author: OLSZEWSKI, Judge:

text:
    488 A.2d 335
    David M. JOHNSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1984.
    Filed Feb. 15, 1985.

      Charles W. Kenrick, Pittsburgh, for appellant.
    Ruth A. Zittrain, Pittsburgh, for appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

In this appeal, State Farm Mutual Automobile Insurance Company seeks to overturn a declaratory judgment of the Court of Common Pleas of Allegheny County. The court held that the plaintiff, David M. Johnson, was entitled to reimbursement, with interest, from State Farm for medical expenses incurred after a car accident, and that the insurer must pay the plaintiffs attorney’s fees pursuant to Sec. 107(3) of the No-Fault Motor Vehicle Insurance Act, 40 Pa.C.S. Sec. 1009.101-701 (Purdon’s 1984-85 Supp.). We affirm the order of the lower court.

David M. Johnson, a high school student, was injured in a car accident on July 7, 1981. His father, Philip, held a Blue Cross/Blue Shield health insurance policy; he also held a State Farm Mutual automobile insurance policy. David’s sister, Anna, also held a State Farm policy of automobile insurance. David’s father had elected to coordinate benefits under his auto insurance policy, making Blue Cross/Blue Shield the primary payor of benefits in the event of an accident. David’s sister had made no such election.

After incurring medical expenses, David received reimbursement from Blue Cross/Blue Shield. He then sought to recover the same expenses from State Farm under his sister’s policy. Although, under his sister’s policy, David was a covered person, State Farm refused full reimbursement, maintaining that Blue Cross/Blue Shield’s involvement permitted State Farm to share with the health insurer the net cost of medical expenses and that David was not entitled to full basic loss benefits under the auto insurance policy. David sued for a declaratory judgment on benefits due; when the court below held for him, State Farm appealed.

The issue may be stated as follows: When a person has medical insurance under both automobile insurance and health plans, does the No-Fault Act restrict recovery to the net loss, split equally between the covering insurers? State Farm maintains that the No-Fault Act may be interpreted so as to make health insurers “obligors” within the meaning of the No-Fault Act, and that when two or more obligors exist, the insured may be reimbursed for only the net loss and the obligors may divide the cost between them.

Appellee, on the other hand, maintains that health insurers cannot be “obligors” under the Act, and thus the provision allowing contribution among multiple sources of equal property, 40 Pa.C.S. Sec. 1009.204(b), is inapplicable. Thus, appellee argues, an insured may receive more than his net loss when covered by a health policy and an automobile policy.

We do not believe that the legislature, when it enacted the No-Fault Act, meant to denote health insurers as “obligors” to which the Act applied. 40 Pa.C.S. Sec. 1009.103 defines “obligor” as “an insurer, self-insurer, or obligated government providing no-fault benefits in accordance with this act.” Since Blue Cross/Blue Shield does not provide benefits “in accordance with this act,” i.e., for motor vehicle-related injuries, it is not an obligor within the meaning of the Act.

This conclusion is bolstered by 40 Pa.C.S. Sec. 1009.203, which specifically notes, inter alia, that sources of reimbursement for medical expenses other than automobile insurance exist, and that coordination of benefits is allowed. This indicates that the legislature did not intend that all insurers who provide medical benefits be considered “obligors” under the Act; some providers were clearly thought to be outside the Act.

We are mindful, too, of the Supreme Court’s dicta in Allstate Insurance Co. v. Heffner, 491 Pa. 447, 459, 421 A.2d 629, 636 (1980). There, the Court referred to double reimbursement from health insurers and automobile insurers in a manner indicating the practice is allowable. See also Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984) (fact that insured has received reimbursement from source other than automobile insurer irrelevant in suit for basic loss benefits).

Thus, Sec. 204(b) does not operate to relieve State Farm of its obligation to reimburse David fully for his medical expenses.

The second issue is whether the plaintiff is entitled to attorney’s fees under Sec. 107(3) of the Act. Appellant maintains that there was a reasonable basis for denying the claim and that there was no bad faith involved in the denial, and thus attorney’s fees should be denied. Appellee, on the other hand, asserts that the court’s award of fees was proper, citing State Farm’s changing theories of non-liability, the lack of case law supporting its contentions, and Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., supra.

In Steppling, this Court held that attorney’s fees were awarded correctly when the insurer had cited no case law or authorities supporting its theory for denying benefits. The theory relied upon in Steppling was neither novel nor complex, since the Supreme Court had alluded to such recovery in 1980, two years prior to the company’s denial of the claim.

Here, too, the appellant has cited no case law or authority to support its theory that the existence of health insurance permits an auto insurer to escape its obligation to pay benefits to injured insureds. It simply weaves an intricate web of logic to back its claim, using selected portions of the No-Fault statute, and argues that the issue is new and is properly before the courts for review. We agree with the court below that there was no reasonable basis for denying reimbursement, and that the theory upon which appellant relies has been addressed before. See Allstate Insurance Co. v. Heffner, supra, in which the Supreme Court indicated that recovery from both health and auto insurers was possible. Accordingly, attorney’s fees were awarded properly to appellee.

The order of the court below is affirmed.

      . Philip Johnson actually held two State Farm auto insurance policies. David has claimed benefits from only one. The policy allowed payment of medical costs in excess of the primary payor’s coverage; these excess costs have been paid.

      . The sister’s policy covered all members of the sister’s household, including David.

      . State Farm apparently has changed its theory of nondiability several times since the accident, but this is the theory upon which it relies here.

      . (b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of the deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.
      40 P.S. Sec. 1009.203 (Purdon’s 1984-85 Supp.).

      . In Steppling, the insurer sought to deny reimbursement on the grounds that "reimbursement” payments could only be made to health service providers, and because the providers had refused payment, having been paid by Blue Cross/Blue Shield, the insurer was under no obligation to give money to the insured. The court said the argument was “frivolous.” 328 Pa.Super. 419, 429, 477 A.2d 515, 522.


source: Caselaw Access Project

author: WATKINS, Judge: BROSKY, Judge,

license: Public Domain

text:
    488 A.2d 338
    Ann STANLEY v. Lee STANLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 8, 1984.
    Filed Feb. 15, 1985.
    J. Kerrington Lewis, Pittsburgh, for appellant.
    Edward C. Milburn, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

The question raised by this appeal is whether an agreement between parties to a divorce which disposed of alimony and equitable distribution of marital property which was reduced to a consent order by the court below may be modified.

The facts are: The parties were divorced on September 23, 1982. A conciliation was held before the Honorable Lawrence W. Kaplan to determine permanent alimony and equitable distribution on January 13, 1983. The parties entered into a consent order resolving the wife’s claims for equitable distribution and permanent alimony. The consent order required the husband to pay the wife $2000.00 within thirty (30) days of the date of the order and $3000 in July, 1983 on the equitable distribution issue. The husband was obligated to pay $300.00 per month alimony for five (5) years from January, 1983 until the wife dies, remarries or cohabitates for a period of thirty (30) days. Both parties were represented and entered into this consent order with the advice of counsel.

Plaintiff-wife, Ann Stanley, was 62 years of age; appellant-husband, Lee Stanley, was 66 years of age.

On March 10, 1983 the wife filed a petition for Rule to Show Cause Why husband should not be held in contempt in that he has failed to pay monthly alimony payment since the date of the order. The rule was issued and dismissed when the husband made his payments current.

On August 2, 1983, the husband presented a Petition to Modify or Terminate Alimony. On August 11, 1983 wife petitioned for a Rule To Show Cause Why her husband should not be held in contempt. The petitions were consolidated. The judge below assigned a hearing examiner and limited the issue at the hearing to “cohabitation vel non ”.

The hearing examiner found the husband in contempt of the consent order of January 13, 1983 and found that the husband could purge himself of the contempt by complying with the consent order. His petition for modification or termination was denied and he was ordered to pay the $3000 already overdue by September 15, 1983.

Exceptions were filed and the court below dismissed the exception. This appeal followed.

The court below relies on the lower court case of Fleming v. Fleming, 130 P.L.J. 68 (1982). An appeal was filed to our Court, but was discontinued.

Judge Musmanno in applying Fleming, supra ably concluded that this appeal must be denied and the decision below affirmed saying:

“Pursuant to an order of this Court, husband filed a Statement of Matters Complained of under Pa.R.A.P. 1925(b), which, in essence, states that the hearing officer and this Court erred when they precluded him from presenting evidence as to his alleged change of financial circumstances and his present medical condition, both of which allegehly prevent him from complying with the January 13, 1983 consent order. This claim is premised on the Order of August 2, 1983, per Strassburger, J., which set a hearing on husband’s Petition to Modify or Terminate Alimony and stated:
‘... [The] only issue to be considered is cohabitation vel non.’
“Husband relied on the provision of Section 501(e) of the Divorce Code, 1980, April 2, P.L. 63, No. 26, Section 101, eff. 90 days, 23 P.S. Section 501(e), which state, inter . alia:
‘Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstated, or a new order made.’
“Husband thus concludes that he is entitled, as of right, to present evidence as to his changed circumstances.
“The next sentence of Section 501(e), however, disposes of husband’s claim for relief from his failure to pay the Three Thousand ($3,000.00) Dollar payment called for in the January 13, 1983 consent order. This sentence states:
‘Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief.’

“The Three Thousand ($3,000.00) Dollar payment was due long prior to the presentation of husband’s Petition, and husband is thus barred from seeking relief from compliance with that portion of the January 13th consent order.

“Husband’s request for modification of future alimony payments of Three Hundred ($300.00) Dollars per month would appear, superficially, to require testimony as to changed circumstances by virtue of Section 501(e) of the Divorce Code. This Court, however, has interpreted this provision of the Code in Fleming v. Fleming, 130 P.L.J. 68 (1982).

“Fleming, supra, involved a consent order which was reached on the issues of equitable distribution, alimony, and counsel fees. The consent order was silent as to modifiability. Subsequently, plaintiff-husband filed a petition to modify the alimony based on a significan change in circumstances, i.e., defendant-wife became employed. This Court, per Strassburger, J. reviewed the modifiability issue in two (2) contexts. The first situation exists where the order to be modified is for alimony only and is silent as to modifiability. Judge Strassburger concluded that Pennsylvania should follow the majority of jurisdictions and should permit modifiability.

“The second situation discussed in Fleming, supra, exists when the order to be modified contains both alimony and equitable distribution issues and is silent as to modifiability. This is the situation in the instant case. Judge Strassburger stated that:

‘We would be naive to think that tradeoffs do not occur between equitable distribution and alimony.’ Fleming, supra, at 70.

“Judge Strassburger, in examining the equities of modification under this situation, found that attempting to modify an alimony/property distribution order would be ‘most inequitable.’ and ‘would wreck havoc upon the parties to an equitable distribution proceeding ... ’ Id. at 70. The Court recognized that bargaining takes place during the process of reaching a consent order which integrates alimony and equitable distribution and found that a quid pro quo existed for the integrated agreement.

“In addition, the analysis of Section 501(e) of the Divorce Code contained in Fleming, supra, reveals that this provision of the Code does not require a different result as husband contends in the instant case. Section 501(e) makes reference to an ‘order entered pursuant to this section, which means an alimony order. An order which also includes equitable distribution, as in the instant case, is not, and cannot be an order entered pursuant to this section, as equitable distribution orders are entered by virtue of the provisions of Section 401 of the Divorce Code.

“Judge Strassburger thus concludes that the Court should hold that the alimony portion of such ‘integrated’ orders should be non-modifiable. Although in Fleming, Judge Strassburger did not apply his own rule of nonmodifiability, this was a result of the fact that the consent order was ‘essentially in an executory state,’ and would require a retroactive application of Fleming. Id at 71.

“In the case sub judice, this Court is faced with a consent order which integrates alimony and equitable distribution issues, was bargained for in good faith, contains no modifiability provision, and was entered into with advice of counsel at a court-ordered conciliation conference. Thus, we will apply the rationale of Fleming to this case, and we accordingly find that modifiability of the January 13, 1983 consent order cannot be founded on a change in circumstances as claimed by husband.

“Husband further claims that the hearing officer improperly limited his evidence as to cohabitation as a basis for modification. Because the January 13, 1983 consent order specifically provides for termination of alimony if ‘... plaintiff (wife) dies, remarries, or cohabits with a non-relative male for a minimum of thirty (30) days ...,’ we must examine the evidence presented by husband at the hearing.

“Although husband’s counsel gamely attempted to elicit some proof that wife has and/or is cohabiting, the record is devoid of even one iota of evidence supporting that claim. Husband testified that he ‘(has) witnesses that said she had (seen other men).’, but admitted that he didn’t see any man living with his former wife.”

Order affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the result reached by the majority in this case, but write separately because I would not base our decision on the opinion of the trial court as does the majority.

The trial court opinion, quoted at length by the majority, itself relies heavily on another trial court opinion, Fleming v. Fleming, 130 P.L.J. 68 (1982).

In Fleming the trial court explained that it would find consent alimony decrees to be modifiable pursuant to Section 501 of the Divorce Code, but would not find decrees combining alimony and equitable distribution provisions to be so modifiable.

I note initially my disagreement with a rule that would call for different results depending on whether the decree in question refers to equitable distribution. As the author of the Fleming opinion notes, “We would be naive to think that trade offs do not occur between equitable distribution and alimony.” Just because a decree grants only alimony, I would not conclude that the agreement was made without regard to the equitable distribution of marital property.

Alimony awards entered pursuant to Section 501 of the Divorce Code are to be based in part upon a consideration of marital property distributed by way of equitable distribution. See Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983), 23 P.S. § 501(a)(1). Yet such orders are modifiable. See 22 P.S. § 501(e). Similarly, it seems clear that an agreement regarding alimony would also of necessity have resulted from a consideration of the equitable distribution of marital property. I would not, therefore, make the distinction made in Fleming.

Furthermore, since the Fleming opinion was issued, our court has dealt with a similar situation. In VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984), we refused to modify an agreement for the payment of alimony. We treated the agreement as the courts treat contracts generally declining to modify it pursuant to the provisions of Section 507 of the Divorce Code which provides that cohabitation is a bar to alimony. We noted that “The alimony payments in this case, while enforceable as a court order, [see 23 P.S. § 501(f) ], are not the result of an ‘award’ of alimony by the court, but rather are the result of an agreement between the parties.” 336 Pa.Super. at 505, 485 A.2d at 1196.

I would refuse to modify the agreement before us because it does not itself permit such modification except in the case of cohabitation which appellant failed to prove.


author: HESTER, Judge:

text:
    488 A.2d 341
    Mary SHORT, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1984.
    Filed Feb. 15, 1985.

      Charles A. Buechel, Jr., Pittsburgh, for appellant.
    William F. Giarla, Pittsburgh, for appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   HESTER, Judge:

Appellant sought to recover double indemnity benefits from appellee, Metropolitan Life Insurance Company. The non-jury verdict denied appellant recovery.

The lower court en banc dismissed appellant’s exceptions. This appeal followed.

Appellant’s husband was an employee of General Motors Corporation at the time of his death. The decedent was covered by a group life insurance and accidental death policy through his employer. Appellant was the named beneficiary. The relevant double indemnity clause is as follows:

“If, while insured for Extra Accident Insurance under Group Policy No. 14000-G, the Employee sustains bodily injuries caused solely through violent, external and accidental means, and within one year therafter shall have suffered loss of life, or within 2 years shall have suffered any other loss as specified in the Schedule of Losses of this Section A, as a direct result of such bodily injuries independently of all other causes, the Insurance Company shall pay the amount of insurance specified under such loss in said Schedule, provided, however, that in no case shall such payment be made for any loss which is caused wholly or partly, directly or indirectly, by:
(1) disease or bodily or mental infirmity, or by medical or surgical treatment or diagnosis thereof, or”

Appellant contends her husband died as a result of an accident within the meaning of this double indemnity clause. Appellee contends appellant’s husband’s death was not accidental, but rather the result of a pre-existing heart condition. Appellee denied extra accident benefits.

The facts surrounding the insured’s death are as follows: On December 14, 1978 while the insured was teaching a class at his place of employment, he put his hand up to his forehead, said “Oh”, and then fell straight back, his head striking the chalkboard ledge, the concrete wall behind him, and the tile floor. The insured was taken to West Penn Hospital in Pittsburgh where he died on December 15, 1978. The cause of death was listed on the final autopsy report as left occipital skull fracture with cerebral contusions, edema and subarachnoid hemmorrhage complicated by severe coronary artery arteriosclerosis with old myocardial infarction.

II] Appellant maintains the decedent’s loss of consciousness, if it actually took place, was unexpected, unusual, and no more than a temporary disorder that had no direct effect upon the life or health of the insured. Appellant asserts even if the loss of consciousness caused the insured’s fall, the fall and its concomitant head injury and not the loss of consciousness, led to death. The insured’s physician offered proof that the accidental head injury caused a respiratory arrest which finally caused the cardiac arrest. Appellee’s physician concluded the insured’s death could well have been due to an initial cardiac arrest which caused the fall.

The lower court relied on Real Estate Trust Company v. Metropolitan Life Insurance Company, 340 Pa. 533, 17 A.2d 416 (1941) in ascertaining appellant’s burden of proof. Therein, the court, citing Lucas v. Metropolitan Life Insurance Company, 339 Pa. 277, 14 A.2d 85 (1940), held the burden is on appellant to prove not only that the loss resulted directly and solely through accidental means, but further, where the proof points to a pre-existing infirmity or abnormality which may have been a contributing factor, to produce further evidence to exclude that possibility. Id., 340 Pa. at 545, 17 A.2d at 421.

Appellant contends the trial court erred in its reliance on Real Estate Trust Company, supra. Appellant asserts the trial court should have applied the burden of proof as defined in Brenneman v. St. Paul Fire and Marine Life Insurance Company, 411 Pa. 409, 192 A.2d 745 (1963). Appellant acknowledged she still had the burden of showing that the decedent’s death was caused by accident, but once she accomplished that, the burden shifted to appellee to show that without a pre-existing illness death would not have occurred.

Under Real Estate Trust Company or Brenneman the threshold question is identical. Appellant must prove death was due solely to accidental means. Even if this Court would apply the burden of proof appellant urges, appellant has failed to meet the first part of that test.

The trial court found both parties’ expert witnesses equally plausible and concluded appellant failed to prove her husband died accidentally. Nor did she exclude the possibility that death resulted from a pre-existing infirmity.

It is well-established that findings of fact of a trial judge, sitting without a jury, if approved by the court en banc, have the force and effect of a jury verdict and, based upon sufficient evidence, will not be disturbed on appeal unless they are manifestly erroneous. Bachman v. Artinger, 285 Pa.Super. 57, 426 A.2d 702 (1981); Yates v. Clifford Motors, Inc., 283 Pa.Super. 293, 423 A.2d 1262 (1980). Furthermore, in reviewing the findings of the trial judge, the victorious party is entitled to have evidence viewed in a light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected, especially where the credibility of witnesses had to be weighed by the lower court. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 440 A.2d 609 (1982). This Court will not disturb the lower court’s determination as to the credibility of the parties’ physicians. We find the lower court had sufficient evidence upon which to base its findings of fact and we will not disturb those findings of fact.

Furthermore, we affirm the lower court’s reliance on Real Estate Trust Company as the case presently before us is factually distinguishable from Brenneman. The insured herein sustained a number of severe and sudden heart attacks, unlike the insured in Brenneman who suffered merely from arteriosclerosis and high blood pressure. Moreover, the instant policy has a double limitation. The exclusionary language is more specific and stronger than that found in the policy in issue in Brenneman. Lastly, Brenneman did not alter the two-fold burden of proof established in Real Estate Trust Company, as Brenneman did not refer to or imply any analogy to Real Estate Trust Company and its progeny.

Appellant further asserts appellee failed to offer any proof of the deceased’s awareness and understanding of this exclusion or limitation. Appellant relies on Hionis v. Northern Mutual Insurance Company, 230 Pa.Super. 511, 327 A.2d 363 (1974), where we held that it was the insurer’s burden to show that the insured was made aware of and understood an exclusion which the insurance company sought to enforce. Consequently, appellant claims appellee cannot rely upon the exclusion or limitation to deny coverage.

Appellant’s efforts to rely upon the above case law must fail, however, for the following reason. In Standard Venetian Blind v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), the Supreme Court held that an insured cannot avoid the application of clear and unambiguous policy limitations contained in an insurance contract by alleging an unawareness of the exclusion and its effect. This opinion was handed down ten months after the proceedings took place in the instant case.

Standard Venetian Blind enjoys retroactive application. See Tonkovic v. State Farm Mutual Automobile Insurance Company, 337 Pa.Super. 123, 486 A.2d 512 (1984); Haegele v. Pennsylvania General Ins. Co., 330 Pa.Super. 481, 479 A.2d 1005 (1984); Votedian v. General Accident Fire & Life Assurance Corp., 330 Pa.Super. 13, 478 A.2d 1324 (1984). Thus, the changed burden of proof merely requires appellee to prove that a copy of the policy was sent to the insured.

In Tonkovic, this Court reversed and remanded to the lower court for a determination as to whether the insured, the owner of the policy, in fact received a copy of the policy from the insurance company. This is unnecessary in the case presently before us as the policy was not purchased by appellant’s husband, but rather was a group policy issued to General Motors to cover its employees. Therefore, since appellant’s husband was not the owner of the policy, a determination as to whether he received a copy of the policy is irrelevant.

Order affirmed.


author: LIPEZ, Judge:

text:
    488 A.2d 344
    Irving L. MADNICK v. Eileen R. MADNICK, Individually and as Trustee for Gregg, Marc and Meredith Madnick, Appellant.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Feb. 15, 1985.

      Dona S. Kahn, Philadelphia, for appellant.
    James J. Garrity, Norristown, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   LIPEZ, Judge:

Irving Madnick filed this equity action against his former wife Eileen Madnick, seeking to have the marital residence sold under the parties’ property settlement agreement, and to have a resulting or constructive trust in 50% of the proceeds of the sale imposed for Irving’s benefit. Eileen counterclaimed for enforcement of another term of the settlement agreement, providing for Irving to pay $200 per week child support. Judge Lowe’s decree nisi granted Irving’s request, but denied Eileen’s counterclaim. After denial of Eileen’s exceptions and entry of a final decree, Eileen filed this appeal, contending that Judge Lowe erred both in granting Irving a resulting trust in 50% of the proceeds of the house, and in denying Eileen’s counterclaim for $200 support. We find that Judge Lowe’s opinion thoroughly disposes of the first issue, and there is no need for additional comment on it.

Regarding the second issue, the tenth section of the comprehensive separation agreement between Irving and Eileen provided in pertinent part:

(a) Husband agrees to pay, upon execution of this Agreement, on behalf of the children for their care, support and maintenance, the sum of $200.00 per week.
(b) Husband agrees to sign a Stipulation entering the $200.00 per week as a Court Order in the Court of Common Pleas of Philadelphia County, a true and correct copy of which is attached hereto and made Exhibit “A”.

Pursuant to paragraph (b), the $200.00 per week support was entered as a court order, but was later suspended by the court for a period, and then reinstated at a reduced rate.

Because of the suspension and reduction of the amount of court-ordered support, Eileen’s counterclaim for $200.00 per week support was based on the contractual liability created by paragraph (a) above. Eileen argued in the court below that Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), allowed enforcement of the contractual liability for support, apart from the liability created by having the stipulated support entered as a court order. Judge Lowe distinguished Brown v. Hall, supra, on the ground that in that case, the court order for support pre-dated the agreement, while here the agreement was formed before being entered as a court order, and therefore the agreement merged into the court order for support. In the identical situation in Millstein v. Millstein, 311 Pa.Super.Ct. 495, 457 A.2d 1291 (1983), this court rejected the argument that a support agreement which predates court-ordered support automatically merges into the court order. Instead, Millstein held that whether merger occurs depends on the parties’ intent, which was determined by analyzing the terms of the agreement. Id,., 311 Pa.Superior Ct. at 506-07, 457 A.2d at 1296-97.

As in Millstein, the agreement here clearly demonstrates the parties’ intent to create a contractual obligation independent of the obligation to pay court-ordered support. The two obligations were created separately in paragraphs (a) and (b) of the tenth section of the agreement, as quoted above. The statement of purpose at the beginning of the agreement explicitly provides that “it is the desire of the parties, after long and careful consideration, to amicably adjust, compromise and settle all property rights and all rights in, to or against each other’s property or estate, including property heretofore or subsequently acquired by either party, and to settle all disputes existing between them including any and all claims for Wife’s and/or Husband’s maintenance and/or support, alimony, counsel fees and costs.” The purpose of this comprehensive agreement to settle all claims clearly cannot be fulfilled if it is construed to require only court-ordered support, since the amount of court-ordered support is always subject to modification. The purpose of requiring that the contractual obligation created by paragraph (a) should also be entered as a court order is plainly not to extinguish the contractual obligation as fast as it has been created, but to provide an alternative enforcement method so long as the court-ordered support remains at the same level as the separately created contract obligation. The intent of the parties, as objectively manifested in the terms of the agreement, requires that the denial of Eileen’s counterclaim for $200.00 per week support be reversed.

Order granting plaintiff a resulting trust in 50% of the proceeds of marital residence affirmed; order denying defendant’s counterclaim for $200 per week support reversed, and case remanded for computation of arrearages.

Jurisdiction relinquished.

      . A majority of the panel in Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super.Ct. 359, 362, 474 A.2d 41, 42 (1984) distinguished Mill-stein in holding “that once a settlement agreement is incorporated into a divorce decree, either by reference or set out in full, the settlement agreement merges into the decree and should no longer be given independent effect.” Clearly this specific holding that incorporation in a divorce decree results in automatic merger cannot be interpreted to apply whenever the support agreement is incorporated in any type of court order, for then the Tokach exception would swallow the Millstein rule. Here, as in Millstein, the support agreement was entered as a court order in accordance with the requirements of the agreement, but review of the record here supports Judge Lowe’s specific finding that no evidence of record indicates that the agreement was incorporated into the parties’ divorce decree later entered in Philadelphia County. Since incorporation into a divorce decree was the specific feature used in the Tokach opinion to distinguish that case from Millstein, it follows from the Tokach opinion itself that this case, like Millstein, is distinguishable from Tokach.


author: PER CURIAM:

text:
    488 A.2d 346
    COMMONWEALTH of Pennsylvania v. Lynn WILLIAMS, a/k/a Len C. Williams, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 26, 1984.
    Filed Feb. 15, 1985.
    John R. Cook, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.
   PER CURIAM:

We remand the above-captioned appeal and direct appellant to file an amended Motion for New Trial and In Arrest of Judgment with specificity. Said amended motion to be filed, briefed and argued in such time frame as the lower court directs. Jurisdiction relinquished.


text:
    488 A.2d 346
    COMMONWEALTH of Pennsylvania, Appellee, v. Charles J. HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 2, 1984.
    Filed Feb. 15, 1985.

      Alexander H. Lindsay, Jr., Pittsburgh, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before. ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   PER CURIAM:

Following a de novo hearing on a summary appeal, appellant was found in violation of Section 4943(e) of the Motor Vehicle Code. His motions for new trial and in arrest of judgment were subsequently denied and he was sentenced to pay a fine of two hundred fifty dollars ($250.00) and costs of prosecution. In this appeal from that sentence, appellant claims that the trial court erroneously found that he was operating a triaxle truck with the lift axle up under normal load conditions in violation of the Motor Vehicle Code.

The arresting officer herein testified that the truck in question was loaded to approximately a foot from the top in the center, and the front and back of the load came to approximately three feet from the top. The officer issued the citation after observing the triaxle dump truck, which was hauling shavings from a steel lathe, operating with its lift axle up for approximately one mile. The officer further testified that the maximum gross weight permitted was 73,280 pounds, but that he did not weigh the truck as it was obvious that the vehicle was not overweight. However, he later stated that in his opinion the truck was loaded by volume in excess of two-thirds of the permissible gross weight of the truck, two-thirds being a normal pay load.

Appellant entered into evidence the scale ticket for the loaded truck which indicated that the gross weight was 45,480 pounds, and the tare ticket indicating the empty weight of the truck was 34,220 pounds. It was therefore obvious that the load being carried by the truck weighed 11,260 pounds, well under the two-thirds threshhold for determining a normal pay load. Both appellant and his expert witness testified that the load was not heavy enough to drive the truck safely with the lift axle in contact with the road surface. Appellant’s expert also stated that the load carried herein was not a normal load by weight for a triaxle truck.

Section 4943 of the Motor Vehicle Code is entitled “maximum axle weight of vehicles,” and provides in subsection (e)(1) that:

[e]xcept when necessary for turning, a truck that is operating under normal load conditions, the life [sic] axle shall be in full contact with the highway under full pressure.
75 Pa.C.S.A. § 4943(e)(1).

Subsections (a) through (c) of section 4943 make specific references to weight. Although subsection (e) does not include the specific term “weight”, we find that the phrase “normal load conditions” must be read in terms of weight and not volume. Any other interpretation of this statutory language would be unreasonable. In light of the undisputed evidence presented at the de novo hearing as to the weight of the load herein, we find that the trial court abused its discretion in finding that the triaxle truck was operating under normal load conditions.

Judgment of sentence reversed and conviction vacated.


author: JOHNSON, Judge: HOFFMAN, Judge,

text:
    488 A.2d 348
    COMMONWEALTH of Pennsylvania v. Alex SHERMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 31, 1984.
    Decided Feb. 1, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

On April 3, 1981, while standing on the corner of 52nd and Woodland Streets in Philadelphia, Stanley Williams was shot in the abdomen in an unprovoked attack. Even after the victim fell to the ground wounded, his assailant continued to fire at him, but fortunately missing, as the victim crawled away. Following the attack, the victim was taken to Misc.icordia Hospital. There, although in critical condition, the victim gave a statement identifying his attacker as appellant, Alex Sherman, a man from the same neighborhood as the victim.

Williams survived the shooting and testified against appellant at the preliminary hearing, identifying appellant as the man who shot him. However, prior to the trial, Williams received several threats against his life, and, apparently because of these threats, Williams declined to positively identify appellant at trial. Whereupon, the Commonwealth introduced evidence of Williams’ testimony taken at the preliminary hearing along with similar statements made by the victim while in the hospital, and later to the district attorney just prior to trial.

Appellant now argues that the trial court erred in admitting as substantive evidence the victim’s three pre-trial statements identifying appellant as the assailant. It is appellant’s assertion that this was an improper use of a witness’ prior inconsistent statements. We reject appellant’s characterization of the victim’s trial testimony as being inconsistent with that witness’ prior statements.

At the preliminary hearing, Williams positively identified appellant as the assailant and was able to describe the gun used in the shooting. Also, when asked by defense counsel on cross-examination whether “there was anyone else there” when he was shot, Williams replied that there was another person present. However, when Williams was asked to identify this other person, the Commonwealth objected and, for reasons not apparent from the record, this objection was sustained.

Subsequently, when Williams took the stand at trial, he testified to many of the same facts that he had at the preliminary hearing. Specifically, Williams reiterated the date and place of the shooting and the fact of his seeing appellant standing two feet away from him just before the shooting. However, when Williams was asked to tell who shot him, Williams asserted that he did not recall, that he did not remember seeing the gun, and that there was another, unidentified man standing next to appellant at that time. To quote from Williams’ testimony on direct examination, Williams stated:

Q. (District Attorney): Okay. And who shot you?
A. (Williams): All I seen was Alex standing there, that’s all I can say.
Q. Did you see him with a gun?
A. I can’t recall.
Q. You can’t recall. Now, Alex was the only person standing there, is that right?
A. Plus there was another dude on the side. (N.T. November 9, 1981 at 53.)
Q. And I asked you whether or not you saw Alex with a gun, and I believe your answer was you don’t recall?
A. No. I don’t recall.
Q. Did you see the other man with any weapons?
A. I didn’t see neither one of them with nothing. But, I know they was the only two that was there. (N.T. at 55)
Q. Where did you see [the gun]?
A. The first thing when I turned around I could see a gun flash. That’s whoever it was that shot me. And that’s all I remember.
Q. Who was right next to you at that time?
A. There was two people in front of me. Alex and somebody else.
Q. And you were looking right at them?
A. And I was looking right at a gun barrel. (N.T. at 65)
Q. By the way, before I get into the notes [of the preliminary hearing] themselves, do you remember from that hearing who you told the judge shot you?
A. No, I don’t. (N.T. at 71)

On the basis of this testimony, the Commonwealth now argues that the introduction of Williams’ preliminary hearing testimony at trial was allowable under an exception to the hearsay rule where a witness is unavailable due to a lapse of memory. We find the Commonwealth’s position to be sound.

In Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979), the supreme court was faced with a comparable issue. There, at the defendant’s first trial, one Edward Mathis, a witness for the prosecution, gave testimony implicating the defendant. At the second trial, Mathis denied being able to recall many of the events surrounding the crimes at issue. The trial court ruled that Mathis’ recollections were so general in nature, owing to the witness’ memory loss, that the witness was “unavailable” to the prosecution, and thus the witness’ testimony from the prior trial could be introduced. On appeal the supreme court affirmed the trial court’s ruling on the grounds that prior testimony may be admitted under an exception to the hearsay rule where a witness is unavailable due to a lack of memory. On this point, the court said:

The narrower issue in this case is whether what appears to be the witness’ partial lack of memory renders him unavailable for purposes of the common law excéption. Although there is authority to the contrary, the better view seems to be that partial memory loss also renders the witness unavailable and the prior testimony as well as the present testimony is admissible____ This approach has the value of fairness to both parties in that necessary testimony is admitted, with the opponent being permitted to cross-examine the witness both as to his asserted lack of memory as well as to his present testimony.

484 Pa. at 38, 398 A.2d at 649 (footnote omitted) (emphasis added).

We find that the previously quoted passages from Williams’ testimony indicate that the witness on direct examination was repeatedly asserting that he could not recall who shot him. We find this sufficient under Graves to allow for the introduction of this witness’ prior testimony.

We might further add that our view of this appeal is not changed by Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982), cited by appellant. Waller proscribes only the use of prior inconsistent statements. In Waller, the witness did not assert a loss of memory; rather, the witness related a different version than he had previously of the events surrounding the crime at issue. We find the instant case to be readily distinguishable from Waller since the witness herein does assert a loss of memory and does not directly contradict the essentials of his previous testimony.

As for the evidence regarding the statements which the victim gave to police while he was in the hospital and later to the district attorney in the corridors of the courthouse, we similarly do not view these statements as being inconsistent with the victim’s trial testimony. It is true, however, that Commonwealth v. Graves, supra, does not apply to these latter statements, since Graves pertains only to prior testimony in court. Additionally, we must reject the Commonwealth’s assertions that these latter two statements are admissible under exceptions to the hearsay rule for prior statements of identification, past recollection recorded, or dying declarations. Nonetheless, we do not see the admission of these statements as warranting a reversal since in material part they merely reiterate the essentials of the victim’s preliminary hearing identification testimony, which we find to be properly admitted. As the supreme court has said on this point: “An error [in admitting evidence] which, viewed by itself, is not minimal, may nonetheless be harmless if properly admitted evidence is substantially similar to the erroneously admitted evidence.” Commonwealth v. Story, 476 Pa. 391, 411, 383 A.2d 155, 165 (1978) (footnote omitted).

In the instant case, all of the challenged statements were the same in that they specifically identified appellant as the assailant. Thus, the victim’s hospital statement and his statement to the district attorney prior to the trial are merely cumulative of the victim’s preliminary hearing identification testimony. We thus find no reversible error in the admission of these statements.

Appellant also argues that the evidence was insufficient to convict him because the victim did not make a positive identification of appellant at trial and that the only evidence linking appellant to the crime was the victim’s allegedly improperly admitted pre-trial statements. It is a well-settled rule of law that an appellate court will not judge the sufficiency of the evidence on a diminished record; rather, all evidence actually received at trial is considered, whether the trial rulings thereon were right or wrong. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982). Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978); Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976). Accordingly, all of the victim’s statements are to be considered along with the remainder of the evidence at trial. Since the victim positively identified appellant as the assailant, we find the evidence to be sufficient to sustain the verdicts.

Perhaps the issue presented in this appeal was best summed up by the trial court when it stated in its opinion:

Phrased more bluntly, under the law of the Commonwealth today, may prior statements with an indicia of reliability be introduced in a case, or is it still profitable to scare a witness out of testifying?

In our view, the answer to this question must be “no”. Accordingly, we affirm appellant’s conviction.

Affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

The majority holds that Williams’s preliminary hearing testimony is admissible as substantive evidence. Because I disagree, I must respectfully dissent.

Appellant challenges his conviction, by alleging trial court error in admitting Williams’s prior inconsistent statements as substantive evidence. The majority finds first that the prior statements were not inconsistent. I cannot agree. In his preliminary hearing testimony and hospital statements, Williams positively identified appellant as his assailant; however, at trial, he testified that he did not know whether appellant or his companion had fired the shots. (N.T. November 9, 1981 at 66, 83). Clearly, these statements are not consistent. Furthermore, at trial, Williams’s prior statements were specifically admitted under the authority of Commonwealth v. Loar, 264 Pa.Superior Ct. 398, 411-13, 399 A.2d 1110, 1117-18 (1979) (witness’s prior inconsistent statements may be admitted as substantive evidence). The trial court’s reliance upon Loar formed the basis of this appeal because our Supreme Court subsequently rejected the Loar rationale in Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982), and reaffirmed the traditional rule that prior inconsistent statements may only be admitted for the purposes of impeachment and may not be used as substantive evidence. See also Commonwealth v. French, 501 Pa. 134, 460 A.2d 725 (1983). Subsequent decisions by this Court have adhered to the Waller rule. See, e.g., Commonwealth v. Matthews, 314 Pa.Superior Ct. 38, 460 A.2d 362 (1983); Commonwealth v. Thirkield, 311 Pa.Superior Ct. 413, 457 A.2d 954 (1983). I would hold, therefore, that Williams’s prior inconsistent statements were improperly admitted as substantive evidence in the instant case.

The majority, however, also finds that Williams’s preliminary hearing testimony was admissible under the hearsay exception for prior testimony of an unavailable witness. A witness’ prior recorded testimony from a preliminary hearing is admissible provided that the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. Commonwealth v. Sandutch, 498 Pa. 536, 449 A.2d 566 (1982); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980). A witness may be deemed unavailable due to a partial or total memory loss. Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979) (partial memory’loss); Commonwealth v. Von Smith, 303 Pa.Superior Ct. 534, 539-540, 450 A.2d 55, 58 (1982) (total memory loss). In the instant case, however, I find that the Commonwealth failed to show that Williams suffered from any memory loss. At trial, Williams testified in considerable detail regarding the events of April 3, 1981. Although he stated that he could not recall whether appellant had a gun, N.T. November 9, 1981 at 53, 55, his subsequent testimony, rather than indicating a loss of memory, demonstrated that he never knew whether appellant had a gun. (Id. at 55, 65-66, 83, 155). Williams further explained that, while he had previously assumed that appellant had shot him, upon reflection he could not be sure that appellant, rather than his companion, had fired the shots. (Id. at 63, 83, 127, 146, 153). I am therefore unable to agree with the majority’s characterization of Williams’s testimony as indicating that he was unable to recall who shot him. Accordingly, I would not admit the prior testimony under the unavailable witness exception.

I do agree with the majority, however, that Williams’s prior statements are also inadmissible under the hearsay exceptions for a prior statement of identification, see Com monwealth v. Floyd, 327 Pa.Superior Ct. 569, 476 A.2d 414 (1984), past recollection recorded, see Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979), or a dying declaration, see Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978).

Accordingly, because I find no valid basis for admitting Williams’s prior statements, I would reverse the judgment of sentence and remand for a new trial.


text:
    488 A.2d 353
    COATESVILLE CONTRACTORS & ENGINEERS, INC., Appellants, v. BOROUGH OF RIDLEY PARK and H. Gilroy Damon Associates, Inc. and John P. Damon, Individually.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed Dec. 5, 1984.
    Petition for Allowance of Appeal Granted June 26, 1985.

      Eugene F. Jarrell, III, Media, for appellants.
    Thomas L. Kelly, Media, for appellees.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a lower court’s order dismissing both a motion to remove a compulsory non-suit and a motion for a new trial.

Appellants contend that the trial judge erred in granting appellee’s motion for compulsory non-suit. Appellants claim that they produced sufficient evidence at trial to invalidate exculpatory language in the contract, thereby overcoming the appellee’s motion for compulsory non-suit.

In reviewing the grant of a compulsory non-suit, the appellant must be given the benefit of every fact and reasonable inference arising from the evidence and all conflicts must be resolved in the appellant’s favor. McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 719 (1982). The testimony from below, read in the light most favorable to the appellant reveals the following.

In the Summer of 1977, the appellee, Borough of Ridley Park (“Ridley Park”), advertised for bids from contractors for the excavation of Ridley Park Lake. Bid documents were made available to potential bidders. These documents included Specifications for Removal of Silt and Debris from Ridley Park Lake. (R. 234a). A clause contained in these specifications stated:

The lake has been drained and shall remain in the draw-down condition until all silt debris removal work has been completed. The contractor shall remove silt and debris from areas as herein and shown on the plan.

Prior to bidding on the job, John Fallon, operating engineer for the appellants Coatesville Contractors and Engineers, Inc. (“Coatesville”), read all the bid documents and made an independent site inspection. (R. 51a, 52a). In the fall of 1977, Ridley Park awarded the job to Coatesville. The bid documents were incorporated into the final contract between the parties. See Appendix I. Testimony further revealed that at no time did Mr. Fallon or any other Coatesville official ever inquire as to what the phrase “drawdown” condition meant or how Ridley Park intended to keep the lake in such a condition. (R. 108a, 109a, 117a). In November of 1977, Mr. Fallon made a second site inspection. He testified at trial that on both occasions he found the site to consist of a lake bed with a small stream running through it. (R. 52a-58a).

In March of 1978, Ridley Park noticed Coatesville to commence work. Mr. Fallon and Mr. Reid, a Coatesville on-site supervisor, both testified that when Coatesville arrived at the site, the lake was full of water. (R. 63a, 177a, 178a). The situation was brought to the attention of Mr. Damon, engineer for the Borough. (R. 63a). Yet despite the condition of the lake, Coatesville commenced work on the project and in fact completed 85% of the job by May of 1978. In August of 1978 Coatesville left the work site over a dispute whether the job had been completed to specifications. After negotiations, Coatesville returned to the site in 1979, completed certain work and received final payment on the contract.

Coatesville later brought an action against Ridley Park seeking to recover additional compensation over and above the contract price which it alleged was caused by Ridley Park’s failure to keep the lake in a “drawdown” condition. At trial, Mr. Fallon testified that he read and understood the bid documents including the following exculpatory provisions:

Article II, Paragraph 3.
The contractor shall not be entitled to demand or receive payments for any work as extra work, unless ordered in writing by the committee to do the same as such, and at a price fixed by them previous to its commencement. Article III, Paragraph 2.
The contractor agrees that he has satisfied himself by his own investigation and research regarding all of the conditions affecting the work to be done and labor and material needed, and that his conclusion to execute this contract is based on such investigation and research, and not on the estimate of the quantities or other information prepared by the engineer and that he will make no claim against the municipality because of any of the estimate tests or representations of any kind affecting the work made by any agent of the municipality may prove to be in any respect erroneous.
Article TV, Paragraph 2.
The contractor shall not be entitled to any claims for damages from any hinderance or delay from any cause whatever in the progress of the work, or any portion thereof, but when such hinderance or delay results from causes entirely beyond the control of the contractor, said hinderance or delay, excepting such as may from time to time result from ordinary and not unusual weather conditions for the season of the year when he is at work may entitle the contractor to such an extension of time for completing the contract as may be determined by the committee, provided the contractor shall have given notice in writing of the cause of detention.
Article V, Paragraph 4
All loss or damages arising out of the nature of the work to be done under the contract, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from encumbrances on the line of work, shall be sustained by the contractor.

R. 122a, 123a, 126a.

Following Coatesville’s presentation of its case, the trial court granted Ridley Park’s motion for compulsory non-suit. This appeal followed the lower court’s refusal to remove the compulsory non-suit.

Appellants contend that the compulsory non-suit should not have been granted because sufficient evidence had been presented at trial to overcome the exculpatory contractual language which the lower court claimed barred Coatesville’s recovery. The law regarding compulsory non-suits is clear. A compulsory non-suit is warranted only in clear cases where the facts and circumstances have as the only conclusion the absence of liability. McNally v. Lie bowitz, supra. Similarly, a non-suit is proper when facts constituting an affirmative defense are so established by uncontradicted testimony in the plaintiffs case that any reasonable possibility of an inference to the contrary is excluded. Plummer v. Wesner, 217 Pa.Super. 24, 268 A.2d 144, 145 (1970). Therefore, in the instant case, Coatesville must have shown by a preponderance of the evidence that it was not bound by the contract’s exculpatory language. Because if, as a matter of law, there was insufficient evidence to prove this, then Coatesville was bound by the contractual language and the non-suit was properly granted.

Pennsylvania courts have frequently held that exculpatory provisions will not work as a defense where there has been an affirmative or positive interference by a party or a failure to act in some essential matter necessary to the prosecution of the work. Gasparini Excavating Co. v. Pa. Turnpike Commission, 409 Pa. 465, 187 A.2d 157 (1963), Commonwealth Department of Highways v. S.J. Grover and Sons Co., 20 Pa.Cmwlth. 526, 343 A.2d 72 (1975). Appellants contend that Ridley Park affirmatively interfered with the prosecution of its work by ordering them to commence work while the lake was not in a “drawdown” condition and by not discovering what was causing the lake to retain the water. Appellants, further contend that Ridley Park failed to act in some essential matter necessary for the prosecution of the work by not putting the lake in a “drawdown” condition as required in the bid specifications. This Court concludes that the testimony from the proceedings below supports neither of appellants’ contentions.

We agree with the lower court’s conclusion that Coatesville offered insufficient evidence to support its claim that Ridley Park affirmatively interfered with its efforts to complete the excavation work. Neither Mr. Fallon nor Mr. Reid testified that anyone associated with Ridley Park took any steps to interfere with Coatesville’s work. In fact Mr. Fallon testified that he “never came up and said that the Borough of Ridley Park is not holding up their end of the contract by getting the water out of the lake____” (R. 74a). Moreover, although evidence was presented that borough personnel worked on the lake’s drainage valve, this activity was never characterized by Coatesville as any type of interference with their work. Coatesville cites the Gasparini case in support of its claim that Ridley Park interfered with its work efforts. This case is inapposite. In Gasparini, the plaintiff was physically denied access to the work area. In the case at bar, there was no such denial as is evidenced by testimony that (1) Coatesville immediately began work even though the work site was covered by water; and (2) after two months the project was 85% completed.

We turn now to Coatesville’s claim that Ridley Park failed to perform an essential matter under the contract by not keeping the lake in the “drawdown” condition. Here again we agree with the lower court’s determination that Coatesville did not present sufficient evidence on this point. At trial Mr. Fallon testified that he read and understood both the “drawdown” provision and the exculpatory provisions contained in the bid documents. (R. 122a, 123a, 126a). In addition, no evidence was presented that Coatesville ever challenged any of these contractual provisions either at the time of bidding or when Coatesville arrived at the work site in March of 1978. Finally, Coatesville never utilized the contract’s protective provision. This provision, namely Article IV, paragraph 2 (supra) allowed a contractor to submit written notice of any work delay or hindrance to a committee for resolution. Evidence from the proceeding below reveals that this was never done. Instead Coatesville elected to proceed with the job at its own risk.

Since Coatesville failed at trial to prove either an affirmative interference or a failure to act on an essential matter, the contract’s exculpatory language was not invalidated. We therefore conclude that the lower court properly denied appellants’ motion for removal of the compulsory non-suit. Accordingly, the order of the lower court is affirmed.

Order affirmed.

APPENDIX I

FORM OF PROPOSAL for

REMOVAL OF SILT AND DEBRIS from

RIDLEY PARX LAKE BOROUGH OF RIDLEY PARK Del. Co., Pa.

H. Gilroy Damon Associates, Inc. Civil Engineers Sharon Kill, Pa.

September 1977

INFORMATION TO 3IDDERS

Sealed bids will be received 'ey the Members of Council for the Borough of Ridley Park, Delaware County, Pa., until 7:30 p.m. (¿astern Daylight Saving Time), Tuesday, September 27, 1977, when Council will convene in regular session in the Council Chamber of the Borough Hall, Ward and Cresswell Streets, Ridley Park, Pa., and all bids received will be publicly opened and read aloud for the following

Removal of Silt and Debris (all unclassified) from Ridley Park Lake and Settling Basin.

A certified check or bid bond in the amount of ten percent (102) of the total bid price, payable to the Borough of Ridley Park, must accompany each Proposal.

Each bid must be enclosed In a sealed envelope and addressed fcc Ridley Park 3orough Council, in care of Mrs. Joanne B. Miles, Secretary, Borough Hall, Ridley Park, Pa. 19078, and write in the lower left hand comer on face of sealed envelope "Proposal for Removal of Silt and Debris from Bldley Park Lake and Settling Basin."

Plans, specifications and bidding forms are on file ar.d may be obtained at the office of H. Gilroy Damon Associates, Inc., Civil Engineers, Chester Pike and High Street, Sharon Hill, Pa.

The successful bidder will be required to furnish bonds for material and labor, and satisfactory completion, as well as insurance certificates, and enter into a Contract acceptable to the Borough Solicitor.

Borough Council for the Borough of Ridley Park reserves the right to hold all bids for a period of 90 days before awarding the Contract.

Borough Council for the Borough of Ridley Park reserves the right to accept any bid, or parts thereof, and to reject either the whole or part of'any bid, or to rejecc all bids, and to waive any informalities in the bidding as they deem for the best interest of the Borough.

BY ORDER OP BOROUGH COUNCIL

(Mrs.) JOANNE 3.'MILES. Secretary Ridley Park Borough Council

FORM OF PROPOSAL for

REMOVING SILT AND DEBRIS from

RIDLEY PARK LAKE BOROUGH OF RIDLEY PARK Del. Co., Pa.

To The President and Members of Council Borough of Ridley Park Borough Hall

Ward and Cresswell Streets Ridley Park, Pa. 19078

Gentlemen:

The undersigned (hereinafter called The Bidder) hereby proposes to furnish all labor, tools and equipment as required to remove silt and debris (approximately 17,000 cu. yds. all unclassified) from Ridley Park Lake, Settling Basin, and the portion of Little Crum Creek which connects the Settling Basin with the Lake, and dispose of said silt and debris all in strict accordance with the plans, specifications, Borough Ordinances and requirements of The Departments of The Commonwealth of Pennsylvania relating thereto, for the lump sum price of:-

Price In Figures , Price In Writing

( /Zj? _) t ¿-J //'■ — ,.//■ ¿ ¡Complete The Bidder agrees within five (5) days after^notiee In writing of the acceptance by The Borough of Ridley Park of this Proposal, either In whole or In part, to enter Into a Contract In writing for so ;such of said work as may be awarded to him, In such form as may be approved by the Solicitor of the said Borough, anii to execute a bond equal to one hundred percent (1001) of the Contract price with such surety or sureties as shall be approved by the Members of Council for said Borough, conditioned for the faithful performance of said Contract, for the completion of the work there-

in mentioned with the said plan and specifications and to the satisfaction of Borough Council within sixty (60) weather working days from the date of execution of Contract Agreement, for the payment of all monies due for labor and materials furnished In the construction of said work and for indemnifying The Borough against all loss, damage, costs, charges (including counsel fees) sustained or incurred by the said Borough for or by reason of any act, neglect or default on the part of the said Bidder.

ENVIRONMENTAL PROTECTION

It will be the Contractor's responsibility to conform to tha requirements of The Department of Environmental Resources as follows:

1. Reduce by the greatest extent practicable, the area and duration of exposure of readily erodible soils.

2. Protect the soils by use of temporary vegetation or seeding and mulch, or by accelerating the establishment of permanent vegetation. Complete and protect segments of work as rapidly as is consistent with construction schedules.

3. Retard the rate of runoff from the construction site and control disposal of runoff.

Trap sediment resulting from construction in temporary or permanent silt holding basins. This includes pump discharges resulting from dewatering operations.

5. Sprinkle or apply dust suppressors or otherwise keep dust within tolerable limits on haul roads and at the situ•

6. Use temporary bridges or culverts where fording of streams is objectionable. Borrow areas should be a location where pollution from the operation can be minimized. Locations should be avoided where pollution would be inevitable.

7. Should construction operations be suspended for any appreciable length of time, temporary measures for the control of erosion must be utilized.

8. Provision be made for protection against discharges of pollutants such as chemicals, fuel, lubricants, sewage, etc., into the stream.

9. All operations shall be conducted in such a manner to minimize turbidity in the stream at and below the site of the structure. Permittee shall meet the requirements on turbidity as established by The Department of Environmental Resources.

10. The Contractor shall, at all times, keep the premises free from accumulation of waste material or rubbish caused by his employees or work.

Before the work will be considered as having been completed, the Contractor shall clean and remove from the project and adjacent property, all surplus and discarded material, equipment and temporary structures and shall leave the project "Broom Clean."

1/30/74

GENERAL CONDITIONS fog MPNICIPAL IMPROVEMENTS

I. Definitions

1. "Contract" shall mean the entire agreement between the parties, including the General Provisions, the specifications. Contractor's accepted proposal, the Advertisement of the Information for Bidders, copies of which are bound herewith, and the Contract Drawings, all of which are hereby ' made a part hereof as though herein set forth in full.

2. "Work" shall mean all plant, labor, materials and other facilities, and all other things necessary or proper for or incidental to the construction of the work as covered by the Contract Drawings and various items of the Contract.

3. "Extra Work" shall mean work required by the municipality in addition to that required by the Contract Drawings in their present form.

4. "Plans or Drawings" shall mean the Contract Drawings listed in-the Proposal of the Specifications.

5. "Municipality" shall mean the City, Borough or Township, S3 the case may be.

6. "Committee" shall t:ean the Sewer or Highway Committee of tíie Municipal i ty.

7. "Engineer" shall mean H. Gilroy Damon Associates.- Inc., Chester Pike and High Street, Sharon Hill, Pennsylvania.

8. "Inspector" shall mean any representative of the Municipality or Engineer especially designated by it, or them, to act zs Inspector, acting within the particular authority vested in him. The decision of any inspector, however, is reviewable by the Engineer.

9. "Contractor" shall mean the Bidder who has signed the original contract, or his sureties.

10. "A.S.T.M." shall mean American Society for Testing Materials.

II. Payments

1. Payments on work shall be made to the Contractor in monthly installments of eighty (80) per cent of the amount of the work executed during the preceding month under and in accordance with the provisions and stipulations of the contract, which will be certified by the Engineer. The current monthly estimates and payments shall not bind the municipality to the acceptance of any materials furnished or work done.

2. Find and full payment of the balance due to the Contractor for work, after all legal and equitable deductions, will be made upon acceptance and approval of the municipality, one month after the date of completion, provided the whole work, and each of its parts be in perfect order.

3. The Contractor shall not be entitled to demand or receive payments for any work as extra work, unless ordered in writing by the committee to do the same as such, and at a price fixed by them previously to its commencement.

4. The Contractor must preserve all stakes, bench marks, etc., made or established on the line of the work, until authorised to remove the same. All lines, gradea and certificates to be furnished the Contractor by the Engineer.

III. Flans and Specifications

1. These specifications and the accompanying plans are intended to require and include all work and material necessary and proper for the work contemplated. In case, by inadvertence or otherwise, the plans or specifications omit to require some work or material recessary for that purpose, the Contractor shall, neverthelesa, be required to provide the sane so that the work may be complete according to the true intent and purpose of the plans and specifications.

2.) The Contractor agrees that he has satisfied himself by his own investigation and research regarding all the conditions affecting the work to be done and labor and material needed, and that his conclusion to execute this contract is based on such investigation and research, and not on the estimate of the quantities or other information prepared by the Engineer, and that he will make no claim against the municipality because any of the estimates, tests or representations of any kind affecting the work made by any agent of the municipality may prove to be in any respect erroneous.

3» Copies of the plans and specifications shaJl at all times be kept on file by the Contractor at readily accessible points along t?.e line of the work.____■______________

No deviation from the approved plans or specifications J vil* he allowed unless by a written direction from the Committee, j

TV, F'rcqress and Conduct of Work

1. The Contractor shall begin work within five (5) days from the date of the notice to that effect by the Committee, and he shall complete all worxs under this c-mcraet within the time specified in the proposal, which shall be reckoned from the date of the said

2. The Contractor shall not be entitled to any claims for damages frem any hindrance or delay from any cause whatever in the progrees of the work, or any portion thereof, but when such hindrance or delay results from causes entirely beyond the control of the Contractor, said hindrance or delay, excepting such as may from time to time result from ordinary and not unusual weather conditions for the season of the year when he is at work, may entitle the Contractor to such an extension of time for completing the contract as may be determined by the Committee, provided the Contractor shall have given notice in writing of the cause of the detention.

3. The sum of twenty-five dollars ($25.00) per day for each day that any work shall remain uncompleted after the time specified in the contract for its completion shall be deducted from the amounts due said Contractor, not as a penalty but as just and liquidated damages•

A working weather day shall be a day in which no rain nor snow shall fall, that the temperature shall be above thirty-two (32) degrees-F. for at least fifty per cent (504) of the time provided, however, if the Contractor shall actually work for six (6) hours, it shall bs considered a working weather day.

4. Should the Contractor neglect or abandon the work, or if at any time the Engineer be convinced that the work is unreasonably delayed, or that the conditions of the contract are being wilfully violated, or executed carelessly or in bad faith, he may notify the ."•ontractor in writing, and if his notification be without effect within twenty-four (24) hours after the delivery thereof, then and in that case the Contractor shall discontinue all work under the contract and the Committee shall have full authority and power immediately to purchase and hire materials, tools, labor and machinery for the completion of the contract at the expense of the Contractor or his sureties or both; or the said contract may be declared null and void, and the security bond and the retained percentage'and the materials built into the work and the materials delivered shall then become the property of the municipality.

Generally, all materials excavated or removed from within she required limits of the excavation shall be considered the property of the municipality and all materials not required for refilling placed in such place or places in the municipality as may >e designated by the Committee. The materials removed shall be used Ter the better construction, support, and protection of the work when

•• Eke municipaltiy reserves the right to increase or diminish he gross length of the work. No allowances -will be made in case of aerease for any sum above prices bid, nor in case of decrease for ny real or supposed damage or loss of profit occasioned by such iminution. The time stipulated for the completion of the work may ^ proportionately increased or diminished.

. If any dispute or difference shall arise as to the ffi.ciency of labor, or quality of materials employed, or as to tha roper execution of the work, they shall be settled by the Committee hose decision shall be final and conclusive.

8. The Contractor shall give his personal attention constantly to the faithful prosecution of the work, shall keep the same under his personal control, and shall not assign by power of attorney or otherwise, or sublet the work or any part thereof without the previous written consent of the municipality. He shall state to the Engineer in writing the name of any subcontractor he intends to employ, the portion of the work which he is to do or the material which he is to furnish, his place of business and such other information as the municipality may require in order to know whether such subcontractor is reputable and reliable, and able to perform the work or to furnish the material as called for in these specifications. He shall not, either legally or equitably, assign any of the moneys payable under this agreement or his claim thereto unless by and with the like consent of the municipality.

9, Any materials condemned or rejected by the Engineer as not conforming to these specifications shall be removed from the work.

10. Any defective work or material that may be discovered by the Engineer before the final acceptance of the work or before final payment has been made shall be removed and replaced by work and material which shall conform to the spirit of the specifications. Failure or neglect on the part of the Engineer to condemn or reject inferior work or materials shall not be construed to imply acceptance of such work or materials.

11. Should it be deemed advisable by the Committee, the Contractor shall furnish all tools, labor and materials necessary to make an examination of any work completed or in progress under these specifications. Should such work be found defective, the cost of making such examination and of satisfactory reconstruction shall be borne by the Contractor. Should the work be found to be satisfactory, the cost of the examination will be paid by the municipality.

12. , The Contractor shall give his personal supervision to the faithful prosecution of the work and in ease of his absence, he shall have a competent representative or foreman on the work who shall follow without delay all instructions of the Engineer or his assistants in the prosecution and completion of the work and every part thereof, and who shall have full authority to supply men, material and labor immediately.

13. The Contractor shall employ only competent, skilful men to do the work, and whenever the Engineer shall notify the Contractor in writing that, in his opinion, any man on the work is incompetent, impertinent, disobedient, unfaithful, disorderly or otherwise unsatisfactory, such man shall be discharged from the work and shall not again be employed on it except with the consent of the Engineer.

14. The work is to be prosecuted in such manner, and from as many different points, at such times, in such parts, and with such force as the Committee from time to time during the progress of the work may determine.

No tunnelling will be allowed except by written consent and in accordance with the directions of the Engineer.

15. The Contractor shall execute his work in the presence of an inspector furnished by the Engineer, during the working hours of the day, unless specially directed otherwise.

V. Legal Relations and Contractor's Miscellaneous Responsibilities.

1. The Contractor shall have and maintain at all times during the progress of the ’-fork a sufficient amount of Workmen's Compensation Insurance to meet any possible claims of his employees and shall furnish the municipality, previous to starting construction, a certificate from the insurance company showing that he carries such insurance, it being understood and agreed that the Contractor shall also be solely responsible for all such claims. The Contractor shall also furnish the municipality, previous to starting construction, a certificate from the insurance cor^pany showing that he is fully protected by public liability insurance.

2. In the prosecution of all parts of this work from its commencement until its completion and final acceptance by the municipality and including any portions done under force account, or as extra work, the Contractor shall take such precautions as may be necessary to guard all public and private property and all persons from injury, and he shall indemnify and save harmless the municipality and all of its officers, agents and employees against all suits, claims and actions of every name and description, brought against them, and all costs and damages to which the municipality may be put on account, or by reason of any injury or alleged injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the work, or from any improper materials used, or by or on account of any act or omission of the Contractor, or his agents, or employees. The whole or so much of the moneys due to the Contractor under this contract as shall be or may be considered necessary by the municipality shall and may be retained by the municipality until all of the aforesaid suits and claims for damages shall have been settled and evidence to that effect furnished to the satisfaction of the municipality.

3. During the performance of this work the Contractor shall place proper barriers and guards upon and around the work for the prevention of accidents, and at night shall put up and maintain suitable and sufficient lights. The cost of said guarding and protection i,s to be included in the price bid upon the other items of the work.

I*''' All loss or damages arising out of the nature of the work to be done under the contract, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances on the line of the work, shall be sustained by the Contractor.

5. In all the operations connected with the work herein specified all state laws and local by-laws or ordinances controlling or limiting in any way the actions of those engaged in the work, or affecting the method of doing the work or materials applied to it, must be respected and strictly complied with.

The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the proper and lawful prosecution of the work.

6. All fees or royalties for any patented invention, article or arrangement in any manner connected with the work, or with these specifications, shall be included in the price stated in the proposal, and the contractor shall protect and hold the municipality harmless against any and all demands or claims for such fees or royalties, whether such demands or claims are filed during the life of this contract or after its completion.

7. The Contractor shall make suitable and adequate provision for the safe and free passage of persons and vehicles by, over or under, the work while it is in progress.

8. Should public travel be wholly obstructed at any point, the Contractor shall place plain and properly worded signs at the nearest cross streets or wherever the public can pass around the obstruction by the shortest and easiest route.

9. The municipality reserves the right to let other contracts in connection with this work. The Contractor shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work: He shall properly connect and coordinate his work with theirs, and shall so conduct his work as not to interfere with any other work which the municipality 'may carry on by their own forces or by contract on the site.

10. The Contractor hereby further agrees that all the work built by him under this contract shall be kept in good and satisfactory condition for the period of one year after the completion of the work to be done under this contract.

11. Should any defects in the work or structures become evident before the expiration of the above guarantee, the Contractor shall within five (5) days from the date of the receiving of personal notice or the mailing of a notice by the Engineer to the Contractor proceed to remedy such defects of whatever nature or extent or whenever and wherever found in a proper manner and to the satisfaction of the Engineer and at the expense of the Contractor to begin such repairs within the five (5) days above noted, the municipality shall have the right to make such repairs and the cost thereof shall be paid by the Contractor, and it is expressly agreed by and between the Contractor and the municipality that the surety bond attached to and made a part of this contract shall be in full force until the expiration of one (1) year from the date of the payment of the final amount due the •Contractor for work done and materials furnished under this contract.

' VI.» Restorations

1. After the completion of the work the sewers, manholes, inlets, streets, curbs and sidewalks, bridges and all places affected by the work, both public and private, are to be thoroughly cleared and left clean, free and in good order and fit for travel.

2. All classes of curb, 3idewalk, drives, street pavement, lawn areas and all works of drainage or other structures met with in prosecution of the work shall be restored and made good, or taken down and rebuilt to the extent made necessary by the new work, the same must be restored by the Contractor in strict accordance with the specification or with the municipality regulations, at the Contractor's expense.

3. Ths Contractor shall meet all requirements of railroad companies and state highway departments wherever the work crosses or is adjacent to their rights-of-way.

4. Should the work lead through private properties, the municipality will pay the compensation for rights-of-way but no other damage.

SPECIFICATION'S for REMOVAL OF SILT AND DEBRIS ridley’park lake .

SCOPE OF WORK

1. The Lake has been drained and shall remain in the drawdown condition until all silt and debris removal work has oeer. completed. The Contractor shall remove silt and debris from areas as herein described and snown on the plan.

A. The area to be excavated shall extend from the Dam at Ridley Avenue to the spillway on the upstream end of the Settling Basin. Only the main body of the Lake, Settling 3asin and main stream connecting the Settling 3asln with the Lake shall be excavated.

The branch stream shall not be excavated.

B. The main body of the Lake snail be excavated to a depth of four feet (4*) below the spillway level of the Dam at Ridley Avenue, with a slope of approximately five feet to one foot (5’:1*) at the shore line, except where existing stone masonry walls will permit shore line excavation to a depth of four feet (4*).

C. The main stream shall be excavated to a depth of two feet (2*) below the water level.

D. The Settling Basin shall oe excavated to a depth of four feet (4’) below the spillway level at the discharge end of the Settling Basin.

E. In addition to the work descrióse in paragraphs "A" thru "D”, the Contractor shall also remove all loose debris (all unclassified) ir. and on the stream bed and banks of Little Crum Cree* from tne spillway at the upstream end of the Settling 3asin to the Baltimore & Ohio Railroad Bridge, approximately 10C0f upstream of the Settling Basin.

Disposal of material removed under this paragraph shall be as specified under Item No. 2.

2. The excavated silt and debris shall be tne property of the 3orough and shall be disposed of by the Contractor on Borough owned property adjacent to the Lake and south of Ridley Avenue, as directed by The Borougn. The Contractor shall not be required to clear and grub the disposal sites; nowever, the Contractor shall be completely responsible for providing and maintaining dikes, as required, to prevent any of the disposed material from being deposited in the Creek adjacent to the disposal sites.

3* All areas disturbed by the excavating operations shall be restored to their original condition by the Contractor.

4. The Engineer has provided plans, specifications and estimated quantities, bus The Borougn viii assume no responsiuillty fur same and the Contractor is required to check all such estimates of quantities.

5. The lump sum price bid in the Proposal shall be complete and full payment for removal of all silt and debris to the limits as specified herein and shown on the plan and all restoration work.

6. The Borough will allow free right-of-way over its property and streets but any spillage of material on property or streets shall be promptly cleaned up so that it may not cause a nuisance or hazard.

7. Ridley Avenue and the bridge are under the Jurisdiction of Penna. Department of Transportation and any permits required by them shall be obtained by the Contractor.

Coatesville Contractors & Engineers

INCORPORATED

1100 BONDSVILLE ROAD

DOWNINGTON PA. 19335

(215) 384-2731

August 9, 1978

H. Gilroy Damon Associates, Inc.

Chestor Pike and High Street

Sharon Hill, PA 19079

Attention: John P. Damon

RE: Ridley Park Lake

Gentlemen:

We are hereby requesting an additional $17,000.00 for the additional cost incurred to dredge the Ridley Lake while it was not in the draw down position.

We also would like to set up a meeting at the job site at your earliest convenience to discuss the punch list dated August 8, 1978.

If you have any questions, please do not hesitate to call. Very truly yours,

COATESVILLE CONTRACTORS & ENGINEERS, INC.

/s/ John J. Fallon, Jr. John J. Fallon, Jr.

JJF/KMB

Enclosure

Coatesvillc Contractors engineers COKPODATtO UOO BONOSVIU.E ROAD OOWNINGTOWN PA t9339 <219* 38A-273Í INVOICE OATE OF INVOICE 8/9/78 Borough of Ridley Park Ridley Park, PA 19078 WORK ORDER PURCHASE ORDER WEEK ENDING DESCRIPTION: uemoval of silt and debris from Ridley Park Lake Labor & Equipment Hours Rate Total Grand Total Additional cost $17,000.00

      . Issues concerning appellants’ motion for a new trial were never briefed for the court below and therefore, were not properly submitted for review. Delaware County Local Rule of Civil Procedure 227.1.

      . A copy of the bid documents is attached as Appendix I.