author: POPOVICH, Judge: DEL SOLE, Judge,

text:
    591 A.2d 743
    HOLT’S CIGAR COMPANY, Appellee, v. 222 LIBERTY ASSOCIATES and Philip J. Banks, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed May 23, 1991.

      Steven J. Cooperstein, Philadelphia, for appellants.
    Louis S. Flocco, Philadelphia, for appellee.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from judgment entered in the Philadelphia County Court of Common Pleas, sitting in equity, awarding appellee Holt’s Cigar Co. (“Holt’s” or “Lessee”) liquidated and lost profits damages in the amounts of $22,000 and $53,716, respectively. The action was one for injunction and breach of commercial lease. Named defendants were appellant Philip J. Banks (“Banks”) and 222 Liberty Associates (a Pennsylvania limited partnership) (“Liberty” or “Lessor”; collectively referred to as “appellant”). We reverse the chancellor and vacate the liquidated damages award finding it an unenforceable penalty; we also reverse and vacate the lost profits award on grounds that relief in the form of unliquidated damages was not pleaded by appellee thereby creating an impermissible variance between the allegata and the probata.

Appellee Holt’s is a Pennsylvania corporation with its principal place of business at 114 South 16th Street, Philadelphia, PA. It is at this location where appellee leased from Liberty commercial property in order to engage in the retail sale of various and sundry smoking products and accessories. As already indicated, Holt’s complaint named 222 Liberty Associates and appellant, Philip J. Banks, as defendants. The complaint further averred (and this was admitted in defendants’ answer) that Banks was a general partner and general contractor of 222 Liberty Assodates during the relevant time period. Complaint and Answer 2-3. Preliminarily, we find the law well-settled in that this admission is suffident to impose joint and several liability on Philip Banks for any wrongful act made in the ordinary course of partnership business. See 15 Pa.C.S.A. §§ 8533(b), 8325 & 8327 (Purdon App.1990); See also Rhodes v. Terheyden, 272 Pa. 397, 116 A. 364 (1922).

On January 1, 1980, Holt’s began a ten-year term lease at the above-mentioned address. This commercial lease was for corner space fronting Sansom and 16th Streets situate on the ground floor of a multi-story building. The dispute arose out of extensive building renovation efforts undertaken by appellant in the midst of Holt’s tenancy (not at Holt’s behest). The body of the chancellor’s opinion is brief enough to be cited in full:

This civil action in equity arose out of the defendant’s performance of extensive renovations to a building in which plaintiff occupied ground floor space pursuant to a lease agreement dated December 31, 1989, [sic] and subsequent riders and addendums thereto. The lease agreement permitted the defendant landlord to conduct repair/renovation activities, however, plaintiff contended in its complaint and demonstrated at trial that the conduct of the defendant, its general partner and contractor, Philip Banks, its subcontractors and others, substantially interfered with and prevented the plaintiff from operating its business profitably. The conduct of the defendant can only be described as the total disregard of plaintiff’s rights as a tenant and in certain cases, bordering on malicious activity. On two occasions, the plaintiff was forced to seek emergency relief in the Court of Common Pleas to force the defendant to provide heat to the leased premises. As [sic] one point, the defendant sought the eviction of the plaintiff but withdrew this request when Judge Gafni personally inspected the premises and permitted the plaintiff to escrow its rent to ensure the defendant’s provided heat. A thorough review of the notes of testimony indicates the extent to which the defendant interfered with plaintiffs business activities and totally disregarded the plaintiffs rights as a tenant.
The evidence indicated a liquidated damages provision agreed to by the parties which provided for a payment of $500.00 day where plaintiff was unable to conduct business as a result of defendant’s construction activities. The parties stipulated at trial that the number of business days at issue was 44 [excluding days closed and holidays], although plaintiff contended there were 52 [including days closes and holidays]. Plaintiff also contended that it was entitled to damages for loss of profits during the period of defendant’s business interruption and interference.
This Court found the testimony of the defendant, Philip Banks, to be incredible and highly suspect, while the testimony of plaintiff’s witnesses was credible and worthy of belief. Based upon the testimony and documentary evidence submitted by the parties, the court entered a verdict for plaintiff in the total amount of $75,716.00, which represented per diem damages of $500.00 for 44 days, plus loss of profits in the amount of $53,716.00.
The defendant contended that the plaintiff failed to prove its case by a preponderance of the evidence and that a verdict against the defendant, Philip Banks, individually, was unwarranted and unsupported by the evidence. This Court, sitting without a jury, was free to assess the credibility of the witnesses and to accept or reject testimony presented, [citation omitted]. The fact that this Court did not believe the defendant, Philip Banks, or accept his version of the facts, does not render the evidence insufficient. Likewise, a complete review of the record in this case demonstrates the existence of substantial evidence to support the verdict in plaintiff’s favor____ The verdict and judgment entered against [Banks] should stand accordingly.

Chancellor’s Op. 1-4.

On September 18, 1986, over six years into the lease, the parties negotiated an “agreement” calling for a $500 per diem stipulated sum to be paid appellee for delayed construction/renovation of the building. Relevant portions of the agreement are as follows:

September 18, 1986
To: Mr. Philip Banks
This will confirm our understanding regarding the construction work being done on the outside and inside of our store: 1. You have agreed that if you do not meet the construction schedule attached, you will pay us $500.00 per day for each day delayed. In addition, if we have to close the store, which is not contemplated, there will be an abatement of rent and $1,000.00 per day for each day that we are closed.
If you agree that the above is accurate, please sign a copy of this letter and return it to us.
Very truly yours,
/s/ Robert Levinp[]
222 Liberty Assoc.
/s/ Philip J. Banks
Philip Banks, general partner
CONSTRUCTION SCHEDULE
1. Sansom Street (corner)
A. Cut opening remove radiator 3 Day
B. Fill in plumb up 2 Day
C. Temporary glaze 2 Day
D. Place temporary door 1 Day
2. 16th Street
A. Cut 2 openings 5 day
B. Fill in plumb 3 day
C. Temporary glaze 2 day
Permanent glaze (later) 2 day
D. Place new doors 1 day
3. Remove temporary glass doors 1 day
Sansom St. replace with Temp.
4. Sansom St. smaller windows demolish (6)
(a) IV2 pep opening
(b) [illegible]

Plaintiffs exhibit 1.

Trial lasted for three days and filled 401 pages of transcript. On June 3, 1988, the chancellor issued the following uncaptioned notice of judgment in favor of appellees: “The court finds in favor of the plaintiff against the defendants 222 Liberty Associates & Philip J. Banks in the amount of $75,716.” Appellant timely filed motions for post-trial relief on June 6, 1988, accompanied by a supporting memorandum. Relief was denied by order of October 4, 1988. Thereafter, upon praecipe, judgment was entered in favor of appellee on January 12, 1989, in the amount of $75,716 as against defendant Banks only. It was not until March 22, 1990, that the chancellor filed an opinion—apparently in response to appellant’s notice of appeal to this court filed February 14, 1989.

Preliminarily, we note that despite one passing reference in the chancellor’s opinion evidencing his recognition of this being an action in equity, the clear inference is that he was at all times operating under the mistaken belief that the rules of procedure governing actions at law applied. The proof at trial bears this out, for while appellee’s complaint requested both equitable and monetary relief in the form of liquidated damages, the evidence at trial was limited exclusively to a plea for monetary damages (both liquidated and lost profit). Indeed, equitable relief was unavailable in light of the fact that all renovation efforts ceased before trial. Nonetheless, once equity (subject matter) jurisdiction properly attached, jurisdiction to enter a monetary decree for liquidated damages continued even though no disposition was made of plaintiffs initial application for injunctive relief, see Stryjewski v. Local Union No. 830, Brewery, Etc., 451 Pa. 550, 304 A.2d 463 (1973), and even though the alleged continuing harm ceased before trial. See McGovern v. Spear, 463 Pa. 269, 344 A.2d 826, 828 (1975). It has been said that a preliminary objection (either by defendant, or by the chancellor sua sponte) as to the existence of a full, complete and adequate non-statutory remedy at law, see Pa.R.C.P. 1509(c), goes to the form of the action, is not jurisdictional, and, therefore, can be waived. See Carelli v. Lyter, 430 Pa. 543, 244 A.2d 6, 8 (1968); see also Pa.R.C.P. 1509(c). No such preliminary objection was made below. Accordingly, the chancellor properly addressed appellee’s claim for liquidated damages.

LIQUIDATED DAMAGES AWARD

Appellant first contends that the $22,000 liquidated damages award must be reversed as the enforcement of a penalty. We agree.

Nearly a century ago our supreme court quite aptly articulated the policy against the enforcement of penalties in actions ex contractu:

[Wjhere the breach of agreement admits of compensation, the recovery may be limited to the loss actually sustained, notwithstanding a stipulation for a penalty. [This rule] is founded upon the principle that one party should not be allowed to profit by the default of the other, and that compensation and not forfeiture is the equitable rule.

Kunkel & Jordan v. Wherry, 189 Pa. 198, 201, 42 A. 112 (1899) (emphasis added). Hence, the rule of validity of a liquidated damages stipulation was held to comport with the general and overarching principle of contract remedies-— compensation for damages sustained. See, e.g., Kothe v. R.C. Taylor Trust, 280 U.S. 224, 50 S.Ct. 142, 74 L.Ed. 382 (1930) (agreements to pay a fixed sum without any reasonable relation to probable damages for breach “tends to negative any notion that the parties really meant to provide a measure of compensation”); see also Keck v. Bieber, 148 Pa. 645, 646, 24 A. 170 (1892); see generally Restatement (Second) of Contracts, § 356 comment a. (noting centrality of the principle of compensation). Where a stipulated damages clause is intended as a form of punishment with the purpose, in terrorem, to secure compliance, the principles of compensation are subordinated and the provision must fail as an unenforceable penalty. See In re Plywood Company of Pennsylvania, 425 F.2d 151, 155 (3d Cir.1970) (“A penalty is said to be fixed not as a pre-estimate of probable actual damages, but as a punishment, the threat of which is designed to prevent the breach.”).

To assist in making this distinction, our courts have employed certain rules of construction that are commonly thought to provide the best indication of the parties’ intent.

The question [of whether stipulation is a penalty or a valid liquidated damages provision] ... is to be determined by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject-matter and its surroundings; and in this examination we must consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages, and such other matters as are legally or necessarily inherent in the transaction.

Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714, 717 (1959) (citing March v. Allabough, 103 Pa. 335, 341 (1883)); see also Holmes Electric Protective Co. v. Goldstein, 147 Pa.Super. 506, 24 A.2d 161, 165 (1942). This court also has cited with approval section 339 of the Restatement (First) of Contracts:

(1) An Agreement, made in advance of breach, fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for breach, unless
(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and
(b) the harm that is caused by the breach is incapable or very difficult of accurate estimation.

See, e.g., Harris v. Dawson, 239 Pa.Super. 316, 360 A.2d 706 (1976) (citing with approval § 399); Kraft v. Michael, 166 Pa.Super. 57, 70 A.2d 424 (1950) (same).

In light of the foregoing legal principles, conspicuously absent is any indication that the chancellor demonstrably considered whether the per diem stipulation was: (1) chosen due to the difficulties in proving with certainty the precise extent of actual damages for breach, and (2) whether the stipulated sum was agreed to and intended as a good faith pre-estimate of actual damages anticipated from delayed repairs.

We feel that it is incumbent on the trial judge to address these mixed factual and legal questions in the first instance prior to awarding liquidated damages lest we forget that compensation, not punishment, is the guiding rule. See Keck v. Bieber, 148 Pa. 645, 646, 24 A. 170 (1892) (“where [damages are stipulated to in advance] the court will always look into the question whether this is really liquidated damages or only a penalty, the presumption being that it is the latter”); see also Holmes Electric Protective Co. v. Goldstein, 147 Pa.Super. 506, 24 A.2d 161, 165 (1942) (same). While the final determination of whether a stipulated sum is for liquidated damages or a penalty is one of law for the court to decide, see Laughlin v. Baltalden, Inc., 191 Pa.Super. 611, 159 A.2d 26, 29 (1960), it should be remembered that the pleadings and evidence reduced to findings of fact supply the court with the information necessary to make informed legal conclusions. That the facts and circumstances of each case control suggests the importance of there being detailed findings made below.

Instantly, various avenues of inquiry were available to the chancellor which might have been of assistance in discerning the parties’ intentions regarding liquidated damages. The chancellor might have examined the subject matter of the contract, particularly the nature and extent of the agreed-to repairs on the building, and the anticipated profits absent breach, to assess whether the stipulated sum was a reasonable pre-estimate of foreseeable damages due to delay. This would have been especially probative where, as here, the contract on its face was vague in its description of appellant’s specific obligations thereunder. The court also might have appropriately chosen to consider the actual amount of damages suffered due to delayed construction relative to the stipulated sum, and, hence, whether the stipulation was so grossly disproportionate to actual damages as to afford appellee a windfall. Finally, we note that parole evidence of prior negotiations offered to describe the manner through which a liquidated damages provision was arrived at, i.e., to explain the terms of a writing, is often probative of the parties’ intent. Abundantly clear from the chancellor’s opinion is that none of these avenues was investigated.

Nevertheless, we are able to glean from the record evidence which compels reversal of the liquidated damages award. Robert Levin testified at trial as to how he arrived at the $500 per diem amount included in the agreement:

We picked that [$500 per diem figure] because I had to pick some figure. We had to have some parameters within which the schedule had to be adhered to and if you went over the schedule there would have to be some sort of penalty. And we picked five hundred dollars a day, and that seemed to be perfectly fine with everybody involved if they went over the schedule.

N.T. February 23, 1988, at 169. Moreover, it was Holt’s contention at trial that the per diem amount was intended to apply even on days that Holt’s was not open for business:

Of course, it’s our contention as we made in the opening that we are counting seven days of the week; Holt’s being open six days. But the five hundred dollar per day not being limited to business days.

N.T. February 25, 1988, at 280, 380. Lastly, and in an apparent attempt to recover both stipulated and lost profits damages, Holt’s argued “that [the] contract of September 18, 1986 ... entitled] the plaintiff to a five hundred dollar a day penalty, if you will, not liquidated damages....” N.T. February 23, 1988, at 3; see also Brief for Appellee at 9 (noting that “the $22,000 is not a liquidated damage, and is separate and apart from the lost profit damages”).

We find it abundantly clear from the trial testimony and accompanying arguments that Holt’s, acting through Mr. Levin, chose the stipulated sum not as a reasonable forecast of anticipated damages due to delay, but rather solely as a penalty to discourage breach (delay). That the sum was chosen to insure “adherence” with the schedule, that appellee would construe it to apply even on days that the store ordinarily was closed for business, and that appellee repeatedly referred to, and contended that, the stipulation was a “penalty,” clearly forecloses any claim that it was intended as a measure of compensation. Accordingly, we reverse and vacate the award of $22,000 finding the liquidated damages stipulation penal in nature and unenforceable on grounds of public policy.

LOST PROFITS AWARD

In addition to liquidated damages, appellee recovered $53,716 in lost profits damages for breach of commercial lease. At trial, appellant’s attorney responded to appellee’s claim for loss of profits damages suggesting the existence of a variance between the allegata and the probata:

It is further contended by the plaintiffs that they are entitled to lost profits other than the stipulated damage calculation in the amendment to the lease. In fact, that is not pleaded in this complaint in equity. It’s our contention that this case for money damages is limited solely to the five hundred dollar a day liquidated damages clause.

N.T. February 23, 1988, at 7. Later on at trial, appellant’s attorney twice made similar objections:

Objection, your honor. For the record, I’m objecting to any introduction of any damages other than damages flowing from the five hundred dollar a day contract.
There is no claim for lost profits in the complaint or any other pleading. I don’t know how I can respond to something that is not pled.

N.T. February 23, 1988, at 103, 182.

Appellant properly preserved in post-trial motions the issue of variance from the pleadings. See Motion for Post-Trial Relief at 2, and Memorandum in support thereof at 2. Clearly, appellant could have done no more to apprise the chancellor of the purported variance. Cf. Ingrassia Const. Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478, 481 (1984), (failure to object to variance at trial is a waiver of the right to object to it thereafter); see generally 6 Std.Pa. Pract. § 33:14 (1982) (describing particular time and place for objection on grounds of variance).

The general policy demanding consistency between the allegata and the probata derives from the belief that absent prior notice of what an opponent intends to prove at trial, a party may be surprised at trial and thereby deprived of the opportunity to prepare an adequate defense. See, e.g., Freer v. Parker, 411 Pa. 346, 192 A.2d 348, 349 (1963); Computer Print Systems, Inc. v. Lewis, 281 Pa.Super. 240, 422 A.2d 148, 152 (1980). This policy against prejudicial surprise is furthered substantially under the principles embodied in Pa.R.C.P. 1021 requiring, inter alia, that the relief to which a party deems himself entitled be specified in the pleadings, and, more particularly, that a demand for unliquidated damages be specifically pleaded.

Instantly, it is clear that these legal principles have been compromised sufficiently to warrant reversal of the lost profits award. Plaintiff-appellee pleaded only an action for breach of agreement and claimed relief only in the form of liquidated damages. See Complaint at note 4 supra. Nowhere in the pleadings is there a claimed breach of commercial lease in a more general sense upon which a lost profits award might have been granted, nor is there a claim for unliquidated damages, i.e., lost profits, in conformity with Rule 1021. We hold this to be a material variance from the pleadings and can find no indication from the pleadings or elsewhere to suggest that defendant-appellant had notice that such proof would be offered at trial. Accordingly, we reverse the chancellor and vacate the award for lost business profits.

Judgement reversed; the liquidated damages and lost profits awards are vacated.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

I agree with the majority that the pleadings failed to state a claimed breach of commercial lease upon which lost profits may have been awarded and therefore join that part of the opinion denying the claim for lost profits. However, I must dissent from that part of the opinion which denied Appellee the $22,000 liquidated damages award.

The majority embraced the position that the award represented the enforcement of a penalty. Although this may be true, I nevertheless would hold that the agreement should be enforced. This was an agreement freely entered into by parties of substantially equal bargaining power, in order to assure the construction work was completed within the time called for in the construction schedule. In the event Appellant was unable to meet the construction schedule it agreed to pay Appellee $500 a day. This was an incentive for Appellant’s to complete the work within the agreed upon time schedule. I note that this type of agreement has become standard in modern day business. The Pennsylvania Department of Transportation (PennDOT) enters into this type of contract agreement regularly. I can discern no reason why there should be a distinction in the enforceability of such agreements based upon whether it is a private agreement freely entered into by consenting parties or one entered into for the benefit of the public.

We also note the recent Pennsylvania Supreme Court case of AM/PM Franchise v. Atlantic Richfield, 526 Pa. 10, 584 A.2d 915 (1990), adopted the position that parties should be entitled to prove good will damages. The court stated that historically, Pennsylvania has disallowed recovery for loss of good will damages or prospective profits in breach of warranty cases. The court noted that good will damages had always been found to be too speculative to permit recovery. See Michelin Tire Co. v. Schulz, 295 Pa. 140, 145 A. 67 (1929). In the AM/PM case the court stated:

... we believe that the rationale for precluding prospective profits under the rubric of “too speculative” ignores the realities of the marketplace and the science of modern economics. We believe that claims for prospective profits should not be barred ab initio. Rather plaintiffs should be given an opportunity to set forth and attempt to prove their damages.

The court thus overruled Michelin to the extent it prohibited a plaintiff from alleging a claim for damage to good will as a matter of law.

While admittedly the AM/PM case is a commercial code case, I find the language to be compelling. This case signifies that Pennsylvania will look to modern day approaches in enforcing contracts where contractual agreements are freely entered into. The realities of the marketplace should not be ignored. Appellee faced the very real danger of economic losses due to the renovation work being conducted by Appellants. This led to an agreement between the parties of a construction schedule, which if not lived up to by Appellants would lead to a payment of $500 a day to Appellee. The fact that this figure was arbitrarily chosen is irrelevant. The crucial aspect of the agreement is that it was entered into freely between parties of equal bargaining strengths and sophistication. Therefore, I would find this agreement is enforceable. I would further hold that the per diem amount to be paid by Appellants to Appellee was in lieu of any claim for lost profits.

      . While it is axiomatic that an agreement for liquidated damages must contain all elements of an enforceable contract, we express no opinion as to whether the agreement of September 18, 1986, is supported by mutual consideration. We note, however, that while appellant raised the issue of lack of consideration at the pleading stage, see Pa.R.C.P. 1030, no evidence or argument was offered at trial or in post-verdict motions on this point. Thus, appellant has failed to satisfy its burden of proof on this issue, see In re Beeruk’s Estate, 429 Pa. 415, 241 A.2d 755 (1968), and the issue is deemed waived for purposes of further review.
      We also note that the lease agreement permits of subsequent alteration, amendment, change or addition by agreement in writing signed by the parties. R.R. at 11a.

      . Mr. Levin is part owner, president and an officer of Holt’s. N.T. February 23, 1988, at 62.

      . Nonetheless, we will consider the various labelling errors misnomers. The June 3, 1988, notice of judgment in favor of appellees served the purpose of a "decree nisi” insofar as it afforded appellant the opportunity to file post-trial motions. Similarly, the entry of judgment on January 12, 1989, substituted as a "final decree" from which this appeal was taken. See Miller v. Miller, 359 Pa.Super. 183, 518 A.2d 841, 842 n. 2 (1986) ("order” considered a misnomer for “decree”).
      While we also will consider the "opinion” of March 22, 1990, as an “adjudication,” see Houston-Starr v. Virginia Mansions Apartments, Inc., 295 Pa.Super. 480, 441 A.2d 1334, 1335 (1982) ("opinion” considered a misnomer for "adjudication”), the fact remains that the so-called adjudication was filed nearly two years after the so-called decree nisi in violation of Pa.R.C.P. 1517 ("The court shall make an adjudication [which] ... shall consist of ... a decree nisi.”), and Pa.R.C.P. 227.1 (“Post-trial motions shall be filed within ten days after
        ... (2) ... the filing of the ... adjudication in the case of a trial without a jury or equity trial.”) (emphasis added). In this vein, we are also aware of a line of case precedent standing for the proposition that when certain rules of civil procedure governing actions in equity are sufficiently compromised (former Rules 1517-1519; current Rules 1517, 227.1, 227.2 and 227.4), the decree appealed from is a mere "nullity” and should be vacated sua sponte by an appellate court. See, e.g., Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491, (1968); Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969); Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974); In re Involuntary Term of Parental Rights, etc., 487 Pa. 387, 409 A.2d 404 (1979); Cornell v. D’Italia, 287 Pa.Super. 233, 429 A.2d 1186 (1981); Miller, supra; In re Adoption of Hamilton, 362 Pa.Super. 249, 523 A.2d 1176 (1987). Significantly, the common thread running through each of these cases is procedural error, committed by the chancellor, depriving the litigants of the opportunity to file exceptions to what should have been an adjudication and decree nisi, and the opportunity to re-argue the issues before the chancellor or the trial court en banc.
      The posture of the instant appeal is distinguishable inasmuch as appellant Banks was afforded the opportunity to move for post-trial relief in response to the notice of unfavorable judgment against him. In fact, post-trial motions were filed on June 6, 1988, and denied by order of October 4, 1988, which order further indicates that the chancellor heard argument on these motions (the hearing was not transcribed). Hence, appellant had ample opportunity below to request that the chancellor prepare an adjudication from which more particularized objections might have been made. With no such request, and in light of our disposition, we see no need to vacate the judgment and remand with instructions to prepare one anew. The substantial rights of the parties’ have not been compromised. See Pa.R.C.P. 126 ("The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”); see also Rosenfeld v. Rosenfeld, 390 Pa. 39, 133 A.2d 829, 835 (1957) ("The Chancellor should have prepared formal findings of fact and conclusions of law in compliance with Rule 1517 ... [wje do not see, however, what could be gained by our remanding the case for that purpose.”) (citations omitted).

      . The Complaint reads, in pertinent part:
      21. Plaintiff has suffered and continues to suffer substantial interference with their business activities causing them great financial loss which loss is ongoing.
      22. Plaintiff has no adequate remedy at law, and if Defendants are permitted to continue in their present course of action, Plaintiff will be irreparably harmed.

        WHEREFORE, Plaintiff prays that judgment be entered against Defendants to enforce the agreement entered into by Defendants to meet construction schedules, to pay the per diem amount, to be enjoined form interfering with access to and use of the interior portion of the premises leased by Plaintiff, ... and whatever other equitable relief this Honorable Court deems appropriate.

      . To be sure, the terminology employed is not conclusive as to the construction given a stipulated sum, see, e.g., Wedner v. Fidelity Sec. Systems, Inc., 228 Pa.Super. 67, 307 A.2d 429 (1972); Kunkel & Jordan v. Wherry, 189 Pa. 198, 201, 42 A. 112 (1899) (where party is to pay “the sum of $150 per day as a penalty for each and every day thereafter that the said work remains unfinished, as and for liquidated damages,” court observed that “[t]he name by which it is called is of but slight weight____"), it may, however, be considered corroborative of the parties’ intent as otherwise construed from the agreement.

      . A brief word of clarification is in order in response to my esteemed colleague’s appeal that this court enforce penalty clauses. See post concurring and dissenting opinion, at 750. Aside from the fact that this approach blinks at over a century’s worth of caselaw advanced by the courts of this jurisdiction, see ante at 747-748, more particularly, it departs from that which has always formed the cornerstone of contract damages—compensation. To be sure, it cannot be doubted that liquidated damages clauses often produce the incidental effect of “assur[ing] [that] construction work [is] completed within the time called for in [a] construction schedule,” and that "this [acts as] an incentive ... to complete the work within the agreed upon time schedule^]" see post at 750-751, we feel, however, that the law is quite definitive in that this cannot be the intended purpose of a stipulated damages clause regardless of the equality of the parties’ "bargaining strengths and sophistication.” Id. at 751.
      To the extent the dissent can be taken to say that the benefits of enforcing penalty clauses, even if they objectively approximate actual damages (after-the-fact), exceed the burdens placed on modern commercial transactions if we do not, we feel that this not only ignores the parties’ intentions, but also disserves the principles of compensation and, in fact, creates the wrong incentives for those negotiating stipulated damages provisions. Moreover, even where a stipulated damages clause is held invalid, this has never been found to prejudice one’s right to prove actual damages.
      Finally, while conceding the fact that our supreme court’s recent expression on goodwill damages might enlighten the inquiry in the context of lost prospective profits, see AM/PM Franchise v. Atlantic Richfield, 526 Pa. 110, 584 A.2d 915 (1990), we see no logical, much less a "compelling” reason to apply its teachings in the context of stipulated damage awards. See post at 750-751. In sum, today we reaffirm this jurisdiction’s policy of holding unenforceable those liquidated damages clauses intended as a penalty rather than as a measure of foreseeable business losses.

      . Rule 1021 states, in pertinent part:

        CLAIM FOR RELIEF. DETERMINATION OF AMOUNT IN CONTROVERSY
      (a) Any pleading demanding relief shall specify the relief to which the party deems himself entitled. Relief in the alternative or of several different types, including an accounting, may be demanded.
      (b) Any pleading demanding relief for unliquidated damages shall without claiming any specific sum set forth only whether the amount is or is not in excess of $10,000.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    591 A.2d 751
    Anthony BOWDREN, Appellant, v. AETNA LIFE AND CASUALTY.
    Superior Court of Pennsylvania.
    Argued March 12, 1991.
    Filed June 4, 1991.

      Paul M. Perlstein, Philadelphia, for appellant.
    William D. Kennedy, Philadelphia, for appellee.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Anthony Bowdren appeals from the July 2, 1990 judgment on the order of June 12, 1990 by the Philadelphia County Court of Common Pleas denying his motion to vacate a portion of an arbitration award. The sole issue before us is whether a class two insured may stack the underinsured motorist coverage in a policy which contains a pro-stacking clause not limited to a particular class of insured individuals. We find that the trial court ruling is consistent with the current state of the law on this subject and accordingly, we affirm.

The uncontested facts may be summarized as follows. On January 16, 1986, Anthony Bowdren, appellant, was operating an automobile owned by Virginia Elliott and insured by Aetna Life & Casualty Company, appellee, when he was struck by an automobile operated by Deborah Berkheimer. Appellant suffered back injuries in the accident and eventually had to have two herniated cervical discs surgically removed.

Following the accident, appellant instituted a lawsuit against the tortfeasor, Deborah Berkheimer. The suit was settled for $15,000, the limit of the tortfeasor’s coverage. Thereafter, appellant sought underinsured motorist benefits from Aetna under the policy issued to Ms. Elliott. The policy provided for $100,000 in underinsured motorist coverage at the time of the accident, and there were two automobiles on Elliott’s policy.

Pursuant to the terms of the insurance policy, Aetna and appellant proceeded to arbitration. The arbitration hearing concluded on October 11, 1989, and by order dated the same day, the panel awarded appellant $100,000. Thereafter, appellant, in a motion to open and/or reconsider, asked the arbitration panel to rule on the question of whether appellant could stack the underinsured coverage for the two automobiles on the policy for a total coverage of $200,000. The arbitrators found that appellant was not entitled to stack coverages, and the award of $100,000 was confirmed by an order dated November 13, 1990.

Appellant then filed a petition to confirm, vacate, and modify the award of the arbitrators in the Philadelphia County Court of Common Pleas. Appellee filed an answer with new matter, as well as a cross-petition to modify the arbitrators’ award. In the cross-petition, appellee contended that it was entitled to a set-off of the sum of $15,000 recovered by appellant from the tortfeasor. On June 12, 1990, the trial court entered an order confirming the arbitrators’ award of $100,000 and denying appellee’s cross-petition. Thereafter, on June 20, 1990, appellant filed a notice of appeal from the portion of the trial court’s order of June 12,1990, which denied appellant’s request to vacate the arbitrators’ finding regarding stacking of coverage and the finding regarding jurisdiction to hear appellant’s bad faith and unfair trade practices claims.

Initially, appellee contends that the trial court lacked jurisdiction over appellant’s petition to vacate the arbitration award. The trial court agreed with appellee’s argument that appellant failed to allege the proper grounds as set forth in section 7341 of the Pennsylvania Arbitration Act, 42 Pa.C.S.A. § 7301 et seq., to modify or vacate the arbitration award. Thus, our first task is to determine whether this matter is properly before us.

Appellant contends that where the insurance contract, as the one involved herein, provides for statutory arbitration, the scope of review is broader than that set forth in section 7341 and is governed by the “contrary to law” standard provided for in section 7302 of the Pennsylvania Arbitration Act. Upon review of the parties’ insurance contract and the relevant case law, we agree with appellant’s conclusion that the “contrary to law” standard should have been applied by the trial court.

It is well-settled that issues arising from uninsured motorist provisions containing an arbitration clause are subject to the exclusive jurisdiction of the arbitrators. Allstate Ins. Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972); Nationwide Mut. Ins. Co. v. Barbera, 443 Pa. 93, 277 A.2d 821 (1971); Preferred Risk Mut. Ins. Co. v. Martin, 436 Pa. 374, 260 A.2d 804 (1970). However, certain errors committed by arbitrators are reviewable by the courts and may justify reversal.

Where the contract for insurance does not specify whether statutory or common law arbitration is controlling and where the parties neither expressly nor impliedly agree subsequent to executing the contract that statutory arbitration applies, common law rules of arbitration apply. In that case, the vacating of a common law arbitration award is proper only where there was a “denial of a hearing or fraud, misconduct, corruption, or similar irregularity leading to an unjust, inequitable, or unconscionable award.” Runewicz v. Keystone Ins. Co., 476 Pa. 456, 461, 383 A.2d 189, 192 (1978); Harwitz v. Adams, 406 Pa. 539, 178 A.2d 617 (1962). On the other hand, where statutory arbitration is expressly provided for in the uninsured motorist provisions of the contract or the parties submit their dispute to statutory arbitration regardless of the contract provisions, the scope of review is somewhat broader than review of common law arbitration awards.

Bromley v. Erie Ins. Group, 322 Pa.Super. 542, 547, 469 A.2d 1124, 1127 (1983).

The statutory arbitration standard of review is set forth in section 7302 of the Pennsylvania Arbitration Act.

§ 7302. Scope of subchapter
(a) General rule.—An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Sub-chapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.
(d) Special application.—
(1) Paragraph (2) shall be applicable where:
(iii) Any person has been required by law to submit to or to agree to submit a controversy to arbitration pursuant to this subchapter.
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this sub-chapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

The insurance policy at issue specifically provides that if the parties disagree on the issues of entitlement to recovery of damages or the amount of damages recoverable, either party could make a written demand for arbitration “in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.” Reproduced Record (“R.R.”), at b-30. On several previous occasions, we determined that substantially similar language to that used in the contract herein constituted an express provision for statutory arbitration. See Geisler v. Motorists Mut. Ins. Co., 382 Pa.Super. 622, 556 A.2d 391 (1989); Selected Risks Ins. Co. v. Thompson, 363 Pa.Super. 34, 525 A.2d 411 (1987), rev’d in part and aff'd in part on other grounds, 520 Pa. 130, 552 A.2d 1382 (1989); Bromley v. Erie Insurance Group, supra. Therefore, we hold that the present contract falls within the purview of section 7302 of the Act, and the “contrary to law” scope of review should have been applied by the trial court. For this reason, we shall address the question of law presented by appellant in this appeal.

Appellant argues that the arbitrators’ ruling prohibiting the stacking of underinsured motorist benefits for class two claimants was erroneous due to the existence of a pro-stacking clause for uninsured motorist benefits which did not distinguish between classes of insured individuals. Appellant also contends that the no-stacking clause contained in the contract which applies to underinsured motorist benefits was void as contrary to public policy. Relying on Tallman v. Aetna Casualty and Surety Company, 372 Pa.Super. 593, 539 A.2d 1354 (1988), and Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), appellee responds that due to appellant’s status as a class two claimant, the no-stacking clause in the contract was not void, and the pro-stacking clause was inapplicable to him. Further, appellee maintains that the Motor Vehicle Financial Responsibility Law (“MVFRL”) prohibits stacking of underinsured motorist benefits to an amount greater than the insured’s bodily injury limits. While we agree with appellant that the existence of a pro-stacking clause distinguishes the contract herein from others previously considered by the courts, we cannot agree that the arbitrators’ ruling was contrary to law.

In Utica Mutual Ins. Co. v. Contrisciane, supra, the claimant sought uninsured motorist benefits under the Uninsured Motorist Act from the insurer of claimant’s decedent’s employer, whose car he was “occupying” at the time of the accident, and from the insurer of his family’s car. The Court emphasized in Contrisciane that the claimant’s right to stack uninsured motorist coverages from the two insurers differed according to his status as a claimant. The terms of the Utica policy described three different classes of insured, including: “(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either, (b) any other person while occupying an insured highway vehicle, and (c) any person with respect to damages he was entitled to recover because of bodily injury to which the insurance applies sustained by the insured under (a) or (b).” Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. at 338, 473 A.2d at 1010. These classifications are contained in most uninsured motorist policies and are described as “class one,” “class two,” and “class three” coverage. With respect to the employer’s policy with Utica Mutual, the decedent was a class two claimant, and consequently, the Supreme Court refused to allow the claimant to stack the policy in which he was a class two insured. The Court stated:

A claimant whose coverage is solely a result of membership in this class (Class Two) has not paid premiums, nor is he a specifically intended beneficiary of the policy. Thus, he has no recognizable contractual relationship with the insurer, and there is no basis upon which he can reasonably expect multiple coverage.

Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. at 338-339, 473 A.2d at 1010-1011. The Court did allow the claimant in Contrisciane to stack uninsured motorist benefits with respect to which he was a class one insured.

In Tollman v. Aetna Casualty and Surety Company, supra, we applied the ruling in Contrisciane to allow stacking of uninsured motorist benefits under the Uninsured Motorist Act to a class one insured’s claim to underinsured motorist benefits under the MVFRL. We determined that a provision which prohibited stacking of underinsuranee coverage was invalid as contrary to the public policy expressed in the MVFRL. Since the claimant in Tallman was a class one insured, we did not rule on the question of whether a class two insured was entitled to stack underinsured motorist benefits or whether a no-stacking provision regarding underinsurance coverage was invalid with respect to class two claimants. The only reference we made to the distinction between the classes of insured individuals in Tallman was our comment that “different classes of insured and their ability to stack uninsured coverage were outlined in Utica Mutual Ins. Co. v. Contrisciane.” Tallman v. Aetna Casualty and Surety Company, 372 Pa.Super. at 597, 539 A.2d at 1356.

We cannot agree with appellant’s contention that the arbitrators’ decision refusing to permit the stacking of underinsured motorist benefits by a class two claimant is contrary to law. Conversely, we find it to be consistent with the present state of the law. Just as the claimant in Contrisciane, appellant paid no premiums for the multiple coverage afforded to class one insureds and had no reasonable expectation that he would be entitled to coverage under policies for another vehicle owned by Ms. Elliot. Accordingly, under the reasoning of Contrisciane and Tall-man, the arbitrators committed no error in prohibiting appellant from stacking underinsured motorist benefits as a class two claimant.

Order affirmed.


author: MONTEMURO, Judge:

text:
    591 A.2d 755
    The PSI UPSILON OF PHILADELPHIA and PSI Upsilon Fraternity Tau Chapter, Appellants, v. The UNIVERSITY OF PENNSYLVANIA and Kim M. Morrisson.
    Superior Court of Pennsylvania.
    Argued March 14, 1991.
    Decided May 16, 1991.
    Petition for Allowance of Appeal Denied Sept. 25, 1991.

      John F. Ledwith, Philadelphia, for appellants.
    Frank A. Roth, Philadelphia, for appellees.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   MONTEMURO, Judge:

This appeal arises from an order of the Philadelphia Court of Common Pleas which denied appellants’ request for a preliminary injunction. Appellants filed a complaint in equity seeking injunctive relief to enjoin appellees, the University of Pennsylvania and Kim M. Morrison, Vice Provost for University Life, from enforcing certain sanctions imposed by the University. Following the issuance of a temporary restraining order, a full evidentiary hearing was held and appellants' requested relief was denied. This appeal follows.

Psi Upsilon is a social fraternal organization, which at all times prior to May 1, 1990, was a recognized residential fraternity as defined by the University’s Policy on Recognition and Governance of Undergraduate Social Fraternities and Sororities (the “Recognition Policy”). As a prerequisite to recognition as a fraternity on the University campus, appellants were required to enter into a written agreement with the University binding them to the principles, obligations and responsibilities set forth in the Recognition Policy.

The basis of appellants’ contentions on appeal arises from an incident that occurred on or about January 20, 1990. On that date, approximately twenty (20) officers, members and pledges of Psi Upsilon participated in the kidnapping and terrorizing of William O’Flanagan, Jr. (“O’Flanagan”), an undergraduate who was not a member of Psi Upsilon, as part of the “hazing” process. Immediately following the kidnapping, the facts of which are not in dispute in the instant appeal, O’Flanagan filed a complaint with the University’s Department of Public Safety. Following a hearing, sanctions were imposed from which appellants unsuccessfully sought injunctive relief. This appeal followed.

In reviewing a challenge to the denial of a preliminary injunction,

“... appellant has a very heavy burden to overcome; such a decree will not be interfered with upon appellate review in the absence of a plain abuse of discretion by the court below.” Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 577-78, 345 A.2d 664, 670 (1975). (citations omitted). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.” Roberts v. Board of Directors of the School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975); (citations omitted).

Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 505-506, 573 A.2d 575, 577 (1990). In order to prevail on a petition for injunctive relief, the moving party must establish that:

1) it is necessary to prevent immediate and irreparable harm not compensable in damages;
2) greater harm would result from denying it than from granting it;
3) the right to it is clear; and,
4) the status quo would be restored if it was granted.

Schulman v. Franklin & Marshall College, 371 Pa.Super. 345, 352, 538 A.2d 49, 52 (1988), citing Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District 76 Pa.Commw. 65, 71-72, 468 A.2d 1198, 1201 (1983), (citations omitted) (emphasis added).

Appellants assert that all prerequisites for injunctive relief were met. In support, they place special emphasis on the “clear right to relief”, which they contend exists by virtue of the University’s denial of their due process right to a fair and impartial hearing, and its denial of their rights of association, assembly and free speech. We find these assertions without merit.

Appellants initially argue that the University’s Fraternity & Sorority Advisory Board (F.S.A.B.) hearing did not comport with minimum standards of due process. In the university context due process is defined according to whether the institution is public or private. As stated in Boehm, supra, the law is fairly well established that in a state owned college or university, due process requires notice and some opportunity for hearing before a student is disciplined. Boehm, supra, 392 Pa.Super. at 508, 573 A.2d at 578, citing Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961), cert. den. 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). However,

[t]he law pertaining to judicial review of disciplinary proceedings at private colleges and universities is not so well settled. Generally, it has been said that courts are more reluctant to interfere in the disciplinary proceedings of a private college than those of a public college, (citations omitted.) A majority of the courts have characterized the relationship between a private college and its students as contractual in nature. Therefore, students who are being disciplined are entitled only to those procedural safeguards which the school specifically provides.

Id., 392 Pa.Super. at 509-10, 573 A.2d at 579, (emphasis added) (citations omitted).

The only caveat applied to this principle is that the disciplinary procedures established by the institution must be fundamentally fair. Id.

In Boehm itself, this court found that basic principles of due process and fundamental fairness were adhered to where the students involved, who were accused of cheating, had been given notice of the charges and evidence against them, were allowed to be present and to participate in the hearing assisted by faculty, to call their own witnesses and to cross-examine the witnesses against them, and were fully apprised of the findings of the Hearing Panel. The parallel with the instant case is inescapable.

Herein, in accordance with the F.S.A.B. Charter, contained in the University’s Policies and Procedures manual, Patricia Phaup, Director of the Office of Fraternity and Sorority Affairs, and Constance Goodman, University Judicial Inquiry Officer, initiated an investigation, pursuant to which a detailed statement of charges and violations was presented to appellants. The statement contained the date, time and place for the hearing.

On April 11, 1990, a full evidentiary hearing was conducted before the F.S.A.B., a body comprised of: a Chairperson, two (2) faculty members, two (2) fraternity/sorority alumni representatives, two (2) university fraternity/sorority student members and one (1) non-fraternity/sorority student. At the hearing, appellants, represented by legal counsel, were afforded the opportunity to present evidence, although they chose not to do so owing to the pendency of criminal charges against several members. However, appellants did cross-examine all witnesses presented by the University. At the end of presentation of evidence, both Psi Upsilon and University participants gave closing arguments.

The Board substantially adopted the findings presented, and sanctions were recommended. These findings and recommendations were then submitted to Dr. Morrisson who accepted them with minor modifications. All materials were thereafter sent to appellants, including the proposed sanctions, which included: withdrawal of recognition of Psi Upsilon as a fraternal organization for three (3) years with no automatic right of return; dispossession from the Psi Upsilon house without compensation; and, the prohibition of any member or pledge of Psi Upsilon, Tau Chapter, as of January 20, 1990, from participation in any future application process. Based upon the above proceedings, we cannot find that Psi Upsilon was denied either notice or an opportunity to be heard. Psi Upsilon, however, raises several objections to the procedures as contained in the F.S.A.B. Judicial Charter.

Initially, appellants question whether they received adequate notice of the charges pending against them. They contend that they were provided with “mere[ ] recitations of alleged acts, which in the aggregate were found to be a violation of the Tau Chapter’s “collective responsibility.” (Appellant’s Brief at 11). It is contended that because the term “collective responsibility”, contained in the statement of charges and violations is both vague and overbroad, and because no one testifying at the hearing provided an adequate definition, appellants were deprived of adequate notice. A review of the Recognition Policy, as well as the witnesses who offered definitions of “collective responsibility” reveals no support for appellants’ claim.

The contractual provision, entered into by Psi Upsilon pursuant to the Recognition Policy and Annual Affirmation of Recognition Policy by Recognized Fraternity, states,

A. Obligations of the Fraternity/Sorority to the University
By undertaking the process of recognition, the fraternity or sorority assumes certain obligations and responsibilities to the University community: ...
2. To accept collective responsibility for the activities of individual members of the undergraduate chapter as they relate to the following: ...
b. Conduct of members and conduct of guests of members which is knowingly tolerated by the members of the fraternity and is in violation of the University’s Code of Conduct; ...

See Penn, “University Policies and Procedures 1989-1991”, p. 32 (emphasis added). After reviewing the plain meaning of the language as espoused in the above contractual provision, and the statement of charges, we find the complained of provision to be neither ambiguous nor vague or over-broad, and that appellants were not denied effective notice. See Rosen v. Empire Valve and Fitting, Inc., 381 Pa.Super. 348, 553 A.2d 1004 (1989) (Court should not give agreement construction which is in conflict with plain meaning of language used.)

Appellants’ argument that the definitions provided by the hearing witnesses were inconsistent is similarly unwarranted. Given the consonance between the contract and the testimony, as well as appellants’ involvement in the original drafting of the language defining the term, appellants were in no way deprived of notice as to the charges against them. The absence of any complaint in this regard during either the Board hearing or the court hearing makes their lack of confusion quite clear.

Appellants also contend that they were denied a fair opportunity to be heard due to the fact that certain members, against whom criminal charges were pending, invoked their privilege against self-incrimination at the hearing before the F.S.A.B. They state that this exercise of privilege deprived them of the opportunity to present evidence, and that the University’s failure to postpone the hearing until after resolution of the criminal proceedings effectively denied them due process. We find this contention to be without merit.

As stated by the United States Court of Appeals for the Third Circuit,

... the contention that an actual or potential defendant in a criminal case should not even be put to the difficult choice of having to assert the privilege in a related civil case was rejected in United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 [1970] ...
Such a witness must either invoke his privilege against self-incrimination, or assume “the general duty to give what testimony one is capable of giving.”

De Vita v. Sills, 422 F.2d 1172, 1178-79 (3rd Cir.1970), citing United States v. Simon 373 F.2d 649, 653 (2nd Cir.1967), cert. gr. Simon v. Wharton, 386 U.S. 1030, 87 S.Ct. 1485, 18 L.Ed.2d 591, vacated as moot, 389 U.S. 425, 88 S.Ct. 577, 19 L.Ed.2d 653 (1967), (citation omitted). See also, Herberg v. Com., State Bd. of Medical Ed., 65 Pa. Commw. 358, 442 A.2d 411 (1982), citing Arthurs v. Stern, 560 F.2d 477, 480 (1st Cir.1977) (“[T]here is [nothing] inherently repugnant to due process in requiring the doctor to choose between giving testimony at the disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a course that may lead to the loss of his license.”) We find, as did the federal court in Gabrilowitz v. Newman, 582 F.2d 100, 104 (1st Cir.1978), that the difficulty of the choice facing appellants did not render it of constitutional proportions. Due process simply is not implicated by the arduousness of the decision.

Appellants also assert that bias on the part of the F.S.A.B. members prevented a fair and impartial hearing. Specifically, it is asserted that Ms. Phaup acted as both an investigator and a deliberator concerning the charges against Psi Upsilon, that Lisa Gross, a university sorority member sitting on the Board, was biased because of her acquaintance with the victim, O’Flanagan, and that Dr. Morrisson, the final decision maker, was biased as she was a Co-Chair-person for a Committee to Diversify Locust Walk, the lane upon which Psi Upsilon’s Charter House was located.

We first point out that the Board is not subject to strict rules of judicial procedure. Moreover, as this Court has stated previously, courts should not interfere with internal procedure and discipline unless real prejudice, bias or denial of due process is present. See Boehm, supra, 392 Pa.Super. at 514, 573 A.2d at 581, citing Schulman v. Franklin and Marshall College, supra, 371 Pa.Super. at 351, 538 A.2d at 52. In each of the instances cited, appellants’ claim of unfairness is unsupported by the record: Mrs. Phaup did in fact make initial inquiries about the incident, but was not a voting member of the Board; Dr. Morrisson merely approved the Board’s conclusions; Ms. Gross, the putative acquaintance of the victim, O’Flanagan, knew him only by sight. We find in none of these circumstances sufficient prejudice to vitiate' due process.

The same holds true with appellant’s assertion that the University considered undisclosed evidence in making its determinations. Psi Upsilon states that Mr. Sluizer, a fraternity alumni representative on the Board, spoke with attorney friends after the hearing but before deliberations. They further allege that a typewritten statement made by Brian Hanstein, a witness, was “pilfered” from Mr. Han-stein’s portfolio and utilized by the Board during deliberation. Finally, they assert that Ms. Goodman’s charges concerning the “planning stages” of the incident against O’Flanagan were not presented at the hearing but were utilized by the Board during deliberations. Based upon the above, they conclude that they were denied a fair hearing. Such an assertion is incorrect. This evidence was presented to the trial judge who, as factfinder, could believe some, all or none of the proffered testimony. As there is nothing in the trial court’s decision to indicate that he found this argument credible, we will not assume the role of factfinder to conclude otherwise.

Appellant’s final fairness assertion is that the sanctions imposed were too severe in light of prior disciplinary measures taken against other fraternities. Initially, an assertion that sanctions are too severe does not establish a basis for relief in Pennsylvania courts, as such a determination is within the sole province of that person designated within the contractual agreement to which the parties are signatory. Boehm, supra, 392 Pa.Super. at 521, 573 A.2d at 585. The F.S.A.B. and Vice Provost, Dr. Morrisson, fully considered all evidence presented and incorporated findings of fact and conclusions supported by law. As the determinations were within the sole province of the F.S.A.B. and Vice Provost, pursuant to the Recognition Policy and Fraternity/Sorority Advisory Judicial Charter, signed by Psi Upsilon, we will not disturb their decision.

We next approach appellants’ related assertion that by imposing sanctions under a theory of “collective responsibility,” the University has abridged their constitutional rights of association, assembly and free speech, thus entitling them to injunctive relief.

In addressing this claim, we return to the premise that the University is a private institution, maintaining private property.

“Even when an owner of private property is constitutionally obligated to honor speech and assembly rights of others, private property rights themselves must nonetheless be protected. The owner of such private property, therefore, is entitled to fashion reasonable rules to control the mode, opportunity and site for the individual exercise of expressional rights upon his property. (footnote omitted) It is at this level of analysis—assessing the reasonableness of such restrictions—that weight may be given to whether there exist convenient and feasible alternative means to individuals to engage in substantially the same expressional activity.”

Commonwealth v. Tate, 495 Pa. 158, 174, 432 A.2d 1382, 1390 (1981), citing State v. Schmid, 84 N.J. 535, 563, 423 A.2d 615, 630 (1980) (emphasis added) (footnote omitted).

The Recognition Policy to which appellant was signatory establishes the responsibility of the fraternity as an entity for acts of its members which have been determined to be improper. The result of such a conclusion is not appellants’ inability to function as the social organization it, in fact, is, but only its inability to function under the auspices of that institution whose rules its members have broken. No limitations have been placed upon its continued operation outside the University. As its “right” to University recognition was contingent upon the compliance of all its members to the rules posited by the Recognition Policy, it no longer possesses this “right.” However, its essential nature is unaffected by’ the sanctions.

Appellants finally argue that not only have they complied with the “clear right to relief” prerequisite for injunctive relief, but they have also complied with all other prerequisites.

Pursuant to our determination that Psi Upsilon has not met the prerequisite of establishing a “clear right to relief”, we need not address their remaining arguments in support of injunctive relief. See Schulman v. Franklin and Marshall College, supra, 371 Pa.Super. at 352, 538 A.2d at 52 (A preliminary injunction is an extraordinary remedy available only where the party seeking it establishes all four (4) prerequisites.) See also Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 76 Pa.Commw. 65, 463 A.2d 1198 (1983); Independent State Store Union v. Pennsylvania Liquor Control Board 495 Pa. 145, 432 A.2d 1375 (1981).

Order affirmed.

      . Appellants had participated in the drafting of this policy.

      . Apparently, O’Flanagan was not the intended victim, and had been abducted by mistake.

      . O’Flanagan also filed a criminal complaint with the Philadelphia Police Department and the Philadelphia District Attorney’s Office against several members of Psi Upsilon.

      . It has never been claimed that the University is a state actor.

      . The University had no counsel present, nor did O’Flanagan.

      . Appellants argument of constitution infringement is based mainly on Alpha Tau Omega Fraternity v. University of Pennsylvania, 10 Phila. 149, 165 (1983). There the court was called upon to determine whether the Alpha Tau Omega fraternity was afforded minimal due process in a disciplinary hearing conducted by the F.S.A.B. in 1983, which at that time had no set procedures for disciplinary hearings conducted against a fraternity or sorority on the University of Pennsylvania campus. The court suggested a list of procedures followed in other jurisdictions in order to afford Alpha Tau Omega minimal due process. Despite appellants insistence to the contrary, the only item suggested by the Alpha Tau Omega court not followed in this case, was preparation of a hearing transcript, an omission appellants also contend deprived them of a fair hearing. We are not bound by the trial court’s decision.

      . We note that no disciplinary measures were imposed upon individuals during these proceedings. No member was expelled, suspended from classes, or suffered alteration of his student status in any way.


text:
    591 A.2d 1055
    COMMONWEALTH of Pennsylvania, Appellee, v. Stuart SZCZESNIEWSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed April 15, 1991.
    Rearguments Denied June 18, 1991.

      Susan Bruno, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

      Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, following the conviction of appellant on two counts of murder in the first degree. The jury determined that appellant had conspired with Herbert Leitner and Edward Peterson in the execution style slaying of Mario Papini and his girlfriend Kathleen Logan.

Appellant raises five issues on appeal: 1) Did the trial court err by permitting evidence of uncharged drug crimes to be admitted; 2) Was the evidence insufficient; 3) Did the trial court err by permitting Assistant District Attorney Charles F. Gallagher to testify concerning why Commonwealth witness Wayne Szczesniewski was not charged with any crime in relation to the murders; 4) Did the trial court err by permitting evidence of a previous attempt months earlier to kill Mario Papini to be admitted; and 5) Did the sentencing court abuse its discretion by failing to set forth adequate reasons to justify the gross disparity of sentences imposed on appellant and his accomplices who were the principals in the murder.

Having reviewed the record and the parties’ briefs, we find that the trial court has adequately addressed and correctly disposed of the first four allegations of error raised by appellant. Accordingly, we affirm on the opinion of the court below, and we adopt the opinion of the Honorable Lynne M. Abraham as our own for the purposes of allocatur.

We comment further only to address appellant’s attack on his sentence. Appellant was tried before Judge Abraham who then imposed two consecutive life sentences. Appellant’s accomplices were tried before Judge George J. Ivins who, at the time of appellant’s sentencing, had already imposed two concurrent life sentences each upon Leitner and Peterson. Appellant argues that Judge Abraham erred by failing to place on the record adequate reasons for the gross disparity of sentences between appellant and his accomplices. Herein, appellant relies upon the following language in Commonwealth v. Holler, 326 Pa.Super. 304, 310, 473 A.2d 1103, 1107 (1984):

... We recognize that it was not incumbent upon the lower court to be guided by the sentence a different court imposed on appellant’s co-defendants. Commonwealth v. Neal, 258 Pa.Super. 375, 383, 392 A.2d 841, 845 (1978). Also see Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982). Nevertheless, we would also point out that there should not be a great disparity in the sentences imposed on codefendants unless facts exist to warrant the unequal sentences. See Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Parry, 306 Pa.Super. 390, 452 A.2d 781 (1982). If the court believes that sufficient factors exist to warrant the disparity in the sentences, the reasons therefore should be articulated on the record. Commonwealth v. Sinwell, supra.

See also Commonwealth v. Myers, 370 Pa.Super. 326, 536 A.2d 428 (1988).

Despite common misconception about “life sentences”, a “life sentence” in Pennsylvania is just as the name implies, imprisonment for life. After final appellate review of the sentence, only the Governor, based on the recommendation of the Board of Pardons, may commute life imprisonment to life on parole. See 37 Pa.Code § 81.1, et seq. Statistics indicate that only 32 life sentences were commuted between 1980 and 1987 and that the average time served for those commuted was 19.1 years.

Due to the nature of a life sentence, two consecutive life sentences are, in reality, no longer than two concurrent life sentences or, for that matter, one life sentence. All would require appellant to spend his life in prison. Instantly, it is ludicrous to think that if the Governor decided to commute the first of appellant’s life sentences to life on parole, he would not also similarly commute his second sentence. Thus, we find that there is not a “great disparity” between appellant’s consecutive life sentences and his accomplices’ concurrent life sentences.

Second, appellant and his accomplices appeared before different judges for sentencing. Therefore, Judge Abraham was not required to explain the alleged disparity in sentencing. Myers, 536 A.2d at 430; Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990) (the fact that appellant received a greater sentence than that of his co-conspirators is not in and of itself sufficient grounds to merit resentencing); Hollerbush, 444 A.2d at 1241.

Moreover, assuming that Judge Abraham was required to explain her reasons for the difference in sentences, we find that she did place adequate reasons on the record. Instantly, appellant’s life sentence was mandatory. 18 Pa.C.S.A. § 1101(a). Judge Abraham’s only discretion was whether to impose the life sentences consecutively or concurrently. In deciding to impose consecutive life sentences, Judge Abraham specifically stated that she believed the sentences imposed by Judge Ivins were “inappropriate,” and that she would not diminish the severity of appellant’s crimes by imposing concurrent sentences “for two murders by saying, well, two people are killed, you get two for the price of one.” Those reasons, in conjunction with the remainder of the sentencing record, demonstrate no abuse of discretion by the court below. See Fuller, 579 A.2d at 887, citing Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

Judgement of sentence affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I must dissent from The Majority’s affirmance of the trial court’s action in permitting Assistant District Attorney Charles F. Gallagher to testify concerning why Commonwealth witness Wayne Szczesniewski was not charged with any crime in relation to the murders. This testimony was permitted over objection of defense counsel, and counsel’s Motion for a Mistrial was denied. Further, I believe that the trial judge’s attempt at a cautionary instruction was inadequate to correct the prejudicial effect of the testimony.

This defendant, Stuart Szczesniewski, was charged with a double murder, and it was the prosecution’s theory that the murders stemmed from the defendant’s involvement in a large scale drug manufacturing and distribution scheme. Two other persons had been tried separately and were also convicted of these crimes. In order to connect the defendant with events on the night of the murders the Commonwealth called as a witness the defendant’s brother, Wayne. He testified in detail concerning his involvement with Stuart in the drug business. It was the Commonwealth’s theory that the murders were committed because the victims, who were drug sellers, had refused to pay for drugs that the defendants manufactured and supplied. Therefore, in order to maintain credibility for future drug deals, these victims were to be killed as an example to others who failed to pay for their supplies. While there was a substantial amount of testimony with respect to the drug operation, only the testimony of Wayne could link this defendant with events on the night of the murders.

During his direct examination, Wayne related that his brother directed him to meet one of the other persons involved who directed him to drive the “hit man” to the place were the murders took place. Later that evening, Wayne testified that he retrieved this person and they went back to the drug plant. On cross-examination, Wayne admitted that he was fairly sure that the murders were going to be committed the evening he drove Herbert Leitner, who was earlier convicted for shooting the victims, to the Woodbine Inn, and further admitted to involvement in the crime. (Record pp 562-563) Also, during cross-examination, it was established that Wayne was never charged in these homicides or other potential crimes in Pennsylvania. In addition it was shown that an Assistant District Attorney from Philadelphia accompanied Wayne to a court proceeding in New Jersey where he received a probationary sentence for a pending, drug-related crime. Wayne testified that no agreement existed between him and any prosecuting authority to exchange leniency for his testimony in the murder cases.

In order to rebut the obvious inference that such an agreement had been reached and to rehabilitate the witness’ credibility, the prosecution called Assistant District Attorney Charles F. Gallagher to the stand. Mr. Gallagher testified that no deal was reached with Wayne in exchange for his testimony. However, he was asked over objection why Wayne was not charged in this matter and testified:

A: Based on my review of evidence that was produced to the grand jury, that’s all the statements, not only by the Szczesniewski brothers but everyone else, it was clear that Wayne was just an employee of this so-called chemical plant which was, in fact, a drug factory. It was clear he was not involved in—

(R pp. 726-727).

A: No, no deals were ever made with Wayne Szczesniewski for his testimony. I mean deals, there were never any agreements made, a quid pro quo, in other words, that we would go to bat for him or that we would offer him anything for his testimony.
It was clear from the beginning when I met Wayne Szczesniewski that all he wanted to do was come forward and get this incident behind him. And there were never any deals offered to him for his testimony, nor was there any influence made by our office ... upon the Camden County Prosecutor’s Office as far as the resolution of Wayne’s cases over in Camden County ...

(R. pp. 730-731).

This testimony by the Assistant District Attorney goes far beyond rehabilitating the witness. It is in effect a statement by the Government that the witness’ testimony is true. By referring to his review of all the investigation materials at his disposal, Mr. Gallagher was placing his imprimatur on the version of events that were related by Wayne. This type of evidence has been ruled inadmissible by our courts. In Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147, (1990), the Supreme Court of Pennsylvania condemned the practice of introducing evidence that vouches for the credibility of the Commonwealth’s own witnesses. It further held that in so bolstering credibility, the Commonwealth violated the defendant’s right to a fair trial.

In Commonwealth v. Seese, 512 Pa. 439, 443-44, 517 A.2d 920 (1986), the court stated:

It is an encroachment upon the province of the jury to permit expert testimony on the issue of a witness’ credibility. [citation omitted] Indeed, to permit expert testimony for the purpose of determining the credibility of a witness “would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment, [citation omitted]

Seese also postulated that if expert testimony as to the veracity of distinct classes of individuals were admitted, (in this case persons involved in criminal activity), one could imagine experts testifying as to the veracity of the elderly, or of various ethnic groups, or persons employed in various trades or professions, etc. Such testimony, would encourage jurors to shift their focus from determining the credibility of a particular witness who testified, and instead defer to the expert’s assessment of the veracity of the class of people to which the witness belonged. Id., 512 Pa. at 444, 517 A.2d 920.

Such is the danger here, particularly when Mr. Gallagher, an Assistant District Attorney, and therefore an “expert” in prosecuting criminal suspects, gives his opinion that Wayne was being truthful in order to “get this incident behind him.”

The trial judge’s cautionary instruction was inadequate to remedy this error. That instruction advised the jury that they were not to be concerned with whether they agreed or disagreed with the prosecution’s decision not to charge Wayne with these crimes. She further stated that this witness was presented to establish that no agreement was reached with Wayne and the reason for the decision not to prosecute. Nowhere in this instruction was the jury cautioned that Mr. Gallagher’s opinion about the truth of Wayne’s statement or Mr. Gallagher’s opinion of Wayne’s involvement were to be disregarded, since they are not to be considered by the jury. By this statement I do not mean to imply that a cautionary instruction could have corrected the prejudicial effect of this testimony. I merely point out that the instruction given in this case could never have done so. Therefore, I dissent and would grant a new trial.

      . The Department of Corrections Statistical Report, 1980-1987, reveals the following:
      Year Total Lifers Commuted Died Total Discharged
      1980 848 16 6 22
      1981 964 5 5 10

        Year Total Lifers Commuted Died Total Discharged
      1982 1074 4 4 8
      1983 1195 3 8 11
      1984 1311 1 7 8
      1985 1429 2 8 10
      1986 1544 1 7 8
      1987 1674 0 5 5
      Total 32 50 82
      Average Time Served 19.1 yrs 9.9 yrs 13.5 yrs

      . We note that the language in Holler, 473 A.2d at 1107, regarding the requirement that "great disparity” in sentence must be explained, which was cited with approval in Myers, 536 A.2d at 430, is dicta with questionable support. Although the Holler court commented on disparate sentences by different judges, it did so unnecessarily as the court had already determined remand for resentencing was required because of a woefully inadequate sentencing record. Commonwealth v. Krysiak, 369 Pa.Super. 293, 296, 535 A.2d 165, 167 (1987), allocatur denied 518 Pa. 637, 542 A.2d 1366.
      Further, in support of the proposition that a "great disparity” in sentences must be explained, the Holler court cited to Sinwell, supra, and Parry, supra. See also Krysiak, 535 A.2d at 167 citing, Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984). Sinwell, supra, Parry, supra, and Gelormo, supra, all relate to disparity in sentences imposed upon codefendants by the same judge, not a different- judge. Thus, those cases do not address the precise proposition for which they were cited.
      However, we must remember that when individual sentencing judges are simply part of the same Court of Common Pleas, they should endeavor to mete out similar sentences to co-defendants when justice so dictates.

      . We comment further only to address the dissent of our esteemed colleague the Honorable Joseph Del Sole. Instantly, the testimony of District Attorney Charles F. Gallagher was offered solely to rehabilitate the credibility of Commonwealth witness Wayne Szczesniewski. Thus, we find that the lower court did not err when it permitted the Commonwealth to rehabilitate the credibility of its witness Wayne Szczesniewski.
      The lower court succinctly characterized appellant’s trial strategy, "In an attempt to discredit [Wayne] trial counsel sought to portray Wayne as the accomplice, not Stuart, and to create the inference that Wayne had falsely and corruptly placed blame on Stuart because the prosecutor’s office in Philadelphia offered him preferential and exceedingly beneficial treatment and favors as incentives for him to do so.” Trial Ct. Op., p. 25. Without a doubt, the Commonwealth should be permitted to rehabilitate a witness whose credibility has been assailed by the defense. Commonwealth v. Griffin, 511 Pa. 553, 567-570, 515 A.2d 865, 872-873 (1986); Commonwealth v. Johnson, 441 Pa. 237, 239-242, 272 A.2d 467, 469-470 (1971); Commonwealth v. Nelson, 274 Pa.Super. 526, 527-533, 418 A.2d 531, 532-533 (1980).
      Under the circumstances sub judice, District Attorney Gallagher’s testimony was plainly admissible to rebut defense counsel's suggestion that Wayne falsely accused appellant in exchange for preferential treatment by the Commonwealth. Cf., Griffin, 515 A.2d at 872-873 (proper to permit state trooper to testify that no deals or promises were made in exchange for witness’ prior consonant statement). District Attorney Gallagher testified that appellant did not receive preferential treatment in exchange for his testimony. In response to defense counsel’s assertion that Wayne was not prosecuted for the present murders in exchange for his testimony, it was proper to permit District Attorney Gallagher to testify as to the process he used to decide whether to indict Wayne. Further, we note that much of the testimony about which appellant now complains was elicited on cross-examination by defense counsel.
      This is not a case, as the dissent asserts, where the Commonwealth impermissibly introduced evidence on direct examination which vouched for the credibility of its own witness. Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990) is inapposite presently. Therein, the United States Attorney for the Western District of Pennsylvania, the District Attorney of Allegheny County and the Attorney General for the Commonwealth of Pennsylvania placed the imprimatur of their offices as support for the proposition that the Commonwealth witnesses were “telling the truth." Instantly, District Attorney Gallagher’s testimony was offered only to rehabilitate Wayne’s credibility and to rebut defense counsel’s assertion of corrupt motives and bias. Moreover, the evidence in Bricker, supra, not only enhanced the otherwise un-impeached credibility of Commonwealth witnesses, but also tended to demonstrate that the accused had the same opportunity as the Commonwealth’s witnesses to come forward and admit his involvement in criminal activity yet refused. Thus, the jury might have focused on the fact that Bricker did not take the stand in his own defense. Such was not the case presently.
      In addition, Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), as cited by the dissent, is also inapposite to the case before us. In Seese, supra, our Supreme Court ruled that expert evidence aimed at enhancing the credibility of a witness is inadmissible. However, District Attorney Gallagher did not testify as an expert on criminal law who was commenting on the veracity of a particular class of Commonwealth witnesses. Rather, Gallagher simply testified that Wayne did not receive favorable treatment in exchange for his testimony and that the decision whether to prosecute Wayne for the present murders was made independently of Wayne's decision to testify for the prosecution. This is not a case like Seese, supra, where expert testimony was offered to demonstrate the veracity of a particular class of persons. Instantly, the jury was simply presented with the information necessary to make a just assessment of the credibility of the Commonwealth’s key witness.
      Moreover, the lower court, in an abundance of caution, instructed the jury:
      Since Mr. Gallagher has testified that prosecutorial discretion is involved in making decisions as to who shall be charged and who shall not be charged, this involves his testimony as to those things that went on in his thinking, which may or may not be covered on cross-examination by Mr. Zucker.
      That doesn’t mean that you may agree with his decision or that you can’t disagree with him. You may or may not, if you choose. The only purpose he is here to testify today is with regard to who was it that made the decision not to charge Wayne and what were the things that went into it, not that he was correct or incorrect in making that decision, that’s a judgment for the jury to make. In sum, we find that it was proper to permit District Attorney
      Gallagher to testify in order to rebut defense counsel’s argument that Wayne Szczesniewski was given favorable treatment in exchange for his testimony. Further, the lower court's cautionary instruction and final jury instructions made it abundantly clear that it was the jury’s exclusive function to assess Wayne’s credibility, and therefore, reversible error was not committed. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).