author: MONTEMURO, Judge.

text:
    677 A.2d 1235
    Raymond GRAVLIN, Appellant, v. FREDAVID BUILDERS AND DEVELOPERS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 25, 1996.
    Filed June 7, 1996.

      Kenneth M. Rodgers, Philadelphia, for appellant.
    Larry L. Turner, Philadelphia, for appellee.
    Before McEWEN, President Judge, and SAYLOR and MONTEMURO , JJ.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge.

This is an appeal from a judgment entered in favor of appellant for $186,361 in a personal injury case. Appellant, a surveyor, injured his shoulder when he stepped backward and fell onto a pile of stones used to anchor a cover for a storm sewer inlet adjacent to the construction site where he was working. Use of a cover, known as a silt saver, was mandated by the Department of Environmental Resources to filter mud and rocks washed from the construction site and prevent this material from entering the sewer system.

Appellant underwent two surgical procedures on his shoulder. Then, claiming total disability from his injury, described as stretch damage to the brachial plexus nerve sheath, appellant brought suit against the general contractor on grounds of negligence for placing the stones around the drain. The jury found the contractor liable and awarded appellant $287,000, but at the same time found him 50% liable for his injury under comparative negligence principles. The award was molded accordingly and delay damages assessed, reaching the final figure of $186,361. Both parties’ post trial motions were denied, and appellant now brings this appeal, raising six issues.

Appellant’s first two claims are closely interrelated. He argues initially that he is entitled to a new trial because the trial court refused a proposed charge to the jury and denied admission of certain evidence concerning appellee’s failure to obtain a city permit for the sewer cover device over which appellant fell. Appellant contends that the situation here requires application of Comment d to Section 350 of the Restatement of Torts Second, which states that

A possessor of land abutting upon the highway who makes an excavation in it without the consent of the municipality or who places material upon it or who obstructs the highway otherwise and in the exercise of his privilege as a possessor is, like any other person who does so, subject to liability for physical harm caused thereby to travelers upon the highway.

As the trial court noted, this section was never meant to apply to circumstances such as the one here, and, moreover, any intrusion onto the highway created by the filter and the stones used to anchor it was at best de minimis. Liability pursuant to use of an unauthorized filter would have to be based on a connection between the violation and the injury. Further, neither of the cases cited by appellant in support of the application of Section 350 is apposite. Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 91 A.2d 232 (1952) concerns “the question of the right of the possessor of land to recover damages for personal injuries sustained by him in consequence of a trespasser’s invasion of his property.” Id. at 446, 91 A.2d at 233. The facts here bear no relation to those in Kopka, as appellant is not the possessor of the property, and appellee is not a trespasser. The other case on which appellant relies, Commonwealth of Pennsylvania Department of Transportation v. Phillips, 87 Pa.Cmwlth. 504, 488 A.2d 77 (1985), is similarly inapt. It involves a wrongful death and survival action brought by the family of a man killed when his car skidded on a patch of ice caused by overflow from a drainage ditch. Although, as appellant points out, the Commonwealth Court quotes Section 350 in a footnote, the footnote merely states that the appellant in Phillips, the Department of Transportation, cites this section in support of its argument, which was, like appellant’s herein, unsuccessful. The trial court did not err in refusing the charge on Section 350, nor in refusing to grant appellant a new trial on that basis.

Appellant’s second issue advances the theory that the jury should have been instructed on negligence per se because of appellee’s violations of the Clean Streams Act, 35 P.S. § 691.1 et seq., and certain City of Philadelphia ordinances in using the wrong silt strainer cover for the sewer inlet. He claims that once having found negligence per se, the jury is foreclosed from considering comparative negligence. Hence, the lack of an instruction on negligence per se mandates a new trial.

Negligence per se has been defined as conduct that may be treated as negligence without further argument or proof as to the particular surrounding circumstances. Centolanza v. Lehigh Valley Dairies, 430 Pa.Super. 463, 477, 635 A.2d 143, 149 (1993) aff'd 540 Pa. 398, 658 A.2d 336 (1995). However,

Violation of a statute, although negligence per se, does not constitute a ground for imposing liability unless it can be shown to be substantial factor in causing the injury. Whether a party’s conduct has been a substantial factor in causing injury to another is ordinarily a question of fact for the jury, and may be removed from the jury’s consideration only where it is so clear that reasonable minds cannot differ on the issue.

Vernon v. Stash, 367 Pa.Super. 36, 46, 532 A.2d 441, 446 (1987) (citations omitted).

Further, it is well settled that there must be a direct connection between the harm meant to be prevented by the statute, and the injury complained of. See Ennis v. Atkin, 354 Pa. 165, 47 A.2d 217 (1946). Even assuming that the ordinances and statute referred to were directed toward preventing the harm appellant suffered, and they are concerned with environmental degradation not personal injury, there is nothing, even about a finding of negligence per se, which removes the comparative negligence issue from the jury’s consideration.

The Comparative Negligence Statute, 42 Pa.C.S.A. § 7102 reads in pertinent part as follows:

(a) General Rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff ... where such negligence was not greater than the causal negligence of the defendant ... against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

Just as the connection must be made between appellee’s conduct and any ensuing injury, appellant’s conduct too must be scrutinized. Consideration of appellant’s own responsibility for the accident would not have been removed by the finding of liability per se on appellee’s part.

This case is, as the trial court observes, a slip and fall, posing the question of whether appellee breached a duty of care owed to appellant. The jury found that it had done so. Nevertheless, appellant’s first two issues are aimed at designating a source for the assignment of liability. However, because appellee was found by the jury to be negligent, appellant’s claims resolve themselves into complaints that he should not have been found partially responsible for his injury, and/or that the award was not large enough. There is thus no necessity or utility in pursuing the liability argument, since the fact of liability having been resolved in appellant’s favor renders moot any discussion of blame.

Appellant’s third issue concerns whether the trial court erred in refusing to instruct the jury on disfigurement as a element of damages where he sustained a four inch scar on his shoulder. Appellant claims, following the Subcommittee Note to 6.01H of the Pennsylvania Suggested Standard Civil Jury Instructions, that because the scar was observable to others when he took his shirt off, his request for the instruction should have been honored.

As appellee points out, it is not clear that the jury could in fact see the scar even when appellant had removed his shirt. This court has held in Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983), that “Conscious suffering from physical injuries, as well as ‘anxiety and embarrassment’ from disfigurement or limitations on activities, are all component parts of a damages claim for pain and suffering.” Id. at 582, 463 A.2d at 1051. However, to the extent that appellant advances the scar as a discrete result of his injury separate and apart from other forms of damages, he has failed to produce evidence, or even make a claim, of separate and distinct damages attributable to the scar. On this basis the trial court was justified in denying the request for an instruction specific to the scar.

Appellant’s next issue is whether the trial court erred in allowing certain testimony from appellee’s expert concerning a supplemental report. Appellant argues that in permitting the testimony, the trial court allowed the expert to change his theory of causation. It is claimed that the initial report from this expert, a neurosurgeon, attributed appellant’s symptoms, pain and immobility in his arm, to two unsuccessful surgical procedures following the fall. If true, this attribution would still have placed the full liability for appellant’s injuries on appellee. Appellant then insists that the second, supplemental report, altered its theory of causation to the injuries appellant received in an automobile accident while visiting in Florida after the fall on appellee’s construction site.

A review of the two reports submitted by Dr. Lin, the neurosurgeon, reveals the following:

In the first report, submitted 11.9.94, Dr. Lin states

[I]t is my professional opinion based on reasonable medical certainty that Mr. Gravlin did not and could not have suffered any Brachial Plexus injury. There is nothing in the history or physical findings that would suggest that the brachial plexus was injured either directly from the fall in(sic) Oct. 10, 1989 or indirectly, from the two surgical procedures.

Report of 11.9.94 at 2 (emphasis added).

At the time this report was prepared, Dr. Lin was unaware of the Florida automobile accident, which had occurred on 4.19.90. He had been told, however, of treatment received by appellant in Florida.

The Supplemental Report, submitted 5.30.95 notes that although appellant’s fall had occurred in October of 1989, there had been no complaint of neuritic pain until 7.30.90, two months after the auto accident; the brachial plexus injury was diagnosed by electrophysiological studies performed on 9.29.90, after the automobile accident, and the physician performing the studies was also unaware of the vehicular accident for which appellant had undergone extensive therapeutic protocols aimed at alleviating severe cervical and lumbar sprain. Dr. Lin’s second report concluded, as the previous one had done, that any abnormality of the brachial plexus could not have come from appellant’s fall, but was attributable to the cervical injury sustained in the automobile accident. Thus the two reports introduced no new theory of causation; the trial court reasonably regarded the second report as supplementary to the first, properly admitted it, and properly allowed Dr. Lin to testify concerning its contents.

Appellant next contends that the trial court erred in allowing him to be examined by appellee’s expert after the start of trial when the administrative judge had already refused appellee permission for the examination.

The pretrial management of the instant case was assigned to Philadelphia’s Day Backward Program, a system designed to eliminate the court’s large backlog of cases by establishing deadlines for certain pretrial proceedings. The trial court found that appellant had produced the report of his psychiatrist, Dr. Kool, on the eve of (the original) trial date more than two months after the date set by the administrative judge of the Day Backward program for close of discovery. Upon receipt of the report, appellee properly petitioned the administrative judge for extraordinary relief in the form of another examination of appellant. However, the request was denied, apparently because the discovery cutoff date had already passed. At the beginning of trial, appellee renewed the motion for appellant to submit to a psychiatric examination. Because the report from appellant’s expert had been supplied so late, the trial court permitted an examination of appellant by appellee’s psychiatrist dining the evening hours after trial had begun. Both counsel were to be present, and the examination was to last no longer than 90 minutes.

Appellant now claims that the report by appellee’s psychiatrist should never have been ordered, that once ordered it should have been produced in time for his own psychiatrist, Dr. Kool, to comment upon, and once the psychiatrist was on the stand, there should have been no limitations placed on his cross-examination.

While it is true that ordinarily a judge should not, in the same case, overrule another judge of coordinate jurisdiction, Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989), “this rule is not a matter of jurisdiction per se; rather it is a rule of sound jurisprudence based on the policy of fostering finality of pretrial applications so that judicial economy and efficiency can be maintained.” Id. at 517, 556 A.2d at 831. Departure from the rule is however, permissible under exceptional circumstances: where there has been an intervening change in the controlling law, a substantial change in the facts or evidence underlying the dispute, or where the previous holding was clearly erroneous and would create a manifest injustice if followed. Commonwealth v. Starr, 541 Pa. 564, 575-76, 664 A.2d 1326, 1332 (1995). We find that given Dr. Kool’s unequivocal statement of permanent psychiatric disability and resultant unemployability, the evidence, which had not hitherto contained such an allegation, had substantially changed, and any further denial of appellee’s motion to have appellant examined by its own psychiatrist would have created a manifest injustice.

We would also note that despite appellant’s claim of prejudice resulting from appellee’s failure to produce the report in time for Dr. Kool to comment upon, appellant made no attempt to introduce rebuttal testimony after appellee’s expert had given evidence.

With regard to the limitations placed on appellant’s cross examination of appellee’s expert, the proposed interrogation concerned a document which was not in evidence, and whose author was never called to the witness stand. The trial court considered the report as hearsay, and properly restricted the questions posed regarding it.

Appellant’s final issue assigns error to the court’s refusal of the jury’s request to review during its deliberations the economic loss calculations prepared by appellant’s expert. Appellant has not, however, directed us to the portion of the record which contains this exchange between the jury and the court, and appellee asserts that no such request was recorded. Appellant has also failed to supply us with any authority which suggests that the denial of such a request is not within the trial court’s discretion, and the trial court itself does not address the matter in its opinion. Under these circumstances, we find no error in the trial court’s decision.

Judgment affirmed.

      . The brachial plexus nerve group is made up of those nerves which radiate to the shoulder and arm, originating in the last four cervical and first thoracic ventral roots emerging from the spine.

        . Restatement of Torts, Second, § 350
      A possessor of land over which there is a public highway is subject to liability for physical harm caused to travelers thereon by a failure to exercise reasonable care in creating or maintaining in reasonably safe condition any structure or other artificial condition created or maintained in the highway by him or for his benefit subsequent to its dedication.

      . Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936), notes that violation of a municipal ordinance is not negligence per se, but is evidence of negligence.

      . The report noted that at the time of the accident, appellant's shoulder was still in an immobilizer from his second surgery.

      . Appellant is described as suffering from chronic dysthymia with a guarded prognosis.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    677 A.2d 1241
    DELMONT MECHANICAL SERVICES, INC., Appellant, v. KENVER CORPORATION and Ronald Srein.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1995.
    Filed June 11, 1996.

      Edward Seglias, Philadelphia, for appellant.
    Jonathan B. Freedman, Philadelphia, for Kenver Corp., appellee.
    James L. Griffith, Philadelphia, for Srein, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from the trial court’s order granting summary judgment in favor of Srein and Kenver Corporation and striking the claim of lien filed by Delmont Mechanical Services. We affirm the trial court’s order.

Delmont Mechanical Services, Inc. (“Delmont”), the appellant and a mechanical and electrical subcontractor, entered into two contracts with Krendell Construction, Inc. (“Krendell”) to provide mechanical and electrical work on property located at 70-72 North Second Street, Philadelphia, Pennsylvania (“the Property”). The first contract with Krendell incorrectly stated that Kenver Corporation (“Kenver”) was the owner of the Property. The second contract correctly stated that Historical Second Street Development Associates (“Historical Second Street”) was the owner of the Property. Robert Welch is the sole shareholder of Kenver and Krendell and the general partner of Historical Second Street.

Delmont did not receive full payment for the labor and material provided and filed a mechanics’ lien against the Property on June 18, 1990. At the time the lien was filed, Historical Second Street was the record owner. However, Delmont named Kenver as the owner or reputed owner of the property. The claim was filed with the Philadelphia County Prothonotary, docketed as No. 0155L, and recorded in the mechanics’ lien index. Delmont admits that the lien was not recorded in the judgment index as required by the Mechanics’ Lien Law.

During the time that Delmont was working on the Property, Welch borrowed money from Mr. Srein and obtained an unsecured ^personal loan in the amount of $800,000. In July 1990, unable to comply with the loan agreement and make payments, Historical Second Street conveyed a first priority mortgage interest in the Property to Srein as security for the loan. In January of 1991, Srein acquired title to the Property from Historical Second Street in lieu of foreclosing on the mortgage. It is important to note that Delmont filed its mechanic’s lien prior to Srein’s acquiring the mortgage interest and title. Srein’s title was recorded in the Department of Records for the City and County of Philadelphia. Before acquiring the mortgage interest, Penn Title Insurance Company performed a title search and provided title insurance to Srein finding that no mechanics’ liens had been filed against the Property. Furthermore, during the closing, Welch stated that there were no encumbrances or liens against the Property. Srein claims he had no knowledge of the lien until after he received title to the Property.

In June of 1991, Delmont brought the present mechanic’s lien action to reduce the hen claim against Kenver and the Property to judgment. Delmont sued Kenver, the entity named in the mechanic’s hen and Srein, the present owner and owner at the time of the suit. Srein’s motion for summary judgment was denied without oral argument and without an opinion by the Honorable Joseph O’Keefe. Delmont’s cross-motion for summary judgment was denied by the Honorable Richard B. Klein after oral argument. Trial was scheduled for June of 1995 before the Honorable Craig Lord. At a pretrial conference it was agreed by counsel that Judge Lord would entertain oral motions for summary judgment by Srein and Kenver on the legal issues of whether Delmont had filed a vahd mechanic’s hen. The parties further agreed that Judge Lord would act as fact finder on the limited issue of determining whether Srein had actual notice of Delmont’s hen prior to obtaining an interest in the Property.

Judge Lord issued the order presently on appeal. He granted Srein’s motion for summary judgment and struck Delmont’s hen on the grounds that the hen failed to comply with the Mechanic’s Lien Law. Judge Lord found that the lien claim incorrectly identified the owner of the Property as Kenver, and therefore, the claim of lien was not indexed against the actual owner of the Property or against any person that ever owned the Property in either the judgment index or mechanics’ lien docket. The trial court did find that Delmont’s lien was indexed against the Property in the mechanics’ lien docket under the property address. The court stated that because the lien did not comply with the requirements of the Mechanic’s Lien Law, it was not valid against Srein or the Property unless Delmont proved that Srein had actual notice of the lien prior to gaining an interest in the Property. The court, in finding that Srein had no actual knowledge of Delmont’s claim of lien prior to his acquisition of the mortgage or title to the Property granted summary judgment in favor of Srein and Kenver and struck Delmont’s mechanic’s lien claim. Delmont appeals.

Our standard of review in assessing the grant of a motion for summary judgment requires us to view the record in a light most favorable to the non-moving party. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Zearfoss v. Frattaroli, 435 Pa.Super. 565, 646 A.2d 1238 (1994). In the present case, Delmont’s mechanic’s lien is invalid because he failed to comply with the requirements of the Mechanics’ Lien Law, and Srein and Kenver are entitled to judgment as a matter of law.

The Mechanics’ Lien Law is a creature of statute in derogation of the common law and must be given strict construction. King’s Oak Liquidators v. Bala Cynwyd Hotel Associates, 405 Pa.Super. 250, 592 A.2d 102 (1991). Therefore, any questions of interpretation should be resolved in favor of a strict, narrow construction. Raymond S. Hess, Inc. v. Kutner, 13 D. & C.3d 556, aff'd, 268 Pa.Super. 610, 413 A.2d 1125 (1979). In order to effectuate a valid lien claim, the contractor or subcontractor must be in strict compliance with the requirements of the Mechanics’ Lien Law. Castle Pre-Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, 416 Pa.Super. 53, 610 A.2d 503 (1992). See Este v. Pennsylvania R. Co., 27 Pa.Super. 521 (1905) (strict compliance applies to the substance of the Mechanics’ Lien Law). In the present case, Delmont’s lien claim is invalid because he failed to comply with two requirements of the Mechanics’ Lien Law.

Delmont failed to satisfy the elements of 49 Pa.C.S. § 1503 which require the lien claim to state “the name and address of the owner or reputed owner.” 49 Pa.C.S. § 1503(3) (Purdons 1965). Appellant argues it met the requirement because it set forth the name of the reputed owner, Kenver. To support its argument, Delmont cites to the definition of reputed owner as stated by Black’s Law Dictionary. Reputed owner is defined as “one who has to all appearance of title to, and possession of, property; one who, from all appearances, or from supposition, is the owner of a thing. He who has the general credit or reputation of being the owner or proprietor of goods.” Appellant asserts that the first contract naming Kenver as the owner of the Property and other representations by Welch caused Delmont to believe that Kenver was the owner of the Property. Delmont argues Welch created the appearance that Kenver was the owner of the Property, and therefore Kenver should be the reputed owner under section 1503. Appellant, however, was unable to provide and our independent research was unable to uncover any cases which adopt or apply Delmont’s definition of reputed owner.

The only case law dealing with the validity of a lien which names a reputed owner involves the situation where the owner who contracted for the work transfers the property before the lien claim is filed. The court consistently held that a lien is valid if it names either the owner at the time the work began or the present record owner of the property. See Steinman v. Miller; 2 Penny. 190 (Pa.1882) (omission of the name of the owner was a fatal defect and not cured by filing the lien against the contractor naming him as reputed owner since he was never the owner and had no interest in the lots); Fourth Avenue Baptist Church v. Schreiner, 88 Pa. 124 (1878) (lien sufficient if filed against the person who was the owner at the commencement of the building when the material was contracted for or the record owner at the time the lien was filed); Jones v. Shawhan, 4 Watts & Serg. 257 (Pa.1842) (same). The law is clear that the Mechanics’ Lien Law must be strictly and narrowly interpreted, and since the Pennsylvania Supreme Court has discussed reputed owner only in terms of naming the owner at the time the work was performed or the present record owner, we will not extend the concept of reputed ownership to include the present situation. Kenver never had an ownership interest in the Property, and we find no reason to hold that Kenver was a reputed owner under the statute especially when the second contract stated Historical Second Street was the owner and put Delmont on notice that there was confusion as to who owned the Property.

The appellant cites to Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159 (1983) for the proposition that reputed ownership involves factual issues of appearance and reputation potentially involving representations by one in a position to know. The court in Chambers held that the actual owner was estopped from arguing that a mechanic’s lien was invalid where the lessee led the contractor to believe that he was the owner of the property. The estoppel argument adopted by the court in Chambers dealt with that requirement of the Mechanics’ Lien Law which requires the owner to sign a statement that improvements made to the leased premises are in fact for the immediate use and benefit of the owner. 49 Pa.C.S. § 1303 (Purdons 1965). The court stated that it would not permit a corporate landlord to avoid a mechanics’ lien against its property where the tenant of the property, who was also the president and sole stockholder of the corporate landlord, led the contractor to believe that he was the actual property owner. Appellant argues that Srein should be es-topped from arguing the mechanic’s lien is invalid since Welch, the sole stockholder of Kenver and Krendell and the general partner of Historical Second Street, led Delmont to believe Kenver was the owner of the property. Chambers, however, is not applicable. First, Chambers does not deal with the definition of reputed owner and whether a lien claim is valid under section 1503. Secondly, in Chambers there was evidence of the tenant’s misrepresentation that he was the owner of the property; he contracted for the work and paid the contractor with personal checks and checks from other corporations. In fact, in the present case the second contract which states the correct owner as Historical Second Street undermines appellant’s misrepresentation argument. Furthermore, as stated above, the Pennsylvania Supreme Court has defined reputed owners under § 1503 narrowly and we will not expand the concept of reputed ownership.

The law is also clear that failure to correctly name the owner of the property is a fatal defect and renders the lien invalid. Steinman v. Miller, 2 Penny. 190 (Pa.1882); Houston Smith & Co.’s Appeal, 6 W.N.C. 162 (Pa.1878). Since Delmont failed to name the owner or reputed owner of the property under section 1503, the hen is invalid.

Delmont admits that its lien claim was not filed in the judgment index. The Mechanics’ Lien Law under 49 Pa.C.S. § 1507 requires the claim to be entered on the judgment index and the mechanics’ hen docket against the owner. The issue before us is to determine how Delmont’s lien, which fails to state the owner or reputed owner and which is not filed in the judgment index, affects Srein, a subsequent purchaser of the Property. The Supreme Court of Pennsylvania in Appeal of Cessna, 10 A. 1, 7 Sadler 183 (1887) held that an improperly filed mechanic’s lien could not be sustained against the property interest of creditors or purchasers who had no actual notice of the lien claim. In Cessna, a mortgage on the property was granted and recorded in July of 1885, and in December of 1885, a mechanic’s lien was filed but never indexed in the judgment index. It was only indexed in the mechanics’ lien docket. The Supreme Court stated:

The mechanic’s claim was filed December 10, 1885, and had it been indexed the lien would have continued against subsequent lien creditors. Here there is no question of the continuance of the lien against the owner of the building, or against a creditor who had notice that the claim was filed. There is no evidence that the owners of the mortgage had notice. The docket is the only thing which affects encumbrancer and purchasers.

Cessna, supra at 2.

Appellant argues Cessna is not controlling because in Cessna the mortgage was filed before the lien, whereas in the present case the lien was filed before the mortgage. We disagree. First, the court’s statement of law that a lien improperly indexed does not continue against subsequent creditors unless they have notice is clear. Second, the appellant failed to recognize that a lien has priority over a previously filed mortgage where there is an erection or construction of an improvement. As a result, the timing for filing the mortgage and lien is not an essential element of the holding in Cessna, and Cessna applies to the present case. In fact, the case before us is a stronger case than Cessna for the proposition that a lien improperly filed is not valid against subsequent purchasers who did not have notice. In the present case, not only did appellant fail to record the lien in the judgment index, but appellant filed the lien without naming the proper owner or reputed owner of the property.

Appellant’s reliance on Irish v. Harvey & Co., 44 Pa. 76 (1862) for authority that a lien need not appear in both the judgment index and mechanics’ lien docket is without merit. The Pennsylvania Supreme court in Irish allowed the lien to be valid as against the owner and contractor for services even though it was only indexed in one docket. The court made it clear that whereas the lien was still valid between the claimant and original owner, it would not be valid against a subsequent purchaser or third party not in privy to the contract for services.

Appellant also argues that Srein should be held to a constructive notice standard. Appellant asserts that Srein had constructive notice because the lien could have been found under the mechanics’ lien docket which is listed by property. Appellant’s argument fails in light of Cessna, supra and The York Bank Appeal, 36 Pa. 458 (1860). The Pennsylvania Supreme Court in York held that a party acquiring an interest in property is charged with constructive notice only where the encumbrance or lien was validly and properly entered in the judgment index. The Court stated that when the lien does not meet legal requirements or is not properly filed, the lien is not valid against a subsequent purchaser unless the subsequent purchaser had actual knowledge of the lien or encumbrance. York, supra at 461. Pursuant to the parties’ agreement, the trial court acted as a finder of fact, heard testimony and found that Srein had no actual knowledge of Delmont’s mechanic’s lien prior to obtaining interest in the property. As a reviewing court we will not disturb the findings of a trial judge sitting as a trier of fact unless there is a determination that those findings are not based upon competent evidence. 2401 Pennsylvania Ave. Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 319 Pa.Super. 228, 466 A.2d 132, aff'd, 507 Pa. 166, 489 A.2d 733. Upon review, Judge Lord’s finding that Srein had no actual knowledge is supported by the record. Since we have determined that Delmont failed to comply with the Mechanics’ Lien law and determined that Srein lacked actual knowledge of the lien, the trial court’s order granting summary judgment in favor of Srein and Kenver and striking Delmont’s lien as invalid was appropriate.

Order affirmed.

      . At the time Krendell contracted with Delmont, Historical Second Street was the record owner of the Property. Historical Second Street’s deed was recorded in the Department of Records for the City and County of Philadelphia. Kenver has never had any ownership interest in the Property.

      . It should be noted that Delmont served pre-lien notice and notice of filing of the Lien upon Kenver. Nothing in either notice referred to or was directed to Historical Second Street. Furthermore, no notice was ever sent to Historical Second Street.

      . The prior denials of summary judgment by Judge O’Keefe and Judge Klein do not preclude Judge Lord from granting summary judgment. The general rule is that a judge must follow the decision of a colleague on the same court when based on the same set of facts. Harrity v. Medical College of Pennsylvania Hospital, 439 Pa.Super. 10, 653 A.2d 5 (1994). In the present case, the previous summary judgment proceedings did not address the issue of whether the mechanic's lien was invalid because it was not filed in the judgment index, nor did they involve evidence concerning Srein’s actual notice of the mechanic’s lien. Furthermore, Judge O’Keefe’s denial of Srein's motion for summary judgment was without opinion.

      . Appellant also cites Otis Elevator v. Hummingbird Hill Development Corp., 69 Berks 46 (C.P. Berks 1976) for the proposition that a mechanic's lien naming a reputed owner is valid where there is an appearance that the reputed owner has title to the property at the time the contract was executed by the parties. Appellant’s interpretation of Otis is incorrect. Otis stands for the proposition that a lien is valid if the lien claim names the owner at the time the work was contracted for even if there is a different owner at the time the lien is filed.

      . 49 Pa.C.S. 1507 provides:

        The prothonotary shall enter the claim, verdict and judgment upon the judgment index and mechanics’ lien docket against the owner. When a claim, verdict or judgment is stricken, reversed or satisfied, or the name of a defendant is stricken or an action upon the claim to reduce it to judgment is discontinued, or judgment is entered thereon in favor of the defendant, a note shall be made on the judgment index.


author: POPOVICH, Judge.

text:
    677 A.2d 1247
    COMMONWEALTH of PENNSYLVANIA, Appellant, v. Andrew P. PACHIPKO, Appellee.
    Superior Court of Pennsylvania.
    Argued March 21, 1996.
    Filed June 13, 1996.

      J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for Com., appellant.
    Roy K. Lisko, State College, for appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Centre County which partially granted defendant’s petition for Writ of Habeas Corpus on May 26, 1995. Defendant was charged with nine counts of Furnishing a Minor with Alcohol and two counts of Corrupting a Minor arising out of an evening of drinking which resulted in the death of a teenager, Amber Day. Defendant pleaded guilty to nine counts of furnishing alcohol and one count of corruption, and the trial court granted defendant’s petition for habeas corpus with regard to the remaining corruption charge. On this appeal, the Commonwealth challenges the trial court’s partial grant of habeas corpus presenting the following issue for review:

Whether the lower court committed an error of law and abused its discretion in basing its habeas decision upon an issue raised by neither party, without notice or opportunity to be heard on the defect perceived by the court, and by further refusing to permit the taking of testimony relative to that issue.

Upon review, we find that, although the trial court erred in granting defendant’s petition for habeas corpus, the Commonwealth is without remedy because double jeopardy prohibits subsequent prosecution of that offense. Accordingly, the order of the trial court is affirmed.

The evidence presented at trial revealed the following: In the early morning hours of May 22, 1994, seventeen-year-old Amber Day was a passenger in a vehicle driven by eighteen-year-old Adam Nichols. Day was killed when the vehicle in which she was a passenger was hit broadside by a vehicle driven by nineteen-year-old Wesley Deitrich. On the evening before Amber Day was killed, May 21, 1994, at approximately 9:30 p.m., defendant and two friends, Jay Longo and Roger Heverly, returned to defendant’s residence to find Adam Nichols and Jason Dietz at the house with eight to ten empty beer bottles lying on the ground. Defendant had a twelve-pack of Budweiser beer which he left outside in a cooler and another twelve-pack of beer in his refrigerator. Longo had a twelve-pack of beer in his car. Nichols and Dietz also had three six-packs of beer in their car. At approximately 10:30 p.m. that evening, Amber Day, Ken Oliver and Wesley Deitrich came to defendant’s residence. During the evening, Chris Yeager, Amanda Faulkner, Denny Coleman, Jamie Corl and Kevin Horner were also present at defendant’s residence. All of the individuals present were under the age of 21 except defendant and Mr. Oliver.

Ms. Corl testified at trial that every person mentioned above was drinking at defendant’s house. In particular, Ms. Corl testified that she, Coleman, Longo, Dietz, Horner and Nichols were all drinking alcoholic beverages at appellant’s residence on May 21, 1994. When Ms. Corl was asked if she saw Amber Day drinking, her response was inaudible. Yeager and Horner each testified that they drank beer while at defendant’s house. Defendant admitted that he was aware that minors were consuming alcohol at his residence and that he allowed it to continue. However, defendant denied ever giving or offering beer to the minors or encouraging them to drink. Yeager, Horner and Ms. Corl testified that defendant did not offer or give them any beer and that they did not know whether defendant was aware that they were drinking beer. Yeager testified that defendant was in a position to see him drinking and Horner and Ms. Corl testified that defendant was talking to everyone present that evening. All persons present, except defendant, left around midnight, and Amber Day was killed soon thereafter.

Defendant was subsequently charged with nine counts of Furnishing Alcohol to a Minor and two counts of Corruption of a Minor with respect to Ms. Corl and Amber Day. A preliminary hearing was held on December 14, 1994, at which time defendant was held for court on all charges. On January 9, 1995, defendant filed a Petition for Habeas Corpus challenging the District Justice’s holding him for court. On February 7, 1994, the trial court ordered defendant to file an amended petition setting forth with specificity the claims he wished to make and the grounds therefor in accordance with Pa. R.Crim.P. Rule 9020. Defendant’s amended petition contained the following specific allegations:

12. Defendant improperly and unlawfully remains in custody on the charges of selling or furnishing liquor or malt or brewed beverages to minors 18 Pa.C.S. § 6310.1(a) in that:
a. The commonwealth failed to provide any evidence or testimony from alleged minors Dennis R. Coleman, Jerrad J. Longo, Jason W. Dietz, Wesley D. Deitrich, Adam L. Nichols or Amber L. Day that the defendant furnished beer to them;
b. The Commonwealth failed to provide any evidence that Defendant furnished the alleged beer to any minor. On the contrary, the only evidence presented was that the Defendant was in the same location where the alleged drinking took place. Therefore, there is no proof of furnishing.
13. Defendant improperly and unlawfully remains in custody on the charges of corruption of minors 18 Pa.C.S. § 3301(a) in that:
a. There was no evidence presented that Defendant furnished anything to Amber L. Day or Jamie M. Corl. On the contrary, the only evidence presented was that the Defendant was in the same location where Corl and Day allegedly drank beer.
b. There was no evidence presented that Amber L. Day drank anything at the Defendant’s residence.

Amended Petition for Writ of Habeas Corpus, 2/16/95, pp. 2-3.

On May 12, 1995, the trial court held a hearing on defendant’s amended petition. At this hearing, the Commonwealth entered into evidence the preliminary hearing transcript and defendant’s statement to the police. On May 26, 1995, at the Omnibus Pretrial Motion hearing, the Commonwealth learned for the first time that defendant was pleading guilty to the Information because the trial court had decided to grant defendant’s habeas petition as to the Corruption of a Minor charge with respect to Amber Day. The trial court held that the Commonwealth failed to establish a prima facie case as to the corruption charge regarding Amber Day. Specifically, the trial court stated that, although the Commonwealth satisfied the element of corrupting conduct, it failed to present evidence that Amber Day was under the age of eighteen.

The Commonwealth herein appeals the trial court’s grant of defendant’s Petition for Habeas Corpus based on an issue which was not raised by either party and without notice to the Commonwealth to provide an opportunity to remedy the defect. Upon review of the trial court’s decision in this case, we find that the trial court erred in granting defendant’s petition on an issue not presented and without affording the Commonwealth an opportunity to remedy a defect which could have been easily cured.

Rule 9020 of the Pennsylvania Rules of Criminal Procedure provides that “[t]he failure, in any motion, to state a type of relief or order, or a ground therefor, shall constitute a waiver of such relief, order, or ground.” Pa.R.Crim.P. Rule 9020(d). In addition, this court has expressed its disapproval when a trial court raises a defense or issue which was not raised by either party. It is clearly inappropriate for a trial court to raise an issue on behalf of a party, thereby acting as an advocate. MacGregor v. Mediq Inc., 395 Pa.Super. 221, 230, 576 A.2d 1123, 1128 (1990); see also Wojciechowski v. Murray, 345 Pa.Super. 138, 142, 497 A.2d 1342, 1344 (1985) (trial court had no authority to employ sua sponte Political Subdivision Tort Claims Act as basis for dismissing claim against defendant who had not raised defense).

With respect to the Corruption of Minors charge, defendant’s amended habeas petition challenged the Commonwealth’s prima facie showing that “defendant furnished anything to Amber L. Day or Jamie M. Corl” and that there was no evidence presented that Amber Day drank anything at the Defendant’s residence. Nowhere in defendant’s amended petition did he contest the age of Amber Day. Defendant merely contended that the Commonwealth had failed to establish prima facie evidence of the element of corrupting conduct. In its opinion, the trial court stated that “Ms. Corl’s general testimony, together with Defendant’s admissions, satisfies the Commonwealth’s prima facie burden with respect to the element of corrupting conduct.” Trial Court Opinion, 5/20/95, pp. 6-7. Upon deciding defendant’s concern in favor of the Commonwealth, the trial court was not at liberty to raise an uncontested issue sua sponte, the age of Amber Day, and base its grant of defendant’s habeas petition thereon.

Furthermore, when presented with a petition for habeas corpus, the scope of evidence which a trial court may consider is not limited to the evidence presented at the preliminary hearing. Commonwealth v. Morman, 373 Pa.Super. 360, 365, 541 A.2d 356, 359 (1988); Commonwealth v. Lawson, 437 Pa.Super. 521, 528, 650 A.2d 876, 879 (1994). Rather, the Commonwealth is entitled to present such additional evidence as is necessary to establish a prima facie case against the accused. Id. The trial court should accept the presentation of any additional evidence by the Commonwealth to prove its prima facie case. Morman, supra, 373 Pa.Super. at 367, 541 A.2d at 360.

Therefore, not only did the trial court grant defendant’s habeas petition based upon an uncontested issue not raised by either party, but, it did not afford the Commonwealth notice of its decision or an opportunity to present evidence that Amber Day was under the age of eighteen. The trial court erred by granting defendant’s habeas petition on the basis that no evidence of Amber Day’s age was presented, especially since it could easily have been presented by the Commonwealth.

Although we find that the trial court erred in granting defendant’s petition for habeas corpus, double jeopardy precludes the relief requested by the the Commonwealth. 18 Pa.C.S.A. § 110 provides that current prosecution is barred by a former prosecution for a different offense when:

(1) The former prosecution resulted in an acquittal or in a conviction ... and the subsequent prosecution is for: ...
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; ...

18 Pa.C.S.A. § 110.

When the trial court accepted defendant’s plea of guilty to nine counts of furnishing alcohol and one count of corruption of minors, jeopardy attached. Commonwealth v. Branch, 417 Pa.Super. 571, 574-75, 612 A.2d 1085, 1087 (1992). Defendant’s furnishing alcohol to minors was the conduct upon which the corruption of a minor charge was based. Therefore, prosecution for the corruption charge regarding Amber Day was henceforth precluded when the trial court accepted defendant’s guilty plea on the remaining charges. See Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995); Commonwealth v. McPhail, 429 Pa.Super. 103, 631 A.2d 1305 (1993); 18 Pa.C.S.A. Rule 110.

The Commonwealth did not object to the trial court’s acceptance of appellee’s guilty plea. However, it informed the trial court of the double jeopardy problem which would occur if it were to re-file the corruption charge against defendant. Transcript of Omnibus Pre-Trial Motion, 5/26/95, pp. 3-4. Instead of settling the issue at that time, the trial court accepted defendant’s guilty plea and responded to the Commonwealth’s concern by warning defendant that the Commonwealth may be able to re-file the charge. Id. at 7. Clearly, such a warning was not sufficient to preserve the Commonwealth’s opportunity to re-file the charge. As much as we disapprove of the trial court’s conduct, we cannot compromise defendant’s right to be protected from successive trials for offenses arising from the same criminal episode. Accordingly, we must affirm the order of the trial court.

Order affirmed.

      . We recognize that, ordinarily, the double jeopardy issue would not be a concern until the Commonwealth refiles the charge. However, defendant has argued in his brief that double jeopardy would preclude subsequent prosecution. Accordingly, in the interest of efficiency, we will address the matter at this time.


text:
    677 A.2d 1250
    Lorraine M. COST, an individual, Appellant v. Georgia L. COST, a/k/a Georgia L. Pawk, an individual, Richard G. Kotarba, Esquire and Meyer, Unkovic & Scott, Appellees.
    Superior Court of Pennsylvania.
    Argued April 10, 1996.
    Filed June 13, 1996.

      Jonathan P. Clunies, Pittsburgh, for appellant.
    Michael R. Plummer, Pittsburgh, for Georgia Cost, appellee.
    Victor J. Sullivan, Pittsburgh, for Kotarba, appellees.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This case involves an appeal by the plaintiff/appellant, Lorraine M. Cost, from the order of the Court of Common Pleas of Allegheny County granting preliminary objections in the nature of a demurrer in this attorney-malpractice action. We affirm.

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim upon which relief can be granted. In disposing of a demurrer every well-pleaded, material, relevant fact set forth in the pleading to which it is filed, together with all reasonable inference therefrom, is admitted as true. A demurrer will only be sustained where a complaint or pleading shows with certainty that upon the facts averred therein, the law will not permit the plaintiff or pleading party to recover. [Citations omitted]

Del Boring Tire Service, Inc. v. Barr Machine, Inc., 285 Pa.Super. 66, 426 A.2d 1143, 1146 (1981). Where doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. DeGenova v. Ansel, 382 Pa.Super. 213, 555 A.2d 147, 149 (1988).

With the preceding standard of review in mind, the pleadings indicate that on March 15, 1996, the plaintiff filed a complaint alleging professional negligence on the part of Attorneys Georgia L. Cost, a/k/a Georgia L. Pawk, Richard G. Kotarba and the law firm of Meyer, Unkovic & Scott, for whom Kotarba was employed, regarding the “buyout” of Anthony C. Cost’s ownership interests in various family businesses. To complete the transaction, various agreements had to be signed by all interested parties, one of whom was the plaintiff as spouse of Frank A. Cost. Plaintiff was asked to execute “spousal joinder” forms creating an indemnification obligation and release on the part of the plaintiff in favor of the “Anthony parties.”

More specifically, the plaintiff claimed that the attorneys representing the partners and entities in the sale of the Cost businesses owed her a duty, “as counsel to the various family businesses, to explain to Plaintiff what was going on in the transaction at or prior to the execution of the aforementioned documents.” As a result of counsels’ failure to advise the plaintiff of the ramifications of the transaction, the plaintiff allegedly “incurr[ed] substantial liability to the Anthony parties in the form of certain tax indemnifications for various liabilities of companies as well as attorneys fees and expert expenses in Plaintiffs subsequent efforts to undo the effect of said indemnifications.” See Complaint, Paragraphs 20, 22, 35 & 38. All of which, claimed the plaintiff, amounted to negligent behavior by counsel in breaching a duty of professionalism owed to complainant and exposed each to legal malpractice. Id. at 23 & 39.

The first set of preliminary objections were granted without prejudice to file an amended complaint, which was submitted on June 5, 1996, asserting that the defendants/Pawk, Kotarba and Meyer, Unkovic & Scott acted as counsel for the Cost entities (Cost Corp., Cost Realty, C & F Partnership, C F & A Associates, and Anthony F. Cost & Sons, Inc.) and drafted documents surrounding the “buyout” of Anthony C. Cost’s interest in the Cost enterprises by Frank A. and Charles L. Cost. The closing occurred in the appellant’s absence. This necessitated the execution of various settlement, release, indemnification and spousal joinder documents by the plaintiff at the defendant/Pawk’s office within a week after closing.

At no time, alleged the plaintiff, did the defendant/Pawk either “dispel Plaintiffs reasonable belief that Pawk was acting as Plaintiffs counsel” or offer to explain the import, operation, legal consequences or ramifications of the documents executed even though the defendant/Pawk had “knowledge that Plaintiff misunderstood Pawk’s role in the transaction----” Amended Complaint, Paragraphs 25, 31, 34 & 39. Therefore, as a result of this nonfeasance (breach of duty-owed to inform plaintiff “of the ramifications of the transaction or her option to seek independent counsel”), the plaintiff averred she “could be directly exposed to income tax, interest and penalty liabilities of up to $1,764,000.00” to undo the effect of certain tax ramifications executed to insulate the “Anthony parties” as part of the Cost “buyout”. Id., Paragraph 47 (Emphasis added).

To the same effect, the plaintiff assigned professional negligence to Kotarba and his law firm (Meyer, Unkovic & Scott) in breaching a duty of representation and disclosure of the consequences of the Cost “buyout” or to seek independent counsel, the failure of which purportedly caused the plaintiff to “incur[] substantial liability to the Anthony parties in the form of certain tax indemnifications for various liabilities ... attorneys fees and expert expenses ... to undo the effect of said indemnifications.” Id., Paragraphs 74 & 96.

Preliminary objections were filed and granted by the court on grounds that no legal malpractice claims existed because: (1) there was no express contract for legal representation (“privity”) between the plaintiff and Pawk/Kotarba; (3) the plaintiff never sought advice or assistance from Pawk/Kotarba; and (3) Pawk/Kotarba never expressly or impliedly agreed to serve as plaintiffs separate counsel. Likewise, the court held that the plaintiff could not “reasonably expect” that the defendants would describe the terms and legal significance of the various documents to be executed. Further, the court wrote:

In summary, plaintiff knew that Pawk/Kotarba had been retained by her husband Frank Cost and his brother Charles Cost to represent their interests and the interests of their business entities in the dispute with Anthony Cost and she knew that there was a settlement proposed by Frank Cost and Charles Cost that required the signatures of Charles’ wife and herself. Plaintiff also knew that Frank Cost and Charles Cost desired Frances Cost and plaintiff to sign the necessary documents. In this situation, there is no legal principle under which the lawyers retained would owe plaintiff the full panoply of obligations that a lawyer owes a client.

Court Opinion at 8-9. This appeal followed and raises, in essence, the yet unresolved question of, absent any written or oral contract of employment between counsel and complainant, what satisfies the “reasonable belief’ criterion to withstand preliminary objections and fill the traditional contractual void sufficient to hold counsel liable for legal malpractice? Resolution of the query is to take place on a case-by-case basis after a review of the pleadings against the backdrop of the applicable law.

We begin our analysis with Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) (Plurality), wherein our Supreme Court retained “privity (an attorney-client or analogous professional relationship, or a specific undertaking) [as an element of proof necessary] to maintain an action in negligence for professional malpractice.” The only exception being “a narrow class of third party beneficiaries ... under Restatement (Second) of Contracts § 302 where the intent to benefit is clear and the promisee (testator) is unable to enforce the contract.” Id. at 51-52, 459 A.2d at 747.

At bar, the appellant does not seek third-party beneficiary status. Rather, her malpractice claim against the defendants/Pawk, Kotarba and Meyer, Unkovic & Scott is predicated upon principles of negligence. See Amended Complaint, Paragraphs 43, 45-48, 68-75 & 90-97. As such:

Attorney malpractice claims, whether civil or criminal, bear the traditional elements of a general claim of negligence— duty, breach, causation and damages. Bailey v. Tucker, [533] Pa. [237], 621 A.2d 108 (1993). Absent an express contract, an implied attorney-client relationship will be found if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him. Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir.1991).

Atkinson v. Haug, 424 Pa.Super. 406, 622 A.2d 983, 986 (1993).

Here, with regard to Hang’s Points Nos. 1, 2 & 3, the pleadings are clear that the plaintiff neither sought nor received “legal advice” or “assistance” from the defendants. See Amended Complaint, Paragraphs 33 (“At the time the documents were executed, Pawk simply displayed the documents to be executed ..., and Pawk stood opening each copy to the appropriate places while Plaintiff sat and signed as directed.”); 34 (“At no time prior to or on the day of the execution by Plaintiff, did Pawk either explain or offer to explain to Plaintiff the import or operation of the documents she was being directed to sign nor the legal consequences and ramifications of Plaintiffs signature on the aforesaid document[s].”); 40 (“At no time did Pawk attempt to ascertain whether Plaintiff had any misunderstanding with regard to Pawk’s role in the transaction or suggest that Plaintiff needed or should have separate counsel”); 46 (“... Pawk[ ] ... fail[ed] to inform Plaintiff of material facts____”); 47 (“... Pawk[ ] fail[ed] to advise Plaintiff of the ramifications of the transaction or options to seek independent counsel____”); 56 (“... Kotarba failed to communicate with the Plaintiff during the negotiations and drafting phase of the transaction.... ”); 57 (“... Kotarba neglected to communicate with the Plaintiff____”); 58 (“Plaintiff was never contacted by Kotarba prior to closing.”); 59 (“At no time ... did Kotarba explain [anything to] ... Plaintiff [regarding] ... the aforementioned documents.”); 73 (“... failure by Kotarba to inform Plaintiff of material facts ... [regarding] spousal joinder.”); and 74 (“... failure of Kotarba to advise Plaintiff of the ramifications of the transactions____”).

See also Plaintiffs Deposition attached to Defendants/Kotarba and Meyer, Unkovic & Scott’s Preliminary Objections to Plaintiffs Amended Complaint at pages 48-51 (Indicating there was no direct or indirect contact with Kotarba or Meyer, Unkovic & Scott by the Plaintiff). To the same effect, regarding the lack of interaction between the plaintiff and the law firm, see Amended Complaint, Paragraphs 82-85 (No communication with plaintiff by law firm), 95 (Failure to inform plaintiff), and 95 (Failure to advise plaintiff).

Inasmuch as the pleadings fail to allege that the plaintiff “sought” legal assistance, which the defendants either expressly or impliedly agreed to render, this dispenses with the need to examine the last prong to Hang’s allowance of an implied attorney/client relationship. Even if, arguendo, such were not the case, it is evident from the Amended Complaint that the plaintiffs belief that the defendants represented her interests was a subjective one, which is insufficient to overcome the grant of preliminary objections. Cf. Haug, 424 Pa.Super. at 415, 622 A.2d at 987-988 (“Appellant’s subjective belief an attorney/client relationship existed between [the appellant] and [Attorney] Haug is an insufficient basis upon which to find there existed a genuine issue of material fact precluding summary judgment.”).

The “reasonable belief’ referred to by the plaintiff has its origin in the rather nebulous concept that family ties (between plaintiff and defendant/Pawk), attorney status (of defendant/Pawk) and conduct (“demeanor” of defendant/Pawk during the execution of the documents) melded into a duty to protect the plaintiffs interests or “correct the misunderstanding” of representation and advise the plaintiff to seek independent counsel. See Amended Complaint, Paragraphs 39, 43 & 45. As for Kotarba: “Based upon Plaintiffs express information from Sonny [her husband], Kotarba’s prior representation of various partnerships in which Plaintiff held an equitable interest by virtue of her marital estate and her receiving the phone call to come to Kotarba’s offices at M[eyer,] U[nkovic & ] S[cott] for the closing, Plaintiff believed that Kotarba was acting on behalf of Plaintiff to protect Plaintiffs interests in the Anthony [C. Cost] Buyout.” Id. at 66.

Nonetheless, the fact remains that the plaintiff never sought nor received legal assistance from any of the defendants either prior to or at the time of the “buyout” involving the Cost enterprises. This undermines any reliance upon the “subjective” belief that the defendants owed the plaintiff a duty to represent her interests in the transaction. Hang, supra.

Moreover, given the negligence basis of the plaintiffs malpractice claim, our review of the pleadings fails to indicate how the plaintiff has been damaged by the alleged misconduct of the defendants. The damages sought in a negligence suit may not be speculative. See Pa.R.Civ.P. 1019(f). Here, the plaintiff refers to damages she “may be forced” to pay because of the indemnification documents executed to the seller (Anthony C. Cost) of the Cost properties arising from tax ramifications. See Amended Complaint, Paragraphs 48, 75 & 97.

The documents supplied to buttress the plaintiffs damage claim (plaintiff’s C.P.A. report) do not support such a contention. In other words, the plaintiff does not state with any degree of certainty whether liability exists and/or the amount of damages to be incurred by the plaintiff as a result of the Cost “buyout”; to-wit:

D. Quantify the magnitude of the potential tax liability. At this time there is not sufficient information to adequately quantify the possible liability to Frank A. Cost and Lorraine M. Cost that could result from adjustment from the above issues[ — “To attempt to quantify the magnitude of any such potential tax liability (to determine whether Lorraine M. Cost’s financial interests in certain marital assets would be adequately protected in the Proposed Settlement)”.].

Reproduced Record Nos. 271a & 275a. The only damages the C.P.A. quantified were based upon a hypothetical, the figures for which were not consistent with damages actually incurred by the plaintiff, and, therefore, were not entitled to any weight.

Accordingly, with the appellant’s failure to aver facts sufficient to establish grounds for a legal malpractice suit (e.g., duty, breach, causation and damages), we affirm the order granting the defendants’ preliminary objections in the nature of a demurrer.

Order affirmed.

      . This cause of action was commenced by the filing of a writ of summons, followed by a rule to file a complaint which is the subject of the present appeal.

      . Anthony C. Cost is a cousin of the buyers/brothers Charles and Frank A. Cost, the latter of whom is defendant/Pawk’s uncle.

      . The “Anthony parties” appear in the "Settlement and Mutual General Agreement,” "Indemnification to First Party” and “Mutual Release Agreement” as Anthony C. Cost, Charles E. Cost and Thelma E. Cost, t/aC&A Partners.

      . The plaintiff’s complaint as to the defendants Cost Realty, Charles L. Cost and Cost Corp. was dismissed with prejudice.

      . The plaintiff missed the closing at Kotarba’s office, which necessitated her appearance at Pawk’s firm to execute the "buyout” documents.

      . The plaintiff would ask that we follow in the footsteps of the Texas Court of Appeals, in Parker v. Carnahan, 772 S.W.2d 151 (Tex.App.1989), and lift the grant of preliminary objections to allow a trial on the question of whether the attorneys were negligent in failing to advise her that they were not representing her interests.
      Here, unlike in Parker, there was a “common enterprise” being served by the defendants’ handling of the "buyout” of Anthony Cost's share of the family-owned business by Frank and Charles Cost, of which the plaintiff was asked to participate as Frank’s wife.
      As noted by the court below, the plaintiff was not being asked to assume obligations, transfer interests, or waive claims which were not asked of other members to the purchase. Her interests were being impacted on an equal basis with other members of the “common enterprise” to purchase Anthony Cost’s interest in the Cost business. She was not being singled-out, as was Ms. Parker in executing tax returns to insulate her husband from criminal conviction by the I.R.S. which (unbeknownst to her) exposed her to excessive monetary liability, with the execution of the various "buy-sell” agreements/indemnifications. The plaintiff’s interest, being consonant with other players in the purchase of the Cost business, need not have been selected for independent examination and disclosure of potential liability and tax ramifications.


author: BROSKY, Judge.

text:
    677 A.2d 1256
    JERRY DAVIS, INC., Appellant v. NUFAB CORPORATION d/b/a Gothum or Gotham Club. JERRY DAVIS, INC. v. NUFAB CORPORATION d/b/a Gothum or Gotham Club, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1996.
    Decided June 5, 1996.

      Steven D. Masters, Philadelphia, for Jerry Davis, Inc.
    Beth Schulman, Narberth, for NuFab Corp.
    Before McEWEN, President Judge, and TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

These appeals are from the interlocutory order of the trial court which denied Jerry Davis, Inc.’s motion for issuance of a writ of seizure and directed the parties to pay a third person, who is not a party to this lawsuit, for the rental value of electrical transformers.

The parties present the following issues for review: (1) whether the trial court’s interlocutory order is appealable as of right; (2) whether the trial court erred in refusing to grant the motion for issuance of a writ of seizure; and (3) whether the trial court erred in awarding monetary damages to a third-person who is not a party to this proceeding. For the reasons set forth below, we quash these appeals.

Before addressing the parties’ claims, we will briefly recount the pertinent facts of this case. Appellant, Jerry Davis, Inc., is an electrical contractor. During the summer of 1994, appellant entered into a contract with appellee, NuFab Corporation (NuFab), to perform various electrical work in a building leased by NuFab.

The parties’ relationship terminated on or around January of 1995 and appellant left the job site. Appellant was only paid for a portion of the goods and services rendered to appellee. Appellee subsequently hired another contractor to complete the remaining work and rectify electrical violations for which appellee had been cited by the City of Philadelphia building inspectors.

Appellant instituted this replevin action in June of 1995 to recover possession of the electrical wiring and equipment which he installed in the building. The complaint further asserted a contractual claim based on appellee’s failure to pay the remaining sums owed under the parties’ agreement. Appellant subsequently filed a motion for issuance of a writ of seizure of the property which was the subject of the replevin action.

The trial court conducted a hearing on the motion at which both parties were present. During the course of the hearing, the court discovered that appellant had rented electrical transformers from Delaware Valley Electrical Equipment and Sales (DVEES) in order to temporarily provide electrical service to the nightclub while the construction was in progress. However, NuFab retained possession of the transformers and had failed to pay the rental value therefor. Following the hearing, the trial court denied appellant’s motion for issuance of a writ of seizure. The trial court further directed both parties to pay DVEES for the accrued and future rental payments on the electrical transformers; these payments were evenly apportioned between the parties. The parties respectively filed the appeal and cross-appeal therefrom.

As a preliminary matter, we must first ascertain whether we have jurisdiction to entertain this appeal. It is a fundamental principle of law that an appeal will lie only from a final order unless otherwise permitted by rule or statute. Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1183 (1990) (en banc). The order in this case does not constitute a final order as defined by Pa.R.A.P., Rule 341(b), 42 Pa.C.S.A. (providing that a final order is one which either disposes of all claims or parties, is defined as such by statute or is entered as a final order pursuant to Rule 341(c); none of these requirements exist here). The parties do not dispute this assessment, but contend that the order is appealable under Pa.R.A.P., Rule 311(a), 42 Pa.C.S.A., which governs appeals as of right from interlocutory orders.

The parties suggest that the instant order is appealable pursuant to either subsections (a)(2) or (a)(4) of the rule. Rule 311(a)(2) provides for an interlocutory appeal as of right from an order “confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property.” Rule 311(a)(4), on the other hand, permits an interlocutory appeal to be as of right taken from an order “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions.” The parties refer us to Sameric Corp. of Valley Forge v. Valley Forge Center Association, 102 Pa.Commw. 581, 519 A.2d 546 (1986), Triffin v. Interstate Printing Co., 357 Pa.Super. 240, 515 A.2d 956 (1986), appeal dismissed as having been improvidently granted, 517 Pa. 317, 535 A.2d 1054 (1988), Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984) and Foulke v. Lavelle, 308 Pa.Super. 131, 454 A.2d 56 (1982) in support of their respective positions.

The parties’ reliance on these decisions is misplaced. Triffin and Foulke both addressed the appealability of orders involving an attachment of judgment debtors’ property which was held by third-party garnishees. See Triffin, 357 Pa.Super. at 243-244, 515 A.2d at 957-958 (order refusing to grant motion for judgment on the pleadings in garnishment proceeding to attach a debtor’s bank accounts) and Foulke, 308 Pa.Super. at 136, 454 A.2d at 58 (order denying motion to set aside writ of attachment). Sameric and Temtex, on the other hand, addressed the appealability of orders granting or denying a request for injunctive relief. Sameric, 102 Pa.Commw. at 588-589, 519 A.2d at 550; Temtex, 330 Pa.Super. at 190, 479 A.2d at 503. The orders in Triffin and Foulke concerned attachments and, thus, clearly fell within the scope of Rule 311(a)(2). Triffin and Foulke, supra. The orders in Sameric and Temtex likewise fell squarely within Rule 311(a)(4), since they involved the grant or denial of injunctive relief. The issue presented here, however, implicates the appealability of an order denying a motion for writ of seizure in a replevin action. Triffin, Foulke, Sameric and Temtex did not involve an order of this type. Nor did these cases consider whether such orders were appealable under Rule 311. Consequently, these decisions are not dispositive.

Although the cases referenced by the parties are not controlling, we must ascertain whether the trial court’s order is nonetheless appealable under Rule 311. In construing the rules promulgated by our Supreme Court, we are mindful of the fact that the appellate procedural rules are to be interpreted in accordance with the Statutory Rules of Construction, codified at 1 Pa.C.S.A. §§ 1901-1991, and regarded as if they were enacted by the General Assembly. Pa.R.A.P., Rule 107, 42 Pa.C.S.A. As with the construction of all statutes or procedural rules, our objective is to ascertain and effectuate the intention of the General Assembly and the Supreme Court. See 1 Pa.C.S.A. § 1921(a). Words and phrases must be construed according to rules of grammar and their common and approved usage, but technical words and phrases and such others as have acquired a peculiar and appropriate meaning shall be construed according to such peculiar and appropriate meaning. 1 Pa.C.S.A. § 1903(a). Where the words of the rule are not explicit, we must look to the considerations set forth in 1 Pa.C.S.A. § 1921(c) in order to ascertain the intention of the General Assembly and Supreme Court. Words and phrases necessary to the proper interpretation of a statute may be added in the construction thereof where they do not conflict with a rule’s obvious purpose and intent or in any way affect its scope and operation. 1 Pa.C.S.A. § 1923(c). However, it is also a well settled maxim of statutory construction that “expressio unius est exclusio alterius,” ie., “the mention of one thing implies the exclusion of others not expressed.” Scott Township Appeal, 388 Pa. 539, 543, 130 A.2d 695, 698 (1957); Henrich v. Harleysville Insurance Companies, 403 Pa.Super. 98, 103-104, 588 A.2d 50, 52 (1991), affirmed, 533 Pa. 181, 620 A.2d 1122 (1993).

Proper interpretation of Rule 311 must necessarily begin with a review of appellate jurisdiction as conferred by the General Assembly. While the General Assembly has provided a virtually unfettered right to appeal final orders, the right to appeal interlocutory orders has been narrowly circumscribed. Interlocutory appeals are thus available either by permission or as of right. 42 Pa.C.S.A. § 5105(c). With regard to the latter category, interlocutory appeals as of right exist for those limited classes of orders in which permission to appeal would be regularly permitted. Id. Such orders are to be specified by general rule. Id. Pursuant to this legislative directive, the Supreme Court has identified the classes of interlocutory orders which are appealable as of right; these orders are delineated in Pa.R.A.P., Rules 311(a-f) and Rule 313, 42 Pa.C.S.A.

Orders involving attachments, receiverships, custodian-ships or other similar matters affecting the possession or control of property, are among the classes of interlocutory orders which are appealable as of right. Rule 311(a)(2), supra. Interlocutory orders involving injunctions are likewise appealable as of right. Rule 311(a)(4), supra. Attachments, custodianships, receiverships and injunctions have technical and peculiar meanings when applied in the legal context; these terms refer to a particular type of action or remedy. Replevin is likewise a distinct form of legal action and relief. “Replevin” is not a term which can be equated or used interchangeably with attachment, receivership, custodianship or injunction. Our conclusion is supported by the fact that the Supreme Court has enacted specific rules governing the practice and procedure applicable to each of these types of action or relief. See, e.g., Pa.R.C.P., Rules 1071-1088 (replevin), Rule 1531 (injunctions), Rule 1533 (receivers), Rules 3101-3149 (garnishment/attachment), 42 Pa.C.S.A.

The Supreme Court’s adoption of specific rules evinces its awareness of the distinctions between these proceedings and its desire to treat them differently. The Supreme Court has accordingly decided that interlocutory orders relating to attachments, receiverships, custodianships and other similar matters affecting property, as well as injunctions, are all appealable as of right. However, interlocutory replevin orders of the type at issue here were not specifically addressed in either Rule 311(a)(2) or (a)(4). The Court’s failure to specifically include such orders therein thus suggests that these orders were not intended to be appealable as of right.

The Court’s omission appears to have been deliberate rather than an inadvertent oversight. Prior to the adoption of the procedural rules, the appellate courts quashed interlocutory appeals of replevin orders unless special circumstances justifying immediate appellate review were present. See, e.g., Northern Financial Corp. v. Watkins, 414 Pa. 625, 626, 202 A.2d 9, 9 (1964) (quashing appeal from interlocutory order issuing writ of replevin); Lynn v. Lynn, 256 Pa. 563, 565-566, 100 A. 975, 976 (1917) (allowing appeal from interlocutory order denying plaintiffs request for impoundment of chattels sought to be replevied where the property consisted of valuable antiques and the actual pecuniary value of the property would not fully compensate the plaintiff in the event the defendant disposed of the goods); Singer v. Pintzuk, 53 Pa.Super. 43, 45-46 (1913) (quashing appeal from interlocutory order refusing to strike off replevin defendant’s counterbond, where no substantial right of the plaintiff was violated and resolution of the issues could be redressed on the final determination of the case). Had a change in the law been intended, mention of this fact would have appeared in either the rule itself or in the commentary thereto. Neither the rule, the comments nor the notes thereto reference this subject. The absence of such discussion gives rise to the conclusion that interlocutory replevin orders do not fall within the existing exceptions set forth in Rules 311(a)(2) and (a)(4) and that such orders were not intended to be appealable as of right.

We accordingly do not believe that the Supreme Court intended interlocutory orders denying or granting the issuance of a writ of seizure in a replevin action to be appealable as of right under Rule 311(a)(2) or (a)(4). To hold otherwise would result in a significant expansion of the limited class of orders for which an interlocutory appeal as of right currently exists. If a change of this magnitude is to be forthcoming it is a matter for our Supreme Court, rather than an intermediate appellate court, to decide.

Having found that the instant matter does not fall within the parameters of either Rule 311(a)(2) or (a)(4), we must ascertain whether the order in this case is appealable under Rule 313, which permits an interlocutory appeal to be taken as of right from a collateral order. Pa.R.A.P., Rule 313(a), 42 Pa.C.S.A. A collateral order is defined as one which: (1) is separable from and collateral to the main cause of action; (2) involves a right that is too important to be denied review; and (3) presents a question such that if review is postponed until final judgment, the claim will be irreparably lost. Rule 313(b). None of these requirements has been met in this case.

The relief sought, i.e., recovery of possession of the property, cannot be deemed collateral to or separable from the main cause of action. The fundamental purpose of a replevin action is to regain possession of the property. Moreover, no rights will be irreparably lost if immediate review is denied. The property in question is not unique, does not possess special qualities, is not perishable and cannot be readily disposed of as it has been affixed to the building. Compare Lynn v. Lynn, supra (interlocutory appeal was permitted where the property sought to be replevied consisted of valuable antiques that could be readily sold or removed from the jurisdiction by the defendant and an award for the pecuniary value of the property would not fully compensate the plaintiff in the event the property was lost). Finally, this proceeding does not involve a right which is too important to be denied immediate review, as any loss sustained by appellant could be fully compensated by a pecuniary award in the event appellant’s claim proves to be meritorious and the property is lost or otherwise disposed of by appellee. Compare Lynn v. Lynn, supra. The parties have thus failed to satisfy the requisites of Rule 313.

Because the order entered in this case does not fall within any of the classes of interlocutory orders for which there exists an appeal as of right and because permission to appeal has not otherwise been sought, jurisdiction is lacking. We are therefore obliged to quash the parties’ appeals.

Appeal and cross-appeal quashed.

      . NuFab is the appellee/cross-appellant. For clarity and ease of discussion, we will refer to NuFab as the appellee. NuFab leased a building and planned to operate a nightclub therein called the Gotham or Gothum Club. The owner of the building is not a party to this litigation.

      . DVEES is not a party to this litigation.

      . None of the categories set forth in Rule 311(a) or Rule 311 (b — £) are applicable to this case. These subsections thus will not be discussed.