*1 of finding appellee guilty possessing jury’s verdicts intent deliver were inconsis possessing LSD with LSD of mari guilty possession him of finding tent with its verdict compromise verdict. permit it not be fair to juana, would however, it is settled reasoning, well Contrary the court’s inconsistency provides of a criminal case verdicts Purcell, See: Commonwealth v. post-trial no basis for relief. (1991); Com 217, 221 349-350, 589 A.2d Pa.Super. 379, 397, Blassingale, A.2d v. monwealth Pa.Super. 183, 191 reasons, of the I would reverse order
For all of these grant judgment notwithstand- purported trial court which jury’s guilty verdict of and would reinstate the ing the verdict remand, marijuana. howev- On possession on the сharge for new er, to file a motion appellee post-trial I would permit time there- within the allowed judgment trial arrest and/or otherwise, I respect- concluded majority for. Because the has fully dissent. A.2d 763 Hyden, and Terri Co-Administrators
Gail HOLMES Johnson, Deceased, Appellants, Phillip W. Estate Dept. HOSPITAL; Hospital, Radiolo Lankenau LANKENAU Richter; Johnson; M. gy; Dr. Howard A. Dr. Nelson Dr. Judith Schnall; Oyesiku; Fine; Dr. Charles Dr. Ronald W. Dr. Robert Jones; Russell; Shiun-Tin-Kerr; Dr. K. Dr. Irwin Dr. Robert Fischer; Kline; Dr. Hugo Rodriguez; Dr. E. Michael K. Dr. Piazza; Gallagher, Erhard; Benack; Dr. and Dr. Dr. Daniel Appellees.
Superior Pennsylvania. Court of
Argued Feb. 1993. July
Filed 1993. *3 Glass, appellants. for Larry Philadelphia, Arnold, Lankenau. Philadelphia, aрpellee B. Robin *4 Mulhern, Jr., Fine and Philadelphia, appellees B. for Robert Schnall. McMenamin, Jr., Norristown, appellees for Richt-
Patrick J. Oyesiku. and er BROSKY, BECK, POPOVICH, JJ., JJ.
Before and POPOVICH, Judge. motions granting appellees’ an from an order appeal
This is find that the trial court did summary judgment. for We we affirm. Accordingly, in granting summary judgment. err Appellants, case are as follows: present The facts malpractice suit Terri filed medical Hyden, Holmes and Gail Johnson, Hospital, Dr. Dr. Rus- Lankenau against appellees, alleged sell, Kerr, Appellants Dr. Dr. and Dr. Fine. Richter father, Phillip treated their John- negligently that apрellees son, at Hospital. Lankenau 4, 1984, fell the home Phillip Johnson February
On Thereafter, he was taken Reuben and Girdell Robinson. he injuries for treatment Hospital emergency Lankenau then admitted to in the fall. Mr. Johnson was sustained Phillip treatment. Johnson for further Hospital Lankenau 9, 1984. February at on Hospital died Lankenau Holmes, as co- capacity in her On March Gail release, estate, executed administratrix Johnson’s in favor Reuben and Girdell by Hyden, Terri witnessed $10,000.00. Robinson, sum of The release exchange for the part: in relevant provides, discharge
I forever Reuben Robinson hereby do release and any corpo- other or person, Robinson and Girdell firm or with liabili- charged chargeable responsibility ration heirs, from and all assigns, any ty, representatives their services, costs, demands, loss of claims, damages, expenses, arising any from act or occur- causes of action actions and consequence ... of an to the time up rence day of February, on or about the 4th accident that occurred added). (emphasis home] near Robinson’s [the at or to appellees disclosed After existence the release was summary judg- filed through discovеry, appellees motions trial granted by were court. ment that following issues: appellants raise appeal, On an affirmative plead 1. failed to “release” [Appellees] on defense, judgments based summary so that improperly were entered. inappro- on was Summary judgment
2. based not, not, and did signing [appellant] could priate where possible cover medical understand the reasonably malpractice.
457
worded,
as to
not bind the estate so
does
3. The
malpractice,
medical
where
claims for future
prevent
executed
release.
one of thе co-administrators
not be
summary judgment
An
will
granting
order
of law
court
committed an error
reversed unless the trial
has
Mutu
Cooperstein Liberty
abused its discretion.
clearly
488,
Appellants argue appellees claim that failed summary judgment. Appellants matter, as an affirmative defense as new plead release therefore, in motion right to assert the defense waived summary judgment. disagree. We Pa.C.S.A.,
According to Pa.R.C.P. No. pleaded responsive is an affirmative defense that must be “New Matter.” If the affirmative pleading heading under pleaded according defense of release is not to Rule Ruhe v. right Kroger to assert the defense has been waived. Pa. Company, 425 A.2d case, In аppellees knowledge the instant had no release when filed their answers and new matter. The through discovery existence of the release was revealed some According time after had been filed. to the rules pleadings to amend procedure, appellees requested should have leave affirma portion the new matter of their answers to include the 1033, defense of release. Pa.R.C.P. No. Pa.C.S.A. tive then have been filed summary judgment Motions for could Instead, following filing appellees’ pleadings. amended *6 judgment motion for based simply summary filed a appellees on the release. technically not follow appellees that did
Although we find error procedural does appellees’ the rules of civil procedure, granting the trial court’s order sum- not reversal of warrant liberally rules of must be mary judgment. procedure The civil are present that such as the one resolved construed so actions inexpensive in a manner consistent with just, speedy, and Pa.R.C.P. No. 126.1 they prejudiced by to that have failed show were
Appellants
with
rules.
comply strictly
procedural
failure to
appellees’
respond
to
to
mo-
Appellants
oрportunity
appellees’
had the
Therefore, although appellees
summary judgment.
tion for
as to
the defense of
pleadings
did
amend their
so
include
not
opportunity
respond
not denied the
appellants were
arguments
regarding the defense.
to appellees’
a similar
recently presented
A
of this
was
with
panel
court
Associates, 419
Bala Avenue
DiLauro v. One
issue in
Pa.Su
DiLauro,
(1992).
191,
per.
plaintiff
argued
A
on its
or
may
trial court
own
preju-
amendment
or
except
surprise
where
pleading,
Vicente,
Spain
v.
other
result.
dice to the
would
(1983);
Sullivan
Alle-
135, 144,
proceeding may disregard procedure which does error or defect of rights parties. substantial affect assertions, Contrary ap- to his aware before trial the defense of pellant was well risk would be a central issue in this case. assumption replete “assump- trial brief is with references Appellees’ ... Finding surprise prejudice tion of the risk.” no entirely proper it was for the lower court appellant, By doing, so jury assumption on of risk. instruct court, effect, appellees’ amendment answer permitted on its own motion. added). (emphasis
Additionally, a decision to reverse the trial court’s grant summary judgment procedural because of this defect supreme place would conflict with our court’s decision not to Specifically, supreme form over substance. our court stated following: It has our ... policy procedural been overlook errors substantially complied require- when a has with the ments of the rule and no prejudice would result. “Proce- themselves, whereby dural rules are not ends but means justice, legal expressed principles, administerеd. are not to be exalted to They the status substantive v. 286-87, 264, objectives. McKay Beatty, 348 Pa. 35 A.2d Estate, (1944). 593-94, See also Chiara 586, 265 467 Pa. 359 (1976). 756, Superior succinctly A.2d 760-61 The Court has principle: procedure plead- stated the “The niceties of ing intelligence games lawyers make fine for but should deny justice. never be used to ultimate This is the reason 460 Godi- procedure.” to rules of civil approach
for our modern Oswald, 91, (1965). 51, 55, 211 A.2d na v. 93 Pa.Super. 206 Tedesco, 586, 593, 419, 486 A.2d 423 v. Pa.Super. 336 Griffin Goldstein, 175, (1984), Pomerantz 479 Pa. 387 quoting (1978). surprise prejudice A.2d Given the absence properly find the trial court appellants, granted we that notwithstanding summary judgmеnt for appellees’ motions an affirmative de argue failure to the release as appellees’ pleadings. fense amended is that the trial court argument second
Appellants’
summary
on the
granted
judgment
should
have
based
not
release
signed the
did
appellant
release because
who
malpractice
included medical
understand
claims that
appellees. Although appellant
claims
against
she
appellees
she did not intend
when
release,
by
ordinary
of a release is determined
the effect
Bodnar,
383, 386,
language. Estate
472 Pa.
meaning
of its
(1977).
This
a similar
interpreted
court
A.2d
Gnagey,
in Hasselrode v.
Pa.
release to the
one
This court held
A.2d
intended to release an
“any
persons,”
and all
was
extending
no consider
paid
not named in the release and who
individual
Further,
Id.
In the all corporations charged firms persons, ment that releаsed or liability or with chargeable responsibility respect with According plain language accidental fall. Johnson’s liability although released from appellees were Hasselrode, named in release. specifically were not supra. our supreme
When
court was faced
interpretation
with the
of a similar release in Buttermore v.
Aliquippa Hospital,
(1989),
Pa.
If such a circumvented, rеlease can be nullified or then every written release and every written contract or agree- of any ment kind no matter how clear and pertinent and all- inclusive, can be set aside whenever one of the has change mind or whenever subsequently there occurs a change unforeseen, of circumstances which were or there injuries, were after-discovered magnitude or the of a relea- injuries increased, sor’s were unexpectedly or plaintiff made inadequate an settlement. It would make a mockery of the English language and of permit the law to this releаse to be circumvented or held to be nugatory. Mackiewicz,
Id. 561 A.2d at
quoting Emery v.
429 Pa.
(1968).
322,
A
panel
this court was presented with a similar set of
Smith v. Thomas
facts
University Hospital,
Jefferson
Pa.Super.
case,
462 reforming con- a basis for a mistake will afford
Mutual
Gocek,
406,
Appellants’ final contention is that only because one of the co-administratrices of Johnson’s estate executed the release, the estate is not bound tо the release agreement. One signed administratrix the release while signed the other signature. as witness to the We find appellants’ argument to be meritless.
In support Buttermore, of their argument, appellants cite Buttermore, In supra. our supreme court held that may not bargain away rights another, not a party agreement. Appellants claim that since appellant Hy- Terri den signed the release agreement as a witness and not as a agreement, she has a right bring the medical malpractice action against appellees. Appellants reliance on Buttermоre is inappropriate because Terri Hyden is not as- serting independently a right to sue appellees injuries. for her Rather, appellants filed present suit in their capacities as co-administratrices of Johnson’s estate.
This court has stated that co-executors and co-admin istrators are regarded as one person, and possesses each full power and control personal over the estate of a decedent. Selig Selig, 7, 10, 217 Pa.Super. 268 A.2d The authority of each co-executor or co-administrator joint several, and one has power tо bind the estate to an agreement. Id.
Presently, appellant Gail Holmes her as capacity co-administratrix of Therefore, Johnson’s estate. despite the fact that one of the co-administratices signed the estate was bound to the terms of the agreement. We, therefore, Id. affirm the trial court’s order granting appellees’ motion for summary judgment.
Order affirmed.
BROSKY, J., files a concurring opinion.
BROSKY, J., concurring. majority’s opinion. reluctantly concur the result
I decisions which light of various I constrained concur feel However, I cannot controversy. the present to control appear reasoning forth those dеcisions. agree with the set are the administrators appellants In case days several after Their father died their father’s estate. fall at home of injuries in an accidental head sustaining es- of their father’s Acting some administrators friends. *11 ostensibly tate, liability of form appellants signed “release” liability and any from additional releasing the homeowners of them. The consider- settling against the estate the claim dollars, in a modest sum a sum of ten thousand paid ation was it The was that modest because today’s times. consideration of to be the limits by appellants understood apparently was may, it insurance. Be that as property the homeowners’ sole cause of their father’s death did not believe the appellants in the believed that injuries Appellants the sustained fall. was by negligent proximately was more caused their father’s death to subject the injuries after he sustained treatment received words, that, they although In other believed the settlement. fall, have from decedent never should died injured in the the hospi- the injuries. Consequently, against filed suit those of question only signing in to find that their tal and doctors prevent worked to with homeowners has the release the is the dеspite This true recovery parties from these well. to the release appellees parties were not fact that the various from appellants for release paid and no consideration to the liability. of a is judicial interpretation of contract supposed goal
The if not the actual shared parties, to the intent the effectuate indeed, there, at be one—then of both parties intent —should by the terms fairly reasonably implicated least the intent A surrounding circumstances. sort of the and the agreement as their actual imputed parties regarded to the intent then, it Ideally respect question, with to the release intent. was the actual to it unless that parties should not release third who the release. parties intent of the contemplated Yet, parties actually that intended result premise the that I preposterous. anyone is doubt that mostly truly believes that intended claims appellants knowingly their against hospital by executing the doctors and virtue of receipt release with the homeowners and the thousand ten parties represented dollars. Those “deep pockets” Moreover, time, case. partiеs, at that were negotiating only with the There no homeowners. was discussion with hospital potential and doctors medical regarding malpractice homeowners, liability. More likely, settling appel- with the get lants attempting way were the “small case” out of the proceeding “big before to the case.” That the intended homeowners to benefit unnamed potential by defendants is executing more slightly plausible. There seems be little that reason a homeowner potential would care even think about liability defending another when against lawsuit or claim for damages. More likely, average an person position the homeowners here would be greatly concerned about the proceedings ramifications of the against them and no give thought Thus, all to potential at other defendants. suggest homeowners, settling, by intended the execution of the release to also confer benefit upon unnamed *12 somewhat dubious. really The homeowner has to nothing gain from such an intention or action not and it is which something naturally Thus, would come his or contemplation.1 within her Perhaps 1. entity the or individual which has intended the result imposing our courts are these situations the is insurer. Thе insurer may this protect paying have intention to money itself from out more parties or spared liability should one more of the third as a of the result signing happen the by of release to be one insured itself. this Should occur, $10,000 payment might the of on behalf the of homeowners spare liability the insurer in the millions of dollars when or a doctor hospital escapes liability has signing it insured as of a result the of the remote, most, all, possibility figures release. Even if this is it that if or companies similarly insurance draft their releases in broad fashion industry certainly spared significant as a whole will be a amount mоney potential "deep a pocket” being as result of defendants saved liability unsuspecting litigants from when claimants or execute releases seemingly like the one found here to settle unrelated claims. The more likely insurers who use such releases more that all will benefit one, that fairly it can be assumed like the
in situations and parties that unnamed is actual intent both it not the liability from virtue of by parties be “released” unrelated Nevertheless, exactly this is what execution the release. dictated. of our courts have prior decisions Aliquippa Hospital, 325, 561 A.2d In Buttermore v. 522 Pa. (1989), pattern, our Court Supreme a similar factual under wording, parties released all by its own found that the commented: liability. They from circumvented, then or If can be nullified such a release agree- every written contract written release and every and all- pertinent no how clear and any kind matter ment inclusive, has a parties whenever one of the can be set aside a subsequently there occurs of mind or whenever change It which unforeseen---- of circumstances were change and of the language of the mockery English make a would to held to be this release be circumvented or permit law to nugatory. validity commentary as to
I do of this dispute have appellants Should agreement. to the release parties from the attempt money to extract more change of heart and homeowners, agree I that their execution release would position I would this support those efforts. prevent would did not understand appellants argued even if the executing or had made mistake implications of agreement impotent is make the do otherwise it. To commentary However, I not believe that do illusory. to the application strangеrs as its particularly persuasive the release suggesting here are not Appellants release. it, appel- negated to the homeowners who can be should not work is that the release only argument lants’ to the who did not contribute a benefit to third bestow consideration, liability for a bargain who did not imagine the insurer long Consequently, it is not difficult to run. possessing this intent. *13 context, However, liability the representing insured in a when an interest, Consequently, truly the party the insured is. is not a insurer pertinent to broadly is drafting the release so not insurer’s intent parties who it. as between the interpreting the document sign whо did the parties not document. As to such the windfall clearly acts as a benefit under circumstances that penalize the releasor.
If it clear that did to is one intend other potential as I is signing defendants when a the believe here, case then the giving release that effect is at best naivete, worst, the releasor his or punishing for her and at result, when a only releasee intended such a near allowing If perpetrated upon fraud to be the releasor. party neither a intended such result then there is “mutual arguably mistake” at work and that interpretation should not follow at However, scenario, regardless all. it very unlikely that result truly bargained was for. it Consequently, begs willing are question: why stranger we so allow a an agreement enforce to which not a party, paid he is has no for consideration and did not participate negotiation of? a policy standpoint From there seems little reason to form, allow this result other than to elevate verbose wording forms, overbroad of boilerplate release sub- over stance, actual in question. intent the parties from the commentary,
Aside above the standing posi- tion party of the third to assert ques- the release must be tioned. When one asserts a release under circumstances like essentially he is asserting a third party benefit. party contract, He is not a to the nor is he in to a privity party. Consequently, he is to be attempting party a third under the beneficiary regard- contract. Yet when the caselaw ing party you third beneficiaries is reviewed find that these contracts are rather restrictively enforced. Scarpitti Weborg,
Recently,
530 Pa.
the circumstances are compelling recognition so beneficiary’s right is appropriate to effectuate the intention parties, and the performance obligation satisfies an *14 the beneficiary to the or circum- pay money
the to promisee give the intends to the bene- promisee stances indicate that promised performance. ficiary the benefit of the Id., in Under the (emphasis original) A.2d at 150-151. stranger to why it is difficult to understand a above criteria is against it the releasor. It is allowed to enforce the contract exprеsses an agreement to that the release difficult conclude unless one determines that party to benefit a third intent corpora- firm or any “and other including language person, the responsibility liability,” or the charged chargeable or with tion an unknown and indefi- expressly intended to benefit parties typical is likely, language More this persons. nite class of parties to encompass intended legal phrasing overbroad However, if it of all their even were the intention privies. also everyone might in the world who be to broadly a releasor, it is that such questionable liable to the third quаlify or entities would persons class defined party status. a analysis Recognizing also. prong second fails
The necessary to to effectuate right cannot be said be party’s third intent primary The clear and parties. the intent of the finally is to as agreement dispute the release settle signing agreement If the agreement. parties signing between the immunity from a to an to the same lawsuit works offer below, court then this would party, third as the held unknown at or incidental intent ancillary seem to be best an clearly primary parties. it is not the intent parties, I party’s right that a third to claim Consequently, beliеve If beneficiary suspect. status under the release is party third third of the release a party gain a third does not benefit that comes to theory then the other beneficiary, party the release party rely upon the third to might mind that allow However, also appears this dubious. estoppel. is promissory “A action under detrimental reliance or cause of his detriment on the party relies to arises when estoppel party, another so negligent representations intentional harmed, being from relying prevent order that the facts are estopped showing from inducing pаrty party understood them be.” Rinehimer relying as the County Community College, Luzerne Pa.Super. 480, straining A.2d It is the above defini- tion, in my opinion, to that in settling assert with the home- owners, made a appellants promise appellees. have Sec- I no ondly, appellees’ see reliance to To detriment. contrary, appellees were position having defend *15 themselves in a large lawsuit of potentially proportions until such time as discovered the execution the release in question. These are not circumstances that invite the applica- tion of promissory estoppel.
If the above two theories do not a allow third to assert party defense, a release as then allowing propriety assertion at all is suspect. Especially when it is considered did probably explicit not have an intent third parties, clearly such and it is inequitable to allow the third assert it. I Consequently, believe that the policy allowing stranger behind to a release to it assert as a in a defense context such as the one should be by our Supreme reexamined Court and overruled.
Assigned Plan, Appellees. Claims
Superior Pennsylvania. Court of
Argued April 13, 1993. July
Filed 1993.