs is granted with respect to questions 19 and 20 of the request for production of documents. The Applemans are directed to serve complete responses to questions 19 and 20 on the defendants within 30 days of the date of this order.

(4) Defendant’s motion to strike the Appleman plaintiffs’ insufficient answers to defendants’ third set of interrogatories and to compel appropriate responses thereto is granted. The Appleman plaintiffs’ responses to the defendants’ third set of interrogatories are hereby stricken. The Appleman plaintiffs are directed to file full and complete answers to the third set of interrogatories, verified in accordance with Pa.R.C.P. 4006(a)(1) within 30' days from the date of this order.


source: Caselaw Access Project

author: DiNUBILE, J.,

license: Public Domain

text:
    Leyva v. International Surface Preparation Corp.

      C.P. of Philadelphia County,
    September Term 2003,
    no. 4265.

      Robert P. Brand, for plaintiff.

      March 31, 2006

      John J. Hartzell and Barbara S. Magen, for defendant.
   DiNUBILE, J.,

This opinion arises from the partial grant of the defendant’s post-trial motions in which the jury’s verdict has been remitted or, at the option of the plaintiff, a new trial has been ordered on damages in this products liability case because the verdict of $20,000,000 was excessive. The jury’s award has been remitted to the sum of $3,750,000, an amount that the trial court concludes is the highest possible and reasonable award a jury could render under the circumstances of this case. Delay damages in the amount of $271,104 are added to the remittitur. In the event that the plaintiff accepts the remittitur, then judgment is entered in favor of plaintiff and against defendant in the amount of $4,021,104. If not, a new trial is granted as to damages. Defendant’s post-trial motions as to liability have been denied.

Suit was brought by the plaintiff against the manufacturer of a tumblast machine for injuries sustained arising from its use. Plaintiff, who had been employed with Cardone Industries for five years, was injured while operating this tumblast machine on November 29,2001 at one of the company’s Philadelphia plants. Cardone Industries is engaged in, among other things, the remanufacture of auto parts. A tumblast machine is used to clean rust, dirt and other debris from auto parts. These materials are placed into a basket or dumpster, which constitute the loader part of the machine, by a fork lift operator. The operator of the machine, by means of a control panel, operates the dumpster. By pressing the button on the panel, the loader lifts the material and deposits it in the machine. The operator can stop the dumping device at any time by merely depressing the button. After the material is deposited in the machine, the cleansing process begins by the injection of a detergent-like substance. The cleaning takes place while the deposited material is spun with the detergent. When the cleaning cycle is completed, the finished objects are removed from the machine. The control panel on this particular machine was located next to the dumpster in the path of the forklift. The accident occurred while the plaintiff was operating the machine with her right hand on the control panel, which in turn was moving the dumpster. As she was engaged in this procedure, a fellow employee operating the fork lift crushed her right arm against the panel with the fork lift.

Although the defendant seeking judgment n.o.v. in post-trial motions argues that there was insufficient evidence to prove defect, this position is clearly erroneous. The plaintiff presented an engineering and safety expert, Craig D. Clauser, who opined the machine was defective in two respects. See N.T., 12/13/ 05 at 64. Primarily, it lacked a barrier or guard between the control panel and the area where the fork lift operated to dump the material into the machine. If such a barrier were in place, he reasoned, the accident would not have occurred. As to the utility of constructing a barrier, evidence was presented that Cardone Industries had readily erected barriers on similar machines used in the plant in question. Mr. Clauser also stated that the control panel could have been moved to the front of the machine away from the dumpster, or loader, and out of the path of the fork lift. It is clear that this testimony was sufficient for the jury to conclude that the tumblast machine was in fact defective. The jury had every right to conclude that either the machine lacked this barrier element and/or the panel was misplaced, making it unsafe for its intended user, namely, the plaintiff operator.

Defendant next argues that the accident did not arise out of the intended use of the machine; consequently, the tumblast was not defective and judgment n.o.v. should be granted. The defense maintains that there was no evidence as to how the forklift, which struck plaintiff, was linked to the intended use of the machine. To the contrary, there was more than sufficient evidence presented for the jury to conclude that the accident occurred while plaintiff was operating the machine with her right hand on the control panel, which was in turn moving the dumpster. As she was engaged in this procedure, a fellow employee operating the forklift crushed her right arm against the panel with the forklift. The jury also had a right to conclude that this unfortunate event would not have happened if the machine had contained a guard. Defendant’s assertion that since plaintiff was struck by the forklift, it had nothing to do with the operation of the tumblast machine is erroneous. The issue as to causation was clearly for the jury. See Clark v. Bil-Jax Inc., 763 A.2d 920 (Pa. Super. 2000), appeal denied, 566 Pa. 656, 782 A.2d 541 (2001). See court’s charge, N.T., 12/15/05 at 7-9 and 47-49.

Defendant argued before the jury that the cause of the accident was the operation of the forklift, not the defect of the machine. Counsel now makes the argument before this court, that as a matter of law, causation has not been proven. On the contrary, the issue of causation clearly was one for the jury, which was resolved against the defendant. See Jara v. Rexworks Inc., 718 A.2d 788 (Pa. Super. 1998), appeal denied, 558 Pa. 620, 737 A.2d 743 (1999); Clark v. Bil-Jax Inc., supra.

The defense also seeks a new trial because of two separate statements made by plaintiff’s counsel in his closing. At one point in his argument to the jury, he asked why the defendant did not sue plaintiff’s employer, Cardone Industries. SeeN.T, 12/15/05 at 20-21. Defense counsel immediately objected and his objection was sustained. In addition, the court gave curative instructions to the jury to disregard that argument and to not use it as a factor in their determination of the case. See N.T., 12/ 15/05 at 21-22.

The defense also maintains that in another part of his closing, plaintiff’s counsel spoke about sending a message. Id. Plaintiff’s counsel finished his closing by stating that the jury should send a message to defendant by rendering a verdict in favor of plaintiff. Id. At side-bar, after plaintiff’s counsel finished his argument, defense counsel made a motion for mistrial, which was denied. The court stated to counsel that the elements of damages would be laid out to the jury in the charge. See N.T. 12/ 15/05 at 23-24. In fact, the court did as it promised. See N.T., 12/15/05 at 50-51. In its charge, the jury was admonished that damages must be fair and reasonable, not punitive, and limited to $86,000 in medical bills/past lost wages, and $7,500 for a future operation to correct the scar. Id.

The cases cited by the defense in their brief, such as Young v. Washington Hospital, 761 A.2d 559 (Pa. Super. 2000) and Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998), appeal denied, 559 Pa. 693, 739 A.2d 1059 (1999), involve situations much more egregious than what occurred here. In Young, counsel made improper inferences that the parents of the injured child plaintiff had brought the action for financial gain. In addition, the trial judge improperly allowed evidence of the parents’ alleged contributory negligence into evidence. In Siegal, the appellate court termed counsel’s argument “outrageous.” See Siegal, 718 A.2d at 1276. Defense counsel in that case argued why the plaintiffs did not call the operating surgeon to prove their malpractice claim. Counsel knew that the operating physician had expressed the opinion that malpractice was committed but had been precluded from testifying as to this fact by the trial judge. In the instant case, the court promptly gave curative instructions to counsel’s reference as to why the employer was not sued. See Mount Olivet Tabernacle Church v. Wiegand Division, 781 A.2d 1263, 1275 (Pa. Super. 2001), affirmed per curium, 571 Pa. 60, 811 A.2d 565 (2002). As to the “send a message” part of plaintiff counsel’s speech, the court adequately covered this aspect in its general charge on damages.

The defendant maintains that these statements collectively, made by plaintiff’s counsel, lead to the excessive verdict of $20,000,000. Therefore, the defense argues, a new trial should be granted not only as to damages, but to liability as well. It is asserted that the conduct of plaintiff’s attorney in his closing was so egregious that it prejudiced the jury in its determination of both liability and damages. Sanctions against counsel are also sought. This court respectfully disagrees. Taking his speech as a whole, in connection with the trial court’s admonition and instructions, it was neither inflammatory nor prejudicial and does not warrant a new trial. Consequently, the court affirms the jury’s finding as to the liability aspect of the trial and denies defendant’s motion for sanctions arising from plaintiff’s closing to the jury.

After weighing and considering the evidence presented, however, the court is constrained to either remit the award or grant a new trial on damages, at plaintiff’s option, because the verdict of $20,000,000 for the damages the plaintiff sustained was excessive and not supported by the record. See Doe v. Raezer, 444 Pa. Super. 334, 340, 664 A.2d 102, 105 (1995), appeal denied, 544 Pa. 630, 675 A.2d 1248 (1996). As described by plaintiff’s treating physician and orthopedic surgeon, James S. Raphael M.D., in his videotaped deposition, plaintiff suffered an acute compartment syndrome of her right hand and forearm. This syndrome arose from a profound crush injury to the dorsal and volar compartments of the forearm as well as her carpal tunnel. As a result of the crush injury, the muscle in her forearm was pulled out, or avulsed. Shortly after the accident, she was taken to the emergency room at Albert Einstein Medical Center. Dr. Raphael, who was the head of hand surgery at Einstein, performed a carpal tunnel release to decompress the pressure in the arm and debrided the wound of all non-viable tissue, including muscle. This procedure is called a fasciotomy. On December 3,2001, Dr. Raphael performed further surgery to debride the dead or necrotic tissue of the skin and performed a skin graft, taking tissue from plaintiff’s right thigh. Plaintiff was discharged a little over a week after the incident on December 6, 2001. In March 2002, plaintiff underwent a Tenolysis (removal of scar) and Z-plasty scar revision surgery through an outpatient procedure to improve the function of her right wrist. In September of 2002, the plaintiff underwent a tendon transfer to improve her right thumb function, also performed on an outpatient basis. Dr. Raphael testified that by July of 2003, her wounds were healed. She does, however, suffer from residual scars on her right forearm and right thigh where skin was removed for the graft. The record also reflects that plaintiff, who is now 27 years of age, will suffer from limited range of motion in her fingers and reduced grip strength, which plaintiff maintained at trial would prevent her from sewing and playing basketball.

Remittitur is justified only under limited instances where the verdict is plainly excessive, exorbitant and beyond what the evidence warrants. Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410, 414 (Pa. Super. 2004). The criteria laid out in Smalls, when applied to the facts of this case, compel remittitur. The elements are: (1) weighing the severity of the injury; (2) whether the injury is demonstrated by objective physical or subjective evidence; (3) whether the injury is permanent; (4) plaintiff’s ability to continue employment; (5) disparity between the amount of out-of-pocket expenses and the amount of the verdict; and (6) the amount of damages requested in plaintiff’s complaint, citing Stoughton v. Kinzey, 299 Pa. Super. 499, 503, 445 A.2d 1240, 1242 (1982). It cannot be denied that the evidence presented in this case clearly demonstrates that plaintiff, at only 27 years of age, suffered significant injury, concomitant pain and suffering, permanent scarring, and limited range of motions of her fingers, particularly the thumb of her right hand. Nonetheless, the award of $20,000,000 was excessive and exorbitant when viewed in light of the latter three factors annunciated in Smalls, namely, plaintiff’s ability to continue employment, disparity between the amount of the verdict and out-of-pocket expenses, and the damages plaintiff requested in the court records. The plaintiff has the ability to continue employment; no claim was asserted for future loss of earning capacity. Although plaintiff testified that she believed she is limited to light work only, Dr. Raphael had cleared her to return to her employer by January 2003, where she would be limited to lifting up to no more than 20 pounds. She has not done so, however, because she maintains that she is afraid. There is no objective evidence on this record, however, that Mrs. Leyva is unable to return to full employment and cannot operate the tumblast or other like-machines. Plaintiff’s vague assertion that her earnings may be adversely impacted is belied by the record in that plaintiff made no claim for future loss of earning capacity.

The disparity between out-of-pocket expenses and the amount of the verdict was immense. The special damages presented to the jury were merely for past loss of wages and medical bills, which totaled $86,000 (the extent of the workers’ compensation lien). The only assertion for future medical expenses arose from Dr. Raphael’s opinion that the plaintiff would have to undergo a future scar revision surgery at a cost of approximately $7,500. The court specifically charged the jury that they were limited as far as out-of-pocket expenses to the $86,000 award for past loss of eamings/medical bills and $7,500 for the future operation. The award for pain and suffering in relation to these special damages was enormous and bore no reasonable relationship to the injuries suffered. It is not disputed that Mrs. Leyva sustained significant injury to her arm, resulting in limited use of her thumb and fingers, so that she cannot do the sewing she wishes; but the injury did not render her arm useless or paralyzed. She is still able to operate the machine and return to work. It is also beyond doubt that she suffered pain from the accident and through subsequent physical therapies. The record is bare, however, as to whether she still suffers any pain after July 2003 when Dr. Raphael testified that she had fully recovered from her injuries. Finally, it appears that the plaintiff’s highest demand was one million dollars. In light of these facts and in the exercise of its sound discretion, the court finds the verdict excessive and is constrained to remit the award or, in the alternative at plaintiff’s option, grant a new trial as to the damage issue. See Doe v. Raezer, supra; Smalls v. Pittsburgh-Corning, supra; Gunn v. Grossman, 748 A.2d 1235, 1241 (Pa. Super. 2000); Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 165, 611 A.2d 1174, 1176 (1992). See also, Potochnick v. Perry, 861 A.2d 277, 285 (Pa. Super. 2004) (remittitur denied for verdict of $5,000,000 forplaintiff and $1,000,000 for his wife, for loss of consortium, in severe brain damage and loss of future earnings case).

The court, in its order, has given plaintiff the right to accept the remitted sum of $3,750,000 (plus delay damages calculated on the remitted sum) or be granted a new trial on damages. After review of the evidence of damages presented in this case, it is concluded that $3,750,000 is the highest reasonable compensation that a jury could award. Although not applicable to this case, the court used the criteria laid out for remittitur in Pa.R.C.P. 1042.72 under the MCARE Act. See 13P.S. §1303.509(a) (pertaining to malpractice cases as a guide in arriving at this amount). It must be borne in mind that the court has not substituted its judgment for that of the jury. The plaintiff is given the absolute right to reject the remittitur, accept the grant of new trial on damages or, in the alternative, appeal the ruling of a new trial.

Consequently, defendant’s post-trial motions as to liability are denied, but the verdict is remitted to $3,750,000, plus delay damages in the amount of $271,104, or, in the alternative, grants a new trial as to damages if plaintiff declines to accept the sum as remitted.

ORDER

And now, March 31, 2006, the post-trial motions of the defendant are granted in part and denied in part. Defendant’s post-trial motion pertaining to liability is denied. Defendant’s post-trial motion to remit damages is granted with the option by the plaintiff to either accept remittitur or be given a new trial. The jury’s verdict of $20,000,000 is remitted to the sum of $3,750,000 because the damage award was excessive. The verdict is remitted to $3,750,000, an amount equal to what could constitute reasonable compensation for the injuries suffered by the plaintiff under the particular factual circumstances of this case. Delay damages are calculated on this sum in the amount of $271,104.

If the plaintiff declines to accept the award as remitted, then a new trial is ordered, limited to damages only. If the remittitur is accepted by plaintiff, then judgment is entered in the sum of $4,021,104 (including delay damages) in favor of plaintiff, Guillermina Leyva, and against defendant, International Surface Preparation Corp. d/b/a Wheelabrator Corp.

      . The delay damage calculation was based on the time periods and interest contained in plaintiff’s amended petition for delay damages. The time period for the commencement of delay damages was October 1,2004, one year after service of the writ of summons. Defendant argued in its reply petition that the starting date should have been April 1, 2005; one year after plaintiff’s amended complaint was filed. The court disagrees. Pa.R.C.P. 238(a)(2) clearly provides that the time period begins to run from one year of the date the original process was served. Defendant also maintains that plaintiff’s counsel requested a continuance due to a vacation when the case was called for trial in October 2005. Consequently, defendant maintains that the calculations should have ended on October 1, 2005 instead of the date of the verdict on December 15, 2005. Since the docket entries showed no trial listing of this case in October 2005, delay damages were computed to the verdict date as maintained in plaintiff’s petition.


author: LASH, J,

text:
    Continental Casualty Company v. C.R. England Trucking Inc.

      C.P. of Berks County,
    no. 04-16588.
    April 7, 2006

      Aaron Byrd-Leitner, for plaintiffs and counterclaim defendants, Continental Casualty Company, a/s/o Estep Express Inc. and Estep Express Inc.

      DawnL. Jennings, for defendants C.R. England Trucking Inc. and Trongale.
   LASH, J,

The matter before this court is the motion for summary judgment of counterclaim defendants, continental Casualty Company, a/s/o Estep Express Inc., and Estep Express Inc. (counterclaim defendants), on the counterclaim filed by C.R. England Trucking Inc. and Gregory Trongale (counterclaim plaintiffs). The motion alleges that counterclaim plaintiffs failed to file the counterclaim within the applicable statute of limitations. For reasons set forth herein, we grant the motion of counterclaim defendants and dismiss the counterclaim.

The within action was commenced on November 15, 2004 by counterclaim defendants as plaintiffs who filed a complaint alleging property damage resulting from an automobile collision involving the parties and occurring on February 23, 2003. The property damage claim exceeded $50,000. Counterclaim defendants served the complaint on counterclaim plaintiffs by certified mail on November 15, 2004. The date the complaint was received by counterclaim plaintiffs is not clear from the record but it was no later than December 13, 2005, for counterclaim plaintiffs admit requesting an extension to respond to the complaint at that time. According to counterclaim plaintiffs, counterclaim defendants granted an “open extension to file a response to the complaint.” On March 11, 2005, counterclaim plaintiffs filed an answer to the complaint, which included a counterclaim alleging, inter alia, that counterclaim defendants negligently caused the accident, and that counterclaim plaintiffs incurred property damages as a result of said negligence.

The within motion for summary judgment was filed on October 17, 2005. This matter was praeciped for argument for March 10,2006, but the parties then agreed, in lieu of argument, for the matter to be submitted on briefs.

The applicable statute of limitations is found in 42 Pa.C.S. §5524(3) where it states: “The following actions and proceedings must be commenced within two years: ... (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.”

Counterclaim plaintiffs’ counterclaim was filed more than two years after the cause of action accrued. Counterclaim plaintiffs cannot contend that they were somehow delayed by or prejudiced by the timing of the filing of counterclaim defendants’ complaint. For one, counterclaim plaintiffs’ action existed from the time of the accident and is a claim for property damage independent of the claims raised by counterclaim defendants in their complaint. Secondly, there was ample time after service of the complaint to file the counterclaim prior to the expiration of the statute of limitations.

The case of Harmer v. Hulsey, 321 Pa. Super. 11, 467 A.2d 867 (1983), is controlling. In that case, the counterclaim defendant as plaintiff instituted suit against the counterclaim plaintiff on August 24,1981 to recover for injuries received in a September 21,1979 motor vehicle accident. Counterclaim plaintiff was served with the complaint on September 8,1981. Counterclaim plaintiff filed an answer and a counterclaim on September 30, 1981, alleging damages resulting from his own injuries sustained in the accident. Counterclaim defendant filed a motion for judgment on the pleadings, which was granted by the trial court.

In affirming on appeal, the Superior Court pointed out that the counterclaim plaintiff was entitled to the same two-year period as counterclaim defendant to bring an action for damages for injuries arising from the accident. The court stated: “A cause of action raised as a counterclaim may be potentially as stale as a cause of action asserted in an original complaint[s] .... The purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims.” Harmer, supra at 14, 467 A.2d at 869. (citation omitted)

The Superior Court in Harmer also distinguished between a counterclaim that is a recoupment and one that is a setoff. A recoupment is a response to the claim raised in the original complaint and raises no possibility of affirmative relief for a defendant. As simply a response, the recoupment may be filed after the statute has run. A setoff, on the other hand, raises, in effect, a new cause of action, and can result in a separate judgment being entered in favor of the counterclaimant. The Harmer court concluded that a counterclaim provoked by the alleged negligence of a plaintiff is a new cause of action and must be raised within the time permitted under the statute of limitations.

Counterclaim plaintiffs argue that they were granted an indefinite extension of time to file a response by counterclaim defendants. They urge that the granting of additional time extended to the filing of a counterclaim as well. This contention does not pass muster. The extension was granted for the purpose of filing a response. Nothing in the record suggests that counterclaim defendants were even aware of counterclaim plaintiffs’ property damage claim, nor responded in any way that would suggest a waiver of the statute of limitations to that claim.

For reasons already set forth, there was no prejudice by any of the actions taken by counterclaim defendants. Counterclaim plaintiffs had the ability to process the property damage claim within the applicable statute of limitations, and failed to do so. Accordingly, we enter the following order:

ORDER

And now, April 7, 2006, upon consideration of the motion for summary judgment of Continental Casualty Company, a/s/o Estep Express Inc. and Estep Express Inc., on the counterclaim filed by C.R. England Trucking Inc. and Gregory Trongale, response thereto, and briefs filed by the parties, said motion is granted. Judgment is entered in favor of Continental Casualty Company, a/s/o Estep Express Inc. and Estep Express Inc., as counterclaim defendants, and against C.R. England Trucking Inc. and Gregory Trongale, as counterclaim plaintiffs, on the counterclaim filed by C.R. England Trucking Inc. and Gregory Trongale.

ADDENDUM TO DECISION AND ORDER, SCOTT E. LASH, JUDGE, APRIL 11, 2006

The court has discovered a typographical error in its decision and order entered April 7, 2006. The error appears on page 376 on the nineteenth line. The date of December 13,2005 should read December 13,2004. This error was transposed from the brief of counterclaim plaintiffs in response to the motion for summary judgment on page two.

      . Service by certified mail was permitted under Pa.R.C.P. 403 and 404, as both counterclaim plaintiffs were located outside the Commonwealth.

      . [Counterclaim plaintiffs’] brief in response to [counterclaim defendants] Continental Casualty Company, a/s/o Estep Express Inc. and Estep Express Inc.’s motion for summary judgment, p. 2.


author: HODGE, J.,

text:
    Miller v. Thompson

      C.P. of Lawrence County,
    no. 11326 of 2005, C.A.
    April 5, 2006

      Deborah A. Shaw, for plaintiff.

      Frank J. Piatek, for defendant.
   HODGE, J.,

Before the court is the amended complaint for custody filed by the plaintiff, Dixie Miller (Grandmother), a resident of New Castle, Lawrence County, Pennsylvania, against the defendant, Chester Thompson (Father), a resident of Prentice, Wisconsin, formerly a resident of Butler, Butler County, Pennsylvania.

Grandmother is the maternal grandmother of four minor children, [ ], bom June 25, 1990, [ ] bom July 28, 1991, [ ] born December 22,1992, and [ ] born October 6, 1994.

Father is the natural father of the minor children. The natural mother of the children is deceased.

Clayton A. Cowan and Wayne M. Cowan (interveners) have intervened in this action as party plaintiffs pursuant to order of this court dated February 10, 2006.

Wayne Cowan is the son of plaintiff Dixie Miller. Wayne Cowan resides with his brother Clayton Cowan, in Fombelle, Pennsylvania. Wayne and Clayton Cowan are the uncles to the minor children.

On September 2,2005, Father gave temporary, physical custody of his children to his brother-in-law, Wayne M. Cowan, for the reasons that he was moving out-of-state to be with or around family. The handwritten statement of Father further provided that the only stipulations that are to be followed are that the children are to be properly taken care of and enrolled in school at their new location, and that at any time in the future, and for any reason, Father can terminate this document and reclaim custody of the children. See exhibit B, attached to the amended custody complaint.

Because Wayne and Clayton Cowan did not have room for all four children in their home, Grandmother and uncle interveners decided between themselves, after consultation with the children, that the two boys, [ ] and [ ] would reside with the uncle interveners, and that the two girls, [ ] and [ ] would reside with Grandmother.

Both Grandmother and Wayne Cowan testified that, prior to the children coming to reside with each of them, the family circumstances in Butler, Pennsylvania, were not good, and that the home in which they lived in Butler was a mess, that there were roaches, dirty clothes, dirty dishes, and very little food in the house.

Since the children have come to reside with the uncle interveners and Grandmother, the children have been attending school regularly and appear to be properly cared for.

Father has appeared at the hearings held before this court through his counsel, Attorney Frank Piatek, but has not provided either Grandmother or Wayne Cowan with any telephone number or address where he resides in the state of Wisconsin, in order to permit the children to contact him. Wayne Cowan testified that he had only one incident of contact from Father since the children have resided with him on September 2, 2005, and on that occasion, Father was more concerned about the Social Security checks for the children as opposed to inquiring about their well-being.

Father has filed an answer to the amended complaint for custody and a counterclaim, pursuant to which Father is requesting primary physical custody of the children.

This case was originally scheduled before this court on February 10,2006, for a custody conciliation conference on the amended complaint for custody filed by Grandmother, at which time the conference was continued at the request of Father, in that Father had apparently attempted to come from Wisconsin to New Castle, Pennsylvania, but had car trouble. The conference was continued to March 22, 2006. On March 22, 2006, Father did not appear nor did his counsel provide any reason for his non-appearance, notwithstanding the fact that the hearing had been continued at Father’s request.

Pursuant to the Grandparents’ Custody Act, grandparents have standing in an action for physical and legal custody of a grandchild in the following manner:

“(1) who has genuine care and concern for the child;

“(2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and

“(3) who for 12 months has assumed the role and responsibilities of the child’s parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. 63 (relating to juvenile matters), or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section.” 23 Pa.C.S. §5313(b).

From the testimony of Grandmother, it is apparent that she clearly meets the requirements of subsection b(l) and b(2) the Act. As far as subsection b(3), the court finds that Grandmother has assumed the responsibility for a child who is substantially at risk due to parental neglect.

As to the two male minors currently in the custody of the uncle interveners, the question becomes whether the interveners have standing to pursue an action for custody of the children, pursuant to the petition for intervention in the custody action filed by Grandmother against Father.

The courts generally find third-party standing for visitation and custody cases only where the legislature specifically authorizes the cause of action. Flowever, a third party has been permitted to maintain an action for custody where that party stands in loco parentis to the child. See Gradwell v. Strausser, 416 Pa. Super. 118, 124, 610 A.2d 999, 1002 (1992).

The phrase “in loco parentis” literally means in the place of a parent, and the phrase refers to a person who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas. First, the assumption of a parental status, and second, discharge/ performance of parental duties. The rights and liabilities arising out of an “in loco parentis” relationship are exactly the same as between natural parent and child. See Peters v. Costello, 586 Pa. 102, 891 A.2d 705 (2005).

The court finds that the uncle interveners, Wayne Cowan and Clayton Cowan, have assumed parental status relative to the two male minors since September 2, 2005, and that, in fact, they are also discharging the parental duties.

In addition, the court is mindful of the fundamental proposition pertaining to child custody in the Commonwealth of Pennsylvania, that the ultimate consideration in custody matters is to determine that which is in the best interest of the child, and that such a determination is made on a case by case basis. Moore v. Moore, 535 Pa. 18, 634 A.2d 153 (1993). This standard applies to petitions for modification, as well as custody complaints, and requires that the court consider all factors that may legitimately affect the physical, intellectual, moral, and spiritual well-being of the child. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003).

Given the status of the record, namely, (1) that Father did not appear for the hearing held by the court and (2) that there are no facts submitted of record on behalf of Father in order to justify to the court the allegations that the best interest of the children require that Father have custody of the children, the court is not inclined to consider the answer to the custody complaint and counterclaim of the natural father. Therefore, the court will not grant him custody of the minor children at this time.

Accordingly, the court will enter the attached order.

ORDER

And now, April 5, 2006, upon consideration of the complaint for custody filed by the maternal grandmother, Dixie Miller, through her attorney, Deborah Shaw, Esquire, with the intervention of the uncles, Wayne Cowan and Clayton Cowan, and, following the hearing held and careful review of the evidence presented, the court enters the following order:

(1) Primary physical and legal custody of the minor children, [ ], bom June 25, 1990, and [ ], bom July 28, 1991, shall be in the maternal grandmother, Dixie Miller.

(2) Primary physical and legal custody of the minor children, [ ], bom December 22, 1992 and [ ], born October 6,1994, shall be in the uncle, Wayne A. Cowan.

(3) The minor children shall not be removed from the jurisdiction of this court, without consent of the parties to this litigation or further order of this court.

(4) Defendant shall be permitted reasonable telephonic communication with the minor children, as the parties may agree, which reasonable telephonic communications shall not be unreasonably withheld in any manner by the plaintiff, Dixie Miller, or intervenor Wayne Cowan.

(5) All provisions of all prior orders of court not in direct conflict or modified by this order shall remain in full force and effect.

(6) The prothonotary shall properly serve notice upon counsel of record and any party not represented by counsel.


text:
    McCane v. McCane
    C.P. of Berks County,
    no. 01-11756.

      John A. HoffertJr., for plaintiff.

      April 5, 2006

      Randy A. Rabenold, for defendant.
   LASH, J,

The matters before this court are the exceptions of defendant, Paula M. McCane (Wife), to the report and recommendation of the special master in divorce, Jeffrey J. Howell, Esquire (master). The master had issued his report on September 24, 2004, entering findings of fact, conclusions of law and a recommendation, requesting the court grant a divorce and order equitable distribution of the parties’ marital assets. The master recommended that Wife’s claims for alimony, counsel fees and costs be denied. Upon remand from this court, the master issued a supplement to his report, again requesting that this court deny alimony.

The parties are husband and wife, having been married on March 12,1976, separating on or about March 3, 2002. The parties have no children.

OnNovember 19,2001, plaintiff Michael G. McCane (Husband) filed for divorce, claiming an irretrievable breakdown of the marriage pursuant to §3301(c) of the Pennsylvania Divorce Code. Wife responded by filing an answer and counterclaim on December 11, 2001, alleging indignities pursuant to section 3301(a)(6) of the Divorce Code.

The case proceeded to the master, who held hearings on July 7 and August 19,2004. Subsequently, the master entered his findings, conclusions and recommendations on September 24,2004, recommending a divorce under section 3301(c) of the Divorce Code. From the marital estate of approximately $218,000, the master awarded Wife approximately 60 percent, or $131,000, worth of assets as equitable distribution. He denied Wife’s claims for counsel fees, costs and expenses, and permanent alimony.

Wife filed exceptions to the report and recommendation on October 4,2004. In conjunction therewith, Wife filed a petition for emergency relief “in the nature of a request to reopen the special master’s proceedings.” The relief petition sought leave of court to obtain additional testimony regarding Wife’s medical condition, particularly as it related to the denial of alimony. According to the petition, additional tests had been conducted, which indicated that Wife may suffer from lupus and a lupus-related condition known as scleroderma. This condition may be permanent, debilitating, and render Wife incapable of being employed in any capacity.

The master had found that Wife was working approximately 21 hours per week as a telephone operator, earning $13.34 per hour. There was testimony regarding her medical problems, but no final diagnosis had been made. The master found that Wife suffered from medical problems including “allergies, asthma, migraine headaches, chronic myofascial pain syndrome, fibromyalgia, thoracic outlet syndrome and left foot plantar fasciitis, experiencing left-sided swelling, pain and weakness in the neck and shoulder, ankle edema, left arm numbness and difficulty in walking.

On April 29, 2005, the court granted the petition for emergency relief and entered an order remanding the matter back to the special master for the purpose of taking additional testimony “solely on the issue of [Wife’s] new diagnosis regarding her medical condition and how that new diagnosis impacts on her earning capacity, if at all, and how the earning capacity impacts on the legal issues relating to equitable distribution and ancillary matters, including alimony.” The court deferred disposition on Wife’s exceptions.

On October 12, 2005, the master held the hearing on remand. Subsequently, on October 20, 2005, the master issued a supplement to his report, which included the following findings:

“(5) Wife’s medical condition, previously attributed to myofascial pain syndrome resulting from a work-related injury in 1995, now has been determined to be systemic scleroderma.

“(6) Scleroderma is characterized initially by skin edema which is replaced by scar tissue causing the skin to become thick and tight.

“(7) Scleroderma symptoms suffered by Wife include hand sensitivity to cold, inflammation of joints and tendons, anemia and shortness of breath.

“(8) Scleroderma complications experienced by Wife include collagen formation which obstructs oxygenation of the blood in the lungs and progressive scarring of the lungs.

“(9) Scleroderma treatment to be provided to Wife will include administration of a chemotherapeutic drug called cyclophosphomide once monthly for a period of six months.

“(10) At that time Wife will be re-evaluated to determine if this regimen has arrested the progression of the disease.

“(11) This treatment will be followed by intense occupational therapy which will be designed to increase hand functionality, strength and range of motion.

“(12) Presently Wife requires assistance with dressing. She cannot prepare meals for herself.

“(13) Presently Wife resides with her parents. Her mother provides any assistance which Wife needs to accomplish activities of daily living.

“(14) Presently Wife cannot work.

“(15) Efficacy ofthe treatment program developed by Wife’s doctors will affect her ability to work in the future.

“(16) Wife has applied for Social Security Disability. She anticipates a ruling on her claim in late October of 2005.”

Despite these findings, the master declined to recommend alimony. He noted that there was a dearth of evidence regarding Wife’s living expenses, a “critical component of any decision to award alimony as well as the amount in duration thereof.” He also cited Wife’s apparent squandering of her preliminary distribution in equitable distribution of over $75,000, received from the sale of the marital residence.

The matter was returned to this court for disposition of Wife’s exceptions and on Wife’s additional exceptions filed to the supplemental report. We note, initially, that exceptions 2, 3,4, 5,6,7,15A, F, G, I, K, 16,17,26 and 28 relate to Wife’s medical condition and the subsequent denial of alimony. Some of these issues have been resolved through the remand, the taking of additional testimony and the master’s filing of the supplemental report. The core issue, denial of alimony, remains, however, as raised again in Wife’s exceptions to the supplemental report.

We turn first to the master’s findings on the grounds for divorce. Wife contends that the master erred in declining to grant her a divorce on fault grounds. (Exceptions 15D and E, 21, 22 and 23.) The master recommended a divorce decree on no-fault grounds under 3301(c) of the Divorce Code, as requested in Husband’s complaint. Regarding Wife’s counterclaim, alleging indignities, the master states:

“The issue of Wife’s counterclaim for indignities also was considered. For a divorce to be granted on the grounds of indignities, wife must prove that Husband engaged in a course of conduct which was humiliating and degrading to her to the point where her condition was intolerable and her life burdensome. Ryave v. Ryave, 249 Pa. Super. 78, 375 A.2d 766 (1977). Wife must prove that Husband’s behavior destroyed the affection which previously had existed between them and that, consequently, hatred and estrangement replaced their loving relationship. Donlan v. Donlan, 194 Pa. Super. 427, 169 A.2d 121 (1961).

“Wife testified that she went ‘into shock’ and that her hands and feet ‘went purple’ when Husband advised her that he had filed for divorce. Although she apparently believed she and Husband were married happily, she complained in explicit detail that he had been inattentive to her sexual needs and that, after he discontinued marijuana use, he became sullen and moody. Wife’s testimony, which included other sordid allegations, if believed, does not prove that hatred and estrangement dominated their relationship or that he had committed indignities against her.”

The mere availability of a no-fault basis for granting a divorce does not preclude the court from granting a divorce on fault grounds. The Pennsylvania Superior Court in Restifo v. Restifo, 339 Pa. Super. 352, 489 A.2d 196 (1985), found that the 1980 Divorce Code does not expressly provide for preferential treatment for no-fault claims. As the court expressed, the legislature clearly intended to retain the traditional fault grounds, apparently on an equal footing with no-fault grounds.

Further, there may be a specific economic purpose for granting a fault divorce when a no-fault claim is also raised, such as a situation where the granting of a fault divorce to one party precludes an award of alimony to the other party. See Perlberger v. Perlberger, 426 Pa. Super. 245, 262, 626 A.2d 1186, 1195 (1993).

Here, however, there does not appear to be any additional benefit to Wife from the granting of a fault divorce. A divorce on no-fault grounds does not affect her ability to process all of her economic claims. Under the Divorce Code, she is expressly permitted to raise marital misconduct in determining whether alimony is appropriate.

Furthermore, under the Divorce Code, a divorce on fault grounds is not to be granted solely for personal redress. As the Superior Court noted in Perlberger, supra at 261, 626 A.2d at 1195, the wife in that case apparently sought “recompense for husband’s alleged misconduct; however, ‘the vindication of private rights or the punishment of matrimonial wrongs’ is expressly proscribed in the Divorce Code’s legislative findings and intent.” See 23 Pa.C.S. §3103(a)(3).

Even assuming that there is a legitimate basis for proceeding on Wife’s counterclaim, we find that the master was within his discretion in finding that Wife failed to meet her burden. While we agree that some of Wife’s allegations could be construed as a course of conduct by Husband that could render Wife humiliated and degraded, it is also true that Wife considered her marriage to be progressing acceptably. By no means did she determine her condition to be “intolerable,” at least not until Husband announced he had filed for divorce. Wife’s exceptions 15D and E, 21, 22 and 23 are dismissed.

Moving to the master’s recommended distribution of the assets, we note that in determining an equitable distribution award, the trial court is not bound by the master’s recommendations. Although the master’s report is entitled to great weight, it is the trial judge who has the responsibility for imposing the distribution. Tagnani v. Tagnani, 439 Pa. Super. 596, 654 A.2d 1136 (1995).

Wife objects to the master accepting Husband’s valuation on real estate held by the parties in Lycoming County, Pennsylvania. (Exceptions 10, 11 and 20.)

In exception number 10, Wife contests the master’s valuation of a furnished cabin in McHenry Township, Lycoming County, Pennsylvania, which the master found to be worth $56,000. This figure is based on a written appraisal submitted on Husband’s behalf. Wife also submitted a written appraisal in which the appraiser estimated that the fair market value of the property is $77,000.

The parties’ presentations were similar. Both parties hired certified appraisers to prepare a written appraisal report. Both appraisers relied upon the market data approach, comparing sales of similar properties, then making adjustments, where appropriate, to reach an appraised figure for the subject property. Unfortunately, neither appraiser testified and, therefore, the master was not provided with sufficient information to analyze the rationale behind the adjustments made on the comparables, which appear in the appraisals with only cursory explanations.

After reviewing the comparables, the master decided that Husband’s appraisal was superior. The location of the comparables in Husband’s appraisal was closer to the subject property. The average gross living area of Husband’s comparables was more in line with the subject. Husband’s comparables also were more similar in lot size.

While these factors do support Husband’s position to some extent, they do not provide sufficient weight to merit the master’s determination to rely solely on Husband’s appraisal. In fact, based on the adjustments made by the appraisers, the distinctions on these factors are relatively minor. The average adjustment for gross living area by Wife’s appraiser was upwards by $1,476, while Husband’s appraiser adjusted downwards by 1,200 square feet for his comparable number one and upwards by $700 for comparable number two. Regarding acreage, Wife’s comparable number two presented the greatest disparity in lot size, 4.75 acres, but that only warranted a downward adjustment of $3,450. Husband’s appraiser adjusted downward by $1,000 for two comparables which had approximately 1.5 acres more land than the subject. Neither appraiser appeared to make any adjustment for location.

We also concur with Wife’s contention that the master should not have considered the assessment on the property. In this case, Lycoming County established a new tax base year of 2004, being effective for the 2005 tax year. Under these circumstances, the assessed value may bear some relation to fair market value. However, the 2004 assessment is an estimate based on county action, and is subject to appeal where fair market value would then be determined by a court of competent jurisdiction. It is not, in and of itself, an accurate reflection of fair market value and cannot be considered probative.

Finally, Wife’s point that the master accepted Husband’s appraisal as superior because it was “more nearly in conformity with U.S.RA.P. standards” cannot be maintained without these standards properly being presented into the record, either on an evidentiary or judicial notice basis.

Because the appraisers were not present to testify, limiting the master’s ability to formulate a reasoned opinion, because the master’s reasons for his determination are not sufficient on the basis of this record, and because both appraisals appear, at least on the surface, to present valid opinions on fair market value, in light of the comparables chosen and the quantitative adjustments made, this court is relegated to giving equal weight to both experts’ reports. When a court is presented with conflicting evidence by equally credible experts, the court can, within its discretion, conclude that the fair market value of the property is somewhere between the values presented by the parties. See Westinghouse Electric Corporation v. Board of Property Assessment Appeals and Review of Allegheny County, 539 Pa. 453, 464, 652 A.2d 1306, 1312 (1995). Accordingly, Wife’s exceptions numbers 10 and 20 are sustained. The value of the cabin in McHenry Township shall be modified to be the median of the $56,000 appraisal and the $77,000 appraisal, or $66,500.

In exception 11, Wife objects to the master’s finding that the present value of Husband’s one-half interest in the 15.7 acres of land in Lycoming County, Pennsylvania, is worth $15,040. The land is unimproved, rural forest acreage. The evidence presented included a written appraisal submitted on Wife’s behalf estimating the fair market value of the lot to be $40,000 and the property assessment set at $30,080.

The master accepted the assessment against the appraisal because the appraisal “did not consider the effect upon value of the ‘McCane-McCane agreement’ dated March 17, 1998, which restricted the sale of the co-tenants’ interest as set forth therein.”

The “McCane-McCane agreement” was entered in contemplation of the conveyance by Edward M. Mogel of his one-quarter interest in the property to Charles W. McCane, resulting in Husband and Charles W. McCane holding the property equally as tenants in common. The agreement provided for certain restrictions limiting the ability of either party to sell or encumber the property. The party proposing to sell the property has to give written notice to the other party of his intention. Further, the party remaining has the first option to purchase the property on terms agreeable to the parties or, in lieu thereof, upon valuation by an appraiser or appraisers.

Upon review of the agreement, this court does not find any terms or conditions which would affect fair market value of the property. The only restriction of either party to selling his interest to a third party is the option of the other party to purchase the interest. Under the terms of the agreement, the sale would be on a fair market value basis, either to the other party for a price determined by an appraiser, or through an arms length transaction to a third party.

Further, the master cannot rely upon the assessment for determination of fair market value, for reasons set forth. Wife’s appraisal stands alone as the only competent evidence of the value of the property. Where the evidence offered by one party in equitable distribution action is uncontroverted, the court may adopt this value for the property, even though the resulting valuation would have been different if more accurate and complete evidence had been presented. Baker v. Baker, 861 A.2d 298, 302 (Pa. Super. 2004).

Wife’s exception number 11 is sustained. This court finds Flusband’s one-half interest to have a fair market value of $20,000.

Wife’s exception number 12 contests the master’s finding on personal property located in the Lycoming County, Pennsylvania cabin. The master relied on Husband’s appraisal estimating fair market value to be $4,192. Wife submitted a separate appraisal with fair market value totaling $1,191. The two appraisals are nothing more than a list of items with an estimated value. There was no expert testimony. The appraisals do not contain any description of the items, nor is there any opinion on physical condition. Fair market value cannot be properly ascertained from these documents. Once again, the only recourse is to split the difference. Wife’s exception number 12 is sustained. The value of the property located in the Lycoming County, Pennsylvania cabin is reset at $2,691.50, being the median between the two appraisals.

Wife’s exception number 13 appears to be nothing more than an objection to the master’s statement that Husband deposited funds into a savings and checking account at M&T Bank. In her brief, Wife argues that she handled the banking, as well as the parties’ finances and investments. There does not appear to be any dispute, however, on the value of this asset or whether it is marital. Wife’s exception number 13 is dismissed as de minimis.

Wife’s exception number one contends that the master’s reporting of Husband’s gross earnings for calendar years 2001,2002,2003 and 2004 were incorrect. Wife’s argument is that the yearly income figures found by the master did not include Husband’s 40IK contributions and, therefore, are not true representations of Husband’s gross income.

Wife is correct in this assessment, but does not consider that the master included Husband’s 40 IK as an asset, subject to equitable distribution. In fact, the master recommends that wife is to receive 60 percent of the 40 IK account.

Money included in an individual’s income for the purpose of calculating support or alimony may not also be labeled as a marital asset subject to equitable distribution. This would constitute “double dipping,” which cannot be condoned. Rohrer v. Rohrer, 715 A.2d 463, 465-66 (Pa. Super. 1998).

Under these facts and circumstances, it is more appropriate to treat the funds invested in the 40 IK account as assets, not income. In fact, it appears that the master’s treatment of the fund provides a greater benefit to wife than would have occurred if the fund were included as part of Husband’s gross income. Wife’s exception number one is dismissed.

Wife’s exceptions 15B and 15C raise that the master failed to find that the marriage is the first for both parties and that the marriage is a long marriage, including 26 years of coveture and 28 1/2 years overall as of October 4, 2004. While it appears that the master did properly take these factors into account in making his determination, it is, nevertheless, appropriate to include these facts as findings. Exceptions 15B and 15C are sustained and shall be included as findings.

In exception 15H, wife states that the master “failed to find that [Husband], from about 1995 to separation in 2002, failed to maintain the marital home, while he began planning for his divorce and separation by improving and carefully maintaining the Lycoming County, Pennsylvania cabin.” Since Wife did not contest the master’s valuation of the marital home, any maintenance issues regarding that home are now deemed moot. The maintenance of the cabin would have been considered by the appraisers and included as a factor in their determinations. Wife’s exception 15H is dismissed.

Wife’s exception 24 complains about the master’s failure to grant to Wife a portion of Husband’s Roth individual retirement account or Husband’s IRA. To the extent this issue goes to a percentage of distribution, the issue is resolved by this court’s review of exception 25 herein. To the extent Wife is insisting on these IRAs as part of her distribution, this court finds that this insistence is without basis. The master is within his discretion in determining the division of the assets. There is no particular reason why Wife should receive funds from the IRAs, as opposed to other assets, so long as she is treated equitably in the distribution scheme. Exception 24 is dismissed.

In exception 25, Wife objects to the overall property distribution of the marital assets, which appears to be approximately a 60 percent/40 percent distribution in favor of Wife.

We note first that the rulings by this court have increased the cumulative fair market value of the marital assets by $13,600. On remand, the master shall make appropriate adjustments to reflect the additional valuations, as set forth.

Secondly, exception number 25 is considered within the context of the master’s determination that Wife should receive no alimony. For reasons set forth herein, this court has determined that an award of alimony is appropriate.

In light of the factors considered by the master and this court in fashioning an appropriate award for equitable distribution, it appears that the 60 percent/40 percent distribution is reasonable. This takes into account the proposed award of alimony, as set forth, as well as the length of the marriage of the parties, the size of the marital estate, the relative contributions of each party, the payment by Husband of some of Wife’s bills, the payments made by Husband for alimony pendente lite, and Wife’s apparent willingness to dissipate her share of the marital assets through her spendthrift habits. The master was within his discretion in the proposed distribution. Exception 25 is dismissed.

Exceptions 14, 19 and 27 all contest the master’s refusal to require Husband to pay Wife’s counsel fees. “The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial advantage; the parties must be ‘on par’ with one another.” Brody v. Brody, 758 A.2d 1274, 1281 (Pa. Super. 2000), quoting Perlberger v. Perlberger, supra, 426 Pa. Super. at 283, 626 A.2d at 1206-1207. Further, “[cjounsel fees are to be awarded only upon a showing of need.” Brody, 758 A.2d at 1281, quoting Harasym v. Harasym, 418 Pa. Super. 486, 496, 614 A.2d 742, 747 (1992).

Wife’s claim for counsel fees cannot be considered apart from the order entered in her favor for alimony pendente lite (APL). The purpose of alimony pendente lite is to provide the receiving party with financial resources to litigate the divorce proceeding. Litmans v. Litmans, 449 Pa. Super. 209, 673 A.2d 382 (1996).

On April 18,2002, the court entered an award for APL in favor of Wife, requiring Husband to pay Wife $1,250 a month, with the effective date of the order being February 20, 2002.

The APL order continues to charge, although we note that Husband, on February 22, 2006, filed a petition to modify the APL order and that the court on February 27, 2006 ordered escrow of all subsequent payments, pending resolution of the petition to modify. Under the order, Husband was required to pay, at a minimum, $ 1,25 0 a month from February 20,2002 until February 22,2006, totaling approximately $60,000. This sum is more than ample to enable wife to properly process the divorce proceeding and ancillary claims, including making payment for attorney and expert fees. The master’s decision to deny Wife’s claim to have her attorney’s fees paid by Husband was proper. Exceptions 14, 19 and 27 are dismissed.

The final issue is alimony. Preliminarily, we address exceptions 8, 9 and 18, relating to Wife’s income. Exception 8 is a claim by Wife that the master failed to include that, should Wife be fully disabled, her long-term disability would pay her only about $600 a month. In essence, Wife is arguing that the master set forth incorrectly the formula for her long-term disability pay. Because of the master’s finding that Wife is totally disabled, this matter is remanded to the master to calculate the expected disability payments for Wife, to enable him to assess an appropriate value for alimony. Wife’s exception 8 is sustained.

Wife’s exception 9 contests the master’s expectation that Wife would receive $870 per month from Social Security Disability benefits. At the time of the master’s hearing, Wife’s disability claim was pending. At the time of argument, counsel for Wife stated that the disability claim has been processed and that Wife has been approved for payments. The matter is, therefore, remanded to the master to enter a finding regarding Wife’s Social Security Disability payments, to enable the master to properly assess an appropriate figure for alimony. Wife’s exception number 9 is sustained.

Wife’s exception 18 contends that the master’s statement that Wife will receive monthly payments of $855 from her Reading Hospital pension is incomplete because the master failed to state that the pension payments will not begin until Wife reaches age 65. Wife’s argument is supported by her accrued retirement benefits statement. (Exhibit 43.) As already stated, Wife’s income, both present and future, is important to resolution of the alimony claim. Certainly, if Wife does not receive these payments until age 65, that should be taken into consideration. This matter is remanded to the master to augment his finding. Wife’s exception 18 is sustained.

We turn then to the question of whether the master erred in refusing to award alimony to Wife. In making this determination, we follow the doctrine set forth by the Pennsylvania Superior Court in Plitka v. Plitka, 714 A.2d 1067, 1069 (Pa. Super. 1998), where it states the following:

“ ‘The purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.’ Twilla v. Twilla, 445 Pa. Super. 86, [90,] 664 A.2d 1020, 1022 (1995). (quotation omitted) In determining the nature, amount, duration and manner of payment of alimony, the court must consider all relevant factors, including those statutorily prescribed for at 23 Pa.C.S. §3701, Alimony, (b) Relevant Factors (1)-(17). ‘Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay.’ Twilla, supra 664 A.2d at 1022, quoting Perlberger v. Perlberger, 426 Pa. Super. 245, [277-78,] 626 A.2d 1186, 1203 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993).”

We also note that the alimony statute must be applied in a non-mechanical manner so that a reasonable and compassionate result may be reached in each case. Baker v. Baker, supra, 861 A.2d at 303.

From the master’s finding, it is clear that Wife is currently unable to work and, in fact, needs assistance to aid her in performing the most basic functions such as dressing herself. Her limitations will continue indefinitely.

It also appears that Husband receives an approximate net income of $5,000 per month. Wife will be receiving between $1,600 to $2,000 a month from Social Security Disability and her insurance disability payments. As already discussed, Wife will be receiving 60 percent of the marital assets, which after adjustments made based on our previous ruling, shall total approximately $231,600, of which Wife’s share would equal approximately $139,000 worth of assets. We find that many of the relevant factors under section 3701(b) of the Divorce Code militate in favor of granting Wife an award of alimony. Most prevalent are the following subsections: (1) the relative earnings and earning capacities of the parties, (2) the ages and the physical, mental and emotional conditions of the parties, (3) the sources of income of both parties, (5) the duration of the marriage, (13) the relative needs of the parties, and most importantly, (17) whether the party seeking alimony is incapable of self support through appropriate employment. Conversely, none of the factors support a denial of alimony.

As stated, one of the master’s reasons for denying alimony was Wife’s apparent squandering of her preliminary distribution of marital assets, totaling somewhere between $75,000 and $84,000. The implication is that Husband should not be required to provide financial aid to Wife when she refuses to do her part in preparing for her future.

We agree that Wife should not be permitted to benefit from dissipating assets within her control. We also acknowledge that the court must take into account the equitable distribution scheme, as relative assets of the parties are a factor under the alimony code which must be considered. Nemoto v. Nemoto, 423 Pa. Super. 269, 279, 620 A.2d 1216, 1220-21 (1993). However, the equitable distribution factor is based on the availability of the assets to the parties, not what a party did with the assets upon receipt. We find that had Wife been prudent in overseeing the assets she had previously received, she nevertheless would be dependent on Husband for financial maintenance. Her physical condition is extreme. Through enactment of the alimony provisions in the Divorce Code, the General Assembly sought to protect divorced persons who cannot support themselves. Wife should be protected under these provisions.

We enter the following order:

ORDER

And now, April 5, 2006, upon consideration of the exceptions of defendant, Paula M. McCane, to the report and recommendation of the special master in divorce, response thereto, briefs filed by the parties, and after argument held, the court rules as follows: Exceptions 1, 13, 14, 15D, E and H, 19, 21, 22, 23, 24, 25 and 27 are denied. All other exceptions are sustained. The matter is remanded to the special master for further proceedings consistent with this opinion.

      . 23 Pa.C.S. §3101 et seq.

      . Master’s findings 24 and 25, report of special master filed September 24, 2004.

      . Section 3701(b)(14) of the Divorce Code.

      . Further, it appears that Wife’s counsel offered the evidence of misconduct for alimony purposes only. (N.T., July 7, 2004, p. 68.)

      . Master’s finding 66.

      . Court of Common Pleas of Berks County, docket no. 02060500, PACSES case no. 532104285.

      . Also of note is the fact that Wife had previously, on June 2,2005, filed her own petition to modify, requesting an increase due to her inability to work. That petition is also pending.


author: GEORGE, J,

text:
    Hanover Architectural Products Inc. v. U.S. Filter/JWI Inc.

      C.P. of Adams County,
    no. 05-S-436.
    March 27, 2006

      Paul W. Minnich, for plaintiff.

      Ralph A. Finizio, for defendant.
   GEORGE, J,

U.S. Filter’s preliminary objections to Flano ver Architectural Products Inc.’s complaint are currently before the court. The procedural history of this matter is more specifically set forth in a previous order of court and will not be repeated herein.

U.S. Filter’s initial preliminary objection contends that Hanover Architectural’s claim for breach of an implied warranty (Count 3 of the complaint) cannot be sustained because Hanover Architectural has expressly disclaimed such warranty. Hanover Architectural’s cause of action in this regard is based upon the implied warranties of merchantability and fitness for a particular purpose, which arise in commercial transactions by operation of law. See Strickler v. Peterbilt Motors Co., 2005 U.S. Dist. LEXIS 10231, 12-13, civil action no. 04-3628 (E.D. Pa. May 27, 2005). Implied warranties may be disclaimed by the seller provided that the disclaimer is in writing and conspicuous. 13 Pa.C.S. §2316(b); Strickler, 2005 U.S. Dist. LEXIS 10231 at 13. Additionally, if the disclaimer excludes the implied warranty of merchantability, or any part of it, the language of the disclaimer must mention merchantability. Id.

In its brief, Hanover Architectural conceded that the disclaimer contained in the purchase documents was in writing and sufficiently conspicuous. The court, therefore, will not address this issue as Hanover Architectural has represented to the court that the cause of action based upon breach of implied warranties has voluntarily been withdrawn. Accordingly, U.S. Filter’s preliminary objection concerning this issue is granted and Count 3 of the complaint is dismissed.

The second preliminary objection raised by U.S. Filter demurs to Hanover Architectural’s cause of action based upon a breach of express warranty. U.S. Filter argues that Hanover Architectural seeks relief based upon an alleged express warranty not enunciated in the sale documents. Specifically, U.S. Filter notes that the complaint alleges a breach of the express warranty to “filter the water from the sludge produced during [Hanover Architectural’s] manufacturing process and compress the sludge into cakes for easy disposal.” See complaint at paragraph 22. U.S. Filter claims, however, that the contract attached to the complaint contains no such warranty.

Undoubtedly, a cause of action based upon a breach of an express warranty cannot exist when there was never any representation warranting specific expectations. Beckermeyer v. AT&T Wireless & Panasonic Telecomm. Sys. Co., 2005 Phila. Ct. Com. Pl. LEXIS 30, 9-10, civil action no. 00469 (October 22, 2004). In reviewing the documents that form the subject of this litigation, I note that the first page of those documents indicates that U.S. Filter intended to provide an “automatic filtration process/automatic discharge operation” system including a “filter press,” and had operating specifications of producing cakes at a thickness of 1.25 inches. Hanover Architectural currently claims that the system purchased does not serve this purpose. I find that the allegations in the complaint are sufficient to survive a demurrer.

The paramount goal of contractual interpretation is to ascertain and give effect to the intent of the parties. PBS Coals Inc. v. Burnham Coal Company, 384 Pa. Super. 323, 328, 558 A.2d 562, 564 (1989). In determining this intent, the court looks to what the parties have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly. Id. Section 2313 of the Uniform Commercial Code provides that “any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” 13 Pa.C.S. §2313. The language referenced above creates the warranty that Hanover Architectural currently seeks to enforce.

Nevertheless, U.S. Filter suggests that language in the contract limiting liability to defects in “material or workmanship” serves to defeat Hanover Architectural’s claim. I disagree. The Uniform Commercial Code specifically addresses this argument by indicating that: “[w]ords or conduct relevant to the creation of express warranty and words or conduct tending to negate or limit warranty shall be construed whenever reasonable as consistent with each other . ...” 13 Pa.C.S. §2316(a). Our appellate courts have determined that the purpose of this section is “to protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty.” Morningstar v. Hallett, 858 A.2d 125, 131 (Pa. Super. 2004).

Initially, I find nothing in the language cited by U.S. Filter that is inconsistent with Hanover Architectural’s claim of express warranty. The language cited by U.S. Filter’s warranty specifically reinforces that the seller warranted that the equipment would conform to the description provided by the seller. A fair reading of the complaint indicates that the equipment purchased from U.S. Filter does not perform as expressly represented due to a defect in the equipment. Thus, to the extent that the language cited by U.S. Filter seeks to shield U.S. Filter from this claim, I conclude that it is insufficient to disclaim the express warranty. Therefore, U.S. Filter’s preliminary objection on this basis will be denied.

Next, U.S. Filter objects to Count 1 of the complaint alleging that the complaint fails to state a cause of action for breach of contract. “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” League of Women Voters of Pennsylvania v. Commonwealth, 692 A.2d 263, 267 (Pa. Commw. 1997). Because of the nature of a demurrer, all well-pled material facts, as well as all reasonable inferences deducible therefrom, are admitted. Peerless Publications Inc. v. County of Montgomery, 656 A.2d 547, 550 (Pa. Commw. 1995). In reviewing Hanover Architectural’s complaint, it is not clear and free from doubt that Hanover Architectural failed to state a viable cause of action. A commonsense reading of the complaint indicates that Hanover Architectural contracted with U.S. Filter to purchase a water filtration system compatible with the needs of Hanover Architectural. The complaint further alleges that U.S. Filter failed to provide a filtration system that could be utilized by Hanover Architectural. These basic elements, if true, are sufficient to sustain a cause of action. Accordingly, U.S. Filter’s preliminary objection on this basis will be denied.

The final preliminary objection filed by U.S. Filter seeks to strike damages claimed in the complaint and to limit damages to the contract price that Hanover Architectural paid for the equipment. In support of the objection, U.S. Filter points to the following contractual language:

“Seller shall not be liable for any consequential, incidental, special, punitive, or other indirect damages, and seller’s total liability arising at any time from the sale or use of the equipment shall not exceed the purchase price paid for the equipment. These limitations apply whether the liability is based on contract, tort, strict liability or any other theory.”

Under Pennsylvania law, contractual provisions limiting liability “for special, indirect and consequential damages in a commercial setting are generally valid and enforceable.” New York State Electric and Gas Corporation v. Westinghouse Electric Corporation, 387 Pa. Super. 537, 548, 564 A.2d 919, 924 (1989). Pursuant to 13 Pa.C.S. §2719(c), parties may limit consequential damages unless the limitation is unconscionable or the limited remedy fails of its essential purpose.

The doctrine of unconscionability is both a statutory and a common-law defense to the enforcement of an allegedly unfair provision in a contract. Wagner v. Estate of Rummel, 391 Pa. Super. 555, 561, 571 A.2d 1055, 1058 (1990), allocatur denied, 527 Pa. 588, 588 A.2d 510 (1991). An exclusion in a contract is unconscionable where (1) one of the parties to the contract lacked a meaningful choice about whether to accept the provision at issue and (2) the challenged provision unreasonably favors the other party to the contract. Koval v. Liberty Mutual Insurance Company, 366 Pa. Super. 415, 423-24, 531 A.2d 487, 491 (1987). Critically, appellate courts in Pennsylvania “have refused to hold contracts unconscionable simply because of a disparity in bargaining power” between the parties. See Witmer v. Exxon Corporation, 495 Pa. 540, 551, 434 A.2d 1222, 1228 (1981). In determining whether a clause is unconscionable, it is important to consider “the general commercial background and the commercial needs of a particular trade” and whether “the clause is so one-sided that it is unconscionable under the circumstances.” Borden Inc. v. Advent Inc., 701 A.2d 255, 264 (Pa. Super. 1997). Normally, the determination of whether a clause in a contract is unconscionable is a question of law for the court. Koval, supra at 425, 531 A.2d at 491; Denlinger Inc. v. Dendler, 415 Pa. Super. 164, 176, 608 A.2d 1061, 1067 (1992). Therefore, “a court may conclude, as a matter of law, that a contract... is enforceable regardless of an allegation of unconscionability, as long as there is no genuine issue of material fact.” Bishop v. Washington, 331 Pa. Super. 387, 399, 480 A.2d 1088, 1094 (1984).

In light of this instruction from our appellate courts, it is premature at this stage of the litigation to limit Hanover Architectural’s claim for damages. Although the validity of any claim by Hanover Architectural as to the lack of a meaningful choice in accepting the contract provision is doubtful, the fact remains that the record is void of any meaningful information in this regard. The contract also raises the issue of whether the provision in dispute unreasonably favors U.S. Filter. For instance, Hanover Architectural points out that the items for which it seeks consequential damages in excess of the purchase price were items that were actually required by the contract with U.S. Filter in order to avoid waiver of the warranties. As the facts in this matter are more fully developed, Hanover Architectural may be able to establish that the provision is unreasonable because it requires a purchaser to install specific equipment to preserve certain warranty clauses, yet limit its remedies for breach to an amount less than the funds expended by a purchaser to keep the warranties active. Once the facts are flushed out, the court will be able to make a decision as to whether the contract is unconscionable.

Since this issue is not “clear and free from doubt,” the preliminary objection will be denied. Once the record is further developed, U.S. Filter may properly seek reconsideration through dispositive pretrial motions.

For the foregoing reasons, the attached order is entered.

ORDER

And now, March 27, 2006, it is hereby ordered that Count 3 of the complaint alleging a cause of action based upon breach of implied warranty is stricken and that cause of action is dismissed. All remaining preliminary objections raised by the defendant are denied.

      . The implied warranties of merchantability and fitness for a particular purpose are distinct warranties. The implied warranty of merchantability is “a warranty that the goods will pass without objection in the trade and are fit for the ordinary purposes for which such goods are used.” Moscatiello v. Pittsburgh Contractors Equipment Company, 407 Pa. Super. 363, 368, 595 A.2d 1190, 1193 (1991), citing 13 Pa.C.S. §2314, appeal denied, 529 Pa. 620, 602 A.2d 860 (1992). An implied warranty warrants that “goods [are] fit for a particular purpose [and] exists . . . where the seller at the time of contracting has reason to know of such purpose and of the buyer’s reliance upon the seller’s skill or judgment to select or furnish goods that are suitable for such purpose.” Borden Inc. v. Advent Ink Company, 701 A.2d 255, 258 (Pa. Super. 1997) (citing 13 Pa.C.S. §2315).

      . Hanover Architectural does not challenge the contractual limitation of damages on the basis that the language is inconspicuous. The court will, therefore, not consider that issue.

      . Hanover Architectural has not challenged that the limited remedy set forth in the contract has “failed of its essential purpose.” Even had such an argument been advanced, it would be meritless. The validity of a consequential damage limitation depends on the effectiveness of the limited remedy. If the limited remedy fails, the consequential damage exclusion is unenforceable. Caudill Seed and Warehouse Co. v. Prophet 21 Inc., 123 F. Supp.2d 826, 831-32 (E.D. Pa. 2000) (predicting how Pennsylvania Supreme Court would rule on this issue). Precedent in this area finding limitation clauses unenforceable as failing in the essential purpose arose where the warranty was limited to the repair or replacement of parts and such repair or replacement could not be accomplished. The instant warranty provides the additional remedy of refund of the purchase price. Under this scenario, a buyer is still receiving an obtainable “silver bullet” in exchange “for parting with an arsenal of legal remedies.” Id. at 832.

      . In light of the disposition herein, it is not necessary to reach Hanover Architectural’s argument that the warranty language is susceptible to two interpretations and must be strictly construed against U.S. Filter as the drafting party. I note that paragraph 6 of the Standard Terms of Sale excludes from warranty “any equipment that is specified or otherwise demanded by buyer and is not manufactured or selectedby seller____” (emphasis added) At first glance, it would appear that this language implies that the equipment not manufactured by U.S. Filter would be included by implication in the warranty coverage. Consistent interpretation may very well bring these same items within the coverage of the limited damages provisions. That issue, however, need not currently be resolved.