author: POPOVICH, Judge:

text:
      557 A.2d 747
    HAMILTON BANK and CoreStates Financial Corp., Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed April 14, 1989.
    Daniel B. Huyett, Reading, for appellants.
    Christopher W. Mattson, Lancaster, for appellee.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered by the Lancaster County Court of Common Pleas, granting the appellee’s motion for summary judgment against the appellant. We affirm.

When reviewing a lower court’s entry of summary judgment, we are guided by the following standards of review which were recently reiterated in Hower v. Whitmak Associates, 371 Pa.Super. 443, 538 A.2d 524 (1988):

Summary judgment should not be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). Since the moving party has the burden of proving that no genuine issues exist as to the material facts, the record must be examined in a light most favorable to the non-moving party; in doing so all well-pleaded facts in the non-moving party’s pleadings are accepted as true and that party is given the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982).

Hower, 371 Pa.Superior Ct. at 445, 538 A.2d at 525; see also Consumer Party of Pa. v. Comm., 510 Pa. 158, 173-75, 507 A.2d 323, 331 (1986); In re Estate of Reinert, 367 Pa.Super. 147, 150-52, 532 A.2d 832, 834 (1987); Huffman v. Aetna Life and Cas. Co., 337 Pa.Super. 274, 276-77, 486 A.2d 1330, 1331 (1984).

The undisputed facts are as follows: Between December of 1981 and June of 1982, Hamilton Bank and CoreStates Financial (hereafter “Bank”) made sixteen loans totalling over $1.4 million to nine Mexican companies for the purpose of financing purchases of American goods for importation into Mexico. The loans were procured through Humberto Tamez Garcia, agent for the Mexican companies. Prior to dispersing the loan proceeds, Bank required the following documents: promissory notes signed by the debtor companies, sales invoices issued by the exporter and bills of lading from the carrier. For each of the loans, Bank accepted photocopies of the original counterparts of the bills of lading. After the Mexican borrowers defaulted on the loans, Bank discovered that the carriers’ names on the bills of lading had been forged and that the description of the goods allegedly shipped was false.

Bank submitted claims for reimbursement under its export credit insurance provided by the Export-Import Bank of the United States and the Foreign Credit Insurance Association. FCIA denied the claims on the basis that the invoices and/or bills of lading were forged or otherwise fraudulent. Bank then filed its claim for $1.2 million ($1.4 million less policy deductible) with the Insurance Company of North America (hereafter “INA”) under its bankers blanket bond. Bank alleged that INA, under Insuring Agreement (E) of bankers blanket bond, agreed to indemnify Bank for losses resulting from Bank’s having extended credit based in reliance on the forged bills of lading. In response, INA submitted that it was not liable under the agreement since Bank did not loan funds on the faith of the “original” bills of lading but rather made the loans based on photocopies of the documents. The lower court, ruling upon INA’s motion for summary judgment, agreed with INA that, since Bank did not possess the original bills of lading, its claims were not covered under the blanket bond.

Insuring Agreement (E) which is the focal point of this dispute provides:

The Underwriter, in consideration of an agreed premium, subject to the Declarations, Insuring Agreements, General Agreements, Conditions and Limitations and other terms hereof, agrees to indemnify the insured for:
(E) Loss resulting directly form the Insured having, in good faith, for its own accounts or for the accounts of others,
(1) acquired, sold or delivered, or given value, extended credit or assumed liability, on the faith of, or otherwise acted upon, any original
(a) Security,
(b) Document of Title,
(c) deed, mortgage or other instrument conveying title to, or creating or discharging a lien upon real property,
(d) Certificate of Origin or Title,
(e) Evidence of debt,
(f) corporate, partnership or personal Guarantee, or
(g) Security Agreement
which
(i) bears a signature of any maker, drawer, issuer, endorser, assignor, lessee, transfer agent, registrar, acceptor, surety, guarantor, or of any person signing in any other capacity which is a forgery,
(ii) is altered, or
(iii) is lost or stolen;
(2) guaranteed in writing or witnessed any signature upon any transfer, assignment, bill of sale, power of attorney, Guarantee, endorsement, or any items listed in (a) through (g) above.
(3) acquired, sold or delivered, or given value, extended credit or assumed liability, on the faith of, or otherwise acted upon, any item listed in (a) through (d) above which is a Counterfeit.
Actual physical possession of the items listed in (a) through (g) above by the Insured, its correspondent bank or other authorized representative is a condition precedent to the Insured’s having relied on the faith of, or otherwise acted upon such items.
A mechanically reproduced facsimile signature is treated the same as a hand-written signature. (Emphasis added).

Instantly, we are asked to review the lower court’s interpretation of bankers blanket bond. Interpretation of an insurance contract is a question of law. Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 334, 473 A.2d 1005, 1008 (1984); see also Winters v. Erie Ins. Group, 367 Pa.Super. 253, 257-59, 532 A.2d 885, 887 (1987). When interpreting an insurance contract, our duty is to determine the intent of the parties as manifested by the language of the written agreement. Eddystone Fire Company v. Con tinental Ins., 284 Pa.Super. 260, 264-65, 425 A.2d 803, 805 (1981). The language of the policy, if unambiguous, should be given its ordinary and usual meaning. Winters, 532 A.2d at 887; Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 5-7, 487 A.2d 820, 823 (1984); Eddystone Fire, 425 A.2d at 805. However, if the language is contextual or otherwise ambiguous, the insured receives the benefit of the doubt, and the policy language is construed in his favor. Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 584-86, 326 A.2d 346, 351 (1974); Winters, 532 A.2d at 887; Techalloy, 487 A.2d at 823. The policy language is “ambiguous if reasonably intelligent men on considering it in the context of the entire policy would honestly differ as to its meaning.” Celley v. Mutual Benefit Health & Accident Ass’n, 229 Pa.Super. 475, 481-83, 324 A.2d 430, 434 (1974).

The appellant raises numerous issues aimed at discrediting the lower court’s interpretation of bankers blanket bond. However, applying the aforementioned standards to the case at bar, we are convinced that the lower court correctly interpreted the insurance contract. We find that the language of blanket bond is unambiguous and was drafted in clear and precise terms.

First, the appellant alleges that, since paragraph (1) of Insuring Agreement (E) does not contain the word “possession,” requiring Bank to possess the original bills of lading ignores the explicit language of paragraph (1). In the alternative, Bank alleges that paragraph (l)’s requirement of document possession is unclear and ambiguous and should be interpreted in its favor. Here, we must disagree with the appellant and agree with the lower court’s interpretation of the policy. If we were to view paragraph (1) in a vacuum, Bank’s argument has some merit. However, when we read the Insuring Agreement as a whole, the specious nature of Bank’s argument becomes abundantly apparent. Insuring Agreement (E) is quite explicit — “Actual physical possession” of the bills of lading is “a condition precedent to the [Bank’s] having relied on the faith of” the bills. Equally unambiguous is the requirement of paragraph (1) that recovery is predicated upon Bank’s having extended credit “on the faith of ... original” bills of lading. Therefore, the clear meaning of the blanket bond mandates that Bank must physically possess the original bills of lading at the time of extending credit before it may recover its losses.

Bank further contends that, since the physical possession requirement of Insuring Agreement (E) does not specifically require possession of the “original” document, Bank’s possession of photocopies of the original counterparts of the bills of lading is sufficient. However, as stated before, the possession requirement is to be read in conjunction with the paragraph (1) which premises recovery upon the Insured having acted “on the faith of” the “original” documents. When the possession requirement is read in conjunction with paragraph (1), the clear meaning of the policy language is that actual physical possession of the “original” bills of lading is a condition precedent to recovery.

Thus, we are led to the next issue: whether the undefined term “original,” when considered in the circumstances of this case, is ambiguous. Here, we again agree with the lower court that the policy language, “original,” is clear and free from ambiguity. Bank contends that, especially in the commercial setting, “original” is capable of varied meanings, citing Baum Estate, 418 Pa. 404, 410, 211 A.2d 521, 524 (1965) (“original” capable of varied definitional treatment and may vary according to the situation). However, there can be no doubt that, considering the situation before us, mere photocopies of the original counterparts of the bills of lading do not qualify as “original” documents. We find it ludicrous that Bank, which certainly would not honor a photocopy of a check of nominal value, has the audacity to contend that it is reasonable to lend $1.4 million based upon mere photocopies of duplicate bills of lading.

In sum, we find that the bankers blanket bond is clear and free from ambiguity. In order to recover under the provisions of the bond, we find that Bank would have needed to extend the credit in reliance on original bills of lading (not mere photocopies thereof) which should have been in Bank’s actual physical possession prior to release of the funds. Since no genuine issues of material fact remain and, based on our interpretation of the bankers blanket bond, IN A is entitled to judgment as a matter of law, we find that the lower court properly granted summary judgment in favor of IN A.

Order affirmed.

      . Bank contends that summary judgment was improper since a question of fact remains as to whether Humberto Tamez Garcia was its "authorized representative.” (See Insuring Agreement (E), physical possession requirement.) Bank contends that "while Interbex and Jeno were acting as agents for the Mexican borrowers in certain capacities, with respect to the shipment of the goods and the supply of appropriate documentation, they also acted as the agents of Bank.” However, viewing the record in a light most favorable to Bank, the record reveals unequivocally that Humberto Tamez Garcia acted only as agent for the Mexican companies. The following facts bear that out: Tamez procured the now-defaulted loans on behalf of the Mexican companies. Tamez controlled the exporter, Interbex, and one of the debtors, FOCOINSA. In turn, FOCOINSA controlled the other exporter, Jeno. Sheila Harris, Bank’s Foreign Trade Officer at the time the loans were made, stated Interbex and FOCOINSA (and consequently Jeno) "formed the hub of a spoked wheel configuration that linked all nine Mexican debtor importers and all sixteen loans to [Tamez] and his two companiesf.]” (Affidavit of Sheila Harris, R.R., p. 88a-94a). The lower court correctly found that Tamez acted as the agent only for the Mexican companies and was not Bank’s “authorized representative” for the purpose of interpreting the blanket bond.

      . Bankers blanket bond is an indemnity insurance contract that combines into one policy five separate "Insuring Agreements,” each of which covers a different financial risk associated with banking. The blanket bond is standard throughout the banking industry. See United States National Bank in Johnstown v. Reliance Insurance Company, 348 Pa.Super. 30, 501 A.2d 283 (1985).

      . Definitions, Section 1(e), Document of title was defined as "a bill of lading ... and also any other document which in the regular course of business of financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers and must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee’s possession which are either identified or are fungible portions of an identified mass.”

      . Definitions, Section 1(h), defines forgery as "the signing of the name of another with intent to deceive; it does not include the signing of one’s own name with or without authority, in any capacity, for any purpose.”

      . Black’s Law Dictionary defines "original" as follows:
      Original____ As applied to documents, the original is the first copy or archetype; that from which another instrument is transcribed copied, or imitated____ An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.

      . Bank, by its own admission, only had actual physical possession of photocopies of the original counterparts of the bills of lading. In other words, Bank merely possessed photocopies of duplicate bills of lading.

      . Bank also contends that we must apply the doctrine of contra preferentem and thereby accept its reasonable expectations as the interpretation of the insurance contract. In Winters, supra, we explained that the focal point of interpreting contract language is the reasonable expectations of the insured. 532 A.2d at 887, citing Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 594, 388 A.2d 1346, 1353-54 (1978); see also Huffman, supra. However, we have found that the policy is clear and unambiguous and reasonable men could not differ as to its interpretation. Therefore, Bank’s purely self-serving, allegedly reasonable expectations are not subject to consideration.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    557 A.2d 751
    COMMONWEALTH of Pennsylvania v. Sharmon SIMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1988.
    Filed April 17, 1989.

      Sharmon Simpson, in propria persona.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

On October 1, 1987, appellant was sentenced to a total of 25 to 50 years imprisonment and 10 consecutive years of probation for convictions, in three separate trials, of 30 offenses arising out of 12 separate armed robberies committed by appellant between December 2, 1981 and May 2, 1982.

Resentencing on the first series of convictions, the Silo robberies, followed remand by our Court in Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986) (Simpson I). The sentencings for the trials and resulting convictions which followed Simpson I were consolidated with the Simpson I sentencing remand and the following total terms of imprisonment were imposed:

Simpson I, March 15, 1983 convictions (Silo robberies)— ten to twenty years imprisonment and five years probation;
June 23, 1983 convictions (Brady robberies) — five to ten years imprisonment and five years probation (concurrent with other probationary terms);
October 12, 1983 convictions (Gino robberies) — ten to twenty years imprisonment and five years probation.

Each of the three appeals currently before us turns on its own record and facts as presented to the Court.

The record at Simpson I suggested circumstances which are totally inapplicable to the consolidated appeals now before us at Simpson II. The record for Simpson I did not substantiate the sentence of 30 to 60 years on the series of robberies considered therein, the full court denying reargument on June 30, 1986 with the Supreme Court denying allocatur petitions filed by both appellant and the Commonwealth. Commonwealth v. Simpson, 514 Pa. 624, 522 A.2d 49 and 514 Pa. 635, 522 A.2d 1105 (1987).

Simpson II, encompassing Simpson I, includes appeals of sentences resulting from convictions at three trials for multiple armed robberies and related offenses over a long period of time, providing in its totality a significantly different frame of reference for sentencing than did Simpson I.

The sentencing judge and Commonwealth here had a stronger basis for looking to a longer total sentence than was the case in Simpson I and the justification and legality of the sentence of 25 to 50 years for the entire series of crimes at the completion of the trials on all of the charges involving these pattern crimes was within the sound discretion of the trial court. Indeed the Simpson portrayed by the court and Commonwealth at sentencing in Simpson I was a far more benign person than portrayed in Simpson II. Simpson I served its purpose in alerting the Commonwealth and the trial judge that the defendant was not to be sentenced unfairly. By so alerting them to this perception, the total sentence of 25 to 50 years was imposed, which is within the range of fair and reasonable sentencing. Reviewing the Commonwealth’s letter brief and the trial judge’s Opinion of April 28, 1988, reinforced by her second Opinion of November 16, 1988, appellant’s contention, that the remand sentence on Simpson I and the sentence on the other convictions were required to be concurrent, is not justified. The remand on Simpson I applied to that record only and cannot be construed to apply to other sentences on other trials and convictions.

In sentencing appellant, while Judge Abraham stated she rejected “out of hand” the “suggestion” of a sentence by the Superior Court, contrary to appellant’s allegation that she ignored the mandate of the Superior Court, she did in fact impose a total sentence involving the remanded cases and the other cases well within the discretionary limits suggested by this Court. Appellant is in error when he suggests the Superior Court mandated a 10 to twenty year sentence for all of the robberies involved in the three trials. The only robberies before this Court in Simpson I were the six Silo robberies and related offenses encompassed in the first trial. The objection voiced by this Court was to six consecutive sentences on the robberies when the record at that time did not establish the depth of appellant’s criminal involvement and background. The record in Simpson II does establish that criminal propensity and background and the sentencing on each of the three sets of convictions was well within the discretion of the trial judge. Since appellant relies entirely on the “directions” imposed by Simpson I, which we do not find applicable here, and no other issues have been raised on appeal, we affirm all judgments of sentence.

We are, however, constrained to comment on the unorthodox, unprecedented and objectionable attack by the trial judge against this Court in particular and the appellate system as a whole expressed in her Opinion of November 16, 1988. Since it is possible the Opinion will be published, the misrepresentations and blanket denouncements concerning this Court, which has received commendations for its decisions and efficiency from national commentators on state courts, cannot go unanswered.

Upon remand the trial court considered evidence of the defendant’s criminal past, of which this Court did not have the benefit when we sent the case back with the suggestion on sentencing. It was after the trial court judge heard new evidence of the defendant’s past serious crimes that she took the occasion to demonstrate an unbridled and intemperate view of the appellate process.

In her comments regarding our remand Order, she demonstrates a grievously erroneous impression of the judicial system vis-a-vis the relationship between the trial and appellate courts. It can only be assumed from the trial judge’s “loose canon” approach that the judge evinces a pitiable lack of knowledge or a personal asperity with the review powers of our Court. Her remarks are shabby and unworthy of a judge in our system and the sooner the judge disabuses herself of her misconception of the appellate court function, the less she will be found piling Pelion on Ossa. A saying that is frequently repeated in judicial circles is that judges should be able to disagree without being disagreeable. Judge Abraham appears not to subscribe to this approach and, beyond disagreeing, would castigate the judges and functions of appellate review.

The first error of Judge Abraham was in finding the panel decision, in Simpson I (this writer being the author of that Opinion) was a two-to-one majority. This is incorrect; the panel vote for vacation of sentence and remand for resentencing was unanimous. See Simpson, supra.

Judge Abraham takes issue with what she determines to be conclusions of the panel in Simpson I as follows: “(1) that if one cannot predict future dangerousness then we must rely on the past; and (2) an individual has to be given a second or even more chances by the courts to become a productive member of society.” (Slip Op., Abraham, J., 11/16/88, p. 5.)

She is in error in concluding the first concept would prevent consideration of the many criminal episodes over a substantial period of time during defendant’s past. The summarization, taken out of context, precisely focuses in on a defendant’s prior history, good or bad, and reflects in sentencing mitigation or severity. The error of Judge Abraham’s analysis is that she now, in Simpson II, presents a defendant with a long standing violent past, when the only record available to this Court in Simpson I portrayed him with no criminal past and as reasonably educated and family-oriented former member of the armed forces with a prior good record. It is not our view of the appropriate standards in sentencing, but the trial court’s failure to adequately justify the sentence which is at fault. It is totally unacceptable for a trial judge, after a case has passed through the process of appellate review, to attempt to redeem the error pinpointed by the appellate court, by reconstructing the case in a later sentencing proceeding concerning other convictions and by filing a revisionist Opinion after the appellate record is closed. Pages 5 through 7 of Judge Abraham’s Opinion contain information concerning the defendant’s prior criminal history, which was never presented in the sentencing record of Simpson I. By failing to provide that background for appellate review, and with statements from the trial court that appellant’s background provides no “clue” as to why he strayed from the fold and the assistant district attorney pointing out there was nothing in appellant’s background which shed light on the outrageous quantities of the acts (S.T. 8/20/84, pp. 14, 17-18), our review disclosed only the number and severity of the crimes as a basis upon which the trial court had imposed sentence.

As to the second error attributed to the panel, Judge Abraham comments that the appellate courts should never require the trial judges to provide “violent felons unlimited chances to become productive citizens, [and] our beleaguered communities should never be asked by our appellate court jurists to tolerate the repeated tyranny of the armed felon on the theory that this is somehow beneficial to the criminal.” (Slip Op. at 7.) This statement is conclusionary and as with the first ignores totally the context from which it was drawn; the two statements and their analysis by the trial court is a perversion of what this Court stated in Simpson I. There we made a careful explanation and analysis of the rules governing the trial judge and the considerations which must be weighed in determining whether or not confinement is in order and for how long.

Taking the sentencing transcript to this point, as a whole, without question total confinement was justified. However, in the words of the sentencing judge, all alternatives were considered and rejected without further consideration. It was also necessary to weigh the effect of a cumulative minimum sentence of thirty years, which would take a relatively young man through the prime of his life for a term twice as long as the average life sentence, under a system which unlike the federal system or that of other states, does not permit review and parole upon good behavior in substantially less time than the minimum sentence provides. The weighing, in which the trial court must engage, is a balancing of the defendant’s entire prior life against the crime spree of less than six months for which he was convicted. Simply reciting that the alternatives were considered and rejected ignores the task of weighing those factors when it is apparent that they must be considered. As the trial court aptly pointed out, she is unable to predict the future, therefore, to the extent that we must make a judgment as to future behavior, we cannot ignore and must be guided by the past. Unquestionably, the safest approach for society, and the only way to protect against recidivism, is a virtual life sentence for any offender. This is an unacceptable price to pay to protect society and our sentencing structure must be such that where warranted, an individual has a second or even more chances to become a productive member of society. It is well documented that crime, particularly violent crime, is committed by the young, particularly those males between 18 and 30 years of age. Thereafter because of many operative factors, there is a steady decrease in criminal activity. This case is one where the benefits of a good prior history and the effects of aging on criminal involvement make the appellant a reasonable candidate for a sentence which will punish him, serve the needs of society for protection and make note of the serious nature of the acts, but also permit the appellant, in a reasonable period of time, to return to society and, if need be, under long-term parole supervision, pick up a meaningful and productive life.
To impose a minimum sentence of thirty years discounts the possibility of rehabilitation and effectively removes appellant from society for his potential working life, precluding the possibility of his ever becoming a contributing member of society.

Simpson 353 Pa.Super. at 481, 510 A.2d at 763-764.

The harsh statements condemning appellate judges for favoring criminals is an unwarranted attack against the appellate judges of this Commonwealth and reeks of an irresponsible play on the fears of the community which equates maximum sentencing of all convicted criminals to protection of society. It ignores the rules of law, the mandates of legislation, judicial fairness and proper utilization of limited correctional resources. The judicial decisions and the sentencing guidelines provide clear and reasonable parameters for sentencing and it can be said without fear of contradiction that in excess of 90 per cent of trial court sentences are affirmed on appeal. This Court more frequently reverses and remands for resentencing when sentences are too lenient and below the sentencing guidelines than when a sentence goes beyond the aggravated range of the guidelines. The system tolerates wide discretion in sentencing but it should not and will not tolerate sentences which do not reflect minimal restraints on discretion. Without appellate review and governance, such sentencing becomes would result in rule by the individual and not the rule of law. Contrary to Judge Abraham’s assertion and much of the unfounded rhetoric about softness on the part of the judiciary, the facts prove otherwise. There has been a 107 per cent increase in prisoners while the crime rate has increased only 20 per cent. We now have 1,000,000 prisoners in this country when as little as ten years ago there were less than one-half million. Thirty-seven states are under court order for overcrowded prisons and the discretion for the length of a sentence has passed from the sentencing judge to correction officials. Fortunately, in Pennsylvania, sentences by trial judges reflect true sentences, but with a rapidly overloaded system, the reluctance of the legislature to appropriate sufficient money to build new cells at a cost of $25,000 per cell, and the cost of $25,000 per year to maintain one prisoner, the Pennsylvania legislature has under consideration legislation similar to that of most states — that is to permit correctional officials to release prisoners at their discretion. In some cases, in many other states, violent prisoners cannot get into jail until an opening occurs by reason of a release of another violent prisoner who has served less than one-third of his sentence. Barry Krisberg of the National Council of Crime and Delinquency has stated that prisons must be regarded as a national resource as we are running out of money to build them and people will not tolerate them in their communities. New York is placing prisoners on barges out on the water to deal with overcrowding and community rejection. It has frequently been said that the only foolproof answer to recidivism is a life sentence without possibility of parole for every person convicted of a crime. This, however, does not prevent other persons from committing crimes and very few people would not reject such a theory as cruel, useless and terribly wasteful of limited public resources. If imposition of maximum and consecutive sentences was practiced by all judges, it would only add to our prison crisis, be self-defeating and result in many more people in jail who eventually must be released through legislative action in turnstile fashion on aborted sentences because of judicial arbitrariness. If the judge does not see himself (herself) as a part of the total system of law enforcement and corrections, he or she will become part of the problem either due to excessive leniency or excessive harshness. The Commission on Sentencing has published statistics indicating 89.1 per cent of all sentences were within the guidelines and only 8.7 per cent were less severe, and 2.2 per cent were more severe. This indicates the legislature and the courts have come to a balanced approach to sentencing, which is fair, protects society, makes for consistent sentencing across the state and gives the best value for the money spent. Going beyond the guidelines, ignoring responsibility to the system and exercising unbridled discretion must be viewed seriously and is not to be tolerated by the appellate courts.

When Judge Abraham “rejected] ... any notion of the panel that the Superior Court has the authority either to remand or amend the sentence directly or to recommend to trial judges what sentence it deems to be appropriate ... [as] an impermissible intrusion upon the power of sentencing which has been vested exclusively in our trial judges by the Pennsylvania Legislature^ or] [a]ny intrusion attempted or accomplished by any other body, in the name of curing “sentencing disparity” or “a manifestly illegal or excessive” sentence, [because it] is repugnant to and in derogation of our exclusive mandate” (Slip Op. at 7-8), in one fell swoop, she declared herself not subject either to appellate review or the legislative mandate of the Sentencing Code and the Sentencing Guidelines. In her analysis, Judge Abraham details the authority which permits the Superior Court to exercise appellate review, but then rejects this authority out of hand. While the authority exists and is proclaimed by statute and case law, nowhere can there be found any authority by which a trial judge can deny his/her constitutional mandate to be bound by statutory or appellate law in making his/her decision just because it is repugnant to him/her.

Judge Abraham again errs when she attributes to this Court in Simpson I the resentencing of Simpson. It is clearly permissible for the Superior Court, after finding a sentence to be excessive or harsh, to give guidance to the trial judge as to what a reasonable sentence would be in light of its experience in review of hundreds, if not thousands, of sentences from every judicial district in the state. This is not a mandated sentence. However, when the specific sentence is required by law, which is not the case here, a mandated sentence could be appropriate. The Order in Simpson I was to vacate the sentence and remand for resentencing in conformity with our Opinion. Obviously, the trial court should know the reasoning of the panel and what the magnitude of error was perceived to be, otherwise nothing would prevent the trial judge from entering the identical Order without appropriate justification. It is ludicrous for a trial judge to hold, with any hope of credibility, that the appellate courts cannot express a view as to what would be an appropriate sentence on remand.

As to the final attack by Judge Abraham against the concept of appellate review, she berates the panel system as being “nothing more or less than Superior Court Roulette” (Slip Op. at 13) in which the subjective views of the panel members are substituted for consistency in sentencing. Admittedly, 20 judges (15 commissioned and 5 senior) sitting in 105 panels in an average year and disposing of 4,000 to 6,000 appeals on issues, which in many cases will be similar, can be at times inconsistent. However, Judge Abraham’s attack against the Superior Court must also comprehend the public, who provide the constitutional basis for panel disposition, the legislation, which created the Sentencing Code and guidelines and the Supreme Court, which ultimately supervises the system. On balance, her concern is misplaced and her criticism unfounded. The panel system is the best that can be provided under present conditions and it has worked extremely well as an efficient and fair method of disposing of an incredible volume of appeals. The alternative would be to have the appellate process choked with appeals requiring four or five years for a decision instead of the present remarkable average of six to eight months. Also, the en banc system of reargument and the petition for allocatur to the Supreme Court provide an expeditious means of correcting conflicts in Opinions of Superior Court panels. This criticism by Judge Abraham is a red herring as nothing in the cases before us at this time involves a conflict with any other panel decision by the Superior Court. As noted above, reargument was denied by the full Court on Simpson I, as was allocatur by the Supreme Court as to both the Commonwealth and the appellant.

With the broad discretion accorded trial judges, the Sentencing Code and the Sentencing Guidelines to guide them, trial judges who diligently conduct their sentencing procedures are very unlikely to be reversed by this Court. Only the most exceptional cases are subject to reversal. Nothing in the dissent in Commonwealth v. Divincenzo, 362 Pa.Super. 27, 523 A.2d 758 (1987), or the holdings in Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), and Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), which Judge Abraham rails against, are contrary to the Constitution, the law or the Sentencing Code, but simply attempt to state the parameters binding both trial and appellate judges in one of the most difficult tasks facing the courts, that is, the sentencing of another human being. It is also of interest to note that while Judge Abraham castigates this writer for his analysis and application of the law in Divincenzo, supra, Simpson, supra, and Parrish, supra, she speaks with hope and favor for the relief forthcoming from Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Judge Abraham failed to take note that in reversing the Superior Court, the Supreme Court noted the Superior Court judge who dissented in Devers was this writer (see Devers at n. 7), and it was the position put forth by this author which was affirmed by the Supreme Court.

In Devers, the Supreme Court rejects the requirement emanating from Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), as interpreted by subsequent Superior Court decisions, that a detailed and highly technical statement is required when it appears on the record the court has been fully informed by the presentence report which would support the sentence. In his dissent to the unpublished Superior Court Devers Memorandum, this writer stated:

I respectfully but strongly dissent. The majority’s position in this matter cannot be supported by any sound rationale of sentencing philosophy or precepts of law. Appellant makes two claims: that the sentencing judge failed to articulate his reason for the (15 to 30 year) sentence imposed, and that the sentence is excessive. They are actually one complaint — that the trial court did not demonstrate to appellant’s satisfaction why, in view of appellant’s good behavior prior to the killing and since his confinement, he should have been imprisoned.
The majority’s finding that insufficient reason was given for the sentence, viz., total confinement, is not only rendered de minimus given the sheer brutality of the crime, but is quite simply belied by the record. See Commonwealth v. Curry, 318 Pa.Super. 490, 465 A.2d 660 (1983). Commonwealth v. Green, [494] Pa.Super. [406], 431 A.2d 918 (1981). The trial judge was very obviously aware of what appellant terms “mitigating circumstances,” e.g. his background and prior irreproachable behavior, and notes that these factors make the violence of the murder so much more perplexing.
Riggins statements have as their purpose to facilitate appellate review. Commonwealth v. Mueller, 274 Pa.Super. [397], 418 A.2d 465 (1980). We find the statement here quite adequate for this or any other use.
Here, where a life was taken in a grisly and vicious manner for purposes of concealing a robbery, the nature of the crime becomes paramount, and other sentencing factors, subsidiary. The Sentencing Code provides:
42 Pa.C.S.A. § 9725. Total confinement
The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.
While no case to our knowledge has said that the seriousness of the crime or brutality of its commission alone, without consideration of a presentence report and other factors delineated in the sentencing code, would permit imposition of a sentence of total confinement, we are likewise of the view that running down the check list of sentencing provisions is not required when it appears from the record that the court was fully aware of the relevant factors and considerations. Commonwealth v. Rooney, [296] Pa.Super. [288], 442 A.2d 773 (1982); Commonwealth v. Walton, [289] Pa.Super. [411], 433 A.2d 517 (1981). It would appear here, that the court was aware and considered the relevant factors, having available to him a presentence report and discussion of the alternatives proposed by defense counsel. We can see nothing in the record that would have permitted the trial court to enter a sentence less than total confinement for a reasonably long period of time to meet the mandate of 42 Pa.C.S.A. § 9725(3) “a lesser sentence will depreciate the seriousness of the crime.”
The very lurid circumstances of the crime alone could justify a maximum sentence regardless of appellant’s past. His drug addiction, while tragic, is only an explanation, not an excuse. The sentence is not excessive, and to remand to require the trial judge to state more explicitly that a horrendous crime requires a heavy sentence would be redundant and wasteful of judicial resources. Green, supra. I would affirm.
1. From his argument that he performed a public service in eliminating a drug dealer from the gene pool, we gather that appellant expected a testimonial.
2. The majority neglects to mention that the victim was bludgeoned, stabbed and finally strangled, having apparently been pursued all over the house, and losing copious amounts of blood in the process. Appellant then ransacked the dwelling for drugs and money causing even more damage.

Commonwealth v. Devers, Dissenting Memorandum, Tamilia, J., filed 11/29/85 (emphasis in original) [352 Pa.Super. 611, 505 A.2d 1030 (table)].

Judge Abraham places great reliance on the Supreme Court decision in Devers, the reasoning of which, ironically, was assisted by this writer’s dissent to the Superior Court majority in Devers.

In writing that the Supreme Court in Devers sub silentio overruled Simpson in which she was reversed, Judge Abraham ignores the obvious. The Supreme Court had before it Simpson, but denied allocatur. Devers does not reject the concept that appellate courts have the right and duty to reverse excessive sentences based on the mere fact of the crime.

The philosophy of indeterminate or individualized sentencing was explicitly recognized by the Pennsylvania Legislature early in this century. Courts are not permitted to mete out punishment based on the mere fact of the crime. On the contrary, sentencing must result both from a consideration of the nature and circumstances of the crime as well as the character of the defendant. The sentencer has broad discretion to choose a penalty from sentencing alternatives and the range of permissible confinements, provided the choices are consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Discretionary sentencing, in sum, means that a defendant cannot be punished on the basis of the crime alone. (Footnote eliminated).

Devers 519 Pa. at 91-92, 546 A.2d at 13.

From the record before us in Simpson I, we could not determine that the knowledge of the judge from the testimony, the presentence report or anything else on the record could justify the sentence. The Opinion and record in the instant appeals adequately supports the given sentences. There is, in combination with the resentencing on Simpson I, sufficient rationale, pursuant to the holding in Devers, for imposing the heavy, albeit legal, sentence. As such, we have no quarrel with it. Devers requires justification beyond the crime alone, which justification can come from the testimony or a well-prepared presentence report. It may not be justified by a mere boilerplate recitation of all the elements required to be considered, in effect saying “I have considered a, b, c, d, e, etc., and rejected a, b, c, d, e, etc.”, as done by Judge Abraham in Simpson I.

Sentencing is as much art as law; a boilerplate approach may not be used when thoughtful analysis and explanation is required.

Judgment of sentence affirmed.

HOFFMAN, J., concurs in the result.

      . All further references to Judge Abraham’s Slip Opinion refer to the Opinion of November 16, 1988.

      . Sentencing in Pennsylvania, The 1987-1988 Annual Report of the Pennsylvania Commission on Sentencing, p. 19.

      . It is not inappropriate for this Court to cite from a Memorandum when the Supreme Court has specifically ruled on the question in that Memorandum either by a per curiam Order or by Opinion. Commonwealth v. Gretz, 520 Pa. 324, 554 A.2d 19 (1989).


author: MELINSON, Judge:

text:
    557 A.2d 759
    Romaine HILL, Appellant, v. Howard Ernest REYNOLDS.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed April 11, 1989.

      Mark J. Gesk, Pittsburgh, for appellant.

      Edward Yurcon, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   MELINSON, Judge:

The appellant, Romaine Hill, was severely injured in an accident while a passenger in an automobile driven by the appellee, Howard Ernest Reynolds. The accident occurred when Reynolds’s automobile left the roadway and struck a guardrail. Following a three-day jury trial, the jury found that Hill’s injuries were caused by the joint negligence of Hill and Reynolds. Reynolds was found to be seventy percent (70%) negligent and Hill thirty percent (30%) negligent. Damages were assessed at One Hundred Three Thousand Dollars ($103,000.00). Hill’s post-trial motions were denied, and this appeal followed.

Essentially, Hill is before this court because she feels her award of damages was inadequate and because she feels that the jury could not have properly found her to have been contributorily negligent. The jury’s finding of contributory negligence, if upheld, will of course serve to reduce her award further. Hill states the following five questions on appeal in an effort to secure a new trial, or, alternatively, a new trial on the issue of damages: 1) Under the evidence presented in the case, did the trial court err in charging the jury that Hill could be found contributorily negligent? 2) Did the trial court err as a matter of law by instructing the jury that Hill could be found contributorily negligent in the manner it so stated? 3) Did the trial court abuse its discretion in denying Hill’s Motion in Limine, permitting Reynolds’s counsel to question Hill concerning the events occurring prior to the accident? 4) Should a new trial be granted on the issue of damages because defense counsel asked Hill on cross-examination whether she was sexually or physically abused as a child? 5) Did the trial court abuse its discretion by permitting a defense vocational expert to testify that Hill is still capable of performing light duty work in contradiction to medical testimony at trial that she is not able to perform such work? Upon review of these questions and the issues that they raise, we affirm the judgment below.

Hill’s first two questions on appeal challenge the propriety of the trial court’s charge to the jury regarding the issue of Hill’s possible contributory negligence.

‘Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party.’

Berry v. Friday, 324 Pa.Super. 499, 503, 472 A.2d 191, 193 (1984), (quoting Slavish v. Ratajczak, 277 Pa.Super. 272, 274, 419 A.2d 767, 768 (1980)). We shall look first to the evidence and then to the jury charge itself.

All facts concerning the accident produced at trial arose from two sources: the testimony of Hill on cross-examination and Reynolds’s prior admissions read to the jury. Reynolds did not testify at trial nor did two other persons who were passengers in the automobile at the time of the accident.

Reynolds admitted that he was the driver and Hill a passenger of the automobile at the time of the accident. The accident occurred on January 31,1982 at approximately 6:25 a.m., according to Reynolds’s admissions, when the automobile left the roadway and struck a guardrail. Reynolds admitted further that he was inattentive to the road while operating the vehicle and that he failed to have proper control of the vehicle when the accident occurred.

Hill testified on cross-examination that she and a friend met Reynolds and his companion at approximately 10:30 p.m. at an establishment in Monessen, Pennsylvania. Hill and her friend were out for an evening of dancing. Approximately one-half hour later, one among the group suggested that they all go to Pittsburgh. This they eventually did, Reynolds doing the driving; and they arrived at a Pittsburgh club and stayed there until closing, approximately 2:00 a.m. The quartet then departed to look for another establishment. They stopped at another Pittsburgh location where Hill and Reynolds were able to talk for several hours. Prior to returning to Monessen, the party stopped at a restaurant where Reynolds had something to eat. Approximately ten minutes after the group motored away from the restaurant, Hill, who was the front seat passenger, fell asleep. The next thing Hill remembered was waking to find her feet pinned between the dashboard and the door of the automobile.

In his charge to the jury, the trial judge gave the following instructions concerning the issue of Hill’s possible contributory negligence:

Contributory negligence. While admitting negligence and causation on behalf of the defendant, defendant [Reynolds] claims that plaintiff [Hill] was contributorily negligent. The defendant has the burden of proving the existence of such negligence.
You must, therefore, determine whether the plaintiff was negligent in that as an ordinarily prudent person under all the circumstances then present she failed to exercise reasonable care for her own protection.
If you find that the plaintiff was negligent, you must determine whether the plaintiff’s conduct was a substantial factor in bringing about her injuries.
As I have previously said, contributory negligence is a defense for which the defendant has the burden of proof. The burden is not on the plaintiff to prove her freedom from contributory negligence.
A defendant who defends on the ground of contributory negligence must prove that defense by a fair preponderance of the evidence. If the defendant has not sustained that burden of proof, then the defense of contributory negligence has not been made out.
In the present case, the mere fact that the plaintiff was a passenger and fell asleep is not evidence of negligence and should not be so considered by you. However, you have heard certain testimony regarding the activities of the plaintiff and the defendant and the hours during which the activities were conducted. Under the circumstances, you must determine whether plaintiff as a reasonably prudent person should have fallen asleep and entrusted her safety solely to the driver of the car. In other words, was the plaintiff contributorily negligent?
In order for the defendant to successfully defend on the grounds that plaintiff was contributorily negligent, her negligent conduct must have been a substantial factor in bringing about the accident. This is what the law recognizes as a legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only insignificant connection with the accident.

(N.T. 473-475).

The basis for the trial court’s charge is found in Frank v. Markley, 315 Pa. 257, 173 A. 186 (1934). In Frank, the Pennsylvania Supreme Court considered the issue of an automobile passenger’s contributory negligence under similar factual circumstances. Portions of the Court’s opinion are instructive:

We have frequently discussed the elements of contributory negligence on the part of guests in automobiles. Such negligence exists when two circumstances concur: First, an opportunity to know of threatened danger; second, an opportunity to give warning____ Here the guest by his own act was prevented from apprehending threatened danger, and, a fortiori, from giving warning of it. He was asleep. Was this contributory negligence? May a guest in an automobile place himself in a condition which makes it impossible for him to learn of threatened danger? In other words, must he remain awake so that he may observe obvious danger? Ordinarily, there is no duty that requires a guest to remain awake when riding in an automobile. That a guest may occasionally go to sleep in an automobile is a matter of common experience____ It must be now regarded as settled that the mere fact of sleeping does not, as a matter of law, convict a guest in an automobile of negligence____
... However, it cannot be said that under all circumstances a guest may entrust his safety to the driver and thereby relieve himself of responsibility. If some additional inculpatory evidence of sufficient importance appears, such evidence, together with the fact of sleeping, should be submitted to the jury for a finding as to contributory negligence, or such additional evidence may be of so much importance and so grave as to constitute contributory negligence as a matter of law. To illustrate: In the present case the mere fact of the guest sleeping would not be evidence of negligence and should not be so considered; but, there is the additional fact that this guest went to sleep when he knew that he and the driver had worked the day before, drove from New Castle to Youngstown in the evening, there met some young ladies, spent the evening at their home and at a dance hall, dancing until late at night, then went to an eating house, and from there left at 3 o’clock in the morning to drive home. Under such circumstances it became a question for the jury as to whether he, as a reasonably prudent man, should have permitted himself to fall asleep, entrusting his safety solely to the driver of the car.

Id., 315 Pa. at 259-260, 173 A. at 187. The jury in Frank found the plaintiff to have been contributorily negligent by falling asleep while a passenger under the facts set forth above. The Court saw no reason to disturb the jury’s verdict, noting as obvious the inferences found by the jury under the facts: that both driver and passenger were too tired to have set out on their journey and should not have done so. Id., 315 Pa. at 261, 173 A. at 187.

Hill argues, however, that her case is distinguishable from Frank in that there was no additional inculpatory evidence of sufficient importance produced at trial which would allow a jury to consider her sleeping while a passenger to be negligent. Specifically, Hill argues that there was no evidence that Reynolds was fatigued or intoxicated. By contrast, in Frank there was evidence of the driver’s fatigue by the fact that the driver fell asleep at the wheel causing the accident. Hill bolsters her argument by citing her testimony that Reynolds did not appear tired to her prior to her falling asleep. Therefore, Hill contends, a jury could only arrive at a determination of Reynolds’s fatigue through speculation.

We disagree that there was no additional inculpatory evidence. While this additional evidence may not be as forceful as the evidence in Frank in that there was no direct evidence of Reynolds’s fatigue, the facts of the events prior to the accident, of the extended social outing that lasted from at least 10:30 p.m. until 6:25 a.m. the following morning when the accident occurred, do allow for inferences that Reynolds, Hill, and their companions were too fatigued to set out on their journey back to Monessen when they did and that Hill should have realized this before allowing herself to fall asleep as a passenger.

‘... where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. A court may set aside a verdict as against the weight of the evidence, but that is the most they [sic] can do to assist the party.’

Heffernan v. Rosser, 419 Pa. 550, 554-555, 215 A.2d 655, 657 (1966) (quoting Howard Express Co. v. Wile, 64 Pa. 201, 205-206 (1870)) (emphasis added in Heffernan v. Rosser). See also O’Donnell v. Westinghouse Electric Corporation, 515 Pa. 307, 528 A.2d 576 (1987); Yandrich v. Radic, 291 Pa.Super 75, 435 A.2d 226 (1981), and Smith v. Port Authority Transit, 257 Pa.Super. 66, 390 A.2d 249 (1978).

Thus, while evidence supporting Reynolds’s defense that Hill was negligent in her own right may not be substantial on its face, facts were indeed placed into evidence from which Hill’s contributory negligence could properly be inferred. The weighing of these facts and the proper drawing of inferences therefrom was in the proper domain of the jury. See O’Donnell, 515 Pa. 307, 528 A.2d 576 and Berry, 324 Pa.Super. 499, 472 A.2d 191. In this result, we are supported by a line of cases stemming from Frank which properly direct that where a passenger falls asleep in an automobile that is later involved in an accident, the fact finder in the resulting lawsuit by the passenger has the responsibility to determine under the surrounding facts whether the passenger was contributorily negligent for having fallen asleep. See Anstine v. Pennsylvania R. Co., 342 Pa. 423, 20 A.2d 774 (1941); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961); Campana v. Bower, 424 Pa. 383, 227 A.2d 887 (1967), and Stafford v. Roadway Transit Co., 70 F.Supp. 555 (W.D.Pa.1947).

Accordingly, the trial court properly instructed the jury in addressing the issue of Hill’s possible contributory negligence.

Hill next challenges Frank itself as asserting “an absurd and unworkable rule of law.” Hill argues that it is incorrect or illogical to assign negligence to a passenger upon the moment of his falling asleep when there are attendant circumstances that would make the passenger’s falling asleep negligent, but rather the negligence should be assigned to the passenger the moment he enters the automobile knowing that there is a potential for danger. That is, if a passenger knows that the driver is fatigued or intoxicated, it would be negligent for the passenger to voluntarily agree to be in the vehicle in the first place, not at the later point where he falls asleep. With respect to Hill’s appeal, she argues that if the law of contributory negligence for automobile passengers would be thus construed, then it was error for the trial court to have instructed the jury on the issue of Hill’s contributory negligence in the manner in which it did.

We note immediately a flaw in Hill’s logic. Hill would have us construe Pennsylvania law to assign negligence to her immediately upon becoming a passenger if the aforesaid attendant circumstances were present, rather than at the later point when she fell asleep. Of course, Hill maintains that there was no evidence of these attendant circumstances brought forth at trial. We have discussed this issue. There was evidence produced from which a jury could infer that Hill was contributorily negligent, and the jury found her to be so. Therefore, the jury found the attendant circumstances to be present at the time Hill entered the automobile for the return trip to Monessen. Had the trial court charged as Hill would have wished, she would still have been found by the jury to have been contributorily negligent.

Further, Hill has given Frank a too formalistic and restrictive reading. Frank does not mandate a rigid “sleeping test” to all questions concerning a passenger’s possible contributory negligence, as Hill suggests. Rather, the standard is more broadly stated. We have quoted it previously and do so once again: “Such negligence exists when two circumstances concur: First, an opportunity to know of threatened danger; second, an opportunity to give warning.” Frank, 315 Pa. at 259, 173 A. at 187.

We construe Hill’s argument to advocate a standard actually more strict than the one applied to her at trial: she would ask to be found negligent if she had an opportunity to know of potential danger only. This approach does not allow for any flexibility among different factual settings or the different levels of fatigue or other incapacities from which the driver might suffer. It may often be the case that a danger will not arise until sometime into the journey when fatigue from an entire evening’s activities (or whatever may be the cause) will overcome the driver. Unless asleep, the passenger will have an opportunity to warn at this point. While knowledge of the circumstances involving the driver’s fatigue or other incapacity may require the passenger to remain vigilant during the journey, the circumstances might not be of such force as to cause reasonable persons to conclude that the passenger was negligent by becoming a passenger from the start. We are therefore not persuaded that the settled law in Pennsylvania on this issue should be changed. Accordingly, we reject Hill’s challenge to Frank and its progeny.

Hill next contends that the trial court erred by denying her Motion in Limine. By the Motion in Limine, Hill attempted to prevent testimony concerning the events prior to the accident from coming into evidence. Hill reasoned that unless the evidence would show that Reynolds was either intoxicated or fatigued when Hill volunteered to be a passenger with him, the evidence was irrelevant. Further, Hill argues that she feared that such evidence would cause the jury to view her with an unfair prejudice. Specifically, Hill contends that if the jury were to learn that she, a white widow with a child, was in the company of a married black man, Reynolds, on the evening in question by mention of the various establishments and neighborhoods where the two had visited that evening, the jury would harbor an unfair bias against her.

We need only reference our disposition to Hill’s first two questions on appeal to address the issue of the relevance of the events occurring prior to the accident. The evidence of the all-night outing is pertinent to the issue of Hill’s contributory negligence.

Hill maintains, however, that once she testified that Reynolds did not appear to her to be fatigued, the inquiry into the events prior to the accident must cease in absence of direct testimony to the contrary. This reasoning ignores the well-established tenet of the fact-finding process that a jury or judge need not believe the testimony of a witness, even if uncontradicted. See Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955); Morgan v. Philadelphia Electric Co., 299 Pa.Super. 545, 445 A.2d 1263 (1982); Rogers v. Hammett, 229 Pa.Super. 6, 323 A.2d 394 (1974). The trier of fact, while passing upon the credibility of witnesses, is free to believe all, part, or none of the evidence. See, e.g., Commonwealth v. Griscavage, 512 Pa. 534, 517 A.2d 1256 (1986); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). Hill’s argument that the testimony on the pre-accident events was rendered irrelevant or impermissible by her testimony that Reynolds did not appear to her to be fatigued is therefore without substance.

Hill’s secondary argument that this evidence was also unfairly prejudicial to her is similarly without foundation. Indeed, it is ludicrous for Hill to argue that evidence which might indicate that Reynolds is black would be prejudicial. Reynolds was the defendant. Hill hauled him into court, and he had the right of every litigant to appear in open court and defend claims made against him or press his own. Had he done so, the jury would have discerned his race immediately. Hill, therefore, may not build an argument based on the fortuity that Reynolds did not appear in court. In any event, we note that the record shows no testimony stating that Reynolds was either black or married.

Hill also argues on this issue that it was prejudicial for defense counsel to state in his opening statement that the defense would not infer from the anticipated testimony concerning the events prior to the accident that Hill and Reynolds had sexual relations. Hill further argues that it was prejudicial for defense counsel to have elicited testimony from Hill that she and Reynolds and their companions ventured to Wiley Avenue, which apparently is in a predominantly black section of Pittsburgh. Hill did not object to either act of defense counsel at trial. Therefore, these issues have been waived. Pa.R.A.P. 302(a).

Hill’s next issue involves the prejudicial effect, if any, of defense counsel’s asking Hill on cross-examination whether Hill mentioned to her examining psychologist the alleged fact that she had been physically or sexually abused as a child. The question was raised to elicit testimony which defense counsel believed would cast doubt on the extent of the psychological damages Hill claimed resulted from the accident. The trial court sustained Hill’s objection to the question and instructed the jury members to disregard it.

We first note that no testimony was placed into evidence in regard to this matter. Defense counsel asked a question to which Hill did not respond; her counsel objected before she could utter a response. By contrast, evidence was later admitted through the testimony of the psychologist in question, Dr. Bernstein, who stated that in his clinical opinion there was a direct relationship between the accident and the subsequent emotional problems that Hill experienced. N.T. 255.

We are therefore not faced with an issue concerning evidence improperly admitted, as Hill suggests, but whether defense counsel’s remarks were improper and, if so, should a new trial be granted because of them.

The grant of a new trial because of counsel’s improper remarks is within the discretion of the trial court. Stevenson v. Pennsylvania Sports and Enterprise, Inc., 372 Pa. 157, 93 A.2d 236 (1953); Harvey v. Hassinger, 315 Pa.Super. 97, 461 A.2d 814 (1983). If the trial court determines that instructions to the jury to disregard the remarks are sufficient, an appellate court should be “reluctant to reverse since the trial judge is in a better position to see and understand the atmosphere of the trial and the effect the statement had on the jury.” Narcisco v. Mauch Chunk Twp., 369 Pa. 549, 552, 87 A.2d 233, 234 (1952). Whether the trial court abused its discretion in denying a new trial will be determined by “an examination of the remark made, the circumstances under which it was made and the precautions taken by court and counsel to remove its prejudicial effects.” Id., 369 Pa. at 552, 87 A.2d at 234-235. See also Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377 (1987).

Our first observation is that defense counsel's question was not asked in speculation. See N.T. 185-138, 275-282. While the question in its own may have been prejudicial to Hill’s case for psychological damages, we are hesitant to call it improper because of the existence of a foundation. The question was not irrelevant, even though the weight of the evidence to have been elicited may not have been substantial. We next observe that the trial court quickly and amply instructed the jury to disregard the question. Finally, we note that this single question occurred during the first day of a three-day trial when extensive testimony from Hill’s treating psychologist was to follow regarding Hill’s psychological condition and the affect the accident had in causing Hill to have emotional difficulties. Under these circumstances, and in view of the entire record, we cannot find that the trial court abused its discretion by not granting a new trial.

Finally, Hill argues that the trial court erred in permitting Reynolds’s vocational expert, Mark Heckman, to testify that Hill was capable of performing light duty work when the testimony of the medical experts of both Hill and Reynolds stated that Hill was capable of performing only sedentary work as a result of the accident. Hill claims that the allegedly impermissible testimony of Heckman influenced the jury to return a lower assessment of damages.

The issue is whether Heckman was qualified to render an opinion on the kind of work Hill was capable of performing after the accident. “A witness will be qualified as an expert if he or she has any reasonable pretension to specialized knowledge on the subject under investigation.” Yoho v. Stack, 373 Pa.Super. 77, 540 A.2d 307 (1988). See also Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974). The witness, however, need not possess all of the knowledge in his or her special field of activity or study in order to qualify as an expert. Yoho, 373 Pa.Super. 77, 540 A.2d 307.

Heckman testified that he has been a rehabilitation counselor for fourteen and one-half years and is nationally certified as such. His job, as such counselor, is to assess an ill or disabled person’s residual physical capabilities, vocational skills, and educational background and from that data determine potential employment functions. Heckman testified that he had worked with thousands of disabled individuals over the years. Hill did not cross-examine Heckman on his background or qualifications. See N.T. 332-339.

In light of Heckman’s qualifications we cannot find that the trial court erred in allowing Heckman to render an opinion on Hill’s potential job functions. Hill argues that only another medical doctor would be qualified to contradict the medical testimony already given. This does not follow. Heckman testified that he possessed a specialized knowledge allowing him to render an opinion in court concerning Hill’s vocational possibilities. Hill had an opportunity to cross-examine Heckman on this issue and indeed did so. The weight of Heckman’s testimony on direct and cross-examination as against the medical testimony was for the jury to determine. See, e.g., Connell v. Connell, 329 Pa.Super. 1, 477 A.2d 872 (1984); Tamaqua Borough v. Rush Twp. Sewer Authority, 85 Pa.Cmwlth. 421, 482 A.2d 1167 (1984). Accordingly, we dismiss Hill’s final contention.

The judgment of the trial court is affirmed.

      . Although it is evident from Hill’s brief that Hill is dissatisfied with her award of damages, Hill has not raised any issue directly challenging the adequacy of the damages. Accordingly, this issue is not before us. See Pa.R.A.P. 2116(a), 2117(b), 2118, 2119(a).

      . This last item of testimony is from Hill’s direct examination. Here, we also note that Hill contends that it was improper for defense counsel to have elicited the testimony Hill gave on cross-examination concerning the events occurring prior to the accident. This testimony we have relied upon in presenting the facts. Hill’s Motion in Limine, previously referred to, was designed to shield this testimony. The trial court denied this motion, and we affirm the trial court’s ruling for reasons hereinafter stated. Accordingly, we have used the cross-examination testimony of Hill to set forth facts we deem relevant to the disposition of this appeal.

      . Rule 302(a) of the Pennsylvania Rules of Appellate Procedure states that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.”


author: BECK, Judge:

text:
    557 A.2d 767
    Nereida MELENDEZ, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and Travelers Insurance Company. Appeal of Esmaraldo CRUZ and Margaret Hemingway.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed April 20, 1989.

      David Deratzian, Philadelphia, for appellant.
    Michael Senoyuit, III, Delaware, for appellee.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   BECK, Judge:

This case presents the issue of whether, under the Financial Responsibility Law, an Assigned Claims Plan insurer may deny a claimant’s demand for recovery where the claimant has extinguished the insurer’s right to subrogation against a tortfeasor. We find that under these circumstances, the insurer may deny recovery to the claimant.

Appellant Nereida Melendez sustained injuries in an automobile accident on December 14, 1984. On December 12, 1986, she filed a complaint seeking first-party benefits from Travelers Insurance Company (Travelers) under the Pennsylvania Motor Vehicle Financial Responsibility Law, (Financial Responsibility Law), 75 Pa.Cons.Stat.Ann. § 1701 et seq. (Purdon Supp.1988). Melendez also filed an action against the alleged tortfeasor, Margaret Hemingway, who was the operator of the vehicle with which Melendez collided. This suit was prosecuted to judgment in an arbitration action. On August 17,1987, Melendez, without seeking and obtaining approval of Travelers, executed a release in favor of Hemingway.

In March of 1987, Melendez filed an amended complaint against Travelers. Travelers filed a third party suit against additional defendants Margaret Hemingway and Esmeraldo Cruz, the uninsured owner of the vehicle Melendez was operating at the time of the accident. Travelers filed an answer and new matter to Melendez’ complaint, and Cruz and Hemingway filed an answer and new matter to Travelers’ complaint. Travelers then filed a motion for summary judgment, and Melendez filed a response to this motion. The trial court granted Travelers’ motion and Melendez’ complaint was dismissed. This appeal followed.

Melendez asserts that the trial court erred in granting Travelers’ motion for summary judgment because Melendez’ settlement with Hemingway did not discharge Travelers’ obligation to pay first-party benefits under the Assigned Claims Plan (ACP).

In reviewing a grant of summary judgment, the Superior Court’s function is to determine whether there are genuine issues of triable fact. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). In deciding a motion for summary judgment, a court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984).

The trial court granted Travelers’ motion for summary judgment because it found that appellant’s release of Hemingway extinguished Travelers right to subrogation. As was noted by the trial court, subrogation by the Assigned Claims Plan insurer is authorized under section 1756 of the Financial Responsibility Law, which provides:

the Assigned Claims Plan or its assignee is entitled to recover, in accordance with the tort liability law of this Commonwealth, reimbursement for benefits or coverage paid, loss adjustment costs and any other sums paid to an eligible claimant under this chapter.

75 Pa.Cons.Stat.Ann. § 1756. In support of its conclusion that Melendez forfeited her right to recover from Travelers, the trial court relied upon the memorandum decision of this Court in Rockmore v. The Travelers, 375 Pa.Super. 630, 541 A.2d 38 (1988). In Rockmore the Superior Court held that Travelers’ obligation to pay benefits to a claimant was discharged by operation of law where the claimant extinguished Travelers’ subrogation rights.

Initially, we note that the trial court should not have relied on the memorandum opinion in Rockmore. Memorandum opinions of this court are not precedential. See Commonwealth v. Kelliher, 325 Pa.Super. 228, 472 A.2d 1091 (1984). However, we find that the authority relied upon in Rockmore applies to the instant case, and that the trial court’s conclusion was correct.

We hold that claimants seeking recovery from the Assigned Claims Plan forfeit their right to recover from the Assigned Claims Plan where the claimants extinguish the insurer’s right to subrogation against a tortfeaser. The question raised by this appeal is an issue of first impression under the Financial Responsibility Law although the principle has been firmly established under the Uninsured Motorist Act, Pa.Stat.Ann. tit. 40, § 2000 (Purdon 1971). Cotton v. Insurance Company of North America, 344 Pa.Super. 602, 497 A.2d 254 (1985), held that in the context of the Uninsured Motorist Act, a settlement between a claimant and a tortfeasor, entered into without the Assigned Claims Plan designee’s consent, precluded the claimant from recovering any uninsured motorist benefits from the designee insurer. This conclusion was based upon a provision in the Uninsured Motorist Act, 40 Pa.Stat.Ann. tit. 40, § 2000(e)(2) (Purdon 1971) which provides:

(e) The coverage required by this section does not apply: (2) To bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor.

In Cotton we stated that section 2000(e)(2) was intended “to protect the subrogation rights of the [Plan].” 344 Pa.Super. at 603, 497 A.2d at 255.

Section 1756 of the Financial Responsibility Law also relates to the rights of the insurer to subrogation under the Assigned Claims Plan. Although the language in the Financial Responsibility Law is not identical to that in the Uninsured Motorist Act, we conclude that Section 1756 of the Financial Responsibility Law was enacted to effectuate the same results as section 2000(e)(2) of the Uninsured Motorist Act in protecting subrogation rights of the insurer.

Appellant argues that unlike section 2000(e) of the Uninsured Motorist Act dealt with in Cotton, the Financial Responsibility Law provides no absolute right to subrogation. However, section 1756 of the Financial Responsibility Law provides that the Plan’s subrogation rights should be construed in accordance with the tort liability law of this Commonwealth.

Under the relevant caselaw of this Commonwealth dealing with both contractual and statutory, insurance subrogation issues, it is clear that where an injured party extinguishes an insurer’s subrogation rights by settling and releasing an alleged tortfeasor, the injured party loses his right to recover from the insurer. See Nagle v. Allstate Ins. Co., 358 Pa.Super. 82, 516 A.2d 1191 (1986) (plaintiff’s settlement with tortfeasors precludes recovery under the Uninsured Motorist Act); Littlejohn v. Keystone Ins. Co., 353 Pa.Super. 63, 509 A.2d 334 (1986) (insured who entered into settlement agreement without written consent of insurer was precluded from recovering uninsured motorist benefits); Bradford v. American Mut. Liab. Ins. Co., 213 Pa.Super. 8, 245 A.2d 478, 479 (1968) (insured who enters into a settlement agreement without the written consent of the insurer may not recover from insurer under Uninsured Motorist Act); Demmery v. Nat’l. Union Fire Ins. Co., 210 Pa.Super. 193, 232 A.2d 21 (1967) (where insured fails to comply with insurance policy subrogation clause, insurer is not required to make payments under the policy).

Protecting the insurer’s subrogation rights is necessary to further the Commonwealth’s public policy against double recovery. Rossi v. State Farm, 318 Pa.Super. 386, 390, 465 A.2d 8, 10 (1983) (applying policy against double recoveries in insurance context.) This policy would seem especially important where an Assigned Claims Plan insurer is involved. The Assigned Claims Plan was established to protect certain claimants who would otherwise be unprotected. Frustrating the subrogation rights of an ACP designated insurer would no doubt weaken the Plan. Therefore, it would be imprudent policy to permit double recovery by an ACP claimant who has released a tortfeasor at the expense of the subrogation rights of the Plan.

Melendez also argues that the recent decision of this court en banc in Sparler v. Fireman’s Insurance Company of Newark, N.J., 360 Pa.Super. 597, 521 A.2d 433 (1987), is dispositive. We disagree. Sparler brought a declaratory judgment action to determine whether his general release of a third party tortfeasor relieved his insurer of its obligation to pay underinsured motorist benefits. We find that Sparler does not offer guidance. First, Sparler did not directly address the subrogation issue. The Sparler court stated “in light of our disposition of this case, we need not review the propriety of the (trial) court’s determination of this (the subrogation) issue.” 360 Pa.Super. at 608, n. 2, 521 A.2d at 438 n. 2. Furthermore, Sparler involved the interpretation of language in an insurance contract, not the construction of the Financial Responsibility Law which we have before us in the instant case. Sparler, therefore, is not dispositive.

Finally, appellant maintains that even if she destroyed Travelers’ subrogation rights against Hemingway, she did not destroy Travelers’ subrogation rights as to a potential second tortfeasor, Cruz. Under the facts of the instant case it is questionable whether Melendez has a tort claim against Cruz. Since Melendez has not demonstrated that she has such a claim against Cruz, we decline to decide the issue.

Since appellant obtained a judgment against and executed a release in favor of tortfeasor Hemingway, thereby extinguishing Travelers’ right to subrogation from the tortfeasor, appellant is not entitled to recover again from Travelers for first-party benefits. The trial court was correct in granting Travelers’ motion for summary judgment.

Order affirmed.


author: WIEAND, Judge:

text:
    557 A.2d 770
    Gibson SMITH, Executor of the Estate of Rachael P. Hake, Deceased, Appellee, v. STERNER CHEVROLET-OLDSMOBILE, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1988.
    Filed April 17, 1989.

      W. William Anderson, York, for appellant.
    Gibson Smith, York, in propria persona.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

This is an appeal from a final decree quieting title to real estate and barring lienholders from asserting any right, title, lien, or interest with respect thereto. After careful review, we affirm.

By deed dated January 30, 1981 and duly recorded, Rachael P. Hake conveyed to her son, Roy Paul Hake, a certain tract of land containing approximately 61 acres, together with the improvements thereon, in Chanceford Township, York County. The deed reserved a life estate to the grantor and contained the following language:

AND FURTHER, the Grantee covenants that, for and during the remaining term of the Grantor’s life, Grantee will do all of the following: (1) reside in the above-described premises; (2) continue to perform or cause to be performed maintenance and repair work about the premises as he has done in the past; (3) insofar as it lies within his power to do so, make necessary improvements to the premises; (4) and otherwise continue to provide support and maintenance for me as he has done in the past. Failure on the part of the Grantee to keep and perform the above covenants shall render the above conveyance void and of no effect. Upon Grantor’s death, this condition shall terminate and be of no further force and effect and any reversionary interest, claim or right then existing hereunder shall be forfeited. The covenants contained herein are personal and shall not run with the land or bind subsequent purchasers. Provided further that in the event Grantee predeceases Grantor, this conveyance shall be null and void and of no force and effect, and the above-described premises shall revert to Grantor.

On May 15,1981, Roy P. Hake executed in favor of Signal Consumer Discount Company a mortgage on the premises. This mortgage was subsequently assigned to First American Title Insurance Company. On May 18, 1982, a judgment was entered against Roy P. Hake by Southern Pennsylvania Bank, now Dauphin Deposit Bank and Trust Company. This judgment was later assigned to Sterner Chevrolet-Oldsmobile, Inc. Additional judgments were recovered by Anthony J. Napoli on September 1, 1982 and by York Bank and Trust Company on November 17, 1982.

On December 30, 1982, Hake executed and delivered to his mother, Rachael P. Hake, a quitclaim deed for the premises in which he recited his failure to perform the covenants imposed by the deed of January 30, 1981. Mrs. Hake remained constantly in possession of and occupied the premises until she died on June 14, 1986. Thereafter, the executor of her estate, Gibson Smith, commenced an action to quiet title in which he named as defendants the mortgage and judgment creditors of Roy P. Hake. Following trial without jury, the trial court found that Roy P. Hake’s interest in the real estate had been a remainder in fee simple subject to conditions subsequent. The court also found that the conditions had not been complied with and that the grantor had enforced a forfeiture by re-entry and re-assertion of her title. Post-trial motions were filed by First American Title Insurance Company and Sterner Chevrolet-Oldsmobile, Inc. When post-trial motions were dismissed, this appeal was filed. First American Title Insurance Company, however, has since withdrawn its appeal, so that the only appeal presently before this Court is that of Sterner Chevrolet-Oldsmobile, Inc.

Appellant does not challenge the trial court’s determination that the interest conveyed by mother to son was a remainder in fee simple subject to conditions subsequent. With respect to the conditions to be performed during the lifetimes of grantor and grantee, therefore, it is sufficient for our purposes to observe that the trial court’s determination was consistent with the decision of the Superior Court in Stolarick v. Stolarick, 241 Pa.Super. 498, 363 A.2d 793 (1976). There, the grantor’s deed had imposed conditions and had provided that in the event of nonperformance, the deed was to be “null and void.” The Superior Court held that the deed had conveyed title in fee simple subject to a condition subsequent. The Court said:

“When an otherwise effective conveyance contains a clause which provides that ‘if,’ or ‘upon the condition that,’ or ‘provided that’ a stated event occurs, then the estate created ‘shall be null and void’ or ‘shall revert back,’ a problem in construction is presented as to whether such conveyance creates an estate in fee simple subject to a condition subsequent or an estate in fee simple determinable. Such a conveyance more commonly manifests an intent to create an estate in fee simple subject to a condition subsequent.”

Id., 241 Pa.Superior Ct. at 506, 363 A.2d at 798, quoting Restatement of Property § 45, comment m.

“The grantor of an estate upon condition subsequent has a right of re-entry which becomes enforceable upon breach of the condition.” 28 Am.Jur.2d Estates § 161. Whether to treat a breach of the condition as a forfeiture, however, is optional with the grantor. “If it is desired to take advantage of the forfeiture upon breach of the condition, the grantor may enter peaceably if he can do so, or he may maintain an action for recovery of the premises in the event the grantee refuses to surrender possession.” Id. See: Smith v. Glen Alden Coal Co., 347 Pa. 290, 300, 32 A.2d 227, 233 (1943); Stolarick v. Stolarick, supra 241 Pa.Super. at 507, 363 A.2d at 798. The rule of law, therefore, has been stated as follows:

The breach of a condition subsequent in a deed or will, although the deed or will contains words of forfeiture and re-entry, does not ipso facto produce reverter of title, inasmuch as performance of the condition or a breach thereof may be waived by the grantor or testator and the condition be dispensed with. Thus, if an estate upon condition subsequent has been created, even after breach of the condition, some affirmative act on the part of the creator of the estate or his successors in interest is necessary to defeat the estate conveyed or devised to the grantee or devisee. The estate of the grantee continues in full force until the proper step or steps are taken to consummate the forfeiture, and until entry or action, the quantity of the estate of the grantee is unimpaired. If the right of entry is never exercised, the estate remains as before. The grantee still has possession with all the advantages which, by the common law, belong to possession.

28 Am.Jur.2d Estates § 162 (citations omitted). See also: Restatement of Property § 57.

The trial court found that the grantor, during her lifetime, had effected a re-entry of the premises and had thereby consummated a forfeiture of the estate created by her deed of January 30, 1981. Appellant argues on appeal, however, that the evidence was insufficient to establish a consummation of the forfeiture during the lifetime of the grantor. Because the right to declare a forfeiture did not survive the grantor, appellant contends, the forfeiture cannot be perfected by the estate of the deceased grantor. This argument, however, is premised upon the misconception that an action at law or in equity is essential to effect a forfeiture.

The grantor in this case was in possession of the premises when the conditions were breached. Although the Pennsylvania appellate courts do not appear to have considered the effect of such continued possession, the courts of other jurisdictions have held that “where the party to be benefitted by the breach of a condition subsequent is already in possession of the premises when the condition is breached, so that he cannot make a formal entry, the law presumes that he holds for the purpose of enforcing the forfeiture, in the absence of proof to the contrary.” 28 Am.Jur.2d Estates § 163. See: Frost v. Butler, 7 Me. 225 (1831); Hubbard v. Hubbard, 97 Mass. 188 (1867); O’Brien v. Wagner, 94 Mo. 93, 7 S.W. 19 (1888). Here, there was no evidence that the grantor’s continued possession was not for the purpose of enforcing the grantee’s forfeiture.

On the contrary, the evidence showed that the grantor and grantee had conceded the forfeiture of the grantee’s estate. Thus, the grantee had executed and delivered to the grantor a quitclaim deed reciting a breach of the conditions subsequent and reconveying his interest to the grantor. Under these circumstances, the trial court could find, as it did, that a re-entry by the grantor had been perfected.

An action to quiet title, subsequently brought by the executor of the deceased grantor’s estate, was not essential to the grantor’s declaring a forfeiture of the grantee’s estate. The forfeiture was perfected by the grantor’s re-entry. The subsequent action to quiet title served only to clear the title of clouds resulting from the liens against the grantee’s interest in the property by virtue of mortgages and judgments appearing of record against such grantee. The liens created thereby were also subject to the conditions contained in the grantee’s deed, for the deed had been recorded and gave notice to all the world of the nature of the grantee’s estate. When the grantee’s interest was forfeited, the liens against that interest necessarily fell. They did not continue against the grantor after she had declared the default and exercised her right of re-entry. The trial court correctly so held.

Affirmed.


text:
    557 A.2d 772
    Doris CANUTE, Appellee, v. Jacob G. CANUTE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1989.
    Filed April 17, 1989.

      Kathy W. Morrison, Harrisburg, for appellant.
    Todd A. Hoover, Harrisburg, for appellee.

      Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from a June 14, 1988, order of the Dauphin County Court of Common Pleas directing appellant/husband to pay appellee/wife spousal support in the amount of $130.00 per week plus $20.00 per week on arrears effective March 7,1988. For the reasons herein set forth, we reverse.

The pertinent facts are as follows: Appellant and appellee started their romantic relationship on March 29, 1983, after they met at the Grantville, Pennsylvania, Holiday Inn. On April 14, 1983, appellant moved in with appellee. Throughout their relationship, appellee knew appellant was married to Sandra Canute.

Appellant began divorce proceedings from Sandra Canute in 1983, but the divorce was not finalized until January 18, 1985. Although appellee knew appellant was already married, she made arrangements for the couple to be married on May 6, 1983, in Roanoke, Virginia. Thereafter, the couple first separated on or about December, 1987, and separated for the final time on February 6, 1988.

A complaint for spousal support was filed by appellee on or about March 16,1988. Following a support conference, a recommended order for spousal support was entered on April 14, 1988, in the amount of $150.00 per week, plus $10.00 per week on arrears. On April 28, 1988, appellant filed an appeal to the trial court. The Honorable Clarance C. Morrison held a de novo hearing on June 14, 1988, thereafter entering the order in question. See Pa.R.C.P. 1910.11. On July 13,1988, appellant timely filed a notice of appeal to this Court.

Appellant raises three issues for our consideration. First, he argues the trial court erred in determining that a common law marriage existed between himself and appellee. Secondly, appellant contends that neither the divorce code nor marriage law provides a statutory sanction of marriage when the parties entered into a civil marriage fully aware of a legal impediment to the marriage. Appellant’s final argument is that the June 14, 1988, order of spousal support is excessive.

In the case of In Manfredi Estate, 399 Pa. 285, 159 A.2d 697 (1960), our Supreme Court discussed statutory and common law marriages. The Court noted that: “[m]arriage in Pennsylvania is a civil contract by which a man and a woman take each other for husband and wife. There are two kinds of marriage: (1) ceremonial; and (2) common law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities. It is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words — not in futuro or in postea, but — in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife.” Id. 159 A.2d 697 (1960) (emphasis in original) (citations omitted).

Cohabitation of a man and woman, both of whom are capable of contracting marriage, and a reputation as husband and wife in their community together raise a presumption that the parties have contracted marriage. In re Estate of Garges, 474 Pa. 237, 378 A.2d 307 (1977). See e.g., Thorndell v. Morrison, 25 Pa. 326 (1855); Pierce v. Pierce, 355 Pa. 175, 49 A.2d 346 (1946). An essential element for a common law marriage is intent to establish a marital relationship. Evidence of intent may consist of words uttered in the present tense for the purpose of establishing the relation of husband and wife. Steadman v. Turner, 357 Pa.Super. 361, 516 A.2d 21 (1986) allocatur denied in 515 Pa. 624, 531 A.2d 431. See also, Gower Estate, 445 Pa. 554, 284 A.2d 742 (1971); Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). Cohabitation and reputation of marriage do not alone create a marriage. They are only mere circumstances from which a marriage may be inferred and rebutted by other facts and circumstances. See Pierce, 355 Pa. 175, 49 A.2d 346 (1946); Wagners Estate, 398 Pa. 531, 159 A.2d 495 (1960). See also, In re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354 (1984).

Instantly, an impediment to the marriage existed when the relationship between the parties began. At the time the couple took their marriage vows on May 6, 1983, in a Virginia civil ceremony, both individuals knew appellant was still legally married to Sandra Canute. The relationship was therefore meretricious because both partners were aware of the impediment. Pierce, 355 Pa. 175, 49 A.2d 346 (1946); Garges, 474 Pa. 237, 378 A.2d 307 (1977). Where the relationship began while at least one of the parties was married to a third person, the courts will presume that the parties continued to live together unmarried even after the impediment to their marriage had been removed unless thereafter they reaffirm their marriage agreement. Id. 378 A.2d at 309, quoting Pierce, supra. Furthermore, where a relationship is meretricious at its inception, there must be clear evidence of a change in status to rebut the presumption that the non-marriage continued after the impediment to the marriage was removed. Turner, 357 Pa.Super. 361, 516 A.2d 21 (1986). See also, Pierce, supra; Garges, supra.

In the case sub judice, the evidence established at the June 14, 1988, hearing revealed that, from the time of their “non-legal marriage” in 1983, the couple shared a residence, income, expenses, a checking account and sexual relations until their final separation during February, 1988. However, appellee’s evidence of cohabitation and reputation of marriage after removal of the impediment is unavailing to rebut the presumption that the non-marriage continued. For us to find a common law marriage existed, there must be clear evidence of an intent to enter into a marriage agreement after appellant was divorced from Sandra Canute in 1985. Estate of Gavula, 490 Pa. 535, 417 A.2d 168 (1980). In other words, had the couple established a marriage agreement following appellant’s 1985 divorce, this Court would be hard pressed to conclude that under the same factual circumstances a common law marriage did not exist.

Appellant’s admission that he and appellee lived together as man and wife (N.T. 6/14/88 p. 17) is not the essential proof of an agreement to enter into a legal relationship of marriage at the present time. See e.g., Rosenberger Estate, 362 Pa. 153, 65 A.2d 377 (1949). (A marriage contract was found where the man gave the woman a ring and said, “Now you have the ring and you are my wife,” whereupon the woman replied, “That is fine. I love it.” The words are in form statements that a condition of marriage exists, but in context they indicate an agreement to marry.) Instantly, amidst the evidence of cohabitation and reputation, we find no evidence of an agreement of marriage between the parties following the removal of the impediment in 1985.

After a thorough perusal of the record, we conclude that trial court committed clear error in its finding that a common law marriage existed between appellant and appellee. As such, the ruling of the lower court is reversed, and the June 14, 1988, support order is vacated.

Order vacated. Complaint for support dismissed.

      . Our ruling on this issue renders it unnecessary for the Court to discuss the following two issues.