source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    551 A.2d 283
    Mary A. JEFFERSON, Appellant, v. STATE FARM INSURANCE COMPANIES and Blue Cross of Greater Philadelphia and Health America Plan and Equitable Life Assurance.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed Dec. 8, 1988.

      John Enright, Philadelphia, for appellant.
    Robert Hayes, Philadelphia, for Blue Cross, appellee.
    Before CIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   CIRILLO, President Judge:

This is an appeal from a summary judgment entered by the Court of Common Pleas of Philadelphia County in favor of appellee Blue Cross of Greater Philadelphia and against appellant Mary Jefferson.

Mary Jefferson was hit by a van in February of 1984. Because of injuries she allegedly sustained to her left shoulder and hip, she underwent extensive medical and hospital treatment. At the time of her injury, Jefferson was insured for hospitalization expenses under a group insurance policy between her employer, the Philadelphia School District, and Blue Cross of Greater Philadelphia, and for medical expenses by Equitable Life Assurance Society. Shortly before the accident, Jefferson had voluntarily terminated her coverage with Blue Cross and Equitable, and had switched her insurance coverage to an HMO plan provided by Health America. The termination was to become effective on March 15, 1987.

Jefferson submitted claims for her hospital and medical expenses to Blue Cross, Equitable, and Health America, as well as State Farm Insurance Company, her No-Fault automobile insurer. State Farm refused payment of the claims, contending that her primary insurers should pay her medical and hospital expenses. Blue Cross, Equitable, and Health America also refused to pay the claims. Blue Cross, the only appellee here, claimed that Jefferson was not insured for any expenses arising after March 15, 1987, the date upon which her termination became effective. Further, it noted that it had never received any notification from the health care providers of the services in question, only a letter from Jefferson’s attorney, and therefore, in any case, it was unable to determine which of the claims made by Jefferson were for expenses covered under the insurance policy.

The parties agreed to arbitrate the matter, and the arbitrator found for the defendant insurers. Jefferson appealed the arbitrator’s decision to the Court of Common Pleas of Philadelphia County. Appellee Blue Cross moved for summary judgment, denying that there was any issue of material fact, and arguing that as a matter of law, it was not liable for any expenses arising after the termination date. Jefferson argued that an issue of material fact did exist, although she did not state what that issue was, and also argued that if no factual dispute did exist, she, rather than Blue Cross, was entitled to judgment as a matter of law. She contended that the policy was an occurrence policy, and that therefore, the insurer was liable for all expenses arising out of any injury occurring during the policy period. The trial court granted summary judgment for Blue Cross, finding that the policy covered expenses arising during the policy term, rather than injuries occurring during that period. Jefferson then appealed to this court.

Jefferson argues the same issues to us on appeal as she argued in her motion contesting summary judgment. In reviewing a grant of summary judgment, the appellate court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. To uphold the trial court’s grant of summary judgment, not only must there be no genuine issue of material fact, but the moving party must have been entitled to summary judgment as a matter of law. Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984).

Here, Jefferson argues that the case involves genuine issues of material fact with regard to the termination clause included in her policy which should have resulted in the denial of Blue Cross’ motion for summary judgment. Jefferson is not, however, explicit on what those material issues of fact are. Rather, she seems to argue that the trial court erred as a matter of law in granting summary judgment because the policy provision upon which it relied in ruling for Blue Cross was ambiguous. She argues that the provision in question could have reasonably led her to believe that her coverage would continue after the policy terminated on March 15, 1987, because the injury which gave rise to those expenses occurred during the policy term.

The interpretation of an insurance policy is a question of law for the court to consider. Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Super. 116, 123, 386 A.2d 535, 538 (1978). The policy must be read in its entirety, and the words must be given their plain and proper meaning. It should be read to avoid ambiguities if possible, and the language should not be tortured to create them. Monti v. Rockwood Insurance Co., 303 Pa.Super. 473, 476, 450 A.2d 24, 25 (1981). A provision is ambiguous only if reasonably intelligent persons considering it in the light of the entire policy could honestly differ as to its meaning. Adelman, 255 Pa.Super. at 123, 386 A.2d at 538. Any truly ambiguous term must be given a construction favorable to the insured. Id.

The policy provision in question is entitled, “Termination Without Claim Prejudice,” and reads as follows:

When this agreement is terminated, except for termination by incorrect information or misrepresentation, and a Subscriber is receiving in-patient benefits on the date of such termination, benefits will continue to be provided only to the date of discharge or expiration of eligible benefit days, whichever is earlier.

Jefferson argues that the title of the policy creates an ambiguity; she claims it could be read to state that the expiration of the insurance policy will not terminate benefits, and that this could lead a reasonable person to believe that entitlement to insurance benefits are governed by whether the date of the accident falls within the policy period. We disagree.

According to a Michigan court analyzing the somewhat sparse and divergent case law on this subject, courts have come to decisions in these situations by analyzing the risk insured in each case. See Auto-Owners Insurance Co. v. Blue Cross & Blue Shield of Michigan, 182 Mich.App. 800, 349 N.W.2d 238 (1984). Courts have found coverage to extend beyond the policy period in cases in which the risk insured could have been construed as expenditures arising out of an accident. Id. at 817, 349 N.W.2d at 246. In those cases, the benefit is held to have vested when the accident occurred. See Myers v. Kitsap Physicians Service, 78 Wash.2d 286, 474 P.2d 109 (1970). We agree with the Michigan court that the policy considerations behind permitting benefits under a policy which insures loss related to accident, injury, illness, and so forth, to continue past the effective date of the policy, are not the same as those governing a situation in which medical and hospital expenses are the risks insured. In eases in which the risk insured are the expenses arising out of medical or hospital services, the benefits are cut off when the policy period expires:

[Cjoverage was provided to the plaintiff as a Blue Cross/Blue Shield group subscriber. Continuation of that coverage was to be furnished in consideration of payment in advance of the rates applicable for the type and extent of coverage specified in the contract. Thus, it appears coverage, to be effective, is dependent upon continued payment of premiums by the subscriber. It seems, therefore, axiomatic that upon termination of the contracts and cessation of premium payments, the only coverage available is that stipulated in the contracts.

Blue Cross of Florida, Inc. v. Dysart, 340 So.2d 970, 972 (Fla.1976); see also Bartulis v. Metropolitan Life Insurance Co., 72 Ill.App.2d 267, 218 N.E.2d 225 (1966). This Commonwealth has already indicated that where a clear contract provision provides for the termination of benefits as of the cancellation date of the policy, that termination is not contrary to public policy. See Guardian Life Insurance Co. v. Zerance, 505 Pa. 345, 354, 479 A.2d 949, 953-54 (1984).

The Third Circuit Court of Appeals appears to have followed these considerations in Houghton v. American Guaranty Life Insurance Co., 692 F.2d 289 (3rd Cir.1982). In that case, the court considered an insurance policy which the insured claimed was ambiguous concerning the risk that had been insured. After examining the terms of the entire contract, the court affirmed the district court’s decision that the policy was ambiguous, finding that the policy did not clearly manifest the intention of both parties to enter into a contract under which the insurer was obligated to pay the insured only those expenses arising during the policy period. Id. at 292. The court pointed out that under the policy provision entitled, “BENEFITS,” an insured could reasonably have been led to believe that the policy insured payment of certain medical expenses up to the maximum benefit, regardless of the expiration of the term of the policy. Id. Further, the court pointed out that there was no definition of the term “loss,” in the policy, and that the phrase, “while this policy is in force,” which was included in the definitions of the terms, “sickness” and “injury,” could have been construed to limit those terms, rather than the term, “loss.” Id. at 292-93. For these reasons, the court construed the policy in favor of the insured, and affirmed the district court’s grant of summary judgment in her behalf. Id. at 296.

Jefferson contends that the Third Circuit placed weight on the determination that the policy provision which addressed continuation of benefits after termination was ambiguous. She argues that the court found the provision to be ambiguous because of its title, which referred to the extension of benefits, when the provision actually limited those benefits, and that its discussion should be given great weight here because the caption of the similar provision in this policy quoted above also creates a similar ambiguity. We note that although the Third Circuit mentioned the provision, and indicated in a footnote that it would have had serious reservations about giving that provision effect because of the misleading nature of its caption, it refused to consider the provision because it was raised for the first time on appeal. Id. at 295 n. 5. The court's discussion is dicta; we need not consider it. In any case, the court’s holding that the policy was ambiguous was not based on the title to this policy provision, but upon the court’s examination of the policy in its entirety, as was proper.

An examination of the policy before us leads us to the conclusion that there is no ambiguity concerning the risk insured by the policy. It is clear that the insurer undertook to insure hospital related expenses rather than loss arising from injuries. The policy describes the benefits provided to the insurer in terms of “services” provided by the hospital or extended care facility. Under the policy, an insured may be eligible for either “in-patient” or “out-patient” benefits. Article I of the policy, which deals with in-patient benefits, states:

All benefits provided under this Agreement for in-patients shall be available to each Subscriber for not more than the number of days specified below for each benefit period, based on the Subscriber’s classification and length of continuous membership in Blue Cross at the time of admission.

“Admission” is defined in the definition section of the policy as “the actual entry into a hospital or extended care facility of a Subscriber who is to receive in-patient services____” Section 2 of Article I goes on to discuss benefits available in Blue Cross member hospitals, listing them as accommodations, “[a]ll additional services usually provided and billed for by hospitals ... required solely for the institution and/or the application of therapy for the condition for which hospitalization is required,” including but not limited to meals, laboratory work, x-rays, transplant services, newborn care, ambulant care, and diagnostic study. Article I also outlines benefits available in hospitals connected to other Blue Cross plans, in non-member hospitals, and in member and non-member extended care facilities:

Section 3. Benefits in Contracting Hospitals of any other Blue Cross Plan
Benefits will be provided for in-patient hospital services furnished by a contracting hospital or any other Blue Cross Plan____
❖ * # * * #
Section 4- Benefits in Non-Member Hospital
Upon receipt of a valid bill, itemized as required by Blue Cross, for the Subscriber’s hospitalization as an in-patient in a Non-Member Hospital, Blue Cross will pay such Subscriber an allowance of up to $100.00 per day for the first day, and up to $50.00 per day for each day thereafter toward the hospital’s regular charges.

Again, these benefits are defined in terms of services provided by the facility, rather than in terms of loss resulting from injury sustained by the insured.

Article II discusses out-patient benefits in member and non-member hospitals, as well as contracting hospitals of another Blue Cross plan in the same manner:

Section 1. Benefits in Blue Cross Member Hospitals
[Certain listed] benefits when provided to the Subscriber as an out-patient of a Blue Cross Member Hospital are subject to the payment by the Subscriber of a $10.00 deductible toward the hospital’s charges for such services....

The provision for out-patient benefits in contracting hospitals of other Blue Cross plans and non-member hospitals also requires the receipt of a valid and itemized bill; the insurer will then pay the insured seventy-five percent of the out-patient charges that would be covered in a member hospital.

These provisions indicate that the risk insured by the insurer was the expense incurred by hospitalization or treatment in affiliation with a hospital arising during the policy period. Therefore, unless the contract itself stipulates for coverage after the cessation of the premium payments, that is, after policy termination, summary judgment was properly granted. As we have stated, the policy does have an explicit provision which extends benefits, under certain conditions, beyond the date the policy is terminated. However, the provision is unhelpful to Jefferson here. The policy provides that if the insured is receiving in-patient benefits at the time of the policy’s termination, those benefits continue until that insured’s date of discharge, or until the insured’s eligible benefit days — as outlined under Article I— are expended, whichever is sooner.

This policy provision is similar to one considered by the Pennsylvania Supreme Court in Guardian Life Insurance Co. v. Zerance, supra. In that case, the court was called upon to determine whether or not a provision in a group disability policy was ambiguous. The provision provided for benefits to continue under the provision if the insured was totally disabled and under the care of a physician on the date of the policy termination. Zerance, 505 Pa. at 349, 479 A.2d at 951. The insured claimed that his right to receive benefits vested when he became disabled under the terms of the policy. The court found that the question was not whether the insured was entitled to benefits under the policy, but rather whether the cancellation of the policy terminated that entitlement:

The insured’s right to benefit payments can rise no higher than as provided by the terms of the policy. Under the policy, cancellation extended the right to benefits, subject to the provisions extending benefits in particular cases. When the insurance terminated for any reason other than non-payment of premium or exhaustion of benefits [two exceptions stated within the termination provision] the policy provided for “coverage after termination” which extended the insurance coverage until, “the date total disability ends, but in no event beyond the last day of the calender year next following the calender year in which [the] insurance terminated.” Where the policy language is unambiguous, a court cannot adopt a construction which conflicts with the clear meaning of the language---- Language in a policy that is clear cannot be interpreted to mean other than what it plainly says____ The language in the policy in question is clear and unambiguous and must be enforced as written.

Id., 505 Pa. at 353, 479 A.2d at 953.

Like the supreme court in Zerance, we find no ambiguity in either the caption or the substance of the termination provision before us. We do not find the caption of this provision to be misleading. The provision it describes outlines those instances in which the policy may be terminated without prejudice to the insured’s claim. Although we have found that policy provisions are at times misleading, and therefore should be construed in favor of the insured, we have never intimated that an insured may rest upon claims that the title of a provision was vague without considering its substance. There is nothing vague about the provision in question, and when read in conjunction with its caption, the plain meaning of both is clear. To construe this section in such a manner as to hold that the insured had a reasonable expectation that the claim would continue to be valid after the expiration date of the policy would be tortuous indeed. “We may not rewrite the insurance policy contract, under the guise of judicial interpretation, to expand the coverage beyond that as provided in the policy. Id. Because Jefferson does not meet the requirements for continued coverage under the provision, her benefits were properly extinguished upon the date her cancellation of the policy became effective.

The order of the trial court granting summary judgment is affirmed.


text:
    551 A.2d 288
    COMMONWEALTH of Pennsylvania v. Steven CUNNINGHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed Dec. 8, 1988.

      Martin J. Cunningham, Jr., Norristown, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   CIRILLO, President Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, sentencing appellant Steven Cunningham to pay a fine of two hundred dollars and the costs of prosecution for the offense of driving while his license was suspended. We affirm.

Appellant Cunningham was initially charged with and found guilty of driving while under suspension (DUI related), at a summary trial before a district justice. He appealed this summary conviction to the Court of Common Pleas of Montgomery County; in a trial de novo, that court found him guilty of driving while under suspension. In response to Cunningham’s argument on post-trial motions that he had not been charged with the offense for which he was convicted, the court of common pleas stated that driving while under suspension was a lesser included offense of of driving while under suspension (DUI related). Therefore, according to the court, no amendment to the citation issued to Cunningham was necessary, and the conviction was proper. The trial court denied the post-trial motions, and Cunningham appealed to this court.

Cunningham argues on appeal that the function of the court of common pleas in hearing an appeal from a summary conviction is to find the defendant either guilty or not guilty. He also argues that the court did not have the authority to convict him for a violation of 75 Pa.C.S. § 1543(a), when he had been tried and found guilty of a violation of 75 Pa.C.S. § 1548(b) in summary proceedings. Lastly, he claims that in finding him guilty of that offense, the court of common pleas was in contravention of Pennsylvania Rule of Criminal Procedure 51. We disagree with appellant’s arguments, and affirm the judgment of sentence.

Cunningham’s arguments seem to be based on the premise that in hearing an appeal from a summary judgment conviction, the court of common pleas may only determine whether or not a defendant is guilty of the charges from which he appeals. Cunningham argues that the trial court erred in finding him guilty of an offense not included in the citation. He points out that the Pennsylvania Rules of Criminal Procedure provide ample opportunity to the arresting officer or district justice to amend the citation, see Pa.R.Crim.P. 90, and that this was not done in his case.

It is true that on an appeal from a judgment rendered in summary conviction proceedings, the court of common pleas cannot enter a judgment which affirms the judgment of the district justice, or which dismisses or sustains the appeal. Commonwealth v. Gula, 300 Pa.Super. 445, 446, 446 A.2d 938, 939 (1982); Commonwealth v. Gamarino, 299 Pa.Super. 144, 145, 445 A.2d 189, 190 (1982). Rather, the court of common pleas must hear the case de novo, and render a verdict of guilty or not guilty: Tt is the duty of the court to try the case de novo, to hear the evidence and arguments of counsel, to find the facts and thereupon to enter such judgment as would be warranted under the law and evidence.’ ” Gamarino, 299 Pa.Super. at 145, 445 A.2d at 190 (quoting Commonwealth v. Miller, 173 Pa.Super. 168, 170, 96 A.2d 153, 154 (1953)). It does not follow from this, however, that the court of common pleas erred in finding Cunningham guilty of an offense different from the offense initially charged.

It is well settled that a defendant may be convicted of a lesser included offense even if that lesser offense was not charged in the original indictment:

Whether a conviction for a less culpable or less serious offense may lie on an indictment for another more serious or more culpable crime is principally a question of whether the indictment will fairly put the defendant on notice of the charges against him so that he may prepare an adequate defense.

Commonwealth v. Stots, 227 Pa.Super. 279, 281 n. 3, 324 A.2d 480, 481 n. 3 (1974); see also Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 207, 358 A.2d 98, 100 (1976); Commonwealth v. King, 238 Pa.Super. 190, 193, 357 A.2d 556, 557 (1976). The test to determine whether an offense constitutes a lesser included offense is whether the greater offense necessarily includes the lesser. Simply put, we must determine whether the elements of violation A, the lesser, are included in violation B, the greater. Commonwealth v. Pemberth, 339 Pa.Super. 428, 429, 489 A.2d 235, 236 (1985). The defendant has then been put on notice of the charges against him. See Commonwealth v. Gouse, 287 Pa.Super. 120, 126, 429 A.2d 1129, 1132 (1981) (defendant is on notice if he/she is explicitly charged with a crime, or the crime is a lesser included offense of a crime with which he/she is charged).

Here, Cunningham was originally charged with driving while under suspension (DUI related). That offense is defined as follows:

§ 1543. Driving while operating privilege is suspended or revoked
(a) Offense defined. — Except as defined in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege, and before the operating privilege has been restored is guilty of a summary offense, and shall, upon conviction, be sentenced to pay a fine of $200.

75 Pa.C.S. § 1543(a). In order to obtain a conviction under this subsection, the Commonwealth must prove that: (1) the accused was driving a motor vehicle on a highway or trafficway; (2) that his/her license had been suspended; and (3) that he/she had actual notice of that suspension. See Commonwealth v. Kane, 460 Pa. 582, 585-86, 333 A.2d 925, 926 (1975) (actual notice required to prove offense under successor statute to 75 Pa.C.S. § 1548); Commonwealth v. Burkett, 300 Pa.Super. 72, 75, 445 A.2d 1304, 1305 (1982) (evidence of actual notice produced sufficient for conviction under section 1543(a)).

Subsection (b) of section 1548 is defined as the more culpable offense, carrying a penalty of a fine of one thousand dollars, and a ninety day prison term. The elements of that offense include those of subsection (a):

(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of 3731 (relating to driving under the influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense____

75 Pa.C.S. § 1543(b) (emphasis added). In order to obtain a conviction under section 1543(b), the same three elements as are involved in subsection (a) must be proven: that the accused was driving, that his/her license was suspended, and that he/she had notice of that suspension. See Commonwealth v. Kane, 460 Pa. at 585-86, 333 A.2d at 926 (actual notice required to prove offense under successor statute to 75 Pa.C.S. § 1543); Commonwealth v. Gray, 356 Pa.Super. 299, 301-02, 514 A.2d 621, 622 (1986) (evidence of actual notice produced sufficient for conviction under section 1543(b)). An additional element is required here: proof that the suspension was DUI related as outlined in section 1543(b).

The examination of both offenses makes it clear that the offense outlined in section 1543(a) is a lesser included offense of 1543(b). Therefore, Cunningham was on notice that he could be convicted on the lesser included offense. The court of common pleas properly performed its function in hearing the case de novo, and in finding the appellant guilty of a lesser included offense of the .violation charged under the law and the evidence presented at trial. Cunningham’s contention that the court of common pleas violated rule 51 of the Pennsylvania Rules of Criminal Procedure is therefore also without merit.

JUDGMENT OF SENTENCE AFFIRMED.

      . 75 Pa.C.S. § 1543(b).

      . 75 Pa.C.S. § 1543(a).

      . Rule 51. Means of Instituting proceedings in summary cases
      Criminal proceedings in summary cases shall be instituted either by:
      (a) issuing a citation to the defendant; or
      (b) filing a citation; or
      (c) filing a complaint; or
      (d) arresting without a warrant when arrest is specifically authorized by law.
      Pa.R.Crim.P. 51.


author: CAVANAUGH, Judge:

text:
    551 A.2d 291
    Philip J. ACKLER and Mary Ackler, h/w, Appellants, v. RAYMARK INDUSTRIES, INC., Owenz-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Nicolet, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., GAF Corporation, Fibreboard Corporation, Southern Textile Corp., H.K. Porter Co., Inc., Forty-Eight Insulation, Inc., Pacor, Inc., Brand Insulations, Inc., Universal Insulation Company, Delaware Insulation Company, and A.C. & S., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1988.
    Filed Dec. 9, 1988.

      James R. Kahn, Philadelphia, for appellants.
    Thomas C. Gallegher, Philadelphia, for Raymark, appellees.
    Daniel S. Altschuler, Philadelphia, for Brand Insulations, appellee.
    Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether an employee knew, or should have known that he had an injury and that the injury was caused by another party’s conduct, when he filed an “Employee’s Claim Petition” under oath or affirmation alleging that he had asbestosis. The petition was filed by his lawyer with the Workmen’s Compensation Board of New Jersey and stated that from May, 1980 through November 7, 1980 the appellant, Philip J. Ackler, was employed by Brand Industries and worked at the Atlantic Refinery in Philadelphia. The petition further alleged that he was suffering with asbestosis and had scarring of the lungs and that this was caused by the petitioner (appellant) removing and repairing insulation material. His occupation was set forth as an “insulation asbestos worker.” The petition set forth the name of his physician.

The petition was sworn to by Mr. Adder on August 19, 1981 and filed with the Workmen’s Compensation Board on August 21, 1981. The complaint in the court below was filed on December 21, 1988. The defendants below, which are the appellees herein, filed motions for summary judgment which were granted as to all defendants except those currently engaged in Chapter 11 bankruptcy proceedings.

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admission on file, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Gabovitz v. State Auto Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987); Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988); French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988); Hower v. Whitmak Associates, 371 Pa.Super. 443, 538 A.2d 524 (1988); Pa.R.C.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Dunn v. Teti, 280 Pa.Super. 899, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980); Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In addition, we must examine the record in the light most favorable to the non-moving party and accept as true all well pleaded facts in the non-moving party’s pleadings, and give the non-mover the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987); Metal Bank of America, Inc. v. Insurance Company of North America, Inc., 360 Pa.Super. 350, 520 A.2d 493 (1987).

A trial court’s grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 528 A.2d 177 (1987). We discern neither an error of law nor abuse of discretion, and accordingly we affirm the summary judgments entered by the court below.

In the instant case, the appellant, Philip J. Ackler, signed and took an affidavit to a petition on August 19, 1981 alleging in detail the nature of his illness as asbestosis, which resulted in scarring of his lungs, the dates on which his injury occurred, the location, the nature of his occupation, and what he was doing that caused his asbestosis. The petition was filed with the Workmen’s Compensation Board in New Jersey and as a result of filing the petition, the appellant’s claim was heard before a referee in the summer of 1983, and he was awarded $2,500.00 against his employer, Brand Insulation.

The court below entered summary judgment on the grounds that the present action was not brought within the two-year period as required by the statute of limitations. The two-year statute of limitations in claims for asbestosis, a creeping disease, commences running when “the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 136-137, 471 A.2d 493, 500 (1984). The appellant’s action in the Court of Common Pleas was not commenced until December 21, 1983. If Mr. Ackler knew, or should have known, on August 19, 1981 that he suffered from asbestosis, then his claim is barred by the statute of limitations, as the court below determined.

Several cases in this Court have considered the significance of filing a claim for workmen’s compensation in determining when the plaintiff knew or should have known that he had asbestosis. In Price v. Johns-Manville, 336 Pa.Super. 133, 485 A.2d 466 (1984) a plaintiff filed a workmen’s compensation claim in which he alleged that he had asbestosis and that it was caused by his work with asbestos at the work site. More than two years after the filing of the workmen’s compensation claim, he commenced an action in the Court of Common Pleas in trespass, alleging personal injuries due to his exposure to asbestos. The court examined all of the evidence on file, including the workmen’s compensation form, and concluded that there was no genuine issue of fact, notwithstanding that the appellant’s counsel expressed his belief that the plaintiff did not understand the cause of his injury and no doctor had determined that the plaintiff had asbestosis when he filed his workmen’s compensation claim in 1964.

In Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 507 A.2d 1258 (1986) the plaintiff signed a claim for workmen’s compensation on July 14, 1976 and did not file his complaint in trespass and assumpsit until September, 1978. The court below granted summary judgment in favor of the defendants and we affirmed. The plaintiff’s physician filled out his form and the plaintiff read the form and signed it. We held that the statute of limitations commenced running no later than July 14, 1976, the date on which the workmen’s compensation claim form was signed, stating at 352 Pa.Super. 333, 507 A.2d 1257:

To extend the commencement of the statute of limitations to a date later than signing his claim for compensation would be unrealistic in the extreme. The purpose of a statute of limitations is to expedite litigation and discourage delay and the presentation of stale claims which may result in considerable prejudice to the defendant. Harmer v. Hulsey, 321 Pa.Super. 11, 467 A.2d 367 (1983). In the circumstances of this case, the signing of the workmen’s compensation claim focused on a date by which all of the elements of requisite knowledge came together so that the court could justifiably determine that the appellant had two years from that date in which to file his complaint.
The execution of the claim form on July 14, 1976, coupled with the appellant’s testimony on deposition conclusively established that by July 14, 1976, the appellant knew or should have known that he was injured and that the injury had been caused by someone else’s conduct. As suit was commenced more than two years after July 14, 1976, it was barred by the statute of limitations. There are other factors in a creeping disease case which may establish the requisite knowledge called for in Cathcart to commence the running of the statute of limitations other than the filing of a workmen’s compensation claim, but where an injured person signs such a claim and acknowledges that he has asbestosis and that it was caused by working around asbestos, then he conclusively demonstrates that he has the requisite knowledge. A contrary conclusion would make the statute of limitations meaningless in a creeping disease situation. (Emphasis added.)

The appellant contends that there is an issue of fact in this case as he testified on deposition that he did not know he was suffering from an asbestos injury until after December 22, 1981, when he was examined by a Dr. Theodos. Since his complaint was filed on December 21, 1983, he argues, it was not barred by the two-year statute of limitations. The flaw in this argument is that it is not credible that the appellant did not know or have reason to know that he suffered from the creeping disease of asbestosis on August 19,1981 when he signed a detailed petition in which he swore or affirmed that he had asbestosis and scarring of his lungs. Moreover, it is not necessary that the exact nature of his injury be known so long as it objectively appears that he is reasonably charged with the knowledge that he has an injury caused by another. In Lucera v. Johns-Manville Corp., 354 Pa.Super. 520, 512 A.2d 661 (1986) the court below entered summary judgment in favor of the defendants in an asbestos case even though the plaintiffs affidavit raised issues of fact as to when he discovered that his asbestosis was caused by the conduct of another party. We stated at 354 Pa.Super. 532, 512 A.2d 667 (1986):

Concerning this affidavit, the lower court wrote: “The affidavit ... strains the chords of credibility, as it appears to totally contradict his testimony at the non-jury trial.” The lower court did not abuse its discretion in granting a motion for summary judgment even though it disregarded the appellant’s affidavit because it was not wholly credible. In Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981), this court wrote, “This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where ... the evidence relied upon by the plaintiff is inherently incredible....: (Citation omitted.) While Taylor was a malpractice suit, we do not see any reason why this principle should not apply to a “creeping disease” case. (Emphasis added.)

As the Supreme Court stated in Smith v. Bell Telephone Co. of Penna., 397 Pa. 134, 138, 153 A.2d 477, 480 (1959): “The judge cannot say as a matter of law which are facts and which are not unless they are admitted or the evidence is inherently incredible. (Emphasis added.) See also, Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981). The court below, in entering summary judgment, found that the plaintiffs testimony was inherently incredible and we agree. The plaintiff testified on deposition that he went to see his lawyer solely to obtain disability benefits “because of arthritis and the gout”. His arthritis was across the lower back and right hip, and gout bothered him in the “first digit of the left toe and into his instep.” He further testified that he was told he had asbestosis in December, 1983 by Dr. Morowitz. The appellant testified that he thought the petition for disability was solely for gout and arthritis. When shown the petition on deposition, which he admittedly signed, and which stated that “petitioner is suffering from asbestosis and has scarring of the lungs”, he stated that the first page was not shown to him. He further testified that he thought the petition was not filled in, but he wasn’t sure. He could not recall if he read page two of the petition before he signed it and wasn’t sure if he signed the petition before a notary public.

Eugene P. Chell, Esquire, who was the appellant’s counsel in connection with the New Jersey workmen’s compensation proceedings, submitted an affidavit in support of the appellant’s opposition to the motion for summary judgment. The affidavit stated that Mr. Chell had no medical reports to indicate that Mr. Ackler had asbestosis and prepared the petition on the basis of Mr. Ackler having a long history of exposure to asbestos. He also alleged that he had no indication that Mr. Ackler knew or had reason to know he had asbestosis prior to April of 1983.

On the basis of Mr. Chell’s affidavit, one could argue the propriety of the petition filed with the New Jersey workmen’s compensation board, since he “had no indication that Mr. Ackler had any asbestos-related disease until after April of 1983”. Nevertheless, on August 19, 1981, almost two years before that date, he prepared a petition which Mr. Ackler signed under oath alleging that Mr. Ackler suffered from asbestosis and had scarring of the lungs. Mr. Chell’s affidavit states nothing about the circumstances existing when Mr. Ackler signed it or as to whether it was blank or completed, or read by Mr. Ackler, or explained to him. However, the petition speaks for itself. It is so detailed that it is not credible that Mr. Chell composed it without any input from Mr. Ackler. The court below properly found that the petition for workmen’s compensation meant exactly what it said.

The appellant is bound by what he signed before a notary public, whether he read it or not. Failure to read a contract is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract in the absence of fraud. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983); Tose v. First Pennsylvania Bank, 648 F.2d 879 (3d Cir.1981). Although the petition was not a contract, the appellant is bound by its contents. A signing and acknowledgement of a petition for workmen’s compensation is to be taken seriously. It sets forth facts which form the basis for the award of compensation. The New Jersey Workmen’s Compensation Act requires at N.J. Statutes, Title 34:16-51:

The petition shall state the respective addresses of the petitioner and of the defendant, the facts relating to employment at the time of injury, the injury in its extent and character, the amount of wages received at the time of injury, the knowledge of the employer or notice of the occurrence of the accident, and such other fads as may be necessary and proper for the information of the division and shall state the matter or matters in dispute and the contention of the petitioner with reference thereto. The petition shall be verified by the oath or affirmation of the petitioner. (Emphasis added.)

The Pennsylvania Rules of Civil Procedure, while not applicable to New Jersey petitions, also give insight into the significance of an affidavit. Pa.R.C.P. 1024 requires pleadings containing averments of fact not appearing of record to be verified on oath or affirmation. Pa.R.C.P. 206 requires every petition and answer containing an allegation of fact which does not appear of record to be verified. The verification must be by affidavit. Standard Pennsylvania Practice § 16:13. The Pennsylvania Workmen’s Compensation Act indicates that the signature and affidavit are significant acts and states that affidavits are to be provided by the referee or director of workmen’s compensation and specified other individuals, without charge. 77 Pa.S. § 171. An affidavit is a formal written or printed voluntary ex parte statement sworn or affirmed to before an official authorized to take oaths. Zaydon v. Abdo, 95 P.L.J. 417, 43 Sch.L.R. 127 (1947). Generally, affidavits must be executed by one who possesses personal knowledge of the facts alleged in the petition. In re Falone, 464 Pa. 42, 346 A.2d 9 (1975).

The appellant was willing to stand by the petition for workmen’s compensation benefits when it was to his advantage. The entire thrust of the workmen’s compensation proceedings which terminated in the appellant’s favor, was based on the proposition that the appellant suffered from asbestosis. There is not a scintilla of evidence that the claim was adjudicated on the basis of arthritis or gout. Attorney Chell’s affidavit clearly established that he intended to base his claim on an asbestos-related injury. He stated that he “thought it expeditious to file Mr. Ackler’s claim petition without proof of any asbestos injury, simply in order to get his case in progress.” The claim he referred to was the asbestos claim. Although Mr. Ackler benefited from his workmen’s compensation claim based on asbestosis, he now contends that he had no reason to know that he suffered from asbestosis on August 19, 1981.

With respect to the date on which appellant claims that he first had reason to know about his asbestosis, there are various and conflicting dates given. On deposition, Mr. Ackler testified that he learned he had asbestosis when he went to see Dr. Morowitz in December, 1983. Plaintiffs’ memorandum of law, in opposition to the motions for summary judgment, stated that Mr. Ackler saw Dr. Morowitz in 1982 and includes a report from Dr. Morowitz to Mr. Chell dated April 22, 1983. Mr. Ackler also agreed on deposition that he first saw Dr. Morowitz in October, 1982.

In Wheeler v. Johns-Manville Corp., 342 Pa.Super. 473, 493 A.2d 120 (1985), the plaintiff signed a workmen’s compensation form listing August 8, 1979 as the date on which he first became aware he had asbestosis and as the date he first realized the illness was caused or aggravated by his employment. In refuting a motion for summary judgment, he testified that he did not actually know he had asbestosis on August 9, 1979, and wrote that date because his doctor told him to. The panel held that this created an issue of fact and we reversed the grant of summary judgment. However, that case must be read in the light of the more recent decision in Morgan v. Johns-Manville Corp., 354 Pa.Super. 58, 511 A.2d 184 (1986) which involved a factual situation more analogous to our own. On April 8, 1976 the plaintiff, Francis Morgan, filed a federal claim listing the nature of his injury as “lungs” and the cause was stated as due to the modification of piping systems aboard ships. More than two years later, the plaintiff filed an action in the Court of Common Pleas for damages allegedly resulting from asbestos. The court below granted summary judgment in favor of the defendants. The plaintiff, as in the case before us, attempted to create an issue of fact concerning when he had actual knowledge and understanding of the disease. He admitted he had signed the affidavit and claimed that the personnel at the dispensary told him what to write and to sign the form. He stated he never saw the dispensary permit issued by the dispensary physician but admitted that he had been diagnosed as having asbestosis. He further argued that he did not understand the nature of his injury until he received a letter from Dr. Paisley on July 9, 1976, within two years of filing his complaint, which indicated he had asbestosis. We held that the defendants had carried their burden of showing that there was no genuine issue of material fact.

As noted in Lowe v. Johns-Manville Corp., 604 F.Supp. 1123, 1126 (E.D.Pa.1985) “[credibility, of course, may not be resolved at the summary judgment stage unless the non-movant’s position is plainly unreasonable.” In our opinion, it is patently unreasonable that Mr. Ackler did not know or have reason to know that he had asbestosis when he signed the workmen’s compensation claim based on the detailed facts set forth in the claim. Importantly, we must further realize that the standard is not a subjective one but applies if appellant objectively should have known of his injury. See Seay v. Prudential Property and Casualty Insurance Co., 375 Pa.Super. 37, 543 A.2d 1166 (1988).

An analogy may be drawn between medical malpractice claims and those involving creeping diseases. Both actions have a two-year statute of limitations. It is during this time period that the plaintiff must make a decision whether or not to pursue any legal rights he may possess. We stated in Bickford v. Joson, 368 Pa.Super. 211, 216, 533 A.2d 1029, 1031 (1987), a medical malpractice case:

Indeed, in an era of complex and sophisticated legal rights and the general availability of legal services, the duty to make legal inquiry within two years of the injury is wholly reasonable.

Once a plaintiff knows, or should know that he has suffered an injury, the statute of limitations then gives him the opportunity to select and consult with a lawyer, conduct the necessary investigation and commence suit. Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980). Two years is ample time in which to commence suit in a creeping disease case after the plaintiff acquires the requisite knowledge.

The appellant’s reliance on Trieschock v. Owens Corning Fiberglas Co., 354 Pa.Super. 263, 511 A.2d 863 (1986) is misplaced. We held in Trieschock, speaking through Bro-sky, J., Popovich, J. dissenting, that the fact that the appellant was told by his doctor asbestosis was suspected would not establish, as a matter of law, that the plaintiff knew or should have known that he had asbestosis. This court reversed the entry of summary judgment in favor of the defendants which were producers of asbestos products. In March, 1982, a physician who examined the plaintiff told him that he suspected he had ’asbestosis and scheduled an appointment with a pulmonary specialist. On April 8, 1982, he was told by the specialist that he had asbestosis. He commenced his action on April 6, 1984 and we held that it was not barred by the two-year statute of limitations. In the case before us, Mr. Adder signed a petition on August 19, 1981 which was filed with the Workmen’s Compensation Board on August 21, 1981, which stated that he was suffering from asbestosis and had scarring of the lungs. He described when and how he acquired the asbestosis and its cause. The petition alleged the dates on which he was subjected to occupational exposure and described Ms occupation as an insulation asbestos worker. The appellant will not now be heard to complain at this date that he did know or have reason to know on August 19, 1981 that he had been injured and his injury had been caused by another party’s conduct.

JUDGMENTS AFFIRMED.

      . Appellant was examined by Dr. Morowitz as well as Dr. Theodos. Appellant testified concerning his visit with Dr. Morowitz as follows:
      Q. Do you recall when you saw Doctor Morowitz?
      A. Yes. 1983. I do believe it was in December.

      Q. And, what did Doctor Morowitz do for you?
      A. I don’t believe he did anything for me.
      Q. He just examined you and told you you had asbestosis?
      A. Gave me an examination and told me that 1 had 40 percent disability due to asbestosis. He also told me that I had pleural thickening and calcification and advised me to have x-rays....

      (Emphasis added.)

      . The court noted that it did not reach the issue of whether claimant should have known of his injuries as that argument was not raised by the parties. Wheeler v. Johns-Manville, 342 Pa.Super. at 480, 493 A.2d at 123.

      . In Trieschock, supra, the Court stated that a plaintiff in a creeping disease case is not required to have a greater knowledge than his physician about his medical condition, and if the physician is not reasonably certain as to the diagnosis, then a plaintiff cannot have the knowledge necessary to commence the running of the statute of limitations. We do not believe this is a correct statement of the law, as “reasonable certainty" by a physician or the patient is not required by Cathcart, supra. All that Cathcart requires is that the plaintiff knows he has an injury, or in the exercise of reasonable diligence, should have discovered that he has a creeping disease. So long as the claimant is aware that he has an injury there is no requirement that he be aware of a precise diagnosis as some language seems to suggest.


author: BROSKY, Judge:

text:
    551 A.2d 297
    Annie WILLIAMS and Wayman D. Williams v. A-TREAT BOTTLING COMPANY, INC. and Pavlish Beverage Company. Appeal of PAVLISH BEVERAGE COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Dec. 12, 1988.

      Edward McKarski, Bethlehem, for appellant.
    Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This is an appeal from the Order of December 23, 1987, which denied appellant’s post-trial motions and entered judgment upon the non-jury verdict in wife-appellee’s favor.

Appellant now contends that the trial court erred: (1) in denying appellant’s motion for a compulsory nonsuit, when neither wife-appellee nor counsel for wife-appellee were present at trial, and no evidence was presented in her case-in-chief; (2) in denying appellant’s motion for judgment non obstante verdicto (n.o.v.), when no evidence was entered in wife-appellee’s case-in-chief, and insufficient evidence was introduced in husband-appellee’s case-in-chief, to support the verdict; (3) in denying appellant’s alternative motion for a new trial; and (4) in failing to enter a verdict against appellant’s co-defendant, based upon appellant’s cross-claim against the co-defendant.

Upon review of the record, and appellant’s brief we find merit to appellant’s second contention, and accordingly reverse and enter judgment n.o.v.

On January 10, 1984, wife-appellee, Annie Williams, purchased one case of “Up” soda, bottled by A-Treat Bottling Company, Inc. (“A-Treat”), from appellant, Pavlish Beverage Company (“Pavlish”). Later that day, she drank some of the soda directly from the bottle, and noticed that the soda had an unusual taste. She detected no cracks, or wear about the bottle, or its metal top. However, upon mentioning the strange taste to her husband, he mentioned that he smelled kerosene, and told her not to drink the remainder of the bottle. Approximately forty-five (45) minutes later, she began to have stomach pains.

She went to the emergency room of a nearby hospital in the early morning hours of January 11, 1984. Her stomach was not pumped, but the emergency room physicians, Doctors Twottle and Wyshock, performed blood tests, the results of which were normal, with no kerosene detected. After giving her an antacid and an antispasmodic, the physicians discharged her, instructing her to see her family physician if her stomach pain persisted.

Her pain persisted, and she went to see her family physician on January 12, 1984, who gave her some medication, and instructed her to return to the hospital that day in order to have her stomach pumped.

She did not return to the hospital until the early morning hours on January 14, 1984. She was attended to by the emergency room physician that night, Dr. Anthony Sorrentino. Again, blood tests were performed. Her stomach was pumped as well, and the contents analyzed. Neither the blood tests nor the stomach contents revealed any trace of kerosene in her system. Again, she was treated with an antacid, and released.

In the meantime, the bottle of soda from which she allegedly drank the kerosene, was turned over to the police for analysis. After one phone call, at which time the results were not yet available, Mrs. Williams made no further attempt to obtain the results of the analysis.

On December 18, 1985, Mr. and Mrs. Williams filed a complaint against appellant Pavlish and A-Treat. A non-jury trial was held on March 18, 1987. Neither Mrs. Williams, nor counsel for Mr. and Mrs. Williams appeared at trial. Mr. Williams alone appeared, averring that Mrs. Williams had suffered a stroke, and that he wished to represent his wife. The trial court prohibited him from entering any evidence on her behalf, but permitted him to enter evidence in support of his consortium claim. Mr. Williams then entered the deposition of his wife and of Dr. Sorrentino into evidence. He also called George Pavlish, the owner of Pavlish, to testify in support of his consortium claim. George Pavlish testified that the kerosene heater on the premises had malfunctioned and put soot into the air, but that the kerosene could not have gotten into the soda bottles, even if the caps had been cracked, without getting underneath the cap.

At the close of Mr. Williams’ evidence, Pavlish moved for a nonsuit on the basis that no evidence had been entered in Mrs. Williams’ case-in-chief. The trial court denied the motion, and both defendants rested without entering any evidence. The court returned a verdict in favor of Mrs. Williams only, and against Pavlish, awarding her five hundred dollars ($500.00) for her inconvenience in having to seek treatment at the hospital. Pavlish’s post-trial motions, requesting judgment n.o.v. or a new trial, and challenging both the denial of nonsuit, and the failure of the trial court to enter a verdict against A-Treat upon Pavlish’s cross-claim, were denied. This timely appeal followed.

Appellant’s first contention on appeal is that the trial court erred in denying the motion for nonsuit, as neither wife-appellee, nor counsel, appeared to enter any evidence presented on her behalf. Appellant maintains that the denial of its motion for nonsuit is appealable, as appellant rested at trial without introducing any evidence, and, as such, appellant makes several arguments as to why that denial was improper.

Without addressing the merits of those arguments at this time, we note that appellant is incorrect that the refusal to enter a nonsuit under these circumstances is appealable.

Appellant cites Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986), in support of its position. Burns, however, merely stands for the proposition that a defendant’s presentation of evidence following the denial of defendant’s motion for nonsuit renders the correctness of that denial a moot issue. Id., 350 Pa.Superior Ct. at 623, 504 A.2d at p. 1325. Prom this, appellant surmises that a defendant’s decision to rest without presenting evidence keeps the nonsuit issue alive on appeal. However, prior to Burns, it had already been resolved that the denial of a motion for compulsory nonsuit is not appealable, even when the defendant elects to present no evidence. See Churilla v. Barner, 269 Pa.Super. 100, 409 A.2d 83, 85 (1979). Moreover, since Burns, this Court, in Fleck v. Durawood, Inc., 365 Pa.Super. 123, 529 A.2d 3 (1987), has reiterated the preBurns rule of appealability as follows:

----The first issue on appeal is whether the trial court erred in not granting appellant’s motion for nonsuit and motion for judgment n.o.v., since appellant urges there was no evidence from which the jury could have found against Sears. The trial court properly noted that the propriety of the court’s action in not granting a motion for a nonsuit is not appealable. What is appealable is the trial court’s Order denying a motion for judgment notwithstanding the verdict (Slip Op., Wallace, J., 3/5/87) (citing Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984)....

Id., 365 Pa.Superior Ct. at 126, 529 A.2d at pp. 4-5.

As appellant’s second contention challenges the trial court’s denial of its motion for judgment n.o.v., and incorporates by reference the arguments made pertaining to the court’s refusal to grant a nonsuit, we shall follow the guidance provided in Fleck, and refrain from further discussion of the nonsuit issue, while proceeding to consider whether judgment n.o.v. should have been entered.

In maintaining that judgment n.o.v. was warranted, appellant argues: (a) that wife-appellee’s alleged illness was not confirmed by medical testimony, and hence her absence from trial was not properly excused by the trial court; (b) even if her absence was properly excused, the evidence received on behalf of her husband, who could not act as her attorney, could not form the basis of a verdict in her favor; and (c) even if her husband’s evidence could be considered on her behalf, that evidence was insufficient to support a verdict in her favor.

While appellant’s arguments (a) and (b) are flawed, we find merit to (c).

With respect to the failure of husband-appellee to present any medical testimony verifying his wife’s illness, the Rules of Civil Procedure do not require the production of such testimony before the deposition of an allegedly ill or infirm witness may be introduced into evidence; the decision on the sufficiency of proof of unavailability is within the trial court’s discretion, and, once the trial court is satisfied that the witness is unavailable, the witness’s deposition may be admitted as substantive evidence. See Pa.R. C.P. 4020(a)(3)(c); Goodrich Amram 2d § 4020(a): 7, n. 69. As such, the trial court was free to accept husband-appellee’s assertion that his wife was too ill to appear, as credible, and was thereby free to admit her deposition as substantive evidence in husband-appellee’s consortium case.

Likewise, appellant is incorrect in stating that the trial court acted improperly in considering husband-appellee’s evidence as it pertained to wife-appellee’s case. It is certainly true that husband-appellee was precluded from acting as his wife’s attorney, as such would have constituted the unauthorized practice of law. See 42 Pa.C.S. § 2524; Dauphin County Bar Association v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976); Shortz v. Farrell, 327 Pa. 81, 193 A. 20 (1937). However, the trial court certainly did not violate its duty to remain impartial, as is suggested by appellant’s brief, in considering husband-appellee’s evidence as it pertained to his wife’s claim.

While it is said that the party with the burden of proof has the burden of “going forward with the evidence”, this does not mean that a party may satisfy his burden of production only with that evidence he himself introduces. The burden of production may be satisfied with the evidence introduced by the party with the burden, or by any other party, and the trial court is free to consider all the evidence in determining whether the party with the burden has satisfied the burden. See Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730, 732 (1977) (party is entitled to benefit of all affirmative facts helpful to his case, regardless of party introducing such testimony); Devlin v. Piechoski, 380 Pa. 146, 110 A.2d 241, 243 (1955) (evidentiary value of crucial document no less effective because it came into the case through the defendant rather than the plaintiff); McCormick on Evidence (2d. ed.1972), § 337, p. 786; Packel, L. and Poulin, A.B., Pennsylvania Evidence (1st ed.1987), § 302, p. 53. Hence, once husband-appellee had presented his evidence, the trial court was permitted to consider that evidence to determine if wife-appellee was entitled to a recovery. While such action may have been unorthodox, in light of the failure of wife-appellee to appear, it was neither improper nor erroneous.

This, then, brings us to appellant’s sufficiency argument.

Our scope of review upon the denial of a motion for judgment n.o.v. has been outlined many times as follows:

The standard which we employ when reviewing the denial of a motion for directed verdict and a motion for judgment n.o.v. is the same. We will reverse the lower court when we find “an abuse of discretion or an error of law which controlled the outcome of the case.” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider “the evidence, together with all reasonable inferences that may be drawn therefrom ... in the light most favorable to the verdict winner.” Carrender v. Fitterer, 310 Pa.Super. 433, 436, 456 A.2d 1013, 104 (1983). Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motions when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 455 A.2d 637 (1982).

Fleck, supra, 365 Pa.Superior Ct. at 126-127, 529 A.2d at p. 5, citing Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891, 892 (1984).

Our review of the evidence entered in husband-appellee’s consortium claim convinces us that, viewing that evidence in the light most favorable to wife-appellee, it is nonetheless insufficient to uphold a recovery in her case.

It is beyond dispute that, regardless of whether an action for physical harm caused by an allegedly defective or unsafe product sounds in negligence or in strict liability, there must be some proof that the product was indeed unsafe, and caused damages to the plaintiff. See Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432, 434 (1980) (one element of negligence is “reasonably close causal connection between the conduct and the resulting injury”); also see also Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120, 125 (1984) (plaintiff can recover under strict liability if he proves “that a product was defective when delivered to the buyer and that the defect caused the plaintiff’s injuries”). This is so, even where the recovery sought or obtained is solely for the plaintiff’s inconvenience in having to seek medical care to determine whether he has been injured. Macine, supra.

In the matter sub judice, there simply does not exist one shred of evidence, in the form of either lay or expert testimony, that any kerosene was ever found in or on the soda bottle, or that wife-appellee ever ingested kerosene, much less that appellant somehow caused kerosene to be present in or on the bottle.

While Pavlish himself did admit to the presence of a malfunctioning kerosene heater on his business premises, he also testified emphatically that it was not possible that kerosene had gotten into the soda, as even in the event of a cracked cap, the kerosene would have had to intrude underneath the cap onto the lip of the bottle. (N.T., March 18, 1987, pp. 17-18).

Furthermore, wife-appellee admitted in her own deposition that she had not noticed any cracking or wear about the bottle top, and had not placed any portion of the bottle into her mouth, but had only touched the bottle top (heretofore covered by the cap) to her lips. (D.T., October 31, 1986, pp. 15-16). She also admitted that she had never obtained the results of the police analysis of the bottle contents, and did not know if kerosene had been discovered. (D.T., pp. 34-35.)

Lastly, despite wife-appellee’s assertions as to what she was told at the hospital, Dr. Sorrentino indicated in his deposition that, at no time was any kerosene detected in either her bloodstream or her stomach contents, and that any finding of kerosene would have been noted in the medical records. (D.T., December 8, 1986, pp. 7-9, 13-15, 22-25.) Any mentions of kerosene or “toxin” ingestion in those records were based purely upon wife-appellee’s subjective complaints that she had ingested kerosene. (D.T., pp. 20-22.)

As such, the evidence introduced in husband-appellee’s consortium claim contains an overwhelming amount of evidence contradictory to wife-appellee’s theory of recovery, countered only by husband-appellee’s detection of the odor of kerosene, and wife-appellee’s subjective, unsubstantiated insistence that her gastritis resulted from kerosene ingestion. While the verdict winner is entitled to a favorable light, all affirmative facts helpful to his case, and all reasonable inferences thereof, he may not recover on the basis of evidence which is diametrically opposed to the facts alleged in support of his theory of recovery. Hrivak, supra. Where the only facts in evidence in support of the theory of recovery would require speculation and conjecture to find in the plaintiffs favor, the evidence is insufficient to support the verdict. Farnese v. Southeastern Pennsylvania Transportation Authority (SEPTA), 338 Pa.Super. 130, 487 A.2d 887, 890 (1985).

Even discounting all contradictory evidence, an award of any kind in wife-appellee’s favor, based upon the ingestion of kerosene, would be pure speculation and conjecture. Hence, we now reverse the trial court, and enter judgment n.o.v. in appellant’s favor.

Order reversed and judgment n.o.v. entered. Jurisdiction is relinquished.

      . Neither appellees, nor appellant’s co-defendant, A-Treat Bottling Company, Inc., have filed a brief in this matter.

      . Appellant makes the same arguments with respect to the trial court’s denial of its motion for judgment n.o.v., and, hence, we shall be addressing those arguments infra as they pertain to contention (2) only.

      . Even husband-appellee’s perceptions carry little weight, as appellees possess a kerosene heater, and wife-appellee could not recall in her deposition whether they had owned the heater in 1984. (D.T., p. 17.)

      . In fact, a party is bound by his opponent’s testimony when introduced in the party’s case-in-chief where that testimony is neither contradicted nor inherently incredible. Stack v. Wapner, 244 Pa.Super. 278, 283-284, 368 A.2d 292, 295 (1976). Hence, wife-appellee was bound by Pavlish’s testimony that the kerosene could not have possibly gotten into the soda bottle.

      . In light of our resolution, we needn’t reach appellant’s third and fourth contentions on appeal.


author: HESTER, Judge:

text:
    551 A.2d 302
    R. Carl PENCIL and Annabel L. Pencil, his wife v. Lester L. BUCHART and Elaine L. Buchart, his wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted Sept. 13, 1988.
    Filed Dec. 7, 1988.

      W. David Slomsld, Pittsburgh, for appellants.
    John B. Koontz, Bedford, for appellees.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Appellants, Lester L. Buehart, and his wife Elaine L. Buehart, appeal from the judgment entered by the Court of Common Pleas of Bedford County on March 31, 1988, wherein the court found that title to disputed real property was in appellees, R. Carl Pencil, and his wife Annabel L. Pencil.

The Bucharts and the Pencils are owners of adjoining tracts of land. The exact location of the boundary line dividing their properties is the issue involved in this appeal. The common source of title of the two properties was Adam and Catherine Samuels, who originally owned an undivided parcel of land encompassing both properties. The property now owned by the Bucharts was the first portion of the Samuels’ land to be conveyed.

On February 28, 1867, the Samuels transferred what is now the Buchart property to Jacob W. Miller. The deed, which was recorded in Bedford County Deed Book AN at page 383, on March 13, 1867, specifically described the conveyance with reference to metes and bounds as follows:

Also one other tract of timber land situated in St. Clair Township, County and state aforesaid. Containing thirty-one acres to be cut off of the following described tract of land on a parallel with the line North nine and one-half degrees West one hundred fifty eight perches or on a parallel with the line separating this tract from lands of Daniel Walters the whole of which tract of land is described as follows:
Beginning at a stone corner thence South 88V4 degrees East 56.4 perches to a post; thence by lands of John Zimmers, South 13V2 degrees East 146.7 perches to stones; thence South 52V4 degrees West 59.7 perches to stones; thence North 35V2 degrees West 30 perches to stones; thence North 9V2 degrees West 158 perches to the place of Beginning, the part conveyed to the taken from the end next to Walters’ land____

On April 1, 1874, Jacob Miller conveyed this property to Benjamin Troutman. The deed was recorded on June 4, 1874, in deed Book AY, at page 76. The tract therein conveyed was described as 31 acres, to be cut off from a larger tract of timberland described by metes and bounds.

Troutman conveyed title to this tract to Albert E. Smith by deed dated March 18, 1911. The tract therein conveyed was described as 31 acres, to be cut off from a larger tract of timber land described by metes and bounds.

On April 21, 1911, George W. Blackburn surveyed an adjacent tract owned by George Bush. The survey indicated distances along the southern boundaries of the Smith tract and the Zimmers (now Pencil) tract and showed the southern comer of the dividing line between the two tracts. No monument was indicated on the survey of the location of the dividing line.

Albert Smith died testate, April 29, 1946. His heirs conveyed title to this tract to Austin L. Smith and Bertha Smith, his wife, by deed dated August, 1947. The tract therein conveyed was described by joinder only as containing 31 acres, more or less.

On November 22, 1977, Norman Van Why surveyed this tract. His survey showed the tract as containing 40.29 acres. Smith conveyed title to this tract to Bucharts, appellants, on April 27, 1978. The tract conveyed was described as follows:

Beginning at a stone corner, in common with lands now or formerly of Joseph H. Shannon and Paul Wagner; thence North 26 degrees 46' West 500.97 feet to a stone; thence by land now or formerly of May Beth King, and then Eleanor J. Green and Paul Geisler, crossing over stones and witness trees at 445.03 feet to an iron pin in stones; thence by lands now or formerly of Miriam S. Beckner, and then by lands of the Joseph W. Tate estate, crossing over a stone corner at 259.31 feet, South 80 degrees 45' 40" East 614.56 feet to a stone corner, thence by lands now or formerly of Carl R. Pencil South 0 degrees 20' 10" East 2,738.78 feet to an iron pin and stone; thence by lands now or formerly of Joseph H. Shannon South 61 degrees 18' 15" West 452.78 feet to a stone comer, the place of BEGINNING. Containing 40.-29 acres according to a survey by Norman S. Van Why, R.S., dated November 22, 1977.

This is the first conveyance in appellants’ chain of title wherein the land conveyed is not referred to as containing 31 acres.

Appellees, Pencils’, chain of title to their property is as follows. Samuels conveyed what is now the Pencil property to Zimmers on February 26, 1889; and it was described as follows:

All the following described piece, parcel or tract of land, situate and lying in the Township of Bedford, County of Bedford, and State of Pennsylvania, being a tract of mountain land and containing about thirty-two acres more or less adjoining lands of Benjamin Troutman on the Northwest, John Zimmers on the Southeast, A.J. Crissman’s heirs on the South and others.

In February, 1900, there was a conveyance between members of the Zimmers family wherein the tract conveyed was described by joinder only as containing 32 acres, more or less. Pencils, appellees, purchased the tract from the Zimmers’ heirs July 26, 1976. In each of the conveyances, the property was described, as in the deed out of Samuels, by reference to adjoining lands only and as containing 32 acres more or less.

Appellees then commissioned Norman Van Why to survey their property. He utilized public records and an old survey of adjoining lands prepared in 1911 (Blackburn Survey). The results of the survey indicated that appellees owned only twenty-four acres rather than the thirty-two acres set forth in the deed conveying title into them. Similarly, the survey indicated that appellant’s predecessors in title, the Smiths, as set forth above, owned forty acres rather than the thirty-one acres stated in the 1867 deed out of Samuels to their predecessors in title. The Smiths sold to appellants, who. recorded a deed purporting to convey forty acres.

The Van Why surveys did not locate any document of record to indicate that a survey had ever been performed previously to determine specifically the location of the property line now in dispute. Nothing of record indicates that the conveyances of the land in the Samuels’ deeds had ever been surveyed and monumented.

Appellees instituted an action to quiet title requesting 1) that title to the disputed property be found to be vested in them; and 2) that the Bedford County Recorder of Deeds cancel appellants’ deed from Smith insofar as it was inconsistent with their claim of title to the disputed property. In response, appellants requested an order re-establishing their title to the land as described in their recorded deed consistent with the survey prepared by Van Why. The court found in favor of appellees. Appellants filed a motion for post-trial relief requesting judgment n.o.v. or, in the alternative, a new trial. The motion was denied. This timely appeal followed.

Appellants raise the following issues:

1. Did the trial court err in refusing to grant the defendants’ motion for post-trial relief?
2. Did the trial court err in disregarding the survey of George W. Blackburn, the Motto Deed, and the Smith Agreement?
3. Did the trial court err in failing to apply the standards of surveying practice recognized by judicial decision?
4. Whether the trial court’s determination of the boundary line between the properties is not supported by the evidence?
5. Did the trial court err in rejecting the rule of law that monuments prevail over quantity of land?

Appellants argue that the trial court erred in rejecting the Van Why Survey because, in so doing, the court rejected the rule that monuments on the ground prevail over acreage in a deed in resolving a boundary dispute. Appellants also assert that the trial court's determination of the boundary line is contrary to the evidence and based upon its rejection of an ancient survey. Thus, appellants argue they are entitled to judgment n.o.v. or a new trial.

In reviewing a denial of a motion for judgment n.o.v., the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner. Aiello v. Ed Saxe Real Estate, Inc., 327 Pa.Super. 429, 435, 476 A.2d 27, 29 (1984) (revised on other grounds). A judgment n.o.v. should be entered only in dear cases, and all doubt should be resolved in favor of the verdict winner. A motion for judgment n.o.v. can properly be granted only “when no two reasonable minds could differ that as a matter of law, the party failed to make out his case.” (Citations omitted). Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984).

It is well settled that in reviewing the trial court’s denial of a motion for judgment notwithstanding the verdict, we must view the evidence in a light most favorable to the verdict winner, resolving all doubts in his favor and giving him the benefit of every reasonable inference arising from the evidence. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983); McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982). It is also well settled that judgment notwithstanding the verdict may only be granted in a clear case when the factors are such that no two reasonable men could fail to agree that the verdict was improper. Walsh v. Pennsylvania Gas & Water Co., 303 Pa.Super. 52, 449 A.2d 573 (1982).

Id., 334 Pa.Super. at 339, 483 A.2d at 479.

In reviewing the grant or denial of a new trial, an appellate court is limited to consideration of whether the trial court abused its discretion. See Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 673 (1985). We find no error or abuse of discretion in the trial court’s denial of appellants’ request for a judgment n.o.v. or a new trial as the evidence supports the trial court’s decision. Minteer v. Wolfe, 800 Pa.Super. 234, 446 A.2d 316 (1982).

We recognize that the findings of the trial court will not be disturbed on appeal absent a clear abuse of discretion or error of law. See Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). It is equally axiomatic, however, that this court is not bound by the trial court’s conclusions of law but is free to draw its own inferences and conclusions from the facts as established. First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa.Super. 198, 422 A.2d 1074 (1980).

Initially, we note that the primary function of the trial court resolving a boundary dispute is to ascertain the intent of the grantor at the time of the original subdivision. Roth v. Halberstadt 258 Pa.Super. 401, 392 A.2d 855 (1978). To achieve this result, our courts have employed certain rules of construction that are commonly thought to provide the best indication of that intent. It is beyond dispute that Samuels intended to convey 81 acres by their deed to the tract now owned by appellants, and intended to convey 82 acres, more or less, by their deed to the tract now owned by appellees.

As a general rule, where there is a conflict between courses and distances or quantity of land and natural or artificial monuments, the monuments prevail. Moreover, natural monuments normally take preference over artificial marks or monuments. Appeals of Borough of Dallas, 169 Pa.Super, 129, 82 A.2d 676 (1951). These rules, however, are not imperative but are aids in construction that must yield to a contrary showing. Baker v. Roslyn Swim Club, 206 Pa.Super. 192, 213 A.2d 145 (1965).

In Post et al. v. Wilkes-Barre Connecting R.R. Co., 286 Pa. 273, 276, 188 A. 377, 378 (1926), it was stated:

We fully recognized the general rule that monuments on the ground are of the highest value on questions of boundary, but that rule cannot prevail where the monument claimed is so manifestly wrong as to lead to an absurd result (Davis v. Rainsford, 17 Mass. 207; Heaton v. Hodges, 14 Me. 66, 30 Am.Dec. (Me.) 731 and note 740; 4 R.C.L. 101, 102), as here, embracing the land of a third party. An alleged monument, which is a palpable mistake, will be disregarded. Brolaskey v. McClain, 61 Pa. 146, 164. See, also, Malone et al. v. Sallada et al., 48 Pa. 419. Where the monuments are doubtful, a resort will be had to the courses, distances and quantity. See White et al. v. Luning, 93 U.S. 514 23 L.Ed. 938; Robinson v. Doss, 53 Texas 496; Western Mining, etc., Co. v. Peytona Cannel Coal Co., 8 W.Va. 406.

In Appeals of Borough of Dallas, supra, this court stated:

Though some of the terms of description ... are entitled usually to more probative value than others, yet, in the end, the true construction is ascertainable by the totality of their combined effect and not wholly and exclusively by any one term when it is irreconcilable with the other terms of description. To lay down the hard and fast rule that only monuments ... are determinative elements of a description ... is to make the rule contended for more important than the underlying intent of the contracting parties____

Id., 169 Pa.Super. at 137, 82 A.2d at 680.

“This rule is not an imperative and exclusive one, but is a rule of construction to ascertain, or to aid in determining the intention of the parties; and it is not followed where strict adherence to the call for a monument would lead to a construction plainly inconsistent with such intention.” 11 C.J.S. Boundaries Section 51. Thus, the rule does not apply “where the monument claimed is so manifestly wrong as to lead to an absurd result.” Post et al. v. Wilkes-Barre Con. R.R. Co., 286 Pa. 273, 276, 133 A. 377, 378 (1926). Nor does it apply “to a call for a monument which is false or mistaken, or to monuments not mentioned in a deed” unless “said monuments are afterward erected by the parties with intent to conform to the deed.” 11 C.J.S. § 51. “Where the monuments are doubtful, a resort will be had to the courses, distances and quantity.” Post et al v. Wilkes-Barre, supra, 286 Pa. at 276, 133 A. at 378, See also Baker v. Roslyn Swim Club, supra.

As the trial court pointed out, “The deeds in the defendants’ [appellants’] chain of title have, with the exception of the deed of April 27, 1978, always described the defendants’ tract as containing 31 acres. Likewise the deeds in the plaintiffs’ [appellees’] chain of title have always described the plaintiffs’ [appellees’] tract as containing 32 aeres, more or less. With the exception of the deed of April 27, 1978, none of the deeds in either chain of title makes reference to any monuments, nor was any evidence presented at trial showing that any monuments were erected by either of the parties or their predecessors with intent to conform to the deed. The defendants’ [appellants] claim to a tract containing 40.29 acres would seem to be the type of ‘absurd result’ which the Post court wished to avoid.” Trial court opinion, 2/1/87, at 7. We agree.

“Evidence of the acreage of land, especially where the number of acres is followed by the words ‘more or less’, has little weight as against specific boundaries and is in its nature an uncertain method of description and often a mere estimate. Where, however, a doubt exists as to the actual location of the boundary and the writing contains no words to definitely fix the line by either metes and bounds or monuments on the ground, evidence of the acreage becomes a material factor in the determination of the intention of the parties....” Dawson v. Coulter, 262 Pa. 566, 570, 106 A. 187, 188 (1919). Before a physical monument is accepted as a boundary line, there must be evidence other than its mere existence that the monument was intended for that purpose and at no point were the stones used by Van Why to mark the southeast boundary ever mentioned in any deed in other chains of title. Nor is there any evidence that any past parties erected it as a monument to mark the boundary.

The cases relied upon by appellants are not dispositive of the instant issue. While these cases follow the general rule that “where there is a conflict between courses and distances or quantity of land and natural or artificial monuments, the monuments prevail,” they are distinguishable on their facts. These cases involved conflicts between acreage or courses and distances and monuments recognized or described in the deed. In Roth v. Halberstadt, 258 Pa.Super. 401, 404, 392 A.2d 855, 856 (1978), the deed referred to a line “passing in a spring”. Miller v. Cramer, 190 Pa. 315, 316, 42 A. 690 (1899), described a tract as being bounded “on the remaining sides by the outcrop of the conglomerate rock”, which the court determined could be clearly located. Albert v. Schenley Auto Sales, 375 Pa. 512, 516, 100 A.2d 605, 607 (1953), involved a boundary marked by “surveyor’s pegs, a pole and an old stationary truck” which the Court found had been pointed out to the purchaser prior to the time that he entered into an agreement of sale.

These cases differ from the instant case in that the deeds herein do not refer to monuments, and there is no evidence of monuments ever being established or consented to by the parties or their predecessors in title. The trial court did not err in looking at the acreage conveyed in the deeds and conforming the conveyances to carry-out the obvious intent of the original grantors.

Appellants argue that the trial court erred in disregarding the following three documents admitted into evidence: 1) a survey prepared and dated April 21, 1911; 2) a right-of-way agreement between Hazel K. Smith and Austin L. Smith, et ux., dated April 8, 1978; and 3) a deed from Genevieve M. Motto, et ux., et al. to Joseph H. Shannon, et ux., dated October 2, 1961.

It is within the discretion of the trial judge to reject the map or plat if, in his judgment, it adds nothing by way of illustration to the witness’ testimony. We note that appellants did not challenge the trial court’s treatment of the Motto Deed and the 1978 Smith Agreement in their post-trial motions. As such, they are waived and will not be reviewed here. See Pa.R.C.P. 227.1. See also Hanik v. Pennsylvania Power Co., 308 Pa.Super. 352, 454 A.2d 572 (1982) (matters not addressed in exceptions are deemed waived).

With regard to the Blackburn Survey, the record reveals that the survey was not of the disputed properties but rather of adjoining property south of the Pencil and Buchart tracts. While Van Why utilized the Blackburn survey as the basis for fixing the southern point of his division line, he testified that there was no evidence that Blackburn surveyed the tracts in dispute nor does that survey show any monuments having been located at the purported division line. Furthermore, upon review of a retracement survey utilizing the Blackburn survey made by a Mr. Cunard in 1944, Van Why could find no evidence that Mr. Cunard established any point at the division line. There was no evidence to indicate that a survey to determine the division line was ever made; nor was there anything of record to indicate that the area described in the deed was ever surveyed and monumented. Appellants claim the court abused its discretion by disregarding the aforementioned documents and finding in favor of appellees. They further contend that appellees did not introduce evidence to carry the burden of controverting those documents which are indications of the intent of the original grantors. We disagree.

Appellants’ reliance on Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719 (1951) is misplaced. Hostetler merely stands for the proposition that ancient documents (over thirty years old where transaction is so remote as to be incapable of direct proof by living witnesses) would be admitted as an aid to determine the grantors’ original intent. The case should not be construed as holding that such documents shift the burden of establishing original intent.

Instantly, while appellants’ deed was given first and constitutes superior title, it begins with a quantity of 31 acres followed by a description by adjoinders, then by courses and distances. The conveyance is not described by natural monuments or metes and bounds, but instead refers to such a description of the property from which it was being carved out. The same is true for appellees’ deed. While we acknowledge that quantity is the least reliable measure in real property conveyancing, we see nothing in the record that would suggest a departure from the stated intent of the common grantors’ deeds. This is particularly true where a survey of the property was not undertaken until nearly one-hundred years after the conveyance.

We do not see such a finding as disregarding the surveyors, their science or their information. Rather, the key is the intent of the grantor, which is the primary inquiry in boundary disputes. Consequently, recourse to the surveys as aids to determine intent was not necessary. This is a case where there is no evidence in the record that particular monuments for a boundary line were consented to or agreed upon by adjoining landowners or their predecessors in title.

The evidence is more than sufficient to support the findings of the trial court. The quantity was clearly indicated in both original deeds. The language “more or less” recited in the deeds was intended only to cover some slight inaccuracies, but not such a large variation as several acres, as appellant would have this court find. See Pittsburgh Outdoor Advertising Company v. Surowski, 164 Pa.Super. 383, 64 A.2d 854 (1949). We conclude that the trial court had a sufficient basis for its finding and did not abuse its discretion.

As we stated in Pato v. Cernuska, 342 Pa.Super. 609, 493 Á.2d 758 (1985):

The findings of a trial judge sitting without a jury carry the same weight as a jury verdict, and we will not disturb these findings on appeal absent an error of law or abuse of discretion. Bigham v. Wenschhof 295 Pa.Super. 146, 441 A.2d 391 (1982).

Id., 342 Pa.Super. at 612, 443 A.2d at 759.

We conclude that the plain meaning of the deeds is the best indication of the intent of the common grantors to the parties’ predecessors in title. The deeds first mention quantity of land and adjoinders and only later use courses and distances. In our view, this fact, together with the absence of any attempt to survey the land for almost one hundred years, constitutes sufficient evidence for the trial court to find that the intent of the original grantor was to convey the amount of land set forth in the deeds, and not the amount indicated by a later survey.

JUDGMENT AFFIRMED.

      . A "perch" is a unit for measuring distance equal to sixteen and one-half feet. Blacks Law Dictionary.

      . Monuments are visible markers or indications left on natural or other objects indicating the line of a survey. Grier v. Pennsylvania Coal Co., 128 Pa. 79, 18 A. 480 (1889). ‘‘[N]atural objects, such as the bank of a stream, the shore of a lake, a precipice or ledge or rocks, a fountain or spring of water, may be adopted ... as ... monuments fixing the location of lines and corners.” Id., 128 Pa. at 95-96, 18 A. at 482 (emphasis added).