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RITA DEEMER v. DONNAMARIE OROS (04/06/87)

filed: April 6, 1987.

RITA DEEMER
v.
DONNAMARIE OROS, APPELLANT



Appeal from the Order entered August 1, 1986 in the Court of Common Pleas of Bucks County, Civil Division, at No. 84-8220-12-2.

COUNSEL

William T. Renz, Doylestown, for appellant.

Dean P. Arthur, Doylestown, for appellee.

Cirillo, President Judge, and Rowley and Hoffman, JJ.

Author: Hoffman

[ 362 Pa. Super. Page 125]

This is an appeal from the lower court's order granting a new trial on the issue of damages. Appellant contends that (1) the release from liability executed by appellee was admissible at trial because it was not within the scope of 42 Pa.C.S.A. § 7101; and (2) appellee waived any right to challenge the release because she retained the settlement benefits. For the reasons that follow, we reverse the order granting a new trial and enter judgment on the jury's verdict.

On December 7, 1982, at approximately 11:00 p.m., appellant and appellee were involved in an automobile accident. Appellee was taken to a hospital emergency room where she was x-rayed and treated for various cuts and bruises. N.T. April 29, 1986 at I-21. She left the emergency room at about 4:00 a.m. Id. at I-22. On December 13, 1982, six days after the accident, an adjuster employed by the company that insured appellant went to appellee's home and obtained a release from liability in return for $2,100. In November, 1984, appellee filed this negligence action against appellant. The jury returned a verdict in favor of appellant because it found that the release was valid and not a product of fraud. Appellee filed a post-verdict motion requesting a new trial. The lower court granted appellee's motion and ordered a new trial on the issue of damages.*fn1 This appeal followed.

Appellant first contends that a release from liability is not inadmissible under 42 Pa.C.S.A. § 7101 if the release was not obtained while the releasor was confined to a hospital or sanitarium. Section 7101 provides the following:

[ 362 Pa. Super. Page 126]

    v. Powers, 75 Pa.D. & C.2d 416 (C.P.Phila.1975), aff'd per curiam, 240 Pa. Superior Ct. 729, 360 A.2d 230 (1976), vacated on other grounds, 477 Pa. 306, 383 A.2d 946 (1978). In Marshall, the trial court interpreted the predecessor to 42 Pa.C.S.A. § 7101,*fn2 which contained substantially similar language to § 7101. The court concluded that:

When the nature of the injuries involved compel confinement in a hospital for a minimum period of time to treat serious injuries, the legislature chose a period of 15 days "from the date of the occurrence causing the person's injury," . . . "during the first fifteen days of confinement" to invoke the terms of the statute, and it seems to us that the 15-day period under subsection (a) can run whether the person is actually confined to a hospital or not, so long as there was a minimum confinement to a hospital initially.

Marshall v. Powers, supra at 420. This Court affirmed by per curiam order. In Marshall, however, the court need not have reached this issue because the court initially concluded that the release had been signed while the plaintiff was in the hospital.*fn3 Id. at 417-18, 419. Even if we are bound by our per curiam affirmance of this case,*fn4 we are not bound by the court's interpretation of the statute because that part of the court's opinion was dictum. See In re Cassell's Estate, 334 Pa. 381, 384, 6 A.2d 60, 61 (1939).

Since Marshall, none of our courts has addressed this precise issue. Therefore, our task is to interpret the statute. When words of a ...


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