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HomeMy WebLinkAbout92-2382 CivilDIANNA KAY SOUTH, Individually and as natural parent and guardian for DANIELLE SOUTH, aminor child, and DIANNA KAY SOUTH, Executrix of the Estate of KEVIN TODD SOUTH, deceased, Plaintiff V. BRIAN FRANCIS MURPHY and NORTH AMERICAN VAN LINES, INC., Defendants V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2382 CIVIL 1992 TO JOINDER COMp�INT OF DEFENDANTS O BEFORE HOPPER HE and OLER JJ. ORDER OF COURT AND NOW, this 1619 day of March, 1993 Upon careful consideration of the Preliminary Objection of Additional Defendant Department of Transportation, to Defendants, J ' Commonwealth of Pennsylvania, SUSTAINED ornder Complaint, the Objection is and Paragraphs ten, eleven, twelve and thirteen of the Joinder Complaint are STRICKEN BY THE COURT, Gv J. Edward E. Guido, Esq. 26 W. High Street Carlisle, PA 17013 Attorney for Plaintiff Harvey Freedenberg, Esq. Lawrence R. Wieder, Esq. 100 Pine St., P.O. Box 1166 Harrisburg, PA 17108-1166 James R. Moyles, Esq. Torts Litigation Section Office of Attorney General 15th Floor; Strawberry Square Harrisburg, PA 17120 :rc DIANNA KAY SOUTH, Individually and as natural parent and guardian for DANIELLE SOUTH, a minor child, and DIANNA KAY SOUTH, Executrix of the Estate of KEVIN TODD SOUTH, deceased, Plaintiff V. BRIAN FRANCIS MURPHY and NORTH AMERICAN VAN LINES, INC., Defendants V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2382 CIVIL 1992 IN RE: PRELIMINARY OBJECTION OF ADDITIONAL DEFENDANT COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION TO JOINDER COMPLAINT OF DEFENDANTS BEFORE HOFFER HESS and OLER JJ, OPINION AND ORDER OF COURT Oler, J. For disposition in the present case is a preliminary objection to Defendants' Joinder Complaint. The preliminary objection is in the form of a motion to strike certain averments which are said to involve privileged and confidential information. For the reasons stated in this Opinion, the preliminary objection will be sustained. Factual back -around. On March 16,1992, Kevin Todd South (Plaintiff's decedent) was fatally injured when the motorcycle he was operating collided with a tractor trailer owned and operated, respectively, by North American Van Lines, Inc., and Brian No. 2382 Civil 1992 Francis Murphy (Defendants).' Subsequent to the accident, Dianna Kay South (Plaintiff) commenced the present wrongful death and survival action against the Defendants. A complaint joining the Commonwealth of Pennsylvania, Department of Transportation (DOT), as an additional defendant was filed by the Defendants. The Joinder Complaint avers that DOT is solely liable to the Plaintiff or liable over to the Defendants "to the extent that [DOT's] negligence was a contributing factor in the accident."' Among the averments of negligence is the failure of DOT "to correct a dangerous condition of highway, when it knew such a condition to exist."' At issue in the instant matter are certain averments in Defendants' Joinder Complaint which allege that, as a result of traffic problems and accidents along the relevant section of U.S. Route 11, DOT conducted various traffic safety studies. The averments in question are as follows: 10. Prior to the date of the accident, PennDOT had conducted studies and held open meetings with local citizens regarding the aforementioned section of highway. 11. These studies and meetings were conducted as a result of traffic problems and accidents along the aforementioned ` Plaintiff's complaint, containing wrongful death and survival action counts, alleges that Defendant Murphy was an agent or employee of Defendant North American Van Lines, Inc., at the time of the accident. The accident occurred on U.S. Route 11 in Middlesex Township, Cumberland County, Pennsylvania, in the vicinity of Gables Self Service Plaza and the Best Western Motel. Defendants' Joinder Complaint, Exhibit A, paragraphs 6-11. 2 Defendants' Joinder Complaint, paragraphs 8-16. 3 Defendants' Joinder Complaint, paragraph 14(h). 2 No. 2382 Civil 1992 section of highway. 12. PennDOT acknowledged orally and in writing that the area provided the ongoing potential for traffic accidents and was in need of improvement. 13. Despite having determined that a problem existed, along the aforementioned section of highway, PennDOT failed to take the requisite remedial action.' DOT filed a preliminary objection in the form of a motion to strike the averments, raising the following points: (1) that "[t]he allegations set forth in ... paragraphs 10 through 13 of original Defendants' Joinder Complaint constitute scandalous and/or impertinent matter";5 (2) that "[p]aragraphs 10 through 13 of original Defendants' Joinder Complaint allege information [regarding traffic safety studies] which, if true, would be privileged and confidential pursuant to Pennsylvania statutory law";' and (3) that "PennDOT cannot in good faith respond in the affirmative or in the negative because an affirmative response would be a judicial admission which would be admissible at the time of trial and a negative response may be untruthful."' Defendants contend that the motion to strike should be denied because: (1) the permissible grounds for preliminary objections do not include an objection based upon ' Defendants' Joinder Complaint, paragraphs 10-13. 5 DOT's Preliminary Objection, paragraph 4. e DOT's Preliminary Objection, paragraph 3; see Act of December 11, 1986, P.L. 1530, §7, as amended, 75 Pa. C.S. §3754 (1992 Supp.). ' DOT's Preliminary Objection, paragraph 5. 3 No. 2382 Civil 1992 the admissibility of evidence;' (2) the statutory provision said to confer confidentiality and privilege applies to in-depth studies only;' (3) the averments in question are neither scandalous nor impertinent;10 and (4) the express language of the said statutory provision does not preclude a judicial admission that an investigation was performed. u DISCUSSION Statement of the law. A review of several areas of law will be helpful to a disposition of the present issue. First, with respect to a motion to strike it has been stated that such a motion "is limited to errors of form. It cannot be used for other objections." 5 Standard Pennsylvania Practice §25:44, at 196 (1982). Moreover, because the rules of pleading are to be construed liberally, "[m]otions to strike are sparingly granted." Id. §25:51, at 207; see Pa. R.C.P. 126. Consistent with this general rule, impertinent matter that is not prejudicial may be treated as "mere surplusage and ignored." 2 Goodrich Amram §1017(b):16, at 261 (1991). Where, however, a pleading contains impertinent material that would be prejudicial to a party, a motion to strike s Defendants' Brief in Opposition to the Preliminary Objections of the Department of Transportation, at 1-2. 9 Id. at 3. io Id at 2-3. " Id at 3. El No. 2382 Civil 1992 will be granted. 12 Second, with reference to the meaning of impertinence in pleading, impertinence has been defined as the "averment of a fact or facts which are irrelevant to the material issues made or tendered, and which, whether proven or not, or whether admitted or not, can have no influence in leading to the result of a judicial decree." 2 Anderson, Pennsylvania Civil Practice §1017:103, at 480 (1976). It has been stated that allegations in a pleading that relate to evidence which is otherwise competent, but which is not admissible to prove such averments, are impertinent. Id. at 481-482; see also Wasenda v. Muckus, 41 Luz. L.R. 333, 334 (1982). Third, with reference to the pleading of evidence, it has been said that "[e]vidence from which material facts may be inferred not only need not but should not be alleged in a pleading." 2 Goodrich Amram 2d §1019(a):(6), at 321 (1991). "A court has wide discretion in determining whether a particular averment ... constitutes evidence Id. §1019(a):(8), at 324. "[I]f the presence of immaterial facts, evidence, or conclusions of law in a pleading is confusing or harmful, they may be stricken." Id. §1019(a):(11), at 326-27. Fourth, with respect to the specific confidentiality provision of the Pennsylvania 12 See generally 2 Goodrich Amram §1017(b):16, at 261 (1991). Former Pa. R.C.P. 1017(b), which listed the permissible grounds for preliminary objections, was rescinded in 1991 and the substance of former Rule 1017(b) was transferred to Pa. R.C.P. 1028. 5 No. 2382 Civil 1992 Vehicle Code (Vehicle Code)13 at issue in the present case, the language of the enactment is as follows: In-depth accident investigations and safety studies and information, records and reports used in their preparation shall not be discoverable nor admissible as evidence in any legal action or other proceeding, nor shall officers or employees or the agencies charged with the development, procurement or custody of in-depth accident investigations and safety study records and reports be required to give depositions or evidence pertaining to anything contained in such in-depth accident investigations or safety study records or reports in any legal action or other proceeding. Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3754(b) (1992 Supp.). An analysis of this provision is assisted by the Statutory Construction Act of 1972,14 which provides, inter alia, that statutes "shall be liberally construed to effect their objects and to promote justice."" 13 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §§101 et seq. (Main vol. and 1992 Supp.). 14 Act of December 6, 1972, §3, 1 Pa. C.S. §§1501 et seq. (1992 Supp.). 15 Act of December 6, 1972, §3, 1 Pa. C.S. §1928(c) (1992 Supp.). C No. 2382 Civil 1992 A prior version of this provision18 was the subject of much pretrial litigation in cases in which the Department of Transportation was a defendant or additional defendant." Issues generally involved whether protected material included information received by the Department (as opposed to generated by it),18 whether the protection applied to discovery as well as evidentiary matters, 19 and whether the Commonwealth was an intended beneficiary of the protection.20 is As originally enacted, Section 3754(b) of the Vehicle Code provided as follows: Information, records and reports associated with in-depth accident investigations shall not be admissible as evidence in any legal action or other proceeding, nor shall officers or employees or the agencies charged with the procurement or custody of in- depth accident investigation records and reports be required to give evidence pertaining to anything contained in such in-depth accident investigation records or reports in any legal action or other proceeding. Act of June 17, 1976, P.L. 166, §l, 75 Pa. C.S. §3754. 17 See, e.g., Shoyer v. City of Philadelphia, 96 Pa. Commw. 75, 506 A.2d 522 (1986), allocatur granted, _ Pa. _, _, 521 A.2d 934, 935, appeal dismissed as improvidently granted, 517 Pa. 61-62, 534 A.2d 758 (1987); Gregg v. Commonwealth of Pennsylvania, Department of Transportation, 29 Pa. D. & C.3d 549 (Adams Co. 1983); Smith v. Commonwealth of Pennsylvania, Department of Transportation, 29 Pa. D. & C.3d 129 (Lancaster Co. 1983); Lindsey v. Commonwealth of Pennsylvania, Department of Transportation, 23 Pa. D. & C.3d 202 (Bedford Co. 1982); Mayfield v. Pa. Department of Transportation, 23 Pa. D. & C.3d 79 (Fayette Co. 1982); Simon v. Allegheny County, 23 Pa. D. & C.3d 360 (Allegheny Co. 1982). 18 See, e.g., Smith v. Commonwealth of Pennsylvania, Department of Transportation, 29 Pa. D. & C.3d 129 (Lancaster Co. 1983) (negative). is See, e.g., Mayfield v. Pennsylvania Department of Transportation, 23 Pa. D. & C.3d 79 (Fayette Co. 1982) (affirmative). 21 See, e.g., Lindsey v. Commonwealth of Pennsylvania, Department of Transportation, 23 Pa. D. & C.3d 202 (Bedford Co. 1982) (negative). 7 No. 2382 Civil 1992 The provision was initially enacted in 1976 and became effective July 1, 1977,21 at a time when the Commonwealth enjoyed a greater degree of legal immunity than it does now. 12 This latter circumstance led some courts to apply a limited reading to the statute in terms of intended protection of the Commonwealth in litigation." Even so, at least one court observed that "[t]he obvious purpose of [former Section 3754 of the Vehicle Code was] to permit PennDOT to obtain complete, critical, and unbiased evaluations for the purpose of correcting highway hazards by insuring that the evaluations will not be used against PennDOT in legal proceedings." Simon v. Allegheny County, 23 D. & C.3d 360, 365 (Allegheny Co. 1982). In 1986, the legislature enacted the present version of the provision in question, expressly including within the purview of its protection discovery matters, information received by the Department, and "safety studies" conducted by the Department .21 It seems clear that the revisions to the statute were intended to support a more expansive interpretation of the scope of the Commonwealth's protection. 21 Shoyer v. City of Philadelphia, 96 Pa. Commw. 75, 506 A.2d 522 (1986), allocatur granted, 521 A.2d 934, 935, appeal dismissed as improvidentlygranted, 534 A.2d 758 (Pa. 1987). 22 Id.; Ariondo v. Munsey, 122 Pa. Commw. 475, 553 A.2d 94, allocatur granted in part and denied in part, 523 Pa. 650, 567 A.2d 653-54 (1989). 23 See, e.g., Lindsey v. Commonwealth of Pennsylvania, Department of Transportation, 23 D. & C.3d 202 (Bedford Co. 1982). 24 See Act of December 11, 1986, P.L. 1530, §7, 75 Pa. C.S. §3754(b) (1992 Supp.), amending Act of June 17, 1976, P.L. 162, §l, 75 Pa. C.S. §3754. No. 2382 Civil 1992 Finally, with respect to the significance of an admission in a pleading, it has been said that such admissions "have the effect of withdrawing a fact from issue ... 25 A judicial admission in this regard is said to be conclusive on the point in issue.28 Application of law to facts. In the present case, the averments of the Joinder Complaint challenged by the Department of Transportation relate to matters which can properly be viewed as evidentiary in nature and which appear, in the absence of a more developed record, to implicate the confidentiality provisions of Section 3754 of the Vehicle Code. Because of the conclusive effect of an admission in a judicial pleading, and of the other principles of law discussed above, the Court believes that the paragraphs objected to in the Defendants' Joinder Complaint should not have been included in the pleading. ORDER OF COURT AND NOW, this Uf4 day of March, 1993, upon careful consideration of the Preliminary Objection of Additional Defendant, Commonwealth of Pennsylvania, Department of Transportation, to Defendants' Joinder Complaint, the Objection is ' Packel & Poulin, Pennsylvania Evidence §805.5, at 666 (1987). 26 Id. 0 No. 2382 Civil 1992 SUSTAINED and paragraphs ten, eleven, twelve and thirteen of the Joinder Complaint are STRICKEN. Edward E. Guido, Esq. 26 W. High Street Carlisle, PA 17013 Attorney for Plaintiff Harvey Freedenberg, Esq. Lawrence R. Wieder, Esq. 100 Pine St., P.O. Box 1166 Harrisburg, PA 17108-1166 James R. Moyles, Esq. Torts Litigation Section Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 :rc BY THE COURT, s/ J. Wesley Oler, Jr J. 10 NEW CUMBERLAND INSURANCE IN THE COURT OF COMMON PLEAS OF AGENCY, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW BRESSLER METAL WORKS, INC., Defendant NO. 3893 CIVIL 1992 IN RE. DEFENDANT'S PRELIMINARY OBJECTION BEFORE BAYLEY and OLER JJ. OPINION AND ORDER OF COURT Oler, J. At issue in this case is a preliminary objection to a complaint against a defendant for nonpayment of insurance premiums to plaintiff insurance agency. It is alleged in the complaint that the payments were to be made at plaintiff's office in New Cumberland, Cumberland County, Pennsylvania. The basis for the preliminary objection is improper venue.' Under Pennsylvania Rule of Civil Procedure 2179(a), venue in an action against a corporation is said to be proper in, among other counties not here relevant, "a county where a transaction or occurrence took place out of which the cause of action arose." 2 "In a contract action for omission of a payment to be made at a plaintiffs place of business situate in the forum county, it has been held that defendant's nonpayment represents an occurrence within the forum county out of which the cause of action arose." PFA Members' Service Corp. v. Ansell, No. 3315 Civil 1992 (slip. op. at 3). ' The preliminary objection was not endorsed with a notice to plead. See Explanatory Comment -1991, Pa. R.C.P. 1017. 2 Pa. R.C.P. 2179(a)(4). No. 3893 Civil 1992 Thus, in an action for nonpayment of an insurance premium to be made in the forum county, it has been held that venue properly lies in said county. Id. ORDER OF COURT AND NOW, this o?ot� - day of May, 1993, after careful consideration of Defendant's Preliminary Objection to the Complaint alleging improper venue, the Preliminary Objection is DENIED and Defendant is given 20 days within which to file an Answer. Edmund G. Myers, Esq. 301 Market Street Lemoyne, PA 17043 Attorney for Plaintiff James T. Reilly, Esq. 1601 Cornwall Road Lebanon, PA 17041 Attorney for Defendant :rc BY THE COURT, s J. Wesley Oler. Jr. J. Wesley Oler, Jr. J. K