author:
POPOVICH, Judge:
      HESTER, Judge,

text:
    682 A.2d 806
    John ERDOS, Administrator of the Estate of Kelly Erdos, Deceased, Appellant, v. BEDFORD VALLEY PETROLEUM CO., Gerald E. Sell, G.E. Sell Truck and Trailer Repair, Allied Tank & Trailer Equipment Company, Appellees.
    Superior Court of Pennsylvania.
    Argued May 1, 1996.
    Filed Aug. 9, 1996.
    Rehearing Denied Oct. 15, 1996.

      John A. Adamczyk, Pittsburgh, for appellant.
    Louis C. Long, Pittsburgh, for appellees.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge:

We are asked to review the order of the Court of Common Pleas of Blair County granting a compulsory non-suit against the plaintiff/appellant, John Erdos, Administrator of the Estate of Kelly Erdos, Deceased. We affirm.

Our review of the record discloses that this case was initiated by a writ of summons and a subsequent complaint following the work-related death of Kelly Erdos as he was welding inside a compartment in a tanker-truck at the direction of his employer/G.E. Sell, d/b/a G.E. Sell Truck and Trailer Repair. The vehicle was assembled by Allied Tank & Trailer Equipment Company, owned by Bedford Valley Petroleum Company and maintenanced by Erdos. While the repair work was being performed by the use of a welding torch, fumes were emitted from an adjoining compartment to Erdos’ work area, sparks ignited the fumes and caused an explosion killing Erdos.

Erdos’ estate instituted suit against Bedford and G.E. Sell, following which an amended complaint was filed to included Allied as an additional defendant. Sell and his company filed preliminary objections which dismissed each from the suit because of the exclusivity of the Workmen’s compensation Act. See Record No. 20. Likewise, Allied’s preliminary objections resulted in its removal from the litigation, but Bedford’s preliminary objections were granted in part only to allow the strict liability prong of the plaintiffs suit to proceed to trial. Once the plaintiff completed his case-in-chief, a motion for compulsory non-suit was granted. Post-trial motions were denied, and this appeal ensued raising the claim that the court erred in excluding the plaintiffs expert from testifying “on matters concerning which procedures are safer and necessary to meet the applicable standard of care when providing a tank which had previously contained flammable liquid (gasoline) for welding.” Appellant’s Brief at i.

It is well established in this Commonwealth that the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness had any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine. It is also well established that a witness may be qualified to render an expert opinion based on training and experience. Formal education on the subject matter of the testimony is not required, nor is it necessary that an expert be a licensed medical practitioner to testify with respect to organic matters. It is not a necessary prerequisite that the expert be possessed of all of the knowledge in a given field, only that he possess more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience.

Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525, 528 (1995) (Citations omitted; emphasis added).

In the case at bar, the plaintiffs expert (W.T. Niggel), prior to retiring in 1991 to open his own consulting firm, had been employed thirty-nine years in the chemical industry for a major chemical producer (Mobay). His responsibilities included managing the corporation’s transportation safety and services; to-wit:

Coordination and control of all emergency response activities of a highly centralized response system[ ], to hazardous materials transportation incidents.
Responsible for adherence to all Department of Transportation regulations on a corporate basis. Also responsible for OSHA regulations as they apply to the Hazard Communication Standard concerning labels and Material Safety Date Sheet distribution.
Responsible for the lease and construction specifications for all bulk equipment (railcars, special service tank-trucks, and semi-bulk containers).
Administrative control of the generation and distribution of all cautionary labels for drummed products, and Materiel Safety Data Sheet distribution to customers.

See Plaintiffs Expert’s Curriculum Vitae at page 8. Also, the expert’s educational background consisted of studying textile engineering at the Philadelphia Technical Institute and assorted non-degree courses “at UMKC and Northwestern University, in Chemistry, Chemical Engineering, Statistics, Management and Logistics.” Id. at 9. Further, regulatory data promulgated by the Environmental Protection Agency and the Pennsylvania Department of Transportation regarding generating, transporting and disposal of residual amounts of hazardous material were also within the knowledge and expertise of the witness. Id. at 3-4.

Lastly, in his report, W.T. Niggel proffered an opinion that, based on his knowledge of the chemical industry’s standards regarding the transportation and handling of hazardous flammable chemicals, Bedford was liable in failing to inspect the premises and G.E. Sell’s skill, experience and knowledge in repairing tanks transporting flammable liquids (i.e., gasoline). Id. at 1-2.

Interestingly, the Engineer’s Report on the accident prepared for Bedford agreed with plaintiffs expert that steam cleaning of the tank should have occurred before repair procedures were begun. Id. at 3. Similarly, the Report joined the plaintiffs expert in holding that “G.E. Sell should have been equipped with [testing, breathing and some work-related apparatus], and should have used them.” Id. at 4. Thus, the Report’s author opined that the direct cause of the explosion and resultant death of Erdos “was the lack of adequate safety precautions by Mr. Erdos and the supervision and/or management of G.E. Sell Truck & Trailer Repairs during the welding process.” Id. at 12. Bedford’s absence from and control over the work site and the manner of repair exempted it from liability. Id. We make reference to Bedford’s Engineering Report to show that the practices and procedures highlighted by the plaintiffs expert were not discounted by Bedford’s report. The two versions of what occurred were consistent save for the variance as to the responsibility factor.

In Montgomery v. South Philadelphia Medical Group, Inc., 441 Pa.Super. 146, 656 A.2d 1385 (1995), we found the commission of error with the trial court’s prohibition of a board certified internist with a sub-speciality in cancer treatment from testifying to the standard of care owed by a physician’s assistant to a patient complaining of breast pain or offering an opinion as to the steps that should have been taken by the medical practitioner in caring for such a patient. .

Here, as in Montgomery, we hold that the trial court erred in excluding the plaintiffs expert’s opinion as to the proximate cause of the decedent’s death. Niggel’s length of employment and knowledge regarding implementing safety measures as they apply to transporting hazardous material in the chemical industry is not so attenuated and is transferable to the petroleum industry. It appears that the trial court lost sight of the fact that both industries present an element of exposure to hazardous materials, be it in the generation, transportation or disposal of the product. Of necessity, therefore, when one speaks of transporting hazardous/flammable materials, the need to perform repairs or maintenance on the objects which store the product is inevitable.

Sub judice, the plaintiffs expert listed as one of his responsibilities during his work history with Mobay to be “[r]espons[ibility] for the ... construction [and] specifications for all bulk equipment [which included] ... special service tank trucks____” See Curriculum Vitae of Plaintiffs Expert (Emphasis added). Therefore, when one couples the length of service in the chemical industry with knowledge of safety procedures in the business involving hazardous materials and construction of tank-trucks used for specialty service, the plaintiffs witness (W.T. Niggel) qualified as an expert (exhibited reasonable pretension to specialized knowledge on the subject under investigation) to give testimony and opinion on the topic of hazardous materials in the petroleum industry. The trial court’s failure to qualify the witness as an expert constituted an abuse of discretion. See Miller, supra; Montgomery, supra.

Nonetheless, with the plaintiffs failure to establish the elements of Section 388 of the Restatement (Second) of Torts in his case-in-chief, i.e., that the defendant “ha[d] no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition”, the grant of the non-suit was warranted. See Miller, supra. More specifically, we find the remarks of the trial court on the law and facts in this regard are accurate and shall be adopted as our own; to-wit:

... the Motion for Compulsory Nonsuit is granted for the following reasons:
1. That Subsection B of the Restatement of Torts Second, Section 388, “... has no reason to believe that those for whose use the chattel is applied will realize its dangerous condition” has not been met and has not even been reached by the Plaintiff in the evidence. The Court relies on first the OSHA witness that the Plaintiff called that indicated all the work place violations were against G.E. Sell and they were responsible for those work place violations. G.E. Sell’s Manager, Mr. Franklin testified that it was Mr. Kelly Erdos’ responsibility to steam clean all the compartments, thus indicating that G.E. Sell knew of the dangerous condition and that is why they required steam cleaning of all the compartments. The prior truck repair, one month prior to this on behalf of Bedford Valley Petroleum Company by G.E. Sell, welding inside of the tank as the testimony presented.
2. That such truck repair interior welding is a reason by Bedford Valley Petroleum to believe that Sell and/or Erdos would realize the alleged dangerous conditions of the truck.
3. That the safety requirements of steam cleaning the compartments in and of itself as set forth on the work orders that have been made reference to in this testimony that was required prior to the welding is and of itself enough to give them notice that they would have reason to believe that Sell and/or Erdos would realize the alleged dangerous conditions of the tank. The further checking by the witness, albeit called as if on cross by the Plaintiff as part of the case in chief, that Mr. Foor testified that he checked with other gas/fuel truck companies about the repairs and the repair facility prior to sending the Defendant’s trucks in for repair and that finally, the dangerous condition was readily discoverable as required by the various case laws.
Therefore, as a matter of law, the requirements of Section 388 of the Restatement of Torts Second have not been reached and the Compulsory Nonsuit is granted.

Court Order dated May 24,1995.

Accordingly, despite the trial court’s commission of error in excluding the opinion testimony of the plaintiffs expert, we find that such error pales in comparison to the plaintiffs failure to disprove that the decedent was aware of the dangers associated with the welding work he was performing, which fact undermines the Section 388 Restatement (Second) of Torts claim and justifies affirmance of the entry of a compulsory non-suit. See, e.g., Miller, supra.

Order affirmed.

HESTER, J., files a Concurring and Dissenting Statement.

HESTER, Judge,

concurring and dissenting.

I concur with the finding of the majority to the effect that the trial court erred in excluding the testimony of William Niggel, appellant’s expert witness.

I respectfully dissent from that portion of the majority opinion which affirms the grant of the compulsory non-suit. The trial court ruled appellant had failed to prove appellee, Bedford Valley, had reason to believe decedent was not aware of the dangers involved in welding the tank of a truck used to transport gasoline, so there was no duty on the part of Bedford Valley to warn of the dangers involved.

Decedent was an eighteen-year old recent graduate of Altoona Vo-Tech High School. He had no experience or training with the type of welding involved herein. He was an entry-level welder. He had neither the knowledge, experience or equipment to perform the welding job safely. Decedent was in the process of grinding inside one of the four compartments within the fuel tank of a Bedford Valley tank-truck. That compartment had been steam cleaned. An explosion occurred in the adjacent compartment, blowing in the wall separating the compartments, killing appellant’s decedent. Naturally, there is no way of ascertaining whether decedent was aware of the danger involved.

The expert testimony offered by appellant and rejected by the trial court was necessary to establish the proper practices and course of conduct in the petroleum distribution business in regard to the handling of and preparing empty tank trucks for welding repairs. I would grant appellant a new trial.

      . The order was reduced to judgment on August 28, 1995. Record No. 83.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    682 A.2d 811
    COMMONWEALTH of Pennsylvania v. Frederick W. FISHER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 14, 1996.
    Filed Aug. 14, 1996.

      Philip D. Lauer, Easton, for appellant.
    Mary B. Seiverling, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge:

Frederick W. Fisher, Jr., appeals from the judgment of sentence imposed following his convictions for corrupt organizations, theft by deception, and forgery. Because we find that the conviction for corrupt organizations must be overturned, we vacate the judgment of sentence on that count. In all other respects, we affirm the judgment of sentence.

Fisher was charged with the above-stated offenses following an investigation into a real estate scheme involving property in the Monroe and Pike County area. Following a jury trial, Fisher was convicted of one count of corrupt organizations, twenty-six counts of theft by deception, and five counts of forgery. After considering Fisher’s post-trial motions, the trial court arrested judgment on four of the theft by deception charges and ruled that one of the theft by deception charges was barred by the statute of limitations. Subsequently, the court sentenced Fisher to an aggregate term of 13 years and 3 months’ to 28 years and 6 months’ imprisonment, imposed a fine of $10,000, and ordered Fisher to pay restitution and the costs of prosecution. Post-sentence motions were filed and denied without a hearing. This appeal followed.

We have re-numbered Fisher’s issues for the purposes of review. On appeal, Fisher contends that (1) the evidence was insufficient to support his convictions. Fisher also maintains that the trial court erred in; (2) permitting certain irrelevant and immaterial evidence to be presented to the jury; (3) failing to dismiss some of the charges based upon the expiration of the statute of limitations; and (4) refusing certain requested jury instructions. Finally, Fisher claims that (5) the court imposed an improper sentence.

In reviewing a challenge to the sufficiency of the evidence, “an appellate court must determine whether the evidence was sufficient to enable the [fact-finder] to find every element of the crime charged, beyond a reasonable doubt, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner.” Commonwealth v. Zimmick, 539 Pa. 548, 554, 653 A.2d 1217, 1220 (1995).

A person is guilty of theft by deception if he intentionally obtains property from another person by deception. 18 Pa.C.S. § 3922; Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876 (1994), appeal denied, 540 Pa. 596, 655 A.2d 985 (1995). Deception occurs when that person creates or reinforces a false impression regarding the value of property, or fails to correct a previously created false impression that influences the victim regarding such value. 18 Pa.C.S. §§ 3922(a)(1), (3). In the present case, the Commonwealth was required to prove that Fisher intentionally created a false impression in the minds of buyers regarding the value of the lots that he was selling and then used the buyers’ reliance on that false impression to obtain the buyers’ money. Commonwealth v. Imes, 424 Pa.Super. 633, 639, 623 A.2d 859, 862 (1993). “The Commonwealth must demonstrate not only the presence of a false impression but that the victim relied upon that impression.” Lawson, supra, at 529, 650 A.2d at 880; Imes, supra. Fisher has been convicted of 21 counts of theft by deception. The trial court found, and, after a review of the record, we agree, that Fisher systematically convinced people to trust him and to purchase property or services from him. N.T., November 30, 1993, at 72-99, 147-189; N.T., December 1, 1993, at 140-161, 188-218; N.T., December 2, 1993, at 5-33, 52-71, 82-101, 113-128; N.T., December 3, 1993, at 7-28, 59-76, 90-109; N.T., December 6, 1993, at 68-91, 130-165; N.T., December 8, 1993, at 6-35; N.T., December 9, 1993, at 8-27, 45-71, 85-108, 121-46, 169-85; N.T., December 10, 1993, at 41-56; N.T., December 13, 1993, at 68-86, 118-39.

Fisher distributed by hand, on the highways leading into the Pocono area from New York City and New Jersey, flyers advertising lake-front properties for sale. Fisher also advertised these properties in various New York and New Jersey newspapers. After responding to the advertisements, buyers were directed to come to Fisher’s office and were shown several available lots by one of Fisher’s associates. After a lot was chosen, the associate escorted the buyer back to Fisher’s office and Fisher encouraged the buyer to sign a binder on the property and give him as little as $100 for a down payment. If the buyer asked whether the lot was suitable for building, Fisher reassured the buyer that he had nothing to worry about and that the land was “perked,” meaning that it was approved for a septic system. At this point in the negotiations, Fisher had the buyer fill out a mortgage application and assured him that Fisher would arrange for financing. Fisher did not send these mortgage applications to a bank or mortgage company; instead, he issued payment books himself under bogus corporations with impressive names such as “Chase Mortgage Company” and “Monroe-Pike Mortgage Company.” After a few days, his secretary called the buyer, told him that the mortgage had been approved, and set up an appointment for the closing on the property.

Fisher typically instructed the buyer to bring to the closing two certified checks payable to themselves. Fisher assured the buyer that the checks would clear the bank more quickly if made payable in this fashion. One check was designated to cover the balance due on the down payment for the land, and the other was for closing costs, recording fees, transfer taxes, preparation of documents, and title insurance. Fisher assured the buyers as they left the office that they would receive all the necessary documents, including results of the perk tests, in the mail within a few weeks. Typically, however, the buyer received only a mortgage payment book. Buyers did not receive notice that title transfer taxes had been paid or that the new deed and mortgage had been recorded. A buyer attempting to build on his lot soon discovered that the property did not perk and could not be built upon without incurring significant additional expense, or, in some instances, could not be used for building at all. When the buyer attempted to contact Fisher regarding his dissatisfaction with the lot, Fisher avoided all phone calls, and often left for an extended trip to Bermuda. Many buyers attempted, in vain, to obtain a return of their down payments from Fisher.

Some of the victims did not purchase property from Fisher. Instead, they contracted with him for the performance of perk tests on land that they owned in the vicinity of the properties Fisher was attempting to sell. Fisher, acting in the name of Monroe-Pike Sewer Contracting, charged $250 in advance for this testing. None of the tests were performed, nor could the victims achieve a refund of their money. Still other victims contracted with Fisher, acting under the name of Redi-toFinish homes, for the construction of a shell or frame of a house. Fisher failed in these instances to complete construction and did not return the victims’ down payments on these homes. Eventually, several buyers complained to the Attorney General’s office and Fisher was charged in connection with these matters.

Intent to deprive persons of their property is an essential element of theft by deception. Commonwealth v. Grife, 444 Pa.Super. 362, 368, 664 A.2d 116, 119 (1995), appeal denied, 544 Pa. 654, 676 A.2d 1196 (1996); Lawson, supra; Imes, supra. There is ample evidence that the victims in this case relied upon Fisher’s representation that the land was suitable for building when purchasing the land. See, e.g., N.T., November 30, 1993, at 73, 80; N.T., December 1, 1993, at 140-41, 151, 191; N.T., December 2, 1993 at 8, 14, 24, 54, 85. Fisher argues that the Commonwealth has failed to prove that he intended to deceive the buyers regarding the value of the property because he had the power to deliver good title to the property at the time the property was paid in full and the deed was scheduled for delivery. Even if Fisher could have delivered good title, however, he could not have changed the characteristics of the land itself to make the land perkable when it clearly was not. Because Fisher had misrepresented that the land was perkable, and because this affected the value of the land, any possible intention of Fisher’s to cure some of the problems that the buyers encountered does not ameliorate Fisher’s guilt. See Imes, supra (holding that defendant committed theft by deception when he mortgaged the same property to several people without disclosing the existence of prior mortgages; whether the defendant intended to pay off some of the prior mortgages did not negate the intent to deceive the victims and deprive the victims of their property).

Fisher also maintains that the evidence was insufficient to support his convictions because “deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” 18 Pa.C.S. § 3922(a)(1). However, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, we find that Fisher’s failure to deliver good title to the land in question was not the only basis for the conclusion that he intended to deceive the purchasers into buying this land. Rather, we find support for his convictions in his failure to inform the buyers that the property would not pass a perk test, his failure to perform the contracted-for perk tests, his failure to construct the shell homes as required to under certain of the relevant contracts, and his repeated failures to return owed money to his dissatisfied customers. Thus, we conclude that the evidence is sufficient to support Fisher’s convictions for theft by deception. See, Lawson, supra (evidence was sufficient to support theft by deception conviction where victim testified that she believed defendant’s assurances that she would receive $30,000 payment and relied upon these assurances when giving defendant, a stranger, $16,000 as security for the $30,000); Commonwealth v. Edwards, 399 Pa.Super. 545, 582 A.2d 1078 (1990), appeal denied, 529 Pa. 640, 600 A.2d 1258 (1991) (evidence was sufficient to support conviction of theft by deception where defendant obtained funds from the Urban Local Development Corporation to begin redevelopment project and, instead, used the funds to pay off old debts).

Fisher was also convicted of forgery. The Pennsylvania Crimes Code defines forgery as follows:

(a) Offense defined. — A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1) alters any writing of another without his authority!)]

18 Pa.C.S. § 4101(a). Thus, the Commonwealth must prove that there was a false writing, that the instrument was capable of deceiving, and that the defendant intended to defraud. Commonwealth v. Dietterick, 429 Pa.Super. 180, 631 A.2d 1347 (1993), appeal denied, 538 Pa. 608, 645 A.2d 1312 (1994).

Here, the Commonwealth presented the testimony of John Beal, a potential buyer, who stated that the signature on the back of a check that he had given to Fisher for the purchase of land was not his own, and that he never gave anyone permission to sign his name on the check. N.T., December 8, 1993, at 36-37. In addition, Ann Pánico, another buyer, testified that she had given Fisher a check, which he promised not to cash, dated August 21, 1985 as security on a house that Fisher was to build for her. In November 1988, after Pánico had lost track of the check, it was processed by her bank with the date altered from 1985 to 1988. N.T., December 7, 1993, at 65-72. Another potential buyer, Kenneth DeFelice, testified that he and his wife had given Fisher a check for $100 as a binder on a piece of property and, the next day, changed their minds and requested a return of their check. Fisher told them that he tore up the check and threw it away. One year later, the check was cashed, with the date altered from 1987 to 1988. Id. at 180-85. Finally, George Reed testified that he had given Fisher two checks at a closing on a property in 1986. Subsequently, Reed discovered that there was a problem with the title to the property and stopped payment on these two checks. In 1988, after the stop payment orders had expired, the checks were presented for payment with the date changed from 1986 to 1988. N.T., December 6, 1993, at 41-49. In each of these instances, we find that the evidence established that Fisher obtained money from his victims by intentionally altering a check to his benefit. Thus, we conclude that the evidence was sufficient to support Fisher’s convictions for forgery.

Fisher was also convicted of one count of corrupt organizations. In order to convict a person under this statute, the Commonwealth must establish that the defendant, associated with an enterprise engaged in commerce, conducted the affairs of that enterprise with a pattern of racketeering activity. 18 Pa.C.S. § 911(b)(3). Fisher maintains that the corrupt organizations statute was not intended to encompass his activities, citing Commonwealth v. Bobitski, 534 Pa. 310, 632 A.2d 1294 (1993). In Bobitski, the defendant, who was responsible for awarding construction contracts for his employer, solicited bribes from various contractors. The trial court dismissed the corrupt organizations charges, and the Commonwealth appealed. In affirming the dismissal of these charges, the Pennsylvania Supreme Court noted that the legislature included in the corrupt organizations statute a lengthy preamble containing findings of fact which set forth the purpose and intended scope of the act. The court found that the express intent of the statute “was to prevent infiltration of legitimate businesses by organized crime.” Id. at 314, 632 A.2d at 1296. Thus, the court concluded that

[i]t was not the intent of the General Assembly to use this particular statute to enhance the punishment of an ‘organized’ criminal. A defendant who commits a series of methodical crimes is neither a natural nor an obvious target of the corrupt organizations statute. There are no facts alleged which lift the conduct of this particular white collar criminal out of the ordinary class of white collar criminals and make him appear to be part of the ‘sophisticated, diversified, and widespread phenomenon’ defined in the statute as organized crime. See, 18 Pa.C.S. § 911(a)(1).

Id. at 315, 632 A.2d at 1296-97.

Similarly, in the instant case, we find that Fisher is not the kind of criminal that the legislature intended to target with the corrupt organizations statute. There is no evidence that Fisher is a member of organized crime as that term is commonly understood. Rather, Fisher committed a series of methodical crimes which, in another context, could be described as racketeering activity. Thus, we are constrained to conclude that Fisher’s conviction of corrupt organizations must be vacated. Id. See also Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996) (holding that intent of corrupt organizations statute is determined by preamble to statute and, accordingly, precludes applicability to drug dealers because the drug-dealing enterprise was not connected to a legitimate business; statute is only indicated when organized crime elements infiltrate a legitimate commercial activity).

Fisher’s next contention is that the trial court erred in permitting certain irrelevant and immaterial evidence to be presented to the jury. Specifically, Fisher maintains that the trial court erred in admitting evidence that relates to uncharged criminal conduct, his Bahamas driving license, a questionable deed, and testimony regarding liens and encumbrances on the properties. “[T]he admissibility of evidence is a matter addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion.” Commonwealth v. LaCava, 542 Pa. 160, 174, 666 A.2d 221, 227 (1995).

Fisher asserts that the Commonwealth should not have been permitted to read an “Assurance of Voluntary Compliance” into evidence. This document, dated May 23, 1983, contains a series of agreements between Fisher, the Attorney General, and the Bureau of Consumer Protection, whereby Fisher agreed, among other things, to refrain from selling property that he did not own, to return any down payments when required to do so, and to keep down payments in separate, interest-bearing accounts. The document states that it is not to be considered an admission of guilt for any purpose. Fisher maintains that the Commonwealth introduced this evidence merely to establish Fisher’s prior bad acts and the probative value of this evidence was greatly outweighed by its prejudicial effect.

We agree that, generally, evidence of prior bad acts is inadmissible unless it comes under a recognized exception and the need for the evidence outweighs the potential prejudice. Commonwealth v. Schwartz, 419 Pa.Super. 251, 615 A.2d 350 (1992), appeal denied, 535 Pa. 617, 629 A.2d 1379 (1993). “The recognized exceptions justifying admission of prior bad acts are those that tend to establish motive; intent; absence of mistake, or accident; a common scheme, plan or design; or the identity of the person charged with the commission of the crime.” Id. at 263, 615 A.2d at 356. See also Commonwealth v. Taylor, 448 Pa.Super. 238, 671 A.2d 235 (1996). Here, the Commonwealth asserted at trial that the purpose behind the use of this document was limited to establishing Fisher’s knowledge that his actions were wrong. After the paragraphs in question were read to the jury, the court cautioned the jury that Fisher made no admissions of guilt in this document, and instructed the jury not to infer that Fisher was guilty of the current charges based upon this document. N.T., December 13,1993, at 116-17. After review, we agree with the trial court that this evidence was properly admitted to establish Fisher’s intent to defraud and the absence of any mistake or accident. See Commonwealth v. Atwood, 411 Pa.Super. 137, 601 A.2d 277 (1991), appeal denied, 530 Pa. 638, 607 A.2d 249 (1992) (concluding that testimony that defendant accused of theft by deception had written a bad check in payment of amounts loaned to him was admissible even though he was not charged with theft regarding that transaction). In addition, the court’s cautionary instruction leads us to conclude that any prejudice possibly encountered by the admission of this testimony was minimal. See Commonwealth v. Scarfo, 416 Pa.Super. 329, 611 A.2d 242 (1992), appeal denied, 535 Pa. 633, 631 A.2d 1006 (1993) (holding that limiting instruction was adequate when it was given immediately after newspaper article was read to the jury, and stated that the article was not offered for the truth of its contents but was intended to show that publicity had occurred). Thus, the court did not abuse its discretion in admitting this evidence.

Fisher also claims that the court erred in admitting the testimony of a dissatisfied buyer, Muriel Pagan, who testified that she had not signed a deed for conveyance to a Mr. and Mrs. Gaglione. Fisher was not charged with forging Pagan’s signature on this deed; thus, he contends that this is inadmissible evidence of prior bad acts. However, we find that this evidence is relevant to establish the common scheme that Fisher employed in the fraudulent transactions. In addition, because of the overwhelming amount of evidence against Fisher, the admission of this evidence will not be considered to be prejudicial. Commonwealth v. Norris, 498 Pa. 308, 317, 446 A.2d 246, 250 (1982). Thus, we conclude that the admission of this testimony was not an abuse of discretion. Taylor, supra.

As for his Bahamas drivers license, Fisher maintains that its admission amounted to inadmissible evidence of prior bad acts; namely, use of an alias on the license which represented deception of a foreign government. We find this contention to be completely meritless. This license was relevant to show that Fisher (whose picture was on the license) often used the name “Charles Balogh.” It established Fisher’s modus operandi, and we conclude that it was more probative than prejudicial. Norris, supra. Thus, it was not an abuse of discretion to admit this evidence. Ativood, supra.

Fisher also claims that a deed from M. Foerster to Charles Balogh was inadmissible because it was irrelevant. Once again, however, because of the testimony from Fisher’s secretary that she observed him sign the name “M. Forester,” this was relevant evidence. The trial court stated, and we agree, that this evidence “established Fisher’s practice of keeping property out of his own name and also showed the victims’ difficulty in holding [Fisher] accountable for his transactions.” Trial Court Opinion, dated October 23, 1995, at 12. Thus, it was not an abuse of discretion to admit this evidence.

Lastly, Fisher contends that the evidence regarding the liens and encumbrances on the properties offered by a title search expert was irrelevant and, thus, inadmissible, because Fisher did not have to provide the buyers with good and marketable title until the transfer of the deed and the making of full payment on the property. After review, we conclude that the expert’s testimony was relevant to establish that Fisher’s representations regarding his ownership of the land were false and to establish that his representations that certain lots were free and clear of any encumbrances were false. Fisher’s misrepresentations were an essential part of the crime of fraud by deception. Grife, supra. Thus, the court did not abuse its discretion in admitting this testimony.

Fisher next asserts that the trial court erred by failing to dismiss some of the charges based upon the expiration of the statute of limitations. The applicable period of limitations is five years for the crimes of forgery and theft. 42 Pa.C.S. § 5552(b)(1). Because Fisher failed to correct his victims’ false impressions concerning the value of their properties, the statute of limitations does not begin to run until the victims discovered the deceptions, i.e. until they stopped making payments on the property or take action for a return of their money. The relevant conduct in this case is analogous to that which constitutes criminal conspiracy, which, for purposes of the statute of limitations, can be a continuing offense. See Commonwealth v. Volk, 298 Pa.Super. 294, 305, 444 A.2d 1182, 1187 (1982) (“[A]ny conspiracy that is renewed by repetitions may be prosecuted at any time within two years after the commission of the last offense.”). Fisher fails to acknowledge that he continued to deceive the victims long after the initial signing of the contracts to purchase land and the contracts to do the perk tests. Many victims made payments for several months and accepted his excuses for non-performance. Thus, we conclude that the prosecution on each count must commenee within five years from the date of Fisher’s last deception relating to that count.

The complaint against Fisher was filed on February 18, 1992. Thus, any count relating to a victim that Fisher deceived after February 18, 1987 will be considered to be timely filed. In count 2, the victim made payments on her property until March 1987. In count 12, the victim discovered the fraud and demanded a return of his money on August 1, 1987. In count 18, the victim terminated the contract with Fisher in March 1987. In count 45, the victim purchased land from Fisher in 1986. However, she never received her deed to the property, and she attempted to discuss with Fisher the record ownership of the property and a refund of her money within the limitations period. Counts 28, 31, 32, 33, 35, 38, and 39 all relate to Fisher’s failure to perform perk tests. Although the victims paid for these tests in 1986, Fisher successfully concealed the fact that the tests were never going to be done until warm weather arose in the spring of 1987. The continuing nature of the deception in all of these cases leads us to conclude that Fisher’s claim that these charges are barred by the statute of limitations is meritless. Thus, the court did not err in failing to dismiss these charges.

Fisher next contends that the trial court erred when it denied his requested jury instructions. In reviewing a jury charge, the instructions delivered must be read and considered as a whole. Commonwealth v. Ahlborn, 441 Pa.Super. 296, 657 A.2d 518 (1995). “[T]he trial court’s jury instruction will be upheld if it adequately and accurately reflects the law and is sufficient to guide the jury through its deliberations.” Id. at 300, 657 A.2d at 520.

Fisher maintains that the court should have instructed the jury that it could not convict him of fraud by deception based upon any misrepresentations concerning the existence of liens or encumbrances on the property at the time of the signing of the sales agreement. However, after a review of the relevant portion of the instruction given by the trial court, we are convinced that the crime of fraud by deception is fully and accurately set forth. N.T., December 20, 1993, at 45-51. Accordingly, this contention is also meritless.

Finally, Fisher contends that the court erred in imposing a manifestly harsh and unreasonable sentence. Fisher claims that the court (1) improperly focused upon the severity of the offenses; (2) improperly ignored Fisher’s attempts at restitution; and (3) improperly failed to consider Fisher’s age and prior criminal history. Finally, Fisher claims that the court’s imposition of consecutive sentences on each conviction resulted in an unreasonably harsh and manifestly excessive sentence. We note that our review of these matters is hampered by Fisher’s failure to include in the certified record the transcript of the sentencing hearing. However, because we have found that Fisher’s conviction of corrupt organizations must be vacated, and this disposition may alter the trial court’s sentencing scheme, it is necessary to remand the matter to the trial court for reconsideration of Fisher’s sentence. Commonwealth v. Rodriguez, 416 Pa.Super. 456, 611 A.2d 305 (1992); see also Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987). Accordingly, we need not consider Fisher’s claims regarding his sentence.

The judgment of sentence on the corrupt organizations conviction is VACATED, and in all other respects the judgment of sentence is AFFIRMED. Case REMANDED for re-sentencing. Jurisdiction RELINQUISHED.


author: HUDOCK, Judge:

text:
    682 A.2d 819
    GENERAL ACCIDENT INSURANCE COMPANY, Appellant v. FEDERAL KEMPER INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1996.
    Filed Aug. 21, 1996.

      Bradley J. Leber, York, for appellant.
    John Flounlacker, Harrisburg, for appellee.
    Before BECK, HUDOCK and JAMIESON, JJ.

       JAMIESON, J. did not participate in the consideration or decision of this matter.

   HUDOCK, Judge:

This is an appeal from the order of the Court of Common Pleas of Lancaster County entering summary judgment in favor of Federal Kemper Insurance Company (Federal Kemper) on August 9, 1995. The sole issue raised on appeal by General Accident Insurance Company (General Accident) is whether the trial court erroneously found that no common law cause of action for indemnity exists between a secondary insurer and primary insurer, when the primary insurer denied coverage under its policy, causing the secondary insurer to pay uninsured motorist benefits. For the following reasons, we reverse.

The facts may be summarized as follows: Tracy Day (Day) owned a vehicle insured by Federal Kemper. Day loaned her vehicle to Matthew Fenton (Fenton) for the limited purpose of aiding him in changing a tire on his own vehicle. Subsequently, Fenton was involved in an accident with Thomas Yatsko (Yatsko). At the time of the accident, Fenton allegedly was under the influence of alcohol and not engaged in his original purpose of changing his tire.

Yatsko operated a vehicle insured through his employer by General Accident. Yatsko made a claim for damages from Federal Kemper, which denied his claim, contending that Fenton exceeded Day’s grant of permission to use her vehicle at the time of the accident. Yatsko then made a claim for uninsured motorist benefits from General Accident. Yatsko’s claim proceeded to arbitration where the board of arbitrators ordered General Accident to pay him uninsured motorist benefits.

On November 12, 1993, General Accident filed suit against Federal Kemper, seeking indemnification for the benefits it paid to Yatsko and for attorney fees incurred in defending its case at arbitration. General Accident alleged that Federal Kemper wrongfully denied coverage for Fenton, causing it to pay uninsured motorist benefits as secondary insurer. On February 28, 1995, Federal Kemper filed a motion for summary judgment against General Accident, which the trial court granted.

When determining if a trial court has properly entered summary judgment, this Court’s scope of review is plenary. Schriver v. Mazziotti, 432 Pa.Super. 276, 278-80, 638 A.2d 224, 225 (1994). We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Id. We will only reverse the trial court’s decision if there was a manifest abuse of discretion. Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 98-100, 644 A.2d 1251, 1254 (1994). An abuse of discretion occurs “when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.”' Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447-49, 625 A.2d 1181, 1185 (1993).

Summary judgment is granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. Pa.R.C.P. 1035(b), 42 Pa.C.S.A. The moving party has the burden of proving the non-existence of any genuine issue of fact. Accu-Weather, Inc., 644 A.2d at 1254. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. Id. The trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Id. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

General Accident argues that it may maintain an action against Federal Kemper based upon common law indemnity principles and Aetna Casualty & Surety Company v. Nationwide Mutual Insurance Company, 471 F.Supp. 1059 (M.D.Pa. 1979). In Aetna Casualty, the United States District Court for the Middle District of Pennsylvania specifically held that a secondary insurer may maintain a cause of action for indemnity against a primary insurer for wrongful denial of coverage.

The Pennsylvania Supreme Court has explained the common law right of indemnity as follows:

[Ulnlike comparative negligence and contribution, the common law right of indemnity is not a fault sharing mechanism between one who was predominantly responsible for an accident and one whose negligence was relatively minor. Rather, it is a fault shifting mechanism, operable only when a defendant who has been held liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss.

Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 570-71, 506 A.2d 868, 871 (1986). The courts of Pennsylvania have never addressed this right as between a secondary insurer, forced to pay uninsured motorist benefits to its insured by operation of law, and a primary insurer, when the primary insurer wrongly denies liability coverage for an accident caused by its insured.

In Aetna Casualty, supra, a negligent driver caused an automobile accident which injured two persons in another vehicle. The negligent driver’s insurance carrier refused to pay liability benefits, thus causing the injured party’s insurer to pay them uninsured motorist benefits. Aetna Casualty, 471 F.Supp. at 1066. The injured party’s insurer brought suit against the negligent driver’s insurer for indemnity, alleging that it negligently denied liability coverage. Id. The District Court held as follows:

[A] secondary insurer has a cause of action against the primary insurer for wrongful refusal to provide coverage. To hold otherwise would put an undue strain on the Pennsylvania [uninsured/underinsured motorist statute] ... for it would enable the primary insurer to impose severe financial burdens on the secondary insurer whose presence is now all but inevitable under the [uninsured/underinsured motorist] statute simply by denying the existence of coverage. It is for this reason that although no Pennsylvania cases have been cited to us as authority for this position, we believe the Pennsylvania courts, if faced with the question would so hold. To do otherwise would in effect reverse the roles of the primary and secondary insurer and reduce the likelihood of a primary insurer acknowledging its coverage.

Id. Additionally, the District Court applied a negligence standard to determine whether the primary insurer wrongfully denied benefits. Id.

The trial court held that General Accident did not have a common law cause of action against Federal Kemper, explaining as follows:

The linchpin of [Aetna Casualty’s] broad holding apparently stems from this perceived unfairness to [uninsured/under-insured motorist] insurers. In 1990, however, the Pennsylvania Legislature created a cause of action against an insurer for bad faith denial of claims. 42 Pa.Cons.Stat. § 8371. Pursuant to this statute, primary insurers who summarily deny a claim do so at their peril. As a consequence, secondary [uninsured/underinsured motorist] insurers now enjoy greater protection from arbitrary and wrongful denials than they did in 1979. Because the reason for the holding announced in [Aetna Casualty ] no longer justifies the rule, we are not persuaded to follow it.

Trial Court Opinion, 8/9/95, at p. 3.

For the following reasons, we disagree with the trial court’s decision and interpretation of the law. Although the Pennsylvania legislature enacted section 8371 subsequent to the District Court’s disposition of Aetna Casualty, we find that, in lieu of a cause of action for indemnity, a secondary insurance company remains unprotected and without recourse when a primary insurer denies liability benefits. Thus, we are persuaded by the holding and rationale in Aetna Casualty and recognize a secondary insurer’s cause of action for indemnity. In this context, the secondary insurer is liable by operation of law to pay for damages caused by a third party. Upon proving that the primary insurer negligently denied coverage and caused such liability on the part of the secondary insurer, the secondary insurer may recover indemnity damages as well as the costs and expenses necessary to protect its interests. As explained by the District Court:

Under Pennsylvania law, where the wrongful acts of the Defendant have involved the Plaintiff in litigation with others or placed him in such relations with others as to make it necessary to incur costs and expenses to protect his interests, such costs and expenditures should be treated as legal consequences of the original wrongful act.

Aetna Casualty, 471 F.Supp. at 1067.

Section 8371 provides as follows:

§ 8371. Actions on insurance policies
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S.A. § 8371.

The purpose of section 8371 was to provide a statutory remedy to an insured when the insurer denied benefits in bad faith. See Terletsky v. Prudential Property & Casualty Insurance Co., 437 Pa.Super. 108, 124-25, 649 A.2d 680, 688 (1994), alloc. den., 540 Pa. 641, 659 A.2d 560 (1995). Upon review of the express language and purpose of section 8371, it appears clear that the Pennsylvania legislature intended this section to protect an insured from bad faith denials of coverage. We do not find that this statute provides substantial protection to secondary insurers under the circumstances. Pursuant to 40 P.S. § 2000, insurers must provide insurance benefits for damages caused by motorists operating an uninsured vehicle. An “uninsured motor vehicle” is defined in part as one which the insurance company denies coverage. 75 Pa.C.S.A. § 1702. Although a person who is denied coverage may sue the insurer for bad faith denial of benefits pursuant to section 8371, that person has no practical interest in doing so because section 2000 shifts the burden of paying for the damages to the secondary insurer under the guise of uninsured motorist benefits.

The trial court maintained that General Accident is not a real party in interest, except as allowed through subrogation of its insured’s rights and furthermore, that there is no direct cause of action against the insurance company of the insured who caused the damage. Pursuant to Rule 2002(a), “all action shall be prosecuted by and in the name of the real party in interest ... except where a subrogee is a real party in interest.” Pa.R.C.P. 2002(a) and (d). As this Court has stated:

As to an insurer, the right of subrogation is derived from the insured alone. For that reason an insurer, upon paying a loss, can take nothing by subrogation but the rights of its insured and is subrogated to only such rights as the insured possessed. And if the [insured] has no right of action, none passes to the insurer.

Rohm & Haas Co. v. Lessner, 168 Pa.Super. 242, 245, 77 A.2d 675, 677 (1951), rev’d on other grounds, Boiler Engineering and Supply Co. v. General Controls, Inc., 443 Pa. 44, 47-49, 277 A.2d 812, 814 (1971). Additionally, in Aetna Insurance Company v. Pennsylvania Manufacturers Association Insurance Co., 456 F.Supp. 627, 634 (E.D.Pa.1978), the United States District Court for the Eastern District of Pennsylvania held:

[A]s a general rule, in the absence of statutory or applicable policy provisions to the contrary, one who suffers injury within the provisions of a liability insurance policy is not in privity of contract with the insurer of the alleged tort feasor, and cannot bring an action directly against the insurer on the claim.

Although we acknowledge the existence and validity of the law as set forth above, we do not find that it is applicable in this case to bar General Accident’s claim. Pennsylvania’s uninsured/underinsured motorist statute makes a secondary insurer legally responsible for paying uninsured motorist benefits when a primary insurer denies coverage, whether or not the primary insurer has properly denied such coverage. This fact makes the secondary insurer a real party in interest with regard to a cause of action for indemnity. Thus, a secondary insurer in this situation is not one injured under the provisions of an insurance policy; rather, it is one alleging direct injury via operation of law.

Finally, the trial court found that General Accident has legal recourse in lieu of a cause of action for indemnity:

General Accident could have filed a declaratory judgment action against [Federal Kemper] to determine the rights and duties of the respective parties. Alternatively, General Accident could have sought subrogation to Fenton’s claim for coverage against General Accident upon satisfaction of the Yatsko claim.

Trial Court Opinion, 8/9/95, at p. 3.

Again, we do not find that such recourse provides a sufficient reason to deny a secondary insurer a cause of action for indemnity. “The fact that [the secondary insurer] did not file a declaratory judgment is not a defense in this matter. So too could [the primary insurer] have filed a declaratory judgment action.” Aetna Casualty, 471 F.Supp. at 1066. Additionally, after arbitration, it is no longer practicable to seek a declaratory judgment as to the rights and obligations of the parties. As noted in the decision of the arbitrators, “We have not considered or decided the correctness of Federal Kemper’s declination of coverage and do not intend by this award to preclude General Accident from making a claim for reimbursement against Federal Kemper[.]” Decision of Arbitrators, 8/25/93. Moreover, subrogation is not possible under the factual scenario presented. As we have already noted, an insurer is subrogated to only such rights as the insured possessed, Rohm & Haas, Co., supra, and General Accident’s insured, Yatsko, has no rights vis-a-vis Federal Kemper. As explained above, however, General Accident is a real party in interest to Federal Kemper’s denial of benefits. As a secondary insurer, it is directly affected. Thus, there is a more appropriate, adequate remedy at law — a direct cause of action for indemnity.

Order reversed and the case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.


author:
KELLY, Judge:
      JOHNSON, Judge,

text:
    682 A.2d 824
    Michael J. MORMELLO, Appellee, v. Elaine J. Depaul MORMELLO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1996.
    Filed Aug. 22, 1996.

      Thomas J. Bass, Philadelphia, for appellant.
    Beth N. Forman, Broomall, for appellee.
    Before KELLY, JOHNSON and OLSZEWSKI, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether the trial court properly enforced a property settlement agreement that was drafted by appellee’s attorney which contained no specific valuations of the various marital assets to be distributed to the parties. We hold that under the circumstances presented in this case, the property settlement agreement failed to provide the requisite full and fair disclosure of the value of the marital assets to be distributed to the parties. Accordingly, we reverse the trial court’s order denying appellant’s petition for special relief and remand to the trial court for the commencement of proceedings in equitable distribution.

The relevant facts and procedural history of this case are as follows. Appellant, Elaine Mormello, and appellee, Michael Mormello, were married on May 17, 1964. They have four children, all of whom are now emancipated. During the marriage, the wife worked as a management assistant for the Navy Yard for nine years but also contributed to the household as a homemaker. The wife’s only source of income is her $546.00 monthly Social Security Disability Benefit which she receives because she has a form of Muscular Dystrophy.

The husband worked for the City of Philadelphia as a police officer for almost the entire term of the marriage. The husband currently receives a pension in the amount of $1,500.00 a month from the City of Philadelphia, and he is presently employed with the Pennsylvania Attorney General’s Office earning an annual salary of approximately $33,000.00.

In April of 1993, after nearly twenty-nine years of marriage, the husband stopped sleeping at the marital residence, and the parties effectively separated. On October 25, 1993, the husband visited his wife at his daughter’s house where the wife was babysitting their twin one-year-old grandchildren. The husband presented the wife with a twelve page, type-written Property Settlement Agreement which an attorney had prepared for and explained to the husband. The husband told the wife to sign the agreement, and when the wife asked if she could read it, the husband responded negatively and told the wife that he had to get to work. When the wife asked the husband what the agreement said, he told her that it only said that she would receive the house and the car and that he would continue to pay for them. The husband failed to mention anything about the wife’s relinquishing all of her rights to the remaining marital property. The husband was only in the house for somewhere between five and twenty minutes. With one grandchild in her arms and another walking about the room, the wife signed and initialed but did not read the Property Settlement Agreement. After the husband’s abrupt departure, the wife was not even left with a copy of the agreement, and she would not receive one for several days.

The Property Settlement Agreement provided that the husband will continue to make monthly mortgage and car payments and will transfer the titles of the home and car to the wife. The monthly mortgage payment on the house is $888.00. The wife’s insurer, CUNA Mutual Insurance Society, pays $833.33 of the monthly payment, so the husband’s monthly mortgage payment is $54.67. CUNA will continue to make the payment so long as the wife’s disability, which is permanent, lasts.

The Property Settlement Agreement also provided that both parties waive any claims against the other. This provision waives the wife’s claim to the largest asset of the marriage, the husband’s $300,000.00 pension. Finally, the terms of the Property Settlement Agreement provided that “[t]he parties warrant and represent that they have made a full and fair disclosure of all assets prior to the execution of this agreement.” Property Settlement Agreement at 12, Clause 22.

The trial court denied the wife’s petition for special relief. The trial court found that although the wife had minimal time to review the Property Settlement Agreement, she knowingly and intentionally signed it on October 25, 1993. The trial court further found that the wife signed the Property Settlement Agreement in the absence of duress, fraud, or misrepresentation. The wife filed a timely appeal from the trial court’s order.

Appellant-wife raises the following issues for our review:

1. WHETHER A POSTNUPTIAL PROPERTY SETTLEMENT AGREEMENT IS VALID WHEN THE HUSBAND MISREPRESENTS THE ENTIRE CONTENTS OF THE AGREEMENT AND DOES NOT PROVIDE THE WIFE WITH AN OPPORTUNITY TO READ THE AGREEMENT OR SEEK THE ADVICE OF COUNSEL BEFORE SIGNING THE AGREEMENT.
2. WHETHER A POSTNUPTIAL PROPERTY SETTLEMENT AGREEMENT IS VALID WHEN THE HUSBAND PROMISES TO PAY THE REMAINING MORTGAGE ON THE MARITAL HOME WHEN THE MORTGAGE IS ALREADY BEING PAID FOR AND WILL CONTINUE TO BE PAID FOR BY A DISABILITY INSURANCE COMPANY FOR THE REMAINDER OF THE MORTGAGE.

Appellant’s Brief at 3.

In her first issue on appeal, the wife argues that the Postnuptial Property Settlement Agreement, which the wife signed voluntarily, is not valid because the wife signed the agreement based on the husband’s misrepresentations as to its content and legal effect. The wife also claims that the Property Settlement Agreement is not valid because the husband failed to make a full and fair disclosure of the parties’ worth and of the statutory rights being relinquished.

In analyzing the validity of the Postnuptial Property Settlement Agreement, we note that the same principles of law apply to both antenuptial and postnuptial agreements. Adams v. Adams, 414 Pa.Super. 634, 637, 607 A.2d 1116, 1118 (1992); Nitkiewicz v. Nitkiewiez, 369 Pa.Super. 504, 510 n. 2, 535 A.2d 664, 667 n. 2 (1988) (citing In re Ratony’s Estate, 443 Pa. 454, 277 A.2d 791 (1971)).

The eminent authority on the validity of ante-nuptial agreements is the Pennsylvania Supreme Court case of Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). In Simeone, our Supreme Court narrowed the earlier plurality decision of In re Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987). The court explained:
Further, Geyer and its predecessors embodied substantial departures from traditional rules of contract law, to the extent that they allowed consideration of the knowledge of the contracting parties and reasonableness of their bargain as factors governing whether to uphold an agreement. Traditional principles of contract law provide perfectly adequate remedies where contracts are procured through fraud, misrepresentation, or duress. Consideration of other factors, such as the knowledge of the parties and the reasonableness of their bargain, is inappropriate. See Geyer, 516 Pa. at 516-17, 533 A.2d at 434-35 (Flaherty, J. dissenting). Prenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. See Geyer, 516 Pa. at 508, 533 A.2d at 431 (“These agreements are nothing more than contracts and should be treated as such.” (Nix, C.J. dissenting)). Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.
Contracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains. See Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (failure to read a contract does not warrant avoidance or nullification of its provisions); Estate of Brant, 463 Pa. 230, 235, 344 A.2d 806, 809 (1975); Bollinger v. Central Pennsylvania Quarry Stripping & Construction Co., 425 Pa. 430, 432, 229 A.2d 741, 742 (1967) (“Once a person enters-into a written agreement he builds around himself a stone wall, from which he cannot escape by merely asserting he had not understood what he was signing;”); Montgomery v. Levy, 406 Pa. 547, 550, 177 A.2d 448, 450 (1962) (one is legally bound to know the terms of the contract entered). Based upon these principles, the terms of the present prenuptial agreement must be regarded as binding, without regard to whether the terms were fully understood by appellant. Ignorantia non ex-cusat.

Id. at 399-400, 581 A.2d at 165-66.

Nonetheless, the court in Simeone v. Simeone emphasized that it did not abrogate the requirement of full and fair disclosure in ante-nuptial agreements.

In discarding the approach of Geyer that permitted examination of the reasonableness of prenuptial agreements and allowed inquires [sic] into whether parties had attained informed understandings of the lights they were surrendering, we do not depart from the long standing principles that a full and fair disclosure of the financial positions of the parties is required. Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted. [In re Estate of Hillegass, 431 Pa. 144, 152-53, 244 A.2d 672, 676-77 (1968).] Parties to these agreements do not quite deal at arm’s length, but rather at the time the contract is entered into stand in a relation of mutual confidence and trust that calls for disclosure of their financial resources. Id. at 149, 244 A.2d at 675; Gelb Estate, 425 Pa. 117, 120, 228 A.2d 367, 369 (1967). It is well settled that this disclosure need not be exact, so long as it is “full and fair.” Kaufmann Estate, 404 Pa. 131, 136 n. 8, 171 A.2d 48, 51 n. 8 (1961). In essence therefore, the duty of disclosure under these circumstances is consistent with traditional principles of contract law.

Id. at 402-03, 581 A.2d at 166-67. The court then reiterated the presumptions and burdens with regard to the validity of ante-nuptial agreements.

If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence. Hillegass, 431 Pa. at 152-53, 244 A.2d at 676-77.

Id. at 403, 581 A.2d at 167.

Cooper v. Oakes, 427 Pa.Super. 430, 434-36, 629 A.2d 944, 946-47 (1993).

Prenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162, 165 (1990); see generally Cooper v. Oakes, supra at 434, 629 A.2d at 946. In Simeone v. Simeone, supra, the Supreme Court explained:

Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.
Contracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains. See Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (failure to read a contract does not warrant avoidance or nullification of its provisions); Estate of Brant, 463 Pa. 230, 235, 344 A.2d 806, 809 (1975); Bollinger v. Central Pennsylvania Quarry Stripping & Construction Co., 425 Pa. 430, 432, 229 A.2d 741, 742 (1967) (“Once a person enters into a written agreement he builds around himself a stone wall, from which he cannot escape by merely asserting he had not understood what he was signing.”); Montgomery v. Levy, 406 Pa. 547, 550, 177 A.2d 448, 450 (1962) (one is legally bound to know the terms of the contract entered). Based upon these principles, the terms of the present prenuptial agreement must be regarded as binding, without regard to whether the terms were fully understood by appellant. Ignorantia non excusat.
Accordingly, we find no merit in a contention raised by appellant that the agreement should be declared void on the ground that she did not consult with independent legal counsel. To impose a per se requirement that parties entering a prenuptial agreement must obtain independent legal counsel would be contrary to traditional principles of contract law, and would constitute a paternalistic and unwarranted interference with the parties’ freedom to enter contracts.

Simeone v. Simeone, supra at 400, 581 A.2d at 165-66.

In the instant case, there is no merit to the appellant-wife’s claim that the Property Settlement Agreement is not valid because the husband allowed her little time to read the agreement and no time to take it to an attorney. The trial court’s order of July 18, 1995 found that the wife knowingly and intelligently signed the agreement in the absence of duress, fraud, or misrepresentation. Because the wife voluntarily signed a properly constructed Property Settlement Agreement, she is not entitled to relief from the agreement on that basis.

Appellant-wife also challenges the agreement on the basis that she did not receive full and fair disclosure of her legal rights under the Divorce Code. For a Postnuptial Property Settlement Agreement to be valid, there must be evidence that the parties are aware of the statutory rights they are relinquishing. In re Estate of Geyer, 516 Pa. 492, 506, 533 A.2d 423, 429-30 (1987); Adams v. Adams, 414 Pa.Super. 634, 638, 607 A.2d 1116, 1119 (1992). The agreement in this case clearly mentions appellant’s rights by way of dower, curtesy, widow’s rights, and family exemption on pages four and five. It also mentions support, maintenance, alimony, alimony pendente lite and counsel fees as rights discharged by the agreement. The fact that the wife chose not to hire an attorney to clarify any misunderstanding she may have had concerning the agreement is of no consequence. Contracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood. Simeone v. Simeone, supra at 400, 581 A.2d at 165; Adams v. Adams, supra at 638, 607 A.2d at 1119. Therefore, we find that based upon the facts, full and fair disclosure of the parties statutory rights was made in the Postnuptial Property Settlement Agreement.

The appellant-wife further claims that the agreement failed to make full and fair disclosure of the parties’ worth. Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted. Simeone v. Simeone, supra at 402, 581 A.2d at 167; Adams v. Adams, supra at 637-38, 607 A.2d at 1118. It is well-settled that the disclosure need not be exact, so long as it is “full and fair,” and does not “obscure the general financial resources of the parties.” Simeone v. Simeone, supra; In re Estate of Geyer, supra at 502, 533 A.2d at 427; Adams v. Adams, supra at 638, 607 A.2d at 1118; Nigro v. Nigro, 371 Pa.Super. 625, 631, 538 A.2d 910, 913-14 (1988). According to the Pennsylvania Supreme Court, whether adequate disclosure has been made will depend on the facts and circumstances of individual cases. Nigro v. Nigro, supra at 631-32, 538 A.2d at 914 (citing In re Estate of Geyer, supra at 502, 533 A.2d at 428).

The facts and circumstances of this case are significantly different from those in Adams v. Adams, supra and Nigro v. Nigro, supra, two recent cases applying the “full and fair disclosure” test to a Postnuptial Property Settlement Agreement. In Adams v. Adams, supra, the court relied upon the fact that the appellant-wife was “involved in her husband’s business” to support its finding that the wife was “an intelligent women who had sufficient knowledge of her husband’s business for there to have been full and fair disclosure at the time the agreement was executed.” Adams v. Adams, supra at 638, 607 A.2d at 1118.

In Nigro v. Nigro, supra, the court similarly relied upon the appellant-wife’s considerable involvement in the operation and management of the husband’s pizza-shop business to determine that the wife was fully and fairly aware of the marital estate. Nigro v. Nigro, supra at 632, 538 A.2d at 914 (noting that the wife testified extensively concerning the pizza business, worked in all three stores on a regular basis, managed a store, knew appellee’s weekly salary, and knew the approximate gross daily receipts from the store she managed).

The facts and circumstances in the case before us do not demonstrate that the wife was fully and fairly aware of the marital estate. Unlike Adams v. Adams, supra and Nigro v. Nigro, supra, where the appellant-wives assisted their husbands in the running of privately owned business enterprises, the wife in this case could not and did not involve herself in her husband’s police duties. The wife expressed no knowledge in the notes of testimony as to the husband’s monthly pension payments or his gross salary from the attorney general’s office.

Furthermore, the Property Settlement Agreement in this case obscures the general financial resources of the parties. In declaring that the husband will pay the remainder of the $65,000.00 mortgage on the marital abode, there is no mention of the fact that the wife’s insurance actually pays $833.33 of the $888.00 monthly mortgage payment leaving the husband with a monthly mortgage payment of $54.67. Similarly, there is no mention in the agreement of the amount and duration of the monthly car payments for which the husband is responsible. The agreement also fails to state the value of the husband’s pension, the greatest asset of the marriage, and the wife’s disability payments. The only valuation to be found in the agreement is the $65,000.00 remaining on the mortgage on the house, and, as noted above, that figure does not accurately reflect the husband’s monetary obligation to the wife. The facts and circumstances in this case indicate that the appellant-wife did not receive full and fair disclosure of the appellee-husband’s worth and that the Postnuptial Property Settlement Agreement obscured the general financial resources of the parties. Unlike the appellant-wives in Adams v. Adams, supra and Nigro v. Nigro, supra, the wife in this case did not have sufficient knowledge of her husband’s financial situation for there to have been full and fair disclosure at the time the parties executed the agreement. The vagueness of the agreement itself did not help to inform the wife as to the financial situation of the parties and, actually, further obscured the financial situation.

Accordingly, although the terms of the Property Settlement Agreement explicitly provided that full and fair disclosure of the value of the marital estate was made to the wife in this agreement, thus creating a presumption that full and fair disclosure had been made, the wife, based upon clear and convincing evidence presented at trial, has successfully overcome this presumption and proven that the Property Settlement Agreement did not, in fact, actually contain full and fair disclosure of the total overall value of the marital estate and the percentage of this overall marital estate that was to be distributed to the parties through the terms of the Property Settlement Agreement. See Simeone v. Simeone, supra at 403, 581 A.2d at 167; Cooper v. Oakes, supra at 436, 629 A.2d at 947. Therefore, the Property Settlement Agreement is invalid and the wife’s petition for special relief must be granted.

In her second issue on appeal, the wife argues that the Postnuptial Property Settlement Agreement is invalid because although the husband claims that he will pay the remaining mortgage on the marital home, the wife’s insurance pays $833.33 of the $888.00 monthly payment. In discussing the wife’s first issue on appeal, we noted that the Property Settlement Agreement’s lack of clarity and specificity concerning the payment of the monthly mortgage on the marital abode obscures the general financial resources of the parties and contributed to the finding that the wife did not receive full and fair disclosure of the parties’ financial situation. Under the same reasoning as we discussed in our answer to the first question on appeal, the Property Settlement Agreement is invalid and the wife’s petition for special relief must be granted. Accordingly, we reverse the trial court’s order denying the wife’s petition for special relief and remand the case to the trial court for further proceedings in which all of the wife’s rights and remedies under the Divorce Code are reinstated.

Based upon the foregoing, the trial court’s order denying the petition for special relief is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I join so much of the Majority Opinion as finds that the Postnuptial Property Settlement Agreement is invalid because Wife did not receive full and fair disclosure of Husband’s worth. Majority opinion at 598-601. I also agree that Wife’s petition for special relief must be granted.

I am unable, however, to join my colleagues’ conclusion that there is no merit to Wife’s claim that the Agreement should be declared invalid on the basis of duress and/or misrepresentation. Id. at 598-599. While it is true that the trial court concluded that Wife was not under any duress nor did there exist any misrepresentation at the time the agreement was signed, we are not bound by the trial court’s conclusions of law. Com. ex rel. Robinson v. Robinson, 505 Pa. 226, 236, 478 A.2d 800, 806 (1984) (appellate court not bound by deductions or inferences made by trial court from its findings of fact, nor must a reviewing court accept a finding which has no competent evidence to support it); Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), appeal denied, 524 Pa. 629, 574 A.2d 70 (1990) (same).

On this issue, the only finding of fact by the trial court was that “Mrs. Mormello had minimal time to review the Property Settlement Agreement.” The balance of the court’s assertions on this issue, contained in the Order dated July 18, 1995, are conclusions of law which are not supported by any findings of fact.

Husband made an unannounced visit to his daughter’s house, where Wife was babysitting twin one-year-old grandchildren. He presented Wife with a twelve-page, typewritten Agreement. On questioning by the trial court, Husband testified that he told Wife that he would try to help her pay for the attorney fees to go over the agreement “in case she didn’t like the agreement, if she wanted to go to an attorney, if she didn’t know what she was signing.” N.T., January 3, 1995, at 83, R.R. at 43a. Husband left his daughter’s home that day, after a visit that did not exceed twenty minutes, with both copies of the Agreement signed by Wife.

I note that the copy of the agreement included in the certified record bears the signature of Husband’s counsel as well as the affidavits of a notary public that both Husband and Wife had appeared before her and acknowledged execution of the agreement. At the hearing held January 3, 1995, Wife testified that no notary was present when Husband caused her to sign the copies of the agreement. Further exploration of this discrepancy was interrupted by objection by counsel for Husband which was not ruled on by the trial court. Id. at 15, R.R. at 18b.

Wife testified that she received a copy of the agreement a few days after she had signed it and that, after reading it three times, she called Husband and asked him to go over it with her. Id. at 17, R.R. at 19b. She further testified that when she raised matters with which she had a problem, Husband responded to the effect: “Don’t worry about it. It’s only if we get a divorce.” Id.

Without additional written findings of fact by the trial court, I am not prepared to accept that court’s conclusion that Wife was neither under any duress nor did there exist any misrepresentation. The matter was presented to her by her husband on the basis that she should first sign the agreement, and “in the event I file for divorce, if she files for divorce ...,” N.T., supra, at 83, R.R. at 43a, Wife could then take the already-signed agreement to an attorney. When Wife stated her concerns about the agreement after it had been returned several days following her signing it, she was told by Husband to not worry about it, that it would only be important if there was a divorce. There'is nothing in the record to even suggest that Wife was contemplating a divorce at the time the agreement was signed. I would not conclude that these circumstances were free from an intentional misrepresentation by Husband utilized for the purpose of lulling Wife into believing that review by an attorney would not be necessary. Nor would I conclude, as does the Majority, that full and fair disclosure of the parties’ statutory rights was made, given these uncontroverted facts.

Had Husband come to his daughter’s residence and sold Wife goods or services worth $25 or more, she would have had three days in which to avoid that contract. Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-7 (1976). I would be reluctant to afford Wife less protection where, on these facts, she had first signed the agreement while principally concerned with the safety and welfare of her grandchildren and then made prompt protest on her first opportunity to examine the agreement more carefully. I would find both duress and misrepresentation on the particular facts presented here.

Finally, I agree with my colleagues that the petition for special relief must be granted. Therefore, Wife is entitled to all of her rights and remedies under the Divorce Code. The divorce complaint was filed by Husband on May 10,1994. The Petition for Special Relief was filed by Wife on November 30, 1994. Husband’s Petition for Bifurcation, filed September 11, 1995, was denied by the trial court on November 9, 1995 while this appeal was pending. No decree in divorce has been entered. I find nothing in the record to prevent Wife from pursuing any rights she might believe to be hers in the area of support or maintenance, alimony, alimony pendent lite, counsel fees, or costs and expenses. The Petition for Special Relief prayed that the Agreement dated and executed October 25, 1993, be declared a nullity, and that Wife be allowed to pursue all of her rights and remedies under the Divorce Code of 1990. In joining in my colleagues’ determination to reverse the order of July 18, 1995 and remand, I also agree that the total relief sought by Wife be granted.

      . Appellee's motion to quash is denied. The trial court's order is a final judgment pertaining to the validity of the Property Settlement Agreement and therefore appealable. Adams v. Adams, supra at 636, 607 A.2d at 1117.