author: JOHNSON, J.,

text:
    Ferricks v. Ryan Homes Inc.

      Daniel M. Berger and Thomas B. Rutter, for plaintiffs.

      Herman C. Kimpel, for defendant Ryan Homes Inc.

      Thomas W. Corbett Jr., for defendant St. Regis Corp.

      Concetta A. Silvaggio, for defendant Chembond Corp.

      Frederick N. Engler, for defendant Borden Inc. '

      James Mollicajr., for defendant Reichhold Chemicals Inc.

      Daniel B. Winters, for defendant Potlatch Corp.
    October 19, 1989
   JOHNSON, J.,

Plaintiffs David and Margaret Ferricks, in their own right and on behalf of their minor children, Daryl, Jeffrey, Christine and Richard Ferricks, commenced this action to recover for personal-injury and property damage sustained by way of exposure to ureaformaldahyde vapors “off-gassing” from the budding materials of their home.

Asserting, in 12 counts, related claims of negligence, strict liability and product liability, plaintiff's named as defendants the general contractor who constructed the home, as well as several manufacturers of plywood and plywood adhesive; said material alleged to contain the formaldehyde resin in question. Defendants St. Regis Corporation and Potlatch Corporation, plywood manufacturers, denied the presence in their product of unsafe levels of formaldehyde resin or vapors, answering further that said compound, if present, was not a threat to human health and that plaintiffs’ exposure thereto had been minimal. All defendants denied negligence, causation and liability in general, but the material facts of the cause of action, as now before this court on motion for summary judgment, remain undisputed.

The home in question was erected by defendant Ryan Homes in 1971, having been prefabricated of plywood manufactured by defendants St. Regis and Potlatch. Plaintiffs purchased the home from its second owners in August 1975, and noticed shortly thereafter an unidentified odor inside followed by ill health effects later diagnosed as related to exposure to formaldehyde vapors. After unsuccessful attempts structurally to rectify the problem, plaintiffs initiated this action on April 3, 1984; almost 13 years after construction of the home was completed.

Several years later following limited discovery, defendant Reichhold moved for summary judgment in April 1987, asserting that plaintiffs’ cause of action was extinguished by 42 Pa.C.S. §5536, the “construction projects” statute of repose. Prior to argument,, defendants Ryan Homes, St. Regis, Pot-latch and Chembond joined in Reichhold’s motion and the same was presented before the Honorable William L. Standish, J. Unwilling at that stage of litigation, however, to dismiss all joining defendants under the statute of repose, Judge Standish granted summary judgment for Ryan Homes alone, denying summary judgment to all other defendants without prejudice to refile said motions upon completion of discovery.

Discovery now having been completed, defendants Potlatch and St. Regis move the court once more for summary judgment, contending that the construction of plaintiffs’ home having been completed more than 12 years past, judicial precedent compels the entry of summary judgment in their favor, consistent with the statute of repose, supra. Said defendants assert jointly that the plywood of which plaintiffs’ home was constructed, constitutes of itself an “improvement to real property” within the meaning of the statutory language, while they, as its manufacturers, acted as members of the protected class, performing construction or the design thereof.

Although no appellate case law exists so expansively interpreting the statute of repose, defendants have directed this court’s attention to a line of Superior Court precedent whereby liberal construction of said statute has been favored. (See infra at 264-5). Defendants further note that one court of jurisdiction coordinate to that of this tribunal has relied thereon to support a position consistent in part with that now taken by defendants. (See memorandum and order of Judge Standish of July 7, 1987).

Although this court, upon the foregoing representations of counsel, granted the motion which underlies plaintiffs’ instant appeal, subsequent evaluation of all relevant statutory and judicial authority as well as the legislative history of the statute of repose, and considered rationale of the Supreme Court of Pennsylvania, reveals the improvidence of this court’s action and requires that its order granting summary judgment be reversed.

To that end, this court is compelled to discern and evaluate the state of the law which binds the subordinate courts to limited application of the statute.

I

Improvements to Real Property

Extending its protection to “any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property,” the “construction projects” statute of repose is subject to a two-part analysis for purposes of this action. As the passage of more than 12 years prior to suit on the existing cause of action is undisputed, this court is called to consider first, whether fungible plywood, as the cause of injury, is an “improvement to real property” within the meaning of the statute. Secondly, this court must discern whether defendants, as manufacturers of said plywood, may benefit at law from the statute’s protection. Endeavoring to ascertain the intent of the General Assembly, this court must consider independently each criterion, since although interdependent, satisfaction of one does not necessarily establish the other. Cf. Spring-man v. Wire Machinery Corp. of America, 666 F.Supp. 66 (M.D. Pa. 1987).

Addressing the issue of “improvement to real property,” various sources of authority have adopted divergent points of view; but despite the liberality of statutory construction exercised, the most basic rationale of each decision supports this court’s position that fungible resources as unfinished single components with a multiplicity of purposes, are not of themselves improvements to real property.

The tenor of debate on this issue was established by the Superior Court decision of Mitchell v. United-Elevator Company, 290 Pa. Super. 476, 434 A.2d 1243 (1981), wherein the court addressed the fabrication and installation of an elevator system in a pre-existing structure. Although the trial court concluded that defendant “Westinghouse simply supplied and installed the necessary elements for the elevator system as a part of the overall construction. . . ,,”andheldthatthesystemwasnotanimprovement to real property, the Superior Court reversed. Relying on the complex and integrated nature of the system, the court established those factors as criteria for future application of the statute of repose and admonished subordinate courts accordingly, stating:

“The lower court seems to be likening the budding of an elevator system with all its myriad components, motors, cables, wiring and machinery to uncrating and plugging in a television set. The fact that the basic design of the elevator may be identical in different buildings does not render the elevator system any less an improvement to real estate.” Mitchell, supra.

A requirement of integrated complexity thus recognized, the court extended its rationale in the case of Catanzaro v. Wasco Products Inc., 339 Pa. Super. 481, 489 A.2d 262 (1985). Therein, the court likened one finished product, a defective, sky dome, to another, a window, historically included as a fixture. Reasoning that both should be so recognized, the court concluded that “Pennsylvania courts agree that fixtures are included within the category of ‘improvements to real property.”’ Although apparently retreating from MitchelVs implied requirement of complexity, the court’s recognition of the subject sky dome as a fixture is logically attributable at least in part to its status as a finished product of singular purpose inherently able to enhance the value of the underlying real property. The same cannot be said, however, of fungible resources of multiple purpose, the statutory classification of which has never been addressed by Pennsylvania’s appellate courts. See also, Goodrich v. Luzerne Apparel Manufacturing Corporation, 356 Pa. Super. 148, 514 A.2d 188 (1986).

Underscoring the foregoing rationale, the court adopted in Mitchell, supra, a definition of improvement which extends, in its most liberal construction, only to the extent of its application in Catanzaro; i.e. to coverage of fixtures and other finished products of inherent value and singular purpose, to be integrated into a structure. Adopting the meaning of “improvement” as expounded by Black’s Law Dictionary, 5th ed., 1979, the court defined the same as:

“A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intending to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally, buddings, but may also include any permanent structure. ...” Mitchell, supra.

The logic of said definition precludes inclusion thereunder of fungible multiple-purpose budding materials such as plywood. As noted in the text thereof, improvement is “a valuable addition . . . amounting to more than mere repairs or replacement.” Inclusion of plywood or other fungibles as such “valuable additions” creates internal inconsistency within the definition, inviting arbitrary distinctions between budding materials used in original construction, such as the plywood here in question, and those used for “mere repair or replacement.” Whde materials used in original construction might be deemed “improvements,” the provisions of the definition as adopted clearly preclude the same treatment for those used in repair. A result which would so reward manufacturers based on the fortuity of inclusion of their product' in original construction whde denying protection for equady defective materials used thereafter is without logical foundation, and as such, could not reflect the intention of the legislature. Cf. Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982).

The definition’s further language, recognizing “improvement” as an addition to property “costing labor or capital, and intending to advance its value, beauty or utility or to adapt it for new or further purposes,” also militates against inclusion thereunder of fungible building materials. Consideration of the purpose of such resources demonstrates that in and of themselves they are merely single components of a greater whole and are recognizable as some form of “improvement” only upon the application of “labor or capital,” directed toward the construction of some structure or a fixture thereof. Such construction is the only verifiable manifestation of intention to “enhance [the] value, beauty or utility” of the underlying property. Any contrary finding would serve to advance the absurd result that building materials such as plywood, plate glass, aluminum sheeting or steel girders might be merely stockpiled on a given piece of real estate and be thereby subject to inclusion under the statute of repose, as “improvements] to real property.”

Accordingly, it is this court’s belief that the definition’s second sentence acts as a form of limitation, such as to include within its meaning, only buddings and other permanent structures. While the inclusion of windows, skydomes or elevator systems, as discussed, taxes the ordinary meaning of “structure,” each is a multiple component fixture and as such is includable within said category. Accord: Catanzaro v. Wasco Products Inc., supra. While a completed structure or fixture such as an elevator, window or plaintiffs’ home constructed of fungible budding materials may be deemed an “improvement to real property,” the individual raw materials themselves may never be so recognized. Logically, no “improvement” of any type exists until, through the application of creative forces, a structure arises, whereupon only the structure itself is an improvement,, bereft of which each fungible component is of no consequence to the value of the underlying property. In most basic terms, the structure as the whole exists as the improvement and is greater than the sum of its fungible parts.

Consideration of the measure’s legislative history also supports, inferentially, limitation of the statute of repose, suggesting application only to buildings and their fixtures. Albeit scant, but instructive nonetheless, legislative remarks of record address the statute as a measure of protection for design and construction professionals potentially liable for negligently rendered buildings. Nowhere in debate is any reference made to inclusion as improvement to real property of manufactured raw materials from which said structures are created. In Senate debate opposing the bill, Senator Sesler expounded that: “[I]f a building has been designed, planned or constructed negligently, and that negligence is the approximate [sic] cause of injuries, deaths or property damages to an innocent party, then that innocent party should have the right to collect.” Legislative Journal — Senate at 1015 (1965). (emphasis supplied)

Considered in conjunction with remarks offered concerning the class of persons to be covered by the act, legislative debate reflects concern with limitation of liability in ventures commonly acknowledged as construction projects, which culminate in the creation of a structure as improvement to real property. See Id. at 1015; also, Legislative Journal — House at 2243 (1965). The Assembly’s lack of concern for liability stemming from the use of manufactured budding materials, considered in light of the foregoing precedent and analysis, convinces this court that a contrary judicial finding would be violative of both the language and spirit of the statute of repose.

II

Covered Class of the Statute

In similar manner, authority on the scope of the statute’s covered-class provision directs exclusion therefrom of materials suppliers and manufacturers as persons whose activities fall outside those described in the act.

Establishing the scope and application of said provision, the Superior Court laid the foundation for debate in the case of Leach v. Philadelphia Savings Fund Society, 234 Pa. Super. 486, 340 A.2d 491 (1975). While the covered class provision facially includes those “performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement. . . . ,” the court in Leach resisted attempts to limit the statute’s coverage to members of a particular profession or occupational group. Resting its determination of coverage, instead, upon the nature of services rendered, the court reasoned that:

“The Pennsylvania statute [ ] identifies its class not by the status or occupation of its members but rather by the contribution or acts done in relation to the improvement to the real property.
“The only relevant test, as shown by a careful reading of the statute, is whether the individual in fact lawfully furnished or performed any of the listed activities.” Leach, supra, (footnote omitted)

Application of said test herein, according “plain meaning” to the statutory language, readily demonstrates that these defendants are not members of the protected class. Although jointly they urge a contorted reading of the statute such as to equate their industrial “design” of the plywood in question and their subsequent manufacture thereof, to the “design ... of construction,” and “construction,” respectively, there can be no reasonable disagreement that the interpretation they advance is not within the “plain meaning” of the statutory language. “Construction” and “manufacture” are two words distinct unto themselves, and their “plain meanings,” in the context of the statute of repose, are not readily interchangeable. As aptly stated by the U.S. Court of Appeals for the Third Circuit: “In first looking at the language of [42 Pa.C.S.] §5536, it is evident that manufacturers are not covered under the plain meaning of the statute. . . Nowhere does the statute speak of th emanufacture of an improvement ”Luzadder v. Despatch Oven Company, 834 F.2d 355, 359 (3d Cir. 1987). (emphasis supplied)

Application of further authority leaves little doubt of the tenuous nature of defendants^ position. Cited not as challenges to the well-founded standard in Leach, supra, but as amplification of legislative will and judicial reason, both the legislative history of the statute and interpretive case law demonstrate an intended purpose in the act of protection for those involved in “construction” only as described therein; consistent with the decision in Leach, supra.

As discussed by several federal courts including the Third Circuit Court of Appeals; “the statute [of repose] was passed as a result of the lobbying efforts of the American Institute of Architects, the National Society of Professional Engineers, and the Associated General Contractors of America and meant to protect these groups of people — not manufacturers.” Springman v. Wire Machinery Corp. of America, supra at 69. See also, Luzadder v. Despatch Oven Co., supra at 359; Vasquez v. Whiting Corp., 660 F.Supp. 685, 688 (E.D. Pa. 1987).

In accordance with the foregoing assertion of the Third Circuit Court of Appeals, records of legislative debate show concern only for inclusion of designers, engineers, architects and contractors; and at one point in Senate debate, infer an intended exclusion of manufacturers. As argued by Senator Sesler, in his opposition to the original bill: “I believe, if we did impose a statute of limitation in this area, [to the benefit of contractors, architects or designers], that I could think of many areas, in the field of manufacturing and construction, where we might conceivably impose a statute of limitation.” Legislative Journal — Senate at 1015 (1965). (emphasis supplied)

Discussion in the House of Representatives, although limited, reflects exclusive concern with the protection of builders and design professionals. Representative Mebus explained:

“This bill does not provide a means for a designer or contractor to escape responsibility for his errors of omission or commission. It. does provide for protection from accusations of professional failure long after his engagement is complete.
“Today a retired architect, engineer or contractor, . . . is forever liable for his previous acts and should therefore never cease to carry . . . very expensive liability insurance. ...
“Lastly, I wish to make the point that the architect, engineer dr contractor, once having completed his work, turns the project over to the owner and forever relinquishes his control of the project. He then has no knowledge of the misuse or abuse that may take place.” Legislative Journal— House at 2243-4 (1965).

Echoing Mr. Mebus’ sentiments on the builder’s lack of control over the lifetime performance of a project, the Supreme Court of Pennsylvania took a similar stand in the case of Freezer Storage Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978). Discussing the constitutional merit of the statute’s distinction between classes of potential defendants, the court assumed that suppliers (i.e. manufacturers), could not enjoy the act’s protection, while builders could. Noting that, "... the distinction drawn between the two classes is rational,” the court thus explained its reasoning stating:

“Suppliers, [i.e. manufacturers] who typically produce items by the thousands, can easily maintain high quality-control standards in the controlled environment of the factory. A builder, on the other hand, can pre-test his designs and construction only in limited ways — actual use in the years following construction is their only real test. Further, every budding is unique and far more complex than any of its component parts. . . . The legislature can rationally conclude that the conditions under which builders work are sufficiently difficult that limitations should be placed on their liabilities, but not on the liabilities of suppliers.
“This Act of 1965 draws the sort of rational distinction, based on real differences in the business world, which our cases have consistently upheld.” Freezer Storage Inc., supra.

Although offered in dicta, the Supreme Court’s reasoning highlights matters of policy of concern in the case at bar, and strengthens this court’s belief that materials manufacturers must remain outside the statute’s covered class, fully accountable under our laws of product liability.

Supportive of such a conclusion is the persuasive discussion of U.S. District Judge Cohn in the recent case of Vasquez v. Whiting Corporation, supra. In addressing the applicability of section 5536 to the manufacturers of a stationary overhead crane, the court reasoned that:

“A further policy rationale suggests that the statute of repose should not insulate from liability mere manufacturers or suppliers of products. The policy underlying section 402A of the Restatement (Second) of Torts (1965), which has been adopted as the law of Pennsylvania, ... is to protect and compensate victims of defective products while forcing suppliers of such products to bear the risk of loss . . . These policies would be undermined if-manufacturers of products were able to claim that the statute of repose relieves them of liability merely because their products have somehow become ‘improvements to realty.’ ” Vasquez at 689. (citations and footnotes omitted)

Recognizing possible conflict to be created in this state’s most basic tort law upon an overly broad reading of the statute of repose, the district court’s rationale was cited shortly thereafter in the Court of Appeals disposition of Luzadder, supra. Reversing the holding of the District Court therein that the manufacturer of an industrial oven was afforded protection by section 5536, the court concluded:

“We believe that manufacturers have, for good reason, been excluded from the protection of Penn-. sylvania’s statute of repose. Application of section 5536 to manufacturers would cut the heart out of Pennsylvania’s product liability law, by immunizing any manufacturing company fortunate enough to have its product turned into an improvement to real property.” Luzadder at 359.

CONCLUSION

The effect of overextention of the statute’s application thus stated, this court is mindful of far-reaching results to be engendered by this decision, whereby the statute of repose may be extended beyond previous interpretation and basic tort law may be reshaped. Such changes falling within the decisional ambit of the appellate courts, this court is compelled by constraints of judicial policy to seek reversal of its decision in this case in favor of appellate precedent, mindful of all the foregoing rationale.

      . The statute of repose, 42 Pa.C.S., provides in pertinent part:
      “§5536. Construction projects —
      “(a) General rule — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
      “(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
      “(2) Injury to property, real or personal, arising out of any such deficiency.
      “(3) Injury to the person or for wrongful death arising out of any such deficiency.
      “(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).”

      . Although plaintiffs appealed the dismissal of Ryan Homes as per notice of appeal filed July 27, 1987, appellate review was never commenced as plaintiffs voluntarily discontinued their appeal by praecipe of October 2, 1987.

      . Defendants Borden, Reichhold and Chembond were also dismissed from this action pursuant to a subsequent consent order of court of September 4, 1987. (Standish, J.) Ordered in disposition of an earlier motion for summary judgment of defendant Borden in which Reichhold and Chembond later joined,- these defendants’ dismissal was based not on the statute of repose, but upon plaintiffs’ failure in discovery to establish product identity.

      . The finished product of a window is to be contrasted with the fungible plate glass of which it is made, much as plaintiffs’ home as a completed improvement to real property, may be contrasted with the fungible plywood, of which it was constructed.

      . Federal authority is cited often throughout the remainder of this text not as binding precedent on this or any other state court, but as persuasive interpretive rationale which probes the meaning of the covered-class provision of this statute to a degree not yet undertaken by Pennsylvania’s appellate courts.

      . The Act of 1965, 12 P.S. §65.1, although now repealed, was substantially identical to the current statute of repose, 42 Pa.C.S. § 5536. Therefore, although the current enactment revises the structure of the language of its predecessor, that revision provides no basis for distinction by which to discount either the Supreme Court’s analysis in Freezer

        Storage, supra or the legislative history cited earlier in this text. Cf. Luzadder v. Despatch Oven Co., 834 F.2d 355 (3d Cir. 1987).

      . A scholarly and well-reasoned discussion of the development of construction law as it limits interpretation of the statute of repose, 42 Pa.C.S. §5536, appears in Patraka v. Armco Steel Co., 495 F.Supp. 1013, 1018-9 (M.D. Pa. 1980).

      . As originally noted by Judge Cahn and reiterated now by this court:
      “That the legislature intended to differentiate between suppliers of services and manufacturers or suppliers of products can be gleaned from the legislature’s failure to enact a product liability statute of repose. In contrast, 16 states that have passed statutes of repose for architects, engineers and contractors also have enacted product liability statutes of repose.” Vasquez v. Whiting Corp., supra at 689. (citation omitted)


source: Caselaw Access Project

author: HEH,

license: Public Domain

text:
    In re Anonymous No. 40 D.B. 88
    Disciplinary Board Docket No. 40 D.B. 88.
    May 9, 1989
   HEH,

Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above petition for discipline.

HISTORY OF PROCEEDINGS

On or about June 15, 1982, the minor son of [ ] and [ ] [A] sustained serious injuries in an automobile accident. The [As] retained Attorney [B] to represent them. Attorney [B] assembled a file, but was unable to continue to represent the [As]. Attorney [B] referred the [As] to respondent. Mrs. [A] gave the file to respondent, and he agreed to represent them on a 40-percent contingent fee, which was not reduced to writing. After the initial contact between the [As] and respondent, there was no other contact for about two years. Sometime in the fall of 1985, respondent informed Mrs. [A] per telephone conversation that the “case was coming up in the fall.” When the case was not disposed of in the fall, Mrs. [A] made repeated phone calls to respondent. Respondent did not return any of her calls. In February 1986, Mrs. [A] contacted Attorney [C], who sent a letter dated February 11, 1986 to respondent inquiring about the status of the [A] matter. Respondent did not reply to Attorney [C’s] correspondence. In June 1987, Mrs. [A] went to respondent’s office in an attempt to retrieve her file. Respondent informed her that he did not have the file, but respondent called Attorney [C] in Mrs. [A’s] presence and represented he would send the [A] file to Attorney [C’s] office the following week. Respondent failed to deliver the file to Attorney [C]. From the time of receipt of the file until the date of the hearing, respondent had taken no action in the matter, and failed to return the file.

Respondent did not file an answer to the petition for discipline within the prescribed period of time and the matter was referred to Hearing Committee [ ], consisting of [ ]. The hearing was held on August 18, 1988, as scheduled, at which time respondent was present and was represented by himself. The hearing committee filed its report on February 24, 1989 and recommended that respondent be suspended from the practice of law for not less than six months. No exceptions to the report of Hearing Committee [ ] were filed and the matter was adjudicated by the board at its April 9,1989 meeting.

FINDINGS OF FACT

The board adopts the findings of fact by the hearing committee which are supported by the record and are as follows:

(1) On June 15, 1982, [D], the minor son of [ ] and [ ] [A], all residing at [ ], was struck by an automobile and hospitalized for injuries arising from the accident

(2) On June 23, 1982, [ ] and [ ] [A] engaged Attorney [B] of [ ] to represent their interest and that of their minor son in their claim for damages arising out of the minor’s personal injury.

(3) Pursuant to his retention, Attorney [B] compiled a file containing photographs of the accident scene and the minor claimant, the police accident report, bills for treatment from medical providers and correspondence to and from doctors. Additionally, Attorney [B] made application for no-fault benefits on behalf of the minor and attended a summary hearing in [ ] at which the allegedly responsible third party was tried for reckless driving.

(4) On or about March 21, 1983, Attorney [B] corresponded with the [As] and advised them to obtain new counsel to represent them because he had sustained disabling injuries as a result of one or more accidents in which he had been involved.

(5) On March 25, 1983, Attorney [B] gave Mr. [A] the complete file and suggested the [As] consult respondent about future representation in the matter.

(6) Shortly after receiving the file, Mrs. [A] met with respondent at his office.

(7) Mrs. [A] engaged respondent to represent the [As] and their minor son upon the same contingent fee terms as thé [As] had with Attorney [B] to be reduced to writing between respondent and the [As] at a later date.

(8) Respondent took possession of the [A] file.

(9) Thereafter, there was no contact between the [As] and respondent for about two years until Mrs. [A] informed respondent that her son was seeing a chiropractor.

(10) Respondent requested a report from the chiropractor.

(11) Sometime in 1985, [D] stopped at respondent’s office and was informed by respondent that “in the fall” the case would be going to court.

(12) By telephone conversation at or about the time of [D’s] visit to respondent’s office, respondent informed Mrs. [A] that the “case was coming up in the fall.”

(13) When the claim was not disposed of in the fall of 1985, Mrs. [A] made repeated unsuccessful attempts to contact respondent by telephone. Respondent was either unavailable or did not return her calls.

(14) In February .1986, Mrs. [A] contacted Attorney [C] of [ ] and engaged Attorney [C] to inquire about the claim. Attorney [C] wrote to respondent inquiring when the case had been filed, where and the status of the litigation.

(15) Respondent did not reply to Attorney [C’s] correspondence.

(16) In June 1987, Mrs. [A] met with respondent after scheduling an appointment with respondent for her daughter, ostensibly to discuss a divorce, and appearing in place of her daughter.

(17) At that meeting Mrs. [A] demanded the file and when informed that he did not have the file or have it ready, refused to leave until respondent called Attorney [C].

(18) Respondent call Attorney [C] in Mrs. [A’s] presence and indicated he would deliver the file to Attorney [C’s] office the following Tuesday.

(19) Respondent did not deliver the file to Attorney [C].

(20) In November 1987, respondent met Attorney [C] at the courthouse in [ ] and upon request indicated he would mail the file to Attorney [C].

(21) On May IT, 1988, respondent again met Attorney [C] at the courthouse in [ ] at which time Attoméy [C] again asked for the file. Respondent indicated that he had mailed the file to Attorney [C], that it must have been lost in the mail but that he would send copies of the file to Attorney [C].

(22) Respondent failed to deliver the file to the [As] or Attorney [C] and retained possession of the file as of the date of hearing.

(23) Respondent did not file suit on the [A] claim(s) in [ ] County or elsewhere.

(24) From the time of receipt of the file until the date of the hearing respondent did nothing with the [A] claim except request a report from a chiropractor.

(25) The [As] have commenced suit against Attorney [B] and respondent in [ ] County, ostensibly for malpractice for permitting the statute of limitations to expire on the [A] claim(s).

DISCUSSION

The Disciplinary Board has determined that respondent has violated the following Disciplinary Rules of the Code of Professional Responsibility:

(1) D.R. 1-102(A)(4) — dealing with conduct involving dishonesty, fraud, deceit, or misrepresentation;

(2) D.R. 6-101(A)(3) — neglect of an entrusted legal matter; and

(3) D.R. 7-101 (A)(2) — intentional failure to carry out a contract entered into for professional services.

The board believes that the extensive disciplinary history of respondent warrants the imposition of a six-month suspension. Respondent has already received four informal admonitions and one private reprimand. Not only did these proceedings involve conduct similar to that charged in the petition for discipline, in the present case, but respondent was specifically warned at his private reprimand on March 9, 1984, that he would be given “one last chance” before public discipline would be imposed. Nevertheless, respondent received yet another informal admonition on December 13, 1984, again for his failure to return a client’s property. Moreover, the suit filed by the [As] against respondent is the second malpractice suit filed against him for his failure to file suit before the expiration of the statute of limitations.

In the instant case, the record clearly demonstrates that respondent violated Disciplinary Rule 1-102(A)(4). Not only did respondent fail to file suit on behalf of the [As], but he also represented to the [As] that the case would be “coining up” in court in the fall of 1985. Obviously, the case could not have been “coming up” at that time since respondent had never filed suit. This was a patent misrepresentation to deceive the [As] about the status of their claim.

The fact that respondent did nothing with the [A] claim from the time he received the file in 1982 until the hearing in 1988 is sufficient to support a finding that he violated Disciplinary Rule 6-101(A)(3), since he neglected the [A] personal-injury claim and allowed the statute of limitations to expire.

With respect to respondent’s violation of Disciplinary Rule 7-101(A)(2), the board is satisfied by a preponderance of the evidence that respondent intentionally entered into a contract with the [As] for his professional services. Respondent testified at his disciplinary hearing that he was retained only to assist Attorney [B] and that he thought the case was “still [B’s].” The board concurs in the hearing committee’s finding that respondent’s contention is meritless. First, both the testimony of Attorney [B] and his correspondence of March 21, 1983 totally negate the possibility of such a misunderstanding. Second, if the case was indeed [B’s] case with respondent only as an assistant, it is difficult to understand why respondent would make promises to both the [As] and Attorney [C] to relinquish the file to Attorney [B]. Additionally, respondent never informed the [As] of his limited participation or the alleged division of responsibility between himself and [B], nor did he mention the same to Attorney [C].

Finally, there is no documentary evidence of record either in the form of correspondence to Attorney [B] or the [As] or file notes to support respondent’s contention.

It should be noted that Assistant Disciplinary Counsel asked the committee to consider respondent’s conduct in failing to return the [A] file to them or to Attorney [C] as violation of Disciplinary Rule 9-102(b)(4) which requires a lawyer to promptly turn over upon request property in possession of the lawyer which the client is entitled to receive. However, while the facts of this case strongly support such a charge, the petition for discipline does, not specifically charge respondent with a violation of that rule. Because it was not formally charged in the petition, the board may not consider the charge. Matter of Rosenbaum, 478 Pa. 93, 385 A.2d 1329 (1978); In re Krehel, 419 Pa. 86, 213 A.2d 375 (1965); Maginnis’s Case, 269 Pa. 186, 112 Atl. 555 (1921).

CONCLUSIONS OF LAW

(1) Respondent has violated Disciplinary Rule 1-102(A)(4) by misrepresenting to his clients the status of their personal-injury claim by indicating the claim would be “coming up” in court when in fact the case had not been filed.

(2) Respondent has violated Disciplinary Rule 6-101(A)(3) by neglecting the personal-injury claim of his client(s) and permitting the statute of limitations to expire upon the claim.

(3) Respondent has violated Disciplinary Rule 7-101(A)(2) by intentionally failing to carry out his contract of employment to provide professional services to his clients in their claim for damages arising out of personal injury by neglecting to pursue the claim and by failing to file the case. In re Anonymous no. 81 D.B. 82,. 28 D.&C. 3d 729 (1984).

RECOMMENDATION

In light of the foregoing, the Disciplinary Board recommends that respondent, [ ], be suspended from the practice of law for not less than six months. Further, the Disciplinary Board recommends that [respondent] be directed to pay all the necessary expenses and costs incurred in these proceedings pursuant to rule 208(g), Pa.R.D.E.

Messrs. Keller, Gilbert and Douglas, having previously participated in this matter as members of a special board panel, did not participate in the adjudication.

ORDER

And now, October 11, 1989, upon consideration of the report and recommendations of the Disciplinary Board dated May 9, 1989, it is hereby ordered that [respondent] be and he is suspended from the bar of this commonwealth for a period of two years, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.

Mr. Justice Papadakos dissents and would issue a rule to show cause.


author: WETTICK, A.J.,

text:
    Mazzotta v. Aetna Casualty and Surety Company

      David R. Cohen, for plaintiff.

      Aurum Levicoff, for, defendant.
    September 29, 1989
   WETTICK, A.J.,

This, lawsuit arises out of a $1,500 contract between plaintiff, a painting company, and the owners of a residence. Under the terms of the contract, plaintiff was to paint a portion of the interior of the residence. His responsibilities consisted of purchasing the paint, preparing the surface for painting, and applying the paint.

Sometime after the painting job was completed, portions of the paint began to chip and peel. The apparent cause was that plaintiff had applied latex paint over oil-based paint without proper preparation of the surface to be painted.

The homeowners instituted litigation against plaintiff in which they sought damages of $6,824. The damages consisted entirely of the estimated costs for removing the paint that plaintiff had applied, preparing the surface for painting, and applying the new paint. The homeowners did not claim that there would be any diminution in the value of their residence once this work was performed.

Plaintiff tendered the homeowners’ claim to Aetna Casualty and Surety Company, which provided business liability insurance to plaintiff under a standard comprehensive general liability policy. Aetna refused to provide coverage or a defense on the ground that several exclusions in the insurance policy excluded the homeowners’ claim. As a result of the denial of coverage, plaintiff retained his own counsel to defend the action which was eventually settled for $2,800. In the present action, plaintiff has sued Aetna for the amount of this settlement and legal fees and costs of $3,618.14 incurred in defending the action.

Both parties have moved for summary judgment. These motions are the subject of this opinion and order of court.

The insurance policy contains two standard exclusions which Aetna cites in support of its position that the homeowners’ claim was not covered under Aetna’s policy of insurance with plaintiff. The policy provides that the business-risk coverage provided by the policy does not apply:

“(n) To property damage to the named insured’s products arising out of such products or any part of such products.
“(o) To property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof or out of materials, parts or equipment furnished in connection therewith.”

Plaintiff contends that these exclusions are not applicable. These exclusions apply only to property damage from plaintiffs products or to work performed by plaintiff. According to plaintiff, the paint is the product which it furnished and its application is the work which it performed. The major portion of the homeowners’ damage claim did not involve the cost of new paint or the cost of applying the new paint — it involved the cost of repairing the damage to the residence caused by the application of the paint.

Plaintiffs argument would have merit if his work had caused damage to the residence beyond the scope of his work. However, in this case there was no damage to the residence other than to the work that plaintiff performed. The work that plaintiff performed consisted of furnishing the paint, preparing the surface for painting, and applying the paint. The homeowners’ claim against plaintiff was limited to the estimated cost of performing only these tasks. Thus, this was a claim for property damage to plaintiff’s work arising out of the work which plaintiff had performed and the products which plaintiff furnished.

This construction of exclusions (n) and (o) is consistent with the manner in which the Pennsylvania Supreme Court construed almost identical exclusions in Gene & Harvey Builders v. Pennsylvania Manufacturers’ Assoc., 512 Pa. 420, 517 A.2d 910 (1986). That case involved the duty of an insurance company to defend and indemnify its insured, a building contractor, against a lawsuit filed by a homeowner who claimed that his home, constructed by the insured contractor, had become uninhabitable because it was negligently built on land which had subsided. The court held that the claim was excluded from coverage under both the exclusion covering damage to the contractor’s product arising out of any part of the product and the exclusion covering damage to work performed by the contractor arising out of any portion of the work. The former exclusion was applicable because:

“[A]ll the claims concern damage to the insured’s product (the house) arising from a part of the product, i.e., a builder’s duty to be reasonably prudent in the placement of a house. One does not contract for the budding of a house in the sky; of necessity, houses must rest on the earth. Assumed is that part of the contractor’s work product wdl be to act prudently in placing the, house on the lot. Reasonable inspection of the lot and representing the condition of the lot to the owner are, in short, part of the work of budding a house, which is the ‘product’ of a contractor.” Gene & Harvey Builders, supra.

The latter exclusion was appdcable because:

“[A]d the negdgence assertions in the complaint concern damage to the work (the budding of the house, i.e., a budding fit for habitation) arising out of any portion of the work — using reasonable care to inspect the ground to see that it is normally sound, filling in holes which were present in the ground, and representing to the homeowner-buyers that the land had or did not have certain characteristics. ” Id.

The same rationale is appdcable to the present case. Part of plaintiff’s product was the preparation of the surface. Also, ad of the assertions in the homeowners’ complaint concerned damage to the work — the fadure of the paint to adhere properly to the surface. Furthermore, the only damage was to the product which, according to this Supreme Court opinion, would include the preparation of the surface and the appdcation of the paint.

We also find to be persuasive the opinion of the Court of Appeals for the Tenth Circuit in Hartford Accident & Indemnity Co. v. Pacific Mutual Life Insurance Co., 861 F.2d 250 (10th Cir. 1988). In that case, a subcontractor instaded a reflective glass wad system which it had furnished to the exterior of a budding. This wad system was defective — the window units cracked and broke and the coating surfaces deteriorated. As a result of these defects, the budding suffered physical damage, including cracks and breaks in the concrete floor slabs because of water leakage. The owner undertook a major restoration to correct the problems, including removal of somé of the parts of the original system and installation of a replacement wall system outside the defective one. The owner sued the subcontractor. The Tenth Circuit opinion involved the issue of whether the insurance carrier that issued a comprehensive general liability policy to the subcontractor was liable for any of the damages which the owner claimed.

The court held that exclusions almost identical to those in Aetna’s policy with plaintiff limited recovery to the diminution in the value of the building in excess of the cost of replacing the wall system. The policy did not cover additional damages because the exclusions covered both the cost of the products that replaced the defective products and the cost of the labor required to replace the defective products. “These costs are clearly encompassed by the exclusions applicable to the insured’s products and to materials furnished in connection with work performed by the insured.” 861 F.2d at 254.

Plaintiff contends that the fact situation in the present case is almost identical to the fact situation in Pittsburgh Plate Glass Co. v. Fidelity and Casualty Co. of New York, 281 F.2d 538 (3d Cir. 1960), where the court, applying Pennsylvania law, found that the standard exclusions did not apply to a claim against Pittsburgh Plate Glass Company for damages resulting from peeling and flaking paint. In that case, Pittsburgh Plate Glass Company sold its paint to the manufacturer of blinds which applied the paint to its blinds as part of its manufacturing process. As a result of customer complaints concerning peeling paint, the manufacturer was compelled to repair the blinds by stripping the paint, cleaning and preparing the surface for repainting, and applying new paint. The Pittsburgh Plate Glass opinion and the other opinions which have relied upon this opinion (see, e.g., Bowman Steel Corp. v. Lumbermens Mutual Casualty Co., 364 F.2d 246 (3d Cir. 1966), and Imperial Casualty and Indemnity Co. v. High Concrete Structures, 858 F.2d 128 (3d Cir. 1988), are readily distinguishable because the insured was responsible only for providing the defective material — the insured had no responsibility for applying the material. Thus, the claim involved damages to work performed by others.

This distinction formed the basis for the decision in Hartford Accident & Indemnity Co. v. Pacific Mutual Life Insurance, supra, which limited the insurance policy’s coverage to the diminution in the value of the budding in excess of the cost of replacing the products and/or work of the insured:

“Coverage under a CGLP [comprehensive general liability policy] is not intended to extend to ordinary ‘business risks,’ such as those relating ‘to the repair or replacement of faulty work or products.’ The policy is not intended to serve as a performance bond or a guarantee of goods or services. Its purpose, is to protect the insured from liability for damages to property other than his own work or property that is caused by the insured’s defective work or product.” 861 F.2d at 253. (citations omitted; emphasis in original)

For these reasons, we enter the following

ORDER OF COURT

On this day, September 29, 1989, upon consideration of both parties’ motions for summary judgment, it is hereby ordered that plaintiffs complaint is dismissed and a judgment is entered in favor of defendant.


author: BUCKINGHAM, J.,

text:
    Becker v. Barninger

      James T. Yingst, for plaintiff's.

      Douglas H. Gent, for exceptant.
    November 2, 1989
   BUCKINGHAM, J.,

This matter is before the court on exceptions of Leroy W. Snyder Sr., exceptant, to the report of the auditor, Edward H. H. Garber, Esq., filed on December 12, 1988.

The relevant pleaded facts are as follows. Defendants, N. Thomas and Janis Barninger, purchased property from plaintiffs, Reuben and Shirley Becker. Defendants executed and delivered a deed and a first mortgage in favor of plaintiffs on August 14, 1984. Because defendants had neither settlement nor down payment costs, the documents were held in escrow. On November 16, 1984, defendants sent a majority of the money necessary to complete settlement to the escrow agent. Although not all of the settlement money was received, the deed and mortgage were then recorded on November 29, 1984.

Leroy W. Snyder Sr. lent defendants $9,588 and filed a judgment note against defendants, N. Thomas and Janis W. Barninger, on November 23, 1984. Mr. Snyder was aware that defendants had purchased the property, but was unaware that defendants had granted plaintiffs a first mortgage on the property.

Subsequently, defendants defaulted on their mortT gage obligations. Plaintiffs obtained a default judgment and filed a writ of execution. At the sheriffs sale, plaintiffs purchased the property. The sheriffs proposed schedule of distribution specified that money be paid to Leroy Snyder on the judgment note. Plaintiffs filed exceptions to this schedule and filed a petition to appoint an auditor. The court appointed Edward H. H. Garber, Esq., who recommended that Leroy Snyder’s judgment note be subordinated to the plaintiffs mortgage. Mr. Snyder then filed exceptions to the auditor’s report.

The issue before the court is whether to uphold the auditor’s report. In general, a court will give much weight to the auditor’s findings and will not set aside such findings without substantial reasons. 7 Standard Pennsylvania Practice 2d §45:21. The court will set aside the auditor’s findings only where there is clear error in fact or law.

Having reviewed the file and the auditor’s report, we agree with the auditor’s conclusions. However, we based our decision on different reasons. We will accept the auditor’s recommendations to subordinate Mr. Snyder’s judgment note to plaintiffs’ mortgage.

The auditor states that law and equity determine distributions in this foreclosure sale. The auditor further states that equitable principles govern since plaintiffs did not record the mortgage as prescribed in the Lien Priority Statute, 42 Pa.C.S. §8141, so as to give them priority. We disagree. We need not apply the priority statute because we conclude that Mr. Snyder’s judgment note never attached to defendant’s real property interest.

Leroy Snyder entered his judgment note against defendants on November 23, 1984. At this time, the deed and mortgage were unrecorded. Thus, defendants had not yet acquired legal title to the property. We also conclude that no title had passed on November 23, 1984 since the facts indicate thát defendants did not fulfill the conditions of the escrow arrangement. The escrow arrangement specified that the documents were to be held until defendants paid the settlement costs.

Escrow arrangements usually provide that the depositor has legal title to the instrument until the conditions are satisfied and delivery may be made. Paul v. Kennedy, 376 Pa. 312, 102 A.2d 158 (1954). The instrument deposited in an escrow does not become operative until full performance of the conditions on which it is deposited or unless performance is waived. After the performance of these conditions, the grantee obtains title and is entitled to delivery. 30A C.J.S. Escrow §10, p. 996-7; P.L.E. Escrow §4, p. 581. Although defendants paid $9,000 to the escrow agent on November 16, 1984, this did not satisfy the entire settlement costs. The escrow arrangement was not terminated on November 16, 1984 and thus there was no delivery of the deed or mortgage. Testimony taken by the auditor does not reveal that plaintiffs and defendants agreed to settle based on defendants’ $9,000 payment. Instead, the only indication that settlement occurred was the recording of the mortgage and deed on November 29, 1984. Thus, we conclude that all title and interest in the land passed on November 29, 1984.

A judgment creditor has a lien on the real property that a judgment debtor possesses or has an interest in at the time the judgment is entered. 11 Standard Pennsylvania Practice 2d 70:7, p. 265-6. However, the judgment does not automatically attach to after-acquired property of the judgment debtor. We believe that defendants acquired title on November 29, 1984, six days after the entry of the judgment note. To perfect a lien in this property, Mr. Snyder would have had to obtain a levy of execution which he failed to do. Thus, Mr. Snyder’s judgment note did not attach to defendants’ property. Plaintiffs, however, have a valid first mortgage on the property and are entitled to the distribution of the proceeds.

ORDER

And now, November 2, 1989, it is ordered and directed that plaintiffs Reuben and Shirley Becker are entitled to the distribution of proceeds from the sheriffs sale of real property. Because the judgment note of exceptant, Leroy Snyder, did not attach to the property, he is not entitled to any of the proceeds.


author: SOKOLOVE, J.,

text:
    Petrocelli Construction v. Epstein

      Emil F. Toften, for plaintiff.

      Thomas Hecker, for defendants.
    November 3, 1989
   SOKOLOVE, J.,

Several petitions are before us for decision pursuant to Bucks County Rule of Civil Procedure 266. We will incorporate an explanation of the petitions into the following statement of the factual and procedural history of the case.

The relevant facts are not in dispute. As dictated by a construction contract between the parties, plaintiff Petrocelli Construction submitted a demand for arbitration to the American. Arbitration Association against defendants Ellen Epstein, Gene Epstein and Marlene Epstein, individually as tenants by the entirety and/or t/a Gene Epstein Enterprises. The parties agree that the contract called for common-law arbitration. On April 28, 1989, the arbitrators issued an award for plaintiff in the amount of $98,610.03 plus interest of one percent per month from January 1, 1988 until payment. Plaintiff filed a praecipe on May 17, 1989 directing the prothonotary to enter judgment on that date. The procedural morass in which wé find ourselves began there.

On June 7, 1989, defendants filed a petition to strike off or open the judgment entered by the prothonotary on May 17. Defendant’s sole supporting allegation for this petition was that the prothonotary had no jurisdiction to enter the judgment because the 30-day statutory appeal period from the arbitrators’ award had not lapsed before the entry of the judgment. Although the petition asserted a violation of 42 Pa.C.S. §1722 by the premature judgment, it did not specifically cite 42 Pa.C.S. §7342 governing the procedure for confirmation and judgment on a common-law arbitration award. Plaintiff timely answered the rule on the petition. On July 31, 1989, plaintiff filed a praecipe for writ of execution on the judgment. Defendants filed a motion to stay or set aside the execution, based on the alleged ineffectiveness of the judgment, on August 4, 1989. On August 7, 1989, plaintiff by praecipe asked the prothonotary, not the court, to dismiss defendants’ petition to strike or open the judgment for failure to comply with Bucks County Rule of Civil Procedure 266. Plaintiff then answered the motion to stay or set aside the execution on August 18, 1989. Also on that date plaintiff filed a petition to confirm the arbitrators’ award either absolutely or nunc pro tunc as of May 30, 1989, the 31st day following the arbitrators’ award. Defendants responded with an answer and new matter to the petition to confirm, to which plaintiff later replied. The sheriff levied on the writ of execution, and a sheriffs sale was scheduled. That sale has been continued by agreement pending our decision on the various petitions and motions. On September 20, 1989, defendants filed a supplemental petition to open or strike the judgment, citing 42 Pa.C.S. §7342. Defendants filed an amended petition to stay or set aside the execution on September 21, 1989. Plaintiff has answered both of these petitions. After a conference with counsel, all matters are before us pursuant to Bucks County Rule of Civil Procedure 266.

Despite the rather complicated procedural posture, the issues to be decided are straightforward. They are: (1) Was the entry of the original judgment proper on the face of the record so as to withstand defendants’ petitions to strike and be confirmed as of the date of its original entry? (2) If the judgment cannot be confirmed as of the date of its original entry, do we have the authority to enter judgment on the arbitrators’ award nunc pro tunc before plaintiff petitioned for confirmation of the award?

We will strike the judgment entered by the prothonotary on May 17, 1989 as requested by defendants’ petition and supplemental petition to open or strike. Preliminarily, plaintiff seems to argue that we may not consider the merits of these petitions since the first petition was dismissed for failure to comply with local rule 266 and the second, amended motion was invalidly filed, contrary to Pa.R.C.P. 1033, without counsel’s stipulation or court order. We are not persuaded. The first petition was not dismissed. Bucks County Rule of Civil Procedure 266(e) states that if the moving party does not comply with rule 266(b), then the other party may by praecipe request the court to dismiss the application of the moving party. Plaintiff requested the prothontary, not the court, to dismiss the petition, and it was, therefore, never dismissed and remains viable. Secondly, we are hot disturbed by any technical violation of Pa.R.C.P. 1033 in the filing of the amended petition. A petition to strike may only be granted for defects appearing on the face of the record which render the judgment void. Jones v. Seymour, 321 Pa. Super. 32, 467 A.2d 878 (1983). A void judgment may be stricken at any time, regardless of how the defect is brought to the court’s attention. See Romberger v. Romberger, 290 Pa. 454, 139 Atl. 159 (1927); Loprete v. Langcliffe Collieries Inc., 67 D.&C. 438 (1949); Stickel v. Barron, 7 Fayette Leg. J. 35 (1944). In fact, it is the duty of the court on its own motion to strike off a void judgment. Romberger v. Romberger, supra. For the same reason, it is of no moment that the particularly accurate and applicable statute, 42 Pa.C.S. _ §73.42, was not mentioned until the amended petition to strike.

We have no doubt thát the judgment entered by the prothonotary on May 17, 1989 was void. The unauthorized entry of judgment by the prothonotary renders the judgment void. Ruehl v. Maxwell Steel Co. Inc., 327 Pa. Super. 39, 474 A.2d 1162 (1984). 42 Pa.C.S. §7342(b) provides in pertinent part:

“(b) Confirmation and judgment — On application of a party made more than 30 days after an award is made by an arbitrator under section 7341 (relating to common-law arbitration) the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order.”

The statute is very clear. A judgment on a common-law arbitration award may only be entered by the court upon application of a party more than 30 days after the award. Thus, the judgment here wás doubly flawed. It was entered by the prothonotary, not the court, and plaintiffs application was too early. See Gedrich v. Yaroscz; 102 Pa. Super. 127, 157 Atl. 575 (1931), where the court found judgment by a prothonotary void under a similar statutory scheme involving mechanic’s liens. Further, where the legislature has intended a prothonotary to have the authority to enter judgment on a party’s praecipe, it has been definite. See Pa.R.G.P. 227.4, which is plainly not satisfied in this case. Entry of judgment on an arbitration award is not a simple, ministerial act, as plaintiff seems to suggest. It is controlled by the mandatory requirements of 42 Pa.C.S. §7342, and plaintiffs actions did not meet those requirements.

Since we strike the judgment, we must also set aside the execution of it.' A writ of execution may not be issued on a judgment which has been reversed or vacated. Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981).

In hopes of maintaining its priority as a creditor, plaintiff alternatively seeks confirmation of the award nunc pro tunc as of May 30, 1989, when the requisite 30 days would have expired from the rendering of the award. Plaintiff asserts that an appeal will lie from common-law arbitration only for fraud, misconduct, corruption or other irregularity resulting in the rendition of an unjust, inequitable or unconscionable award. 42 Pa.C.S. §7341. Defendants agree that none of these grounds for appeal exist. Moreover, defendants did not appeal the award. We agree that under these circumstances and upon compliance with the section 7342 procedure, we have no discretion and must confirm the award. See Beriker v. Permagrain Products Inc., 347 Pa. Super. 102, 500 A.2d 178 (1985). The problem is that plaintiff did not invoke the section 7342 procedure until it filed its petition to confirm on August 18, 1989. Section 7342(b) requires the court to act upon application of a party. We cannot, as plaintiff proposes, construe its praecipe to the prothonotary as an appropriate application under section 7342(b). Aside from the fact that the praecipe was too early in any event, it could not prompt any court action because it was directed merely to the prothonotary.

A nunc pro tunc entry is an entry made now, as of then, to have the effect as if the event had occurred on the former date. Its office is to supply an omission in the record caused through possible inadvertence or mistake. In re Jurkowitz Estate, 359 Pa. 570, 59 A.2d 895. (1948). The case before us, however, differs from Jurkowitz Estate where the party’s action was proper even without court intervention. The nunc pro tunc entry there had no prejudicial effect. In this case, a nunc pro tunc entry of judgment would prejudice defendants. Plaintiff has given us no compelling authority for such an entry, and we have not found any. It would not be just or proper for us to enter judgment to the detriment of defendants as of a time when the plaintiff had not initiated the necessary statutory machinery. We cannot correct the plaintiffs error in this way.

Plaintiff also suggests that we may enter the nunc pro tunc judgment as a function of our power to mold verdicts or awards. We cannot. Pa.R.C.P. 1307(d) allows the court to mold a compulsory arbitration award as follows:

“(d) Where the record and award disclose an obvious and unambiguous error in the award in mathematics or language, the court, on application of a party within the 30-day period allowed for appeal, may mold the award to the same extent and with the same effect as the court may mold the verdict of a jury. ...”

The court may correct or mold jury verdicts in a clerical fashion or only in very exceptional cases where the facts and the appropriate verdict are not disputed and where justice requires it. Maize v. Atlantic Refining Co., 352 Pa. 51, 4 A.2d 850 (1945). The facts of this case do not match these standards.

Defendants agree to the confirmation of the award and the entry of judgment as of August 18, 1989, the date plaintiff filed its petition. Accordingly, we enter the following .

ORDER

And now, November 3, 1989, upon consideration of the various motions and petitions of the parties and upon review of the memoranda of law, it is hereby ordered and decreed that the judgment entered by the prothonotary on May 17, 1989 is stricken. The writ of execution on said judgment is set aside, and the sheriffs sale scheduled on the writ for November 6, 1989 is cancelled. The arbitrators’ award of April 28, 1989 is confirmed as of August 18, 1989. Judgment is entered as of August 18, 1989 in favor of plaintiff and against defendants in the amount of $98,610.03 plus interest of one percent per month from January 1, 1988 until actual payment by defendants plus plaintiffs court costs in filing the petition to confirm.


author: PRATT, J.,

text:
    Caldararo v. Jameson Memorial Hospital

      Darnell L. Kadunce, for plaintiff.

      Donald W. Bebenek, for defendant.

      November 6, 1989
   PRATT, J.,

Plaintiffs’ have presented preliminary objections in .the nature of a motion to strike defendants’ new matter by which defendants Jameson Memorial Hospital and Dr. Yumang have joined Annabelle Caldararo, one of the plaintiffs, as an additional defendant.

This action arose out of an automobile accident on March 15, 1987, in which plaintiff, Nicholas Caldararo, sustained physical injuries for which he was taken to Jameson Memorial Hospital for medical treatment. Plaintiff's filed this action alleging that the negligence of the hospital and several doctors caused him additional physical injury and damage to his vocal cords and larynx. Defendants Jameson Memorial Hospital and Dr. Yumang filed new matter joining plaintiff, Annabelle Caldararo, the wife of plaintiff Nicholas S. Caldararo and operator of the vehicle in this action, as an additional defendant. Plaintiffs timely filed preliminary objections in the nature of a motion to strike.

This court sustained plaintiffs’ preliminary objections on September 18, 1989 and ordered paragraphs 1, 2 and 3 of the new matter filed by defendants Jameson Memorial Hospital and Dr. Yumang stricken. This opinion is provided to comply with Pa.R.A.P. 1925(a), 42 Pa.C.S.

DISCUSSION

Plaintiffs, in their preliminary objections in the nature of a motion to strike and accompanying brief, contend that the alleged negligence of the defendants is based on a separate and distinct series of actions and occurrences in which the additional defendant, Annabelle Caldararo, was not involved. Therefore, they contend that the new matter fails to conform to law or rule of court, specifically Pa.R.C.P. 2252(a). Defendants Jameson Memorial Hospital and Dr. Yumang assert in their answer to preliminary objections and accompanying brief that the new matter is proper under the Pennsylvania Rules of Civil Procedure and that joinder is proper for apportionment purposes.

Thus, the sole issue raised by the parties and which must be decided is whether the additional defendant, Annabelle Caldararo, was properly joined as an additional defendant under Pa.R.C.P. 2252(a).

Pa.R.C.P. 2252(a) provides:

“(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable to the joining party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.” Pa.R.C.P. 2252(a); 42 Pa.C.S. (emphasis supplied)

Under Pa.R.C.P. 2252(a), the cause of action against the additional defendant must arise out of the same transaction or occurrence or series of transactions or occurrences. Upper Makefield Township v. Benjamin Franklin Fed. S & L Assoc., 271 Pa. Super. 399, 413 A.2d 726 (1979).

The phrase “cause of action declared upon by the plaintiff” is construed to require that the two causes of action be related in substance to the complaint pleaded by the plaintiff and arise out of the same factual background. Schladensky v. Ellis, 442 Pa. 471, 275 A.2d 663 (1971); American Metal Fabricators Co. v. Goldman, 227 Pa. Super. 284, 323 A.2d 891 (1974). When the original defendant attempts to bring in an additional defendant, the cause of action against the additional defendant must be the same cause of action brought by the plaintiff against the original defendant. Land Title Bank & Trust Co. v. Cheltenham National Bank et al., 362 Pa. 30, 66 A.2d 768 (1949); Nester v. Elicker, 57 D.&C. 2d 674 (1972). “Joinder is permitted only so long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against original defendant.” DiLauro v. One Bala Avenue Assoc., 357 Pa. Super. 209, 219, 515 A.2d 939, 945 (1986); see also, Samango v. Pileggi, 363 Pa. Super. 423, 526 A.2d 417 (1987).

Joinder must be supported by the liability theories enunciated in rule 2252(a), namely, “sole liability,” “joint liability” or “liability over.” Nester v. Elicker, supra.

It is well established in Pennsylvania that a tort-feasor who originally caused an injury and a physician who subsequently aggravates or causes a new injury are not joint tort-feasors. Buttermore v. Aliquippa Hospital, 368 Pa. Super. 49, 533 A.2d 481 (1987); Voyles v. Corwin, 295 Pa. Super. 126, 441 A. 2d 381 (1982); Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979). The Superior Court cases of Lasprogata and Voyles are strikingly similar to the case presently before us.

In Lasprogata, the plaintiff, who had been injured in an automobile accident, brought an action against the other driver alleging negligence. The case was resolved and concluded with the signing of a general release. The plaintiff subsequently brought an action against various medical providers as a result of alleged improper medical treatment of the injuries he sustained in the accident. One of the medical care providers joined the negligent driver, the defendant in the first cause of action, on the basis that the injuries to the plaintiff were proximately and solely caused by the driver’s negligence and, alternatively, that the negligent driver was jointly liable for contribution. The negligent driver, the additional defendant in the second action, moved for summary judgment based on the release he executed with the plaintiff in the first case. Summary judgment was granted by the lower court and affirmed by the Superior Court. Lasprogata v. Qualls, supra.

The court in Lasprogata specifically held that the original tort-feasor, the negligent driver and defendant in the first action, and the medical provider were not joint tort-feasors. The court found that “[t]he acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff.” Lasprogata v. Qualls, supra, at 179, 397 A.2d at 805.

In dealing with the signed general release by the plaintiff in favor of the negligent driver, the court in Lasprogata ruled that the crucial issue was whether the release was intended as a release of all parties and in full compensation of the plaintiff’s entire claim. Lasprogata v. Qualls, supra. Since the release expressly named only the defendant, the negligent driver, and the consideration for the release covered only those damages suffered by the plaintiff as a result of the negligent driver’s negligence, the court found that only the negligent driver was released. Lasprogata, supra. The court went on to state that “ . . . the facts of this case support the principle which holds that plaintiffs damages resulting from the doctor’s negligence remain apportionable. In the suit against the doctor, [the plaintiff] will be restricted to the proof of damages directly resulting from the physician’s actions, thus preventing double recovery.” Lasprogata at 182, 397 A.2d at 807.

In Voyles, plaintiff was injured in a motorcycle accident and settled his claim against the driver of the automobile which struck him, by way of a signed release. Plaintiff then brought two separate actions against two doctors for alleged negligent medical treatment which resulted in amputation of his left leg. In both actions, the doctors joined the automobile driver as an additional defendant, who moved for summary judgment. The trial court granted the motion and the Superior Court affirmed. Voyles v. Corwin, supra.

The appellate court in Voyles relied heavily on the holding in Lasprogata v. Qualls for support of its ruling. The court further stated:

“When one considers these factors here, it becomes apparent that Walker [the driver] is not a joint tort-feasor with the several physicians. Walker’s duty to Voyles was not the same as the physician’s duty. The same evidence cannot support an action against both Walker and the physicians. In proving the physicians’ liability, Voyles will have to prove that they failed to exercise due care in treating him. This proof can have nothing to do with whether Walker was driving properly. Similarly, in proving damages, Voyles will have to prove that his condition is worse than it would have been had the physicians exercised due care in treating him. It may be, as the physicians suggest, that the loss of Voyles’s leg was an unavoidable consequence of the harm Walker did him no matter what the physicians did or should have done. Should a jury so find, the physicians would not be liable to Voyles. It may also be that proper medical care would have resulted in Voyles’ ultimate injuries not being so severe. Should a jury so find, the physicians would be liable to Voyles for that portion — but only that portion — of Voyles’ injuries attributable to their negligence.” Voyles at 131, 441 A. 2d at 383.

In the case before us, the alleged acts of negligence of additional defendant Annabelle Caldararo and defendants Jameson Memorial Hospital and Dr. Yumang were separate, distinct and identifiable occurrences. Defendants and Annabelle Caldararo owed different duties to plaintiff Nicholas S. Caldararo, and the proof required to prove their negligence is distinguishable. Plaintiffs’ complaint asserts that negligent conduct by the hospital and physicians resulted in aggravated and new injuries. Plaintiff Nicholas S. Caldararo settled his claims against plaintiff Annabelle Caldararo as the driver of the vehicle in which plaintiff Nicholas S. Caldararo was a passenger. He signed a release releasing only Annabelle Caldararo from all liability for any negligence on her part in driving the automobile.

Under these circumstances, and in accordance with Lasprogata and Voyles, we find the joinder of plaintiff Annabelle Caldararo as an additional defendant in this case improper under Pa.R.C.P. 2252(a). We reach this conclusion because any cause of action against Annabelle Caldararo does not arise out of a series of transactions or occurrences upon which the plaintiffs’ cause of action is based and because the release shields her from any type of liability in this case.

The case relied on by defendants, Embrey v. Borough of West Mifflin, 257 Pa. Super. 168, 390 A.2d 765 (1978), is of no moment here. Our review of this case leads us to the conclusion that Embrey merely stands for the proposition that, where both the original driver and hospital are sued for injuries resulting from an accident and subsequent treatment, the jury, if its so finds, may apportion the damages among defendants, rather than simply finding all defendants jointly liable for all damages. Embrey v. Borough of West Mifflin, supra.

For the foregoing reasons, we find that the joinder of Annabelle Caldararo as an additional defendant failed to comply with Pa.R.C.P. 2252(a) and, thus, Annabelle Caldararo is not a proper party as an additional defendant in this case. Therefore, we will sustain plaintiffs’ preliminary objections to defendants’ new matter and order paragraphs 1, 2 and 3 of defendants Jameson Memorial Hospital’s and Dr. Yumang’s new matter stricken.

ORDER OF COURT

Now, November 6, 1989, in accordance with Pa.R.A.P. 1925(a), 42 Pa.C.S., the prothonotary is directed to file of record the attached opinion.


author: CHRONISTER, J.,

text:
    Smith v. Auto Club of Southern Pennsylvania

      C. N. Patterson Jr., for plaintiff.

      John R. Sparks Jr., for defendant.
    October 17, 1989
   CHRONISTER, J.,

This matter is before the court on plaintiffs motion to quash subpoena of defendant. Plaintiff, Paula Smith, was employed by defendant, Auto Club of Southern Pennsylvania (AAA), for 10 years. After Smith left her job, an employee of AAA initiated a criminal investigation of Smith by reporting a theft from AAA. Smith was arrested, but the result of the trial was an acquittal. Thereafter, Smith sued AAA and two of its employees for malicious prosecution, defamation, conspiracy and intentional infliction of emotional distress. Pursuant to discovery, AAA’s counsel notified counsel for Smith of his intent to subpoena from the police department “all notes, records, photographs, statements, names and addresses of anyone spoken to or involved in the case and any other documents pertaining to the investigation file of Paula A. Smith ...”

In support of her motion to quash this subpoena, Smith argues that the police report is irrelevant, prejudiced and unavailable under the Criminal History Record Information Act (18 Pa.C.S. §9101 et. seq.) Smith contends that the subpoena is designed to harrass and unjustly deter her. She claims that the police report will confuse the jury by diverting its attention from the true issues in the case. Smith also argues that there is nothing that AAA can obtain from the police records that cannot be adduced from the trial transcript or from consultation with their own current or former, employees. Lastly, Smith contends that the subpoena may be so over-broad as to be objectionable solely on that basis.

AAA responds that police records are clearly relevant in regard to an alleged malicious prosecution. One of the issues at trial will be, what did AAA’s employees tell the police? AAA also contends that this information should be available through discovery even if it may not be admissible, since it may lead to the discovery of admissible evidence.

Rule 4003.1 of the Pennsylvania Rules of Civil Procedure states the following:

“[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Pa.R.C.P. 4003.1.

The discovery rules are to be liberally construed. Einhorn v. Philadelphia Electric Company, 410 Pa. 630, 635, 190 A.2d 569, 572 (1963). AAA’s discovery request is relevant and not privileged. The request for the police report appears reasonably calculated to lead to the discovery of admissible evidence. If anything obtained is prejudicial or misleading, appropriate objections can be made at the time of trial.

The fact that much of this information can be obtained through the trial transcript or from defendants themselves is not a valid objection. Defendants are allowed to show in their defense exactly what they told the police, as verified by the police records.

Defendant finally contends that the Criminal History Record Act does not apply to this matter. They argue by bringing this lawsuit, plaintiff waives any privilege she may have to object pursuant to that act.

The purpose of the act is to prevent disclosure to the public of privileged information which may harm plaintiffs reputation. In this case the records sought will be given to the very persons who generated the records in the first place. Thus disclosure will not result in additional persons becoming aware of the information. Instead, those who supplied the information will merely be able to document what they allegedly told the police. If the subsequent use at trial causes added disclosure to the public, plaintiff has waived any objection by bringing the lawsuit, thereby causing the matter to come into the public forum.

Plaintiffs objection that the subpoena is over-broad may be correct in theory, though probably not in actuality. The subpoena should not cause the entire investigative file to be released, only these portions generated from AAA employees. However, that would appear to be the entire file. However, the subpoena should be limited accordingly.

ORDER

And now, October 17, 1989, plaintiffs motion to quash subpoena is refused, although the subpoena is limited as set forth in this opinion.


author: BLAHOVEC, J.,

text:
    Anthony v. Anthony

      Marceline A. Lavelle, for plaintiff.

      Anthony W. DeBernardo Jr., for defendant.
    October 3, 1989
   BLAHOVEC, J.,

This matter comes before this court sitting as the court en banc on preliminary objections filed on behalf of defendant, Joseph G. Anthony, to a petition for emergency relief under 42 Pa.C.S. §5341 et. seq. on behalf of the plaintiff, Terry N'. Anthony. No testimony was presented by either party, so the court will base its determination on the pleadings as presented, as well as the arguments and briefs of counsel.

The petition was filed with this court on June 19, 1989 and was filed with a custody complaint. Service was made upon defendant on June 23, 1989 at Huntersville Prison in North Carolina, where he is incarcerated. Preliminary objections were filed on July 14, 1989.

Plaintiff currently resides at 1418 Pine Street, South Greensburg, Westmoreland County, Pennsylvania. Defendant’s record address is Route 1, Box 218 Stanly, North Carolina. Since February 1988, he has been incarcerated in North Carolina.

The parties were married on June 22, 1985 in Denver, North Carolina. They are the parents of one minor child, Tony J. Anthony, bom June 19, 1986. The child lived in North Carolina all of his life until June 2, 1989 when he moved with his mother to South Greensburg.

Defendant was convicted in 1986 of “indecent liberties” with plaintiffs 13-year-old daughter from a prior marriage. He was sentenced to five years’ incarceration. In July 1988 defendant was permitted family visits of six-hour and 48-hour durations. In May 1989, plaintiff began suspecting that defendant was sexually molesting the parties’ minor son during these family visits.

An investigation was conducted by the Lincoln County, North Carolina Department of Social Services, and a report from that agency was forwarded to this court. The social worker in North Carolina substantiated the abuse case. The worker wrote “Mr. Anthony is a very dangerous man . . : and he’s going to continue- to molest children until it stops ...” Mrs. Anthony returned to Pennsylvania to be. with her family.

Both parties lived in Westmoreland County, Pa. for years prior to their move to North Carolina. The mother is now employed as a nurse at a local hospital and the child is presently under the care of a Westmoreland County pediatrician and psychologist.

The preliminary objections seek to have plaintiffs action dismissed for two reasons: (1) Pennsylvania is not the home state of the child pursuant to 42 Pa.C.S. §5344(l)(i); (2) It is not in the best interest of the child for this court to assume jurisdiction because the factors listed in section 5344(2) have not been met in that the father is in jail and incapable of abusing the child.

Clearly North Carolina is the home state of the child involved in this proceeding. Plaintiff and the child have only resided in Pennsylvania for about three months, and only a few weeks at the time of the filing of the complaint. The issue is to be examined as of the time the custody petition is filed and not at the time of subsequent hearings. Scheafnocker v. Scheafnocker, 356 Pa. Super. 118, 514 A. 2d 172 (1986). The “home state” is that state in which the child has lived with a parent for at least six consecutive months immediately prior to the time involved. 42 Pa.C.S. §5344(a)(l)(i). Home state jurisdiction is considered the pre-eminent source of jurisdiction but may be outweighed where the connections between the home, state and the child are less substantial than those of another jurisdiction which is not the home state.

The issue in the present case is whether a plaintiff may litigate her custody claim in Pennsylvania where she has only lived for a matter of days prior to the filing of the complaint rather than in North Carolina where the child has lived all his life.

The easy, apparently legally sound answer to that question is in the negative. This court has no reason to believe that the learned members of the North Carolina judiciary would be unable to protect the rights of all parties concerned. However, the peculiar facts of this case require closer scrutiny.

The court may assume jurisdiction if it is in the best interest of the child, the child and at least one contestant have a significant connection with the commonwealth, and there is available in the commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child. 42 Pa.C.S. §5344 (a)(2)(i) and (ii).

In this case, at the time of filing , the action, this child had no significant connection with the commonwealth other than the fact his mother’s family resides here. The fact that he now has a Pennsylvania psychologist and pediatrician indicates there will at some time in the future be evidence concerning the child’s care, protection and training. No such evidence existed at the time of filing the action other than the testimony of plaintiff.

The statute provides that a Pennsylvania court may assume emergency jurisdiction where the child is physically present in the commonwealth and the child must be protected because he has been subjected or threatened with abuse, mistreatment or is otherwise neglected or dependent. 42Pa.C.S. §5344.

The only justification for this court to assume jurisdiction under this provision are justice and propriety and physical or emotional harm to the child. Warman v. Warman, 294 Pa. Super. 276, 439 A.2d 1203 (1982).

Much argument was presented by counsel for plaintiff based on facts not in evidence. The court will not consider those purported facts. However, certain facts are clear.

(1) Defendant is incarcerated in North Carolina and in no position to assume custody of a three-year-old child.

(2) Defendant was convicted of indecent liberties with a 13-year-old stepdaughter.

(3) Defendant is a substantiated perpetrator of abuse regarding the subject child of this proceeding which abuse may have occurred while he was on “family visits” from jail.

(4) The investigating social service agency in North Carolina at least tacitly approved plaintiff’s relocation to Pennsylvania.

(5) Plaintiff, as set forth in the records from Lincoln County, North Carolina, experienced a great deal of denial that her husband would molest two of her children and only believed it after support from her social worker. Plaintiff’s move to Pennsylvania does not smack of forum shopping but ráther finally attempting to get her life in order.

To require plaintiff, who has seen her husband convicted of molesting her daughter and has seen him listed as a substantiated perpetrator of abuse to her son, to go to North Carolina to litigate custody seems to this court to be neither just nor proper. This court believes that, considering all the facts in existence at the time of filing, jurisdiction must be assumed to protect Tony J. Anthony from abuse. His mother took a first, positive step toward doing so by returning to Pennsylvania where her support network remains. Further steps may be taken in the Court of Common Pleas of Westmoreland County.

ORDER OF COURT

And now, October 3, 1989, it is hereby ordered that defendant’s preliminary objections are dismissed.


text:
    Josey v. PennDOT

      Louis B. Loughren, for plaintiff.

      Frank J. Micale, for defendant PennDOT.

      H.N. Rosenberg, for defendant Michael Murgenovich.

      Keithley D. Mulvihill, for proposed additional defendant.
    October 13, 1989
   WETTICK, A.J.,

Johnny Will Josey was killed in an accident while driving his wife’s automobile. His wife, individually and as administratrix of the estate, seeks damages under the Pennsylvania Wrongful Death and Survival Acts (42 Pa.C.S. §§8301, 8302) against the driver of the other vehicle and the Department of Transportation of the Commonwealth of Pennsylvania. The other driver filed a counterclaim against the wife alleging that her negligent entrustment of the vehicle to her husband was a cause of the injuries that this other driver sustained.

Subsequently, PennDOT filed a motion to join additional defendant in which it requests that it be permitted to join the wife as an additional defendant on the ground that she was negligent in entrusting her vehicle to her husband who had a lengthy history of driving violations. This motion is the subject of this opinion and order of court.

We will not permit the joinder because the wife can be neither solely nor jointly liable. Even if she were negligent in entrusting her automobile to her husband, she cannot be jointly or solely liable unless her negligence was a proximate cause of the accident. At the most, the wife’s negligence was a proximate cause of the accident only to the extent that her husband’s negligent operation of the vehicle contributed to the accident. The wife’s negligence in permitting the husband to operate the vehicle in no way contributed to the negligence of PennDOT or the other driver. Thus, defendant should not be permitted to join the wife as an additional defendant unless the negligence for which she may be responsible — the husband’s negligent operation of the vehicle — does not already operate to reduce or defeat plaintiffs claim.

Under the Pennsylvania comparative negligence law (42 Pa.C.S. §7102), the negligence of the decedent operates to reduce or defeat the claims of the estate to the same extent as if the deceased were the plaintiff. Consequently, the wife cannot be solely liable to the estate because the estate is barred from recovery if the deceased’s negligence was the primary cause of the accident. Also, the wife cannot be jointly liable with the other driver and PennDOT because the estate’s claim against PennDOT and the other driver will be reduced in proportion to the amount of the deceased’s causal negligence where this negligence is not the primary cause of the accident.

PennDOT calls to this court’s attention that in this case the other driver has filed a counterclaim for damages that he sustained in this accident. As part of this counterclaim, he has joined the wife as a second defendant on the ground that her negligently entrusting the vehicle to her husband was the cause of the accident. This joinder is permissible because the law permits an injured party to look to any persons whose negligence contributed to the accident.

The current case is analogous to a lawsuit instituted by a corporation against the other driver for damages to a truck which was being operated by a corporate employee. The other driver cannot raise the defense that the corporation was negligent in hiring an unfit driver to operate its truck. The issue is not whether the driver of the truck was a fit or unfit driver but, instead, whether or not the driver operated the truck in á negligent manner during the incident that is the subject of the lawsuit. Eastern Express Inc. v. Food Haulers Inc., 445 Pa. 432, 285 A.2d 152 (1971); Levant v. L. Wasserman Co., 445 Pa. 380, 284 A.2d 794 (1971); Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966); Jamison v. Ardes, 408 Pa. 188, 182 A.2d 497 (1962).

In the present case, it does not matter whether the wife should have known that her husband was an unfit driver.. The controlling issue is whether or not the husband operated the wife’s vehicle in a negligent manner during the incident that is the subject of this lawsuit. If he did not operate the vehicle in a negligent manner, any negligence on the part of the wife in giving him the opportunity to operate the vehicle had nothing to do with the accident. If, on the other hand, he operated the vehicle in a negligent manner, this negligence will operate to defeat or reduce plaintiff’s award regardless of whether or not the wife was also negligent in giving him the opportunity to operate the vehicle.

For these reasons, we enter the following

ORDER OF COURT

On this October 13, 1989, it is hereby ordered that the motion to join additional defendant of the Commonwealth of Pennsylvania, Department of Transportation, is. denied.


author: ESHELMAN, W.R., J.,

text:
    Schlegel v. Penn Dairies Inc.

      J. Michael Morrissey, for plaintiff.

      David R. Keller, for defendant.
    October 6, 1989
   ESHELMAN, W.R., J.,

This action involves plaintiffs claim against defendant, who is the former employer of plaintiff, for damages on grounds of discrimination under the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. The court entered an order for judgment on the pleadings for defendant for failure of plaintiff to comply with the two-year statute of limitations. Plaintiff has appealed to the Superior Court of Pennsylvania. Hence this memorandum opinion.

Plaintiffs complaint was filed October 31, 1988. Under count I plaintiff seeks damages because of sex discrimination against her during the course of her employment and including her discharge, 43 P.S. § 955(a), and because she opposed defendant’s alleged racial discrimination against a fellow employee, 43 P.S. § 955(d). Plaintiff was employed by defendant beginning in or about July 1985, and the alleged discrimination occurred during the period from May 1986 up to and including the date of discharge on October 15, 1986. The employment of plaintiff by defendant and the discharge of plaintiff on October 15, 1986 is undisputed. Under count II plaintiff sought damages for breach of employment terms and conditions, but this count was dismissed by stipulations of counsel and court order of February 27,1989.

We find that defendant’s alleged discrimination is analogous to a tort claim for personal injury involving intentional and tortious conduct and that the statutory limitation of two years contained in 42 Pa.C.S. §5524(7), is applicable. See Raleigh v. Westinghouse Elec. Corp., 379 Pa. Super. 606, 550 A.2d 1013 (1988), which case involved an alleged racial discrimination discharge of an employee.

Plaintiff contends in her brief of argument that the applicable statute of limitations is six years as contained in 42 Pa.C.S. §5527, citing Webster v. Great American Insurance Co., 544 F.Supp. 609 (E.D. Pa. 1982), which involved an age discrimination discharge. In the 1982 Webster decision, the court recognized that the Pennsylvania state courts had not addressed the issue of time limitation for employment discrimination actions under PHRA and decided that the six-year limitation contained in 42 Pa.C.S. §5527(6) was applicable. However, we will be guided by the recent 1988 Raleigh decision of the Superior Court of Pennsylvania. Therefore, we conclude that plaintiff’s action filed October 31, 1988 was not within the limitation of two years from date of discharge on October 15, 1986.

Plaintiff in her argument brief also contends that on November 26, 1986, which was within the 90-day PHRA limitation date after date of discharge, she filed a timely complaint with the Pennsylvania Human Relations Commission alleging discrimination by defendant for violation of PHRA; that on or about February 26, 1988 the commission advised plaintiff that it had not rendered a decision and that she had the right to file an action in the court of common pleas pursuant to PHRA, 43 P.S.* §962(c); that at the very earliest plaintiff was barred from filing an action in the court of common pleas until November 26, 1987; which was one year after filing the complaint with the commission; and that the within action before this court was therefore timely filed on October 31, 1988.

However, these alleged facts on which plaintiff’s contention is premised were first raised in her argument brief and may not be considered by the court when ruling on a motion for judgment on the pleadings. Plaintiff alleged no facts or circumstances in her complaint or in her reply to defendant’s new matter, nor are there any admitted facts in the pleadings, which would delay the.accrual of her cause of action beyond the date of her discharge on October 15,1986. In Raleigh, supra, the Superior Court stated:

“A trial court in granting judgment on the pleadings must confine its consideration to the pleadings and relevant documents. The court must accept as true all well-pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Id. at 609, 550 A.2d 1014.

Further, plaintiff failed to appear for oral argument as required by the Berks County Rules of Civil Procedure, whereby the court heard oral argument by defendant only and entered the order granting defendant’s motion for judgment on the pleadings for the reasons stated above, and pursuant to Berks County Rule of Civil Procedure 211.5(c) which provides as follows:

“If a party fails to appear and argue his case at the time scheduled, the court may hear argument of one party nevertheless, may consider the position of the party so failing to appear and argue as abandoned and may, without further notice, order the matter granted or dismissed with prejudice, depending on which party has failed to appear, or act upon the matter in such manner as the court deems appropriate, including the imposition of sanctions for failure to comply with these rules.”