author: CORBETT, J.,

text:
    Barrett v. Seprosky

      C.P. of Lackawanna County,
    no. 95 Civil—431.

      Richard S. Campagna, for plaintiff.

      Paul A. Barrett, for defendant.
    February 18, 1999
   CORBETT, J.,

Before the court is plaintiff’s motion for post-trial relief. This case arises out of plaintiff’s claim of defamation against defendant. A jury trial was conducted before a special trial master on June 3 and 4, 1998. The jury rendered a verdict in favor of defendant, finding that the defendant did not make a defamatory statement about the plaintiff. On June 10,1998, plaintiff filed the instant post-trial motion seeking a new trial. Oral argument was heard before this court on November 4, 1998. However, trial transcripts were not available at that time. The court ordered the plaintiff to obtain trial transcripts and permitted the parties to file supplemental briefs. Thus, the matter became ripe for disposition on January 19,1999. The parties have briefed their respective positions and the matter is now ripe for disposition.

FACTS

On June 13, 1995, plaintiff filed a complaint claiming, inter alia, that defendant made a defamatory statement about her. Specifically, plaintiff claimed that the defendant told a close friend of his that the plaintiff had gonorrhea. Thus, plaintiff claimed that the statement constituted defamation per se because defendant’s statement imputed to plaintiff a loathsome disease, thus entitling plaintiff to damages. A jury trial was held before a special trial master on June 3 and 4,1998. The jury concluded that the defendant did not make a defamatory statement about the plaintiff and returned a verdict in favor of defendant.

Plaintiff now seeks a new trial on several grounds. First, plaintiff contends that the court erred in charging the jury that they could find defamation per se if they believed plaintiff’s witnesses. Thus, plaintiff argues that the trial court’s instruction misled the jury by implying that the jury’s finding should be based solely on plaintiff’s evidence, rather than on all the evidence. Second, plaintiff argues that the court erred in refusing to charge the jury that defendant’s testimony amounted to a binding admission because the defendant did not affirmatively deny making the statement. Thus, plaintiff contends that defendant’s failure to deny making the statement constitutes an admission by silence against his pecuniary interests. Finally, plaintiff asserts that the jury’s verdict was contrary to the law and the evidence. We will address each of plaintiff’s arguments in turn.

DISCUSSION

Rule 227.1 of the Rules of Civil Procedure governs the standard for post-trial relief following a jury trial. The rule provides:

“(a) After trial and upon the written motion for post-trial relief filed by any party, the court may
“(1) order a new trial as to all or any of the issues; or
“(2) direct the entry of judgment in favor of any party; or
“(3) remove a nonsuit; or
“(4) affirm, modify or change the decision or decree nisi; or
“(5) enter any other appropriate order.” Pa.R.C.P. 227.1(a).

Thus, the rule authorizes the court to grant post-trial relief upon motion of the parties. See Pa.R.C.P. 227.1. (Explanatory comment — 1983.) With this standard in mind, we now turn to plaintiff’s arguments.

I. The Defendant’s Testimony Constitutes an Admission

Plaintiff argues that the special trial master erred in not charging the jury that the defendant’s testimony constituted a binding admission that defendant made the defamatory statement. Here, plaintiff argues that the defendant’s failure to deny that he made the statement at issue amounts to an admission by silence because the circumstances surrounding the statement would compel the defendant to deny making the statement. Plaintiff raised the issue before the special trial master and requested a specific charge to that effect. However, the special trial master disagreed with plaintiff that the defendant’s testimony constituted an admission. Therefore, the special trial master refused to read the requested charge that defendant’s testimony constituted an admission.

In Pennsylvania, “[a]n admission is admissible in evidence as an exception to the hearsay rule....” L. Wash ington & Associates Inc. v. Unemployment Compensation Board of Review, 662 A.2d 1148, 1150 (Pa. Commw. 1995) (citing Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963)). Moreover, “an admission can be used as substantive evidence to prove the truth of the matter asserted.” Id. at 1150 (citing Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957)). Thus, “[t]he failure of aparty to reply to a statement made in his presence or hearing is significant only where the nature of the statement, and the circumstances under which it was made, are such as [to] render a reply natural and proper ....” L. Washington & Associates Inc. at 1149 (quoting Levin, 412 Pa. at 327, 194 A.2d at 421); see also, 31 C.J.S. Evidence, §295.

The Commonwealth Court more fully explained the rule in Gancom v. Unemployment Compensation Board of Review, 163 Pa. Commw. 423, 641 A.2d 652 (1994). There, the court stated:

“[I]f one is restrained by fear or doubt as to his rights, or by the belief that his interest will be best promoted by his silence, then no inference of assent can be drawn from that silence. ‘Nothing can be more dangerous than this kind of evidence; it should always be received with caution, and never ought to be, unless the evidence is of direct declarations of that kind, which naturally calls for contradiction.’” Gancom at 428, 641 A.2d at 654 (quoting Smith v. American Stores Co., 156 Pa. Super. 375, 380, 40 A.2d 696, 698 (1945)).

Plaintiff contends that the defendant’s failure, at trial, to deny making the statement is tantamount to an admission. We disagree. Our review of the record leads us to conclude that the defendant’s trial testimony did not constitute an admission. First, it is important to note that the rule as explained above is an exception to the hearsay rule, and thus contemplates an out-of-court statement. Specifically, the rule contemplates the admissibility of a person’s silence in the face of an out-of-court statement against that person’s interest where the circumstances would ordinarily require that person to affirmatively deny the content of the statement. Thus, the rule does not apply in a situation such as this where the party charged with making the admission is available and testifies in court.

The record before us reveals no evidence of an accusation made in the defendant’s presence where the defendant failed to respond. Here, on cross-examination of the defendant, plaintiff’s counsel did not directly ask the defendant if he made the alleged defamatory statement. In fact, the entire cross-examination went as follows:

“Q. This information about Mrs. Barrett being married twice before I assume you got that in the course of taking a history as a patient?
“A. On my routine history form, yes.
“Q. And that she had two teenage children as part of the history?
“A. They were both patients of mine, yes.
“Q. You ever treat her with penicillin for anything?
“A. In actuality I probably did for a sore throat or cold or bronchitis.
“Q. When you said to Mr. Stager that if he fooled around with her he would need penicillin you weren’t referring to a sore throat, were you?
“A. No, I was not.
“Q. I have no further questions.”

Thereafter, the witness was excused. From this exchange, it is evident that plaintiff’s counsel did not confront the defendant with the question of whether he actually made the defamatory statement. Thus, the defendant was not faced with having to admit or deny, or not respond to the question. Seemingly, plaintiff’s counsel left that question as an inference to be argued to the jury and left to their determination. Therefore, we cannot conclude, based upon the record before us, that the defendant made a binding admission by silence. Accordingly, plaintiff’s argument in this respect must fail.

II. The Special Trial Master Erred in Charging the Jury

Having determined that plaintiff’s first argument fails, it is not necessary to address plaintiff’s argument that the special trial master erred in not charging the jury on that point. However, plaintiff also raises the argument that the special trial master erred in charging the jury that it could find defamation per se if they believed plaintiff’s witnesses, thereby implying that the jury need not consider the balance of the evidence. At the close of the court’s charge, plaintiff objected to the instruction that the jury could find defamation per se if it believed the plaintiff’s witnesses on the grounds that the defendant made a binding admission on the stand.

The standard for grant or denial of a new trial based on asserted error in the trial court’s charge to the jury was set out by this court in Bohan v. Window Associates Inc., 99 Lacka. Jur. 50, 51 (1998). We note that a thorough review of the pertinent case law reveals that the applicable standard has remained unchanged since we rendered our decision in that case. For the sake of clarity, we set forth that standard here.

“A trial judge’s instruction to the jury is a critical component of the judicial system for it guides the jury in making a just and proper decision.” Duquesne Light v. Woodland Hills School District, 700 A.2d 1038, 1046 (Pa. Commw. 1997). “[T]he jury instruction must accurately inform the jury of the law applicable to the case.” Id. (citing Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990)). Thus, an error of law or abuse of discretion in the trial court’s instruction constitutes reversible error. Id.

“[A] trial court is bound to charge only on that law for which there is some factual support in the record.” Lockhart v. List, 542 Pa. 141, 147, 665 A.2d 1176, 1179 (1995). It is well settled in Pennsylvania that refusal to give a requested jury instruction containing a correct statement of the law is grounds for new trial unless the substance of it has been covered in the court’s charge. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975); see also, Santarlas v. Leaseway Motorcar Transport Co., 456 Pa. Super. 34, 37-38, 689 A.2d 311, 312 (1997); Pascale v. Hechinger Co. of Pa., 426 Pa. Super. 426, 431, 627 A.2d 750, 752 (1993); Butler v. DeLuca, 329 Pa. Super. 383, 391, 478 A.2d 840, 844 (1984). A jury charge must be examined in its entirety to determine if there was prejudicial error. Santarlas at 38, 689 A.2d at 312. Moreover, error will be found where the jury was misled or where there was an omission, which amounts to a fundamental error. Id. (citing Lockhart, 542 Pa. at 147, 665 A.2d at 1179). Finally, “[a]n omission to charge which leaves the jury without discretion on an important question, or which plainly tends to mislead them, is cause for reversal.” Furey v. Thomas Jefferson University Hospital, 325 Pa. Super. 212, 227, 472 A.2d 1083, 1091 (1984).

We find that the court’s charge, when read in its entirety, accurately informed the jury of the law applicable to the case. We disagree that the jury charge misled the jury that it could only find defamation per se if it believed plaintiff’s witnesses. The special trial master adequately informed the jury of its function and that it must determine the facts from all the evidence. (N.T. at p. 162.) (emphasis added)

Again, plaintiff objected at trial to the court’s charge based on the fact that the defendant made a binding admission. However, the special trial master disagreed and refused to find as a matter of law that the defendant’s testimony constituted a binding admission. Consistent with our analysis above, we agree with the special trial master that the defendant’s testimony did not amount to a binding admission. Thus, there is no factual support in the record to support a charge on a binding admission as plaintiff requested.

Til. The Jury Verdict Was Contrary to the Evidence and the Law

Authority to grant a new trial on the grounds that the verdict was against the weight of the evidence is within the sound discretion of the trial court. Factor v. Bicycle Technology Inc., 452 Pa. Super. 26, 29, 680 A.2d 1178, 1180 (1996). On appeal, the question is whether the trial court clearly abused its discretion or committed an error of law that controlled the outcome of the case. Id. “A new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Randt v. Abex Corp., 448 Pa. Super. 224, 231, 671 A.2d 228, 233 (1996) (citing Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985)). However, a new trial should not be granted upon a mere conflict in testimony. Factor, 452 Pa. Super, at 30, 680 A.2d at 1180 (citing Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984)).

In the case at bar, plaintiff’s argument that the jury verdict was contrary to the evidence and the law, hinges on the argument that the defendant made a binding admission by failing to deny, making the defamatory statement. Again, since we have already addressed that issue and determined that the trial court did not abuse its discretion or commit an error of law, plaintiff’s argument in that regard must fail. Therefore, we must determine whether the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice.

Our review of the record as a whole reveals that conflicting testimony was presented as to the substance of the alleged defamatory statement. Plaintiff testified that her boyfriend, Tod, told her that the defendant said that she had “the clap.” (N.T. at p. 43.) Mr. John Stager testified that the defendant told him not to fool around with the plaintiff or Mr. Stager would need a penicillin shot. (N.T. atp. 78.) However, on cross-examination Mr. Stager admitted that the defendant never said that plaintiff had “the clap.” (N.T. at p. 79.) Finally, the defendant testified that he told Mr. Stager to stay away from the plaintiff because she was trouble for him (Mr. Stager) and that if he did become involved with her he would need a penicillin shot. (N.T. at pp. 83-84.)

Here, the jury was faced with a conflict of testimony regarding the substance of the statement made by the defendant. “A jury is entitled to believe all, part, or none of the evidence presented.” Randt, supra at 234, 671 A.2d at 233. Moreover, a jury can believe any part of a witness’ testimony and may disregard any portion that they disbelieve. Id. “Credibility determinations are for the jury.” Id. In the case sub judice, the jury was faced with conflicting testimony regarding the substance of the defendant’s statement. Therefore, it is reasonable to believe that the jury chose to believe part of plaintiff’s witnesses’ testimony and part of defendant’s witnesses’ testimony. Such credibility determinations are best left to the jury and will not be disturbed here. Thus, a new trial is not warranted based on a conflict of testimony. Accordingly, plaintiff’s motion for a new trial is denied.

An order consistent with this opinion follows.

ORDER

Now, February 18, 1999, it is hereby ordered and decreed that plaintiff’s motion for post-trial relief is hereby denied, consistent with the foregoing opinion.


source: Caselaw Access Project

author: MOTTO, J.,

license: Public Domain

text:
    Novich v. Novich

      C.P. of Lawrence County,
    no. 98.0375, D.R.

      David E. Henderson, for plaintiff.

      Norman J. Barilla, for defendant.
    February 22, 1999
   MOTTO, J.,

Before the court for disposition is the defendant’s motion to dismiss the plaintiff’s complaint in support for lack of personal jurisdiction. The issue in the case is whether or not defendant has sufficient minimum contacts with Pennsylvania to permit the exercise of in personam jurisdiction over him.

The parties married in Las Vegas, Nevada, on January 25, 1997. At the time of the marriage, the plaintiff resided in Chippewa Township, Beaver County, Pennsylvania. The defendant maintained residences in New York and Florida. The defendant, an attorney, maintained his office for the practice of law in New York. The defendant is registered to vote in Florida and maintains a Florida driver’s license. The defendant’s 1997 income tax return identifies Florida as his residence. However, the defendant has spent very little time in Florida in 1998 and expects to identify New York as his residence in filing his 1998 income tax return. In 1997, the defendant spent approximately one-third of his time in Florida.

After marrying, defendant returned to New York and plaintiff returned to Pennsylvania.

Subsequent to the date of marriage, plaintiff spent most of her time in Pennsylvania and defendant spent most of his time in New York. The parties were together most weekends. Defendant would come to Pennsylvania on either Thursday or Friday and the parties would be together at the Beaver County, Pennsylvania residence until the defendant would return to New York on Monday. Plaintiff would also travel to New York on weekends to be with defendant and on a few occasions the parties were together at the Florida residence.

Defendant received bills and personal mail at the Pennsylvania residence, maintained a full wardrobe for every season of the year at the Pennsylvania residence and obtained a family membership at the Beaver Country Club located in Beaver County, Pennsylvania. The parties spent all holidays at the Pennsylvania residence, but traveled elsewhere during the holiday season.

The parties had a temporary separation in 1997 from a date in April until May 6, 1997.

In June of 1997, plaintiff and defendant jointly signed a lease for a residence in Lawrence County, Pennsylvania. Defendant prepaid the one-year lease in full. All of the utilities for the leased premises were opened in the name of the defendant.

The defendant leased an automobile in New Jersey in both names and it was provided to the plaintiff for her use. The plaintiff maintained possession of the automobile in Pennsylvania. The automobile was registered in Pennsylvania.

When defendant came to Pennsylvania during the marriage, the parties would together attend marriage counseling sessions with a psychotherapist in Sewickley, Pennsylvania, and would customarily shop in Pittsburgh, Pennsylvania.

During the marriage, and prior to separation, the parties incorporated a business, with its principal location in Pennsylvania, which corporation maintained a Pennsylvania corporate bank account into which defendant would deposit funds. The business, although a Delaware corporation, operated exclusively from the Pennsylvania office. Defendant maintained an ownership interest in the Pennsylvania corporation.

The final separation of the parties occurred in January of 1998. After separation, plaintiff continued to reside in Lawrence County, Pennsylvania, and defendant has continued to reside in New York.

In support actions, the Domestic Relations Code provides as follows:

“The Supreme Court shall by general rule establish procedures for the exercise of long-arm jurisdiction to... establish and enforce support. Long-arm jurisdiction shall be used in preference to proceedings under chapter 45 (footnote: 23 Pa.C.S. §4501 et seq.) (relating to reciprocal enforcement of support orders) unless it would be more effective to proceed otherwise. Long-arm proceedings may be commenced or continued in any county where the plaintiff resides regardless of whether the parties maintained a family domicile in that county.” 23 Pa.C.S. §4342(d).

The Pennsylvania Long-Arm Statute, 42 Pa.C.S. §5322, is divided into two sections. Section (a) contains 10 subsections, which identify specific types of contact which will be deemed sufficient to warrant the exercise of long-arm personal jurisdiction. However, the court finds that subsection (a) has little applicability to the case at bar where the question is whether the defendant has the requisite minimum contacts with Pennsylvania to justify the exercise of jurisdiction as a matter of federal constitutional law.

Any contacts found to exist in subsection (a) would necessarily be included in an analysis under subsection (b). The applicable portion of the Pennsylvania Long-Arm Statute, at 42 Pa.C.S. §5322(b), is set forth as follows:

“(b) Exercise of full constitutional power over nonresidents. — In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5302 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.”

The Pennsylvania Long-Arm Statute permits the courts of this Commonwealth to exercise personal jurisdiction over nonresident defendants to the fullest extent allowed under the Constitution of the United States. Therefore, the court needs only to decide whether holding the defendant subject to a support proceeding in Pennsylvania would be a violation of due process. See Scoggins v. Scoggins, 382 Pa. Super. 507, 555 A.2d 1314 (1989).

The Scoggins case contains a review of the Pennsylvania Long-Arm Statute, 42 Pa.C.S. §5322, and the federal constitutional restrictions that apply in the exercise of that statute. Scoggins quoted the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), as follows:

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Scoggins v. Scoggins, 382 Pa. Super. at 517, 555 A.2d at 1319.

The Superior Court in Scoggins further stated:

“The nature of the required ‘minimum contacts’ has generally been given broad interpretation and emphasis has been placed upon the aspect of fair play and substantial justice....
“While the interest of the forum state and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice are to be considered, ‘an essential criterion in all cases is whether the “quality and nature” of the defendant’s activity is such that it is “reasonable” and “fair” to require him to conduct his defense in . . . [the forum] state.’ Kulko v. Superior Court of Califomia, [436 U.S. 84] at 92, 98 S.Ct. [1690] at 1697, 56 L.Ed.2d [132] at 141 [1978] quoting International Shoe Co. v. Washington, supra, 326 U.S. at 316-17, 66 S.Ct. at 159, 90 L.Ed. at 103. Thus, the existence of personal jurisdiction generally depends upon the presence of reasonable notice to the defendant that an action has been brought, and a sufficient connection between the defendant and the forum state to. make it fair to require defense of the action in the forum state.” Scoggins v. Scoggins, 382 Pa. Super, at 517-18, 555 A.2d at 1319-20. (footnotes omitted)

The Scoggins court further noted that in some instances, “the mere fact of prior residence without establishing domicile may provide minimum contacts sufficient to justify the exercise of long-arm jurisdiction.” Scoggins v. Scoggins, 382 Pa. Super, at 522, 555 A.2d at 1322. The distinction between residence and domicile is that domicile is a matter of intention whereas residence is a physical fact. Bernhard v. Bernhard, 447 Pa. Super. 118, 668 A.2d 546 (1995).

Here, although the parties maintained a nontraditional marriage relationship, Pennsylvania is the state that has had the more significant connection with the marital relationship of the parties. Although the court does not conclude that the defendant established a domicile in Pennsylvania, nevertheless, the defendant did reside with the plaintiff in Pennsylvania on a part-time basis. It is significant that in no other state did the parties establish a marital residence or domicile. Most of the attributes of the marriage, as nontraditional as they may have been, were experienced in Pennsylvania. The defendant executed a real estate lease agreement with plaintiff for a residence in Lawrence County that plaintiff utilized full-time and defendant shared part-time; defendant leased an automobile that he maintained at the marital residence in Pennsylvania and registered in Pennsylvania; defendant maintained clothing and golf clubs at the marital residence in Pennsylvania and purchased a family membership in a Pennsylvania country club; defendant incorporated a business which he owned in conjunction with the plaintiff, which business operated principally in Pennsylvania; defendant received mail at the Pennsylvania marital residence, obtained utilities to serve the marital residence in his name and spent all major holidays in Pennsylvania.

The Scoggins court also referred to the Alabama Supreme Court case of Brislawn v. Brislawn, 443 So.2d 32 (Ala. 1983). In Brislawn, the parties married in Alabama and spent the following 10 days in Alabama before departing to West Germany for a tour of military duty. The parties separated and wife returned to the United States. Husband did not return with wife. In holding that in per-sonam jurisdiction could be exercised over the nonresident husband without violating constitutional due process requirements, the Alabama Supreme Court reasoned that Alabama was the only place in the United States where the parties had lived together as husband and wife. Therefore, Alabama had a more significant connection with the marital relationship of the parties than any other jurisdiction in the United States. The reasoning of the Alabama Supreme Court applies to the case at bar where the evidence established that no other jurisdiction has a more significant connection with the marital relationship than does Pennsylvania.

Courts of other states have similarly found in personam jurisdiction to exist in a state that did not qualify as the state of the marital domicile.

In Williams v. Williams, 121 N.H. 728, 433 A.2d 1316 (1981), the Supreme Court of New Hampshire held that in personam jurisdiction could be exercised over the nonresident marital domicile where the defendant owned real estate jointly with the plaintiff, jointly opened a bank account and certificate of deposit in New Hampshire, sent her children to school and to summer camp in New Hampshire and spent several months of each year for eight years with the plaintiff-husband in New Hampshire.

In Hann v. Hann, 175 N.J. Super. 608, 421 A.2d 607 (1980), in personam jurisdiction was found to exist over a nonresident, nondomiciliary defendant-husband in New Jersey despite the fact that husband and wife had resided together in Pennsylvania during their 40-year marriage prior to wife’s leaving the marital home where husband and wife jointly owned rental property in New Jersey, husband had previous contacts in New Jersey to work on such properties, and husband, after separation, had significant contacts in New Jersey while driving around wife’s place of employment and up and down the street where wife resided.

The defendant has placed significant reliance upon Milam v. Milam, 450 Pa. Super. 597, 677 A.2d 1207 (1996), which found that the Pennsylvania court could not exercise personal jurisdiction over the defendant-husband even though husband and wife had rented an apartment in Pennsylvania and applied for a marriage license in Pennsylvania. However, the Milam case is distinguishable because that case turned on the issue of whether or not the defendant had established a domicile in Pennsylvania. The Milam court found that the defendant had not established a domicile in Pennsylvania. Defendant’s residency in Pennsylvania was strictly temporary, as defendant was a member of the military, and his domicile remained the domicile that the defendant had before he joined the military. The court in Milam therefore found that defendant’s temporary residency could not serve as the basis for in personam jurisdiction. Here, defendant’s presence in Pennsylvania, although part-time, was not temporary. There is no evidence that defendant intended a temporary stay in Pennsylvania. The parties had made no specific plans to establish a marital residence in any other state.

Milam specifically found that domicile did not exist in Pennsylvania and there were no other contacts by defendant with the state of Pennsylvania. Here, domicile is not the issue, but, rather, the substantial number of contacts and the quality of those contacts which the defendant has with Pennsylvania and the lack of any basis upon which to find that those contacts were intended to be temporary in nature.

The court concludes that the nature and quantity of defendant’s contacts with Pennsylvania constitutes sufficient minimum contacts so that the exercise of in per-sonam jurisdiction over the defendant does not offend traditional notions of fair play and substantial justice. The defendant chose to partake of the benefits of marriage in Pennsylvania and, to the extent that he lived a married life, he did so to a substantial degree within Pennsylvania. Having done so, he should not be heard to complain that he must now defend a support proceeding arising out of that marriage, in a Pennsylvania court.

ORDER

And now, February 22,1999, for the reasons set forth in the opinion of even date herewith, it is ordered, adjudged and decreed that the defendant’s motion to dismiss is denied. The order of court dated February 18, 1999 issuing a stay is rescinded.


author: CLARK, J.,

text:
    Lowery v. E.C. Barnes Inc.

      C.P. of Dauphin County,
    no. 3960 S 1996.

      Roger J. Harrington, for plaintiff.

      Timothy J. McMahon, for defendant.
    BEFORE: TURGEON, HOOVER AND CLARK, JJ.

    January 6, 1998
   CLARK, J.,

Before the court are plaintiffs’ preliminary objections to defendants’ counterclaim. After careful consideration, the objections to Count I are denied and those to Count II are granted.

In their complaint, plaintiffs allege that on March 10, 1996, plaintiff, Percy D. Halty Jr., believed he purchased kerosene from the Gulf Mini-Market at North Sixth and Reily Streets in Harrisburg, Pennsylvania. It is contended that he transported the product to his residence and filled a kerosene heater. Several hours later, his residence caught fire and was ultimately destroyed by the blaze, smoke and water. Plaintiffs filed suit against the above-captioned defendants for the sale of the product which allegedly caused the damage.

Defendants responded to the complaint with an answer, new matter and counterclaim. In Count I of the counterclaim, defendants set forth a cause of action against plaintiffs for fraud and deceit. Count II contains a claim for statutory abuse of process. These actions arose after an investigation of the incident was conducted. Plaintiff, Percy Halty, told fire investigators that he did not purchase kerosene from the aforementioned Gulf Mini-Market. The investigation further revealed that the fire was caused by faulty wiring near the electric dryer in the residence and not any type of accelerant.

Plaintiffs object to Count I of the counterclaim on the basis that defendants should have pleaded fraud as an affirmative defense and in the alternative, have failed to set forth a cause of action for fraud. Plaintiffs correctly argue that Pennsylvania Rule of Civil Procedure 1030 provides that all affirmative defenses including but not limited to the defenses of fraud shall be pleaded in a responsive pleading under the heading “new matter.” However, fraud may also constitute a cause of action.

In Karoly v. Cap, 365 Pa. Super. 528, 530 A.2d 436 (1987), appeal denied, 517 Pa. 631, 539 A.2d 811 (1988), the Pennsylvania Superior Court clarifies what amounts to an affirmative defense. The court stated:

“Rule 1030 requires the filing of ‘affirmative’ defenses by the defendant under new matter to the plaintiff’s statement of claim in his complaint. This means that the defendant ‘seeks no relief from the plaintiff except the denial of the plaintiff’s claim. No judgment in favor of the defendant is sought.’... In other words, new matter is to consist of allegations of fact extrinsic of those averred in the statement of claim . . . and is ‘in the nature of the common-law plea of confession and avoidance.’ . . . Anything else pleaded in new matter would be considered a traverse, setoff or counterclaim, and not a true ‘affirmative’ defense as that phrase has come to mean in the realm of pleading in Pennsylvania.” Id. at 541, 530 A.2d at 443. (citations omitted)

In the instant action, defendants have requested a denial of plaintiffs’ claims, in addition to attorney’s fees and costs. Since defendants are requesting relief in the form of a judgment in their favor, fraud is not truly an affirmative defense in this case and should not be pleaded as such. Therefore, we find that defendants have properly set forth a cause of action for fraud in Count I of their counterclaim.

In order to sustain a claim for fraud, a party must establish the following:

(1) A misrepresentation of material facts;

(2) The representor must know of the misrepresentation, must take the misrepresentation without knowledge as to its truth or falsity, must make the misrepresentation under circumstances in which he ought to have known of its falsity;

(3) The representor must intend to induce another to act upon their representation; and

(4) There must be an injury to the party justifiably relying on said misrepresentation. See Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994).

Defendants have alleged that Percy Halty informed investigators that he purchased kerosene from the Gulf Mini-Market prior to the fire, knowing that he, in fact, never made such purchase. As a result of that representation, defendants have had to retain counsel and prepare a defense to this lawsuit. This misrepresentation is certainly material as it identifies the party who furnished the alleged damaging product. Since defendants have adequately stated a cause of action for fraud, plaintiffs’ objections to Count I of the counterclaim are denied.

Plaintiffs also filed preliminary objections in the nature of a motion for more specific pleading requesting that defendants be ordered to identify the persons against whom the counterclaim is directed. Attached to the complaint are signed verifications from each of the named plaintiffs. Therefore, all of the plaintiffs, whether they allegedly made the misrepresentation or not, have adopted the facts as set forth in the complaint. Plaintiffs’ motion for a more specific pleading is denied.

Lastly, plaintiffs object to Count II of the counterclaim, which alleges a cause of action for statutory abuse of civil process pursuant to 42 Pa.C.S. §8351. To properly set forth a cognizable claim under section 8351, the proceedings must have terminated in favor of the person against whom they are brought. Clearly, these proceedings have not yet terminated. As defendants failed to state a viable cause of action in Count II, that count shall be dismissed from the counterclaim.

Plaintiffs are well aware of the allegations of fraud that have been lodged against them. It is the duty of counsel for plaintiffs to conduct a thorough investigation of these allegations and determine in good faith whether plaintiffs do, in fact, have a viable claim against defendants. In the event that defendants prevail on their claim of fraud, their claim for statutory abuse of civil process appears to become quite solid. Defendant may be entitled to recover for the expense reasonably incurred in defending himself against the proceedings, any specific pecuniary loss that resulted from the proceedings and punitive damages. 42 Pa.C.S. §8353. We shall remind plaintiffs’ counsel that professional censure may be imposed as a sanction if one is found to have brought a case without probable cause and for wrongful purpose. Thus, counsel shall take all necessary steps to ensure that there is an adequate factual basis to support the contentions of plaintiffs’ claims and the resources of this court are being properly utilized.

In accordance herewith, we enter the following:

ORDER

And now, January 6, 1998, it is hereby ordered that plaintiffs’ preliminary objections to Count I of defendants’ counterclaim and motion for more specific pleading are denied.

Whereas, plaintiffs’ preliminary objections to Count II of defendants’ counterclaim are granted and Count II is dismissed.


author: PANELLA, J.,

text:
    Willever v. Sovereign Bank

      C.P. of Northampton County,
    no. 1996-C-3173.

      Craig J. Smith, for plaintiff.
    C. Thompson Bell III for defendant.
    December 23, 1998
   PANELLA, J.,

The matter before the court is a non-jury trial held on November 9 and 10,1998. At issue is the plaintiff’s alleged improper termination from her employment with the defendant, Sovereign Bank. At the close of trial, the parties agreed to a briefing schedule and the matter was again brought to the court by way of the November 23, 1998 argument list. This decision is entered in accordance with Pennsylvania Rule of Civil Procedure 1038.

STATEMENT AND FINDINGS OF FACTS

(1) The testimony of Fred Klabunde was credible.

(2) The testimony of Diana Gerbino was credible.

(3) The testimony of Amy Sunnergren was credible.

(4) The testimony of John Cahill was credible.

(5) The testimony of Carolyn Fry-Albert was credible.

(6) The testimony of John Willever was credible.

(7) The testimony of Patricia Willever was credible.

(8) The testimony of Andrew C. Verzilli was credible.

(9) The testimony of Louella Gray was not credible. Her testimony was inconsistent, in significant and material ways, with other credible witnesses.

(10) The testimony of Deborah Stillions was unreliable. Her testimony contained numerous inconsistencies with other credible witnesses and inconsistencies within her own testimony; Ms. Stillions did not remember facts pertinent to the issues involved in this case which the court finds that she should have recalled under the circumstances.

(11) The testimony of Scott Abercrombie was not credible. Based upon Mr. Abercrombie’s demeanor on the witness stand, as well as his lack of memory and recollection of pertinent, material facts, his testimony was mostly not credible.

(12) The plaintiff, Patricia A. Willever, was an employee within the meaning of Pennsylvania Human Relations Act, 43 Pa.C.S. §951 et seq.

(13) Defendant, Sovereign BankF.S.B., is an employer within the meaning of the PHRA.

(14) Plaintiff was employed with Valley Federal Savings and Loan Association from May 5, 1975 until November 5, 1993, when the defendant purchased Valley Federal.

(15) While working for Valley Federal, through time, the plaintiff held the positions of secretary, delinquent loan counselor, supervisor/manager of delinquency control, and administrative assistant to Mr. Klabunde.

(16) Throughout her employment with Valley Federal, plaintiff received excellent job performance evaluations and was promoted a number of times.

(17) On or about November 5, 1993, Sovereign purchased Valley Federal and became its successor.

(18) At the time of the merger, plaintiff informed Sovereign that she wished to remain employed with them, and inquired regarding job openings at their various locations.

(19) John Cahill, who had been Valley Federal’s manager in the lending division, and who was placed in the mortgage department of Sovereign, requested that the plaintiff be placed in his department after the merger.

(20) After the merger, the plaintiff was assigned to Sovereign’s Easton loan office.

(21) At Sovereign, the plaintiff’s job duties included loan processing, mortgage modification, preparation of releases and receptionist duties.

(22) Plaintiff’s title with Sovereign, “loan processor representative I,” and her job duties were set forth on a document which was admitted into evidence as plaintiff’s exhibit 6.

(23) Plaintiff was qualified for the position she held at Sovereign and no Sovereign employee ever expressed any dissatisfaction with plaintiff’s job performance.

(24) Defendant terminated plaintiff on April 29,1994 and informed her that her position as loan processor/receptionist had been eliminated.

(25) Scott Abercrombie, the Sovereign employee who made the decision to terminate the plaintiff, had access to the plaintiff’s personnel file, which included her age.

(26) At the time of her termination, plaintiff was 59 years old and the oldest employee in Sovereign’s Easton office.

(27) On April 29, 1994, there were two people in Sovereign’s Easton office doing loan processing. They were the plaintiff and Annette Sabella.

(28) The plaintiff was told that the reason for her termination was a reduction in force.

(29) On the same day plaintiff was told of her termination, Louella Gray, Sovereign’s director of outside sales, informed Amy Sunnergren that her job in the con-straction lending office was being eliminated and that she was being moved into the Easton loan processing office to assume the plaintiff’s responsibilities.

(30) Sunnergren was age 35 at the time of plaintiff’s termination.

(31) On April 30, 1994, there were two Sovereign employees doing loan processing in the Sovereign East-on office. They were Amy Sunnergren and Annette Sabella.

(32) Plaintiff’s job was not eliminated on April 29, 1994, and therefore, the reason given for her termination was pretextual.

(33) Plaintiff was more qualified than Amy Sunnergren for the loan processing/receptionist job in Sovereign’s Easton loan processing office.

(34) On April 29,1994, at the time of her termination, plaintiff inquired if Sovereign had any other jobs available in any of its offices. Although Sovereign had positions for which plaintiff was qualified, she was informed that no positions were available.

(35) Plaintiff suffered emotional distress, humiliation and embarrassment due to her termination, and as a result, developed physical symptoms of her emotional distress.

(36) At the time of her termination, plaintiff earned an annual salary of $30,139.99.

(37) Plaintiff is entitled to $2,500 to compensate her for her emotional distress and embarrassment.

(38) Plaintiff is entitled to $117,248 to compensate her for her lost front and back pay.

STANDARD OF LAW

It is axiomatic that questions of fact and credibility decisions must be resolved by the fact-finder. Ludmer v. Nernberg, 433 Pa. Super. 316, 640 A.2d 939 (1994).

“[T]he findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of eviden-tiary support. Firestone v. Luther Ford Sales Inc., 271 Pa. Super. 480, 414 A.2d 355 (1979). The appellate court, in these circumstances, is limited by the determinations of whether the trial court’s findings are supported by competent evidence. . . Metz Contracting Inc. v. Boxer Heights Inc., 261 Pa. Super. 177, 395 A.2d 1373 (1978). It is also clear that in reviewing the findings of a trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to the successful party . . . and all unfavorable inferences rejected. Courts v. Campbell, 245 Pa. Super. 326, 369 A.2d 425 (1976); Colish v. Goldstein, 196 Pa. Super. 188, 173 A.2d 749 (1961). This is especially true where the credibility of witnesses is weighed by the lower court. Brentwater Homes Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977).” Lee v. Safeguard Mutual Insurance Co., 379 Pa. Super. 104, 117-18, 549 A.2d 927, 933-34 (1988). (citations omitted)

When analyzing an age discrimination claim under the Pennsylvania Human Relations Act, 43 Pa.C.S. §§951 through 963, Pennsylvania courts look to federal interpretations of title VII of the Civil Rights Act of 1964 for guidance. Fairfield Township Volunteer Fire Co. No. 1 v. Pennsylvania Human Relations Commission, 530 Pa. 441, 609 A.2d 804 (1992). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court applied the title VII burden shifting analysis to age discrimination cases. Pennsylvania has also adopted the three-step process for proving discrimination in age discrimination cases. Jacques v. Akzo International Salt Inc., 422 Pa. Super. 419, 619 A.2d 748 (1993). The three steps are: first, the employee must make out a prima fa-cie case of discrimination; second, once a prima facie case is established, the burden shifts to the employer to articulate some nondiscriminatory, permissible reason for firing the employee; third, the employee then has the burden to prove that the nondiscriminatory reason given is pretextual. Id.

A prima facie case requires that the plaintiff show the following: (1) that she belongs to a protected class; (2) that she was qualified for the position she held; (3) that she was terminated; and (4) that the employer sought a replacement from outside the protected class. Id. Once the plaintiff establishes a prima facie case, a presumption that the employer unlawfully discriminated against the employee is created. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The employer then has the burden of producing evidence that it had a legitimate nondiscriminatory purpose for its adverse employment action. Keller v. Orix Credit Alliance Inc., 130 F.3d 1101 (3d Cir. 1997).

The burden then shifts back to the plaintiff to show that the employer’s reason was pretextual. See Jacques, supra. To discredit the employer’s proffered nondiscriminatory reason, a plaintiff need not produce evidence that necessarily leads to the conclusion that the employer acted for discriminatory reasons. Simpson v. Kay Jewelers, 142 F.3d 639 (3d Cir. 1998). Further, the plaintiff need not produce evidence beyond that which proved her prima facie case; instead, she must point to “weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons [such] that a reasonable fact-finder could rationally find them ‘unworthy of credence’ and, hence, infer that the proffered nondiscriminatory reason did not actually motivate the employer’s action.” Id. (citations omitted) Nevertheless, the plaintiff bears the burden to prove, by a preponderance of the evidence, that age was a determinative factor in the termination decision. Hicks, 509 U.S. at 407. Finally, to successfully discredit the employer’s articulated reason, the plaintiff must show that the proffered reason is so plainly wrong that it could not have been the employer’s real reason. Keller v. Orix Credit Alliance Inc., 130 F.3d 1101 (3d Cir. 1997).

A plaintiff who successfully proves a case of age discrimination under the PHRA is entitled to compensatory damages. See 43 Pa.C.S. §962(c)(3). Victims of discrimination may recover for emotional distress under the PHRA. Pennsylvania Human Relations Commission v. Zamantakis, 478 Pa. 454, 387 A.2d 70 (1978). However, because some degree of emotional distress stems from any violation of a person’s rights, recovery of damages for emotional distress requires that the trier of fact find that the plaintiff was a victim of intentional discrimination and that the employer’s violation of the anti-discrimination legislation caused the plaintiff to suffer emotional distress. Durko v. OI-NEG TV Products, 870 F. Supp. 1278 (M.D. Pa. 1994).

Courts may award back pay in cases regarding discrimination both to restore the injured party to her pre-injury status and to discourage future discrimination. Consolidated Rail Corp. v. Pennsylvania Human Relations Commission, 136 Pa. Commw. 147, 582 A.2d 702 (1990). Plaintiff is entitled to back pay from the date of termination to the date that judgment is entered. Gallo v. John Powell Chevrolet Inc., 779 F. Supp. 804 (M.D. Pa. 1991).

Nevertheless, an injured plaintiff has a duty to mitigate her damages. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (3d Cir. 1995). But, the defendant bears the burden of proving by a preponderance of the evidence that the plaintiff failed to mitigate her damages. Id. The defendant can meet this burden by showing that substantially similar equivalent positions were available and that the plaintiff failed to use reasonable diligence to secure such a position. Anastasio v. Schering Corp., 838 F.2d 701 (3d Cir. 1988).

DISCUSSION

Prima Facie Case

As described in Jacques, supra, the plaintiff must show four factors to make a prima facie case: (1) member of protected class; (2) qualified; (3) terminated; (4) replaced by person outside protected class. The PHRA defines the term “age,” in the context of employment discrimination, as any person between the ages of 40 and 70. 43 Pa.C.S. §954(h). See also, Montour School District v. Pennsylvania Human Relations Commission, 109 Pa. Commw. 1, 530 A.2d 957 (1987). Here, the plaintiff has proved that she was 59 years old at the time of her termination, and thus a member of the statutorily defined protected class.

Next, the plaintiff proved that she was qualified for the position of loan processor representative I and loan processor/receptionist. The testimony of all of the Sovereign employees who worked in the Easton loan processing office was that the plaintiff was qualified and able to perform all job duties and responsibilities assigned to her. Further, no other Sovereign employee or representative, including those who made the decision to terminate her, testified that the plaintiff was not qualified for the position she held.

Third, it is undisputed that the plaintiff was terminated on April 29, 1994.

Finally, the plaintiff must show that Sovereign sought a replacement or replaced her with a person from outside the protected class. Here, although it was bitterly disputed, we find the evidence convincing that the plaintiff was replaced by Amy Sunnergren, who was age 35 on April 29, 1994. There were two Sovereign employees performing loan processing in the Easton office immediately before the plaintiff’s termination. At the same time plaintiff was terminated, Sunnergren was informed that her job was being eliminated. She was further informed that she would be transferred to the Easton loan processing office as a loan processor. Therefore, on April 30,1994, there were still two people doing loan processing in the Easton office; however, the plaintiff, age 59, had been terminated and Amy Sunnergren, age 35, assumed her responsibilities.

Legitimate Nondiscrimiatatory Purpose

Having found that the plaintiff has made a prima facie case, the burden then shifts to Sovereign to show that it had a legitimate nondiscriminatory purpose for its adverse employment action. See Keller, supra. In the case at hand, Sovereign has put forth only one reason for its adverse employment action. Sovereign claims that the plaintiff was terminated due to a reduction in force. In essence, Sovereign claims that the plaintiff’s job was eliminated because of decreased loan volume and because a new phone system made a receptionist unnecessary. This is the same reason which the plaintiff was given for her termination on April 29, 1994.

Pretext

Sovereign, having arguably offered a legitimate nondiscriminatory reason for the plaintiff’s termination, now shifts the burden back to the plaintiff to prove by a preponderance of the evidence that the defendant’s reason is pretextual. See Jacques, supra. This may be accomplished by pointing to weaknesses, implausibilities, inconsistencies, or contradictions in Sovereign’s proffered legitimate reason. See Simpson, supra. And, the plaintiff bears the difficult burden of proving that the proffered reason is so plainly wrong that it could not have been Sovereign’s real reason. See Keller, supra.

Here, the plaintiff has met her burden. The numerous inconsistencies in Sovereign’s testimony are telling and significant. All three of Sovereign’s trial witnesses testified that the plaintiff was performing only secretarial and receptionist duties at the time of her termination. Nevertheless, Sovereign previously admitted in both its answer to the plaintiff’s Pennsylvania Human Relations Commission pleading and the complaint in this action, that the plaintiff had performed the duties of a loan processor, among other things. This is particularly significant because everyone who worked in the Easton loan processing office testified that the plaintiff was doing loan processing. Sovereign claimed that when Amy Sunnergren was placed in the Easton loan office, as a replacement for plaintiff, that Sunnergren was doing loan processing, a duty which Sovereign argued the plaintiff had not previously performed. This once again conflicts with Sunnergren’s testimony, which was that she took over the plaintiff’s job.

Another significant inconsistency in Sovereign’s testimony developed regarding the plaintiff’s request for other employment. Ms. Willever testified that at the time of her termination she asked if any other jobs were available. She was informed at that time that Sovereign did not have any openings for her. Nevertheless, in its answers, Sovereign admitted that jobs were available and that plaintiff offered to “work in any position at any location.” Sovereign also admitted that Louella Gray told Ms. Willever that no positions were available, even though a teller position was available. Then, at trial, Gray denied the conversation ever took place, while Stillions claimed that Ms. Willever was offered a teller job but she replied that she had no interest in it. This series of inconsistencies and changing versions of events creates serious doubt regarding the veracity of any of Sovereign’s witnesses.

The inconsistency, weakness, and implausibility of Sovereign’s proffered reason are clear from the testimony, and therefore, are sufficient to discredit Sovereign’s nondiscriminatory reason and lead to an inference of discrimination. Sovereign terminated Ms. Willever, a 59-year-old employee who it admitted was a loan processor, and on the same day replaced her with a 35-year-old, less qualified loan processor. At trial, Sovereign’s only proffered legitimate nondiscriminatory reason for Ms. Willever’s termination was force reduction and elimination of job duties. Clearly, since Sovereign replaced Ms. Willever with a younger, less qualified person, its proffered reason is pretextual and its true reason was intentional age discrimination.

Damages

Having successfully proved age discrimination, Ms. Willever is entitled to compensatory damages under the PHRA. Both Ms. Willever and her brother testified that after her termination, Ms. Willever suffered significant emotional distress that manifested itself with physical symptoms. The plaintiff became morose, would cry frequently and was unable to sleep. Further, there was credible evidence that Ms. Willever suffered emotional distress because she was concerned that she would be unable to find employment because of her age. In light of the defendant’s intentional discrimination and the plaintiff’s emotional distress, particularly that distress related to her age, we find that the plaintiff is entitled to $2,500 damages as compensation.

We also find that the plaintiff is entitled to compensatory damages for lost back and front pay and benefits. The plaintiff’s expert, Andrew C. Verzilli, presented credible testimony regarding Ms. Willever’s losses. However, although we find substantial evidence of lost wages and benefits, the plaintiff failed to meet her burden with regard to Mr. Verzilli’s assumption that the plaintiff would have received 3 percent yearly wage increases for the duration of her employment. Therefore, we hold that Ms. Willever is entitled to $117,248 to compensate her for lost front and back pay and benefits.

Sovereign makes two arguments with regard to damages which must be addressed. First, Sovereign argues that the plaintiff failed to properly mitigate her damages because she did not find employment which appropriately compensated her. However, Sovereign bears the burden of proving by a preponderance of the evidence that the plaintiff failed to mitigate and they have not done so here. Sovereign did not offer any evidence that Ms. Willever intentionally failed to find appropriate employment or that other appropriate jobs were available to her, other than the evidence it elicited during cross-examination of Ms. Willever and Mr. Verzilli. That evidence is that the plaintiff sent out a number of resumes, went on a series of interviews, and found a job, albeit one that paid significantly less than what Sovereign was paying her. However, in light of Sovereign’s own actions and the plaintiff’s age, we find that the plaintiff took more than reasonable steps to mitigate her damages.

Finally, Sovereign claims that Ms. Willever’s damages should be reduced because Amy Sunnergren, the woman who replaced Ms. Willever, was terminated less than a year after Ms. Willever was terminated, and that the Easton loan processing office was eventually closed, and that, therefore, if Ms. Willever had remained, she would have been terminated. As to the claim regarding Sunnergren, even if this were legally relevant, we find that defendant failed to prove that Sunnergren was terminated because the loan processing job was eliminated. In fact, there was testimony that she was terminated for cause. Finally, regarding the closure of the Easton office, we find that it is simply too speculative for us to conclude that the closure of this office would have led to Ms. Willever’s termination. Sovereign could have, but failed, to offer any evidence to the contrary; therefore, we assume Sovereign continues to employ loan processors at its numerous offices and branches, and there was no convincing testimony by Sovereign that Ms. Willever would not have been employed in some other office within one of Sovereign’s other branches or offices. Once again, even if Sovereign’s legal argument that the closure of the Easton office at a date after the plaintiff’s termination has merit, we find that Sovereign simply did not produce the facts necessary to support such an argument.

Wherefore, we enter the following:

VERDICT

And now, December 23, 1998, for the foregoing reasons, the court finds that the defendant, Sovereign Bank F.S.B., violated the Pennsylvania Human Relations Act by discriminating against the plaintiff, Patricia A. Will-ever, on the basis of her age.

Sovereign Bank F.S.B. is hereby ordered to pay the plaintiff the sum of $2,500 to compensate her for her emotional distress relating to her illegal termination.

Sovereign Bank F.S.B. is hereby ordered to pay the plaintiff the sum of $117,248 to compensate her for her lost front and back pay and benefits which resulted from her illegal termination.

Therefore, a verdict is entered in favor of plaintiff, Patricia A. Willever, and against the defendant, Sovereign Bank F.S.B., in the amount of $119,748. Any motion for post-trial relief must be filed in accordance with Pa.R.C.P. 227.1.

      . The court arrives at this number by taking the $134,000 that the plaintiff’s expert testified was plaintiff’s lost wages, and subtracting $16,752, which we find to be the amount included in the $134,000 which was compensation for pay increases which the plaintiff might have received from Sovereign. We find that there was not sufficient evidence that the plaintiff would have received yearly 3 percent increases until retirement to award damages for the alleged pay increases.

      . On this point, we found the testimony of both Sunnergren and the plaintiff convincing. They both testified to a conversation held on the day that plaintiff was terminated, where Sunnergren told the plaintiff that she was upset because she felt she was taking the plaintiff’s job and had even been assigned to work at the plaintiff’s former desk.

      . We note at this point, that in light of our findings regarding the fourth prong of the plaintiff’s prima facie case, that Sovereign’s articulated reason already appears pretextual and thus not legitimate. Nevertheless, because a defendant’s burden at this stage is merely to articulate, not prove, a reason for termination, we will continue to analyze the arguments regarding pretext.

      . This testimony was corroborated by Diana Gerbino.

      . It is significant when discussing Ms. Willever’s mitigation to note that although Sovereign’s admissions and testimony are contradictory, it appears that at the time of Ms. Willever’s termination, Sovereign had other positions for which she was qualified. Ms. Willever inquired as to the availability of other positions, but was informed by Sovereign that none were available. We find it difficult to believe that Sovereign would claim Ms. Willever failed to properly mitigate her damages, when the defendant concealed job opportunities that would have allowed the plaintiff to immediately mitigate her damages.


author: HALBERT, J.,

text:
    Walker v. Pennsylvania Financial Responsibility Assigned Claims Plan

      Michael Hanamarian, for plaintiff.

      Anthony Peska and David Walkers, for defendants.
    September 29, 1999
   HALBERT, J.,

The present litigation involves a coverage dispute between the Pennsylvania Financial Responsibility Assigned Claims Plan and the Southeastern Pennsylvania Transportation Authority. The parties have stipulated to the facts, leaving open only the legal determinations.

The plaintiff in this action, Tenisha Walker, filed a lawsuit against the assigned claims plan for injuries incurred as a result of being struck by an unidentified motor vehicle after exiting a SEPTA trolley. Claiming that SEPTA should be held liable for the injury claim, the assigned claims plan joined SEPTA as a third-party defendant.

It is undisputed that on February 16, 1996, Tenisha Walker was travelling on a SEPTA trolley on her way home from work. Walker exited the trolley at 41 st Street, walked to the front of the trolley, and proceeded to cross an intersection in order to transfer to a SEPTA bus awaiting the arrival of passengers. As Walker crossed the street, she was struck by an unidentified motor vehicle which left the scene of the accident.

The parties are in agreement that on the date of the accident, Walker was not a named insured under any insurance policy, did not reside in the household of a named insured under any policy, and was not the spouse of, or a relative of a named insured, under any insurance policy. Walker did not own a vehicle and did not reside with a person who owned an automobile.

The dispute in this case centers upon who bears responsibility for Walker’s injuries. It is the assigned claim plan’s position that it is absolved of responsibility given Walker’s ability to recover directly from SEPTA. The assigned claims plan adopts the viewpoint that Tenisha Walker qualified as an “occupant” of a SEPTA-owned vehicle at the time that she was struck by the unidentified car, rendering SEPTA primarily liable.

The assigned claims plan’s argument rests upon the broad definition of “occupant” provided under Pennsylvania law which extends to persons situated outside a vehicle under certain designated circumstances. According to the assigned claims plan, the fact that Walker had exited one SEPTA vehicle and was crossing the street with the intent of boarding a second SEPTA vehicle qualifies her for purposes of recovery.

SEPTA controverts this assertion, contending that it bears no responsibility for Walker’s injuries since she did not qualify as an “occupant” of any of its motor vehicles at the time that Walker was injured crossing the street.

Absent responsibility on the part of SEPTA, the assigned claims plan would be liable, given the circumstances involving an unidentified motorist and the lack of other available insurance coverage.

It has been agreed by SEPTA that if this court is to find that Tenisha Walker satisfied the qualifications for coverage on any of its vehicles, it would bear responsibility for $5,000 in personal injury protection and $15,000 in uninsured motorist benefits. This comports with the responsibility that otherwise would be borne by the assigned claims plan.

The issue that has been framed by the parties is whether Walker qualifies for coverage as an “occupant” of any of the SEPTA vehicles in this case. The matter presented is of a legal nature and requires the court to determine Walker’s status at the time of the accident.

A person may qualify as an “occupant” of a motor vehicle if injured while walking or standing outside it, provided that there is a sufficient causal relation or connection between the injury and the use of the vehicle. In Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the Pennsylvania Supreme Court articulated four requirements under which a person will be deemed to be occupying a motor vehicle:

“(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
“(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, ..
“(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
“(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.” Id. at 336, 473 A.2d at 1009.

There is no assertion of sovereign immunity in this case. SEPTA nevertheless argues that the trolley from which Walker disembarked does not qualify for coverage as either a “vehicle” or “motor vehicle” under the Pennsylvania Financial Responsibility Act. Although SEPTA acknowledges that the bus which Walker was going to board clearly meets these definitions, it takes the position that Walker cannot recover as an “occupant” of either of the two SEPTA modes of transit in this case given the status of the trolley.

The court agrees with SEPTA that the trolley does not meet the definition of “vehicle” or “motor vehicle” under the Pennsylvania Financial Responsibility Act. Based upon the exclusions in the financial responsibility law, both the Pennsylvania Supreme Court, in Ellis v. SEPTA, 524 Pa. 398, 573 A.2d 216 (1990) and the Superior Court, in Adams v. Harleysville Insurance Co., 381 Pa. Super. 370, 553 A.2d 1014 (1989), dispositively hold that SEPTA cannot be held responsible for paying first-party medical benefits for accidents involving trolleys operated on tracks.

The fact that the trolley from which Walker disembarked does not qualify as a “motor vehicle” under the Motor Vehicle Code does not alone preclude Walker from recovering first-party benefits. The circumstances presented in this case are highly unique. Here, Walker was riding a non-qualifying vehicle under the Motor Vehicle Code with the intent to transfer to a qualifying SEPTA bus. The accident occurred in the course of the commuter’s course of travel.

Unique to this case is that it was contemplated at least from the time that Walker was riding on the trolley that part of the SEPTA commute would be undertaken on the SEPTA bus, which clearly falls within the purview of the financial responsibility laws. The commute was part of a continuum with an interruption only for a transit connection.

Further unique is that the transit carrier for both the vehicle from which the passenger disembarked and the vehicle to which she was intending to transfer were the same. We believe that given the presentation of these circumstances, SEPTA may be held liable.

Under the Contrisciane test, Walker qualifies as an “occupant” of the bus which she was intending to board while making the transfer. In terms of the first criterion, there clearly was a causal connection between the injury and the use of the insured vehicle. Here, Walker was boarding the SEPTA bus in the course of making a connection as part of her commute. It is pertinent that the SEPTA bus was ready to leave and there was no anticipated delay in the commuter connection.

The second criterion is met given Walker’s close proximity to both the vehicle from which she disembarked and the SEPTA bus. The SEPTA bus was across the intersection, within the immediate locale of the site of injury.

As to the third requirement, it is evident that Walker was “vehicle oriented” at the time of the accident. Without interruption or diversion, Walker was making a necessary transfer from one commuter line to another as part of her travels. Given that the SEPTA bus was then ready to leave, there was not even time to undertake other activities which would interrupt the course of travel.

Finally, the act of making the commuter transfer, for purposes of completing a planned trip is a transaction deemed essential to the use of a vehicle and thereby meets the last criterion.

It is notable that in contrast with other cases such as SEPTA v. Dunham, 668 A.2d 272 (Pa. Commw. 1995), there is absolutely no suggestion that Walker intended to interrupt her travels by purchasing merchandise or undertaking any other diversionary activities which would break the act of travelling.

In many respects, this case is analogous to Adeyward-I v. Pennsylvania Financial Responsibility Assigned Claims Plan and The Travelers and SEPTA, 167 Pa. Commw. 450, 648 A.2d 589 (1994), wherein it was determined that a person who was injured while walking across the street after disembarking one SEPTA bus with the intention of boarding a second SEPTA bus qualified as a vehicle occupant for purposes of recovery.

Crucial to the court’s determination in Adeyward-I was the finding that there was an unbroken causal connection and continuum between the passenger’s act of disembarking from the first vehicle and attempting to board the second vehicle. See Dunham, 668 A.2d at 274 (discussing rationale underlying the Adeyward-I decision).

The present case only differs from Adeyward-I to the extent that one of the vehicles was a trolley rather than a bus and that the trolley does not qualify under the Pennsylvania Motor Vehicle Financial Responsibility Act. While this differentiation exists, the court disagrees with SEPTA’s contention that SEPTA is thereby absolved of responsibility.

In Contrisciane, we are instructed that a liberal interpretation of the term “occupying” is required for purposes of adjudging whether a person who is outside of a vehicle may apply for.recovery. 504 Pa. at 335-36, 473 A.2d at 1009. The trial court opinion in Adeyward-I, which was adopted verbatim with approval by the Superior Court, took recognition of the fact that a person may be “vehicle oriented” with respect to a vehicle that they are seeking to board.

Given this finding, we believe that it is critical to consider not only the status of the vehicle being exited but to also consider the vehicle being entered as part of the entire sequence of events when determining qualification for benefits under the occupancy criteria.

Credence is lent to the position that a person may be considered an “occupant” of a vehicle that he/she intends to enter given the Superior Court disposition in Fisher v. Harleysville Insurance Co., 423 Pa. Super. 362, 621 A.2d 158 (1993), alloc, denied, 536 Pa. 624, 637 A.2d 285 (1993). In that case, a hunter who was unloading a rifle in preparation to enter a truck was struck by another car. Determining that the injured hunter was “truck oriented” because he was making preparation to enter the truck, the Superior Court found that he qualified as an “occupant” of that vehicle. 423 Pa. Super, at 365-66, 621 A.2d at 160.

The nexus between the injuries and act of transit on SEPTA commuter lines is sufficient in this case to expose SEPTA to responsibility for providing first-party benefits with respect to the injuries incurred while making a transfer to a qualifying bus.

Having found that SEPTA must pay first-party benefits, we turn to the issue of uninsured motorist coverage. We believe that the same “occupancy” criteria applies.

The cases involving first-party benefits are grounded upon section 1713 of the Financial Responsibility Act which extends benefits to the “occupants of an insured vehicle.” This language is followed in the priority scheme involving uninsured motorist claims found at 75 Pa.C.S. §1733 in which such benefits may be sought under a “policy covering a motor vehicle occupied by the injured person at the time of the accident.” The “occupancy” test has been applied to an underinsured motorist coverage claim in Fisher, supra, the case involving the hunter standing outside the vehicle.

Application of the “occupancy” test to uninsured benefit coverage warrants the same conclusion reached with respect to first-party benefits. Walker qualifies and is entitled to uninsured coverage from SEPTA for the injuries sustained after she was struck by the unidentified vehicle while crossing the street.

In making the findings in this case, we forewarn litigants that they are not intended to broadly open the floodgates to litigation for all pedestrians traversing roadways to catch commuter lines. This case is unique since it involves continued travel on a SEPTA line and a person making a transit connection. It must be emphasized that this case involves vehicular transit on a common carrier at both the time preceding and following the accident.

Based upon the above-stated considerations, the court finds in favor of Tenisha Walker and the assigned claims plan against SEPTA in the stipulated sums of $5,000/ $15,000.

      . To qualify as an “occupant,” there is no necessity that the insured vehicle directly cause the injuries to the claimant. Under the Contrisciane test, it is more broadly required that there be a relation or connection between the injury and the use of the insured vehicle. See Frain v. Keystone Insurance Co., 433 Pa. Super. 462, 640 A.2d 1352 (1994).

      . As a self-insured entity, SEPTA is generally required to provide uninsured motorist coverage pursuant to 75 Pa.C.S. §1787. See Ingalls v. Hertz Corp., 453 Pa. Super. 415, 683 A.2d 1252 (1996). There is no requirement, however, that it provide underinsured coverage. Id.

      Given the broad holdings in Ellis, supra, and Adams, supra, in which the provisions governing the Motor Vehicle Financial Responsibility Act are deemed altogether inapplicable to trolleys operating on tracks, this court would surmise that SEPTA is absolved from purchasing uninsured motorist coverage on these designated vehicles.


author: BERNSTEIN, J.,

text:
    Harris v. Hospital of the University of Pa.

      Stewart J. Eisenberg, for plaintiff.

      James A. Young and Christina G. Tershakovec, for defendants.
    November 6, 1998
   BERNSTEIN, J.,

Plaintiff Marvin Harris, individually and as the administrator for the estate of Rose Levette Harris and on behalf of the estate of Baby Harris, filed this wrongful death and survival action against the Hospital of the University of Pennsylvania, Dr. David Hanes M.D., and Dr. Tondra Anderson-Lewis M.D., defendants, on November 9, 1995. Plaintiff sought damages against defendants for negligence resulting from the treatment and care of decedent Harris and Baby Harris in September 1993.

On May 19,1998, this case settled for $887,500. Plaintiff executed a full and final release on June 29, 1998. Plaintiff filed a petition to settle wrongful death and survival action on August 13,1998, seeking court approval of the settlement and distribution. On August 14, 1998, plaintiff filed a petition for sanctions under Philadelphia Civil Rule 229.1 for failure to deliver settlement funds. On September 18,1998, this court entered an order granting the petition, stating that in addition to the settlement funds, defendants must pay simple interest at the rate of 5.375 percent from July 20,1998 to the date of delivery of the settlement funds. From this order, defendants timely appealed.

According to the complaint, decedent Harris was admitted to the Hospital of the University of Pennsylvania on September 9,1993 for a non-reactive, non-stress test. She was 29 1/2 weeks pregnant. Upon admission, decedent Harris complained of nausea. On September 13, 1993, she began having seizures. At approximately 11:30 a.m., she went into cardiopulmonary respiratory arrest and died. Immediately after her death, defendants delivered Baby Harris by cesarian section. Later that day, Baby Harris experienced multi-organ failure. Baby Harris died on the morning of September 14, 1993.

The sole issue raised on appeal is whether this court erred in ordering defendants to pay simple interest on the settlement award from July 20, 1998 to the date of delivery of the settlement funds before plaintiff had obtained court approval of the settlement. For the following reasons, this court’s ruling was proper and should be affirmed.

Under Philadelphia Civil Rule 229.1, plaintiffs are entitled to simple interest in addition to the settlement award if the funds are not delivered within 20 days from the date of execution of the release. The rule states:

“(D) A released party shall have 20 calendar days from receipt of an executed release within which to deliver settlement funds to the releasing party or its counsel....
“(F) ... If the court finds that the released party has violated this rule and that there is no material dispute as to the terms of the settlement or the terms of the release, the court shall impose sanctions in the form of simple interest at a rate equal to the coupon yield equivalent (as determined by the secretary of the U.S. Department of Treasury) of the average accepted auction price for 52-week U.S. Treasury Bills at the auction last preceding the date on which the attorney affidavit was filed, running from the 21st day to the date of delivery of the settlement funds, together with reasonable attorneys’ fees incurred in the preparation of the affidavit.”

Here, Rule 229.1 requires defendants to deliver the sum of $887,500 to plaintiff by July 19, 1998, 20 days after execution of the release. To date, however, defendants have failed to deliver the settlement sum to plaintiff. Defendants argue that they are not obligated to pay the settlement funds until 20 days after the settlement has been judicially approved. Despite the clear language of the rule, defendants assert that the 20-day period begins to run from the date of court approval as opposed to the date of execution of the release. However, they offer no support for this proposition.

Both parties agree that court approval of the settlement is required in this case and that it has not yet been granted. Under Pennsylvania law, “[w]henever it shall be proposed to compromise or settle any claim... by or against an estate ... the court, on petition by the personal representative or by any party in interest. .. may enter a decree authorizing the compromise or settlement be made.” 20 Pa.C.S. §3323(a). Where wrongful death and survival actions are settled for a single amount, the amount apportioned to the survival action must be approved by a court with competent jurisdiction. Moore v. Gates, 398 Pa. Super. 211, 580 A.2d 1138 (1990), appeal denied, 527 Pa. 617, 590 A.2d 758 (1991). Because this case involves a settlement in a survival action, court approval is required.

The parties disagree, however, on how the requirement of court approval affects defendants’ obligation to deliver the settlement funds under Rule 229.1. Neither Rule 229.1 nor case law addresses how the two requirements interplay. Consequently, the court should look to the intent explicit in the Philadelphia Civil Rules. The rules of construction provide that the- rules “shall be construed liberally to insure that no one is denied justice.” In this case, plaintiff has a legitimate interest in receiving interest accrued on the $887,500 settlement sum from the date of execution of the release until the funds are delivered. Defendants have a legitimate interest in seeing that the money is not distributed until the settlement has been approved to protect against dissipation of the funds and rejection of the settlement by the court. In this case, Rule 229.1 can be construed to insure that no one is denied justice by protecting the legitimate interests of both parties.

Although the settlement award has not yet been judicially approved, plaintiff is entitled to simple interest on the settlement award under Philadelphia Civil Rule 229.1 because defendants failed to deliver the funds within 20 days after execution of the release. Presently, defendants retain control over the $887,500 settlement sum and interest accrues to their benefit. While the settlement continues to accrue interest, plaintiff alone bears the risk that defendants or their carrier may become insolvent. Defendants may not avoid the requirements of Rule 229.1 where the release has been executed because the settlement award has not yet been judicially approved. Rule 229.1 can be satisfied by the deposit of $887,500 into an interest-bearing escrow account. This will ensure that the settlement sum will remain intact until distribution while permitting plaintiff to obtain the full benefit of all interest accrued while court approval is pending.

For the foregoing reasons, plaintiff is entitled to simple interest at the rate of 5.375 percent on the $887,500 settlement award from July 20,1998 to the date of delivery of the settlement funds pursuant to Philadelphia Civil Rule 229. 1. This court properly granted plaintiff’s petition for sanctions, and its ruling should be affirmed.

      . Philadelphia Civil Rule 229.1. (emphasis added)

      . Reply of defendants Hospital of the University of Pennsylvania, David Hanes M.D., and Tondra Anderson M.D. in opposition to plaintiff’s petition for sanctions under Philadelphia Civil Rule 229.1. Filed September 3, 1998. Pages 3-4.

      . Plaintiff’s response to defendants’ reply in opposition to plaintiff’s petition under Philadelphia Civil Rule 229.1 for sanctions for failure to deliver settlement funds. Filed September 16, 1998.

      . Philadelphia Civil Rule 51(C).

      . Unfortunately, Philadelphia has recently experienced the insolvency of a large malpractice carrier (PIC) and the bankruptcy of a major medical care provider (Allegheny). Numerous plaintiffs have been financially injured by insolvent carriers.

      . For greater protection, defendants can deposit the settlement sum into an escrow account that requires the signatures of counsel for both parties or an order of the court before funds may be withdrawn. The court notes that the order entered does not mandate deposit; it merely determines who will receive the interest.


author: VALASEK, J.,

text:
    Wynkoop v. Luke
    C.P. of Armstrong County,
    no. 1999-0142-Civil.

      Cynthia M. Danel, for plaintiffs.

      John W. Zotter, for defendant Alltel.

      Thomas A. Lonich, for defendant Luke.

      Robert T. McDermott, for defendant PennDOT.

      September 23, 1999
   VALASEK, J.,

Before the court for consideration are defendant Alltel’s preliminary objections to plaintiffs’ complaint in the form of a demurrer to Count I, wrongful death, part A, ¶21^), in which plaintiffs claim damages due to loss of their son’s “comfort and society.” Defendants Luke and Department of Transportation join in the demurrer.

FACTS ALLEGED IN COMPLAINT

On May 25, 1997, Cory Wynkoop, 13 years of age, rode in a vehicle operated by his father, Craig Wynkoop, along Route 28/66 in Rayburn Township, Armstrong County. A tree located on property owned by defendant Gloria Luke and within Alltel’s telephone line easement fell onto the roadway owned by the Commonwealth. The tree struck the Wynkoop vehicle, injuring Cory Wynkoop. The injuries sustained by Cory ultimately resulted in his death.

DISCUSSION

Preliminary objections in the nature of demurrers are governed by Pennsylvania Rule of Civil Procedure 1028(a)(4). Courts properly sustain preliminary objections: “only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.... If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.” Shick v. Shirey, 552 Pa. 590, 594, 716 A.2d 1231, 1233 (1998) (quoting County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985)).

Defendants argue that recovery for filial consortium has never been allowed under our common law and that damages for the same are not recoverable under the wrongful death statute.

Plaintiffs acknowledge that recovery for the loss of filial consortium has never been allowed under our common law. See plaintiffs’ brief in opposition to defendants’ preliminary objections pp. 5-6. Plaintiffs are not willing to concede, however, that damages for the loss of filial consortium are not recoverable under the Wrongful Death Act.

Plaintiffs argue that a distinction must be made between asserting a cause of action for filial consortium under the common law and seeking damages for the loss of filial consortium under the Wrongful Death Act. It is the latter which plaintiffs assert they are doing; they further assert they are permitted to seek such damages under subsection (c) of the Act. 42 Pa.C.S. §8301(c). The language plaintiffs point to in the Act reads as follows: “In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” (emphasis added) Plaintiffs properly note that our Supreme Court has stated that, because of the remedial nature of the Wrongful Death Act, it must be liberally construed. Hudak v. Georgy, 535 Pa. 152, 155, 634 A.2d 600, 602 (1993).

Whether damages for a parent’s loss of a deceased child’s “comfort and society” in a wrongful death action are recoverable has become a topic of some debate. See for instance, the opinion of the Honorable R. Stanton Wettick Jr. in Ehrman v. Mid-American Waste Systems of Pennsylvania Inc., no. 96-18035 (Allegheny County Ct. of Common Pleas, Dec. 14, 1998), wherein it was held that damages for the loss of a deceased child’s “aid, companionship, and services” were recoverable by the parents in a wrongful death action. See also, the opinion of Judge Carmen D. Minora in Verity v. Hershey Medical Center, no. 98-CV3547 (Lackawanna County Ct. of Common Pleas, May 17, 1999), holding to the contrary.

For the reasons which follow, the court will overrule defendants’ preliminary objection.

The polestar of the court’s analysis must necessarily be the concept of pecuniary loss. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), our Supreme Court explicitly stated that wrongful death actions are intended to compensate a decedent’s survivors for pecuniary loss. As stated by the same court in Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930) “[bjefore there can be any recovery in damages by [a family member] for the negligent death of another [family member], there must be a pecuniary loss.” Id. at 529, 152 A. at 552. (citations omitted) It is equally clear that damages in death cases do not include a claim for mental suffering, grief or distress of mind. Id. at 531, 152 A. at 552. These losses were categorized as “affectional” by our Supreme Court in Sinn v. Burd, supra.

“Pecuniary loss has been defined to be a destruction of a reasonable expectation of pecuniary advantage from the deceased.” Gaydos, 301 Pa. at 530, 152 A. at 552.

With the above in mind, it becomes evident to the court that plaintiffs may recover for the loss of their deceased son’s “comfort and society” if they can prove that such loss resulted in the destruction of a reasonable expectation of a pecuniary advantage for them. If they cannot so demonstrate at trial, then the loss of comfort and society must necessarily be an affectional loss, which is outside the purview of a wrongful death action.

This holding does not have the effect of recognizing a cause of action for loss of filial consortium for at least three reasons. First, a loss of consortium claim cannot arise from the death of the injured relative. Second, the only issue in the case at bar concerns the proper measure of damages in a wrongful death action. The court is now merely holding that the pecuniary losses arising from the kinds of deprivation commonly suffered by those making valid claims for loss of consortium in negligence actions, are compensable in a wrongful death action. Third, in a true loss of consortium action, the non-injured relative is entitled to recover for the loss of society, companionship, comfort, etc., whether or not it results in a pecuniary loss.

The court lastly notes that there is other language in Gaydos v. Domabyl, supra, to support the above analysis and holding. The Gaydos court opined as follows: “but damages in death cases do not include a claim . . . for the loss of the society or companionship, as such, of children or parents.” Id. at 531, 152 A. at 552. (citations omitted) (emphasis added)

At first, this language would apparently dictate against the instant holding, but upon further analysis, one must conclude that it is entirely consistent with it. The phrase “as such” is of paramount importance. The Supreme Court, by its use of the phrase, intended that the loss of society or companionship in and of itself not be com-pensable. Its emphasizing the concept of pecuniary loss indicates that the loss of society or companionship would be compensable only if it resulted in a pecuniary loss.

An appropriate order will be entered.

ORDER

And now, September 23,1999, defendants having filed preliminary objections to plaintiffs’ complaint, after consideration of the objections, arguments and briefs of counsel, it is hereby ordered, adjudged and decreed that defendants’ objections are overruled.

      . See footnote no. 3, therein.

      . See footnote no. 3, therein.