author: CERCONE, Judge: OLSZEWSKI, Judge,

text:
    593 A.2d 431
    Douglas J. OKKERSE, 1985 and Lynn F. Okkerse, H/W, an Incompetent, and Lauren Okkerse, a Minor by Douglas J. Okkerse, her Guardian, Appellants, v. Edward J. HOWE, III, Ford Motor Company, George Monroe Pfaumer, Arthur Eugene Pfaumer and Elizabeth C. Pfaumer, H/W, Lower Merion Township, Pennsylvania Department of Transportation, Michael P. Erdman and Barbara Dunbarry Erdman, H/W, Russell Bement and Viola Bement, H/W, Louise K. Soladay, Robert Tucker Hall, Dorothy H. Hall, Thomas C. Joyce and Nancelyn F. Joyce, H/W, George B. Lemon, Robert E. Wagner and Jean H. Wagner, H/W, William C. Pickett and Margaret R. Pickett, H/W, Albury N. Fleitas and Priscilla M. Fleitas, H/W, Daniel Brainard Slack, Willing Howard, John Aronian, Joel Wasley, Virginia Denison.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed June 24, 1991.

      David R. Black, Media, for appellants.
    John A. Fitzpatrick, Philadelphia, for Daniel Brainard Slack, appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, granting appellee’s motion for summary judgment. We affirm.

The issue in this case is whether appellee, Daniel B. Slack, an owner of property abutting a private roadway, is liable for injuries suffered by appellant/wife which resulted when the motor vehicle which she was driving was struck by another automobile at the intersection of the private roadway and a public road on which appellant/wife was traveling. Appellee alleged that his property is located some two hundred fifty feet from the property which abuts the intersection, which was owned by the Pfaumers, who were also named defendants in this action. Appellants contend that overgrown vegetation on the Pfaumers’ premises obstructed the view of the driver of the automobile which struck hers. In their complaint, appellants alleged that appellee and other property owners along the private roadway, Avon Road, were negligent for failing to erect a stop sign at the intersection, failing to warn users of Avon Road of a duty to yield the right-of-way, permitting a dangerous condition to exist for an unreasonable length of time, failing to provide adequate warning of an unsafe condition, failing to perform duties they assumed, disregarding the safety of drivers by failing to eliminate or rectify an unreasonably dangerous condition, and failing to notify property owners of a traffic hazard caused by vegetation or to remove the same.

Appellee filed a motion for summary judgment on the basis that he had no affirmative duties to remove the vegetation on the Pfaumers’ property or to post traffic signs on Avon Road. The lower court granted the motion on July 2, 1990, and appellants filed the instant timely appeal. On appeal, appellants contend that the lower court erred in determining as a matter of law that the appellee (and other property owners on Avon Road) had no duty to keep the road free of hazards on the basis of certain covenants in their deeds. Appellants allege that it could be inferred from those covenants that the Avon Road property owners had voluntarily assumed a duty to maintain and repair the private road. The lower court also reasoned that summary judgment was properly awarded because there is no common law duty to cut vegetation on the property of another for the benefit of the general public, and that appellee was prohibited from erecting a stop sign on Avon Road by 75 Pa.C.S.A. § 6125(a). Appellants contend that the lower court erred in granting summary judgment where there remained material issues of fact concerning the intention of the private property owners as to their joint duties to repair and maintain Avon Road.

In reviewing the grant of a motion for summary judgment, we utilize the following standard of review:

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, [369], 562 A.2d 279, 280 (1989). The moving party has the burden of proving the nonexistence of any genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, [202-204], 412 A.2d 466, 468-69 (1979). The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact, must be resolved against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970).

Marks v. Tasman et al., 527 Pa.-, 589 A.2d 205 (1991). The entry of summary judgment will not be reversed on appeal unless there has been an error of law or a clear abuse of discretion. O’Neill v. Checker Motors Corporation, 389 Pa.Super. 430, 567 A.2d 680 (1989).

The duty of multiple owners of easements in a private road to maintain and make repairs to the road was discussed in Borgel v. Hoffman, 219 Pa.Super. 260, 280 A.2d 608 (1971). In that case, the plaintiff was injured when she fell in a driveway which ran between two rows of houses. Plaintiff alleged that her fall was due to a defective condition of the driveway. Defendants, who were the owners of the property immediately adjacent to the site of the plaintiffs injuries, joined as additional defendants other owners of property along the driveway. The court cited the general rule applicable to easements that where the easement is used and enjoyed for the benefit of the dominant estate alone, the owner of the dominant estate is under obligation to make repairs. Id., 219 Pa.Superior Ct. at 263, 280 A.2d at 609. However, the court reasoned that the existence of multiple owners who occupy the position of both dominant and servient tenants is a different situation, which calls for a determination of their respective rights and burdens by considering the equities and expediencies involved. Id., 219 Pa.Superior Ct. at 263-64, 280 A.2d at 609-10. The court concluded that “the most reasonable, expedient and equitable rule is to require each of the owners to be responsible for the maintenance and repair of only that portion of the driveway abutting or located on his own land.” Id., 219 Pa.Superior Ct. at 265, 280 A.2d at 610.

This rule was further discussed in Mscisz v. Russell, 338 Pa.Super. 38, 487 A.2d 839 (1984). In Mscisz, plaintiff was injured when he fell from his motorcycle on a private driveway. Plaintiff claimed that defendants, who owned the property on which the accident occurred, had failed to maintain the driveway in a safe condition. Defendants joined as additional defendants fifty-five of their neighbors whose lots also abutted the private drive, alleging that they had an equal duty to maintain the driveway in a safe condition. Id., 338 Pa.Superior Ct. at 39-40, 487 A.2d at 840. The trial court dismissed the complaint against all the additional defendants. Id.

On appeal, the court held that the rule in Borgel, supra, which limits the duty of maintenance and repair to that portion of the private road abutting or located on the property owner’s own land, is limited to situations in which there is no agreement between the property owners to the contrary. Mscisz v. Russell, supra, 338 Pa.Super. at 40, 487 A.2d at 840. In Mscisz, the court found that each abutting owner had a covenant in his deed which required that the owner be subject to “the proportionate part of the expense of keeping said driveway in good order and repair.” Id., 338 Pa.Superior Ct. at 41, 487 A.2d at 841. The court held that, in consideration of these covenants, to impose a duty on each owner to repair only that portion of the driveway which abutted his own lot “would result in a patchwork arrangement more likely to defeat than encourage the expressed intention to maintain the driveway in good repair with costs apportioned among all dominant tenants.” Id. Therefore, the court determined that summary judgment was improvidently granted because the intention of the parties, as expressed in their deed covenants, was a matter presenting a factual issue on which extrinsic evidence could be properly received. Id.

In Oswald v. Hausman, 378 Pa.Super. 245, 548 A.2d 594 (1988), the court cited Borgel, supra, and Mscisz, supra, in holding since there was no agreement between the abutting land owners to maintain the private roadway on which the decedent had died in his car because the road was snow-covered and unpaved, the abutting landowners each had a duty to maintain only the portion of the roadway which abutted his or her land. Id., 378 Pa.Superior Ct. at 251, 548 A.2d at 597.

From the above cases, it can be seen that the critical factor which will implicate a duty to maintain or repair a private roadway in its entirety, and not just the portion immediately abutting the individual owner’s property, is the existence among the individual owners of an agreement to undertake such responsibility. Appellant contends that such an agreement did exist in the instant case. We will address appellant’s contention by examining the specific language of the covenants here involved.

The first covenant, entered into in 1957, between appellee’s predecessor in title and the township in which the property is located consists of an agreement by appellee’s predecessor in title “to pay his proportionate share of the cost of construction ... of Avon Road____” In the document containing the covenant, entitled “Land Subdivision Agreement,” the covenant was stated to run with the land.

The second covenant which appellants argue establishes appellee’s duty to maintain Avon Road is contained in a 1968 agreement which provided that the owners of the Avon Road properties would make payments to the township for the grading, paving, curbing, drainage, and removal and replacement of shade trees on Avon Road. Payment of the sums due under this agreement, which was recorded in the deed book on May 20, 1968, automatically released the owners of the conditions of the Land Subdivision Agreement, and “all of other obligations of making improvements to or contributing to the cost of improvements made to Avon Road ... excepting the obligation to make future repairs after the Township has completed the work hereinafter specified.” The lower court found that this agreement was inapplicable on its face to the facts herein because it “only pertains to maintenance of the road itself,” and in the instant case, there were no allegations of a hazardous condition “in or on the roadway.”

We do not find the 1968 agreement quite as unambiguous as did the lower court. Part of the 1968 covenant was that the township would not only grade, pave, and curb the roadway, but that it would also remove and replace shade trees along Avon Road. It is certainly possible, although not clear from the agreement itself, that removal and replacement of trees involved work not on the roadway itself but rather upon the land adjacent to the road. With this provision in mind, the meaning of the property owner’s “obligation to make future repairs” becomes less certain. Although “repairs” would normally have the connotation of work involving the surface of the roadway itself, in the context of this agreement, it is possible that the word refers to a larger sphere of activity, which would include maintenance of the area adjacent to the roadway, in particular as that area relates to the removal and replacement of trees. It is further possible to construe “trees” to include vegetation, with such interpretation depending on facts outside of the language of the agreement.

There are additional difficulties in interpretation of the 1968 agreement. Under its terms, it is rather clear that the township was to perform the work relating to the improvement of Avon Road. The role of the property owners under the agreement was to pay the township for the work performed. The owners were then released from all obligations except the obligation to make future repairs. The question arises as to what entity is to perform the future repairs referred to in the agreement. Is it the township as occurred in 1968, with payment for the work to emanate from the property owners? Or, are the property owners themselves charged with the responsibility of future repairs of the roadway? With all of these ambiguities present, we cannot uphold the lower court’s order to the extent that it is based upon an interpretation that the agreement, as a matter of law, refers only to the obligation to make repairs to the road itself.

Nevertheless, we do not find that the lower court erred in granting summary judgment. The duty to remove vegetation which obstructs the vision of motorists on an adjacent roadway resides in the owner of the property on which the vegetation is located. 75 Pa.C.S.A. § 6112(a); Harvey v. Hansen, 299 Pa.Super. 474, 487, 445 A.2d 1228 (1982) (“property owners are now on notice that they should remove or cut back foliage which obstructs the vision of passing motorists at an intersection”). See also Restatement (Second), Torts, § 363. The rule of expedience, reasonableness, and equity established in Borgel, supra, 219 Pa.Super. at 265, 280 A.2d at 610, would not be served, despite the existence of a private agreement, by requiring that an owner of land abutting a private road be encumbered with a duty to remove overgrown or other vegetation growing on his neighbor’s property which is obstructing the view of motorists on the private road.

Practical and legal considerations would mitigate against imposition of such a rule. Such considerations would include the legal restraints which would prevent one property owner from entering onto the property of another and making modifications thereto, in addition to the practical problems of inducing a reluctant property owner to take the necessary measures to remove the troublesome condition. We note that there exists no duty under the law for a neighboring landowner to correct a defective artificial condition on his neighbor’s property. Magner v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896); Cousins v. Yaeger, 394 F.Supp. 595 (E.D.Pa.1975); Kearns by Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa.Cmwlth. 596, 492 A.2d 1204 (1985). We likewise decline to impose such a requirement with regard to this natural vegetative condition. Thus, despite the ambiguities of the 1968 agreement, appellee had no legal duty to remove the vegetation existing on the Pfaumers’ property. Accordingly, the lower court did not err in granting appellee’s motion for summary judgment.

Order affirmed.

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

OLSZEWSKI, Judge,

concurring and dissenting:

I concur in the portion of the majority opinion which holds that appellant cannot base a cause of action on the failure to erect a stop sign, as appellee is prohibited from placing such a sign on Avon Road by statute. See, 75 Pa.C.S.A. § 6125(a). I cannot agree with the portion of the majority opinion which affirms the summary judgment holding that appellee had no duty to control the vegetation on another’s property. Accordingly, I must dissent.

The majority correctly states the law as to the duty of a property owner to maintain a private roadway. In the absence of an agreement to the contrary, the property owner’s duty of maintenance and repair is limited to that portion of the private road abutting or located on his own land. See, Borgel v. Hoffman, 219 Pa.Super. 260, 280 A.2d 608 (1971); Mscisz v. Russell, 338 Pa.Super. 38, 487 A.2d 839 (1984); Oswald v. Hausman, 378 Pa.Super. 245, 548 A.2d 594 (1988). I also agree that the law imposes the duty to remove vegetation which obstructs the vision of motorists on an adjacent roadway only on the owner of the property where the vegetation is located. See, Harvey v. Hansen, 299 Pa.Super. 474, 445 A.2d 1228 (1982); 75 Pa.C.S.A. § 6112(a); RESTATEMENT (SECOND) TORTS § 363. Finally, I agree with the proposition that the law does not impose a duty on a landowner to correct a defective artificial condition on a neighbor’s property. See, Magner v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896); Kearns by Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa.Cmwlth. 596, 492 A.2d 1204 (1985); Houck v. Samuel Geltman & Co., 400 Pa.Super. 534, 583 A.2d 1244 (1991). My disagreement with the majority lies in the application of these principles to the case at bar.

The majority correctly decides that the covenant and subsequent agreement with the Township are ambiguous and could be construed to mean that appellee had undertaken an obligation to perform maintenance work on

... a larger sphere of activity, which would include maintenance of the area adjacent to the roadway, in particular as that area relates to the removal and replacement of trees. It is- further possible to construe “trees” to include vegetation ...

Majority at 434. Thus, the question presented is not whether the law imposes an obligation to control the vegetation on appellee, but whether appellee has undertaken such an obligation by the covenant and subsequent agreement. It is on this issue that a material factual question exists which precludes summary judgement. Mscisz, supra; see also, Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989) (summary judgment is only proper in clearest of cases).

Nor am I persuaded that practical and legal considerations dictate the granting of summary judgment here. If the property in question is subject to the covenant and subsequent agreement, permission to enter onto the land to perform the obligation is necessarily implied in those agreements. Further, adequate legal remedies exist to enforce compliance with the covenant and agreement by a reluctant property owner.

Appellants are entitled to their day in court to prove whether or not appellee voluntarily undertook the obligation to control the vegetation in question. Reversing summary judgment does not impose a duty to do so under the law, it merely recognizes that individuals can assume duties by agreement above those imposed by law. I respectfully dissent.

      . The other appellants are the husband and daughter of Mrs. Okkerse, the wife/appellant, who claim losses resulting from the wife/appellant’s injuries and her consequent disability.

      . For this proposition, the lower court cited Borgel v. Hoffman, 219 Pa.Super. 260, 280 A.2d 608 (1971), and Mscisz v. Russell, 338 Pa.Super. 38, 487 A.2d 839 (1984), discussed infra.

      . Section 6125(a) prohibits private individuals from placing "upon or in view of any highway any unauthorized sign, signal, marking or device which purports to be ... an official traffic control device ...”. Id.

      . An appellate court may affirm the decision of the trial court if the result is correct on any ground. Van Mastrigt v. Delta Tau Delta, 393 Pa.Super. 142, 150 n. 6, 573 A.2d 1128, 1132 n. 6 (1990).

      . Section 6112(a) provides:
      It is the duty of the owner of real property to remove from the property any tree, plant, shrub or other similar obstruction, or part thereof, which by obstructing the view of any driver constitutes a traffic hazard.
      75 Pa.C.S.A. § 6112.

      . Section 363 of the Second Restatement of Torts provides:
      § 363. Natural Conditions.
      (2) A possessor of land in an urban area is subject to liability for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the conditions of trees on the land near the highway.

        Id.

      . The lower court also properly held that appellee had no duty to install a stop sign at the intersection where the accident occurred. 75 Pa.C.S.A. § 6125(a), supra, n. 3.


source: Caselaw Access Project

author: CERCONE, Judge.

license: Public Domain

text:
    593 A.2d 436
    Gilbert B. BILLER v. Edward ZIEGLER, et al. Appeal of WILLIGEROD AND MacAVOY, P.C.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 27, 1991.

      Theodore A. Adler, Harrisburg, for appellants.
    Arthur T. McDermott, Carlisle, for appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from a judgment entered in favor of plaintiff/appellee following a jury trial. We vacate and remand with directives.

The events underlying the instant appeal concern a contract to build a house for Mr. and Mrs. James Wright. The facts, as found by the trial court, are as follows. Defendant/appellant Willigerod and MacAvoy, P.C., a firm of architects, was engaged by the Wrights to oversee the construction of their house. Defendant Monroe Construction Company, whose principals were Edward Ziegler and Rick Marchi, acted as general contractor. Plaintiff/appellee, Gilbert B. Biller, was engaged to perform the masonry work on the structure. However, Mr. Biller did not enter into a written contract with any of the defendants to the underlying suit as his practice is to work on a “handshake basis.”

In November of 1985, appellee Biller became concerned that Monroe Construction was about to declare bankruptcy while owing him approximately $9,000 for work done on other jobs. In consequence, Mr. Biller met with Mr. MacAvoy, one of the architects in the firm employed by the Wrights, and explained that he would not continue working on the Wright’s house as he could not take the risk of losing payment for the work. Mr. MacAvoy assured appellee that he would receive payment by Thanksgiving. When the funds were not forthcoming, appellee pulled his crew off the Wright’s job site and a different masonry subcontractor was employed to complete the project.

Appellee filed his original complaint ex contractu in 1986 seeking damages for unpaid work from Messrs. Ziegler and Marchi of Monroe Construction Co., Willigerod and MacAvoy, P.C., as well as from Mr. William MacAvoy individually. The first trial resulted in a non-suit which was reversed by a decision of this court. Biller v. Ziegler, et al., 383 Pa.Super. 660, 550 A.2d 246 (1988). In June of 1989, a jury awarded the sum of $16,000.00 plus “legal costs” to appellee and against appellant Willigerod and MacAvoy, P.C. The lower court denied post-trial motions filed by the appellant, and a notice of appeal to the Superior Court was timely filed. Judgment was subsequently entered on the verdict.

The appellant architectural firm raises the following issues for our consideration:

[1] , Where a master is joined with its servant in an action based wholly upon the servant’s conduct, can the master be held liable when the action against the servant has been dismissed?
[2] . Was the oral promise of the individual defendant MacAvoy to guarantee the debt of another enforceable?
[3] . Was the promise of the individual defendant MacAvoy enforceable as an original contract?
[4] . Can a jury find an agent to have apparent authority to act on behalf of the principal when no evidence of such is presented?
[5] . Were the damages awarded by the jury consistent with the evidence presented by the [appellee]?

We shall discuss these claims sequentially. However, as the first and fourth issues involve the same resolution, we shall address these claims together.

Appellant’s first and fourth contentions are that the jury made a fundamental error in finding the architectural firm liable while determining that William MacAvoy, the architect in the firm who guaranteed payment to Mr. Biller, was not personally liable. The arguments advanced by appellant focus on the master/servant relationship in torts law, the doctrine of vicarious liability, and the law of agency. However, this question must be resolved under the former Professional Corporation Law, Act of July 9,1970, P.L. 461, No. 160 §§ 1-14, which directly addresses the topic.

A professional corporation may lawfully render professional services only through officers, employees or agents who are licensed persons. Act of July 9,1970, P.L. 461, No. 160 § 12, 15 P.S. § 3912 (repealed). See 15 Pa.C.S.A. § 2924(a) (current law). An individual officer, shareholder, employee or agent of a professional corporation is personally and fully liable and accountable for his or her acts only to the person for whom the professional services were being rendered. Act of July 9, 1970, P.L. 461, No. 160 § 13, 15 P.S. § 2913(b) (repealed) (emphasis added). See 15 Pa. C.S.A. § 2925(b) (current law). However, the professional corporation itself shall be liable up to the full value of its property for the acts of any of its officers, shareholders, employees or agents while they are engaged on behalf of the corporation in rendering professional services. Act of July 9, 1970, P.L. 461, No. 160 § 13, 15 P.S. § 2913(b) (repealed) (emphasis added). See 15 Pa.C.S.A. § 2925(b) (current law). We note that on its face, this second provision does not limit liability only to the person for whom the professional services were performed, i.e., there is no privity requirement in the second provision.

As the lower court has correctly summarized, the record substantiates factual findings that Willigerod and MacAvoy, P.C. is a professional corporation in which William MacAvoy is a named professional participant, i.e., “a licensed architect.” The appellant has conceded that Mr. MacAvoy is a principal in the firm. Specifically, the evidence presented to the lower court shows that William MacAvoy is the “MacAvoy” named in the architectural firm’s title. The record also bears out the lower court’s statement that throughout the trial, few distinctions were made by either side between Mr. William MacAvoy and the professional corporation of Willigerod and MacAvoy. Further, the record discloses that Willigerod and MacAvoy, P.C. was engaged to perform professional services for the home builders and not for appellee. We conclude that appellee was not in privity with the firm, and that he was not negotiating with an agent of the firm. Rather, appellee dealt directly with appellant’s named principal, William MacAvoy.

It is virtually hornbook law that a corporation is a legal fiction which can act only through its officers, directors and other agents. Daniel Adams Associates, Inc. v. Rimbach Pub., Inc., 360 Pa.Super. 72, 79, 519 A.2d 997, 1000 (1987), allocatur denied, 517 Pa. 597, 535 A.2d 1056 and 517 Pa. 599, 535 A.2d 1057 (1987). A corporation’s liability on contracts, even those made by mere agents, is not limited to such acts of the agents as are expressly authorized or necessarily implied, and extends to contracts negotiated by an agent acting within the apparent scope of his authority. Simon v. H.K. Porter Co., 407 Pa. 359, 364, 180 A.2d 227, 229-30 (1962). We have already endorsed the lower court’s determination that William MacAvoy was not simply an agent with apparent authority to represent appellant, but was a named principal in the architectural firm.

Appellant has never denied that Mr. MacAvoy exercises managerial authority at Willigerod and MacAvoy, P.C. See Lokay v. Lehigh Valley Co-op Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985) (corporation could not escape consequences of its officer's acts where it did not deny his managerial authority). Moreover, it would be contrary to our law if we were to hold that a professional corporation is not liable on contracts made by a named principal acting in his professional capacity and representing his firm merely because he has not been shown to be an “agent” of the corporation. In consideration of these circumstances and the foregoing provisions of the Professional Corporation Law, we are unable to conclude that the jury erred in absolving Mr. MacAvoy of personal responsibility for the acts he performed under the aegis of Willigerod and MacAvoy, P.C. while finding the architectural firm liable for these same acts.

Appellant’s second issue questions whether an oral promise made by William MacAvoy was sufficient to guarantee the debt of another and whether this promise is enforceable. The essence of this claim is that as the guarantee made by Mr. MacAvoy was oral, it is unenforceable under the Pennsylvania Statute of Frauds. Our statutory law states:

Promise to answer for debt of another
No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.

33 P.S. § 3 (Act of April 26, 1855, P.L. 308 § 1). However, the Statute of Frauds rule that a promise to answer for the debt of another must be in writing does not apply if the main object of the promisor is to serve his own pecuniary or business purpose. Acme Equipment Co. v. Allegheny Steel Corp., 207 Pa.Super. 436, 438, 217 A.2d 791, 792 (1966). Accord Leonard v. Martling, 174 Pa.Super. 206, 210-11, 100 A.2d 484, 486 (1954), aff'd, 378 Pa. 339, 106 A.2d 585 (1954). This exception has been called the “leading object” or “main purpose” rule. Thomas A. Armbruster, Inc. v. Barron, 341 Pa.Super. 409, 413, 491 A.2d 882, 884 (1985).

The leading object rule applies whenever a promisor, in order to advance some pecuniary or business purpose of his own, purports to enter into an oral agreement even though that agreement may be in the form of a provision to pay the debt of another. Id., quoting Goodling v. Simon, 54 Pa.Super. 125, 127 (1913). Accord Eastern Wood Products Col. v. Metz, 370 Pa. 636, 641, 89 A.2d 327, 330 (1952). As the Armbruster court explained, where the suretypromisor’s main purpose is his own primary or business advantage, the gratuitous or sentimental element often present in suretyship is eliminated. Thomas A. Armbruster, Inc. v. Barron, 341 Pa.Super. at 413, 491 A.2d at 884. Thus, there is less need for cautionary or evidentiary formality in the commercial context. Id. The determination as to whether a promisor’s main purpose for making a guaranty was to serve his own pecuniary or business ends is for the trier of fact, and will not be reversed absent abuse of discretion. Id., 341 Pa.Superior Ct. at 413-14, 491 A.2d at 884.

Appellant contends that neither William MacAvoy nor the firm of Willigerod and MacAvoy, P.C. had any pecuniary interest in seeing that appellee performed the masonry work on the Wright project. This claim is predicated on the fact their agreement with the Wrights did not condition payment of the architect’s fee upon the completion of any particular portion of the work by any particular contractor or sub-contractor. We find this argument to be disingenuous at best.

Mr. MacAvoy’s testimony indicates that the firm received partial payment from the Wrights only upon the completion of work specified in a stage payment schedule. N.T. 6/6/89 at 2-24—2-25. According to this testimony, the firm would not be fully paid until the project was completed. The sooner the construction was finished, the sooner payment in full would be rendered. Id. Although Willigerod and MacAvoy, P.C. may have had no pecuniary interest in securing the specific services of appellee, the firm certainly had such an interest in facilitating the completion of the masonry work as rapidly as possible. Thus, it was logical and and reasonable for the jury to determine that this pecuniary interest was advanced by encouraging appellee to remain on the job rather than by suspending progress while seeking a different sub-contractor to take over the work.

Our review of the record confirms that there was no abuse of discretion by the fact-finder in concluding that Mr. MacAvoy’s oral promise also advanced a business purpose for Willigerod and MacAvoy, P.C. Mr. MacAvoy acknowledged that the reputation of an architect for finishing projects in a timely manner is important. Id. at 2-28. Additionally, he stated that fully ninety-five (95) per cent of the firm’s business was secured through satisfied customers who recommend the firm to other potential customers. Id. Mr. MacAvoy admitted that at the time he made the oral promise to appellee, the Wrights were concerned that the project was moving too slowly and that they wanted the masonry and brickwork completed before “deep winter” set in. Id. at 2-29. The Wrights also wanted the job to be completed as quickly as possible in order to reduce the amount of interest due on their construction loan. Id. at 2-8. In light of this testimony, it was reasonable for the jury to conclude that the architectural firm had a business purpose for the oral promise, i.e., to enhance the firm’s reputation by finishing the brickwork before winter made completion impossible.

Next, appellant argues that William MacAvoy’s promise to guarantee payment to appellee is not enforceable as an original contract. We have already determined that Mr. MacAvoy’s promise is enforceable as a collateral agreement excepted from the Statute of Frauds requirements under the leading object or main purpose rule. It was not necessary for the jury to find Willigerod and MacAvoy, P.C. liable under both theories in order for appellee to prevail. In light of our resolution of the collateral agreement claim, we need not further discuss the question of the enforceability of the promise as an original contract.

The final claim raised by appellant is that judgment notwithstanding the verdict should have been granted by the lower court because, although the evidence presented at trial could support an award of damages in the amount of $12,445.04, the jury had no basis on which to award appellee the sum of $16,000 plus legal costs. In reviewing a motion for judgment n.o.v., the facts must be considered in the light most favorable to the party against whom the motion was made. Kobylinski v. Hipps, 359 Pa.Super. 549, 553, 519 A.2d 488, 490 (1986). If the law does not permit recovery upon the alleged facts on which the jury may justifiably have relied, a judgment n.o.v. is proper. Id. A motion for a new trial should be granted only where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 449, 467 A.2d 615, 618 (1983). The lower court’s decision in this regard will not be reversed absent an abuse of discretion. Id.

As our analysis has already shown, the evidence presented to the jury demonstrates that appellee is not absolutely barred from all recovery. Thus, it was not an abuse of discretion for the lower court to deny appellant’s motions for judgment n.o.v. and for a new trial. Under these circumstances, we agree with the lower court’s assessment that a remittitur of the excess jury award' is the proper approach to follow. An order of remittitur is a judicial determination that the verdict is excessive as a matter of law. Nelson v. Keefer, 451 F.2d 289, 296 n. 15 (3d Cir.1971), citing Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968). Evidence in the certified record supports, at a minimum, appellee’s stated claim in the amount of $13,630.28. N.T. 6/5/89 at 48-98; N.T. 6/6/89 at 2-18—2-23. Consequently we vacate the judgment docketed April 17, 1990 and remand with the directive that a new judgment be entered awarding to appellee Biller the sum of $13,630.28 plus costs, prejudgment interest, and interest from June 6, 1989, the date of the verdict. See 42 Pa.C.S.A. § 8101 (interest on judgments); Verner v. Shaffer, 347 Pa.Super. 206, 500 A.2d 479 (1985) (reviewing court has authority to mold verdict by adding pre-judgment interest even where issue was not submitted to jury); Gold and Co., Inc. v. Northeast Theater Corp., 281 Pa.Super. 69, 421 A.2d 1151 (1980) (in contract action, award of pre-judgment interest does not depend upon discretion but is a legal right).

Judgment vacated. Case remanded with directives. Jurisdiction is not retained.

      . The Wrights are not parties to this litigation.

      . Although named as defendants below, neither Monroe Construction Company nor its principals are parties to the instant appeal.

      . The former Professional Corporation Law was repealed by the Act of December 21, 1988, P.L. 1444, No. 177, § 302, effective October 1, 1989. As the Committee Comment indicates, the current Chapter 29 of the Business Corporations Law is basically a reenactment of the former Professional Corporation Law. For ease of reference and because the language of the prior enactment is virtually identical to the current Professional Corporation Law codified at 15 Pa.C.S.A. § 2901 et seq., citation will be made to both the former and current provisions.

      , We note, however, that the trial court has correctly analyzed the evidence before the jury and their possible conclusion.
      It was for the jury to determine if the promise was original or collateral and, if the latter, whether MacAvoy and Willigerod benefitted from Biller’s undertaking such that the oral promise escaped the statute of frauds and is enforcable [sic]. The evidence supported either analysis. MacAvoy and Willigerod’s promise may be seen as original in that Biller was entitled to the inference that it was the architects’ promise alone that induced him to accept the job and begin work. The evidence showed that the architects had some control over the flow of funds for the job and Biller was entitled to the inference that, just as the architects could recommend payment to the general contractor, they could recommend Biller be paid directly.
      Slip opinion at 3.

      . Conversely, appellee recommends that we treat the excess award as “delay damages." Such an approach is inappropriate, however, because the rule providing for delay damages limits such awards to tort actions for bodily injury, death, or property damage. Pa.R.C.P. No. 238, 42 Pa.C.S.A. As the instant case sounds in contract, there is no authority permitting us to treat the excess award as a grant of delay damages. See, e.g., Versatile Metals, Inc. v. Union Corp., 693 F.Supp. 1563, 1570 (E.D.Pa.1988) (delay damages per se are not available in Pennsylvania for contract actions).

      . The original record, as certified to this court, does not contain the exhibits admitted at trial. Although appellant has included copies of certain exhibits as part of the reproduced record, a paper may not be made part of the record simply by reproducing it. Dorn v. Stanhope

        Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), allocatur denied, 518 Pa. 656, 544 A.2d 1342 (1988). An appellate court may consider only facts which have been duly certified in the record on appeal. Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988), citing Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); Barner v. Barner, 364 Pa.Super. 1, 9, 527 A.2d 122, 126 (1987). See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (Composition of record on appeal). In the instant case, counsel for both parties elicited extensive testimony from various witnesses pertaining to the amounts in question. Therefore, we have been able to properly review the issue presented even without the benefit of the exhibits.


author: ROWLEY, President Judge:

text:
    593 A.2d 846
    COMMONWEALTH of Pennsylvania v. Robert FERRARI, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1991.
    Filed May 21, 1991.
    Reargument Denied Aug. 2, 1991.

      Paul D. Boas, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, President Judge:

As the result of an altercation that occurred early in the morning of April 26, 1987, and which is described by the trial court in its opinion of February 7, 1990, a jury convicted appellant Robert Ferrari of aggravated assault, 18 Pa. C.S. § 2702(a)(1), and recklessly endangering another person, 18 Pa.C.S. § 2705. Appellant was sentenced to five to ten years imprisonment in accordance with the mandatory sentencing provisions of 42 Pa.C.S. § 9712 (sentences for offenses committed with firearms). In this timely appeal from the judgment of sentence, appellant, represented by new counsel, sets forth numerous assertions of ineffectiveness of trial counsel, which will be addressed seriatim. He seeks a new trial or, alternatively, an evidentiary hearing on trial counsel’s alleged ineffectiveness. Having thoroughly reviewed the record and the arguments presented, we affirm the judgment of sentence. At the outset, we note that trial counsel is presumed to have been effective and that the burden is on the defendant to prove otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). To establish counsel’s ineffectiveness, the defendant must prove that 1) his underlying claim has arguable merit, 2) the course chosen by counsel could have had no reasonable basis designed to serve the defendant’s interests, and 3) the defendant was prejudiced by counsel’s act or omission. Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). If it is clear that the defendant cannot meet this test, remand for an evidentiary hearing is unnecessary. Commonwealth v. Wells, 396 Pa.Super. 70, 79, 578 A.2d 27, 32 (1990).

Appellant contends, first, that trial counsel was ineffective in failing to request the court to instruct the jury on aggravated assault as defined in 18 Pa.C.S. § 2702(a)(4) and on simple assault as defined in 18 Pa.C.S. § 2701(a)(3), both of which appellant considers to be lesser included offenses of the crime of which he was convicted, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). Appellant adds that trial counsel was also ineffective in failing to object to the jury charge on this ground and in failing to raise the issue in post-trial motions.

Section 2702(a)(1) of the Crimes Code defines aggravated assault as follows:

(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

18 Pa.C.S. § 2702(a)(1). 18 Pa.C.S. § 2702(b) states that aggravated assault as so defined is a felony of the first degree. Under § 2702(a)(4), one commits aggravated assault if he or she

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]

18 Pa.C.S. § 2702(a)(4). Aggravated assault as defined in subsection (4) is a felony of the second degree. 18 Pa.C.S. § 2702(b). Simple assault is defined in the pertinent subsection of 18 Pa.C.S. § 2701 as follows:

(a) Offense defined.—A person is guilty of assault if he:
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

18 Pa.C.S. § 2701(a)(3). At the time of appellant’s conviction, simple assault was a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it was a misdemeanor of the third degree. 18 Pa.C.S. § 2701(b). Conviction under either § 2701(a)(3) or § 2702(a)(4) would not have subjected appellant to a mandatory sentence of five years imprisonment.

If each and every element of one offense is necessarily an element of a greater offense, the former offense is a lesser included offense of the latter. Commonwealth v. Thomas, 376 Pa.Super. 455, 458, 546 A.2d 116, 118 (1988) (en banc), alloc. denied, 520 Pa. 616, 554 A.2d 509 (1989); Commonwealth v. Channell, 335 Pa.Super. 438, 445, 484 A.2d 783, 786 (1984). In order for one offense to be considered a lesser included offense of another, therefore, the commission of the greater offense must necessarily involve the commission of the lesser. Commonwealth v. Griffin, 357 Pa.Super. 308, 318, 515 A.2d 1382, 1387 (1986), alloc. denied, 515 Pa. 574, 527 A.2d 535 (1987) [citing Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985) ]. If it would be rational, given the evidence of record, for the jury to find the defendant guilty of the lesser offense but not guilty of the greater, the defendant is entitled to have the jury instructed on the law of the lesser offense. Commonwealth v. Thomas, supra; Commonwealth v. Blount, 387 Pa.Super. 603, 611, 564 A.2d 952, 956 (1989), alloc. denied, 525 Pa. 594, 575 A.2d 561 (1990); Commonwealth v. Channell, supra.

The first step in our analysis, then, is to determine whether the offenses for which jury instructions should allegedly have been requested are in fact lesser included offenses of aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). With regard to aggravated assault as defined in § 2702(a)(4), the determination has already been made. In Commonwealth v. Ritchey, 313 Pa.Super. 238, 242, 459 A.2d 828, 830 (1983), this Court held that because the “with a deadly weapon” provision of § 2702(a)(4) is not found in § 2702(a)(1), the former is not a lesser included offense of the latter. Appellant attempts to distinguish Ritchey from the case before us by noting that a deadly weapon, the handgun, was involved in the present case. He fails to note, however, that the circumstances of Ritchey also involved the use of a firearm. Moreover, it is evident from this Court’s reasoning in the case that the decision as to whether one offense is a lesser included offense of another does not depend on the elements of a particular factual scenario, but on the elements of the pertinent statutory provisions:

[W]hen the two subsections are read together it is apparent that subsection (4) contains an element that is not found in the greater offense of subsection (1). Specifically, subsection (4) requires that the assault be caused or attempted “with a deadly weapon”. This element is not contained in subsection (1), which prohibits any attempt to cause or the causing of serious bodily injury but which does not limit itself to any particular mode of causing such an injury.
It is therefore possible that a subsection (1) assault may be proved in some cases without necessarily proving a subsection (4) assault. We therefore hold that subsection 2702(a)(4) assault is not a lesser included offense of subsection 2702(a)(1)----

Id., 313 Pa.Superior Ct. at 241-42, 459 A.2d at 830 (emphasis added).

We note also that this Court en banc reached the same result, although in a different context, in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), aff'd on other grounds, 516 Pa. 21, 531 A.2d 1111 (1987). In that case, both the criminal complaint and the information indicated that the charge against appellant was aggravated assault, but neither specified a subsection of 18 Pa.C.S. § 2702. While a fair reading of the criminal complaint indicated that appellant had been charged with aggravated assault based on § 2702(a)(4), the wording of the information clearly indicated that the charge was based on § 2702(a)(1). This Court explained the significance of the situation as follows:

Since the proof required for subsection (a)(1) and subsection (a)(4) is substantially different and the penalties involved, likewise, are substantially different, the defendant cannot be charged with one subsection and be presented with proof or allegations of a different subsection at trial without amendment approved by the defendant. Aggravated assault, § 2702(a)(4) is not a lesser included offense of aggravated assault, § 2702(a)(1). Commonwealth v. Ritchey, [supra]. If, upon a conviction or a plea, the court imposed a sentence relating to one subsection of the Crimes Code, when a different subsection carrying a different penalty was proved, this in effect would be an illegal sentence.

Id. 346 Pa.Super. at 608, 500 A.2d at 114-15 (additional citation omitted). This Court held, accordingly, that the Commonwealth was bound by the charge stated in the information, which was aggravated assault under § 2702(a)(1), and could not seek to prove at sentencing that appellant had committed the offense with a deadly weapon. In view of the controlling case law just cited, we hold in the present case that because § 2702(a)(4) aggravated assault is not a lesser included offense of § 2702(a)(1) aggravated assault, trial counsel was not ineffective in failing to request a jury instruction on the former offense.

Appellant contends also that simple assault as defined in 18 Pa.C.S. § 2701(a)(3) is a lesser included offense of aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). Our research has uncovered no case in which the two subsections are specifically compared. Numerous cases state that simple assault is a lesser included offense of aggravated assault. Some do so without specifying which subsections are being compared, see, e.g., Commonwealth v. Wilks, 250 Pa.Super. 182, 189, 378 A.2d 887, 890 (1977), while others specify one or both of the subsections at issue, see, e.g., Commonwealth v. Channell, 335 Pa.Super. at 443 n. 2, 484 A.2d at 785 n. 2 [if jury believed knife had been used, appellant could be convicted of aggravated assault under, inter alia, § 2702(a)(4); if not, jury might have found him guilty of simple assault, § 2701]; Commonwealth v. Sirianni, 286 Pa.Super. 176, 182, 428 A.2d 629, 633 (1981) [§ 2701(a)(1) is lesser included offense of § 2702(a)(1)]; Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 546, 420 A.2d 674, 676 (1980) (same).

However, given the facts of this case, we are not required to decide whether simple assault, § 2701(a)(3), is a lesser included offense of aggravated assault, § 2702(a)(1). “A defendant is entitled to ... an instruction [on a lesser included offense] only where the evidence in the record would permit the jury to find, rationally, the defendant guilty of the lesser included offense but not the greater offense.” Commonwealth v. Thomas, 376 Pa.Super. at 459, 546 A.2d at 118 (emphasis added). According to the testimony offered by the Commonwealth, appellant harassed John Sochacki until Sochacki got out of his car, at which point appellant pulled out a loaded handgun, pointed it at Sochacki, said, “I’m going to kill you” (T.T. at 7), and pulled the trigger three times. Because of a jammed cartridge, the pistol did not fire. According to the testimony of appellant and his witnesses, Sochacki attacked appellant and they fell to the ground and struggled, but appellant never took out the handgun that he carried inside his coat. As the Commonwealth points out, “the jury was presented with two drastically opposed accounts of what occurred: either appellant assaulted Sochacki and attempted to shoot him with a loaded pistol; or Sochacki assaulted appellant, and appellant was only defending himself” (Brief for Appellee at 10-11). The former version supports a conviction of aggravated assault under § 2702(a)(1); the latter version indicates that appellant did not commit an assault against Sochacki. In neither case would it be rational for the jury to conclude that appellant merely “attempt[ed] by physical menace to put another in fear of imminent serious bodily injury.”

Appellant nevertheless argues that on the basis of this testimony “the jury may have believed that [he] pointed a gun at the complainant [Sochacki] while disbelieving or having a reasonable doubt as to whether the complainant actually saw or heard the gun’s trigger being pulled” (Brief for Appellant at 20). Therefore, appellant argues, the jury could have found him guilty of simple assault under § 18 Pa.C.S. § 2701(a)(3) for having attempted by physical menace to put Sochacki in fear of imminent serious bodily injury. This Court has held, however, that the mere possibility that the jury may believe part but not all of the Commonwealth’s testimony is not sufficient to require the trial court to charge the jury on a lesser offense than that which the prosecution witness testifies has been committed. Commonwealth v. Showalter, 275 Pa.Super. 1, 4, 418 A.2d 580, 582 (1980) [citing Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 358 A.2d 98 (1976), alloc, denied ]. Because the court’s instructions should invite the jury to reach a rational rather than an irrational conclusion, Commonwealth v. Thomas, supra, we hold that appellant was not entitled to jury instructions on the offenses at issue and that trial counsel was not ineffective for failing to request such instructions.

Next, appellant contends that trial counsel rendered ineffective assistance by representing appellant’s brother, Donald Ferrari, as well as appellant. Appellant and his brother were tried together. Appellant had been charged with aggravated assault, recklessly endangering another person, and simple assault. He was found guilty of the first and second of these offenses and not guilty of the third. Donald Ferrari had been charged with two counts of simple assault as a result of the events of April 26, 1987 and was acquitted on both counts. Appellant maintains that the existence of inconsistent defenses, along with the difference in severity of the offenses with which the brothers were charged, created an actual conflict of interest that worked to his detriment.

We disagree. Appellant testified that on the night in question Sochacki, without provocation, began to curse and insult him, and appellant cursed him in return. Sochacki then tried to hit appellant with the door of his (Sochacki’s) car. Failing in that, Sochacki got out of the car, swung a bottle at appellant, and then charged at appellant, whereupon, in appellant’s words, “we started fighting to the ground” (T.T. at 124). At this point, appellant testified, Sochacki’s girlfriend, Joan Posa, jumped on his back and hit him in the back of the head, and another friend of Sochacki’s, William Bochonok, “grabbed me by the back of my collar and pulled me off of Sochacki; and I went back to the ground backwards” (T.T. at 124). According to appellant, Bochonok then ran into his house and Sochacki and Posa jumped into Sochacki’s car and, as he was getting up off the ground, began to drive toward him. Appellant testified that he escaped by jumping over a fence. He insisted that although he had a gun in a nylon case in his coat, he did not take the gun out of the case that night; rather, it fell out of his coat during his struggle with Sochacki.

Donald Ferrari, appellant’s brother, testified that he was riding past the scene on his motorcycle when he saw appellant running over the fence. He stopped to ask Sochacki, who was in his car, what was happening, and “the car just come swinging right at me, caught my feet; and I went down; and the car went over [the] top of my knee ...” (T.T. at 165). Sochacki then drove away, and appellant came to help his brother. Appellant confirmed his brother’s story, testifying that “[m]y brother had arrived on his motorcycle. He had seen the incident____ He walked down out into the street and John [Sochacki] pivoted the car backwards and ran his knee over with the car wheel” (T.T. at 126-27). Donald Ferrari denied having struck Sochacki or Posa with his motorcycle helmet, as was alleged by the Commonwealth.

This Court has held that an actual conflict of interest is evidenced “whenever during the course of representation, the interests of appellant—and the interests of another client towards whom counsel bears obligations—diverge with respect to a material factual or legal issue or to a course of action.” In Interest of Saladin, 359 Pa.Super. 326, 332, 518 A.2d 1258, 1261 (1986). No such conflict appears in the record of this case. Appellant’s testimony did not conflict with that of his brother; in fact, to the extent that Donald’s involvement in the incident overlapped with appellant’s, each confirmed the testimony of the other. Donald testified that Sochacki struck him with his car and that he, Donald, did not attack anyone. Appellant testified that Sochacki attacked him, that they struggled, and that he did not draw or point a firearm. With regard to the charge of simple assault, defense counsel argued to the jury that appellant had acted in self defense. The fact that appellant testified to a greater degree of involvement in the altercation than did Donald does not render their defenses inconsistent.

Nor are we persuaded by appellant’s argument that his interests diverged from his brother’s because he faced more numerous and more serious charges than did his brother. As evidence of divergent interests, appellant points to trial counsel’s statement during closing argument that “[Donald’s] case is a fairly simple case____ Now we move on to Robert’s case. We get a little more complicated there because, well, there are more charges and there are a lot more things happening, too” (C.T. at 13). Appellant suggests that “[o]n the basis of these assertions alone, the jury could have determined that even the defense attorney was somehow unsure of [appellant’s] innocence or guilt in relation to ... Donald’s” (Brief for Appellant at 28). We perceive this statement to be, to the contrary, an accurate assessment of the evidence and an attempt to prepare the jurors to consider a more complex situation and to resolve it in appellant’s favor. Accordingly, we conclude that appellant’s conflict of interest claim lacks arguable merit.

Appellant’s next claim is that trial counsel was ineffective for failing to call character witnesses to testify on appellant's behalf. Appellant maintains that at an evidentiary hearing he would establish that he had given trial counsel the names and phone numbers of potential character witnesses and that these persons were available and were prepared to testify that within the community appellant had a good reputation for peacefulness and honesty. He argues that because the outcome of the case turned on the credibility of witnesses, trial counsel’s failure to call identified character witnesses on his behalf, a decision which could have had no reasonable basis, constitutes ineffective assistance.

It is settled law that evidence of good character may suffice by itself to raise in the minds of the jury a reasonable doubt as to the defendant’s guilt, Commonwealth v. Simler, 320 Pa.Super. 342, 345, 467 A.2d 355, 357 (1983); Commonwealth v. Luther, 317 Pa.Super. 41, 49, 463 A.2d 1073, 1077 (1983), and this Court has held that where virtually the sole issue at trial is the credibility of the defendant versus that of the Commonwealth’s witnesses, counsel’s failure to seek to obtain the testimony of character witnesses constitutes ineffective assistance, Commonwealth v. Simler, supra; Commonwealth v. Luther, supra. Appellant’s claim, therefore, is not without merit.

However, a review of the record in the present case reveals that appellant’s testimony was not unsupported. As noted earlier, the testimony of appellant’s brother, Donald Ferrari, confirmed appellant’s testimony from the point at which Donald came on the scene. Appellant’s girlfriend, Jennifer Perrino, confirmed appellant’s testimony that Sochacki began to insult appellant, tried to hit him with the car door, swung a bottle at him and missed, and charged him, at which point the two began fighting, Sosa jumped on appellant’s back and began hitting him, and a person unknown to Perrino, apparently William Bochonok, tried to pull appellant off Sochacki. Perrino testified that she then ran to the home of Mike Williams, a friend of appellant, and told him that appellant was in a fight. According to Williams, when he arrived at the scene Sochacki “fired up his car and ... tried to run me over” (T.T. at 155), so Williams jumped onto the hood of another car. From this vantage point, he testified, he saw Sochacki aim his car at appellant, causing appellant to jump over a fence, and then aim the car at and strike Donald Ferrari. Finally, Donna Wharton, the mother of appellant and Donald Ferrari, testified that after the incident Donald’s knee appeared bruised and swollen and he used crutches for several days.

The testimony of these defense witnesses, taken as a whole, confirmed appellant’s version of the fight from beginning to end. The jury nevertheless chose to believe the testimony of the Commonwealth’s witnesses. Given these facts, we conclude that appellant has failed to show that “but for the act or omission challenged [i.e., trial counsel’s failure to call character witnesses on appellant’s behalf], there is a reasonable probability that the result would have been more favorable to appellant.” Commonwealth v. Wells, 396 Pa.Super. at 78, 578 A.2d at 31-32. Because appellant has failed to demonstrate that he was prejudiced by trial counsel’s omission, his claim of ineffectiveness fails.

Finally, appellant argues that trial counsel was ineffective in failing to object and to request a mistrial or cautionary instructions when the prosecutor, in his closing argument, allegedly vouched for the credibility of the Commonwealth’s witnesses by saying that their testimony “is the truth.” Appellant also contends that trial counsel compounded his ineffectiveness by failing to raise this issue in post-trial motions.

Our resolution of this issue is controlled by the recent opinion of our Supreme Court in Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303 (1991). The issue before the Court in Johnson was whether trial counsel was ineffective in failing to object when, during closing argument, the prosecutor characterized appellant as a liar. Finding the ineffectiveness claim to be meritless, the trial court explained as follows:

While the prosecutor did state during his closing argument that appellant had lied, when taken in context and after review of all of the evidence, it becomes clear that his remarks were neither unfair nor prejudicial. Clearly, the outcome in this case involved a credibility determination by the jury. The victim and appellant were the only two who testified regarding the events of that evening [when the victim was allegedly raped by appellant]____ The jury was acutely aware that the victim’s and appellant’s stories conflicted____ Moreover, it was defendant’s counsel who first commented on the credibility of the witnesses. Indeed, defense counsel quite clearly indicated his belief that one of the prosecution witnesses was in fact lying. The prosecutor then responded to this attack on one of the Commonwealth’s witnesses____ Viewed in this context, the prosecutor’s comments were neither unfair nor prejudicial, but, merely reinforced the

fact that the jury had been presented conflicting stories. Id., 527 Pa. at 127, 588 A.2d at 1307. The Court added, however, that although the unusual circumstances of the case warranted such a holding, it was not the Court’s intent to sanction such comments generally. Id., 527 Pa. at 128, 588 A.2d at 1308.

The case before us presents a very similar scenario. In his closing argument defense counsel emphasized the importance of the jury’s judgment of credibility, stating, “Was Mr. Sochacki’s story believable? Or is [appellant’s] story believable?” (C.T. at 18). While pointing out what he considered to be the unlikely aspects of the testimony of the Commonwealth’s witnesses, defense counsel repeatedly asked, “Does that make sense to you?” (C.T. at 16), “Does any of that make sense to you?” (C.T. at 17), “Is that believable testimony?” (C.T. at 17). In response, the assistant district attorney took the same approach. After recounting numerous aspects of the defense witnesses’ testimony and asking, as had defense counsel, “Does that make any sense ... ?” (C.T. at 32), he stated, “These are all reasons, ladies and gentlemen, why I suggest to you the Commonwealth’s testimony makes more sense. It is the truth” (C.T. at 37). After making this statement, the assistant district attorney continued to point out unlikely aspects of the defense testimony and continued to ask, “Does that make any sense?” (C.T. at 38). No undue emphasis was placed upon his reference to “the truth.” Although the better course would have been for the prosecutor to avoid the challenged remark, we hold, as did the Supreme Court in Johnson, that the remark was not prejudicial. Appellant’s claim of ineffectiveness therefore fails.

Judgment of sentence affirmed.

      . Although appellant sometimes refers to one or both of these offenses as simply "lesser" offenses, we do not perceive in his argument any distinction between "lesser offenses” and "lesser included offenses.”

      . Section 2701(b) has since been amended to provide, in addition to the classifications just stated, that simple assault is a misdemeanor of the first degree when committed against a child under 12 years of age by an adult who is 21 or older.

      . Although 18 Pa.C.S. § 2702 was amended in 1986, after this Court’s decision in Ritchey but before the filing of charges against appellant, the wording of subsections (a)(1) and (a)(4) was not changed.

      . Because the closings and the jury charge appear in a separately numbered transcript, the abbreviation T.T. is used to denote the trial transcript and the abbreviation C.T. is used to denote the "closings transcript.”

      . The simple assault charge was based on 18 Pa.C.S. § 2701(a)(1), "attempt[ingj to cause or intentionally, knowingly or recklessly causing] bodily injury to another[.]"


author: CERCONE, Judge:

text:
    593 A.2d 853
    COMMONWEALTH of Pennsylvania v. John Stanley REEB III, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed June 4, 1991.
    Reargument Denied Aug. 8, 1991.

      A. Bruce Neuman, Media, for appellant.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from the judgment of sentence of the Court of Common Pleas of Delaware County. Appellant was sentenced to a term of incarceration of thirty (30) days to twenty-three (23) months in the Delaware County Prison following his conviction after a jury trial of driving under the influence of alcohol to a degree which rendered him incapable of safe driving. The jury acquitted appellant on a charge of operating a motor vehicle while the amount of blood alcohol by weight was 0.10% or greater. The minimum sentence which the lower court imposed was based on the court’s determination that appellant was a second offender under 75 Pa.C.S.A. § 3731(e)(1)(h) because of a prior (1985) DUI conviction. Following the judgment of sentence, appellant filed the instant timely appeal.

On appeal, appellant argues that the lower court erred in sentencing him as a second offender under section 3731(e)(1)(h), infra, because he was not informed at his 1984 Accelerated Rehabilitative Disposition (ARD) hearing that a subsequent DUI conviction within seven years of his first conviction would be regarded as a second conviction for sentencing purposes. Appellant argues that since he was not on notice of such a consequence, he cannot be sentenced as a second offender. Appellant contends that in order for the enhanced sentencing provisions of section 3731(e)(1)(h) to apply, that the defendant must be informed at his first ARD hearing that participation in the ARD program will be the equivalent of a first conviction for sentencing purposes in the event of a subsequent DUI conviction.

Section 3731 of the Vehicle Code relates to driving under the influence of alcohol or controlled substances and includes four separate offenses. See § 3731(a). Section 3731(e), relating to penalties for such offenses, provides in pertinent part:

(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(1) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

75 Pa.C.S.A. § 3731(e).

Rules 175 through 186 of the Pennsylvania Rules of Criminal Procedure relate to Accelerated Rehabilitative Disposition in court cases. Pa.R.Crim.P., Rules 175-86, 42 Pa.C.S.A. Rule 178, entitled “Hearing, Explanation of Program,” provides specifically as follows in regard to the ARD hearing.

Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, the defendant’s attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, it shall be ascertained on the record whether the defendant understands that:
(1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers the defendant an opportunity to earn a dismissal of the pending charges;
(2) should the defendant fail to complete the program satisfactorily, the defendant may be prosecuted as provided by law; and
(3) the defendant must agree that, if accepted into the program, the defendant waives the appropriate statute of limitations and the defendant’s right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.
Comment: Although acceptance into an ARD program is not intended to constitute a conviction under these rules, it may be statutorily construed as a conviction for purposes of computing sentences on subsequent convictions. See, e.g., Vehicle Code § 3731(e)(2)____

Pa.R.Crim.P., Rule 178, 42 Pa.C.S.A.

In interpreting these enactments, we look to the following rules. The words of a statute must be construed according to their plain meaning. Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). “Where the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). Although not controlling, headings may be used in the construction of statutes. H.P. Starr & Sons, Inc. v. Stepp, 206 Pa.Super. 15, 211 A.2d 78 (1965). The Pennsylvania Rules of Criminal Procedure are to be construed in accordance with the rules of statutory construction. Pa.R.Crim.P., Rule 2, 42 Pa. C.S.A.

Viewing the statute under the above standards, we find section 3732(e)(2) to be clear and unambiguous in its terms. The statute straightforwardly indicates that acceptance of ARD in a DUI prosecution “shall” be considered a first conviction for purposes of sentencing when a defendant has been convicted of a subsequent DUI offense. The statute does not by its terms require that a defendant be specifically notified of this fact.

Rule 178 is also clear. That rule sets forth the explanation of the ARD program which must be given at the ARD hearing. Under the rule, three concepts must be explained to the defendant “on the record” for the purpose of the defendant’s understanding of those concepts. See Rule 178, supra. An explanation of the effect of acceptance of ARD on a subsequent DUI conviction is not one of those three specifically enumerated items. Where certain things are specifically designated in a statute, all omissions should be understood as exclusions. Commonwealth v. Charles, 270 Pa.Super. 280, 411 A.2d 527 (1979). The conclusion may thus be drawn that the legislature did not intend to require that the effect of ARD program acceptance be specifically explained at the ARD hearing.

The question arises as to the effect of the comment to Rule 178. It could be argued that the placement of this comment within Rule 178, which sets forth the notification requirements for the ARD hearing, indicates that notice must be provided at that hearing of the effect of ARD acceptance on future DUI convictions. We do not find the comment to possess this far-reaching meaning. Comments by the Supreme Court’s criminal rules committee are not binding on the Superior Court, although those comments may be considered as effective aids in interpreting the meaning of the rule. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982).

The comment to Rule 178 does not specifically require that the notice which appellant desires be given. To imply a requirement of such notice, it would be necessary to add this requirement to the already existing provisions of the rule. Our duty to interpret statutes does not include a right to add provisions which the legislature has omitted. See Commonwealth v. Rieck Investment Corporation, 419 Pa. 52, 213 A.2d 277 (1965) (it is not for courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include); Altieri v. Allentown Officers’ and Employees’ Retirement Board, 368 Pa. 176, 81 A.2d 884 (1951) (same); Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329 (1950) (court cannot, under its powers of construction, supply omissions in a statute, especially where it appears the matter may have been intentionally omitted). The letter of a statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S.A. § 1921.

Appellant claims that the language of this court in previous decisions requires that notice be given to defendants as to the effect of ARD acceptance on the penalties for subsequent offenses. See Commonwealth v. Stewart, 374 Pa.Super. 256, 261, 542 A.2d 1010, 1013 (1988) (“[u]nder the new DUI law, defendants are given notice of the sentence enhancement effect of ARD”); Commonwealth v. Becker, 366 Pa.Super. 54, 63, 530 A.2d 888, 892 (1987), appeal denied 520 Pa. 586, 551 A.2d 213 (1988) (quoting Frost, infra)) Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985) (“Defendants who accept ARD for drunk driving are now told that an ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years.”).

We find these cases unpersuasive to a conclusion that notice of the effect of ARD acceptance is required. In none of these cases did the court undertake an analysis of the specific provisions of the relevant statute and rules to ascertain whether they require the notice which appellant desires. The conclusion that such notice must be given comes from a statement of the court in Frost, to the effect that the practice under the present drunk driving law is that defendants are given notice of the future effect of ARD acceptance at the ARD hearing. Id., 342 Pa.Superior Ct. at 178, 492 A.2d at 450. This statement was not based on any legal authority, but was rather a conclusion drawn by the court apparently upon its taking of judicial notice of purported practice under the new act. In the absence of a basis in statute or rule requiring such notice, we cannot legislate such a requirement, despite the reasoning of the court in Frost and other cases which have relied upon it. Such a decision would go beyond our proper role in the interpretation of legislative enactments. See Commonwealth v. Rieck Investment Corporation, supra.

Appellant also contends that Rules 185 and 186 of the rules of criminal procedure mandate a finding that notice be provided of the future consequences of an ARD acceptance. Those rules provide in pertinent part:

Rule 185. Procedure for Obtaining Order for Dismissal Upon Successful Completion of the Program
When the defendant shall have completed satisfactorily the program prescribed and complied with its conditions, the defendant may move the court for an order dismissing the charges____

Pa.R.Crim.P., Rule 185, 42 Pa.C.S.A.

Rule 186. Expungement Upon Successful Completion of ARD Program
(a) When the judge orders the dismissal of the charges against the defendant, the judge shall also order the expungement of the defendant’s arrest record----

Id., Rule 186.

We do not agree that these rules require a finding that the court conducting the ARD hearing must specifically inform the defendant of the future sentencing effect of his ARD acceptance. A statute must be construed so as to give effect to all its provisions if possible. Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983); 1 Pa.C.S.A. § 1922(2). In addition, statutes which are in pari materia shall be construed together, if possible, as one statute. Id., § 1932(b). Statutes are in pari materia “when they relate to the same persons or things or to the same class of persons or things.” Id., § 1932(a).

In the instant case, Rules 178, 185, and 186, and section 3732(e)(2), supra, are in pari materia as they all relate to a criminal defendant’s acceptance of ARD and the various consequences thereof. It is possible to read these statutes so as to give effect to each of their provisions as section 1932(b) requires. Rules 185 and 186 describe the possible outcomes of the successful completion of the ARD program, i.e., dismissal of the charges and expungement of the arrest record. Section 3732(e)(2) describes an alternative consequence of ARD program participation: the use of an ARD acceptance as a first offense for purposes of sentencing on a subsequent DUI conviction. The fact that Rules 185 and 186 provide for dismissal of charges and expungement after dismissal does not amount to a mandate that the alternative consequence be explained to the defendant on the record at the ARD hearing. In Rule 178, supra, the legislature specifically provided that notice be given concerning the possibility of dismissal. It did not provide that notice of possible expungement be given, as it did not provide for notice of the consequence of ARD acceptance on a subsequent, but as yet non-existent, DUI conviction. As desirable as such practice may be, there is simply no legislative provision requiring it. We will not go beyond our authority to interpret statutes to impose such a requirement.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . Id. § (a)(4).

      . Act of December 15, 1982, P.L. 1268, No. 289, effective January 14, 1983, referring to the present 75 Pa.C.S.A. § 3731.

      . Although the Pennsylvania Supreme Court denied allocatur in Commonwealth v. Becker, supra, this denial does not amount to a holding by the supreme court that notice to the defendant of the enhancement effect of section 3731(e)(2) is required. This court in Becker specifically noted that it did not decide "whether a defendant who was not informed of § 3731(e)(2) at the time he agreed to enter ARD may be sentenced as a recidivist.” 366 Pa.Super. at 63, 530 A.2d at 892.


author: OLSZEWSKI, Judge:

text:
    593 A.2d 857
    J. KINDERMAN & SONS, INC., t/a Brite Star Manufacturing Company, Appellees, v. UNITED NATIONAL INSURANCE COMPANY and Lawrence Okoniewski, Jr., Administrator of the Estate of Christine Okoniewski, Deceased, and Lawrence A. Okoniewski, Jr., and Linda Okoniewski, as Individuals in Their Own Right, and Stanton Discount Pharmacy, Inc. and George Kellan, t/a Smyna Discount and/or Smyrna Discount Drugs and Nathan Schecter and Sons and J. Orman, Inc., and World Traders and Kiu Hung Industrial Co., Ltd. and the Wirkman Company and Republic Hogg Robinson of Pennsylvania, Inc. Appeal of UNITED NATIONAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 7, 1991.
    Reargument Denied Aug. 8, 1991.

      Frederick T. Lachat, Philadelphia, for appellant.
    Roger F. Cox, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in favor of J. Kinderman & Sons, Inc. (hereafter “Kinderman”) and against United National Insurance Company (hereafter “United”) entered on July 2, 1990. This case arises from litigation commenced following Christine Okoniewski's death, which was caused by a plastic toy which lodged in her throat.

The facts of this case are as follows. On November 20, 1982, Christine Okoniewski, an 11-month-old child, removed a plastic plug from a “waterball” Christmas product, imported and distributed by Kinderman, which lodged in her throat causing her death. The estate of Christine Okoniewski filed a products liability lawsuit against a number of parties, including Kinderman.

The insurance policies are the subject of this appeal. Kinderman purchased two insurance policies for coverage of product liability claims: Ambassador Insurance Company (hereafter “Ambassador”), Policy No. GLA 794507; and a commercial umbrella liability policy with United, Policy No. CU-5016. (Trial court opinion at 1.) Kinderman’s policy with Ambassador provided coverage of $1,000,000 for each occurrence/aggregate combined single limit. Id. Kinder-man’s umbrella policy provided coverage of $4,000,000 for each occurrence or in the aggregate, “in excess of the applicable underlying (or retained) limit hereinafter stated ...” Id., quoting, United Policy, Part I. United’s policy was limited to $10,000.

Originally, Ambassador undertook Kinderman’s defense in the lawsuit but later withdrew due to insolvency and subsequent liquidation. (Trial court opinion at 2.) Kinder-man sought indemnification from United above the limit of $10,000, but United asserts a defense subject to a reservation of rights. Id.

Appellant raises two issues for our consideration:

1. Whether an excess liability insurance carrier has a duty to “drop-down” in order to provide coverage below the underlying limits in the event of the insolvency of the primary insurance carrier?
2. Whether the language in the United National Commercial Umbrella Liability Insurance Policy issued to J. Kinderman & Sons, Inc. is ambiguous, therefore, United National is required to “drop-down” in order to provide coverage below the underlying limits of liability as a result of the insolvency of the primary carrier?

(Appellant’s brief at 3.) On July 2, 1990, the lower court entered summary judgment in favor of Kinderman and against United. This timely appeal followed.

Appellant United contends that its insurance policy does not provide that it will “drop-down” to afford any coverage below the underlying limits of the primary insurance coverage in the case of insolvency of the underlying insurer. United argues that the liability of Kinderman must exceed Ambassador’s limit of $1,000,000, not $10,000, before United will be responsible for appellee’s defense. The United policy provides that:

J. Underlying Insurance. If underlying insurance is exhausted by any occurrence, the Company [United] shall be obligated to assume charge of the settlement or defense of any claim or proceeding against the insured resulting from the same occurrence but only where this policy applies immediately in excess of such underlying insurance, without the intervention of excess insurance of another insurer.

(United Policy, Provision J, R. 9a.)

The Pennsylvania Supreme Court enunciated principles in Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), governing the interpretation of insurance contracts. In Standard, supra, the Pennsylvania Supreme Court stated the principles to be applied when interpreting insurance contracts:

The task of interpreting a contract is generally performed by a Court rather than by a jury. The goal of that task 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 provision 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.

Id., 503 Pa. at 304-305, 469 A.2d at 566 (citations omitted).

The trial court concluded that United contracted to provide coverage where there was no “underlying insurance” and United must provide coverage for charges above the retained limit of $10,000. In reaching its conclusion, the trial court relied on Michael Luko and Independent Pier Company v. Lloyd’s of London, et al., 393 Pa.Super. 165, 573 A.2d 1139 (1990), which held that the insolvency of a primary insurer did activate coverage and caused excess policy to “drop down” and provide some of what was the primary coverage. (Trial court opinion at 3.) In Luko, supra, this Court found that the insurance should drop down to provide coverage when the underlying insurance became insolvent since the umbrella insurance contracted to provide coverage at a limit if there was no underlying insurance. The instant case is distinguishable from Luko, supra, in that the insurance contract in Luko specifically provided that a consortium would provide coverage where there was no underlying insurance. In the instant case, United did not provide coverage where there was no underlying insurance.

After a review of the insurance policy and briefs submitted by the parties, we find that the insurance contract between Kinderman and United is not ambiguous. United did not contract to provide coverage at the retained limit of $10,000 if there was no underlying insurance. The United policy provides:

O. Maintenance of Underlying Insurance. It is warranted by the insured that the underlying policies listed in Schedule A, or renewals or replacements thereof not more restricted, shall be maintained in force during the currency of this policy, except for any reduction of the aggregate limits therein solely by payment of claims with respect to occurrences happening during the period of this policy. In the event of failure by the insured so to maintain such policies in force or to meet all conditions and warranties subsequent to loss under such policies, the insurance afforded by this policy shall apply in the same manner it would have applied had such policies been so maintained in force.

(United Policy, Provision O, R. 9a.) In Schedule A, Ambassador is listed as providing underlying insurance for products liability claims with coverage of $1,000,000. (R. 10a.) United’s liability does not attach until the underlying insurance carrier has paid the amount of the underlying insurance, in this case $1,000,000. The intent of the parties is clear from the insurance contract; United did not intend to provide coverage until after the underlying insurance carrier’s amount was fulfilled. The policy provides that in the case the insurance is not maintained, the insurance coverage would be the same as if the insured maintained underlying insurance. United’s coverage does not drop down simply because the underlying insurer has become insolvent. For the foregoing reasons, we reverse the lower court’s decision. We hold that United’s coverage for products liability claims is for such liability as exceeds $1,000,-000.

Order reversed. Jurisdiction relinquished.