Stouffer v. Com., Dept. of Transp.

PALLADINO, Judge,

dissenting.

I must respectfully dissent from the conclusion of the majority that there was a legal duty to wear seat belts on January 18, 1985, the date this accident occurred. The majority mistakenly relies on McKee v. Southeast Delco School District, 354 Pa.Superior Ct. 433, 512 A.2d 28 (1986) as authority for this conclusion. While this court is not *617bound by a ruling of the superior court, I note that in McKee the superior court did not find that there was an affirmative duty to wear seat belts. Instead, it concluded that where the injury was not caused by contact between vehicles, evidence is admissible to show what caused the injury, even if the cause of the injury was the failure to wear a seat belt. McKee, 354 Pa.Superior Ct. at 437, 512 A.2d at 30. The McKee case was the only authority offered by the majority for its conclusion there was an affirmative duty to wear seat belts at the time of the accident in question.

Because no appellate court in the Commonwealth has squarely addressed the question of whether a common law duty ever existed to wear seat belts, this court cannot now retroactively create such a duty. The legislature has made it clear, that it intended in 1983 to create, not reaffirm, an affirmative duty to wear seat belts.

In responding to the public demand that seat belt use be made mandatory, the legislature enacted the child restraint law.1 Under this provision the legislature, for the first time, placed an affirmative duty on parents and legal guardians to use child restraints on children under the age of four. In 1987 the legislature amended the child restraint law by making seat belt use mandatory for all drivers and front seat passengers.2 Both of these acts made the failure to use restraints a summary offense with a maximum fine of $25 dollars, but prohibited a violation or alleged violation of the act from being used as evidence, for any reason, in a civil action.

Even if the majority’s conclusion that there was a duty to wear seat belts is accepted, the majority erred when it viewed this case as a retroactive application of a statute. Statutes which do not impair contracts or disturb vested rights, but merely vary the procedural aspects or available *618remedies, may be applied to causes of action which arose prior to the enactment, but do not come to trial until after the statutory change has occurred. Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960). In Grim v. Betz, 372 Pa.Superior Ct. 614, 539 A.2d 1365 (1988), the superior court forbade the “seat belt defense” despite the fact the accident in question had occurred prior to the 1987 amendment to 75 Pa.C.S. § 4581. Implicit in this decision is a finding that the 1987 amendment was a change in procedure, not a change in a substantive right, because in dicta the Grim court apparently found that use of a seat belt defense was not contrary to law, prior to the 1987 amendment. Grim, 372 Pa.Superior Ct. at 619, 539 A.2d at 1367. As a result, there is no question of an unlawful retroactive application of a statute in this case.

Accordingly, I would affirm the trial court.

. Section 4581 of the Vehicle Code, as amended, 75 Pa.C.S. § 4581. The language of the act as passed in 1983 can be found in the Act of November 1, 1983, P.L. 195. This act was effective immediately.

. Act of November 23, 1987, P.L. 399.