text:
    533 A.2d 461
    Thomas S. CHRISTO and Blanche Greenberger, Appellees, v. TUSCANY, INC., a corporation, Brittany, Inc., a corporation, Phoebe M. Rennekamp, William A. Rennekamp, Antoinette B. Tchirkow, and Antoinette B. Tchirkow, Executrix of the Estate of Edgar G. Tchirkow, Deceased. Appeal of Antoinette B. TCHIRKOW, Antoinette B. Tchirkow, Executrix of the Estate of Edgar G. Tchirkow, Deceased, Tuscany, Inc., a corporation and Brittany, Inc., a corporation.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Nov. 2, 1987.

      Maurice A. Nernberg, Pittsburgh, for appellants.
    Douglas E. Cameron, Pittsburgh, for Greenberger, Tuscany and Brittany, appellees.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

Appellants appeal from dismissal of their counterclaim and entry of summary judgment in favor of appellees. Appellants argue that their recovery of damages for an improvidently issued injunction should not be limited by the amount of the bond. We agree. They further argue their damages recoverable should reflect lost interest income. We remand for fact-finding on this issue.

This appeal represents the first opportunity for this Court to rule directly on whether Pa.R.C.P. 1531(b) insulates a plaintiff from damages in excess of the bond amount when an injunction is later found to have been improvidently granted. Although the Commonwealth Court passed on a similar issue in Juniata Foods v. Mifflin County Development Authority, 87 Pa.Cmwlth. 127, 486 A.2d 1035 (1985), that case is not dispositive of the issue raised herein.

This action has followed a complicated if not tortuous route through the courts of this Commonwealth, and we set forth that procedural history in detail, as follows. Plaintiffs, Thomas C. Christo and Blanche Greenberger, originally filed a suit at law to recover real estate commissions allegedly owed to them. On October 18, 1976, plaintiffs filed a complaint in equity and petition for preliminary injunction against Tuscany, Inc., Brittany, Inc., Phoebe M. Rennekamp, William A. Rennekamp, Antoinette B. Tchirkow individually, and as executrix of the estate of Edgar G. Tchirkow, deceased [hereinafter appellants]. Plaintiffs/appellees filed the suit in equity when appellants caused the two corporations named as defendants in the prior suit to be dissolved.

A hearing on the equity petition was held on October 28, 1976, and, by order dated December 3, 1976, the court granted the preliminary injunction and required appellants to deposit $80,000 at First Federal Savings and Loan of Pittsburgh, in an interest-bearing account, as security for any judgments in favor of plaintiffs in the brokerage commission actions. By order dated March 21, 1977, the court ordered the funds transferred to a savings deposit at Concord Liberty Savings and Loan Association. The funds deposited in the savings account earned a return of five and three-quarters percent (5%%) interest.

Appellants filed a demurrer to the equity action; the demurrer was denied. Appellants next, on March 19, 1979, filed an answer, new matter and counterclaim to the equity action. The counterclaim alleged that appellants were suffering damages by reason of the fact that the $80,000 security deposit was earning 5%% interest, while investment rates were offering 10% interest returns.

On March 27, 1979 appellants moved to dissolve the injunction, or in the alternative, to have plaintiffs post a bond pursuant to Pa.R.C.P. 1531(b). The equity court denied the motion on April 2, 1979. Appellants filed a timely appeal to this Court; by opinion dated November 30, 1982, this Court reversed the order and remanded the case, finding that the equity court erred in failing to have plaintiffs post a bond. Pa.R.C.P. 1531(b). Christo v. Tuscany, Inc., 308 Pa.Super. 564, 454 A.2d 1042 (1982).

Upon remand, on September 12, 1983, the lower court ordered plaintiffs to post a nominal bond of one dollar ($1.00). Appellants filed a timely appeal from this order, which was docketed in this Court at No. 1138 Pittsburgh 1983. In the interim, plaintiffs’ original suit for broker commissions had been dismissed by the trial court on summary judgment, and that judgment had been unsuccessfully challenged through all stages of the appellate process. Consequently, after the original suit was finally litigated, motions were made in this Court at No. 1138 Pittsburgh 1983, including: appellants’ motion for special relief; plaintiffs’ motion to dismiss the equity suit for mootness; and answers thereto. After a hearing in this Court on February 9, 1984, the Honorable John P. Hester dissolved the December 3, 1976 injunction, directed the release of the escrowed $80,000 to appellants, and remanded the appeal at No. 1138 Pittsburgh 1983 (from the order imposing one dollar bond) to the lower court for an adjudication on appellants’ counterclaim for damages which had been filed in March 1979. On remand, the lower court granted plaintiffs’ motion for summary judgment. This appeal timely followed.

Appellant raises two issues on appeal:
I. Where a Plaintiff is ordered by the trial court to post only a one dollar ($1.00) injunction bond as security for Defendant’s damages upon termination of the injunction proceedings, is Defendant limited to an action on the bond or the amount of the bond in its claim for damages for its economic losses from the injunction proceedings?
II. Where a Defendant is ordered to deposit substantial funds in a passbook savings account with an interest rate of 5% percent, when there are other investment opportunities paying 10 percent to 21 percent, are Defendant’s damages so speculative as to be noncompensable in an action for damages?

We shall address these claims, seriatim.

I. AMOUNT OF BOND AS A LIMIT ON DAMAGES

Appellants’ first issue raises a point not directly passed upon by our courts since the adoption by our Supreme Court of the Rules of Civil Procedure in 1952. Appellants argue that they are not limited by the amount of the injunction bond in their claim for damages because Pa.R.C.P. 1531(b) authorizes recovery for “all damages” incurred. Plaintiffs counter that the rule should be construed so as to limit recovery to the amount of the bond. Therefore, we are called upon to resolve this conflict as to the proper construction of the language of Pa.R.C.P. 1531(b). Specifically, the rule states:

(b) Except when the plaintiff is the Commonwealth of Pennsylvania, a political subdivision or a department, board, commission, instrumentality or officer of the Commonwealth or of a political subdivision, a preliminary or special injunction shall be granted only if
(1) the plaintiff files a bond in an amount fixed with the security approved by the court, naming the Commonwealth as obligee, conditioned that if the injunction is dissolved because improperly granted or for failure to hold a hearing, the plaintiff shall pay to any person injured all damages sustained by reason of granting the injunction and all legally taxable costs and fees, or
(2) the plaintiff deposits with the prothonotary legal tender of the United States in an amount fixed by the court to be held by the prothonotary upon the same condition as provided for the injunction bond.

(Emphasis added).

Our duty is to accord the language utilized by the Supreme Court its plain meaning. Pa.R.C.P. 127(b); Cf. Salvado v. Prudential Property and Cas. Ins. Co., 287 Pa.Super. 304, 430 A.2d 297 (1981). We construe the rule as a mandate that a petitioner file a bond, in the amount fixed by the court, prior to the court’s issuance of the requested special relief. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 522 A.2d 1129 (1987); Christo v. Tuscany, Inc., supra (bond must be filed). The rule further states that the bond is subject to the condition that plaintiff shall pay from the bond “all” damages sustained by reason of the injunction upon dissolution of the injunction. Clearly, the rule provides that the bond shall be subject to disbursement to pay damages; however, the rule is somewhat less than clear regarding the question of whether other funds may also be subject to disbursement to pay “all” damages.

To date, there have been no cases which have directly addressed this issue. However, the Commonwealth Court has passed on a substantially similar issue. In Juniata Foods, supra, the plaintiff, a governmental entity, sought and gained a preliminary injunction against defendant. The plaintiff posted no bond, as the Commonwealth is exempt from the need to post bond. Pa.R.C.P. 1531(b). When the injunction was dissolved as improperly granted, defendant sued the Commonwealth for damages. The issue was whether recovery was foreclosed as no bond had been posted. The Court held that a “bond is not a condition precedent to obtaining damages from a governmental entity.” Rather, “[t]he bond requirement in Pa.R.C.P. 1531(b)(1) is merely to insure a ready source for payment of damages if due.” Juniata Foods v. Mifflin County Development Authority, supra, 486 A.2d at 1037. Therefore, where no bond is set, an action for damages may still lie against the Commonwealth. This Court’s task is to determine whether an action upon the bond would be the sole source of recovery from a non-governmental plaintiff.

As we deem the plain meaning of the express language of the rule ambiguous on this point, further analysis as to the rule’s meaning must be made in accordance with the rules of construction set forth in the Rules of Civil Procedure. Specifically:

Rule 127. Construction of Rules. Intent of Supreme Court Controls
(a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.
(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained; (5) the prior practice, if any, including other rules and Acts of Assembly upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous history of the rule; and (8) the practice followed under the rule.

Pa.R.C.P. 127. (Emphasis added).

A) Prior Practice

The statute which preceded Pa.R.C.P. 1531(b) was 12 P.S. § 2071:

§ 2071. Indemnity bond before injunction may issue.
No injunction shall be issued by any court or judge until the party applying for the same shall be given bond with sufficient sureties, to be approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction. 1844, May 6, P.L. 564, § 1.

(Emphasis added).

Prior practice, under this rule, was enunciated by the Supreme Court in Azar v. Markle, 311 Pa. 296, 166 A. 889 (1933). The Court, in a per curiam opinion, stated that a defendant’s only remedy for damages from an injunction is against the bond. “The very purpose of such bonds is to indemnify defendants for ‘all damages that may be sustained by reason of such injunction.’ If the amount of the bond was inadequate, the attention of the chancellor should have been directed to that fact at the time it was filed.” 311 Pa. at 298,166 A. 889. (citation omitted). Accordingly, prior practice was to limit damages to the amount of the bond.

B) Contemporaneous History

The Rules of Civil Procedure were first promulgated in 1952; Rule 1531(b) replaced 12 P.S. § 2071. The rules were promulgated by our Supreme Court, assisted by a Procedural Rules Committee. Specifically, the Court noted that its intent was to make changes in the equity rules:

Equity Rule 92, adopted by the Supreme Court, May 13, 1940, and as amended Nov. 28, 1941, read as follows:
Those Rules of Civil Procedure promulgated by the Supreme Court which are applicable to equity practice and procedure, shall prevail over any existing Equity Rules which are inconsistent therewith; and the Equity Rules are modified, or abrogated, to the extent of such inconsistency, as of the respective dates the dominant Rules of Civil Procedure became or become operative.

Purdon’s Pennsylvania Statutes Annotated, 1967 edition, Title 12, p. 19. (Emphasis added). The prior rules, including the rule on bonds, were suspended. See Pa.R.C.P. 1550(4), suspending 12 P.S. § 2071 absolutely.

Crucial to our analysis is the fact that Rule 1531(b) contains different language than that previously utilized in Section 2071. Pa.R.C.P. 128 supplies, “[presumptions in Ascertaining the Intent of the Supreme Court” as aids in construction. One of the presumptions is that “if the Supreme Court has construed the language used in a rule ..., the Supreme Court in promulgating a rule on the same subject matter which employs the same language intends the same construction to be placed upon such language; ---- Pa.R.C.P. 128(d). (Emphasis added). Although Rule 1531(b) covers the same subject matter as the prior rule, the Court chose not to employ the same language. Therefore, we may not presume that the construction of Section 2071 as exemplified by Azar v. Markle, supra, should be placed upon Rule 1531(b). See also Purdon’s Pennsylvania Statutes Annotated, 1967 edition, Title 12, Ronald A. Anderson, Esquire, “Repositories of Pennsylvania Civil Practice,” p. XXII. We find that the use of different language suggests a different intent behind Rule 1531 and permits a different construction of the rule. See Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 326 Pa.Super. 509, 474 A.2d 605 (1984), aff'd as modified, 510 Pa. 1, 507 A.2d 1 (1986) (it is a rule of statutory construction that a change in the language of a statute ordinarily indicates a change in the legislative intent).

In further support of finding a change between the prior construction of the rule and a new construction of the current rules, is appellants’ argument that the Pennsylvania Rules of Civil Procedure were promulgated in 1952 in response to enactment of the Federal Rules of Civil Procedure in 1938. The language of the federal rule governing injunction bonds, F.R.C.P. 65(c), is different from the rule adopted in the Commonwealth. Although the language is different, we deem federal practice helpful in ascertaining our Supreme Court’s intentions when promulgating Pa.R. C.P. 1531(b); the federal rule and practice do not control but do illuminate the historical context in which our state’s rules were promulgated. Many states, including Pennsylvania, promulgated new rules of civil procedure, intended to govern both law and equity actions, in response to the federal rules. See Wright & Miller, Federal Practice and Procedure, § 1008 at 48 (1973).

Posting a bond in federal courts, as in Pennsylvania, is mandatory prior to issuance of injunctive relief. However,

[t]he mandatory nature of the security requirement is ameliorated by the remaining portion of the first sentence of Rule 65(c), which states that the security required shall be ‘in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.’ As a result of this passage, the discretion permitted a federal court sitting in equity is available to a court in setting the amount of security that is required by Rule 65(c). Accordingly, the judge usually will fix security in an amount that covers the potential incidental and consequential costs and either the losses the unjustly enjoined or restrained party will suffer during the period he is prohibited from engaging in certain activities or the complainant’s unjust enrichment caused by his adversary being improperly enjoined or restrained.

Wright & Miller, supra, § 2954 at 525. (Emphasis added). The security is set, in a balancing process, to cover foreseeable damages. Practice in federal courts is to allow recovery beyond the bond amount where actual damages exceed foreseeable damages covered by the bond, either by a motion pursuant to F.R.C.P. 65.1 or by suits at law for unjust enrichment or malicious prosecution. Wright & Miller, supra, § 2973 at 652.

C) Practice followed under Rule 1531(b)

Since the promulgation of the Pennsylvania Rules, the issue of whether recovery should be limited to the amount of the bond has not arisen, although other issues involving the interpretation of Rule 1531(b) have been decided. In Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975), this Court considered whether the amount set by the trial court for the bond, pursuant to Pa.R.C.P. 1531(b), was inadequate because losses could total an amount greater than the bond. The Court, in reviewing the amount, utilized a test “balancing ... the equities of the respective sides____” 345 A.2d at 671. The Court found no abuse of discretion in the amount set, especially in light of the inability of the appellant to “credibly establish its possible loss.” 345 A.2d at 671.

In College Watercolor Group, Inc. v. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976), the Court held that a trial court improperly dissolved a preliminary injunction bond, noting that the bond “was to protect appellants in the event that the preliminary injunction was improperly granted and damages [were] sustained thereby.” 360 A.2d at 207-208. The Court further stated “appellants are entitled to look to the bond for recovery.” 360 A.2d at 208. There is no indication, however, whether appellants could look beyond the bond for recovery.

Other recent decisions of this Court have also focused on the bond amount itself to see if it is adequate protection for foreseeable damages, and a proper exercise of lower court discretion. Broad & Locust Associates v. Locust-Broad Realty, 318 Pa.Super. 38, 464 A.2d 506 (1983) (bond adequate in view of reasonably anticipated damages); Christo v. Tuscany, Inc., supra (court’s failure to set bond constituted error).

D) Object of the Rule

The cases cited dealing with Rule 1531(b) assist our analysis by delineating the purpose behind mandating that a bond be set. A bond is required so as to provide protection to a wrongly enjoined party; the bond provides a source of funds which may be used to pay to an injured defendant the “damages sustained by reason of granting the injunction.” College Watercolor Group, Inc., supra. Because the rule is mandatory, some protection will always be afforded an enjoined party.

However, the case law enunciates a caveat that, in practice, the bond amount is not set to cover “all damages” but only those that are reasonably foreseeable. See Broad & Locust Assoc., supra. The trial court must determine the amount after balancing the equities involved on a case by case basis. Safeguard Mutual Ins. Co., supra. For instance, plaintiffs may be unable to provide sufficient security where damages could be great, or where plaintiff is impecunious, yet the court may determine, based upon the balance of the equities, that the injunction should nevertheless issue. Consequently, a relatively low bond in light of possible damages may be set.

E) Consequences of the Rule’s Interpretation

Our analysis of the consequences of appellants’ suggestion, that recovery in excess of the bond amount is not prohibited by the rule, leads us to the conclusion that this construction carries the weight of reason. We are aware that courts, in setting the bond amount originally, are not in a position to accurately and definitively gauge the amount of damages which may be incurred as the result of an improvidently issued injunction. Courts sitting in equity on motions for special relief have a duty to act quickly to prevent “immediate and irreparable injury.” Pa.R.C.P. 1531(a). The court’s decision-making process must balance competing concerns; its primary focus is on whether to grant the relief requested, rather than on what potential damages might be incurred if the injunction is later determined to be erroneously issued. The preliminary injunction hearing does not function as a final hearing on the merits, but is held only when needed to settle factual disputes arising from the pleadings. Township of Clinton v. Carmat, Inc., 288 Pa.Super. 433, 432 A.2d 238 (1981); Wood v. City of Pittsburgh, 74 Pa.Cmwlth. 450, 460 A.2d 390 (1983). Consequently, there may not be a full hearing wherein the issue of potential damages could be discussed.

Even where there is a hearing, an equity court has neither the time nor the resources to conduct a searching fact-finding review of the amount of damages which may ensue; this type of detailed fact-finding is more properly reserved until the final hearing, after damages have in fact occurred, and are no longer a matter of prognostication. Thus, when issuing the injunction, the equity court is required to set the bond at an amount which constitutes a reasonable measure of protection but may not be in a position to conduct an exhaustive inquiry to determine the amount of damages with certainty.

F) Conclusion

Our analysis is complete. Having considered the prior rule, Section 2071, and prior practice as exemplified by Azar v. Markle, supra, we find that the promulgation of the Rules of Civil Procedure in 1952 signalled a change with prior practice. This change is demonstrated by the decision not to utilize the language of Section 2071 in Rule 1531(b). The use of different language suggests that a different construction of the rule could emerge.

The use of different language also reflects the fact that Pennsylvania’s Rules of Civil Procedure were promulgated, at least in part, in response to the federal rules promulgated in 1938; the federal rule governing posting of a bond prior to issuance of a preliminary injunction allows recovery beyond the bond if the injunction is later determined to be improvidently granted. Both federal practice and Pennsylvania practice have evolved such that the bond is not intended to be a definitive measure of damages but only an equitable measure of foreseeable damages. Compare Azar, supra, and Safeguard Mutual Ins. Co., supra.

We are persuaded that a construction similar to the federal rule may and should apply to Rule 1531(b). We hold that the bond amount set pursuant to Pa.R.C.P. 1531(b) does not set a limit upon recovery for damages from a wrongly issued injunction. Therefore, should the injunction be found to have been improperly issued, actual damages should be determined, and the enjoined party shall be free to seek recompense for “all damages” accrued. The enjoined party may use the bond amount as a source of damages payment but that party is not limited to the protection afforded by the bond. Accord Juniata Foods, supra. Therefore, we find appellants’ argument that they should not have been limited to the bond amount well-founded, and we reverse that part of the order of July 29, 1986 limiting appellants' damages to the bond.

II. AMOUNT OF DAMAGES

Appellants’ second and final contention is that they should be able to recover as damages their lost interest income on the escrowed $80,000; they urge this Court to measure their damages by the difference between the interest rate received at the savings account where appellants were ordered to place their money, which was five and three-quarters percent (5%%), and the interest the money would have earned in the investment market. Appellants assert that rates of ten percent (10%) and greater were available for investments during the time appellants’ funds were in escrow.

Plaintiffs respond that: lost profits in the form of interest income are noncompensable, citing Ashcraft v. C.G. Hussey & Co., 359 Pa. 129, 58 A.2d 170 (1948); even if appellants are entitled to lost profits, their damages are limited to the legal rate of interest of six percent (6%), citing 41 P.S. § 202, Traffic Safety Co., Inc., 21 B.R. 669 (Bkrtcy.Pa.1982); and, because plaintiffs did not enjoy the use of the funds while in escrow, there is no equitable reason for an award of damages.

The trial court held that appellants’ damages were limited to the one dollar bond; but, even if the bond amount was not the limit of recovery, the trial court opined that the damages appellants seek are not recoverable because the appellants chose to place their escrowed funds in a low interest account, and because the damages were too remote and speculative to be recoverable. We note the record does not contain facts to support either of the trial court findings.

As to the first trial court finding, we note that the court’s order directed appellants’ funds be placed in a savings deposit at a particular savings and loan institution. The record contains no evidence as to whether there was more than one, or any higher yielding savings deposits at that particular savings and loan institution. Thus, there is no basis in the record for the trial court’s finding that appellants chose this account. We must reject findings which have no support in the record. Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973); Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968).

Secondly, the trial court’s holding that damages were remote and speculative was made without benefit of a fact-finding hearing; the court, on remand from this Court after dissolution of the injunction, dismissed the counterclaim without an evidentiary hearing. However:,

Pa.R.C.P. No. 1517(a) requires a chancellor to make specific findings of all facts necessary to determine the issues in the case and to support the decree and where such findings are general or absent, the cause must be remanded to the chancellor for the required findings. Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973); Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968).

Sack v. Feinman, 489 Pa. 152, 166, 413 A.2d 1059, 1066 (1980), aff'd after remand, 495 Pa. 100, 432 A.2d 971 (1981). The court failed to conduct a hearing to determine whether, in fact, investment opportunities were paying returns of ten to twenty-one percent as appellants claim and whether appellants would have availed themselves of such opportunities. Certainly such rates of interest are capable of being determined with certainty and thus are in no way speculative; similarly, appellants were entitled to present evidence that the order in fact prevented them from investing at the market rates. Thus, the trial court’s order cannot be affirmed on the grounds stated.

We next turn to the legal arguments raised by the parties. We find it important to note initially that appellants do not argue that the trial court’s order of March 21, 1977, directing appellants to place the escrow funds in Concord Liberty Savings & Loan, was an abuse of discretion; they readily acknowledge that in granting the special relief to the plaintiffs the court in equity had broad authority to balance competing interests. Hence, the selection of a low interest bearing highly liquid savings account is not challenged. Rather, appellants contend that plaintiffs must compensate appellants for the damages (lost interest income) suffered as the result of the order. The issue, then, is not whether it was reasonable for the trial court to burden appellants but whether plaintiffs should have to compensate appellants for the damage caused by the burden, upon determination that the injunction was improvidently granted.

Our review indicates that the law in equity is settled: in equity cases, the award of damages and rate of interest thereon is allowed at the discretion of the chancellor. Daset Min. Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584, 595 (1984). See also Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 276 A.2d 542 (1971). Lost profit damages resulting from an improvidently granted preliminary injunction may be recoverable where the damages directly result from the injunction, and the damages are ascertainable with reasonable certainty. Compare Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983).

Plaintiffs cite Ashcraft v. C.G. Hussey & Co., supra, for the proposition that profits from investment capital may not be included in the measure of lost profits. Ashcraft involved a suit to recover lost future earnings due to injuries plaintiff sustained through the negligence of the defendant. The Court held that plaintiffs damages for impairment of his earning capacity were not speculative. The court further opined that the measure of lost earning capacity should be limited to “personal effort, either mental or physical” rather than lost profits from investment capital. Ashcraft, supra 58 A.2d at 173. Ashcraft does not purport to mandate that damages in other types of actions cannot be measured by lost profits; the holding applies only to personal injury actions. Ashcraft does not address the issue of the measure of damages sustained through a grant of a preliminary injunction; therefore, it is inapposite. Rather, the rule in equity cases is that damages may include whatever the court in its discretion determines to be equitable. Daset, supra.

Nor is the measure of damages limited to the legal rate of interest. The statute cited by plaintiff, 41 P.S. § 202, provides that the legal rate of interest applies where authorized by law or by private agreement. Neither statute nor caselaw limits recovery of damages in equity actions to the interest rate of six percent (6%). To the contrary, Rule of Civil Procedure 1531(b) authorizes recovery of “all damages” sustained by an improvidently granted injunction without any expression of limitation to the legal interest rate. Thus, there is no statutory authority to limit the measure of damages to six percent (6%); rather, clear statutory language authorizes recovery of “all damages.” Furthermore, “the decided trend of the courts of law and courts of equity has been to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case____” Murray Hills Estates v. Bastin, 442 Pa. 405, 276 A.2d 542 (1971). See also Sack, supra; Daset Min. Corp., supra (courts sitting in equity take an equitable approach in determining interest as an element of damages).

In light of express statutory language authorizing recovery of “all damages” sustained, and in full accord with the authority of the chancellor in equity cases to measure damages by equitable principles, rather than by the legal rate of interest, we find the legal rate of interest provided in 41 Pa.C.S. § 202 has no application to this equity case; and, we find that plaintiffs’ argument that lost interest income damages are limited to the legal rate must be rejected.

Finally, plaintiffs argue that because “there is no evidence of record that [plaintiffs] had the use of the escrowed funds or received any interest on such amount,” appellants are not entitled to equitable damages greater than the six percent (6%) legal interest rate. (Appellees’ brief at 22-23). First, as decided above, the legal rate does not apply to this equity action. Second, plaintiffs’ argument ignores the fact that plaintiffs desired, sought and gained the injunction; thus, they did enjoy a benefit by reason of having the funds in escrow. Plaintiffs obtained security for potential judgment in the amount of $80,000 while their suit at law for broker’s commissions was being litigated. Moreover, appellants clearly suffered a detriment, i.e., the loss of the control of those funds and profits to be derived therefrom while those funds were in escrow. Finally, we perceive no reason why appellants should be undercompensated for provable losses merely because the plaintiffs did not make a financial profit on the escrowed funds. The plaintiffs’ beneficial use of the funds is not a prerequisite to a finding that appellants suffered damages.

There is no reason, as a matter of law, why appellants should be precluded in their attempt to prove and recover all damages accrued by reason of the grant of the preliminary injunction. Appellants must, on remand, prove that the market rate of interest to be used as a measure of damages can be ascertained without resort to speculation. Further, appellants must establish by a preponderance the fact of proximate causation, i.e., that but for the injunction, the escrowed funds would have been invested at the rates available. See Delahanty, supra. Clearly, these are facts which cannot be determined at the appellate level.

Thus, we have determined that appellants are not limited in their recovery to the amount of the bond, and that appellants should have the opportunity to meet their burden of proof on the damages issue. Accordingly, we remand appellants' counterclaim to the trial court for proceedings not inconsistent with this opinion. Sack, supra.

Order reversed and remanded. Jurisdiction relinquished.

      . The Commonwealth Court held that a ‘bond is not a condition precedent to obtaining damages from a government entity." 486 A.2d at 1037. (Emphasis added). We do not have a government entity involved in this action. (See discussion, infra).

      . We note appellants failed to raise in this appeal, following this Court’s remand of the appeal at No. 1138 Pittsburgh 1983, any issue as to whether imposition of only nominal bond was an abuse of discretion by the trial court.

      . 12 P.S. § 2071 can be traced to the Act of May 6, 1844, P.L. 564, § 1.

      . Section 2071 was repealed April 28, 1978, P.L. 202, No. 53, § 2(a)[205]; see 42 Pa.C.S.A. § 1722.

      . F.R.C.P. 65(c) states:
      (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof.

      . Specifically, the order stated:
      IT IS HEREBY ORDERED AND DECREED, that
      First Federal Savings & Loan Association of Pittsburgh make cashiers checks payable to Maurice A. Nernberg, Jr., Esq., and Frank Mast, Esq., for deposit to Concord Liberty Savings and Loan Association in the name of Maurice A. Nernberg, Jr. Esq. and Frank Mast, Esq., with the following endorsements:
      ‘BOTH SIGNATURES REQUIRED FOR WITHDRAWALS. NO WITHDRAWALS EXCEPT BY ORDER OF COURT SAVINGS DEPOSIT’

        * it *

      And that a Savings Deposit shall be made in CONCORD LIBERTY SAVINGS & LOAN ASSOCIATION endorsed as follows:'
      ‘BOTH SIGNATURES REQUIRED FOR WITHDRAWALS. NO WITHDRAWALS EXCEPT BY ORDER OF COURT SAVINGS DEPOSIT’

        it it it

      (Emphasis added).

      . We distinguish between the damages of lost interest income and the interest which the court may grant upon an award of damages.

      . We do not herein decide the continuing validity of Ashcraft; the distinction between labor income and capital income as set forth in Ashcraft is by no means undebatable. „

      . Appellees cite Traffic Safety Co., Inc., supra, in support of their contention that damages are limited to six percent (6%). However, again, the facts of the case cited as authority are inapposite, as Traffic Safety did not involve a claim for damages by reason of a preliminary injunction, but rather an action against a trustee in a bankruptcy proceeding for misappropriation of funds. Furthermore, Traffic Safety is clearly not in accord with recent trend of equity cases. See Murray Hills Estates, supra.


source: Caselaw Access Project

author: CERCONE, Judge: BECK, Judge,

license: Public Domain

text:
    533 A.2d 471
    Stanley COLBERT v. Oscar J. GUNNING Appeal of Honorable Michael A. STEWART.
    Superior Court of Pennsylvania.
    Argued March 31, 1987.
    Filed Nov. 12, 1987.

      David R. Weyl, Ambler, for appellant.
    Arthur K. Dils, Harrisburg, for Colbert, appellee.
    Peter B. Foster, Harrisburg, for Gunning, appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   CERCONE, Judge:

This matter arises out of the attempt by Oscar Gunning, a losing party in a civil action initially presided over by appellant, District Justice Michael A. Stewart, to determine the date on which District Justice Stewart entered a judgment against Gunning. This determination was crucial to Gunning’s case as his appeal to the court of Common Pleas had been dismissed as having been taken out of time.

In pursuit of this factual determination, Gunning scheduled depositions in connection with his motion to reinstate his appeal and served subpoenas on District Justice Stewart and his secretary, Theresa Myers. Neither Ms. Myers nor the appellant appeared for the scheduled depositions on February 26, 1986. Thereafter, Gunning filed a Petition and Rule to Show Cause on appellant as to why he should not be held in civil contempt for failing to appear at the deposition. Appellant filed no response or answer to the Rule. Pursuant to this Rule, a hearing was scheduled for April 23, 1986 at 10:00 a.m. When appellant failed to appear at that hearing, a bench warrant was issued. He appeared before court later that day. At that time, the court found that appellant was not guilty of criminal contempt for failure to appear at the earlier scheduled hearing but found him to be in civil contempt. The court ordered District Justice Stewart to appear for deposition and fined him $200.00.

The sole issue on appeal is whether the lower court erred in imposing an unconditional fine in a civil contempt case.

The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980). A court may exercise its civil contempt power to enforce compliance with its orders or decrees if its purpose is to compel performance, but not to inflict punishment. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Hopkinson v. Hopkinson, 323 Pa.Super. 404, 470 A.2d 981 (1984).

The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of contempt by complying with the court’s directive. In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975); Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). If he is given an opportunity to purge himself before imposition of punishment, the contempt order is civil in nature. If the purpose of the order is to punish despite an opportunity to purge, the order is criminal in nature.

The primary question to be addressed in this case is whether, in a civil contempt case, the trial court may impose an unconditional fine merely for the purpose of punishing the contemnor. We find that the trial court erred in this respect. While it is clear that a court may impose an unconditional fine in civil contempt, it may do so only if the purpose is not to punish but to compensate for losses suffered by the complainant, as was explained in Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968):

The trial court also properly found the defendants guilty of civil contempt. Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. Gompers v. Bucks Stove & Range Co., [221 U.S. 418, 448, 449, 31 S.Ct. 492 [500, 501], 55 L.Ed. 797 (1911)]. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy, (emphasis in original)

429 Pa. at 521, 241 A.2d at 339 (quoting United States v. United Mine Workers of America, 330 U.S. 258, 298-299, 303-04, 67 S.Ct. 677, 698, 701, 91 L.Ed. 884 (1946)).

The confusion about the primary question in this case arises out ot language in Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 417 A.2d 1248 (1979), which reads:

An unconditional fine [for civil contempt] can serve two purposes: (1) to punish violators or (2) to deter future or continued violations of the law. Mastrangelo v. Buckley, 433 Pa. 352, 250 A.2d 447 (1969). The deterrence of continuous or future violations of a court order is a legitimate interest to be served by the levy of an unconditional fine.

This language was relied on by the lower court in support of its imposition of a fine.

While, on its face, the language in Rouse appears to support the imposition of an unconditional fine, as punishment, in civil contempt, when read in conjunction with previous language in Rouse and the general theory of the difference between civil and criminal contempt, that conclusion is not supportable. In fact, the case cited in Rouse to support the previously quoted language, Mastrangelo v. Buckley, was not a case dealing with civil contempt issues. Rather Mastrangelo was addressing the power of a municipality to impose fines for parking violations. The fine imposed in Rouse was ordered to compensate the City of Philadelphia for costs incurred in responding to the defendant’s contumacious acts. Therefore, it is clear that the lower court’s reliance on three words in Rouse, “to punish violators”, was misplaced.

As previously stated, the lower court found appellant guilty of civil and not criminal contempt. Therefore, the court’s authority to impose sanctions was limited to that which would compel compliance with its directives, not to inflict punishment per se. The lower court’s statement, “While the fine was not conditioned on Stewart appearing for his deposition, we feel that it was necessary as a punishment and to deter him from continued violation of the law,” clearly reflects the court’s directive to appear for deposition. There was no continuing violation, nor threat of violation, which would be abated by the imposition of a conditional or unconditional fine.

Accordingly, we find that the lower court erred by imposing an unconditional $200.00 fine on appellant as punishment for his civil contempt. The order is hereby affirmed in part, as it ordered appellant to appear for deposition. However, in view of the fact that the parties agree that District Justice Stewart has purged himself of the contempt by sitting in deposition, the order is reversed as it ordered appellant to pay a $200.00 fine.

BECK, J., filed a dissenting opinion.

BECK, Judge,

dissenting:

An unconditional fine can be imposed for the purpose of deterring future or continued violations of the law. Rouse Philadelphia Inc. v. Ad Hoc ’78, 274 Pa.Super. 54, 417 A.2d 1248 (1979). While the trial court erred in interpreting Rouse Philadelphia Inc. as permitting imposition of an unconditional fine as a punishment, it was correct in imposing such a fine as a deterrent to continued violation of the law. At the time the fine was imposed, Justice Stewart had still not complied with the court order directing him to appear for deposition. In view of Justice Stewart’s continuing disregard of court process, it was not an abuse of discretion to believe that a fine was necessary to instill in appellant a due regard of his obligations under the law.

I would therefore affirm the order of the trial court.


author: BROSKY, Judge:

text:
    533 A.2d 473
    COMMONWEALTH of Pennsylvania v. John T. SWEENEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1987.
    Filed Nov. 13, 1987.

      William P. Weichler, Erie, for appellant.
    Douglas W. Ferguson, Assistant District Attorney, Mead-ville, for Com., appellee.
    Before BROSKY, TAMILIA and KELLY, JJ.
   BROSKY, Judge:

This is an appeal from an Order denying appellant permission to withdraw as appellate counsel for John T. Sweeney.

The issue presented by appellant is whether the trial court abused its discretion in refusing appellant’s motion to withdraw as appellate counsel after he assisted Sweeney in filing a Notice of Appeal, where Sweeney only retained appellant for the pretrial and trial stages and where Sweeney was indigent and could not afford appellant to represent him on appeal. We agree with appellant that the trial court abused its discretion in refusing to permit him to withdraw as appellate counsel under the circumstances. We therefore vacate the Order disallowing withdrawal of appellant from the case and remand for appointment of counsel to represent Sweeney at the appellate stage of the proceedings.

Appellant states that he and Sweeney contracted for the former’s services in February 1984 to represent Sweeney in the underlying case as well as on other criminal charges in Federal Court in Ohio. The agreement between appellant and Sweeney was limited to representation, as far as the instant matter is concerned, to the pre-trial and trial stages. Appellant represented Sweeney at trial where the latter was convicted of armed robbery. Appellant then filed and argued post-trial motions on behalf of Sweeney which were denied. Appellant proceeded to counsel Sweeney at the sentencing hearing. At that time, Sweeney filed a pro se Notice of Appeal prepared by appellant from the judgment of sentence.

On June 27, 1986, before disposition of pre-trial motions, the trial court entered an order (1) indicating that appellant agreed to represent Sweeney at the post-verdict stage, (2) refusing to grant appellant’s request to withdraw if the decision on post-verdict motions was unfavorable to Sweeney and (3) ordering appellant to “continue to represent the Defendant [Sweeney] through the appellate stage of this case.”

At the sentencing hearing on September 5, 1986, appellant asked the Court to reconsider its earlier Order of June 27,1986. This request was refused, and appellant was once again denied leave to withdraw as counsel by order entered that same day. This appeal followed.

Appellant’s complaint to this court focuses on the fact that the trial court refused him permission to withdraw from further representation of Sweeney at the appellate stage. Appellant explained to the trial court at sentencing that his agreement with Sweeney was limited to representation of the latter through the trial stage only (N.T. 40). Appellant informed the trial court that Sweeney was indigent, that appellant had discussed the matter with Sweeney’s family, who were likewise without funds, and that Sweeney has a basic and fundamental right to appeal and have counsel appointed for that purpose (N.T. 40-41). Appellant also reminded the trial court that earlier in its colloquy with Sweeney, the former advised Sweeney of his right to perfect an appeal and the right to have counsel appointed and that the trial court’s forcing appellant into a non-court-appointed, compensation-free representation of Sweeney on appeal renders advising Sweeney of his right to appellate counsel in the event of indigency meaningless (N.T. 46).

The trial court agreed with appellant that Sweeney did, indeed, have the right to counsel on appeal. In fact, the trial court premised its reasons for not allowing appellant to withdraw upon Sweeney’s need for appellate counsel as follows:

[W]e have an issue on use of the wire tapping, of a pen register [sic]. We had an issue initially when I came into this case on the Pennsylvania Wire Tapping Act.

N.T. 44

* * * * * *
[I]n a case this complicated, I think that it’s unfair to the Defendant, I think it’s unfair to the Commonwealth, I think it’s unfair to the people of Crawford County to permit you to back out.

N.T. 45.

* * * % # *
[H]e [Sweeney] is entitled to have his case go up to the Superior Court with an expert criminal lawyer, who is completely familiar with his case handling it. Thats [sic] justice at its best, Mr. Ambrose, and I don’t mean to downgrade any Crawford County attorney, but not some young kid out of high school who doesn’t know anything.

N.T. 47.

The trial court also expressed concern about the length of any delay involved for a new court-appointed attorney to familiarize himself with the record in the case. Additionally, it was the trial court’s position that because present counsel, appellant herein, was already familiar with the proceedings, it would be a relatively simple matter to compose the appellate brief. The trial court reasoned:

You know if we appointed some young Crawford County attorney, he would have to go back and get a transcript of everything that has happened, he would have to get copies of every paper, it would take him months to even familiarize himself with the record, whereas, you know everything there is to know about this case. You don’t have to do any of that.
You are talking about taking an appeal, and certainly Mr. Sweeney ought to take an appeal, that’s his right. You have already briefed and argued the key issues in this case. You have already done that.
And, all you would have to do would be to incorporate those briefs that you have written into a brief for the Superior Court of Pennsylvania, go down and take a day and argue the case.
That’s the difference between permitting you to withdraw and not permitting you to withdraw.

(N.T. 43-44). Moreover, the trial court was adamantly opposed to saddling the populace of Crawford County with the expense of providing a free transcript and a new, court-appointed attorney. In response to appellant’s proposal that his associate be appointed to handle the appeal, the trial court stated:

[M]y [sic] alternative was an associate of yours pursue the case, and if you want your associate to write the briefs, do all that and go down and argue it in the Superior Court, so be it. I am not going to order Crawford County, however, to pay your associate and then have your associate come in and say I want a transcript of everything that’s happened so far your Honor, that’s the only way I can handle this case. I am not going to do it.

N.T. 47-48.

The view taken by the trial court at sentencing and reiterated in its Opinion was that the entry of a general appearance by counsel in a criminal case is, without more, the equivalent of “locked in” or guaranteed representation by that counsel through all stages of the proceeding.

Now, your [appellant’s] position is, well, your Honor, if you make me serve, I have to serve for nothing, and that’s not fair to me. In my opinion, when an attorney enters a general appearance, that that’s exactly what he enters.
He enters an appearance with the intent that he is going to represent that Defendant. He doesn’t enter an appearanee for the preliminary hearing or for the first day of trial or for anything else.

N.T. 44.

We believe that, [sic] when a criminal attorney takes a case of this magnitude and enters a general appearance that he should be required under these circumstances to finish the case through the appellate stage. To desert his client when the client needs him the most, is contrary to this Court’s concept of legal professionalism.

Trial Court Opinion, p. 4.

We agree that desertion of a client is abhorrent to the spirit of the legal profession. It may also form the basis of a later collateral claim of ineffectiveness. We also consider the trial court’s regard for the post-sentence rights of appellant laudable. Unfortunately, however, in the midst of its concern for Sweeney’s right to competent appellate counsel, the cost of transcripts and records to the taxpayers of Crawford County and the length of time elapsing before any new counsel could familiarize himself with the case, the trial court at sentencing and in its opinion, overlooked the one crucial factor which goes to the heart of the instant appeal and upon which appellant premised his plea to withdraw from further representation. That is, the trial court failed to consider the economics of appellant’s continued representation.

The trial court insisted that appellant continue to represent Sweeney on appeal without appointment or further compensation. The trial court’s predicate for this flows from its belief that because “Mr. Ambrose [appellant herein] received a substantial fee ... the interests of justice require that Mr. Ambrose continue through the appellate stage.” (Trial Court Opinion, p. 4). This conclusion, however, finds no support in the record. It is true that the trial court at the sentencing hearing attempted to ascertain from appellant the amount of counsel fees the latter had received so far from Sweeney. Appellant refused to divulge this information. When asked by the trial court to quote a “ballpark figure”, appellant declined, stating that he considered the matter to be a confidential one between attorney and client (N.T. 42, 48-49). Although the trial court pressed appellant no further on this issue, it remained steadfastly opposed to court-appointment of appellant or any other attorney to represent Sweeney on appeal.

While the trial court’s position that appellant’s receipt of past substantial legal fees more than adequately compensates the latter for future appellate representation lacks record support, we find equally unavailing the Commonwealth’s stance in this regard:

While the Commonwealth is well aware that all attorneys must be concerned to a certain degree with the economics of representing a defendant, counsel is a member of the legal profession which requires that he must set aside monetary considerations in order to further the interest of his client and those of the justice system.

Commonwealth’s Brief, p. 5; emphasis supplied.

We view this as a rather astonishing revelation, and, in consideration thereof, as an appellate court, we have attempted, unsuccessfully, to discover any case law, statute or rule of court which compels counsel, as part of their obligations to the legal profession, to cast by the wayside all economic considerations relating to the practice of law. Were the Commonwealth’s position the accepted norm in the legal profession today, the Rules of Criminal Procedure adopted to establish the procedure for representation of indigents (see Pa.R.Crim.P. 316 and 317) and the existence of public defender organizations and legal aid societies to implement and aid court-appointment programs would, indeed, be superfluous.

Ethical Considerations 2-31 and 2-32 of the Code of Professional Responsibility, which the Commonwealth purports speak to the issue, state only that counsel should continue to represent a client through the appellate process unless permission to withdraw is granted or other counsel substituted (EC 2-31) and that a lawyer’s decision to withdraw should be made only after due notice and recommendation of employment of other counsel to protect the welfare of the defendant and to minimize any prejudice to the client as a result of withdrawal (EC 2-32). Our review of the record indicates that the aspirations reflected in these Considerations were heeded to here. Appellant sought permission to withdraw and offered as substitute counsel his law associate. He also prepared a Notice of Appeal on Sweeney’s behalf, all to minimize any prejudice resulting from his withdrawal.

On the other hand, we have found that EC 2-16 addresses the question of legal fees,

EC 2-16. The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed achieve that objective[,]

Nowhere in the Ethical Considerations cited by the Commonwealth or by us, supra, or anywhere else in the Code of Professional Responsibility do we glean any language which directly or by implication even remotely suggests that an attorney is forever bound to serve his client to ultimate disposition and further that he forego compensation in doing so.

Appellant asserts that the Order of the trial court, in effect, disregards the import of the statement made to Sweeney in colloquy at the sentencing hearing that counsel would be appointed to represent him on appeal in the event of his indigency. At sentencing, before engaging counsel in debate over the propriety of his request for withdrawal, the trial court, in accordance with Pa.R.Crim.P. 1405(c)(1), advised Sweeney of his right to appellate counsel in the following terms:

You have the right to counsel for taking such an appeal.
* * * * * *
In the event you cannot afford counsel for the preparation and filing of the motions or taking of the appeal, you have the right to proceed in forma pauperis and an attorney mil be appointed by the Court for you free of charge, if you request such an appointment.
Do you understand these rights, sir?
THE DEFENDANT: Yes, sir.

N.T. 34-35; emphasis supplied. Later at the sentencing proceeding and immediately before the exchange between the trial court and appellant concerning the latter’s wish to withdraw, Sweeney did request the Court to appoint counsel for him:

THE DEFENDANT: I will need counsel appointed for my appeal.
THE COURT: All right, we will get into that in a moment____

N.T. 39.

In view of what transpired at the sentencing hearing, Sweeney’s dilemma is akin to being between the proverbial rock and a hard spot — on the one hand, he wished to pursue an appeal, as is his right; however, he could no longer afford the continued representation of his privately retained counsel, the appellant herein. The trial court’s response to Sweeney’s request for appointment of counsel appeared to indicate that appointment of appellate counsel would be forthcoming. Sweeney’s expectation of appointed counsel, moreover, was further bolstered by his lack of objection when appellant advised the trial court that his client’s family was without funds to retain him (N.T. 40-41). We deem this silence, coupled with Sweeney’s record request for appointment of counsel because of his indigency, to be at least an implied acquiescence in appellant’s withdrawal, and, as such, an implicit discharge of appellant from further representation.

This being so, we again turn to the Code of Professional Responsibility for guidance. Disciplinary Rule 2-110, entitled “Withdrawal from Employment”, provides for mandatory and permissive withdrawal in relevant part as follows:

(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
******
(4) He is discharged by his client.
(C) Permissive withdrawal.
If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because: ******
(5) His client knowingly and freely assents to termination of his employment.
******

In Commonwealth v. Scheps, 361 Pa.Super. 566, 523 A.2d 363 (1987), a panel of this court reversed an Order disallowing counsel to withdraw despite his discharge by the client because of the client’s inability to pay further legal fees as well as legal fees already accrued. Although the panel members were unable to agree on the rationale for permission to withdraw, the lead opinion premising its decision on the mandatory withdrawal provision of DR 2-110(B) and the concurrence relying, instead, on the judicial discretion standard of Pa.R.Crim.P. 302(b), both the lead and the concurrence were in accord with the ultimate result — i.e., that the trial court had, under the facts of that case, abused its discretion in not allowing counsel to withdraw.

[W]here said client ... is not in a position to pay for future legal fees ... there is no reason to deny an attorney’s petition for leave to withdraw. Finally, when the client himself discharges his attorney____the relationship of attorney-client is terminated. The court’s denial of Mr. Lieberman’s petition imposes a punishment resulting in the risk of detriment to his career, let alone substantial financial losses. It should not be permitted. After all, it is the client’s responsibility and not the attorney’s to pay for the heavy costs of trial. Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102, 109 (1959). In light of the foregoing circumstances, the lower court erred in not allowing counsel to withdraw from this case____

Id. (Lead Opinion) 361 Pa.Superior Ct. at 581-82, 523 A.2d at 370. We have already determined that Sweeney had, at least by implication, discharged appellant from further representation after sentencing. Thus, we do not read Scheps as compelling a different result here merely because the client there was in arrears on legal fees and the proceeding involved was a potentially protracted trial rather than an appeal.

The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” It is true that the mandate of the Sixth Amendment is implemented by the .defendant himself when he chooses to retain and pay for private counsel. The state is not involved in this choice. There, the relationship is solely one between private counsel and the client. See United States ex rel. O’Brien v. Maroney, 423 F.2d 865 (3d Cir. 1970). However, it becomes the state’s affirmative duty to furnish indigent defendants the same protections accorded those financially able to obtain them. Id. The seminal decision in this regard, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), decreed the lack of assistance of counsel to indigent defendants to be a denial of equal protection guaranteed under the 14th Amendment to the United States Constitution. The Douglas court held that assistance of counsel for indigents at the first appellate review stage was compelled by the Equal Protection Clause of the 14th Amendment to the United States Constitution. Following this lead, the High Court held more recently that the guarantees of the Due Process Clause of the 5th Amendment to the United States Constitution call for the effective assistance of counsel for indigents on the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Accord Karabin v. Petsock, 758 F.2d 966 (3d Cir.1985); Commonwealth v. Berthesi, 350 Pa.Super. 383, 504 A.2d 891 (1986).

We view the action of the trial court in refusing appellant permission to withdraw tantamount to a denial of Sweeney’s guarantee to the effective assistance of counsel at the first level of appellate review despite its order to appellant to serve as Sweeney’s appellate counsel. Indeed, we cannot conceive of a situation more compelling than the instant one where the interests of justice required assignment of counsel. Sweeney was without further funds to afford appellate counsel, and appellant herein found himself hamstrung representing a client who could no longer afford his services. Therefore, pursuant to Pa.R.Crim.P. 316(c), the trial court was required to appoint counsel. This rule provides:

Rule 316. Assignment of Counsel

(c) In all Cases
(i) The court, of its own motion, shall assign counsel to represent a defendant whenever the interests of justice require it.

(Emphasis added).

From this, we deem the trial court’s steadfast insistence akin to a situation where an indigent defendant erroneously asserts his right to appointed counsel of his own choosing. The right to counsel of one’s choice is not absolute. Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976). In holding that due process concerns implicate a fair and reasonable opportunity to obtain the assistance of counsel, the Robinson court concluded “that although the right to counsel is absolute, there is no absolute right to a particular counsel.” Id., 468 Pa. at 593, 364 A.2d at 674, quoting United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir.1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970).

No brightline rules exist to determine whether a trial court has abused its discretion in denying a Petition to Withdraw as counsel. A balancing test must be utilized to weigh the interests of the client in a fair adjudication and the Commonwealth in the efficient administration of justice. Thus, a resolution of the problem turns upon a case by case analysis with particular attention to the reasons given by the trial court at the time the request for withdrawal is denied. Commonwealth v. Scheps, supra.

Applying the above rationale to the instant case, the trial court, by its Order of September 5, 1986, decided, in effect, that Sweeney had the unequivocal, absolute right to be represented by his former, privately retained counsel, appellant herein, without further compensation to the latter. Given the reasons recited by the trial court set forth herein for disallowing appellant to withdraw, we conclude that the trial court abused its discretion in denying appellant’s request to withdraw as counsel for Sweeney on appeal. Accordingly, we vacate the Order of September 5, 1986, refusing appellant's request to withdraw as counsel and remand for appointment of counsel for John T. Sweeney consistent with this Opinion.

Vacated and remanded for appointment of counsel consistent with this Opinion. Jurisdiction relinquished.

      . We consider the Order appealed from to be a final determination which causes the instant matter to be properly before us. The Commonwealth has neither questioned the appealability of the Order in its Brief to this court nor has it filed a Motion to Quash. Moreover, a panel of this Court in Commonwealth v. Scheps, infra, in text, concluded, without deciding, that an appeal from a similar order, was properly before it. In fact, the dissent in that case noted that the Order was a final appealable one.

      . We have no information concerning the status or disposition of this appeal.

      . The Order of September 5, 1986 — the Order appealed from — makes reference to denial of a Petition to withdraw. The Order of June 27, 1986 refusing appellant’s request to withdraw in the event of an unfavorable decision on post-verdict motions and Ordering him to continue representation at the appellate stage does not refer to a Petition but, rather speaks in terms of appellant's indication to the Court of his agreement to represent Sweeney through the post-verdict stage, only. Neither the record certified to us nor the docket entries disclose any Petition to Withdraw. However, the Clerk of the trial court has assured this Court, via telephone conversation, that after a search of its records, no such written Petition existed. We can thus assume that appellant made his initial request to the trial court orally, especially since appellant, at the sentencing hearing, requested the trial court to reconsider its Order of June 27, 1986. Moreover, appellant sets forth his reasons for withdrawal at sentencing, which reasons form the basis for his argument on appeal.

      . Appellant, by indicating to the court at sentencing that his representation of Sweeney terminated at the trial stage, apparently considered the sentencing proceedings as part of that stage. Appellant there stated, “I was retained to represent Mr. Sweeney through the trial court level and the trial court level is now completed by the imposition of sentence today." (N.T. 40). This, apparently, was not appellant’s position prior to the disposition of post-verdict motions as is evidenced from the language of the Order of June 27, 1986, where the trial court denied his request to withdraw if post-verdict motions were decided unfavorably to Sweeney. From the tenor of appellant’s statement at sentencing, supra, we can only gather that the agreement between appellant and Sweeney included representation at sentencing. Nothing said by appellant at sentencing leads us to believe that appellant represented Sweeney at that proceeding gratis or that the former’s representation and appearance there on behalf of his client was anything other than as per agreement and not otherwise pursuant to the directive of the Order of June 27, 1986.

      . We are at least skeptical of the Commonwealth’s standing in this appeal. The dispute giving rise to the instant appeal focuses on appellant’s objection to continued representation of Sweeney at the appellate stage and the trial court’s entry of the Order appealed from which denies appellant permission to withdraw as Sweeney’s counsel. Neither at sentencing nor anywhere else in the record did the Commonwealth voice objection to appellant’s attempted withdrawal. The Commonwealth’s position is now before us first time on appeal.

      . The Code of Professional Responsibility was adopted by the Pennsylvania Supreme Court effective February 27, 1974.

      . This Rule provides:
      (b) Counsel for a defendant may not withdraw his appearance except by leave of court. Such leave shall be granted only upon motion made and served on the attorney for the Commonwealth and the client, unless the interests of justice otherwise require.
      The concurrence read this Rule as vesting discretion in the trial courts to permit withdrawal in the interests of justice. It would interpret DR 2-110(B) as requiring what an attorney must do under the circumstances set forth therein.

      . The third panel member dissented. The lead opinion apparently relied on DR 2-110(C)(5) and (6) to permit withdrawal. The dissent disagreed that the trial court abused its discretion in refusing counsel’s withdrawal pursuant to DR 2-110(C)(1)(f), which permits withdrawal if the client refuses or ignores an agreement to pay legal fees. The dissent would hold that no "deliberate" disregard of fees existed; rather, defendant there was simply unable to make any further payments and that refusal to allow withdrawal under these circumstances was not an abuse of the trial court’s discretion.

      . The Pennsylvania Constitution also provides this guarantee in Article I, § 9 thereof as follows: "Rights of accused in criminal prosecutions[.] In all criminal prosecutions the accused hath a right to be heard by himself and his counsel____”

      . We would also consider as an integral part of this balancing test the interests of the attorney seeking withdrawal, i.e., factors including, but not limited to, the amount of time, money and energy already expended on the case and whether counsel’s withdrawal would prejudice his client so as to amount to a “desertion” of the latter’s cause. Here, in light of appellant’s scrupulous regard for the rights of his client by filing a Notice of Appeal on his behalf and proffering alternate appellate representation, which the trial court rejected, we cannot say that appellant's actions amounted to a desertion of his client or worked to his prejudice. ,


author: MONTGOMERY, Judge: POPOVICH, Judge,

text:
    533 A.2d 481
    James J. BUTTERMORE and Ann Buttermore, His Wife, Appellants, v. ALIQUIPPA HOSPITAL; Michael Zernich, M.D., Beaver County Sports Medicine, Inc., Donald Kerr, R.P.T., Michael Zernich, M.D. and Donald Kerr, R.P.T. T/D/B/A Physio-Therapy and Sports Medicine Clinic, Rodney Altman, M.D. and William Dumeyer, M.D., Appellees, v. Frances E. MOSER, Appellee.
    Superior Court of Pennsylvania.
    Argued June 2, 1987.
    Filed Nov. 10, 1987.

      Alfred S. Pelaez, Pittsburgh, for appellants.

      John W. Jordan, IV, Pittsburgh, for appellees.
    Before POPOVICH, MONTGOMERY and CERCONE, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellants, James J. Buttermore and his wife, Ann, filed the instant appeal from an order of the lower court which granted a motion for summary judgment which had been filed by the Defendant-Appellees. The primary issue presented for review is whether the lower court was correct in finding that a release signed by the Appellant husband precluded him from asserting the claims he raised against the medical service provider Appellees in this suit. We are constrained to find that the lower court erred in its grant of summary judgment in the circumstances of this case.

In the review of this appeal, we start with the recognition that summary judgment is governed by Pa.R. C.P. 1035(b). That Rule, in pertinent part, states:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The trial court, in reviewing a motion for summary judgment, must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as any admissions on file, giving the non-moving party the benefit of all reasonable inferences which may be drawn. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982). Moreover, the record as a whole must be examined in a light most favorable to the party opposing the motion for summary judgment. Community Medical Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 437 A.2d 23 (1981).

Mindful of such concepts, we turn to the record of the instant case. It indicates that on December 3, 1981, Appellant James Buttermore was injured in an automobile accident when his vehicle was struck by an automobile operated by the Appellee Frances Moser. The collision caused Mr. Buttermore to suffer lacerations to the head, cervical injury, and numbness in his feet and hands. Mr. Buttermore was transported by ambulance to Appellee Aliquippa Hospital, where he subsequently was examined and received treatment by some of the other Appellees. Subsequent to his release from the hospital, Mr. Buttermore received additional medical care for his injuries from other Appellees.

In this suit, Mr. Buttermore has asserted that he sustained damages from the Appellee health care providers as a result of their alleged negligence in failing to diagnose a fracture of his neck, and in prescribing care and actually treating him in a manner which caused an aggravation of such injuries, and a worsening of his condition. He maintained that such negligence caused him to suffer irreversible spinal cord trauma and spinal nerve damage. In the suit, Appellant Ann Buttermore sought to recover damages for loss of consortium.

On November 14, 1983, approximately two weeks before the instant suit was filed, the Plaintiff executed a form release in consideration of the payment of $25,000 by State Farm Mutual Insurance Company, the insurer of Frances Moser, the other motorist. That form release, in relevant part, states:

... I/We being of lawful age, for myself/ourselves, my/our heirs, administrators, executors, successors and assigns hereby remise, release, acquit and forever discharge Frances Moser, et al. his/her successors and assigns, and/or his, her, their, and each of their associates, heirs, executors and administrators and any and all other persons, associations and/or corporations, whether herein referred to or not, of and from all known or unknown, suspected or unsuspected, past, present and future claims, demands, damages, actions, third-party actions, causes of action, or suits at law or in equity, including claims for contribution and/or indemnity of whatever nature, for or because of any matter or thing done, omitted or suffered to be done, on account of or arising from damage to property, bodily injury or death resulting or to result from an accident which occurred on or about the 3rd day of December, 1981 at or near Aliquippa, Pennsylvania, for which I/We have claimed the said Frances Moser, et al. to be legally liable, but this release shall not be construed as an admission of such liability____

Evidence concerning the circumstances surrounding the signing of the release were explained in the deposition testimony of Mr. Buttermore, and also in an Affidavit which was filed in the lower court in opposition to the Appellees’ motion for summary judgment. From such sources, it is clear that Mr. Buttermore was not represented by his own attorney in the course of his settlement with Ms. Moser’s insurer, the Ohio Casualty Company. The settlement resulted after a meeting which lasted a total of less than one hour. During the discussions at that meeting, a representative of Ms. Moser’s insurer specifically stated that the $25,000 offered in settlement did not represent full compensation for Mr. Buttermore’s injuries because any verdict the Appellant would obtain would most certainly be in excess of $25,000. However, that sum was the maximum limitation of Ms. Moser’s policy. Further, Ms. Moser’s insurer advised Mr. Buttermore that their insured had no assets from which an additional recovery might be made. A representative of Mr. Buttermore’s own insurer, State Farm Mutual Automobile Insurance Co., was apparently involved in the negotiations. That involvement led to an understanding that State Farm Mutual would accept $4,000 of the total $25,000 settlement, in satisfaction of any subrogation claims, and State Farm Mutual was therefore made a party to the release which was signed. Mrs. Buttermore did not sign the release and was not named as a party to it. In his Affidavit, the husband Appellant declared that at no time during the negotiations of the settlement or during the execution of the release did any person ever mention or allude to persons or entities other than Frances E. Moser and State Farm Mutual. Moreover, there was never a mention of any accident or act of negligence except the incident of December 3, 1981, when the automobile collision occurred. Specifically, he asserted that none of the Appellees were mentioned during the course of such negotiations, and there was no discussion of any negligence or omissions other than the purported negligent act of Ms. Moser in driving her vehicle into the vehicle operated by the Appellant. In the Affidavit, James Buttermore also states: “In signing the release it was my intention to release only Ms. Moser for her negligent act of driving into me on December 3, 1981. I had no intention whatsoever of releasing any of the Defendants for their subsequent and wholly distinct acts of negligence.”

In an opinion which it filed in this case, the lower court explained its rationale for granting summary judgment. In essence, it explained that it felt compelled to hold that the release, described above, precluded the Appellants from proceeding with any suit against the Appellees. The court determined that its actions in the case were guided by the decision in Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937). Moreover, the lower court stated that it could not avoid application of the rule, of Thompson v. Fox, even if it determined that the discharge of the Appellees release was not contemplated by the parties, at the time when the Appellant signed the release. The court further explained that if it were deemed appropriate that it consider the intention of the parties surrounding the signing of the release, it could not say that the Plaintiffs did not contemplate the release of claims for aggravation of the injuries at the time when Mr. Buttermore signed the release document. We disagree with the lower court’s analysis of applicable law, and also find that it abused its discretion with regard to the determination of whether or not a discharge of claims against the Appellees was intended in connection with the signing of the release document by the Appellant husband.

Thompson v. Fox, was a case which involved a factual situation not dissimilar with the one presented in the instant case. In Thompson, a plaintiff insured in an automobile accident brought an action against the other driver in the United States District Court. Thereafter, the plaintiff settled his suit, giving a general release to the other driver. Subsequently, he instituted suit in the Court of Common Pleas against a hospital and physician who provided treatment for the injuries which he received in the accident. In the case, the Supreme Court affirmed binding instructions for the defending doctor on the ground that the plaintiff had already been paid for his injuries in his settlement with the other driver. The Supreme Court reasoned that the liability of the original wrongdoer extended to the additional harm caused by negligence arising in the medical treatment necessitated by the original accident.

In the half century since it was decided, our Court has thoroughly analyzed Thompson v. Fox, and enunciated the specific circumstances under which its ruling has application. A lead decision in providing guidance to lower courts, and litigants, in that regard, was Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979), which was authored by then President Judge Cercone, my esteemed colleague on this Panel. Lasprogata involved a situation in which a motorist who had been injured in a motor vehicle accident brought an action against various medical care providers as a result of alleged negligent treatment of injuries which he had sustained in the motor vehicle accident. One of the defendants joined the other driver in the action, as has occurred in the instant case. The injured plaintiff had previously brought a trespass against the other driver, which was concluded with the signing of a general release. The medical provider sought joinder on the basis that the injuries to the plaintiff were proximately caused solely by the other driver’s negligence in the accident, and alternatively, that the other driver was jointly liable for contribution with the medical provider defendants. The other driver moved for summary judgment based upon the release he had executed with the plaintiff in the prior action. The lower court granted summary judgment and the medical provider appealed that decision to our Court.

In affirming the decision of the lower court in Lasprogata, our Court specifically recognized that a tortfeasor who causes the original injury, and a medical provider who subsequently aggravates the condition or causes a new injury, are not joint tortfeasors. It was noted that the acts of the original wrongdoer and the negligent physician were severable as to time, with neither having the opportunity to guard against the other’s acts, and that each had been guilty of breaching a different duty owed to the injured party. In setting forth these conclusions, then President Judge Cercone cited Thompson v. Fox, and its holding, and also discussed the Restatement (Second) of Torts, § 457, which provides: “If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third parties in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.” Judge Cercone explained that § 457 was not inconsistent with the principle of separate liability between the tortfeasor and the treating physician in such circumstances, because the injured plaintiff could have brought suit against the tortfeasor for the full extent of his injuries, including pain and suffering, and expenses of the aggravation of the injury caused during the course of medical treatment. Further, he pointed out our Court’s earlier decision in Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 390 A.2d 765 (1978). In Embrey, which also directed attention to the application of the Thompson v. Fox holding, we stated: “The decision in Thompson is simply an application of Section 457 of the Restatement of Torts, Second. It is a holding that a plaintiff cannot recover twice for the same injury. Apportionment between the party who caused the accident and the doctor, both responsible, was not an issue and not discussed.” 257 Pa.Super. at 180, 390 A.2d at 772.

It is also noteworthy that in Embrey, our Court relied upon § 433A of the Restatement of Torts (Second), which states: “Damages for harm are to be apportioned among two or more causes where ... there is a reasonable basis for determining the contribution of each cause to a single harm.” Further, in both Embrey, and in Lasprogata, it was pointed out that under § 434 of the same Restatement, it is the court’s function, rather than the jury’s to determine whether the harm to the plaintiff is capable of apportionment among two or more causes.

The foregoing principles and guidelines have been followed in several subsequent decisions. See, for example, Smialek v. Chrysler Motors Corporation, 290 Pa.Super. 496, 434 A.2d 1253 (1981); Voyles v. Corwin, 295 Pa.Super. 133, 441 A.2d 381 (1982); and Harka v. Nabati, 337 Pa.Super. 617, 487 A.2d 432 (1985).

Our decision in Lasprogata v. Qualls not only discussed the issue of separately identifiable acts of negligence on the part of the original wrongdoer and subsequent medical providers, and the correct approach for a court to follow on the apportionment of damages in such circumstances, but it also addressed the court’s function concerning the release signed by the plaintiff in circumstances analogous to those presented in the instant case. The decision made it clear that when there is a question of whether the release given to the original tortfeasor by the injured party is intended to cover all compensation, including that for injuries sustained in subsequent medical treatment, the crucial issue becomes whether or not the release was intended to release all parties and be for full compensation, or whether, in the alternative, it was intended only to release the original tortfeasor.

Because we have concluded that the lower court erred in this case in broadly applying the holding of Thompson v. Fox, the issue of the court’s interpretation of the intent of the parties to the release becomes critical. As discussed above, although it explained in its opinion that it felt no obligation to interpret the intent of the parties to the release, the lower court nevertheless set forth its conclusion on this matter. In that regard, it stated: “Even if we could avoid the rule of Thompson v. Fox, in the manner suggested by the plaintiffs, we are not convinced that we could conclude that the release of these defendants was not within the parties' contemplation when the release was given.” We simply find no basis in the record to support that determination by the lower court.

Instructive guidance in these circumstances is provided in the recent decision of our Court in Sparler v. Firemen’s Insurance Company of Newark, New Jersey, 360 Pa.Super. 597, 521 A.2d 433 (1987). That case involved the issue of whether a general release of a third-party tortfeasor operated to discharge the separate contractual obligation of a motor vehicle insurer to provide underinsured motorist benefits to the plaintiff. Our Court set forth the following regarding the rules to be applied in the resolution of such issues:

Written releases are construed according to the rules governing the construction of contracts generally. 76 C.J.S. Release § 38 (1952). A release normally covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977); In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 456-457, 477 A.2d 527, 534 (1984); Gateway Center Corp. v. Merriam, 290 Pa.Super. 419, 425, 434 A.2d 823, 826 (1981). The intention of the parties to a written release is paramount, and in construing a release, a court should adopt an interpretation which, under all of the circumstances, “ascribes the most reasonable probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 168, 199 A.2d 540, 543 (1964). See: Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa.Super. 99, 107, 475 A.2d 117, 121 (1984). Although a court will not relieve the parties of the effect of an improvident contract, it must not allow a “rigid literalness” to be used to create an improvident contract for the parties contrary to their intent. Mowry v. McWherter, 365 Pa. 232, 238, 74 A.2d 154, 158 (1950). Thus, the words of a release “should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated.” Brill’s Estate, 337 Pa. 525, 527, 12 A.2d 50, 52 (1940). See: Furtek v. West Deer Township, 19 Pa. D. & C.2d 169, 178, aff’d, 191 Pa.Super. 405, 156 A.2d 581, 585 (1959). 360 Pa.Super. at 601, 521 A.2d at 434-5.

In Sparler, while affirming the lower court’s decision in favor of the insurer on other grounds, our Court determined that the only reasonable interpretation of the release, when considered in light of the circumstances surrounding its execution, was that the plaintiff did not intend to discharge his insurer from its contractual obligation to him. In reaching this determination, our Court deemed it significant that the insurer was not a party to the release, had not negotiated to reduce its obligations under the policy, and paid no consideration to be discharged from any such obligation. It was concluded that to interpret the release as discharging the insurer, under such circumstances, would be to insert a benefit for which no separate consideration was paid, and which would not appear to have been within the contemplation of the parties.

The need for the court to examine all of the relevant facts and circumstances, and not just the language of the release, is also made clear in Cady v. Mitchell, 208 Pa.Super. 16, 220 A.2d 373 (1966). There our Court pointed out: “A release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties when it was given and the words used in a release ought never to be extended beyond the consideration; otherwise it would make a release to the parties, what they never intended or contemplated.” 208 Pa.Super. at 19, 220 A.2d at 374.

In the instant case, the lower court considered the question of the intention of Mr. Buttermore regarding the release in connection with its resolution of the defense motion for summary judgment. At that stage, the court had before it the language of the form release, the uncontradicted deposition testimony of Mr. Buttermore, and the Affidavit he had submitted. From such sources, it is clear that there is no dispute that the Appellees were not parties to the negotiation of the form release, were not named in it, and did not provide any consideration to the Appellant in connection with the release. Moreover, Mr. Buttermore’s sworn testimony, which was not rebutted, indicated that he only intended to release Frances Moser when he signed the release, and accepted a financial settlement from her insurer, and did not intend to release the Appellees. The fact that the Appellant instituted litigation against all of the Appellees only a couple of weeks later certainly creates the inference that he did not intend to discharge his claims against them when he had signed the release prepared by Ms. Moser’s insurer.

In light of all of these factors, we find that the lower court abused its discretion in determining that the release was completed with the intention of discharging all present or potential claims against the Appellee medical providers. There is simply no evidence to support such a conclusion. Accordingly, we must reverse the order of the lower court which granted summary judgment to the Appellees based upon the release, and remand the case to the trial court for further proceedings in the case.

Finally, we must also briefly address the Appellants’ contention that the lower court erred in dismissing the claims of Mrs. Buttermore when it granted summary judgment in favor of the Appellees, We agree with this contention. Mrs. Buttermore was never a party to the release which her husband signed, and we find no basis in the present record to foreclose her right to proceed on her loss of consortium claims.

The judgment of the lower court is hereby reversed, and this case is remanded for further proceedings. Jurisdiction is not retained.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I dissent on the basis of my Concurring Opinion in Sparler v. Firemen’s Insurance Company of Newark, New Jersey, 360 Pa.Super. 597, 521 A.2d 433 (1987).