author: BECK, Judge:

text:
    667 A.2d 396
    Patricia CHRISTIANSEN, Administratrix of the Estate of Glen P. Christiansen, Appellant, v. Harold SILFIES, Richard Silfies, and Carl H. Betz Road and Building Materials, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1995.
    Filed Oct. 11, 1995.
    Reargument Denied Dec. 14, 1995.

      Linda M. Shick & Martin N. Ghen, Doylestown, for appellant.
    Leslie M. Cyr, Philadelphia, for Harold & Richard Silfies, appellees.
    Anthony S. Pinnie, Wayne, for Betz Road & Building Materials, appellee.
    Before ROWLEY, President Judge, and McEWEN and BECK, JJ.
   BECK, Judge:

Plaintiff-appellant Patricia Christiansen, Administratrix of the Estate of Glen P. Christiansen, appeals from the trial court’s refusal to grant a new trial in this wrongful death and survival action filed against defendants-appellees Richard Silfies, Harold Silfies, and Carl H. Betz Road and Building Materials (hereinafter “Carl Betz”). We affirm in part and reverse and remand in part.

This action arose out of a fatal motor vehicle accident that occurred on October 16, 1989, at about 6:15 a.m. in foggy conditions, at the intersection of Routes 412 and 563 near Lake Nockamixon in Bucks County. Decedent Cien Christiansen’s automobile collided with a tractor-trailer being operated by appellee Richard Silfies. The tractor-trailer was owned by appellee Harold Silfies, and at the time of the accident was leased to appellee Carl Betz. Richard Silfies was employed by Carl Betz. Appellant filed this negligence action against the appellees, claiming Richard Silfies was negligent in operating the tractor-trailer, and basing her claim against Harold Silfies and Carl Betz on a theory of negligent entrustment of the tractor-trailer to driver Richard Silfies. In support of her claim of negligent entrustment, appellant intended to present evidence of Richard Silfies’s poor driving record. In their defense, appellees presented evidence that decedent Glen Christiansen caused the accident when he sped through a stop sign at the intersection and into the path of the tractor trailer. As a result, the Comparative Negligence Act, 42 Pa.C.S. § 7102 (Purdon 1982) is implicated.

The trial judge “trifurcated” the matter and heard with a jury the case against tractor-trailer driver Richard Silfies first. The court’s intention was to allow the jury to find liability, if any, on the part of driver Richard Silfies, and then to proceed with the negligent entrustment claim against Harold Silfies and Carl Betz. In this way, the court hoped to avoid admitting evidence of Richard Silfies’s driving record, which would have been overly prejudicial in the negligence action against him, but would have been the critical evidence in the negligent entrustment claim against Harold Silfies and Carl Betz. A third phase to determine damages would then take place, if necessary.

In its answers on the Verdict Sheet, the jury found that Richard Silfies was negligent, and that his negligence was a substantial factor in bringing about Glen Christiansen’s death. In addition, the jury found that Glen Christiansen was negligent, and that his own negligence was a substantial factor in bringing about his death. At this juncture, the jury was permitted to compare the causal negligence of Richard Silfies with that of Glen Christiansen. The jury found Richard Silfies to be 49% causally negligent and Glen Christiansen to be 51% negligent, thus foreclosing recovery under the Comparative Negligence Act. The trial court then held that it was not necessary to proceed on the negligent entrustment claim against Harold Silfies and Carl Betz because the negligent entrustment claim was dependent upon Richard Silfies’s actual liability for damages. Of course, the damages phase was never reached.

Appellant claims that she is entitled to a new trial. She argues that the trial court erred in: 1) “trifurcating” the proceedings so that her husband’s negligence was compared to just one of the three defendants in contravention of the Comparative Negligence Act; 2)- excluding the testimony of her weather expert regarding the fog conditions at the time of the accident; 3) excluding the testimony of her tractor-trailer driver expert; 4) precluding reference to a commercial driver’s manual; and 5) excluding testimony regarding application of Federal Motor Carrier Safety Regulations and Pennsylvania’s Motor Vehicle Code.

We note our standard of review in this appeal from the denial of a motion for a new trial. We may reverse only where the trial court clearly and palpably abused its discretion or committed an error of law that controlled the outcome of the case. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985).

We first address appellant’s claim that the trial court erred in bifurcating the liability phase of the trial, and specifically, in allowing the jury to compare the causal negligence of Richard Silfies and Glen Christiansen before hearing the negligent entrustment case against Harold Silfies and Carl Betz. In doing so, the court reasoned that “before the jury could consider any negligent conduct on the part of defendants Harold Silfies and [Carl Betz], it would have to determine that defendant Richard Silfies’ [sic] conduct was negligent and the cause of Glen Christiansen’s death.” We agree that bifurcating the liability phases so that the jury would hear the case against Richard Silfies independently from that against Harold Silfies and Carl Betz, due to the prejudicial nature of the negligent entrustment evidence, was a proper exercise of discretion by the trial court. However, we hold that the jury was prematurely permitted to apportion the causal negligence between Glen Christiansen and only one of the three defendants in the case.

The Comparative Negligence Act requires that the plaintiffs causal negligence be compared to that of the “defendant or defendants against whom recovery is sought.” 42 Pa.C.S. § 7102(a). Our supreme court has held that this language means “recovery by an injured plaintiff will be precluded only where plaintiffs negligence exceeds the combined negligence of all defendants.” Elder v. Orluck, 511 Pa. 402, 515 A.2d 517, 525 (1986) (emphasis added). We have found no binding cases that include this peculiar combination of a negligent entrustment claim and comparative negligence issues under similar circumstances. However*, relevant decisions lead us to the conclusion that, although the negligence cases against Richard Silfies on the one hand and Harold Silfies and Carl Betz on the other may be tried separately, the comparison of their causal negligence to that of the plaintiff must be accomplished simultaneously, after the negligence determinations have been made.

We hold that on retrial, three phases of trial should take place: 1) the first in which Richard Silfies alone is the defendant, and the jury should determine whether he and the decedent were causally negligent; 2) the second in which Harold Silfies and Carl Betz’s causal negligence is determined, and after which the jury may apportion the percentages of causal negligence attributable to each defendant and the decedent; and 3) the final phase during which damages may be tried and determined.

Appellant alleged that Harold Silfies and Carl Betz negligently entrusted the tractor-trailer to driver Richard Silfies. The tort of negligent entrustment is described in the Restatement (Second) of Torts, § 308 as follows:

§ 308. Permitting Improper Persons to Use Things or Engage in Activities
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Section 308 imposes liability on a defendant because of her own acts in relation to an instrumentality or activity under her control; an “entrustor’s” liability is not dependent on, derivative of, or imputed from the “entrustee’s” actual liability for damages. Johnson v. Johnson, 410 Pa.Super. 631, 600 A.2d 965, 970 n. 5 (1991) (citing Mendola v. Sambol, 166 Pa.Super. 351, 71 A.2d 827 (1950)). However, our cases do require that the entrustee be causally negligent before the entrustor may be held liable through negligent entrustment.

In several decisions, this court has held that liability for negligent entrustment does not attach to the entrustor until the entrustee uses the entrusted instrumentality negligently, and is found causally responsible for ensuing harm. See generally Erie Ins. Exchange v. Transamerica Ins. Co., 352 Pa.Super. 78, 507 A.2d 389 (1986), rev’d on other grounds, 516 Pa. 574, 533 A.2d 1363 (1987) (injured party may not recover on negligent entrustment theory unless the incompetent to whom a motor vehicle was entrusted caused the injury by his negligent use of it); Pulleyn v. Cavalier Ins. Corp., 351 Pa.Super. 347, 505 A.2d 1016 (1986) (although the act of negligently entrusting a motor vehicle is an essential part of the tort, liability is not actually triggered until the motor vehicle is used in a negligent manner). See also Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982), aff'd, 504 Pa. 238, 470 A.2d 969 (1984) (Comparative Negligence Act provides for apportionment of negligence among the tortfeasors causally responsible for the injury).

According to these cases, in order for Harold Silfies and Carl Betz to be held liable for negligent entrustment, there must first be a finding that Richard Silfies was causally negligent in the collision with Glen Christiansen. In fact, the jurors did find that Richard Silfies was negligent, and that his negligence was a substantial factor in causing Christiansen’s death. The jury should then have been permitted to hear the case against Harold Silfies and Carl Betz, to decide whether they were guilty of negligent entrustment, and whether any such negligence was a substantial factor in causing Christian-sen’s death. Only after these preliminary questions were answered — whether Christiansen, Richard Silfies, Harold Silfies and Carl Betz were negligent and whether their negligence was a substantial factor in causing the accident — could the jury be instructed to apportion the relative percentages of causal negligence among Christiansen and all the defendants. Elder, supra; 42 Pa.C.S. § 7102(a).

We hold that the trial court erred in allowing the jury to apportion negligence between the decedent and one defendant only, when the Comparative Negligence Act requires such apportionment to involve all defendants. The negligent entrustment theory of liability requires only an initial finding that the entrustee was causally negligent before the negligence case against the entrustors may proceed. The jury did make such a finding in this case, and the trial court erred in prematurely allowing them to make the comparative negligence apportionment and ending the case too soon. We therefore must remand this matter for a new trial.

We also address the appellant’s other issues because they will likely be revisited in the new trial. Appellant asserts that the trial court erred in excluding testimony from an expert witness regarding the weather conditions at the time and place of the accident. There was varying testimony presented by several eyewitnesses regarding the density of fog and level of visibility at the accident scene. Appellant claims that her meteorologist witness would have “presented evidence regarding the special climatological and topographical factors which give rise to ‘dense’ fog, and the resulting ‘zero visibility’ at the intersection on the day and time of the accident.” Appellant’s Brief at 8. The expert, who was not at the scene of the accident, would have based his opinion on a report by the National Weather Service.

The decision to admit expert testimony is within the sound discretion of the trial court and we will not reverse absent an abuse of that discretion. Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986). The court precluded this testimony because of the availability of firsthand observations from eyewitnesses, and also because the expert’s testimony was not necessary due to the fact that weather conditions involve matters of common knowledge that are easily described and understood by laymen. The conflicting testimony on this point could properly be evaluated by jurors without the aid of an expert; indeed, an expert’s opinion on this matter could improperly carry undue weight in the jury’s credibility determinations. Collins v. Zediker, 421 Pa. 52, 55-56, 218 A.2d 776, 778 (1966). Moreover, the expert’s opinion in this matter was evidently based on hearsay information, and did not describe the precise location of the accident, but merely the “surrounding areas.” We therefore affirm the trial court’s decision to preclude the testimony of this expert witness.

Appellant next challenges the trial court’s preclusion of testimony from her tractor-trailer driver expert, William Has-kins. Prior to trial, appellant produced a report by Haskins that appellant concedes contained “some facts not in evidence or even some facts in evidence which were in contradiction to those in support of his report.”

However, appellant also made an offer of proof at trial that Haskins would render an opinion as to the standard of care to be used by commercial tractor-trailer drivers under certain weight and weather conditions that did exist in this case. The. trial court precluded even this testimony on the basis that it was outside the fair scope of the expert report. Pa.R.Civ.P. 4003.5; Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 348 Pa.Super. 285, 502 A.2d 210 (1985) (the “fair scope” of an expert’s report contemplates a reasonable explanation and even an enlargement of the expert’s written words, but not a “new and different” version).

Haskins’s written report, evidently forwarded to appellees about a year before trial, included the following opinion:

Due to weather and road conditions, the truck driver was driving too fast for conditions. He slammed on his brakes with an empty trailer, causing his brakes to lock up and the loss of control of the unit. Upon seeing the Christiansen vehicle in his roadway, the truck driver failed to take any appropriate evasive actions. Further, it is my opinion that if Richard Silfies had not locked up his brakes and maintained his direction of travel, this collision would not have occurred. In the alternative, he would have struck the [Christiansen] vehicle in the left rear quarter panel resulting in lesser damage....

R. 35a. At trial, appellant’s counsel made the following offer of proof with regard to testimony by Haskins:

I then would ask him what are the factors a tractor trailer driver considers in regulating his speed on the highway while driving those roads that we just talked about and under foggy conditions what are the factors he considers. I believe he will answer that he would consider the load, what load he is carrying, the road conditions, that is, not just wet or dry, but size, shape, so forth, the weather, day or night situation, and I would ask him how those factors would affect his driving, what he would do while driving the roadway under those factors — and I would use the factors involved in this case, a wet roadway surface and foggy conditions, and would ask him that he answer in the standard of a reasonable professional commercial truck driver.

R. 77a. The trial court refused to allow Haskins to testify on the standard of care of a tractor-trailer driver under the weather and load conditions after this offer of proof, stating that the offer was outside the scope of the expert report produced in discovery.

The “fair scope” inquiry involves a determination of whether the expert report “provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.” Hickman v. Fruehauf Corp., 386 Pa.Super. 455, 459, 563 A.2d 155, 157 (1988). The decision to admit evidence outside the fair scope of an expert report is not reversible error absent prejudice or surprise to the opponent. Trent v. Trotman, 352 Pa.Super. 490, 508 A.2d 580 (1986). See also Greer v. Bryant, 423 Pa.Super. 608, 621 A.2d 999 (1993) (where an expert’s report included an opinion that defendant-hospital should have admitted plaintiff-patient, the expert’s trial testimony that the hospital should have admitted the patient despite a doctor’s refusal was not outside the fair scope of his expert report).

We do not agree that the expert report, although flawed in some respects, did not put appellees on notice as to what the expert would say about weather, road and load conditions, as well as the required braking and evasive action required under these circumstances. Where there is no surprise or prejudice, and an ample opportunity to rebut the proposed testimony is provided, the expert testimony should be admitted. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 604 A.2d 270 (1992). We hold that the trial court abused its discretion in precluding the proffered opinion by appellant’s expert tractor-trailer driver Haskins.

Next, appellant claims that the trial court erred in precluding reference to the Commercial Driver’s Manual (Commonwealth of Pennsylvania, Department of Transportation, Pub. 223 (5-89)). The manual contains guidelines for driving a tractor-trailer under certain given conditions, including load, visibility and speed variables, and describes recommended evasive actions. Richard Silfies was questioned about the manual and admitted that he was familiar with its contents, but further questioning was precluded by the trial court on appellees’ objection.

Authoritative texts are not admissible for the truth of their contents; they may not be read to the jury or admitted as substantive evidence. Cummings v. Nazareth Borough, 430 Pa. 255, 242 A.2d 460 (1968). However, such manuals or texts may be used to cross-examine experts as to their familiarity or concurrence with the information, after the material has been established as standard and authoritative by expert testimony. Nigro v. Remington Arms Co., 432 Pa.Super. 60, 637 A.2d 983, 993 (1993); Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334, 339 (1988); McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436, 437 (1987).

Here, appellant did not offer to present any expert testimony to establish the manual as an authoritative text during trial, despite her argument to this court that certain of her expert witnesses could have done so. Under these circumstances, we cannot hold that the trial court abused its discretion in precluding reference to the manual as presented by appellant. Whyte v. Robinson, 421 Pa.Super. 33, 617 A.2d 380 (1992) (questions regarding admissibility of evidence are subject to abuse of discretion standard).

Finally, appellant challenges the trial court’s decision to exclude testimony regarding portions of the Federal Motor Carrier Safety Regulations and the Pennsylvania Motor Vehicle Code. We first note that certain portions of these regulations and the code were in fact read to the jury as applicable law they should consider during deliberations. Moreover, relevant laws and regulations should be admitted to establish a duty of care and any breach of that duty as evidence of negligence. Wisniewski v. Chestnut Hill Hospital, 403 Pa. 610, 170 A.2d 595 (1961); Brogley v. Chambersburg Eng. Co., 306 Pa.Super. 316, 452 A.2d 743 (1982). Violation of applicable laws may be negligence per se. Garcia v. Bang, 375 Pa.Super. 356, 544 A.2d 509 (1988). However, a review of the record reveals that the testimony to which appellant refers actually was excluded because it was outside the scope of the witness’s area of expertise, and also because the expert would be providing an improper opinion.

Appellant claims that the trial court erred when it prevented Trooper Crossley, who is an expert on safety inspections of motor carriers, from testifying about the application of certain safety regulations. Trooper Crossley had been qualified as having performed over 500 truck inspections, and his duties included inspecting driver documents and safety equipment. Crossley was permitted to testify about the braking mechanisms on the Silfies tractor-trailer, which he inspected after the accident, and the driver’s logbook. However, Crossley was not permitted to give his opinion as to the standard of care that Richard Silfies should have used while driving a tractor-trailer under conditions such as those present at the time of the accident. We find no error in this ruling. Trooper Crossley’s expertise was limited to the application of certain regulations pertaining to inspections of truck equipment and documentation, and he was not qualified to opine about any other regulations which may have involved driving standards.

Appellant also asserts that her accident reconstruction expert, Charles Sulzbach, should have been permitted to offer an opinion on the application of the standard of care for truck drivers. An expert may indeed offer an opinion as to the ultimate issue, in this case, whether truck driver Richard Silfies complied with the applicable standards of care. But such opinion testimony is not proper where it requires a credibility assessment by the expert witness. Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987). Therefore, it would have been proper to have a qualified expert describe what the applicable standard of care is in a case such as this, but to allow the jury to apply the standard to the facts as they find them. Id. Cf. Collins v. Zediker, supra (expert testimony is not admissible when the matter may be described to the jury and the condition evaluated without the assistance of one claiming to have special knowledge on the subject, such as walking speeds).

However, appellant could not offer this type of admissible expert testimony through Charles Sulzbach. Although Mr. Sulzbach was permitted to testify on the issue of accident reconstruction, his area of expertise, the trial court properly precluded his testimony on the standards of care of commercial truck drivers operating in hazardous conditions that may be defined in the Pennsylvania Motor Vehicle Code and the Federal Motor Carrier Safety Regulations. Such matters were simply outside Mr. Sulzbach’s area of expertise.

Order affirmed in part and reversed and remanded in part; jurisdiction relinquished.

      . Since enactment of the Comparative Negligence Act, a plaintiff's contributory negligence no longer constitutes a complete bar to recovery in a tort action. A negligent plaintiff’s recovery is limited as follows:
      (a) General Rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed Lo the plaintiff....
      42 Pa.C.S. § 7102(a). Thus, for example, a plaintiff who is up to 50% causally negligent for his own harm may still recover damages, but any award must be reduced by the percentage of negligence apportioned to the plaintiff, or 50%.

      . The holding in Elder was in a different factual context from this matter, and did not involve the complicating factor of a negligent entrustment claim. In addition, the decision is a plurality opinion. However, a majority of the participating members apparently did agree on the featured analysis of the Comparative Negligence Act, and the conclusion that the plaintiff's negligence must be compared to that of all defendants. Elder, supra.

      . We note that we would have no objection to a "bifurcated” proceeding, where what we here call the "second” and "third” phases could be collapsed into one phase of trial, with the attendant deliberations to follow. The critical factor, however, is that the prejudicial negligent entrustment evidence be kept separate from the initial determination of the driver-defendant's negligence and that the apportionment of all defendants’ causal negligence be determined simultaneously thereafter. Within these parameters, we would leave the structure of trial to the discretion of the trial judge. We focus primarily on correcting the lower court’s error in failing to follow such a procedure in this case.

      . We recognize that had this procedure been followed the jury would have heard the evidence relating to Richard Silfies's poor driving record prior to its apportionment deliberations. Any potential prejudice at this point could have been forestalled by appropriate instructions to the jury that they were not to consider the poor driving record of Richard Silfies with regard to the apportionment of negligence to him. Juries often are required to separate evidence and limit its application as instructed.

      . Of course, had the jury answered negatively the questions regarding Richard Silfies’s causal negligence, the trial court would have correctly ended the matter as to appellees Harold Silfies and Carl Betz.

      . Appellees argue that the finding of 51% causal negligence on the part of decedent is conclusive despite the number of defendants whose negligence was compared with it. In other words, any error in this aspect of the case was harmless. However, we do not believe that such a conclusion is in keeping with the plain language and spirit of the Comparative Negligence Act, which clearly requires the comparison to be made between the plaintiff and all defendants who are causally negligent.

      . Eva Barron testified that she was able to see approximately 200 feet from her kitchen window to the intersection. Trooper Philip Crossley testified that visibility was 50-100 feet. Robert Balbirer, Jr. testified that he could see 10-15 feet from his bedroom window, and even distinguished fog conditions present on the morning of the accident from those present on another occasion when there was zero visibility. Mr. Balbirer also testified that he was able to see a diffusion of light from his bedroom window from about 1,500 feet away. Charles Donahue testified that he was able to see the tractor-trailer from about 40-50 feet away.

      . For example, the report contained statements that the visibility was limited to zero, a fact which was not adduced at trial, and that the accident occurred in the northbound lane, a statement contradicted by the evidence at trial. In addition, the report was based on a CompuWeather report which was deemed to be inadmissible.

      . Appellant’s counsel later conceded that time of day was not included in the expert's report, and presumably, that the testimony would not include this particular variable.

      . We note that mere errors in an expert's reasoning do not necessarily render his or her opinion inadmissible, although they certainly are matters for impeachment on cross-examination.

      . These parts described limitations on speed under certain road, visibility and weather conditions, rules on stop signs, and requirements for driver's licenses and corrective lenses.

      . Mr. Sulzbach was permitted to testify, inter alia, about the type of truck involved, its lighting system and visibility out of the cab.


source: Caselaw Access Project

author: SAYLOR, Judge.

license: Public Domain

text:
    667 A.2d 404
    COLUMBIA GAS OF PENNSYLVANIA, INC., Appellant, v. CARL E. BAKER, INC., Elsie G. Favino, Executrix of the Estate of James F. Favino, Deceased, and C.S. Davidson, Inc., Appellees. Verna SMITH v. COLUMBIA GAS OF PENNSYLVANIA, INC. v. CARL E. BAKER, INC., Elsie G. Favino, Executrix of the Estate of James F. Favino, Deceased, and C.S. Davidson, Inc. Appeal of COLUMBIA GAS OF PENNSYLVANIA, INC. (Two Cases). Brian E. SMITH and Tracy N. Smith v. COLUMBIA GAS OF PENNSYLVANIA, INC. v. CARL E. BAKER, INC., Elsie G. Favino, Executrix of the Estate of James F. Favino, Deceased, and C.S. Davidson, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1995.
    Filed Oct. 31, 1995.

      Robert J. Brown, York, for Columbia Gas of Pennsylvania, Inc.

      Michael B. Scheib, York, for Carl E. Baker, Inc.
    John B. Consevage, Harrisburg, for Elsie G. Favino.
    Leo E. Gribbin, Jr., York, for C.S. Davidson, Inc.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   SAYLOR, Judge.

Does the twelve-year statute of repose, 42 Pa.C.S. § 5536, protect parties involved in the design and installation of sewer lines from liability to a gas company that alleges that excavation equipment used in installing the sewer lines struck and damaged its gas mains, leading to an explosion more than eighteen years later?

Appellant Columbia Gas (“Columbia”) raises this issue in three consolidated appeals from the trial court’s order of November 21, 1994, granting judgment on the pleadings based on the statute of repose to Appellees C.S. Davidson, Inc. (“Davidson”), Carl E. Baker, Inc. (“Baker”), and Elsie G. Favino, executrix of the estate of James F. Favino (“Favino”). For the reasons set forth below, we agree with the trial court that Appellees are entitled to the protection of the statute of repose.

The events leading to these appeals began in 1971, when Spring Garden Township, York County, contracted with Favino for the installation of sanitary sewers in parts of the Township, including South Albemarle Street. Favino subcontracted the installation of the lateral sewer service to Baker. The Township retained Davidson to design, engineer, and, allegedly, supervise the installation of the sewers. According to Columbia, excavation equipment operated by a Baker employee struck and damaged gas mains owned and operated by Columbia. The construction of the sewer lines was completed later that year.

On January 11, 1990, a natural gas explosion occurred at 1115 South Albemarle Street. Three lawsuits resulted. In chronological order:

1) Verna Smith sued Columbia to recover for personal injuries and property damage sustained when her home at 1115 South Albemarle Street was destroyed by the explosion. Columbia then joined Appellees as additional defendants.

2) Columbia sued Appellees to recover for damage to its property as a result of the explosion.

3) Brian and Tracy Smith sued Columbia to recover for personal injuries and property damage sustained when their home at 1117 South Albemarle Street was destroyed by the explosion. As in the action brought by Verna Smith, Columbia joined Appellees as additional defendants.

On September 17, 1993, Davidson filed a consolidated motion for judgment on the pleadings in the three actions, arguing that the claims asserted against it in those actions had been extinguished by the statute of repose. Favino and Baker then filed motions for judgment on the pleadings on the same basis and also joined Davidson’s motion.

In an order entered November 21, 1994, the trial court granted the motion of Davidson, joined by Favino and Baker, and entered judgment on the pleadings in their favor in all three actions. On December 14,1994, Columbia filed separate appeals from the order in its action against Appellees (No. 875 Harrisburg 1994), in Verna Smith’s action against Columbia (No. 876 Harrisburg 1994), and in the action brought by Brian and Tracy Smith against Columbia (No. 877 Harrisburg 1994). These appeals have been consolidated for our review.

Before considering the issues raised by Columbia, we are required to determine whether the appeals are properly before us. Columbia suggests that under amended Pa.R.A.P. 341 the order of November 21, 1994 is interlocutory in the actions filed by Verna Smith and by Brian and Tracy Smith against Columbia because'the order does not dispose of all of the claims arising in those actions. We agree.

Amended Rule 341 states that, -with exceptions not applicable here, a final order is one that “disposes of all claims or of all parties.... ” By order of the Supreme Court dated January 10, 1994, effective March 1, 1994, amended Rule 341 is made applicable to all orders, such as the one from which these appeals are taken, entered on or after March 1, 1994. The effect of the order of November 21, 1994 in the Smith actions was to grant judgment on the pleadings in favor of Appellees, the additional defendants, but to leave pending the Smiths’ actions against Columbia, the original defendant. Accordingly, the order is not final and appealable in those actions, and the appeals arising from those actions, docketed at Nos. 876 and 877 Harrisburg 1994, must be quashed. Robert H. McKinney, Jr., Associates, Inc. v. Albright, 429 Pa.Super. 440, 632 A.2d 937 (1993).

The effect of the order in Columbia’s action against Appellees, in contrast, was to grant judgment on the pleadings in favor of all of the named defendants, thereby concluding the action. Accordingly, the order is final in that action, and Columbia’s appeal at No. 875 Harrisburg 1994 is properly before us.

In order to determine whether judgment on the pleadings was properly granted, we consider as true all of the well-pleaded statements of fact made by the party against whom the motion was granted. Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 514 A.2d 576 (1986). Only those facts which that party has specifically admitted may be considered against the party. Id. A party cannot be deemed to admit either conclusions of law or unjustified inferences. Id. We will affirm an order granting judgment on the pleadings only when the moving party’s right to succeed is certain and the case is so free from doubt that a trial would clearly be a fruitless exercise. Id.

In the case before us, Columbia’s challenge to the trial court’s decision to grant judgment on the pleadings is twofold. First, Columbia contends that “the Statute of Repose should apply only to the improvements to real property which the engineers, contractors or other parties had been engaged to perform.” Appellees were engaged to perform work on Spring Garden Township’s sewer lines. The natural gas explosion did not involve the sewer lines, however; it occurred as the result of a leak in Columbia’s gas mains. Therefore, Columbia argues, the statute of repose should not shield Appellees from liability for negligently damaging the gas mains. Second, Columbia asserts that the statute of repose is unconstitutional because it violates Article III, § 32 and Article I, § 11 of the Pennsylvania Constitution.

With regard to Columbia’s challenge to the applicability of the statute, we note that the terms of a statute are to be construed according to their common and approved usage. 1 Pa.C.S. § 1903(a). Thus viewed, the language of the statute of repose does not support Columbia’s claim. The statute reads in pertinent part as follows:

(a) General rule. — Except as provided in subsection (b) [not applicable here], a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).

42 Pa.C.S. § 5536(a) (emphasis added). By its terms, the statute bars any action to recover damages sustained as the result of any deficiency in the specified activities, conducted with respect to any improvement to real property, against any person engaged in the specified activities, if the action is not brought within 12 years after completion of the improvement. In McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989), the Supreme Court, interpreting the phrase “any person” as used in the statute, stated that “ ‘any’ is generally used in the sense of ‘all’ or ‘every’ and its meaning is most comprehensive.” Id., 522 Pa. at 525, 564 A.2d at 910, quoting Leach v. Philadelphia Savings Fund Society, 234 Pa.Super. 486, 491, 340 A.2d 491, 493 (1975) (interpreting virtually identical predecessor statute, 12 P.S. § 65.1 et seq.). The language of the statute, then, does not support the distinction in applicability proposed by Columbia.

In interpreting a statute, we are also required to ascertain and effectuate the intent of the legislature as expressed in the statute. Leach, 234 Pa.Super. at 490, 340 A.2d at 493. The expressed legislative intent of the drafters of the statute of repose was to limit actions against those covered by the statute. Noll v. Paddock Pool Builders, Inc., 416 Pa.Super. 284, 611 A.2d 219 (1992), rev’d on other grounds, Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994).

An additional consideration is the directive that a statute be liberally construed so as to effectuate its purpose. 1 Pa.C.S. § 1928(c). In Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985), the Superior Court, analyzing the term “improvement to real property” in the statute of repose, noted that the courts of the Commonwealth have construed the term broadly, thereby maximizing the coverage of the statute. Id., 339 Pa.Super. at 485, 489 A.2d at 264. In the present case, if we were to accept Columbia’s argument and exclude Appellees from coverage, we would contravene this principle of statutory construction.

In support of its interpretation, Columbia cites McConnaughey v. Building Components, Inc., 536 Pa. 95, 637 A.2d 1331 (1994), as evidence of the Supreme Court’s supposed intention to interpret the statute strictly. Columbia’s reliance on McConnaughey is misplaced. The issue in the case was whether the manufacturer of a product that was incorporated by others into an improvement to real property was entitled to the protection of the statute of repose. A plurality of the Supreme Court concluded that the manufacturer was not entitled to such protection. In Noll, supra, a majority of the Supreme Court adopted the holding of the plurality in McConnaughey, but also ruled, on the unique facts of the case before it, that where the manufacturer of a product supplied individual expertise to the design of an alleged improvement, the manufacturer was within the class protected by the statute. This result is, if anything, an expansion rather than a restriction of the statute’s coverage.

The Superior Court’s decision in Leach, supra, provides additional support for our decision not to interpret the statute of repose in the manner proposed by Columbia. The Superior Court considered whether 12 P.S. § 65.1 et seq., the predecessor statute of repose, protected the former owner of a building, who, during his period of ownership, had contracted for the installation of a ceiling, from an action brought by a person who was injured when the ceiling collapsed several decades later. The defendant had been granted summary judgment in the trial court on the basis of the statute of repose.

On appeal, the plaintiff argued that the defendant was a “mere landowner” and therefore not entitled to the protection of the statute. The Superior Court held that the relevant test was whether the defendant had performed any of the activities listed in the statute. The statute was not limited to persons performing professional or licensed services, the court observed, and “a court cannot supply such an omission to statutory language.” Id., 234 Pa.Super. at 490, 340 A.2d at 493. Finding the record devoid of any evidence on that point, the court concluded that there remained an issue of material fact that rendered summary judgment inappropriate.

Similarly, we decline to insert into the present statute the distinction proposed by Columbia. Columbia maintains that it would be unfair not to do so because Columbia “had no right to supervise or control” the manner in which the work on the sewer lines was conducted. It will often be the case, however, that a plaintiff will have had no involvement whatsoever with the improvement to real property, the alleged negligence in the design or installation of which has led to his or her injury. Nevertheless, if the plaintiffs action falls within the parameters of the statute of repose, the action will be barred. Columbia’s situation is no different in this regard.

Having carefully considered Columbia’s arguments concerning the application of the statute of repose, we conclude that they do not entitle Columbia to relief. The trial court properly granted judgment on the pleadings to Appellees on the basis of the statute.

Columbia also contends that the statute of repose violates Article III, § 32 and Article I, § 11 of the Pennsylvania Constitution. In considering this claim, we presume that the legislature did not intend to violate the Constitution when it enacted the statute. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). A statute enjoys a strong presumption in favor of constitutionality, and it will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978). We are required to resolve all doubts in favor of a finding of constitutionality. Id.

Columbia contends, first, that the statute of repose violates Article III, § 32 of the Pennsylvania Constitution, which prohibits the General Assembly from passing any “local or special law in any case which has been or can be provided for by general law....” In Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), the Supreme Court considered a claim that the predecessor statute of repose was an unconstitutional special law because it created an irrational distinction between engineers, architects, builders, and contractors, on whose behalf it imposed a limitation on liability, and others involved in the improvement of real estate, such as landowners, who were not entitled to the same limitation. The Supreme Court observed that it was “manifestly rational to adjust time periods for liability for acts performed according to the substantive scope of the liability involved.” Id., 476 Pa. at 276, 382 A.2d at 718. The court noted that the scope of liability of the protected class differed significantly from that of the class of landowners. For example, landowners can ordinarily avoid liability by taking care of the land and regulating entry thereon, whereas builders cannot. Because the classification inherent in the statute of repose was based on real distinctions between the subjects classified, the Supreme Court held, the statute did not violate section 32. Id., 476 Pa. at 278, 382 A.2d at 720.

Columbia acknowledges the Supreme Court’s decision in Freezer, but proposes an alternative basis for a finding of unconstitutionality: the statute of repose creates an artificial and irrelevant distinction between persons who file an action against parties covered by the statute within 12 years of the completion of improvements to realty and those who cannot or do not file such an action until more than 12 years have passed. In our view, this is but a variation on the issue decided in Freezer. If the liability of a certain class of defendants is extinguished after 12 years, there is necessarily created a corresponding class of plaintiffs who are unable to maintain an action against those defendants after 12 years. Columbia has changed the focus of the issue from defendants to plaintiffs, but the change does not warrant a different result.

Columbia also contends that the statute violates Article I, § 11, which provides that “[a]ll courts shall be open; and every man for an injury done him ... shall have remedy by due course of law....” In Freezer, supra, the Supreme Court considered this claim in relation to the statute of repose and rejected it, concluding that section 11 does not prohibit the legislature from abolishing a common law right of action without enacting a substitute means of redress. Id., 476 Pa. at 279, 382 A.2d at 720.

Columbia acknowledges the Supreme Court’s decision but urges us to interpret the statute of repose not as a statute that abolishes a right of action but as one that “merely allows [a right of] action for a certain period of time.” Why the latter interpretation would warrant a finding of unconstitutionality when the former interpretation did not, is not clear. More importantly, we are not at liberty to adopt an interpretation of the statute that is different from that of the Supreme Court. Nor are we permitted to adopt, as Columbia urges us to do, the reasoning of the Supreme Court of Ohio, which in Brennaman v. R.M.I. Company, 70 Ohio St.3d 460, 639 N.E.2d 425 (1994), held that the Ohio statute of repose violated the right to a remedy guaranteed by the state Constitution. Rather, we conclude that this claim of unconstitutionality, like the first, is without merit.

The appeals at Nos. 876 and 877 Harrisburg 1994 are quashed. In the appeal at No. 875 Harrisburg 1994, the order entering judgment on the pleadings is affirmed.

      . Appellees Favino, Baker, and Davidson have filed briefs in this appeal. Although designated as appellees, Brian Smith and Tracy Smith have filed a brief stating that they concur in and adopt the brief filed by Columbia. Verna Smith has not filed a brief. As used herein, the term "appellees” designates Favino, Baker, and Davidson.

      . Columbia did not request the (rial court to amend its order to include a determination of finality, which application, if granted, would have made the trial court's order final and thus appealable. Pa.R.A.P. 341(c).


author: BROSKY, Judge.

text:
    667 A.2d 410
    Domenick J. PURICELLI, Appellant, v. Saundra L. (Berkebile) PURICELLI.
    Superior Court of Pennsylvania.
    Submitted Aug. 21, 1995.
    Filed Nov. 16, 1995.

      Julianne M. Keri, Somerset, for appellant.
    Susan Mankamyer, Somerset, for appellee.
    Before McEWEN, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order of the trial court which granted appellee’s petition to vacate the divorce decree and denied appellant’s request for a stay of the proceeding.

Appellant presents the following questions for our review: (1) whether the trial court erred in concluding that the Pennsylvania Rules of Civil Procedure require a plaintiff to wait twenty (20) days after filing the divorce complaint before he or she may file a notice of intention to request entry of a divorce decree; (2) whether the trial court erred in concluding that appellee established grounds for vacating the divorce decree under section 3332 of the Divorce Code, 23 Pa.C.S.A.; and (3) whether the trial court erred in refusing to stay the hearing on appellee’s petition in violation of the Soldiers’ and Sailors’ Civil Relief Act Amendments of 1991 (SSCRA), 50 Appendix U.S.C.A. § 521(a). For the reasons set forth below, we quash the appeal.

Before addressing these issues, it is necessary to recount the relevant facts of this case. Appellant, Domenick Puricelli, and appellee, Saundra Berkebile Puricelli were married on May 31, 1986. One child, Joshua Puricelli, was born during the marriage. Due to appellant’s service in the armed forces, the Puricellis resided at various military bases both in the United States and abroad. In February of 1992, appellee left the marital domicile in North Carolina and returned to Pennsylvania with the parties’ child. The parties thereafter continuously lived separate and apart for more than two years.

On May 25, 1994, appellant filed a complaint in divorce, the affidavit required by the Divorce Code, 23 Pa.C.SA. § 3301(d), and notice of intention to request entry of a divorce decree. These materials, as well as the section 3301(d) counter-affidavit, were duly served on and received by appellee on May 31, 1994. Appellee was unable to discuss this matter with legal counsel and, as a result, did not take any action to protect her legal rights. Due to the lack of response from appellee, appellant filed a praecipe to transmit the record to the trial court for entry of a divorce decree on June 20, 1994. Upon receipt of the praecipe, the trial court entered the divorce decree.

Appellee discovered that the divorce had been granted and obtained legal counsel. On July 20, 1994, appellee filed a petition to vacate the divorce decree based on extrinsic fraud. A hearing on the petition was held on December 23, 1994, over the objection of appellant’s counsel. By order dated February 28,1995, the trial court granted appellee’s petition and vacated the divorce decree. Appellant has timely appealed therefrom.

It is a fundamental principle of law that an appeal will lie only from a final order unless otherwise permitted by rule or statute. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985). We must therefore first ascertain whether the trial court’s determination constitutes a final and appealable order because the question of appealability affects our jurisdiction to entertain this appeal. See Fried v. Fried, 509 Pa. at 91-92, 501 A.2d at 212; Flowers v. Flowers, 417 Pa.Super. 528, 530, 612 A.2d 1064, 1065 (1992) (question concerning the finality of an order is jurisdictional and may be raised sua sponte by the appellate courts). With regard to this issue,' we note that appellant refers to 42 Pa.C.S.A. § 742 and 42 Pa.C.S.A. § 5105(a) in his jurisdictional statement. Appellant’s Brief at 1. These provisions vest jurisdiction in this court over appeals from final orders. See 42 Pa.C.S.A. § 742 (the Superior Court shall have exclusive jurisdiction of all appeals from final orders) and 42 Pa.C.S.A. § 5105(a)(1) (there is a right of appeal under this subsection from the final order of every court of this Commonwealth to the court having jurisdiction of such appeals). A final order is defined as one which: (1) disposes of all claims or of all parties; or (2) any order that is expressly defined as a final order by statute; or (3) any order entered as a final order pursuant to Appellate Rule 341(c). Pa.R.A.P., Rule 341(b), 42 Pa.C.S.A. None of these requirements have been met.

The order in the instant case did not dispose of all claims or parties nor did it otherwise put the litigants out of court. Rather, the practical effect of the order was to put the parties into court with respect to their divorce and equitable distribution claims. Compare Flowers v. Flowers, 417 Pa.Super. at 531, 612 A.2d at 1065 (order denying a motion to vacate a divorce decree was final and appealable under Pa.R.A.P., Rule 341 because it effectively put the defendant out of court with regard to her marital status and the rights associated therewith). The order thus cannot be deemed final within the meaning of Rule 341(b)(1).

Appellant has not referred us to any rule or statute, nor are we aware of such, which expressly defines the type of order at issue here as a final order for purposes of appeal. The trial court also did not include in its order an express determination that an immediate appeal would facilitate resolution of the entire case in accordance with Rule 341(c). Consequently, the order does not fulfill the requirements of either Rule 341(b)(2) or (b)(3).

Because the trial court’s order does not satisfy any of the indicia of finality, it is not a final order as defined in Rule 341(b). The Judicial Code provisions upon which appellant relies therefore do not permit us to exercise jurisdiction in this case. However, our inquiry is not at an end because we must determine whether the order may be appealable as of right pursuant to another jurisdictional source.

The Judicial Code allows the appellate courts to hear appeals from those classes of interlocutory orders as may be specified by law. See 42 Pa.C.S.A. § 702(a) (an appeal authorized by law from an interlocutory order in a matter shall be taken to the appellate court having jurisdiction of final orders in such matter) and 42 Pa.C.S.A. § 5105(c) (there shall be a right of appeal from such interlocutory orders as may be specified by law; the governing authority shall establish by general rule rights to appeal from such classes of interlocutory orders from which appeals are regularly permitted pursuant to 42 Pa.C.S.A. § 702(b)). Under this authority, the Supreme Court has promulgated two rules which permit interlocutory appeals to be taken as of right. See Pa.R.A.P., Rules 311 and 313, 42 Pa.C.S.A. However, the order in this case does not fall within the classes of appeals governed by these rules.

Rule 311 permits an interlocutory appeal to be taken as of right from orders which: affect judgments, attachments and injunctions; change criminal venue or venire; award a new trial; direct partition; sustain venue or personal jurisdiction; change venue or transfer a case to a court of coordinate jurisdiction; substantially handicap the prosecution of a criminal case; overrule preliminary objections in an eminent domain case; or involve an administrative remand. Pa.R.A.P., Rule 311(a)-(f), 42 Pa.C.S.A. Examination of the order in this case reveals that it clearly does not fall within any of the above categories. Although Rule 311(a)(1) allows an appeal to be taken in matters affecting judgments, it only grants a right of appeal from an order “refusing to open, vacate or strike off a judgment.” Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A. Because the order sub judice vacated the divorce decree, it is not appealable under the narrow exception granted by Rule 311(a)(1). See, e.g., Hagel v. United Lawn Mower Sales & Service, Inc., 439 Pa.Super. 35, 41, 653 A.2d 17, 20 (1995) and Joseph Palermo Development Corp. v. Bowers, 388 Pa.Super. 49, 51-53, 564 A.2d 996, 997-998 (1989) (Rule 311(a)(1) does not authorize an appeal to be taken as of right from an interlocutory order opening a judgment). We must accordingly consider whether the order is appealable under Rule 313. Rule 313 permits an appeal to be taken as of right from a collateral order. Pa.R.A.P., Rule 313(a), 42 Pa.C.S.A. The rule defines a collateral order as one which is separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Id., Rule 313(b). These elements have not been met with respect to that part of the order vacating the divorce decree.

This case involves a divorce action, the primary purpose of which is to secure a divorce from the bonds of matrimony. The question of whether a divorce decree should be entered is therefore an essential rather than collateral part of the litigation. While appellant’s marital status is unquestionably important insofar as it affects his right to remarry, make a testamentary disposition of property and hold title to property, such rights are necessarily affected in all divorce proceedings. Consequently, we are not persuaded that the rights involved here are of such paramount importance as to require immediate appellate review. Finally, the questions raised by appellant concerning the vacation of the decree will not be irreparably lost if review is postponed until entry of the final divorce decree. The order vacating the divorce decree thus does not meet the definitional test of a collateral order.

However, appellant also challenges the trial court’s denial of his request for a stay of the hearing. This part of the trial court’s order involves an issue which is clearly separable from and collateral to the main cause of action. With regard to the second element, appellant’s claim implicates his due process right to be heard in opposition to the petition. The trial court’s denial of a fundamental right of this nature is a matter which is certainly too important to be denied review. The first and second prongs are thus arguably satisfied.

Nevertheless, all three factors must be met in order to qualify for the exception contained in Rule 313. See Fried v. Fried, 509 Pa. at 94-95, 501 A.2d at 214 (applying three part-test set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) to determine whether order is appealable under collateral order exception; further holding that all three factors must be met to qualify for the Cohen exception); Note to Rule 313 (providing that Rule 313 represents a codification of existing caselaw, i.e., Cohen and its Pennsylvania progeny). In this instance, appellant’s right to be heard will not be irreparably lost if review is delayed since he can challenge the trial court’s alleged abridgement of his rights and its effect on the proceedings in any subsequent appeal. Because the third requisite has not been established, that part of the order denying appellant’s request for a stay is not appealable under Rule 313.

Since the order in question is neither a final order nor an interlocutory order which is appealable as of right, and because appellant did not otherwise obtain permission to appeal in accordance with the procedures set forth in 42 Pa.C.S.A. § 702(b) and Pa.R.A.P., Rules 312 and 1301-1323, 42 Pa.C.S.A. (governing appeals from interlocutory orders by permission), there is no basis upon which this court may assert jurisdiction in this matter. Lacking jurisdiction, we are compelled to quash the appeal. See Fried v. Fried, 509 Pa. at 97, 501 A.2d at 216 (quashing an appeal from an interlocutory and unappealable order).

Appeal quashed.

      . Joshua was born on December 23, 1986 and is eight years old at the present time.

      . In view of our disposition, we express no opinion on the merits of appellant’s claims. However, we caution the trial court that pursuant to the 1991 amendments to the SSCRA, the decision to grant or deny a stay of proceedings is now mandatory rather than discretionary. See 105 Stat. 37, P.L. 101-12, § 6 (approved March 18, 1991), codified at 50 Appendix U.S.C.A. § 521(a) (in any judicial action or proceeding (other than a criminal proceeding) in which a member of the Armed Forces described in subsection (b) is involved (either as a plaintiff or defendant), the court shall, upon application by such member (or some other person on the member's behalf) at any stage before final judgment is entered, stay the action or proceeding until a date after June 30, 1991).


author: SAYLOR, Judge:

text:
    667 A.2d 719
    The BRYN MAWR TRUST COMPANY, Appellee, v. John J. HEALY, Sr., and John J. Healy, Jr., Appellants. BENEFICIAL SAVINGS BANK, Appellee, v. John J. HEALY, Sr., and John J. Healy, Jr., Appellants (two cases).
    Superior Court of Pennsylvania.
    Argued Aug. 2, 1995.
    Filed Oct. 17, 1995.
    Reargument Denied Dec. 22, 1995.

      Charles B. Dinsmore, New Jersey, for appellants.
    Lawrence Woehrle, Philadelphia, for appellees.
    Before BECK, SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

in these consolidated appeals, Appellants, John J. Healy, Sr. and John J. Healy, Jr., challenge certain orders of the Court of Common Pleas of Delaware County denying their petitions to mark judgments as satisfied and granting Appellees’ petitions to fix fair market value pursuant to the Deficiency Judgment Act. We affirm.

On July 18, 1991, Appellee, Beneficial Savings Bank (“Beneficial”), obtained a default judgment against Appellants in the amount of $215,198.09. This judgment created a lien on Appellants’ property located at 115 North Eagle Road, Havertown, Pennsylvania (the “Eagle Road property”). On October 8, 1991, Appellee, The Bryn Mawr Trust Company (“Bryn Mawr”), obtained a default judgment against Appellants in the amount of $98,676.85. This judgment created a lien on Appellants’ property located at 214 East Benedict Avenue, Havertown, Pennsylvania (the “Benedict Avenue property”). The Eagle Road and Benedict Avenue properties were sold to Beneficial and Bryn Mawr, respectively, at sheriffs sale on May 21,1993.

Sheriffs deeds to both properties were signed by the sheriff of Delaware County on August 17,1993, and were subsequently delivered by the sheriff to the Delaware County Office of the Recorder of Deeds for recording on August 25, 1993. On February 24, 1994, Beneficial and Bryn Mawr filed separate petitions to fix the fair market value of the respective properties and for the entry of deficiency judgments pursuant to the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103 (“the Act”). On March 25, 1994, Appellants filed petitions to mark the judgments against them as satisfied alleging that the banks, as judgment creditors, had failed to file their petitions to fix fair market value within the six month period allowed by the Act.

On June 13, 1994, a joint hearing was held on the four petitions. Thereafter, the trial court denied Appellants’ petitions to mark the judgments satisfied and subsequently determined that Appellants’ obligation to Beneficial totaled $268,-703.53, fixed the “as is” fair market value of the Eagle Road property at $168,000, and entered a deficiency judgment for Beneficial and against Appellants in the amount of $100,703.53. Also, the trial court determined that Appellants’ obligation to Bryn Mawr totaled $204,659.05, fixed the fair market value of the Benedict Avenue property at $106,500, and entered a deficiency judgment for Bryn Mawr and against Appellants in the amount of $98,159.05. Appellants filed appeals from these various orders which were consolidated by stipulation.

On appeal, Appellants contend that the trial court erred in: (1) finding that under the terms of the Deficiency Judgment Act, Appellants were not entitled to have the judgments marked satisfied since Beneficial and Bryn Mawr failed to file their petitions to fix the fair market value within six months of the date of sale; and (2) relying solely upon the sale price of the Eagle Road property to determine fair market value and failing to consider the testimony of Appellants’ expert appraiser.

When reviewing deficiency judgment proceedings, an appellate court is limited to determining whether “there is sufficient evidence to sustain the holding of the trial court, or whether the court committed reversible error of law.” Fidelity Bank, N.A. v. John T. Bourger, 444 Pa.Super. 52, 55, 663 A.2d 213, 214 (1995), quoting Commonwealth Bank & Trust Co. v. Hemsley, 395 Pa.Super. 447, 451, 577 A.2d 627, 629 (1990) (citations omitted).

Appellants first contend that the judgments should have been marked as satisfied by the trial court because Appellees did not file their petitions to fix the fair market value within six months of the date of sale. The Act provides, in pertinent part, as follows:

(a) General rule. — Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.
(d) Action in absence of petition. — If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within the time after the sale of such real property provided by section 5522 (relating to six months limitation), the debtor, obligor, guarantor or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, or any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment, may file a petition, as a supplementary proceeding in the matter in which the judgment was entered, in the court having jurisdiction, setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, after notice as prescribed by general rule, and being satisfied of such facts, shall direct the clerk to mark the judgment satisfied, released and discharged.

42 Pa.C.S.A. §§ 8103(a), (d). A petition for the establishment of a deficiency judgment following sale of the collateral of the debtor pursuant to the provisions of the Act must be filed within six months. 42 Pa.C.S.A. § 5522(b)(2). There is a conclusive presumption, as a matter of law, that a judgment is satisfied if a judgment creditor fails to proceed under the Act within the time mandated by statute. Fidelity Bank, N.A. v. John T. Bourger, supra, citing Reliable Savings & Loan Ass’n of Bridgeville v. Joyce, 385 Pa.Super. 536, 561 A.2d 804 (1989).

Appellants argue that the date of sale under the Act occurred when the deed was signed by the sheriff on August 17,1993, rather than the date on which the deed was recorded, August 25, 1993. The date of sale for purposes of the six-month statute of limitations is the date of delivery of the sheriffs deed, rather than the date of the execution sale. Fidelity Bank, N.A. v. John T. Bourger, supra, citing Marx Realty & Improvement Co. v. Boulevard Center, Inc., 398 Pa. 1, 156 A.2d 827, 830 (1959). Thus, “[t]he six month period begins from the date the sheriffs deed is executed and delivered to the successful bidder.” Valley Trust Co. of Palmyra v. Lapitsky, 339 Pa.Super. 177, 181, 488 A.2d 608, 611 (1985), quoting Shrawder v. Quiggle, 256 Pa.Super. 303, 308, 389 A.2d 1135, 1137 (1978), citing Marx, supra.

In Max, our Supreme Court explained the rationale for this rule:

Since the Act requires giving credit on the judgment to the extent of the fair value, no bidder has anything from which to give credit until he gets title, and hence no sale to him can be said to have taken place until a deed is delivered.

Id., 398 Pa. at 6, 156 A.2d at 830.

In Reliable Savings and Loan v. Joyce, 385 Pa.Super. 536, 561 A.2d 804 (1989), the Superior Court found that the time for filing the petition to establish the deficiency judgment began to run when the sheriffs deed was delivered to the judgment creditor’s assignee, which was the date on which the deed was recorded.

Here, the real estate administrator of the Delaware County Sheriffs Office testified regarding the customary procedure for “delivering” deeds in Delaware County. The administrator stated that once the deed is filled out and signed by the sheriff, the deed is taken to the county’s Office of Judicial Support for an additional signature. Subsequently, the fully executed deed is returned to the sheriffs office and delivered to the recorder of deeds for recording. The administrator further testified that the deeds in this case had been delivered to the recorder’s office on August 25, 1993, the date on which the deeds were recorded. There is no evidence that the judgment creditors had any control over this process or in any way delayed in obtaining delivery of the deeds. Under these facts, we agree with the trial court that delivery of the deeds for the purpose of commencing the applicable six month limitation period under the Act occurred when the deeds were recorded in the Delaware County Office of the Recorder of Deeds, namely, August 25, 1993. Since Beneficial and Bryn Mawr filed their petitions to fix the fair market value on February 24, 1994, within six months from the date of recording, Appellants’ petitions to mark the judgments satisfied were properly denied.

In their second issue, Appellants contend that the trial court erred in determining the fair market value of the Eagle Road property. If the value of realty purchased in execution proceedings is insufficient to satisfy the outstanding obligation of the debtor, the Act permits a judgment creditor to pursue any deficiency in order to satisfy the amount of the judgment, plus costs and interest. 42 Pa.C.S.A. § 8103. The fair market value of land refers to the price a purchaser, who is willing but not obligated to buy, would pay an owner, who is willing but not obligated to sell. First Pa. Bank, N.A. v. Peace Valley Lakeside, 329 Pa.Super. 218, 478 A.2d 42 (1984). A professional appraisal is not required in order to determine fair market value, and although evidence of fair market value may be obtained through expert testimony, such testimony is not the exclusive method of establishing value. National Council of Junior Order of United American Mechanics v. Zytnick, 221 Pa.Super. 391, 293 A.2d 112 (1972). The trier of fact weighs the credibility of an expert witness’ testimony regarding valuation. Mellon Bank v. Restaurant of A.B.E., 364 Pa.Super. 567, 528 A.2d 654 (1987). An appellate court must accept the credibility determinations of the trial court with respect to the credibility of witnesses. Id.

At the hearing on this matter, the parties stipulated that Beneficial’s vice president, who was not an expert appraiser, would testify that Beneficial received two offers of $175,000 for the Eagle Road property after the execution sale, that Beneficial entered into an agreement of sale for the property for $175,000, and that Beneficial' ultimately sold the subject property for $168,000. Appellants proffered expert testimony regarding fair market value from a professional appraiser. However, the trial court found, as was its prerogative, that the “comparable” properties used by Appellants’ expert appraiser were not, in fact, comparable to the Eagle Road property, and thus determined that the fair market value of the Eagle Road property was $168,000, the price at which the property was conveyed. Since the evidence was sufficient to support the trial court’s determination of fair market value, Appellants’ claim is without merit.

Orders affirmed.

      . This sum included the amount of the default judgment, interest, and costs.

      . This sum included the amount of the default judgment, interest, costs, and two prior mortgages.

      . Appellants do not challenge the trial court’s determination of the fair market value of the Benedict Avenue property.

      . The court in Marx concluded that the deed was delivered on January 13, 1956, the date that it was signed by the sheriff. However, the date on which the deed was signed and the date of recording (January 25, 1956) were both within the applicable six month period, and the Marx court did not hold that delivery under the Act in all cases occurs when a deed is signed by a sheriff.

      . At closing the purchase price was reduced by $7,000 because of the presence of urea formaldehyde insulation.

      . Appellants’ expert appraiser also testified that he was unaware of any facts indicating that the purchasers of the Eagle Road property were compelled to buy such property, or that Beneficial was obligated to sell the subject property.


author: HESTER, Judge:

text:
    667 A.2d 724
    Leslie MARCHETTI v. Kathryn KARPOWICH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 5, 1995.
    Filed Oct. 31, 1995.

      Anthony J. Lucadamo, Hazleton, for appellant.
    Charles R. Pedri, Hazleton, for appellee.
    Before TAMILIA, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

Kathryn Karpowich appeals the May 4,1994 order awarding partition to appellee, Leslie Marchetti, of a parcel of real estate owned by the parties as joint tenants with right of survivorship. We affirm.

Appellee instituted this action in partition on January 26, 1995, and alleged the following. On October 1, 1993, the parties acquired title to real estate located at 608 South Street, Freeland, Pennsylvania, as joint tenants with right of survivorship. Appellee wanted to dispose of the property, but the parties were unable to come to an agreement regarding its disposition. Appellee requested that the court direct partition, set forth the respective shares of the parties, appoint a trustee for the sale of the real estate, and order the real estate sold and the proceeds divided between the parties in accordance with their respective shares.

In her answer to the complaint, appellant admitted the facts regarding ownership but averred that appellee did not have the right to partition the property due to the existence of a personal agreement, a copy of which was attached to the answer.

The agreement, a one-page document executed on February 6, 1994, was drafted by appellant to protect the parties with respect to a mortgage taken out for the real estate. It provides, “In the event that either Leslie A. Marchetti or Kathryn Karpowich decides to permanently vacate the above mentioned property they must first give a full one year notice____” Agreement, 2/6/94, at 1. In addition, both parties signed a personal guarantee to give a full year’s notice to the other party in the event either decided to leave the property. The personal guarantee provides that in the event one party vacates the premises, the other party has the right to buy out her interest in the property. During the one-year period, the vacating party contracted to continue to pay rent to the party in possession. The agreement also provides that if the party who has not vacated the house wants to keep it, the party who has vacated “cannot force [the non-vacating party] to sell [the house] just to get [her] share.” Id. Appellant suggests this language prohibits partition.

A hearing was held on March 27, 1995. Testimony from both parties establishes that they no longer wish to live together and that they both continue to reside at the residence. Conflicting testimony, however, was offered regarding events occurring in December, 1994. Appellant presented the testimony of a mutual friend of the parties, Joanne M. DeGregorio, that appellee had told Ms. DeGregorio that appellee found the living arrangements intolerable and that appellee was staying at her grandmother’s house. However, Ms. DeGregorio admitted that appellee never moved any of her furniture or personal belongings from the home.

Appellant admitted to drafting the agreement in question and indicated that she did so due to problems over the allocation of household chores. In October, 1994, appellee asked appellant if she would get another roommate and told appellant that she wanted to move. In return, appellant admitted that she told appellee that appellee could not leave without satisfying the terms of the agreement by continuing to pay rent to her for one year after appellee left the home. Appellee then told appellant that she did not want to pay rent at two residences for one year.

Appellant then testified that on Christmas, 1994, appellee left the house and did not sleep there again until February 22, 1995. Appellant stated that appellee took clothing, her exercise bicycle, some personal items, and a bathroom scale. Appellant admitted that during that period, mail continued to arrive at the residence for appellee daily, that appellee came regularly to the house to pick up the mail, that appellee never moved her furniture from the home, and that appellee was living at the home at the time of the hearing.

Appellee’s testimony differed significantly regarding the events of December, 1994. She stated that she never intended to vacate the house permanently as she was aware that if she did, she would trigger the clause regarding rent for the property for one year. She testified that she left the house in December, 1994, only for the holidays in order to care for her grandmother, who was sick.

Appellee confirmed that she never moved her furniture from the house and took only some clothing and personal items. She sold the exercise bike and did not take it to her grandmother’s house. In addition, appellee stated that she works seven days a week and went to the home as often as she could to retrieve her mail. She never told anyone that she intended to vacate the property indefinitely. Her understanding of the clause prohibiting one party from forcing the other to sell the property was that it applied only if one party had vacated the home.

Based on this evidence, the trial court concluded that 1) the agreement prohibiting one party from forcing the other to sell the property applied only if a party had vacated the house; 2) appellee never vacated the house; 3) the condition precedent to operation of that clause was not satisfied; and 4) partition was allowed. The trial court granted appellee her requested relief. This appeal followed.

Initially, we note that

the scope of appellate review of a decree in equity is particularly limited, and that the findings of the Chancellor will not be reversed unless it appears that the Chancellor clearly committed an abuse of discretion or an error of law. Where credibility of witnesses is important to a determination, the findings of the Chancellor are entitled to particular weight because the Chancellor has the opportunity to observe their demeanor.

DeMarchis v. D’Amico, 432 Pa.Super. 152, 637 A.2d 1029, 1032 (1994); accord Weir v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989) (it is trial court’s function to judge credibility, and its findings will not be disturbed); Fuisz v. Fuisz, 386 Pa.Super. 591, 563 A.2d 540 (1989) (appellate courts are bound by the trial court’s determination concerning the credibility of witnesses and weight to be accorded the evidence). We can review freely conclusions of law or factual determinations that merely are derived from facts supported by the evidence. DeMarchis v. D’Amico, supra. Thus, we are limited to a determination of whether there was an error of law, and the trial court’s conclusions will not be disturbed unless they are not supported by the evidence or unless the court clearly abused its discretion. Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247 (1988).

The purpose of a partition action is to allow joint owners of property, who no longer desire to own that particular property, to divest themselves of ownership. In re Kasych, 418 Pa.Super. 383, 614 A.2d 324 (1992); Lombardo v. DeMarco, 350 Pa.Super. 490, 504 A.2d 1256 (1985). The general rule is that each joint owner of real estate has an absolute right to partition the property. In re Kasych, supra; Lombardo v. DeMarco, supra. However, joint owners are free to enter agreements restricting the right of partition. In re Kasych, supra.

Appellant argues that under the agreement, partition is not permitted. We disagree based upon the clear language of the agreement that prohibits forced sale only when one of the parties has vacated the property. The touchstone of contract interpretation is as follows:

When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties’ understanding. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992) (en banc). The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). When the terms of a written contract are clear, this Court will not re-write it to give it a construction in conflict with the accepted and plain meaning of the language used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981)....

Acme Markets, Inc. v. Federal Armored Express, Inc., 437 Pa.Super. 41, 46-47, 648 A.2d 1218, 1221 (1994), quoting Creeks v. Creeks, 422 Pa.Super. 432, 435, 619 A.2d 754, 756 (1993).

In the present case, the contract clearly provides that forced sale is only prohibited after the premises have been vacated by one party and the vacating party has asked the other party to purchase her interest. Thus, the language provides that the vacating party “cannot force [the non-vacating party] to sell [the house] just to get [her] share.” It does not apply herein since appellee did not vacate the property, did not ask appellant to purchase her interest, and is not requesting partition “just to get her share.” She is requesting partition since, as appellant testified, neither party wishes to live at the home with the other, neither party will vacate the premises, and neither party can agree on a buy-out regarding the other. The prohibition against forced sale was not triggered because appellee never vacated. In fact, appellant admitted that appellee still resides at the home.

Appellant next argues that the trial court’s finding that appellee had not vacated the home is not supported by the evidence. She bases her argument almost exclusively on the fact that appellee allegedly repeatedly stated that she wanted to vacate the home since the two women no longer are compatible. Statements of future intent do not render the deed performed. In fact, the evidence establishes conclusively that appellee never carried out her stated intent.

Appellant herself admitted that appellee never moved her furniture from the house, never changed her mailing address, and continued to visit the home regularly even during the period that she did not sleep there overnight. The evidence on this issue varies only with respect to the period during which appellee no longer stayed overnight. Appellant testified that it was approximately two months. However, appellee’s testimony, which the trial court credited, was that she has stayed overnight continually at the home except for a brief period over the December holidays when she left to care for her grandmother. The only article of furniture taken from the home, an exercise bike, was sold and not moved into a different residence. Since the trial court’s factual conclusion that appellee never vacated the premises is supported by the evidence, it is not subject to reversal.

Appellant suggests that appellee cannot seek partition, an equitable remedy, due to the doctrine of unclean hands. Specifically, she contends that since appellee admittedly would not vacate the premises so that she would not have to pay rent for one year without living there, her actions show that she was deliberately attempting to avoid the agreement and thus is guilty of unclean hands.

We know of no case, nor does appellant refer us to one, which provides that a party is guilty of unclean hands by refusing to perform the condition precedent to operation of a contractual obligation if the party is not under a legal obligation to perform the condition precedent. Nothing in the contract at issue provides that appellee had to vacate the residence if the parties fought. Appellant drafted this contract, and it makes no provision for the circumstances presented herein.

This is case where joint owners no longer want to live together but have not been able to agree to an amicable resolution to the problem. This is the precise situation partition is designed to address. We cannot agree that appellee should be forced to leave and continue to pay rent at a residence where she does not reside for one year. Nothing in the agreement requires this result.

Partition not only is the only equitable remedy to the situation, it is appellant who has acted unfairly. There was no reason for appellant not to agree at the onset to mitigate her damages by finding a roommate to assume appellee’s obligations. Appellee was willing to move and allow appellant to keep the home if appellant agreed to find a roommate and not enforce the agreement regarding double rent. Appellee offered to help find someone.

We find the case relied upon by appellant, McKnight v. McKnight, 345 Pa.Super. 550, 498 A.2d 961 (1985), where we remanded for consideration of the defense of unclean hands, distinguishable. There, the defendant in the partition action alleged that during the parties’ divorce proceeding, they had entered an agreement whereby he was to keep the property which the plaintiff sought to have partitioned and that in exchange, the plaintiff was allowed to keep other property. Thus, there clearly would have been an unfair, unjust enrichment to the plaintiff if the defense of unclean hands had not been allowed.

Appellant also alleges that the trial court erred in concluding that the parties are unable to agree regarding the disposition of the property. Appellant argues that the agreement applies, appellee was the party who expressed a desire to leave, appellee contacted a lawyer for advice as to how to avoid the agreement, and appellee should be forced to abide by its terms. Thus, she is asking that we force appellee to vacate the home, continue to pay rent there for one year, and abide by whatever financial arrangements appellant demands regarding payment for appellee’s interest in the property.

Again, appellant ignores the language of the contract which she drafted. Nothing in the contract requires either party to vacate. All obligations are triggered after one party vacates. This has not occurred. People are entitled to seek legal advice regarding the meaning of a contract and to tailor their actions to avoid triggering a financial obligation.

There is no reason to force either party to continue to live with the other indefinitely. Similarly, there is no reason to force one party as opposed to the other to vacate. In fact, since appellant refused to mitigate her damages, we would be more inclined to order her to vacate and continue to pay rent at the home.

Appellant’s final claim is that the trial court erred in appointing a master without following the requirements of Pa.R.C.P. 1558, which provides:

RULE 1558. PRELIMINARY CONFERENCE. APPOINTMENT OF MASTER
(a) The court, after the entry of the order directing partition, shall direct the parties or their attorneys to appear for a preliminary conference to consider
(1) whether the parties can agree upon a plan of partition or sale;
(2) the simplification of the issues;
(3) whether any issues or matters relating to the carrying out of the order of partition shall be referred to a master; and
(4) such other matters as may aid in the disposition of the action.
(b) The court, at any time after the preliminary conference, may appoint a master to hear the entire matter or to conduct any sale, or to act upon only specified issues or matters relating to the carrying out of the order of partition.

We agree with the trial court’s conclusion that it satisfied these requirements at the trial itself. Prior to taking testimony, the trial court asked if the matter could be “settled or resolved.” Reproduced record at 22a. The parties indicated that it could not. Id. Furthermore, both parties stated that they cannot agree upon a buy-out arrangement. Thus, the appointment of a master to conduct the sale and split the proceeds was inevitable. We do not intend to remand and require the trial court to engage its limited resources in a wasteful proceeding where the evidence on the issue previously was presented.

Order of partition affirmed.

      . Appellant also repeatedly refers to the fact that appellee has more financial resources than she does. We do not understand how this fact is relevant to any of the issues presented herein.