author: CERCONE, Judge.

text:
    677 A.2d 1207
    Becky MILAM, Appellant v. Ronald Hugh MILAM, II.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed May 7, 1996.
    Reargument Denied July 19, 1996.

      Thomas A, Dill, Sharon, for appellant.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the order of the trial court which granted defendant husband’s Motion to Dismiss the Complaint for Support. We affirm.

The trial court aptly summarized the history of the instant action as follows:

Plaintiff and the Defendant rented an apartment in Mercer County in May of 1993 and signed a six month lease. At the time, the Defendant was employed by the United States military and was working at a base in Ohio. Defendant’s enlistment in the military was to end in May 1994. The Plaintiff and the Defendant later applied for a marriage license, on which the Defendant listed one prior marriage, and identified his residence as Mercer County, Pennsylvania. The Defendant had, in fact, been married twice before, not once as he had stated on the marriage license application. The Plaintiff and the Defendant were married on July 31, 1993 in Hermitage, Mercer County, Pennsylvania and continued to live in Mercer County until they separated in February 1994.
Defendant was in the military for nearly sixteen years, during which time he never changed the address on his military records from his home in Colorado [FN] even though he married three times, and has two children of his own. [FN. This was also his parents’ home.] According to the Plaintiff, moving to Colorado was never discussed during the married [sic]. The Defendant owned a truck which was registered in California, but in November or December of 1993 the Defendant transferred the registration to Texas. Between May of 1993 and January of 1994 Plaintiff and Defendant discussed living in either Pennsylvania or Texas after his military service was completed. The Defendant received a lump sum payment when he was discharged from the military in May 1994, and has refused to pay any support for his wife.
In February of 1994, the Plaintiff filed in Mercer County for an Emergency Protection from Abuse Order (hereinafter “PFA”) against the Defendant. The PFA Order granting Plaintiffs Petition was served on the Defendant in Mercer County. A full hearing was held on February 14, 1994 and the emergency order was extended for a period of one year.
On the same day, Plaintiff filed a complaint for support from the Defendant. Domestic Relations sent two notices of the Complaint to the Defendant, on[e] by certified mail and one by ordinary first class mail to his Colorado address. The receipt was returned to Domestic Relations signed by the Defendant, and his signature was identified by the Plaintiff.
The Defendant denies he ever received the certified mail notice and asserts no one was authorized to accept it for him. The Defendant admits to calling Domestic Relations and requesting a continuance of the support hearing. A continuance was granted, and the hearing rescheduled. The Defendant did not attend the rescheduled hearing. An order of Support was entered, and the Defendant did not appeal from that order. During this time, the Defendant was seen in Ohio and Meadville, Pennsylvania.
The Defendant has filed a Motion to Dismiss the support complaint arguing that Pennsylvania has no personal jurisdiction under 23 Pa.C.S.A. Section 4342(d) to allow the suit to continue.

Trial Court Opinion dated March 22, 1995 at 2-4. The trial court granted defendant’s motion to dismiss for lack of personal jurisdiction. Thereafter, plaintiff wife filed the instant appeal.

Initially, we note that our standard of review of an appeal from an order granting a preliminary objection which challenged the exercise of in personam jurisdiction has been summarized as follows:

[W]hen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt. Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.

Delaware Valley Underwriting v. Williams & Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986) (citations omitted).

Plaintiff wife first argues that the family domicile is sufficient to establish personal jurisdiction over husband. In this regard, wife argues that husband demonstrated an intention to change his domicile to Pennsylvania by (a) applying for a marriage license in Pennsylvania; (b) receiving mail in Pennsylvania; (c) transferring his auto tags to Texas and his drivers license to California; (d) failing to discuss returning to Colorado with his wife; (e) entering into a six-month lease in Pennsylvania; and (f) spending very little time in Colorado since being excluded from the marital residence. We disagree.

In setting forth evidence evincing husband’s intent to change domicile, wife fails to address one crucial point. Throughout the duration of the marriage, husband was employed by the United States military. It is well-settled that “mere absence from a domicile, however long continued, cannot effect a change of domicile; there must be an animus to change the prior domicile for another.” Zinn v. Zinn, 327 Pa.Super. 128, 130, 475 A.2d 132, 133 (1984) (citing In re McKinley’s Estate, 461 Pa. 731, 337 A.2d 851 (1975)). There is a presumption that the original domicile continues and a person asserting a change of domicile must demonstrate such change by clear and convincing evidence. Zinn v. Zinn, 327 Pa.Super. at 130, 475 A.2d at 133.

A service person’s domicile is presumed to be the domicile as of his time of enlistment. Id. at 131, 475 A.2d at 133; Boswell v. South Carolina Ins. Co., 353 Pa.Super. 108, 119, 509 A.2d 358, 363-364 (1986). “A service person’s domicile generally remains unchanged while that person is temporarily stationed in another state on temporary duty.” Id. at 119, 509 A.2d at 363. Military personnel may acquire a new domicile if circumstances show an intent to abandon the original and adopt a new domicile. Id. at 119, 509 A.2d at 364; Zinn v. Zinn, 327 Pa.Super. at 131, 475 A.2d at 133.

Here, the trial court reviewed the evidence presented and determined that wife did not establish, by clear and convincing evidence, that husband intended to abandon his original domicile and adopt a new one. We have reviewed the parties’ briefs and the record certified to this court on appeal and find that the trial court correctly addressed this issue. We adopt the reasoning of the trial court and affirm on the basis of the trial court opinion dated March 22, 1995 with regard to this issue.

Wife also argues that regardless of husband’s domicile, the trial court erred in not exercising long arm jurisdiction over husband. In support actions, the Domestic Relations Code provides as follows:

The Supreme Court shall by general rule establish procedures for the exercise of long arm jurisdiction to ... establish and enforce support. Long arm jurisdiction shall be used in preference to proceedings under Chapter 45 [footnote: 23 Pa.C.S.A. § 4501 et seq.] (relating to reciprocal enforcement of support orders) unless it would be more effective to proceed otherwise. Long arm proceedings may be commenced or continued in any county where the plaintiff resides regardless of whether the parties maintained a family domicile in that county.

23 Pa.C.S.A. § 4342(d). The question before us is whether husband has sufficient minimum contacts with Pennsylvania so as to permit the trial court to establish long arm jurisdiction.

Wife refers this court to our holding in Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989) in support of her contention that husband has sufficient minimum contacts with Pennsylvania so as to permit the exercise of long arm jurisdiction. In Scoggins, the couple were married in Pennsylvania. When the parties separated, the appellee husband moved to Florida where he has since established a domicile. Appellant wife remained in Pennsylvania. Husband filed a petition for divorce in Florida. Wife filed her own petition in Pennsylvania. Husband obtained a decree in divorce in Florida after which he filed preliminary objections to wife’s divorce action. Husband averred lack of personal jurisdiction as well as failure to state a cause of action upon which relief could be granted. The trial court granted relief finding it had no personal jurisdiction over appellee husband.

On appeal, this court reviewed the minimum contacts required to establish jurisdiction pursuant to the Pennsylvania Long Arm Statute, 42 Pa.C.S.A. § 5322. Quoting Interna tional Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), we opined:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Scoggins v. Scoggins, 382 Pa.Super. at 517, 555 A.2d at 1319. Explaining the application of International Shoe to the facts in Scoggins, this court concluded:

The nature of the required “minimum contacts” has generally been given broad interpretation and emphasis has been placed upon the aspect of fair play and substantial justice ....
While the interest of the forum state and of the plaintiff in proceeding with the cause in the plaintiffs forum of choice are to be considered, “an essential criterion in all cases is whether the ‘quality and nature’ of the defendant’s activity is such that it is ‘reasonable’ and ‘fair’ to require him to conduct his defense in ... [the forum] state.” Kulko v. Superior Court of California, [436 U.S. 84] at 92, 98 S.Ct. [1690] at 1697, 56 L.Ed.2d [132] at 141 [1978], quoting International Shoe Co. v. Washington, supra, 326 U.S. at 316-17, 66 S.Ct. at 159, 90 L.Ed. at 103. Thus, the existence of personal jurisdiction generally depends upon the presence of reasonable notice to the defendant that an action has been brought, and a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum state.

Scoggins v. Scoggins, 382 Pa.Super. at 517-18, 555 A.2d at 1319-20.

In Scoggins, we acknowledged that marital domicile may be sufficient to establish minimum contacts with a forum state. The term “domicile” has been defined in this Commonwealth as:

the place in which, both in fact and intent, the home of a person is established without any purpose to return to a former home; the place where he lives, in distinction from that where he transacts his business; the place where he chooses to abide, in distinction from that in which he may be for a temporary purpose.

Wallace v. Wallace, 371 Pa. 404, 410, 411, 89 A.2d 769, 771 (1952).

Wife avers that Pennsylvania is the site of the marital domicile of the parties. However, we note that the terms domicile and residence are not interchangeable. “[W]hereas residence is a physical fact, domicile is a matter of intention.” Bernhard v. Bernhard, 447 Pa.Super. at 118, 668 A.2d at 546. While marital residence is a factor, it is only one of many considerations taken into account when determining domiciliary intent. See Bernhard v. Bernhard, 447 Pa.Super. 118, 128, 668 A.2d 546, 551 (1995) (determining domicile for purposes of divorce action). This is especially true in cases involving military persons.

A service person’s domicile is presumed to be the domicile as of his time of enlistment. Zinn v. Zinn, 327 Pa.Super. at 131, 475 A.2d at 133; Boswell v. South Carolina Ins. Co., 353 Pa.Super. 108, 119, 509 A.2d 358, 363-364 (1986). As we stated supra, “[a] service person’s domicile generally remains unchanged while that person is temporarily stationed in another state on temporary duty.” Boswell v. South Carolina Ins. Co., 353 Pa.Super. 108, 119, 509 A.2d 358, 363 (1986). Moreover, there is a presumption that the original domicile continues and a person asserting a change of domicile must demonstrate such change by clear and convincing evidence. Zinn v. Zinn, 327 Pa.Super. at 130, 475 A.2d at 133. Again, in addressing wife’s first issue, we found that the evidence is insufficient to establish that husband had changed his domicile to Pennsylvania. Keeping this in mind, we are hard pressed to impute a separate, marital domicile upon husband.

However, we do note that in some instances, the mere fact of prior residence without establishing domicile may provide sufficient minimum contacts to justify the exercise of long arm jurisdiction. Scoggins v. Scoggins, 382 Pa.Super. at 522, 555 A.2d at 1322. In Scoggins, this court referred to the holding enunciated by the Alabama Supreme Court in Brislawn v. Brislawn, 443 So.2d 32 (Ala.1983).

In Brislawn, the parties spent ten days following their wedding in Alabama before departing for a tour of military duty in West Germany. Upon separation, wife returned to the United States. However, husband did not return with wife. The Alabama Supreme Court held that in personam jurisdiction could be exercised over the non-resident husband without violating constitutional due process requirements because Alabama was the only place in the United States where the parties had lived together as husband and wife. Under those facts, the Alabama Supreme Court concluded that Alabama had a more significant connection with the marital relationship of the parties than any other jurisdiction in the United States.

Here, however, husband is not currently stationed overseas. We find no extenuating circumstances which would warrant the exercise of jurisdiction over husband based upon the fact that the parties maintained a marital residence in Pennsylvania. In determining marital domicile, we find that wife’s evidence may be sufficient to demonstrate that husband intended to abandon his domicile in Colorado. However, wife’s evidence that (1) she and husband were married and resided in Pennsylvania during their marriage; (2) husband received mail at the alleged marital residence in Pennsylvania; and (3) a Protection from Abuse Order was entered and served upon husband in Pennsylvania, does not meet the clear and convincing standard necessary to determine that husband abandoned Colorado and adopted Pennsylvania as his new domicile. Zinn v. Zinn, supra. Wife presented insufficient evidence that husband intended anything other than a temporary stay in Pennsylvania.

In light of the protections afforded military personnel in determining domicile, and in light of the fact that the record discloses no other contacts by husband with the state of Pennsylvania, we find no error by the trial court in granting husband’s preliminary objections for lack of personal jurisdiction. In so holding, we note that the Revised Uniform Enforcement of Support Act provides that wife may file her petition for support in Pennsylvania.

The order of the trial court is affirmed.

      . The RUESA provides, in pertinent part:
      Filing. — The petition may be filed in the appropriate court of any state in which the obligee resides. The court may decline or refuse to accept and forward the petition on the ground that it should be filed with some other court of this or any other state where there is pending another action for divorce, separation, annulment, dissolution, habeas corpus, adoption or custody between the same parties or where another court has already issued a support order in some other proceeding and has retained jurisdiction for its enforcement.
      23 Pa.C.S.A. § 4513(b).


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    677 A.2d 1213
    Richard GOTTLIEB, D.M.D., Appellee, v. David E. SMITH and Norma R. Smith, Appellants.
    Superior Court of Pennsylvania.
    Argued April 9, 1996.
    Filed May 13, 1996.
    Reargument Denied July 17, 1996.

      Alison C. Munin, Pittsburgh, for appellants.
    David Abrams, Monroeville, for appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   DEL SOLE, Judge.

This matter began before a district justice. Appellee, a dentist, sought to recover the balance due for his services. He retained counsel who filed a complaint seeking damages in the amount of $705.50. The complaint was filed in the magisterial district in which the Appellee’s dental office was located. This was the location where the services were performed.

When filing the complaint on behalf of their client, counsel listed his address “in care of’ their law firm, which is located outside of the magisterial district. After service, Appellants’ counsel wrote the district justice raising a question of venue. However, neither side appeared at the hearing, and an award was entered for Appellee as permitted.

Appellants then filed for a writ of certiorari, raising a question of venue. Pa. R.C.P.D.J., Rule 1009, 42 Pa.C.S.A. When the transcript of the proceedings was returned in reply to the writ, it named the plaintiff and listed his address as “in care of’ and set forth the name and address of his lawyers. Admittedly, this address is outside of the magisterial district.

The trial court, in order to resolve the venue question, accepted affidavits which establish that the Appellee’s office, where the dental services were performed, is located within the magisterial district. In fact, at argument, it was conceded that venue was proper.

However, Appellants argue on appeal that Pa. R.C.P.D. J., Rule 1001, 42 Pa.C.S.A. prevents a trial court from looking beyond the district justice transcript to determine venue. With this we disagree. Here, it was apparent on the face of the transcript, that venue could not be determined under any circumstances. To prevent a trial court from creating a record to determine the issue would be ludicrous. Rule 1014, Pa.R.C.P.D.J. requires the court to find whether venue is proper, and if not, set aside the award and remand to the correct district court. Trial courts are, therefore, required to factually establish proper venue.

To accept Appellants’ argument in this case, would require us to reverse the trial court, set aside the award, and return the matter to the very same district justice for retrial. We will not engage in such a useless act.

Order affirmed.


author: HESTER, Judge:

text:
    677 A.2d 1214
    Patricia GILL, Appellant, v. Donald Joseph GILL.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1996.
    Filed May 29, 1996.

      Chris F. Gillotti, Pittsburgh, for appellant.
    Ralph L.S. Montana, Clarion, for appellee.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

Patricia Gill appeals from the July 25, 1995 final decree of equitable distribution in which the court divided marital property and granted her past due alimony pendente lite (“APL”) and permanent alimony in the amount of $2,700 per month until age sixty-five. Wife asserts the trial court erred in awarding her only thirty-eight percent (38%) of the marital estate, refusing to grant her motion for an option to compel a forced buy-out of her shares in Husband’s businesses, and denying her request for counsel fees. We affirm the division of marital property but vacate and remand to the trial court for award of counsel fees to Wife and an evidentiary hearing regarding its denial of appellant’s request for a buy-out option.

The testimony reveals the following. The parties married on April 7, 1962. Three children were born of this marriage: Shanna, born August 9, 1962, Donald, born October 2, 1965, and Kelly, born January 26, 1968. All three have attained their majority. The parties first separated in 1978. They lived separate and apart for many years but continued to participate together in business, social, and family functions. Wife traveled with Husband and attended business meetings and joined in family reunions, weddings, and family vacations. The parties attempted a reconciliation in January, 1990, but ultimately separated again in September, 1990.

Hearings were conducted before a master during April, 1993. The master rejected Husband’s argument that the parties had separated when they first lived apart prior to their attempted reconciliation. Therefore, the master included all the accumulation and appreciation in the value of property during that period as part of the marital estate. The master entered proposed findings of fact and conclusions of law. A divorce decree was entered on June 13, 1994. Following the trial court’s denial of exceptions by both parties, the court entered the contested decree of equitable distribution. This appeal followed.

The testimony reveals that Wife earned a bachelor’s degree in elementary education but worked as a teacher for only two years. She stopped teaching following the birth of the second child, Donald, and devoted herself to being a homemaker mother and corporate wife. At the time of the hearings, Wife was working part-time at Penn State University as an academic counselor and earning a net income of $458.00 per month. Currently, Wife is working towards attaining a master’s degree in education.

Husband also initially attained a degree in education and began working as a high school teacher and football coach. His teams did not do well while he was coaching, and he did not want to teach without being a coach. Appellant started to work as a salesman for Amos L. Dolby Company (“Dolby”), which was in the business of selling and providing explosive services to coal mining operations. Husband did extremely well as a salesman, and shortly thereafter, the owner, Mr. Guy Bertiaus, decided to retire and sell the business. Husband arranged to purchase fifty percent of the stock of Dolby. The distributor, Atlas Powder Company, owned the other half of the issued company stock. Husband persuaded Atlas Powder to approve and help finance the sale to him and then persuaded experienced financial and sales managers to work for Dolby in return for granting them minority stock interests in the company.

Husband’s management of Dolby turned it into a thriving enterprise, especially due to increased demand for coal during this period of the national energy crisis. Dolby finances were used to acquire other companies as subsidiaries, including Alpha Environmental Mining Company, a coal strip mining company, which Dolby acquired in return for cash and forgiveness of debt owed by Alpha to Dolby. Ultimately, Alpha Environmental Mining Company was converted into a real estate holding company to avoid competing with the other mining companies to whom Dolby sold explosives. Other subsidiary companies created include Clarion Explosives, Inc., which is in the business of delivering explosive products used by its customers in mining operations, and Union Drfiling and Blasting, Inc., which performs the same function when union-only workers are required by the customers. This arrangement kept Dolby insulated for liability purposes from actual delivery and use of explosives. Husband later helped organize Nobel Insurance Co., a company founded offshore, outside the continental United States, to provide insurance for explosive companies when insurance rates became prohibitive. Finally, Husband invested as a partner with two friends in Auto Group Enterprises, a corporation formed to purchase Guiher Ford and to which State College Ford-Lincoln-Mercury later was added. The parties do not contest the valuation of the assets in the marital estate, which total $4,153,829, including $3,156,-362 assigned to Husband’s business interests.

Initially, we note that our standard of review in appeals from a decree of equitable distribution is clear. In Fonzi v. Fonzi 430 Pa.Super. 95, 99, 633 A.2d 634, 636-37 (1993) (citations omitted), we stated:

Our scope of review in equitable distribution matters is limited. It is well established that “absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution.” When reviewing the record of the proceedings, we are guided by the fact that trial courts have broad equitable powers to effectuate justice and we will find an abuse of discretion only if the trial court has misapplied the law or failed to follow proper legal procedures. The finder of fact is entitled to weigh the evidence presented and assess [sic] its credibility. The fact finder is free to believe all, part or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.

Furthermore, the trial courts have broad equitable powers to effectuate justice in these matters and are to analyze and apply the factors set forth in 23 Pa.C.S. § 3502. Powell v. Powell, 395 Pa.Super. 345, 577 A.2d 576 (1990).

Appellant first argues that the court abused its discretion when it awarded her only thirty-eight percent of the marital assets. She gives great weight to the twenty-eight year length of the marriage and the fact that she has forsaken other opportunities to center her life around home and children. She argues the court, in effect, awarded her fifty percent of the assets as they existed in 1978 which undermined its finding that the parties did not separate until 1990. Moreover, Wife argues that Husband was a passive investor in many of the enterprises outside Dolby, such as the Nobel Insurance Co. stock and Auto Group. Thus, she argues the increase in value is not due to his special effort or skill, and she should share equally in the appreciation. Consequently, she contends that the court’s analysis of the § 3501 factors does not support its ordered distribution in which she received substantially less than one-half of the value of the marital assets and therefore, contends the result is erroneous and an abuse of discretion. She buttresses this argument by noting that Husband was awarded as much as eighty-five percent of certain business assets.

We disagree. In her argument, Wife ignores that she will receive permanent alimony in the amount of $2,700 per month until age sixty-five. This represents an income in excess of $30,000 per year and substantial assets would be required to generate this annual income. Thus, if this is considered, it is not unjust in the circumstances to award Wife less than half of the marital assets. Moreover, it is clear Husband received a substantially larger share of the business assets and investments since Wife received a larger share of real estate and stock portfolio investments. We note that Wife received one-half of Husband’s Dolby pension. Since we find the court’s award is supported by the record, we do not find an abuse of discretion or an error of law. Fonzi v. Fonzi, supra.

Next, Wife argues that the trial court erred in rejecting her request for the option of a forced buy-out of her interest in Dolby and the Auto Group. She contends that nearly thirty-eight percent of the distribution to her consists of forty-five percent interest in shares of Dolby and Alpha, and a fifteen percent share in stock in the Auto Group. This leaves Husband in control in both instances with a majority interest. It leaves Wife powerless as a minority shareholder subject to Husband’s whim and without power or remedy should Husband take actions which prove inimical to her interests. It further ties her to him and exposes her to possible future acrimony. She contends that such an arrangement is especially egregious where there were liquid assets available, such as Nobel stock, which could have been awarded to her instead of the minority stock she received.

In Barletta v. Barletta, 506 Pa. 404, 409, 485 A.2d 752, 754 (1984)(footnote omitted), we stated:

We are not saying that the remedy of ordering a buy-out is prohibited by the statute. We note that under Section 401(c), the hearing court is given full equity power to “grant such other relief or remedy as equity and justice require”; and we can envision situations where the distribution of certain components of marital property would be truly impracticable or economically unwise. However, we interpret section 401(c) as a as general provision which must be construed as subservient to the more specific provision of Section 401(d) that a hearing court shall “divide, distribute or assign the marital property between the parties.” 1 Pa.C.S. § 1983.
... [W]e hold that prior to a court making or approving a buy-out remedy, it is required to make specific findings as to why a division of the property cannot be effectuated. Finally, any valuation of the cost of a proposed buy-out must be tied to the value actually received from a bona fide purchaser.

In Barletta, the Supreme Court concluded that the buy-out of personal property was not justified where it could easily have been divided without further ramifications, and the trial court provided no basis for ordering the buy-out remedy other than convenience. In contrast, in Ryan v. Ryan, 528 Pa. 186, 596 A.2d 140 (1991), the Supreme Court held that a buy-out was appropriate in certain instances since nothing compels an in-kind distribution in all circumstances. Ryan involved closely held stock as opposed to easily divisible personal property as in Barletta. The majority in Ryan rejected the dissenting view that an in-kind distribution made sense where there was evidence in the record of particular difficulty in valuing the closely held stock, that the wife would be precluded from exercising voting rights for shares she received, and there was no evidence she would be disruptive to the company or attempt to thwart legitimate corporate activities. Noteworthy in Ryan was the fact that the husband was ready, willing, and able to buy-out his former spouse who owned only fifteen percent of the closely held stock, which was non-voting. The Supreme Court concluded that the trial court provided sufficient justification to find it truly impracticable or economically unvñse to divide closely held stock. Consequently, the Supreme Court upheld the buy-out ordered by the trial court.

Instantly, the court accepted the Master’s finding that a buy-out was undesirable and might imperil the economic soundness and viability of Husband’s enterprises. Our examination of the record, however, reveals that this conclusion is not based on any financial analysis or testimony. Rather, Husband indicated he disliked debt, a liquidation would hurt the businesses, and he would like to continue the businesses and pass them to his son. Master’s Hearing, 4/29/93, at 142-45. Additionally, Husband’s proposed distribution was to run the businesses until 1999, when he would convey them to his son and allow his son to negotiate the buy-out of Wife. Indeed, Wife in her proposed distribution agreed to postpone her distribution if guaranteed a substantial permanent alimony. However, we find the court ignored the fact that Husband enjoys a long-standing relationship with the other minority shareholders which could give him effective control to freeze-out Wife. Wife would be powerless not only to defend the value of the principal of her interest in the companies but also to ensure fair treatment with respect to future dividends on her stock. Further, she will receive no corporate remuneration for services as does Husband. There is evidence Husband continues to acquire subsidiary companies, retire corporate debt ahead of schedule, and has spun-off some of the enterprises to his son. Moreover, we conclude there is no evidence that the court adequately weighed the factor of Wife’s enforced co-existence and cooperation with Husband absent the option of a forced buy-out. Also, unlike the situation in Ryan, where the wife’s interest was limited since she owned only fifteen percent of the stock which was nonvoting, here there would be a substantial continued business relationship required between the parties since Wife would be a forty-five percent shareholder of the businesses for the foreseeable future.

In Powell v. Powell, 395 Pa.Super. 345, 361, 577 A.2d 576, 584 (1990), we stated: “[A] trial court granting a divorce may not resort to a buy-out remedy absent specific findings, on the record, as to why the marital property could not be divided.” see also Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984); Brojack v. Brojack, 385 Pa.Super. 502, 561 A.2d 788 (1989) (accord); 23 Pa.C.S. § 401(c, d). Instantly, we conclude the trial court gave inadequate reasons for choosing to reject Wife’s request for a forced buy-out option and insisting on an in-kind distribution which leaves Wife powerless and chained to a continuing economic relationship with her former spouse. Wife proposed her deferral of distribution without knowledge she would receive only thirty-eight percent of the marital estate and possibly anticipated more permanent alimony than she in fact received. We think a much more reasoned analysis is required in these circumstances concerning the decision to make an in-kind distribution when Wife inadequately is protected without at least possessing the option of dissenter’s rights expanded beyond the specified situations in which dissenting rights apply set forth in the Associations Code. See 15 Pa.C.S. § 1571. Accordingly, we remand to the trial court both to re-evaluate and to substantiate its basis for favoring an in-kind distribution and for rejecting Wife’s request to be granted the option to compel a buy-out of the closely held stock of Dolby and the Auto Group if circumstances suggest such a course of action.

Finally, Wife argues that the trial court erred in not awarding her attorney’s fees which became substantial due to Husband’s lack of cooperation and failure to provide business financial data in a timely fashion in order to permit an independent valuation of Husband’s various businesses. The master specifically noted the increased time, expense, and expert fees that directly resulted from this lack of cooperation. She asserts that to deny her counsel fees in light of this and her unequal award of marital assets is an abuse of discretion.

The purpose of a counsel fee award is to enable the more dependent party to litigate the action without being placed at a financial disadvantage. Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984). Instantly, Wife has substantial assets in her own name but earns little income with which to pay her own counsel fees. Accordingly, we find Wife has demonstrated actual need for counsel fees in order to remain “on par” in defending her which is the rational for awarding attorney’s fees. See Perlberger v. Perlberger, 426 Pa.Super. 245, 626 A.2d 1186 (1993); Kohl v. Kohl, 387 Pa.Super. 367, 564 A.2d 222 (1989) (purpose of award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial disadvantage; the parties must be “on par” with one another). We specifically note that in awarding Wife high alimony, the court sought to compensate Wife for the lack of liquid assets and the inability of Husband’s companies to borrow sufficient funds to finance a buy-out of her stock as part of equitable distribution. Consequently, we conclude it is inequitable to require these same funds to be used to pay Wife’s counsel fees. Accordingly, we remand to the trial court to award Wife counsel fees.

Decree affirmed in part and vacated and remanded in part. Jurisdiction relinquished.

      . 23 Pa.C.S. § 3502, in pertinent part, provides:
      (a) General Rule. — In an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors, including:

        (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.


author: OLSZEWSKI, Judge:

text:
    677 A.2d 1219
    LINCOLN AVENUE INDUSTRIAL PARK, Appellee, v. Michael NORLEY and Mary Norley, Husband and Wife, Liberty Arms Distribution, Inc., Liberty Arms Works, Inc., Concrete Service and Supply, Inc., Charles Freels and Freels Corporation. Appeal of Michael Norley, Mary Norley, Liberty Arms Distribution, Inc., Liberty Arms Works, Inc., and Concrete Service and Supply, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued April 16, 1996.
    Filed May 30, 1996.

      Lee M. Herman, Broomall, for appellants.
    Michael B. Kean, West Chester, for appellee.
    Before KELLY, JOHNSON and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On January 13, 1993, appellee Lincoln Avenue Industrial Park (LAIP) caused a confessed judgment to be entered against appellants Michael and Mary Norley and their corporations (hereafter referred to collectively as “the Norleys”). This judgment was entered pursuant to warrant of attorney provisions within two leases LAIP had entered into with Charles Freels. The Norleys filed a petition to open/strike the judgment based upon the fact that none of the Norleys’ names appear upon the face of either lease. On February 23, 1993, the Honorable Lawrence E. Wood denied the petition to strike but opened the confessed judgment so as to decide whether Freels was acting as the Norleys’ agent at the time he signed the leases. After conducting a hearing on this matter, Judge Wood determined that Freels had, indeed, acted as the Norleys’ agent and, consequently, that each lease’s warrant of attorney for confession of judgment applied to the Norleys. As such, Judge Wood closed the confessed judgment subject to a further hearing concerning damages. On March 15, 1995, Judge Wood set damages at $40,334.46 and denied the Norleys’ request to reconsider opening or striking the confessed judgment. This appeal follows.

First, the Norleys contend that a confessed judgment must be stricken where it has been entered against a party who is not named in the warrant of attorney. Judge Wood properly concluded that “[t]he law surrounding this issue is not entirely clear.” Opinion, 2/23/94 at 2. Standard Pennsylvania Practice, however, states that:

Where it does not appear from the face of the instrument, that the signer was signing for, or purporting to sign for, another, no judgment by confession may be entered against the other, since no judgment may be entered against one who does not, from the face of the instrument, appear to have executed the instrument.

11 Standard Pennsylvania Practice 2d § 67:30 (citing Queen City Heating Co., Inc. v. Walden Terrace, Inc., 2 D. & C.2d 598, 602 (1955)). After tireless research and careful consideration, however, we are convinced that the above passage does not accurately reflect the proper law of our state.

Over a hundred years ago, our Supreme Court decided the case of Miller v. Royal Flint Glass Works, 172 Pa. 70, 33 A. 350 (1895). In Miller, the Court addressed the issue of who a judgment by confession may be entered against and concluded that it was not limited to the “name or names appearing in full on the face of the warrant.” Id. at 75, 33 A. at 350. In so deciding, the Miller Court found that “[t]he prothonotary, therefore, in entering the judgment, may inquire who are ‘the persons who executed the warrant,’ in the sense of who are the legal makers of the instrument liable thereon, even though they did not put their own hands to it, and their names do not appear on its face.” Id. (emphasis added.)

Forty-five years later, in Jamestown Banking Co. v. Conneaut Lake Dock & Dredge Co., 339 Pa. 26, 14 A.2d 325 (1940), our Supreme Court affirmed the continued validity of Miller. In Jamestown, the Court stated that “[t]he prothonotary may look beyond the instrument itself and enter judgment against the person or persons who executed the same, but this does not mean signatories alone; it includes partners and principals, whose agents have signed for them.” Id. at 30, 14 A.2d at 327.

The rule in Miller and Jamestown, i.e., that when entering a confessed judgment the prothonotary may look beyond the face of the instrument to include all persons who actually executed the warrant, is in complete harmony with the general rule that an undisclosed principal is liable for the acts and contracts of his agent within the scope of the agent’s authority. See Toll v. Pioneer Sample Book Co., 373 Pa. 127, 94 A.2d 764 (1953). Moreover, these principles are consistent with the rule that “[a] motion to strike judgment will not be granted unless the fatal defect claimed appears on the face of the record.” Bank of America v. Copley Qu-Wayne Associates, 440 Pa.Super. 459, 461, 656 A.2d 121, 122 (emphasis added), alloc. granted, 542 Pa. 631, 665 A.2d 466 (1995). See also Griffin Oil Co. v. Toms, 170 Pa.Super. 203, 205, 85 A.2d 595, 596 (1952) (“a judgment by confession must be self-sustaining on the record”).

Thus, when a lease contains a warrant of attorney, the trial court may look to the entire record to determine whether an undisclosed principal has executed the warrant through an agent. Once such an undisclosed principal has been revealed, confessed judgment may not be stricken despite the fact that the principal’s name does not appear upon the face of the lease. See Miller, supra; Jamestown, supra. Instantly, an affidavit, signed by an LAIP partner, states that Freels entered the lease as an agent for appellants. There is no dispute that this affidavit was properly placed in the record. Consequently, we cannot say that the warrant of attorney was defective on the face of the record and, thus, there exists no basis to strike the confessed judgment. See Jamestown, supra; Miller, supra. See also DeRose v. Lombardi 413 Pa. 258, 260-62, 196 A.2d 336, 338 (1964) (affidavit of agency was sufficient to allow a confessed judgment to be entered against the principal). As such, the Norleys first allegation of error must fail.

The Norleys next allegation of error concerns a third lease, which had been negotiated by LAIP and Concrete Service and Supply Co. (one of the appellant companies owned and operated by Michael and Mary Norley), but never signed by any appellant. Originally, the confessed judgment included sums claimed due under this third lease. Upon realizing that the amounts due under the third lease could not properly be encompassed in a confession of judgment, the trial court severed these amounts from the confessed judgment. On appeal, the Norleys allege that “ ‘unlumping’ the improper confession amount from the remainder of the confessed judgment ... was improper” and that the proper remedy is to strike the entire confessed judgment. Appellants’ brief at 14. We disagree.

The Norleys correctly note that in Dollar Bank v. Northwood Cheese Co., 431 Pa.Super. 541, 551-52, 637 A.2d 309, 314, alloc. denied, 539 Pa. 692, 653 A.2d 1231 (1994) and Colony Fed. Savings and Loan Ass’n v. Beaver Valley Engineering Supplies Co., 238 Pa.Super. 540, 544-46, 361 A.2d 343, 346 (1976), this Court stated that “[i]f a confessed judgment includes an item not authorized by the Warrant, the judgment is void in its entirety and must be stricken.” The Norleys fail to acknowledge, however, that this principle is “one of those general statements which must be read and interpreted in the light of the particular circumstances which gave it expression.” Colony, supra (quoting McDowell Nat’l Bank v. Vasconi, 407 Pa. 233, 235, 178 A.2d 589, 590 (1962)).

The confessed judgments in Dollar Bank and Colony involved single warrant of attorney provisions. As such, there was no question that including an item outside the warrant would pollute the entire confessed judgment. In the instant case, however, three separate warrant of attorney provisions are called in to question. Moreover, only items in the third lease’s warrant pollute the confessed judgment. As such, we find that Colony and Dollar Bank are inapplicable. Further, since, in the case at hand, neither of the first two leases’s warrants were contaminated, we approve of Judge Wood’s “unlumping” the confessed judgment to eliminate its pollution. Consequently, the entire confessed judgment need not be struck and the Norleys’ second allegation of error fails.

The Norleys next argue that, upon Judge Wood opening the confessed judgment, LAIP failed to establish that Freels was in fact an agent for all of the named appellants or that he had authority to sign the warrant of attorney clauses.

Agency is the relationship which results from the consent of one person that another may act on his behalf. Smalich v. Westfall, 440 Pa. 409, 412-14, 269 A.2d 476, 480 (1970). Moreover, “[t]he general rule is that an agency relationship requires no special formalities.” Falconer v. Mazess, 403 Pa. 165, 169, 168 A.2d 558, 560 (1961). “It need not be in writing and it arises whenever a person authorizes another expressly or by implication, i.e., by words and/or by conduct, to act as his agent.” Id. Further, “[i]n the absence of express authority, the power of an agent to execute a warrant of attorney to confess judgment against his principal has generally not been inferred.” Bank of America, 440 Pa.Super. at 463, 656 A.2d at 123.

In the case at hand, after conducting a hearing on the matter, Judge Wood found that Freels was, in fact, the Norleys agent and had authority to sign the warrants. At the hearing, testimony established that Michael Norley, himself, negotiated the first two leases with LAIP. After agreeing on the terms of the leases, however, Norley informed LAIP that he did not want his name to appear in the front of the documents. Instead, Freels, who is Mary Norley’s brother, signed the documents, and soon thereafter Concrete Service and Supply, Inc. took possession of the building space. Further, equipment, owned jointly by Mary and Michael Norley, was moved into the space. It was revealed, however, that the Norleys were to be reimbursed for their rental expenses by PennDOT, who had condemned their prior leasehold interest. Judge Wood found that Michael Norley had Freels sign the leases from LAIP which called for $2,395.84 per month in rent, and then Freels purported to sublet the premises to Norley for $18,000 per month. Michael and Mary Norley directed the PennDOT payments, of $16,875 per month (the lowest outside bid), to be made to Freels. After paying the rent due to LAIP, Freels and the Norleys split the excess of PennDOT’s money.

Thus, LAIP established that Michael Norley negotiated the leases, including the warrant of attorney clauses, and then asked Freels to sign the leases “for him.” N.T., 3/18/94 at 60. Specifically, Freels testified that “[Michael Norley] asked me to lease it for him so I leased it for him.” Id. Further, equipment owned by both Michael and Mary Norley was moved into the space and both Michael and Mary directed PennDOT to pay Freels the rental costs. In light of this evidence, there is no question that Judge Wood could properly find that Freels was acting on behalf of both Michael and Mary Norley and that Freels had express authority to sign the warrant of attorney clauses. See Falconer, supra; Bank of America, supra. Additionally, Concrete Service and Supply, Inc. took possession of the property and rent was paid to LAIP by checks from Concrete Service and Supply, Inc. and Liberty Arms Works, Inc., companies owned and controlled by Michael and Mary. As such, Judge Wood could clearly find that the Norleys were acting in both their individual capacities and as representatives for these companies when they authorized Freels to enter the leases with LAIP. Consequently, the Norleys’ third contention fails with respect to these parties.

Nevertheless, the record is bare concerning evidence that Liberty Arms Distribution, Inc. was in any way involved with, or benefited from, the leases with LAIP. No checks were drawn from Liberty Arms Distribution, Inc.’s accounts nor was there any evidence offered to establish that the company conducted any business on the LAIP premises. As such, it would be inappropriate to find that Freels was acting on Liberty Arms Distribution, Inc.’s behalf in entering the leases with LAIP. Consequently, we find that the confession of judgment must be rendered void with respect to this company. See Bank of America, supra (where person signing the warrant of attorney provision is not authorized to do so, confessed judgment must be vacated).

The Norleys next allege that, as a sub-tenant, a confessed judgment could not be entered against Michael Norley. As noted above, however, evidence was presented which established that Michael Norley was more than just a sub-tenant. Since Norley was, in fact, a principal to the leases with LAIP, it was clearly appropriate to enter a confession of judgment against him. See Jamestown, supra.

Next, the Norleys allege that, after opening the confessed judgment, Judge Wood improperly applied the doctrine of unclean hands to then close the judgment. We acknowledge that Judge Wood did base his decision to close the judgment, in part, upon the doctrine of unclean hands. Nevertheless, having already found on other grounds that the confessed judgment was properly entered against Michael Norley, Mary Norley, Liberty Arms Works, Inc. and Concrete Service and Supply, Inc., we need not reach the merits of this issue. See In re Barnes Foundation, 443 Pa.Super. 369, 376, 661 A.2d 889, 893 (1995) (“On appeal, our Court will affirm a trial court’s Order if it is correct on any legal ground or theory, regardless of the reason or theory relied on below.”).

The Norleys lastly allege that Judge Wood erred in refusing to allow them to supplement the record with the information that LAIP’s partners had federal tax convictions. After reviewing the record, we are convinced that Judge Wood adequately addressed this issue by writing the following:

[T]he well settled rule is that “a new trial based on after discovered evidence will only be granted if that evidence: (1) is new; (2) could not have been obtained at trial in the exercise of due diligence; (3) is relevant and non-cumulative; (4) is not for purposes of impeachment; (5) and must be likely to compel a different result.” D’Emilio v. Board of Supervisors, 157 Pa.Cmwlth. 64, 628 A.2d 1230, 1233 (1993) (citations omitted).
[T]he offer in this case fails for a number of reasons. First in reviewing my notes, I reaffirm my recollection that [the LAIP partners] were offered basically to prove the documents in question. They did give some testimony about what Norley said at this point and that point, but to be frank, I did not even place great credence in those statements at that time; I was well aware that the [LAIP partners] had a strong interest in remembering events in a way that enhanced their own case. Knowing that they were convicted of felonies would therefore not be likely to compel a different result.
In addition, this evidence is obviously offered for the purpose of impeachment, and, since the convictions occurred before the last hearing, could likely have been obtained at that time with little diligence. Consequently, I decline the offer to make that evidence part of the record.

Opinion, 3/15/95 at 2-3. Thus, the Norley’s contention on this issue joins the others in failure.

Based on the foregoing, we find that the order and judgment concerning Michael Norley, Mary Norley, Liberty Arms Works, Inc. and Concrete Service and Supply, Inc. are affirmed. We reverse the order concerning Liberty Arms Distribution, Inc., however, and vacate the judgment against this appellant. Jurisdiction relinquished.

      . We note that accompanying this appeal is Attorney Thomas A. Fosnocht’s application to withdraw as legal counsel for the Norleys. Attorney Fosnocht avers that the Norleys, to this date, have failed to make any payment for legal fees and are without reasonable prospect of being able to pay in the future. Under these circumstances, we believe it is appropriate to grant the application to withdraw. See Rule of Professional Conduct 1.16 (an attorney may withdraw from representing a client if "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled”).


author: CAVANAUGH, Judge.

text:
    677 A.2d 1224
    Leroy KROMER, Jr., Appellant, v. RELIANCE INSURANCE COMPANY; Federal Insurance Company and Solid Waste Services, Inc., Hoch Sanitation Services, Inc., George J. Balikian. George J. BALIKIAN, Appellant, v. RELIANCE INSURANCE COMPANY; Federal Insurance Company and Solid Waste Services, Inc., Hoch Sanitation Services, Inc., Leroy Kromer, Jr.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1996.
    Filed June 4, 1996.

      Matthew Kurzweg, Pittsburgh, for Kromer.
    Frank J. Madey, Allentown, for Balikian.
    John E. Freund, III, Allentown, for Reliance Insurance, appellee.
    Michael J. Plevyak, Paoli, for Federal Insurance Company and Solid Waste Services, Inc., and Hoch Sanitation Services, Inc., appellees.
    Before CAVANAUGH, EAKIN and OLSZEWSKI, JJ.
   CAVANAUGH, Judge.

This is an appeal from a consolidated Declaratory Judgment Action in which the trial court entered a judgment in favor of appellees Reliance Insurance Company and Federal Insurance Company, and against appellants Leroy Kromer, Jr. and George J. Balikian. Appellants argue that Reliance’s excess-umbrella policy and Federal’s commercial excess policy are “motor vehicle liability insurance policies”, as defined by the 1984 Pennsylvania Motor Vehicle Financial Responsibility Law [“PMVFRL”] and, that they therefore, are required to provide uninsured and underinsured motorist coverage in the amount of their stated bodily injury liability coverage. 75 Pa.C.S.A. § 1731(a) (1984). We disagree and affirm.

There was evidence to support the following: Appellants Leroy Kromer and George Balikian were employed by Hoch Sanitation Services, Inc., and both worked as runners on a garbage truck. While working, appellants were struck and injured by a vehicle insured by State Farm Insurance Company. Both appellants settled with State Farm for the limits of coverage under the State Farm policy ($100,000/$300,000).

Hoch Sanitation maintained a business automobile insurance policy with Reliance/Planet Insurance Company which provided uninsured and underinsured motorist coverage with a $1,000,000 liability limit. Both appellants submitted claims and received compensation, with Balikian receiving $750,000 and Kramer receiving $250,000.

Reliance had also issued an excess-umbrella policy to Hoch Sanitation with a $1,000,000 liability limit. In addition, Federal Insurance Company issued a commercial excess liability policy with an $8,000,000 limit to cover any excess claims above Reliance’s excess-umbrella policy. Appellants sought Declaratory Judgment from the Lehigh County Court of Common Pleas that the subject excess-umbrella policies were motor vehicle liability insurance policies as defined by the PMVFRL, and therefore, provided additional underinsured motorist coverage.

Before rendering its decision, the trial court not only recognized that the Pennsylvania appellate courts have not addressed whether umbrella/excess policies provide uninsured/underinsured motorist coverage, but also noted the existing split of authority over this issue. The trial court then concluded that the better rule (which is followed by the majority of jurisdictions and is consistent with the decision of Electric Insurance Company v. Rubin, 32 F.3d 814 (3d Cir.1994), which, in turn, predicted how our Supreme Court would decide this issue) is that umbrella and excess liability policies do not provide uninsured/underinsured motorist coverage. Upon reviewing the language of Reliance’s umbrella policy and Federal’s excess liability policy, and considering the purpose and scope of such policies in general, the trial court concluded that neither policy is a motor vehicle insurance policy within the meaning of the PMVFRL and, therefore, did not provide underinsured motorist coverage. This appeal followed.

Appellants argue that the subject policies are indeed motor vehicle insurance policies and that they are entitled to full recovery as under the terms of any motor vehicle liability policy.

The governing provision states:

(a) General rule. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage).

75 Pa.C.S.A. § 1731(a)(1984). The legislature has not defined “motor vehicle liability insurance” thereby leaving the question open as to whether umbrella or excess liability policies fall within the statute. This issue has not been addressed by the Pennsylvania appellate courts, but has been addressed by other jurisdictions while interpreting similar uninsured/under-insured motorist statutes. Courts in other jurisdictions have come to different conclusions over this issue and have typically based their resolution of the issue on the language of the uninsured/underinsured motorist statute enacted in their state.

Courts that have addressed this issue have often observed that there are generally two (2) types of uninsured/underinsured motorists statutes: “minimum liability” statutes and “full recovery” statutes. The majority of jurisdictions have “minimum liability” statutes which are “intended to protect injured motorists by insuring that they will be able to recover at least an amount equivalent to what would have been available if the insured had been injured by a driver who maintained the required statutory minimum liability coverage.” Sidelnik v. American States Insurance Co., 914 S.W.2d 689, 693 (Tex.App.1996) (emphasis added). On the other hand, “[f]ull recovery” statutes require insurers to provide uninsured/underinsured motorist coverage equal to the amount of bodily injury liability insurance that the policy provides. Rowe v. Travelers Indemnity Co., 245 Mont. 413, 800 P.2d 157, 159 (1990). The often stated policy considerations underlying “full recovery” statutes is to “allow full recovery under the terms of any applicable policies when a person is injured by an uninsured motorist.” Continental Insurance Co. v. Howe, 488 So.2d 917, 919 (Fla.Dist.Ct.App.1986).

Here, the premise of the appellants’ argument is that the Pennsylvania uninsured/underinsured motorist statute is a “full recovery” statute. 75 Pa.C.S.A. § 1731(a) (1984). Appellant argues that unlike “minimum liability” jurisdictions where most courts have refused to include excess and umbrella policies within the definition of a motor vehicle liability insurance policy, “full recovery” jurisdictions have ruled that such policies are indeed motor vehicle liability insurance policies, thus providing uninsured/underinsured motorists coverage. To support his argument, appellant cites cases from “full recovery” jurisdictions that have found umbrella and excess liability policies to be within the definition of a motor vehicle liability insurance policy as defined by their respective uninsured/underinsured motorist statutes. See Southern American Insurance Co. v. Dobson, 441 So.2d 1185, 1191 (La.1983) (Full recovery statutes reflect the policy “to provide full recovery under the terms of any applicable polic[y] to a person injured, through no fault of his own, by an uninsured or underinsured motorist”); Ormsbee v. Allstate Insurance Co., 176 Ariz. 109, 859 P.2d 732, 735 (1993) (Finding umbrella policy within the statute; “Because the statute links the amount of uninsured/underinsured coverage to the amount of liability coverage, it makes sense that, as the latter increases, as through umbrella policies, the former must also increase”); House v. State Auto. Mutual Insurance Co., 44 Ohio App.3d 12, 540 N.E.2d 738 (1988)(excess liability policy must comport with full recovery statute as no exception has been made for such policies); accord, American Economy Insurance Co. v. Canamore, 114 Or.App. 348, 834 P.2d 542 (1992).

Appellants argue that Reliance’s umbrella policy and Federal’s excess commercial liability policy are identical in all material respects to the policies addressed in the aforementioned “full recovery” jurisdictions. Appellants point out that these jurisdictions have “full recovery” statutes similar to § 1731 of the PMVFRL; that both Federal and Reliance’s policies make reference to automobile coverage; that neither policy specifically excludes uninsured or underinsured motorist coverage; and that Pennsylvania did not statutorily exclude umbrella or excess commercial liability policies from the 1984 PMVFRL, nor did they restrict the phrase “motor vehicle liability insurance policies” to mean only primary coverage. Appellant maintains that, in light of these factors, we should adopt the rule followed by the cited jurisdictions, and find that excess and umbrella policies are motor vehicle liability insurance policies as defined by § 1731(a), and thus required to provide uninsured/underinsured motorist coverage. We disagree, and first look to relevant federal court decisions which we find highly persuasive.

The U.S. District Court for the Eastern District of Pennsylvania and the Third Circuit Court of Appeals have rejected the notion that uninsured and underinsured motorist benefits should be included in umbrella and excess liability policies. In Electric Insurance Company v. Rubin, 32 F.3d 814 (3d Cir.1994), the court held that Electric had no obligation to provide coverage under a personal excess liability insurance policy it had issued to Nathan Rubin for claims made by Patricia Rubin arising from an automobile accident. The application identified the Rubins’ two automobiles and included a $2,000,000 liability limit along with a statement indicating that the applicants must have underlying liability policies. Rubin argued that the excess policy was governed by the PMVFRL and, therefore, coverage could not be excluded. The court rejected appellant’s argument, and predicted that our Supreme Court would not hold that an excess policy would be subject to the PMVFRL. The court stated:

The excess policy in this case simply was not written to satisfy the MVFRL. In fact, inasmuch as the policy required Nathan Rubin to carry underlying liability coverage, it is clear that the excess policy contemplated that Nathan Rubin have some other policy to satisfy MVFRL. In these circumstances, we find nothing in the MVFRL to support the Rubins’ claim that the excess policy had to be written with liability coverage conforming to the MVFRL’s requirements.

Id. at 818-819 (citations omitted).

In Boyce v. St. Paul Fire and Marine Insurance, No. CIV. 92-6525, 1993 WL 175371 (E.D.Pa. May 25, 1993), the issue was whether an excess liability policy provided uninsured motorist benefits. The language of the excess policy indicated that it would pay damages the insured is “... legally obligated to pay if ... damages are over the coverage limits of your basic coverage.” The basic coverage policy stated that “we’ll pay amounts you ... [as the insured] ... are legally entitled to collect from the owner ... of an uninsured vehicle ...” In considering the policy language of the two policies the court found:

This language shows that in an uninsured motorist accident, the party that is legally required to pay for damages is the uninsured motorist. In this instance, neither the plaintiffs nor the insured is legally required to pay the uninsured benefits under the underlying insurance policy. Since the excess policy only covers excess exposure for the insured or other protected persons, and neither the insured nor the plaintiffs has [sic] excess exposure, the court finds that the excess policy does not provide coverage for uninsured motorists benefits. It is limited to damages that the insured ... [are] “legally required to pay.”

Id. at 9. Plaintiffs then filed a motion for reconsideration in this case in which they requested the court to reform the excess liability policy so as to provide uninsured motorist coverage as required by § 1731 of the PMVFRL. In its memorandum denying Plaintiffs motion the court reasoned as follows:

Section 1731 only requires that motor vehicle liability policies contain certain uninsured motorists benefits. Unlike the primary insurance contract which provided uninsured motorist benefits through a motor vehicle insurance policy, the policy in dispute between the parties is not a motor vehicle liability insurance policy. Rather, the policy provides umbrella excess liability coverage. As an excess policy, it provides coverages to a protected person for all types of liability that the protected person may be legally required to pay over and above his or her basic insurance coverage, of whatever type. Therefore, the court will not reform the excess liability insurance policy to provide four million dollars in uninsured motorist coverage since the poliey in question is an excess liability policy rather than a motor vehicle liability policy ...

Boyce v. St. Paul Fire and Marine Insurance Company, No. CIV. 92-6525, 1993 WL 229961, at *2, (E.D.Pa. June 25, 1993).

In Stoumen v. Public Service Mutual Insurance Co., 834 F.Supp. 140 (E.D.Pa.1993) affirmed, 30 F.3d 1488 (1994), plaintiff argued that her personal catastrophe liability umbrella policy constituted a motor vehicle liability insurance policy under § 1731 of the PMVFRL. The plaintiff essentially made the same argument as the appellant makes in the case sub judice, namely, that since Pennsylvania is a “full recovery” jurisdiction, our Supreme Court would likely follow those “full recovery” jurisdictions that have held that umbrella and excess liability insurance policies are subject to uninsured/under-insured motorist statutes. In rejecting the plaintiffs argument, the court initially noted that it did “not believe that the type of uninsured motorist statute that a legislature chooses to adopt is dispositive of the issue of whether the legislature also intends to include umbrella policies within the statutes reach.” Id. at 142.

The court then listed important reasons why umbrella policies should be excluded from uninsured/underinsured motorist statutes:

First, umbrella policies insure the policyholder in general, rather than a particular automobile within the state. In fact, not only is it immaterial where the insured’s car is kept, car ownership is immaterial. In either case, the insurance company will issue the insured a policy. Thus, the court finds that umbrella policies are not issued “with respect to a[] motor vehicle registered or principally garaged in this Commonwealth ...” § 1731(a). Second, umbrella policies’ raison d’etre is to provide individuals with affordable protection against excess judgments of third parties, rather than provide individuals with automobile insurance. This fundamental difference is underscored by the difference in premiums that an insurance company charges for the two types of policies. Due to the relative risks associated with each, the premiums that insurance companies charge for umbrella policies are substantially lower than the premiums that insurance companies charge for automobile insurance. Third, the amount of coverage provided by umbrella policies is far greater than coverage provided in the typical automobile insurance policy. Thus, if the Court were to adopt the plaintiffs position, a motorist holding an umbrella policy would actually be better off if he became involved in an accident with an uninsured motorist because he could then submit a claim under his umbrella policy and receive millions of dollars in coverage.

Id. at 143 (citations omitted). The court then went on to conclude that the Pennsylvania Supreme Court would hold that umbrella policies are not automobile insurance policies as defined by § 1731 of the PMVFRL.

Despite having a “full recovery” statute, the Connecticut Supreme court has also held that excess and umbrella policies are not motor vehicle liability insurance policies and, therefore, do not provide uninsured or underinsured motorist coverage. In Mass v. U.S. Fidelity and Guaranty Company, 222 Conn. 631, 610 A.2d 1185 (1992), the court ruled that a personal excess policy was not an automobile liability policy within the meaning of their uninsured/underinsured motorist statute. The court stated “that excess or umbrella policies ... serve a purpose distinct from that served by policies that exclusively cover liability from damages arising out of the ownership, maintenance or operation of an automobile.” Id., 610 A.2d at 1190. The court noted that just because the policy covered, among other things, automobile liability that, in itself, did not convert the excess policy into an automobile liability policy within the meaning of the statute. Id. The court found that the language of the policy indicates that it was intended solely to protect the insureds from an infrequent risk of catastrophic loss in the form of excess judgments rendered against them. Id. Additionally, the policy did not expressly refer to uninsured motorist coverage, and the fact that it did not expressly exclude uninsured motorist coverage did not make it ambiguous.

Moreover, in response to plaintiffs argument concerning Connecticut being a “full recovery” statute, the court held that the type of uninsured motorists statute enacted, whether it offers “full recovery” or “minimum recovery”, is not dispositive of the question presented. Id., 610 A.2d at 1194 note 16. The plaintiffs were compensated in an amount equal to the liability limits under the automobile insurance policy. As such, the court ruled that the plaintiffs “received the full protection contemplated by the statute when they purchased the underlying automobile liability policy.” Id. at 1194.

Similarly, the New Hampshire Supreme Court, despite having a full recovery statute, also ruled that umbrella policies do not fit the legislative definition of a motor vehicle liability policy. In United Services Automobile Association v. Wilkinson, 132 N.H. 439, 569 A.2d 749 (1989), the court also concluded that umbrella policies are distinguishable from motor vehicle liability policies for purposes of uninsured motorist coverage. The court recognized the legislature’s intention to provide uninsured motorist coverage equal to the amount of motor vehicle liability coverage purchased, however, the court stated that it cannot “assume the legislature intended this requirement to apply to whatever form the coverage takes. If the legislature desires uninsured motorist coverage to equal liability coverage from any source, including umbrella-type policies, it may amend the statute accordingly.” Id., 569 A.2d at 755.

At least one commentator agrees that umbrella policies are indeed unique and distinguishable from general automobile policies.

Umbrella policies serve an important function in the industry. In this day of uncommon, but possible, enormous verdicts, they pick up this exceptional hazard at a small premium. Assuming one’s automobile and homeowners policies have liability limits of $100,000 or even $500,000, the umbrella policy may pick up at that point and cover for an additional million, five or ten million. It may assume as a primary carrier certain coverages not included elsewhere, ... but there is no intention to supplant the basic carriers on the homeowners or automobile coverages.... However, because of the misunderstanding of the courts as to the nature of such coverages, they have been held to fall within the definition of automobile liability insurance.

J.A. Appleman & J. Appleman, Insurance Law and Practice, § 5071.65, P. 107 (1981) (footnotes omitted) (emphasis added).

We must also reject appellant’s incantation that the PMVFRL was intended to afford the “greatest possible coverage to insured and injured claimants.” This overly generous reading of the Act’s intentions harkens back to the now defunct No-fault Act with its “maximum feasible restoration” language which no longer controls. Jeffrey v. Erie Ins. Exchange, 423 Pa.Super. 483, 621 A.2d 635 (1993), allocatur denied 537 Pa. 651, 644 A.2d 736 (1994); Frazier v. State Farm, 445 Pa.Super. 218, 665 A.2d 1 (1995).

Having this discussion in mind, we will now focus upon the language of Reliance’s umbrella policy as well as Federal’s' commercial excess liability policy. “In interpreting an insurance contract, we must ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, we will give affect to the language of the contract.” Paylor v. Hartford Insurance Co., 536 Pa. 583, 586, 640 A.2d 1234, 1235, (1994). Reliance’s excess umbrella policy provides coverage for comprehensive general liability, automotive liability, employers’ liability as follows:

I. Coverage. The company hereby agrees, subject to the limitations, terms and conditions hereinafter mentioned, to pay on behalf of the insured all sums which the insured shall be obligated to pay by reason of the liability
(a) imposed upon the insured by law, or
(b) assumed under contract or agreement by the Named Insured and/or any officer, director, stockholder, partner or employee of the Named Insured, while acting in his capacity as such, for ultimate net loss on account of:
(a) personal injuries, including death at any time resulting therefrom,
(b) property damage,
(c) advertising liability, caused by or arising out of each occurrence happening anywhere during the policy period.

Federal’s Commercial Excess Liability Policy provides that Federal agreed:

to pay on behalf of the insured loss resulting from an occurrence insured by all of the policies scheduled in ... the Declarations.

Federal’s Commercial Excess Liability Policy also provided that “loss” means in pertinent part:

all sums actually paid or sums which the insured is legally obligated to pay in the settlement or satisfaction of a claim

Neither of the above policies express any intention of providing first party underinsured motorist coverage. In fact, it is clear from the language of both policies that they provide third party liability, coverage only. This is evident from the phrase used in both policies: “to pay on behalf of the insured ... sums which the insured is legally obligated to pay”. Here, the appellee Hoch is obviously the insured. Reliance and Federal’s obligation as insurers of Hoch, is to pay on the part of Hoch, sums Hoch is legally obligated to pay to third parties. As the trial court properly concluded “[t]he underinsured motorists claims of [appellants] do not constitute sums which the insured is legally obligated to pay nor are they payments made on behalf of the insured.” Here, appellants, who are employees of Hoch, are making a claim for first party underinsured motorist coverage under Reliance’s Umbrella Policy and Federal’s Commercial Excess Policy when the language of both clearly indicates that no such coverage exist. Coverage under Federal’s and Reliance’s excess policies is only triggered by claims of liability against the insured from third parties. Such coverage is not triggered by claims for first party uninsured motorist coverage. Accordingly, we find that neither of the subject excess insurance policies provide under-insured motorist coverage. See Liberty Mutual Insurance Company v. McLaughlin, 412 Mass. 492, 590 N.E.2d 679 (1992) (clear language of policy protects from excess judgment against an insured; does not provide uninsured motorists coverage); Cincinnati Insurance Company v. Miller, 190 Ill.App.3d 240, 137 Ill.Dec. 755, 546 N.E.2d 700 (1989) (“liability” in excess policy refers to liability for losses to persons other than the insured); Matarasso v. Continental Casualty Company, 82 A.D.2d 861, 440 N.Y.S.2d 40 (1981), affirmed 56 N.Y.2d 264, 451 N.Y.S.2d 703, 436 N.E.2d 1305 (1982) (umbrella policy protects against claims from third parties; “[t]he uninsured motorist coverage provided by the underlying automobile policy does not involve claims of liability against the insured from third parties and is not incorporated by the umbrella policy”).

Moreover, we reject appellants’ invitation to follow those jurisdictions with “full recovery” statutes who have bootstrapped excess and umbrella policies to their respective uninsured/underinsured motorist statutes under the guise of carrying out the legislatures intent of allowing “full recovery under the terms of any applicable policies when a person is injured by an uninsured motorist.” Howe, 488 So.2d 917, 919 (Fla.App. 3 Dist.1986). We are in accord with those courts that have determined that the form of uninsured/underinsured motorist statute that a legislature chooses to adopt is not ipso facto dispositive of whether or not umbrella or excess policies provide uninsured or underinsured motorist benefits. See Stoumen, 834 F.Supp. 140 (E.D.Pa.1993); Mass, 222 Conn. 631, 610 A.2d 1185 (1992); Rowe, 245 Mont. 413, 800 P.2d 157 (1990); MacKenzie v. Empire Insurance Cos., 113 Wash.2d 754, 782 P.2d 1063 (1989). In any event, appellants settled for the full limits of liability under Hoch’s business automobile policy issued by Reliance which provided underinsured motorist coverage. As such, appellants received the full protection contemplated by the statute when they were compensated by Hoch’s underlying automobile policy. See Mass, 222 Conn. 631, 610 A.2d 1185 (1992). Furthermore, the Umbrella and Commercial Excess Policies were simply not written to satisfy § 1731 of the PMVFRL. Unlike uninsured/underinsured automobile insurance, Federal’s Commercial Excess Policy and Reliance’s Umbrella policy provide third party coverage to protect against infrequent risks of catastrophic loss in the form of excess judgments rendered against them. Therefore, Reliance’s umbrella policy and Federal’s Commercial’s excess liability insurance policies are not motor vehicle liability insurance policies as defined by § 1731 of the PMVFRL.

We find no merit to appellants next argument that the policies are arguably ambiguous. We have reviewed the policies and have concluded that there is no language which would suggest an intent to provide underinsured motorist coverage. Nor do we find language which would permit the imposition of added coverage to the contract.

Finally, appellants argue that the Doctrine of Reasonable Expectations mandates that the insurance policies be construed in favor of the insured. When considering issues of coverage under insurance contracts the proper focus is the reasonable expectation of the insured. St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 59, 630 A.2d 28, 30 (1993). “However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous”. Id. (citations omitted). As we have already stated, the policies were indeed clear and unambiguous, and gave no indication of providing first party underinsured motorists coverage. Therefore, appellants’ final claim is meritless.

Order Affirmed.

      . Since the appellants were injured in 1988, the 1984 enactment of the PMVFRL governs this case. In 1990 the Pennsylvania Legislature amended § 1731, making the purchase of uninsured motorist and underinsured motorist coverage optional.

      . Courts in "minimum liability” jurisdictions have generally found, that the minimum level of insurance provided by the underlying policy provided all the the protection contemplated by the statute. See, Lisa Kay Gregory, "Excess" or "Umbrella" Insurance Policy as Providing Coverage for Accidents With Uninsured Motorist Coverage for Accidents With Uninsured or Underinsured Motorists, 2 ALR 5th 922 (1992). Even where these statutes provide for optional increases in coverage, courts have found that such optional increases only concern the primary automobile policies, not separate excess or umbrella policies. Id. at 934. For additional analysis concerning the applicability of umbrella and excess policies, and the comparison between "minimum liability” statutes as compared to “full recovery” statutes. See Doto v. Russo, 140 N.J. 544, 659 A.2d 1371 (1995); Jalas v. State Farm Fire and Casualty Co., 505 N.W.2d 811 (Iowa 1993); Sidelnik, 914 S.W.2d 689, (Tex.App.1996); Archunde v. International Surplus Lines Insurance Co., 120 N.M. 724, 905 P.2d 1128 (App.1995).

      . An insurance expert testified at trial and succinctly explained the difference between a liability insurance coverage and underinsured/uninsured motorist coverage:
      A liability policy is commonly known and referred to as a[sic] third party coverage. There are three parties, the insurance company; the insured and the claimant [I]f the insured is liable for whatever is claimed, the insurance company will pay on behalf of the insured to the claimant the damages sought up to the liability limits____ [U]ninsured/underinsured motorist coverage is not liability coverage in that it’s [ ] first party coverage. It deals between the insurance company and the insured, and the insurance company agrees to reimburse or to pay the insured, what the insured is entitled to because of damages it sustained by some negligent tortfeasor.
      Trial Transcript at 35-36, 10/26/94.

      . In Both Florida and Kansas, umbrella policies were held to be subject to their uninsured motorist statutes mainly because their statutes were of the "full recovery” type. See e.g., Chicago Insurance Co. v. Dominguez, 420 So.2d 882 (Fla.App.1982) review denied, 430 So.2d 450 (Fla.1983); Bartee v. R.T.C. Transportation, Inc., 245 Kan. 499, 781 P.2d 1084 (1989). After these cases were decided, the legislatures in both states amended their uninsured motorist statutes for the sole purpose of excluding umbrella policies.


author: POPOVICH, Judge.

text:
    677 A.2d 1232
    Anna JEDLICKA and Anne Jedlicka, her daughter, Appellees, v. Jared W. CLEMMER, III, and Mary E. Clemmer, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 10, 1996.
    Filed June 5, 1996.

      Jeffrey Lundy, Punxsutawney, for appellants.

      Jennifer Kirchler, Pittsburgh, for appellees.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This appeal arises from a boundary dispute between Jared W. and Mary E. Clemmer, appellants, and Anna and Anne Jedlicka, appellees, which prompted the Jedlickas to file a Complaint in Ejectment. The property in dispute is an 8.5 acre parcel of land which is located between the Jedlicka and Clemmer properties. On this appeal, the Clemmers present the following issue: Did the trial court err in refusing to grant the Clemmers’ motions for judgment notwithstanding the verdict (judgment n.o.v.) and for a new trial where the trial court instructed the jury on boundary theories for which the Jedlickas failed to present sufficient evidence. Upon review, we affirm the judgment of the trial court denying the Clemmers’ post-trial motions.

The facts of the present case were as follows: In 1956, Turner Streams and Millie Streams subdivided their property located in Indiana County and offered to sell two parcels of approximately 70 acres each. On May 26,1956, James Jedlicka signed an Article of Agreement and gave $300.00 in cash to hold one of the parcels. Mr. Jedlicka was informed that the remaining parcel of land was to be bought by Walter Naughton and Frank Vegley. On June 7, 1956, James Jedlicka signed a sales agreement which was subsequently recorded in the Indiana Courthouse. The agreement stated that the Jedlickas would receive 70 acres, more or less, but did not set forth the boundaries of the acreage.

Before the parties’ deeds were signed, Mr. Jedlicka, Mr. Naughton, Mr. Vegley and Quincey Jones, a surveyor, conducted a survey of both parcels to determine their respective boundaries. The parties agreed upon a specific boundary line which they marked with metal spikes and pins. In addition, the parties agreed to certain monuments, including an old rail fence, specific rocks and large maple trees, which further defined the bounds of each parcel. In December of 1957, the southern portion of the tract of land was conveyed to the Jedlickas. When Mr. Jedlicka learned that the deed only conveyed 63 acres of land, he requested that Mr. Streams resurvey the land. Mr. Streams responded that the property would not be re-surveyed and that the property line determined by the parties and the surveyor would stand. Thereafter, the Jedlickas, Mr. Naughton and Mr. Vegley claimed their portion of the land as determined during the walking survey. Mr. Jedlicka and/or family members have owned the southern parcel of land since the original conveyance in 1957.

Mr. Naughton and Mr. Vegley owned the northern tract of land for approximately nine years during which time the boundary line walked by all parties was undisputed. Mr. Naughton and Mr. Vegley conveyed the northern parcel in May 1965 to Dennis and Barbara Hagney. The Hagney’s owned the property for approximately four years, never contesting the boundary line. In November 1969, the Hagneys conveyed the property to Joseph and Irene Olah who owned the property without dispute for approximately fifteen years. Finally, in April 1984, Mrs. Olah conveyed the property to Jared and Mary Clemmer, appellants herein.

In March of 1991, the Clemmers began entering the 8.5 acres between the two properties which the Jedlickas claimed as their own. In response, the Jedlickas commenced an action in ejectment against the Clemmers. On January 16, 1995, the jury rendered its verdict in favor of the Jedlickas, declaring the disputed 8.5 acres to be their property. The trial court denied the Clemmer’s post-trial motions for judgment n.o.v. and a new trial. This appeal followed.

When reviewing the denial of a motion for judgment n.o.v. or new trial, we must view the evidence presented at trial in a light most favorable to the verdict winner, the Jedlickas, granting them the benefit of every inference while rejecting all unfavorable testimony. Ludmer v. Nernberg, 433 Pa.Super. 316, 320-23, 640 A.2d 939, 941-42 (1994); Glover v. Com., Dept. of Transp., 167 Pa.Cmwlth. 87, 89-90, 647 A.2d 630, 631 (1994). The denial of a motion for judgment n.o.v. will be reversed only in the case where there was insufficient competent evidence to sustain the verdict. Armstrong v. Paoli Memorial Hosp., 430 Pa.Super. 36, 41-43, 633 A.2d 605, 608 (1993). “The standard of review for an appellate court is the same as that for a trial court: judgment n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper.” Id.

Specifically, the Clemmers claim that the trial court should have granted their motion for judgment n.o.v. or for a new trial because the jury was instructed on boundary resolution theories on which the Jedlickas presented insufficient evidence. The trial court instructed the jury on three theories: marking of boundary by contracting parties, consentable line by dispute and compromise, and consentable line by recognition and acquiescence. Because the jury rendered a general verdict in favor of the Jedlickas, the record does not reveal upon which theory the verdict was based. When a jury has been presented with several theories pleaded in the alternative, the verdict will be upheld on review if the evidence was sufficient to prove a valid cause under any of the theories. Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 268-70, 545 A.2d 926, 931 (1988). Therefore, we must examine the three theories presented to the jury and determine if the jury could reasonably have rendered a verdict in favor of the Jedlickas under any one of the theories.

The first theory, marking of boundary by contracting parties, maintains the well established rule that “where there is a conflict between courses and distances or quantity of land and natural or artificial monuments, the monuments prevail.” Pencil v. Buchart, 380 Pa.Super. 205, 213, 551 A.2d 302, 306 (1988). 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, 95-96, 18 A. 480, 482 (1889).

In the present case, it is undisputed that in 1956, the Jedlickas, Mr. Naughton and Mr. Vegley agreed upon a boundary line between the two parcels of land and marked such boundary with spikes, pins and specific monuments. From 1956 until 1991, this boundary line had not been disputed by the Jedlickas nor any of the Clemmers’ predecessors in interest. Accordingly,

The general rule is that one who claims title to property through another, regardless of the nature of the transfer whether by the act of the parties or the act of law, is bound by earlier acts or declarations of his predecessor and takes the title cum (mere. Under this rule all acts and declarations of the owner of land made during the continuation of his interest tending to show the character or extent of his possession or interest, or the location of boundaries, are competent evidence not only against himself but also against those who claim through or under him.

Plauchak v. Boling, 439 Pa.Super. 156, 167, 653 A.2d 671, 676 (1995) (quoting Dawson v. Coulter, 262 Pa. 566, 571, 106 A. 187, 188 (1919) (citations omitted)). Thus, the Clemmers are bound by the boundary line agreed upon by their predecessors in interest, Mr. Naughton and Mr. Vegley, and acquiesced to by the Hagneys and the Olahs.

When faced with a boundary dispute, the primary function of the court is “to ascertain and effectuate the intent of the parties at the time of the original subdivision.” Plott v. Cole, 377 Pa.Super. 585, 590-91, 547 A.2d 1216, 1219 (1988). Therefore, we find that the jury could reasonably have found in favor of the Jedlickas based upon the theory of marking boundaries by contracting parties.

The next boundary resolution theory submitted to the jury was the “consentable line” doctrine. There are two ways in which a party can prove a consentable line: by dispute and compromise, or by recognition and acquiescence. The record reveals sufficient evidence to support a finding by the jury that the 1956 boundary line had become a binding consentable line by either theory.

To prove a consentable line by dispute and compromise, the following three elements must be satisfied: 1) a dispute with regard to the location of a common boundary line, 2) the establishment of a line in compromise of the dispute; and 3) the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith. Niles, supra, 545 A.2d at 930; Plott, supra, 547 A.2d at 1220. Under either consentable line theory, it is not necessary that the boundary line be substantial. Niles, supra, 545 A.2d at 931. As the court held in Niles, the jury in the present case could have found that the 1956 survey line had been laid in settlement of or to avoid a dispute regarding the doubtful location of the boundary, and that both parties had agreed to abide by the survey line and give up any claims of title that were inconsistent with the line.

The elements required to prove a binding consentable line by recognition and acquiescence are: 1) a finding that each party has claimed the land on his side of the line as his own; and 2) a finding that this occupation has occurred for the statutory period of twenty-one years. Plott, supra, 547 A.2d at 1221; Plauchak, supra, 653 A.2d at 675. As previously stated, once the 1956 survey established the boundary between the two parcels of land, neither the Jedlickas nor any of the Clemmers’ predecessors in interest contested the boundary. It was not until 1991, thirty-five years later, that the Clemmers disputed the boundary line. As the Clemmers are bound by the acts and declarations of their predecessors in title, the jury could reasonably have found that they were estopped from denying the boundary line to which their predecessors had acquiesced for more than twenty-one years. See Plauchak, supra, 653 A.2d at 677.

Accordingly, we find that the jury’s verdict in favor of the Jedlickas could reasonably have been sustained under at least one of the three boundary resolution theories. Therefore, the trial court did not abuse its discretion in denying the Clemmers’ motions for judgment n.o.v. and for a new trial based on the instructions submitted to the jury.

Judgment affirmed.