author: MONTGOMERY, Judge.

text:
    624 A.2d 1075
    Ronald D. PULEO and M. Elizabeth Puleo, Husband and Wife, Appellees, v. Regis THOMAS and Donna Thomas, Husband and Wife, and Leroy Thomas and Louisa Thomas, Husband and Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Dee. 9, 1992.
    Filed May 19, 1993.

      Robert P. Petyak, Ebensburg, for appellants.
    Thomas J. Sibert, Ebensburg, for appellees.
    Before TAMILIA, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

The plaintiff-appellees, Ronald D. and M. Elizabeth Puleo, instituted the instant equity action, requesting an injunction against the defendant-appellants. By this suit, the plaintiffs sought to stop the defendants from placing encroachments upon a right-of-way which allegedly interfered with the plaintiffs’ ingress to and egress from their residence. After conducting hearings, the trial court ordered the defendants to remove any and all obstructions which they had placed within the parameters of the roadway which comprised the right-of-way. In the alternative, the court granted the defendants the option of fulfilling three conditions: (1) removing all barriers from the right-of-way except springs and septic leach fields; (2) marking the boundaries of the septic leach fields and springs with protective devices, subject to approval of said boundaries and devices by the court prior to installation; and (3) paying the plaintiffs $6,000.00 each, a total of $12,000.00, in compensation for plaintiffs’ difficulties, inconvenience and expenses caused by the obstructions on the right-of-way. The court further ruled that if all defendants did not agree to fulfill the three alternative conditions, all of the encroachments had to be removed. Exceptions, in the form of a posttrial motion, were filed by the defendants. The trial court denied those exceptions, and entered a final order in the case. The defendants thereafter filed the instant appeal.

The defendants have raised a number of contentions of error by the trial court in this equity case. They first maintain that the trial court failed to make specific findings of fact, but only stated conclusory determinations to support its equitable order. The defendants next argue that the evidence did not support the trial court’s factual or legal conclusions or its decree. In support of their second argument, the defendants rely on many matters placed into evidence in the hearings before the trial court.

We first note that the defendants, in their posttrial motion, failed to raise the specific contention that the trial court’s adjudication did not include a detailed recitation of findings of fact. Of course, a failure to raise an issue in posttrial motions or exceptions would normally result in a waiver of that issue for purposes of appellate review. Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084 (1990); Pa.R.Civ.P. 227.1(b). However, the defendants’ posttrial exceptions did challenge the trial court’s factual determinations, and argued that they were not supported by the record. As discussed above, such arguments are again raised on appeal by the defendants. In such a setting we must assure that the trial court’s adjudication and decree nisi are supported by an adequate statement of the facts, so as to provide an adequate basis for appellate review. Purdy v. Zaver, 398 Pa.Super. 190, 580 A.2d 1127 (1990); Fiumara v. Fiumara, 285 Pa.Super. 340, 427 A.2d 667 (1981). We are constrained to conclude that the adjudication in this case is deficient in failing to detail factual findings in a manner which will permit meaningful review.

Pa.R.Civ.P. 1517(a), which governs adjudications in equity proceedings, states:

“(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.”

While equity courts customarily prepare, or recite on the record, numbered and detailed findings of law and fact, it is clear that the Rule does not require numerated findings, and allows an adjudication and discussion in narrative form. Purdy v. Zaver, supra; Fiumara v. Fiumara, supra; Omrcanin v. Hassler, 8 Pa.Cmwlth. 224, 226, n. 2, 302 A.2d 878, 882, n. 2 (1973). Without specific findings of fact, however, an equity decree is not valid. Weisel v. McBride, 191 Pa.Super. 411, 156 A.2d 613 (1959).

The trial court’s adjudication in this case was set forth in an opinion and order it issued on January 21, 1991. After briefly reciting a general description of the case and the plaintiffs’ requested relief in a single introductory sentence, the court set forth only the following, regarding the facts:

“The Court held a view of this right of way and was impressed with the difficulties presented by the topography that is not evident from a two-dimensional map. The right of way cuts along ground that has rather steep slopes in areas. These slopes greatly diminish the possible solutions in this case because they would require great expense to relocate the travelled portion of the right of way.
The subject right of way was used by all three (3) parties, and there is no dispute that the Plaintiffs have a right to use the right of way in question. The Court finds that the Defendants had no legal right to place obstructions within the parameters of the right of way. The evidence definitely established that the Defendants’ encroachments have caused interference with the Plaintiffs’ use of the right of way, and have made travel on the lane increasingly more difficult, inconvenient, costly, and dangerous than it would be without the impediments.”

It is evident that the foregoing recitation by the trial court does not comply with the requirements of Rule 1517(a), nor provide a basis for our court to engage in a meaningful appellate review. The trial court’s adjudication does not address, in any detail, the significant evidence presented by the parties during two days of hearings. Such evidence consisted of testimony by the parties and other witnesses, including a surveyor and an engineer. Photographs, a survey, correspondence, an engineer’s report and drawings were also introduced into evidence. There were significant factual issues raised concerning a number of matters, including the exact nature of the claimed right-of-way and whether or not the alleged obstructions created difficulties in the plaintiffs’ ingress and egress from their property. The trial court’s opinion does not provide any explanation of its findings regarding the many factual matters and legal questions in dispute in the litigation. Rather, it only briefly and generally states some broad conclusions to support the court’s order.

We recognize that in some other cases where a chancellor’s findings have been deficient, appellate courts have conducted an independent review of the record to determine whether the chancellor’s conclusory findings had support in the underlying facts. See Lefkowicz v. Blumish, 442 Pa. 369, 275 A.2d 69 (1971); Lombardo v. DeMarco, 350 Pa.Super. 490, 504 A.2d 1256 (1985). However, because a remand of this case is required on other grounds, as will be discussed later in this opinion, it is appropriate that we also direct the trial court, after remand, to prepare a detailed adjudication, in compliance with Rule 1517.

The issue which causes us to remand this case for further action is the appellants’ challenge to the alternative remedial option the trial court offered them, which included an award of money damages in the amount of $12,000.00. Our review of the record did not reveal any evidentiary basis for the computation of such compensatory damages. A court in equity has the jurisdiction to award damages, in addition to providing for equitable relief. See, Frankel v. Northeast Land Co., 391 Pa.Super. 226, 570 A.2d 1065 (1990). However, a court may not award damages without any evidentiary basis in the record for doing so. Maxwell v. Schaefer, 381 Pa. 13, 112 A.2d 69 (1955). Because the record evidence does not appear to support any damage award, it is clear that we must vacate the trial court’s order, and remand this case for further consideration.

In such circumstances, we decline to now review other issues raised by the appellants, which obviously would be more efficiently reviewed after a detailed adjudication is prepared in the trial court. If either party wishes to appeal after the trial court prepares its adjudication, and revises its order, it is likely that one or more issues raised on appeal will be directed toward specific factual determinations enunciated in the adjudication. Also, new issues may arise for appellate consideration, while others may be resolved and not be presented for review in future appeal proceedings. Accordingly, we will not retain jurisdiction over this action.

The order of the trial court is vacated and this case is remanded for reconsideration and further action consistent with this opinion. Jurisdiction is not retained.

      . The trial court did not orally declare any findings of fact on the record during the proceedings in this case.

      . We also note that the plaintiffs did not specifically request monetary damages in their complaint in this case.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    624 A.2d 1078
    COMMONWEALTH of Pennsylvania, Appellant, v. Gregory NESMITH. COMMONWEALTH of Pennsylvania, Appellant, v. Richard REYES.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1993.
    Decided May 13, 1993.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Stuart Lev, Asst. Public Defender, Philadelphia, for appellees.
    Before CIRILLO, BECK and KELLY, JJ.
   BECK, Judge:

These consolidated Commonwealth appeals challenge the trial court’s application of Pa.R.Crim.P. 6013, the Municipal Court speedy trial rule, to prompt trials de novo in the Court of Common Pleas following Municipal Court convictions.

Specifically, the Commonwealth challenges the Philadelphia Court of Common Pleas’ dismissal of all criminal charges against defendants already convicted by the Municipal Court where the defendants’ trials de novo before the Court of Common Pleas commenced a single day after the mechanical Rule 6013(g) rúndate as a result of court congestion. Because we conclude that, for different reasons, appellees’ Rule 6013 speedy trial rights were not violated, we reverse. We will address separately the impact of Rule 6013(g) upon each appellee.

The trial histories of these cases are substantially similar. Appellees Richard Reyes and Gregory Nesmith were tried separately before the Philadelphia Municipal Court on unrelated criminal charges. Their Municipal Court trials were timely under Rule 6013(a)(2). Appellees each filed an appeal for a trial de novo in the Court of Common Pleas. The cases were subsequently listed for arraignment on March 13, 1992 in the same Common Pleas courtroom. Appellees were both represented by thé Public Defender’s office, and their cases were scheduled for trial on May 12, 1992.

On May 11, 1992, the Public Defender filed Rule 6013 petitions to dismiss the charges against appellees, asserting that their Rule 6013(g) rundates expired that day. The trial court conducted an evidentiary hearing on May 12, 1992, and discharged the defendants. At the hearing the Commonwealth presented the testimony of Charles R. Lanzalotti, Deputy Manager of Criminal Listings for the Philadelphia Court of Common Pleas. Mr. Lanzalotti testified extensively regarding the administrative procedures used to schedule appellees’ trial before their rundates in compliance with the speedy trial rules. The trial court concluded that the Commonwealth had not been duly diligent in bringing appellees to trial before the expiration of their Rule 6013 periods, and granted appellees’ Rule 6013 petitions. These appeals followed.

The timeliness of Common Pleas trials de novo following Municipal Court convictions are determined by Pa. R.Crim.P. 6013, the Municipal Court speedy trial rule. Rule 6013(g) provides that

A trial de novo in the Court of Common Pleas shall commence within a period of ninety (90) days after the notice of appeal from the Municipal Court is filed. In all other respects the provisions of Rule 1100 shall apply to such trials in the Court of Common Pleas.

When the Commonwealth is unable to bring a defendant to trial within the period specified by the speedy trial rules, it has the burden of proving that it acted with due diligence in attempting timely to try the defendant. Commonwealth v. Edwards, 528 Pa. 103, 107-08, 595 A.2d 52, 54 (1991).

Our review of the trial court’s orders granting appellees’ Rule 6013 petitions is limited to determining whether the court abused its discretion or committed an error of law in finding that the Commonwealth was not duly diligent in bringing appellees to trial within the 90-day time limit imposed by Rule 6013(g). Commonwealth v. Wamsher, 395 Pa.Super. 384, 577 A.2d 595, 602-603 (1990). We are limited to the evidence presented at the Rule 6013 hearing and the findings of the trial court, and must view the evidence in a light most favorable to appellees as the prevailing parties below. See Commonwealth v. Edwards, 528 Pa. at 107-11, 595 A.2d at 54-55. After reviewing the records using these standards, we find that the trial court abused its discretion by dismissing the charges against appellees.

Appellee Nesmith filed his notice of appeal for a trial de novo on February 11, 1992. Under Rule 6013(g), Nesmith’s mechanical rúndate was May 11, 1992. Nesmith was not brought to trial until May 12, 1992, the day after the 90-day mechanical rúndate.

At the Rule 6013 hearing, the Commonwealth presented evidence to explain the cause of the delay in Nesmith’s ease and to establish its due diligence. Charles R. Lanzalotti, Deputy Administrator for Criminal Listings for the Philadelphia Court of Common Pleas, testified that initially appellees’ cases were scheduled for trial on March 13, 1992, the earliest possible date consistent with the trial court’s business. Mr. Lanzalotti further stated that the Commonwealth never made any requests to delay appellees’ trials. According to Mr. Lanzalotti, fifty-four criminal cases were listed for trial on March 13, 1992, and six courtrooms were available to try criminal cases. Of the fifty-four cases listed in the trial listing courtroom on that date, forty were cases in which defendants were represented by the Public Defender. Appellees’ cases were the last two cases on the list for the day.

Mr. Lanzalotti described in detail the procedure used to assign trial dates following arraignment of the fifty-four cases. Each case was dealt with in the order in which it appeared on the court’s list. The court staff attempted to comply with the speedy trial rules and schedule trials in a manner minimizing police overtime costs. The forty Public Defender cases were scheduled for trial, however, according to their Rules 1100/6013 status and the availability of assistant public defenders in the trial courtrooms. The rúndate of each case was identified as the case was called from the list. Cases which had no apparent Rules 1100/6013 rúndate problems were assigned trial dates which avoided police witness overtime; cases which had potential Rules 1100/6013 rúndate problems were assigned the earliest possible date consistent with the court’s business.

Using this procedure on March 13, 1992, some of the Public Defender cases, which appeared earlier on the list and did not have rúndate problems, were assigned trial dates earlier than appellees’. Mr. Lanzalotti explained that earlier trial dates could have been given to appellees had they been represented by private counsel. No earlier dates were available for appellees because they were represented by the Office of the Public Defender, which had requested that only eight Public Defender cases be scheduled daily for trial in each courtroom. Under these circumstances, by the time appellees’ cases were called for arraignment and scheduled for trial, the earliest possible date consistent with the court’s business and defense counsel’s scheduling request was May 12, 1992.

After hearing the Commonwealth’s evidence, the trial court found that the Commonwealth was not duly diligent in bringing Nesmith to trial before his Rule 6013 rúndate. The court based this finding on its conclusion that the Commonwealth failed to pay sufficient attention to the potential rúndate problems in these cases by failing to bring the rúndate problems in these cases to the attention of the court. The court’s opinion implies that the Commonwealth’s lack of due diligence was based upon its failure to ask the court to handle these cases, the last two of the fifty-four cases on the court’s list on March 13, 1992, in a manner different from the rest of the cases on the list. The trial court’s imposition of such an obligation upon the Commonwealth, in order to establish its due diligence under Rule 1100, must be rejected.

Our courts have consistently rejected the view that the trial courts, particularly in urban areas with severely crowded criminal and civil dockets, must continually arrange and rearrange their schedules to accommodate the speedy trial rules. See, Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976); Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009, 1013 (1983); Commonwealth v. Smith, 524 Pa. 72, 569 A.2d 337, 338-340 (1990), Commonwealth v. Gaines, 407 Pa.Super. 94, 98-100, 595 A.2d 141, 143 (1991); Commonwealth v. Wamsher, 395 Pa.Super. 384, 399-400, 577 A.2d 595, 603 (1990); Commonwealth v. Miller, 390 Pa.Super. 129, 568 A.2d 228 (1990); Commonwealth v. Bell, 386 Pa.Su per. 164, 562 A.2d 849 (1989). As the Supreme Court stated in Commonwealth v. Crowley, “[w]hile the trial court may be required to rearrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, ... it should not be required to do so to avoid a delay of under 30 days.... ” Crowley, 502 Pa. 393, 403, 466 A.2d 1009, 1014 (footnote omitted).

Thus, in Commonwealth v. Gaines, 407 Pa.Super. 94, 98-100, 595 A.2d 141, 143 (1991), we reversed the Rule il00(d)(2) dismissal of criminal charges based upon an administrative delay ,of eight days past the 120-day Rule 1100 period triggered by our remand to the trial court for retrial after direct appeal. Id., 407 Pa.Super. at 98-100, 595 A.2d at 143. Similarly, in Commonwealth v. Wamsher, 395 Pa.Super. at 384, 577 A.2d at 595, we reinstated criminal charges discharged under Rule 1100(d)(1) where court congestion required scheduling a retrial following withdrawal of a guilty plea ten days past the mechanical rúndate. Id.

Here, we find no evidence to support the trial court’s finding that the delay of appellee Nesmith’s trial a single day past his mechanical Rule 6013(g) rúndate was caused by the Commonwealth’s lack of due diligence. Rather, the record establishes that the Commonwealth was ready to try Nesmith before his rúndate, but was prevented from doing so by the court’s congested docket and the Public Defender’s request that the court assign a limited number of cases to the assistant public defenders in each trial courtroom. The trial court thus abused its discretion by disregarding the evidence of judicial delay presented at the evidentiary hearing and granting appellee Nesmith’s Rule 6013 petition.

The court’s grant of Appellee Reyes’ petition was erroneous for the simple reason that the mechanical Rule 6013 rúndate had not expired as of the May 12, 1992 trial date. Appellee Reyes’ Municipal Court trial was held on January 27, 1992. When Reyes filed his notice of appeal for a Common Pleas trial de novo, his motion was date-stamped by the Clerk of Quarter Sessions as filed on February 21, 1992. The Court of Common Pleas Docket Entries statement confirms this filing date. The notice of appeal also contains a hand-written notation that the notice was filed on February 11, 1992. Although the Court of Common Pleas Docket Entries statement confirms the February 21st filing date, the trial court calculated Reyes’ rúndate based upon the unofficial February 11,1992 date alleged in appellee’s Rule 6013 petition. Clearly, the unsigned, hand-written record of the date of filing cannot control the operation of Rule 6013.

On the basis of the official trial court docket, we conclude that appellee Reyes filed his notice of appeal for a trial de novo on February 21, 1992, the date of filing as it appears on the trial court docket. Cf. Commonwealth v. Gaines, 407 Pa.Super. 94, 98-100, 595 A.2d 141, 143 n. 1 (1991) (date of remand of the record as it appears in the appellate court docket, not the date on which the court administrator actually receives the case, triggers the Rule 1100(d)(2) period for retrial following direct appeal). Using the filing date as it appears on the trial court docket, the 90-day period in which to commence Reyes’ trial de novo pursuant to Rule 6013(g) would have expired on May 21, 1992. Under these circumstances, Reyes’ Rule 6013 speedy trial rights were not violated by his being brought to trial on May 12, 1992, and his Rule 6013 petition should have been dismissed as premature.

For the foregoing reasons, the orders granting appellees’ petitions to dismiss the bills of information are vacated, the charges against appellees are reinstated and the cases are remanded for trial de novo in the Court of Common Pleas.

Reversed and remanded. Jurisdiction relinquished.

      . All Municipal Court convictions are appealable as a matter of right to the Court of Common Pleas, pursuant to 42 Pa.C.S.A. § 1123(a)(2), which provides for the Municipal Court’s exclusive jurisdiction over (2) Criminal offenses by any person (other than a juvenile) for which no prison term may be imposed or which are punishable by imprisonment for a term of not more than five years, ... In cases under this paragraph the defendant shall have no right of trial by jury in the municipal court, but shall have the right of appeal for trial de novo, including the right of trial by jury, to the court of common pleas....

      . Rule 6013(a)(2) requires that Municipal Court triads of defendants arraigned after June 30, 1975 commence “no later than one hundred twenty (120) days from the date on which the preliminary arraignment is held.”
      Appellee Reyes' Municipal Court trial on charges of simple assault and resisting arrest was held on January 27, 1992, 88 days after his preliminary arraignment on October 31, 1991. Appellee Nesmiths’ Municipal Court trial on charges of possessing narcotics and illegal weapons, and resisting arrest, commenced with arraignment on June 15, 1991.
      Appellee Nesmith was convicted of all charges at the conclusion of trial on February 5, 1992, more than three years after his preliminary arraignment on December 4, 1988. The lengthy delay in completing Nesmith’s Municipal Court trial resulted from his repeated violations of bail by failing to appear in court for his numerous and- repeatedly rescheduled trial dates. The periods of delay resulting from Nesmith’s unavailability were entirely excludable from the Rule 6013(a)(2) period. Pa.R.Crim. 6013(d)(2)(i).

      . The trial court also concluded that the Commonwealth was not diligent because it failed to "ask for an ‘out-of-squad’ date for trial.” Opinion, Lazarus, J. (7/15/92). This conclusion is unsupported by the evidence presented at the Rule 6013 hearing. Mr. Lanzalotti testified that “out-of-squad" dates, trial dates which do not require overtime payments for police witnesses, were only given to cases that had no rúndate problems. Appellees’ cases, however, were certified for the earliest possible dates without regard to police overtime precisely because they presented rúndate problems.
      At the evidentiary hearing, the trial court apparently considered the Commonwealth’s failure to file a petition to extend the Rule 6013(g) period as evidence of the Commonwealth’s lack of due diligence. The court appropriately omitted from its opinion this basis for granting appellees’ petitions, as the the filing of extension petitions is no longer required by Rule 1100 as recently amended. See Commonwealth v. Gaines, 407 Pa.Super. 94, 98-100, 595 A.2d 141, 143 (1991).

      . Even if the incorrect filing date was used to calculate Reyes’ rúndate, the scheduling of his trial de novo one day later would not have violated his Rule 6013(g) speedy trial rights for the reasons discussed with respect to appellee Nesmith.


author: POPOVICH, Judge:

text:
    625 A.2d 57
    In re Mamie Myrtle BLOCH, Deceased. Appeal of Mildred CONWAY, Cora Fox and Hiram Becker.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1993.
    Filed May 11, 1993.

      Richard J. Makoul, Allentown, for appellants.
    Robert M. Davison, Bethlehem, for participating parties.
    Before BECK, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Lehigh County, Orphans’ Court Division, dismissing the appeal of the Appellants from the decree of the Register of Wills admitting to probate the will and codicil of Mamie Myrtle Bloch, deceased. We affirm.

The record discloses that the Appellants filed a petition for declaratory judgment seeking to invalidate the 1983 will of the decedent on grounds of undue influence, breach of the attorney-client relationship by the scrivener of the will (Charles E. Shoemaker, Jr., hereinafter “Charles Jr.”), noncompliance with conditions precedent by the beneficiaries and the scrivener’s violation of the Rules of Professional Responsibility (1.8) in preparing a will in which his father (Charles E. Shoemaker, Sr., hereinafter “Charles Sr.”) and his paramour (Cheryl Passaro) were the residuary legatees.

A hearing was conducted on January 16, 1991, wherein it was recounted that in April of 1983, the decedent inquired of Charles Sr. if he could recommend an attorney to assist her and her husband in preparing wills. Charles Sr. indicated that his son, Charles Jr., was an attorney.

Thereafter, the Blochs made an appointment with Charles Jr. During the course of the meeting, the Blochs indicated their intention to allow for disposition of each’s estate to the other. Should one predecease the other, however, the remaining estate was to be divided equally between Charles Sr. and Ms. Passaro. Also, Charles Sr. was to be designated as executor should Mr. Bloch not survive his wife.

When counsel asked why such a distributive scheme, when there were existing family members, the Blochs explained that: “They were not on close terms with any of the family members, and that this is what they had planned to do, and this is what they had wanted to do.” N.T. 78. Specifically, when Charles Jr. asked as to the natural objects of their bounty (i.e., brother, sisters, niece and nephew), the Blochs “chose not to leave any thing to any of those people.” N.T. 175. Charles Jr. did not recall the “exact language used [by the Blochs], but it was not complimentary to the family members. What they desired to do was to — , to make a gift to the two people they were closest to.” Id.

In compliance with the wishes of the Blochs, Charles Jr. prepared their wills and forwarded them for review. Included in the documents were identical Articles IV and V, which read:

ARTICLE IV. GIFT OF PERSONAL AND HOUSEHOLD EFFECTS
I give all my automobiles, and all my other articles of personal or household use, together with all insurance relating thereto to my [spouse], if [s/]he survives me by thirty (30) days. If [s/]he does not so survive me, I give all such property to Charles E. Shoemaker, Sr. and Cheryl Passaro, in equal shares, who have agreed to care for my [spouse] and myself for as long as we each shall live, utilizing any or all of such property for this purpose, and who have agreed to care for my dog and cats for as long as said shall live. ARTICLE V. RESIDUARY ESTATE
I give, devise and bequeath the rest, resideue [sic] and remainder to my [spouse] ... if [s/]he survives me by thirty (30) days. If [s/]he does not so survive me, I direct that the rest, residue and remainder of my estate shall be divided into two (2) equal shares and distributed to Charles E. Shoemaker, Sr. and Cheryl Passaro, in equal shares, who have agreed to care for my [spouse] and myself for as long was we each shall live, utilizing any or all of such property for this purpose, and who have agreed to care for my dog and cats for as long as said shall live.

Also, Charles Sr. was named as the contingent executor should Mr. Bloch predecease Mrs. Bloch.

On April 19, 1983, the Blochs’ wills were executed, witnessed and notarized (as self-executing wills) in counsel’s office. The next time counsel heard from Mrs. Bloch was in 1986. Mr. Bloch had died and Mrs. Bloch asked Charles Jr. to probate her husband’s will. This was accomplished. Late in 1986, Mrs. Bloch again contacted Charles Jr. to alter her will and make specific bequests of personal property to a variety of people. Counsel recommended that a codicil be drawn. Mrs. Bloch agreed and an amendment to the 1983 will was drafted and executed on December 31, 1986.

On July 27, 1987, Mrs. Bloch contacted Charles Jr. about changing her 1983 will and 1986 codicil in order to revise the distribution of her estate, a change which deleted Charles Sr. and Ms. Passaro and devised the property to the decedent’s nephew (Jack Conway, who was to receive her two cats and dog) and sister (Mildred Conway, who was to be the recipient of a marble table). The remaining portion of the estate and all insurance were to be divided equally among the sisters and brother of the decedent, i.e., Mildred Conway, Cora Fox, Betty Crayosky (who has since died), and Hiram Becker. See Article 4, Exhibit 0-3.

Under the residuary clause of the proposed 1987 will, the previously named sisters and brother were listed as residuary legatees.

On August 26, 1987, Charles Jr. sent a letter with a copy of the new will to Mrs. Bloch. He directed her to review the instrument and make any corrections she deemed necessary. If there were no changes, Mrs. Bloch was to phone Charles Jr. for an appointment to execute the originals. This never came to pass.

Upon Mrs. Bloch’s death, Charles Sr. and Ms. Passaro learned for the first time while attending her funeral that they were included in the decedent’s will. When the decedent’s 1983 will was submitted for probate by Charles Sr. and Ms. Passaro, the Appellants claimed the will was invalid and sought confirmation of this assertion by way of a Declaratory Judgment. Once a hearing had been held, the Orphans’ Court dismissed the Declaratory Judgment as an incorrect procedure by which to assail the validity of the 1983 will. The proper course was to have the matter reviewed, initially, by the Register of Wills.

The Register of Wills admitted the 1983 will and 1986 codicil for probate. On review by the Orphans’ Court, which the parties stipulated could be limited to the testimony proffered at the January 16, 1991, hearing, the appeal of the decree of the Register of Wills’ admission of the decedent’s will and codicil was dismissed. This appeal followed.

The first issue raised by the Appellants concerns the claim that the will of 1983 is invalid on the basis that the decedent was unduly influenced in the preparation of the document.

It is axiomatic that in this jurisdiction undue influence can be established by a showing that: 1) a person in a confidential relationship with a testatrix or testator, 2) received a substantial benefit under a will, and 3) the will was written by a testatrix or testator who was of weakened intellect. Estate Reichel, 484 Pa. 610, 400 A.2d 1268 (1979). If all three elements are proven by clear and convincing evidence, the burden of proof shifts to the proponent of the will to prove affirmatively the absence of undue influence. In re Estate of Agostini, 311 Pa.Super. 233, 457 A.2d 861 (1983).

From our examination of the testimony offered at the January 16, 1991, hearing, we find that the decedent’s friends, neighbors and next-of-kin depicted her as a self-styled, independent person who was not easily swayed in her thinking on a subject about which she felt strongly. She knew the objects of her bounty, was protective of her property and was lucid up until the final days of her life. The scrivener of the 1983 will confirmed that, at the time the will at issue was being prepared and discussed, the decedent “was aware of what she had, where she was, and what she was doing.” N.T. 177.

In light of the absence of any evidence of a weakened intellect on the part of the decedent, the Appellants have failed to establish (one of the prongs necessary to prove) undue influence. See In re Estate of Mammana, 388 Pa.Super. 12, 564 A.2d 978 (1989), allocatur denied. Accordingly, this claim must fail.

The final issue, and a most interesting one, is whether the language appearing in Articles IV and V (reproduced supra) creates a condition precedent (the non-compliance of which is not disputed) invalidating the 1983 will so as to create an intestacy allowing for the Appellants to inherit as siblings of the decedent in preference to the Appellees/Charles Sr. and Ms. Passaro.

A condition is defined to be any qualification, restriction, or limitation annexed to a gift, and modifying or destroying essentially its full enjoyment and disposal. Conditions on which estates are limited in wills may be precedent or subsequent. If precedent, the estate does not vest until the condition is fulfilled. If subsequent, it is liable to be divested on the subsequent failure of the condition. A condition precedent must be strictly, literally, and punctually performed. It may be valid although there is no ulterior limitation of the estate to which it is annexed. In construing a particular provision of a will, the intention of the devisor to create an estate on condition governs, but it must be manifested in express terms, or by clear implication, and it is to be gathered from the whole instrument and the existing facts.

Adams v. Johnson, et al., 227 Pa. 454, 76 A. 174 (1910) (Citations omitted). Further, the preceding is to be read in light of the precept that where an intestacy would result were the gift held to be contingent, it is a consequence which the law always seeks to avert. McCauley’s Estate, 257 Pa. 377, 101 A. 827 (1917). Thus, the absence of a gift over is indicative of a non-conditional gift. See Brumbach’s Estate, 373 Pa. 302, 95 A.2d 514 (1953).

We believe that the language of the will, in light of the extrinsic facts and circumstances in this case, has created a latent ambiguity which made the introduction of parol evidence via Charles Jr. admissible. As our Supreme Court wrote in Beisgen Estate, 387 Pa. 425, 431, 128 A.2d 52, 55 (1956):

Where a latent ambiguity exists we have repeatedly held that parol evidence is admissible to explain or clarify the ambiguity, irrespective of whether the latent ambiguity is created by the language of the Will or by extrinsic or collateral circumstances. [Citations omitted]

Instantly, upon a review of the 1983 will and 1986 codicil, we find it proper for the Orphans’ Court to have taken testimony on the intention of the testatrix because of the latent ambiguity which surfaces when the language in Articles IV and V is read in context. For example, nowhere did the testatrix make provision for an avoidance of intestacy had the legatees failed to comply with the article in the will referencing the “care” to be provided to herself and her animals.

The 1986 codicil indicates clearly that the testatrix was aware of what a contingent (conditional) clause consisted of since one appears in that instrument. However, the testatrix took no measure to state in specific, clear and unequivocal terms that a condition (“if, then”) existed to the legatees taking under her 1983 will. See, e.g., Adams, supra; Truxal v. Truxal, 333 Pa.Super. 535, 537-38, 482 A.2d 1001, 1002-03 (1984).

Charles Jr. stated, repeatedly, that it was never the intention of Mrs. Bloch (or for that matter her husband) to condition (in a contractual sense) the receipt of the Bloch estate only after the performance of various conditions precedent as a prelude to inheritance; to-wit:

My understanding was that ... Mr. and Mrs. Bloch, both, and independently, wished to leave the residuary of their estates, in the event that the other was dead, to my father and to Ms. Passaro. And because that — , when there are existing family members, that was so unusual that I asked for an explanation of why that was so. And the language that you see there, perhaps less than artfully drafted, was my attempt to explain why it was that my father and Ms. Passaro were named as the beneficiaries.

N.T. 184 (Emphasis added). Charles Jr. ascertained from Mr. and Mrs. Bloch that there was no contractual obligation by either party (Charles Sr. or Ms. Passaro) to do anything. On the contrary, the scrivener used the language (“agreed to care for”) to explain their motivation for wanting to make the gift to the legatees. Id.; see also N.T. 82-83. Charles Jr. went on to explain:

If — , if I had understood, if Mr. Bloch and Mrs. Bloch had expressed to me that this was a contractual obligation, then I hope that I would have explained, and I feel confident that I would have explained, what a contractual obligation is, and the need to have a contract drafted, the need to negotiate a contract, or to set forth the terms somehow. In which case, then I would be in the middle between Mr. and Mrs. Bloch, and my father and Ms. Passaro. * * * But, under the circumstances, this was the reason that was given to me [by the Blochs] why the gift was going to be made. * * * And this was the motive for making the gift, but was — * * * But was not a contractual obligation. I never understood it to be a contractual obligation. * * * Neither Mr. or Mrs. Bloch ever expressed anything to me that suggested that there was any kind of a contractual obligation, or contractual relationship between them. This was simply, when I inquired, who do you want to leave your estate in the event that the other of you is deceased, why do you want to leave your estate to somebody other than a family member, the explanation was given that there was not close relationships with the family members.

N.T. 84r-85 (Emphasis added). “ ‘Motives which prompt testators to. bestow gifts are as varied as the gifts bestowed[, and t]he devise may refer to a service to be rendered, and yet not be conditional upon the rendition of such service.’ ” In re Sommerville’s Estate, 417 Pa. 600, 604, 209 A.2d 299, 301 (1965) (Citation omitted). We find, as did the court below, such is the case at bar.

We cannot deny the fact that the phraseology utilized by the scrivener (“agreed to care for”) was less than clear in expressing the testatrix’ intention to make Charles Sr. and Ms. Passaro the “unconditional” beneficiaries of her estate. As such, the Orphans’ Court acted properly in examining the four corners of the 1983 will, the 1986 codicil and the existing facts in ascertaining the true intention of the testatrix. In re Wachsetter’s Estate, 420 Pa. 219, 216 A.2d 66 (1966).

In the course of determining the intention of the testatrix, the scrivener of the will and codicil testified, in unequivocal terms, to the purpose sought to be achieved by the testatrix: devise her assets to non-blood relations (Charles Sr. and Ms. Passaro) to the exclusion of her blood relatives (brother, sisters and nephew). See In re Agostini, supra.

Because the Orphans’ Court judge saw and heard the witnesses for both sides, he was in a much better position to determine the credibility of the witnesses to explain away the latent ambiguity. Wachsetter’s Estate, supra. We, therefore, conclude that the testatrix did not wish to change or abrogate her 1983 will and/or 1986 codicil (which reaffirmed her will, see note 7, supra), and that under its terms and conditions hereinbefore recited, the Appellees are entitled to all of her residuary estate.

Order affirmed.

      . The Appellants/petitioners are the sisters and brother of the decedent, i.e., Mildred Conway, Cora Fox and Hiram Becker.

      . The Act of June 18, 1923, P.L. 840, as amended, 12 P.S. § 831 et seq., and now found at 42 Pa.C.S.A. § 7531 et seq.

      . Rule 1.8 reads: "A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent ... any substantial gift from a client, including a testamentary gift----”

      . The record is consistent with a finding that the decedent was "very good friends” with Charles Sr. and Ms. Passaro, who were joint owners of a beauty salon the decedent frequented twice a week since 1976.
      It was not unusual for either Charles Sr. or Ms. Passaro to pick up Mrs. Bloch at her home and transport her to the beauty salon and back home.
      The trio socialized. Ms. Passaro visited the decedent at her home and phoned her when she failed to come into the beauty salon. Ms. Passaro described her friendship with the decedent as "extraordinary”, which is consistent with Charles Jr. remarking that Mrs. Bloch referred to Ms. Passaro as a "daughter”. ■
      .Ms. Passaro visited the decedent when she was in the hospital; the two exchanged holiday and birthday cards, and it was not unusual for the two to embrace each time they saw each other at the beauty salon.
      As for Charles Sr., he was "very good” friends with the decedent and did some occasional painting and/or made repairs to the decedent's home. The two would have lunch together, and Charles Sr. would pick up Mrs. Bloch and take her home from the beauty salon.

      . In particular, Mrs. Bloch told Charles Jr. over the phone that the following items were to be distributed:
      ... the comer cupboard and its contents to go to her nephew and his wife, Jack and Peggy Conway, Senior. Marbletop table to go to her sister, Mildred Conway. They are to take whatever they want and then sell the rest of it. Sell the house, and divide the money between my sisters and brother, Mildred Conway, Cora Fox, Betty Crayosky, and Hiram Becker. Her nephew, Jack Conway, Senior, who looks after her now when she is sick, is to look after her animals, two cats and a dog.
      N.T. 99.

      . We would note our agreement with the Orphans’ Court that a Declaratory Judgment is not the proper means by which to attack the validity of a will where the Register of Wills has not ruled on the matter initially. See 20 Pa.C.S.A. § 901; Martin Estate, 349 Pa. 255, 36 A.2d 786 (1944); In re Craig’s Estate, 30 Somerset 377 (1975).

      . As herein relevant, the 1986 codicil read:
      FIRST: I direct that the following paragraph to inserted [sic] in my Last Will and Testament and made an integral part thereof, being deemed to have placement between Article IV and Article V.

        "Gift of Specific Personal Property: I give to the beneficiaries named herein, certain items of personal property listed on a Memorandum executed by me[ — this was never provided in court]. This Memorandum may be changed from time to time and in such event the last dated Memorandum shall be the Memorandum applicable at the time of my death. In the event that such Memorandum is not found within thirty (30) days of the date of my death, it shall be presumed destroyed and this provision of my Will shall be deemed null and void. In the event that any of the beneficiaries named in the said Memorandum fail to survive me, their gift thereunder shall lapse and become a part of my residuary estate."

      SECOND: I hereby ratify, confirm and republish my said Last will and Testament except insofar as any part thereof is revoked or modified by this Codicil. [Emphasis added]

      . The way Articles IV and V read, it would appear that the legatees were to provide for the needs of the testatrix and her animals while she lived, the resources to be used for the expenditure were to be the assets of her estate. Yet, both Charles Sr. and Ms. Passaro stated that the testatrix never spoke to either one about incurring any such obligations as a condition precedent to inheriting under her will. Therefore, they were unable ("impossibility of performance”) to conduct any "caring” for Mrs. Bloch and/or her animals. See In re Sommerville’s Estate, 417 Pa. 600, 209 A.2d 299 (1965).
      This lends credence to the argument' that the gift made by the decedent to the legatees was absolute, with no conditions assigned to acquiring an interest in the decedent's estate upon death. See In re Sommerville's Estate, supra.
      Moreover, from the date of the execution of the 1983 will and her death in 1990, the testatrix had the opportunity to revoke her 1983 will in dictating a proposed distributive scheme in 1987 to Charles Jr. which would have replaced the present legatees with her blood relations. See discussion supra. Nonetheless, the decedent took no overt action to effectuate her intention to alter her 1983 will. Accordingly, given the inaction by the testatrix in 1987 to execute a new will, we see no reason to disturb the distributive scheme of the 1983 will.

        To the extent that the scrivener’s conduct is challenged as unethical behavior violative of the Rules of Professional Conduct, Rule 1.8(c), our Supreme Court has held that enforcement of the Rules of Professional Conduct does not extend itself to allow courts to alter substantive law or to punish an attorney’s misconduct. In re Estate of Pedrick, 505 Pa. 530, 542-43, 482 A.2d 215, 221 (1984).
      We have been presented with no evidence of undue influence engaged in by the scrivener as to the decedent, nor was there proof of a weakened intellect associated with the testatrix during the period the will in question was prepared. In re Agostini's Estate, 311 Pa.Super. 233, 457 A.2d 861 (1983). Accordingly, we are not persuaded to invalidate the will on the grounds that the scrivener acted in violation of the Code of Professional Responsibility. In re Estate of Pedrick, supra.


author: CIRILLO, Judge:

text:
    625 A.2d 68
    Rodney McINTOSH v. STATE FARM FIRE AND CASUALTY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1993.
    Filed May 18, 1993.

      Patrick W. Murphy, Pittsburgh, for appellant.
    Susan E. Mahood, Pittsburgh, for appellee.
    Before McEWEN, CIRILLO and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Allegheny County following the confirmation of a statutory arbitration award against Appellant State Farm Fire and Casualty Company (State Farm). We vacate and remand.

The instant matter arises out of a dispute between State Farm and its insured Rodney McIntosh (McIntosh) concerning underinsured benefits as provided for in the policy of insurance. Pursuant to the terms of the policy, the parties submitted their dispute to arbitration under the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S.A. § 7301 et seq. (the Act). Prior to the arbitration hearing, and with State Farm’s permission, McIntosh received the full amount of the tortfeasor’s liability insurance in the amount of $25,000.00. Both parties agreed that McIntosh’s remaining claim was valued over $25,000.00, but disputed the exact amount.

The hearing took place on April 21, 1992. On the same day an award was entered in favor of McIntosh in the amount of $25,000.00. State Farm’s counsel apparently became alarmed after receiving notice of the award and then recalled that neither party had informed the panel whether McIntosh’s claim was for underinsured or uninsured motorist benefits. State Farm alleges on the following day its counsel contacted the panel members to determine whether an error had been made by the arbitrators in rendering the award. After contacting two of the panel members, State Farm’s counsel was allegedly informed that the panel purposefully remained ignorant as to what type of claim was involved and that McIntosh’s arbitrator pressured them into awarding such a high figure. State Farm also alleges that its counsel was informed that the panel had intended that the award represent the “full value” of McIntosh’s damages. McIntosh disputes the validity of these allegations and contends that the award was properly confirmed as State Farm was dilatory in filing the proper petitions.

On April 23, 1992 State Farm’s counsel wrote a letter to McIntosh’s counsel which related the substance of the above conversations with the arbitrators. On April 27, 1992 McIntosh’s counsel responded by letter that the award “on its face” indicated an award for McIntosh in the amount $25,000.00 and that if State Farm’s counsel believed that the award was entered in error that an appropriate petition should be filed. State Farm’s counsel then responded by letter stating: that due to the fact that the award was intended to represent the “full value” of damages, McIntosh was not entitled to any amount other than the amount already received from the tortfeasor; that State Farm was not sending a check; that State Farm refused to partake in any further litigation and specifically that State Farm had “no intention at this time of presenting any ‘Petition’ to any court.” On June 5, 1992, following the expiration of the thirty day period for correcting, modifying or vacating the award, McIntosh’s counsel filed a petition to confirm the award. 42 Pa.C.S.A. § 7313. Section 7313 provides:

On application of a party, the court shall confirm an award, unless within the time limits imposed by this sub-chapter, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in section 7314 (relating to vacating award by court) or section 7315 (relating to modification or correction of award by court).

42 Pa.C.S.A. § 7313. State Farm filed a response to the petition and argued that due to the alleged error by the arbitration panel McIntosh should be awarded nothing on his underinsurance claim or, in the alternative, that the court resubmit the matter back to the panel for the sole purpose of clarifying the award. 42 Pa.C.S.A. § 7311. Following oral argument on the petition, the trial court confirmed the award and entered judgment in favor of McIntosh. State Farm now appeals from that judgment and raises the following issue:

Whether the trial court erred in not seeking clarification of the award pursuant to section 7311(a) of the Act?

Section 7311 of the Act, in relevant part, provides the following:

(a) General rule. — On application of a party to the arbitrators, or on submission to the arbitrators by the court under such conditions as the court may order if an application to the court is pending under section 7313 (relating to confirmation of award by court) ... the arbitrators may modify or correct the award ... for the purpose of clarifying the award.
(b) Time limitation. — An application to the arbitrators under subsection (a) shall be made within ten days after delivery of the award to the applicant.

42 Pa.C.S.A. §§ 7311(a), (b) (emphasis added).

McIntosh argues that State Farm’s failure to file an application under section 7311(a) within the ten day requirement effectively precludes any reconsideration of the award by the panel. Further, he alleges that State Farm’s failure to properly file a petition to vacate, correct or modify the award as provided in sections 7314 and 7315, within the thirty day time period, results in confirmation of the award by the trial court pursuant to section 7313. The trial court agreed and concluded that State Farm was precluded from contesting the confirmation of the award. The trial court states in its 1925(b) opinion as follows:

Defendant, (State Farm) however, filed no petition with the arbitrators within ten days of the award to vacate, modify or clarify the award under ... 7311. Nor did defendant file a petition with the Court within thirty days of the award to vacate, modify or correct the award under ... 7314, 7315. The award will be confirmed in the absence of [a] timely petition by defendant ... under 7313, 7314, 7315.

McIntosh argues that unless a petition to vacate, modify, or correct the award was filed within the thirty day time limit provided by sections 7314 and 7315, the trial court must confirm the award pursuant to section 7313, notwithstanding the provisions promulgated within section 7311. This interpretation of sections 7311 and 7313 is erroneous.

It has previously been held that the trial court, while making a determination of a pending petition to enforce and confirm an arbitration award, has the authority to resubmit an award pursuant to sections 7311 and 7313 for purposes of clarification, even though no petition for modification or correction was filed. Dunmore Borough v. Dunmore Police Dept., 106 Pa.Commw. 461, 526 A.2d 1250 (1987), appeal denied, 518 Pa. 614, 540 A.2d 535 (1988). While State Farm acknowledges that it failed to file an application for clarification of the award within the ten day period allotted under section 7311 and that it further failed to file a petition to vacate, modify, or correct the award under sections 7314 and 7315, it is uncontroverted that section 7311 provides that the trial court may within its discretion, resubmit an award for clarification while the petition to confirm is pending.

Only by construing each section of a statute in light of, with reference to, or in connection with other sections, even if a particular statute or section makes no specific reference to the other, can this court get the exact conception of the section’s aim, scope and objective. 1 Pa.C.S.A. §§ 1921(a), 1932; Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981). Following this rule of construction, we find that sections 7311 and 7313 are not irreconcilable. Section 7313 speaks to the duty of the parties at the time the petition to confirm is presented. Should any party fail to file the appropriate petition, the trial court shall confirm the award without further delay. However, section 7313 is silent as to a situation where the court, within its discretion, determines that the award in some way is unclear. If a decision is made by the court to resubmit the award, it results not from the action of one of the parties by filing a petition, but through the discretion of the court itself when the award on its face is unclear. The presence of the language “may order” in section 7311 acknowledges the court’s discretion.

Thus, it is not a question of whether the parties have taken affirmative action, but rather, whether the court in its discretion finds clarification of the award is required. Here, the trial court erroneously concluded that its duty to resubmit the award was directly dependent on an existing petition that had to be timely filed by one of the parties. As the trial court determined it was precluded from resubmitting the award absent affirmative action by a party, the court did not make a determination as to why it would or would not resubmit the award. Accordingly, we vacate the judgment and remand the matter back to the trial court for a determination as to whether or not, it would have resubmitted the award pursuant to section 7311.

Judgment is vacated and the matter remanded for proceedings consistent with this decision. Jurisdiction relinquished.


author: WIEAND, Judge: CERCONE, Judge,

text:
    625 A.2d 66
    Jackson MILLER, Appellee, v. BENJAMIN COAL COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1992.
    Filed May 18, 1993.

      Stuart J. Horner, Jr., Greensburg, for appellant.
    F. Cortez Bell, Jr., Clearfield, for appellee.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   WIEAND, Judge:

This is an action which was commenced by Jackson Miller, plaintiff, against Benjamin Coal Company, defendant, to recover damages caused to a truck when defendant’s loader backed into it. The case was initially referred to compulsory arbitration, which resulted in an award for plaintiff in the amount of $8,798.50. The defendant appealed, and a trial de novo was held before the Honorable John K. Reilly, Jr. The jury which heard the case found that plaintiffs damages were in the amount of $8,798.50, but that plaintiff had been guilty of causal negligence to the extent of thirty (30%) percent. The amount of damages was therefore reduced, and a verdict was entered accordingly. Post-trial motions were denied, and judgment was entered on the verdict. The defendant appealed. It contends that it is entitled to judgment n.o.v.

In the complaint, Miller alleged that he was the owner of the damaged truck. This averment was denied by the defendant, who, in its answer, demanded proof. At trial, after an appeal from arbitration had been filed, Miller was asked who owned the truck at the time of the accident and responded, “I owned it. My wife and I own it.” After plaintiff had rested, defendant moved for a directed verdict on grounds that Miller’s wife was an indispensable party who had not been joined. The trial court denied the motion for directed verdict, and the complaint was not amended. The issue was preserved in defendant’s post-trial motions.

Pa.R.C.P. 2227(a) provides as follows:

Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.

Pa.R.C.P. 1032 provides that a party waives defenses and objections which he does not present either by preliminary objection, answer or reply, but specifically excepts the defense of failure to join an indispensable party. Was Miller’s wife an indispensable party?

In DeCoatsworth v. Jones, 414 Pa.Super. 589, 607 A.2d 1094 (1992), allocatur granted, — Pa.-, 619 A.2d 700 (1993), the Superior Court held that both tenants by the entireties were indispensable parties to a claim for fraud in a transaction which allegedly deprived an estranged husband of his interest in real estate owned by husband and wife as tenants by the entireties. Also, in Brandt v. Hershey, 198 Pa.Super. 539,182 A.2d 219 (1962), the Court held that both spouses were indispensable parties and had to join as plaintiffs in an action to preserve or recover entireties property. See also: Mitchell v. Prudential Property & Casualty Ins. Co., 346 Pa.Super. 327, 499 A.2d 632 (1985), where the Court, in dictum, suggested that indispensable parties “are inter alia joint tenants, tenants in common and tenants by the entireties.” Id. at 335, 499 A.2d at 636; Moorehead v. Lopatin, 300 Pa.Super. 81, 445 A.2d 1308 (1982) (in action for personal injuries caused by negligent maintenance of entireties property, both spouses must be joined as defendants).

Our research, however, has disclosed neither Superi- or Court nor Supreme Court decision which holds that an action for money damages to entireties property cannot be maintained by one of the spouses acting as agent for both tenants by the entireties. Indeed, the Supreme Court announced in J.R. Christ Construction Co. v. Olevsky, 426 Pa. 343, 232 A.2d 196 (1967), the rule to be as follows:

“There is, ... with respect to entireties property, a well established presumption that during the term of a marriage either spouse has the power to act for both, without specific authorization, so long as the benefits of such action inure to both: Schweitzer v. Evans, supra [360 Pa. 552, 63 A.2d 39 (1949) ]; Madden et al. v. Gosztonyi Savings and Trust Company, 331 Pa. 476 (1938), 200 A.2d 624. This presumption may be rebutted by evidence that the spouse acting was not in fact authorized by the other spouse----”

Id. 426 Pa. at 348-349, 232 A.2d at 199, quoting Kennedy v. Erkman, 389 Pa. 651, 658, 133 A.2d 550, 553 (1957). Thus, either spouse has authority to contract for improvements to entireties property so long as the contract inures to the benefit of both spouses. J.R. Christ Construction Co. v. Olevsky, supra. So, too, authority of one spouse to give notice of termination of a lease of property held by the entireties is presumed so long as it benefits both spouses. Kennedy v. Erkman, supra. See also: Bradney v. Sakelson, 325 Pa.Super. 519, 473 A.2d 189 (1984); Sgro v. Sgro, 259 Pa.Super. 425, 393 A.2d 900 (1978). Why, then, shouldn’t a spouse with appropriate authority be allowed to maintain an action for damage to entireties property, where such recovery will benefit both spouses?

A party was said to be indispensable, in Hartley v. Langkamp & Elder, 243 Pa. 550, 90 A. 402 (1914), “when he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience.... Thus where the object of a bill is to divest a title to property, the presence of those holding or claiming such title is indispensable.” Id. at 555-556, 90 A. at 403^04.

It must be conceded, surely, that in actions intended to affect the title to property which is either held or claimed by tenants by the entireties, both spouses are indispensable parties and must be joined. Where a marriage continues to exist, however, we perceive no reason for holding that one spouse cannot act as agent for the entireties estate in bringing an action to recover damages for injury to the entireties property so long as the action benefits both spouses and there is no evidence rebutting the presumption of authority to act. A final judgment for damages in such an action does not affect the title to or possession of entireties property. Neither does it leave the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience.

We conclude, therefore, that in this cáse, Miller’s wife was not an indispensable party; the action could be maintained by one of the spouses to recover damages on behalf of both for injury to their entireties property. Any defect in the form of the complaint was waived when the defendant failed to raise it pre-trial. To set aside the judgment at this late date, in the absence of evidence that Miller lacked authority to maintain an action on behalf of both spouses, would be an unconscionable exaltation of form over substance.

The trial court determined that Miller had presumptive authority to act on behalf of both spouses to maintain an action for damages to a truck owned by husband and wife. Therefore, it denied the defendant’s motion for judgment n.o.v. We affirm.

Judgment affirmed.

CERCONE, J., files a dissenting opinion.

CERCONE, Judge,

dissenting:

I must respectfully dissent to the holding of the majority. Its members seek to upset the long-standing procedure of the courts of this Commonwealth in order to achieve a result that is not countenanced by the law.

The facts of this case are not in dispute. Appellee/plaintiff, Jackson Miller, filed a complaint against the appellant, Benjamin Coal Company, for damages to appellee’s truck. The truck was damaged while appellee was working on appellant’s property. Although in the complaint appellee alleged that he was the owner of the truck, he testified at trial that he owned the truck jointly with his wife, Marjorie. Appellant moved for a directed verdict on the grounds that appellee’s wife should have been joined as an indispensable party plaintiff in accordance with the Pennsylvania Rules of Civil Procedure. The trial judge denied the motion. Appellant premises its appeal on the lack of joinder.

The Pennsylvania Rules of Civil Procedure state the following as to compulsory joinder:

Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.

Pa.R.Civ.P. Rule 2227(a), 42 Pa.C.S.A (emphasis added). On its face, rule 2227(a) is- not discretionary. It requires joinder of persons having only a joint interest in the subject matter of an action. See Pa.R.Civ.P. Rule 103, 42 Pa.C.S.A. (words and phrases shall be construed according to their common and approved usage). Furthermore, failure to join an indispensable party deprives a court of subject matter jurisdiction and may be raised at any stage of the proceedings. DeCoatsworth v. Jones, 414 Pa.Super. 589, 603-04, 607 A.2d 1094, 1101 (1992) (Cirillo, J., plurality), allocatur granted, — Pa.-, 619 A.2d 700 (1993).

Many cases in this jurisdiction have discussed the parameters of a “joint interest” under Rule 2227(a). A consistent theme running through these cases is that a husband and wife who hold chattel by the entireties are within the contemplation of Rule 2227(a) and must be joined together in any action where the personal property is the subject matter of the litigation. See Standard Pennsylvania Practice 2d § 14:117 (1981); Goodrich-Amram 2d § 2227(a):l (1992). As we explained, in dicta, in Mitchell v. Prudential Prop. & Cas. Ins., 346 Pa.Super. 327, 499 A.2d 632 (1985), compulsory joinder under Rule 2227(a) is required where the owners of the subject property are tenants by the entireties. Id. at 335, 499 A.2d at 636. See also Moorehead v. Lopatin, 300 Pa.Super. 81, 85, 445 A.2d 1308 (1982) (joinder of husband and wife who owned the subject property as tenants by the entireties must be joined in an action against them for injury which occurred on the property).

In Brandt v. Hershey, 198 Pa.Super. 539, 182 A.2d 219 (1962), a wife sought recovery from her estranged husband and others who took crops from land she owned with her husband as tenants by the entireties. We affirmed the order of the trial court which granted preliminary objections in the nature of a demurrer against wife, holding that she had no cause of action where the interest she held was an undivided interest in personal property. In dicta, we stated that even if wife filed suit to preserve entireties property, she could not institute suit without the joinder of her husband. Such actions would violate Rule 2227. Id. at 541,189 A.2d at 221 (emphasis added). Thus, it is well-settled that joinder of tenants by the entireties is necessary in a suit to preserve or defend such property.

This Court reached a similar result in an action brought by two joint tenants. In Maloney v. Rodgers, 184 Pa.Super. 342, 135 A.2d 88 (1957), Mary Maloney was injured in a car she owned jointly with Clara Maloney. Mary and Clara filed a complaint against the defendant seeking to recover for damages to the automobile. Mary maintained a separate claim against the defendant, in her own name, seeking damages for personal injuries she sustained. At trial, both claims were submitted to the jury, but the trial judge instructed that if the jury should find Mary Maloney negligent, then Clara Maloney could not recover. The jury found both Mary Maloney and the defendant negligent. Thus, under the doctrine of contributory negligence in effect at the time the case was instituted, both were barred from recovering from the defendant. Both Mary and Clara Maloney sought a new trial on grounds that the trial court erred in instructing the jury that the negligence of Mary Maloney would bar the claim of Clara Maloney. The trial court denied the motion and the Maloneys appealed to this Court.'

We reversed finding that if Mary and Clara Maloney owned the automobile jointly, then a new trial would be appropriate. We held that since Rule 2227 requires the joinder of joint tenants, the sole negligence of Mary could not be imputed to Clara in her capacity as a joint tenant. Id. at 350, 135 A.2d at 92 (citing Rule 2227).

In the case sub judice, requiring husband and wife to be joined in the action under Rule 2227 is equally compelling. A tenancy by the entireties differs from a joint tenancy only by the unity of marriage. The tenancy is no less joint. See DeCoatsworth v. Jones, supra (the essential characteristic of a tenancy by the entireties is that each spouse is seized per tout et non per my, i.e. of the whole or entirety and not of a share, moiety or divisible part).

I must also consider the plurality opinion of our court in DeCoatsworth, supra. In that case, husband, Louis Jones, in order to prevent a sheriffs sale of the home he owned with his estranged wife, Odessa, as tenants by the entireties, entered into an agreement with appellant, DeCoatsworth, for DeCoatsworth to satisfy the judgment lien of $1,700.00 on the home and to take possession of the home. As part of the deal, Jones was required to make payments to DeCoatsworth to lease or purchase the house from him. After the purchase, Jones received a statement from DeCoatsworth outlining various payment options and detailing that Jones owed DeCoatsworth $15,000, an amount substantially greater than the lien which DeCoatsworth satisfied. Jones refused to pay and DeCoatsworth sought Jones’ eviction. Jones counterclaimed, alleging fraud and seeking damages of $20,000. The jury awarded Jones $35,000 and denied DeCoatsworth’s eviction claim. De-Coatsworth appealed the jury verdict to this Court, which we affirmed.

Later, DeCoatsworth filed a pro se petition asking that the judgment be stricken for lack of subject matter jurisdiction. He based the petition on Rule 2227 claiming that Odessa Jones, as a tenant by the entireties, was an indispensable party without whose joinder the trial court lacked jurisdiction. The trial court denied the petition. The plurality panel of this Court reversed.

Although the plurality in DeCoatsworth conceded, as does the majority in this case, that either spouse may presumptively act for both in matters involving entireties property, the plurality held that, “the interest of neither may be affected without notice to both and both are necessary to litigation respecting the assets held by the entireties.” DeCoatsworth, 414 Pa.Super. at 601, 607 A.2d at 1099-1100 (emphasis in original). Thus, the DeCoatsworth plurality held that under Rule 2227, the action was barred for failure to join Odessa Jones as an indispensable party. Citing a decision of our sister court, our court held:

We are distressed by the posture in which this case reaches our Court. We do not understand how this litigation has proceeded to this point without joinder____ The procedural setting in which this case reaches us does not control our disposition on appeal. “The absence of indispensable parties goes absolutely to the jurisdiction, and without their presence the court can grant no relief.” Without the joinder of ... as a party, the court of common pleas was without jurisdiction to enter the decree and therefore must be reversed.

Id. at 605, 607 A.2d at 1102 (quoting Posel v. Redevelopment Authority of City of Philadelphia, 72 Pa.Cmwlth. 115, 456 A.2d 243 (1983)). Following the persuasive reasoning found in DeCoatsworth, it is clear that appellee Miller’s wife should have been joined in the case sub judice. She owned the subject truck jointly with her husband. Both husband’s and wife’s presence before the court were necessary to afford relief in the action. Moreover, contrary to the contention of the majority, this is not a case which sought to affect title to property; but rather involved a suit for money damages for fraud arising out of the business transaction between Jones and DeCoatsworth.

With the exception of the plurality opinion in DeCoatsworth, our appellate courts have not expressly held that tenants by the entireties must be joined in an action respecting entireties property. Nonetheless, our learned trial courts have applied this established principle in circumstances strikingly similar to those in the present matter. In Molitoris v. Sullivan Trail Coal Co., 24 D. & C.2d 438 (1961), the Court of Common Pleas of Luzerne County held that because both husband and wife, as plaintiffs, were indispensable parties to to an action for damage to their jointly owned automobile, they could not be severed from the action so that the defendant could join the wife, who drove the automobile, as an additional defendant. Id. at 440. In that case, the court specifically referred to tenants by the entireties as examples of persons having only a joint interest under Rule 2227. Id. Accord Kranchalk v. Simon, 80 Pa.D. & C. 289 (1952) (when husband and wife seek recovery for to their jointly owned automobile, there is only one legal estate — the entireties estate — in the automobile); Berk v. Paul J. Schneider Co., 13 Bucks Co.L.Rep. 611 (1964).

In Crowe v. Peoples Bank & Trust Co., 77 Pa.D. & C. 563 (1951), the Court of Common Pleas of Allegheny County discussed the committee notes to Rule 2227. The notes stated that under subsection (b) of the Rule, joinder of an unwilling person is proper “when ... the willing plaintiff and the unwilling person are joint tenants or tenants by the entireties and the action is brought to preserve or recover the jointly owned property or for damages or injury to such property.” Id. at 566 (emphasis added). As a corollary to this note, tenants by the entireties are indispensable parties under subsection (a) and the joinder of both spouses is necessary. See also Miller v. Bob Behm Chevrolet, 2 Pa.D. & C. 4th 293, 297 (1989) (plaintiff husband was directed to join his spouse in a suit under the Automobile Lemon Law in accordance with Rule 2227(a)).

The majority attempts to justify its holding on grounds that a spouse may act for the other in matters concerning entire-ties property so long as the benefits inure to both. This judicial rule of law, however, must yield to the mandatory terms of Rule 2227. This result is borne out by Rule 2227 and the wide range of cases which have implicitly executed its terms. In so holding, the majority result not only contradicts established precedent, but will wreak havoc in the trial courts throughout the Commonwealth which have steadfastly required joinder of tenants by the entireties. Also, today’s decision will subject defendants to multiple lawsuits brought by spouses who were not joined in an action involving entire-ties property and who wish to vindicate their rights. This will cause further congestion of our already clogged courts.

Although I am mindful that under my analysis, appellee would likely lose his judgment, I cannot be influenced by this reason alone. As our distinguished colleague Judge Wieand has stated:

If the judiciary becomes so result oriented that it begins to shortcut established principles of law in order to achieve desired results, we will all be the poorer for it. In that event, the rule of law of which we are so proud will be brought into disrepute, and a government under law will be replaced by a government of men and women.

Commonwealth v. Howard, 375 Pa.Super. 43, 65-66, 543 A.2d 1169, 1180 (1988) (Wieand, J. dissenting). Accordingly, I would vacate the judgment of the trial court and remand for dismissal of the action.

      . I find it interesting that the majority places the burden on the party seeking joinder to present proof rebutting the presumption of authority to act. This hurdle is unnecessary in light of the plain language of Rule 2227 which specifically provides for joinder of unwilling plaintiffs, including those spouses who have not authorized the other to act on their behalf. See Pa.R.Civ.P. Rule 2227(b), 42 Pa.C.S.A.

      . See Pocono Pines Corp. v. Pa. Game Com’n, 464 Pa. 17, 345 A.2d 709 (1975) (Roberts, J. dissenting) (there is no standard of indispensability apart from Rule 2227(a)).


author: HOFFMAN, Judge:

text:
    625 A.2d 71
    Marlene SEDLITSKY v. James D. PARESO, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1993.
    Filed May 19, 1993.

      John W. Jordan, IV, Pittsburgh, for appellant.
    Harry S. Cohen, Pittsburgh, for appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment entered on April 29, 1992 in favor of appellee, Marlene Sedlitsky. Appellant, James D. Pareso, MD, presents two questions on appeal:

I. Has the federal law concerning the reporting of payment of medical malpractice judgments rendered the suggested “Irrelevant Considerations” charge factually incorrect and prejudicial to defendants in medical malpractice actions?
II. Were the trial court’s instructions regarding the requirement that other possible causes of plaintiffs injury be sufficiently eliminated misleading and not adequate to clarify the issue?

Appellant’s Brief at 3. For the reasons that follow, we affirm.

Appellee commenced a negligence action against appellant seeking damages for vocal cord paralysis resulting from appellant’s negligent performance of a thyroidectomy. A trial held in October, 1988, resulted in a judgment in favor of appellant. Following the denial of post-trial motions, this court reversed and remanded for a new trial, holding that the trial court should have instructed the jury on the doctrine of res ipsa loquitur. See Sedlitsky v. Pareso, 400 Pa.Super. 1, 582 A.2d 1314 (1990), appeal denied, 527 Pa. 673, 594 A.2d 659 (1991). At the conclusion of the second trial, commencing on September 10, 1991, the jury returned a verdict in favor of appellee. Appellant filed post-trial motions which were denied. This timely appeal followed.

Appellant first contends that the trial court erred in instructing the jury with the “irrelevant considerations” charge. Specifically, he asserts that a recent federal law concerning the reporting of payment of medical malpractice judgments has rendered the charge factually incorrect and prejudicial. We disagree.

The standard “irrelevant considerations” charge which the court presented to the jury provides as follows:

A medical malpractice case, such as this, is a civil action for damages and nothing more. The sole issue is whether the plaintiff has suffered injuries as a result of the defendant’s negligence, and is thus entitled to monetary compensation for those injuries. This case does not involve punishment of the defendant, or even criticism of his professional abilities, beyond the facts of this case. This case does not involve the defendant’s reputation, his medical practice, or his rights as a licensed physician. Therefore, no thought should be given to these irrelevant considerations in reaching your verdict in this case.

N.T. 9/10/91 at 28.

A recently enacted provision of the federal Health Care Quality Improvement Act, 42 U.S.C.A. § 11101 et seq., requires the disclosure to the Secretary of Health and Human Services of certain information by entities making a payment in settlement or satisfaction of a medical malpractice claim. Appellant contends that while the “irrelevant considerations” instruction may have once been warranted, “under the new law it falsely trivializes the importance of the case to the defendant physician.” Appellant’s Brief at 10.

The Pennsylvania Supreme Court recently addressed a similar issue in Levine v. Rosen, 532 Pa. 512, 616 A.2d 623 (1992). In Levine, the Court was faced with the question of whether a jury should be instructed regarding the new federal statute. Although the present question of whether the enactment of the new federal statute makes the “irrelevant considerations” instruction improper was not before the Court, the Court’s holding and reasoning are instructive in the instant case. The Court stated that

[t]he purpose of the [“irrelevant considerations”] instruction is to explain to the jurors that they may not consider the effect, if any, that a verdict may have on the defendant’s reputation, practice, or license. It simply does not matter whether the defendant’s reputation, practice, or license is or is not affected. The only issue properly before the jury is whether the defendant was negligent. The defendant may be found negligent whether the verdict has no effect on his reputation, practice, or license, or if the verdict has a drastic impact.
A malpractice claim questions whether the defendant’s professional conduct fell below the proper standard of care. A defendant who is negligent is no less liable for the malpractice claim if he is required to comply with the federal reporting requirement than if no requirement existed. The imposition of the reporting requirement is absolutely irrelevant to a jury’s consideration of whether a defendant has committed malpractice.

Levine, 532 Pa. at 518, 616 A.2d at 627.

We recognize that the new federal statute may cause an unfavorable judgment in a medical malpractice action to negatively impact upon a physician’s reputation or practice. Nevertheless, that result is not in conflict with the purpose of the “irrelevant considerations” instruction and does not call into question the validity of the instruction. Rather, our Supreme Court decided in Levine that the potential harm to the physician caused by compliance with the federal statute is among the factors a jury hearing a medical malpractice case is not to consider. Accordingly, the trial court did not err in reciting the “irrelevant considerations” charge.

Appellant next argues that the trial court’s instruction regarding the requirement that other possible causes of appellee’s injury be sufficiently eliminated was misleading and did not adequately clarify the issue. Specifically, he refers to the following portion of the jury charge dealing with the elements of res ipsa loquitur:

Two, that other responsible causes, such as cancer of the laryngeal nerve or excessive bleeding during the operation, had been sufficiently eliminated by the evidence, but it is not necessary that the plaintiff exclude all other possible causes for her injuries.

N.T. 9/11/91 at 18.

In light of trial testimony offered by appellant’s expert witness, appellant asserts that an unavoidable stretch injury was another possible responsible cause that the jury should have considered. Specifically, appellant refers to the testimony of his expert indicating that there may have been a temporary, unnoticeable adhesion of the laryngeal nerve to the back of the thyroid gland, making it difficult to move the gland without stretching the nerve. Appellant thus claims that the trial court erred in refusing to include the possibility of this condition in the above instruction to the jury. We disagree.

“The primary purpose of a court’s charge to the jury is to apprise the members of the jury, in an understandable manner, of the legal principles by which they must decide the case.” Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 368, 508 A.2d 298, 303, appeal denied, 514 Pa. 617, 521 A.2d 932 (1987). “A motion for a new trial based upon the sufficiency of the jury charge will only be granted when the court determines that the charge in its entirety and against the background of the evidence was erroneous and might have prejudiced appellant.” Beechwood Commons Condominium Ass’n v. Beechwood Commons Associates, Ltd., 397 Pa.Super. 217, 227, 580 A.2d 1, 6 (1990) (citation omitted). Erroneous jury instructions may be the basis for a new trial if it is shown that the instructions were fundamentally in error and might have been responsible for the verdict. Ott v. Buehler Lumber Co., 373 Pa.Super. 515, 520, 541 A.2d 1143, 1146 (1988); Hawthorne, 352 Pa.Super. at 368, 508 A.2d at 303.

Read in its entirety, we find no error in the trial court’s instruction to the jury. The court did not limit the possible responsible causes to the two mentioned, but rather by using the expression “such as” included them merely as examples. The jury was made aware that another possible responsible cause was an unavoidable stretch injury. In summarizing the testimony of appellant’s expert witness, Dr. Charles Watson, the court stated that:

Dr. Charles Watson, a professor of surgery at the University of Pittsburgh School of Medicine, who is board certified in surgery and specializes in endocrine surgery, including thyroidectomies, testified that he had examined the records and found, in his opinion, that Dr. Parson’s procedure was standard and that the operation was performed flawlessly; that the laryngeal nerve was identified and preserved throughout the operation; that there was no excessive bleeding throughout the operation; that there was no excessive bleeding or other complications; the vocal cords were moving properly after the operation.
He says that vocal cord paralysis is a recognized and unavoidable result in a few cases, even when the surgeon exercises all possible care. In his own experience, he says five, six or seven of his patients have suffered such an unavoidable stretch of the nerve and he estimated he has done over 1,000 of these operations.
In this case, he testified that in his opinion, the most reasonable explanation of the plaintiff’s paralysis was an unavoidable stretching of the nerve; that is, a trauma to the laryngeal nerve, when the thyroid lobe was lifted from the front, because the nerve adhered temporarily to the back of the thyroid gland, but then the nerve returned in its proper anatomical position in the groove between the trachea and the thyroid gland. He says it would appear to the surgeon that the nerve was intact and whole. He says a surgeon, in this case, could not be aware that the nerve was stretched because he could not see the temporary adherence of the nerve, or part of it, to the back of the thyroid lobe when he first lifted the lobe.

N.T. 9/11/91 at 12-13 (emphasis added).

Furthermore, the court subsequently stated that “[a]lthough the defendant is not required to offer an explanation for the occurrence of an accident, if he does so, it is for you to weigh that explanation in relation to all the evidence to determine whether the negligence by the defendant may be reasonably inferred.” N.T. 9/11/91 at 19. Thus, the court implicitly instructed the jury to factor Dr. Watson’s testimony in its determination of whether an inference of negligence pursuant to the doctrine of res ipsa loquitur was appropriate.

Moreover, after the jury retired to begin its deliberations, the jury requested the court to restate the three elements required for an application of res ipsa loquitur. In response to the jury’s inquiry, the court called in the jury and recited the three points of law as they are set forth in Restatement (Second) of Torts § 328 D without including the two examples of “other possible causes” to which appellant objects. Accordingly, the jury was left with an appropriate instruction regarding the elimination of other possible causes.

For all the foregoing reasons, we affirm the judgment entered in favor of appellee.

Judgment affirmed.

      . 42 U.S.C.A. § 11131(b) provides:
      (b) Information to be reported
      The information to be reported under subsection (a) of this section includes—
      (1) the name of any physician or licensed health care practitioner for whose benefit the payment is made,
      (2) the amount of the payment,
      (3) the name (if known) of any hospital with which the physician or practitioner is affiliated or associated,
      (4) a description of the acts or omissions and injuries upon which the action or claim was based, and
      (5) such other information as the Secretary determines is required for appropriate interpretation of information reported under this section.

        Id.

      . The Restatement (Second) of Torts § 328 D provides:
      § 328 D. Res Ipsa Loquitur

      (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

        (a) the event is of a kind which ordinarily does not occur in the absence of negligence;
      (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
      (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

      . The court stated:
      You may infer that the harm suffered by the plaintiff was caused by the negligence of the defendant, if you find from the evidence the following three factors to have been present. One, that the accident here involved, that is, a paralysis of the vocal cord during the course of an operation to remove part of the thyroid gland, is of a kind which ordinarily does not occur in the absence of negligence. Two, that other responsible causes have been sufficiently eliminated by the evidence, but it is not necessary that the plaintiff exclude all other possible causes for her injuries. Evidence that it is more likely than not that the plaintiff’s injuries were caused by the defendant’s negligence is sufficient to permit the inference. In this connection, if you find that, the defendant had exclusive control of the instrumentality here involved, you may determine that such other causes have been sufficiently eliminated. Three, that the negligence claimed is within the scope of the defendant's duty to the plaintiff.
      I say you may infer plaintiff’s harm was caused by defendant's negligence if you find that the plaintiff has proved all three factors by a preponderance of the evidence. Of course, you may infer plaintiff’s harm was not caused by defendant’s negligence if you find that plaintiff has not proved all three factors, by a preponderance of the evidence.
      N.T. 9/11/91 at 37.