Logan v. Kemerer

5 Pa. D. & C.4th 668, 1990 Pa. Dist. & Cnty. Dec. LEXIS 370

• Court: Pennsylvania Court of Common Pleas, Westmoreland County
• Decided: March 1, 1990
• Docket: no. 7601 of 1988
• Status: Published

Opinion

ACKERMAN, .

Plaintiff, Lenora B. Logan, has filed preliminary objections to defendant’s answer and new matter. The first objection is to defendant’s “boilerplate” allegation in paragraph 12(A)(6) that plaintiff was negligent in the operation of her vehicle “[i]n otherwise violating the laws of the Commonwealth of Pennsylvania.” At oral argument on these objections, counsel for defendant, William A. Kemerer Jr., has conceded that this allegation is overly broad and paragraph 12(A)(6) will be stricken. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).

The preliminary objections next address defendant’s raising of a “seat-belt defense” in paragraph 12(C)(2). Such a defense was legislatively proscribed with the passage of Act 82 of 1987, 75 Pa.C.S. §§4581-4585, which became effective November 23, 1987. The accident which is the subject of the present litigation occurred on December 2, 1986, prior to the passage of this legislation. The question is whether or not the act is to be applied to a case which evolved out of an accident which predates the act. Seemingly inconsistent conclusions have been reached in response to this question in our appellate courts.

In Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988), the Superior Court considered the act’s application to an accident which occurred on May 26, 1983, and concluded that the legislation was an intervening change in the law that was to be applied to the case then on appeal even though the accident in question occurred prior to the 1987 amendments.

The Pennsylvania Commonwealth Court took the opposite tack in Stouffer v. Commonwealth, Dept. of Transportation, 127 Pa. Commw. 610, 562 A.2d 922 (1989), holding that the act which condemned the “seat-belt defense” was not retroactive and should not have been applied to a 1985 accident. The panel in Stoujfer purports to have considered the Superior Court’s holding in Grim and reaches the conclusion that Grim did not discuss retroactivity, which is true, but the result is certainly the application of the 1987 legislation by the Grim court to a 1983 accident.

Faced with this apparent conflict, I believe that it is prudent to follow the Superior Court’s holding in Grim which is an en banc decision while the Stoujfer decision is a panel opinion; and, because I find Judge PaHadino’s dissenting opinion in Stouffer to be a persuasive argument as to why Grim rather than Stouffer is correct.

Accordingly, both of plaintiffs preliminary objections will be sustained.

ORDER OF COURT

And now, March 1, 1990, plaintiffs preliminary objections are sustained; and paragraphs 12(A)(6) and 12(C)(2) of defendant’s answer and new matter are hereby stricken.