author: BAYLEY, J,

text:
    Advanced Automation Associates Inc. v. Advanced Automation Inc.

      C.P. of Cumberland County,
    no. 99-2840 Equity.

      Bruce A. Herald, for plaintiff.

      James G. Morgan Jr., for defendant.
    April 5, 2000
   BAYLEY, J,

Plaintiff, Advanced Automation Associates Inc., a Pennsylvania corporation with offices at 640 Rice Boulevard, Exton, Chester County, Pennsylvania, instituted this complaint in equity against defendant, Advanced Automation Inc., a Pennsylvania corporation with its registered office at 282 Louther Street, Lemoyne, Cumberland County, Pennsylvania. In its complaint, plaintiff avers that it filed articles of incorporation with the Pennsylvania Corporation Bureau on January 16,1986, and that defendant filed articles of incorporation with the Pennsylvania Corporation Bureau on March 20, 1998. Plaintiff alleges that defendant’s name is confusingly similar to its name and it seeks an order enjoining defendant from using or continuing to use its name. Defendant filed an answer denying that its name is confusingly similar to plaintiff’s name. Plaintiff then filed this motion for summary judgment which was briefed and argued on March 1, 2000. In Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment: “we must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-45, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party ‘must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.’ Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Finally, we stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). ” Id. at 441, 719 A.2d at 737.

The Associations Code in reference to the incorporation of domestic business corporations provides at 15 Pa.C.S. §1303:

“(a) General rule. — The corporate name may be in any language, but must be expressed in Roman letters or characters or Arabic or Roman numerals, and shall contain:

“(1) the word‘corporation,’ ‘company,’ ‘incorporated’ or ‘limited’ or an abbreviation of any of them;

“(2) the word ‘association,’ ‘fund’ or ‘syndicate’; or

“(3) words or abbreviations of like import in languages other than English.

“(b) Duplicate use of names. — The corporate name shall not be the same as or confusingly similar to:

“(1) The name of any other domestic corporation for profit or not-for-profit which is either in existence or for which articles of incorporation have been filed but have not yet become effective .... (emphasis added)...

“(e) Remedies for violation of section — The use of a name in violation of this section shall not vitiate or otherwise affect the corporate existence but any court having jurisdiction, upon the application of: . ..

“(2) any person adversely affected; may enjoin the corporation from using or continuing to use a name in violation of this section.”

Section 1303(b), which provides that the corporate name shall not be the same or confusingly similar to the name of any other domestic corporation, was enacted in 1988, and effective on October 1,1989. Neither we, nor counsel, have found any cases interpreting this section. Section 1303 replaced section 202 of the Business Corporation Law of 1933, 15 P.S. §1202, which at section 202B provided:

“The corporate name [of a Pennsylvania corporation] shall not be the same as, or deceptively similar to: (1) The name of any other domestic corporation ....” (emphasis added)

In Virginia Manor Land Co. v. Virginia Manor Apartments Inc., 444 Pa. 351, 282 A.2d 684 (1971), the Virginia Manor Land Co., which sold building lots, incorporated in 1956. The Virginia Manor Apartments Inc. incorporated in November 1965. The Virginia Manor Apartments Inc. purchased land adjacent to property owned by Virginia Manor Land Co. with the intent of constructing an apartment complex. The Virginia Manor Land Co. brought a suit in equity under the then section 202 of the Business Corporation Law to enjoin the Virginia Manor Apartments Inc. from using its name. The issue, under the now repealed section 202 of the Business Corporation Law of 1933, was whether Virginia Manor Apartments Inc.’s corporate name was the same as or deceptively similar to the Virginia Manor Land Co. The trial court held that the name was deceptively similar, finding that the name Virginia Manor had been used exclusively by the corporation, had become associated with its developments, was not the name of a general geographic area, and had been selected because of its local importance and because it would associate its enterprise in the public mind. The Supreme Court of Pennsylvania affirmed the trial court, stating:

“Section 202 of the Business Corporation Law clearly grants a corporation the right to act to prevent another from operating under the same or a deceptively similar name. As this court has previously said, ‘The right of the corporation to the exclusive use of its own name exists at common law, and includes the right to prohibit another from using a name so similar to the corporate name as to be calculated to deceive the public’; the proscription and the remedy of section 202 are but the statutory recognition of that common-law right. Consolidated Home Specialities [sic] Company v. Plotkin, 358 Pa. 14, 19, 55 A.2d 404 (1947). See also, American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189, 193-94, 47 A. 936 (1901). Under Pennsylvania law protection of a corporate name may be sought and will be given without regard to the existence of a technical trademark where the name chosen by a defendant is the same as or deceptively similar to one already in use.

“It was not necessary in this case for appellees to prove the existence of a secondary meaning of the words ‘Virginia Manor.’ The concept of secondary meaning has developed as a means of determining when a word in common parlance, i.e., a word with a ‘primary’ meaning, may nevertheless be reserved and protected as a trade name for the exclusive commercial use of a party. See Zimmerman v. Holiday Inns of America Inc., 438 Pa. 528, 266 A.2d 87 (1970), cert. denied, 400 U.S. 992 (1970); Zimmerman v. B&C Motel Corporation, 401 Pa. 278, 163 A.2d 884 (1960); and KoolVent Metal Awning Corp. v. Price, 368 Pa. 528, 84 A.2d 296 (1951). In the present case we are dealing with a matter of the similarity of corporate names rather than with the use of a common word as part of a trademark.

“The record is clear that the phrase in question — ‘Virginia Manor’ — was first used to describe the plans of the appellees’ predecessors in interest and was the principal element of their corporate name; the phrase was carried over by the appellees and has been used continuously by them since their incorporation. The similarity of the corporate names here in question and the likelihood of resultant confusion appear to us to be clear. Moreover, as noted above, the court below found on ample evidence that appellants adopted their corporate name, intending thereby to associate their enterprise with the activities of the appellees; the prevention of this sort of confusion is, of course, a principal policy underlying the restriction of section 202. On the record before us the lower court’s finding of deceptive similarity and its grant of injunctive relief were fully justified.” Id. at 355-57, 282 A.2d at 687-88.

In the case sub judice, defendant argues that the focus of the current section 1303(b) of the Associations Code is on situations involving unfair competition between parties in the same business. It maintains in its briefs that because the record consists of only the pleadings and is devoid of facts to indicate what type of business both parties are in, who their customers are and what their customer base is, that plaintiff has not established as a matter of law that “the general public would either be confused by the corporate names or what customers comprise the customer base for either corporation, which is essential to a determination of whether a corporation is entitled to injunctive relief in this action.” Plaintiff counters by arguing that under the statutory provision in section 1303(b) that protects its corporate name there is no issue of whether its name is entitled to protection as a trademark, or has acquired a secondary meaning, and that the protection afforded in section 1303 eliminates any requirement, as there was under the Act of 1933, of proving, as occurred in Virginia Manor Land Co., that the public would be deceived by the corporate names when the names are so similar on their face as to be confusing. We agree with plaintiff.

Although it is a trademark case, the decision of the Superior Court of Pennsylvania in Conti t/d/b/a Shear Perfection v. Anthony’s Shear Perfection Inc., 350 Pa. Super. 606, 504 A.2d 1316 (1986), is illuminating on the issue in the present case. The court reversed a decision of a chancellor in equity that denied injunctive relief to appellant, who operated a hairstyling salon “Shear Perfection,” against appellee who opened a similar establishment “Anthony’s Shear Perfection.” The court noted:

“There can be no doubt in common sense that Anthony’s Shear Perfection’ is deceptively similar to ‘Shear Perfection. ’ The law concurs. ‘. . . the infringement of a trade name lies in the similarity of the names involved and not in their identity.’... Therefore, the addition of the word ‘Anthony’s’ before the two words in question does not protect appellee. The essential violation is still present; that an average customer could be led by the similarity into using the services of appellee rather than appellant’s.” Id. at 611,504 A.2d at 1318-19. (footnote and citations omitted) (emphasis added)

The State of Michigan has a business corporation law that provides at M.C.L.A. 450.1212(1) that a corporation:

“(b) Shall distinguish the corporate name from... (i) The corporate name of any other domestic corporation or foreign corporation authorized to transact business in this state.”

In Educational Subscription Service Inc. v. American Educational Services Inc., 115 Mich. App. 413, 320 M.W.2d 684 (1982), the Michigan Court of Appeals stated that under this statute the Supreme Court of Michigan, although not definitively announcing a particular formula for determining whether names are confusingly similar, has generally concluded that corporate names are confusingly similar when the first two words of a compound name are identical and in the same sequence. The court has held that subject to two exceptions, corporate names are not confusingly similar when only one of the first two words of the name is the same. In other words, there are only two conditions under which the court has found corporate names to be confusingly similar in situations where only one of the first two words in each name is the same. The first is when one or more words of the plaintiff’s corporate name has acquired a secondary meaning which would in and of itself serve to identify plaintiff with that word regardless of the context in which it was used, and the second is when the first word of each corporate name is identical and particularly prominent or distinctive and, in addition, the third word of one company’s name is the same as the second or third word of the other company’s name.

In Pennsylvania, section 1303 of the Associations Code prohibits a corporation from operating in this state under either the same name or a confusingly similar name of another corporation. In the case sub judice, the first two words of the name of both plaintiff and defendant are “Advanced Automation.” The fact that plaintiff has the word “Associates” in between the words “Advanced Automation” and “Inc.,” does not change what is obvious and which common sense dictates, which is that the name Advanced Automation Inc. is confusingly similar to Advanced Automation Associates Inc. It would be hard to find two names that are not exactly the same that could be more confusingly similar. Accordingly, we are satisfied that plaintiff is entitled to summary judgment.

FINAL DECREE

And now, April 5, 2000, it is decreed that:

(1) The motion of plaintiff for summary judgment is granted.

(2) Defendant, Advanced Automation Inc., is enjoined from using and continuing to use that name.

(3) Defendant shall immediately institute good faith steps to come into compliance with this decree.

      . No depositions, answers to interrogatories, admissions or affidavits were filed. Pa.R.C.P. 1035.1(2).

      “2. As the court noted in Consolidated Home Specialties v. Plotkin, supra, 358 Pa. at 29, the fact that the Department of State permitted the use of the challenged corporate name by granting a certificate of incorporation is not res adjudicata of the question whether the name adopted is deceptively similar to the name of another corporation. ‘Whether [the department] considered the name whose use it “permitted” “deceptively similar” to the name already lawfully in use or did not consider the question at all, is immaterial to the proceeding.’


source: Caselaw Access Project

author: SHEPPARD JR., J.,

license: Public Domain

text:
    Zoological Society of Philadelphia v. INTECH Construction Inc.

      Robert Prentiss, for plaintiff.

      Bruce L. Phillips, for defendant.
    May 16, 2000
   SHEPPARD JR., J.,

This opinion is submitted in support of this court’s contemporaneous order granting the petition to stay arbitration filed by plaintiff, The Zoological Society of Philadelphia.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff/petitioner, The Zoological Society of Philadelphia, entered into a contract, dated January 9, 1998, with the defendant/respondent, INTECH Construction Inc., for the construction of what is generally referred to as “The primate project.” Under the contract, the zoo is the owner and Intech is the general contractor.

The original contract sum was set at $15,490,000, “subject to additions and deductions as provided in the contract documents, including change orders.” See respondent’s brief at 5. The contract also provided a specific schedule for the completion of phases of the work. Certain additions and extensions of time were required as the project progressed, and procedures were implemented for effecting and recording these changes. See id. at 5-6; petitioner’s brief at 2-3. Various disputes, which are the subject of the present action, have arisen between the parties regarding these additions and extensions in time.

The contract contained an arbitration clause, providing that: “[a]ny controversy or claim arising out of or related to the contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ....” Exhibit A at ¶4.9.1.

However, this arbitration clause is further defined and limited by a specifically inserted clause, entitled “Arbitration of claims — limitation of dollar amount,” which states that: “[t]he provision of article 4.9 of the general conditions (and all other provisions of the contract referencing the aforementioned article), requiring binding and final arbitration of controversies and claims in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, shall apply only to controversies and claims having a dollar value not exceeding the sum of $100,000. With regard to controversies and claims in excess of the aforementioned sum, the parties expressly reserve their respective rights to seek any and all appropriate redress available under applicable law, including, without limitation, institution of formal legal procedures. ” Exhibit A at insert A:4.9.1.1. (emphasis in original)

In addition, under paragraph 4.7.1 of the contract, a “claim” is defined as: “[a] demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of contract terms, payment of money, extension of time or other relief with respect to the terms of the contract... [and] also includes other disputes and matters in question between the owner and contractor arising out of or relating to the contract.” Exhibit A at ¶4.7.1.

On February 3, 2000, Intech filed a demand for arbitration with the American Arbitration Association in Philadelphia, claiming that the case involves “not fewer than 350 individual claims” which “will require [the zoo] to make payment to [Intech] in an amount hot exceeding $100,000 (per claim), the aggregate amount of the award . . . will be in excess of $2,500,000.” See exhibit B— demand for arbitration at 2. According to the demand filed by Intech, the claims allegedly include requests for the payment of money and extensions of time and arise out of alleged changes in the scope of the work required by the zoo; defects and deficiencies in the contract documents and design of the project; additional work required of Intech and alleged misconduct by the zoo which caused Intech to suffer delays in performing its work. See id. at 1. By letter dated February 28, counsel for the zoo raised its objections to arbitration.

Nonetheless, on March 6, 2000, the AAA notified counsel that it would “proceed with its further administration.” See exhibit D. Further, on March 9, 2000, after additional correspondence from both parties, the AAA notified both parties by telephone that it would proceed to administer the arbitration. See petition and answer at ¶15. On March 17, 2000, the zoo filed the instant petition to stay arbitration, pursuant to 42 Pa.C.S. §7304(b). On April 25, 2000, Intech filed its answer.

DISCUSSION

Legal Standard and the Parties’ Positions

This court may stay (or compel) arbitration proceedings on a showing that there is no agreement to arbitrate. 42 Pa.C.S. §7304(b). Compare 9 U.S.C. §4. Pennsylvania law holds that when one contracting party seeks to prevent another from proceeding with arbitration, judicial inquiry is limited to determining: (1) whether a valid arbitration agreement exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision. Midomo Co. Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 186 (Pa. Super. 1999). See also, Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975); Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 283, 687, A.2d 1167, 1171, (1997); PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 376-77, 632 A.2d 903, 905 (1993). Here, both the zoo and Intech agree that a valid agreement to arbitrate exists within the contract, but they disagree whether their dispute falls within the scope of the arbitration agreement. See petitioner’s brief at 5-6; respondent’s brief at 2.

In support of its petition to stay arbitration, the zoo contends that the dispute falls outside the scope of the arbitration provision since Intech’s claims, and the zoo’s claims in its own action, exceed the sum of $100,000. Petitioner’s brief at 4. In opposition, Intech asserts that the dispute is arbitrable since each claim is “separate and distinct” and each individual claim does not exceed the sum of $100,000. Respondent’s brief at 11. The issue presented is one of arbitrability: i.e., whether the present dispute falls outside the scope of the arbitration clause in the contract. Specifically, this court must interpret the operative effect of the “Limitation of dollar amount” clause, set forth at insert A:4.9.1.1 of the contract.

The Dispute Is Not Covered by the Arbitration Clause

First, Intech argues that this case is controlled by the Federal Arbitration Act and federal case law, and that the zoo and Intech “are parties to a written arbitration agreement contained in a contract evidencing transactions involving interstate commerce.” See answer at^7. In his affidavit, Louis T. Parise P.E., Intech’s senior project manager, attests that Intech, during the performance of the contract, contracted with numerous subcontractors and vendors, which were located both inside and outside of Pennsylvania, and that a substantial volume of goods, materials, tools and equipment flowed in the “stream of interstate commerce.” Exhibit 2 at ¶4. The record does not reflect whether the parties understood, at the time of contracting, that interstate commerce transactions would take place in order to perform the contract, and it remains unclear whether federal law applies. Nevertheless, assuming arguendo that the FAA applies to this dispute, this court’s decision will be the same as if it applies Pennsylvania law.

Pertinent sections of the FAA, codified at 9 U.S.C. §1 et seq., and the Pennsylvania Uniform Arbitration Act, codified at 42 Pa.C.S. §7301 et seq., are substantially similar. For example, 9 U.S.C. §2 provides that: “[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Similarly, 42 Pa.C.S. §7303 includes the same wording as the above provision, except for the references to “maritime transaction” or “transaction involving commerce.”

Further, both federal and state courts present similar analyses for reviewing arbitration agreements. This has prompted the court of appeals for the Third Circuit to recognize that: “the [f]ederal Arbitration Act and the Pennsylvania Uniform Arbitration Act, and the case law that has developed under each, are functionally equivalent as regards the authority of a district court to review an agreement to arbitrate and to stay or compel arbitration .... Indeed, because the relevant federal and Pennsylvania case law is so clearly established and has evolved essentially in unison, we will refer to them interchangeably where helpful. . . .” Paine Webber Inc. v. Hartmann, 921 F.2d 507, 510, n.3 (3d Cir. 1990).

The Pennsylvania Superior Court has stressed the deference afforded arbitration agreements by both federal and Pennsylvania courts, and concluded that “Pennsylvania’s policy towards arbitration is entirely consistent with the United States Supreme Court’s holding.” Dickler v. Shearson Lehman Hutton Inc., 408 Pa. Super. 286, 293, 596 A.2d 860, 863 (1991).

Public policy under both federal and Pennsylvania law advocates strict construction of arbitration agreements and dictates that any doubts or ambiguity as to arbitrability should be resolved in favor of arbitration. See e.g., First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 944-45 (1995); Mastrobuono v. Shearson Lehman Hutton Inc., 514 U.S. 52, 62 (1995); Volt Information Sciences Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76 (1989); Midomo Co. Inc v. Presbyterian Housing Development Co., 739 A.2d 180, 190-91 (Pa. Super 1999); Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 283-84, 687 A.2d 1167, 1171 (1997); PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 376-77, 632 A.2d 903, 905 (1993).

However, as stated by the Supreme Court, “arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration.” First Options of Chicago, 514 U.S. at 943. (citations omitted) See also, Mastrobuono, 514 U.S. at 57-58; Allied-Bruce Terminix Companies Inc. v. Dobson, 513 U.S. 265, 271 (1995); Volt Information Systems, 489 U.S. at 473; Midomo, 739 A.2d at 187; Smith, 687 A.2d at 1171. Parties who do agree to arbitrate are not prevented “from excluding certain claims from the scope of their arbitration agreement.” Volt Information Systems, 489 U.S. at 478.

In general, courts should apply ordinary state law principles that govern the formation of contracts when deciding whether the parties agreed to arbitrate certain issues. First Options of Chicago, 514 U.S. at 944. See also, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouthlnc., 473 U.S. 614, 626 (noting that “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability”). The Pennsylvania Superior Court recently instructed that: “courts should apply the rules of contractual construction, adopting an interpretation that gives paramount importance to the intent of the parties and ascribes the most reasonable, probable, and natural conduct to the parties____All parts of the contract should be interpreted together, with the goal of giving effect to each of its provisions.” Midomo, 739 A.2d at 190-91. (citations omitted) See also, Mastrobuono, 514 U.S. at 63 (noting that “a document should be read to give effect to all its provisions and to render them consistent with each other”), (citations omitted)

In ascertaining the intent of the parties, a court must first look to the four comers of the document, containing the express language of the contract. PBS Coal, 429 Pa. Super, at 378, 632 A.2d at 905-906. “[W]here specific or exact terms [appear] to conflict with broader or more general terms, the former is more likely to express the meaning of the parties with respect to the situation than the general language.” Id. at 378, 632 A.2d at 906 (citing Restatement (Second) of Contracts §203(c) (1981)).

Applying these principles here, this court finds that the parties unambiguously limited the scope of the arbitration provision to not include claims and/or disputes in excess of $100,000. The broad language contained in paragraph 4.9.1, stating that “[a]ny controversy or claim arising out of or related to the contract... shall be settled by arbitration,” was expressly limited by insert A:4.9.1.1, which mandated arbitration only for those “controversies and claims having a dollar value not exceeding the sum of $100,000.” Exhibit A at ¶¶4.9.1 and 4.9.1.1, respectively. (emphasis added) The parties explicitly excluded “controversies and claims in excess of the aforementioned sum” from the arbitration provision and reserved the right to seek legal redress for those claims. Id. at ¶4.9.1.1. This language must be read together with the definition of a “claim,” incorporated at paragraph 4.7.1, which “also includes other disputes and matters in question between the owner and contractor arising out of or relating to the contract.” Exhibit A at ¶4.7.1.

The reasonable interpretation of this language would hold that the present dispute falls outside of the arbitration provision, contrary to Intech’s position that each claim is “separate and distinct” and “stands on its own set of facts.” See respondent’s brief at 6 and 11. In its demand for arbitration, Intech anticipated an aggregate amount of the award on its “not fewer than 350 individual claims” to be in excess of $2,500,000. Contrary to Intech’s position, the “Limitation of dollar amount” clause is not ambiguous merely because it does not include the words “either singly or in the aggregate” after the words “controversies and claims.” Since the definition of claim includes “other disputes .. . arising out of or relating to the contract,” the additional language proposed by Intech would be unnecessary and superfluous. Moreover, each of Intech’s claims against the zoo requests the payment of money and/or extension of time and arose out of events, however different, that occurred during the performance of the contact. In addition, by anticipating an aggregate award largely in excess of $100,000 against the zoo, Intech’s position that this dispute falls within the arbitration provision is inconsistent.

This court acknowledges the deference that Pennsylvania and federal courts give to enforcing arbitration agreements. However, these same courts allow the parties to limit those issues which they will arbitrate, and that was what the zoo and Intech did here.

CONCLUSION

For the above-stated reasons, this court grants the zoo’s petition to stay arbitration of this matter, finding that this controversy will exceed the sum of $100,000.

And now, May 16, 2000, upon consideration of plaintiff’s petition to stay arbitration and defendant’s opposition to it, the respective memoranda, all other matters of record and in accordance with the memorandum opinion being filed contemporaneously with this order, it is ordered that the petition to stay is granted.

      . As detailed by respondent in its brief, Intech and the zoo established a “cost event” procedure for recording, dealing and tracking numerous and unanticipated project events and circumstances which were affecting or likely to affect the contract sum and time, and would be brought forth by change order or by claim. Respondent’s brief at 5-6. Through the course of the ongoing project, Intech recorded not fewer than “571 separate and distinct CEs.” Id. at 6. See exhibit 2. By February 3, 2000, the date on which Intech filed its demand for arbitration, Intech alleges that “there were not fewer than 200 [CEs] on which the zoo had refused to issue the requested change orders.” Id. These CEs and the zoo’s alleged refusal to comply constitute the subject matter of the present action.

      . The references in this memorandum opinion to “exhibits” are to those exhibits embodied in the plaintiff’s petition to stay.

      . Respondent arguably concedes this point. Respondent’s brief at 4.


author: CHESLOCK, J.,

text:
    Luberto v. Ellis

      C.P. of Monroe County,
    no. 6979 Civil 1997.

      Peter Hileman, for plaintiff.

      Joanne Kelhart, for defendants Larson.

      Richard G. Fine, for defendant Creature Comforts.
    May 8, 2000
   CHESLOCK, J.,

-Plaintiffs commenced this action by filing a writ of summons on September 10.1997. A default judgment was entered against original defendant, Edith Ellis, on April 21, 1998. On April

24.1998, defendants, Corinne and Edward Larson, filed an answer with new matter and a joinder complaint against defendant Ellis. Plaintiffs replied to the Larsons’ new matter on May 1, 1998. On May 22, 1998, the Larsons filed a new matter joinder, joining the plaintiffs as additional defendants. The plaintiffs filed a reply to said joinder on June 1, 1998. On January 19, 1999, the Larsons petitioned this court for permission to join Creature Comforts Veterinary Service as an additional defendant. Permission was granted by an order dated January 20, 1999. On February 1, 1999, the Larsons filed a joinder complaint against the veterinarian. The veterinarian filed an answer with new matter to said complaint on March 23, 1999. Plaintiffs and the Larsons filed an answer to said new matter on April 9, 1999 and March 31, 1999, respectively. The veterinarian filed a motion for summary judgment and a brief in support thereof on March 27, 2000 and April 17, 2000, respectively. On March 28, 2000, the Larsons filed a response and a contra brief to said motion. Oral argument was heard before this court on May 1,2000. We are now ready to dispose of the veterinarian’s summary judgment motion.

When ruling on such a motion the court may consider pleadings, depositions, answers to interrogatories, admissions, and supporting affidavits. Pa.R.C.P. 1035.1. The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 653 A.2d 688 (1995). This court will view the record in the light most favorable to the non-moving party and all doubts concerning the existence of a genuine issue of fact must be resolved in that party’s favor. Dublin by Dublin v. Shuster, 410 Pa. Super. 1, 598 A.2d 1296 (1991). Summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

After carefully reviewing the pleadings, the depositions of Corinne Larson, Edward Larson, and Barbara Luberto, and the admissions of the Larsons, we conclude that a prima facie case of negligence has not been established against the veterinarian. Therefore, the veterinarian is entitled to summary judgment.

Initially, we shall set forth the facts giving rise to this lawsuit. On July 19,1997, original defendant, Edith Ellis, owned a dog named “Dallas.” Ellis was a tenant in a building owned and maintained by the Larsons. On said date, Dallas ran away from the property and the original defendants were unable to find him. Dallas came into plaintiffs’ front yard appearing “playful.” Before taking Dallas into their home, Mrs. Larson called the veterinarian, whose telephone number was listed on Dallas’ collar. According to the plaintiffs, an unknown individual at the veterinarian’s office stated that Dallas’ disposition was fine and friendly. In addition, this unidentified person asked if plaintiffs could keep Dallas in their garage until Dallas’ owners could be contacted. As Nicole Luberto, then 7 years of age, was giving water to Dallas, who was located in plaintiffs’ garage, Dallas bit Nicole in the face causing injury.

To establish a cause of action in negligence, the plaintiff must demonstrate that defendant owed a duty of care to the plaintiff, defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage. Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998). Here, the crucial issue is whether the veterinarian owed a duty to the plaintiffs. Plaintiffs contend that the veterinarian owed a general duty to prevent harm from coming to Nicole. On the other hand, veterinarian contends that no duty existed and thus, it cannot be held liable. See Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2d 1332 (1995) (holding where no duty of care is imposed upon defendant, he cannot be guilty of negligence).

Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Alumni Association v. Sullivan, 369 Pa. Super. 596, 601, 535 A.2d 1095, 1098 (1987); see also, Burman v. Golay and Co. Inc., 420 Pa. Super. 209, 214, 616 A.2d 657, 659 (1992). “Where the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions.” Id. In addition, the existence of a duty requires some degree of knowledge. Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983).

Under Pennsylvania law, landlords, dog owners, and dog keepers have a duty to ensure that their dogs do not cause injury to others. See Deardorff v. Burger, 414 Pa. Super. 45, 606 A.2d 489 (1992). The common element among the above mentioned groups is control over the physical presence of the dog. If such control is lacking, one might not be held liable. See Palermo v. Nails, 334 Pa. Super. 544, 483 A.2d 871 (1984) (holding landlord out of possession is not liable for attacks by animals kept by tenant if tenant has exclusive control of premises; but landlord may be liable if he has knowledge of dangerous animal’s presence and right to control or remove animal by retaking possession of premises); Charowsky v. McGovern, 68 Sch.L.R. 166 (1972) (holding former owner of dog has no duty subsequent to transfer of dog to a new owner despite knowledge of dog’s vicious tendencies).

Here, we cannot in good conscience impose a duty to the plaintiffs upon the veterinarian. The veterinarian had neither custody nor control over Dallas at the time he bit Nicole. In fact, the veterinarian’s last contact with Dallas was in February of 1997, five months prior to the dog bite incident. Furthermore, no relationship ever existed between the plaintiffs and the veterinarian. Plaintiffs never sought services from the veterinarian and the veterinarian never performed any service for the plaintiffs.

Furthermore, liability for a dog’s vicious acts cannot be predicated upon ownership alone, but must also be based upon an owner’s knowledge of his dog’s vicious propensities and his failure to take proper steps to prevent that viciousness from causing injury to others. Andrews v. Smith, 324 Pa. 455, 459-60, 188 A.2d 146, 148 (1936); see also, Deardorff v. Burger, 414 Pa. Super. 45, 50, 606 A.2d 489, 492 (1992). This principal exists due to the unfairness of holding the owners of normally harmless domestic animals responsible for the vicious acts of said animals unless they were put on notice of the animal’s vicious propensities. Id. Furthermore, the burden is on the plaintiff to prove the owner’s prior knowledge of a domestic animal’s vicious propensity. Snyder v. Milton Auto Parts Inc., 285 Pa. Super. 559, 428 A.2d 186, 197 (1981).

Here, plaintiffs have offered no evidence indicating that the veterinarian was aware of Dallas’ vicious nature or previous attacks. The Larsons admit that the veterinarian’s office chart of Dallas makes no mention of any violent tendencies or propensities. (See Larsons’ ans. to mot. for summ. J. ¶41). Furthermore, the Larsons admit that no mention is made of any bites or prior problems with Dallas. Id.

If it is unfair to hold an owner of a domestic animal responsible for the animal’s vicious acts when he or she has no prior notice of the dog’s vicious propensities, we would be performing an inherent injustice by placing such a responsibility upon a veterinarian. Logic dictates that because an owner spends more time with his pet, he becomes more attuned to the pet’s personality, tolerance level, and temperament than a veterinarian would. Here, the Larsons are asking this court to conclude that the veterinarian, who, according to the evidence was neither treating Dallas nor aware of his dangerous propensities, owed a duty to the plaintiffs. We cannot reach such a conclusion.

Accordingly, we enter the following order:

ORDER

And now, May 8, 2000, additional defendants Creature Comforts Veterinary Service and Karin-Susan Breitlauch DVM’s motion for summary judgment is hereby granted.

      . Specifically, Mrs. Luberto testified to the alleged conversation at her deposition as follows:
      “Q: You brought him in your house?
      “A: Yeah. Well, no, first my husband had him on the deck and there was tags on the dog, Monroe County tag and Creature Comforts in Saylorsburg veterinarian tag on him; so he was still- — so when the dog was still outside I had called the vet’s office. First I called the Monroe County dog warden. They were closed, so I left a message on the machine that I found the dog and gave the tag numbers. Then I call the veterinarian’s office, and I said, ‘Is this dog okay because we found him? Do you know who the owners are?’
      “And they said, ‘No, the dog’s fine. It’s a really good dog.’ They says, ‘Can you hold the dog until the owners — until we can contact the owners would you keep him there.’ ” See dep. of Barbara Luberto, pp. 12-13.)
      “A: No; because the vet’s office said the dog was fine with kids. I called. I spoke to the girl at the vet for, like, ten minutes on the phone. She said, ‘The dog is a great dog.’ ” Id. at 31.

      . Dallas’ previous owners had taken him for treatment at the veterinarian. Dallas’ subsequent owners had him treated by other veterinary clinics.

      . We cannot ignore the effect of imposing a duty to the victim of an animal attack upon a veterinarian, who was not treating the animal at issue, had never performed services for either the owner or the victim, and who was unaware of the animal’s dangerous propensities. Under such circumstances, a veterinarian’s potential liability for negligence would be immense.


author: STRASSBURGER, J.,

text:
    Galloway v. Consolidated Natural Gas Co.

      C.P. of Allegheny County,
    no. GD 94-18006.

      James B. Cole, for plaintiff.

      Stanley J. Parker, for defendant.
    July 7, 2000
   STRASSBURGER, J.,

On October 27, 1992, plaintiff, Gary Galloway, while acting in the course of his employment with Latex Construction Company, was injured when the sideboom he was operating tipped over. At the time, Latex was laying a pipeline under a contract with CNG Transmission Corporation. (Def. mot. for sum. judg., app., ex. 1A.)

On October 27, 1994, plaintiff instituted this action by filing a praecipe for a writ of summons naming Consolidated Natural Gas Company, CNG Energy Company and CNG Gas Services Corporation. The praecipe was served upon the named defendants on October 31,1994.

On October 16,1996, plaintiff filed his complaint naming CNG, CNG Energy and CNG Gas as defendants. The gravamen of the two-count complaint was that the defendants were liable because (a) the contract with Latex presented a peculiar risk of physical harm to persons such as plaintiff unless special precautions were taken (Count I), and/or (b) defendants retained control of the job site (Count II). The complaint was served on November 22,1996. After reviewing the complaint, defendants’ counsel, in March 1997, produced to plaintiff’s counsel a contract between Latex and CNG Transmission that showed that plaintiff was working on a project undertaken on behalf of CNG Transmission. CNG, CNG Energy and CNG Gas were not parties to that contract.

CNG Transmission Corporation was not named in, or served with, the praecipe for a writ of summons or the complaint. On December 6,1999, more than seven years after his injury and more than two years after he was in receipt of the contract that showed CNG Transmission to be the entity with which his employer had contracted, plaintiff presented a motion to amend his complaint to name CNG Transmission as a defendant. I granted plaintiff’s motion to amend his complaint to name CNG Transmission Corporation as a defendant in this action. The amended complaint added CNG Transmission in Counts I and II as a party contracting with Latex, and added a Count III which alleged that CNG Transmission was acting as an agent for CNG.

Also on December 6, 1999, I granted defendants’ motion for leave to file a motion for summary judgment. On December 16,1999,1 denied defendants’ motion for summary judgment, but struck Count III of plaintiff’s amended complaint which had raised the agency theory.

Defendants filed a motion to reconsider my denial of their motion for summary judgment. On January 4,2000, I granted defendants’ motion for reconsideration and continued the case to permit discovery. Subsequently, by orders dated April 18, 2000 and amended April 24, 2000,1 granted summary judgment in favor of all of the defendants; summary judgment was appropriate because the record demonstrated no genuine issues of material fact disentitling defendants to judgment as a matter of law, Pa.R.C.P. 1035.2; Cams v. Yingling, 406 Pa. Super. 279, 282, 594 A.2d 337, 339 (1991). Plaintiff filed a timely notice of appeal.

At this court’s direction, plaintiff has filed a statement of matters complained of on appeal. Rephrasing and reordering the plaintiff’s contentions, he argues that I erred:

“(a) in granting summary judgment on the basis that the work plaintiff was performing did not present a peculiar risk of harm requiring special precautions;

“(b) in dismissing Count III of the amended complaint, which count asserted that CNG should be vicariously liable for the actions of its agent CNG Transmission; and,

“(c) in granting summary judgment as to Counts I and II on the basis that the statute of limitations had run. When suit was filed against CNG, it was a suit against the right party (CNG Transmission), but simply under the wrong designation (CNG).”

The first allegation of error can be disposed of quickly. While some of the questioning during oral argument may have revealed a certain skepticism on my part as to plaintiff’s theories regarding both peculiar risk of harm and control of the job site, I felt that factual issues prevented the granting of summary judgment on either of those bases. Rather, summary judgment was based solely on the statute of limitations.

With regard to the second allegation of error, the striking of Count III, the agency theory, plaintiff sought to file his amended complaint raising the cause of action on December 6, 1999, more than seven years after the accident. The statute of limitations for this tort case is two years, 42 Pa.C.S. §5524, and thus the amendment attempting to insert this new cause of action was properly stricken.

Finally, plaintiff contends that he actually sued CNG Transmission, the proper party, under an improper designation since he served the praecipe and the complaint at a place where CNG Transmission has regular activities as evidenced by the following: (1) CNG’s subsidiaries are often referred to simply as CNG; (2) CNG Transmission could be served at 625 Liberty Avenue, Pittsburgh, PA, c/o Consolidated Natural Gas Company; (3) CNG and CNG Transmission have inter-company mail and telephone systems; and, (4) sometimes CNG Transmission employees worked at the CNG offices. Assuming these facts as true, plaintiff’s argument missed the mark. The issue here was not whether CNG Transmission could be served at 625 Liberty Avenue. Rather, it was whether CNG Transmission was served with notice of this case at all. Naming three CNG entities is not tantamount to naming a fourth, independently registered, CNG entity.

Plaintiff argued that Wright v. Eureka Tempered Copper Co., 206 Pa. 274, 276, 55 A. 978 (1903), is consistent with his position. In Wright, an employee of Eureka Tempered Copper Works filed an action against his employer but erroneously named the defendant as Eureka Tempered Copper Company. Eureka Tempered Copper Company was an inactive corporation that was succeeded, at the same location, by Eureka Tempered Copper Works. Wright, 206 Pa. at 275. Plaintiff served his complaint upon the manager of Eureka Tempered Copper Works three days before the statute of limitations expired. Wright, 206 Pa. at 275-76. A few days after the statute of limitations period had expired, plaintiff’s counsel realized that the wrong name was on the writ and promptly petitioned the court for a rule to show cause why the caption should not be amended. Wright, 206 Pa. at 276.

Reviewing the trial court’s denial of the petition to amend, the Pennsylvania Supreme Court determined that on those facts the amendment should have been allowed. Id. The court reasoned that sinqe the parties had known that Eureka Tempered Copper Company was inactive and succeeded by Eureka Tempered Copper Works, it was clear that the plaintiff intended to name Eureka Tempered Copper Works. Id. Furthermore, the court found that the right party was, indeed, served and in court, albeit under the wrong name. Id.

This case is different. Here, the evidence shows that CNG and CNG Transmission are both active corporations, registered independently with the State of Delaware. (Def mot. for sum. judg., app., ex. 5.) CNG Transmission was not a successor to any of the named defendants. Service was accepted on behalf of the originally named defendants and those defendants, not CNG Transmission, were in court.

Furthermore, in Wright, the plaintiff’s counsel immediately recognized and corrected his error. Wright, 206 Pa. at 276. Here, on the other hand, Galloway’s counsel was informed of the error but still waited over two years to seek leave to amend his complaint to add CNG Transmission as a party. Therefore, even if the law were that the statute of limitations would run from the date plaintiff’s counsel learned of his mistake, he still missed the two-year statute of limitations period.

In this case, plaintiff sued the wrong parties. Service upon those parties was not sufficient as to CNG Transmission. Plaintiff did not name CNG Transmission until well after the statute of. limitations had expired. Therefore, plaintiff’s claim against CNG Transmission was barred.

      . My ruling was erroneous. An amendment adding a new party or a new cause of action after the statute of limitations has run should not be allowed. Wright v. Eureka Tempered Copper Co., 206 Pa. 274, 276, 55 A. 978 (1903); Romah v. Hygenic Sanitation Co., 705 A.2d 841, 858 (Pa. Super. 1997). The ultimate granting of defendants’ motion for summary judgment accomplished the same result as denial of the motion to amend would have.

      . CNG Gas Services Corporation changed its name to CNG Energy Services Corporation on August 30,1994, the successor being an active corporation at the time the praecipe was served. (Def. mot. for sum. judg., app., ex. 5.)


author: WETTICK JR., J.,

text:
    Melvin v. Doe

      C.P. of Allegheny County,
    no. GD99-10264.

      John R. Orie Jr. and Robert O. Lampl, for plaintiff.

      Susan A. Yohe and Witold J. Walczak, for defendants.

      Ann Beeson and Christopher A. Hansen, of counsel to defendants.

      Ira Weiss, for Senator Bodack.
    May 23, 2000
   WETTICK JR., J.,

The subject of this opinion and order of court is a motion filed on behalf of Pennsylvania State Senator Leonard J. Bodack to quash a subpoena to attend a deposition.

This is a defamation action instituted against an unknown person or persons who published the following statement on a website:

“Despite being prohibited from engaging in political activity, a couple of judges have been keeping themselves pretty busy recently with politics. Judge Joan Orie Melvin has been lobbying the Ridge administration on behalf of a local attorney seeking the appointment by Governor Ridge to fill the vacancy on the Allegheny County Court of Common Pleas created by the mandatory retirement earlier this month of Judge Robert Dauer, now a senior judge. Dauer has also been actively pushing for this attorney’s appointment. The last GS99 heard, this attorney is on the governor’s short-list of candidates. Let’s hope that the governor does the right thing and appoints somebody better qualified. Shame on Orie Melvin and Dauer — this is exactly the kind of misconduct by our elected officials that the residents of Allegheny County will not stand for anymore . . . and a good reason why judges should be held accountable for their actions and remembered at the polls at retention time.”

In response to plaintiff’s discovery requests designed to obtain the identity of the person or persons who published the statement, the Doe defendant(s) retained counsel to provide a defense to plaintiff’s complaint. Counsel for the Doe defendants has challenged any discovery that would identify the person or persons who published the statement (at least at this stage of the proceedings) on the ground that the First Amendment permits anonymous political speech.

I agreed with defendants that plaintiff should not be permitted to engage in discovery designed to obtain the identity of the Doe defendants until the Doe defendants have an opportunity to establish that plaintiff cannot prevail in this lawsuit. Consequently, I have stayed the discovery which plaintiff seeks until defendants have the opportunity to establish through summary judgment proceedings that plaintiff, in fact, engaged in the conduct described in the publication.

Defendants have scheduled the deposition of Senator Bodack for the purpose of asking Senator Bodack whether anyone contacted him during the relevant period to request that he encourage the governor’s office to appoint Mr. Kevin Sasinoski or any other local attorney to fill a vacancy on the Common Pleas Court of Allegheny County. In their memorandum in opposition to motion to quash subpoena (Sen. Leonard Bodack) at 3, defendants state that they “understand and believe that the lobbying which took place went through the person of State Senator Leonard Bodack, a key member of the legislative delegation from Allegheny County and a member of the Senate Rules and Executive Nominations Committee.” However, defendants have not described any evidence that would support this statement.

The Pennsylvania State Senate plays an important role in filling judicial vacancies. While only the governor may nominate a person to fill a vacancy, any nomination must be confirmed by a two-thirds vote of the Pennsylvania State Senate. Consequently, the process for filling judicial vacancies involves back-and-forth lobbying between individual state senators and the governor’s office.

Senator Bodack contends that the subpoena must be quashed because any information he obtains concerning appointments by the governor to fill vacancies on common pleas courts is obtained in his capacity as a legislator in the performance of legitimate legislative activity. Consequently, this information is privileged under the speech and debate clause of the Pennsylvania Constitution which reads as follows:

“Section 15. Privileges of members

“The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.” Pennsylvania Constitution Article 2, Section 15.

It is the position of Senator Bodack that the speech and debate clause covers any communications that Senator Bodack has with anyone in the nature of lobbying and advocacy activities involving a potential candidate for a judicial appointment. Defendants, on the other hand, seek to distinguish between activities that are “political” and activities that are “legislative.” They contend that the speech and debate clause prohibits inquiry only as to the performance of purely legislative activities, which, according to defendants, do not involve any activities other than mandated legislative duties.

Defendants do not cite any Pennsylvania appellate court case law that supports their position. Instead, they refer to the following discussion of the federal speech and debate clause in Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 29 (1st Cir. 1996) (citations omitted): Article 1, Section 6 of the United States Constitution “covers ‘a committee hearing or report designed to inform the [legislative] membership,’ but not an individual ‘senator’s publication of press releases or newsletters,’ nor individual ‘political’ activities, such as are involved in ‘legitimate “errands” performed for constituents, the making of appointments with government agencies, [and] assistance in securing government contracts.’ ” Defendants also cite the following language from an opinion of the United States Supreme Court in United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 2537 (1972):

“In sum, the speech or debate clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts. It is well known, of course, that members of the Congress engage in many activities other than the purely legislative activities protected by the speech or debate clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with government agencies, assistance in securing government contracts, preparing so-called ‘newsletters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the speech or debate clause.”

This language upon which defendants rely does not refer to the present situation where a legislator was allegedly asked to take a position with regard to a matter that comes within the performance of the legislator’s official responsibilities.

In determining whether an activity comes within the scope of Article 2, Section 15, the Pennsylvania courts apply the standard that the speech and debate clause must be interpreted broadly to protect legislators from judicial interference with their legitimate legislative activity. Even when the activity questioned is not literally speech or debate, a court must determine if it falls within the legitimate legislative sphere. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 383, 368 A.2d 675, 680-81 (1997). “Accordingly, the members, and their staff, of the General Assembly are protected from inquiries into those activities generally said or done in the performance of their official duties.” Lincoln Party v. General Assembly, 682 A.2d 1326, 1333 (Pa. Commw. 1996).

Harrison Development Corporation v. Commonwealth, Department of General Services, 135 Pa. Commw. 177, 580 A.2d 1174 (1990), reversed on other grounds, 532 Pa. 45, 614 A.2d 1128 (1992), involved a fact situation that is closest to the fact situation in the present case. In that case, legislation sponsored by State Senator Tilghman, the majority chair of the Senate Appropriations Committee, allegedly singled out Harrison Development for disparate treatment. Under this legislation, Harrison Development was subject to the provisions of the Sunshine Act and the Right to Know Law. Harrison Development brought a lawsuit, naming Senator Tilghman as a defendant, which challenged the constitutionality of the legislation and sought injunctive reliefbarring the senator and others from making demands on Harrison Development for financial and other information in compliance with the new legislation. Senator Tilghman contended that the claims against him were barred by the speech and debate clause because, in his capacity as the majority chair of the Senate Appropriations Committee, he made requests for information in order to fulfill his responsibility to review and investigate the expenditure of Commonwealth funds. Harrison Development, on the other hand, contended that the requests did not fall within a legitimate legislative sphere. The court, applying the standard enunciated in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 322 (1986), granted Senator Tilghman’s motion for summary judgment on the basis of legislative immunity. It stated that:

“To permit a cause of action against respondent Tilghman for every instance for which he requested information concerning Commonwealth expenditures would go against the holding in Consumer Party that broad interpretation should be given to the speech and debate clause to protect the legislature from judicial interference with their legitimate legislative activities.” Harrison Development, 135 Pa. Commw. at 184, 580 A.2d at 1177.

On the basis of the Pennsylvania appellate courts’ broad construction of the speech and debate clause, in all likelihood, defendants’ general inquiry seeking information about any requests made to Senator Bodack concerning the filling of a judicial vacancy involves information protected by the speech and debate clause. However, even assuming that the speech and debate clause does not extend to requests to a state senator regarding the filling of judicial vacancies, defendants’ discovery requests are barred by the provisions of Pa.R.C.P. 4011 (b) which prohibit any discovery which would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party.

State senators are required to participate in the process under which vacancies in the courts are filled. The process includes talking with persons who are proposing that various candidates either be appointed or not be appointed.

Under our system of government, the executive, judicial, and legislative branches of government are separate, equal, and independent branches of government. See Pennsylvania State Association of County Commissioners v. Commonwealth, 545 Pa. 324, 681 A.2d 699, 702 (1996), quoting Beckert v. Warren, 497 Pa. 137, 144, 439 A.2d 638, 642-43 (1981) (“A basic precept of our form of government is that the executive, the legislature and the judiciary are independent, coequal branches of government.”).

The Pennsylvania Supreme Court has consistently recognized that under a tripartite system of government, each branch of government must refrain from questioning or otherwise interfering with the process through which the other branches of government carry out their responsibilities. Thus, the Pennsylvania Supreme Court does not become involved in the legislative process, including the manner in which individual legislators conduct themselves in any manner in which they appear to be functioning as legislators rather than as private citizens, unless the Pennsylvania Constitution mandates judicial involvement. See Consumer Party of Pennsylvania v. Commonwealth, supra at 171-74, 507 A.2d at 329-31. Therefore, the Pennsylvania Supreme Court does not intend for any of its rules of discovery to be construed to authorize discovery that would require individual legislators to describe the manner in which they are performing their legislative tasks. For this reason, the discovery rules shall not be construed to permit litigants in a private civil action (at least without a showing of extraordinary circumstances) to distract and hinder legislators in their performance of their legislative tasks by requiring their appearances at depositions for the purpose of describing their involvement in the process through which judicial vacancies are filled.

In addition, in this case, defendants are seeking communications regarding the filling of judicial vacancies between Senator Bodack and any other persons. Defendants’ inquiry is not limited to plaintiff or persons identifying themselves as acting on plaintiff’s behalf because of the possibility that persons were acting on plaintiff’s behalf without so stating. Consequently, the discovery which defendants seek would include communications from third persons regarding Mr. Sasinoski that have nothing to do with plaintiff. The right to petition one’s government ordinarily includes the right to make communications in confidence where both the maker of the communication and the elected official wish to maintain confidentiality.

For these reasons, I enter the following order of court:

ORDER

On May 23,2000, it is hereby ordered that the motion of Senator Leonard J. Bodack to quash subpoena is granted and all parties are barred from scheduling his deposition in the absence of a court order to the contrary.

      . Vacancies in the office of judge are governed by Article 5, Section 13 of the Pennsylvania Constitution and 42 Pa.C.S. §3132 which provide that a judicial vacancy shall be filled by appointment by the governor and that the appointment shall be with the advice and consent of two-thirds of the members elected to the senate.

      . See Miller v. Transamerican Press Inc., 709 F.2d 524, 530-31 (9th Cir. 1983), where the court — using the example of informants giving information useful in exposing corruption in government or elsewhere- — -found that the possibility of public exposure of a source’s identity can deter constituents from candid communications with their legislators.


author: HORAN, J.,

text:
    Carlino v. Bartley

      C.P. of Butler County,
    nos. 98-10902, 98-10422.

      Alan Hertzberg, for plaintiff Carlino.

      Rebecca N. Mann, for defendant Prell.

      Peter B. Skeel, for defendant Paul Bartley.

      Peter B. Skeel and Regis J. Moeller, for defendant Lisa Bartley.

      Lee A. Montgomery, for defendant Seven Fields Borough.

      Thomas A. Donovan and Brian S. Roman, for defendant Bonus.

      Scott D. Cessar and Heather E. Rennie, for defendants Mcllhargery and Legz Trucking Co. Inc.
    September 12, 2000
   HORAN, J.,

And now, before this court for consideration is defendant Lisa Bartley’s motion for summary judgment. Kevin Bonus, Kathleen Prell, Michael Mcllhargery, Legz Trucking Co. and Seven Fields Borough joined the motion. For the reasons set forth below, said motion is denied.

FACTUAL BACKGROUND

On September 23,1998, plaintiff Amanda Carlino filed a complaint against Lisa Bartley, Kevin Bonus, and Seven Fields Borough, alleging negligence from a multi-vehicle accident that occurred on July 9,1997. Carlino was a passenger in a vehicle being operated by Lisa Bartley. The initial collision involved the vehicle driven by Bartley and a vehicle driven by Kevin Bonus. A second collision involved the Bartley vehicle and a vehicle driven by Kathleen Prell.

Lisa Bartley filed responsive pleadings asserting cross-claims against Bonus, Prell and Seven Fields. Seven Fields filed responsive pleadings joining Legz Trucking and Michael Mcllhargery as additional defendants and asserting cross-claims against Bartley, Bonus and Prell. Kathleen Prell filed responsive pleadings asserting cross-claims against Bonus, Bartley and Seven Fields, incorporating by reference certain paragraphs from Bartley’s complaint. Kevin Bonus filed responsive pleadings asserting cross-claims against Bartley, Prell, and Seven Fields Borough. Legz Trucking Co. and Michael Mcllhargery filed responsive pleadings asserting cross-claims against Seven Fields Borough, Lisa Bartley, Kevin Bonus and Kathleen Prell.

On July 9, 1999, Lisa Bartley filed a motion for summary judgment requesting that the plaintiff’s complaint be dismissed with prejudice. Bartley asserts that Carlino was covered under the limited tort option pursuant to the Flagship policy owned by her mother, Linda Carlino. Bartley argues Carlino is not an “insured” under her grandparents, Lloyd and Betty Griffiths’, Erie Insurance policy because Carlino was not a resident relative of her grandparents at the time of the accident. Carlino was not a “named insured” under her grandparents’ policy. She was listed on said policy as an operator of the vehicle. Only Betty and Floyd Griffith are the “named insureds” identified on the declaration page. As such, Bailey maintains that Carlino is not an insured under the Erie policy and she may not claim full tort benefits thereunder.

Bartley argues that on July 9, 1997, the date of the accident, Carlino was added as a listed driver to her mother, Linda Carlino’s, Flagship Insurance policy. (Supplemental affidavit of Amanda Carlino, no. 1.) Bartley maintains that Carlino was insured under her mother’s Flagship policy, and that she is therefore bound by the limited tort options of that policy. As an insured under a limited tort policy, Carlino may not claim noneconomic losses unless she suffered “a serious injury,” or she demonstrates that her injuries were disabling or disruptive to her normal daily activities. Bartley asserts that the evidence does not establish either circumstance. As such, Carlino should be precluded from seeking noneconomic damages.

In response to Bartley’s motion, plaintiff Carlino first argues that she had full tort coverage at the time of the accident as a named insured under her grandparents, Floyd and Betty Griffiths’ policy. Carlino argues that she was living with her grandparents at the time their insurance policy began and that her grandparents included her as a driver to be covered. Carlino concedes that she was not residing with them at the time of the accident. She contends that the term “named insured” is not defined in her grandparents’ Erie Insurance policy. She argues that the terms of the policy are ambiguous such that they should be read liberally and construed against the insurer, Erie Insurance Company. Such construction would afford her full tort benefits under her grandparents’ policy.

Secondly, she alleges that, even in the event of limited tort coverage, there is abundant evidence to establish that her injuries were serious, disabling and disruptive to her normal daily activities.

Next, Carlino states that she was not a named insured under the policy insuring the vehicle in which she was an occupant, i.e. the Bartley vehicle. As such, she argues that 75 Pa.C.S. § 1705(b)(2) applies, to provide full tort coverage.

Finally, Carlino avers that the party who was responsible for disabling a traffic light at the site of the accident, i.e. Legz Trucking Co. and Michael Mcllhargery, were operating a vehicle, which was registered in another state. As such, under 75 Pa.C.S. §1705(d)(1)(ii), even if it is determined that she had limited tort coverage, she may be entitled to full tort coverage. Carlino requests leave to amend her complaint to aver that she has full tort coverage and for leave to file an answer asserting liability against Legz Trucking Co. and Michael Mcllhargery.

DISCUSSION

In determining which insurance policy provides coverage for Carlino and thus whether she is entitled to full tort or limited tort remedies, this court must interpret the language of the statute and the respective insurance policies. “Insured” and “named insured” are clearly defined by the Motor Vehicle Financial Responsibility Law. The pertinent part of the MVFRL defines “insured” as “any individual residing in the household of the named insured who is: (1) a spouse or other relative of the named insured; or (2) a minor in the custody of either the named insured or relative of the named insured.” “Named insured” is defined as “any individual identified by name as an insured in a policy of private passenger motor vehicle insurance.” 75 Pa.C.S. § 1705(f). A basic tenant of statutory construction is to afford the words of a statute their plain meaning. 1 Pa.C.S. §1903(a). When words of a statute are unambiguous, they cannot be disregarded. Lewis v. Erie Insurance Exchange, 753 A.2d 839, 842 (Pa. Super. 2000). The above statutory definitions are clear and preclude ambiguity.

With regard to the language of the insurance policies, the court, as a matter of law, determines the existence of ambiguity in contracts. Herr v. Grier, 448 Pa. Super. 216, 220, 671 A.2d 224, 226 (1995). In Herr the court opined that a contract is ambiguous if it is “reasonably susceptible of different constructions.” Id. at 220, 671 A.2d at 226. It is not reasonable that the terms “insured” and “named insured” should be given any definition other than that provided by the MVFRL, unless specifically stated and defined in said insurance policy. Carlino’s grandparents’ Erie policy provides that “named insured” means the subscriber and others named in item I on the declarations. Except in the General Policy Conditions section, these words “include the spouse of the subscriber if a resident of the same household.” (Erie policy, p. 4.) Carlino was not listed on page 1 of the declarations. The Erie policy definition of “named insured” is consistent with the definition provided in the MVFRL. No ambiguity exists as to the meaning of said term. “Insured” is not specifically defined in the Erie policy. Accordingly, this court shall afford said term the definition provided in the MVFRL, to wit, “any individual residing in the household of the named insured who is: (1) a spouse or other relative of the named insured; or (2) a minor in the custody of either the named insured or relative of the named insured.”

At the time of the accident, Carlino was a resident relative living with her mother, Linda Carlino. Linda Carlino was the named insured on a limited tort insurance policy issued to her by Flagship Insurance Company. Pursuant to 75 Pa.C.S. § 1705(f), plaintiff Carlino, as a resident relative of a named insured, is considered an “insured” under the Flagship policy. Floyd and Betty Griffith, Carlino’s grandparents, were the only subscribers named in item I on the declarations page of the Erie policy, and as such they were the named insureds. Carlino was not listed in item I of the declarations page of her grandparents’ Erie policy, nor was she a resident relative of her grandparents at the time of the accident. Thus, Carlino was not a named insured under either Erie policy’s definition of named insured or the definition provided in the MVFRL. Plaintiff Carlino has the same limited tort option as the named insured on the policy issued to the relative with whom she resided; i.e. her mother, Linda Carlino.

As to the nature of Carlino’s injuries as they relate to limited tort coverage, in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), the Supreme Court addressed the question of the nature of the trial course evaluation of a motion for summary judgment based on the contention that the plaintiff has not suffered a serious injury. The court concluded that the threshold determination of whether a serious injury has been sustained is to be decided by the jury unless reasonable minds could not differ on the question. Section 1702 of the MVFRL defines “serious injury” as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” In Hames ex rel. Hames v. Philadelphia Housing Authority, 737 A.2d 825 (Pa. Commw. 1999), the court opined that inquiry is limited to (a) which body function was impaired and (b) whether, the impairment was serious. Id. at 828. Furthermore the court opined that the impairment need not be permanent to be serious.

Plaintiff Cariino contends that she was hospitalized for six days following the accident wherein she sustained a fractured vertebral bone, with a fragment that separated from the rest of the bone and other injuries to her back. In her affidavit in opposition, Cariino stated that she was not able to get out of bed or walk during her six days of hospitalization. She also contends she suffered headaches, bruising, permanent misalignment of the spine, permanent lifting and activity restrictions, narrowing of the spinal disc space and bony fragments extending from the spine. She wore a back brace for six months. Physical therapy was recommended but Cariino did not have insurance for physical therapy, and as such, she did not receive the same. Furthermore, Cariino was prohibited from working at her sedentary part-time job for two months following the accident. At the time of filing the complaint, September 1998, which was over a year after the accident, she was unable to engage in recreational sports that involved strenuous activity, ride amusement park rides or sit for long periods of time. Additionally, the record contains medical testimony that she may need surgery in the future, that her spine shows degenerative disc disease in the area of her previous fracture, that she evidences arthritic changes, and that at the location of the fracture her spine is bent irregularly forward and sideways. Carlino avers that she continues to suffer back and hip pain three to four times a week.

The grant of a motion for summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Summary judgment can be granted only in cases that are clear and free from doubt. Additionally, the record must be examined in the light most favorable to the non-moving party. See Floyd v. Philadelphia Housing Authority, 154 Pa. Commw. 303, 623 A.2d 901 (1993) and Pennsylvania Rule of Civil Procedure 1035.2. Parties seeking to avoid summary judgment must show by specific facts in the depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of a material fact. Hames, 737 A.2d at 828 n.4, citing Sovich v. Shaughnessy, 705 A.2d 942 (Pa. Commw. 1998).

Bartley argues that there is no evidence of record to support Carlino’s contention of serious injury. However, careful review of the record as a whole, including all the pleadings, depositions, answers to interrogatories, exhibits and affidavits, indicate that a genuine issue of material fact exists as to whether or not she suffered a serious impairment of a body function. Reasonable minds could differ on this matter, and it is therefore a matter for jury determination. See Washington v. Baxter, supra. As such, defendant Lisa Bartley’s motion for summary judgment, joined by Kevin Bonus, Kathleen Prell, Michael Mcllhargery, Legz Trucking Co. and Seven Fields Borough is denied.

Carlino also argues that she was not a named insured under the policy insuring the Bartley vehicle in which she was an occupant, such that 75 Pa.C.S. §1705(b)(2) affords her full coverage. Section 1705(b)(2) provides as follows:

“The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy. In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.”

Linda Carlino, plaintiff Carlino’s mother was the named insured on the Flagship policy and she selected the limited tort option. This limited tort option, pursuant to section 1705(b)(2), shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy. Plaintiff Carlino is an insured under her mother’s Flagship policy and is not a named insured under another policy. As such the limited tort selected by Linda Carlino applies to plaintiff Carlino. The second sentence of section 1705(b)(2), does not apply, as there is not more than one insurance policy that is applicable to the insured, plaintiff Carlino.

In regard to Carlino’s request for leave to file an answer with new matter and her brief in opposition to Bartley’s motion for summary judgment, Carlino maintains that even if her injuries are found to be not of a serious nature and if it is determined that she is not covered by her grandparents full tort policy, she may still be able to claim noneconomic damages. Carlino argues that because Legz Tracking Co. and Michael Mcllhargery, were the parties who disabled the traffic light at the site of the accident, and the vehicle Mcllhargery was operating was registered in another state, she may recover full tort coverage. In support Carlino cites the MVFRL section 1705(d)(l)(ii), which provides that:

“Unless the injury sustained is serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for noneconomic loss, except that: (1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault: (ii) is operating a motor vehicle registered in another state.”

In order for this section to be applicable, it must be determined that Legz Tracking Co. and Michael Mcllhargery were at fault.

Seven Fields Borough filed a complaint to join additional defendants Legz Tracking Co. and Michael Mcllhargery. Wherein Seven Fields asserts that, if it is found at the time of trial, that Seven Fields was negligent in erecting temporary stop signs at said intersection, Seven Fields alleges negligence against Michael Mcllhargery and Legz Tracking Co., such that said additional defendants are solely liable, or in the alternative, they are liable over to Seven Fields based upon the principles of indemnification and/or contribution.

In her response to Bartley’s motion for summary judgment, Carlino requests leave to file an answer with new matter asserting that Legz Trucking and Michael Mcllhargery are alone liable or jointly and severally liable for her injuries. As such, she wishes to allege she has full tort coverage pursuant to MVFRL section 1705(d)(l)(ii).

The coverage issue between her mother’s or grandparents’ policy has been raised, argued and decided as discussed in this decision. Plaintiff Carlino was covered under her mother’s Flagstaff policy at the time of the accident. Said policy provided for limited tort coverage. Plaintiff Carlino’s request for leave to file an answer with new matter and for leave to amend her complaint to assert coverage under her grandparents’ policy is moot.

However, plaintiff may amend her complaint to assert the issue of full tort coverage pursuant to MVFRL section 1705(d)(l)(ii) involving Legz Trucking Co. and Michael Mcllhargery. Plaintiff is granted leave to amend her complaint to allege claims against Legz Trucking Co. and Michael Mcllhargery. Said amendment shall be filed within 20 days of service of this order upon the plaintiff.

The defense motion for summary judgment is denied as to the issue of whether the plaintiff sustained a serious injury.

Accordingly we enter the following:

ORDER

And now September 12, 2000, in consideration of defendant Lisa Bartley’s motion for summary judgment, joined by Kevin Bonus, Kathleen Prell, Michael Mcllhargery, Legz Trucking Co. and Seven Fields Borough, and in consideration of the record as a whole, in accordance with the foregoing memorandum opinion said motion is denied.

Furthermore, it is hereby determined that plaintiff Carlino was an insured under the Flagship Insurance policy issued to Linda Carlino and not an insured under the Erie Insurance policy issued to Lloyd and Betty Griffith. As such, plaintiff’s request for leave to amend complaint is denied as to the matter of asserting full tort coverage under the Erie Insurance policy.

Plaintiff’s request for leave to file an answer and new matter, asserting Legz Trucking Co. and Michael Mcllhargery are alone hable or jointly and severally liable for her injuries, is granted. Plaintiff shall file said amendment within 20 days of service of this order.