text:
    Lane v. Hartford Accident and Indemnity Co.

      Ralph B. Pinskey, for plaintiffs.
    C. Kent Price, for defendant Hartford Accident and Indemnity Company. 1
    July 12, 1990
   DOWLING, J.,

Can a party object to interrogatories or a request for documents after the 30-day period specified in the rules?

The instant case concerns three discovery requests propounded by plaintiffs upon defendant Hartford Accident and Indemnity Company involving two separate requests for production of documents and a set of interrogatories.

On October 20, 1989, plaintiffs’ first request for production of documents was served on Hartford. On February 13, 1990, plaintiffs served a second request for production of documents as well as a set of written interrogatories.

No answers or objections were served with respect to this discovery until May 11, 1990. At that time defendant Hartford served responses to both requests for production in which it objected to portions of each request. On May 18, 1990, defendant Hartford served objections to three interrogatories and promised to answer the rest of them, though this has not yet occurred.

While many words in our wonderful language are ambiguous, it is difficult to ascribe an alternate meaning to the phrase “30 days” or to construe “shall” into “may.” It is worth remembering that this seemingly small, modest word “shall” has, at times in the past, been the pivot upon which the hopes and dreams of whole empires have turned. Whether one considers MacArthur’s ringingly famous promise of eventual triumph after the fall of the Philippines, “I shall return!”, or Marshal Petain’s equally determined' assertion of national resolve, “II ne passeront pas” (“they shall not pass”) as the Germans besieged Verdun in 1916, this word has universally been regarded as a statement of the positive and the unequivocal, not the conditional or the variable. Even the greatest poet of our language made it the centerpiece of one of his most inspirational passages, at the conclusion of King John:

“This England never did, nor never shall
“Lie at the proud foot of a conqueror
“But when it did first help to wound itself.
“Now these her princes are come home again,
“Come the three corners of the world in arms,
“And we shall shock them. Nought shall make us rue,
“If England to itself do rest but true.”

If any of the “shalls” in those three passages quoted above had been rendered by their original speakers as “may,” one might find oneself in a world where Manila was governed from Tokyo, Paris from Berlin, and Shakespeare’s beloved “sceptered isle” from either the Elysees Palace or the Alhambra. Since we have no stomach for such a wholesale rewriting of history, we shall hew to the view that “shall” is a word of command, not of suggestion.

There would likewise seem to be no ambiguity about the; meaning of the term “30 days.” If there were a dispute about whether this phrase meant “30 calendar days” or “30 business days,” we would consult the written instruments under review for clarification; otherwise, one must rely upon the traditional and statutory construction which holds that “30 days” from a given date means 30 calendar days from the date certain; unless the 30th day falls on a weekend or holiday, in which case the next business day is counted as the final day. Nor, certainly, does an.allotment of 30 days in which to perform a certain function mean a minimum of 30 days in which to do it. If this were so, a person sentenced to a 30-day jail sentence could be kept incarcerated for 20 years, on the grounds that 20 years encompasses the period of 30 days. Yet that is what defendant, in the instant case, seems to be suggesting when he says that it was permissible for him to answer the plaintiffs requests for production after 30 days had passed.

Defendant’s position is that, since the rules do not address the issue of the failure to serve objections within the 30-day period, this requirement merely establishes the minimum time that one is required to wait before moving for sanctions; that is, passage of the 30 days “triggers” the parties’ right to move to compel. It points to rules 1026 and 237.1, the former of which provides that every pleading subsequent to the complaint “shall” be filed within 20 days after service of the preceding pleading; yet this does not automatically allow for a default judgment. Once the 20 days has expired, one must go further and send notice of intention to take such a judgment as provided by rule 237.1.

The “double dip” may be called for in an instance where a default judgment is at stake, but here we are only concerned with discovery. This reasoning might be relevant to the failure to answer interrogatories or produce documents, but it fails in its application to objections to such requests. The party seeking the information must have a remedy if it is not forthcoming, but this is quite different from the question of the propriety of the data. If no objections are timely filed, then the requester’s way is clear, and his only concern need be with the time in which he is going to be accommodated. We feel that any other interpretation renders the specific time period mere surplusage with respect to the duty to object.

Defendant relies on two lower court decisions, Hall v. Sears Roebuck & Co., 14 D.&C. 3d 231 (1980), and Northampton Borough Municipal Authority v. Remsco Associates Inc., 22 D.&C. 3d 541 (1981). In Hall, the decisions relied upon by the court dealt with the previous rule, which concluded that the language of rule 4005 — providing that a party may file objections within 10 days — was permissive. Relevant at this point are the words of our Supreme Court in Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977): “A change in the language of a statute ordinarily indicates a change of legislative intent. In any event, the decisions are not binding on this court; we are not persuaded by their reasoning; and we decline to follow them.”

The Supreme Court in Nissley v. Pennsylvania Rail Road Company, 435 Pa. 503, 259 A.2d 451 (1969), notwithstanding the apparent permissive nature of the old discovery rules, held that there was a waiver of objections to interrogatories when they were not filed and served until five days before trial. The court observed that “this case aptly demonstrates that the integrity of the discovery rules can be preserved only if the rules are taken more seriously than they were in the lower court. The rule requiring a party to object to an improper interrogatory within 10 days was included in the Rules of Civil Procedure for a purpose; that purpose would be defeated if we accept the lower court’s apparent conclusion that the plaintiffs failure to follow this rule was not crucial under the facts of this case.”

In Aetna Life Insurance Co. v. Green, 116 Ga. App. 783, 159 S.E.2d 87, 90-1 (1967), a Georgia Court of Appeals, interpreting the same language, said:

“Code Ann. §38-2108 is the same as rule 33 of the Federal Rules of Civil Procedure and both contain the identical statement that ‘[wjithin (10) days after service of interrogatories a party may serve written objections thereto. . ..’ Accordingly, we look to the construction placed on the federal rule as persuasive in applying the identical Georgia rule. ‘[A] party cannot give an evasive answer to an interrogatory and on motion to require a proper answer raise an objection which should have been raised by objection to the original interrogatory within 10 days after service thereof.’ Moore’s Manual of Federal Practice and Procedure, pp. 1154, 1155, §15.04(8). Where a timely objection is not made to interrogatories, the right to object is waived. McKean v. Highway Truck Drivers and Helpers, Local 107, 28 F.R.D. 592 (D. Del. 1961). The permissiveness of language of this rule is simply that a party has a choice of answering the interrogatory or making an objection in the manner set forth in the rules, and' objections to interrogatories may not be raised in any other manner. Thus, if written objections are not served within 10 days, there is a waiver of the right to object. Baxter v. Vick, 25 F.R.D. 229 (D.C. Pa. 1960). Also, see Moore’s Federal Practice (2d ed.) Vol. 4, p. 2410 et. seq., par. 33.27. Having failed to raise the issue of relevancy in the proper manner and at the proper time in the lower court, the appellant will not be heard to complain as to such an issue in this court.”

The introductory explanatory note to the Deposition and Discovery Rules states “[m]ore than 25 years of experience and the general acceptance of the philosophy of discovery justify bringing the Pennsylvania system into as close conformity as possible with the federal system.” Clearly, under similar federal discovery procedures, if one does not timely file objections to discovery, those-objections are waived.

In Shenker v. Sportelli, 83 F.R.D. 365, 366 (E.D. Pa. 1979), the court said that “the failure to abide by the discovery procedures outlined in the Rules thwarts the policy of the rules as expressed in Fed.R.C.P. 1, that seeks the ‘just, speedy and inexpensive determination of every action’ ” and, in Philpot v. Philco-Ford Corp., 63 F.R.D. 672, 675 (E.D. Pa. 1974) the court warned:

“The provisions governing discovery under the Federal Rules of Civil Procedure are more than mere procedural guidelines to be consulted at the pleasure of a party to a federal civil suit. The language of these rules is carefully drafted and specific in its terms in order that they ‘secure thé just, speedy and inexpensive determination of every action.’ [citing Fed.R.C.P. 21] Plaintiffs have chosen a most reckless course by failing to acquaint themselves with, and by failing to comply with, the clear, precise and central provisions of these rules.”

Another federal, court has said:

“Regardless of how outrageous or how embarrassing the questions may be, the defendants have long since lost their opportunity to object to the questions. If they feel that the questions are unfair they have no one to blame but themselves for being required to answer them now. If discovery rules are to have any effect or meaning, the failure to serve such objections within the time prescribed . . . should be considered a waiver of such objections.” Davis v. Romney, 53 F.R.D. 247, 248 (E.D. Pa. 1971). (citation omitted)

See also, Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988), and cases cited therein. “If a party fails to file timely objections to document requests, such a failure constitutes a waiver of any objections which a party might have to the requests. . .’ Any other result would . . . completely frustrate the time limits contained in the federal rules and give a license to litigants to ignore the time limits for discovery without any adverse consequences. . . .” (citations omitted)

In Davis v. Romney, supra, at 247 the court said that, “The plaintiffs’ patience in agreeing to wait for answers beyond the 45-day period cannot be considered as a stay or an extension of the time for filing objections.” (Citing Sturdevant v. Sears, Roebuck & Co., 321 F.R.D. 426 (W.D. Mo. 1963).)

And, in Perry v. Golub, 74 F.R.D. 360, 363 (N.D. Ala. 1976), where a protective order was sought after the date required for production of documents, the court held: “Similarly, the defendants’ protective order motion does not alter the situation since rule 34 required the point be raised by timely objections. As Professor Moore says, ‘The party served with the request must respond to it within the time limits set forth in the rule, or object, stating the reasons for the objection.’ 4A Moore’s Federal Practice §3702, page 36-7 (2d ed. 1975).”

Accordingly, we enter the following

ORDER

And now, July 12, 1990, defendant Hartford Accident and Indemnity Company is directed to answer plaintiffs’ interrogatories and requests for production of documents within 15 days or suffer appropriate sanctions.

      . One could wish that the doughty Marshal had had the will and the courage to remember his own words 24 years later, when history so tragically repeated itself.

      . One of the oldest, and most bitterly true, witticisms about America’s treatment of its Indian population holds that, when a copy of the first treaty between white men and Indians was discovered, it was found to declare that the Indians would have the right to keep their lands for as long as the sun shines, the wind blows, and the rivers run — or 30 days, whichever comes first.

      . Pa.R.C.P. 126 provides in relevant part that “[t]he rules shall be liberally construed to secure the just, speedy, and inexpensive determination of eveiy action or proceeding to which they are applied.”


source: Caselaw Access Project

author: KELTON, J.,

license: Public Domain

text:
    Commonwealth v. Weiss

      James Dalton, assistant district attorney, for the commonwealth.

      John Fiorvanti, for defendant.
    December 28, 1988
   KELTON, J.,

Following jury trial, defendant was found guilty of robbery as defined in 18 Pa.C.S. §3701(a)(l)(ii), a robbery in the course of committing a theft in which the victim is threatened with or intentionally put in fear of immediately serious bodily injury, a felony of the first degree.

The commonwealth has filed a motion to invoke the mandatory five-year minimum sentence provision of 42 Pa.C.S. §9712 alleging that defendant “visibly possessed a firearm during the commission of the offense.”

We held a hearing on November 23, 1988 to consider any necessary additional evidence together with the evidence presented at trial. At that time, we incorporated by reference the entire trial transcript and also received three additional exhibits, D-l, D-2 and D-3, police reports of post-robbery interviews with the Bristol Motor Inn desk clerk, the victim of the robbery.

The sole issue before us on the mandatory sentence statute is whether or not the commonwealth has proven “by a preponderance of the evidence” that the weapon was in fact a “firearm” as that term is defined in 42 Pa.C.S. §9712(e). That subsection provides:

“(e) Definition of firearm — As used in this section ‘firearm’ means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.”

We hold and find as a fact that the evidence presented has not tipped the scale in favor of the commonwealth. Therefore, we do not find that the implement held by defendant was a “firearm” as defined above.

The evidence was equivocal. At trial, the motel desk clerk testified that on the evening of November 28, 1987, while alone at her work station, she was confronted by defendant. After first securing change for the cigarette machine and going into the bar for the cigarettes, defendant then returned.to the desk and inquired about rooms. He then went outside briefly and returned again to the desk.

The clerk stated that defendant then walked up to her and said: “Give me your money.” She- then testified as follows:

A: [A]nd I stood up, and I said to him, I said, “What did you say?” And he said, “Give me your money.” And I said, “We don’t have any money.” And I tried to tell him, you know, we don’t keep money at the front desk.
With that he turned around the third time, he says, “Give me your money, bitch, or I’ll kill you.”
Q. Can you describe where you were looking when he said those words?
A. Right at him, because he had a gun.
Q. All right. Now, about the gun — when did you first notice the gun?
A. When I stood up, like when he first asked me to give him the money, when I asked him what he said, that’s when I stood up and I seen the gun.
Q. Where did you see it?
A. It was like, he would be standing in front of the counter, and he had it leaning on the counter pointed at me.
Q. Resting on the counter?
A. Yes.
Q. Do you recall which hand he held it in?
A. No, I don’t remember.
Q. - Now, you’ve —
Q. I was shaken.
Q. You’ve told us it was a gun?
A. Yes.
Q. Can you describe the appearance of it, the color, the size approximately?
A. No. He had something laying over it.
Q. How much of the gun could you see?
A. Just the barrel, the bore, the hole; That was all.
Q. You did look at the gun itself?
A. Oh, yes, definitely.
Q. What was your reaction?
A. Scared, frightened, petrified is more of the word.

On cross-examination, she testified that she saw only the “barrel of the gun,” and that “it’s possible” that she later told the police that she thought it was a toy.

At the pretrial suppression hearing, she testified that defendant had the gun resting on the counter edge and that “[h]e had something over it” and that “I could not see his hands. All I saw was the barrel of the gun. The gun had something laying over it. All I saw was the bore hole.”

The desk clerk’s statements to the police, as recorded by the officers were that she “[sjtated she refused to give up money since she believed gun was a toy”; “Victim relates that perp. was armed with a small dull black hand gun”; and “Actor armed with a dull black-colored gun (NFD), possibly a toy.”

The gun itself was not introduced.

Clearly, under the above statute, the commonwealth bears the burden of proving by a preponderance of the evidence that the particular weapon “will or is designed to or may readily be converted to expel a projectile.” But this burden may be met with either direct or circumstantial evidence. Commonwealth v. Bond, 362 Pa. Super. 48, 523 A.2d 768 (1987) (mandatory sentence imposed). However, where the weapon itself is not sufficiently described by any witness and has been described by the victim as a “toy,” such evidence may in fact be insufficient proof of a firearm violation. Compare Commonwealth v. West, 334 Pa. Super. 287, 292, 482 A.2d 1339, 1342 (1984) (construing the Pennsylvania. Uniform Firearms Act which contains a different definition of “firearm”).

Here we believe the evidence is not clear. On the one hand, the defendant’s own statements that he might “kill” the victim were clearly intended to lead her to believe that the gun was operable. Also, her testimony as to her fright was found by us and the jury to be credible. However, the only evidence as to the nature of the gun itself was the victim’s testimony that she saw only the barrel of the pistol. And later the same night, she apparently told the police officer that it was “possibly a toy.”

Our finding that the burden of proof was not met under 42 Pa.C.S. §9712, is not intended to limit our future discretion as to minimum or maximum sentences when and if defendant’s post-trial motions are decided adversely to him.

Therefore, we determine that we will not apply the mandatory sentence provision of Pa.R.Crim.P. 359 B. We enter the following:

ORDER

And now, December 28, 1988, for the reasons stated in the foregoing opinion, we hereby find that the provisions of 42 Pa.C.S. §9712 (relating to minimum sentence) are not applicable to this case. Sentence shall be imposed after defendant’s post-trial motions have been disposed of.


author: CASSIMATIS, J.,

text:
    Snyder v. CNA Insurance Companies

      John W. Thompson Jr., for plaintiff.

      LeoE. Gribbin and David A. Mills, for defendants.
    June 18, 1990
   CASSIMATIS, J.,

Defendants have filed a motion for protective order seeking to sustain their objections to plaintiffs interrogatories. The request will be granted.

On April 12, 1983, plaintiff, Cynthia M. Snyder, instituted her action against defendant, CNA Insurance Companies, arising out of the August 19, 1982, death of her husband, Charles N. Snyder Jr., and claiming that the policy of insurance covering her automobile should have been stacked, that wage-loss benefits should have been paid in a lump sum, that the alleged failure to do so was a breach of contract in violation of the Unfair Trade Practices and Consumer Protection Law, and that she represented a class of individuals who had been discouraged from purchasing underinsurance coverage which benefits should also be stacked.

At a subsequent hearing, on April 28, 1987, plaintiff moved only for certification of a class for persons who had not previously recovered full no-fault work loss benefits paid in a lump sum, plus interest and attorney’s fees as appropriate.

On September 16, 1987, plaintiffs motion for class certification was granted as to the survivors or the estates of all those whose decedents were covered by no-fault automobile insurance issued by defendant, CNA Insurance Companies, pursuant to the Pennsylvania No-fault Insurance Act, and who died from automobile accidents occurring on or after July 19, 1975, which estates had not previously recovered full no-fault work-loss benefits paid in a lump sum, plus interest and attorney’s fees as appropriate.

On February 18, 1988, upon motion of defendants for reconsideration of the class certification order, this court modified its order of September 16, 1987, decertifying the class as to some and commencing the class as of September 28,1978, but not including as members those persons who were discouraged from purchasing underinsured motorists coverage. The court’s opinion further provided:

“Defendants’ argument that the class definition includes claims not addressed at the certification hearing is unfounded. The language of the definition clearly limits the class to only those estates that have not recovered, in lump-sum payments, total work-loss benefits. Thus, the class definition excludes any additional claims or benefits attainable by class members.”

On September 27, 1989, plaintiff served interrogatories on defendant, CNA Insurance Companies, referring to members of the class certified, but asking interrogatories on the questions of underinsured motorists coverage and uninsured motorists coverage, beyond the definition of the class certified by this court.

On December 29, 1989, both defendants answered all interrogatories pertaining to plaintiffs decedent, Charles N. Snyder Jr., but objected to all interrogatories referring to other members of the class certified for work-loss benefits, but asking questions on underinsurance and underinsurance motorists coverage.

On December 29, 1989, both defendants also filed the instant motion for protective order, alleging: “No class of persons who have been discouraged from purchasing underinsured motorists coverage, under the No-fault Act, has been certified” (paragraph 10); “Plaintiff, Cynthia Snyder, has not been nominated as a proper representative of a class of individuals who were discouraged from purchasing underinsurance under the No-fault Act, if a class exists” (paragraph 11); and, “Plaintiffs interrogatories seek to create a class of persons by asking interrogatories about members of a different class of persons, namely, survivors or the estate of all those whose decedents died on or after September 28, 1978, and were not paid work-loss benefits in a lump sum.” (paragraph 12)

On January 17, 1990, plaintiff filed an answer to defendants’ motion for protective order and cross-motion of plaintiff to strike defendants’ objections as untimely. With respect to its motion to strike, plaintiff alleges that defendants’ objections dated December 29, 1989, violate Pa.R.C.P. 4004(b) which provides: “Objections to the form of interrogatories are waived unless filed and served upon the party propounding them within the time allowed for serving this succeeding cross or other interrogatories or within 10 days of service of the last interrogatories.” (paragraph 9)

We conclude that plaintiff is not entitled to seek information on persons other than herself, to create the class beyond that which was certified by this court until such class of persons, who were discouraged from purchasing underinsurance benefits which benefits should also have been stacked, has been duly certified.

At informal argument and discussion by counsel, it became clear that the critical issue is whether the court should grant the protective order sought by defendants despite the fact that defendants were late in objecting to plaintiffs interrogatories.

Although the cases are not in accord, language in Northampton Municipal Authority v. Remsco, 22 D.&C. 3d 541, 547 (1981) suggests that it would be proper to grant defendants’ motion. The court stated:

“While rule 4006(a)(2) provides that objections to interrogatories shall be filed within 30 days, nothing suggests that objections not raised within the 30-day period are waived. Rule 4019(a)(2) contains the only waiver provisions within the rules of discovery. Under this rule, failure to answer written interrogatories is objectionable only if a party has filed objections or applied for a protective order. Furthermore, this rule permits objections to be raised through an application for a protective order and rule 4012 sets forth no time period within which a protective order must be sought.” 22 D.&C. 3d at 547.

In concluding that there was no waiver as a result of a failure to object within 30 days, the court distinguished between objections based on the form of the interrogatories and those objections relating to the content and substance of the interrogatories.

The Northampton case follows essentially the analysis of Judge Wettick in Hall v. Sears Roebuck & Co., 14 D.&C. 3d 231, 233 (1980) where Judge Wettick held that a party who fails to file a timely response to interrogatories does not waive the protection of Pa.R.C.P. 4011 against bad faith or oppressive discovery; objections to discovery may be filed prior to the hearing on an opponent’s motion for sanctions even though the objections are filed outside the 30-day period of Pa.R.C.P. 4006(2). Judge Wettick’s analysis was based on rule 4011 which provides absolute protection from discovery, and in the absence of any other rule, indication that rule 401 l’s protection is lost for failure to file objections within the 30-day period under rule 4006(2).

The application of the foregoing conclusions of law to the facts in the instant case leads us to hold it would be proper to grant the protective order. As plaintiff seeking the names of people that are potential class members, plaintiff should first obtain a certification of the class, which has not been done. Clearly, defendants’ objections go to the substance and content, not the form, of plaintiffs interrogatories. As such objections to the content of interrogatories is not waived because of tardiness, defendants’ objections are proper and have not been waived.

Accordingly, we will enter the following

ORDER

And now, June 18, 1990, the objections of defendants, CNA Insurance Companies and Valley Forge Insurance Company, to the interrogatories of plaintiff, Cynthia M. Snyder, are sustained without prejudice to resubmit, in an appropriate forum and at an appropriate time, of a class of persons who were discouraged from purchasing underinsurance benefits, which benefits should also be stacked, has been duly certified.

The cross-motion of plaintiff, Cynthia M. Snyder, to strike the motion for defendants for a protective order filed December 29, 1989, is refused and dismissed.


author: LOWE, J.,

text:
    Continental Bank v. Simons

      Glen S. Gitomer, for plaintiff.

      Howard Gershman, for defendants Alan Simons and Annette Simons.

      Daniel B. Pierson V, for defendants Joseph Rosen and Lillian Rosen.
    June 6, 1990
   LOWE, J.,

These cases are on appeal before the Superior Court of Pennsylvania from orders entered by the undersigned on (1) March 20, 1990 consolidating plaintiff Continental Bank’s separate actions against defendants Alan and Annette Simons and defendants Joseph and Lillian Rosen and striking plaintiffs writs of execution as violative of Act 6 of 1974, 41 P.S. §407(a) as amended; (2) March 27, 1990 awarding defendants Alan and Annette Simons attorney fees as mandated and provided for in 41 P.S. §§407(b) and 503; (3) April 2, 1990 awarding defendants Joseph and Lillian Rosen attorney fees under the same legislated provisions.

A brief summary of the facts of this case is as follows. Defendants, relative to business ventures, executed surety agreements and mortgages with plaintiff granting plaintiff a security interest in the defendants’ residences. These executed documents contained confession of judgment clauses.

Payments on the agreements were not forthcoming. Therefore, on January 23, 1986 plaintiff caused to enter a confession of judgment in Montgomery County against defendants.

On January 8, 1990 plaintiff filed writs of execution against defendants causing defendants’ residences to be scheduled for sheriffs sale in March 1990.

Believing plaintiffs actions pursuant to the writs of execution to be a violation of 41 P.S. §407(a), as amended, defendants petitioned this court for a stay of execution and a stay and/or striking of the writs. A stay of execution was granted and argument on striking was scheduled March 13, 1990.

After argument and upon consideration of the briefs of counsel and the law cited therein, this court entered the orders complained of striking plaintiffs writs and awarding attorney fees.

Plaintiff has filed two sets of concise statements of matters complained of on appeal which are identical in content and directed to each husband and wife party-defendant. The cases were consolidated without opposition by plaintiff. Therefore, the concise statements have been consolidated for purposes of this opinion.

Plaintiff alleges:

“[T]he court erred as a matter of law in holding that section 407(a) of Act 6, 41 P.S. §407(a), precluded a judgment creditor from issuing a writ of execution to list defendants’ residential property for sheriff sale pursuant to a confessed judgment on an obligation, which was in the original principal amount of well in excess of $50,000 and, therefore, not a ‘residential mortgage’ obligation as defined by Act 6, 41 P.S. §101 . . . [b]ecause the ‘triggering mechanism’ of Act 6 of the existence of a ‘residential mortgage’ obligation was not present in this action, the court improperly extended the protection of Act 6, 41 P.S. §101 et seq., to an obligation which was not within its purview.”

Plaintiffs allegation ignores the fact that the General Assembly of the Commonwealth of Pennsylvania by amendment deleted the term “residential mortgage” from 41 P.S. §407(a) and inserted the term “residential real property” in its place. “Residential mortgages” as defined in 41 P.S. §101 are limited to mortgages of $50,000 or less. “Residential real property” as defined in 41 P.S. §101 contains no such monetary restriction and instead applies to “real property located within this commonwealth containing not more than two residential units or on which not more than two residential units are to be constructed and includes a residential condominium unit.” This court can fathom no other reason for amending the language of this subsection of the entire a'ct other than to extend to all non-corporate residential mortgagors the protections afforded in 41 P.S. §407(a) requiring creditors to proceed by original action before executing upon residential real property. The correctness of this conclusion is advanced in the opinion of the Honorable David A. Scholl, In re Jackson, 92 B.R. 987, 997 (Bankruptcy, E.D. Pa. 1988) and the opinion of the Honorable Michael V. Franciosa, Lafayette Trust Bank v. JAJ Corporation, 17 D.&C. 3d 256, 260, 261 (1980). .

In its brief filed with this court plaintiff cites McDowell National Bank of Sharon v. Stupka, 310 Pa. Super. 143, 456 A.2d 540 (1983); General Electric Corp. v. Slawek, 269 Pa. Super. 171, 177 n.5, 409 A.2d 420, 422-3 n.5 (1979); and President Judge Cirillo’s slip opinion in Beckett v. Laux, (Pa. Super. 1990, opinion later withdrawn by the court) in support of its position. Plaintiffs reliance on these cases is misplaced.

In McDowell it was not established that the subject five parcels of property were the residences of the appellees and therefore the parcels were outside the scope of 41 P.S. §407(a).

The court in Slawek relied upon the pre-amended language of 407(a) in its decision because the initial action and order appealed from were years in advance of the legislated amendment. Furthermore, and contrary to plaintiffs allegation in its brief, this court does not read the Slawek opinion as “anticipating” future decisions of the Superior Court.

In Beckett Judge Cirillo determined that a note for $10,000 was transformed into a residential mortgage by effect of confessing judgment on the note secured by residential property owned by the defendant. Clearly the amount of the note falls within the definition of “residential mortgage” — $50,000 or íess — and is not analogous to the facts at bar.

Had defendants filed their petitions previous to the amending of 41 P.S. §407(a) this court would have dismissed the petitions and permitted plaintiff to proceed with the execution and sheriffs sale. However, defendants’ petitions were filed 12 years after amendment and their residences fall within the purview and protections of present day 41 P.S. §407(a) by virtue of legislative enactment which now requires plaintiff to proceed by original action before executing upon defendants’ residential real property. Granting the petitions was warranted.

Plaintiff also alleges the court erred by awarding attorney fees payable to defendants’ counsel rather than to defendants themselves. Defendants in this action have prevailed in resisting plaintiffs attempt to proceed by writ of execution against defendants’ residential real property. In accord with Gardner v. Clark, 349 Pa. Super. 297, 503 A.2d 8 (1986) and Beckett, supra, defendants are entitled to an award of attorney fees as mandated in 41 P.S. §407(b) and provided for in 41 P.S. §503 and plaintiff is without standing to challenge defendants’ demand of payment to their attorneys. Plaintiff would apparently argue that any award provided to defendants should be offset against the underlying judgment. However, as in Gardner and Beckett, the prevailing party is entitled to the award of attorney fees regardless of the validity of the underlying judgment. For in fact it is plaintiff that failed to follow the legislated procedure of 41 P.S. §407(a). Therefore the General Assembly has determined that defendants such as the Simonses and Rosens should not be required to incur compounded costs of defending themselves and their residential real property because of plaintiffs failure to follow procedure.

Based upon the reasoning of this opinion the orders of this court entered March 20, 27, and April 2, 1990 should be affirmed.


author:
SMITH, J.,
     SMITH, J.,

text:
    Sunset Development Inc. v. Board of Supervisors of East Pikeland Township

      Joseph E. Brion and J. Edmund Mullin, for appellant. •

      James E. McErlane and William P. Mahon, for appellee.

      Ronald C. Nagle, for intervenor.
    July 13, 1990
   SMITH, J.,

Before us is the appeal of Sunset Development Inc. from a decision of the Board of Supervisors of East Pikeland Township to deny Sunset’s application for preliminary subdivision appeal.

Appellant, Sunset, is the owner of a certain tract of land (Barley Farms) situated in East Pikeland Township totalling approximately 35.2 acres. On November 9,1987, Sunset submitted an application for preliminary subdivision approval of Barley Farms along with preliminary plans proposing the creation of 39 building lots on the property. Sunset gave the township, via written extensions of time, until January 17, 1989, in which to consider arid rule upon the preliminary subdivision plans. Between the date of the initial application and September 1, 1988, appellant made various modifications to, and submitted revised preliminary plans for, the Barley Farms project. During this period of time, Sunset decreased the nuiriber of proposed lots.

The board orally denied Sunset’s application on January 17, 1989. The board issued written notification of its denial to Sunset 15 days later, setting forth its reasons for not approving the preliminary plan of subdivision. Sunset filed a notice of appeal alleging that the board’s denial was arbitrary and capricious, an abuse of discretion and contrary to law. Specifically, Sunset has raised four issues: (1) Whether the board’s decision was timely under the Pennsylvania Municipalities Planning Code, section 508(1), 53 P.S. §10508(1) and the East Pikeland Township Subdivision and Land Development Ordinance §303(g); (2) Whether the board violated the Sunshine Act, 65 P.S. §271 et seq.; (3) Whether the board’s decision failed to comply with MPC, section 508(2), 53 P.S. §10508(2); and (4) Whether the board abused its discretion in denying Sunset’s application for preliminary subdivision approval.

Sunset, in its notice of appeal, paragraph 7.A, alleges that:

“The last extension for review granted by appellant to appellee expired on January 17, 1989 and section 508 of the Municipalities Planning Code (53 P.S. §10508) requires that a board must render'its decision and communicate it to the applicant within the applicable period as may be extended by the applicant. In fact, the decision was made on the last day of the extended time period but was not communicated in writing to applicant until 15 days following the decision. ” Notice of appeal, paragraph 7.A. (emphasis supplied)

In examining the returned record, we discovered that it contained only certain portions of the East Pikeland Township Subdivision and Land Development Ordinance and Zoning Ordinance. We requested and received from appellant’s counsel a complete copy of the subdivision ordinance and similarly obtained a copy of the entire zoning ordinance from appellee’s counsel. After receiving the subdivision ordinance, we sent opposing counsel a letter requesting that they indicate whether certain portions of the subdivision ordinance had been “amended, altered, modified or otherwise repealed before the relevant time period. . .” Counsel have responded that the provisions cited have not been changed.

According to MPC, section 508, where there has been an application for subdivision approval:

“The decision of the governing body or the planning agency shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than 15 days following the decision. ” 53 P.S. §10508(1). (emphasis supplied)

The township subdivision ordinance, however, states that:

“All applications for approval of a plot shall be acted upon by the board not later than 90 days after such application is filed. The decision of the board shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than five days following the decision. Failure of the board to so act shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of communication of the decision.” East Pikeland Township Subdivision and Land Development Ordinance, section 303(g). (emphasis supplied)

It is well-settled that “[a] subdivision ordinance being legislative enactment in derogation of the common law and therefore a restriction upon the free use of one’s property, must be strictly construed against the municipality.” Gulf Oil Corporation of Pennsylvania v. Warminster Township Board of Supervisors, 26 Bucks L. Rep. 301, 303 (1975), quoting Appeal of Robust, 63 Lancaster L. Rev. 305 (1971), and affirmed, 22 Pa. Commw. 63, 348 A.2d 485 (1975); Akin v. South Middletown Township Zoning Hearing Board, 120 Pa. Commw. 112, 547 A.2d 883 (1988); Martorano v. Board of Commissioners of Cheltenham Township of Montgomery County, 51 Pa. Commw. 202, 414 A.2d 411 (1980); Appeal of B.J. Development Corp., 18 Chester L. Rep. 98 (1970). It is also true that the MPC takes precedence over and invalidates a local subdivision ordinance to the extent that such provisions are inconsistent with the MPC. Boyd v. Zoning Hearing Board of Churchill Borough, 83 Pa. Commw. 110, 476 A.2d 499 (1984); Atlantic Richfield Co. v. Della Vecchia, 69 Pa. Commw. 235, 450 A.2d 792 (1982); Cohen v. Ford, 19 Pa. Commw. 417, 339 A.2d 175 (1975); Strause v. Maidencreek Township, 41 D.&C. 3d 273 (1985); Parkesburg Associates Registered v. Cassidy, 23 Chester L. Rep. 283 (1975); 53 P.S. §10103. However:

“[N]ot every deviation from the language of the [MPC] results in an inconsistency. The language of an ordinance need not be identical to that of the [MPC] in order to be consistent with its provisions; it is enough that the language, when applied, creates no conflict with the provisions mandated by the [MP C].” Boyd v. Zoning Hearing Board of Churchill Borough, supra, at 114, 476 A.2d at 501-2.
In adopting MPC, section 508, the legislature specifically allowed municipalities to enact local subdivision ordinances containing shorter time periods in which a governing body or planning agency must act in approving or denying the plan and in which it must communicate, in writing, that decision to the applicant.
“All applications for approval of a plot . . . whether preliminary or final, shall be acted upon by the governing body . . . Within such time periods as may be fixed in the subdivisions and land development ordinance but the governing body . . . shall render its decision and communicate it to the applicant not later than 90 days following the date of the regular meeting of the governing body. . ..
“(1) The decision . . . shall be in writing and shall be communicated to the applicant. . . not later than 15 days following the decisions.
“(3) Failure ... to render a decision and communicate it to the applicant Within the time and in the manner required herein shall be deemed an approval . . . unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of the decision. . ..” 53 P.S. §10508. (emphasis supplied)

The subdivision ordinance’s language in the case sub judice, requiring issuance of the written decision within five days, while not identical to the MPC requirement that the written decision be communicated within 15 days, creates no conflict with the MPC’s provisions. The subdivision ordinance is not inconsistent with, but merely more restrictive than, the MPC’s requirement. The board by enacting section 303(g) of the subdivision ordinance has imposed upon itself a greater burden than that which the commonwealth mandates.

The board, by not communicating the written decision to appellant within five days of denying the preliminary subdivision plan, violated section 303(g) of the township’s subdivision ordinance. Thus, the “[fjailure of the board to so act shall be deemed an approval of the [application in terms as presented. . . .” East Pikeland Township Subdivision and Land Development Ordinance, §303(g).

ORDER

And now, July 13, 1990, upon consideration of Sunset Development Inc.’s notice of appeal and after careful review of the record, this court finds that the Board of Supervisors of East Pikeland Township, having failed to comply with section 303(g) of the East Pikeland Township Subdivision and Land Ordinance, has caused a deemed approval of the application for preliminary. subdivision approval for the tract of land known as “Barley Farms” in the terms as presented to the board on January 17, 1989. Such deemed approval of the application for preliminary subdivision approval shall not, however, affect appellant’s responsibilities to proceed in accordance with all applicable ordinances and regulations.

SUPPLEMENTAL OPINION

SMITH, J.,

September 18, 1990 — Sunset Developers Inc. appealed to this court from a decision of the Board of Supervisors of East Pikeland Township which denied Sunset’s application for preliminary subdivision approval. On July 13,1990, upon review of record, we entered an opinion and order in which we found a deemed approval of the subdivision application. Both the board and the intervenor, Walter Mullen, have appealed our decision of July 13, 1990, to the Commonwealth Court and have filed statements of matters complained of on appeal. We now write this supplemental opinion pursuant to Pa.R.C.P. 1925(a).

The board and intervenor complain that we erred in that:

Sunset filed a companion action — a complaint in mandamus — with this court on May 15, 1989, no. 85-04198. The Honorable Lawrence E. Wood issued an order on January 26, 1990, relative to the mandamus action, sustaining preliminary objections and dismissing said action. However, Judge Wood’s order of January 26,1990 was not made part of the record and was not considered by us in deciding the subdivision appeal action. Furthermore, although the board and intervenor aver that the mandamus action raised the identical timeliness issue contained in the subdivision appeal, we do not believe that our learned colleague necessarily based his decision in the mandamus action on an interpretation of section 303(g) of the East Pikeland Township Subdivision and Land Ordinance.

Intervenor also contends that this court took additional evidence by supplementing the record and then applied the standard for review applicable only for those cases in which no such additional evidence is taken. In constructing the return of the record, the board included a photocopy of only those sections of the East Pikeland Township Zoning Ordinance (sections 400, 405, 600 and 1407) and East Pikeland Township Subdivision and Land Development Ordinance (sections 200, 401, 501 and 503) which it believed were applicable. We did not believe that Sunset’s appeal could be restricted to those portions of the ordinances which the board thought were relevant. Further, copies of two sections of the zoning ordinance, sections 405 and 1407, were not provided in their entirety. For these reasons, we requested from counsel complete copies of both ordinances.

After'Sunset provided the full text of the ordinances, along with various amendments, we requested of all counsel, via our letter of June 5,1990, confirmation that our version of the ordinance was accurate and up-to-date. We specifically asked if sections 102 and 303(g) remained in effect or whether there had been amendments, alterations modifications or repeals of these sections of which we were unaware. Our actions did not constitute the taking of new evidence.

As to the other points raised by the board and intervenor in their respective matters complained of on appeal, we respectfully refer the Commonwealth Court to our decision of July 13, 1990.

      . Although it can be argued that Sunset’s notice of appeal, paragraph 7.A, raises only a question of timeliness with regard to the MPC, a liberal reading of the averment — especially the second sentence — allows me to view this averment as raising the issue Of timeliness under either the MPC or the township’s Subdivision Ordinance.

      . This letter was sent strictly to ensure that we had the correct version of the ordinance before us. Although the term “evidence” was used in the letter, no “additional” evidence was received by this court and thus our scope of review is limited to determining whether the board abused its discretion or committed an error of law. Noll v. Stewart, 57 Pa. Commw. 559, 427 A.2d 710 (1981).


author: DOWLING, J.,

text:
    Blunt v. The Patriot News Company

      Penny Blackwellfor plaintiff.

      Elizabeth A. Dougherty, for defendants.
    February 27, 1989
   DOWLING, J.,

To be blunt, no way, Betty.

The naked averments of the pleading reveal only the bare facts, but from them emerges a tale somewhat unique in the annals of litigation. The charge is one of sexual harassment, a complaint unknown to the common law, though a transgression perhaps originating in the Garden of Eden for though Eve did say, “The serpent beguiled me and I did eat,”3 it may well have been her exposed charms which seduced poor Adam into savoring the forbidden fruit. We also know from the Book of Genesis of Joseph’s tribulations with Potiphor’s wife, where as a result of his refusing to lie with her, she falsely accused him of rape and he was imprisoned.4

Though a great deal of this nasty sort of thing has probably been occurring over the centuries, its tortious nature has only recently been asserted. To get to the bottom, it seems that Betty invited Larry to her home for a pig roast, during the course of which she pulled his shorts away from his body “exposing his genitals, looked at his penis, and made sexual and joking comments.” On another occasion, it is alleged that she “approached the plaintiff and grabbed his testicles,” and that furthermore, she did “press her bosom against his head.” Then on another occasion, she kicked the plaintiff in the buttocks and then did proceed “to massage plaintiffs buttocks.”

For reasons not appearing of record, Larry resented these atrocious acts and this unsolicited invasion of his private affairs and has replied by suing Betty for sexual harassment alleging that this unspeakable conduct has created an intimidating, hostile and offensive working environment. He has also brought an action against The Patriot-News Company where he and Betty are employed, averring that the employer, despite his complaints, failed to take any action to stop this repulsive behavior.

A demurrer to the complaint is before us, defendants contending that the complaint alleges no Pennsylvania or federal statute as a basis for the suit and that our courts do not recognize a non-statutory or common-law cause of action.

It appears that Mr. Blunt has also filed a complaint on September 12, 1986 with the Pennsylvania Human Relations Commission alleging sexual harassment. This matter is still under investigation, but on October 22, 1987, the commission issued what is known as a one-year letter which advises the complainant that they have the right to bring an action in the appropriate Pennsylvania court of common pleas.

But does a litigation right exist for sexual harassment outside the embraces of the Human Relations Act? If not, it cannot be created by the one-year letter. The Human Relations Commission is concerned with various and sundry forms of discriminatory practice by employers based on race, color, religious creed, ancestry, age, sex, national origin, or disability. 43 P.S. §955(a). While the act does not specifically mention sexual discrimination, the commission, pursuant to its authority to adopt rules and regulations to effectuate the provisions of the act, has adopted guidelines which stated that harassment on the basis of sex is a violation of section 5(a) of the Human Relations Act. 43 P.S. §955(a).

Recent decisions of the Pennsylvania Superior Court have established that no common-law cause of action exists in the Commonwealth of Pennsylvania for the tort of “harassment.” In Sobel v. Wingard, 366 Pa. Super. 482, 531 A.2d 520 (1987), a substitute teacher’s services were terminated because of alleged “problems” with his performance. Plaintiff brought suit against the principal of the high school alleging, inter alia, that he was subjected to “severe harassment.” The Pennsylvania Superior Court affirmed the decision of the Court of Common Pleas of Chester County which granted defendant’s preliminary objections in the nature of a demurrer to the “harassment” count. The court declined “to create a new cause of action in tort for ‘harassment.’ ” Sobel at 487, 531 A.2d at 523.

In so holding, the Sobel court cited its prior decision in DeAngelo v. Fortney, 357 Pa. Super. 127, 515 A.2d 594 (1986), another case in which the Superior Court affirmed the lower court’s grant of the defendant’s preliminary objections in the nature of a demurrer to a claim for “harassment.” The Superior Court stated:

“[Plaintiff] also attempted to state a cause of action against [defendant] for harassment. Pennsylvania courts have not heretofore recognized a separate tort of harassment. We decline to do so in the instant case, being of the opinion that an action for invasion of privacy will ordinarily be an adequate remedy for highly offensive conduct which unreasonably interferes with another’s right to be left alone.” DeAngelo at 132, 515 A.2d at 596.

In what amounts to a one-page brief, plaintiffs merely state in opposing the preliminary objections that a decision from the Lancaster Court of Common Pleas, Young v. Y&S Candies, 45 D. & C.3d 115 (1986), permits the filing of an action in the court of common pleas. This lower court decision is distinguishable in many respects. The opinion dealt only with the responsibility of the employer since plaintiff recovered a default judgment against the employee. Furthermore, the action against the employer sought damages for emotional and mental distress rather than a claim concerning sexual harassment. On the basis of Fye v. Central Transportation Inc., 487 Pa. 137, 409 A.2d 2 (1979), the court accepted jurisdiction and found that plaintiff “has the arguable right to file an action before the court of common pleas.” Young at 120. Fye dealt with a cause of action which dealt with sexual discrimination in that the plaintiff was not rehired after she left for a pregnancy. However, it sustained a demurrer on the basis that there was no common law cause of action for sexual harassment.

“We note initially that our appellate courts have yet to recognize a common-law cause of action which assigns a specific duty on the part of employers to maintain a work environment free from sexual harassment engaged in either by co-employees, as in the instant action, or by supervisors.

“Lacking any guidance from existing decisions of our appellate courts, we feel constrained to forego the creation of a new cause of action independent of the remedies provided by PHRA.” Young at 123.

Thus, it seems evident that the Commonwealth of Pennsylvania does not recognize a cause of action for sexual harassment. Therefore, plaintiff will have to await the pleasure of the Human Relations Commission and continue with the action he has filed there against the employer. It would seem that Betty is out of the way.

To end this affair, we enter the following

ORDER

And now, February 27, 1989, defendants’ preliminary objections in the nature of a demurrer are sustained, and plaintiffs complaint is dismissed.

      . Genesis 3:4.

      . Genesis 29:7-20.


author: MILLER, J.,

text:
    Kincaid Estate

      Joan Joffrey, for estate.

      Anthony J. Vardaro, for Robert T. Kincaid.

      Michael S. Jan Janin, for Patricia Reynolds.

      June 22, 1990
   MILLER, J.,

The executrix seeks to enjoin the surviving, but apparently estranged, husband of the decedent from receiving and disposing of payments made on a mortgage given to the decedent and her husband as tenants by the entireties on the theory that the tenancy was extinguished prior to the decedent’s death.

The facts were stipulated to and are as follows. Dorothy C. Kincaid and Robert T. Kincaid were husband and wife for a long time. In the latter part of 1989 the decedent filed the divorce action against her husband but that was never completed. The decedent died on January 20, 1990.

In 1983, one Patricia Reynolds made and delivered a second mortgage on property in Sadsbury Township to the decedent and her husband. A balloon payment was due in March 1988 and Reynolds was unable to make that payment. Decedent and her husband looked to foreclose on the property when Reynolds filed a voluntary petition in bankruptcy. For some strange reason, not adequately explained on the record, the decedent negotiated, apparently without her husband’s knowledge or involvement, a settlement with Reynolds. Presumably a new mortgage and note were signed carrying new terms with payments to be made to the decedent only. That was approved by the Bankruptcy Court in March 1989. The decedent received the payments. 'Her husband has not received payments for a long time.

In the divorce action between the decedent and her husband, a support or alimony pendente lite matter came before this court and the husband accepted the fact that the mortgage payments made by Reynolds would go directly to the decedent.

Now that the decedent has died her executrix maintains that even though the mortgage from Reynolds to the decedent and her husband was initially owned by the decedent and her husband as tenancy by the entireties, that tenancy terminated and all future mortgage payments as well as the title to the mortgage itself should be made to the executrix. In other words the executrix claims that all right, title and interest of Robert T. Kincaid, decedent’s husband, in the mortgage and bond have been terminated.

Initially we must make a determination as to whether or not we have jurisdiction over this matter even though none of the parties have addressed that issue. The mortgagor is in bankruptcy and one or both of the mortgagees have made a claim before the Bankruptcy Court in the mortgagor’s bankruptcy proceeding.

The Federal District Courts have original and exclusive jurisdiction of all matters in bankruptcy which arise in or are related to any bankruptcy case (28 U.S.C. §157(a)). That right includes “all core proceedings” arising under the Bankruptcy Code (28 U.S.C. §157(b)).

This action does not involve an asset of the debtor. This is not a determination as to whether or not the mortgagor-debtor owes the debt, whether there is any equity that the trustee and/or general creditors would be entitled to obtain, etc. The asset of the debtor that is subject to bankruptcy jurisdiction is the land covered by the mortgage.

Instead, these proceedings center around who the creditor is. That is, who owns the mortgage. This is not one of the core proceedings identified at 28 U.S.C. §157(b)(2). This does not directly concern the debtor’s real property or the debtor’s assets or administration of the debtor’s estate. Furthermore, resolution of this matter requires application of state law. In re Universal Profile Inc., 6 Bankr. 190 (Bankr. M.D. Ga. 1980); In re Turner, 724 F.2d 358 (1983).

Therefore, this court does have jurisdiction over this matter.

This court, sitting as an Orphans’ Court, does have the power to grant injunctive relief and to try title to assets owned by the decedent and her husband. Prior to JARA, section 772 of the Probate Estates and Fiduciary Code provided that the Orphans’ Court had powers of any court of equity to issue injunctions in all matters where jurisdiction was to be exercised. That section has been replaced by sections 323 and 912 of the Judicial Code, 42 Pa.C.S. §§332, 912. Those matters include title to personal property registered in the name of the decedent or alleged to have been in the possession of the decedent at the time of her death (20 Pa.C.S. §711(17)).

The Supreme Court has consistently held that the Orphans’ Court is vested with exclusive authority to adjudicate the ownership of personal property registered in the name of the decedent at the time of the decedent’s death whether or not the decedent’s name appears alone or with the name of other persons. Thomas Estate, 457 Pa. 546, 327 A.2d 31 (1974); Pope v. Dascher, 429 Pa. 576, 240 A.2d 518 (1968).

Even though we have the power to issue injunctions and to try title to property under these circumstances, should we exercise that power in this case? We próbably should not because the threatened injury may not be irreparable; if the executrix is right, she could easily have an adequate remedy at law for money damages. An1 injunction should not be entered unless the party requesting the injunction has a clear right to relief and equity (as opposed to the Orphans’ Court sitting at law) usually does not try title. Most likely wei should determine this matter on the basic principles of the right to equity relief before going on to the merits. We are not doing that now for the sake of expediency and judicial economy. We see no need for another lawsuit. We have determined that it is in the best interest of the parties to resolve this matter on the merits now.

The executrix claims that since decedent’s husband did nothing in the Reynolds’ bankruptcy to stake his claim and since he permitted the decédent to receive the mortgage payments in a proceeding collateral to the divorce, that the tenancy by entire-ties was severed and that the decedent became the sole owner of the mortgage and bond. We do not agree. The decedent did not become the sole owner of the Reynolds’ mortgage and on her death her husband, from whom she had not yet been divorced, became the sole owner of the mortgage and bond as the surviving tenant by the entireties.

An estate by entireties is an estate held by a husband and wife. There is a unity of title. There is a single ownership and a single title. U.S. v. 246 Acres of Land, 78 F.Supp. 377 (D.C. Pa. 1948); In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132 (1945).

When husbands and wives own property as tenants by the entirety they are each considered to be seized of the undivided whole and not by the share. Thus until the end of the marriage neither spouse may compel partition nor sever the entirety property by a unilateral conveyance nor affect the survivor-ship interest of the other spouse. Napotnick v. Equibank and Parkvale Savings Assn., 679 F.2d 316 (1982); Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966) (overruled on other grounds).

One of the tenants may appropriate entireties property for the mutual benefit of both tenants, Shapiro, supra; Gray v. Gray, 275 Pa. Super. 131, 418 A.2d 646 (1980).

A tenancy by the entireties usually terminates by an agreement or death. There is an exception that has been carved out by the courts. Where one spouse appropriates the entireties property for his or her own use the estate may be revoked. That is considered an offer to terminate the estate. The termination is not automatic because the offer must be accepted by the other tenant. Most often acceptance by the non-appropriating tenant is signified by that tenant’s suit for partition of the property. Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975); Gray v. Gray, supra.

The executrix cites Gray, supra, and Livingston v. Livingston, 288 Pa. Super. 22, 430 A.2d 1193 (1981) as authority to support a termination of the entireties estate in this case. Those cases accurately state the present condition of Pennsylvania law but they do not justify the result the executrix desires. In this case there is no showing that husband agreed to a termination of the tenancy. Even if we assume that the decedent attempted to appropriate the entireties property for her own use to the wrongful exclusion of her husband, there is no showing that he agreed or did anything that had the legal effect of the termination of the tenancy. He did not bring a partition action.

At best, he apparently allowed the decedent to receive the mortgage payments but that raises mixed inferences. It could well be that he permitted her to receive those payments so that he would not have to pay support. If that is the case then the use of the entireties property by the decedent was of mutual benefit to both of the tenants. Additionally, either spouse may collect mortgage payments because, presumptively, the monies received will be expended for the benefit of both. Linett v. Linett, 437 Pa. 138, 262 A.2d 849 (1970).

Finally, if there was an acceptance of the decedent’s offer to terminate the estate, by her appropriating the mortgage or payments to herself, she does not end up owning it all. Usually the asset would be divided equally and each would own one-half thereof in his or her own name.

CONCLUSIONS OF LAW

(1) Where entireties property is taken solely by one spouse, said taking and use is presumed to be for the mutual benefit of both.

(2) The manner in which the decedent and her husband held title to a mortgage and bond from Patricia Reynolds was as tenants by the entirety which said tenancy was not terminated or severed during the lifetime of the decedent.

(3) Title to the mortgage and bond from Patricia Reynolds remains in Robert T. Kincaid as a surviving tenant by the entireties.

DECREE NISI

And now, June 22, 1990, it is decreed that:

(1) Title to the mortgage from Patricia Reynolds to Dorothy C. Kincaid and Robert T. Kincaid is owned by Robert T. Kincaid as a surviving tenant by the entireties.

(2) The petition of the executrix for an injunction is denied.

If no timely post-trial motion is filed within 10 days after the executrix or her counsel of record receives notice of the decree nisi, the clerk of courts shall, upon praecipe of any party, enter this decree nisi as a final decree in accordance with rule 227.4 of the Pennsylvania Rules of Civil Procedure.

      . At about the time the new mortgage terms were negotiated between Reynolds and the decedent a continuation of a financing statement was filed of record in Crawford. County. That shows the decedent and her husband as secured parties but with the reference that the husband had died.

      . Section’772 of the Probate, Estates and Fiduciary Code, 20 P.S. §2080.732.


author: CAIAZZA, J,

text:
    Caldaro v. Keystone Insurance Company

      Edward Leymarie Jr., for plaintiff.

      Charles W. Garbett, for defendant.
    April 20, 1989
   CAIAZZA, J,

In the case sub judice both plaintiff and defendant have moved the court for a judgment on the pleadings. There are apparently no factual conflicts which exist between the parties.

This action initially arose as a result of injuries sustained in an automobile accident. Plaintiff was a passenger in a motor vehicle being operated by his wife and following the mishap he filed a tort claim against her.

Defendant, the insurer of plaintiff and his wife, payed plaintiff the sum of $100,000 under the liability provision of the insurance policy.

Pursuant to the provisions of the same policy, plaintiff is now seeking to recover underinsurance proceeds in addition to the liability insurance monies already payed to him. Along with defendant he contends there that there is no complex issue of interpretation involving the insurance policy language. However, he opines that the contractual provision which limits the availability of underinsurance benefits is repugnant to both the purpose and the spirit of the Motor Vehicle Financial Responsibility Law (MVFRL).

Defendant has espoused two arguments in support of his position contending that plaintiff is not entitled to recover both liability and underinsurance proceeds under the provisions of the same insurance policy.

We are here confronted with a specific question of law which has not heretofore been considered by the appellate courts of this commonwealth. Thus, this court will proceed to resolve this issue through an analysis of existing case law.

Defendant’s initial argument is bottomed upon the exclusionary language which appears in the insurance policy. The relevant provision of the insurance contract prohibits an additional recovery pursuant to the underinsurance section following an award which was obtained under the liability provision.

“The limit of liability in the declarations for ‘each person’ for bodily injury liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for ‘each person,’ the limit of liability shown in the declarations for ‘each accident’ for bodily injury liability is our maximum limit of liability for all damages for bodily injury resulting from one auto accident.”

The Superior Court of Pennsylvania in Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 535 A.2d 1145 (1988) held that an exclusionary clause, identical to the one in the case sub judice, did not violate the Motor Vehicle Financial Responsibility Law as it relates to the public policy of this commonwealth.

Plaintiff attempts to distinguish Wolgemuth-, in Wolgemuth plaintiff was a guest passenger; here, plaintiff is the named insured. However, the Wolgemuth court specifically stated that it did not decide whether an insured could recover under both the liability and underinsurance provisions of a single insurance policy.

“We are not here asked to determine, and express no opinion upon, whether an insured, as that term is defined by the Motor Vehicle Financial Responsibility Law, could, under certain circumstances, recover under both the liability and underinsured motorist provisions of a single policy.” Wolgemuth, supra.

• Absent any case law to the contrary the same interpretation as applied to the guest passenger in Wolgemuth .should likewise apply to a named insured.

An Erie County common pleas decision reached the same result as we have concluded here.

In Lytle v. Allstate Insurance Co., Erie County, no. 3013-A-1988, December 9, 1988, the court stated:

“The legal issue before the court is whether a passenger who is killed in a one-vehicle accident may recover both liability and underinsurance motorist benefits from the same carrier under the same policy where the language of the instant policy does not expressly prohibit such recovery.”

The court then discussed the general nature of statutory construction and then continued:

“Underinsured motorist coverage is first-party coverage and, in that sense, the coverage follows the person not the vehicle. Here, however, the decendent passenger’s heirs have already collected under the liability coverage of the insurer of the Stein car. To now collect further under the same insurer’s underinsured motorist coverage would be to convert the underinsured motorist coverage into third-party insurance, treating it essentially the same as third-party liability coverage.”

The court then concluded:

“It is conceded that the petitioner is correct in his argument that the subject exclusion clause is much different in the instant case than in Wolgemuth, supra. Further, the petitioner is also correct when he states where there is ambiguity, the ambiguity must be construed against the insurance carrier who drafted the policy. Still, when those factors are balanced against public policy, legislative history and language contained in Wolgemuth, they fail to meet muster. When the court concluded a balancing test between the words of the contract and the appellate court’s language in Wolgemuth, supra, on statutory intention and legislative history, the scales weighed in favor of the respondents. Therefore, that scale allows this court to expand the decision of Wolgemuth, supra, to cover the present factual situation.” Lytle v. Allstate Insurance Co., Erie County, no. 3013-A-1988, December 9, 1988.

Parenthetically, the court recognizes that plaintiff has paid two separate premiums for the liability and underinsurance protection afforded to him under the terms of the insurance contract. However, he has received a sufficient consideration in return for the added premium; viz. if he is involved in a mishap with a third party and if he is not fully compensated for his loss because of the insurance policy limits of the tort-feasor, the underinsurance provision of his own insurance contract will then be activated thus enabling him to receive supplemental compensation.

In the exercise of judicial restraint, our decision here makes it unnecessary for the court to consider the second argument advanced by defendant. Accordingly, the court denies plaintiffs motion for judgment on the pleadings, and, in the alternative grants defendant’s motion for judgment on the pleadings.

ORDER OF COURT

Pursuant to the provisions of the appended memorandum opinion the court denies plaintiffs motion for judgment on the pleadings, and, in the alternative, grants defendant’s motion for judgment on the pleadings.


author: CICCHETTI, P.J.,

text:
    Rager v. Elias

      Jeffrey T. Olup, for plaintiff.

      Michael J. Macko, for defendant.
    August 28, 1989
   CICCHETTI, P.J.,

Presently before the court is a motion for judgment on the pleadings filed on behalf of plaintiff, Amos L. Rager, t/d/b/a A&R Metals. The pleadings are closed, and the history of the case leading up to the motion is as follows. The question this court must decide is whether defendant’s counterclaim is secured by a lien in accordance with Pa.R.C.P. 1082(a).

Plaintiff filed an action in replevin seeking recovery of personal property in possession of defendant, lessor, John Elias. Plaintiff claims them as his business property, while defendant contends that the property is abandoned, and likewise, defendant’s accompanying leasehold interest. Defendant thereafter filed a counterclaim, proceeding under Pa.R.C.P. 1082(a). Defendant’s counterclaim seeks $3,000 for “outstanding rent”; a $2,000 claim for “storage, clean-up and transportation”; a $6,000 claim for “lost rental revenue” over six months; and a general claim for “storage charges . . . currently occurring” all totaling $11,000.

Plaintiff then filed this motion asking the court to dismiss defendant’s counterclaim because it is a claim in a replevin action unsecured by a lien on the said personal property. The court agrees.

Rule 1082(a) of the Pa.R.C.P. states:

“Counterclaim. Lien. Conditional Verdict
“(a) A claim secured by a lien on the property may be set forth as a counterclaim. No other counterclaim may be asserted.” (emphasis supplied)

As plaintiff notes in his brief, 1082(a) is strictly construed. Bentz v. Barclay, 294 Pa. 300, 144 Atl. 280 (1928); Segal v. McCray, 65 D.&C. 2d 122 (1973). In Lawson v. Johnson, 13 D.&C. 3d 113 (1980), the court announced:

“[U]nless the defendant has pleaded a secured claim in his counterclaim, the counterclaim must be stricken. While under Pennsylvania Law a landlord is entitled to a lien on property of his defaulting tenant, the right is inchoate and no lien is established until legal distraint is had as prescribed by the Landlord and Tenant Act. . .”

In order for a lien to be assertible in a counterclaim in a replevin action, the lien must be one recognized by statute or by the common law or created by agreement; otherwise, it will be rejected. See Courts v. Britt and Hanks, 52 D.&C. 2d 758 (1971). In defendant’s counterclaim in the present case, there is no averment that the property is legally or properly distrained under 68 P.S. §250.302. Such distraint can only be made by the landlord in writing, stating the cause of such taking, the date of the levy and the personal property distrained. Such was not done by the defendant, and no counterclaim can be asserted.

Defendant’s reliance on Foresman v. Brockerhoff, 23 D.&C. 2d 515 (1960), is misplaced. Defendant contends that Foresman stands for the proposition that merely alleging in a counterclaim that the lease is breached and rent is due creates an implied-in-law lien. This is not true. In Foresman, like here, plaintiff filed a replevin action for recovery of personal property in a lease agreement. Defendant responded in new matter, complaining that since plaintiff had not complied with the provisions of the lease agreement they should not have the right to remove their property. The defendant did not, unlike in the case at bar, seek damages for outstanding rent, nor any consequential damages from the plaintiff. He merely denied plaintiffs allegation of title. Therefore, the court was correct in refusing to label defendant’s answer as a counterclaim. Consequently, since defendant at bar is requesting damages unsecured by a prior distraint on the property, the counterclaim cannot stand.

ORDER

And now, August 28, 1989, plaintiffs motion for judgment on the pleadings as to defendant’s counterclaim is granted, and defendant’s claim is hereby dismissed.


author: WILLIAMS Jr., P.J.,

text:
    Vincent v. Fuller Co.

      Craig Smith and John R. Vivian Jr., for plaintiff.

      Robert C. Brown Jr., for defendants.
    February 28, 1990
   WILLIAMS Jr., P.J.,

This matter is before the court on defendants’ motion for pretrial rulings. Argument was heard by Williams Jr., P.J., on December 5,1989, and briefs have been filed. The issues before the court are:

(1) Whether Vincent’s statutory cause of action under the Pennsylvania Human Relations Act, 43 Pa.C.S. §951 et seq. is barred by his failure to file a ' complaint with the Pennsylvania Human Relations Commission within 90 days of “layoff’ on December 3, 1982.

(2) Whether. Vincent’s statutory cause of action for age discrimination under the PHRA is barred by his failure to file a complaint with the court of common pleas within two years from the date of Vincent’s “layoff’ on December 3, 1982.

(3) Whether Vincent’s common-law cause of action for wrongful discharge for alleged failure of Fuller Company and GATX Corporation to follow corporate policy is barred by Vincent’s failure to file a complaint with the court of common pleas within two years from the date of Vincent’s “layoff’ on December 3, 1982.

(4) Whether the court should reconsider the order of McFadden, denying defendants’ motion for summary judgment on the common-law cause of action for wrongful discharge.

(5) Whether the court should reconsider the order of McFadden, J., denying defendants’ motion for summary judgment on the statutory cause of action for age discrimination.

(6) Whether Vincent is entitled to a jury trial for the statutory cause of action for age discrimination.

Background

On December 17, 1973, Vincent was hired by Fuller, a wholly owned subsidiary of GATX, as manager of engineering services. After seven years, Vincent became manager of administration of the Process, Products and Projects Division. In November 1982, Fuller allegedly eliminated Vincent’s job position pursuant to a work force reduction, and Vincent was “laid off’ effective December 3, 1982. At the time of layoff, Vincent was 58 years of age. On December 3, 1984, Vincent’s “layoff’ became a permanent termination. Vincent contends that the layoff and termination were not economically motivated; rather, they occurred because of his age.

On March 15, 1983, Vincent filed an age-discrimination complaint with the Equal Employment Opportunity Commission under the Federal Age Discrimination in Employment Act. EEOC forwarded a copy of this complaint to the commission. EEOC did not proceed with the processing of the complaint under ADEA. On December 3, 1984, Vincent filed suit in federal court, alleging age discrimination in violation of ADEA. He discontinued and dismissed this suit, without prejudice, on February 26, 1985.

By letter dated February 19, 1985, Vincent, through counsel, filed a copy of the EEOC complaint with the commission. The letter stated that “for purposes of the [PHRA], December 3, 1984, is the date the most recent discriminatory action took place.” On May 11, 1985, Vincent filed an amended verified complaint with the commission.

On February 26, 1985, Vincent filed an original complaint in the Court of Common Pleas of Northampton County alleging, inter alia, causes of action for age discrimination and breach of implied contract in terms of employment. An amended complaint was filed on June 13, 1985. By order of court (Franciosa, /.) dated November 22, 1985, the amended complaint was dismissed for lack of subject matter jurisdiction.

A second amended complaint was filed bn March 4, 1986, alleging, inter alia, age discrimination and breach of implied employment contract. Vincent avers that Fuller and GATX provided him with publications entitled “GATX Personnel Policies and Practices,” and that defendants’ breach of various provisions contained therein form the basis in part for the causes of action. Preliminaiy objections were filed on March 24, 1986. By order of court (Van Antwerpen,/.) dated June 26, 1986, all preliminary objections were denied and dismissed.

On October 11, 1988, Fuller and GATX filed a motion for summary judgment. The court (McFadden, /.) granted the motion for summary judgment only as to claims relating to policy 4.01, dealing with non-union salaried employees with 10 or more years of service. It is with this background that we address defendants’ latest pretrial motions.

Statutory Cause of Action Under PHRA Complaint Filed with Commission

Vincent first filed an age-discrimination complaint with the EEOC on March 13, 1983. The EEOC transmitted the complaint to the commission shortly thereafter. Such a transmittal constitutes a “filing” with the commission within the meaning of the PHRA. Lukus v. Westinghouse Electric Corporation, 276 Pa. Super. 232, 272, 419 A.2d 431, 452 (1980). At the time of Vincent’s layoff, the time limitation for filing a complaint under the PHRA was 90 days. 43 P.S. §959(g). This complaint was clearly not filed within the 90-day deadline, and thus is. time-barred. Any statutory cause of action arising from the alleged discriminatory layoff is barred by the statute of limitations.

On February 19, 1985, Vincent timely filed a complaint with the commission for age discrimination in the termination of his employment. Vincent filed an amended verified complaint on May 11, 1985.

Fuller and GATX allege that the date the verified complaint was filed should be the “date of filing” for PHRA purposes. They contend that the filing of an unverified complaint cannot be permitted to toll the limitation period for filing a discrimination complaint with the commission, that this impermissibly lengthens the 90-day limitation period. We agree.

Recently, in Pennsylvania Human Relations commission v. School District of Philadelphia, 522 Pa. 436, 562 A.2d 313 (1989), an equally divided Supreme Court allowed an order of the Commonwealth Court to stand which provided that the commission could not enlarge the statutory period for filing a verified complaint. The opinion in support of affirmance relied upon Murphy v. Commonwealth, 506 Pa. 549, 486 A.2d 388 (1985), which approved the dismissal of a complaint that failed to set forth the particulars of the claim. The court noted that under the PHRA, the jurisdiction of the commission is invoked by filing a verified complaint which states with, particularity the discriminatory practices complained of. Murphy, 506 Pa. at 557, 486 A.2d at 392. “A filing which does not comply with these strictures improperly invokes the commission’s jurisdiction, and is in fact a nullity.” Id. In the case before us, Vincent failed to file a verified complaint within 90 days of the termination of his employment. Accordingly, the jurisdiction of the commission was never properly invoked, and any statutory cause of action based on the discriminatory discharge is barred by the statute of limitations.

Statutory Cause of Action Under PHRA Complaint Filed with Northampton County Court of Common Pleas

The law in Pennsylvania regarding discrimination in employment is clear: where a complainant fails to pursue a claim before the commission, he or she is precluded from bringing judicial action. Clay v. Advanced Computer Applications Inc., 522 Pa. 86, 559 A.2d 917 (1989); Householder v. Kensington Manufacturing Company, 360 Pa. Super. 290, 294, 520 A.2d 461, 464 (1987), alloc. den., 516 Pa. 629, 532 A.2d 1137 (1987); Gruver v. Intermetro Industries Corporation, 1 D.&C. 4th 166 (1988); Wojciak v. Security-Peoples Trust Company, 32 D.&C. 3d 258, 259-60 (1984). Vincent will not be permitted to pursue a statutory cause of action under the PHRA for either discriminatory layoff or discriminatory termination.

Common-Law Cause of Action for Wrongful Discharge

Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974), clearly enunciated the doctrine that an “at-will” employment relationship can be terminated for any or no reason unless some clear mandate of public policy is violated. 456 Pa. at 185, 319 A.2d at 180. While age discrimination may violate a “clear mandate of public policy,” no common-law cause of action is available to Vincent for wrongful discharge based on age discrimination since Pennsylvania has provided the exclusive remedy for age discrimination in the PHRA.

Reconsideration of Summary Judgment Denials

The general rule is that absent some new evidence, an interlocutory order entered by another judge of this same court cannot be properly overruled. Farber v. Engle, 106 Pa. Commw. 173, 177, 525 A.2d 864, 866 (1987). The principle behind this rule is to promote judicial economy and efficiency. Id. Defendants have asked us to reconsider Judge McFadden’s summary judgment denials on the common-law cause of action for wrongful discharge and on the statutory cause of action for age discrimination.

Fuller and GATX refer in their brief to the common-law cause of action for wrongful discharge. As discussed supra, no such cause of action exists where an at-will employment relationship is involved. Clearly, any motion, for summary judgment based on the tort of wrongful discharge must be granted.

However, Vincent also asserts a common-law cause of action for breach of an implied employment contract. In her opinion dated December 30, 1988, Judge McFadden denied defendants’ motion for summary judgment on this theory. In view of recent case law, we reconsider her decision solely to promote judicial economy and efficiency.

Since we are reconsidering a motion for summary judgment, we are bound to view the record in a light most favorable to the non-moving party. Summary judgment is proper only where plaintiff has not established a prima facie case. Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 476 A.2d 928 (1984). From our review of the record, we cannot determine whether the publication on which Vincent relies is an employee handbook, given to each employee by virtue of his or her employment with Fuller or GATX, or whether it is merely a statement of corporate policy, disseminated to managerial employees for guidance purposes in dealing with personnel matters. Since we conclude that no implied employment contract was created in either situation, this factual issue is not so material that summary judgment should be denied.

“It is not sufficient to show [defendants] had a policy. It must be shown they offered it as binding terms of employment. A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.” Morosetti v. Louisiana Land and Exploration Company, 522 Pa. 492, 564 A.2d 151 (1989), citing Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 466 A.2d 1084.(1983). Vincent has not demonstrated that the policies on which he relies were “part of a definite offer of employment.”

. Our Superior Court has stated that a “handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule.” Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 97, 545 A.2d 334, 337 (1988). (citations omitted) It is well settled that “great clarity is necessary to contract away the at-will presumption.” 376 Pa. Super. at 99, 545 A.2d at 338. The employee’s pleadings must raise a legally sufficient factual dispute. The court may then “examine the factual averments and decide that the surrounding circumstances ... do not sufficiently manifest an intent to overcome the at-will presumption.” 376 Pa. Super. at 103, 545 A.2d at 340.

The court in Scott was unable to find a clear indication that the handbook at issue manifested the employer’s intent to overcome the at-will presumption. 376 Pa. Super, at 99, 545 A.2d at 338. Our review of the surrounding circumstances in this litigation leads us to a similar result. The publication relied upon by Vincent does not suggest that defendants are obligated to permanently offer employment to Vincent, nor does it otherwise establish the existence of a contractual employment relationship between the parties. In other words, Vincent has not rebutted the at-will employment presumption.

Policy 2.09 states, in pertinent part:

“Before' an employee is terminated, the local personnel officer will review all documentation supporting the termination and then determine if appropriate employment opportunities, at a level commensúrate with the employee’s ability, exist elsewhere in the company.”

Vincent argues that, by this policy provision, “he was promised certain treatment by his employer, that he relied on that promise to his detriment, and that the employer broke that promise in failing to consider him for available company positions following his ‘temporary’ layoff up to the time he was permanently terminated. This is a straightforward contract claim. ...” Plaintiffs memorandum in opposition to defendants’ pretrial motions at 10. (emphasis supplied) Our Supreme Court has recently announced that the equitable estoppel doctrine will not provide an exception to the Geary at-will employment doctrine. Paul v. Lankenau Hospital, no. J-163-1989, slip op. at 7 (Pa. February 1, 1990).

Vincent cannot overcome the at-will presumption by alleging the “employee handbook” creates a contract. Nor is he able to assert equitable estoppel in support of his contract claim. Accordingly, Fuller and GATX are entitled to judgment as a matter of law, and summary judgment will be granted as to all common-law causes of action.

ORDER

And now, February 28, 1990, in accordance with the foregoing opinion, defendants’ motion for pretrial rulings is granted.

Vincent’s statutory causes of action for discriminatory layoff and discriminatory discharge are dismissed as time-barred. Defendants’ motion for summary judgment as to all common-law causes of action is granted.

Accordingly,, judgment is entered for the defendants.

      . In the first three issues presented, defendants alternatively seek to limit the time period for which Vincent can offer proof. In view of our treatment of the underlying issues, we do not reach these alternative questions.

      . Fuller contends that the company designated the separation from employment a “layoff” so that Vincent would qualify to receive a vested deferred pension at age 65.

      . The motion for summary judgment before Judge McFadden also sought dismissal of Vincent’s common-law action for breach of contract and dismissal of Vincent’s statutory action for age discrimination. It' is the denial of summary judgment relating to these issues that Fuller and GATX are asking us to reconsider.

      . This complaint was timely filed before the EEOC, which has a 180-day limitation period.

      . In 1986, the statute was amended to extend the filing deadline from 90 to 180 days. December 16, 1986, P.L. 1626, no. 186, §10.

      . GATX policy 1.01 refers to equal employment opportunities. As noted supra, the PHRA provides the sole remedy for discrimination. No common-law cause of action for age discrimination in employment exists. For the reasons enunciated infra, Vincent will not be permitted to circumvent the provisions of the PHRA by alleging that a contractual employment relationship also gives him a cause of action, sounding in contract instead of tort, for wrongful discriminatory termination.

      . The publication on which Vincent relies is entitled “GATX Personnel Policies and Practices.” Judge McFadden denied summary judgment as to policies numbered 1.01 and 2.09, discussed infra.