text:
    592 A.2d 104
    George DOMAN and Donna Doman, his Wife, Appellees, v. Bertha BROGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 17, 1990.
    Filed April 16, 1991.

      Larry A. Brand, Wilkes-Barre, for appellant.
    Charles Shaffer, Kingston, for appellees.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

Appeal is taken from judgment entered June 20, 1990, in the Luzerne County Court of Common Pleas establishing appellant’s and appellees’ respective property rights in a double-block dwelling. The action was one in ejectment at law to resolve a boundary dispute. We affirm.

George and Donna Doman (appellees), and Bertha Brogan (appellant), are owners of adjacent lots in a double-block dwelling—lots 34 and 36 Old Boston Road, respectively. Both parties claim title under Ada Doman, a/k/a Ada Maxwell, (appellant’s mother, appellee George’s grandmother) as common grantor, said grantor having first acquired title to the full residence (lots 34 & 36) in 1955. Appellant, in 1968, began renting from Ada Doman that portion of the dwelling known as 36 Old Boston Road. In 1972 she purchased lot 36 and has since resided there. Her deed recites:

THE SAID PREMISES ARE SITUATE, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING at a nail in pave corner, being of the intersection of what was formally an approximate right angle turn on the Old Boston Road leading from Plymouth to Kingston, said corner being located ... (N. 62° 34' E.) ... (242.82) feet from the intersection of the Southerly line of Old Boston Road and the Northerly line of State Highway Route 11, No. 4 Spur;
THENCE along the Westerly line of Old Boston Road, ... (S. 29° 45' E.) ... (60.13) feet to a corner;
THENCE along land of Robert E. Doman, et ux., ... (S. 21° 30' W.) ... (86.81) feet to the corner on the Northerly right-of-way line of State Highway Route 11;
THENCE along said right-of-way by a curve to the left by a chord having a course of ... (N. 76° 18' W.) for a distance of (40.32) feet to a corner;
BEING also the point of intersection of a line running through the center wall of a double dwelling;
THENCE along the line running through the center wall of the double dwelling ... (N. 18° 24' E.) ... (130) feet to a nail corner, the place of beginning.
This conveyance is made in accordance with a contract of sale recorded in Deed Book 1648 at page 549.

Deed Book 1745 at 819-20 (exhibit “B” plaintiffs’ complaint) (emphasis added).

Title to 34 Old Boston Road passed first from Ada Doman to her son and daughter-in-law, Robert and Victoria Doman. Robert and Victoria, George Doman’s parents, thereafter conveyed their interest in lot 34 to George and Donna Doman by deed dated March 18, 1986. The deed draws upon language found in Mrs. Brogan’s deed insofar as defining the common boundary separating the adjacent lots:

THENCE along the line running through the center wall of a double dwelling, being also along line of land now or late of Bertha Brogan, South 18 degrees 24 minutes West/S'. 18° 24' W.J ... (130) feet to the northerly right-of-way line of State Highway Route No. 4 Spur, also known as Route No. 11____

Deed Book 2187 at 383 (exhibit “A” plaintiffs’ complaint) (emphasis added).

Apparent from a literal interpretation of the parties’ respective deeds is that the lots were to be divided according to “the center wall” as further described by metes and bounds (“M & B”) figures. At trial, plaintiffs offered into evidence a series of schematic diagrams. See Plaintiffs’ exhibits 5-7 (exhibits 1-3 appended to this decision). It is uncontroverted that these diagrams accurately reflect the structural features of the double-residence, both presently and as of the dates Mrs. Brogan and George and Donna Doman purchased their lots, i.e., the structural features have not changed. See N.T. March 27, 1989, at 43, 53. The diagrams confirm, however, that there exists no one “center” wall forming an unbroken vertical plane from the basement to the second floor. N.T. at 16 (testimony of Gerald Fisher, registered land surveyor). Moreover, the projected M & B property line used to demarcate the mutual boundary between the lots forms one vertical plane not consistent with any wall located in the basement, first or second floor of the dwelling.

According to plaintiffs’ schematic diagrams, lot 34 comprises, roughly, the westerly portion of the double dwelling. Lot 36 occupies, roughly, the easterly portion. Moving from the basement upward, the full basement (lots 34 and 36) has what can be considered front (northerly) and rear (southerly) portions. The front portion is separated laterally by a wall located approximately 2.5 feet west of the projected M & B line. The rear portion is also separated by a wall (described as a “plank” wall) located approximately 2.5-3.0 feet west of the M & B line. On the first floor, the front portion is divided by a wall coextensive with the wall dividing the front portion of the basement. The rear, however, is divided by a wall located roughly one foot east of the M & B line. The second floor has only a rear portion, such portion including a wall coextensive with the wall dividing the rear portion of the first floor. However, unlike each of the other walls mentioned, the second floor wall does not presently separate the lots. In fact, there is a doorway permitting lot 36 access to a bedroom physically located west of both the wall and the M & B line (except for, roughly, a one foot portion which lies east of the M & B line). A second door permitting lot 34 access to this bedroom from the west was panelled over sometime before 1956. N.T. at 41-42.

The parties’ respective positions below can be summarized as follows: Appellees assert title to, and the right to immediate possession of, a second floor bedroom, basement steps and landing occupied by appellant. See Plaintiffs’ Complaint ¶ 5. More generally, and at variance with their specific claim for the bedroom, etc., appellees contend that their title extends laterally (on all floors) up to the M & B division line as heretofore described. See Appellees’ Brief at 7-10. In defense, appellant offers the August, 1968, contract of sale referred to in appellees’ deed as recorded at Deed Book 1648 at page 549. Although we are reluctant to consider the prior agreement of sale on grounds of merger, nonetheless we shall consider appellant’s argument absent the prior agreement, to-wit: she has possessed the same portion of what she believes to comprise lot 36, including the second floor bedroom, basement steps and landing, since she began renting in 1968. N.T. at 53. Accordingly, concludes appellant, her deed must be construed according to her’s and Ada Doman’s intentions as manifested by her continued possession of what was allegedly conveyed.

I

The Honorable Donald O’Malley, S.J., specially presiding without a jury, found in favor of plaintiff-appellees George and Donna Doman and awarded them possession of the second floor bedroom, basement stairs and landing. See Opinion and Verdict, filed March 28, 1989. Judge O’Malley thereafter, and pursuant to appellant’s post-trial motions for judgment n.o.v. and, in the alternative, a new trial, entered an amended verdict accompanied by findings of fact and conclusions of law. See Pa.R.C.P. 1038(b).

FINDINGS OF FACT

1. Plaintiffs and Defendant occupy two sides of a double dwelling. Plaintiffs, Lot No. 34 and Defendant, Lot No. 36 of Old Boston Road, Larksville Borough, Luzerne County.
2. The property is divided by a center wall.
3. The Defendant occupies a bedroom on the Plaintiffs’ side (Lot No. 34).
4. The Defendant has used the hall and steps to the cellar for 30 years as her only access to the cellar.

CONCLUSIONS OF LAW

1. The Plaintiffs are entitled to possession of the second floor bedroom now occupied by the Defendant on their side of the double dwelling.
2. The Defendant is entitled to use an easement of necessity to and from the front door to the steps from the first floor to the cellar.
Trial Court Opinion, January 26, 1990, at 6.

The verdict remained in favor of plaintiff-appellees; appellant’s motions were denied. Noteworthy is the second conclusion of law wherein Judge O’Malley, sua sponte, “in order to save further litigation between the parties, and realizing the complexity of this matter,” granted appellant an easement by necessity to access her portion of the basement using “the first floor and steps to the cellar over the Plaintiffs’ half of the double dwelling known as Lot 34____” Amended Verdict, filed with Opinion of January 26, 1990, at 4, 7.

Plainly, the trial court adopted neither plaintiffs’ nor defendant’s position defining the boundary line separating their adjoining lots. The court “abandoned the [M & B] division line” because it found that the deeds supported an “intention [ ] to divide the double dwelling along the centra/ [not center] walls.” Trial Court Opinion, January 26, 1990, at 3 (emphasis added). Indeed, Judge O’Malley observed that to divide the dwelling pursuant to the M & B line would create the absurd result of “divid[ing] rooms on [a] particular side of the center wall.” Id. at 5. Hence, in locating the disputed boundary line the court opted against strict reliance on the M & B figures chosing, rather, to divide the dwelling by “extending] the vertical plane established by the centra/ walls on the first and second floors from the center of the earth to the heavens ...” Id. at 4-5 (emphasis added).

II

The plaintiffs’ burden in an action in ejectment at law is clear: they must establish the right to immediate exclusive possession. See, e.g., Hallman v. Turns, 334 Pa.Super. 184, 482 A.2d 1284, 1287 (1984); Harbor Marine Co. v. Nolan, 244 Pa.Super. 102, 366 A.2d 936 (1976). Recovery can be had only on the strength of their own title, not the weakness of defendant’s title. See Artz v. Meister, 278 Pa. 583, 123 A. 501 (1924); Ratajski v. West Penn Manufacturing & Supply Corp., 198 Pa.Super. 588, 182 A.2d 243 (1962). The crux of an ejectment action, therefore, rests with the plaintiffs’ ability to identify, by a preponderance of the evidence, see Hallman, 334 Pa.Super. at 190, 482 A.2d at 1288 (citing Rook v. Greenewald, 22 Pa.Super. 641, 643 (1903)), the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title.

The law recognizes, however, that legal title to real property, and the precise location of boundaries thereon, is not always clear from a plain reading of a written deed. See Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); cf. In re Conveyance of Land Belonging to the City of DuBois, 461 Pa. 161, 335 A.2d 352 (1975) (where language is unambiguous, parties’ intentions must be derived solely from written document). Consequently, within an action in ejectment a court of law often must employ established principles of deed “construction” to assist in arriving at the parties’ intentions by artificial means. Where there exists an uncertainty due to the use of vague or ambiguous language, resort may be had to extrinsic or parol evidence to explain—but not vary—the written word. See Flaherty v. DeHaven, 302 Pa.Super. 412, 448 A.2d 1108, 1111 (1982) (“where the deed is not clear and the intentions of the parties cannot be construed from the instrument itself, the parties’ intentions are to be ascertained from the language of the entire instrument, from a consideration of the subject matter and from conditions existing when it was executed”) see also Stewart v. Cher nicky, 439 Pa. 43, 266 A.2d 259, 263 (1970). Resort might also be had to the subsequent acts of the parties as bearing on the interpretation they placed on the instrument. See Ryan v. Hudak, 409 Pa. 211, 185 A.2d 570 (1962); see also Lupyan v. Lupyan, 263 Pa.Super. 303, 397 A.2d 1220 (1979).

We have often repeated that the primary function of a court faced with a boundary dispute is to ascertain and effectuate the intentions of the parties’ at the time of the original subdivision. See, e.g., Plott v. Cole, 377 Pa.Super. 585, 547 A.2d 1216 (1988); Roth v. Halberstadt, 258 Pa.Super. 401, 392 A.2d 855 (1978). To achieve this result, our courts have employed certain rules of construction that are commonly thought to provide the best indication of that intent. See Pencil v. Buchart, 380 Pa.Super. 205, 551 A.2d 302, 306 (1988); see also Appeals of Borough of Dallas, 169 Pa.Super. 129, 82 A.2d 676 (1951) (rules of construction applicable to deeds apply where a boundary line is disputed). Among such rules are the following:

(1) the nature and quantity of the interest conveyed must be ascertained from the instrument itself and cannot be orally shown in the absence of fraud, accident or mistake and we seek to ascertain not what the parties may have intended by the language but what is the meaning of the words; (2) effect must be given to all the language of the instrument and-no part shall be rejected if it can be given a meaning; (3) [to ascertain the intention of the parties,] the language of a deed shall be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.

Yuscavage v. Hamlin, 391 Pa. 13, 137 A.2d 242, 244 (1958).

More particularly, certain general principles of preference are followed when the calls of a deed are found to be inconsistent:

Where the calls for the location of the boundaries to land are inconsistent, other things being equal, resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument), and thereafter to courses and distances.

Baker v. Roslyn Swim Club, 206 Pa.Super. 192, 213 A.2d 145, 148 (1965) (citing 12 Am.Jur.2d, Boundaries, § 65 at 603 (1964)). Hence, “[a]s a general rule, where there is a conflict between courses and distances or quantity of land and natural or artificial monuments, the monuments prevail.” Roth v. Halberstadt, 258 Pa.Super. at 405, 392 A.2d at 857 (citing Appeals of Borough of Dallas, 169 Pa.Super. 129, 82 A.2d 676 (1951)); see also United States v. State Inv. Co., 264 U.S. 206, 211, 44 S.Ct. 289, 290, 68 L.Ed. 639 (1924). The rationale for this rule has been explained thusly:

If titles were to depend upon the fluctuations of the compass, or errors of the chain or rod-pole, upon the measurement or angles or of distances, instead of the lines monuments, or marks upon the ground, it would open a door to a flood of litigation, every new artist furnishing fresh cause of a new suit.

Lodge v. Barnett, 46 Pa. 477, 485 (1864).

Thus, it is generally believed that erroneous descriptions are more probably found in calls for measurements and distances than in calls for fixed landmarks either natural or artificial. See Pittsburgh Outdoor Advertising Co. v. Surowski, 164 Pa.Super. 383, 64 A.2d 854, 856 (1949). The preference for monuments is not, however, imperative nor mutually exclusive in the sense that to rely on a monument prevents any reference to other measurements, distances, etc., that are proximate, and thus supportive, but not coexistent with the monument. The parties’ intentions are not so narrowly confined. See Appeals of Borough of Dallas, 169 Pa.Super. at 137, 82 A.2d at 680 (citing Fisher v. Pittsburgh Coal Co., 29 Pa.Dist. 885 at 891) (observing that while some descriptions are of more probative value than others, “in the end, the true construction is ascertainable by the totality of their combined effect.”).

Lastly, where the terms of a deed will admit of two reasonable interpretations (patent ambiguity), or where the calls conflict when applied to the ground whereby admitting of different reasonable bases for division (latent ambiguity), their construction, as a rule, should be submitted to the jury as a question of fact. See Deposit & Trust Co. v. MFG. Co., 229 Pa. 295, 302, 78 A. 268 (1910) (resolution of a latent ambiguity presents jury question); see also Flynn v. Rodkey, 192 Pa.Super. 56, 159 A.2d 265, 268 (1960) (“If the evidence is conflicting, or will admit of different reasonable inferences ... it should be submitted to the jury as a question of fact ...”); Baker v. Roslyn Swim Club, 206 Pa.Super. 192, 213 A.2d 145, 148 (1965) (“The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.”). See generally 12 Am.Jur.2d, Boundaries, § 104 (1964) (defining latent ambiguity), § 116 (defining province of judge and jury). Where the trial court sits as trier of fact, an appellate court will not reverse on appeal unless the judge’s findings are not supported by competent evidence. See Plott v. Cole, 377 Pa.Super. 585, 547 A.2d 1216, 1219 (1988); see also Norwich v. Beaver, 326 Pa.Super. 456, 474 A.2d 329 (1984).

Ill

Initially, a thorough review of the parties’ respective deeds reveals an intent to divide the dwelling into easterly and westerly portions according to “the center wall” as further described by M & B figures. This call for an artificial monument, however, apparently conflicts with the call described by M & B figures which, as projected by plaintiffs’ surveyor, form a single vertical plane consistent with no wall in the dwelling. Obviously, more than one M & B line would have been necessary to describe accurately the various central walls as depicted in plaintiffs’ trial exhibits 5-7. Hence, as applied to the ground, the calls in appellant’s and appellees’ deeds conflict and presented Judge O’Malley with a latent ambiguity. Furthermore, a second issue surrounded appellant’s claim that Ada Doman intended to convey the full extent of that portion of the residence then-possessed by appellant. We will discuss each issue seriatim.

Where the calls in a deed conflict to present a latent ambiguity, before the issue of the true location of the boundary line is submitted to the jury, the court first must ask whether the conflicting boundary descriptions admit of more than one reasonable division. In making this determination the court should consider all evidence of the parties’ intentions, extrinsic or otherwise, offered in support of the conflicting boundary descriptions, including a consideration of the instrument as a whole, its subject matter and the circumstances attending its execution. Instantly, neither party has offered any evidence—apart from the projected M & B figures—to suggest that the original grantor intended to divide the dwelling according to a nonexistent “center wall” and, thereby, intended to convey property extending both beyond, and short of, the existing dividing walls. No evidence, extrinsic or otherwise, was offered to explain the ambiguity or to suggest that the conflicting boundary descriptions would admit of more than one reasonable division. As such, we feel that the question of conflicting calls should be resolved by the court as a matter of law through application of established rules of construction.

Instantly, as between the choice of dividing the dwelling according to a nonexistent “center ” wall coextensive with the projected M & B figures, versus dividing the dwelling according to the then-existing “centra/” walls, with no evidence to support the former, the only proper inference is that the call for latter was the intended result and that the call for the former was a mistake. Accordingly, we defer to the well-established rule that monuments on the ground, if referred to in the deed, must prevail over measurements, see Medara v. DuBois, 187 Pa. 431, 41 A. 322 (1898), as well as to the “general principle that ordinarily the center of a party wall, extended the entire length of the lots between which it has been erected, is the true dividing line between those lots, though it varies from the line indicated in the description in the deed.” Ross v. Golden, 146 Pa.Super. 417, 22 A.2d 310, 312 (1941), aff'd, 344 Pa. 487, 25 A.2d 700 (1942); see also Walleigh v. Emery, 193 Pa.Super. 53, 163 A.2d 665, 668 (1960). Furthermore, the M & B line supports this interpretation. While it is coexistent with neither wall, nonetheless, it is proximate with both and roughly forms an east-west median between the central walls.

Regarding appellant’s claimed right to the full extent of that portion for which she is in possession, we find no room in the deed as written for this construction. If appellant is making the claim that her deed does not represent the “true” agreement reach by her and Ada Doman, then her claim is one of mutual mistake and her remedy is the reformation of her deed as against appellees. Instantly, privity exists as between appellant and appellees under the general rule that reformation may be had against not only the original grantor, but also against those successors in interest claiming under them with notice. Cf. Navarro v. Ohio Cas. Ins. Co., 325 Pa.Super. 167, 472 A.2d 701 (1984) (discussing who may seek reformation); Lachner v. Swanson, 251 Pa.Super. 561, 380 A.2d 922 (1977) (same); see generally 66 Am.Jur.2d, Reformation of Instruments, § 63 (1973); 31 P.L.E., Reformation of Instruments, § 13 (1960). Moreover, as stated previously, the courts of this jurisdiction have recognized the equitable defense of mutual mistake in actions in ejectment at law. We are reluctant, however, to interpret the disposition below as passing on this issue for two reasons: (1) it is questionable whether appellant intended to raise the issue of mutual mistake in her Answer; and (2) there is no evidence in the record suggesting that the judge demonstrably considered the issue of mutual mistake. Thus, our construction necessarily derives the parties’ intentions from the written word as found in an unreformed state without prejudice to appellant to seek reformation at a later date.

Accordingly, Judge O’Malley’s construction of the parties’ respective deeds does not divide the dwelling in accordance with a nonexistent “center” wall nor rely exclusively on the M & B figures, as alleged by appellant. Appellant’s Brief at 2-5. We affirm the judgment below which locates the boundary line by “extend[ing] the vertical plane established by the central walls on the first and second floors from the center of the earth to the heavens____” Trial Court Opinion at 4-5. Appellees have the right to immediate possession of that portion of the residence lying north-west of these vertical planes.

Judgment affirmed.

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

      . Appellant Bertha Brogan is appellee George Doman’s aunt.

      . In an ejectment action to resolve a disputed boundary, parol evidence is admissible to establish the existence of monuments. See, e.g., Baker v. Roslyn Swim Club, 206 Pa.Super. 192, 213 A.2d 145, 148 (1965); Will v. Piper, 184 Pa.Super. 313, 134 A.2d 41, 44 (1957); see generally, 5 P.L.E., Boundaries, § 28 (1958).

      . Although the record alludes to the fact that there may have been one center wall consistent with the M & B line prior to appellant’s and appellees’ purchases, this point was not developed by the parties. Mrs. Brogan testified that she could recall George Doman’s parents remodeling sometime “in the ’50’s, 59, in the '60’s, early ’60’s.” N.T. at 54. The extent thereof is not mentioned. Also, appellant in her brief implies the former existence of a center wall:
      "However a number of years previous to the Deed, a number of renovations had taken place with regard to the property, and the center wall no longer exists.”
      Appellant’s Brief at 1.

      . Appellees contend that “when a deed is executed and delivered and settlement completed, pursuant to an agreement of sale, the agreement is merged into the deed.” See Appellees’ Brief at 14.
      Appellees correctly state the general rule that an agreement of sale merges into a deed and no recovery may be had based on the earlier agreement. See Valvano v. Galardi, 363 Pa.Super. 584, 526 A.2d 1216, 1220 n. 2 (1987) (citing Stoever v. Gowen, 280 Pa. 424, 124 A. 684 (1924)).
      Instantly, we find no reason to depart from the general rule. The statement contained within the deed referring to the agreement of August, 1968, is simply too equivocal to be considered indicative of an intent to have the provisions within the agreement survive the deed. Cf. Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 246 A.2d 365 (1968) (rule of merger avoided where parties’ expressed intentions are to the contrary). Moreover, the deed recites practically verbatim (apart from the one sentence drawn on by appellant) the description contained in the agreement. This further belies any claim that the terms of the agreement were intended to survive, or would serve any purpose surviving, the deed.

      . Ejectment does not lie for an easement. See, e.g., Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174, 179 (1955) (per curiam); Versailles Tp. Auth. v. City of McKeesport, 171 Pa.Super. 377, 90 A.2d 581 (1952).
      Although the propriety of the easement remains unchallenged and, therefore, is not properly before us, we note the error in this legal conclusion. Moreover, the judge’s reasoning is unclear. We interpret the record as establishing no lateral access between lots 34 and 36. See N.T. March 27, 1989, at 11-12. As such, we fail to see how appellant can access her area of the basement from appellees' side in accordance with the easement granted in her favor unless, of course, a doorway is installed. No such agreement has been reached to our knowledge. In this vein, if we are correct that there are basement steps extending from appellant’s first floor dining area to her basement, such steps lying somewhere between the existing rear basement wall and the vertical plane of the first and second floor walls, see N.T. 59-60, then we are at a loss to understand why Judge O’Malley opted for an easement through appellees’ front door and over their basement steps rather than simply permitting appellant continued use of the existing route through her dining area with an easement over her basement steps.

      . Immediately, a word of clarification is in order. Deed "construction" should not be confused with deed “reformation”, whereby a Court of Equity might rewrite the written word based on clear, precise and indubitable evidence of mutual mistake or fraud. See Easton v. Wash. County Ins. Co., 391 Pa. 28, 137 A.2d 332, 337 (1957). In cases of deed “reformation”, the claim is that the words used do not represent the “true" agreement of the parties. The two processes must be kept distinct since an action for reformation lies solely in equity. See Tillmes v. Marsh, 67 Pa. 507 (1871) (to give chancery jurisdiction upon a question of a disputed boundary, some equity must be super-ceded); see also McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222, 229 (1962); see generally 66 Am.Jur.2d, Reformation of Instruments, § 94 at 625 (1973) ("an action for reformation of a written instrument is an equitable action and is cognizable only in equity or on the equity side of the court. Neither courts of law nor courts of admiralty have jurisdiction to reform instruments") (footnotes omitted); 12 AmJur. 2d, Boundaries, §§ 91-2 (1964).
      In Pennsylvania, however, where privity exists, a party is permitted to plead the equitable defense of mutual mistake even though the complaint is one in ejectment at law. See Lachner v. Swanson, 251 Pa.Super. 561, 380 A.2d 922, 925 (1977); see abo Trexler v. Fbher, 130 Pa. 275, 18 A. 733 (1889) (per curiam) (“Where there is a plain mistake or fraud the courts of Pennsylvania, through the intervention of a jury, may reform the agreement to make it agree with the deed and make the deed agree with the real title of the parties. In some countries the law is not so liberal as that, and the parties have to go to a court of equity; but here our common law courts have such equity powers as enables them to remedy accidents, mistakes or frauds, in the interest of justice ...”). But see Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174 (1955) (per curiam) (“[I]n an ejectment proceeding, there is only one issue, that of the right of possession. The Court cannot in such proceeding be concerned with an attempt to reform a deed on the ground of error or mistake. For such reformation, the parties must bring their action in a Court of Equity.”).

      . Thus, in an ejectment action parol evidence is competent to explain ambiguities, but not to vary or contradict a boundary description contained within a deed; such latter usage is limited to an action in equity to reform a deed where accident, mistake or fraud is shown. See Yuscavage v. Hamlin, infra.

      . The trial judge uses the phrase "the center wall” as interchangeable with the phrase “the cent ral walls.” This interpretation appears reasonable since use of the phrase “the center wall” cannot be seen as rising to a term of art mandating a "singular” connotation.

      . We recognize that the "plank wall” located in the rear portion of the basement is not coextensive with the vertical planes described by Judge O’Malley. Nevertheless, to locate the boundary line by extending the vertical plane of the first and second floor rear walls and, therefore, to divide the dwelling uniformly by extending one vertical plane in the rear portion, is a natural and reasonable corollary to the division as otherwise established.

      . See supra note 6.

      . Appellant's Answer states: “It is specifically denied that the legal descriptions [in the parties’ respective deeds] accurately describe what is owned by both plaintiff and defendant." Answer at ¶ 4. Compare Price v. Ross, 339 Pa.Super. 461, 489 A.2d 252, 253 (1985) (in the context of summary judgment for failure to plead mutual mistake we found the following pleading sufficient: “At the time such release was executed and delivered, it was not intended by either party thereto to be applicable to the original defendant in any respect ...’’).

      . Appellant appears to make the argument that her continued possession serves as evidence of the parties’ (and successors’) subsequent interpretations of their respective deeds and, thus, is probative of their “true” intentions regarding appellant’s deed. See Ryan, supra. We note that this alone is insufficient to amount to clear, precise and indubitable evidence of mutual mistake in the execution of appellant’s deed. See, e.g., Easton v. Wash. County Ins. Co., 391 Pa. 28, 137 A.2d 332 (1957) (listing the various requirements necessary to obtain reformation). Moreover, the suggested inference is somewhat clouded by the fact that all parties holding title subsequent to the original subdivision were related by blood, hence implying that continued possession might have been gratuitous, not as of right.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    592 A.2d 331
    Lee Connie MORRIS and Bernard D. Morris, Appellants, v. PATHMARK CORPORATION, Supermarkets General and Posner Laboratories, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1991.
    Filed May 1, 1991.
    Reargument Denied July 10, 1991.

      George J. O’Neill, Philadelphia, for appellants.
    Gary K. Feldbaum, Philadelphia, for appellees.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   WIEAND, Judge:

In this action to recover for an allergic reaction following use of a hair straightening product, the trial court entered a compulsory nonsuit in favor of the manufacturer and vendor of the product. After careful review, we affirm.

On February 24, 1983, Lee Connie Morris purchased a sealed container of “Posner Frizzzz Control,” a hair straightening product, from a Pathmark Supermarket in Edgewater Park, New Jersey. Before going to bed the following evening, she applied the contents to her hair in accordance with the directions on the container. Ms. Morris awoke the next morning with a burning sensation of her scalp and swelling on the left side of her face. She subsequently developed a rash and sores on her scalp, face and neck, and still later suffered hair loss on both sides of her head and on the back of her head and neck.

Morris instituted an action in trespass against Pathmark Supermarkets and Supermarkets General as retailers of the product, and Posner Laboratories as manufacturer and supplier of the product. She asserted causes of action based upon strict liability in tort and breach of an implied warranty of fitness for a particular purpose. At a non-jury trial on January 4, 1990, appellant presented the liability aspects of her case, which consisted of the deposition testimony of two expert witnesses, Drs. Mustapha Kahn and Howard Goody, the physicians who had treated her for her injury. The defendants then moved for the entry of a compulsory nonsuit, which the trial court granted. Its ruling was based upon appellant’s failure to offer evidence of a defective product. Her only evidence was of an unusual allergic reaction to the product. Appellant’s oral motion to remove the nonsuit was denied, and she appealed.

The rules regarding a compulsory nonsuit are well settled.

When a motion for compulsory nonsuit is filed, the plaintiff, appellant here, must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from the evidence, and any conflict in the evidence must be resolved in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley Park, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). Furthermore, when the trial court is presented with a choice between two reasonable inferences, the case must be submitted to the jury. Hawthorne v. Dravo Corp., Keystone Div., 313 Pa.Super. 436, 460 A.2d 266 (1983). However where it is clear a cause of action has not been established, a compulsory nonsuit is proper. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61, 63 (1988).

Toth v. Economy Forms Corporation, 391 Pa.Super. 383, 386, 571 A.2d 420, 422 (1990). However, “[t]he determinations of whether a warning is adequate and whether a product is “defective” due to inadequate warnings are questions of law to be answered by the trial judge.” Mackowick v. Westinghouse Electric Corp., 525 Pa. 52, 54, 575 A.2d 100, 102 (1990), citing Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978).

In this case appellant contends that the product was defective in that it was unreasonably dangerous to persons susceptible to allergic reactions to its ingredients because there was no warning or instruction to patch test the product before using it. We disagree.

Section 402A of the Restatement (Second) of Torts, adopted by our Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), provides:

§ 402 A. Special liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The elements of proof necessary to establish a prima facie case of strict liability are: (1) that the product was in a defective condition upon delivery; (2) that the product was unreasonably dangerous to the consumer; and (3) that the product was the cause of the injury sustained. See: Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971). To establish a prima facie case of strict liability for a failure to warn, appellant must establish that the lack of warning rendered the product dangerous and that it was the proximate cause of the accident. See: O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 567 A.2d 680 (1989). “The absence of either factor of ‘unreasonably dangerous’ or ‘proximate cause’ is fatal to a plaintiff’s cause of action when premised upon a failure-to-warn assertion.” Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 51, 527 A.2d 140, 147 (1987).

Comment j to Section 402A provides:

J. Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.

Restatement (Second) of Torts § 402A comment j (1978) (emphasis added).

In a factually similar case a Louisiana appellate court dismissed a strict liability action because the plaintiff had failed to establish that her injury from use of a hair straightening product had been caused by a defective product or that the product had been unreasonably dangerous for normal use where the evidence indicated that the injury could have been caused by either misapplication of the product or an allergic reaction. See: Booker v. Revlon Realistic Professional Products, Inc., 433 So.2d 407 (La.App.1983). The court opined that an unusual or rare idiosyncratic sensitivity on plaintiffs part provided no basis for recovery or even the requirement of a warning from the manufacturer in the absence of evidence that a significant number of persons suffered allergic reactions to the product. See also: Thomas v. Gillette Co., 230 So.2d 870 (La.App.1970) (manufacturer of hair straightening product not strictly liable for injuries suffered from use of product where no evidence of defect, only evidence of an allergic reaction).

Instantly, appellant’s treating physicians testified that her injury had resulted from an allergic reaction to “Frizzzz.” Neither physician, however, could identify the ingredient in the product which had caused the reaction. There was also evidence that appellant had had a previous history of dermatitis, the same ailment which had been caused by her use of the product in this case. There was no evidence, however, that the product had been unsafe or likely to cause harm to a normal consumer. There also was no evidence that the product had contained an ingredient to which a significant number of persons were allergic. In the absence of such evidence, the manufacturer cannot be held to have known of the risk of an isolated and unusual allergic reaction by one such as appellant. It cannot be held liable for failing to warn users of the risk, where the allergic reaction could not reasonably have been foreseen. See: Restatement (Second) of Torts § 402A comment j (1978). Appellees are not liable merely because appellant had an allergic reaction to the product; the product must be shown to have been defective. See: Berkebile v. Brantly Helicopter Corp., supra. We conclude, therefore, that the trial court did not err when it ruled that appellant had failed to establish a prima facie case of strict liability. Her own evidence showed nothing more than an unusual allergic reaction to the product.

Appellant’s evidence also failed to establish a prima facie case for breach of an implied warranty of fitness for a particular purpose. Generally, cases permitting recovery for injuries from use of hair straighteners under this theory involve situations in which the seller has selected and/or applied the product for the consumer. Here, appellant selected the product and applied it herself. Moreover, the law in Pennsylvania is well settled that a seller cannot be liable for breach of an implied warranty merely because of a harmful effect due to an individual idiosyncrasy on the part of the buyer. Thus, in Barrett v. S.S. Kresge Co., 144 Pa.Super. 516, 19 A.2d 502 (1941), the court held that where dermatitis suffered after a buyer had worn a new dress was attributable to an individual allergic reaction, and there was no evidence that the same would have harmed a normal person, the seller of the dress was held not liable for breach of an implied warranty of fitness for a particular purpose. In the instant case, appellant suffered an allergic reaction to appellee’s product but offered no evidence to show that a normal consumer would have been similarly afflicted by use of the product. Therefore, appellant failed to establish a prima facie case of a defective product or a breach of warranty of fitness for purpose. It follows that the entry of a compulsory nonsuit by the trial court was proper.

Affirmed.

      . Hercules, Inc., the manufacturer of the active ingredient in “Posner Frizzzz Control”, was joined as an additional defendant by Posner, but by subsequent stipulation of the parties, the claim against Hercules, Inc., was discontinued.


text:
    592 A.2d 335
    COMMONWEALTH of Pennsylvania v. George WALTON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1991.
    Filed May 14, 1991.
    Reargument Denied July 11, 1991.
    Stuart Lev, Philadelphia, for appellant.
    George Leone, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

This appeal is from an order denying a pre-trial motion to dismiss a prosecution for making a false report to law enforcement authorities on grounds that prosecution was barred by principles of double jeopardy and the provisions of 18 Pa.C.S. § 110. We find no merit in either of these contentions and affirm the order of the trial court.

On August 1,1987, at or about 11:30 p.m., George Walton was arrested for illegal possession of a firearm. He was still in custody on the following morning when he made a complaint that the arresting officer had stolen from him six bags of cocaine, each having a value of five hundred ($500.00) dollars. After an investigation had been made, Walton was charged with making a false report. He was tried on this charge in the Municipal Court of Philadelphia, which found him guilty on August 18,1989. Walton appealed from this conviction to the Court of Common Pleas, where he sought to be tried de novo. While the appeal was pending, Walton was tried and found not guilty of the firearms offense for which he had been arrested on August 1, 1987. Thereafter, he filed a petition to dismiss the false report prosecution, contending that a trial de novo was barred by his acquittal on the firearms charge. This petition was denied by the trial court, and Walton appealed.

The polestar for analyzing appellant's double jeopardy claim is the decision of the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). This decision has been summarized by the Superior Court of Pennsylvania in the following manner:

[T]he Supreme Court held that in determining whether or not subsequent prosecution is barred by double jeopardy, the court must first apply the traditional test first enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "If application of the test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred.” Grady at-, 110 S.Ct. at 2090, citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The test for determining whether an offense is a lesser included offense is whether each and every element of the lesser offense is necessarily an element of the greater offense.
Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116, app. den., 520 Pa. 616, 554 A.2d 509 (1988); Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985); Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982). The court in Grady also found that this is not the only standard for determining whether violations of the double jeopardy clause exist. “[T]he double jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady at-, 110 S.Ct. at 2093. “The critical inquiry is what conduct the state will prove, not what evidence the state will use to prove that conduct.” Id.

Matter of Huff, 399 Pa.Super. 574, 580, 582 A.2d 1093, 1096 (1990). See also: Commonwealth v. Labelle, 397 Pa.Super. 179, 189-193, 579 A.2d 1315, 1320-1322 (1990).

When this analysis is applied to the facts of the instant case, it is clear that appellant's prosecution for making a false report is not barred by his acquittal on the firearms charge. The two offenses do not share common elements, and neither is a lesser included offense of the other. Moreover, it will be unnecessary for the factfinder which hears the false report charge to reconsider any findings made by the factfinder in the firearms case. Indeed, at trial the Commonwealth is not required to make any reference whatsoever to the firearms charge or to appellant’s acquittal thereon.

Appellant’s principal argument is that his prosecution for making a false police report is barred by 18 Pa.C.S. § 110. This statutory provision, in relevant part, is as follows:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense____

18 Pa.C.S. § 110(l)(ii).

“Section 110 of the Crimes Code requires the Commonwealth to consolidate in a single proceeding all known charges based on the same conduct or arising from the same criminal episode unless the court orders separate trials.” Commonwealth v. Webster, 323 Pa.Super. 164, 175, 470 A.2d 532, 537 (1983). See: Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). See also: Commonwealth v. Beatty, 500 Pa. 284, 287-288, 455 A.2d 1194, 1196-1197 (1983); Commonwealth v. Stewart, 493 Pa. 24, 28, 425 A.2d 346, 348 (1981). This rule of compulsory joinder is “ ‘intended both to protect a person accused of crimes from governmental harassment by forcing him to undergo successive trials for offenses stemming from the same event, and also, as a matter of judicial administration and economy, to ensure finality without unduly burdening the judicial process by repetitious litigation.’ ” Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1017 (1978), quoting Commonwealth v. Tarver, 467 Pa. 401, 408, 357 A.2d 539, 542 (1976). See also: Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983); Commonwealth v. Webster, supra 323 Pa.Super. at 175-176, 470 A.2d at 538.

“Whether incidents are part of a single criminal episode depends on the facts of each case.” Commonwealth v. Flenory, 351 Pa.Super. 27, 30, 504 A.2d 1341, 1342 (1986). “In determining whether incidents are part of a single criminal episode so as to bar their separate prosecutions, three factors must be considered: (1) the temporal sequence of events; (2) the logical relationship between the acts; and (3) whether they share common issues of law and fact.” Commonwealth v. Butler, 380 Pa.Super. 595, 599, 552 A.2d 702, 704 (1988). See: Commonwealth v. Hude, supra 500 Pa. at 490-492, 458 A.2d at 181-182; Commonwealth v. Stewart, 325 Pa.Super. 465, 469, 473 A.2d 161, 164 (1984). See also: Commonwealth v. Purnell, 358 Pa.Super. 105, 111-112, 516 A.2d 1203, 1206-1207 (1986); Commonwealth v. Flenory, supra 351 Pa.Super. at 30-31, 504 A.2d at 1342. “Two separate offenses may constitute the same criminal episode if one offense is a necessary step in the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission.” Common wealth v. Bethel, 295 Pa.Super. 312, 315, 441 A.2d 1248, 1250 (1982). See also: Commonwealth v. Edwards, 264 Pa.Super. 223, 228, 399 A.2d 747, 750 (1979).

In Commonwealth v. Flenory, supra, the defendant moved to dismiss a charge of intimidation of a victim or witness on grounds that the charge had arisen from the same criminal episode as the assault for which he had already been convicted. The trial court granted the motion but, on appeal, the Superior Court reversed. The Court reasoned as follows:

The incidents in the instant case are not temporally close or contiguous. See, e.g., Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975) (stabbings of three people all part of same criminal episode, even though they occurred in different places, when fight moved from porch to driveway). They occurred ten months apart. They were not part of a continuing series of occurrences. See Hude, 500 Pa. at 484-487, 458 A.2d at 178-179.
There is a relationship between the acts, but it is not the type of logical relationship that will bar the subsequent prosecution. If the appellee had not attacked the victim, then the appellee would not have been arrested or charged with the injury, ten months later the appellee would not have been scheduled for trial, the victim would not have been scheduled to testify against the appellee, and the appellee, presumably, would not have threatened the victim and tried to convince him, with the aid of a gun, not to testify. The relationship is too far removed from the initial offense. The offenses were not steps necessary to accomplish an objective. [See Commonwealth v. Taylor, 334 Pa.Super. 242, 246, 482 A.2d 1315, 1317 (1984).] In Taylor, this court was influenced by the fact that there was no “break” in the criminal activity. Id. Here, the break was of ten months duration.
The incidents do not share common issues of law and fact, although evidence of the intimidation may have been admissible at the first trial to infer guilt, and evidence of the assault may be admissible at the second trial to show motive, neither crime is necessary to prove the other. They involve different facts and different issues. They are offenses unrelated in kind—one is an assault on a person, the other a possessory offense and an obstruction of justice. Factually, they are separated by time and distance.

Id. 351 Pa.Super. at 81, 504 A.2d at 1342-1343.

A similar result was reached in Commonwealth v. Purnell, supra. There the defendant had been arrested for disorderly conduct and transported to the police station. Upon arrival at the police station, she threatened and assaulted a police officer. After entering a plea of guilty to the disorderly conduct charge, the defendant argued that a subsequent prosecution for assaulting the police officer was barred by 18 Pa.C.S. § 110. In rejecting this argument, the Superior Court said:

The officer assaulted by Purnell had not been present when Purnell was initially arrested but had been called to the scene after the arrest had been made for the purpose of transporting Purnell ... to the stationhouse. Also, the officers who had effected Purnell’s arrest were not present at the stationhouse when the alleged assault occurred. Thus, the acts resulting in separate prosecutions had occurred at different locations, before different witnesses, and involved different victims. The factual issues are, therefore, separate and distinct, as are the legal issues. We conclude that under these circumstances the charge of disorderly conduct, to which Purnell entered a plea of guilty on February 23, 1983, was not part of the same criminal episode as the conduct resulting in charges of aggravated assault at the police station.

Commonwealth v. Purnell, supra 358 Pa.Super. at 112, 516 A.2d at 1207 (citation omitted). See also and compare: Commonwealth v. Stewart, supra (crimes of theft by receiving stolen property and possession of a controlled substance were not part of same criminal episode even though evidence relevant to both was found during same search); Commonwealth v. Lawson, 306 Pa.Super. 414, 452 A.2d 793 (1982) (where theft of car and theft of gasoline for stolen car were separated by a two hour interval, the two offenses were not part of same criminal episode); Commonwealth v. Lee, 291 Pa.Super. 164, 435 A.2d 620 (1981) (two stabbings by defendant which occurred forty minutes apart, at different locations and involving different victims were not part of same criminal episode); Commonwealth v. Miller, 278 Pa.Super. 103, 419 A.2d 1378 (1980) (two burglaries by same defendant at same house six hours apart were not part of same criminal episode).

In the instant case, the offenses of illegally possessing a firearm and of making a false report to police were committed by appellant at different locations and at an interval of more than nine hours. The offenses were wholly different and did not involve common issues of law or fact. Although some relationship can be said to exist between the two crimes in that the false report made by appellant involved an allegation of misconduct by the officer who had arrested him for the firearms offense, the relationship was tenuous at best. It was not the type of logical relationship that would require a single trial for both offenses. Neither offense was necessary to prove the other. The offenses, in short, were separate crimes and did not occur as a part of the same criminal episode.

The decision in Commonwealth v. Edwards, supra, does not compel a different result. In Edwards, the Court held that the defendant’s prosecution for theft and conspiracy was barred by 18 Pa.C.S. § 110 because of his. previous conviction on a charge of making an unsworn falsification. The defendant had been stopped by police one-half hour after a theft while he was sitting in the getaway car in the company of his accomplices. Upon being asked to identify himself, the defendant provided police with a false name. The Court held that the giving of the false name to the police was part of the same criminal episode as the theft. Its reasoning was as follows:

While it cannot be precisely said that appellant’s unsworn falsifications resulted from his attempt to secure the benefit of the theft offenses (the parcels had already been recovered) or conceal its commission, it certainly was an effort to avoid prosecution for the offenses, much as resisting arrest would be. Had appellant’s ploy been successful, once he had been admitted to bail the Commonwealth would have found it difficult to locate him. In addition, appellant’s attempts to mislead the police occurred within one-half hour of the alleged offenses, and while he was still in the company of his accomplices making their “getaway.” And, finally, appellant’s false statements were relevant evidence against him in his trial for the principal offenses; his actions in misleading the police reflected a guilty state of mind. One of the more important considerations in determining whether criminal offenses may and should be joined for trial is whether proof of one offense is relevant to proving the other.

Commonwealth v. Edwards, supra 264 Pa.Super. at 228-229, 399 A.2d at 750. Here, by way of contrast, the offenses were committed at an interval of more than nine (9) hours, and neither offense is necessary to prove the other. We conclude, therefore, that Edwards is inapposite to the facts of the instant case.

For the foregoing reasons, we conclude that appellant’s prosecution for making a false report to law enforcement authorities is not barred by principles of double jeopardy or by the provisions of 18 Pa.C.S. § 110. Because the trial court properly denied appellant’s motion to dismiss the prosecution, its order must be, as it is,

Affirmed.

      . In Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), the Supreme Court held that a defendant may file an interlocutory appeal from an order denying a pre-trial motion to dismiss on double jeopardy grounds, so long as the trial court has not made a written finding that the appeal is frivolous. Additionally, in such an interlocutory appeal, "it is appropriate to entertain [a complaint made pursuant to 18 Pa.C.S. § 110] because it is a plea in bar with double jeopardy overtones." Commonwealth v. Hude, 500 Pa. 482, 490 n. 13, 458 A.2d 177, 181 n. 13 (1983). See also: Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981). In the instant case, the trial court has made no finding that Walton's appeal is frivolous and, as such, the appeal is properly before this Court.


text:
    592 A.2d 339
    Rosella MYERS, Appellee, v. Robert MYERS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1991.
    Filed June 10, 1991.

      Neil J. Marcus, Monongahela, for appellant.
    Elena D. Bender, Charleroi, for appellee.
    Before WIEAND, DEL SOLE and HOFFMAN, JJ.
   WIEAND, Judge:

The principal issue in this support action is whether the wife, who voluntarily left the marital home without her husband’s consent, had adequate legal reason for doing so. A second issue requires that we review the record to determine whether it supports the amount of support fixed by the court.

Robert Myers and Rosella Myers were married on August 6, 1983. Each had been married before. On October 4, 1988, Rosella left the common home in Washington County and moved to State College, in Centre County, where she took up residence with a daughter. The move was accomplished surreptitiously and was without Robert’s prior knowledge or consent. When she moved, Rosella took some but not all the furniture from the marital home. She also quit her job in Washington County and, at the time of hearing, was unemployed. She filed a complaint for support in Centre County, which was referred to Washington County for hearing and the entry of an order. The court in Washington County entered an order directing Robert to pay to and for the support of his wife the sum of six hundred ($600) dollars per month, plus one hundred ($100) dollars per month on account of arrearages. Robert appealed.

Contrary to an argument advanced by appellee, the appeal is proper. The spousal support order was entered in a support proceeding instituted by complaint filed separately from Rosella’s divorce action. This order is a final determination of the action for support and is appealable. See: Ritter v. Ritter, 359 Pa.Super. 12, 16 n. 2, 518 A.2d 319, 321 n. 2 (1986).

Our scope of review is limited. In Rock v. Rock, 385 Pa.Super. 126, 560 A.2d 199 (1989), the Court said:

This Court may reverse a support order only if it finds that the order cannot be sustained on any valid ground. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983) . As such, absent an abuse of discretion or [insufficient evidence to sustain the support order, this Court will not interfere with the broad discretion afforded the trial court. Boni v. Boni, 302 Pa.Super. 102, 448 A.2d 547 (1982). Further, the assessment of the credibility of witnesses is within the sole province of the trial court. Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984) .

Id. 385 Pa.Super. at 130, 560 A.2d at 201. “ ‘Abuse of discretion’ is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that [an] appellate court is of opinion that there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment—one that is clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law.” Commonwealth v. Powell, Pa. fn. 8, 590 A.2d 1240, 1244 fn. 8 (1991), quoting Black’s Law Dictionary, 5th Ed. (1979). Where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable and must be reversed.

Our duty in this appeal is to determine whether there is sufficient evidence to support the order of the trial court. “A wife seeking support following a nonconsensual, voluntary vacation from the marital home has the burden of establishing that her husband’s conduct justified her in leaving the marital home.” Rock v. Rock, supra 385 Pa.Super. at 130, 560 A.2d at 201, citing Larkin v. Larkin, 262 Pa.Super. 294, 396 A.2d 761 (1978). See also: Clendenning v. Clendenning, 392 Pa.Super. 33, 36, 572 A.2d 18, 20 (1990); Overs v. Overs, 294 Pa.Super. 191, 193, 439 A.2d 815, 816 (1982); Commonwealth ex rel. Krug v. Krug, 224 Pa.Super. 100, 102, 303 A.2d 52, 53 (1973). “A voluntary withdrawal by [a spouse] without adequate legal reason defeats [his or] her right to support.” Martin v. Martin, 282 Pa.Super. 484, 486, 423 A.2d 6, 7 (1980), quoting Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa.Super. 527, 530, 117 A.2d 793, 794 (1955).

The phrase adequate legal cause for leaving is not subject to exact definition. It must be interpreted based on the facts of each case. A spouse who over a period of time suffers psychological oppression may be harmed as much as a spouse who suffers physical injury. The law must recognize this harm and not force the oppressed spouse to remain in the unhappy environment in order to be entitled to support. On the other hand, the law should not impose on a spouse the duty of support where his or her mate departs the marital residence maliciously or casually on whim or caprice.

Clendenning v. Clendenning, supra 392 Pa.Super. at 38-39, 572 A.2d at 21. It is unnecessary to a right to be supported that the wife prove grounds for leaving her husband which would constitute grounds for divorce. Overs v. Overs, supra 294 Pa.Super. at 193, 439 A.2d at 816. On the other hand, a “mere allegation that cohabitation is unbearable, unsupported by facts or reasons, is not sufficient.” Martin v. Martin, supra 282 Pa.Super. at 486, 423 A.2d at 7, quoting Commonwealth ex rel. Lipschultz v. Lipschultz, supra. See also: Commonwealth v. Popkin, 165 Pa.Super. 489, 69 A.2d 160 (1949).

The nature of the proof required to show “adequate legal cause for leaving” is demonstrated by the decided cases. In Clendenning v. Clendenning, supra, it was held that a husband’s anger and demands that his wife conduct herself in accordance with his wishes, together with his yelling at her and beating his cane on a table, constituted adequate legal cause for leaving. In Rock v. Rock, supra, adequate cause for leaving was found in husband’s addiction to alcohol and his erratic and frightening behavior during alcoholic episodes. And in Loosley v. Loosley, 236 Pa.Super. 389, 345 A.2d 721 (1975), a husband’s knowledge of his wife’s psychiatric treatment, together with his conscious attempts to make her nervous and his use of bitter words, including on numerous occasions telling her that he wanted a divorce, were sufficient to provide the wife with legal cause to leave. See also: Commonwealth ex rel. Cooper v. Cooper, 183 Pa.Super. 36, 128 A.2d 181 (1956) (husband’s excessive control over wife, including refusing to allow her relatives in the house and controlling all financial matters, and his otherwise annoying conduct, provided wife with legal cause to leave); Commonwealth ex rel. Rovner v. Rovner, 177 Pa.Super. 122, 111 A.2d 160 (1955) (husband’s erratic behavior and constant arguing with wife provided her with legal cause to leave).

Other cases have held a spouse’s proof insufficient to establish “adequate legal cause for leaving.” Thus, in Martin v. Martin, supra, an order awarding spousal support was reversed where the appellee had failed to testify about her reasons for leaving appellant; and in Commonwealth ex rel. Giamber v. Giamber, 255 Pa.Super. 111, 386 A.2d 160 (1978), spousal support was denied to a wife who had merely testified that marital differences were irreconcilable and who had diverted her husband’s funds into the purchase of a condominium, which she placed in the name of her daughter and herself, where she established a separate home, furnishing it with furniture removed from the common abode. And finally, in Commonwealth ex rel. Coleman v. Coleman, 184 Pa.Super. 256, 133 A.2d 307 (1957), spousal support was denied to a wife who had left her husband because he refused to give her two thousand ($2,000) dollars.

In the instant case, the trial court accepted the wifeappellee’s reasons for leaving as follows:

“Because I didn’t feel that I was treated right. He always screamed at me. I work for my own self. He never gave me a penny and I left because I made a charge at Kaufmann’s for $90.00 and he said I had no right to do that without asking him; that I wasn’t to do that. I asked him what my rights were and he said to just drive the car. I left. I called my attorney and then I had an appointment and then I left.”

There was also evidence that on one occasion, following an argument, appellant had pushed his wife with such force that she was thrown across their family room. This, however, was denied by appellant. It was also conceded by both parties that appellee had worked during the course of the marriage and had kept her earnings for her personal use. Under these circumstances we conclude that although the issue of legal cause is not free from all doubt, there was sufficient evidence to support the trial court’s finding that appellee had adequate legal cause for leaving.

As to the proper amount of support to be paid, the hearing court possesses wide discretion, and unless it appears that the hearing court has abused its discretion, its order will not be disturbed. Goodman v. Goodman, 375 Pa.Super. 504, 506, 544 A.2d 1033, 1034 (1988); Biler v. Biler, 353 Pa.Super. 49, 52, 508 A.2d 1261, 1263 (1986). However, the amount of a support order must be fair, non-confiscatory, and attendant to the circumstances of the parties. Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982). “The function of a court in a proceeding for support is not to punish a husband ... but to fix an amount which is “reasonable and proper for the comfortable support and maintenance of ... [his] wife.’ ” Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 395, 237 A.2d 181, 186 (1967), citing Commonwealth ex rel. Milne v. Milne, 150 Pa.Super. 606, 29 A.2d 228 (1942).

“When determining the support obligation of a spouse, the trial court must consider income, potential earning capacity and other property and financial resources.” Goodman v. Goodman, supra 375 Pa.Super. at 508, 544 A.2d at 1035; Machen v. Machen, 278 Pa.Super. 135, 137, 420 A.2d 466, 467 (1980). In determining the reasonable needs of the spouse seeking support and the ability of the obligor to provide support, primary emphasis should be placed on the net incomes and earning capacities of the parties. 23 Pa.C.S.A. § 4322. A person’s “earning capacity,” is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training. Goodman v. Goodman, supra 375 Pa.Super. at 508, 544 A.2d at 1035, citing Commonwealth ex rel. Simpson v. Simpson, 287 Pa.Super. 356, 430 A.2d 323 (1981).

In this case, the hearing court made no attempt to determine Rosella’s earning capacity. Prior to her separation from Robert she had been employed as a cafeteria worker, earning $7.20 an hour and working steadily for six and one-half hours each day, five days a week. Rosella testified that she is currently in good health and physically able to work, but has not yet found a job in Centre County. The court made no findings with respect thereto and gave no consideration to her earning capacity. Such a determination, however, was necessary to an accurate application of the applicable guidelines.

The trial court’s statement that appellee has needs of eight hundred ($800) dollars per month is unsupported by the record. The original record forwarded to this Court contains no evidence of such needs, and appellant’s reproduced record contains a copy of a statement by appellee which recites expenses considerably less in amount than that found by the court. We are constrained to agree with appellant’s contention, therefore, that the amount of the support order is not supported by the evidence and appears to have been entered without regard for the uniform support guidelines which became effective September 30, 1989. See: Pa.Rules of Civ.Procedure § 1910.16-1. Consequently, we will reverse and remand for a further evidentiary hearing, following which an order should be entered in an amount required by the circumstances established by the evidence.

Reversed and remanded for further proceedings in accordance with the foregoing Opinion. Jurisdiction is not retained.