author: WIEAND, Judge:

text:
    573 A.2d 230
    Michael TRIGIANI, Trustee, and Wyoming National Bank of Wilkes-Barre, now Merchants Bank North, Appellees, v. AMERICAN TITLE INSURANCE COMPANY, Successor to Berks Title Insurance Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1989.
    Filed April 18, 1990.

      Robert A. Weinert, Allentown, for appellant.
    Philip M. Hof, Easton, for appellees.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This appeal requires that we review the rights and liabilities of a second mortgagee and a title insurance company after the second mortgagee’s security has been impaired by unexpected mechanic’s liens which are entitled to priority over the lien of the second mortgage.

On June 25, 1982, Nazareth Fairgrounds, Inc. executed and delivered to Michael Trigiani a second mortgage in the amount of two hundred thousand ($200,000) dollars, which mortgage was duly recorded and constituted a lien on real estate owned by the mortgagor in the Borough of Nazareth, Northampton County. The mortgage was subsequently assigned to the Wyoming National Bank of Wilkes-Barre, now the Merchants Bank North. A policy of title insurance with a limit of two hundred thousand ($200,000) dollars was issued by American Title Insurance Company to insure the holder of the second mortgage against loss incurred by reason of “any statutory lien for labor or material which now has gained or hereafter may gain priority over the lien of the insured mortgage.”

In February and March, 1983, three mechanic’s liens were filed against the mortgaged real estate. American Title Insurance Company defended these claims, contending that they were not entitled to priority over the second mortgage. Its defense was unsuccessful. The priority of the mechanic’s liens was upheld by the trial court, whose decision was affirmed on January 25, 1988 by the Superior Court. The Supreme Court denied allocatur on July 1, 1988. Thereafter, the mechanic’s lien claims were paid by American Title Insurance Company.

In the meantime, the holder of the second mortgage had filed a civil action in which it contended that the second mortgage had been rendered worthless by the mechanic’s lien claims and that American Title Insurance Company was liable for the second mortgagee’s loss. At the time of the trial of this action, the evidence established, and it is not disputed, that the mortgagor had been adjudicated bankrupt. Moreover, its real estate had been sold by the sheriff on June 3, 1986, pursuant to foreclosure proceedings on The Bank of Pennsylvania’s first mortgage in the amount of one million, five hundred thousand ($1,500,000) dollars. The second mortgagee had not entered a bid at the sheriffs sale, and the real estate had been purchased by the first mortgagee. The trial court found that the second mortgagee had sustained a loss in the amount of two hundred thousand ($200,000) dollars and entered judgment against American Title Insurance Company in that amount.

“A contract of title insurance is an agreement to indemnify against loss through defects of title.” Sattler v. Philadelphia Title Ins. Co., 192 Pa.Super. 337, 342, 162 A.2d 22, 24 (1960). The general rule was set forth by the Supreme Court of Pennsylvania in Fifth Mutual Bldg. Soc. of Manayunk’s Appeal, 317 Pa. 161, 176 A. 494 (1935), as follows:

In Trenton Potteries Co. v. Title Guarantee & Trust Co., 176 N.Y. 65, 68 N.E. 132, the Court of Appeals ... said: “The contract is one of insurance against defects in title, unmarketability, liens, and incumbrances. The risks of title insurance end where the risks of other kinds begin. Title insurance, instead of protecting the insured against matters that may arise during a stated period after the issuance of the policy, is designed to save him harmless from any loss through defects, liens, or incumbrances that may affect or burden his title when he takes it. It must follow, as a general rule, therefore, that when the insured gets a good title the covenant of the insurer has been fulfilled, and there is no liability.” The converse of this is that when the insured gets a bad title, or the policy has been otherwise breached, the covenant of the insurer has not been fulfilled, and there is a liability. A liability having attached, the only thing that remains is to ascertain its extent in terms of dollars.

Id., 317 Pa. at 164-165, 176 A. at 495. However, a “policy [may] by apt language [provide] that the liability of the insurer [will] not attach until the loss ha[s] been definitely ascertained by execution on any judgments the policy insured against or others____” Id. at 164, 176 A. at 495. Nevertheless, language in a policy of insurance must be clear and precise in order to prevent unfair surprise. Bishop v. Washington, 331 Pa.Super. 387, 401, 480 A.2d 1088, 1095 (1984).

The policy issued by American Title Insurance Company contained language which permitted it, at its option, to settle any claims asserted against the real estate or, in the alternative, to litigate to final determination the validity of liens filed against the same. Paragraph 7 of the policy contained the following limitation of liability:

No claim shall arise or be maintainable under this policy (a) if the Company, after having received notice of an alleged defect, lien or encumbrance insured against hereunder, by litigation or otherwise, removes such defect, lien or encumbrance or establishes the title, or the lien of the insured mortgage, as insured, within a reasonable time after receipt of such notice; (b) in the event of litigation until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage, as insured, as provided in paragraph 3 hereof; or (c) for liability voluntarily assumed by an insured in settling any claim or suit without prior written consent of the Company.

Under (a), the insurer had the option of removing the mechanic’s lien claims within a reasonable time after receiving notice thereof. Under (b), the insurer also had the option of litigating the validity of the mechanic’s lien claims, in which event the insured was not permitted to assert a claim until after the validity and priority of the liens had been finally litigated.

The title insurance company did not satisfy or otherwise remove the mechanic’s liens within a reasonable time. Instead, it opted to litigate the priority of the mechanic’s liens. Its litigation, however, was unsuccessful. The priority of the mechanic’s liens was upheld, and, on July 1, 1988, the Supreme Court denied allocatur. By this time, the second mortgagee’s loss was complete. Because of the mechanic’s lien claims which were pending at the time of the sheriff’s sale, the equity in the real estate had been consumed, and the second mortgagee could not protect itself by appropriate bidding.

After the litigation between the title insurance company and the mechanic’s lien claimants came to an end, the title insurance company paid the mechanic’s lien claimants and obtained a satisfaction of their liens. This was done because the title insurance company had a contractual obligation to do so by virtue of a separate policy of title insurance which had been issued to the holder of the first mortgage, which had purchased the property at the sheriff’s sale. Because of this separate policy, American Title Insurance Company was required to achieve for The Bank of Pennsylvania a title which was free and clear of liens and encumbrances. By paying the lien claimants, the title insurance company fulfilled its separate obligation to the first mortgagee, but it did not thereby fulfill its obligation to the second mortgagee. The second mortgagee had sustained a separate loss, and the title insurance company, pursuant to a separate policy, had agreed to indemnify the second mortgagee for that loss.

We reject the title insurance company’s argument that the second mortgagee’s loss was not caused by the priority of the mechanic’s liens but by its own failure to protect itself at the sheriff’s sale by purchasing the real estate for an amount in excess of the unpaid balance owed on the first mortgage. The security for the second mortgage had been the value of the real estate in excess of the amount needed to satisfy the first mortgage. This excess value, however, was consumed and disappeared when mechanic’s liens claims were filed and achieved priority over the lien of the second mortgage. It is correct, as the title insurance company argues, that it had the option of paying the lien claims, but it was required by the terms of its policy with the second mortgagee to do so within a reasonable time. This it did not do. By the time of the foreclosure on the first mortgage, a reasonable time for disposing of the liens by payment had expired. Thereafter, the second mortgagee’s loss had accrued.

The insurance company also had the right under its policy to litigate the validity and priority of the mechanic’s lien claims. This it did do. When the liens were determined finally to be valid and entitled to priority, the insured had sustained a very real loss for which the title insurance company had agreed to provide indemnification. When the title insurance company failed to indemnify its insured, it breached its contract of title insurance.

It is true, as the appellant-insurer argues, that an insured under a title insurance policy is entitled to recover only for losses as a result of defects in the title caused by liens and encumbrances. Whiteman v. Merion Title and Trust Co., 25 Pa.Super. 320 (1904). The titlé insurance company is not a surety for the mortgaged debt or a guarantor of its payment, and it has no liability to an insured second mortgagee for losses due to failure of value rather than failure of title. Narberth Building and Loan Ass’n v. Bryn Mawr Trust Co., 126 Pa.Super. 74, 190 A. 149 (1937); Whiteman v. Merion Title and Trust Co., supra. In the instant case, however, the evidence showed and the trial court found that the insured mortgagee’s loss had been caused by mechanic’s liens which achieved priority over the second mortgage. To require the second mortgagee, in the face of these valid mechanic’s liens, to throw good money after bad by purchasing the real estate for an amount in excess of its value would be entirely unreasonable. The policy of title insurance had been purchased by the second mortgagee to protect itself against title encumbrances which impaired the priority of its second mortgage. When its mortgage interest was defeated by the prior mechanic’s liens, the title insurance company was required to pay the loss which the mortgagee had sustained.

The judgment is affirmed.

      . American Title Insurance Company is the successor to Berks Title Insurance Company.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    573 A.2d 541
    PEERLESS DYEING COMPANY, INC. v. INDUSTRIAL RISK INSURERS, Appellant. PEERLESS DYEING COMPANY, INC., Appellant, v. INDUSTRIAL RISK INSURERS.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Feb. 28, 1990.
    Reargument Denied May 9, 1990.

      Stephen A. Cozen, Philadelphia, for appellant (at 3249) and appellee (at 3308).
    Daniel L. Thistle, Philadelphia, for appellant (at 3308) and appellee (at 3249).
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

These cross-appeals are from the judgment below, which was entered following a jury verdict in favor of appellee. The judgment arose from an action instituted by appellee, Peerless Dyeing, against its business insurer, appellant Industrial Risk Insurers, in which appellee sought to collect for property damage and business interruption damages that it claimed resulted from an accident at its dyeing plant, in Philadelphia. The jury’s verdict in appellee’s favor awarded damages of $407,000.00 for property damage and $1,130,000.00 for business interruption.

In its appeal at (No. 3249 PHL 87) appellant’s primary contention is that the trial court should have directed judgment in its favor with regard to both the property damage claim and the business interruption claim. More specifically, appellant contends that the trial court should have ruled as a matter of law that, under the unambiguous terms of the contract, appellee was not entitled to recover for property damage because there was neither (a) damage caused by a “named peril” nor (b) an accident to an “insured object.” In addition, appellant contends that business interruption insurance is not available because such recovery is derivative of the property damage recovery and necessarily must fail. For the reasons set forth below, we agree that the policy provisions at issue are unambiguous and, as a matter of law, do not allow recovery for the damages suffered by appellee; accordingly, we reverse the judgment below, and enter judgment in favor of appellant.

On August 13, 1981, a city water main broke in Philadelphia and flooded the premises of appellee’s factory. At the time of the water main break, appellee had insurance contracts with appellant. Under the contracts, appellee was insured to $6,666,000.00 for damage to property and to $1,080,000.00 for business interruption loss. Appellee filed a claim with appellant seeking coverage; appellant denied the claim stating that there was neither damage from a named peril, as required by the contract, nor an accident to an insured object. In February 1982, appellee filed the instant action against appellant. On November 15, 1985, the case proceeded to trial. The jury returned a verdict in favor of appellee, finding that (1) there was an accident to a covered object; (2) there was damage caused by a named peril; (3) there was coverage under the policy; and (4) the damages amounted to $407,000.00 for property damage and loss and $1,130,000.00 for business interruption. The parties filed post trial motions which were denied and the jury’s verdict was reduced to judgment. These cross-appeals followed.

On its appeal, appellant challenges the recovery under both the property damage policy and the business interruption policy. We shall consider these claims seriatim.

I. PROPERTY DAMAGE

A. DAMAGE RESULTING FROM “NAMED PERIL”

Appellant first contends that the court erred in not finding as a matter of law that the damage to contents of appellee’s factory by flooding did not constitute damage caused by a “named peril” under the property damage clause of the contract. The law of Pennsylvania requires that an insurance policy be construed in accordance with its plain, common, and ordinary meaning. Courts “cannot rewrite the terms of the policy or give them a construction in conflict with the accepted and plain meaning of the language used.” Adelman v. State Farm Mut. Auto. Ins. Co., 255 Pa.Super. 116, 123, 386 A.2d 535, 538 (1978) (citing Pennsylvania Manuf. Assoc. Ins. Co. v. Aetna Cas. & Surety Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967)); see also Monti v. Rockwood Ins. Co., 303 Pa.Super. 473, 476, 450 A.2d 24, 25-26 (1982). When a word or phrase is specifically defined within the policy, that definition controls in determining the applicability of the policy. See Great Am. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 412 Pa. 538, 194 A.2d 903 (1963). Moreover, it is the duty of the court to interpret an unambiguous provision while interpretation of ambiguous clauses may properly be left to a jury. See Koval v. Liberty Mut. Ins. Co., 366 Pa.Super. 415, 423, 531 A.2d 487, 491 (1987).

The property damage insurance policy in the instant case included a “named perils” clause which covered appellee’s factory. Under this provision, the jury awarded $180,800.00 for property damage in appellee’s factory. The only arguably applicable portion of the property policy is the clause concerning “fire protective equipment.” This provision insured against direct loss by:

water or other substance discharged from within any part of the fire protective equipment for the premises described herein or for adjoining premises;

See Property Damage Policy at Property Damage No Coinsurance at 5, para. D (R.R. at 43A). The policy went on to define fire protective equipment as follows:

The term “fire protective equipment” includes tanks, water mains, hydrants, or valves, and any other equipment whether used solely for fire protection or jointly for fire protection and for other purposes but does not include:
(2) any underground water mains or appurtenances located outside of the described premises and forming a part of the public water distribution system;

Id. (emphasis supplied). At trial, no evidence was introduced to suggest that the water main that burst was any part of the fire protective equipment in the plant. Indeed, it is undisputed that the flooding of appellee’s plant on August 13, 1981 was caused by the break of an underground water main maintained by the City of Philadelphia outside the premises. See N.T. November 20, 1985 at 4.48, 51; see also N.T. November 18, 1985 at 38. Appellant contends that this fact alone precludes coverage under the unambiguous language of the named peril policy because the source of the water was not a named peril and, indeed, specifically was excluded from coverage. Despite the explicit language in the contract quoted above, appellee argues that the jury properly returned a verdict in its favor because (1) the exclusion of public water mains was unconscionable; (2) appellee’s attention was not directed to the provision that would preclude the coverage; and (3) appellee reasonably expected to be covered for this type of occurrence under his policy. Appellee’s claims are lacking in merit.

Appellee first argues that the insurance contract was unconscionable because it purported to give coverage in one portion and take it away in another. In Koval v. Liberty Mut. Ins. Co., supra, our Court noted that, for a contract to be unconscionable, the court must find that (1) the party claiming unconscionability lacked a reasonable choice whether to accept the provision in question and (2) the challenged provision unreasonably favored one party to the contract. See id., 366 Pa.Superior Ct. at 423-24, 531 A.2d at 491. Here, the evidence adduced at trial establishes neither part of this test. The language quoted above clearly states that underground water mains not on appellee’s property are not covered under the policy. Importantly, we note that appellee chose to purchase this named perils insurance even though it had the option of purchasing a policy with broader coverage. See N.T. November 22, 1985 at 6.79-6.80. Because the language about coverage is clear and explicit and appellee had an option to purchase greater coverage, we cannot conclude that appellee did not have a reasonable choice whether to accept the provision. Moreover, we cannot find that the limitation clause unreasonably favors appellant. Appellant appears to have attempted to limit its coverage to perils that are within appellee’s dominion and control. This was reasonable because appellant also included in the policy a right of appellant to inspect the premises, in an attempt to minimize the risk of named perils occurring. The mere fact that the contract does not provide the broadest possible coverage does not render the contract unreasonably one-sided. Accordingly, appellee’s unconscionability argument must fail.

Appellee’s second argument would seem to be that, when a policy has exclusions, the insurer has an affirmative burden to show that the insured was aware of the exclusion and its effect. See Hionis v. Northern Mut. Ins. Co., 230 Pa.Super. 511, 327 A.2d 363 (1974) (insurer failed to offer proof of insured’s awareness and understanding of policy exclusions; therefore, policy construed in favor of insured). Our Supreme Court has specifically rejected this argument in Standard Venetian Blind Co. v. American Empire Ins., 503 Pa. 300, 306, 469 A.2d 563, 567 (1983), holding that when exclusions are clearly stated in a policy, the insured is bound by the terms of the contract it signed. Id.; see also Kershner v. Prudential Ins. Co., 382 Pa.Super. 95, 100, 554 A.2d 964, 966 (1989). In light of Standard Venetian and its progeny, and our conclusion above that the exclusion was explicitly stated, appellee clearly cannot avoid the exclusion simply because appellant did not further emphasize it during negotiations.

Appellee’s final argument is that the construction urged by appellant would defeat its reasonable expectation under this policy. As we have already noted, when the language of a contract is clear, the court must apply the language of the contract as written and cannot rewrite the terms of the policy. See Adelman v. State Farm Mut. Auto. Ins. Co., supra. Moreover, the record reveals that appellant had an opportunity to purchase broader coverage, but instead chose to purchase the policy at issue. See N.T. November 22, 1985 at 6.79-6.80 (quoted above at n. 5). Appellee cannot now complain of its own informed choice. Accordingly, this argument must also fail.

In summary, we agree with appellant that the terms of the policy are clear and unambiguous, and specifically excluded coverage for the type of loss occasioned here. Thus, the trial court should have directed a verdict for appellant in this claim. Accordingly, we vacate the award of $180,800.00 for property damage resulting from a “named peril.”

B. DAMAGE FOR “ACCIDENT” TO “INSURED OBJECT”

Appellant next contends that the trial court should have directed a verdict in its favor under the accident portion of the property policy because appellee failed to sustain its burden of showing that an accident occurred to an insured object. Under this provision the jury awarded $226,200.00 for repair and replacement of the boilers. Appellee, on the other hand, asserts that it established that an accident occurred to an object specifically a boiler, through the testimony of its expert witness, Nick Manfra, the plant manager. In order for there to be coverage under this provision of the contract, the “accident” must be to an “insured object.” The policy defines an “object” as:

any boiler, fired vessel or electric steam generator designated and described in the schedule and shall also include (1) any steel economizer used solely with such Object; (2) as respects any such Object which is a steam boiler, any piping on the premises of the insured, or between parts of said premises, with valves, fittings, traps and separators thereon, which contain steam or condensate thereof, generated in whole or in part in such boiler but not including any such piping which forms a part of any other vessel or apparatus; and (3) respects any such Object which is a steam boiler, any feed water piping between such boiler and its feed pump or injector; but Object shall not include (a) any part of such Object which does not contain steam or water; (b) any boiler setting; (c) any insulating or refractory materials; (d) any piping which does not contain steam or condensate thereof; (e) any piping not on the premises of the insured, used to supply any premises not owned by, leased by or operated under the control of the insured; (f) any other piping, radiator, coil, vessel or apparatus except as included in sections (1), (2), and (3) above; (g) any reciprocating or rotating machine; nor (h) any electrical apparatus.

See Property Damage Policy at Boiler and Machinery Definitions Special Provisions at 1 (R.R. at 50A). The policy then defines an “accident” as:

a sudden and accidental breakdown of the object, or a part thereof, which manifests itself at the time of its occurrence by physical damage to the Object that necessitates repair or replacement of the Object or a part thereof; but Accident shall not mean (a) depletion, deterioration, corrosion, or erosion of material; (b) wear and Tear; (c) leakage at any valve, fitting shaft, seal, gland packing, joint or connection; (d) the breakdown of any vacuum tube, gas tube or brush; (e) the breakdown of any electronic computer or electronic data processing equipment; (f) the breakdown of any structure or foundation supporting the Object or any part thereof; (g) an explosion of gas or unconsumed fuel within the furnace of any object or within the passages from the furnace of said object to the atmosphere; nor (h) the functioning of any safety device or protective device.

Id.

Manfra’s testimony was the only testimony introduced to prove that there was an accident to an object. Appellee cites to a portion of Manfra’s testimony where he stated that, in his opinion, water from the water main break caused damage to the boilers. See N.T. November 18, 1985 at 2.60. Manfra, however could not specify the nature of the damage. Thus, when questioned about what was damaged, Manfra testified, “I would guess it (damage) would be internal.” Id. at 2.71 (emphasis supplied). He further testified that he had hoped that someone would come in and examine the situation and tell him what had happened because he did not have the type of equipment to detect it. See id. at 2.71-72. Later on Manfra again admitted that he could not tell what happened, and did not know specifically what was wrong with the boilers. Indeed, he stated that the problem could be damage to the boiler or to anything connected with the boiler, including the shell, control panels, or electrical lines. See id. at 2.74-77, 2.85-86. Despite the fact that Manfra was qualified by appellee and the court as an expert, he candidly expressed his inability to pinpoint what went wrong. For example, when counsel questioned Manfra about whether the damage occurred to the boilers or to the refractories (which were excluded from coverage), the following exchange occurred:

Q [appellant’s counsel]: ..., do you attribute those problems to the mechanical works of the boilers rather than problems to the refractories?
A [Manfra]: We never got the same intensity of heat out of the boiler again. I’m not a boiler mechanic. I can’t tell you what happened. Something happened to it. Q: But you don’t know what?
A: No, I don’t. You know there’s something wrong when you’re burning more gas and producing less steam. Q: Did that have something to do with the brick?
A: Could be the refractories, boilers.
Q: Could be anything?
A: Anything connected with the boiler.

Id. at 2.89-90 (emphasis supplied). Moreover, Manfra never had anyone come in and assist him in identifying the problem. See id. at 2.71, 2.75, 2.77. In addition to Manfra’s inability to offer an opinion on the nature of the damage, there is no question that Manfra never stated that he believed “to a reasonable degree of certainty” or that “in his professional opinion” there was an accident to the boiler. Instead, Manfra’s testimony unequivocally establishes that he had neither the equipment nor the expertise (“I’m not a boiler mechanic”) to form an opinion on the nature of the damages. In short, the jury was left to speculate with regard to both (1) whether the damage occurred to the boiler itself or another part of the structure, and (2) the nature of the damage.

It is settled that, to be competent, expert testimony must be stated with reasonable certainty. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971); see also McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 472 A.2d 1149 (1984). Here, Manfra’s failure to state an opinion with such certainty need not be fatal if we could look to his testimony in its entirety and find that it expresses reasonable certainty. See McCann v. Amy Joy Donut Shops, supra (citing Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976)). However, that does not appear possible in this case. Although Manfra offered a general opinion that the boilers had been “damaged,” his testimony unequivocally established that he never examined the boilers to determine what the problem was nor did he call in anyone else to examine the boilers. In addition, he admitted that he could not determine whether the damage was to the boilers or to something connected with them. As our Supreme Court stated in Smail v. Flock, 407 Pa. 148, 180 A.2d 59 (1962), “it is not enough to say that something could have happened. Anybody can guess.” Id,., 407 Pa. at 152, 180 A.2d at 61. On this record, appellee’s only evidence on supposed “damage” to an “insured object” (the boilers) amounted to an unfounded guess. Because appellee did not produce sufficient evidence to create a jury question about whether there was an accident to an insured object, we agree with appellant that the issue should not have been submitted to the jury. Accordingly, we vacate the jury award of $226,200.00.

II. BUSINESS INTERRUPTION LOSSES

Appellant next contends that appellee cannot recover for business interruption loss because such coverage is available only if there is recovery for property damage. The business interruption policy states that in order for the policy to apply, there must be either “damage to or destruction of real or personal property ... by the perils insured against during the term of this policy” or “loss caused solely by an accident occurring while this endorsement is in effect to an Object designated and described in the schedules and endorsements.” See Business Interruption Insurance Policy at 1 of Form A, 1 of Boiler and Machinery Time Element Endorsement (R.R. at 13A, 22A). Because we already have concluded that (1) the clear and unambiguous language of the policy precludes recovery under the named perils portion of the policy and (2) appellee did not sustain his burden of showing an accident to an object, the factual predicate for triggering the business interruption does not exist. Accordingly, we vacate the jury award of $1,130,-000.00 for business interruption loss.

CONCLUSION

The trial in the instant case lasted seven days and resulted in over 550 pages of testimony. The evidence demonstrated that a water main break flooded appellee’s plant, put it out of business for a time, and may have contributed to appellee’s eventual business failure. A close review of the evidence, however, reveals that appellee failed to demonstrate that the loss incurred resulted from a risk it had insured itself against. More specifically, we agree with appellant that, after extensively reviewing the trial testimony it is apparent that appellee failed to produce evidence sufficient to raise a jury question whether it had either (a) suffered damage resulting from a named peril or (b) sustained an accident to an insured object. Accordingly, we are constrained to reverse the judgment below, and enter judgment in favor of appellant.

Judgment reversed; judgment entered in favor of appellant.

      . The verdict was later molded to allow for a setoff from the city and to award appellee interest on the property award. The molded award was as follows:

        Property Damage .............................................$ 334,180.00
      Interest to 11/25/85 ..........................................$ 85,916.30
      Business Interruption .........................................$ 927,820.00
      TOTAL ...............................................$1,347,916.30

      . In appellant's "Statement of The Ouestions Involved,” it lists nine issues, the first three of which concern the court’s refusal to direct judgment in its favor. Because of our disposition of this appeal, we need not address appellant’s remaining claims.
      We should note that appellant’s statement of questions is in clear violation of our Rules of Appellate Procedure, in that it covers three pages and some forty-two lines. See Pa.R.A.P. 2116(a). Despite this disregard of our Rules, we have carefully considered those claims necessary to our disposition of this appeal.

      . This amount was exactly what appellee had requested. The award can be broken down as follows:
      dye stuffs .........................................................S 74,500
      customer goods ...................................................$ 86,000
      packaging material ................................................$ 5,250
      driveway ..........................................................$ 3,550
      oil ................................................................$ 10,500
      trucks .............................................................$ 1,000
      TOTAL ....................................................$180,800

      . The trial court apparently accepted an argument similar to this, as it explained that the reason it submitted the issue to the jury was that the contract was ambiguous because it purported to give coverage in one instance and remove it in another.

      . At trial, testimony revealed in relevant part:
      Q [counsel for appellant]: Now, Mr. Borwiec [Claims Manager for one of the companies that comprise appellant], looking at P-20, as I understand it, Mr. Borwiec, is an interoffice memo, interoffice with IRI; correct?

        A: Yes.
      Q: Why don’t you read for the jury that whole memo.
      A: "A forty-two-inch main rupture in the area of this plant yesterday and caused considerable damage to this risk.
      "Attached are two letters dated May 19th, 1981, regarding the renewal of May 15th, 1981, where we offered the DIC coverage which was not at the time accepted.

      "I am also including a copy of our property proposal.
      "The insured called this office and asked if there was coverage and he was advised that since there was no damage by a named peril, there was no coverage and that he had been offered the DIC and had not as yet accepted.

      “In accordance with your instructions, we are not conducting any loss investigation, but we did have a man at the plant to supervise the impairment.”
      Q: Okay. First of all, Mr. Borwiec, it indicates that in May the insured was offered DIC coverage which was not accepted.

        A: Yes. That’s what it says.
      Q: And what is that?
      A: Difference In Conditions is a generality, it’s an extension of a property policy. It will provide additional coverage beyond what the policy has said it covers.

      Q: And this coverage that was offered and not accepted; right

      A: Yes.
      Q: Would DIC coverage cover water damage from a water main that’s a block away to the plant?
      A: To my knowledge it would provide coverage for water damage.
      N.T. November 22, 1985 at 6.79-6.80 (emphasis supplied).

      . This amount was just $58.00 less than what appellee had requested. The award can be broken down as follows:
      repairs to boilers ...............................................$ 26,200.00
      replacement of boilers ..........................................$200,000.00
      TOTAL ...............................................$226,200.00

      . It is undisputed that after the flood, the boilers, for whatever reason, were not performing as efficiently as before. Appellee’s whole case therefore, turned on the question of whether the flood caused damage to the insured object, the boilers. Manfra himself indicated that he expected a professional examination to be done, albeit by the insurers, to pinpoint the damage to the boilers. In light of the essential nature of testimony to establish injury to the boilers as a result of the flood, we are at a loss to explain why appellee's counsel did not have an examination of the boilers done and present expert testimony on this crucial issue.

      . On the cross-appeal (at No. 3308 PHL 87) appellee contends that (1) because appellant initially denied the business interruption claim, it is entitled to interest on the amount of the award and (2) the court should not have allowed a prior settlement with a Pennsylvania Municipality to be used as a setoff by the insurance carrier. Because of our disposition of appellant’s claims, we need not address these issues related to the computation of damages.


author: PER CURIAM: OLSZEWSKI, Judge,

text:
    573 A.2d 549
    Julie SCHUETZ, a minor, By and Through her Parents and Guardians, Mark and Judy DOMANICO & Mark and Judy Domanico, in their own right, Appellants, v. Alan H. GOLDBERG, M.D., Mario A. Ercole, M.D., Quakertown Community Hospital, The Alliance for Creative Development, Phyllis Shuhler, M.D., Family Health Care Center, David L. Scasta, M.D., and Ruth N. Ryan, RN, MSN, Appellees. Julie SCHUETZ, a Minor, By and Through her Parents and Guardians, Mark and Judy DOMANICO & Mark and Judy Domanico, in their own right, Appellants, v. Sandra L. BLOOM, M.D., Robert Wieman, PH.D., Magdalene Wiltz, M.D., Susan N. Au, M.D., Freddie Hillman, M.D., Paul Marion, M.D., and Morris Levin, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1988.
    Filed Nov. 8, 1989.
    Jonathan D. Bennett, Philadelphia, for appellants (at 1868 and 1869).
    Christine M. Mooney, Philadelphia, for Goldberg, appellee (at 1868).
    David Arnold, Norristown, for Family Health Care, appellee (at 1868).

      Ralph L. Hose, Ardmore, for Levin, appellee (at 1869).
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   PER CURIAM:

Appeal quashed. Jurisdiction relinquished.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. Negligent infliction of emotional distress is a separate and distinct cause of action from medical malpractice; therefore, the trial court’s order dismissing the claim for emotional distress is appealable. Consequently, I would not quash this appeal.

I agree with the majority that the case at bar is controlled by Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), and Cloverleaf Development v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985); I disagree, however, with the majority’s conclusion from these cases. In Cloverleaf, this Court stated:

Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is “out of court” with respect thereto. Id. [313 Pa.Super.] at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id. at 341, 459 A.2d at 1260.

Id., 347 Pa.Superior Ct. at 166-67, 500 A.2d at 166-167. Similarly, in Danko Dev. Corp. v. Econocast Corp., 369 Pa.Super. 120, 128, 534 A.2d 1108, 1112-1113 (1987), the Court noted that when a party appeals one count of a multi-count complaint, “we focus our attention on the nature of the counts to determine if they set forth separate causes of action, rather than alternate theories of recovery.”

In the case at bar, I cannot conclude that appellant is pursuing one cause of action based upon two different theories of recovery. Instead, I believe appellant is seeking two distinct types of relief: recovery for her physical injury in her malpractice claim, and damages for emotional disturbance in her claim for negligent infliction of emotional distress. Appellant is “out of court” as to her individual claims for negligent infliction of emotional distress against each of the objecting defendants; thus, the dismissal of those claims is appealable.

The majority notes that “[b]oth Schuetz’ allegations of negligent infliction of emotional distress and medical malpractice arise out of the same factual circumstances.” This fact is not controlling. In Capanna v. Travelers, 355 Pa.Super. 219, 513 A.2d 397 (1986), this Court held a survival loss claim to be separate and distinct from a wrongful death claim, even though both claims arise from a single incident. This Court noted that the claims were different types of relief designed to reimburse a party for different losses. Capanna, 355 Pa.Super. at 224, 513 A.2d at 400. Similarly, in the case at bar, the claims for negligent infliction of emotional distress and medical malpractice involve different types of relief for different harms.

It is instructive to contrast the case at bar with J.A. and W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1976). In Hess, a corporation alleged that it had not been paid for over 6,000 tons of gravel delivered to Hazle Township. In count one of its complaint, the corporation stated that $23,500 was due under an “agreement.” The second count of the complaint alleged that, even if no agreement existed in fact or law, appellant was entitled to the fair market value of the gravel, which was $23,500. In response to the complaint, defendant Township filed preliminary objections demurring to appellant’s complaint. These objections were sustained by the trial court as to count one but overruled as to count two. After a non-jury trial, damages were awarded and judgment entered. On appeal, our Supreme Court found that the trial court order dismissing count one of the complaint was not a final order. The Hess Court stated:

We note that the appellant may have contributed to the confusion by the labels used in its complaint. While the labels purport to identify separate causes of action, the two parts of the complaint really assert two different legal theories in support of recovery, one on the theory of an express contract and the other on a theory of quasi-contract. Both of these theories are based on the same transaction. A litigant’s labels, however, cannot be the determining factor in whether an order is final for the purposes of appeal. The appellant did not receive a final order from which an appeal could have been filed until a verdict and judgment was entered ordering the township to pay $350.

Id., 465 Pa. at 471, 350 A.2d at 861-862.

Unlike the corporation in Hess, appellant in this case does not seek the same damages using alternate theories of recovery. Instead, appellant’s damages are cumulative, that is, in addition to the damages that are recoverable in a malpractice action. For this reason, I conclude that the instant trial court order is final. Accordingly, I must respectfully dissent.


author: CAVANAUGH, Judge: KELLY, Judge,

text:
    573 A.2d 550
    FRANKLIN CHALFONT ASSOCIATES, Appellee, v. Lawrence A. KALIKOW and Beverly Kalikow and Ronald W. Prevatt and Sharon Prevatt and Charles J. Rocconi and Rosemary B. Rocconi and Raymond De Masi and Nancy De Masi and Thomas E. Kolterman and Susan Donahue, Appellants. Appeal of Lawrence A. KALIKOW, Beverly Kalikow, Ronald W. Prevatt and Sharon Prevatt. American Civil Liberties Union of Pennsylvania Amicus Curiae.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed April 10, 1990.

      Lawrence A. Kalikow, Doylestown, Sharon M. Friel, Philadelphia, for appellants.
    Louis J. Sinatra, Blue Bell, for Franklin Chalfont Associates, appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   CAVANAUGH, Judge:

This is an interlocutory appeal as of right, pursuant to Pa.R.A.P. 311(a)(4), from an order entered March 1, 1989, as amended March 6, 1989, by the Court of Common Pleas of Bucks County, per Clark, J. Appellants Lawrence and Beverly Kalikow and Ronald and Sharon Prevatt are owners of homes which they purchased from Franklin Chalfont Associates, appellee herein, at Franklin’s Oxbow Ridge development in New Britain Township, Bucks County. The order of March 1, 1989 enjoined and restrained appellants and six other defendants no longer party to this action from picketing Oxbow Ridge or any of the businesses or projects of appellee Franklin Chalfont Associates; from displaying signs tending to impute Franklin’s lack of skill, competence, or integrity or tending to interfere with its conduct of business; from publishing statements tending to impute or accomplish the same; from interfering with the lawful conduct of Franklin’s business; and ordered the posting of bond.

The order of March 6 continued that portion of the March 1 injunction relating to picketing and to the display of outdoor signs; signs exhibited in interior windows could remain displayed as they appeared in photographs which are part of the record. The court also modified the injunction with respect to statements made by appellants; by March 6 order, they were permitted to express their dissatisfaction with Franklin verbally to other persons with whom they spoke. However, publication of written statements imputing to Franklin lack of skill, competence, or integrity or interfering with Franklin’s business was still, and remains, enjoined. Because we believe the injunction as modified violates the constitutional rights of the defendants under both state and federal law, we vacate the orders.

These injunctions were entered during the course of hearings held February 28, March 1, March 3, and March 6 of 1989. Following entry of the March 1 injunction, appellants immediately made a demand for a final hearing within three days, to which they were entitled under Pa.R.C.P. 1531(f)(1). That demand was denied by the trial court but, upon request by counsel for Franklin, the trial court scheduled a final hearing for the afternoon of March 3, 1989.

Counsel for appellee Franklin, with appellants’ agreement, moved to continue indefinitely the final hearing and allow the .preliminary injunction to dissolve. See, Pa.R.C.P. 1531. The trial court denied the request and instead asked appellants to agree to permit the injunction to remain in force over the weekend. Appellants refused to agree to an extension of what they claimed was an unconstitutional restraint. Consequently, the trial court directed Franklin to put on testimony. The final hearing commenced at approximately 5:00 p.m. on Friday, March 3. At 7:00 p.m., the court continued the hearing and the injunction until the following week.

On March 6, appellants filed an appeal from the March 1 order. The trial court denied a stay pending appeal, but modified the order as described above. The injunction as modified became final on March 6. Defendants appealed the March 6 order on March 7, 1989 and were granted a temporary seven-day stay. The appeals were consolidated on April 28, 1989.

At the time that the March 6 injunction was entered, Franklin had put on some of its witnesses and introduced several exhibits into evidence, but had not completed its case. Nor had appellants yet had an opportunity to cross-examine all of those witnesses, or to put on their own case. Even without the benefit of appellants’ case, we think that neither the pleadings nor the record supports the judge’s decision to grant Franklin the injunction.

The following facts were adduced at the afore-mentioned hearings. In April and September of 1987, appellants purchased new homes from Franklin at its Oxbow Ridge development located in Bucks County. Oxbow Ridge was Franklin’s first single-family residential development, though it had previously been involved in many other construction projects.

Following settlements on their homes during 1987 and 1988, appellants and numerous other homeowners experienced various problems with their new homes, including exterior grading of their properties and completion of “punch list” items. In this case, “punch list” items refer to unfinished or improperly executed features in the new homes which presented cosmetic, aesthetic, or minor, rather than serious, structural concerns; examples range from drywalling to window leaks and cabinet trim.

In addition, appellants Prevatt experienced problems of a more serious nature after they settled in May, 1988. Franklin’s witnesses testified that a water service line broke on the property due to settlement of the ground in the Prevatt yard. Water penetrated the foundation wall through a water pipe and a sewer sleeve and flooded the basement. (Transcript of March 1, at 140.) Franklin’s witness could not categorically state that the water problem was corrected as of the March 1, 1989 hearing. Likewise, appellants Kalikow have had ongoing difficulty getting the grading and seeding of their lawn accomplished.

Sometime after January 1988, appellants and other Oxbow Ridge homeowners began displaying signs on their front porches, in their windows, or on their front lawns expressing dissatisfaction with their homes. Signs appearing on front lawns were similar in size and appearance to “for sale” signs, with additional words to the effect that the owner was dissatisfied with the home in question. One of these signs was posted by the owner of the property across the street from the model home. At one time, appellants Prevatt had also displayed a somewhat larger sign asking Franklin when they were going to fix the water problem in their home.

In February or March of 1988, a number of Oxbow Ridge homeowners formed a homeowners’ association for the purpose of expediting and remedying problems with the completion of punch list items. By letter dated March 4, 1989, members of the homeowners association expressed their displeasure with Franklin’s post-settlement efforts in completing their homes.

Shortly thereafter, a meeting was held between homeowners’ representatives and Franklin. Franklin’s president, John Gerbert, said he would not deal with the association but would attempt to resolve problems with individuals. Franklin did assure homeowners that exterior grading of all occupied homes would be completed by March 31, 1988, weather permitting. At the time of the February 28, 1989 hearing, Franklin’s own witness acknowledged that grading of appellants Kalikows’ front yard was not yet completed.

By written and oral communication, Franklin advised homeowners that those individuals displaying negative signs would have their problems addressed last or not at all. Evidence in the record shows that Franklin did not consistently carry out this threat.

Appellants picketed the model home which served as Franklin’s business office for three or four weekends in July and August of 1988. The only evidence introduced as to the nature of the picketing was a photograph showing four individuals each holding a single sign walking or standing by the edge of the road near Franklin’s trailer. The signs expressed dissatisfaction with Franklin and its homes and urged support for legislation protecting home-buyers. There was no allegation in Franklin’s pleadings that the picketing was other than peaceful, nor was there any evidence that picketers obstructed pedestrian or vehicular traffic, blocked ingress or egress for the model homes or otherwise physically or verbally intimidated prospective homebuyers or others. Picketing ceased after Franklin representatives met with appellants separately to prepare new punch lists. Franklin continued to urge removal of the signs by the Kalikows and Prevatts.

By January, 1989, additional signs expressing dissatisfaction with the Franklin homes were posted by six other defendant-homeowners. There is no evidence that appellants had urged the other homeowners to post these signs.

Franklin has not disputed that there were delays in construction, grading, and completion of punch list items, but it attributes those delays to site conditions such as hidden springs, to a housing boom which caused difficulties in retaining subcontractors and labor, and to its initial reliance on a topographical survey which proved to be materially inaccurate. Franklin also claims that it has worked diligently to resolve all problems with the homes and it deems those remaining to be minor in nature. Among the witnesses appearing on Franklin’s behalf were homeowners who had previously signed the homeowner association’s letter to Franklin or posted signs, but who had since received satisfaction from Franklin regarding their own difficulties and were now concerned with the effect of the remaining signs on their property values and on public perception of the community.

In February, 1989, Franklin sued a total of ten homeowners — appellants and six other defendants no longer party to this action — who maintained posted signs on their properties as of January, 1989. Franklin brought an action in equity, seeking expedited discovery, injunctive relief, counsel fees and costs, and compensatory and punitive damages. The complaint sounds in tortious interference with economic opportunity, defamation, and commercial disparagement.

Appellants filed preliminary objections in the nature of a demurrer, which the trial court overruled. Appellants’ preliminary objections specifically asserted that the injunctive relief sought be Franklin could not be properly granted in that it would constitute an impermissible prior restraint upon freedom of expression in violation of both the U.S. (First and Fourteenth Amendments) and Pennsylvania (Article I, Section 7) constitutions. Whether the trial court improperly overruled the demurrer is the first issue for our review.

A demurrer accepts as true all well pleaded factual averments and reasonable inferences therefrom and asks the court to examine the complaint to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). To the extent that the relief sought by Franklin was injunctive relief from the pure speech and peaceful, non-disruptive, informational picketing activities which Franklin attributed to appellants, the trial court improperly overruled the demurrer. For the same reasons, issuance of the injunction itself was also improper.

In its complaint, Franklin has alleged only that appellant’s activities and intentions consisted of the following:

1. Appellants picketed at Oxbow Ridge, without any suggestion that such picketing was in any way violent, disruptive, or physically intimidating.
2. Appellants published statements criticizing Franklin’s business practices and impugning its competence, and skill, and integrity, which statements Franklin alleges ■ were defamatory.
3. Appellants approached potential buyers, advised them that the Franklin lacked skill, competence and integrity, and warned them against buying at Oxbow Ridge.
4. Appellants subjected Franklin’s employees to threats and verbal abuse and vandalized Franklin’s property. These allegations, however, were made in the most general terms and were merely conclusory; no specific incidents were alleged which constituted “threats” or “vandalism”. (Nor was any evidence of threats or vandalism presented at the hearings held before the preliminary or final injunctions were issued.)
5. Appellants engaged in these activities with the intent to cause substantial damage to Franklin in its business endeavors and to coerce Franklin into acceding to the “unlawful” demands of appellants. The factual nature of these “unlawful” demands was also neither plead nor proven.

In sum, the facts Franklin has alleged, even if true, do not entitle it to injunctive relief since appellant’s activities would be entitled to protection, at least from prior restraints, under the Article I, section 7 of the Pennsylvania Constitution. Willing v. Mazzocone, 488 Pa. 377, 393 A.2d 1155 (1978); Goldman Theaters v. Dana, 405 Pa. 83, 173 A.2d 59 (1961). In addition, appellant’s speech is similarly-protected under the First and Fourteenth Amendments to the United State Constitution. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

Under the federal constitution, any system of prior restraint bears heavy presumption against validity. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). See also, Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The U.S. Supreme Court has refused to uphold injunctions against speech intended to harm economically the business of another, even where the state courts have found the activities in question to be “coercive and intimidating, rather than informative.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). In Keefe, the majority observed that “no prior decisions support the. claim that the interest of an individual in being free from public criticism of his business practice in pamphlets or leaflets warrants use of the injunctive power of a court.” 402 U.S. at 419, 91 S.Ct. at 1577. Merely because the speech is intended to influence conduct does not remove it from First amendment protection. Id.

Peaceful picketing carried on in a location generally open to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment. Amalgamated Food Employees v. Logan Valley Plaza, 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). Speech in the form of a boycott, marches, and picketing, which urges action in which listeners are legally permitted to engage is protected, NAACP v. Claiborne Hardware, 458 U.S. at 907, 102 S.Ct. at 3422, as is peaceful picketing of a business even though the purpose “was concededly to induce customers not to patronize” the business. Id., citing Thornkill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. Appellants’ picketing herein encouraged potential homebuyers to refrain from purchasing homes. The action urged was one in which listeners were legally entitled to engage and it was urged in a fashion which did not involve trespass or disruption; thus it was protected.

The fact that appellants intended to influence the conduct of others by their activity does not make the speech less deserving of protection. Keefe, 402 U.S. 415, 91 S.Ct. at 1575. Because there is absolutely no allegation that appellants’ speech or picketing was in any way violent, disruptive or physically intimidating or that it urged illegal action, the injunction violated the First Amendment.

The Pennsylvania Constitution, which is even more protective of speech than the federal Constitution, Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), prohibits “prior restraint on Pennsylvanians’ right to speak” Goldman Theaters v. Dana, 405 Pa. 83, 173 A.2d 59 (1961). Under Pennsylvania law, “peaceful picketing conducted in a lawful manner and for a lawful purpose is lawful, even though it shuts down, bankrupts or puts out of business the company or firm which is picketed.” Tate v. Philadelphia Transport Co., 410 Pa. 490, 190 A.2d 316, 320 (1963).

The Pennsylvania Supreme Court’s decision in Willing v. Mazzocone is directly on point and controls our disposition of this case. In Willing, the Pennsylvania Supreme Court vacated an order enjoining speech activities including picketing of a private business similar to the instant case. The Court did so even though the content of the speech itself, unlike that in the present case, was already determined to be defamatory. Id.

In Willing, a former client of a Philadelphia law firm demonstrated in a pedestrian plaza between office buildings which was also a well-traveled pedestrian pathway between two court buildings. She wore a sandwich-board sign claiming that the law firm stole money from her and sold her out to an insurance company. She also pushed a shopping cart with an American flag, rang a cow bell, and blew a whistle to attract further attention. After the firm’s partners filed a suit in equity to seek an injunction against Willing’s activities, hearings were held at which it was found that Willing’s statements were patently false. An injunction, as modified by the Superior Court, prevented Willing from further demonstrating or picketing by uttering statements to the effect that the firm stole money from her and sold her out.

The Pennsylvania Supreme Court found that the state constitution prohibited this kind of prior restraint and that the proper remedy was a defamation action. The Willing court, citing Heilman v. Union Canal Co., 37 Pa. 100 (1860), found that an action for defamation was an adequate remedy at law despite defendant’s indigence since any other conclusion would condition the exercise of the constitutional right to express one’s opinion freely on one’s economic status.

The present case closely parallels Willing in that Franklin sought the injunction to protect its economic interest in the Oxbow Ridge development even though there existed an adequate remedy at law. Moreover, the type of conduct at issue in the two cases is virtually the same: one or a few individuals demonstrating or picketing in a public place while holding signs critical of a business entity with which they had had unsatisfactory dealings. Appellants’ activities are clearly protected from prior restraint under Pennsylvania law.

In addition to objecting to appellants’ speech on the basis of its effect, Franklin has complained that the language utilized by appellants in picket and lawn signs was obscene, offensive and embarrassing to the community. Yet the U.S. Supreme Court has repeatedly held that speech does not lose its protected character simply because it may embarrass others or coerce them into action. Claiborne Hardware, 458 U.S. 886, 102 S.Ct. 3409; Keefe, 402 U.S. 415, 91 S.Ct. 1575. “[S]o long as the means are peaceful, the communication need not meet standards of acceptability.” Keefe, 402 U.S. at 419, 91 S.Ct. 1577; Cohen, 403 U.S. 15, 91 S.Ct. 1780.

None of the speech which Franklin attributed to appellants is constitutionally obscene or otherwise unprotected. For instance, Franklin’s averment and argument that the picket sign “F..... by Franklin” is obscene cannot withstand any scrutiny. As the U.S. Supreme Court held in Cohen, speech must in some significant way be erotic or appeal to a prurient interest in order to give rise to the states’ broader power to prohibit obscene expression. See also, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

Without doubt, the injunction which Franklin sought and which the lower court granted was directed at the content rather than the manner of appellants’ speech. The injunction only prevents appellants from speech and other expressive conduct which is critical of Franklin. It is directed against the ideas expressed because of the detrimental impact which the communication of those ideas has had upon Franklin. It is by no means a time, place, and manner restriction on conduct associated with speech. The present case is thus easily distinguishable both factually and on the basis of the injunction itself from Rouse Philadelphia, Inc. v. Ad Hoc ‘78, 274 Pa.Super. 54, 417 A.2d 1248 (1979).

Rouse involved thousands of demonstrators blocking ingress and egress, setting fires, using sound amplification equipment, and threatening physical harm to persons in and around the Gallery, a shopping complex in downtown Philadelphia. In this regard alone, the type of expressive conduct in Rouse was far more disruptive than that in the instant case and posed hazards unconnected with the ideas expressed in the speech itself. The Rouse demonstrators were protesting the allocation of funds by the City of Philadelphia to develop the Gallery. The action they urged was essentially a "scapegoat” boycott of merchants who had indirectly benefitted from that allocation but who were in any event powerless to do anything about it.

Rouse noted that a person or group of persons is entitled to attempt to convince others to refrain from purchasing certain products whatever their reason but conduct beyond the purer forms of speech may be subject to the control of the state if its manner or purpose gives grounds for its disallowance. The Rouse court found that the picketing and demonstrations were illegal because of the violent and disruptive manner in which they were carried out and because the purpose was to harm businesses who were not in any way responsible for the demonstrators’ grievances. In fact, the injunction which the Rouse court upheld went more to the time, place, and manner of picketing and demonstration rather than to the content of the speech itself.

The instant case stands in sharp contrast both as to the manner and the purpose of the picketing and as to the order entered against the defendants. First, the court’s order enjoins only speech and expressive conduct critical of Franklin; it is not a reasonable time, place, and manner restriction having only an incidental burden on speech. Second, appellants’ picketing served to inform rather than disrupt or intimidate. Third, appellants were urging the boycott of a business entity, Franklin, with whom they were primarily aggrieved. Thus the manner and purpose of the boycott were legal. Only if it were determined that appellants’ statements were false could there be any liability and then only in a subsequent action at law. See, Willing, 488 Pa. 377, 393 A.2d 1155.

The lower court erroneously viewed the case as one which required the balancing of First Amendment and Article I, section 7 concerns against Franklin’s right not to have unjustified interference in its economic opportunity and cited our decision in Klebanoff v. McMonagle, 380 Pa.Super. 545, 552 A.2d 677 (1988) to justify the balancing in which it engaged. In Klebanoff, demonstrators targeted a private residence and engaged in picketing which was clearly disruptive and continued for almost a year. By citing Klebanoff, the lower court incorrectly equated a constitutional privacy interest in one’s own home — an interest which could be vindicated only by restoring it through injunctive relief— with Franklin’s economic interest in selling the homes it had built. Franklin’s economic interest can be adequately vindicated by an action at law to determine the truth or falsity of appellants’ statements and thus does not require the extraordinary measure of an injunction against appellant’s expressive conduct.

We emphasize that, unlike Klebanoff, no one’s privacy interests have been interfered with by appellant’s actions. We note that suit has been brought by Franklin to protect its economic interest; other homeowners besides appellants are not party to it. Appellants did not picket or conduct demonstrations directly in front of their neighbors’ homes. No invasion of privacy on the same scale as Klebanoff occurred.

Rather, appellants picketed the sales office and model home of Franklin, a business entity. It would, of course, be extraordinary for us to find that a business has a privacy interest in premises which are not only open to the public but onto which the business invites and solicits the public.

If appellants’ statements are untrue, Franklin has an adequate remedy at law. The injunction, which violates both the state and the federal constitutions, should not have been granted.

Reversed and remanded. Jurisdiction relinquished.

KELLY, J., files concurring statement.

KELLY, Judge,

concurring.

In light of the plethora of state and federal authorities collected by the majority which unequivocally establish that the content based prior restraint imposed in this case violated both the federal and Pennsylvania constitutions, I see no need to ground our decision on the fractured plurality decision in Willing v. Mazzocone, 488 Pa. 377, 393 A.2d 1155 (1978) (per Manderino, J.; Roberts, J., concurring, O’Brien, J., joins; Pomeroy, J., concurring; Eagen, C.J., dissenting; Nix and Larsen, JJ., noting dissent). I nonetheless, concur in the result.

      . Franklin has suggested in its counterstatement of the facts that the appeal is moot because it has almost concluded sales at Oxbow Ridge. However, the appeal is not moot because the injunction specifically requested and received by Franklin was not limited in time or scope to the course of development at Oxbow Ridge but rather enjoined picketing at any of the businesses or projects of Franklin or its affiliates “not limited to the Oxbow Ridge development” and enjoined publication of any written statements, including the display of signs, tending to impute Franklin’s lack of skill, etc. and/or tending “to materially interfere” with the conduct of business by Franklin or its affiliates “including but not limited to its business at Oxbow Ridge”. By the broad terms appellee requested, the injunction continues to prevent appellants from engaging in expressive conduct concerning, for instance, their own experience at Oxbow Ridge in connection with other projects of Franklin’s. Thus a live controversy exists in that appellants are presently prevented by court order from exercising their constitutional rights in a variety of circumstances in which they might otherwise choose to exercise them.
      Only dissolution of the injunction would render the matter moot since the injunction still serves as an actual as well as a theoretical restraint on appellants’ expressive conduct at other Franklin projects besides Oxbow Ridge. However, this court has the power only to affirm or to vacate the order of the trial court, not to dissolve the injunction in response to a suggestion by appellee that it would prefer a mootness disposition since the injunction has already served appellee’s primary purpose.

      . Pa.R.C.P. 1531(f)(1) provides:
      When a preliminary or special injunction involving freedom of expression is issued, either without notice or after notice and hearing, the court shall hold a final hearing within three (3) days after demand by the defendant. A final decree shall be filed in the office of the prothonotary within twenty-four (24) hours after the close of the hearing. If the final hearing is not held within the three (3) day period, of if the final decree is not filed within twenty-four (24) hours after the close of the hearing, the injunction shall be deemed dissolved.

      . During the course of the hearings, an issue arose as to whether the preliminary injunction entered on March 1 and continued on March 3 was appealable. Likewise, the trial court opined that appeal from its order of March 6 would be premature. We note that the plain language of Pa.R.A.P. 311 states that an order granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions is interlocutorily appealable. Since the court entered a final injunction on March 6 in order to prevent appellants from asserting that the March 1 preliminary injunction should have dissolved pursuant to Pa.R.C.P. 1531(f), we need not decide whether the trial court’s failure to complete a final hearing within the three-day limit prescribed by Rule 1531(f) operated to dissolve the March 1 preliminary injunction.

      . During the Rule 1531(f) final hearing, the trial court, over defense counsel’s objection, incorporated affidavits and an offer of proof which had been admitted during the 1531(a) preliminary injunction hearing. Although Rule 1531(a) permits the court to consider affidavits and any other proof which the court may require, there remains an issue as to whether it is proper for a court to consider such evidence, which is not subject to cross-examination, in connection with a final hearing under 1531(f). See, Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 522 A.2d 1129 (1987) (it is inappropriate to integrate proceedings involving a request for preliminary injunction and final injunction as each is controlled by separate and distinct standard). Given our decision to vacate the trial court’s orders on other grounds, we need not address this issue.

      . Additionally, some of the judge’s findings of fact in the “Adjudication” are manifestly unsupported by record references. E.g., Findings of Fact numbers 8, 9, 13, 23, 26, 27. Contrary to the court’s opinion, there is absolutely no evidence in the record, nor is there any allegation in the pleadings, that appellants at any time refused to allow Franklin to perform work on their homes.

      . In support of its complaint for relief, Franklin avers that the modified "for sale" signs violate the New Britain Township Zoning Ordinance, which limits the posting of signs in residential neighborhoods. "For sale” signs within particular dimensions are one type of sign which the ordinance permits. To the extent that the ordinance seeks to restrict signage on the basis of its expressive content (rather than, for instance, on the basis of its physical dimensions), it would appear to be unconstitutional. Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (“for sale" signs cannot be prohibited on the basis of their content). The Lin-mark court reached that conclusion even though the signs in that casé were being used to advertise and were therefore commercial speech which is deserving of even less protection. Thus, appellants’ alleged violations of the New Britain Township ordinance cannot support Franklin’s claims.

      . On cross-examination, some of appellee’s witnesses — homeowners who had previously engaged in activities similar to appellants’ but who had since received satisfaction from Franklin — testified to the contents of the letter and authenticated their own signatures. The letter itself is marked as an exhibit but is not yet in evidence. Appellants were not afforded an opportunity to move the letter into admission as they had not yet been able to present their case by the time the injunction became final.

      . We would note additionally that it is uncertain, in the context of judicial admissions made by Franklin’s own employees concerning delays in the completion of various aspects of construction, whether the statements Franklin has attributed to appellants are even actionable under the law of defamation since they tend to express opinions about factual situations the existence of which Franklin does not appear to dispute. However, the issue of Franklin’s entitlement to damages at law has not been adjudicated and is not ripe for our review.

      . Even if it were found that appellants would be unable, as a practical matter, to satisfy a judgment which might be awarded to Franklin, that fact does not go towards the adequacy of the remedy at law. Willing, 488 Pa. 377, 393 A.2d 1155.


author: HUDOCK, Judge.

text:
    573 A.2d 559
    COMMONWEALTH of Pennsylvania, Appellee, v. William J. LIPTAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1990.
    Filed April 11, 1990.

      David A. McGowan, McKeesport, for appellant.
    Paul H. Millin, Dist. Atty., Tionesta, for appellee.
    Before McEWEN, BECK and HUDOCK, JJ.
   HUDOCK, Judge.

This is an appeal from two orders entered by the Court of Common Pleas of Forest County, Criminal Division. On December 29, 1987, Appellant, William J. Liptak (hereinafter “Liptak”), pled guilty, in writing, to violating 75 Pa.C.S. § 1543(a) (relating to driving while operating privilege is suspended). Liptak subsequently received notice of license suspension from the Pennsylvania Department of Transportation. After unsuccessfully attempting to appeal his license suspension, Liptak petitioned the trial court to withdraw his guilty plea and have the case remanded for a hearing before the magistrate or, in the alternative, for an allowance of appeal nunc pro tunc. The first order subject to the instant appeal struck this petition; the second order, entered the same day, denied a motion requesting the same relief. We affirm.

Liptak contends that the guilty plea itself was the result of misrepresentations made to him by the officer who issued the citation. He alleges that the officer assured him that no further suspensions would be imposed on his driving privileges were he to simply plead guilty to the charge involved. Liptak maintains that he accordingly pled guilty and requested no hearing before the magistrate, thereby relinquishing his right to a de novo hearing, before the Court of Common Pleas, from any adverse adjudication by the magistrate.

Liptak challenges the court’s ruling by arguing that it abused its discretion in failing to grant a hearing on his petition where it contained arguably sufficient grounds for relief, striking the petition where it was unanswered and where it contained arguably sufficient grounds for relief, and denying the petition where it not only contained arguably sufficient grounds for relief, but also where it contained grounds for the assertion of certain defenses at a hearing before the magistrate or Court of Common Pleas.

The Commonwealth responds by arguing that in Pennsylvania appeals from summary convictions following a guilty plea do not lie. Furthermore, the Commonwealth points out that appeals from summary convictions must be filed within 30 days of conviction, a requirement which Liptak failed to meet, and that no provisions in state criminal procedure exist for the allowance of petitions for remand or appeal nunc pro tunc, a relief which Liptak requests.

We begin our analysis with the Commonwealth’s assertion that appeals from summary convictions following a guilty plea do not lie. Recently, in Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990), this Court concluded differently. There, the Court concluded that “[t]he appropriate method of challenging the propriety of a summary conviction, whether after hearing or by plea, is by a timely appeal to the court of common pleas pursuant to Pa.R.Crim.P. 86.” Id., 390 Pa.Superior Ct. at 567, 568 A.2d at 1318. (emphasis supplied). In reaching this conclusion, the court relied on the language of Rule 86(g), “that such an appeal is the exclusive means of challenging a summary conviction.” Id. (emphasis in original). The court, reconciling the lack of appellate authority in Pennsylvania supporting the view “that one who pleads guilty to a summary charge and pays the fine and costs cannot thereafter take an appeal pursuant to Rule 86[,]” confidently commented “we have no doubt that a right of appeal does exist for ‘one who pleads guilty to a summary offense.’ ” Id., at n. 3. This of course renders unnecessary any discussion of Liptak’s arguments pertaining to whether the trial court abused its discretion when it denied his petition to withdraw his guilty plea since it is now clear that such relief would have been inappropriate as Liptak’s remedy would have been to appeal to the court of common pleas for trial de novo.

However, Liptak did not commence his appeal within the 30 day time period proscribed in Rule 86. Thus, we must determine whether he is entitled to appeal nunc pro tunc. We recognize that judicial extensions of time are specifically prohibited by Section 5504 of the Judicial Code, except to relieve fraud or its equivalent. Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983). Where the party seeking leave to appeal nunc pro tunc demonstrates that the delay in the filing the appeal was precipitated by extraordinary circumstances involving fraud or a wrongful or negligent act of a court official resulting in injury to that party, the court may allow enlargement of the time for appeal or appeal nunc pro tunc. See, Commonwealth v. Bassion, supra; Commonwealth v. Englert, supra.

In Commonwealth v. Englert, supra, we held that a defendant who was convicted after a hearing by a district justice of a summary violation under the Vehicle Code cannot appeal nunc pro tunc on the basis that he was unaware of the suspension which would result as a collateral consequence. We point out in that case that the defendant “did not allege that his failure to file a timely appeal had been caused by ‘fraud or its equivalent’ ” and that, “thus, there is no legal or equitable reason for allowing an untimely appeal.” Englert, 311 Pa.Superior Ct. at 83, 457 A.2d at 123, 124. However, in Commonwealth v. Bassion, supra, we found that the giving of incorrect and inaccurate information to an accused by the district justice or by his or her staff may, if established, amount to a breakdown in the court’s operation warranting the allowance of an appeal nunc pro tunc. See also, Com. Dept. of Transportation v. Moore, 120 Pa.Commw.Ct. 617, 554 A.2d 130 (1988). Thus, we remanded to permit the appellant an opportunity to present evidence at an evidentiary hearing in support of her request for allowance of an appeal nunc pro tunc.

Turning now to Liptak’s petition, we must determine whether his allegations that his guilty plea was induced by the misrepresentations of the police officer who issued him the citation concerning the lack of collateral consequences amount to “fraud or a wrongful or negligent act of a court official.” After careful deliberation of the issue, we conclude that it is not. A police officer is charged with the responsibility of enforcing the laws of the Commonwealth. Unlike a district justice, who is a member of the unified judicial system, 42 Pa.C.S.A. § 301, a police officer is not responsible for the administration of the judicial system. Clearly, a district justice, or a member of his or her staff, is a “court official” whose fraudulent, wrongful or negligent conduct causing injury to a party would, unquestionably, implicate the integrity of the judicial system. In such a situation, there would be little hesitation to conclude that a breakdown in the court’s operation had occurred. However, we deem it ill-advised to consider police officers as among those who would be considered a “court official”.

We realize that many would unthinkingly consider themselves as acting reasonably in relying on information concerning the consequences of pleading guilty to a Vehicle Code violation when that information is provided by the police officer issuing the citation. Legal advice should, however, be sought from those charged with that responsibility.

Moreover, even were we to accept Liptak’s argument that the alleged misrepresentation rose to the level of fraud or its equivalent, we note that Liptak would, nevertheless, not be entitled to the relief for which he prays. A party who seeks leave to appeal nunc pro tunc has the burden of also establishing “that they acted promptly to assert such a right upon learning of the existence of the grounds relied on for such relief.” Commonwealth v. Bassion, 390 Pa.Superior Ct. at 568, 568 A.2d at 1319. A review of the record in the instant case evinces a lack of the requisite promptness by Liptak. Liptak received a notice of suspension of operator’s privileges from the Pennsylvania Department of Transportation, stemming from the conviction underlying this appeal, on or about January 24, 1989. After unsuccessfully appealing his license suspension, which appeal was commenced February 9, 1989, “[Liptak was] prompted ... to petition the lower court in the instance[sic] case to set aside his guilty plea based upon the trooper’s misrepresentations.” (Brief of Appellant, at 3.) Liptak’s petition to the court of common pleas was not filed until April 4, 1989.

Accordingly, the orders are affirmed.

      . The trial court’s action was in response to a Commonwealth motion to strike Liptak’s petition.

      . We expressly leave unresolved the question of whether such misrepresentations as have been alleged by Liptak occurred or not.

      , As discussed supra, the court below struck Liptak’s petition and also, but separately, denied the relief sought therein. The court’s actions were done without Liptak first having the opportunity of establishing his allegations in a hearing. Thus, were we to conclude today that Liptak alleged sufficient facts which, if established, would entitle him to appeal his conviction nunc pro tunc, we would, consistent with Commonwealth v. Bassion, remand to afford him such an opportunity.