source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    589 A.2d 242
    TIOGA COAL COMPANY, and Robert Forepaugh v. SUPERMARKETS GENERAL CORPORATION. Appeal of TIOGA COAL COMPANY. TIOGA COAL COMPANY, and Robert Forepaugh, v. SUPERMARKETS GENERAL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed March 14, 1991.
    Reargument Denied April 30, 1991.

      Joseph J. Carlin, Philadelphia, for appellant (at 1385) and appellee (at 1386).
    Stuart J. Agins, Philadelphia, for appellant (at 1386) and appellee (at 1385).
    Before WIEAND, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

Cross-appellant, Tioga Coal Company (“Tioga”), brought this action in equity against cross-appellant, Supermarkets General Corporation (“Supermarkets”), seeking title by adverse possession to a strip of land, known as Agate Street, located within the boundaries of Supermarkets’ property and adjacent to Tioga’s property. After 11 years of litigation, including several appeals to this Court and our Supreme Court, Tioga was finally decreed the owner of the property by adverse possession. The parties cross-appeal from orders denying their post-trial motions. The single issue raised by Tioga concerns the trial court’s failure to award monetary damages to Tioga arising out of Supermarkets’ use of the property during the period of litigation. Supermarkets raises two additional issues on appeal: (1) whether the trial court erred as a matter of law in setting forth the legal description of the property; and (2) whether the trial court erred as a matter of law in concluding that Tioga’s use of the property was hostile and exclusive.

From 1948 until 1978, Tioga, a retailer in the fuel oil business, maintained a locked gate accessing Agate Street, a strip of land running along the rear of Tioga’s property. Throughout this period, Tioga used the strip of land for ingress and egress to its property and for storage of oil, coal, equipment, supplies and trucks. In 1978, Supermarkets removed a fence on the property and began paving Agate Street, anticipating use of the strip in connection with the Pathmark shopping center which Supermarkets was building on its property. Tioga brought this action to quiet title in the name of Tioga, and upon instruction from the supreme court, has been declared the owner of the property by adverse possession.

First, we will address the issue raised by Tioga. As a result of settlement negotiations which took place at the start of this litigation, the parties agreed to the joint use of Agate Street pending the final resolution of the matter. N.T. January 10, 1989 at 4. Supermarkets thereafter completed the paving of Agate Street. Supermarkets and Tioga have used the paved strip free of dispute during the 12 year period of litigation. Tioga now seeks monetary damages from Supermarkets representing the reasonable rental value of Agate Street, compensation for the loss of the exclusive use and occupancy of the property, and the replacement value of a fence which Supermarkets removed to pave the street. The trial court denied Tioga’s request for damages.

Our scope of review in equity matters is limited. We will not disturb the chancellor’s decree absent an abuse of discretion or an error of law. Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 482 A.2d 1113 (1984). “The test employed is not whether the judges of an appellate court would have reached the same result as the trial judge, who heard and saw the evidence, but whether a judicial mind, on due consideration of the evidence, could reasonably have reached the conclusion of the trial judge.” SHV Coal, Inc. v. Continental Grain Co., 376 Pa.Super. 241, 545 A.2d 917, 920 (1988), appeal granted 522 Pa. 595, 596, 562 A.2d 320 (1989).

Because we find that the trial court committed no error of law or abuse of discretion in denying Tioga’s request for monetary damages, we affirm the decision of the trial court. The chancellor reasoned that Tioga was not entitled to damages because Tioga’s use of the property was in no way hindered by Supermarkets, and because Supermarkets’ use of the property took place under the belief that its title to Agate Street was good and proper. In addition, the record shows that Tioga received the benefit of the paving of the driveway, and Supermarkets paid the property taxes attributable to Agate Street during the extensive litigation period. Importantly, Tioga agreed to the parties’ joint use of Agate Street pending the outcome of the case. Tioga benefitted from this agreement insofar as Tioga was spared the time and expense of litigating a preliminary or temporary injunction for the exclusive use of the property during the period of litigation. We do not agree that the chancellor erred in refusing the claim for monetary damages, as the decision rested upon reasonable grounds.

Further, we find no abuse of discretion in the chancellor’s refusal to allow recovery for the fence, as denial of damages rested in part upon the court’s finding that the fence was owned by Supermarkets’ predecessor in interest. In view of the finding that the fence did not belong to Tioga, we find that the chancellor’s denial of the monetary award was reasonable. We have found no legal authority in conflict with the chancellor’s decision.

Supermarkets’ challenge to the legal description of the property rests on two theories: (1) the property description includes 10 more inches in width than the description of the property set forth in the complaint; and (2) the court failed to apply the “de minimis” rule.

A review of the record reveals that the precise description of the property was a factual issue which was hotly disputed by the parties. See N.T. January 20, 1989 at 3-8. When the parties failed to reach an agreement as to the property description, Tioga and Supermarkets submitted their respective proposed descriptions to the court. After consideration, the chancellor adopted Tioga’s proposed description, reasoning:

... Supermarkets’ description omitted a ten inch strip that exists between the former bed of Agate Street and Tioga’s property. Tioga’s description included this strip and therefore fit more precisely to Tioga’s existing land. The only other option would have been to hire an independent surveyor which would only add more expense to this twelve year old case.

Trial Court Opinion, August 1, 1990 at 5.

It is well-settled that a court sitting in equity has broad discretion in framing its decree and granting relief tailored to the particular circumstances of the case:

“Under the prayer for general relief, a decree which accords with the equities of the cause may grant any appropriate relief that conforms to the case made by the pleadings although it is not exactly the relief which has been asked for by the special prayer____ Under the prayer for general relief, the plaintiffs are entitled to such relief as is agreeable to the ease made in the bill, though different from the specific relief prayed for.”

Lower Frederick Township v. Clemmer, 518 Pa. 313, 543 A.2d 502, 512 (1988), quoting Meth v. Meth, 360 Pa. 628, 625-26, 62 A.2d 848, 849 (1949). Here, although the specific prayer for relief in the amended complaint specified a forty foot wide tract of land, the complaint also included a prayer for general relief:

WHEREFORE, Plaintiffs pray this Honorable Court
jj« s¡" •.;< St #
(c) such other relief that appears proper upon a final hearing in this matter.

Amended Complaint at 8-4.

At trial, Tioga proved that Tioga had taken possession of the ten inch strip of land between Tioga’s property and Agate Street insofar as Tioga had constructed five large fuel storage tanks on the rear of its property and built a cinder block wall, surrounding the tanks, on the ten inch strip. Supermarkets conceded Tioga’s ownership of this ten inch strip of land. See Adjudication of Doty, J., February 19, 1985 at 5-6. Tioga also proved that Tioga had taken possession of the forty foot wide Agate Street. There has never been any question in this case that Tioga sought title to the entire width of Agate Street, which both parties’ exhibits reveal to be forty feet, as well as the ten-inch strip of land between Tioga’s property and Agate Street. At the hearing on this issue, counsel for Supermarkets claimed that although Supermarkets’ proposed description had a different point of beginning, its description defined the same area as Tioga’s description, including the ten-inch strip between Agate Street and Tioga’s property. N.T. January 20, 1989 at 4-6. A close review and comparison of the parties’ proposed descriptions shows that this is an inaccurate characterization, as Supermarkets’ description refers to a strip of a land thirty-nine feet, ten and seven-eighths inches wide. If this description includes the ten-inch strip, as Supermarkets so claims, then according to Supermarkets’ description, Agate Street is only twenty-nine feet, ten and seven-eighths inches wide. This is obviously erroneous, as every exhibit in this case shows that the former Agate Street is forty feet wide.

Throughout this litigation, Supermarkets has been fully aware of the strip of property to which Tioga sought title, that is, the ten-inch wide parcel and the forty foot wide Agate Street, and Tioga has proven ownership of the entire parcel which is described in the chancellor’s decree. Therefore, we find that the chancellor acted well within his jurisdiction in framing the relief to include Tioga’s entitlement to the ten-inch strip of land between Tioga’s property and Agate Street, as well as the entire bed of Agate Street.

Supermarkets’ second challenge to the property description set forth in the chancellor’s decree is based on the court’s failure to apply the “de minimis” rule. This doctrine, as applied in cases involving requests for mandatory injunctions, holds that a court of equity will deny a request for the removal of a building or structure extending over a boundary line by a minimal distance and encroaching upon adjoining realty, where the expense, difficulty,- and hardship of removal of the building would place a disproportionate burden on the defendant. See Glinn v. Silver, 64 Pa.Super. 383 (1916); Heine v. Robinson, 108 Pitt.L.J. 139 (1959); Sciaretta v. Mitchell, 20 Beaver L.J. 41 (1958); 28 A.L.R.2d 679.

According to the survey map prepared by Tioga, the rear wall of Supermarkets’ shopping center encroaches upon Tioga’s property by twelve and three-fourth inches. Supermarkets therefore claims that the chancellor should have considered the “de minimis” doctrine in defining the extent of the property subject to Tioga’s adverse possession. A review of the record shows that Supermarkets did not raise the “de minimis” defense during the trial or urge the chancellor to consider this doctrine during the hearing on the property description; it was not until the post-trial stage that Supermarkets raised this doctrine.

We find that it is unnecessary to consider whether the court erred in failing to apply the “de minimis” rule, as there is absolutely no indication in the record that Tioga seeks an injunction ordering Supermarkets to remove the rear wall of the building; nor did the trial court order the removal of the building. The cases cited by Supermarkets all involve situations in which a landowner sought a mandatory injunction directing the defendant to remove an encroaching wall, and the defendant raised the “de minimis” rule as an equitable defense. Thus, the question of whether the de minimis doctrine applies need not be decided and is not before us.

Finally, Supermarkets challenges the trial court’s findings regarding the exclusivity and hostility of Tioga’s use of the property under the doctrine of adverse possession. These issues were fully litigated before this Court and the supreme court. In Tioga v. Supermarkets General Corp., 519 Pa. 66, 75 n. 4, 546 A.2d 1, 5 n. 4 (1988), the supreme court upheld the Chancellor’s findings as to exclusivity, openness, notoriousness and continuity of possession. The court further held that hostility will be implied in cases, such as this one, where all other elements of adverse possession have been established. Id. Despite the supreme court’s clear rulings on these issues, Supermarkets urges us to reconsider these allegedly flawed decisions. “It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on second appeal.” Commonwealth v. Tick, Inc., 431 Pa. 420, 427, 246 A.2d 424, 427 (1968), citing Delaware River Port Authority v. Penn. Public Utility Comm,’n., 408 Pa. 169, 182 A.2d 682 (1962); Ondovchik v. Ondovchik, 421 Pa. 20, 218 A.2d 578 (1966). Thus, the supreme court’s determinations made in the prior appeal have become the law of the case, and we will not reconsider these issues.

In view of the foregoing, we affirm the decree of the trial court.

Decree affirmed.

      . Agate Street is a "paper” street which was never opened to the public.

      . For a more complete procedural history of this case, see Tioga Coal Co. v. Supermarkets General Corp., 519 Pa. 66, 546 A.2d 1 (1988); Tioga Coal Company v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981).

      . At the hearing on damages, counsel for Tioga stated that Tioga was not seeking damages for removing the concrete driveway and other structures which were permanently erected on property by Supermarkets. See N.T. January 10, 1989 at 8.

      . See D-12 and Survey and Plan of Property Made For Tioga Coal Co.


author:
POPOVICH, Judge:
      DEL SOLE, Judge,

text:
    589 A.2d 246
    Ronald A. CONSUL and Beth Ann Consul, H/W v. Bernard BURKE, M.D., Isaac Tam, M.D., Rugby Laboratories, Inc., Chelsea Laboratories and Marshall Pharmacal Corporation v. Arthur D. HODESS, M.D. and M. Price Margolies Associates, Additional Defendants. Appeal of Bernard BURKE, M.D. and Isaac Tam, M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Filed April 3, 1991.

      Thomas 0. Malcolm, West Chester, for appellants.
    Jerome Ornsteen, Bala Cynwyd, for Hodess & Margolies Associates, appellees.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the December 27,1989, order granting the preliminary objections of the additional defendants (Arthur D. Hodess, M.D., and M. Price Margo-lies Associates) to their joinder in a malpractice suit by the original defendants/appellants (Bernard Burke, M.D., and Isaac Tam, M.D.). We affirm.

The procedural history of this case begins with the filing of a six-count complaint on February 29,1988, by Ronald A. Consul and Beth Ann Consul, his wife, against Drs. Burke and Tam (on grounds of medical malpractice) and Rugby, Inc., Chelsea Laboratories, Inc. and Marshall Pharmacal Corp. (on grounds of product liability) for prescribing, distributing and manufacturing, respectively, Prednisone.

It was alleged that in November and December of 1984, Mr. Consul came into the care of Drs. Burke and Tam for the treatment of chest and joint discomfort. Both physicians prescribed Prednisone, which Mr. Consul alleged was the direct and proximate cause of injury to his person (aseptic necrosis) necessitating various medical procedures (bilateral hip replacement) to address his injury, pain and loss of finances and life’s pleasures. Thereafter, numerous pleadings were filed by the parties up to and including the August 11, 1988, responses of the Consuls to Chelsea’s interrogatories at number 12, wherein it was listed for the first time that one of the doctors who had “rendered services” to Mr. Consul, “with respect to the injuries and conditions that [were] the basis of th[e] law suit ...,” was Arthur B. Hodess, M.D.

Also, Dr. Burke’s answer to Chelsea’s interrogatories at number 12, submitted on April 20, 1988, indicated that after December 14, 1984, “A request for transfer of records to Dr. Margolis [sic ] and group was obtained”, and no further care was provided by Drs. Burke and Tam to Mr. Consul. Further, on November 18, 1988, the Consuls’ responses to Drs. Burke and Tam's interrogatories at number 4 disclosed, again, that Doctor Arthur B. Hodess was one of several doctors who had examined, treated and rendered services to Mr. Consul because of his claimed injuries. However, to interrogatory number 27, which read: “Did any physician other than Dr. Tam or Dr. Burke prescribe or dispense any steriod [sic ] or Prednisone for husband-plaintiff prior to or subsequent to November 1, 1984?” the answer typed was: “No.”

On December 5, 1988, counsel for Drs. Burke and Tam (Attorney Michael D. Carr, of the law firm of Malcolm & Riley, P.C.) withdrew his appearance and Attorney Thomas 0. Malcolm (of the same firm) entered his representation for the appellants. By February 16, 1989, Attorney Maicolm had filed a petition seeking an extension of time to join as additional defendants Arthur B. Hodess, M.D. and M. Price Margolies Associates. It was granted on April 8, 1989, without prejudice to the additional defendants’ right to object timely.

In the petition filed to obtain an extension to join additional defendants, Drs. Burke and Tam alleged, in pertinent part, that after December 4, 1984, Mr. Consul engaged Dr. Arthur D. Hodess, a physician specializing in internal medicine, cardiology and critical care medicine, to treat him. After seeing Dr. Hodess on or about December 10, 1984, Mr. Consul continued to see him and was “prescribed Prednisone” by the doctor.

Joinder was being sought by the original defendants to assert a right to contribution from the additional defendants “for prescribing Prednisone for Ronald A. Consul[.]” Paragraph 14. In a complaint attached to the joinder petition, the original defendants claimed that Dr. Hodess had prescribed a continuing course of treatment with Prednisone from December 10, 1984, until February 7, 1985. Paragraph 9; see also Memorandum of Law of original defendants.

In their Memorandum of Law, the original defendants averred that to grant the petition to join would not delay the case, given that it was in its initial stages and only interrogatories and records had been exchanged. Further, the denial of the petition would prejudice the defense of the original defendants and require that they file a separate action against the additional defendants for contribution. Id. at page 7.

On July 28, 1989, the additional defendants filed preliminary objections to the original defendants’ complaint on the ground that no “good cause” was shown for the delay in joining Dr. Hodess in violation of the 60-day time period under Pa.R.Civ.P. 2258 following the filing of the original complaint. The additional defendants argued that the original defendants were aware of Dr. Hodess’ involvement in the case by August 11, 1988, when the plaintiffs responded to Chelsea’s interrogatories. The original defendants waited seven months after such a notice and one year after the filing of the original complaint to petition for joinder of Dr. Hodess. Paragraph 5.

The original defendants filed an Answer to Preliminary Objections of Additional Defendants responding that by August 11, 1988, the plaintiffs’ answers to Chelsea’s interrogatories named Dr. Hodess as having “rendered services to” Mr. Consul. It was admitted that the word “Prednisone” appeared twice in the Brandywine Hospital Discharge Summary Sheet which the plaintiffs produced on or about August 11, 1988, in response to the request for the production of records by Chelsea. However, the original defendants averred that it was not known whether these materials, filed in response to discovery of another party defendant, were examined closely by the then attorney for the original defendants. Id. at pages 2-3.

Present counsel for the original defendants claimed that the first he learned of sufficient information to determine whether Dr. Hodess should be joined was “after receiving plaintiffs’ answer to the interrogatories that his office had filed upon them____” At that time, i.e., after November 18, 1988, present counsel for the original defendants asserted that he came to the conclusion that there was a basis to join Dr. Hodess and his professional association. Id. at page 3.

In a Memorandum in Opposition to Preliminary Objections of Additional Defendants, the original defendants’ present counsel averred that the original defendants’ prior counsel withdrew from the case on November 30, 1988; in particular, it was noted that:

[Attorney Carr gave notice of withdrawing from Malcolm & Riley in mid-November of 1988 (Same time Plaintiffs’ Answer to Interrogatories filed by Attorney Carr for Drs. Burke and Tam were received) ]. Mr. Carr had a number of cases that had to be reassigned to the remaining attorneys in the firm. This entailed reviewing the cases and making decisions regarding their reassignment. When they were reassigned, successor counsel had to find time, amongst the other demands of his or her practice, to review each file which had been reassigned to him.
... the Consul case was reassigned to Thomas 0. Malcolm, Esquire, who, when he was able, reviewed the materials that had been received from various sources. When he completed this review, [counsel concluded to seek joinder of Hodess and Associates].

Id. at pages 8-9 (Emphasis added).

By order of court dated December 27,1989, the additional defendants’ preliminary objections were granted and the third-party complaint of Drs. Burke and Tam was stricken. In an opinion accompanying the order, the court held that no “reasonable justification” was shown to grant the joinder petition and the inadvertence of counsel was not sufficient to justify the delay in seeking joinder of the additional defendants. This timely appeal followed and raises but a single issue, appearing at page 3 of the appellants’ brief under the caption “Statement of the Questions Involved”:

Whether the Trial Court abused its discretion in granting the Preliminary Objections of the appellees/additional defendants and striking the Complaint of the Appellants against them?

The basis for the appellants’ contention is that: (1) the delay was justified; and (2) neither the plaintiffs nor the additional defendants would be prejudiced by the delay in effectuating joinder.

The applicable statutory law governing late joinder, as well as the standard of review, was set forth by this Court in Riccobono v. Keystone Helicopter Corp., 352 Pa.Super. 186, 189-190, 507 A.2d 834, 835-836 (1986):

Pennsylvania Rule of Civil Procedure 2253 prohibits the filing of a praecipe or complaint to join an additional defendant more than sixty days after the original defendant is served with plaintiff’s initial pleading. Rule 2253 permits an untimely filing only upon cause shown____ Unless appellant demonstrated cause to justify the untimely filing, the trial court had no choice but to deny the motions to join nunc pro tunc.
Joinder after the sixty day period may provide a method of expeditiously litigating dispute involving many parties provided the plaintiff is not subject to unreasonable delay, [citation omitted]. To justify late joinder, the petitioner defendant must show,
(1) some reasonable justification or excuse for the delay; (2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. It should ask for leave to file both the praecipe and the complaint called for by Rule 2252(b). [citations omitted].
Whether cause is shown to justify late joinder is a matter for the sound discretion of the trial court, and we shall not reverse absent an abuse of discretion, [citation omitted].

We find it necessary to decide only whether the appellants have proffered sufficient justification in delaying to seek joinder of the additional defendants some seven months after learning that Dr. Hodess had “continued” to prescribe Prednisone to Mr. Consul. See Kovalesky v. Ester Williams Swimming Pools, 345 Pa.Super. 95, 497 A.2d 661, 665 n. 4 (1985). The appellants admit as much in their brief to us; to-wit:

... the appellants knew from the discovery obtained by Chelsea that Dr. Hodess had continued [Mr. Consul] on Prednisone after he took over his care, ... they deferred the decision [to join] awaiting responses to the discovery they had filed upon the plaintiffs.

Brief at 8. The appellants had information as early as August 11, 1988, which, using their own words, “indicated that the additional defendants had also prescribed Prednisone to Mr. Consul____” Id. at 14. They urge that, despite possession of the answers to interrogatories identifying Dr. Hodess as continuing to prescribe Prednisone to the plaintiff-Consul, “they should not be faulted for wanting to have as much information on this subject as they could reasonably hope to obtain before coming to their decision regarding the joinder [of Dr. Hodess and M. Price Margóles Associates].” M at 15.

The question, premised on the appellants’ posture in the case, appears to be not when they should have sought to join the additional defendants, but, rather, “how much was enough information” warranting the submission of a request to seek joinder of Dr. Hodess and M. Price Margóles Associates. Ideally, one would like to possess the optimum amount of information before beginning any legal procedure in order to maximize success in the judicial arena. However, the appellants’ argument falls under the weight of its own logic.

For example, the reality of the situation was that the original defendants had sufficient information by August 11, 1988, to put them on notice that other players (Dr. Hodess and M. Price Margóles Associates) participated in administering a drug claimed by the plaintiff-Consul to have had deleterious effects upon his person. This is evident from the fact that the original defendants had no more information when they filed the petition seeking to join the additional defendants on February 16, 1989, then they did on August 11, 1988. Present counsel for the appellants stated as much when he wrote that this seven-month hiatus (between the filing of the plaintiffs’ answer to Chelsea’s interrogatories on August 11, 1988, and the granting of the petition to extend time on February 16, 1989) so as to obtain answers to the original defendants’ interrogatories to the plaintiffs, provided the original defendants with “no further information” than they possessed months previously. See Appellants’ Brief at 14. Yet, they were reluctant to plead the joinder of Dr. Hodess and M. Price Margolies Associates on August 11, 1988, but they utilized the same quantum of information garnered from the plaintiffs’ answers to Chelsea’s interrogatories of August 11, 1988, to buttress their petition to seek joinder seven months thereafter.

Our review of the record is not supportive of the appellants’ protestation that it presented “good cause” to justify its delay in seeking joinder. To explicate: First, the appellants do not deny having knowledge of Dr. Hodess administering Prednisone to the plaintiff-Consul as early as August 11, 1988; Second, almost four months elapsed between August 11, 1988 and December 5, 1988, the latter date being when counsel, who had represented the appellants, formally severed his employment with the law firm representing the appellants — Malcolm & Riley, P.C., and no discovery action took place during this interim; and Third, it was not until almost two and one-half months had elapsed from the point in time of the appellants’ prior counsel’s withdrawal (November 30, 1988, until February 16, 1989, when petition for extension to join was filed) that present counsel submitted a petition seeking an extension of time to join the additional defendants.

We learn that this second lapse of almost ninety days was attributable to appellants’ present counsel “ha[ving] to find time, amongst the other demands of his ... practice, to review ... [the] file which had been reassigned to him.” See Appellants’ Memorandum in Opposition to- Preliminary Objections of Additional Defendants at page 8. Thus, it was only when present counsel “was able” to find time for this case that he decided to take action to seek joinder. Id. at 9.

We find that present counsel neglects to fill in the void between the time when he was reassigned the appellants’ case in December of 1988 and his presentment of the petition seeking an extension to join additional defendants on February 16, 1989, with reason(s) justifying his conduct. The mere press of a workload does not excuse inaction. Cf. Vorhauer v. Miller, 311 Pa.Super. 395, 457 A.2d 944 (1983) (an attorney being inundated with work is not, in and of itself, a reasonable excuse justifying the opening of a default judgment). Additionally, counsel for the appellants has failed to submit “good cause” for prior counsel’s failure to act to discover what role Dr. Hodess played in the treatment received by the plaintiff-Consul upon learning of the same via Chelsea’s interrogatories, and the answers thereto, of August 11, 1988. See Edmonds v. MBB, Inc., 384 Pa.Super. 584, 559 A.2d 590, 594 (1989); Riccobono, supra; Kovalesky, supra; see also Moore v. Howard P. Foley Co., 235 Pa.Super. 310, 318, 340 A.2d 519, 522 (1975) (inadvertence of counsel is not sufficient justification for delaying in joining an additional defendant).

Albeit we are cognizant that the procedural rules should be construed so as to avoid a multiplicity of suits, the onus is upon the original defendants to justify their delay in joining the proposed additional defendants. Presently, we conclude that the appellants fell short of the mark in failing to satisfy their burden of demonstrating sufficient cause to allow the unseasonable joinder. See Kovalesky, supra. “Although we seek to avoid a multiplicity of suits, the procedural rules have been promulgated for a purpose and should not be ignored. Parties should not be encouraged to disregard time limitations in favor of relying upon the grace of the court.” Id., 345 Pa.Superior Ct. at 108, 497 A.2d at 668. No reasonable excuse has been presented to circumvent the sixty-day time-frame set forth in Pa.R.Civ.P. 2253 to allow the late joinder of additional defendants by the appellants.

Order affirmed.

DEL SOLE, J. files a Dissenting Opinion.

DEL SOLE, Judge,

dissenting.

I must dissent from the Majority’s decision to uphold the trial court’s dismissal of additional defendants in this medical malpractice suit. I believe that in focussing on the reasonableness or justification for the delay in joining the additional defendants, we have lost sight of the general purpose of the rule and the objectives sought to be achieved in allowing unseasonable joinder of additional defendants “upon cause shown.” Pa.R.C.P., No. 2253, 42 Pa.C.S.A.

In Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970), the Supreme Court stated:

The rule does not specify that is sufficient cause for an extension nor does it delineate the factors that the court should take into consideration when deliberating upon such a petition for extension. The court, therefore, should be guided by the objectives sought to be achieved by use of the additional defendant procedure, in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules are an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties [citation omitted], without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.

In other words, the reason for allowing joinder of additional defendants is to expedite the proceedings, and the reason for the 60-day limitation is to protect the original plaintiff from unreasonable and prejudicial delay. For instance, prejudice might arise from this delay if it resulted in postponing trial or requiring repetitious discovery to the plaintiffs’ detriment. Therefore, the decision whether to allow unseasonable joinder should rest on an assessment of the effect joinder will have on the plaintiff’s prosecution of the litigation, and whether joinder will result in the expeditious disposition of the matters in issue. In contrast, the objectives of efficiency and fairness to the plaintiff are not well served by this court’s reliance on a three-part test which focuses on whether the reasons offered for late joinder are reasonable. This test does not protect against abuses of Pennsylvania’s liberal joinder policy. Rather, such protection is best guaranteed by focussing on the party who may be harmed by the late joinder of additional defendants.

The Majority did not determine whether the plaintiffs would be prejudiced by this joinder because they found that the defendants did not have “good cause” for the delay. Appellants assert that the joinder of these additional defendants will not postpone this matter from coming to trial in normal course and this is not disputed. They also assert that the joinder will not require that any discovery held to date be repeated. The proposed additional defendants have been represented at the deposition of the plaintiffs, the only depositions taken to date, and interrogatories and materials produced in requests for production have been provided to counsel.

I believe that the Majority’s reliance on Riccobono v. Keystone Helicopter Corp., 352 Pa.Super. 186, 507 A.2d 834 (1986) is misplaced. There, the appeal was from a denial by the trial court of a request to permit the joinder of additional defendants. In the case before us, the trial court had permitted the joinder. It was only after the additional defendants objected that the trial court dismissed them from the case. The focus of the court in joinder matters must depend on the status of the parties raising the issue. It is appropriate to examine the “cause” question when the objection to joinder is from other parties presently involved in the litigation. The trial court must be satisfied that the attempted joinder will not delay the ultimate resolution of the case. However, once the joinder has been permitted and it is the joined party objecting, the trial court’s only concern should be that the joined party has not been prejudiced by the untimeliness. The cause for the lateness in joining is no longer a factor.

Moreover, it would be a waste of judicial resources to sustain the dismissal of these additional defendants. Although the statute of limitations has run on the plaintiffs’ direct cause of action against them, the original defendants would have a right of contribution or indemnity against the additional defendants. Oviatt v. Automated Entrance System Co., 400 Pa.Super. 493, 583 A.2d 1223 (1990). To permit the enforcement of this right in this litigation would eliminate the need of a second trial on many of the same issues. As was mentioned above, the purpose of Pennsylvania’s third party procedures is to avoid multiplicity of suits by adjudicating in one suit the rights and liabilities of all of the parties in the cause of action. Martinelli v. Mulloy, 223 Pa.Super. 130, 299 A.2d 19, 21 (1972). Joinder should be allowed to expedite the proceedings and conserve judicial resources.

In sum, I would find, consistent with the purposes of the Rule providing for late joinder of third parties, that the additional defendants, Dr. Hodess and Associates, should be joined in this proceeding.

      . This order is final. Cf. Chiricos v. Forest Lake Council, Boy Scouts of America, 391 Pa.Super. 491, 505-07, 571 A.2d 474, 480 (1990).

        . We would mention that the appellants also complain that failure to allow it to join Dr. Hodess and M. Price Margolies Associates will necessitate the filing of a separate complaint against the additional defendants for contribution or indemnity. Thus, delaying the appellants’ ability to join the additional defendants is prejudicial to them. "This claim is plainly not ripe for review as there is no order before this Court which has attempted to construe the order on appeal in the manner which appellants] suggest! 1 — Only on appeal from such an order would we be properly called upon to reach that issue." Glabbatz v. Terminal Freight Handling, 386 Pa.Super. 447, 563 A.2d 151, 153 (1989).


author: CIRILLO, President Judge: McEWEN, Judge,

text:
    589 A.2d 252
    Phyllis DOROHOVICH, Appellant, v. WEST AMERICAN INSURANCE COMPANY, also known as West American Insurance Company of the Ohio Casualty Group of Insurance Companies, a Corporation; and the Ohio Casualty Group, also known as the Ohio Casualty Group of Insurance Companies, also known as the Ohio Casualty Insurance Company, a Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1990.
    Filed April 3, 1991.

      John N. Scales, Greensburg, for appellant.
    Stephen P. McCloskey, Washington, for appellees.
    Before CIRILLO, President Judge, and McEWEN and MONTGOMERY, JJ.
   CIRILLO, President Judge:

Phyllis Borohovieh appeals from an order entered on March 26, 1990 in the Westmoreland County Court of Common Pleas granting West American Insurance Company’s (“West American”) motion for summary judgment We quash.

On August 31, 1985, Ms. Borohovieh went to Wilson’s Service Station to obtain unleaded gasoline for her 1978 Jeep and to fill two gasoline cans with leaded gasoline to be used in her lawn mower. Upon arriving at Wilson’s, Ms. Borohovieh parked her vehicle in front of a gasoline pump which dispensed leaded gasoline. Ms. Borohovieh then exited her vehicle, and proceeded to the rear of the jeep to remove the two gasoline cans which remained inside the jeep. While Ms. Borohovieh was in the process of removing two gasoline cans from inside her vehicle, she was allegedly injured when gasoline was sprayed on her by Scott Kasparek, an employee of Wilson’s Service Station. Ms. Borohovich was removing the gasoline cans so that they could be filled with leaded gasoline to be used in her lawn mower; her motor vehicle used only unleaded gasoline. At the time of this incident, Ms. Borohovieh was insured under an automobile insurance policy issued by West American pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVPKL”). See 75 Pa.C.S. § 1701 et seq. Ms. Borohovieh filed a multi-count complaint seeking to recover, under the same policy, uninsured or underinsured motorist benefits, and first party benefits. The claim for uninsured or underinsured motorist benefits has been submitted to arbitration. West American’s motion for summary judgment on the claim for first party benefits was granted and this timely appeal followed.

Initially, in light of the procedural posture of this appeal, we must determine whether the trial court’s decision to grant West American’s motion for summary judgment on Ms. Dorohovich’s claim for first party benefits is a final order for purposes of appeal even though her claim for uninsured or underinsured motorist benefits has been submitted to arbitration.

It is fundamental,
that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which ends the litigation or, alternatively, disposes of the entire case____Conversely, an order is interlocutory and not final unless it effectively puts the litigant out of court____
In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications____ The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.

Praisner v. Stockner, 313 Pa.Super. 332, 336-37, 459 A.2d 1255, 1258 (1983) (citations and quotations omitted). Generally, because our courts frown upon piecemeal litigation, “an order dismissing some but not all counts of a multicount complaint is interlocutory and not appealable.” Id. However, where separate and distinct causes of action have been joined in one complaint, a judgment entered on one or more of those causes of action is final and appealable because it terminates the litigation upon a separate cause of action and puts the litigant “out of court” on that cause of action. Id., 313 Pa.Superior Ct. at 341-42, 459 A.2d at 1260. See Hineline v. Stroudsburg Electronic Supply, 384 Pa.Super. 537, 559 A.2d 566 (1989) (order dismissing counts of wrongful discharge and intentional interference with contractual relations was final, where claim for breach of fiduciary duty remained). On the other hand, an order dismissing one or more counts of a multi-count complaint which merely sets forth alternate theories of recovery is interlocutory and not appealable because the plaintiff can still proceed to a determination on an alternate theory. Id. 313 Pa.Super. at 341, 459 A.2d at 1260. Consequently, the plaintiff is not out of court. See Danko Development Corporation v. Econocast Corporation, 369 Pa.Super. 120, 534 A.2d 1108 (1987) (an order dismissing claim based on implied warranty of habitability was not final where claims of negligence, breach of contract, and misrepresentation remained).

We must therefore determine whether an order dismissing a claim for first party benefits is a separate and distinct cause of action or whether it is merely an alternate theory of recovery to the claim for uninsured or underinsured motorist benefits which is currently in arbitration. A cause of action has been defined as: “The fact or facts which give a person a right to judicial relief. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle a party to sustain and give him [or her] the right to seek judicial remedy in his [or her] behalf.” Black’s Law Dictionary 201 (5th ed. 1979).

An order is final if it puts the aggrieved party out of court “on all theories of recovery asserted against a given defendant for a given loss.” Sweeny v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). Alternate theories of recovery are different means to recover the same damages or relief for a single harm. Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990) (en banc). Separate causes of action seek different relief for different harms. Id. As such, if a litigant seeks recovery under alternate theories for a given loss, an order dismissing one of those theories is not appealable. Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (en banc); Danko, supra. If a litigant, however, requests different relief for different harms, an order disposing of one of those requests is an appealable order. Motheral, supra. See also Praisner, 313 Pa.Super. at 341, 459 A.2d at 1260 (“the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum meruit remains undecided”).

Based upon the foregoing discussion, we will focus upon the loss or losses for which Ms. Dorohovich sought recovery in her multi-count complaint. Motheral, supra. West American, pursuant to the instant policy, has promised to pay benefits to Ms. Dorohovich if she sustained injuries arising out of the maintenance or use of a motor vehicle. Ms. Dorohovich has allegedly suffered injuries and West American, pursuant to the contract of insurance, has refused to pay her any benefits. Consequently, Ms. Dorohovich has essentially filed a breach of contract claim against West American to recover benefits allegedly due her under the instant contract of insurance.

In Ms. Dorohovich’s claim for uninsured or underinsured motorist benefits she requests $20,000.00 plus costs for losses and damages uncompensated by other insurance. In her claim for first party benefits, Ms. Dorohovich seeks $20,000.00 plus costs for medical expenses, loss of earnings, and impairment of earning capacity. The breach of contract claim for uninsured or underinsured benefits does not specify what damages and losses amount to $20,000.00. However, the gas station employee’s conduct which allegedly resulted in Ms. Dorohovieh’s injuries gives rise to her contractual claim for both first party benefits and for uninsured or underinsured benefits. Moreover, since we find that the losses pled specifically in the claim for first party benefits are the same losses pled generally in the claim for uninsured or underinsured benefits, Ms. Dorohovich can be compensated for those losses through her claim for uninsured or underinsured benefits which has been submitted to arbitration. Therefore, Ms. Dorohovich is seeking recovery for a single harm under alternate theories; she is not seeking different relief for different harms.

In sum, because both of Ms. Dorohovich’s claims seek recovery for a single loss and arise under one insurance policy, the two claims are merely alternate theories of recovery on the contract of insurance. As such, Ms. Dorohovich is not out of court on all theories of recovery and the order granting West American’s motion for summary judgment on the claim for first party benefits is interlocutory and must be quashed. Motheral, supra; Garofolo, supra; Praisner, supra.

However, even if the instant order were appeal-able, our review of the merits of the case would lead us to conclude that Ms. Dorohovich is not entitled to recover first party benefits under the instant policy, and that West American’s motion for summary judgment was properly granted. Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1085(b), which provides in pertinent part:

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

Pa.R.C.P. 1035(b). Summary judgment is only appropriate where viewing all the facts in the light most favorable to the nonmoving party and resolving all doubts as to the existence of issues of material fact against the moving party, the moving party is entitled to judgment as a matter of law. Vaskie v. West American Insurance Company, 383 Pa.Super. 76, 79, 556 A.2d 436, 438 (1989). Further, "the trial court must accept as true all well pleaded facts in the non-moving party’s pleadings, as well as any admissions on file, giving the non-moving party the benefit of all reasonable inferences which may be drawn therefrom,” Thompson v. Nason Hospital, 370 Pa.Super. 115, 117, 535 A.2d 1177, 1178, alloc. granted, 518 Pa. 642, 542 A.2d 1371 (1988). Because of the consequences that flow from summary judgment, it should be granted “only in the clearest of cases.” Jefferis v. Commonwealth, 371 Pa.Super. 12, 15, 537 A.2d 355, 356 (1988).

The relevant portion of Ms. Dorohovich’s insurance policy provides as follows:

We will pay Basic First Party Benefits to or for a covered person who sustains bodily injury caused by an accident arising out of the maintenance or use of a motor vehicle.

(emphasis added). When interpreting the provisions of an insurance policy we are guided by the following:

The interpretation of an insurance policy is a question of law that is properly reviewable by the court____ In construing the policy we are mindful that “[pjolicy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to the insured____ The insured’s reasonable expectations are the focal point in reading the contract language.” ... Our object, as is true in interpreting any contract,
is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument____ Where a provision of a policy is ambiguous, the policy is to be construed in favor of the insured and against the insurer, the drafter of the agreement____ Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.

Geisler v. Motorists Mutual Insurance Co., 382 Pa.Super. 622, 626-27, 556 A.2d 391, 393-394 (1989) (citations omitted); see also Smith v. United Services Automobile Association, 392 Pa.Super. 248, 572 A.2d 785 (1990). Ms. Dorohovich contends that there is a genuine issue of material fact as to whether she is entitled to first party benefits pursuant to the instant insurance policy. Specifically, relying upon Ei chelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981), Ms. Dorohovich maintains that because she was sprayed with gasoline while retrieving gasoline cans from her vehicle, her injuries arose out of the maintenance and use of an automobile. We disagree and would find that there is no genuine issue of material fact and that West American is entitled to summary judgment as a matter of law.

The purpose underlying the MVFRL “is to provide broad coverage to assure the financial integrity of the policyholder, and ... [it] is to be liberally construed to effectuate that purpose.” Callahan v. Federal Kemper Insurance Co., 390 Pa.Super. 201, 207, 568 A.2d 264, 267 (1989). To effectuate this purpose, courts have declined to impose external restrictions upon the rights of claimants. Id. Nonetheless, an automobile insurance policy is not designed to provide general liability coverage.

With the above principles in mind, we must determine whether Ms. Dorohovich’s injuries “arose out of the maintenance or use of a motor vehicle.” The phrase “arising out of the maintenance and use of a motor vehicle” is not defined in the MVFRL. This court, however, has previously looked to the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act (“No-Fault Act”), 40 P.S. § 1009.101 et seq., for assistance in interpreting the MVFRL. Huber v. Erie Insurance Exchange, 402 Pa.Super. 443, 587 A.2d 333 (1991); Omodio v. Aetna Life and Casualty, 384 Pa.Super. 544, 559 A.2d 570 (1989). As such, we have interpreted the phrase “maintenance or use of a motor vehicle” to mean the maintenance or use of it as a vehicle, including “occupying, entering into, or alighting from it.” Smith, 392 Pa.Super. at 252, 572 A.2d at 787 (quoting Camacho v. Nationwide Insurance Co., 314 Pa.Super. 21, 23, 460 A.2d 353, 354 (1983)). See 40 P.S. § 1009.103.

More importantly, we have required that there be a causal connection between the injuries and the maintenance or use of the motor vehicle. Id.; Alvarino v. Allstate Insurance Co., 370 Pa.Super. 563, 537 A.2d 18 (1988). “While the causal connection need not rise to the level of proximate causation, for purposes of coverage ... there must be some connection, more than mere chance or happenstance between the injuries sustained and the insured vehicle.” McKelvey v. Prudential Property, 392 Pa.Super. 216, 221, 572 A.2d 769, 771 (1990) (quoting Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 303, 452 A.2d 735, 737 (1982)); see also Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 607, 170 A.2d 571, 573 (1961) (“ ‘arising out of’ means causally connected with, not proximately caused by”). In discussing the requisite level of causation, we have stated that

although the insurance contract does not require the injury to be the proximate result [of the maintenance or use of a motor vehicle] in the strict legal sense of the term, it does not extend to something distinctly remote, although within the line of causation. The claim of responsibility has to be deemed to possess the requisite articulation with the use or operation of the vehicle until broken by the intervention of some event which has no direct or substantial relation to the use or operation [of the motor vehicle.]

McKelvey, 392 Pa.Super. at 221-22, 572 A.2d at 771. Accordingly, in determining whether the injury arose out of the maintenance or use of the motor vehicle, we must look to the “instrumentality used to cause the injury.” Smith, 392 Pa.Super. at 252, 572 A.2d at 786 (quoting Spisak v. Nationwide Mutual Insurance Co., 329 Pa.Super. 483, 387, 478 A.2d 891, 893 (1984) (emphasis original)).

In Eichelberger, the claimant, Bava Rice, had run out of fuel on a highway and was being assisted in refueling her vehicle by Harry Eichelberger. Eichelberger, 290 Pa.Super. at 274, 434 A.2d at 750. While Mr. Eichelberger was refueling her vehicle, Ms. Rice stepped in front of an oncoming car and was injured. Id. This court found that Ms. Rice’s negligent act of stepping into the path of an oncoming ear was causally connected with the ownership, maintenance or use of her vehicle. Id. Without passing upon the propriety of Eichelberger, we find that it is distinguishable from the instant case.

The claimant in Eichelberger had been stranded on the side of a highway because her vehicle had run out of fuel. Consequently, there was a causal connection, arguably attenuated, between the automobile and her injury. Here, it is undisputed that Ms. Dorohovich’s vehicle uses only unleaded gasoline and that although she had stopped at the gas station to obtain gasoline for her vehicle and for her lawn mower, when she was sprayed with gasoline her auto was parked in front of the gasoline pump which dispensed only leaded gasoline. Moreover, Ms. Borohovieh was sprayed with leaded gasoline by the gas station attendant who had retrieved the leaded gasoline pump to fill Ms. Dorohovich’s gasoline cans. As stated earlier, the leaded gasoline was to be used not in her motor vehicle, but in her lawn mower. Consequently, Ms. Dorohovich’s injuries, at best, arose out of the maintenance and use of her lawn mower, not her motor vehicle.

Additionally, when Ms. Borohovieh was sprayed with the gasoline she was standing outside the rear of her vehicle and was attempting to retrieve the gasoline cans by reaching hito the vehicle. This court has, on many occasions, been asked to determine whether an insured’s injuries, sustained while loading or unloading a motor vehicle, arose out of the maintenance or use of a motor vehicle. See Huber, supra; Omodio, supra; Callahan, supra; Martin v. Recker, 380 Pa.Super. 527, 552 A.2d 668 (1988); Dull v. Employers Mutual Casualty Co., 278 Pa.Super. 569, 420 A.2d 688 (1980). In Huber, the appellant was injured while he was loading materials onto his vehicle. Huber, 402 Pa.Super. at 443, 587 A.2d at 333. The insurer, relying upon a clause which excluded first party benefits when the insured sustains injuries while loading or unloading a motor vehicle, except while occupying the vehicle, denied Huber’s claim. Id. This court, finding the insurer’s exclusion valid, held that the appellant’s injuries, incurred while loading materials onto the vehicle while not occupying the vehicle, did not arise out of the maintenance or use of the motor vehicle. Id., 402 Pa.Superior Ct. at -, 587 A.2d at 335. Cf. Omodio, supra (exclusion denying coverage for all injuries sustained while loading or unloading a motor vehicle, regardless of whether the injuries arose out of the maintenance or use of the motor vehicle, held invalid); Callahan, supra (same); see also Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984) (setting forth criteria for what constitutes occupying a motor vehicle).

Here, unlike Huber, there is no specific exclusion which prevents recovery for injuries sustained while loading or unloading a motor vehicle, except while occupying the vehicle. It is clear, however, that Ms. Dorohovich was outside her vehicle attempting to unload the gasoline cans when she was sprayed with gasoline and therefore her injury did not arise out of the maintenance or use of her motor vehicle. See Huber, supra; Dull, supra (injuries, incurred while insured was unloading a boat from the roof of his vehicle, did not arise out of maintenance or use of motor vehicle).

Further, the insureds in Callahan and Omodio were injured as a result of unloading their respective motor vehicles. See Callahan, supra (insured injured while lifting bathtub inside the trailer); Omodio, supra (insured sustained injury to his lower back while standing inside and loading his truck). Here, Ms. Dorohovich’s injuries did not result directly from the act of unloading gasoline cans from her motor vehicle, but rather the act of a third party — the gas station attendant. As such, Ms. Dorohovich’s injuries were caused by a source which was external to the vehicle, not the vehicle itself. See Smith, supra; Alvarino, supra; Schweitzer, supra. Therefore, were we to address the instant issue, we would conclude that the requisite causal connection between the maintenance or use of the motor vehicle and Ms. Dorohovich’s injuries was not present, and we would affirm the trial court’s order granting West American’s motion for summary judgment.

Appeal quashed.

McEWEN, J., files a concurring and dissenting opinion.

McEWEN, Judge,

concurring and dissenting:

The majority opinion understandably concludes that the order which granted the motion of West American for summary judgment on the claim of appellant for first party benefits is interlocutory because appellant is still able to pursue before arbitrators an alternate claim for uninsured or underinsured benefits, thereby requiring that the appeal be quashed. The majority does not, however, simply quash the appeal but proceeds instead to a learned discussion of what will, for the arbitrators, be an issue of fundamental focus, namely, did the injuries of appellant arise “out of the maintenance or use of a motor vehicle”. As many advocates will characterize that further discussion by the majority as commendable, as will label it needless dicta. Those advocates would all agree, however, that once the issue becomes a matter of discussion, expression of a contrary view becomes a matter of obligation. Thus it is that I state that, in my opinion and contrary to the expression of the majority, the injuries of appellant did arise from “maintenance or use of a motor vehicle”.

West American states repeatedly in its preliminary objections, its memorandum in support of the preliminary objections, and its brief to this court that appellant suffered the injuries while “she was attempting to remove a gasoline can from the rear of her automobile”. Therefore, West American, in my view, acknowledges — admits if you will — that appellant was “unloading” the vehicle. The carefully crafted opinion of President Judge James E. Rowley in Omodio v. Aetna Life & Casualty, 384 Pa.Super. 544, 559 A.2d 570 (1989), leaves no doubt that “loading and unloading” is within the certain embrace of the MVFRL phrase “maintenance and use” of a vehicle. See also: Callahan v. Federal Kemper Insurance Company, 390 Pa.Super. 201, 568 A.2d 264 (1989). Thus, I would hold, were the question before us, that since appellant was unloading the vehicle she is eligible for recovery under the MVFRL.

      . Uninsured ¡¡motorist eo^^rage — Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles.
      75 Pa.C.S. § 1731(b).

      . Underinsured motorist coverage — Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.
      75 Pa.C.S. § 1731(c).

      . First party benefits are "[mjedical benefits, income loss benefits, accidental death benefits and funeral benefits.” 75 Pa.C.S. § 1702.

      . Ms. Dorohovich has also filed suit against Michael Wilson, the owner of Wilson’s Service Station, Mobil Corporation, and Scott Kasparek.

      . Section 1009.103 provided in pertinent part:

        “Maintenance or use of a motor vehicle ” means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include: ******
      ■ (B) conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.
      40 P.S. § 1009.103 (repealed) (emphasis original).

      . We note that the instant insurance policy contains an exclusion which provides:
      We do not provide benefits for bodily injury:
      ******
      7. sustained by any person injured as a result of conduct within the course of the business of repairing, servicing or otherwise maintaining a motor vehicle. This exclusion does not apply if the conduct is off the business premises.
      Although Ms. Dorohovich claims that this exclusion is void as against policy, since we would find that her injuries did not arise out of the maintenance or use of a motor vehicle, we decline to discuss the validity of this exclusion.

      . In Judge McEwen’s Concurring and Dissenting Opinion, he, relying upon Omodio, concludes that " ‘loading or unloading’ a vehicle is within the certain embrace of the MVFRL phrase ‘maintenance and use’ of a vehicle.” The appellant in Omodio “sustained an injury to his lower back while standing inside and loading his truck.” Omodio, 384 Pa.Super. at 546, 559 A.2d at 571 (emphasis added). We, like the court in Huber, find that Omodio stands for the proposition that an exclusion which prevents recovery for all injuries incurred while loading or unloading a motor vehicle, whether or not those injuries arose out of the maintenance of a motor vehicle, is invalid. Huber, 402 Pa.Super. at 449, 587 A.2d at 335. Omodio does not stand for the proposition that all injuries incurred while loading or unloading a motor vehicle arise out of the maintenance or use of a motor vehicle. See id.; Callahan, 390 Pa.Super. at 208, 568 A.2d at 267, ("the Omodio court found that occupying and unloading a motor vehicle fits within tho meaning of 'maintenance and use’ as specified in § 1712 of the MVFRL;"); Omodio, 384 Pa.Super. at 549, 559 A.2d at 573 (“Whether ... all persons injured in the course of loading or unloading a motor vehicle — those who were not occupying, entering into, or alighting from the vehicle, as well as those who were — are entitled to coverage under the [MVFRL], is an issue that we are not called upon to resolve • • •”)

      . Although unnecessary to the disposition of the instant issue, even if Ms. Dorohovich had been attempting to fill her car with unleaded gasoline, since the cause of the injury was external to the vehicle itself, we would be similarly inclined to deny coverage.

      . The phrase “maintenance or use of a motor vehicle” is a condition precedent for the recovery of first party benefits (75 Pa.C.S. § 1713(a)) which are the subject of this appeal, as well as of the uninsured motorist coverage (75 Pa.C.S. § 1731(b)) and underinsured motorist coverage (75 Pa.C.S. § 1731(c)) claims which are the subject of arbitration.


author: DEL SOLE, Judge:

text:
    589 A.2d 260
    Bessie P. CLEMONS, Appellant, v. Michael A. TRANOVICH, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1991.
    Filed April 9, 1991.

      Jay H. Feldstein, Pittsburgh, for appellant.
    Patrick J. Shannon, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from a Judgment entered in a medical malpractice case in which the jury found in favor of the defendant, doctor. Appellant, plaintiff in the underlying action, contends that the court erred in granting the defendant’s motion for compulsory non-suit on the issue of informed consent and in refusing to allow her to establish her negligence claim based upon the theory of res ipsa loquitur. Finding merit to both of these contentions raised by Appellant, we vacate the Judgment and remand this matter for a new trial.

Following surgery, known as a total right hip arthroplasty, Appellant’s right foot became, as stated by the trial court, “essentially non-functional.” She maintained at trial that her injuries were caused by damage to or severance of her sciatic nerve during surgery. Appellee, Dr. Tranovich countered by presenting evidence that Appellant’s disability may have been related to a pre-existing disease of lupus from which she suffered, a seizure she had shortly after the surgery while she was in traction in recovery, or some other unknown and unpreventable cause. As a separate basis for recovery, Appellant also sought to establish that she was not informed of the risks of the surgery which she underwent. We will begin by first considering Appellant’s allegations of error with regard to the trial court’s decision to enter a non-suit on the issue of informed consent.

At trial Appellant admitted to signing a consent form but stated .that the form gave her no indication that she was at any greater risk because of her lupus or that the surgery might result in the disabling condition from which she now suffers. She also testified that neither Dr. Tranovich nor any one else spoke to her to inform her of these risks. Appellant’s counsel also called Dr. Tranovich to the stand. He testified as follows:

Q. Was she at risk, Doctor, for her foot going dead?
A. Certainly.
Q. And did you tell her that?
A. Not specifically foot.
Q. What did you tell her could go dead?
A. Well, the usual instructions or, if you will, say the pre-op instructions involve that any surgery is not 100 percent. There are certain risks.
The major risk in total hip arthroplasty, one, that it doesn't work, it loosened or falls apart; two, the second greater risk, it gets infected, and there is quote neurovascular damage or injury and that would be a kind of ballpark type of instruction when it’s specifically addressed, one nerve or one artery, but is a general risk factor.
Q. That’s a risk factor that applies in all total hip operations?
A. Yes.
Q. Was that risk any greater because she had lupus?
A. Yes, I would think so.
Q. Did you tell her the risk would be greater because she had lupus?
A. I didn’t feel the risk was greater than that would need addressed ....

N.T. 1/23/90 at 18-19.

In reference to this testimony the trial court remarked “that it is clear that the defendant is saying that he did not believe that the increased risk due to lupus is something which proper medical practice requires informing a patient.” Based upon this evidence the trial court concluded that Appellant had not established a cause of action for informed consent. However in reaching this conclusion the court looked to an incorrect rule of law. The trial court stated “the law on the subject as we understand it is that an expert must not only name the risk but also, and most importantly, must give his opinion that proper medical practice requires that the plaintiff be told about it.” Absent such expert testimony and faced instead with testimony that the treating physician did not feel the risk was great enough to address, the court concluded that Appellant had not established a case on the issue of informed consent. Such is not the standard.

In Pennsylvania an expert opinion is not needed to demonstrate that the risk involved is of such a nature that it must be disclosed to a patient. In fact expert opinion concerning the standard of disclosure in the medical community is inadmissible. Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165, 167-168 (1987). Instead, a prudent patient standard has been created. In speaking of this standard the Sagala court stated:

Therefore, in determining whether a physician breached his duty to his patient, “the standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.” Festa, supra, [Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986)] at 511 A.2d at 1375. Materiality is established by a two step process. First the trier of fact must be supplied with expert information as to the nature of the harm and the probability of it occurring. However, it is the trier of fact, not the expert, who must decide the materiality of the risk involved and whether the probability of that type of harm is a risk which a reasonable patient would consider in rendering a decision on medical treatment. Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606, 608 (1987).
Id., 367 Pa.Superior Ct. at 578, 533 A.2d at 167.

As noted by the court in Sagala, to offer evidence of professional standards for disclosure would incorrectly invite “the jury to consider whether the physician acted in conformance with the customary practices of other physicians.” Id. Because the trial court incorrectly focused on the expert opinion on the need for disclosure instead of the reasonable patient approach, and because Appellant offered evidence that she was not informed of the medically recognized risks of her surgery, including that which occurred, a jury question existed on the issue of lack of informed consent.

We reach this decision in spite of Dr. Tranovich’s protests to the contrary based upon his assertion that Appellant only offered evidence of the risks involved in the procedure and neglected to offer evidence of alternative treatment other than surgery which was available to Appellant. In Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987) alloc. denied, 518 Pa. 619, 541 A.2d 746 (1988), this court determined that it was not necessary in every case for the plaintiff to establish the risks attendant to the surgery and the alternatives and their particular risks. This position was reaffirmed by this court en banc recently in Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991). In the instant case Appellant offered expert testimony on the medically recognized risks of this particular surgery and her own testimony that she was not informed of these risks. This proof alone was sufficient to allow the jury to consider whether the type of identified harm, if it occurred, was a risk which a reasonable person in the position of this patient would consider in rendering a decision to undergo the medical procedure.

We turn next to Appellant’s claim that the court erred in refusing to allow her to establish her claim of negligence based upon the doctrine of res ipsa loquitur. She specifically argues that she should have been permitted to ask her expert whether the injuries she sustained ordinarily occur in the absence of negligence and that she should have been permitted to have the jury instructed regarding res ipsa loquitur.

Appellant’s expert opined that her sciatic nerve at the area of the hip had been functionally cut. In response to this testimony Appellant’s counsel posed the following question to the expert: “Dr. Goodman, does this event ordinarily occur in the absence of ne[gligence]?” N.T. 1/23--29/90 at 115. An objection was raised to the question as it being beyond the scope of the expert’s report and this objection was sustained.

Dr. Goodman in the relevant portion of his report stated: In order for total nerve damage to have occurred, the nerve must have either been cut at the time of surgery or ligated, as simply compression or hematoma of the nerve would not have resulted in total paralysis.
Since I do not believe it is possible for the surgeon to have ligated the nerve during the operation, the only alternative explanation would be that the nerve was inadvertently cut. To cut a nerve during this procedure is evidence of substandard care.

Dr. Goodman’s report gives the same response sought by Appellant’s counsel at trial. To state that the cutting of the nerve is evidence of “substandard care” is, in effect, stating that this event would not occur in the absence of negligence. The discrepancy between the expert report and the information sought by counsel at trial was not of such a nature which would prevent or mislead the defendant so that he would be unable to prepare an appropriate response. Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, 502 A.2d 210 (1985). In sum, the trial testimony sought of the expert was within the fair scope of his report. Id.

Appellant sought to elicit this testimony from Dr. Goodman to present her claim based upon res ipsa loquitur. In response to Appellant’s post-trial motions on this issue the trial court issued an opinion in which it makes clear that it does not deem it appropriate to apply this doctrine to medical malpractice cases. In the words of the trial court to do so “would be a perfect example of carrying a good thing too far.” However, Appellant is correct in asserting that res ipsa loquitur is applicable in a medical malpractice action. Jones v. Harrisburg Polyclinic Hospital, et al., 496 Pa. 465, 437 A.2d 1134 (1981).

The doctrine of res ipsa loquitur is an expression for a rule of evidence which will allow a jury to infer the existence of negligence and causation where the injury does not ordinarily occur in the absence of negligence. Sedlitsky v. Pareso, 400 Pa.Super. 1, 582 A.2d 1314 (1990). Thus, Appellant’s request to question her expert as to whether her injuries would occur in the absence of negligence, was critical to establish her case. The court’s failure to allow such evidence was in error and a new trial is the appropriate remedy. The fact that defense experts offered contrary evidence does not require a different result. “Where the plaintiff sustains his or her burden, the court must give an instruction on res ipsa loquitur, even if the defendant has produced a quantity of contrary evidence.” Id., 400 Pa.Superior Ct. at 5, 582 A.2d at 1316. In the instant case, on remand, Appellant can seek to satisfy the requirements of the Restatement (Second) of Torts § 328 D and meet her burden of proof which is more clearly set forth in the Restatement (Second) of Torts, Comment e, Clause (a) Subsection (1). Id.

Judgment vacated. Case remanded for new trial. Jurisdiction relinquished.

      . Although Appellant raises as a third issue the propriety of the court’s limitation on her cross-examination of an expert witness, in view of our decision to award a new trial, we decline to reach the merits of this claim.


author: PER CURIAM:

text:
    589 A.2d 264
    COMMONWEALTH of Pennsylvania, Appellee, v. William HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1991.
    Filed March 22, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

Appellant, William Harris, pleaded guilty to attempted burglary, criminal conspiracy and receiving stolen property. The Honorable Robert Kelly imposed a sentence totalling IIV2 to 23 months imprisonment followed by 2 years probation. No posttrial motions were filed. Timely notice of appeal was filed. We vacate judgment of sentence and remand for an evidentiary hearing.

Appellant first alleges trial counsel’s ineffectiveness for failing to challenge the defective guilty plea. Appellant bears the burden of demonstrating ineffectiveness of counsel. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). He must establish that the claim has arguable merit, that trial counsel had no reasonable basis for failing to raise the issue, and that he was prejudiced thereby. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Moreover, the withdrawal of a guilty plea after sentence is imposed requires that appellant establish prejudice that results in a manifest injustice. Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988) (alloc. den. in 521 Pa. 620, 557 A.2d 723). Proving manifest injustice requires that appellant show his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989). This heightened burden is necessary to prevent the use of guilty pleas as a sentence-testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

Appellant alleges trial counsel’s ineffectiveness for failing to object to and preserve several issues related to the guilty plea colloquy, specifically: 1) the trial court’s failure to explain the nature of the charges; 2) the trial court’s failure to set forth the possible range of sentences; and 3) the Commonwealth’s failure to present a factual basis for the criminal conspiracy charge.

A voluntary and understanding plea requires that the defendant understand, at a minimum, the following factors: 1) the nature of the charges; 2) the factual basis for the plea; 3) that he has the right to trial by jury; 4) that he is presumed innocent until found guilty; 5) the permissible range of sentences and/or fines for the offenses charged; and 6) that the judge is not bound by any plea agreement unless the judge accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). The questioning confirming that a defendant is aware of these factors may be conducted by the judge, the attorney for either party or by written colloquy. However, if a written colloquy is used it must be completed and signed by the defendant, and made part of the record. The written colloquy must also be supplemented by some oral examination. Pa.R.Crim.P. 319.

Appellant contends that he was not aware of the nature of the charges. To be aware of the nature of the charge “the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms.” Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978) (quoting Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974)). The oral plea colloquy on record provides no information as to the nature of the charges in question. During the guilty plea hearing appellant was informed that two charges were being dismissed. He was questioned as to whether he completed and could understand the written guilty plea colloquy. Finally, the Commonwealth summarized the facts and discussed issues relating to sentencing. During the oral plea colloquy, neither the court nor counsel explained the nature or elements of the crimes charged.

The Commonwealth argues that the written colloquy is sufficient to comply with Pa.R.Crim.P. 319. We find this argument unpersuasive. In the written colloquy appellant is not appraised of the nature of the crime with which he is charged. Moreover, no question asks whether trial counsel explained the nature of the crime to appellant. The written colloquy is a general form obviously intended for use in most, if not all, guilty pleas. This form does not discuss or explain those factors which are defendant specific, e.g., the nature and/or elements of the specific crimes charged.

As noted, Pa.R.Crim.P. 319 requires that this information appear on the record. Whether a defendant is aware that he has the right to trial by jury, that he is presumed innocent until found guilty and that the judge is not bound by terms of any plea agreement are factors specifically addressed by questions in the written plea colloquy. Any questions concerning these factors may be addressed should a defendant so request. Those factors not appearing on the written colloquy must be addressed during the oral colloquy. The failure to address any of the factors will require that the defendant be permitted to withdraw his or her guilty plea. See Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987).

In Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978), the trial court had asked, on the record, if the defendant understood what the sentences could be. The defendant answered yes. The Commonwealth argued that this was sufficient to demonstrate the defendant’s awareness of the permissible range of sentences. The Pennsylvania Supreme Court concluded that the “blatant inadequacy of this inquiry is so obvious that its failings need not be expounded upon.” Id. Instantly, evidence of appellant’s awareness of the nature of the crime is not merely inadequate, but nonexistent.

The Commonwealth cites Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987) in support of their position. In Moore, the appellant claimed that his guilty plea colloquy was defective in that he was not informed of the possible sentences and the trial court did not establish his understanding of the charges against him. The issue addressed in Moore was not that the appellant “did not understand the nature of the charges, but rather, that the court failed ‘to make inquiry of the defendant that the plea is ... understandingly entered.’ ” Id, On this issue the court determined that the trial court did make sufficient inquiry into whether defendant understood. Furthermore, the issue of range of sentences was explicitly addressed in the written plea colloquy. Moore is distinguishable from the present case where the record is devoid of evidence that appellant understood the nature of the charges.

Appellant’s claim is of sufficient merit to permit withdrawal of his guilty plea and a trial. Prejudice is clearly indicated because appellant was not permitted to withdraw his plea notwithstanding his lack of understanding. However, although unlikely, we must consider the possibility that trial counsel had a reasonable basis for following this course of action. Commonwealth v. Glaze, supra. Accordingly, we remand for an evidentiary hearing on the reasonableness of trial counsel’s actions. We also order appointment of new counsel not associated with the Public Defender’s Office. See Commonwealth v. Willis, 492 Pa. 310, 424 A.2d 876 (1981). Judgment of sentence is vacated and the case remanded for a hearing consistent with this opinion.

Judgment of sentence vacated and case remanded. Jurisdiction relinquished.

      . We do not suggest that such a question would suffice, but that the nature of the crimes is not even raised in the written colloquy as is range of possible sentences.

      . See written plea colloquy, questions 5, 13 and 25 respectively.

      . Because we are vacating judgment of sentence there is no need to consider appellant’s sentencing issues at this time.


text:
    589 A.2d 266
    Robert K. BALLARD and Patricia A. Ballard, h/w, Carl Bergen and Barbra A. Bergen, his wife, Mabel Bergen, Anthony B. Bomba, Michael D. Breslin and Kathleen Breslin, his wife, Gary W. Brothers and Martha H. Brothers, his wife, John Cardello and Jo Ann Cardello, his wife, Frederic Carhart and Michelle Carhart, his wife, Howard J. Carlson and Doris R. Carlson, his wife, Bruno Carti and Vivian Carti, his wife, Andrew P. Damiter and Anita L. Damiter, his wife, Paul Graziano and Antoinette Graziano, his wife, Ronald J. Hughes and Cynthia L. Hughes, his wife, Otto A. Mills, III, and Royale A. Mills, his wife, Albert Natale and Flora Natale, his wife, Carmen N. Pagano and Alice Pagano, his wife, Robert Rubino and Gloria Rubino, his wife, individually, and as Members of Sunnybrook Propertyowners Preservation Association, an Unincorporated Association, Appellants, v. David HEPPE and Vickie Heppe, his wife, and Marcella B. Souls.
    Superior Court of Pennsylvania.
    Argued March 12, 1991.
    Filed April 17, 1991.

      Steven E. Krawitz, East Stroudsburg, for appellants.
    Joseph P. McDonald, Jr., Allentown, for appellees.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   OPINION

PER CURIAM:

Appellants, who are owners of property in the Sunny-brook subdivision in Chestnuthill Township and members of an unincorporated association, appeal the August 10, 1990 order of the Monroe County Court of Common Pleas which denied their request for an injunction. They seek to prevent appellees, David and Vickie Heppe and Marcella Souls, from subdividing their property and building homes on the newly-created lots. Appellee property owners obtained approval for their subdivisions from the Chestnuthill Township Board of Supervisors on the recommendation of the Township Planning Commission. Thereafter, David and Vickie Heppe began laying the foundation for a new house on the subdivided portion of their property. Appellants then petitioned for injunctive relief. After hearing testimony and considering briefs on the matter, the court denied the requested relief. Subsequently, the trial court entered an order certifying the case for immediate appeal. We reverse.

The record reveals the following. A recorded plan of the subdivision was filed on September 12, 1972, and included the following covenants:

Use of the land is restricted to a single family dwelling and further subdivision of the land is prohibited unless approval of the commission is first obtained.
Total number of lots this section = 25.
Minimum Lot size = 3 acres or more.
Total area of lots = 80.77 acres.

Although these covenants were not set forth specifically in appellees’ deeds, various conveyances were made pursuant to the conditions and restrictions of the recorded subdivision plan. That appellees had knowledge of the restrictive covenants is established by language referring to them in their deeds and by the fact that the planning board originally rejected their subdivision application for failure to attach copies of them.

The subdivision governed by the covenants was intended to be rural in character. No existing lot was greater than six acres in size so that further subdivision presumably would result in lots of less than the minimum three acres. Appellees each owned slightly more than three acres. At issue is the legal effect of the covenant stating “minimum lot size — three acres or more” and whether the approval by the township supervisors was effective to permit the proposed subdivision.

Appellants argue that the trial court erred in finding any ambiguity arising between the requirement for a minimum of three acres per lot and the mechanism of permitting further subdivision upon approval of the “commission.” In their view, the minimum-lot-size covenant is a continuing enforceable restriction on subdivisions as long as it is unambiguous and not merely descriptive of the existing lots. Appellants further argue that even if such an ambiguity were extant, it would not be fatal to enforcement of the covenants since reference still should be made to the intent behind the plan and the surrounding circumstances. See Clancy v. Recker, 455 Pa. 452, 316 A.2d 898 (1974) (reference to a plan of lots may clarify the meaning of a restrictive covenant). They contend that the clear purpose of the plan was to enhance the rural aspect of the subdivision upon which the purchasers relied. Finally, appellants contend that the Monroe County Planning Commission was the only commission in existence when the plan was recorded, and consequently, it, rather than the Chestnuthill Township Board of Supervisors, was the body intended to consider a proposed subdivision. Accordingly, they assert that the approval obtained by appellees was not effective.

Appellees argue that there is a latent ambiguity between the requirement that lots be at least three acres and the provision for further subdivisions that could result in lots smaller than three acres since no original lot was greater than six acres. In their view, this can mean only that the original plan contemplated authority to approve further subdivisions smaller than three acres and that this authority was delegated to the “commission.” They resolve any ambiguity between the two covenants by viewing the three acre minimum requirement as merely descriptive of the original properties. They also rely on the general principle that all doubts and ambiguities are resolved in favor of the property owner seeking the free use of his property. Covey v. Gross, 377 Pa.Super. 580, 547 A.2d 1214 (1988).

It is clear that the parties agree that these covenants, if found unambiguous, may be considered both continuing and enforceable. See Grasso v. Thimons, 384 Pa.Super. 593, 559 A.2d 925 (1989) (restrictive covenants, although strictly construed, legally are enforceable if unambiguous). Thus, we address the question of whether any ambiguity arises from the interaction of the covenant provision requiring lots of at least three acres and the provision permitting further subdivision upon obtaining approval from the “commission.”

Contrary to the trial court, we find that the three acre minimum lot size restriction is unambiguous. Our review of the record reveals that this covenant was central to the subdivision plan and specifically was relied upon by all the purchasers of property in the plan. Thus, we regard the three acre minimum as an enforceable covenant against any fuuure subdivisions and not merely descriptive of the original lots. The provision for “commission” approval of further subdivisions clearly provides only a procedure whereby a property owner may seek relief from the three-acre minimum for limited purposes. However, that provision neither negates the restriction nor renders it ambiguous. We will not extend the language by implication or enlarge the meaning of terms beyond what is expressed but confine them to the intent of the parties. Young v. Cerone, 338 Pa.Super. 280, 487 A.2d 965 (1985) (covenants must be read in light of the subject matter, the purpose of the parties and conditions when executed). Accordingly, we perceive no ambiguity that imperils either covenant.

We view the reference to the commission as relating to the county planning commission, which was the only approving authority extant when the plan was recorded. There is no evidence in the record that the Chestnuthill Township Board of Supervisors ever was substituted for the county planning commission as the approval authority for “Subdivision & Land Development” under the Municipalities Planning Code, 53 P.S. § 10101 et seq., as provided for therein. Therefore, the Monroe County Planning Commission, as opposed to the township supervisors, possessed the power delineated in the subdivision plan to approve either amendment or alteration of subdivision and zoning requirements. Thus, the approval of the Chestnuthill Township Board of Supervisors will not support the modification of the three acre minimum lot covenant.

Since we find that the covenant language is not ambiguous, and there is no evidence that the Chestnuthill Board of Township Supervisors possessed the authority to grant an exception to it, we conclude that the trial court erred in refusing to enforce the three-acre covenant with an injunction that prevents appellees from proceeding with construction on their purported subdivisions. As this covenant runs with the land, and no exceptions to that provision have been properly granted, it specifically is enforceable. Philadel phia Fresh Food Terminal Corp. v. M. Levin & Co., 239 Pa.Super. 287, 361 A.2d 886 (1976).

Order reversed. Jurisdiction relinquished.