author: TAMILIA, Judge:

text:
    622 A.2d 983
    Joseph B. ATKINSON, Jr., Appellant, v. Daniel M. HAUG, John T. Acton and John T. Acton, P.C.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed April 2, 1993.

      Edward H. Fackenthal, Norristown, for appellant.
    Arthur W. Lefco, Philadelphia, for Acton, appellees.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

In the spring of 1984, appellant, Joseph B. Atkinson, Jr., became partners in an apartment complex known as Kings-bury with his friend and business associate, appellee, Daniel M. Haug, an associate attorney in appellee John T. Acton’s law firm, John T. Acton, P.C. (hereinafter, collectively, Acton). When the investment failed, in an attempt to recover his financial loss, appellant brought suit for misrepresentation and professional negligence against the appellees alleging Haug’s allegedly faulty business advice was offered within the scope of his employment thereby making Acton vicariously liable. The court rejected this argument when, on June 24, 1992, it granted summary judgment in favor of John T. Acton and John T. Acton, P.C. Atkinson appeals from this Order and argues the court erred by finding, as a matter of law, Haug was acting outside his scope of employment so as to preclude Acton’s vicarious liability.

As an appellate court we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 104, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Larsen v. Philadelphia Newspapers Inc., 411 Pa.Super. 534, 602 A.2d 324 (1991); Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusions no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before trial court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). A non-moving party may not rely merely upon controverted allegations in the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by Pa.R.C.P. 1035(b), demonstrating that a genuine issue exists. Ressler v. Jones Motor Co., 337 Pa.Super. 602, 487 A.2d 424 (1985). The court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in opposition to a motion for summary judgment and to those allegations in pleadings that are uncontroverted. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989). Nonetheless, the mere fact that a party fails to submit counter-affidavits does not automatically render summary judgment appropriate; it is preliminarily imperative that the moving party’s evidence clearly dispel the existence of any genuine factual issue. Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 528 A.2d 203 (1987). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

Before a defendant law firm can be held liable for the tortious or negligent conduct of one of its attorneys, it must be established the attorney/employee was acting within the scope of his employment or apparent authority. Moreover, where an agent acts in his own interest and commits a fraud for his own benefit in a matter which is beyond the scope of his employment, the principal who has received no benefit therefrom will not be held liable for the agent’s tortious act. Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 499 A.2d 282 (1985). Attorney malpractice claims, whether civil or criminal, bear the traditional elements of a general claim of negligence — duty, breach, causation and damages. Bailey v. Tucker, — Pa.-, 621 A.2d 108 (1993). Absent an express contract, an implied attorney/client relationship will be found if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him. Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir.1991). Apparent authority will be found where the principal, by words or conduct, leads people with whom the alleged agent deals to believe the principal has granted the agent the authority he purports to exercise. Joyner v. Harleysville Ins. Co., 393 Pa.Super. 386, 574 A.2d 664 (1990). In Pennsylvania, apparent authority flows from the conduct of the principal and not that of the agent. D & G Equipment Co., Inc. v. First National Bank of Greencastle, Pa., 764 F.2d 950 (3rd Cir. 1985).

Acton’s liability turns on the relationship between appellant and Haug. Accordingly, the key issue in this case is whether there was an attorney/client relationship between appellant and Haug or, in the alternative, the men were merely partners in an unfortunate business enterprise. We find the record, when read in its entirety, supports the truth of the latter averment and, therefore, affirm the Order granting summary judgment in favor of Acton.

Haug, an attorney employed by Acton, dabbled in real estate investments in addition to pursuing his legal career. Appellant is a college graduate and owner and president of Atkinson Freight Lines, Inc., a cargo transportation business employing approximately ninety persons. The men met socially, through a mutual friend, in 1982 and they and their wives quickly became good friends. Between 1982 and 1984 Haug admittedly handled, pro bono, a few personal legal problems for appellant. Appellant became aware of the Kingsbury venture in late 1983 when he bumped into Haug and a mutual friend who were having lunch and discussing the project. Once appellant expressed his interest, Haug explained the Kingsbury venture and appellant decided to become a one-sixth partner. Appellant testified it was his understanding he would co-sign a note for the down-payment needed to purchase the development, but his loss would be limited to a forfeiture of the real estate should the project fail. (Atkinson deposition, 8/11/88, pp. 32-34.) Appellant further believed each of the partners would net $80-$85,000 within one year, while incurring no personal liability. (Id., p. 36.) Atkinson testified when he agreed to become a Kingsbury partner he did so with the knowledge profitability would be dependent upon the ability to construct and sell the condominiums within the price range and time frame anticipated in the prospectus, yet chose not to review the project prospectus (cash review analysis) prior to executing the loan documents and relied instead on Haug’s legal expertise and another partner’s accounting experience. (Id., pp. 47, 48, 50, 52-53.)

On the morning of the April 27, 1984 closing, a surety agreement was. messengered to Atkinson’s home for his and his wife’s signatures. (Id., pp. 67-68.) Although appellant questioned his wife’s involvement which heretofore had been nil, the Atkinsons signed without reading “some kind of loan form” for $185,000, aware they would be personally liable for one-sixth of the amount. (Id., pp. 68-71.) Appellant also testified that while driving to the closing he “speed-read” the partnership agreement before signing it. (Id., pp. 60-61.) When he and Haug arrived at the closing, four hours late, appellant testified he signed, while leaning up against a wall, a $2,840,000 note, the terms and amount of which he was unaware at the time. (Id., pp. 64-66.) Appellant testified he also signed, without reading, an indemnity agreement in favor of one of the partner’s wives. (Id., pp. 86, 89.) Sometime after the closing, appellant offered to and did personally borrow an additional $85,000, secured by Atkinson Freight Lines, to cover a bad check written by one of the partners. (Id., pp. 83, 89-90.) It was appellant’s testimony he had read the indemnity agreement executed to protect this $85,000 loan. (Id., p. 89.) Atkinson testified he never asked Haug for advice and never was billed for nor offered to pay for the legal services allegedly performed by Haug. (Id., pp. 94, 95, 100.)

Looking at the totality of the circumstances, based on objective evidence presented and anticipated reasonable conduct of the parties, we find the appellant has failed to establish an attorney/client relationship with Haug. To the contrary, appellant’s testimony only established the predicament in which he now finds himself is the result of his own carelessness. Moreover, there is no indication Haug was acting with apparent authority from Acton. Accordingly, Acton cannot be held vicariously liable for Haug’s actions. The record reveals the appellant is an educated man, knowledgeable and seasoned in the business world and owner and president of a successful cargo transportation business. Prior to the Kingsbury venture, appellant had borrowed money for his personal investments and, impliedly, had knowledge of the paperwork required and its legal significance. A reasonable, sophisticated business person would not sign document after document, imputing financial liability, -without reading them. Nor would he assume so obvious a financial risk relying only on an off-handed, nebulous comment by Haug that his risk would be limited to his interest in the partnership. Furthermore, the fact Haug is an attorney by trade does not necessarily characterize each of his utterances as “legal advice,” capable of being upheld as binding in the courts of this Commonwealth. In further support of the absence of an attorney/client relationship, we rely on the facts there was no express legal agreement between the parties, no fee arrangement was entered nor retainer paid, no particular legal ramifications of the deal were discussed, appellant’s testimony offered no indication he asked Haug for legal counsel nor did Haug indicate he was Atkinson’s attorney or attorney for the project. See Sheinkopf, supra. Indeed, appellant testified he had used the services of other lawfirms prior to Kingsbury and it was Haug’s belief appellant had continued to seek outside counsel regarding the Kingsbury project.

By investing in Kingsbury, Attorney Haug merely donned his investor hat and recruited friends and acquaintances to join in what each investor believed would be a profitable venture. Appellant’s subjective belief an attorney/client relationship existed between he and Haug is an insufficient basis upon which to find there existed a genuine issue of material fact precluding summary judgment. Summary judgment on behalf of John T. Acton and John T. Acton, P.C., was properly entered.

Order affirmed.

      . The motion for summary judgment was made by John T. Acton and John T. Acton, P.C., and did not include defendant, Daniel Haug. Moreover, although he is listed as an appellee in this appeal, Haug has not filed a brief.

      . Having found there to be no attorney/client relationship, there is no need to reach the issue of the nature and extent of Haug’s apparent authority. Accordingly, reliance on Turner Hydraulics, Inc. v. Susquehanna Construction Corp., 414 Pa.Super. 130, 606 A.2d 532 (1992), wherein it was found the nature and extent of an agent’s authority is a question of fact for the jury, is misplaced. See also Joyner v. Harleysville Ins. Co., 393 Pa.Super. 386, 574 A.2d 664 (1990) (where the facts giving rise to the question of the existence of an attorney/client relationship are not in dispute, the question is properly decided by the court).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    622 A.2d 988
    COMMONWEALTH of Pennsylvania, Appellee, v. Michael Edward HYNEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1993.
    Filed April 2, 1993.

      Kathleen M. Costanza, Saul, Ewing, Remick & Saul, Philadelphia, for appellant.
    Ray F. Gricar, Dist. Atty., Bellefonte, for Com., appellee.
    Before McEWEN, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

The Appellant, Michael E. Hyneman, appeals the order of the Court of Common Pleas of Centre County denying his request for a new trial sought pursuant to the Post Conviction Relief Act (PCRA). We reverse.

Following a jury trial held on December 20, 1988, the Appellant was found guilty of two counts of statutory rape and five counts of involuntary deviate sexual intercourse (IDSI). Post-trial motions were denied and a sentence of five to fifteen years imprisonment was imposed. An appeal was perfected to both the Superior and Supreme Courts, neither of which altered the judgment of sentence.

On October 9, 1991, the Appellant, represented by counsel other than trial counsel, filed a motion seeking post-conviction collateral relief on grounds that prior counsel was ineffective. A hearing was conducted and resulted in the PCRA court’s denial of the Appellant’s motion. This appeal was filed and questions:

I. WAS DEFENDANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL’S FAILURE TO OBJECT TO TESTIMONY CONCERNING DEFENDANT’S EXERCISE OF HIS RIGHT TO REMAIN SILENT?
II. WAS TRIAL COUNSEL INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE AND PRODUCE AVAILABLE ALIBI WITNESSES?
III. WAS TRIAL COUNSEL INEFFECTIVE DUE TO HIS FAILURE TO CALL A CHARACTER WITNESS CONCERNING THE ALLEGED VICTIM’S POOR REPUTATION IN THE COMMUNITY FOR TRUTHFULNESS?
IV. WAS TRIAL COUNSEL INEFFECTIVE FOR HIS FAILURE TO INTERVIEW AND ADEQUATELY CROSS-EXAMINE A WITNESS FOR THE COMMONWEALTH?

It is axiomatic that in order for the Appellant to establish a claim of ineffective assistance of counsel, he must first demonstrate that the underlying claim is of arguable merit; that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his interest; and that the commission or omission so undermined the trial that the verdict is unreliable. Commonwealth v. Carpenter,

Pa.-, 617 A.2d 1263, 1265 (1992). With these precepts in mind, we need only consider the first reason advanced to support the argument that trial counsel was ineffective and mandates reversal of the PCRA court’s order and the grant of a new trial.

At trial, Pennsylvania State Trooper Sally Porter Brown commented upon the Appellant’s silence and request for counsel after advising him of his Miranda rights. The substance of the complained-of remark arose in the course of the following exchange:

[Assistant District Attorney:]
Q Did you have an opportunity to talk to Michael Hyneman?
[Pennsylvania State Trooper Brown:]
A The opportunity I had to talk with Michael Hyneman was after we had brought him back to Centre County, and I had an opportunity to take him to the State Police barracks in an attempt to interview him. At that time I had advised him of his rights, and he had indicated that he preferred not to make any statements until he consulted an attorney. I asked him if he would be willing to give me some basic information for the police report, and he indicated he would. Q What was that basic information that he gave you for the police report?
A Basic information would include his proper and full name, his current address, his date of birth, his social security number, height, weight, place of birth, current employer.

N.T. 12/20/88 at 116-117 (Emphasis added).

In this jurisdiction, it is a clear violation of the accused’s constitutional right against self-incrimination to make a reference at trial to his silence while in police custody. Beginning with Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765, 766-67 (1972), our Supreme Court declared:

Testimonial reference to an accused's silence and his request for a lawyer at time of arrest is a constitutionally impermissible violation of the accused's Fifth Amendment right. In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.” Id. at 615, 85 S.Ct. at 1233.
The difference between prosecutorial use of an accused’s silence at trial and the use of an accused’s silence at time of arrest is, as one court stated, “infinitesimal.” Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 587 (1968). In both instances, the defendant’s silence is exploited as evidence of guilt. As the Fifth Circuit observed, “[w]e would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Walker v. United States, 404 F.2d 900, 903 (5th Cir.1968). It is clear that “[t]he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Slochower v. Board of Higher Ed. of N.Y., 350 U.S. 551, 557, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956).
The Seventh Circuit in United States v. Kroslack, 426 F.2d 1129 (7th Cir.1970), relied on Griffin in concluding that testimony similar to that utilized here was inadmissible. That court said:
“It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. Baker v. United States, 5 Cir., 357 F.2d 11 (1966). Defendant had a constitutional right to refuse to make a statement until his request that a lawyer be present was met. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). [sic] We find little difference between the prejudice resulting from the testimony admitted in the case before us, and a prosecutor’s comment before a jury on a defendant’s exercise of his constitutional right not to take the witness stand. Such comments have been held to be reversible error. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The testimony elicited here could well have led the jury to infer guilt from defendant’s refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty.” [Citations omitted; footnote omitted; emphasis added in part]

In Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826, 828 (1976), the same Court wrote:

The law is clear. It is reversible error to admit evidence of a defendant’s silence at the time of his arrest. The prohibition of any reference to an accused’s silence reflects the court’s desire that an accused not be penalized for exercising his constitutional rights. It is a recognition that most lay persons would view an assertion of the constitutional privilege as an admission of guilt. [Citations omitted; emphasis added]

See also United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37, 16 L.Ed.2d 694 (1966); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

The fact that Trooper Brown made reference to the Appellant providing general information after invoking his right to remain silent and to consult with counsel does little to dissipate the taint associated with reference to the Appellant’s invocation of his constitutional rights. As much was stated by this Court, sitting en banc, in Commonwealth v. Williams, 252 Pa.Super. 435, 381 A.2d 1285 (1977), allocatur denied.

In Williams, a police officer testified that, after arrest and advisement of the Defendant’s rights, the accused gave information of how he happened to be in possession of the victim’s vehicle and then “he elected to remain silent.” Trial counsel objected to the officer’s remark and requested a mistrial. The motion was denied and no cautionary instructions were given. In vacating the judgment of sentence and remanding for a new trial, this Court concluded that the officer’s testimony, in the absence of a cautionary instruction, could not be considered harmless error. In doing so, we examined a collection of cases; to-wit:

In Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976), our Supreme Court, in a plurality opinion per EAG-EN, J., held that reference to an accused’s silence at the time of his arrest could be harmless error provided, that the trial court gave adequate cautionary instructions. In particular, the Court concluded that a cautionary instruction could cure an error abridging the defendant’s right to remain silent if, for example, the nature of the reference was indirect and was not exploited by the District Attorney.
In Commonwealth v. Hinds, 244 Pa.Super. 182, 366 A.2d 1252 (1976), our Court concluded that the trial court committed reversible error by admitting the testimony of a police officer that the defendant, charged with involuntary manslaughter, failure to stop at the scene of an accident, and failure to stop and render assistance, proffered the following statement after being warned of his Miranda rights: “ ‘I don’t want to say anything until I talk to my attorney, but I will say this: I passed a car, and, when I did, the car splashed my windshield. I didn’t see anything. I didn’t see the girl. I didn’t know that I hit her. I did stop and look.’ ” Id. at 190, 366 A.2d at 1256. Our Court reiterated that Commonwealth v. Greco, supra, prohibited any reference to the accused’s invocation of his constitutional right to remain silent and stated that “... the fact that a defendant had made a voluntary statement to the police would not change our holding that testimonial reference to an accused’s assertion of his rights, whether made at the time of his arrest or at some later time, is prejudicial and requires that a new trial be granted.” 244 Pa.Super. [at] 191, 366 A.2d at 1257.
Finally, in Commonwealth v. Mitchell, 246 Pa.Super. 132, 369 A.2d 846 (1977), our Court granted a new trial because the arresting police officer gave the following testimony:
“I then asked him about the burglary at Doctors Brady, Kegel and France Offices, and he denied any knowledge of the burglary.
“I then confronted him with the lug wrench [found at the scene of the burglary] and told him that this is how I broke the case, and he immediately made recognition of the lug wrench. He said, oh, that was ripped off, stolen from my apartment sometime in April or May, along with a stereo set. He said, I have a lot of Toyota tools in my apartment. I then advised him that I had contradictory information regarding his possession of the lug wrench, and then he said he had no more to say and would commit suicide.”
We stated that “[t]he right not to have one’s silence used against one does not depend upon whether the right is asserted at the beginning of interrogation or later one.” 246 Pa.Super. at 137, 369 A.2d at 848. We concluded that the testimony, in the absence of a cautionary instruction, could not be considered harmless error.
Reading Greco, Maloney, Hinds, and Mitchell together, we believe[d] that our appellate courts ha[d] found any reference to an accused’s silence after arrest to be reversible error unless the trial court give a prompt and adequate cautionary instruction.

252 Pa.Super. at 444-6, 381 A.2d at 1290-91 (Emphasis in original; footnote omitted).

In light of the preceding, it cannot be gainsaid that the Appellant’s claim is of arguable merit. Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717, 720 (1977). As such, we need to proceed to make inquiry into the basis for counsel’s decision not to lodge an objection at trial. Id.; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695-96 (1977).

The testimony at the PCRA hearing reveals that trial counsel’s failure to object was not a part of a reasonable, calculated trial strategy. Contrast Humphrey, supra; Com monwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978). Rather, he did not object to Trooper Brown’s statement because he “simply didn’t hear her say that.” N.T. 1/13/92 at 27. This certainly cannot be equated with “some reasonable basis” designed to advance the Appellant’s interest. See Humphrey, supra; Commonwealth v. Russo, 283 Pa.Super. 421, 424 A.2d 536, 537 (1980).

In this jurisdiction, in the absence of curative instructions, reference to a Defendant’s silence once he/she is advised of his/her rights is “reversible error”. See Humphrey, supra; Greco, supra; Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Haideman, supra.

Therefore, the Appellant was prejudiced by his trial counsel’s inaction. See Humphrey, supra; Russo, supra. To attempt to draw any other conclusion would be to speculate on the matter. This we may not do. Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537, 540 (1982). “As we cannot be sure that the jury would have resolved the issue [of the Appellant’s guilt] in the same manner absent the improper reference, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict. Far from being harmless error, the reference may well have impermissibly contributed to the verdict.” Id.

Since Hyneman was denied the effective assistance of trial counsel, the order of the PCRA court denying him relief is vacated, judgment of sentence is reversed, and a new trial is granted.

Order vacated, judgment of sentence reversed, and a new trial is granted. Jurisdiction is relinquished.

      . 42 Pa.C.S.A. § 9541 et seq. (Supp. 1992-93).

      . The Appellant surrendered himself to Harry Louis Haas, Chief of Police of Narvon Township, Lancaster County, Pennsylvania when he learned that the Pennsylvania State Police were looking for him. N.T. 12/20/88 at 148.
      The Appellant was arrested by the State Police in Lancaster County and transported to Centre County, after which he was questioned by Trooper Brown at the State Police barracks. N.T. 12/20/88 at. 116 & 154.

      . Of necessity, this undermines the PCRA court's reliance upon Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978), wherein no curative instructions were requested although a motion for a mistrial was made and denied. There, counsel indicated that highlighting the objectionable testimony (by giving special instructions thereon) might reinforce the statements and their potential prejudicial impact in the jurors’ minds. We agreed and declared:
      Had counsel desired curative instructions in the instant case, he could have requested them. It is clear that counsel should likewise be permitted to request that the court not give curative instructions sua sponte. In hindsight, counsel’s decision to forego curative instructions may prove to have been a tactical error; it is likewise irremediable. In every case, it is a tactical decision to be made by defense counsel, and the rendering of an unfavorable verdict should not entitle a defendant, who did not elect to protect himself to the maximum in his first trial, to an automatic retrial.
      253 Pa.Super. at 464, 385 A.2d at 431-32 (Emphasis added). Quartman is distinguishable from the case at bar in that trial counsel here engaged in no “tactical” decision when Trooper Brown's testimony was admitted without objection. See discussion infra. Thus, Quart-man is not persuasive authority to hold that the Appellant is not entitled to a new trial to remedy the reversible error.

      . See Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593, 599-98 n. 11 (1990), allocatur denied; Commonwealth v. Melvin, 378 Pa.Super. 59, 548 A.2d 275, 278 (1988), allocatur denied; Commonwealth v. Gbur, 327 Pa.Super. 18, 474 A.2d 1151, 1156 (1984); Commonwealth v. Zellner, 268 Pa.Super. 59, 407 A.2d 436, 439 (1979); Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429, 432 (1978).
      Additionally, we would observe that “inadvertence” in eliciting the complained-of response and the absence of “exploitation” of the Defendant on the part of the prosecution do not, in the absence of a curative instruction, diminish the gravity of the error. Gbur, supra.


author: KELLY, Judge.

text:
    622 A.2d 992
    Eugene C. MURPHY and Carol J. Murphy, Appellants, v. Robert R. ARMSTRONG, Dominic La Rosa, William J. Carson, Jr. d/b/a Carson Bros., Purity-Standard, Miller & Cornell, Inc. and John N. Weiss, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed April 5, 1993.

      Neil M. Krum, Jenkintown, for appellants.
    Thomas Coval, Willow Grove, for La Rosa, appellee.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   KELLY, Judge.

In this appeal, we are called upon to determine whether a trial court was authorized to dismiss a complaint with prejudice because the plaintiff violated a local rule by failing to file a brief in response to a defendant’s demurrer. We conclude that a local rule allowing for dismissal for failure to file a brief violates the express dictates of Pennsylvania Rule of Civil Procedure 239(f). Therefore, we reverse the trial court’s order which dismissed with prejudice the underlying action in this case.

On July 23, 1991, appellants filed their complaint against several defendants, including appellee. Appellant alleged that the several defendants, as builders and/or sellers of appellants’ new house, were responsible for damages caused by impure water. Appellants alleged that black soot in their water supply caused damage to their clothing and was unhealthy for ordinary consumption and use. They further alleged that some remedial measures had been taken, to no avail, and that proper remediation would be highly costly.

Appellee-LaRosa filed preliminary objections in the nature of a demurrer and in the nature of a motion to strike on August 12, 1991. The basis for appellee’s demurrer was that he had no contractual relations with appellants and that he owed appellants no other legal duties. Appellee requested the court to dismiss appellants’ complaint as to him.

On October 4, 1991, appellants filed an answer to appellee’s preliminary objections. In their answer, appellants maintained that their complaint had stated a cause of action. They emphasized that their complaint had characterized appellee as a builder and repeated their assertion that he was liable for breach of contract, negligence, and fraud.

Appellee filed an argument praecipe and brief in support of his preliminary objections on November 21, 1991. Appellants did not file a responsive brief within thirty days. On January 14, 1992, the trial court concluded that appellants had violated Montgomery County Local Rule *302(f). Therefore, the court entered an order precluding appellants from participating in oral argument and directing them to file a brief in support of their position against the demurrer within twenty days. Appellants did not file a brief within twenty days of that order. On March 6, 1992, because of appellants’ failure to file a brief pursuant, to Montgomery County R.CÍV.P. *302(f), the court sustained appellee’s preliminary objections and dismissed appellants’ complaint without leave to amend. This timely appeal followed.

On appeal, appellants present the following questions:

1. DID THE COURT BELOW COMMIT REVERSIBLE ERROR BY DISMISSING PLAINTIFFS’ COMPLAINT WITHOUT LEAVE TO AMEND, FOR FAILURE TO COMPLY WITH A LOCAL RULE?
2. DID THE COURT BELOW COMMIT REVERSIBLE ERROR BY SUSTAINING THE PRELIMINARY OBJECTIONS OF DOMINIC LaROSA, AND DISMISSING PLAINTIFFS’ COMPLAINT WITHOUT LEAVE TO AMEND, WITHOUT CONSIDERATION OF PLAINTIFFS’ COMPLAINT AND ANSWER TO PRELIMINARY OBJECTIONS?

Appellants’ Brief at 3. Appellants argue that Pennsylvania Rule of Civil Procedure 239(f) is directly on point and that it precludes dismissal based upon their failure to comply with a local court rule. In response, appellee maintains that a Commonwealth Court decision, Appeal of Lynch Community Homes, Inc., 105 Pa.Cmwlth. 29, 522 A.2d 716 (1987), which has upheld Montgomery County R.Civ.P. *302(f), applies in this case. For the following reasons, we agree with appellants that Pa.R.Civ.P. 239(f) controls the outcome of the instant appeal.

Courts of common pleas “possess authority to make rules for the operation of their own court system as long as such rules are not contrary to those promulgated by the Pennsylvania Supreme Court.” Miller v. Hild, 303 Pa.Super. 332, 334, 449 A.2d 714, 715 (1982), citing 42 Pa.C.S.A. § 323 and Mikita v. Bailey Homes, Inc., 265 Pa.Super. 399, 401 A.2d 1367 (1979). See also Pa.R.Civ.P. 239(b)(1) (“Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.”).

Our Supreme Court has promulgated the following rule of civil procedure, which applies to all courts of common pleas:

No civil action or proceeding shall be dismissed for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901.

Pa.R.Civ.P. 239(f). This rule is to be interpreted in order to effectuate the intention of our Supreme Court, Pa.R.Civ.P. 127(a), and the words used “shall be construed according to rules of grammar and according to their common and approved usage.” Pa.R.Civ.P. 103(a). Furthermore, the rules shall be justly applied to avoid affecting substantial rights merely because of a procedural default. Pa.R.Civ.P. 126.

Notwithstanding Pennsylvania Rule of Civil Procedure 239(f), Montgomery County has provided the following local rule of court.

Rule *302. Argument Court-Appealable Matters,
(f) Briefs. The brief of the moving party shall be filed within thirty (30) days of the date of filing of the praecipe for argument unless otherwise directed by the judge assigned to the case. The brief of the respondent shall be filed within thirty (30) days of the date of the filing of the moving party’s brief. The moving party and the respondent each shall file with the court administrator one copy each of their respective briefs together with certification of said briefs upon opposing parties. In matters subject to court en banc, two copies of the brief of each party shall be filed with the court administrator. If the brief of either the moving party or the respondent is not timely filed, the judge assigned to the case may:
(1) Dismiss the petition, motion or preliminary objection where the moving party has failed to comply.
(2) Grant the requested relief where the respondent has failed to comply.
(3) List the matter for argument at which time only the complying party shall be heard, or
(4) Impose such other sanctions upon the noncomplying party as the judge assigned to the case shall deem proper. No extension of time for the filing of briefs by agreement of the parties shall be permitted unless approved by the judge assigned to the case upon written request.

(emphasis added). In the instant case, the trial court granted the relief which appellee sought, i.e., dismissal of appellants’ complaint as to him, pursuant to *302(f)(2) (court may grant requested relief where respondent failed to comply). Such a dismissal pursuant to a local rule violates Pennsylvania Rule of Civil Procedure 239(f), which proscribes the dismissal of an action for noncompliance with a local rule. The sanction of dismissal for noncompliance with Montgomery County R.Civ.P. *302(f) is unauthorized, Pa.R.Civ.P. 239(f), and therefore, has no legal effect. A dismissal pursuant to that local rule is null.

Appellee’s reliance on Appeal of Lynch Community Homes, Inc., 105 Pa.Cmwlth. 29, 522 A.2d 716 (1987) is misplaced. In Appeal of Lynch Community Homes, supra, the appellate court was presented with “the question of when it is appropriate to reinstate a case which has been dismissed for failure to prosecute.” Id. at 36, 522 A.2d at 719, citing Alston v. Philadelphia Elect. Co., 337 Pa.Super. 46, 486 A.2d 473 (1984). The lower court had dismissed the action because the appellant therein had failed to free the case, by filing a responsive brief, from nearly two years of inactivity. Accordingly, the Commonwealth Court noted that its application of the local rule in that case did not violate Pennsylvania Rule of Civil Procedure 239(f) because, as applied, the local rule allowed dismissal of an inactive case pursuant to Pennsylvania Rule of Judicial Administration 1901. Id. at 32 n. 2, 522 A.2d at 717-18 n. 2. For the following reasons, the application of Montgomery County Local Rule *302(f) to stale, inactive cases is limited to the facts and procedural posture of Appeal of Lynch Community Homes, Inc., supra.

Rule 239(f) proscribes dismissal of an action pursuant to a local court rule unless the rule was “promulgated under Rule of Judicial Administration 1901.” Rule 1901 of the Pennsylvania Rules of Judicial Administration provides:

RULE 1901. PROMPT DISPOSITION OF MATTERS; TERMINATION OF INACTIVE CASES
(a) General Policy. It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.
í¡: }{s ^ # sft sis
(c) Minimum Standards. Before any order terminating a matter on the ground of unreasonable inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on such proposed termination, which notice shall be given:
(1) In person or by mail to the last address of record of the parties or their counsel of record and setting forth a brief identification of the matter to be terminated; or
(2) By publication in the manner provided by rule of court in the legal newspaper designated by rule of court for the publication of legal notices in any case where notice by mail cannot be given or has been returned undelivered or where the docket of the matter shows no evidence of activity during the previous two years. Any matter terminated after notice by publication pursuant to this paragraph may be reinstated by the court after dismissal upon written application for good cause shown.

Therefore, this rule of judicial administration was promulgated to allow courts of common pleas to devise processes to dispose of stale, inactive cases. See Pa.R.J.A. 1901 (Note). Moreover, the note accompanying Rule 1901 suggested a form of local rule for the courts of common pleas to adopt. Id.

Montgomery County has adopted a rule specifically for this purpose. Its Rule *406 provides:

Rule *406. Termination of Inactive Cases.
A. The prothonotary shall annually prepare a list of all civil cases commenced in which no activity appears on the docket for two years or more immediately prior thereto. He shall give notice thereof to counsel of record and to the parties for whom no appearance has been entered that said cases shall be marked terminated on the docket unless an Activity Status Certificate is filed with the prothonotary within thirty (30) days after service of the said notice by mail, in person or by publication on counsel of record and to those parties for whom no appearance has been entered. Said cases shall be marked terminated on the docket unless an Activity Status Certificate is filed with the prothonotary within such time. All matters so terminated may not be reinstated except with leave of court, for cause shown.

A comparison between Montgomery County Rule of Civil Procedure *406 and *302(f) indicates that only Rule *406 was promulgated pursuant to Rule of Judicial Administration 1901, while the rule at issue, Rule *302(f), is related to the filing of briefs for arguments before the court. Therefore, a dismissal pursuant to Montgomery County Rule of Civil Procedure *302(f) is not authorized under Pennsylvania Rule of Civil Procedure 239(f)’s exception for dismissal for inactive cases.

Both parties cite Byard F. Brogan, Inc. v. Holmes Elect. Prot. Co., 501 Pa. 234, 460 A.2d 1093 (1983) [Brogan] in support of their arguments. Brogan was decided on May 27, 1983 before Pa.R.Civ.P. 239(f) became effective on July 1, 1983. Therefore, when the Pennsylvania Supreme Court decided Brogan and struck down a prior version of Montgomery County’s local rule allowing for automatic dismissal for failure to file a brief, it decided whether the local rule was contrary to the Pennsylvania Rules generally. See id. at 242, 460 A.2d at 1097 (“We hold that the mandatory strict enforcement required by [Montgomery County Local] Rule 302(d) is inconsistent with the Pennsylvania Rules of Civil Procedure and the fairness mandated by Rule 126.”). Likewise, the Supreme Court did not decide whether the local rule violated a statewide rule specifically proscribing dismissal by local rule.

Although Brogan held that a court must exercise its discretion in determining whether to dismiss an action for the party’s failure to comply with a local rule requiring the filing of a brief, the Supreme Court’s more recent pronouncement, in the form of Rule 239(f), which became effective less than two months after the Brogan decision, strictly prohibits the dismissal of cases for noncompliance with local rules. This stricter, later Supreme Court action prevails. Pursuant to Rule 239(f), as opposed to Brogan, a local rule may not provide for dismissal (except for dismissal of inactive cases), even if dismissal is said to be discretionary as opposed to automatic.

We hold that the trial court erred in dismissing appellants’ complaint with prejudice, because the dismissal pursuant to Montgomery County Rule of Civil Procedure *302(f) violates Pennsylvania Rule of Civil Procedure 239(f). Accordingly, we reverse the trial court’s order dismissing appellants’ complaint with prejudice and remand to the trial court for proceedings not inconsistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

      . Appellants and appellee-LaRosa are the only parties to this appeal.

      . Although the court dated the order on March 6, 1992, it was not filed until March 9, 1992. Therefore, appellant’s appeal on April 6, 1992 was timely. See 42 Pa.C.S.A. § 5571(a) (providing that time limit for appeals is by rule); Pa.R.App.P. 903(a) (appeal “shall be filed within thirty days after the entry of the order from which the appeal is taken”); Pa.R.A.P. 108(b) (date of entry is when clerk makes notation in docket that notice of entry of the order has been given to all parties). See also Yeaple v. Yeaple, 485 Pa. 399, 403, 402 A.2d 1022, 1024 (1979); Speight v. Burens, 371 Pa.Super. 478, 481 n. 3, 538 A.2d 542, 543 n. 3 (1988).

      . See also Davison v. John W. Harper, Inc., 342 Pa.Super. 560, 566, 493 A.2d 732, 735-36 (1985) (noting that Rule 239(f) prevents the dismissal of actions for noncompliance with local rules not in conformity with Pa.R.J.A. 1901); City of Philadelphia v. Silverman, 91 Pa.Cmwlth. 451, 497 A.2d 689 (1985) (Rule 239(f) bars dismissal for noncompliance with local rule).

      . The Pennsylvania Rules of Civil Procedure do not mandate that a brief be submitted to support an answer to preliminary objections. Indeed, a party must file an answer to preliminary objections "only when the preliminary objection alleges facts not of record.” Pa.R.Civ.P. 1017(a), (Note), citing Pa.R.Civ.P. 1028(c)(2), (Note).

      . The cases relied upon in Appeal of Lynch Community Homes, Inc., supra, enforced local rules which were specifically promulgated to dismiss inactive cases. See Winger v. Crowthers, Inc., 353 Pa.Super. 369, 510 A.2d 355 (1986) (review of trial court’s dismissal pursuant to Chester County Rule of Civil Procedure 214.4); Taylor v. Oxford Land, Inc., 338 Pa.Super. 609, 488 A.2d 59 (1985), affirmed per curiam, 513 Pa. 34, 518 A.2d 808 (1986) (reviewing trial court’s termination of action pursuant to Allegheny County Rule of Civil Procedure 229(e)).

      . The companion case to Brogan, DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730 (1983), was also decided on May 27, 1983, before Pa.R.Civ.P. 239(f) became effective.

      . We note that a panel of this Court has followed the Brogan decision in a case decided shortly after Rule 239(f) became effective. See Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983). However, in Ricci, the court did not discuss and the parties did not argue the application of Rule 239.

      . Due to our disposition of appellant’s first question, the issue of whether the trial court abused its discretion in applying a valid local rule is moot.


author: HUDOCK, Judge:

text:
    622 A.2d 1380
    Roger MEINHART and Grace Meinhart, Appellants, v. Dorothy Lucille HEASTER, Edna G. Hall, Betty Jean Flanagan, Joanna Beth Edwards, Jennie Larue Johnson, Stephen Clark McClain, and Barry Ernest McClain, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed April 7, 1993.

      Roger Meinhart, pro se.
    William J. Myers, Huntingdon, for Heaster, Hall, Flanagan & Edwards, appellees.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the order of the trial court which, inter alia, granted Appellees’ preliminary objections and dismissed Appellants’ claim for breach of a lease-purchase agreement. We affirm in part and reverse in part.

The facts and procedural history may be summarized as follows: On March 22, 1988, the parties entered into a written lease and option to purchase certain realty which Appellees jointly owned. On October 22, 1990, Appellants filed a complaint in which they alleged that Appellees’ failure to deliver “clear and marketable title” caused Appellees to breach the lease-purchase agreement (Agreement). As a consequence, Appellants alleged that they were denied the full use, enjoyment and rights to the property. On November 19, 1990, Appellees Jennie LaRue Johnson (Johnson) and Stephen Mark McClain (Stephen McClain) filed preliminary objections to Appellants’ complaint in the nature of a demurrer and pendency of a prior action. On November 27, 1990, the remaining Appellees also filed preliminary objections, in the nature of a demurrer, averring that they had fully complied with the terms of the written Agreement. Thereafter, the trial court granted the preliminary objections. As to the preliminary objections filed by Johnson and Stephen McClain, the trial court found that pending prior actions filed by Appellants barred the present suit. As to the remaining Appellees, the trial court dismissed the suit against them on the grounds that they had fully complied with the terms of the Agreement.

Appellants raise the following issues on appeal:
A. Did the Trial Court commit error in granting the Preliminary Objections of Appellees, Dorothy Lucille Heaster, Edna G. Hall, Betty Jean Flanagan, Joanna Beth Edwards and Barry Ernst [sic] McClain, in the nature of a demurrer to Plaintiffs’ Complaint?
B. Did the Trial Court commit error in granting Preliminarys [sic] Objections of Appellees, Stephen Clark McClain and Jennie LaRue Johnson, in the nature of pendency of prior action?
C. Did the Trial Court Judge commit error in refusing to recuse himself from the case?

Appellants’ Brief at p. 8. We will discuss and dispose of the above claims in the order in which they are raised. Initially, however, we must determine whether the present appeal is properly before us.

An order dismissing some, but not all, counts of a multi-count complaint is generally interlocutory and not immediately appealable. Holmes v. Lado, 412 Pa.Super. 218, 602 A.2d 1389 (1992), alloc. den., 530 Pa. 660, 609 A.2d 168; Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). “[I]f the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appealable; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable.” Motheral v. Burkhart, 400 Pa.Super. 408, 416, 583 A.2d 1180, 1185 (1990); Praisner v. Stocker, supra.

In the case sub judice, the appeal is taken from an order dismissing one count of a multi-count complaint; the trial court dismissed the claim for breach of the Agreement, while permitting a defamation claim against Appellees to continue. It is clear from the record that the breach of contract claim, although somewhat related factually, is separate and distinct from the defamation claim. The present appeal, therefore, is properly before us. Thus, we shall address the merits of Appellants’ claims.

Appellants first claim that the trial court erred in dismissing their claim against the several Appellees because, although they have fully complied with the terms of the Agreement, they remain jointly and severally liable for the failure of Johnson and Stephen McClain to comply -with the contract terms. Preliminary objections which result in the dismissal of a cause of action will be sustained only in cases which are clear and free from doubt. Ambrose v. Cross Creek Condominiums, 412 Pa.Super. 1, 602 A.2d 864 (1992). Thus, using this standard, we must determine whether the several Appellees are jointly and severally liable with Johnson and Stephen McClain.

It is well-settled that “[pjromises made by two or more persons are presumed to be joint and not several or joint and several in the absence of an apparent intention to the contrary.” Levin v. Fidelity-Philadelphia Trust Co., 358 Pa. 124, 128, 56 A.2d 239, 241 (1948); Yadusky v. Shugars, 301 Pa. 99, 102, 151 A. 785, 786 (1930). The intention of the parties must be determined from the language used in the contract in question. Levin v. Fidelity-Philadelphia Trust Co., supra. Appellants claim that joint and several liability is imposed on all Appellees in the present case by virtue of the language of Paragraph 14 of the Agreement. This Paragraph reads, “This Agreement shall be binding on the parties and their heirs, successors and assigns.” Appellants state, “The general rule of law is that an obligation by more than one party and ‘their heirs, successors and, [sic] assigns’ shall be construed as a joint and several obligation.” Appellants’ Brief at p. 14. Appellants cite Yadusky v. Shugars, supra, to support this proposition. Appellants’ statement misrepresents the holding in Yadusky. In that case, our Supreme Court found that the fact that the parties bound “themselves, their heirs, executors and administrators,” was consistent with the contention of a joint and several obligation. Id. at 103, 151 A. at 786. Our Supreme Court in Yadusky, however, actually determined the liability therein was joint and several because the language in the contract, whereby the parties agreed to be held “personally liable”, was tantamount to an agreement to being severally liable.

In the present case, Appellants have admitted in their pleadings that all Appellees, except Johnson and Stephen McClain, have delivered deeds to the property as required by the Agreement. Because the remaining Appellees are merely jointly liable and have complied with the terms of the Agreement, we affirm that part of the trial court’s order dismissing Appellants’ breach of contract action against them.

Appellants next claim that the trial court erred in dismissing their contract action against Johnson and Stephen McClain on the basis of pendency of a prior action. Once again, we note that we should affirm the grant of preliminary objections which result in the dismissal of a cause of action only in cases which are clear and free from doubt. Ambrose v. Cross Creek Condominiums, supra. In order to sustain preliminary objections on the basis of pendency of a prior action, the court must determine that, in each case, the same parties were involved, the same rights were asserted, and the same relief was sought. Penox Technologies, Inc. v. Foster Medical Corp., 376 Pa.Super. 450, 546 A.2d 114 (1988); Procacina v. Susen, 301 Pa.Super. 392, 447 A.2d 1023 (1982).

In the present case, although they fully admit that they also have filed a quiet title action (No. 89-175), and a separate action in equity seeking specific performance of the Agreement (No. 89-176), Appellants argue that the doctrine of pending prior action does not apply. We agree. In neither of the prior actions mentioned above do Appellants seek the same remedy as that requested in the instant action, i.e., money damages. Consequently, we find that the trial court erred in sustaining the preliminary objections of Johnson and Stephen McClain on the basis of the pendency of a prior action. We therefore reverse the order of the trial court and remand the contract claim count of the complaint for trial along with the remaining defamation count.

Appellants’ final claim is that the trial court erred in failing to recuse itself. Generally, this decision is not a “final order” which terminates the litigation and is not appealable. See Meinhart, et ux. v. Heaster, et. al., No. 561-566 Harrisburg 1991 (per curiam order quashing interlocutory appeals from trial court order denying recusal request). However, were we to address the issue, we would find it moot inasmuch as the judge involved is no longer on the bench and will have no further involvement with the case. Any of his actions complained of by Appellants up to this point have been reviewed by us and either affirmed as proper or corrected by reversal.

Order affirmed in part and reversed in part. The matter is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . We note that the newly amended Rule 341(c) of the Pennsylvania Rules of Appellate Procedure, 42 Pa.C.S., specifically addresses the procedure to be followed with regard to the entry of a final order which disposes of "one or more but fewer than all” of the claims of the parties. These amendments govern actions commenced after July 6, 1992. Because the present action was commenced prior to that time, we decide the finality of the order in accordance with the above case law.

      . We note that Appellants were not required to join their contract claim with their prior actions to quiet title and for specific performance. Compulsory joinder is required only of actions that were previously labeled assumpsit or trespass, categories that do not include quiet title actions or actions in equity. See Pa.R.C.P. 1020; D’Allessandro v. Wassel, 526 Pa. 534, 587 A.2d 724 (1991).


author: CAVANAUGH, Judge:

text:
    622 A.2d 1383
    Harold I. LORAH, Appellant, v. LUPPOLD ROOFING COMPANY, INC., H.B. Alexander & Son, Inc., AT & T Technologies, Inc., Western Electric Company, Inc. and D.B. Diefenderfer & Bro. Inc., and E.R. Stuebner, Inc., Pavex, Inc., Dries Paint and Hardware, Inc. and Lynn Ladder & Scaffolding Co., Inc.
    Superior Court of Pennsylvania.
    Submitted Feb. 11, 1993.
    Filed April 7, 1993.

      Louis Cambria, Philadelphia, for appellant.
    Bernard L. Coates, Jr., Harrisburg, for Luppold Roofing, appellee.
    Daniel E. P. Bausher, Reading, for Alexander & Son, appellee.
    John W. Roland, Reading, for AT & T Technologies, appellee.
    John J. Hart, Doylestown, for Stuebner, Inc., appellee.
    Before CAVANAUGH, CIRILLO and WIEAND, JJ.
   CAVANAUGH, Judge:

This appeal' is from an order granting the motion for summary judgment raised by appellee AT & T Technologies and appellee Western Electric Company, Inc.. On appeal, appellant Harold Lorah claims that the lower court erred in determining that as a matter of law the Peculiar Risk Doctrine, an exception to the general rule that an employer of an independent contractor is not liable for the physical harm due to the negligence of the contractor or his servants, is not applicable. He claims that our prior precedent militates that we impose vicarious liability on the appellees for the negligence of their independent contractor and/or his servants. After reviewing the relevant case law and the parties’ briefs, we find that the lower court appropriately granted summary judgment in this case. We affirm.

On February 23, 1983, Harold Lorah sustained serious personal injuries when he attempted to descend an unsecured ladder into an excavation pit carrying rebars. The accident occurred while he was working at a construction job known as Building 35, Western Electric Reading Works, in Reading, Pennsylvania. Appellees AT & T Technologies, Inc., and Western Electric Company, Inc., owned the construction site. At the time of the accident, the appellant was employed as an iron worker by E.R. Stuebner, Inc., who is an additional defendant to this lawsuit.

On the day of the accident, the appellant was working in and around an excavation pit. In his deposition testimony, the appellant admitted that he had used the ladder at least once before the accident to climb down into the excavation pit and take measurements. While taking measurements, the appellant remained in the excavation pit for a period of approximately fifteen minutes. He did not examine the ladder before ascending it, although he knew the top of the ladder was not tied down. After ascending the ladder, he picked up four or five rebars, weighing a total of approximately twenty-five to thirty pounds, and attempted to descend the ladder a second time. After traveling two steps down the ladder, the appellant felt the feet of the ladder move away from him, and then the ladder fell, causing the appellant to fall. The appellant fell and landed on a concrete pan on the floor of the excavation pit sustaining serious personal injuries.

The appellant filed a complaint for injuries arising from the above accident on February 21, 1985. The court denied AT & T/Western Electric’s first motion for summary judgment on April 13, 1988. After discovery was substantially completed, AT & T/Western Electric filed another motion for summary judgment. This motion was granted by the court on April 15, 1992. The court noted preliminarily that the appellant had failed to present practically any material in opposition to the motion for summary judgment. The Court went on to find that as a matter of law, AT & T/Western Electric were entitled to summary judgment.

The Court noted that the general and well-established rule that the employer of an independent contractor is not liable for physical harm caused another by an act or omission of the contractor or his servants. Hader v. Coplay Cement Co., 410 Pa. 139, 150, 189 A.2d 271, 277 (1963); Ortiz v. Rar-El Development Corp., 365 Pa.Super. 48, 52, 528 A.2d 1355, 1357 (1987), alloc. den. 517 Pa. 608, 536 A.2d 1332 (1987). The Court stated that one exception to the general rule of nonliability is when the owner or employer of the independent contractor retains significant control over work delegated to the contractor. The court acknowledged another exception to the general rule lies where there exists a “peculiar” or “special” danger in the work. The court declared that the former exception does not apply because the on-site advisors of AT & T/Western Electric only monitored and inspected the work and did not exercise any control over it. The court declared the latter exception did not apply because the dangerous condition posed by the unsecured ladder arose because of the failure to take routine precautions. The court finally held as an alternative basis for its disposition that the appellant knowingly assumed the risk of descending an unsecured ladder while carrying a heavy load. It is from the court’s grant of summary judgment as to AT & T Technologies/Western Electric that the appellant now appeals.

On appeal, the appellant has only challenged the court’s ruling that as a matter of law, the Peculiar Risk Doctrine does not apply. The appellant believes the focus of our inquiry should be whether the plaintiffs working conditions were unreasonably dangerous, and, not surprisingly, claims such an inquiry is fact sensitive and thus a question for the trier of fact to answer. Here, the appellant claims he was permitted to move rebars down an unsecured ladder in violation of known safety standards. Although admitting that moving rebars into an excavation pit is not in and of itself unreasonably dangerous, appellant asserts that a jury could find that the way this task was undertaken, through the use of an unsecured ladder, created a “special” or “peculiar” danger.

The law relating to summary judgment is settled. A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Intili v. Salak, 403 Pa.Super. 578, 584, 589 A.2d 761, 764 (1991); Johnson v. Woodland Hills School District, 135 Pa.Cmwlth. 43, 45, 582 A.2d 395, 397 n. 2 (1990). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party, and must resolve all doubts against the moving party. Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984).

The sole issue in this appeal raises the applicability of the Peculiar Risk Doctrine. As noted by the lower court, the general rule is that an “employer of an independent contractor is not liable for the physical harm caused by another by an act or omission of the contractor or his servants.” Ortiz, supra, 365 Pa.Super. at 52, 528 A.2d at 1357; see also Restatement (Second) of Torts, § 409 (1965). One exception to this rule of nonliability arises where the work to be done by the independent contractor involves a special or peculiar risk, and is known as the “Peculiar Risk Doctrine.” Peffer v. Penn 21 Associates, 406 Pa.Super. 460, 463, 594 A.2d 711, 712 (1991). Our past decisions have stated that Pennsylvania has adopted this exception to an employer’s nonliability as set forth in sections 416 and 427 of Restatement (Second) of Torts:

§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
§ 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precaution against such danger.

We have summarized the protection afforded by the Restatement in a two-part test, first articulated in Ortiz, supra. The Ortiz test has held a special danger or peculiar risk exists where:

(1) the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
(2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.

Ortiz, supra, 365 Pa.Super. at 53, 528 A.2d at 1358. In- Ortiz, the Court declared in interpreting this Doctrine that:

In order for the liability concepts involving contractors to retain any meaning, especially in industries such as construction where almost every job task involves the potential for injury unless ordinary care is exercised, peculiar risk situations should be viewed narrowly, as any other exception to a general rule is usually viewed.

Ortiz, supra, at 55, 528 A.2d at 1359, quoting Marshall v. Septa, 587 F.Supp. 258, 264 (E.D.Pa.1984); accord Peffer, supra, 406 Pa.Super. at 466, 594 A.2d at 714. Moreover, the tenor of our law is that the violation of safety conditions alone cannot be the basis for finding that the Peculiar Risk Doctrine applies, as many, if not most, industrial actions result from a failure to follow the safety regulations of either the state or the federal government. Peffer, supra, at 465, 594 A.2d at 713; accord Ortiz, supra, 365 Pa.Super. at 56, 528 A.2d at 1359 (“All construction work involves some risk of harm; only where the work is done under unusually dangerous circumstances does it involve a ‘special danger’ or ‘peculiar risk.’ ”); Mentzer, supra, 408 Pa.Super. at 592, 597 A.2d 604, 611 (1991) (Plurality Opinion by Beck, J.) (a peculiar risk is not found where the negligence consists wholly of the improper manner by which the contractor performs the operative details of the work). Whether a peculiar risk exists is a matter for the court to decide before submission to the jury.

Applying the foregoing principles of law, we find unpersuasive the appellant’s claim that the Peculiar Risk Doctrine affords him the ability to survive a motion for summary judgment. It is quite obvious that the appellant cannot meet the requirements of the second prong of the Ortiz test. The task to be performed — the movement of rebars of nominal weight down a ladder into an excavation pit — does not involves a risk that is substantially out of the ordinary at a construction site. To the contrary, the task being performed appears to be nothing more than a common or routine worksite procedure. What made the activity of increased risk was not the activity itself, which is normally of minimal risk, but the failure of the independent contractor (and/or his servants) to take adequate precautions.

We addressed an analogous fact pattern in Peffer, supra, and similarly ruled that summary judgment was appropriately entered against the employee of an independent contractor. In that case, the employee was seriously injured while working on the construction of a building. He averred that while tightening bolts in steel beams that were to be part of the structure’s roof, the ladder kicked out from under him causing him to be thrown through an opening in the flooring to the ground 48 feet below.

Applying the second prong of the Ortiz test, we held that “construction work on a ladder while tightening bolts of a steel structure is not a peculiar risk for an individual employed by a steel erector company.” Id. at 466, 594 A.2d at 714. We reasoned that the employee worked for a company whose business was the business of erecting buildings. Id. at 465, 594 A.2d at 713. Erecting buildings normally necessitates above ground work requiring the use of a ladder. Id. Accordingly, any risk associated with falling from the ladder is an ordinary risk associated with the construction of buildings in general. Id. We declared in this vein that that “[a] peculiar risk exists if the danger encountered is different than that normally associated with the general type of work done.” Id. We specifically rejected the argument that the violation of safety standards alone could constitute a “peculiar risk.” Id. at 465-6, 594 A.2d at 714. We noted that almost every construction task involves the potential for injury. To protect the efficacy of the general rule that an employer of an independent contractor is not liable for the negligence caused another by an act or omission of the contractor or his servants, we would view narrowly the Peculiar Risk Doctrine exception. Id.

There is no material distinction between the fact scenario sub judice and the one in Peffer. In both cases, an employee of an independent contractor claimed that a ladder kicked out from under him while he was working causing him to fall and sustain serious injuries. These cases similarly involve ordinary risks that are attendant to construction work, a risk that the independent contractor and/or his servants are better able to control than their employer.

The appellant admits that moving items on a ladder is an ordinary circumstance at a construction site and does not invoke the Peculiar Risk Doctrine. However, the appellant asserts that it is the specific conduct involved here that has created the “peculiar risk,” e.g. moving rebars on an unsecured ladder. The tenor of this argument seems to that the more negligent that an independent contractor and/or his servants are in performing an ordinary task, the more likely it is that the Peculiar Risk Doctrine should be invoked and the employer of the contractor should be held vicariously liable. Suffice it to say that we would find odd a doctrine of law that absolves an employer of an independent contractor from ordinary negligence on the part of the contractor or his servant, yet holds the same employer vicariously liable for either of those actors’ gross negligence. It would seem that the independent contractor or his servant under both scenarios is best able to make sure the work is performed at the safety level appropriate for the project.

For the reasons expressed supra, we hold that the lower court correctly granted summary judgment in favor of the appellees.

Order affirmed.

WIEAND, J., concurs in the result.

      . Both our case law and the Restatement regard sections 416 and 427 and the phrases "peculiar risk” and “special danger” as basically interchangeable and overlapping concepts. Ortiz, supra, 365 Pa.Super. at 52 n. 2, 528 A.2d at 1357 n. 2; Restatement (Second) of Torts § 427 comment a; see also Mentzer v. Ognibene, 408 Pa.Super. 578, 590, n. 7, 597 A.2d 604, 610 n. 7 (1991) (Plurality Opinion by Beck, J.).

      . This writer filed a concurring .opinion in Ortiz, supra, expressing the view that §§ 416 and 427 of the Restatement (Second) of Torts were intended to provide a basis of recovery for third parties, not employees of independent contractors or subcontractors. See Ortiz, supra, 365 Pa.Super. at 56, 528 A.2d at 1360 (Cavanaugh, J., Concurring). This writer had elaborated on this view in an earlier Concurring Opinion in Colloi v. Philadelphia Elec. Co., 332 Pa.Super. 284, 297, 481 A.2d 616, 624 (1984) (Cavanaugh, J., Concurring). This view was commented upon favorably in a recent decision of this Court, where we stated “[t]he broader implication of the restatement would be more consistent to application to third parties ..." Peffer v. Penn 21 Associates, supra, 406 Pa.Super. at 465 n. 3, 594 A.2d 711, 713 n. 3 (1991). Notwithstanding the reference to my position in Peffer, supra, it is apparent that the law in this Commonwealth is that employees of an independent contractor are parties under §§ 416 and 427 to whom an obligation can flow. See Colloi, supra, 332 Pa.Super. at 297, 481 A.2d at 622. Accordingly, this writer drafts this Opinion with the foregoing in mind. I note that despite its reference to my Concurrence, the Court in Peffer assumed in its analysis that under §§ 416 and 427 an employee of an independent contractor could potentially recover from the owner of the property who hired the contractor. Peffer, supra, 406 Pa.Super. at 464-5, 594 A.2d at 713.

      . Although Pennsylvania has adopted sections 416 and 427 of Restatement (Second) of Torts, our adherence to the pronouncements in these sections is not literal and reflects the flavor of our past cases rather than the totality of the views articulated in the Restatement. At least one Judge of this Court has commented, correctly in my opinion, that the second prong of the Ortiz test does not provide the more expansive coverage that the Restatement sections supra would afford. See Mentzer, supra, 408 Pa.Super. at 597-9, 597 A.2d 604, 614-5 (Olszewski, J., Concurring and Dissenting). To my mind, this is by no means a disaster, as Pennsylvania still clearly adheres to the general rule that a employer is not liable for the negligence of his contractor or his contractor’s servants. Peffer, supra, 406 Pa.Super. at 463, 594 A.2d at 712; Ortiz, supra, 365 Pa.Super. at 52, 528 A.2d at 1357; Marshall v. Septa, 587 F.Supp. 258, 264 (E.D.Pa.1984). We deviate from this rule in very limited circumstances. Peffer, supra, 406 Pa.Super. at 466, 594 A.2d at 714; Ortiz, supra, 365 Pa.Super. at 55, 528 A.2d at 1359; Marshall v. Septa, 587 F.Supp. 258, 264 (E.D.Pa.1984). The Restatement (Second) approach, however, reflects an approach where the exceptions have become the rules of first resort, not of final resort. See Restatement (Second) of Torts, § 409, Comment a (“The[] exceptions are so numerous, and they have so far eroded the "general rule,” that it can now be said that it is applied where no good reason is found for departing from it.”) The Restatement (Second) approach, rather than restating the law, reflects a minority position among the jurisdictions in this Nation where the exceptions swallow the rule. Ortiz, supra, 365 Pa.Super. at 55 n. 3, 528 A.2d at 1359 n. 3; 41 Am.Jur.2d. § 24, 776. While it is true that most jurisdictions, like Pennsylvania, afford several exceptions to the general rule in limited circumstances, most jurisdictions also adhere to the general rule in the garden variety case of this type.
      After studied review of Restatement (Second), one can observe a disturbing trend in certain sections of (the Restatement (Second)) to attempt to predict the law rather than to summarize it. My observations are shared by at least one legal commentator. See, e.g., Keyes, The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepperdine Law Review 23 (1985) (positing that the Restatement (Second) series reflects the views of its drafters in many sections rather then restates the general common law of the United States). Given the importance of the Restatement (Second) series to daily practice, where many practitioners assume that the Restatement reflects the law of the vast majority of jurisdictions, a Restatement (Second) that does not reflect normative law is problematic to say the least. While this is clearly neither the time nor place to fully comment on this issue, I write to suggest that even when we "adopt” sections of the Restatement, we often do so on our own terms, and we should read the Restatement (Second) in light of our prior law.