author: THOMAS, P.J.,

text:
    Cotter v. Conneaut Lake Park Volunteer Fire Department

      Robert T. Kane, for plaintiffs.

      Mark E. Mioduszewski and Jane Ann Thompson, for defendants.
    January 5, 1989
   THOMAS, P.J.,

This matter is before the court on defendant’s motion for summary judgment arising out of a series of events which occurred at the fire hall of the Conneaut Lake Park Volunteer Fire Department between the evening hours of October 16, 1983, and the early morning hours of October 17, 1983. Plaintiffs have alleged that plaintiff/husband, William Cotter, arrived at the fire hall at approximately 6:00 p.m., Sunday, October 16, 1983, sober and in good health. While at the fire hall, employees of the fire hall served plaintiff/ husband alcoholic beverages and allegedly continued to serve him such beverages after he was visibly intoxicated. At approximately midnight defendant Richard Dennis relieved the bartender on duty and continued to tend bar. Plaintiffs allege that at some time in the early morning hours of October 17, 1983, plaintiff/husband either fell off his bar stool or an altercation arose in the fire hall between him and defendant Richard Dennis. Plaintiffs claim that plaintiff/husband was later found near the bar “face down in a pool of blood” by the janitors. It is alleged defendant Richard Dennis cleaned the blood from plaintiff/husband, but did nothing further to help plaintiff/husband receive medical treatment. Instead, at some point in time between 6:30 a.m. and 7:00 a.m. defendant Richard Dennis transported plaintiff/husband to the Fairway Motel where plaintiff/wife, Dorothy Cotter, was working. Plaintiffs allege defendant Richard Dennis at this time did not indicate that plaintiff/husband was injured, but stated that her husband was intoxicated and needed to sleep it off. Plaintiff wife had defendant Richard Dennis put her husband into a bed at the Fairway Motel. Around 3:30 p.m. that same day plaintiff-/wife in checking on her sleeping husband found him unconscious and discovered many bruises and lacerations on his face and body. She took her husband to the hospital where he was hospitalized from October 17, 1983, through November 16, 1983.

Plaintiffs allege that the injuries to the plaintiff/ husband resulted from either a fall from the bar or an altercation between, him and defendant Richard Dennis. They further allege that the numerous bruises and lacerations sustained to plaintiff/husband’s head and torso have caused him permanent brain damage, and that defendants are liable for their negligence in servicing plaintiff/husband after he was intoxicated; in failing to protect the intoxicated plaintiff/husband from other patrons and defendant Richard Dennis; and in failing to render proper care to the husband when Richard Dennis knew or should have known of the husband’s serious injuries.

Defendants argue that they are not liable for plaintiff/husband’s injuries and are entitled to summary judgment for the following three reasons:

(1) Defendants are shielded, from immunity under the Pennsylvania Governmental Immunity Act, 42 Pa.C.S. §8541 et. seq.;

(2) Plaintiffs have presented no evidence to support the allegation that plaintiff/husband’s injuries resulted from an altercation involving defendant Richard Dennis;

(3) Plaintiff/husband, as a member of defendant fire department, cannot impose liability against the fire department or another member thereof for injuries allegedly sustained by the tortious conduct of the fire department or another member of the fire department.

Defendants postulate that under the Governmental Immunity Act, 42 Pa.C.S. §8541, et seq., local agencies and employees are immune from liability. They cite the case of Wilson v. Dravosburg Volunteer Fire Department, 101 Pa. Commw. 284, 516 A.2d 100 (1986); and Weaver v. Union City Volunteer Fire Department, 102 Pa. Commw. 298, 518 A.2d 7 (1986), in support of their argument that volunteer fire departments are local agencies and are immune from liability arising from the torts of their servants. Defendants argue that the fire hall in which the husband allegedly was injured is an integral part of the fire department, without which the fire department could not exist, because it depends on the fire hall activities for income and donations. Defendants, therefore, claim that defendant fire department and its employee, defendant Richard Dennis, are immune from liability for plaintiff/husband’s alleged injuries.

In examining the cases cited by defendants, we find that the Commonwealth Court in Wilson looked at the definition of “government agency” as defined in 42 Pa.C.S. §102 in determining whether a volunteer fire department is a “local agency” under the act. The court concluded:

“We construe the term local agency to include volunteer fire companies as a government unit entitled to immunity under the 1980 Immunity Act. Volunteer fire companies, in the performance of public firefighting duties, exist as an entity on behalf of local government units.” Wilson at 287, 516 A.2d 102. (emphasis supplied)

The court’s reasoning is repeated in the Weaver case, in which the court held that defendant volunteer fire department was not liable for property damage which occurred during a firefighting exercise. The Commonwealth Court cited the Wilson case and concluded that the fire department’s “firefighting training exercise was within the scope of its public firefighting duties,” and therefore, it was entitled to immunity under the 1980 Immunity Act. Weaver, supra, We also note the case of Zern v. Muldoon, 101 Pa. Commw. 258, 516 A.2d 799 (1986), cited in defendants’ brief, in which the Commonwealth Court discussed a volunteer fire department’s immunity from liability when it was acting in furtherance of its corporate purpose — i.e., fire prevention, control and extinguishment.

The Wilson, Weaver and Zem cases led us to believe that the legislature intended the Governmental Immunity Act to apply to such as city police departments, township highway maintenance crews, and volunteer fire departments. However, the proprietary function of a fire hall, while supportive of and necessary for the fire department’s existence, . is not a function unique to governmental duties. We believe that it would be stretching the scope of the Governmental Immunity Act to conclude that the act provides immunity to all proprietary functions of a local agency, for any tortious liability incurred by the agency’s employees. We, therefore, reject defendants argument that the Immunity Act shields them from liability.

Defendants next argue that they are not liable because plaintiffs have presented no evidence to support the allegation that defendant Richard Dennis engaged in any willful misconduct which would take him outside the protection of the Governmental Immunity Act. We reject this argument, having already stated that we do not believe that an issue exists as to whether defendant Richard Dennis committed a battery upon plaintiff/husband and that plaintiffs should be permitted to explore the issue further during discovery.

Defendants cite the recent case of Plasterer v. Paine, 375 Pa. Super. 407, 544 A.2d 985 (1988), in support of their final argument that plaintiff/husband, as a member of defendant fire department, cannot impose liability against the fire department or another member thereof for injuries allegedly sustained by the conduct of the fire department or another member. Defendants state that the facts in the present case bear a compelling similarity to those in Plasterer. Plaintiff in Plasterer was a member of a fire company’s social club who sued the social club and another member, Mr. Paine, for injuries he sustained in an altercation with Mr. Paine occurring in the social club’s barroom. On appeal, the Superior Court affirmed the trial court’s judgment n.o.v. in favor of the fire company, holding that Mr. Plasterer:

“[A]s a member of an unincorporated association may not recover from the association in tort because the negligence of a member, including the association and its officers, is imputed to all of its members.” Plasterer, supra.

While the Plasterer case appears to be factually similar, a closer look reveals an important distinguishing factor between the two cases. In Plasterer, plaintiff and defendant, Paine, were members of the social club and had authority to vote; thus, they both had an equal voice in the control of the club and the barroom. Plaintiff/husband states in an affidavit attached to plaintiffs’ brief that at the time of his injuries in 1983 he was a “social member” of defendant fire department. We note that according to the by-laws of defendant fire department, attached to defendants’ supplemental brief, a social member does not have the right to vote. Such a member would be excluded from participating in any decision-making by defendant fire department. The status of defendant Richard Dennis, as stated by defendants in their original brief, is that of an employee of defendant fire department. It, therefore, appears in contrast to Plasterer, that plaintiff/ husband is a social member having no voting rights, thus having no voice in the hiring of an employee such as defendant Richard Dennis and that defendant Richard Dennis is not even a member. Thus, the parties’ relationship to the fire department in this case are decidedly different than they were in Plasterer — two members on equal terms participating in the activities of an association and having equal voting powers.

The rationale behind the Pennsylvania law of imputing the negligence of one member of an association to all of its members and officers is that all the members work jointly toward achieving a common goal, each having an equal say and' equal responsibility in the operations and functions of the association; thus, a member injured as a result of the tortious conduct of another member is just as liable himself for that conduct as is the member causing the injury and all the other members of the association. We do not believe that this rationale is applicable to the situation in the present case in light of the facts as they appear from the record at this time.

Pursuant to Pa.R.C.P. 1035, a motion for summary judgment may be entered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to. a judgment as a matter of law. We find that there exist genuine issues of fact as to whether defendant Richard Dennis committed a battery upon plaintiff/ husband, and as to the real status of plaintiff/husband and defendants. We believe that such issues should be explored further during discovery. We do not find that defendants have pled facts sufficient to show that they are shielded from liability under the Governmental Immunity Act and to entitle them to judgment as a matter of law. Accordingly, we deny defendants’ request for summary judgment.


source: Caselaw Access Project

author: GARDNER, J.,

license: Public Domain

text:
    Birosik v. Stevens

      Karl F. Longenbach, for plaintiff.

      Joseph T. Heber, for defendant John S. Stevens Jr., M.D.
    November 9, 1988
   GARDNER, J.,

This case is before the court on the motion for summary judgment filed by defendant Dr. John S. Stevens Jr., on August 19, 1988.

In this medical malpractice case plaintiff has sued Dr. Stevens for negligence (count I), breach of express and implied warranties (count II), and failure to obtain informed consent to a surgical procedure (count III). Prior to argument plaintiff withdrew count IV of her complaint against defendant doctor. Count IV sought punitive damages for allegedly outrageous conduct.

On March 4, 1988, our colleague, Honorable Robert K. Young, granted a motion for sanctions to defendant doctor. The effect of that order was. to preclude plaintiff from offering any expert testimony at trial.

Plaintiff concedes that the motion for summary judgment should be granted concerning count II alleging breach of express and implied warranties. Plaintiff also concedes that the motion for summary judgment should be granted concerning portions of count I in negligence. Specifically, plaintiff concedes that without expert testimony she is unable to establish that any surgical procedures performed by the doctor in this case breached a standard of professional due care.

Plaintiff contends, however, that her informed consent action (count III) and the remaining portion of her negligence action in count I can go to the jury without an expert witness.

Based upon the pleadings, discovery, and agreements of counsel at oral argument, the facts necessary to dispose of these issues are as follows.

Plaintiff/patient had a tubal ligation performed by defendant/gynecologist at Allentown Osteopathic Hospital- on October 12, 1983. Defendant Dr. Stevens utilized a device known as a Secu-Clip. That device was manufactured by defendant Gynecol Inc. Allentown Osteopathic Hospital, where the procedure was performed, is not a party to this lawsuit.

Plaintiff alleges that in May 1984, despite the procedure, she learned that she had become pregnant. Plaintiff contends that defendant doctor was negligent in that he breached a duty of care by failing to advise her that there was a potential problem with the use of the Secu-Clip in this tubal ligation operation.

What is somewhat unusual about the factual scenario of this case is that plaintiff concedes that Dr. Stevens initially advised her of all known risks necessary to be disclosed as of the time of her initial consent to this procedure in October 1983. Plaintiff contends, however, that thereafter, on or before January 1984, Dr. Stevens had additional information, not available to him in October 1983, which then triggered a duty to disclose additional information, although the surgical procedure had been performed three months earlier.

Plaintiff contends that in January 1984, Dr. Stevens was aware of a pregnancy which occurred to a patient who had a Secu-Clip inserted. Plaintiff alleges that in March and April 1984, Dr. Stevens learned of two additional pregnancies to Secu-Clip patients. In addition, the doctor knew by that time that the local distributor of the Secu-Clip had ceased distributing the product.

Plaintiff contends that in June or July 1984, Dr. Stevens began sending a letter to his patients indicating that he ceased using the Secu-Clip because of the recent incidents of pregnancy. The parties agree that after learning of the first pregnancy in January, Dr. Stevens discontinued using the SecuClip procedure in late January or early February 1984.

Plaintiff contends that Dr. Stevens was negligent in failing to disclose to her prior to her pregnancy in May 1984, the incidence of pregnancy to Secu-Clip patients, the fact of Dr. Stevens’ discontinuance of the procedure, and the distributor’s decision to discontinue distribution of the product.

Plaintiff contends that the doctor had a duty to disclose this information to his patient, and that her pregnancy was caused by his breach of this duty. In • addition, plaintiff contends that defendant doctor violated a duty under the doctrine of informed consent by not disclosing these additional risks to his patient after he became aware of them in early 1984.

In his motion for summary judgment, defendant doctor contends that there is no such cause of action for violation of a “nunc pro tunc” duty to inform a patient after a surgical procedure, and that, even if there is, plaintiff could not establish such a cause of action under informed consent without an expert witness. We agree.

Plaintiff has cited no case, and we are aware of none, for the unique proposition that three months after being properly informed of all material risks legally necessary, and three months after undergoing a surgical procedure with an adequate and informed consent, that the physician subsequently violates any duties under the informed consent doctrine by failing to disclose to that patient new information not previously known to medical science.

The theory of informed consent in Pennsylvania is based upon a battery theory. The physician is considered to have committed a battery upon the body of a patient if he performs a surgical procedure without her informed consent. If the doctor discloses all necessary information to the patient, which he did, and if she consents, which she did, the súrgical procedure does not constitute a battery, and the patient has no cause of action in that regard. What was not a battery in October 1983, cannot become a battery “nunc pro tunc” three months later in 1984 because of newly discovered information.

In the absence of any statutory or case law, we are not inclined to create new law in this novel area. Such changes are the province of the legislature and appellate courts.

Even if we are incorrect in the foregoing analysis, and even if the informed consent doctrine requires a physician to notify a surgical patient of new information three months after the surgery, we nevertheless still grant defendant’s motion for summary judgment because plaintiff cannot produce an expert witness.

The Superior Court of Pennsylvania in two recent cases has held that an informed consent action requires expert testimony to establish the existence, magnitude and other scientific characteristics of the risks of a recommended medical procedure and viable alternatives. Jozsa v. Hottenstein, 364 Pa. Super. 469, 528 A.2d 606 (1987), alloc. denied, 518 Pa. 619, 541 A.2d 746 (1988); Festa v. Greenberg, 354 Pa. Super. 346, 511 A.2d 1371 (1986), alloc. denied, 515 Pa. 580, 527 A.2d 541 (1987).

Although expert testimony is not required in informed consent cases to establish the materiality of such risks, such testimony is required to establish the existence of those risks and the existence of alternative procedure and the feasibility of those alternatives in the patient’s case. Jozsa, supra; Festa, supra.

We reject plaintiffs contention that Dr. Stevens’ letter to his other patients provides the necessary expert opinion. Plaintiff contends that that letter constitutes an “admission” that he stopped performing the procedure in January 1984, because it was too risky. Even if such an “admission” could be read into Dr. Stevens’ letter, which we do not hold, it does not meet the requisite level of “reasonable medical certainty” required of an expert opinion. Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). Moreover, ordinarily one party may not utilize the opinions of another party’s expert to. establish any necessary elements in the first party’s case in chief.

For the foregoing reasons we grant defendant doctor’s motion for summary judgment concerning count III of plaintiffs complaint involving informed consent.

. The situation is different, however, concerning count I in negligence. We agree with plaintiff that defendant physician may have a duty to disclose to his patient new information which renders a former surgical procedure ineffective or risky to accomplish its intended purpose of contraception. This is a duty different from, and separate and apart from, any informed consent obligations. We believe that the jury could find that a reasonable physician would disclose to all Secu-Clip patients newly acquired information which increases the previously assumed statistics for failure rates. And we believe that a reasonable physician would advise patients promptly upon acquiring such information.

Having determined that there is such a duty to disclose, the question becomes whether plaintiff can establish breach of such duty in the absence of expert testimony. In Pennsylvania there are numerous cases establishing that plaintiff must present expert medical testimony to establish defendant’s malpractice, unless the matter is so simple that it is within common knowledge of the average lay juror, or the doctrine of res ipsa loquitur is applicable. See Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981); Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970); Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968).

In our view this matter is so simple that it is within common knowledge of the average lay juror to assess. Accordingly, plaintiff will be permitted to present a case of negligence to the jury, in the absence of an expert witness, limited solely to the theory of failure to disclose. Nothing contained herein shall preclude defendant doctor from providing expert testimony to the contrary on this issue. We are not ruling that expert testimony is inappropriate. We are only ruling that it is not a condition precedent to plaintiff establishing a case in chief on this negligence theory.

For all of the foregoing reasons we grant in part and deny in part defendant doctor’s motion for summary judgment.

ORDER OF COURT

Now, November 9, 1988, upon consideration of the motion of defendant John S. Stevens Jr., M.D., for summary judgment filed August 19, 1988, upon consideration of the briefs of the parties, after oral argument held this date, and for the reasons expressed in the accompanying bench opinion, it is ordered that the motion of defendant John S. Stevens Jr., M.D., for summary judgment is granted in part and denied in part.

It is further ordered that the motion for summary judgment is denied in connection with that portion of count I of plaintiffs complaint alleging a cause of action in negligence for failure to disclose to plaintiff new information acquired by defendant doctor in 1984.

It is further ordered that in all other respects defendant’s motion for summary judgment is granted.


author: LAWRENCE, J.,

text:
    Marr Estate v. Marr

      Catherine Lecky, for plaintiff.

      Richard Maimed, for defendant.
    April 11, 1990
   LAWRENCE, J.,

This is an appeal from this court’s order granting in part defendant’s motion for summary judgment. The background facts are as follow.

After approximately 15 years of marriage, Antoinette and Richard Marr became intent on dissolving their union. To this end, a divorce action was commenced and, on November 24, 1987, they entered into a property-settlement agreement to dispose of marital property and assets. Under the terms of the agreement, Mr. Marr conveyed all of his right, title and interest in the residence both he and his wife had acquired as tenants by the entireties at 55 Glen Farms Drive, Collegeville, Pennsylvania to Mrs. Marr, as well as certain personal property. Paragraph 5 of the agreement states that both husband and wife were represented by counsel and that “the provisions of this agreement and their legal effect have been fully explained to the parties by their respective counsel. . .”

Two paragraphs of the agreement assume critical significance in this case: paragraphs 17 and 24. Paragraph 17 of the agreement states:

“This agreement shall remain in full force and effect unless and until it is terminated either by mutual written consent of both parties or to the extent it is appropriately terminated by the death of either party or under the terms hereof.”

Paragraph 24 of the agreement states:

“Notwithstanding any of the provisions of this agreement, if a final decree in divorce shall not have been entered with respect of the parties within three months from the date of execution of this agreement, this agreement shall automatically become null and void and the covenants and undertakings contained herein shall not be binding upon the parties. In such event, any property, funds and/or documents shall be returned to the parties themselves or any escrowees named herein to their original sources, the intent of the parties being to restore themselves to their respective positions immediately prior to the date of execution of this agreement. ”

Mrs. Marr died on December 26, 1987 without a divorce decree ever having been issued dissolving her marriage to Mr. Marr. She was survived by her husband, her parents and her two children.

On February 12, 1988, Mrs. Marr’s parents and the executor of her estate filed a complaint in equity for specific performance of the property-settlement agreement, the return of the parents’ personal property and an accounting of assets to the estate. Mr. Marr filed an answer and counterclaim. He subsequently filed the instant motion for summary judgment, seeking a dismissal of the complaint on the basis that the agreement was contingent on the entry of a final decree which was never in fact entered prior to Mrs. Marr’s death and that, therefore the agreement was null and void.

The court agreed as to the agreement’s voidness and granted summary judgment on February 7, 1990. Plaintiffs now appeal.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment:

“[Sjhall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Summary judgment may be entered only in cases that are clear and free of doubt. Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980). In addition, the court must view the evidence in the light most favorable to the non-moving party and accept as true all well-pleaded facts in the non-moving party’s pleadings, and give the non-movant the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa. Super. 543, 524 A.2d 1372 (1987).

In accordance with this standard and in the absence of any evidence suggesting the existence of a genuine issue of material fact, the court concluded that the agreement was null and void.

Plaintiffs’ main argument is that this case should have been decided in accord with Ress v. Barent, 378 Pa. Super. 397, 548 A.2d 1259 (1988), in which the court allowed extrinsic evidence to be presented so as to determine whether a restrictive covenant contained in an agreement executed by Bernard Ress in 1971, transferring his business to his longtime employees, was enforceable after his death. This is without merit.

As a preliminary matter, Ress is distinguishable from the instant case on the facts. One of the factors the Ress court found dispositive in allowing extrinsic evidence was that the restrictive covenant contained no express language concerning its applicability to Mr. Ress’ heirs and assigns.

The court further reasoned that because restrictions on the use of trade names were often imposed to protect the trade name from tarnish, embarrassment or ill repute not only during the founder’s lifetime but in perpetuity as well, it could not conclude as a matter of law that it was inherently unreasonable or improbable that Bernard Ress intended the covenant to survive his death. Thus, the holding in Ress turned on the absence of language reflecting Ress’ intent regarding the survivability of the restrictive covenant and the inherent probability that Ress intended the covenant to survive well beyond his lifetime.

In the case at bar, plaintiffs seek to persuade us that extrinsic evidence is necessary to show that Mrs. Marr intended the agreement to survive her, even in the event, no decree were issued prior to her death. Plaintiffs misconstrue the issue. The issue was not whether the property-settlement agreement survived Mrs. Marr’s death or, conversely, terminated upon it. The sole determination this court was called upon to make was whether paragraph 24 of the agreement contained a contingency clause that, under the facts of this case, operated to void the contract. We think it does.

It is well established that the intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words of the contract are clear and unambiguous the intent is to be discovered only from the express language of the agreement. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982).

The language of the instant agreement is express and clear and is, therefore, not in need of interpretation by reference to extrinsic evidence. The plain meaning of the paragraph 24 is that if a divorce decree is not obtained within three months of the signing, for whatever reason, the agreement is to become null and void. It was clearly a condition upon which the entire agreement was founded and not being capable of fulfillment within the stipulated time, the agreement is canceled. See Village Beer & Beverage v. Cox & Co., 327 Pa. Super. 99, 475 A.2d 117 (1984); 5 Williston on Contracts §666 (3d ed. 1961).

That Mrs. Marr died before a divorce decree was entered is most unfortunate for her and her relatives. It is, however, irrelevant given that the agreement contains no provision that the agreement shall remain in full force and effect regardless of a change in the marital status of the parties. While not a matter of record, defendant averred in his new matter to plaintiffs complaint that Mrs. Marr had cancer. If it were true, it would have been prudent of her to insist on such a provision in the agreement. That the contract does not include such a provision does not make the contract ambiguous.

Moreover, paragraph 24 contains language, consistent with the other terms of the agreement, as to the parties’ intent if no decree was entered within the time provided. Paragraph 24 unequivocally declares that the parties’ intent in the event no divorce decree was issued within the stipulated time was that they be restored to their respective positions immediately prior to the date an the execution of this agreement. Nothing could be clearer.

For dll of the foregoing reasons, this court’s order granting summary judgment was correct, and plaintiffs’ appeal should be dismissed.

      . The court denied summary judgment as to the issues of the return of personal property allegedly belonging to Mrs. Marr’s parents and the accounting to the estate.

      . The covenant provided that the employees were allowed to continue using the trade name of “Bernard Ress Company’ provided they did not transfer or assign the right to any other party. It additionally provided that they cease using the name in the event they no longer owned 51 percent of the outstanding capital stock any time after the date of the agreement.
      Bernard Ress died in 1983. Shortly thereafter, his widow and son learned that the employees had transferred the assets of the Bernard Ress Company to a new corporation in which they no longer owned 51 percent of the outstanding stock and that the new corporation had continued using the trade name “Bernard Ress Company.” Bernard Ress’ widow and son sought to enjoin the use of the trade name.

      . Plaintiffs claim that because, like-Ress, the agreement in this case fails to provide for the contingency of the death of a party, the contract is ambiguous, nécessitating extrinsic clarification as to who drafted the property-settlement agreement, the parties’ intent regarding paragraphs 17 and 24, the extent to which there was substantial performance of the agreement prior, to Mrs. Marr’s death and the circumstances surrounding her death.
      Plaintiffs ignore paragraph 17, which explicitly provides for the termination of the contract in case of either party’s death.


author: SNYDER, P.J.,

text:
    Commonwealth v. Charles

      Timothy Morris, assistant district attorney, for the commonwealth.

      Clifford D. Schenkemeyer Jr., for defendant.

      April 17, 1990
   SNYDER, P.J.,

This case is before the court on defendant’s appeal from a summary criminal conviction for violating section 3345 of the Motor Vehicle Code.

FACTS

On January 3, 1989, at approximately 4:00 p.m. in the village of Hamilton, defendant is alleged to have passed a school bus while the flashing lights and side stop signal arm were activated. The operator of the school bus allegedly obtained the registration plate of the automobile which passed the bus from a passenger on the bus. The bus operator then presented a written report of the incident to the Punxsutawney barracks of the Pennsylvania State Police within 48 hours. Subsequently, on January 17, 1989, Trooper Thomas Chélgren filed a citation with District Justice Guy Lester. Trooper Chelgren did not file the bus operator’s report of the incident with the citation.

ISSUE

Does section 3345(a. 1) of the Motor Vehicle Code require a police officer to file a school bus operator report with a copy of the citation where the officer first learned of the alleged violation from the report?

DISCUSSION

The relevant portions of the statute at issue are as follows:

“(a) Duty of approaching driver when red signals are flashing — Except as provided in subsection (g), the driver of a vehicle meeting or overtaking any school bus stopped on the highway shall stop at least 10 feet before reaching the school bus when the red signal lights on the school bus are flashing and the side stop signal arms are activated under section 4552(b.l) (relating to general requirements for school buses). The driver shall not proceed until the flashing red signal lights are no longer actuated. In no event shall a driver of a vehicle resume motion of the vehicle until the school children who may have alighted from the school bus have reached a place of safety.
“(a.l) Reports by school bus operators
“(1) The operator of a school bus. who observes a violation of subsection (a) may prepare a signed, written report which indicates that a violation has occurred. To the extent possible, the report shall include the following information:
“(i) Information, if any, pertaining to the identity of the alleged violator.
“(ii) The license number and color óf the vehicle involved in the violation.
“(iii) The time and approximate location at which the violation occurred:
“(iv) Identification of the vehicle as an automobile, station wagon, motor truck, motor bus, motorcycle or other type of vehicle.
“(2) Within 48 hours after the violation occurs, the school bus operator shall deliver a copy of the report to a police officer having authority to exercise police power in the area where the violation occurred. If the police officer believes that the report establishes a sufficient basis for the issuance of a citation, the officer shall file a citation and the report with the issuing authority. If the issuing authority determines that the report and citation establish a sufficient basis for the issuance of a summons, a summons shall be issued in accordance with general rules governing the institution of proceedings in summary traffic offense cases. The issuing authority shall send the defendant a copy of the citation, together with a statement that it was filed by the police officer named in the citation on the basis of information received.
“(3) A person may institute a proceeding pursuant to this subsection or in accordance with any means authorized by the Rules of Criminal Procedure.”

Defendant argues that since Trooper Chelgren failed to file the bus driver’s report with the citation as mandated by the statute the citation should be dismissed.

The commonwealth asserts: (1) that a violation of section 3345(a) is not the same as a violation of section 3345(a.l) and, therefore, section 3345(a) is the proper section for filing whenever the basis for the citation is evidence other than a written report by a school bus driver; and (2) the statute permits the police officer to analyze the bus driver’s written report and make a discretionary call as to whether or not to use the report as a basis for the issuance of a citation. We disagree.

The commonwealth’s position that section 3345(a) and section 3345(a.l) are separate violations is untenable. It is clear that only section 3345(a) establishes the violation of law for meeting or overtaking a school bus. Section 3345(a.l) is not a separate violation. Section 3345(a.l) merely establishes the required procedure which must be followed when a police officer learns of the violation via a report by a school bus operator.

With respect to the commonwealth’s assertion that the statute permits the police officer to make a discretionary call whether or not to use the bus operator report as the basis for the issuance of a citation, we are of the opinion that when the process is initiated by the report of a school bus operator such report must be filed with the citation since section 3345(a. 1) indicates that the report shall be filed with the citation. There is no indication within the plain meaning of the statute that the police officer is given the discretion to decide whether or not to file the report with the citation. We believe that .had that been the intention of the legislature they would not have included section 3345(a.l) within the statute.

In further support of our interpretation we note that section 3345(a.l)(3) indicates, “A person may institute a proceeding pursuant to this subsection or in accordance with any means authorized by the Rules of Criminal Procedure.” (emphasis supplied) We believe that the inclusion of the word “person,” rather than “school bus operator,” indicates further that the legislature intended that whenever a police officer learns of an alleged violation of section 3345(a) through the report of a school bus operator the report must be filed with the citation. Any other person can institute a proceeding for violation of section 3345(a) in accordance with the Rules of Criminal Procedure.

ORDER

And now, April 17, 1990, the citation issued upon defendant, Richard Charles, is dismissed for failure to comply with section ,3345(a.l) of the Vehicle Code.


author: HUMMER, J.,

text:
    Howard v. Howard

      Kurt A. Gardner, for plaintiff.

      Paul K. Allison, for defendant.
    January 3, 1989
   HUMMER, J.,

Plaintiff, Sylvia Howard, and defendant, Chester Howard, were married on February 28, 1948 in Kings County, New York. They separated in December 1960. In March 1963, plaintiff obtained, from a New York court, an order which separated her from the bed and board of defendant. In addition, this order provided that defendant was to pay $75 per week as and for the support of plaintiff and the parties’ two children: Ellen Mary Howard, age 13, and Rand Kenneth Howard, then age 12. Furthermore, the March order allocated the $75 per week payment as follows: $25 per week for the plaintiffs support and $25 per week for the support of each child. However, in August 1963, the New York court amended the March order so that defendant was still ordered to pay $75 per week for the support of his wife and two children, but the $75 was now unallocated.

Defendant faithfully complied with the New York court order until sometime in 1987 even though the children had both reached the age of 21 sometime in the early 1970’s. In May 1987, defendant moved to Lancaster, Pennsylvania while the plaintiff continued to reside in New York.

Thereafter, in November 1987, defendant filed an action for divorce in the Court of Common Pleas of Lancaster County. In response, plaintiff filed an answer raising the issues of alimony and alimony pendente lite. In addition, plaintiff filed an action for support with Domestic Relations. Accordingly, a support conference was held on June 14, 1988. At the conclusion of this conference, the hearing officer recommended that plaintiffs support complaint be dismissed. Plaintiff filed an appeal to the recommended order and a hearing was held on this appeal on September 23,1988 before the court. The court confirmed and ratified the recommended order.

Subsequently, plaintiff registered the New York support order in Lancaster County in accordance with the Revised Uniform Reciprocal Enforcement of Support Act of 1968. 23 Pa.C.S. §§4501-4540. Defendant then filed a petition to vacate the registered support order also in accordance with RURESA. 23 Pa.C.S. §§4540(b). It is this petition which is currently before the court.

Both parties are in poor health and unemployed. Plaintiff is 74 years of age and her income consists solely of a $371-per-month social security payment of which $158.40 is based on defendant’s work record. Likewise, defendánt is 72 years of age and his income consists solely of an $823-per-month social security payment. Plaintiff claims that since defendant discontinued support payments in 1987, arrearages accrued under the New York support order. It is this arrearage that plaintiff is attempting to collect through registration of the order. Defendant, on the other hand, would like the court to remit the accrued arrearages by granting his petition to vacate registration of the support order.

DISCUSSION

As previously stated, plaintiff has registered the New York court order in accordance with RURESA. Under the heading “Choice of Law,” RURESA provides the following:

“Duties of support applicable under this chapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.” 23 Pa.C.S. §4507.

Defendant stopped making support payments at or around the time he moved to Pennsylvania and the arrearages that plaintiff would like to enforce began to accrue at that time. Therefore, defendant has been* present in Pennsylvania for the period during which support is sought. Thus, the court should and will apply Pennsylvania law.

Plaintiff argues that Pennsylvania law does not allow retroactive modification of a support obligation unless a petition to modify was filed by the obligor. To a certain extent the plaintiff is correct. The relevant portion of Pennsylvania support law provides the following:

“No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor.” 23 Pa.C.S. §4352(d).

Thus, at first glance it appears as. though the court cannot retroactively remit a support arrearage unless a petition for modification has been filed. However, section 4352(d) goes on to say:

“[Modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall riot accrue from and after the date of the emancipation of the child for whose support the payment is made.” Id.

Therefore, under Pennsylvania support law a court may retroactively remit a support arrearage under a variety of circumstances.

Plaintiff claims that she is owed arrearages in the amount of $7,350. She has derived this figure by multiplying 98 (the number of weeks she claims defendant has not paid support) by $75 (the amount of weekly support ordered by the New York court). However, defendant argues, and the court agrees, that he should not be held liable for that portion of the New York support order attributable to child support since the parties’ children reached the age of emancipation long before he stopped paying the support obligation. Defendant’s argument is supported by both statute and case law. See Jackman v. Pelusi, 379 Pa. Super. 361, 366, 550 A.2d 199, 206 (1988), which held that a hearing officer had correctly reduced the certified amount of arrearages because the children were not owed support beyond their 18th birthday, and 23 Pa.C.S. §4352(d), supra which states that arrears shall not accrue from and after the date of the emancipation of the child for whose support the payment is made.

Of course, before the court can remit that portion of the support arrearage attributable to child support, it must first determine just what that portion is. The final judgment rendered by the New York court in this case and dated August 20, 1963, ordered the defendant to pay $75 per week for the support of his wife and two children. It did not specifically state what portion was for plaintiffs support and what portion was for the children’s support. However, as previously stated, the August 23, 1963 judgment amended an earlier judgment rendered by the New York court on March 15,1963. The March 15 judgment did allocate the support order. It provided $25 per week for the support of the plaintiff and $25 per week for each of the two children. Thus, the court finds that the portion of the New York support order attributable to child support to be $50 per week. Accordingly, of the $7,350 arrearage balance, $4,900 of it is attributable to child support and as such the court will not hold the defendant liable for that amount.

Conversely, the portion of the arrearage attributable to spousal support is $2,450. However, defendant argues, and once again the court agrees, that he is entitled to credit toward the arrearage for that portion of the plaintiffs Social Security payments based on his work record. Indeed, the Superior Court has held that credit should be applied to arrearages which accrued after the receipt of Social Security benefits. Children and Youth Services v. Chorgo, 341 Pa. Super. 512, 525, 491 A.2d 1374, 1381 (1985). Neither party disputes the fact that the present arrearages accrued long after plaintiff began receiving Social Security benefits, a part of which were based on defendant’s work record.

Therefore, the court finds that defendant should be given credit toward the remaining arrearage in the amount of Social Security payments paid to the plaintiff based on the defendant’s work record. While the arrearage in question was accruing, the plaintiff was receiving $158.40 per month or $36.80 per week in Social Security benefits based solely on the defendant’s work record. Accordingly, the defendant is entitled to a credit toward the arrearage in that amount. After deducting from the arrearage the amount attributable to child support ($4,900) and the amount received by plaintiff in the form of Social Security payments based on defendant’s record ($3,606.40), the entire arrearage is eliminated.

Accordingly, the court makes the following

ORDER

And now, January 3, 1990, upon consideration of defendant’s petition to vacate the registered support order and plaintiffs answer thereto, as well as the parties’ supporting briefs, the court hereby grants defendant’s petition to vacate the registered support order and orders that any arrearages accrued under the support order be remitted in their entirety.

      . Plaintiff claims the payments ceased in March 1987 while defendant claims he did not stop payments until May 1987.

      . Currently the children are 37 and 39 years of age.

      . Both parties agree that plaintiff cannot or at least will not prospectively enforce the New York court order. Defendant claims that the Pennsylvania court’s refusal to find plaintiff entitled to support is res judicata as to the issue of prospectively enforcing the New York court order. Defendant cites as support for this proposition Bell v. Bell, 228 Pa. Super. 280, 323 A.2d 267 (1974). Bell held that a support order is res judicata as to all facts existing prior to or at the time of the order. Plaintiff agrees with this reasoning and in her supporting brief states that she “is not seeking to prospectively enforce the order” and “is seeking to enforce only the arrearage.”

      . Although Chorgo dealt with child support arrearages the court feels its holding applied equally well to spousal support arrearages. The court finds support for this proposition in Commonwealth v. Vogelsong, 311 Pa. Super. 507, 516, 457 A.2d. 1297, 1302 (1983) which held that the lower court had properly granted the appellant credit on spousal and child support for monies paid directly to appellee and the parties’ child by the Social Security Administration.

      . The court derived this weekly figure 'by dividing $158.40 by 4.3.


author: RAUP, P.J.,

text:
    Commonwealth v. Fiantaca

      Kenneth Osokow, assistant district attorney, for the commonwealth.

      Douglas Engelman, for defendant.
    January 11, 1990
   RAUP, P.J.,

Defendant’s writ of habeas corpus arises out of charges filed against him for three counts of passing bad checks under 18 Pa.C.S. §4105. For the following reasons, we deny the motion.

The events leading to the charges are that defendant, Fiantaca, as a corporate officer of National Case and Millwork Inc., wrote checks payable to CDF Associates, John Savoy and Son Inc. and John Savoy, personally. The corporation’s principal place of business is in New York State, and the bank on which the checks were drawn is a New York State bank. The checks were mailed to and received by the payees in Lycoming County, Pennsylvania, where the payees attempted to cash the checks; the checks were not honored, leading to the filing of a private criminal complaint with the district attorney in Lycoming County.

The District Attorney’s Office subsequently filed the charges under 18 Pa.C.S: §4105, and defendant filed the current writ of habeas corpus alleging that we lack jurisdiction or venue to hear this matter. Venue in the case of a bad check offense is discussed at section 4105(d), which provides:

“An offense under subsection (a) may be deemed to have been committed at either the place where the defendant issues or passes the bad check or similar sight order for the payment of money or the place where the financial institution upon which the bad check or similar sight order for the payment of money was drawn is located.” (emphasis supplied)

The issue for this court is the definition of the terms “issues or passes” as used in section 4105.

Neither party has provided controlling Pennsylvania case law on this issue. We find persuasive the definition of issue as set forth in the Uniform Commercial Code, 12A Pa.C.S. §3-102(l)(a), which provides:

“(1) In this article unless the context otherwise requires,
“(a) ‘Issue’ means the first delivery of an instrument to a holder or remitter.”

This definition represents the common meaning accorded that term. Under this definition, the first delivery of the instruments to a holder occurred when the checks were received by the payee in Lycoming County.

This view is generally accepted in other jurisdictions. See State v. Libero, 91 N.M. 780, 581 P.2d 873 (1978); Insurance Company of North American v. Knight, 8 Ill. App. 3d 871, 291 N.E.2d 40 (1972). We therefore deny defendant’s petition.

ORDER

And now, June 1, 1989, for the reasons set forth in the foregoing opinion, it is hereby ordered and directed that defendant’s petition for habeas corpus is hereby denied.


author: BAYLEY, /.,

text:
    Shirk v. Phelaro Inc.

      James G. Nealon, for plaintiff.

      George F. Douglas Jr., for defendant.
    January 25, 1990
   BAYLEY, /.,

This is a dram-shop case arising out of an accident on June 15, 1986. Plaintiff-decedent was killed in a one-car accident while a passenger in a car operated by Carol Ann Bradenbaugh. Plaintiff alleges that defendant, Phelaro Inc., trading and doing business as Gingerbread Man, served Carol Ann Bradenbaugh alcoholic beverages prior to the accident at a time when she was visibly intoxicated.

At the pretrial conference defendant’s, counsel confirmed that defendant intends to call Lawrence J. Guzzardi, M.D., a toxicologist, as an expert witness on the issue of whether Carol Ann Bradenbaugh would have appeared visibly intoxicated when it allegedly served her alcoholic beverages before the accident. Plaintiffs counsel, in limine, seeks an order prohibiting Dr. Guzzardi from testifying for defendant because he has already testified as an expert witness for plaintiff in an arbitration proceeding in which plaintiff sought recovery on an underinsured motorist claim arising out of the June 15, 1986 accident.

Defendant represents that Dr. Guzzardi' is not exercising a privilege to refuse to testify as an expert witness for the defense. See Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961). Plaintiffs estate cites Pennsylvania, Company for Insurance on Lives and Granting Annuities v. Philadelphia, 262 Pa. 439, 105 Atl. 831 (1918), in support of its position. In that case, however, the trial court properly sustained an objection from a plaintiff to a defendant’s calling plaintiffs previously employed expert witness, on the basis that the witness objected to testifying.

Plaintiff also argues in her brief that we should not allow defendant to call Dr. Guzzardi because there is a “potential privy to confidential information which would not be generally available to the opponent.” Plaintiff, however, makes no specific averments to support such a position. As noted in Annotation, Compelling Expert to Testify, 77 ALR 2d 1182, 1191 (1961):

“The fact that an expert is or has been employed or engaged by an adverse party may be sufficient ground for refusing to compel him to testify as such, or to permit him to do so over the objection of such party. . . . An important consideration in determining whether one employed as an expert by one party may or should be required to testify as such at the instance of an adverse party is whether under the particular circumstances, it is fair to do so.” (footnotes omitted)

Without any specific claim that plaintiff is prejudiced because Dr. Guzzardi is privy to confidential information, we believe that the fair result in this case is to allow defendant to call the doctor as its expert witness. Plaintiffs counsel represented at the pretrial conference that plaintiff will be calling another toxicologist to support its dram-shop claim. As to the issue of whether Bradenbaugh was visibly intoxicated when she was allegedly served alcohol by defendant, that testimony will seemingly be at conflict with the testimony plaintiff-decedent presented through Dr. Guzzardi at the arbitration proceeding. At the very least it is discomforting to think that plaintiffs estate would use an expert in this trial to take a position contrary to the position that it took through the use of another expert in the arbitration proceeding. Fairness is hardly on plaintiffs side.

We conclude that there is no appellate or statutory authority in Pennsylvania prohibiting defendant from using Dr. Guzzardi as its expert in this case. By comparison see Holtzman v. Zimmerman, 47 D.&C. 3d 608 (1988); and Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988). Accordingly, for the foregoing reasons the following order is entered.

ORDER OF COURT

And now, January 25, 1990, plaintiffs motion in limine to prohibit defendant from calling Lawrence J. Guzzardi, M.D. as an expert defense witness is denied.

      . See 47 P.S. §4-493(1).

      . Defendant offers that the underinsurance carrier in the arbitration proceeding claimed that Douglas Totaro [plaintiff-decedent here] assumed the risk of riding with Carol Ann Bradenbaugh because she was visibly intoxicated. Dr. Guzzardi testified on the issue of whether Bradenbaugh would have appeared visibly intoxicated before the accident.

      . We do not at this time address any issue as to whether any testimony that Dr. Guzzardi gave in the arbitration proceeding may, as defendant intimates in its brief, be considered a judicial admission by plaintiff in this case. That issue should be briefed by counsel if it is pursued by defendant at trial.


author: CASSIMATIS, J.,

text:
    West Manchester Township v. Bair Community Fire Co.

      John C. Herrold, for plaintiff.

      D. Michael Craley, for defendants.
    June 27, 1990
   CASSIMATIS, J.,

This matter is before the court pursuant to the preliminary objections of defendant Bair Community Fire Company. For reasons set forth below, the objections are granted in part and refused in part.

Plaintiff, West Manchester Township, passed an ordinance (88-10) prohibiting defendant from responding to fires within the township. Plaintiff alleges that defendant violated the ordinance by responding to a fire on January 24, 1989. Plaintiff seeks to enjoin further violations of the ordinance. Defendant filed the instant preliminary objections, asserting the following: lack of capacity to sue, lack of jurisdiction, demurrer, and a motion to strike plaintiffs request for attorneys’ fees.

We first consider, defendant’s contention that plaintiff lacks capacity to sue. Defendant argues that because the Second Class Township Code does not specifically empower plaintiff, a second class township, to bring an equity action, plaintiff lacks capacity to seek injunctive relief. Plaintiff counters by asserting that because it has the power to sue, regulate fire companies, and adopt all regulations necessary for the protection of its citizens, it impliedly has the power to maintain an equity action.

First, it is noted that pursuant to 53 P.S. §65701, plaintiff has the power to sue. It must next be explored whether this power includes the right to maintain án equity action to enforce its ordinance.

Defendant argues that the holding in Skippack Community Ambulance Assn. v. Skippack Twp., 111 Pa. Commw. 515, 534 A.2d 563 (1987) is controlling in this situation. There, the court held that 53 P.S. §65747, which gives a township the power “to take all needful means for securing the safety of persons or property within the township,” did not confer standing on a second class township to seek an injunction. The court stated:

“Moreover, it is well settled that townships, political subdivisions of the commonwealth, possess only such powers as have been granted to them by the legislature, either in express terms or which arise by necessary implication or are incidental to powers expressly granted or are essential to the declared objects and purposes of the townships.” Skippack at 517, 534 A.2d at 564, citing Commonwealth v. Ashenfelder, 413 Pa. 517, 198 A.2d 514 (1964).

In the instant case, plaintiff does not rely on 53 P.S. §65747 in support of its argument that it impliedly has the right to seek an injunction. Instead, plaintiff cites 53 P.S. §65762 which provides:

“General Powers
“To make and adopt all such ordinances, bylaws, rules and regulations not inconsistent with or restrained by the constitution and laws of this commonwealth as may be deemed expedient or necessary for the proper management, care and control of the township and its finances and the maintenance of peace, good government and welfare of the township and its trade, commerce and manufactures.”

Plaintiff argues that this section, in conjunction with its power to sue and regulate fire companies pursuant to 53 P.S. §65704, impliedly gives it the power to seek an injunction.

The court is inclined to conclude that plaintiff impliedly has the right to seek injunctive relief. As stated in Skippack, supra, “[Townships] possess only such powers . . . which arise by necessary implication or are incidental to the powers expressly granted.” Here, plaintiff is empowered to sue, regulate fire companies and, most importantly, adopt all regulations necessary for the protection of its citizens. By seeking an injunction, plaintiff is attempting to effectively exercise these express powers. This becomes even more apparent when the situation at hand is evaluated.

Although the ordinance in question provides for criminal penalties for violations thereof, this is not an adequate remedy at law. The object of the ordinance is to prevent defendant from fighting fires. Absent injunctive relief (if it is ultimately granted), plaintiff lacks a mechanism for prospectively preventing violations of the ordinance. The criminal penalties which would follow a violation of the ordinance would not serve to stop defendant or its members from violating the ordinance — before it is violated.

Moreover, the harm that could potentially result from defendant fighting fires in violation of the ordinance is certainly not remedied by the penalty provisions of the ordinance. For instance, should injuiy to person or property result from defendant violating the ordinance, harm to the public, the risk of which could have been enjoined, will have occurred.

Additionally, it is reasonable to infer that defendant, unwilling to recognize the authority of the ordinance prohibiting its responding to fires with the township, might also be unwilling to accept the authority of the fire chief or other authorized persons directing the firefighting strategy. For this reason, the risk of harm to property and persons where firefighting efforts are not coordinated is self-evident.

We also note that courts of equity have power to prevent or restrain the commission or the continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals. Rankin v. Chester-Upland School District, 11 Pa. Commw. 232, 312 A.2d 605 (1973). Defendant’s act of responding to fires in violation of the ordinance is certainly contrary to law. Also, the potential injury that could result from defendant’s action is prejudicial to the safety interests of the community. Consequently, we conclude plaintiff has standing to seek an injunction.

Defendant also argues that the court lacks jurisdiction to hear this matter. Defendant argues that because the Second Class Township Code provides that proceedings for violations of ordinances are to be commenced before a district justice, this court does not have jurisdiction. This argument must fail because district justices do not have jurisdiction to enter an injunction. Since district justices lack power to issue injunctions, and the court of common pleas is the court with the power to do so, this court has jurisdiction. As a result, this objection will be dismissed.

Defendant next demurs, asserting that the township has an adequate remedy at law and has not suffered irreparable injury. Defendant also demurs on the ground that the township’s ordinance provides that the town may proceed in equity only in case of a “continuing violation” and the township has alleged only one violation of the ordinance.

As stated above, the penalty provisions of the ordinance do not provide plaintiff with an adequate remedy at law as injury to person and property could result from further violations of the ordinance by defendant. In addition, irreparable injury could result from defendant’s continued violation of the ordinance for the same reasons set forth above.

We now consider whether plaintiff has alleged a “continuing violation” of its ordinance that would enable it to seek injunctive relief under the provisions of ordinance 88-10. Plaintiffs complaint, paragraph 15, reads:

“Plaintiff believes and therefore avers that unless the defendants are enjoined from doing so, the defendants will continue to respond to fire alarms within the confines of West Manchester Township even though the authority to respond to such alarms has been revoked by legal authority.”

Since the court is ruling on a demurrer by defendants, plaintiffs allegations must be accepted as true. Whether defendant has continued to respond to fires in violation of the ordinance is a factual question that may be resolved at trial; it cannot be disposed of by preliminary objection. Consequently, plaintiff has alleged a continuing violation as required by ordinance 88-10 and, therefore, the demurrer must be refused.

Lastly, we address defendant’s preliminary objection to plaintiffs request for attorneys’ fees. This objection will be sustained. Plaintiff has neither cited a statute nor advanced any argument in support of its claim for attorneys’ fees. As a result, defendant’s motion to strike will be granted.

Accordingly, we enter the following

ORDER

And now, June 27, 1990, the preliminary objections of defendants, Bair Community Fire Company, its trustees, directors, officers and members, and John A. Bare and Dennis McNeil, are refused except that defendants’ motion to strike plaintiffs request for attorney’s fees is granted.

Defendants are directed to answer the complaint within 25 dáys of this order.

The prothonotary is directed to provide notice of the entry of this opinion and order as provided by law.

       Plaintiff has also named trustees and members of the fire company in addition to other individuals in this action. All defendants shall be referred to herein as defendant.


author: BIEHN, J.,

text:
    Commonwealth v. Beese

      Glenn A. Pamo, assistant district attorney, for the commonwealth.

      Mark I. Rickies, for defendant.

      August 24, 1989
   BIEHN, J.,

Defendant has appealed to the Superior Court his June 1, 1989 conviction of driving under the influence of alcohol. The sole issue is whether the district attorney abused his discretion in failing to place defendant in the accelerated rehabilitative disposition (ARD) program because defendant had previously received probation without verdict pursuant to section 17 of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.C.S. §780-117.

Defendant was arrested on the instant offense January 3, 1989. His vehicle was being operated in a reckless manner and a subsequent breathalyzer yielded results of .263 and .246 percent. He earlier had been placed on a one-year probation without verdict on December 8, 1987, which had expired without incident December 8,1988 — less than one month before the offense in question. The district attorney specified that the prior section 17 disposition was the sole reason for denial of ARD.

Certainly, the commonwealth has met the two-pronged test set forth in Commonwealth v. Ebert, 369 Pa. Super. 318, 535 A.2d 178 (1987). The prosecutor stated his reason for refusal, and that statement reasonably related to the protection of society or to the likelihood of successful rehabilitation. It is in no way an abuse of discretion to deny ARD to an individual who operated his vehicle while under the influence of alcohol only 26 days after completing another one-year diversion program triggered by an earlier substance abuse.

Defendant also argued that since his section 17 disposition was expunged May 1, 1989, one month before his trial, that the section 17 disposition should not have been considered.

The Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.C.S. §780-101, at section 17(3) states that if one fulfills the terms of his probation without verdict, the charges shall be dismissed and not “constitute a conviction for any purpose whatsoever.” This section further provides as follows:

“[Probation without verdict shall be available to any person only once . . . [and] the prosecuting attorney or the court and the council shall keep a list of those persons placed on probation without verdict, which list may only be used to determine the eligibility of persons for probation without verdict and the names on such list may be used for no other purpose whatsoever. ” (emphasis supplied)

Although ARD and section 17 are not identical types of dispositions, nonetheless we find that under the facts of this case the sensible reading of the above section would be to allow the prior section 17 to be considered in determining whether defendant must be afforded a second diversion.

The primary purpose of the ARD program “is the rehabilitation of the offender,” according to the Committee Introduction to the Pennsylvania Rules of Criminal Procedure governing the administration of ARD. It is contemplated by these rules that “defendants eligible for the ARD program are first offenders who lend themselves to treatment and rehabilitation. . . ” The program encourages defendants “to make a fresh start after participation in the rehabilitative program and offers them the possibility of a clean record if they successfully complete the program.”

Section 17 preceded the existence of the ARD rules, but both have the same purpose and it would be inappropriate to require a district attorney to ignore a listed section 17 disposition in determining whether to afford a second diversion opportunity for a subsequent substance abuse.

We therefore found that within the context of this case, ARD is a form of probation without verdict and legally could be considered by the district attorney in denying defendant’s request.


text:
    Koons v. Pennsylvania Power and Light Co.

      Terry S. Hyman, for plaintiff.

      Charles E. Wasilefski, for defendant.

      Joel D. Smith, for additional defendant.
    April 30, 1990
   CASSIMATIS, J.,

This matter is before the court pursuant to additional defendant’s, Structural Maintenance System, preliminary objection in the nature of a demurrer to the complaint of defendant Pennsylvania Power and Light Company. For the reasons set forth below, we sustain the demurrer and dismiss the complaint of PP&L.

This case arises from the death of Michael Koons, an employee of SMS. SMS and PP&L had a contract whereby SMS would perform structural repairs at the Holtwood Power Station, owned and operated by PP&L. On October 12, 1987, while performing his duties on behalf of SMS at Holtwood, Michael Koons was electrocuted and as a result died instantly. His estate instituted a wrongful death and survival action against PP&L. PP&L, in turn, filed a complaint against. SMS for indemnification, to which SMS has demurred.

From the outset, it should be noted that Pennsylvania Workmen’s Compensation Law forbids a direct tort action by the estate of Michael Koons against SMS. This proscription.does not, however, bar an action by an employee (Koons) against a third party (PP&L). Furthermore, it is abundantly clear that a third party (PP&L) may assert a claim against the employer (SMS) for indemnification or contribution only in very limited circumstances. 77 P.S. §481(b) provides in relevant part:

“The employer . . . shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date , of the occurrence which gave rise to the action.” (emphasis supplied)

Therefore, as per the statute above, unless indemnification is expressly provided for by contract, a third party may not seek indemnification from* an employer.

In support of its claim for indemnification, PP&L relies on a provision in its contract with SMS which reads:.

“[SMS] agrees to indemnify and save harmless [PP&L] from and against all liability for injuries and damages to person or property at any time sustained by any person or corporation, . . . whatsoever arising out of, resulting from or in any way caused by or in connection with [SMS’s] performance of the contract.”

Thus, the issue presented here is whether the provision in question constitutes an express agreement by SMS to indemnify PP&L for any liability incurred as a result of plaintiffs suit against PP&L.

Turning to the case law, upon review of it, the court concludes that the agreement in question was not an express agreement to indemnify.

In Remas v. Duquesne Light Co., 371 Pa. Super. 183, 537 A.2d 881 (1988), plaintiff, an employee of Gregg Security Services, was injured while patrolling Duquesne’s property. Duquesne sought indemnification based on a clause in a contract between Duquesne and Gregg which provided:

“Indemnification — To hold harmless and indemnify the company [Duquesne] from and against any liability, loss, damage, cost and expense which the company [Duquesne] may suffer from any claim, demand, action, suit or cause of action which may be made or had against the company [Duquesne] by reason of any act committed by the contractor [Gregg], its agents, servants or employees other than an act performed by the contractor [Gregg], its agents, servants or employees at the specific instruction of the company [Duquesne].”

The Superior Court upheld the lower court’s order, granting Gregg’s demurrer and dismissing Duquesne’s complaint against Gregg. The court opined thát the agreement in question did not constitute . an express agreement by employer-Gregg to indemnify defendant-Duquesne for injuries caused to a Gregg employee by Duquesne’s negligence.

The holdings of other cases dealing with the issue presented here are in accord with Remas. For instance, the Third Circuit, in applying Pennsylvania law, noted that:

“Pennsylvania courts have distinguished between indemnity clauses that specifically refer to liability arising from a party’s own negligence and those that call for indemnity for ‘all liability’ or ‘all loss.’ Compare Pittsburgh Steel Co. v. Patterson-Emerson-Comstock Inc., 404 Pa. [53] at 55, 171 A.2d [185] at 186 [(1961)] (refusing to permit indemnification for indemnitee’s negligence where contract read: ‘Contractor will indemnify buyer from all liability ... in any manner arising out of or incident to performance of this order’) with Westinghouse Electric Co. v. Murphy Inc. (permitting indemnification for indemnitee’s negligence where contract read: ‘Seller shall . . . indemnify . . . buyer whether [buyer’s liability] results from negligence of buyer ... or otherwise. . .’) If an indemnity clause does not expressly mention liability arising from the indemnitee’s own negligence, the clause will not cover the situation despite broad, all inclusive language that might suggest otherwise. The clause relied on must include the word negligence or any of its cognatés. ” Hicks v. Armstrong Cork Co., .38 D.&C. 3d 445, 449 (1986), citing Gimbel Brothers Inc. v. William H. Vanderherchen Inc., 468 F.2d 597, 599 (3d Cir. 1972). (emphasis supplied)

In the instant case, the clause PP&L relied on is very similar to the broad “all loss” and “all liability” language cited above. The clause fails to refer explicitly to losses arising from PP&L’s negligence. It makes no reference to indemnification of PP&L by SMS for liability caused by PP&L’s own negligence. Instead, the clause contains only words of general import. Absent words specifically and expressly providing that SMS will indemnify PP&L for PP&L’s negligence, the clause in question does not satisfy the standards set forth above. Therefore, as a matter of law, PP&L’s complaint does not state a claim for indemnification from SMS.

Accordingly, we enter the following order, sustaining SMS’s demurrer, and dismissing the complaint of PP&L.

ORDER

And now, April 30, 1990, the preliminary objection in the nature of a demurrer of additional defendant, Structural Maintenance Systems Inc., is sustained.

The complaint of defendant Pennsylvania Power and Light Company against additional defendant, Structural Maintenance Systems Inc., is hereby dismissed. >

The prothonotaiy is directed to provide notice of the' entry of this opinion and order as provided by law.


author: LAVELLE, P.J.,

text:
    Glover v. Wieder

      Thomas S. Nanovic, for plaintiff.

      John J. Sylvanus, for defendant Yorktowne Mutual Insurance Co.

      May 15, 1990
   LAVELLE, P.J.,

Plaintiff, Charles W. Glover, is seeking money damages from defendant Yorktowne Mutual Insurance Company under a homeowners insurance policy following damage to his mobile home caused by a backed-up sewage system.

Before the court are cross motions of both Glover and Yorktowne for summary judgment. After a careful review of the record, the briefs of counsel and oral argument, we shall enter summary judgment in favor of Yorktowne and against Glover.

FACTS

On January 15, 1987, Glover’s house was flooded and damaged as a result of backed-up sewage in the Oakwood Mobile Home Park. Unknown vandals placed scrap lumber into two clean-out pipes leading to the main sewer line for the mobile home park and this caused a sewage back-up within Glover’s dwelling. The two clean-out pipes leading to the main sewer line are not located on Glover’s property or leasehold. .

At the time this incident occurred, Glover was insured by Yorktowne, and his policy provided coverage for, inter alia:

“Paragraph 9: Vandalism or malicious mischief, meaning only the willful and malicious damage to or destruction of the property covered. . . .”

The policy also contained the following exclusions:

“General Exclusions — 1. This policy does not insure against loss . . . caused by, resulting from, contributed to or aggravated by any of the following . . . (2) water which backs up through sewers or drains.”

Glover’s claim for indemnification under the terms of his homeowner’s policy was denied by Yorktowne.

DISCUSSION

The sole question for our determination is whether the damage to Glover’s mobile home caused by sewage which backed-up in the sewer line due to off-site vandalism is covered by his policy. We hold that the damage is not covered.

We begin with the legal caveat that summary judgment can be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). To determine whether summary judgment is appropriate, the court must “accept as true all well-pleaded facts in the non-moving party’s pleadings, and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom.” Alberici v. Tinari, 374 Pa. Super. 20, 22, 542 A.2d 127, 127 (1988).

There is no dispute here as to the material facts.

Our interpretation of the language of the instant contract is circumscribed by well-settled law. First, the insurance contract must be construed in accordance with its plaih, common and ordinary meaning; when the contract language is clear, the court must apply it as written and cannot rewrite the contract terms. Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa. Super. 116, 386 A.2d 535 (1978).

Second, when a word or phrase is specifically defined within a contract, that definition controls in determining the applicability of the contract. See Great American Insurance Co. v. State Farm Mu tual Automobile Insurance Co., 412 Pa. 538, 194 A.2d 903 (1963).

Glover asks us to interpret the definition of vandalism in paragraph 9 “. . .only the willful and malicious damage to or destruction of the property covered” to encompass acts of vandalism occurring anywhere which result in damage to or destruction of his property. Such a broad interpretation, in our view, distorts the plain meaning of the words and would go far beyond the risks which this homeowners policy was intended to cover.

The word “willful” means intentional. Black’s Law Dictionary 1434 (5th ed. 1979). “Willful . . . damage to . . . the property covered” in our view, refers to acts of vandalism intentionally directed to or aimed specifically at the insured property. We interpret the vandalism clause to include coverage for damage caused by acts of vandalism intentionally directed at the insured property by known or unknown persons. The vandalism here was directed to sewage lines owned by Glover’s lessor and not to Glover’s property. Therefore, we find no coverage in his policy for the damages sustained by the sewage back-up.

Additionally, Glover’s homeowner’s policy was never intended to cover risks of vandalism from anywhere in the community or its environs. Such an interpretation is unreasonable.

Koslowski v. Penn Mutual Insurance Co., 295 Pa. Super. 141, 441 A.2d 388 (1982) is instructive. The Superior Court interpreted policy language analogous to the instant case and found that no coverage existed for the damages sustained. There, a curb valve to the water main to the service line leading to a neighbor’s property burst and released water which seeped into and flooded the insured’s basement causing damage. The insurance policy provided that “overflow of water or steam from within a plumbing system” was a peril covered by the policy. The Superior Court affirmed the trial court’s interpretation of the policy to cover only against water damage caused by sources directly within or appurtenant to her house and held the insured could not recover under the policy.

Some of the Superior Court’s rationale is applicable here:

“Under appellant’s interpretation of ‘a plumbing system,’ water seeping into appellant’s basement from a burst valve two blocks away, rather than next door, would also be covered. However, the Fine court also recognized that the policy in question was designed by the insurer to provide for a limited amount of coverage, for losses which it could foresee. Otherwise, the insurer would have no control over the type of risks against which it was insuring. There would, in short, be no end to the coverage, and concomitantly, no need to provide for exclusions to coverage. It is clear from a reading of the entire policy here that appellee-insurer did not intend, nor did appellant contract for, such unlimited coverage.”

Because we find that Glover’s policy did not cover damage from sewage backing up into his mobile home, it is unnecessary to discuss whether the exclusionary language of the policy applies.

To recover on an insurance policy, it is axiomatic that the insured show that his claim falls squarely within the coverage provided by the policy. Miller v. Boston Insurance Co., 420 Pa. 566, 218 A.2d 275 (1966). Here, the plain and clear language of the policy precludes Glover from recovering under the homeowners policy for the property loss he suffered.

For the foregoing reasons, we enter the following

ORDER

And now, May 15, 1990, it is hereby ordered and decreed that the motion for summary judgment of defendant, Yorktowne Mutual Insurance Company, is hereby granted and the prothonotary is directed to enter judgment in favor of defendant Yorktowne Mutual Insurance Company and against plaintiff, Charles W. Glover.

It is further ordered and decreed that the motion for summary judgment of plaintiff, Charles W. Glover, is denied.


author: BORTNER, J.,

text:
    Metzger v. Yale Materials Handling Corp.

      Richard S. Wasserbly, for plaintiffs.

      John W. Craynock, for defendant Independent Lift Truck Inc.

      R. Mark Armbrust, for defendant Yale Materials Handling Corp.
    December 21, 1989
   BORTNER, J.,

Plaintiff brought suit against Yale Materials Handling Corporation, the manufacturer of Yale Forklift Trucks, for negligence, breach of warranty and strict liability. In addition, plaintiff has sued Independent Lift Truck Inc. for negligence and breach of warranty. Both defendants have moved for summary judgment on all claims.

On or about June 23, 1986, George Metzger, plaintiff, was employed as a truck driver for a food distributor. As part of his job, he operated a forklift that his employer leased from Independent Lift Truck.

At the time plaintiff sustained his injuries, he was unloading a pallet with a load upon it. When the forks were placed under the pallet, the load shifted, requiring plaintiff to climb up on the forks to adjust the load. While standing on the forks, the right fork shifted laterally across the carriage and fell from the forklift. This lateral displacement also caused plaintiff to fall to the ground.

Prior to the accident, plaintiff had operated a forklift daily for four years at his current job. In addition, plaintiff knew the forklift he was operating on the day in question had a warning decal on the mast of the forklift which specifically cautioned against standing on the forks. Moreover, plaintiff testified that he “knew better” than to stand on the forks. Consequently, defendants argue that plaintiff is barred from recovery because he voluntarily assumed the risk of injury.

Plaintiff, on the other hand, argues that the risk of injury, if any, he assumed was that he might slip off the forks to the ground. Plaintiff contends that he did not assume the risk of the defective design of the forklift which permitted an allegedly secure fork to move laterally off the forklift. Plaintiff avers, therefore, that assumption of risk is not a defense in the instant case because he was not warned of the possibility of sudden lateral displacement.

Plaintiff’s complaint predicated defendants’ liability upon both negligence and strict liability pursuant to section 402A of the Restatement (Second) of Torts. The negligence theories of liability include, inter alia, defective design or manufacture and failure to warn that the forklift was defectively designed or manufactured. The product liability claims allege that Yale Forklift is strictly liable due to the defective design and construction of the truck and Yale Forklift’s failure to warn or adequately warn users of the defects.

Assumption of the risk is a viable defense to both negligence and product liability. Whitley v. Philadelphia Transportation Co., 211 Pa. Super. 288, 234 A.2d 922 (1967) (negligence); London v. Pep Boys, Manny, Moe & Jack, 371 Pa. Super. 291, 538 A.2d 22 (1988) (product liability). In addition, assumption of the risk is governed by the same standard whether the cause of action is based on negligence or product liability averments. Muller v. Midstates Equipment, 11 D.&C. 3d 115 (1979).

The court in Muller v. Midstates Equipment, supra, defined assumption of risk in both negligence and product liability actions as a “knowing awareness and appreciation of a danger.” Id. at 1.19. The Muller court reasoned that the plaintiff must' have a subjective awareness of the risk for the assumption of risk doctrine to apply, “as differentiated from the ‘reasonable man’ objective standard applied in evaluating contributory negligence.” Id. at 119.

The Muller court further distinguished the plaintiffs knowledge of the danger from the knowledge of the defect. The Muller court reasoned that “[ajctual knowledge of the danger, but not of the defect or of the negligent conduct causing the danger is required.” Muller at 122, n. 4 (1979). (emphasis in original) The “danger versus the defect” distinction in the Muller case is dispositive of the instant case.

Muller v. Midstates Equipment, supra, and the instant case are factually analogous. In Muller, the plaintiff pumped gasoline for a trucking company. An on-off lever on the side of each pump activated the motor of each pump. When the tank of the vehicle was full, a switch in the nozzle would automatically shut off the flow of fuel.

Prior to the plaintiffs accident, the on-off lever on one of the pumps ceased to function. The plaintiffs supervisor advised the plaintiff to continue to use the pump. The plaintiff in Muller interpreted this to mean that he would have to remove the safety cover on the pump with the broken lever and manipulate the internal mechanism of the pump’s motor. Subsequently, the plaintiff was injured while moving the internal rod inside the pump.

The plaintiff in the Muller case had assumed the risk of danger because he had been instructed not to remove the safety cover. He was also aware of the warning appearing on the cover which cautioned against removal. Despite this knowledge, the plaintiff turned the pump on and off by removing the safety cover and manipulating the internal mechanism.

Although plaintiff in the instant case did not realize the specific defect of lateral displacement, he knew that there was danger involved in standing on the forks. He was warned not to stand on the forks. We find that plaintiffs knowledge of the danger is enough for assumption of the risk to bar his recovery.

In addition, public policy considerations dictate that it would be unreasonable to require that a manufacturer warn against every injury which might ensue from a misháp in the use of its product. The above concern was succinctly addressed by Judge Lipez’s dissenting opinion in Sherk v. Daisy-Heddon, 285 Pa. Super. 320, 427 A.2d 657 (1981), rev’d. 498 Pa. 594, 450 A.2d 615 (1982). In Sherk, the plaintiffs sued the manufacturer of an air rifle to recover for the death of a 14-year-old boy who died as a result of a B.B. shot to the head accidentally inflicted by a friend. The plaintiffs alleged that the manufacturer was negligent for failing to put a warning on the rifle informing the user of the rifle’s deadly potential.

The user of the rifle was warned as follows:

“The Pump-Up Air Gun is a new, much more powerful type gun than the traditional Daisy spring-air B.B. gun. It shoots with four to six times the power of the spring-air B.B. gun and must be treated with great care and respect.
“Always handle a gun as if it. were loaded.
“ ‘Handling’ means every time you* touch your gun. It also means you must never point your gun toward any living thing nor at any part of your own body nor at anything that could be damaged by an accidental shot.”

Judge Lipez found that the above warning was sufficient because “[a] warning by Daisy-Heddon specifically that a projectile from the gun could penetrate a certain distance into a human body, and thereby, perhaps, cause death would therefore have been unnecessary.” Id. at 338, 427 A.2d at 666. Judge Lipez concluded that because the user of the rifle “had knowledge of the general dangers, it cannot be said that he should have been specially warned of such a narrowly defined possibility.” Id. at 338, 427 A.2d at 666. (emphasis supplied)

Finally, in deciding whether to grant summary judgment, we must determine that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). We conclude that a manufacturer of a forklift truck should be entitled to judgment as a matter of law where plaintiffs injuries were attributable to plaintiffs standing on defective forks in open defiance of the manufacturer’s clear and explicit warning to the contrary.

Accordingly we enter the following

ORDER

And now, December 21, 1989, the matter having come before the court for disposition under Bucks County R.C.P. 266, it is hereby ordered and decreed that defendants’ motion for summary judgment is granted.

      . If assumption of the risk bars plaintiffs recovery, it will bar recovery for the claims against both defendants, Yale Materials Handling Corporation and Independent Lift Truck Inc. To be concise we shall refer only to Yale Forklift when discussing both defendants’ liability.

      . Strict liability requires plaintiff to prove (1) the product was defective and (2) the defect was a proximate cause of the plaintiffs injuries. Berkibile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). The lack of adequate warnings as to a product’s risks may constitute a defect of that product.

      . In Sherk v. Daisy-Heddon, 285 Pa. Super. 320, 427 A.2d 657 (1981), the Superior Court held that the trial court erred in refusing to allow the case to go to the jury under a theory of negligence and thus remanded the case for further proceedings. Judge Lipez in his dissent argued that the trial court did not err in.refusing to charge on negligence because there was no duty to warn of the specific danger. The Pennsylvania Supreme Court in Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982), reversed the order of the Superior Court and reinstated the judgment upon the jury’s verdict in favor of the defendant-manufacturer.