author: WOGAN, J.,

text:
    City of Philadelphia v. Boris

      Lawrence Doherty, for plaintiff.

      Simon J. Rosen, for defendant.
    January 7, 2004
   WOGAN, J.,

Defendant, John A. Boris, Esquire, appeals this court’s judgment of sentence awarding restitution in the amount of $8,000 to the City of Philadelphia to recoup attorney fees that were mistakenly sent to defendant. Defendant makes numerous claims contending that this court erred in this decision. No relief is due.

BACKGROUND

In April 1995, city worker Russell Stone, hereinafter referred to as claimant, represented by attorney John A. Boris, hereinafter referred to as defendant, filed a claim petition against claimant’s employer, the City of Philadelphia, hereinafter referred to as plaintiff, alleging a work-related shoulder injury occurring on September 16, 1994. At a March 7,1997 hearing, before Workers’ Compensation Judge Alan R. Gilbert, the parties submitted a stipulation of facts to resolve all outstanding issues in the case. On March 11, 1997, Judge Gilbert approved the stipulation including attorney’s fees.

FACTUAL FINDINGS

In January 2001, claimant retained new counsel, Attorney Jay Elliott Shor, Esquire, to negotiate a final settlement of his entitlement to future workers’ compensation benefits for the 1994 injury. On February 15, 2001, CompServices Inc. called defendant, notified him that claimant had retained new counsel and provided him with attorney Shor’s name, address, and telephone number. Defendant never advised CompServices Inc. that he believed that he had a claim in any future petitions by claimant. (N.T. 4/24/03, vol. I, pp. 34-35.)

Attorney Shor ultimately negotiated a final settlement between claimant and plaintiff, and filed a “Petition to seek approval of a compromise and release agreement” with the Bureau of Workers’ Compensation. At a hearing on June 29,2001, Judge Gilbert heard claimant’s testimony, presented by Attorney Shor, which included claimant’s affirmation of his contingent fee agreement with Shor. (N. T. 6/29/01, pp. 3-8, plaintiff’s exhibit H.) The fee agreement provided for a fee of 20 percent of the $40,000 final settlement, $8,000. Judge Gilbert approved the compromise and release agreement, which incorporated claimant’s written fee agreement with Attorney Shor, and issued a single page bench order for the payment of the settlement monies to claimant and Shor.

Plaintiff forwarded Judge Gilbert’s order to its third-party adjuster, CompServices Inc., for payment to Attorney Shor in accord with the order. On July 23, 2001, Angela Cruz, the adjuster from CompServices Inc., mistakenly sent the check to defendant, claimant’s former attorney, rather than to Mr. Shor. Upon receipt of the $8,000 check, defendant deposited the check into his business account.

When Shor did not receive his fee, he contacted CompServices Inc. CompServices Inc. then discovered that it had mistakenly sent the fee check to defendant. It immediately sent Shor another check in order to comply with Judge Gilbert’s order. Ms. Cruz then contacted defendant, explained the mistake, and asked him to return the money. (N.T. 4/24/03, vol. I, pp. 33-35.) Defendant refused, claiming that he had spent a lot of time and effort trying to settle the case for claimant (id. at 35). Then, counsel for plaintiff City of Philadelphia contacted defendant by phone, explained the origin of the $8,000 check, and the mistake by the adjuster. At defendant’s request, on September 21, 2001, counsel for plaintiff forwarded defendant all relevant documentation verifying Judge Gilbert’s hearing and order, and a copy of the judge’s final decision dated September 6, 2001. (N.T. 4/ 24/03, vol. I, p. 38.) Defendant confirmed receipt of the documentation, however, he again refused to return the money.

PROCEDURAL POSTURE

Plaintiff, thereafter, filed a complaint in municipal court seeking restitution and attorney’s fees and costs from defendant, raising one issue: whether an insurer is entitled to the restitution of money sent to an individual solely as a result of an insurance adjuster’s mistake of fact as to who was the payee designated by the order of a workers’ compensation judge. Defendant raised a preliminary objection that the municipal court did not have jurisdiction to hear the case. Plaintiff replied. The lower court dismissed defendant’s objection. Trial was set for February 5, 2002. Following a hearing, the municipal court awarded full restitution to plaintiff. Defendant appealed to the court of common pleas.

Plaintiff filed its complaint in the court of common pleas on March 25, 2002. On April 15, 2002, defendant filed preliminary objections, and a motion to dismiss for lack of jurisdiction. On May 15, 2002, plaintiff filed an answer and memorandum of law. On May 29, 2002, defendant’s preliminary objections and motion to dismiss were denied and the matter was ordered to remain in common pleas court.

On June 12,2002, defendant filed an answer to plaintiff’s complaint and raised a new matter. Plaintiff filed a response to defendant’s new matter on June 27, 2002.

On July 23,2002, a compulsory arbitration panel heard plaintiff’s case for restitution. Defendant’s attorney, Simon J. Rosen, Esquire, submitted an “arbitration memorandum of law.” The panel found for plaintiff City of Philadelphia and against defendant in the amount of $8,000. Defendant appealed the award of the arbitrators to this court.

After a three-day bench trial on April 24, April 25, and May 12,2003, this court returned a verdict for plaintiff City of Philadelphia for $8,000, but denied attorney’s fees and costs to plaintiff.

On May 19, 2003, defendant filed a motion for post-trial relief for a new trial, and/or a motion for judgment n.o.v. Defendant also filed a “request for court en banc” to hear the post-trial motions. Plaintiff filed a motion for post-trial relief on May 21, 2003, arguing only that it should have been awarded counsel fees and costs under 42 Pa.C.S. §2503. This court, on or about September 26,2003, denied all post-trial motions. Both parties filed a notice of appeal on October 23, 2003. Statements of matters complained of on appeal were ordered on October 29, 2003, and were filed by counsel within 14 days of the order.

Defendant now argues seven issues before this court, namely that: (1) plaintiff’s attorney prejudiced the court by repeatedly mentioning that defendant was unsuccessful at the municipal court and arbitration level; (2) defendant demonstrated a complete affirmative defense to plaintiff’s restitution claim, in that he provided value to plaintiff and had no knowledge the fee was mistakenly sent to him; (3) the common pleas court lacked subject matter jurisdiction and the Bureau of Workers’ Compensation possessed exclusive subject matter jurisdiction; (4) the verdict was improper due to stare decisis and collateral estoppel because Workers’ Compensation Judge Gilbert’s 1997 order awarding ongoing attorney’s fees to defendant had never been vacated, and even if determined to be vacated, no notice of any subsequent order was ever served on defendant to make the subsequent order valid and binding; (5) the verdict was erroneous because plaintiff failed to exhaust his administrative remedies, to wit, file a review petition before the Bureau of Workers’ Compensation prior to instituting the suit against him; (6) the verdict was improper because plaintiff’s claim is barred by the doctrine of unclean hands where plaintiff concealed the compromise and release hearing from defendant, that the settlement was reached, and that his checks were going to be stopped; and (7) it was reversible error to permit former Workers’ Compensation Judge Carol Mickey and Workers’ Compensation Appeal Board Commissioner Harold Fergus to testify regarding jurisdiction and restitution issues because both issues were outside their scope of expertise (defendant’s 1925(b) statement). This court finds all of defendant’s claims meritless.

DISCUSSION

Defendant first argues that this court should grant a new trial because plaintiff repeatedly mentioned during the trial that defendant had been unsuccessful in municipal court and at the arbitration hearing. No relief is due.

When determining whether to grant or deny a request for a new trial, the trial court performs a two-prong analysis. Harman ex rel. Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000). First, the trial court must decide whether one or more mistakes involving factual, legal, or discretionary matters occurred at trial. Id. If the court concludes that a mistake or mistakes occurred, it must then determine whether the mistake was a sufficient basis for granting a new trial. Id. “A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she suffered [actual] prejudice from the [alleged] mistake.” Id. (emphasis added) If the error is harmless, the court will deny a new trial. Id. Moreover, any concern that a prejudicial comment or comments may prevent a fair trial in the minds of a jury is lessened, if not eliminated, when a trial judge sits as finder of fact. Commonwealth v. Stantz, 353 Pa. Super. 95, 104, 509 A.2d 351, 356 (1986). Finally, absent a clear abuse of discretion by the trial court in its decision to deny a new trial, appellate courts may not interfere with the ruling. Morrison v. Commonwealth, Department of Public Welfare, 538 Pa. 122, 133-34, 646 A.2d 565, 570 (1994).

Applying the law to this case, although it was arguably improper for plaintiff to mention that it had previously been successful before an arbitration panel and in municipal court, this court was fully capable of setting aside any reference to past rulings, and rendered a decision based on the merits of the case. The evidence at trial overwhelmingly supported an award to plaintiff, therefore, any improper mention of prior litigation was harmless error, and therefore, no new trial is warranted.

Defendant also argues that the verdict was against the weight of the evidence, contending that he demonstrated a complete affirmative defense to plaintiff’s restitution claim, in that he provided value to claimant’s settlement, and had no knowledge of, nor did he induce, the mistake that led to his receipt of the disputed funds. This claim must fail.

As both parties agreed, Pennsylvania courts look to the Restatement of Law on Restitution as the source of authority in determining whether a right to restitution exists. Lucey v. W.C.A.B. (VY-CAL Plastics PMA Group), 557 Pa. 272, 732 A.2d 1201 (1999). The Restatement reads as follows:

“Restatement (First) Of Restitution §22. Mistake as to payee. A person who has paid money to or for the account of another not intended by him, is entitled to restitution from the payee or from the beneficiary of the payment, unless the payee or beneficiary is protected as a contracting party or bona fide purchaser.

“Comment:

“(a) The rule stated in this section applies where a person ... is mistaken as to the person to whom or to. whose credit he makes the payment. The mistake may arise in a great variety of situations .... The payment may be caused by a misdirection of the payor to an agent or by the misunderstanding of an agent.

“Illustrations:

“(3) A tells his bookkeeper to mail a check to B. The bookkeeper misunderstands the direction and mails the check to C. A is entitled to restitution from C.” Restatement (First) of Restitution §22 cmt. A, illus. 3 (1937).

Here, the $8,000 attorney fee check was sent to defendant due to a mistake by the adjuster, Angela Cruz of CompServices Inc., whose intention it was to comply with Judge Gilbert’s order awarding the fee to Jay E. Shor, Esquire, who represented claimant during all aspects of his compromise and release agreement with the City of Philadelphia. This situation falls squarely within the above-cited Restatement, which entitles plaintiff to restitution.

Nonetheless, defendant cites comment C of the above Restatement that “[restitution is not granted if the payee has given or promised value without reason to know of the mistake. Thus if a person enters into a binding contract with another mistaking him for a third and pays him money in accordance with the conditions of the contract, the payor is not entitled to restitution.” Defendant’s claim, however, does not fall under the exclusion in comment C. To begin, no contract was entered into between defendant and plaintiff City of Philadelphia. Furthermore, defendant provided no value to the compromise and release settlement between plaintiff and claimant. (4/25/03, vol. I,'pp. 30-31.) Defendant was no longer employed as counsel for claimant as of at least February 15,2001, when he was notified by CompServices Inc. that they had been informed that claimant retained new counsel. (N.T. 4/24/ 03, vol. I, pp. 33-34.) The last letter sent by defendant on behalf of claimant was in January 19,2001. (Id. at 50.) In fact, claimant had been asking defendant to reach a settlement since immediately after the 1997 claim petition was settled; defendant, however was never able to reach any agreement with plaintiff. (N.T. 4/25/03, vol. II, pp. 169-72.) After February, 2001, defendant had no further conversations with claimant. (Id. at 180.) Finally, defendant testified that he disapproved of the compromise and release settlement reached by Attorney Shor, and would have advised claimant not to take the settlement had he been present at the compromise and release hearing. (Id. at 152.) Taking into consideration all of the above testimony at trial, this court found that defendant had not, as he claimed, “provided value” to the settlement, and therefore, could not escape his payment of restitution to plaintiff. Because he provided no value to the settlement, it is of no issue whether defendant induced or had knowledge of the mistakenly sent payment.

Defendant next argues that this court lacked subject matter jurisdiction and that the Bureau of Workers’ Compensation possessed exclusive subject matter jurisdiction to hear this case. He is wrong.

Again, the only question raised in the plaintiff’s complaint was whether an insurer is entitled to restitution of monies sent to an individual solely as a result of an insurance adjuster’s mistake of fact as to who was the payee designated by the order of a workers’ compensation judge? The subject matter was a claim in equity for restitution, not a Workers’ Compensation matter. The attorney’s fee was sent to defendant as result of the adjuster’s mistake, not pursuant to an order by Workers’ Compensation Judge Gilbert. Indeed, at trial, plaintiff presented testimony of two experts in workers’ compensation, Commissioner Harold Fergus of the Workers’ Compensation Appeal Board, and workers’ compensation Attorney Carol Mickey. Commissioner Fergus testified that, in a restitution claim between the City of Philadelphia and an attorney regarding a mistakenly sent attorney fee, the Workers’ Compensation Appeal Board would have no jurisdiction. (N.T. 4/24/03, vol. I, p. 87.) Similarly, Attorney Mickey testified that there is no remedy in the Workers’ Compensation Act where an adjuster mistakenly sends money to an attorney; the Bureau of Workers’ Compensation would not take jurisdiction over the matter. (N.T. 4/25/03, vol. I, pp. 23-24, 27.) Moreover, defendant testified that he had filed a similar restitution claim in April 1997, contesting attorney’s fees that were mistakenly sent to his client’s prior counsel; he filed his appeal in municipal court to recover the fee, and therefore, would have appealed to common pleas court if he were not successful in his claim. (4/25/03, vol. II, pp. 228-36.) Defendant’s own actions demonstrated that the restitution claim was also properly before this court. The subject matter in this case, restitution, is governed by the Restatement of Law on Restitution, and therefore, the case was properly heard before a court of equity in Philadelphia — the municipal court, and then properly appealed to the court of common pleas. See Lucey v. W.C.A.B. (VY-CAL Plastics PMA Group), 557 Pa. 272, 732 A.2d 1201 (1999) (restitution case heard before court of equity); and Wilcox v. Evans, 190 Pa. Super. 166,153 A.2d 817 (1959) (in Philadelphia County the municipal court possessed equity jurisdiction).

Defendant also maintains that since, in 1997 Judge Gilbert granted him 20 percent of an “outgoing benefit” to claimant, and the order was never vacated or rescinded, he is entitled to the $8,000 payment that was mistakenly sent to him due to stare decisis and collateral estoppel. Nonetheless, he argues, if the order is determined to be vacated, the verdict was still improper because no notice of any subsequent order was ever served on defendant, which he contends was a requirement necessary to make the subsequent order valid and binding on defendant. Defendant’s beliefs are not supported by workers’ compensation law.

Again, plaintiff presented expert testimony that no prior order entitled defendant to receive counsel fees on June 29,2001, to future workers’ compensation benefits, even if the new order did not explicitly vacate the 1997 order, and such procedure was, and is, the customary practice of the Workers’ Compensation Board. (N.T. 4/ 24/03, vol. I, pp. 82-86, 110; 4/25/03, vol. I, pp. 20-23.) Attorney Carol Mickey testified that the 1997 compensation case with defendant as counsel, and the 2001 case where Attorney Shor was counsel, were different cases. She stated that the general practice in workers’ compensation is a second order rescinds the first order for attorney’s fees. (N.T. 4/25/03, vol. I, pp. 20-21.) Also, Commissioner Harold Fergus of the Workers’ Compensation Appeal Board testified that, in his opinion, no lawyer would claim that the 1997 fee agreement survived 2001 fee agreement. (N.T. 4/24/03, vol. I, p. 108, pp. 85-90.) Finally, testimony was taken that claimants often hire new counsel to settle their entitlements to benefits won by earlier counsel, and for this to take place, new counsel need only present an attorney fee agreement with the petition to a workers’ compensation judge for approval, and an order will be issued to redirect the attorney fee to new counsel. (N.T. 4/25/03, vol. I, p. 21.) No notice of the new order is required to be sent to prior counsel. (N.T. 4/24/03, vol. I, p. 72; 4/25/03, vol. I, pp. 34-35.)

Defendant also argues that the verdict is improper because plaintiff’s claim to restitution is barred by the doctrine of unclean hands. Tang v. Hwang, 799 F. Supp. 499 (USDC, E.D. Pa. 1992) (doctrine of “unclean hands,” is where a claim is barred if the party seeking affirmative relief is guilty of conduct involving fraud or bad faith directly related to matter in issue that injures the other party and affects the balance of equities between the litigants); Lucey v. W.C.A.B., 557 Pa. 272, 732 A.2d 1201 (1999). He claims that the plaintiff intentionally failed to notify him of the settlement because the city did not want him to jeopardize the settlement by objecting to it; if the settlement went through, it acted to halt all future liability from plaintiff. John J. Kane Glen Hazel Re gional Center v. W.C.A.B. (Rust), 614 A.2d 1165 (Pa. Commw. 1996). Defendant’s claim is meritless; the plaintiff City of Philadelphia had no obligation to notify defendant of any hearing.

Defendant received notice that he was no longer the attorney for claimant. (N.T. 4/24/03, vol. I, p. 34.) He was, therefore, also “on notice” that his name would no longer be on any notice of hearing for a compromise and release agreement. Indeed, defendant did not belong at a settlement where he was neither a party nor the attorney for a party. Neither the workers’ compensation judge nor plaintiff were required to notify him when he was not a party to the hearing. (N.T. 4/24/03, vol. I, p. 72; 4/25/03, vol. I, p. 35.) There was no wrongdoing by claimant involving fraud or bad faith.

Finally, defendant’s last claim is that it was reversible error for the court to permit former Workers’ Compensation Judge Carol Mickey and Workers’ Compensation Appeal Board Commissioner Harold Fergus to testify regarding jurisdiction and restitution issues, claiming both issues were outside their scope of expertise. This claim is false.

Determining whether a witness may testify as an exert is a matter within the sound discretion of the trial court, whose decision will be reversed only for a clear abuse of discretion. Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997). In order to qualify as an expert in a given field, a witness must possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. Bennett v. Graham, 552 Pa. 205, 209, 714 A.2d 393, 395 (1998). In Pennsylvania, the standard for the qualification of an expert is a liberal one — if a witness has any reasonable pretension to specialized knowledge on the subject under investigation, he may testify and the weight to be given to his evidence is for the finder of fact. Whittington v. Episcopal Hosp., 768 A.2d 1144 (Pa. Super. 2001); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). Here, workers’ compensation attorney, Carol Mickey, a workers’ compensation attorney since 1981, and workers’ compensation judge from 1988 to 1995, and Commissioner Fergus, a member of the Workers’ Compensation Appeal Board for over 22 years, testified regarding the practice and procedure in workers’ compensation cases. Their experience qualified them to testify to these matters before this court, and their testimony aided the court in its decision-making process. There was no error in admitting their testimony.

CONCLUSION

For all of the above reasons, this court determined that defendant was liable to plaintiff for the $8,000 attorney fee check that was mistakenly sent to him. Judgment for plaintiff should, therefore, stand.

      . Judge Gilbert awarded defendant an attorney fee of 20 percent of claimant’s total disability wage benefits. Defendant received biweekly checks from CompServices Inc., plaintiff’s third-party adjuster. In total, defendant received $15,015 in attorney’s fees in biweekly payments of $105 from March 9, 1995 through June 28, 2001.

      . Defendant had communicated with CompServices Inc. up until January 19, 2001, to try to settle claimant’s case. (N.T. 4/24/03, vol. I, p. 50.)

      . The bureau assigned the petition to Judge Alan R. Gilbert and notified the parties and their attorneys of a hearing date of June 29, 2001; because defendant was not listed as claimant’s attorney, he was not notified of the hearing. (N.T. 4/24/03, vol. I, p. 72.)

      . A full and final decision was not issued until September 6, 2001.

      . In his brief, defendant argued the same issues he now raises in this appeal.

      . 42 Pa.C.S. §2503 states that counsel fees may be awarded to plaintiff if a defendant made frivolous bad faith defenses and appeals which had no reasonable possibility of success under the law, but were pursued for the purpose of obstructing and delaying restitution.

      . In the case presented before this court, defendant could not raise the defense of “entitlement” under 34 Pa. Code §121.24 (approval of attorney’s fees by workers’ compensation judge or board) since he has not established entitlement as a matter of law before the Bureau of Workers’ Compensation. Indeed, as defendant himself testified, if he wanted to contest the 2001 fee to Attorney Shor, he was mandated to litigate that matter before the Bureau of Workers’ Compensation. (N.T. day 2, vol. II, pp. 216-24.) Defendant was aware of the award of attorney’s fees shortly after Judge Gilbert’s full and final decision on September 6, 2001. He could have appealed the decision claiming his entitlement at that time. (N.T. 4/25/03, vol. I, p. 93; 4/25/03, vol. II, pp. 222-23.) He took no such action because he had no standing to contest the fees to Attorney Shor. (N.T. 4/25/03, vol. I, p. 26.)

      . Defendant further argues that plaintiff was required by law to exhaust his administrative remedies, to wit, to file a review petition before the Bureau of Workers’ Compensation prior to instituting the suit against defendant. He believes that plaintiff should have been required to file a petition before Judge Gilbert seeking him to declare his prior order vacated. This claim is absurd because plaintiff does not seek to have Judge Gilbert’s order reversed. The judge properly awarded the attorney fee to Mr. Shor. Plaintiff’s adjuster simply sent the wrong attorney the fee. Therefore, there would have been no remedy before Judge Gilbert because the order was correct.
      Furthermore, defendant’s reliance on Larry Pitt & Associates v. Long, 716 A.2d 695 (Pa. Commw. 1998), for his argument that plaintiff was required to proceed before the workers’ compensation judge is misplaced. In the Pitt case, counsel Pitt sought to recover attorney’s fees from a claimant who used Pitt’s services, then proceeded pro se in gaining workers’ compensation benefits before a fee agreement was signed and without presenting a fee agreement to the WCJ (workers’ compensation judge) to order. Larry Pitt & Associates v. Long, 716 A.2d 695, 697 (Pa. Commw. 1998). Pitt filed suit in numerous forums. The court held that, since there was an appeal pending in regard to the fee dispute before the Workers’ Compensation Appeal Board, even though it was not the proper forum for a fee dispute where a client discharges his attorney before the attorney files the fee agreement, the attorney was required to allow the ruling by the board before proceeding before the court of common pleas. Id. at 699. The court went on to state that the WCJ and board’s authority over fees is limited to those fees submitted to it and approved by it while the attorney-client relationships still exists. Id. Again, defendant was aware of the fees awarded to Shor and never took any action before the board. He cannot now attempt to litigate his fee claim of “entitlement” before this court.
      Defendant also claimed during trial that he and Shor had entered into an agreement to divide the attorney fee for the compromise and release agreement. (Day 2, vol. II, p. 146.) He did not, however, produce any paperwork or testimony evidencing this agreement. Nonetheless, this would have been a dispute between Attorney Shor and defendant, not defendant and the City of Philadelphia.

      . Defendant claims that, under Pennsylvania law, an order must be abided by until reversed or vacated, citing Moore v. W.C.A.B. (Reading Paperboard), 676 A.2d 690, 694 (Pa. Commw. 1996) (employer obliged to follow orders until they are reversed). In Moore, the court admonished an employer who unilaterally modified then suspended payments to an employee despite an order by a WCJ for higher payments. Here, there was a new order signed by the workers’ compensation judge, therefore, the facts of Moore are distinguishable from this case.

      . Defendant also claims that if he were notified, he would have protected his counsel fee interest even if claimant no longer wanted him as his attorney, because he possessed a charging lien by operation of law. An attorney is entitled to a charging lien if: “(1) • • • there is a fund in court or otherwise applicable for distribution on equitable principles, (2) . . . the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, (3)... it was agreed that counsel look to the fund rather than the client for his compensation, (4)... the lien claimed is limited to costs, fees, or other disbursements incurred in the litigation by which the fund was raised, and (5) ... there are equitable considerations which necessitate the recognition and application of the charging lien.” Recht v. Clairton Urban Redevelopment Authority, 402 Pa. 599, 608, 168 A.2d 134, 139 (1961). Under the law, defendant does not have a “charging lien.” Both experts, Commissioner Harold Fergus and Attorney Carol Mickey, testified that they have never, in their vast experience, heard of a “charging lien” being applied to a workers’ compensation matter. (N.T. 4/24/ 03, vol. I, p. 78; 4/25/03, vol. I, p. 38.)


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Keeney v. Dreibelbis

      C.P. of Berks County,
    no. 01-8165.

      Kenneth C. Sandoe, for plaintiffs.

      James W. Bentz, for defendant.
    November 18, 2003
   LASH, J.,

The issue before this court is whether plaintiffs, Elmer L. Keeney and Elesa M. Blauch (buyers), are entitled to specific performance of an agreement of sale entered into by the parties for the sale of a residence owned by defendant, Raymond C. Dreibelbis (seller). Anon-jury trial was held on November 12, 2003. Based upon the evidence at trial, the court makes the following findings:

I. FINDINGS OF FACT

(1) Plaintiffs, Elmer L. Keeney and Elesa M. Blauch are father and daughter and are adult individuals.

(2) Defendant, Raymond C. Dreibelbis is an adult individual who resides at 230 Spring Road, Bernville, Upper Tulpehocken Township, Berks County, Pennsylvania (property).

(3) At all times relevant hereto, seller was the owner of the property.

(4) In or about early April 2001, the parties agreed that buyers would purchase the property owned by seller.

(5) Buyers retained Kenneth C. Sandoe, Esquire, to handle the transaction on their behalf.

(6) Seller retained Blaine DeSantis, Esquire, to represent him for any matters pertaining to the settlement, including the scheduling.

(7) On behalf of buyers, Attorney Sandoe prepared a proposed agreement of sale. The proposed agreement was faxed to the office of Attorney Blaine DeSantis on May 22, 2001.

(8) The proposed agreement of sale set forth in paragraph three: “settlement shall be held on or before June 15, 2001.” The notes/comments section of the facsimile transmittal also set forth: “Settlement is tentatively scheduled for June 15 at 9 a.m. in our office.”

(9) On May 24, 2001, Attorney DeSantis responded by sending a facsimile transmission which included a proposed agreement of sale modifying the agreement of sale prepared by Attorney Sandoe.

(10) The agreement of sale modified and proposed by Attorney Blaine DeSantis included as a provision in paragraph seven: “Settlement shall be held on or before June 15, 2001. It is agreed that time for settlement and all other times referred to in this agreement are of the essence of this agreement, unless extended by mutual consent of all the parties hereto, in writing.”

(11) The language of the modified agreement of sale was approved. Accordingly, on June 6,2001, Attorney DeSantis sent an original and three copies of the agreement of sale, along with the seller’s disclosure and original deed, all executed by seller, to Attorney Sandoe’s office.

(12) At the time the seller signed the agreement of sale, it remained in the form in which it had been prepared by counsel for seller and had no interlineations or changes of any kind made upon it.

(13) Shortly after receiving the documentation, Cynthia Mann of Attorney Sandoe’s office contacted Attorney DeSantis’ office and spoke to Cheryl Zito regarding scheduling a time for settlement. This conversation would have taken place on June 7 or June 8, 2001.

(14) The substance of the conversation is in dispute. According to Cynthia Mann, both sides mutually agreed to extend the time of settlement to some time in July due to logistical difficulties. According to Cheryl Zito, Cynthia Mann requested a postponement to which Ms. Zito responded that she would have to check with Attorney DeSantis. Ms. Mann then advised Ms. Zito that seller had already agreed to the postponement. Ms. Zito accepted that representation at face value and agreed to have the agreement of sale modified.

(15) In any event, as a result of the conversation, Ms. Mann queried Ms. Zito on whether she should simply write in the new date on the agreement of sale and accompanying documents or have the documents sent back to Attorney DeSantis for modification. Ms. Zito agreed to have Ms. Mann simply modify the documents.

(16) As a result of the conversation, Ms. Mann changed the date on paragraph seven regarding the date for settlement from June 15, 2001 to July 16, 2001.

(17) The agreement of sale, with the notations, was signed by buyers on June 8, 2001.

(18) On June 8,2001, Ms. Mann sent two signed copies of the agreement of sale, with the modification, to Attorney DeSantis. The transmittal correspondence also stated: “Also, settlement has again been changed. It is now scheduled for July 16 at 9 a.m. Please fax your fees to be included on the settlement sheet.”

(19) At some point prior to the discussion between Ms. Mann and Ms. Zito, seller had approached buyers, advising them that the settlement may have to be postponed because the property had to be transferred from he and his wife into his name solely. Seller and his wife were in the process of obtaining a divorce and apparently, he and his wife had agreed that the property would be transferred into his name.

(20) At some point in time prior to June 15, 2001, buyer, Elesa M. Blauch, spoke with the seller and advised seller that settlement had been scheduled for a date in July of 2001.

(21) At no time prior to June 15,2001, did seller make any objection to the settlement date extending beyond June 15, 2001.

(22) Attorney DeSantis became aware of the new scheduling date through Cheryl Zito. At no time prior to June 15,2001, did he object to the settlement date being scheduled after June 15, 2001.

(23) On June 15, 2001, at approximately 2 or 3 p.m., seller contacted Attorney DeSantis to advise him that he had changed his mind and no longer wished to proceed with the transaction.

(24) The first time buyers learned of seller’s change of heart was through correspondence sent to them from Attorney DeSantis dated June 18,2001. That correspondence set forth: “Please be advised that I received a very distressed phone call on Friday afternoon, June 15, from Ray Dreibelbis. Apparently, he has been having second, third and fourth thoughts and doesn’t want to sell his house. It has nothing to do with your client, nor does it have anything to do with the purchase price. It is just that I think Ray never really thought the whole transaction through before saying ‘Yes.’ ”

(25) Seller’s decision to request that the agreement of sale be voided was, as stated in Attorney DeSantis’ correspondence, simply a change of mind, and had nothing to do with the settlement date being scheduled for a time after June 15, 2001.

(26) Both parties had taken action in furtherance of the transfer of title. On June 9,2001, seller held a public auction at which he sold tractors, farm equipment, and other items, contemplating the sale of the property. Also, seller permitted buyers to move some of buyers’ property, including a freezer and clothing, onto the property.

(27) At all times, buyers maintained a sufficient amount of cash enabling them to transact the settlement immediately, and at all times were ready, willing, and able to purchase the property.

n. DISCUSSION

Buyers are requesting that this court order seller to proceed with and consummate the transaction in accordance with the terms of the agreement of sale. The remedy sought is specific performance. The Supreme Court in Payne v. Clark, 409 Pa. 557, 561, 187 A.2d 769, 770-71 (1963), discusses this remedy within the context of a sale of real estate:

“From the moment an agreement of sale of real estate is executed and delivered it vests in the grantee what is known as an equitable title to the real estate. See Ladner on Conveyancing in Pennsylvania, §5:26 (3d ed. 1961). Thereupon the vendor is considered as a trustee of the real estate for the purchaser and the latter becomes a trustee of the balance of the purchase money for the seller. Kerr v. Day, 14 Pa. 112 (1850). Hence, if the terms of the agreement are violated by the vendor, the vendee may go into a court of equity seeking to enforce the contract and to compel specific performance. Borie v. Satterthwaite, 180 Pa. 542, 37 A. 102 (1897); and Agnew v. Southern Ave. Land Co., 204 Pa. 192, 53 A. 752 (1902). While the courts of equity have the power to grant specific performance, the exercise of the power is discretionary. In other words, such a decree is of grace and not of right. Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878 (1956). It should only be granted where the facts clearly establish the plaintiff’s right thereto; where no adequate remedy at law exists; and, where the chancellor believes that justice requires it. Roth v. Hartl, 365 Pa. 428, 75 A.2d 583 (1950), and Mrahunec v. Fausti, supra.”

The record is clear that the sole reason the transaction was aborted was because seller changed his mind. He does not claim, and he cannot rely on, remorse as a basis for aborting the transaction, either under the law or under the terms of the agreement. What he does claim is that buyers failed to consummate the transaction on or before June 15, 2001, thereby breaching the agreement, releasing seller from any further obligation. We must determine whether such a breach occurred under these facts.

On the one hand, we note that the agreement of sale, prior to modification, required settlement on or before June 15, 2001, and that time was of the essence of the agreement. The “time is of the essence” clause was not contained in the first draft of the agreement of sale prepared by buyers’ attorney, but was included as part of the modified draft prepared by seller’s attorney. Thus, it appears that, at least at the time of negotiating the terms of the agreement of sale, seller’s attorney considered the “time is of the essence” clause to be important.

On the other hand, buyers were at all times ready to proceed. They themselves never requested a postponement of the agreement. The postponement came about through the administration of the transaction by the attorneys’ offices.

It is common practice for attorneys’ offices to contact each other to schedule and reschedule settlement dates, attempting to coordinate the schedules of the clients, the attorneys, the title companies and other interested parties. These matters are handled routinely and rarely involve the client, except to check whether the client is available on a specified date. Given the short period of time between the execution of the agreement of sale on June 8, 2001, and the proposed last date for settlement of June 15, 2001, it was certainly not unforeseen that a postponement would be requested, and agreed upon in an informal manner.

This method of handling logistical issues regarding settlement sometimes includes extending a settlement beyond the date set forth in the agreement. Even when a time fixed in an agreement for settlement is stated to be of the essence of the agreement, the time may be extended by oral agreement or be waived by the conduct of the parties. Davis v. Northridge Development Associates, 424 Pa. Super. 283, 289, 622 A.2d 381, 385 (1993). The informality of the discussions, the fact that there was no formal, written agreement changing the date for settlement, or even that there was a miscommunication between the secretaries for the attorneys, would normally have no consequence because there was no prejudice. Seller did not claim, nor does there appear to be, any injury resulting from the one-month delay in consummating the transaction. The actions of the attorneys’ offices became a focal point solely due to seller’s independent determination that he no longer wished to proceed with the transaction.

Moreover, the conduct of seller and his counsel support the notion that the miscommunication between the secretaries leading to the rescheduling was inconsequential. Seller was made aware of the proposed change in date by buyer, Elesa M. Blauch, and did not object. Seller’s counsel did not notify buyers’ counsel or anyone of an objection either, even after receiving the June 8 correspondence setting forth the July 16, 2001 settlement date, which contained the executed agreements of sale with the written-in notation modifying the settlement date. We can draw the inference that, if seller was insistent on time being of the essence, he would have made this clear to his attorney, who would have then voiced an objection to the rescheduling. Finally, it was seller himself who first mentioned the possibility of extending the settlement date, in a conversation he had with plaintiff, Elesa M. Blauch. It was reasonable for buyers to believe that seller had no problem with extending the settlement date to July 16.

Most noteworthy is the timing of seller’s decision to abort the transaction. He contacted his attorney on June 15, 2001, at 2 p.m. or 3 p.m. At that time, buyers were not in breach of the agreement and would not be in breach until 12:01 a.m., June 16, 2001, if at all. Buyers technically could have proceeded with the transaction but were cut off from attempting to do so by seller’s action. This timing was further compounded by the fact that no one contacted buyers about seller’s decision until June 18, 2001, through correspondence from seller’s counsel. As such, seller did not take any affirmative steps to consummate the transaction by June 15, 2001, as he was required to do, and did not provide buyers with a full opportunity to comply with their duties under the agreement.

The case cited by buyers, Cohn v. Weiss, 356 Pa. 78, 51 A.2d 740 (1947), is instructive. In Cohn, the parties entered into an agreement of sale which contained a provision setting forth that time is of the essence. Due to complications, the buyer informed the seller that settlement would take place on a date three days after the scheduled settlement date. Although the parties had several conversations, seller never advised buyer that he would insist on time being of the essence until the day after the scheduled settlement date. The court found that seller’s conduct during the week leading up to the proposed time for settlement was sufficient to convince the buyer that the seller was not going to insist on the transaction being consummated on the proposed settlement date. The court goes on to say:

“In Vankirk v. Patterson, 201 Pa. 90, 50 A. 966, [967,] this court cited with approval the following from Pomeroy on Contracts, section 394: ‘wherever time is made essential, either by the nature of the subject-matter and object of the agreement, or by express stipulation, or by a subsequent notice given by one of the parties to the other, the party in whose favor this quality exists— that is, the one who is entitled to insist upon a punctual performance by the other, or else that the agreement be ended — may waive his right, and the benefit of any objection which he might raise to a performance after the prescribed time, either expressly or by his conduct; and his conduct will operate as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting, and not ended by the other party’s default.’ (italics supplied) In Secombe et al. v. Steele, [20 How. 94 at page 104,] 61 U.S. 94 at 104, [15 L.Ed. 833,] the Supreme Court of the United States said: ‘It must affirmatively appear that the parties regarded time or place as an essential element in their agreement, or a court of equity will not so regard it.’ The court cites Parkin v. Thorald, 16 Beav. 59, where the master of the rolls said: ‘But courts of equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and if it find that, by insisting on form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat the substance.’ In Marshall v. Reach, 227 Ill. 35, 81 N.E. 29, [118 Am.St.Rep. 247, 10 Ann.Cas. 164,] it was held that although time is expressly made of the essence of the contract, this stipulation may be waived by a failure to insist on performance within the time prescribed, and it cannot thereafter be asserted as a defense to a suit for specific performance.

“In Cheney v. Libby, 134 U.S. 68, at page 78, [10 S.Ct. 498, at page 502, 33 L.Ed. 818,] it was held by the United States Supreme Court, in an opinion by Justice Harlan: ‘Even where time is made material, by express stipulation, the failure of one of the parties to perform a condition within the particular time limited will not in every case defeat his right to specific performance, if the condition be subsequently performed, without unreasonable delay, and no circumstances have intervened that would render it unjust or inequitable to give such relief. The discretion which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it, (Hennessy v. Woolworth, 128 U.S. 438, 442[, 9 S.Ct. 109, 32 L.Ed. 500]) may, and of necessity must often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions, (citing cases)’ In Kobrin et al. v. Drazin, [97 N J.Eq. 400,] 128 A. 796, it was held by the Court of Chancery of New Jersey that time, made of the essence of the contract by stipulation or circumstances, may be waived by inconsistent conduct subsequent to the time fixed for performance....

“If the vendor intended to hold the vendee to a strict compliance to the terms of the agreement in respect to the time of settlement, he should have been meticulous about his own readiness to perform his part of the agreement at the time fixed for settlement. In Lefferts v. Dolton, 217 Pa. 299, 66 A. 527, [117 Am.St.Rep. 913,] this court held that before a vendee is called upon to pay his money, he is ‘entitled to see that the conveyance is properly signed, sealed, and acknowledged, and that the description of the land to be conveyed is correct.’

“In the instant case the court below correctly said: ‘In the absence of an express waiver of formal tender, the vendors were under a duty to appear at the stipulated time and place for performance and produce a duly executed instrument. Until this was done, the vendee could not be called upon to make payment or to proceed in the performance of her covenant . . . [citing Vankirk v. Patterson, 201 Pa. 90,] [50 A. 966]. We are confronted, therefore, with a situation in which both parties permitted the time for performance to pass ... Having allowed the stated time to go by, neither party could terminate the contract suddenly without giving the other an opportunity to perform: Dravo Contracting Co. v. James Rees & Sons Co., 291 Pa. 387[, 140 A. 148].’ ” Cohn v. Weiss, supra at 81-83, 84-85, 51 A.2d at 742, 743.

This case is similar to Cohn. The actions of seller establish that he never contemplated requiring buyers to settle on or by a certain date or time. It was only after he realized that he did not want to proceed with the transaction that he insisted on strict compliance with the “time is of the essence” provision. Buyers were always ready to proceed and should be entitled to the benefit of their bargain. This court shall compel specific performance.

We enter the following decree nisi:

DECREE NISI

And now, November 18, 2003, judgment is hereby entered in favor of plaintiffs, Elmer L. Keeney and Elesa M. Blauch, and against defendant, Raymond C. Drei-belbis. Within 90 days defendant, Raymond C. Drei-belbis, shall by good and sufficient deed convey the premises situated at 320 Spring Road, Bemville, Berks County, Pennsylvania 19506, from defendant to plaintiffs in accordance with the terms of the agreement of sale entered into by the parties on June 8, 2001.


author: WATKINS, J.,

text:
    Morris v. DiPaolo

      Richard R. Morris, for plaintiff.

      Brian M. Puricelli, for defendants.
    November 18, 2003
   WATKINS, J.,

CASE HISTORY

This appeal arises from a wrongful use of civil proceedings (Dragonetti) action filed by the plaintiff, Neil Morris, Esquire, against the defendants, Gregory DiPaolo, Brian Puricelli, Esquire, and the Law Offices of Brian M. Puricelli, Esquire, pursuant to 42 Pa.C.S. §8351 et seq. This action was commenced by way of complaint on April 12, 2002.

Plaintiff and defendants filed cross-motions for summary judgment on July 7,2003 and July 2,2003, respectively. This court granted plaintiff’s motion and denied defendants’ by orders dated September 23, 2003. This court also denied defendants’ motion for reconsideration of the order granting plaintiff’s summary judgment motion and denying their own by order dated October 1, 2003. Defendants now appeal the orders along with several unrelated contentions of error.

FACTUAL HISTORY

On November 30, 1999, defendant DiPaolo and his attorney, defendant Puricelli, filed a civil action complaint against Mr. Morris, Bensalem Township, Bucks County and several of its agencies in the United States District Court for the Eastern District of Pennsylvania. Pl.’s compl. at ¶8. The complaint sought relief under various tort and civil rights theories after the Bensalem Police Department terminated Officer Gregory DiPaolo’s employment. Id.

An arbitrator later reinstated Officer DiPaolo to his position on the police force. Id. at ¶16. After the resolution of other legal issues, the township withdrew its appeal of the arbitration award and formally reinstated Officer DiPaolo on January 24, 2000 (not 2002 as the complaint alleges) with back pay. Id. at ¶19.

Mr. Morris argued the reinstatement with back pay rendered Officer DiPaolo’s federal causes of action moot. Id. at ¶20. The plaintiff (DiPaolo) did not withdraw his complaint in spite of this fact. Id. at ¶21. The township responded by filing a motion to dismiss which was heard before the Honorable William H. Yohn, United States district judge. Id. a^22. Mr. Morris contends that Judge Yohn granted leave to file an amended complaint while reminding the plaintiffs of their obligation not to file meritless claims under F.R.C.P. 11. Id. at^24. Mr. Morris contends that the amended complaint later filed revived the contentions contained in the original complaint. Id. at ¶25.

Upon filing the amended complaint, Mr. Morris filed a motion to dismiss and a motion for sanctions with the district court. Id. at ¶30. Judge Yohn granted the motion for sanctions by order dated July 11, 2000. Id. at ¶31. Mr. Puricelli withdrew the amended complaint in that action on January 3, 2001. Id. atf33.

Mr. Morris proceeded to file the instant two-count action against the named defendants pursuant to the Dragonetti Act. Mr. Morris alleges that the defendants initiated this lawsuit against him with no basis and in bad faith. Id. at ¶¶45-47. Mr. Moms’ complaint alleges recovery under theories of economic loss, emotional distress, as well as reputation, punitive, and delay damages.

CONTENTIONS OF ERROR

On appeal, defendants present 10 contentions of error. Specifically, they contend that several judges of the court of common pleas erred in:

(1) Denying defendants’ motion for reconsideration by order signed by this court and dated October 1,2003;

(2) Granting plaintiff’s and denying defendants’ respective motions for summary judgment by orders signed by this court and dated September 23, 2003;

(3) Denying defendants’ motion for a protective order, to compel and in limine by order signed by Judge Howland Abramson and dated May 19, 2003;

(4) Denying defendants’ motion to compel and sanction plaintiffs by order signed by Judge Howland Abram-son and dated February 24, 2003;

(5) Denying defendants’ motion to change venue by order signed by Judge John Younge and dated November 4, 2002;

(6) Sustaining plaintiff’s preliminary objections by order signed by Judge Sandra Mazer Moss and dated October 21, 2002;

(7) Granting reconsideration in favor of plaintiff of the September 13,2002 discovery order by order signed by Judge Matthew D. Carrafiello and dated September 24, 2002;

(8) Denying defendants’ petition to modify the scheduling order by order signed by Judge Sandra Mazer Moss and dated September 13, 2002;

(9) Sustaining plaintiff’s preliminary objections by order signed by Judge Sandra Mazer Moss and dated September 5, 2002, and

(10) Overruling defendants’ preliminary objections by orders signed by Judge Matthew D. Carrafiello and dated June 18, 2002.

DISCUSSION OF CROSS-MOTIONS FOR SUMMARY JUDGMENT

Standard of Review

Pennsylvania Rule of Civil Procedure 1035(1) allows a party to move for summary judgment if there is “no genuine issue of material fact as to a necessary element of the cause of action or defense.” Rule 1035.2(2) allows summary judgment “if, after, the completion of discovery relevant to the motion ... 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.” The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law is on the moving party. Lubowitz v. Albert Einstein Medical Center, 424 Pa. Super. 468, 470, 623 A.2d 3, 4 (1993); Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 244-45, 376 A.2d 247, 249 (1977).

The purpose of summary judgment is to critically review the proof involved as it applies to the facts in a case and determine the necessity of a trial as a result. Curran v. Philadelphia Newspapers Inc., 497 Pa. 163, 177, 439 A.2d 652, 658 (1981). The rule operates to dispense with the need for trial when the facts material to the cause of action are not disputed. Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

Although the moving party must establish a “legally cognizable cause of action,” the non-moving party may not rest upon the mere allegations or denials of the pleadings to defeat the motion. Lubowitz, supra at 470, 623 A.2d at 4; Buckno v. Penn Linen & Uniform Service Inc., 428 Pa. Super. 563, 566, 631 A.2d 674, 676 (1993), appeal denied, 538 Pa. 639, 647 A.2d 895 (1994).

1. This Court Properly Granted Plaintiff’s Motion for Summary Judgment

“Wrongful use of civil proceedings” is an actionable tort in this Commonwealth. Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 380, 627 A.2d 190, 191 (1993). The Dragonetti Act, 42 Pa.C.S. §8351 et seq., is the codification of that tort. A plaintiff will recover under this Act if he or she proves malicious motive and a lack of probable cause on the defendant’s part. Rosen, supra. The Act states, in relevant part:

“(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:

“(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and

“(2) The proceedings have terminated in favor of the person against whom they are brought.” 42 Pa.C.S. §8351(a).

What constitutes termination in favor of a party upon withdrawal of the complaint for purposes of this Act is dependent on the circumstances of the individual case. Rosenfield v. Pennsylvania Automobile Insurance Plan, 431 Pa. Super. 383, 389, 636 A.2d 1138, 1141-42 (1994).

The definition of “probable cause” under the Drag-onetti Act is codified at 42 Pa.C.S. §8352, which states:

“A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:

“(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;

“(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or

“(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.”

In the instant case, the undisputed facts of record clearly establish a successful claim under the Dragonetti Act. First, defendants DiPaolo and Puricelli withdrew their federal complaint. Voluntary withdrawal of an action may serve as the basis of a favorable termination in favor of the plaintiff for purposes of the Act. DaimlerChrysler Corp. v. Askinazi, 152 F. Supp.2d 655, 661 (E.D. Pa. 2001); see also, Bannar v. Miller, 701 A.2d 242, 248 (Pa. Super. 1997).

Secondly, this court examined the facts of record and determined that the suit brought against plaintiff Morris was baseless and without merit. Transcripts from a hearing before Judge Yohn regarding the status of the federal complaint are instructive. Mr. Puricelli gave a candid evaluation of his case against the Bensalem Township entities and Mr. Morris:

“The Court: — and, therefore, you no longer feel this case has merit?

“Mr. Puricelli: Correct [in regard to most of the defendants] ... Now, with Mr. Morris, his is a very attenuated action and I only have one Supreme Court decision that really supports it and F ve explained that. Mr DiPaolo is agreeable to let him out.'” N.T., 12/1/01 at p. 9.

The hearing later went on to discuss the credibility of the plaintiff’s witnesses:

“The Court:... So the supporting witnesses no longer support your case against whom?

“Mr. Puricelli: Not necessarily they don’t support it— against Morris.

“The Court: Against Morris?

“Mr. Puricelli: Right. It’s just that I no longer have confidence that they’re telling the truth.

“The Court: But I repeat on that, if your only problem is Mr. Morris, and you claim you have no case against him — I don’t know whether Mr. DiPaolo agrees with you on that but if he does—

“Mr. Puricelli: I think he can speak clearly and he has no problem letting Mr. Morris out.

“The Court: Let him out, either on your own initiative, if you think you can after looking at the docket or file a motion ....” N.T., 12/1/01 at pp. 11, 14.

Even assuming arguendo that defendants reasonably believed in the relevant facts in the federal suit, it was impossible for the defendants to reasonably believe that those facts entitled them to relief as to plaintiff Morris pursuant to 42 U.S.C. §1983, which entitles parties to recover for damages sustained by those acting under direct authority or color of law. The federal complaint seeks relief under four (4) separate theories:

“(1) Violations of due process during Mr. DiPaolo’s termination hearing when Mr. Morris allegedly suborned perjury from fact witness and otherwise engaged in deceptive advocacy tactics;

“(2) Violation of Mr. DiPaolo’s liberty interests when Mr. Morris allegedly described him as a ‘peeping tom’ and/or a ‘criminal’;

“(3) Conspiring to keep Mr. DiPaolo off the police force, and

“(4) Loss of past and future income, as well as reputational damages as a result.” See def.’s compl.

Although the federal complaint seems to make general allegations supporting relief, Mr. DiPaolo could not recover under the facts as alleged. To prevail on a claim for deprivation of due process, a party must show the actual existence of prejudice to prove he was denied the due process guarantee of a fundamental fair trial. Irvin v. Dowd, 366 U.S. 717, 723 (1961). “Prejudice .. . means that the outcome of the proceeding may have been affected by the alleged due process violation.” Colmenar v. INS, 2000 WL 376671 at *4 (9th Cir. 2000).

The facts show Mr. DiPaolo prevailed at the administrative hearing and later received reinstatement with back pay. Therefore, Mr. Morris’ alleged conduct, taken as trae, does not entitle Mr. DiPaolo to relief for a violation of his due process rights.

Mr. DiPaolo was not .entitled to reputational damages under the facts. As mentioned above, the federal complaint alleges that Mr. Morris called Mr. DiPaolo a “peeping tom” and/or a “criminal.” Mr. DiPaolo testified at his deposition that he does not remember Mr. Morris ever using those words to describe him. N.T., 5/12/03 at pp. 186, 188-90, attached to def.’s mot. for summ. jgmt. as exhibit “G.”

Further, defamation is actionable under section 1983 only when the defamatory statements are made in the course of, or is accompanied by, a change or extinguishment of a right or status guaranteed by state law or the constitution. Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989). In the present case, Mr. Puricelli testified that he believed the defamatory article was written sometime close to the arbitration award in March 1999. N.T., 5/20/03 at p. 119. Mr. DiPaolo was terminated on December 30, 1997, roughly 14 months before the alleged statement. Therefore the facts show that the statements, even if true, did not enjoy a close nexus to Mr. DiPaolo’s loss of his liberty interest. Therefore, reputation damages are not recoverable under Mr. DiPaolo’s complaint.

The record shows the federal lawsuit proceeded against the wishes of Mr. DiPaolo. He testified at deposition that the true purpose of his federal lawsuit was to receive reinstatement with back pay:

“By Mr. Morris:

“Q. So the main reason you filed the federal lawsuit was because the township filed an appeal of the arbitrator’s decision rather than firing you?

“A. Not because they filed an appeal but because they haven’t reinstated me and paid me the money they owed me.

“Q. So if the township would have immediately reinstated you, paid you the back wages that were awarded to you in arbitration proceedings, you would not have filed this lawsuit?

“A. I probably would not have.” N.T., 5/12/02 at pp. 113-14.

The record shows that reinstatement with back pay was the sole reason Mr. DiPaolo wanted to file the federal complaint. In fact, Mr. DiPaolo testified that the result of the termination situation “ended the way we expected it to end, or the way I expected it to end. ” Id. at pp. 79-80. (emphasis added)

In summation, the federal complaint was, to use Mr. Puricelli’s own words, a “very attenuated action.” Judge Yohn’s hearing, 12/1/00 at p. 9. Mr. DiPaolo received what he sought in the federal litigation. Mr. Puricelli knew both that instigating suit and maintaining it in federal court was an abuse of process and a wrongful use of civil proceedings. Therefore, this court’s order granting summary judgment as to Mr. Morris should be affirmed.

2. This Court’s Order Denying Summary Judgment As to Defendants DiPaolo and Puricelli Was Proper

Defendants’ motion for summary judgment refutes plaintiff Morris’ allegations by contending that the federal lawsuit was filed for a legitimate purpose and in good faith. However, defendants’ motion is without merit.

First, defendants’ motion admits the federal complaint was maintained for an improper purpose. Defendants admit this fact in paragraph 27 of their motion:

“(27) Mr. DiPaolo [sic] purpose for commencing the civil action was to recover his police position (employment) and the lost wages that had been ordered returned to him by the arbitrator (summary judgment exhibit 12, 13 and 19 @ 43:17, 51:13-22, 78:8-16, 79:19., 85:8-17, 114:17,141:15,150:18,237:9,199:14,200:8 and 282:3).”

Thus, the purpose of the lawsuit was met since Mr. DiPaolo received both wages and reinstatement. Mr. Puricelli and his client maintained this suit after Mr. DiPaolo received his reinstatement and back pay. The suit was withdrawn (not “settled,” as the motion asserts at paragraph 8) almost a year after Mr. DiPaolo’s reinstatement. Therefore, this suit was maintained for an improper purpose.

Secondly, defendants’ motion makes an argument against plaintiff Morris’ damages claims. However, this court contemplated the issue of liability, not damages, in the appealed order. The order clearly establishes defendants’ liability in this case and orders an assessment of damages hearing. Therefore, this order does not address the question of losses sustained. A trial court may exercise its discretion in bifurcating a trial when issues of liability and damages are (1) separate and distinct from one another, and (2) the issue of liability has been fairly adjudicated. Gagliano v. Ditzler, 437 Pa. 230, 233, 263 A.2d 319, 320 (1970). As previously mentioned, this court determined that plaintiff Morris was entitled to summary judgment on his counts of abuse of process and wrongful use of civil proceedings. Whether damages emanated from either of the plaintiff’s counts has yet to be determined.

Defendants’ motion does not entitle them to relief. The federal lawsuit was instigated and maintained in spite of its obvious lack of merit. Mr. Puricelli maintained this lawsuit even after resolving this issue in his client’s desired manner. For these reasons, the defendants’ motion for summary judgment was properly denied.

CONCLUSION

For reasons as set forth above, this court’s orders granting plaintiff’s motion for summary judgment and denying defendants’ motion for summary judgment dated October 1, 2003 should be affirmed, and all other questions raised on appeal should be quashed.

      . This is an excerpt, from the third hearing before Judge Yohn regarding this action. Judge Yohn warned Mr. Puricelli about the Federal Rule 11 implications of the complaint’s seemingly baseless allegations. Judge Yohn later issued those sanctions by order dated July 11, 2000, after a second hearing with Mr. Puricelli for his failure to withdraw or otherwise change the allegations in the complaint. The sanction order is included with the plaintiff’s exhibits supporting his motion for summary judgment as exhibit “B.”


author: BALDWIN, J.,

text:
    Estate of DeMutis v. Erie Insurance Exchange

      C.P. of Allegheny County,
    no. GD 01-007665.

      Michael E. Fiffik, for plaintiff.

      Arthur J. Leonard, for defendant.
    October 21, 2003
   BALDWIN, J.,

Plaintiff, the estate of Cecil Anthony DeMutis, deceased, appeals the judgment entered against it on the pleadings in this matter concerning its right to benefits under an automobile insurance policy issued to Cecil Anthony DeMutis (Anthony) by the defendant, Erie Insurance Exchange.

On or about February 6,2000, Anthony was a passenger in a Dodge Dynasty motor vehicle owned and operated by his father, Cecil Angelo DeMutis. Anthony’s mother was also a passenger in the vehicle. The Dodge Dynasty was traveling in the City of Pittsburgh when it was struck head-on by another motor vehicle owned and operated by Dominic Russo. As a consequence of this accident, all of the occupants of both motor vehicles were killed. The only question before this court is the obligation of Erie to provide benefits to the estate.

Russo’s vehicle was insured under a policy that is not at issue in this case. Russo’s policy provided liability coverage in the amount of $100,000 per person. Anthony’s father’s vehicle was insured by Nationwide Insurance Company. The Nationwide policy provided underinsured motorist coverage (UIM benefits) in the amount of $100,000 per person. Prior to bringing this action, the estate recovered $100,000 from the Russo policy and $100,000 from the Nationwide policy. The estate then presented a claim under the decedent’s Erie policy for UIM benefits for the coverage amount of $50,000 but the claim was denied due to an exclusion in the Erie policy commonly referred to as the “household vehicle exclusion” or “family car exclusion.” This exclusion provides that the Erie policy does not apply to “damages sustained by anyone we protect while occupying or being struck by a motor vehicle owned by you or a relative, but not insured under the uninsured or underinsured motorists coverage under this policy.” See Erie policy attached to complaint. This suit seeking declaratory judgment followed.

All parties agree that by its terms, the Erie policy excludes coverage in this case. However, the estate argues that it is entitled to UIM benefits because the household exclusion is void as against public policy under the factual circumstances of this case. In its statement of matters complained of on appeal, the estate also argues that this court erred in determining that there were no material issues of fact pertaining to the applicability of the household exclusion. In addressing the estate’s claims of error, a review of select case law is warranted.

In Paylor v. Hartford Insurance Co., 536 Pa. 583, 640 A.2d 1234 (1994), the Supreme Court of Pennsylvania first addressed the enforceability of a “family car exclusion” which was challenged on the ground of public policy under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. (MVFRL). The exclusion in the Paylor case was defined in the policy at issue as excluding “a vehicle owned by or furnished or available for the regular use of the named insured or any family member from the definition of an underinsured motor vehicle.” Id. at 585, 640 A.2d at 1234. In Paylor, Betty and Fred Dymond were killed in a single-vehicle accident while operating their motor home. The Dymonds had an automobile insurance policy for their motor home issued by Foremost Insurance Company. The Dymonds insured three other family vehicles under a Hartford Insurance policy. After recovering the policy limits under the Foremost policy, the estate of the Dymonds sought to recover UIM benefits under the Hartford policy. The Hartford Insurance Company declined coverage under the family car exclusion.

The Supreme Court upheld the Hartford Insurance Company’s declination of coverage under the family car exclusion, reasoning that the estate of the Dymonds was not entitled to convert the relatively inexpensive underinsured motorist coverage of their other vehicles into more expensive liability coverage for their motor home. Id. at 597-98, 640 A.2d at 1241. The Paylor court explained that although the exclusion was generally not valid, the exclusion was not void as against public policy in that case because the Dymonds freely chose to carry less insurance on their motor home than on their other vehicles. Id. at 597, 640 A.2d at 1240-41. In Paylor, the court contrasted the facts of that case with the facts of a case decided by the Superior Court in Marroquin v. Mutual Benefit Insurance Co., 404 Pa. Super. 444, 591 A.2d 290 (1991).

In Marroquin, the Superior Court addressed the situation where one brother as a pedestrian was struck by the car operated by another brother. Both brothers lived with their parents. The vehicle involved in the accident was covered by its own policy issued by Mutual Benefit Insurance Company. Mutual paid liability benefits to the injured brother. The injured brother then sought UIM coverage from his parents’ automobile insurance policy, also issued by Mutual, which covered their personal vehicles. Mutual denied the UIM claim under the family car. exclusion, which provided that an underinsured motor vehicle did not include any vehicle “[ojwned by or furnished or available for the regular use of you or any ‘family member.’ ” Id. at 447, 591 A.2d at 292. The Superior Court held that the household exclusion was void as against public policy. Id. at 456, 591 A.2d at 296. The court reasoned that UIM coverage should follow the injured brother and that the only bar to coverage was that his brother owned the vehicle that struck him. Id. at 457, 591 A.2d at 297. Under these facts, the court reasoned, the exclusion was not justified because the injured brother was not trying to convert UIM coverage into liability coverage. Id.

Approximately one month after the Paylor decision but without citing to the Paylor opinion, the Supreme Court of Pennsylvania decided Windrim v. Nationwide Insurance Co., 537 Pa. 129, 641 A.2d 1154 (1994). In Windrim, the court addressed the situation where an individual who lived with his mother was driving his own uninsured vehicle and was injured by an unidentified hit-and-run driver. The injured person attempted to recover benefits under his mother’s policy but was denied under that policy’s household exclusion. The household exclusion provided in pertinent part that coverage “does not apply to bodily injury suffered while occupying or from being hit by a motor vehicle owned by you or a relative living in your household, but not insured for... underinsured motorists coverage under this policy.” Id. at 131, 641 A.2d at 1155. Without mentioning any presumption against the enforceability of the exclusion, the court applied the plain meaning of the exclusion language, and stated that the exclusion was consistent with public policy because the injured individual had decided not to purchase insurance on his own vehicle and that voiding the exclusion would serve to discourage citizens from insuring their vehicles. Id. at 136, 641 A.2d at 1158.

In Eichelman v. Nationwide Insurance Co., 551 Pa. 558, 711 A.2d 1006 (1998), the Supreme Court addressed the situation where an individual was injured while occupying his own vehicle and was denied UIM benefits by the insurer of his parents’ vehicles. The injured person did carry liability insurance but not UIM benefits on his vehicle. The exclusion language on his parents’ policy provided that underinsured coverage did not apply to “[bjodily injury suffered while occupying a motor vehicle owned by you or a relative not insured for underinsured motorists coverage under this policy; nor to bodily injury from being hit by any such motor vehicle.” Id. at 1007. As in Windrim, supra, the court in Eichelman, applying the plain meaning of the exclusion language, held that there was a lack of unanimity of opinion that the exclusion language violated public policy and, after determining that the exclusion did not go against the purposes of the MVFRL, held that the exclusion was valid because there was no “overriding public policy that forbids” an exclusion like the one at issue. Id. at 1009. The court also pointed out that the injured person voluntarily chose not to pay for UIM coverage on his vehicle. Id. at 1010. The court reasoned that “it is only in the clearest of cases that a court may make an alleged public policy the basis of judicial decision.” Id.

The Supreme Court next addressed a public policy challenge to the “regularly used, non-owned car” exclusion in an automobile policy in the case of Burstein v. Prudential Property and Casualty Insurance Co., 570 Pa. 177, 809 A.2d 204 (2002). In Burstein, Mr. and Mrs. Burstein were injured in a car accident while driving Mrs. Burstein’s company car. Unbeknownst to the Bursteins, Mrs. Burstein’s employer only carried liability and not UIM insurance on the vehicle. When the liability coverage of the other driver in the accident did not cover their losses, the Bursteins attempted to utilize the UIM coverage on their personal automobile insurance policies through Prudential Property and Casualty Insurance Company. Prudential declined to pay UIM benefits due to the following language in the Prudential policy: “We will not pay for bodily injury to you or a household resident using a non-owned car not insured under this part, regularly used by you or a household resident.” Id. at 207.

The trial court and the Superior Court held that this exclusion violated public policy but the Supreme Court reversed. The Superior Court held the exclusion void on the theory that the MVFRL should be construed broadly to afford the greatest possible coverage and that UIM coverage should follow the person and not the vehicle. Id. at 206. The Supreme Court disagreed and emphasized the clear and unambiguous language of the exclusion. In its opinion, the Supreme Court quoted the following language from its opinion in Eichelman, supra:

“Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term ‘public policy’ is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.” Id. at 207.

The Supreme Court recognized that the Bursteins paid for UIM coverage on all of their personal vehicles but held, in light of the public policy concern for the increasing costs of automobile insurance, that insurers should not be forced to underwrite risks that are not known or for which they have not been compensated. Id. at 208.

In 2002, the Pennsylvania Supreme Court rendered the opinion of Prudential Property and Casualty Insurance Co. v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002), in response to the certified question of law from the United States Court of Appeals for the Third Circuit on the issue of the household vehicle exclusion. In Colbert, the question was whether an insurance company was liable for UIM benefits to an injured person under the policy of his parents when the injured person lived with his parents but was driving his own car which was not covered by his parents’ policy. The injured person had paid for liability and UIM coverage on his own policy and had received those benefits but he was seeking additional UIM benefits under his parents’ policy. The household exclusion at issue provided that the insurer “will not pay for bodily injury to anyone occupying or struck by a motor vehicle owned or leased by you or a household resident which is not covered under this policy, or if the liability coverage of that vehicle is used to pay any portion of an insured’s bodily injury liability claim.” Id. at 751.

The court began its analysis by stating that it would apply the plain meaning of the contract unless the application would be contrary to a clearly expressed public policy. Id. at 752. The court held that the injured person was not entitled to UIM benefits under his parents’ policy because his vehicle was not disclosed to his parents’ insurer and voiding the other household car exclusion would allow the insured to receive coverage for which he has not paid. Id. at 753-54. The court further held that voiding the household vehicle exclusion would allow insureds to collect UIM coverage “multiplied by the number of insurance policies on which they could qualify as an insured, even though they only paid for UIM coverage on one policy.” Id. at 754. (emphasis in original) Thus, the court upheld the exclusion.

In this case, the estate argues that the Erie policy household exclusion should be void because Anthony paid for UIM benefits under this policy but has not received any benefits under the policy. It is true that Anthony paid the premiums for UIM coverage under the policy at issue. However, the estate is not seeking benefits for which it paid, it is seeking benefits that were specifically excluded from the coverage of the Erie policy. Thus, the question before this court is whether the estate should be entitled under the circumstances to receive more benefits than that for which it paid on the ground of public policy?

It must be said that the attorneys for both sides argued their issues very ably in this case. The estate’s legal argument and factual distinctions were considered carefully. Although the estate argues that it should have been permitted to develop the factual circumstances of this case further, this court determines as a matter of law that no genuine issue of fact exists in this case and that Erie is entitled to judgment as a matter of law. See Old Guard Insurance Co. v. Houck, 801 A.2d 559 (Pa. Super. 2002) (ruling by way of judgment on the pleadings that a household vehicle exclusion did not violate public policy); Kelly v. Nationwide Insurance Co., 414 Pa. Super. 6, 606 A.2d 470 (1992) (ruling by way of judgment on the pleadings that a policy exclusion barring vehicles insured under the liability coverage of the policy from being considered as an underinsured vehicle did not violate public policy).

The purpose of the household vehicle exclusion is to limit an insurer’s liability for accidents which involve vehicles that are not insured under its policy but are more likely to be driven or occupied by an insured than third-party vehicles because they are owned by a household member. See Nationwide Mutual Insurance Co. v. Harris, 826 A.2d 880, 882-83 (Pa. Super. 2003). It is true that earlier cases in Pennsylvania that addressed the exclusion applied a presumption against enforcing the household exclusion. See Paylor, 536 Pa. at 595, 640 A.2d at 1240 (“Allowing the ‘family car exclusion’ to bar coverage in cases where a plaintiff is attempting to convert underinsured coverage into liability coverage is a limited exception to the general rale that such provisions are invalid as against the policy of the MVFRL”). Yet, in the three cases decided after Paylor which have addressed the household vehicle exclusion, the Supreme Court has neither referred to nor applied any presumption against enforcing the exclusion and has otherwise “expanded the applicability of the ‘household exclusion.’ ” Old Guard Insurance Co. v. Houck, 801 A.2d 559, 563 (Pa. Super. 2002) (quoting Eichelman v. Nationwide Insurance Co., 551 Pa. 558, 711 A.2d 1006 (1998), and citing Hart v. Nationwide Insurance Co., 541 Pa. 419, 663 A.2d 682 (1995), and Windrim v. Nationwide Insurance Co., 537 Pa. 129, 641 A.2d 1154 (1994)); see also, Rudloff v. Nationwide Mutual Insurance Co., 806 A.2d 1270, 1272-73 (Pa. Super. 2002) (also recognizing the Supreme Court’s shift in “its analysis of the validity of a household exclusion to focus on contract law and public policy”). The decision by the court in Burstein, supra, addressing the viability of the “regularly used, non-owned” vehicle exclusion also limits the reach of public policy to void exclusionary language in automobile policies.

In this case, the insured was not a driver of the vehicle involved in the accident, he was a passenger. Insurance companies typically cover their named insureds when they are involved in accidents as passengers in vehicles that are not covered by the insured’s policy; thus, the fact that the insured was a passenger in his parents’ vehicle as opposed to the vehicle of a third-party would not constitute an unknown risk to the insurer but it would likely constitute an expanded risk. Because of the expanded risk an insurer faces from non-covered household vehicles, there is certainly a reasonable justification for an insurer to ex-elude coverage for accidents involving such household vehicles. In turn, allowing household exclusions should reduce the cost of an insured’s premium.

The MVFRL has been described as reflecting a “legislative concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways.” Paylor, 536 Pa. at 587, 640 A.2d at 1235; see also, Colbert, 813 A.2d at 753; Burstein, 809 A.2d at 208 n.3; Eichelman, 711 A.2d at 1008; Windrim, 537 Pa. at 134, 641 A.2d at 1157-58. In Rudloffv. Nationwide, the Superior Court reiterated the standard that appeared in Eichelman, supra, and Old Guard, supra, to be applied as follows: “that a clear and unambiguous contract provision must be given its plain meaning unless to do so would be contrary to a clearly expressed public policy [and] this court is mindful that public policy is more than a vague goal which may be used to circumvent the plain meaning of the contract.” Rudloff, 806 A.2d at 1273 (quoting Old Guard, 801 A.2d at 566 (quoting Eichelman, 711 A.2d at 1008)).

Applying the exclusion in this case means that the estate recovered UIM benefits under Anthony’s parents’ and not under Anthony’s own automobile policy. This court does not find such a result contrary to public policy, although the estate is not trying to convert UIM coverage into liability coverage, because the vehicle in which Anthony was located was his parents’ vehicle and not the vehicle covered under the Erie policy and because the estate received UIM benefits from Anthony’s parents’ policy. Our appellate courts have rejected the argument that UIM benefits follow the person rather than the vehicle in the face of a clear household vehicle exclusion absent a dominant public policy or the violation of ethical or moral standards, which this court does not find here. See Burstein, supra.

The MVFRL provides a priority of recovery for injured claimants seeking UIM coverage. See 75 Pa.C.S. §1733. Insureds must first recover from any policy covering the motor vehicle occupied by the injured person at the time of the accident before recovering from any policy covering a motor vehicle not involved in the accident. 75 Pa.C.S. §§1733(a)(l)-(a)(2). Although the MVFRL permits an insured to receive UIM benefits from multiple policies, the Supreme Court in Colbert, supra, expressed the concern that voiding the household exclusion “would empower insureds to collect UIM benefits multiplied by the number of insurance policies on which they, could qualify as an insured even though they only paid for UIM coverage on one policy.” Colbert, 813 A.2d at 754. (emphasis in original)

In light of the above case law and the circumstances of this case, this court holds that an automobile insurance policy exclusion barring an insured who was a passenger in a household vehicle from receiving UIM benefits under his own policy due to the household exclusion is not void as against public policy when the insured received UIM benefits from the policy covering the household vehicle. This opinion does not address the situation where insureds do not receive UIM benefits or receive less UIM benefits from the policy covering the household vehicle than they would have received under their own policy absent the exclusion because these facts were not before the court.