source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    Young v. Presbyterian Homes Inc.

      C.P. of Lehigh County,
    no. 2000-C-990.

      John S. Harrison, for plaintiff.

      Vincent Candiello, for defendant Presbyterian Homes.

      Kelly M. Smith, for defendant Quinby.
    January 16, 2001
   BLACK, J.,

On January 3,2001,1 issued an order denying plaintiff’s motion to compel discovery of statements made by management employees of defendant Presbyterian Homes Inc. to legal counsel for both defendants. Plaintiff had moved for an order (a) compelling these employees to testify in depositions about such statements; (b) directing defendants to produce all written documentation of meetings between these employees and defendants’ legal counsel; and (c) requiring defendants’ legal counsel to be deposed about such meetings. This opinion sets forth my reasons for denying plaintiff’s motion to compel.

FACTUAL BACKGROUND

Plaintiff was previously employed by Presbyterian, a non-profit corporation which operates several long-term care facilities. Defendant Lisa Quinby is executive director of one of Presbyterian’s facilities and was plaintiff’s immediate supervisor at this facility. In this action, plaintiff claims that Ms. Quinby committed the torts of assault, battery and intentional infliction of emotional distress upon her. Plaintiff also alleges that Presbyterian was negligent in hiring and retaining Ms. Quinby.

Presbyterian is represented in this action by Vincent Candiello Esq., of the law firm of Morgan, Lewis & Bockius LLP. Ms. Quinby is represented by separate counsel, Kelly M. Smith Esq., of the law firm of Heimbach, Spitko & Heckman. Defense counsel recognized that their clients have a common interest in defending against plaintiff’s allegations. Therefore, on behalf of their respective clients, they entered into a joint defense and confidentiality agreement dated September 12, 2000.

In this agreement, defendants agreed to exchange and share certain information regarding the case, including material protected from disclosure by the attorney-client privilege, as well as witness and client interviews and statements. Defendants further agreed not to disclose any protected joint defense materials received pursuant to the agreement to any other person, except to each other or their respective attorneys or their respective attorneys’ employees, agents and/or outside contractors, including experts and consultants, without the prior consent of the party that provided the materials or information and the prior consent of that party’s counsel.

Following execution of the joint defense agreement, Mr. Candiello and Ms. Smith met jointly with various management employees of Presbyterian, including Paulette Hoffman, Carol Reppert, Kathleen Kohler, Patricia Henderschedt and Lisa Amey, in order to review plaintiff’s allegations. Mr. Candiello and Ms. Smith also met with these same individuals a second time shortly before their depositions.

On November 8 and 9, 2000, plaintiff’s counsel deposed these individuals and attempted to elicit testimony from them regarding their discussions with Mr. Candiello and Ms. Smith. Mr. Candiello objected to these questions on behalf of Presbyterian, based on the attorney-client privilege. He provided plaintiff’s counsel at this time with a copy of the joint defense agreement.

Plaintiff’s counsel contends that the attorney-client privilege does not apply because Ms. Smith, who represents Ms. Quinby, was present at the meetings between Presbyterian’s management employees and Mr. Candiello. Hence the motion to compel.

DISCUSSION

The attorney-client privilege has a long and time-honored history. It is the oldest privilege for confidential communications, dating back to the reign of Elizabeth I in 15th century England. See 8 Wigmore, Evidence §2290 (McNaughton rev. 1961); see also, Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 357 A.2d 689 (1976) (discussing the history of the privilege and the rationale for its existence). The Commonwealth Court recently emphasized the importance of the privilege in Gould v. City of Aliquippa, 750 A.2d 934, 936 (Pa. Commw. 2000):

“The attorney-client privilege performs a vital function in the legal system by fostering a confidence between clients and their advocates that will lead to a trusting and open attorney-client dialogue.”

The privilege as it applies to civil cases is currently codified at section 5928 of the Judicial Code, 42 Pa. C.S. §5928, as follows:

“In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.”

Where the client is a corporation or like entity, the privilege extends to communications between its attorney and agents or employees authorized to act on its behalf. See Gould v. City of Aliquippa, supra; see also, Upjohn Company v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); In re Ford Motor Company, 110 F.3d 954 (3d Cir. 1997). Thus, communications between management employees of Presbyterian, a non-profit corporation, and Mr. Candiello, its corporate counsel, fall within the scope of the attorney-client privilege.

The presence of a third party during an attorney-client communication will generally negate the privilege. The reason is that the client presumably does not intend his communications to be confidential if they are made in the presence of a third party. See Johnston v. Johnston, 346 Pa. Super. 427, 433, 499 A.2d 1074, 1077 (1985). Defendants contend that this general rule does not apply where the third party is counsel for a co-defendant participating jointly with the client’s counsel in the defense of the case pursuant to a joint defense agreement.

Defendants’ position is sometimes referred to as the joint defense privilege. However, this is somewhat of a misnomer. It is not a new privilege, but merely an application of the attorney-client privilege to a specific factual setting. Moreover, it has been applied not only to co-defendants, but also to other parties who share a common interest in the matter.

The Pennsylvania Rules of Evidence do not deal with privileged communications; hence they do not address the joint defense or common interest doctrine. See Pa.R.E. 501. Nor does there appear to be any reported Pennsylvania case directly in point. However, in the context of a multi-defendant criminal prosecution, the Superior Court has stated that a joint defense is appropriate and that the defendants have a right to assume that statements made by them within the group for their joint benefit will remain confidential. See Commonwealth v. Scarfo, 416 Pa. Super. 329, 611 A.2d 242 (1992), alloc. denied, 535 Pa. 633, 631 A.2d 1006 (1993). In Scarfo, one of nine co-defendants “flipped” to the Commonwealth’s side and testified against the other eight defendants at trial. The Superior Court ordered a new trial on the ground that the Commonwealth had failed to assure that a wall of separation existed between the prosecution and the “flipped” defendant. This wall of separation was necessary, the court held, because of the “strong potential for information exchange” regarding the defense strategy and evidence. Id., 416 Pa. Super. at 378, 611 A.2d at 266. In language foreshadowing the defendants’ position in the instant case, the court wrote:

“[In complex multi-defendant cases] it would be reasonable for a defendant to assume that the other defendants are allied with him or her and that the confidentiality of statements made for the benefit of group preparation would stay confidential within the group until the appropriate time for disclosure, perhaps at trial. ‘Defendants have both the right to prepare a group defense and the right to communicate privately with counsel... .’ ” Id. at 377-78, 611 A.2d at 266. (citation omitted)

Significantly, an overwhelming majority of those states that have considered the issue have recognized the joint defense or common interest doctrine by statute, rule of court or judicial decision. See annexed Table of Authorities Recognizing Joint Defense or Common Interest Doctrine. Moreover, on the federal level, 11 of the circuit courts of appeal have recognized the doctrine. Id.

The rule on attorney-client privilege proposed by the National Conference of Commissioners on Uniform State Laws also includes the joint defense or common interest doctrine. The text of the proposed rule is as follows:

“General Rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client (i) between the client or a representative of the client and the client’s lawyer or a representative of the lawyer, (ii) between the lawyer and a representative of the lawyer, (iii) by the client or a rep resentative of the client or the client’s lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (iv) between representatives of the client or between the client and a representative of the client, or (v) among lawyers and their representatives representing the same client.” Uniform Rules of Evidence (U.L.A.) Rule 502(b). (emphasis added)

I believe there are sound reasons, both theoretical and practical, for recognition of the joint defense or common interest doctrine. As noted above, the theory that the attorney-client privilege is lost where statements are made to counsel in the presence of a third party derives from the presumption that a client has no intention of maintaining confidentiality if a third party is present. However, where the third party is counsel for a co-defendant and is assisting in a joint defense, such a presumption is unrealistic. It does not make sense to infer an intent to waive confidentiality in these circumstances. On similar reasoning, it has been held that communications made by a client to investigators, paralegals, secretaries, or other employees of the client’s attorney for the purpose of facilitating legal advice are considered confidential communications and are protected by the attorney-client privilege. See Commonwealth v. Noll, 443 Pa. Super. 602, 608, 662 A.2d 1123, 1126 (1995) (accident reconstruction expert); Commonwealth v. Mrozek, 441 Pa. Super. 425, 428-31, 657 A.2d 997, 999-1000 (1995) (secretary); Commonwealth v. Hutchinson, 290 Pa. Super. 254, 262-63, 434 A.2d 740, 744-45 (1981) (investigator); In re Grand Jury Proceedings, 762 F.2d 3, 6 n.4 (1st Cir. 1986) (paralegal).

Communications to counsel for a co-defendant with whom there is a joint defense agreement should also be protected. As stated in McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 268 (Mo. Ct. App. 1976):

“[I]t is the function of the third party — his relationship to the client — which determines whether the privilege encompasses communications made by, or in the presence of that third party.”

Where the third party is assisting in the defense of the litigation, either as an agent or employee of the client’s attorney or as counsel for a co-defendant under a joint defense agreement, the only reasonable presumption is that the client intends the communication to be confidential.

As a policy matter, the joint defense doctrine is highly desirable because it allows for greater efficiency in the handling of litigation. Frequently, co-defendants with essentially the same interests must retain separate counsel to avoid potential conflicts over contingent or subsidiary issues in the case. To avoid duplication of efforts, such defendants should be able to pool their resources on matters of common interest. This can be done most effectively if both counsel can attend and participate in interviews with each other’s clients and with employees of their clients. With multi-party cases becoming so frequent, and with litigation costs spiraling upwards — some would say out of control, the courts should not deny defendants the ability to pool their resources and coordinate their efforts on issues of common interest.

This case is a good example of a situation where the defendants have a common interest in defending against the plaintiff’s claims, but they also have a potential conflict that, although theoretical, requires each to retain separate counsel. In this situation it makes a great deal of sense for both defense counsel to work together in providing a joint defense. So long as the defendants and their counsel wish to do so, the courts should not impede their efforts by withdrawing the protection of the attorney-client privilege for statements made in the presence of both counsel.

Professor Wigmore has stated that “four fundamental conditions are recognized as necessary to the establishment of a privilege against the disclosure of communications:

“(1) The communications must originate in a confidence that they will not be disclosed.

“(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

“(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

“(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.” 8 Wigmore, supra at §2285. (emphasis in original)

All four of these conditions exist for communications between attorney and client. These same four conditions continue to exist, to the same degree, where the attorney-client communications are made in the presence of counsel for a co-defendant participating in a joint defense.

Accordingly, I find that the statements made by management employees of Presbyterian to Presbyterian’s counsel, even though in the presence of Ms. Quinby’s counsel, are privileged communications, the disclosure of which cannot be compelled. This ruling does not prevent plaintiff from deposing Presbyterian’s employees in depth to discover all relevant facts within their knowledge. The ruling merely prevents plaintiff from using the presence of counsel for Ms. Quinby, who shares a common interest in the defense of the case, to undermine the important attorney-client privilege.

Regarding plaintiff’s request for production of all written documentation of meetings of these witnesses with counsel, this request is improper not only because it seeks disclosure of confidential attorney-client communications, but also because it seeks trial preparation material in violation of Pa.R.C.P. 4003.3.

Finally, regarding plaintiff’s request to depose defendants’ legal counsel, no legitimate purpose could be served by such depositions, and I decline to sanction this practice.

For all of these reasons, the motion to compel is denied.

TABLE OF AUTHORITIES RECOGNIZING JOINT DEFENSE OR COMMON INTEREST DOCTRINE

State:

Alabama R. Evid. 502; Alaska R. Evid. 503; Arkansas Unif. R. Evid. 502; California Evid. Code §952; Delaware R. Evid. 502; Florida Stat. Ann. §90.502; Hawaii R. Evid. 503; Idaho R. Evid. 502; Kentucky R. Evid. 503; Louisiana Code Evid. Ann. art. 506; Maine R. Evid. 502; Nebraska Rev. Stat. §27-503(2)(c); Nevada Rev. Stat. §49.095; New Hampshire R. Evid. 502; New Mexico R. Evid. 503; North Dakota R. Evid. 502; Oklahoma Stat. tit. 12, §2502; Oregon R. Evid. 503; South Dakota R. Evid. 502; Texas R. Evid. 503; Utah R. Evid. 504; Vermont R. Evid. 502; Wisconsin Stat. Ann. §905.03.

Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000); State v. Cascone, 487 A.2d 186 (Conn. 1985); Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 322 (Ill. 1991); Corll v. Edward D. Jones & Co., 646 N.E.2d 721 (Ind. App. 1995); Lipton Realty, Inc. v. St. Louis Housing Auth., 705 S.W.2d 565 (Mo. Ct. App. 1986); Aetna Cas. and Sur. Co. v. Certain Underwriters at Lloyd’s London, 676 N.Y.S. 2d 731, 732 (N.Y. Sup. Ct. 1998); Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871); State v. Emmanuel, 259 P.2d 845 (Wash. 1953).

Federal:

United States v. Bay State Ambulance and Hosp. Rental Service Inc., 874 F.2d 20 (1st Cir. 1989); United States v. Schwimmer, 892 F.2d 237 (2nd Cir. 1989), cert. de nied, 502 U.S. 810 (1991); Eisenberg v. Gagnon, 766 F.2d 770, 787-88 (3d Cir. 1985), cert. denied, 474 U.S. 946 (1985); In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3rd Cir. 1986); In re Grand Jury Subpoenas, 902 F.2d 244 (4th Cir. 1990); United States v. Stotts, 870 F.2d 288 (5th Cir. 1989), cert. denied, 493 U.S. 861 (1989); United States v. Moss, 9 F.3d 543 (6th Cir. 1993); United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979); John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 555-56 (8th Cir. 1990); Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965); United States v. Lopez, 777 F.2d 543 (10th Cir. 1985); In re Sealed Case, 29 F.3d 715 (D.C. Cir. 1994).

      . Some courts have held that a common interest alone is sufficient to preserve confidentiality; others require the existence of an agreement, express or implied, to conduct a joint defense. See generally, Howard W. Goldstein, The Joint Defense Privilege: Is Common Interest Enough?, N.Y. L.J., Mar. 6, 1997.1 need not decide this issue because there was an express written joint defense agreement in this case. Counsel seeking to assure the confidentiality of disclosures in future cases would be well-advised to prepare such an agreement in advance of the disclosures.

      . “The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” (emphasis added)


author: WALLACH MILLER, J.,

text:
    Mackes v. Grant Homes Inc.

      C.P. of Monroe County,
    no. 7215 Civil 1996.

      David M. Backenstoe, for plaintiff.

      Marvin O. Schwartz, for defendant Grant Homes Inc.

      Joanne Kelhart, for defendant Gilman.
    June 20, 2000
   WALLACH MILLER, J.,

On June 29, 1994, Jane R. Gillman, defendant, entered into an agreement with Grant Homes Inc. for the construction of a residence on her property located at Bush Drived East Stroudsburg, Monroe County, Pennsylvania. She financed this construction with a mortgage that provided the contractor be paid in stages as the building progressed with the final payment to be made upon completion. She did not occupy the premises during construction, and her construction agreement with Grant specifically provided that she could not occupy the premises until all construction was complete. It is not disputed that construction was completed and she took possession of her house on or about January 19, 1995.

Jon C. Mackes, plaintiff, was hired by Grant as a subcontractor to paint the interior of the house. On his first visit to the site on November 16, 1994, he fell from a first-floor doorway onto the basement floor and suffered injuries.

Plaintiff and his wife filed a writ of summons in October of 1996 followed by a complaint in March of 1997 which alleges Ms. Gillman’s negligence caused his injuries. She filed an answer and new matter and has now moved for summary judgment.

Under Pa.R.C.P. 1035.2, summary judgment is appropriate where there have been raised no genuine issues of material fact as to a necessary element of the cause of action. Pa.R.C.P. 1305.2 provides (in part) as follows:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

When considering a motion for summary judgment, we must examine the record in the light most favorable to the non-moving party and resolve all doubts in his favor. Ducjai v. Dennis, 431 Pa. Super. 366, 636 A.2d 1130 (1994); Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists and that he or she is entitled to summary judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979).

Defendant argues that she was not the “possessor” of the land during construction and therefore not legally responsible for plaintiff’s injuries. Plaintiff counters that whether or not she is a possessor is a matter of fact to be determined by a jury and thus summary judgment is inappropriate. Both parties direct us to the Restatement (Second) of Torts §328E which is as follows:

“A possessor of land is

“(a) a person who is in occupation of the land with the intent to control it or

“(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

“(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under clauses (a) and (b).”

Plaintiffs argue that Ms. Gillman was the possessor of land because she owned the property. They further point to the responsibilities she had pursuant to the construction agreement and mortgage which required her to approve payments to the contractor after certain stages of work were complete. They also point us to parts of her deposition where she testified that pursuant to the construction agreement, she did come on the property periodically to inspect the work and that about two weeks before plaintiff fell, she noticed that the steps from the first floor to the basement had not yet been installed. They argue that this put her on notice of a dangerous condition, and she had a duty to notify the plaintiff of it. All of these arguments are based on Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 664 A.2d 139 (1995).

The facts in Blackman revolve around an easement in a parking lot and whether the defendant who held the easement was a possessor of the land who owed a duty to a person who slipped and fell while crossing it. Our Superior Court found under the specific facts of that case, the issue of whether defendant was a “possessor of the land” was a jury question precluding summary judgment. This is not the case here. Clearly, Ms. Gillman does not fit the definition of “possessor of land” as defined in the Restatement. While she is the owner, she did not at any time prior to January of 1995 occupy the land as the Restatement requires. Up to and until the final payment was made by her, the “house” on Bush Drive was no more than an empty lot, then a foundation, then a partially constructed building in various stages, and finally a finished house. It was at no time “occupied” by defendant until after plaintiff’s alleged injury. Finally, defendant was not entitled to immediate occupation as evidenced by her construction agreement. It is abundantly clear when looking at the record, that defendant’s relationship to the land at the time in question does not rise to the level of occupier or possessor as set forth in the Restatement (Second) of Torts §328E.

Even if we found Ms. Gillman was in possession, we believe summary judgment to be appropriate.

Plaintiff’s complaint sounds in negligence. To prevail, plaintiff must prove the elements of a negligence claim which require them to prove that:

“(1) Ms. Gillman owed plaintiff husband a duty

“(2) she breached that duty, and

“(3) he sustained an injury because of her breach of duty.”

In Mentzer v. Ognibene, 408 Pa. Super. 578, 597 A.2d 604 (1991), defendants owned property and hired a contractor to erect a building on it. Plaintiff was a carpenter hired by the contractor who fell through a hole cut in the floor for an internal stairway and sustained injuries, facts nearly identical to our case. Defendants filed a motion for summary judgment similar to the one before us, and the trial court granted it finding that Pennsylvania law imposed no duty on a property owner to protect an employee of an independent contractor or to provide the employee with a reasonably safe place to work.

Our Superior Court cited Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616 (1984) to be controlling. Colloi held:

“A landowner owes a duty to warn an unknowing independent contractor of existing dangerous conditions on the landowner’s premises where such conditions are known or discoverable to the owner.... However, ‘[a]n owner of land who delivers temporary possession of a portion of the land to an independent contractor owes no duty to the employees of the independent contractor with respect to an obviously dangerous condition on that portion of the land in the possession of the contractor.’’ . . . It has also been said that the employer of an independent contractor has no duty to warn the contractor or his employees of a condition that is at least as obvious to them as it is to him. ... In addition, the owner of property is under no duty to protect the employees of an independent contractor from risks arising from or intimately connected with defects or hazards which the contractor has undertaken to repair or which are created by the job contracted.” Id. at 91-92, 481 A.2d at 619. See also, Young v. Eastern Engineering and Elevator Co., 381 Pa. Super. 428, 554 A.2d 77 (1989).

On the basis of these authorities, we have no difficulty in concluding that Ms. Gillman had no responsibility to prevent or warn plaintiff from any danger surrounding the construction site. The allegedly dangerous condition was not a pre-existing defect in the owner’s premises which the owner had a duty to make safe or of which she had to warn. There is no evidence in this record the defendant had the right or exercised any control over the day-to-day construction details or the condition of the work site. This was an allegedly dangerous condition created after the owner relinquished possession and control to the contractor.

For all of the above reasons, we enter the following order.

ORDER

And now, June 20, 2000, defendant Jane R. Gillman’s motion for summary judgment is granted, and she is dismissed from the case. The caption shall be amended accordingly.


author: O’BRIEN, P.J.,

text:
    Walter v. Tunney
    C.P. of Butler County,
    no. 97-10121.

      Richard E. Goldinger, for plaintiffs.

      Thomas A. McDonnell, for defendant Tunney.

      Rebecca Sember and Edward A. Yurcon, for defendant Bieber.

      Lee A. Montgomery, for defendant Nusser.

      John R. Benty, for defendant Commonwealth.
    April 28, 2000
   O’BRIEN, P.J.,

Defendant Edward J. Nusser, defendant Daniel Bieber, and defendant Jack H. Tunney have individually filed motions for summary judgment and/or partial summary judgment in the action brought against them by plaintiffs Christine and Paul Walter.

On October 4,1995, plaintiff Paul Walter was driving his 1930 Ford Street Rod Coupe on State Route 356 in Butler County with his daughter, Emily Walter, riding as a passenger. After passing several slow-moving vehicles, plaintiff Paul Walter attempted to move the automobile back into the non-passing lane of traffic when he lost control of the automobile. The automobile flipped over and landed on the roadway. Emily Walter was killed as a result of this automobile accident.

In their amended complaint, plaintiffs Walter aver defendant Tunney was the original owner of the automobile and the owner who allegedly built and reconstructed the 1930 Ford Street Rod Coupe. Plaintiffs Walter allege defendant Tunney was negligent in constructing the automobile, specifically in using faulty ladder bars, failing to properly weld portions of the automobile, and failing to include emergency braking system cables. Plaintiffs Walter have filed a wrongful death action (Count I) and survival action (Count II) against defendant Tunney.

Plaintiffs Walter have also filed a wrongful death action (Count III) and a survival action (Count IV) against defendant Bieber. Plaintiffs Walter allege defendant Bieber was negligent in performing a state required inspection of the automobile. Specifically, plaintiffs Walter aver defendant Bieber failed to notice the automobile was not equipped with an emergency braking system cable, failed to notice the improperly welded portions of the automobile, failed to notice the faulty ladder bars, and failed to properly perform the inspection in such a manner as to discover these defects in the automobile.

A wrongful death action (Count V) and a survival action (Count VI) have also been filed against defendant Nusser. Plaintiffs Walter allege defendant Nusser’s negligence arose out of his failure to notify plaintiffs Walter of the defects at the time they purchased the automobile from defendant Nusser. Plaintiffs Walter contend defendant Nusser should have known of the existence of the defects and erroneously advised plaintiffs Walter at the time of the purchase that the automobile was in perfect condition.

Finally, plaintiffs Walter had similarly filed a wrongful death action (Count VII) and a survival action (Count VIII) against the Commonwealth of Pennsylvania Bureau of Motor Vehicle Inspection. Plaintiffs Walter alleged defendant the Commonwealth was negligent in certifying defendant Bieber Automotive as a station approved to perform motor vehicle inspections. The court, in a memorandum opinion and order of court dated March 17, 1999, found the doctrine of sovereign immunity barred the claims against defendant, the Commonwealth, and the court granted defendant, the Commonwealth’s, motion for summary judgment.

Defendant Nusser’s Motion for Summary Judgment and/or Partial Summary Judgment

Defendant Nusser has filed a motion for summary judgment and/or partial summary judgment on the grounds plaintiff Paul Walter was contributorily negligent in causing the accident because he was operating the automobile at a speed in excess of the posted speed limit. Defendant Nusser also contends plaintiffs Walter purchased the automobile in an “as is” condition thereby receiving no expressed or implied warranties as to the condition of the automobile. Defendant Nusser contends selling the automobile in an “as is” condition provides him with an absolute defense and a total release and/or waiver of liability for the injuries sustained in the accident.

The Supreme Court of Pennsylvania has stated in instances where a plaintiff has purchased an item pursuant to a contract containing the language “as is,” the defendant seller may still be held liable despite the provisions of the written contract if the defendant seller procured the sale and execution of the contract by fraud. See Culbertson v. Ansell, 303 Pa. 46, 153 A. 900 (1931).

The Superior Court has further remarked that the courts are reluctant to place the harshness of risk of loss entirely on an inexperienced consumer who has purchased goods pursuant to an “as is” sales agreement. See PBS Coals Inc. v. Burnham Coal Co., 384 Pa. Super. 323, 558 A.2d 562 (1989).

In the present action, the written contract for the sale/ purchase of the 1930 Ford Coupe is a handwritten note dated June 16, 1995, reading as follows:

“I have bought a 1930 Ford car on the above date from Ed Nusser and it is in as-is condition with no warranty implied or given.

“s/ Paul R. Walter”

Plaintiffs Walter’s allegations are that the automobile was negligently reconstructed, specifically faulty ladder bars were used, portions of the automobile were not properly welded, and emergency braking system cables were not installed. Plaintiffs Walter contend defendant Nusser was negligent in failing to inform plaintiffs Walter of these defects at the time plaintiffs purchased the automobile. Plaintiffs Walter also aver defendant Nusser informed plaintiffs Walter at the time of the purchase that the automobile was in perfect condition.

The court finds material issues of fact exist as to whether or not defendant Nusser knew, at the time of selling the automobile, that the automobile contained the alleged defects. Material issues of fact also exist as to what representations defendant Nusser made to plaintiffs Walter concerning the condition of the automobile, whether defendant Nusser represented the automobile as being in “perfect condition,” whether these representations amounted to fraud, based upon defendant Nusser’s knowledge of the condition of the automobile, and whether plaintiffs Walter were induced into purchasing the automobile based upon these representations.

Defendant Nusser also argues plaintiff Paul Walter was operating the automobile at a speed in excess of the legal limit and that this excessive speed contributed to the accident. Plaintiffs Walter argue the question of whether plaintiff Paul Walter was speeding is independent of the cause of the accident. Plaintiffs Walter contend the accident was caused in whole by the faulty ladder bar, defective welding and lack of an emergency brake.

In reviewing the deposition testimony of several witnesses to the accident and the officer who performed accident reconstruction tests, the court finds there is differences in opinion as to the exact speed the automobile was traveling. The allegations of speed range from “going fast” to a calculated “79 miles per hour.” The speed limit in the area of the accident was testified to as being between 35 and 40 miles per hour. One of the witnesses, David P. Miller, testified the automobile appeared to be moving at the speed limit, but accelerated as it proceeded up an incline in the road.

The court finds there is a material fact as to the exact speed the automobile was traveling at the time of the accident. The court also finds issues exist as to whether plaintiff Paul Walter was operating the automobile at a speed that contributed to the cause of the accident or whether the accident was solely the result of the alleged defects in the automobile.

Therefore, the court finds defendant Nusser is not entitled to a grant of summary judgment or partial summary judgment.

Defendant Bieber’s Motion for Summary Judgment and/or Partial Summary Judgment

Defendant Bieber contends he is entitled to summary judgment on the grounds section 4702.1 of title 75 relieves inspection stations from liability resulting from the failure or malfunction of a vehicle unless negligence on the part of the inspection station can be shown. In the alternative, defendant Bieber contends he is entitled to partial summary judgment on the grounds plaintiffs Walter were contributorily negligent by operating the vehicle at a speed in excess of the lawful, posted speed limit.

Section 4702.1 of title 75 states as follows:

“(a) General rule. — An inspection conducted pursuant to section 4702(a) (relating to annual inspection) shall not be construed as a guaranty of the safety of any vehicle and neither the official inspection station issuing the certificate of inspection nor the official inspection mechanic performing the inspection shall be liable to the owner or occupants of any inspected vehicle for any damages caused by the failure or malfunction of that vehicle... unless it can be shown by a preponderance of the evidence that the failure was caused by the negligence of the inspection station or mechanic.”

See 75 Pa.C.S. §4702.1. Section 4702(a) of title 75 provides that the Pennsylvania Department of Transportation shall establish system for annual safety inspection of motor vehicles. See 75 Pa.C.S. §4702(a). Section 4702(c) of title 75 further provides that PennDOT shall prescribe special inspection criteria for vehicles registered as street rods. See 75 Pa.C.S. §4702(c).

In the present action, plaintiffs Walter allege defendant Bieber was negligent in performing the inspection of the automobile. Specifically, plaintiffs Walter allege defendant Bieber failed to perform the inspection in such a way as to detect the lack of an emergency brake cable, notice the defective welded portions of the automobile, and notice the presence of weak ladder bars.

The Vehicle Equipment and Inspection Regulations prescribed by PennDOT state the inspection station and mechanic’s duties include, inter alia, to inspect the vehicle frame and reject the vehicle if the “frame components are missing, cracked, rotted or broken, or are in deteriorated or dangerous condition.”

Defendant Bieber stated in his deposition an inspection of the automobile was performed and the frame was examined for defective and/or faulty portions. Defendant Bieber stated he did not find any cracks or damaged areas in the frame of the automobile that would require repair and/or replacement before the automobile could be passed for state inspection.

Experts for plaintiffs Walter indicated in their reports that cracks and damage were present in the frame of the automobile. Daniel R. Aerni, a professional engineer, concluded after examining the automobile that in his opinion the cracks and damage to the frame were present at the time of the state inspection and that while difficult to detect, the detection of these cracks and damage by the inspection station would not have been impossible.

The court finds there are material facts existing as to whether the cracks and damage to the frame of the automobile were present at the time of the state inspection, and whether the cracks and damage were significant enough to be readily detected in a routine inspection by defendant Bieber. The court further finds material facts exist as to whether defendant Bieber, if the cracks and damage are shown to have been present and detectable at the time of inspection, failed to follow the requirements for vehicle inspection prescribed by PennDOT and in so doing negligently failed to detect these cracks and damage.

As discussed above, the court finds material issues exist as to whether plaintiff Paul Walter was operating the automobile at a speed in excess of the speed limit, and whether the speed at which he was operating the vehicle contributed to the cause of the accident or whether the accident was due solely to the alleged defects in the frame of the automobile.

Therefore, the court finds defendant Bieber is not entitled to summary judgment or partial summary judgment.

Defendant Tunney’s Motion for Summary Judgment and/or Partial Summary Judgment

Defendant Tunney, the original owner of the automobile and the individual who reconstructed the automobile, seeks partial summary judgment on the grounds plaintiff Walter was operating the automobile in a careless, negligent, and reckless manner at the time of the accident. Defendant Tunney contends he is entitled to summary judgment on the basis that he performed limited work on the automobile, specifically replacing the radiator, engine, and transmission.

In their complaint, plaintiffs Walter contend defendant Tunney was responsible for the reconstruction work done on the automobile, specifically the work done pertaining to the ladder bar, the welding of the frame, and the emergency braking system. Defendant Tunney argues he purchased the automobile from Michael Katrucka in October 1988. Defendant Tunney contends the only work he performed on the automobile was work relating to the radiator, engine, and transmission. In his affidavit, defendant Tunney states he did not perform welding on the rear suspension or ladder bars of the automobile. Defendant Tunney also avers he did not perform mechanical work relating to the emergency braking system.

The court finds issues exist as to who performed the alterations on the automobile in an allegedly defective manner. Plaintiffs Walter contend defendant Tunney originally made the modification. Defendant Tunney contends the modifications and reconstruction of the automobile were performed by the previous owner, Michael Katrucka. Defendant Tunney does, however, admit he performed some work on the automobile relating to the radiator, engine, and transmission.

As previously discussed, there are material questions of fact as to plaintiff Paul Walter’s operation of the automobile at the time of the accident and whether he was operating the automobile at an excessive speed, whether his operation of the automobile amounted to careless, negligent, reckless operation, and whether his operation of the automobile contributed in any part to the accident.

Therefore, the court finds defendant Tunney is not entitled to summary judgment or partial summary judgment.

ORDER

And now, April 28, 2000, the court hereby orders:

(1) Defendant Nusser’s motion for summary judgment and/or partial summary judgment is denied.

(2) Defendant Bieber’s motion for summary judgment and/or partial summary judgment is denied.

(3) Defendant Tunney’s motion for summary judgment and/or partial summary judgment is denied.

The parties are to proceed in accordance with the Pennsylvania Rules of Civil Procedure.


author: FRIEDMAN,

text:
    Klebak v. PennDOT

      C.P. of Allegheny County,
    no GD 93-8064.

      Samuel P. Kamin and Samuel R. Greco, for plaintiffs.

      Michael J. Creighton, for defendant.
    July 26, 2000
   FRIEDMAN,

This case is governed by the law of eminent domain. Upon petition of defendant Commonwealth of Pennsylvania, Department of Transportation, a rule was issued upon plaintiffs to show cause why the viewers’ report setting a value of $500 upon their interest in certain real estate should not be confirmed. Because there appeared to the court to be a mixed question of fact and law, a position strongly disputed by PennDOT, it was decided to take evidence, after which there was again argument on the mle.

FACTUAL BACKGROUND

It is undisputed that PennDOT originally condemned only an easement over plaintiffs’ property in August 1971. (Stipulations of fact no. I.) At that time the legislature had not yet given PennDOT the authority to condemn underlying fee interests. (This did not occur until 1979.) The purpose of the 1971 easement was for a proposed highway project which was never begun. (Stipulations of fact no. 4.)

In May 1989, almost 18 years after the condemnation or the easement over plaintiffs’ property, PennDOT met with an automobile dealer regarding the disposition of the Route 48 parcels, including plaintiffs’, over which its unused easement ran. (Stipulations of fact no. 5.) The dealer subsequently notified PennDOT of his interest in relocating his automobile dealership to those Route 48 parcels. (Stipulations of fact no. 6.) In an internal memorandum dated September 28, 1989, PennDOT indicated it had “approved the leasing option for Pa. 48 properties that are being considered for development.” Another internal memorandum dated October 18,1989, instructed a PennDOT employee to “[sjtart buying underlying fee in priority order for leases. We need fee because will [sic] end up selling the property later.” (Stipulations of fact no. 10.)

The property in question was included in a “priority appraisal” ordered by PennDOT. (Stipulations of fact exhibit I, p. 3.) The appraisal was based on the assumption that PennDOT owned or would acquire the underlying fees. (Stipulations of fact, exhibit J, p. 1.) The “priority” was needed because the auto dealership had a deadline of January 1, 1990 to expand or lose its franchise. (Stipulations of fact, exhibit I, p. 3.) The fair market value of the 11.95 acres total that PennDOT planned to lease to the auto dealership was put at $145,000 by one appraiser as of November 30, 1989, and at $167,000 by another appraiser as of a week later, December 5,1989.

On March 23, 1990, PennDOT filed a declaration of taking of the plaintiffs’ reversionary interest in the underlying fee. (Stipulations of fact no. 17.) The property was then sold to the auto dealership by quit claim deed on September 21, 1990 for $176,600. (Stipulations of fact no. 22.)

DISCUSSION

The legal issue raised by the stipulated facts, especially those referred to above, is whether or not Penn-DOT’s abandonment of the easement was “imminent” when the underlying fee was condemned. PennDOT argues that because it did not formally vacate the easement, the undisputed abandonment could not, as a matter of law, have been “Imminent.” PennDOT also argues that the board of viewers awarded “nominal” damages, despite the fact that the language of the award refers to “general” damages. “General” is not synonymous with “nominal.” Black’s Law Dictionary defines the terms as follows:

“General damages. Such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct, and proximate result, or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately, and without reference to the special character, condition, or circumstances of the plaintiff.

“Nominal damages. Nominal damages are a trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant’s duty, or in cases where, although there has been a real injury, the plaintiff’s evidence entirely fails to show its amount.”

CONCLUSION

The court has concluded as a matter of law that abandonment was imminent given the facts of this case. The law applicable to highway easements at the time of the original condemnation in 1971 contemplated that the Klebaks would have the opportunity to use the property if PennDOT abandoned its plans to use the easement for highway purposes. In addition, the Klebaks could have used the underlying fee which they always owned for purposes not inconsistent with PennDOT’s highway purposes: for example, they might have been able to sell the mineral rights, subject only (one hopes) to PennDOT’s right to support.

PennDOT’s argument is that it must always win cases such as these as a matter of law. That cannot be the case, however, or the legislature and the appellate courts would not have provided an opportunity for persons aggrieved to be heard. If someone is entitled to be heard it is because, under a certain factual scenario, he may be entitled to relief. Consequently, this aspect of PennDOT’s argument is without merit. If the legislature wanted all pre-1979 easement condemnations to be treated as though they were of the entire fee it would have so stated. If the appellate courts felt the law is as clear as PennDOT contends they would not be a party to the false hopes created by the right to have a board of view set a value on the fee. If all anyone is ever entitled to for condemnation of an underlying fee is nominal damages, that would have been made crystal clear one way or the other.

The court concludes that PennDOT’s conduct indicated it had effectively abandoned the easement before it had formally done so. Plaintiffs are entitled to have a jury decide whether their share of the fair market value of the 11.95 acres is greater than the $500 general damages determined by the board of view. The rule must therefore be discharged, PennDOT’s petition denied, and plaintiffs’ trial on the amount of damages allowed to proceed before a jury.

ORDER

And now, to-wit, July 26, 2000, the rule issued upon plaintiffs is discharged and defendant’s petition to confirm the viewers’ award is denied, and the question of the correct value of plaintiffs’ interest in the underlying fee is to be submitted to a jury. See memorandum in support of order filed herewith [not published here].

      . Defendant incorrectly characterizes this as being “totally condemned” in its brief in support Commonwealth’s [sic] rule to show cause etc., p. 1.

      . For an article on long-wall mining under interstate highways, see the Pittsburgh Post-Gazette, May 18, 2000, p. 1.