author: BECK, Judge:

text:
    493 A.2d 744
    WILKES-BARRE CLAY PRODUCTS CO., Appellant, v. Steve KORONEOS, Appellee.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed May 24, 1985.

      Charles A. Shea, III, Wilkes-Barre, for appellant.
    Before BECK, POPOVICH and TROMMER, JJ.

       Judge Evelyn M. Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   BECK, Judge:

On December 1, 1983, appellant Wilkes-Barre Clay Products Co. commenced an action before a district magistrate seeking to recover for certain brick and building materials purchased by appellee Steve Koroneos. A hearing on the matter was scheduled for December 19, 1983. By letter dated December 16, 1983, appellee’s counsel informed the district magistrate that appellee would agree to the entry of a default judgment with the intention of taking an immediate appeal. Appellee did not appear at the hearing on December 19, 1983, and the district magistrate accordingly entered judgment in favor of appellant in the amount of $2,482.68.

On January 3, 1984, appellee filed a notice of appeal and praecipe for rule to file a complaint pursuant to Pa.R.C.P. D.J. 1002 and 1004 with the court of common pleas. However, neither the notice nor the praecipe and rule were served upon the district magistrate and appellant as required by Pa.R.C.P.DJ. 1005. Thereafter, on February 14, 1984, appellant filed a praecipe to strike the appeal pursuant to Pa.R.C.P.DJ. 1006. Simultaneously with the striking of the appeal, appellant entered its judgment against appellee in the court of common pleas and issued an execution thereon.

On February 22, 1984, appellee filed a petition to reinstate its appeal from the district magistrate’s award. Appellee’s petition averred that both opposing counsel and the district justice had actual notice of the appeal and that the failure to serve notice in a form complying with the rules was due to the inadvertence of counsel. After the filing of an answer by appellant and oral argument, the trial court granted the petition on July 28, 1984. This appeal followed.

We are unable to reach the merits of this issue because the appeal must be quashed. The order appealed from does not end the litigation or effectively put appellant out of court. In fact, the effect of the order is to bring appellant into court for a de novo hearing on the merits. Hence, the order reinstating appellee’s appeal is not a final order appealable under 42 Pa.C.S. § 742 and Pa.R.A.P. 341. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Foulke v. Lavelle, 308 Pa.Super. 131, 454 A.2d 56 (1982).

Evidently recognizing this lack of finality, appellant contends in his statement of jurisdiction that jurisdiction is vested in this court by virtue of 42 Pa.C.S. § 5105(c) and Pa.R.A.P. 311(a)(1). Rule 311 lists those interlocutory orders which are appealable as of right; subsection (a)(1) specifically provides that an appeal may be taken from “[a]n order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment.”

Plaintiff/appellant obtained a default judgment in the district court. He is now attempting to equate the court’s order reinstating defendant/appellee’s appeal to an order opening a default judgment.

We hold that the order of the court of common pleas is not appealable under Rule 311. An appeal of a judgment as of right to a trial de novo in a higher tribunal is simply not the same, procedurally or substantively, as a petition asking the tribunal which entered a default judgment to exercise its equitable powers to open that judgment. A party aggrieved by the judgment of a district justice may appeal that judgment as of right to a court of common pleas under Pa.R.C.P.DJ. 1002. Because the definition of “judgment” in Pa.R.C.P.DJ. 1001(1) includes a default judgment entered pursuant to Pa.R.C.P.DJ. 319, this right of appeal extends to default judgments. Short v. Steacker, 8 D. & C.3d 497 (C.P. Bucks Co. 1980).

The order which has been appealed to this court reinstates such an appeal pursuant to Pa.R.C.P.D.J. 1006. The reinstated appeal has no greater or lesser force and effect on the judgment appealed from than any other appeal from a judgment of a district justice which was properly perfected in the first instance. An appeal under Pa.R.C.P. D.J. 1002 does not strike off, open or vacate the judgment of the district justice or otherwise remove it from the record.

Although no reported decision of our courts addresses this precise issue with respect to appeals from district justices, we believe a profitable comparison may be made to decisions involving de novo appeals to the courts of common pleas from compulsory arbitration awards. In this context, we have held that orders which have the effect of allowing the appeal to proceed, thereby putting the parties in court, are interlocutory and unappealable. MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976) (order allowing appeal nunc pro tunc from arbitrators held interlocutory and unappealable); Polascik v. Baldwin, 245 Pa. Super. 1, 369 A.2d 263 (1976) (order denying petition to quash appeal from arbitrators held interlocutory and unappealable). In MacKanick, we specifically rejected an argument that the order appealed from was equivalent to an order opening a judgment. See 244 Pa.Super. at 472 n. 3, 368 A.2d at 818 n. 3.

We are persuaded by the reasoning of MacKanick and Polascik and believe that the holding of these cases should be applied to similar rulings concerning de novo appeals from district justices. Therefore, we hold that the order appealed from in the instant case is neither a final order nor an interlocutory order appealable as of right and the appeal must be quashed.

Appeal quashed.

      . Under Pa.R.C.P.D.J. 1008 A an appeal does operate as a supersedeas. However, a supersedeas merely stays execution on the judgment during the pendency of the appeal (see Pa.R.C.P.D.J. 1001(4) ); it does not open, strike off or vacate the judgment or otherwise remove the judgment from the record or render it invalid.

      . Significantly, though, the cases cited by the parties in their arguments on the merits involve appeals from orders denying reinstatement of the appeal. Such orders put the appellant out of the court are therefore clearly appealable. See Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 451 A.2d 777 (1982); City of Easton v. Marra, 230 Pa.Super. 352, 326 A.2d 637 (1974).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    493 A.2d 746
    JADEN ELECTRIC DIVISION OF the FARFIELD COMPANY and Corbit’s, Inc. v. WYOMING VALLEY WEST SCHOOL DISTRICT, Inryco, Inc., Safeco Insurance Company of America, the Sutter Corporation, Aetna Casualty & Surety Company, Caudill Rowlett Scott and C.M. Associates, Inc. Appeal of INRYCO, INC.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed May 24, 1985.
    Reargument Denied July 17, 1985.

      Gene E.K. Pratter, Philadelphia, for appellant.
    Richard F. Wells, Philadelphia, for C.M., appellee.
    Before BECK, POPOVICH and TROMMER, JJ.

       Judge Evelyn M. Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   POPOVICH, Judge:

This is an appeal from an order of the trial court which ordered appellant, Inryco, Inc., to produce the materials which had been previously sealed by judicially supervised settlements negotiated in other litigation. We reverse and remand the matter for proceedings consistent with this opinion.

The history of this case has been set forth previously by this Court and is as follows:

This litigation arises in the context of a claim by appellee-respondent, Inryco, Inc., [a prime contractor] for damages sustained during its participation in the Wyoming Valley West High School construction project. Litigation in the Philadelphia Court of Common Pleas between the respondent and its subcontractor on the project, Helmark Steel, Inc., was previously settled.

The disputes in this settled litigation came to trial before Judge Victor DiNubile in September, 1980. Prior to commencement of trial and thereafter, Judge DiNubile was involved in supervising settlement negotiations among the parties. The matter was finally resolved, with court approval, prior to the conclusion of trial.

An integral part of the judicially supervised settlement was the embodiment of the parties’ agreement, in a court order, that the entire record of the case be placed under seal and that all documents and deposition transcripts provided or received in the course of discovery be deemed “proprietary and confidential.” The order, the terms of which were evaluated and approved by Judge DiNubile, was signed by Judge Stanley M. Greenberg on December 16, 1980, providing, in pertinent part:

“3. The entire record of this case is hereby placed under seal.
4. All documents filed of record in this case, all documents provided or received in the course of discovery by any party in this action and all transcripts of depositions taken in this action shall be deemed to have been designated as proprietary and confidential, pursuant to the Stipulation and Confidentiality Order heretofore agreed to by the parties hereto on August 1, 1979 and September 2, 1980, which Stipulation and Confidentiality Orders shall continue in full force and effect, and all parties in this case shall continue to be bound by such. Stipulation and Confidentiality Orders____”

The case at bar is only one of several actions that arose from the construction of the Wyoming Valley West High School. Another such suit, Inryco, Inc. v. Wyoming Valley West School District, et al., Civil Action No. 80-0232 (hereinafter “the District Court action”), is presently in the United States District Court for the Middle District of Pennsylvania.

Petitioners-appellants[, the architect and construction manager,] were not parties in the instant captioned matter. However, as defendants in the District Court action, they alleged that the aforesaid order denied them the opportunity to review the Court of Common Pleas record and discover documents obtained therein. They contended that the purpose of the stipulation and confidentiality order entered pursuant to it was to interfere with discovery in the federal action, and that if the order is not rescinded or modified so as to permit them to review the record in the Philadelphia action, they will be significantly prejudiced in the presentation of their defense to the claims of respondent, Inryco, Inc., in the District Court action.

Inryco, Inc. v. Helmark Steel Inc., 305 Pa.Super. 239, 239-243, 451 A.2d 511, 511-2 (1982) (plurality opinion) (hereinafter referred to as Inryco I).

In Inryco I, we quashed the appeal from the trial court’s order which denied a petition to intervene and to modify the order which placed the entire record under seal because the petitioners[, appellees in the instant case,] had “the right to reapply to the Court on the basis that a particular witness’s deposition or a particular document included in the sealed record would not be otherwise available.” Id., 305 Pa.Superior Ct. at 244, 451 A.2d at 513.

In Luzerne County, another lawsuit was pending. Appellees-defendants, the architect and the construction manager, filed a motion to produce documents, which was granted by the Court of Common Pleas of Luzerne County. The procedural scenario surrounding this case was set forth in the following manner:

The Plaintiffs[, the electrical and mechanical contractors] sued the Wyoming Valley West School District and the latter joined, inter alia, Inryco, CRS and CM. The reason advanced for joining CRS and CM as additional defendants is that they were responsible for the delay in construction as architect and construction manager, respectively. That in response to such allegation of delay, CRS and CM contend that if there were delays, the cause of any delay was the result of a controversy that arose on the construction project between Inryco and Inryco’s subcontractors, Helmark and Falcon Steel. Accordingly, pursuant to Pa.R.C.P. 4009, CRS and CM served two requests for production of documents, addressed to Inryco, Inc.

The first:

“1. With respect to the lawsuit wherein Inryco, Inc. was plaintiff v. Helmark Steel, Inc., et al., defendant, in the Court of Common Pleas of Philadelphia County at No. 3883, May Term, 1978, the following documents:
(a) Transcripts of testimony at the trial;
(b) All exhibits marked for identification at the trial;
(c) All documents produced by any of the parties at the request of other parties in connection with discovery proceedings;
(d) All exhibits marked for identification at deposition;
(e) All Interrogatories and Answers requested and made by any of the parties in connection with discovery;
(f) Transcripts of all depositions taken in the course of discovery prior to trial.”

These were served on July 17, 1981, and

The second:

“1. All documents and/or reports prepared by Richard Marlink Associates and/or Surety Construction Consultants.
2. All documents prepared by or in conjunction with Bernard Lippe.”

These were served on August 23, 1983.

Inryco, Inc. filed an Answer which may be summarized as follows: They admit CRS was the architect and CM was the construction manager for the said High School. That the pleadings in this case speak for themselves. In response to the first request the documents requested pertained to documents in another case in the Court of Common Pleas of Philadelphia County, in an action in which CRS and CM were not parties, and all the documents in that case were placed under seal pursuant to an Order dated December 16, 1980, issued by the Honorable Stanley M. Greenberg, as part of the conclusion of a judicially supervised settlement of that action. That this is the fifth (5th) time CRS and CM have attempted to collaterally attack the Order of Judge Greenberg.

As to the second request for production, Inryco answers that the requested documents contain reports of an expert witness retained by Federal Insurance Company, in another lawsuit which did not involve the Plaintiffs in this action. Inryco indicates that they would produce the documents in its possession if counsel for Federal Insurance Company or Richard Marlink Associates and/or Surety Construction Associates authorized such production. CRS and CM also request that reports of Bernard Lippe, who served as a witness for Inryco in other cases, but no decision has been made as to whether he will be called as an expert witness on behalf of Inryco in the present action. Further, Mr. Lippe has not prepared any report for Inryco with respect to the present action. They also argue that CRS and CM only may proceed through Interrogatories. R.C.P. 4003.5. Therefore, Inryco requests that the Motion of CRS and CM to compel production of documents be dismissed.

Trial Court’s Opinion at 1-4.

This motion was granted by the Court of Common Pleas of Luzerne County. Appellant then filed a reconsideration petition which was denied. The trial court certified the instant case as one which involved an interlocutory order and which presented a controlling question of law. 42 Pa.C.S.A. § 702(b). This appeal followed.

Appellant contends that (1) a judge of coordinate jurisdiction does not have jurisdiction to issue a discovery order which essentially collaterally attacks and overrules, reverses or modifies the final order entered which reflects the terms of a settlement and compromise of litigation pending before the court which issues the final order; (2) the burden of proof should rest on the party who attacks a final order; and (3) that non litigants do not have an unfettered right of access to sealed court records and other judicially protected documents. Because we are convinced that the trial court erred, we must reverse that court’s decision.

The trial court in reversing the confidentiality order stated that the issue “is a unique question, previously passed upon by Judge Stanley M. Greenberg and considered by Judge Richard Conaboy of the Federal District Court, in another proceeding.” Trial Court’s Opinion on the Reconsideration Petition at 3. The trial court also stated its “[djecision turn[ed] on the fact that if counsel for the respective parties agreed to a confidentiality agreement, even with Court approval, without the Court passing upon the confidentiality of the material, would do violence to the rules of discovery.” Id. at 2.

In a similar case, our Supreme Court held that “[ajbsent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case.” Commonwealth v. Brown, 485 Pa. at 370, 402 A.2d at 1008. In the instant case, appellees are launching a collateral attack which even the trial court concedes was “previously passed upon by Judge Stanley M. Greenberg [of the Court of Common Pleas of Philadelphia County] and considered by Judge Richard Conaboy of the Federal District Court.” Trial Court’s Reconsideration Opinion at 3. Because appellees have presented no new evidence, the confidentiality ruling must stand. We are not persuaded that the decision of a court of coordinate and competent jurisdiction should be reversed. See Moeller v. Washington County, 352 Pa. 640, 44 A.2d 252, 254 (1945); Flagship First National Bank v. Bloom, 288 Pa. Super. 347, 431 A.2d 1082 (1981).

Order is reversed and the matter is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

       There is some dispute as to the exact nature and relationship of the herein captioned matter and the District Court action. Petitioners assert that the Common Pleas and District Court actions encompass identical questions of law and fact. Respondent contends otherwise. We do not find it necessary, or helpful to the resolution of the presented petition and answer, to resolve this dispute.

       Judge DiNubile became unavailable sometime after the conclusion of the settlement negotiations, but before the court's issuance of the final Order. He explained the circumstances of the case to Judge Greenberg and asked that he approve the stipulation and sign the order in connection with the settlement.

      . The instant case does present a controlling question of law and therefore jurisdiction is vested in this Court. See Commonwealth v. Brown, 485 Pa. 368, 370, 402 A.2d 1007, 1008 (1979) (where the Supreme Court of Pennsylvania granted permission to appeal although this Court denied permission to appeal on the issue of whether a judge had the authority to review a decision of a judge from another division of the same court of common pleas).


author: HOFFMAN, Judge:

text:
    493 A.2d 750
    Edward L. DUNLAP and Shirley L. Benner, Appellants v. John Dean LARKIN and Thelma Morgan Farmerie, T/A Dean’s Hardware and Building Supply.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed May 24, 1985.

      Paul H. Millin, District Attorney, Warren, for appellants.
    Rick Hernán, Warren, for appellees.
    Before CIRILLO, HOFFMAN, and ROSENWALD, JJ.

      . Judge Edward Rosenwald of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

   HOFFMAN, Judge:

The issues on appeal arise from a confusing mélange of three consolidated actions, one in equity for an injunction, a zoning appeal, and an action in ejectment. We affirm in part and reverse in part.

Before addressing appellants’ contentions, we must first set out the relevant facts. Appellants, plaintiffs below, filed a complaint seeking a preliminary injunction to restrain appellees, defendants below, from erecting a building on appellees’ property located at 142 Main Street, Tidioute Borough, Warren County, Pennsylvania. The gist of the April 19, 1982 complaint was that the proposed building would “not conform to the requirements of the Warren County Zoning Ordinance of 1965.” (Appellants’ Complaint for Injunction ¶ 3 at 1). On April 20, the lower court issued the preliminary injunction conditioned upon appellants entering security in the amount of $10,000. See generally Pa.R.Civ.P. 1531. Appellants did so. Following the April 26, 1982 hearing on whether the injunction should continue, the lower court ordered the record “remanded to the Zoning Hearing Board of Warren County to hear and determine pursuant to the Municipalities Planning Code and the Warren County Zoning Ordinance of 1965 the issue presented” in appellants’ complaint. The court further ordered the injunction to continue and appellants to maintain their bond “in the event damages may ensue.” A hearing was held before the Zoning Hearing Board on May 21, 1982, and the Board upheld the action of the zoning officer in granting a permit to appellees. On June 28, appellants filed a notice of appeal from that decision in the Court of Common Pleas.

On June 25, 1982, appellees filed a petition to increase the amount of appellants’ bond because of additional damages they allegedly suffered from the time of the issuance of the preliminary injunction. Appellants moved to dismiss that petition, dissolve the injunction, and have their bond returned. On August 2, after a hearing, the court ordered appellants to file either a cash or corporate bond in the amount of $20,000. See 5 Goodrich-Amram 2d § 1531(b):7 (1977) (“increased security”). Because appellants failed to file the increased bond by the close of the next business day, August 3, appellees moved to dismiss appellants’ appeal from the zoning board. On August 4, the lower court dismissed the appeal and ordered the then current $10,000 bond to be retained until a hearing could be held to determine the damages suffered by appellees. Appellants subsequently moved for reconsideration of the court’s order, but there is no indication in the record of any action taken on that motion.

On October 13, 1982, appellants filed a complaint in ejectment against appellees. Count I alleged that appellees encroached on appellants’ property, and Count II alleged that appellants acquired, and appellees encroached upon, an easement by prescription in the vacant area between the parties’ two buildings. Appellees answered the complaint and filed a counterclaim seeking damages on the bond “[bjecause of [appellants’] unmeritorious appeal of the Zoning Hearing and unwarranted injunction against” them. (Appellees’ Answer in Assumpsit with New Matter and Counterclaim to Appellants’ Complaint in Ejectment ¶ 29 at 6).

Appellants then (1) moved to substitute a corporate bond for the cash bond, (2) filed a preliminary objection in the nature of a demurrer to appellees’ counterclaim, and (3) moved to consolidate the three actions in accordance with Pa.R.Civ.P. 213. On January 17, 1983, the lower court ordered the three actions consolidated, and, on February 10, it ordered that appellants be permitted to substitute a corporate bond for their cash bond. By order and opinion of April 13, 1983, the court denied appellants’ preliminary objection. Appellants thereupon filed an answer to appellees’ new matter and counterclaim.

Following an October 4-5, 1983 jury trial, the jury returned verdicts (1) in favor of appellants on their claim that appellees’ building encroached upon appellants’ property, (2) against appellants on their claim for an easement by prescription, and (3) in favor of appellees for $8,000 for damages sustained by reason of the injunction issued to appellants. Timely filed post-trial motions were denied by the lower court by order and opinion of December 20, 1983. This appeal followed.

Appellants contend that the $8,000 judgment in favor of appellees on their counterclaim should be vacated for the following reasons: (1) because appellants’ complaint for an injunction was, in effect, an appeal to the Zoning Hearing Board, appellees are not entitled to damages as a matter of law; and (2) because appellants proved that appellees’ building encroached upon their land, they cannot be liable for damages on the bond to appellees. Appellants also contend that they are entitled to a new trial on the question of their alleged acquisition of a prescriptive easement because the court below made a confusing and improper charge to the jury. For the following reasons, we agree that a new trial is warranted on the easement issue; however, we find that appellees are entitled to damages on the bond.

I.

Appellants first contend that appellees are not entitled to damages on the bond. We disagree. We initially note that appellants did not challenge the validity of the Warren County Zoning Ordinance, but alleged instead that appellees’ building would not conform to the requirements therein. Therefore, as appellants correctly assert in their brief, their proper remedy would have been to proceed in accordance with the provisions of the Pennsylvania Municipalities Planning Code (PMPC), 53 P.S. §§ 10101 et seq. Specifically, § 11007, which concerns decisions and orders not involving the validity of an ordinance, provides that aggrieved persons “shall first submit their objections to the zoning hearing board____” Appellants failed to do this. Furthermore, § 11001 makes it clear that “[t]he proceedings set forth in this article [concerning appeals] shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies or officers adopted or issued pursuant to this act.” (Emphasis added). Accord Harris v. Oil Service, Inc., 78 Pa.Commonwealth 510, 512 n. 4, 467 A.2d 1376, 1377 n. 4 (1983); Appeal of Cibula, 25 Pa.Commonwealth 333, 335, 360 A.2d 812, 813 (1976) (this requirement “mandatory”). Thus, we conclude that the lower court had no jurisdiction over appellants’ equity action.

Appellants contend, however, that the lower court’s action in remanding the original injunction action to the Warren County Zoning Appeal Board was proper in accordance with 42 Pa.C.S.A. § 708 and that, because their complaint was, in effect, an appeal to the Board, no bond was required under the automatic stay provisions of 53 P.S. § 10916. Therefore, they argue that appellees cannot claim damage on the bond which the lower court ordered to be maintained when such bond would have been unnecessary in the first place. This argument is doubly misplaced.

Section 708(b) of the Judicial Code, 42 Pa.C.S.A. §§ 101 et seq., which appellants rely upon, provides that

[i]f an appeal is improvidently taken to a court under any provision of law from the determination of a government unit where the proper mode of relief is an action in the nature of equity, mandamus, prohibition, quo warranto or otherwise, this alone shall not be a ground for dismissal, but the papers whereon the appeal was taken shall be regarded and acted on as a complaint or other proper process commenced against the government unit or the persons for the time being conducting its affairs and as if filed at the time the appeal was taken.

42 Pa.C.S.A. § 708(b). This

section, however, applies primarily to matters which have been improvidently filed with a court and which, rather than be dismissed, can be regarded and acted on by that court as if filed in proper form. Section 708 does not specifically or by implication authorize transfers between courts and local zoning hearing boards.

Harris v. Oil Service, Inc., supra, 78 Pa.Commonwealth at 513, 467 A.2d at 1377 (emphasis in original) (affirming the lower court’s denial of appellants’ transfer request). Furthermore, § 708(b) applies to actions “commenced against the government unit” and not against private parties. The court below, then, should have quashed appellants’ appeal from the decision of the zoning officer. Township of Reserve v. Zoning Hearing Board, 78 Pa.Commonwealth 496, 502, 468 A.2d 872, 875 (1983).

Even if the transfer were valid, the granting of a stay would not be “automatic.” Section 10916 of the PMPC provides, in pertinent part, that

[u]pon filing of any proceeding referred to in section [10914] and during its pendency before the board all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action thereunder shall be stayed unless the zoning officer or any other appropriate agency or body certifies to the board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals on petition after notice to the zoning officer or other appropriate agency or body.

53 P.S. § 10916 (emphasis added). Thus, as appellees argue, they would have had “a chance to argue for the right at least to continue with construction to a point at which the building would be closed in and be protected from vandals and weather.” (Appellees’ Brief at 13). Furthermore, if the appellants were to lose their zoning hearing board appeal and then proceed to appeal to court, see 53 P.S. § 11008, such filing of an appeal would “not stay the action appealed from but the appellants may petition the court having jurisdiction of zoning appeals for a stay.” 53 P.S. § 11008(4) (emphasis added).

Putting aside the questions of the improper transfer and what the proper procedure under the PMPC would have been, we must conclude that the lower court had no jurisdiction to issue the injunction and hence no power to condition its issuance upon the filing of a bond. It would appear, then, that the court’s lack of subject matter jurisdiction to issue the bond would render the judgment on appellees’ counterclaim invalid. Cf. Mamlin v. Tener, 146 Pa.Superior 593, 596, 23 A.2d 90, 92 (1941) (subject matter jurisdiction can be attacked collaterally).

While we can find no caselaw in this Commonwealth holding that a court’s lack of subject matter jurisdiction is a defense to an action on a bond, we refuse to approve such a result. Otherwise, appellees would be unable to recover for damages resulting from the wrongfully-issued injunction. Other jurisdictions agree.

Where a complainant has secured an injunction and stayed his adversary’s proceedings, and thereby caused him to suffer damages, it is too late for the complainant to set up as a defense in an action on the injunction bond a want of jurisdiction in the court to grant the injunction. He is estopped to say that the court granted the injunction without jurisdiction. It does not lie in the mouth of one who has affirmed the jurisdiction of a court to grant an injunction, where he has accomplished his purpose by the injunction, to afterwards deny such jurisdiction.

Johnson v. Howard, 167 Miss. 475, 489, 141 So. 573, 575 (1932); see generally Annot., 82 A.L.R.2d 1064 (1962). Therefore, we hold that appellees are not barred from recovering damages on the bond even though the court below lacked the subject matter jurisdiction to issue it.

Appellants contend, nonetheless, that, because they proved an encroachment by appellees upon their land and because an encroachment is a ground for the issuance of an injunction, they cannot be liable for damages on the bond. In support of this proposition, appellants cite Large v. Steer, 121 Pa. 30, 15 A. 490 (1888), which holds that

[u]ntil there is such a final determination of the equity suit, as shows that the injunction was wrongfully issued, I do not see how an action would lie against the principal in the bond, much less against his sureties..... The reason for this is, that it may appear upon final hearing that the plaintiff was entitled to his injunction, although it may have been dissolved pending the bill.

Large v. Steer, supra, 121 Pa. at 33-34, 15 A. at 491 (citations omitted); see also Winston v. Ladner, 264 Pa. 548, 108 A.. 22 (1919).

We find appellants’ argument flawed. There could be no final determination of the equity suit because, as we have stated, the lower court had no jurisdiction to entertain it. And the finding of an encroachment in appellants’ favor is of no avail to them because the ejectment action simply has nothing to do with the equity action. The question is, was the injunction wrongfully issued? We have answered that question affirmatively and held that the court’s lack of subject matter jurisdiction would not prevent appellees from recovering on the bond. Cf. Pa.R.Civ.P. 1531(b)(1) (plaintiff liable for damages if injunction is dissolved because improperly granted); 5 Goodrich-Amram 2d § 1531(b):4 at 282 (1977) (“The phrase ‘because improperly granted’ ... will apply no matter how the injunction is lifted____”). Therefore, appellants cannot assert appellees’ encroachment as a ground for avoiding damages on the bond.

II.

Appellants next contend that, because the lower court instructed the jury in accordance with the principles of adverse possession rather than those of prescriptive easements, they are entitled to a new trial. A jury “charge should be clear and precise and so couched as not to confuse

the jury.” Osterritter v. Holl, 259 Pa.Superior 112, 117, 393 A.2d 742, 744 (1978). However,

contradictory instructions are not always reversible error. An erroneous statement of law in one portion of the charge can be rendered harmless by a subsequent correct statement of the same principles if the jury is clearly instructed that the latter statement and not the earlier one is the correct statement of the principle.

Id., 259 Pa.Superior Ct. at 117-18 n. 5, 393 A.2d at 745 n. 5. In evaluating the charge, we consider it in its entirety to determine whether error was committed and, if so, whether such error was prejudicial to the complaining party. Berry v. Friday, 324 Pa.Superior 499, 503, 472 A.2d 191, 193 (1984), citing Slavish v. Ratajczak, 277 Pa.Superior 272, 419 A.2d 767 (1980).

While the cases do not always list the elements with precision, an easement by prescription is established by showing an (1) adverse, (2) open, (3) notorious, and '4) continuous and uninterrupted use for twenty-one yea. s. Keefer v. Jones, 467 Pa. 544, 547, 359 A.2d 735, 736 (1976); Boyd v. Teeple, 460 Pa. 91, 94, 331 A.2d 433, 434 (1975); Bodman v. Bodman, 456 Pa. 412, 414, 321 A.2d 910, 912 (1974) ; Loudenslager v. Mosteller, 453 Pa. 115, 117, 307 A.2d 286, 287 (1973); Minteer v. Wolfe, 300 Pa.Superior 234, 241-42, 446 A.2d 316, 320 (1982); Adshead v. Sprung, 248 Pa.Superior Ct. 253, 256, 375 A.2d 83, 84 (1977). To claim title by adverse possession, however, one must prove an (1) actual, (2) visible, (3) notorious, (4) exclusive and distinct, (5) hostile, and (6) continuous use for twenty-one years. Conreault Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594, 66 A.2d 828, 829 (1949); Kaminski Brothers, Inc. v. Grassi, 237 Pa.Superior Ct. 478, 480, 352 A.2d 80, 81 (1975) (allocatur denied). We note that one claiming an easement by prescription, as the above lists indicate, need not show an actual nor an exclusive and distinct use.

Keeping the above principles in mind, and reading the instant charge as a whole, we believe that it was confusing. The pertinent parts are as follows:

Now, the Plaintiffs tell you that they have met that burden of proof simply through their title that they acquired when they bought this property, this restaurant, this bar; that this alleyway is their land. They say if you do not find that to be true, then they tell you they have acquired that property by adverse possession; that is, through an easement over the years.
Now, an easement is a right to use property as distinguished from a claim of title to the land itself. It’s simply the right to go across the property or to use the property, even though the legal title, the deed title may be in the Defendants.
Now, the law has developed on that and I’m making reference to an Appellate Court case and I’m going to read to you and explain it as it goes along so that you will more readily understand the holding and the case says this; it is well settled that he who asserts title by adverse possession must prove it affirmatively.
Now, adverse possession are words that speak for themselves. It’s a possession claimed adversely against the title owner or the rightfull [sic] owner of land when the claimant, the Plaintiffs, have a title deed to that property. It is well settled that he who asserts title by adverse possession must prove it affirmativély. One who claims by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for 21 years. Each of these elements must exist. Otherwise, the possession will not confirm title. An adverse possessor must intend to hold the land for himself and that intention must be made manifest by his acts. He must keep his flag flying and present a hostile front to all adverse pretenses. Sporadic use of land by one without title to it will not opt to give him title no matter how often repeating. The possession may be adverse by enclosing it or cultivating the land or constant using it but nothing short of an actual possession permanently continued will take away from the owner the possession which the law attaches to the legal title; that is, the deed title. Temporary acts on the land without an intention to seek and occupy it for residence or cultivation or otherwise or other permanent use consistent with the nature of the property are not the actual possession required. Such occupancy must be exclusive and of such a character as compels the real owner to take notice of the possession of the disowner; that is, the one claiming by adverse possession.
Now, the reason then for that, ladies and gentlemen, is if a party owns a piece of land by deed, what we call the deed or title owner and another one comes along and claims it without any deed or title but claims adverse possession, we often think of sometimes as trespassor or squatters or whatever. You’ve heard different language attributed to an adverse possession. The law says that if he does this openly and notoriously and hostile as contrary to mutual consent or permission, and this exists for a period of 21 years, then the law says, well, the title owner, you know, really doesn’t care. So, he is tacidly [sic] consenting to have his title taken from him by this means. He has 21 years to do something about it. If he doesn’t, then the law says that title, that land should be free from that dispute. Then, if he doesn’t do anything about it.
Now, the law further says that even though this must be continuous and notorious and hostile, that ... does not mean that there must be a day to day use that is required to satisfy the continuity element essential to the proscriptive [sic] right. The inability to measure the exact width or dimentions [sic] of a piece of property that in itself over 21 years will not defeat a proscriptive [sic] right of the land.
Now, that goes to the fact that if one is claiming by adverse possession, the land has to be identified what he’s claiming and the law does not make that so precise that if there is some inability to measure the exact dimensions, that will not defeat the right to claim by adverse possession nor is the law so unreasonable as to require that the use be continued constantly for 24 hour period each day of the week, month and year and so forth.

(N.T. October 5, 1983 at 7-10) (emphasis added). After the court studied the parties’ requests for additional instructions, it added:

Now, for the Plaintiffs and this has to do with the issue of the easement acquired by adverse possession. You recall I told you that an easement is a right to use someone else’s land as contrary to acquiring title to it by adverse possession and in doing that, I told you that to acquire the right it must be open and hostile and notorious and adverse and exclusive and possession over a period of 21 years either by themselves or jointly with others. It doesn’t have to be an exclusive use by the Plaintiffs or their predecessors in title. Otherwise, other people could have used it jointly with the Plaintiffs, but that only speaks to the element of exclusiveness in that definition of that adverse possession to acquire an easement.

(Id. at 29). The verdict slip given to the jury read: “Do you find [appellants] have acquired an easement to the property between the parties’ respective buildings?” The jury answered in the negative. (Id. at 36).

We believe a new trial on this issue is warranted. While the court apparently used the term “adverse possession” interchangeably with the term “easement,” it charged the jury not on the elements of an easement by prescription, but rather on those of adverse possession. Although the judge did attempt to correct the charge on the “exclusivity” element, we find even that portion of the charge contradictory: “It doesn’t have to be an exclusive use____” was followed by “Otherwise, other people could have used it jointly____” Nor can we agree with appellees that “[t]here is no reason to believe that the jury did not resolve the question of fact in favor of [appellees].” (Appellees’ Brief at 20). If the jury found that appellants’ possession was neither actual nor exclusive and distinct but that the other elements of acquiring a prescriptive easement were met, then the verdict was improper. We have no way, of course, of knowing on what basis it was that the jury found against appellants. Therefore, we believe a new trial is necessary.

In light of the foregoing, we affirm the judgment of the court below awarding appellees $8,000 in damages on their counterclaim, but reverse and remand for a new trial on appellants’ alleged acquisition of an easement by prescription.

Affirmed in part and reversed in part. Remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . A transcript of the hearing is part of the record, but the Board’s May 27 decision is not.

      . A third count in trespass seeking damages was not litigated.

      . Appellants’ post-trial motions included motions for new trial, in arrest of judgment, and for judgment n.o.v. The lower court's order stated only that their “motion for new trial in arrest of judgment is denied.” It becomes clear by reading the court’s accompanying opinion, however, that all of appellants’ motions were considered and denied; thus, we will consider the December 20 order as denying all of appellants’ motions.

      . A similar argument has been made and rejected with respect to 42 Pa.C.S.A. § 5103 (transfer between courts). See Sorbara v. City of Pittsburgh, 80 Pa.Commonwealth 425, 429, 471 A.2d 927, 929 (1984); Harris v. Oil Service, Inc., supra, 78 Pa.Commonwealth at 513-14, 467 A.2d at 1377; Township of Reserve v. Zoning Hearing Board, 78 Pa.Commonwealth 496, 501-02, 468 A.2d 872, 874-75 (1983). Section 5103(d), amended to § 5103 on December 20, 1982, effective in 60 days, could prescribe a different result, contra Harris v. Oil Service, Inc., supra, 78 Pa.Commonwealth at 513 n. 5, 467 A.2d at 1377 n. 5, but we note that it was not in effect at the time of the trial court’s action in the instant case. See Sorbara, supra, 80 Pa.Commonwealth at 430 n. 3, 471 A.2d at 929 n. 3.

      . As a general rule, this statement is correct. See Moyerman v. Glanzburg, 391 Pa. 387, 393, 138 A.2d 681, 684-85 (1958) (granting of an injunction for an encroachment within the trial court’s discretion unless encroachment done wilfully or intentionally).

      . Appellants argue that this is a “ludicrous result” in that appellees’ building was found to encroach on appellants’ property, yet the jury awarded appellees $8,000 for water damage done to the building in its unfinished state. If the building was fully completed, they continue, it, rather than only a partially finished building, would have to be torn down. (Appellants’ Brief at 12). Not only is this argument irrelevant, in that the injunction was improperly issued, but it can be made only in hindsight (for at the time appellants got their injunction they did not know, or did not assert, that appellees' building encroached on their property). Furthermore, appellees quite properly point out that they could, instead, (1) purchase from appellants the land encroached upon; (2) alter the building so it does not encroach; or (3) indeed, level the building, but salvage the materials and sell them to reduce their resulting losses. (Appellees’ Brief at 17). See also Lower Court Opinion at 10 (because appellees must sustain damages in moving their structure does not exonerate appellants for the damages they caused).


author: HESTER, Judge:

text:
    493 A.2d 758
    David W. PATO and Rita Pato, his wife v. John CERNUSKA and Catherine Cernuska, his wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 6, 1985.
    Filed May 24, 1985.

      John E. Costello, Charleroi, for appellants.
    Bradley M. Bassi, Assistant District Attorney, Charleroi, for appellees.

      Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

David and Rita Pato, appellees (hereinafter Patos), instituted an action in ejectment in the Court of Common Pleas of Fayette County against John and Catherine Cernuska (hereinafter Cernuskas). Both parties claimed ownership of a disputed tract of land. Following a non-jury trial, the court found in favor of Patos. The Fayette County Court en banc dismissed appellants’ exceptions to the trial court’s findings of fact and conclusions of law on August 12, 1983. This appeal followed.

The facts of the case may be summarized as follows. Mark and Ada Sugarman owned a parcel of land in Fayette County. They conveyed a portion of the land to Emery and Dessie Morrow in 1952, and purported to convey a portion to Cernuskas in 1968. Dessie Morrow, then a widow, conveyed her tract to David Pato, then unmarried, in 1975. Following his purchase of the property, Pato made demand upon Cernuskas to discontinue using the disputed tract of land as a garden. When appellants refused, Patos brought this action in ejectment to establish their ownership of the disputed portion of the property.

In determining ownership of the disputed property, the trial court found that there was an inconsistency between the call for monuments and the call for distances in the Sugarman to Morrow deed description. The deed conveyed an area of 1.541 acres and recited the distance between the monuments (old Rt. 51 and the eastern line of the Elwell Branch of the Pittsburgh, McKeesport, Youghiogheny Railroad right-of-way, which is now new Rt. 51), to be 165 feet. The trial court further found that the actual distance between the monuments exceeds 400 feet. Cernuskas argued at trial, and argue here, that Sugarman (and therefore Morrow) did not convey more than 165 feet. Pato maintained that the call for distances is incorrect, and that the deed actually conveyed the entire area between old Rt. 51 and new Rt. 51, based upon the call for monuments. The trial court agreed with Patos, and appellants now assert that the trial court erred.

The findings of a trial judge sitting without a.jury carry the same weight as a jury verdict, and we will not disturb those findings on appeal absent an error of law or abuse of discretion. Bigham v. Wenschhof, 295 Pa.Super. 146, 441 A.2d 391 (1982). With this standard in mind, we cannot say that the trial court erred in applying the rule that permanent monuments prevail over courses and distances in a deed description. N.Y. State Natural Gas Corp. v. Roeder, 384 Pa. 198, 120 A.2d 170 (1956).

Appellants argue that this court should not apply the above proposition of law because it leads to an absurd result, Post v. Wilkes-Barre Connecting Railroad Co., 286 Pa. 273, 133 A. 377 (1926), in that it enlarges Patos’ land to more than double its original size. Appellants assert that since the location of the monuments, as set forth in the deed, is doubtful, we should resort to, and rely upon, the distances set forth therein.

The trial court found that the monuments referred to in the deed were the Elwell Branch of the Pittsburgh, McKeesport, Youghiogheny Railroad right-of-way on the east, and a 20-foot alley running parallel thereto on the west. Appellants argue that the trial court disregarded the existence of similar monuments located at the 165 foot mark, thereby giving support to their assertion that the call for distances is accurate and should prevail. The county court en banc rejected this argument.

[T]he description in the ... deed clearly demonstrates that the westerly line of the parcel runs concurrent with the western side of a 20-foot alley and the eastern side of the Elwell Branch of the Pittsburgh, McKeesport, Youghiogheny Railroad right-of-way. It is for this reason that [Cernuskas’] argument is untenable. The railroad arc to which they refer does not run parallel to the 20-foot alley maintained by them to be the alley described in the deed and, accordingly, their eastern and western boundary lines could not coincide.

(Record at 330a).

Furthermore, Exhibit 9, introduced at trial by appellants, shows the area to which the parties claim ownership as it existed prior to the Sugarman to Morrow conveyance. Not only does Exhibit 9 show the right-of-way as running parallel to the 20-foot alley, it also establishes that the parcel contained 1.541 acres. This consistency between Exhibit 9 and the call for distances in the deed description was relied upon by the court en banc in affirming the trial court’s conclusion that the parcel conveyed by Sugarman to Morrow was the parcel of land described in Cernuskas’ Exhibit 9. As the court’s conclusion is supported by competent evidence, that finding will not be disturbed.

Appellants also argue that Patos are not bona fide purchasers entitled to the protection of the Recording Acts. “[I]t has long been settled that it is the duty of a purchaser of real property to make inquiry respecting the rights of the party in possession and failing to do so they are affected with constructive notice of such facts as would have [been disclosed]____” Malamed v. Sedelsky, 367 Pa. 353, 357, 80 A.2d 853, 855 (1951).

Testimony at trial reveals that David Pato asked Dessie Morrow why appellants were using the disputed property, and was told they only had permission to use it. (R. 37a-40a). Further, appellants’ use of the disputed property was not exclusive since Dessie Morrow, Patos’ predecessor in title, used the same area. (R. 256a-57a).

We believe that whether or not Patos had notice of Cernuskas’ use of the disputed property is irrelevant to the issue in this case. Appellees are entitled to rely upon the strength of their title, and to prove that their record title is superior to that of Cernuskas. This they have done.

Order affirmed.

      . Since Cernuskas argued that the deed from Dessie Morrow to Patos, based upon Patos’ interpretation of the deed description, purported to convey an area in excess of the land conveyed to Morrows by Sugar-man, the Court was required to determine the parcel actually conveyed from Sugarman to Morrow in order to determine ownership of the disputed tract. The Sugarman to Morrow deed and the Morrow to Pato deed both contained the same inconsistency between the call for monuments and the call for distances.
      Furthermore, if the court determined that Sugarman conveyed the disputed area to the Morrows in 1952, Sugarman obviously could not have conveyed the land in question to Cernuskas in 1968.


text:
    493 A.2d 760
    LOYAL CHRISTIAN BENEFIT ASSOCIATION v. Harold J. BENDER, Donald W. Grieshober, Jess S. Jiuliante, R.A. Orlando, Chester J. Vendetti and Richard A. Vendetti, t/d/b/a Peach Street Investors (76), Appellants, v. Carl A. CANNAVINO, City of Erie, County of Erie, and Erie School District.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Filed May 24, 1985.

      Vedder White, Erie, for appellants.
    David E. Holland, Erie, for Loyal, appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

This appeal was taken from an order sustaining a motion for summary judgment. For the reasons that follow, we affirm.

On August 28, 1981, appellants, Peach Street Investors, and appellee, Loyal Christian Benefit Association, entered into a written agreement whereby appellants agreed to assign their leasehold interest in approximately 10,500 square feet of land situated at 700 Peach Street in Erie, Pennsylvania in exchange for appellee’s payment of $1,350,-000.00. Included among appellants’ interests was the option to purchase the land at the termination of the lease. The purchase price was payable by appellee’s assumption of a note due appellants’ lessor in the amount of $1,200,000.00 with the balance payable in cash at closing.

The warranty provision of the written assignment included a statement that a real estate tax exemption for the subject property had been granted to the lessor/owner by the treasurer of the City of Erie. This exemption purportedly covered all city, county and school district real estate taxes for the years 1982, 1983 and 1984.

When appellee received 1982 tax bills from the three taxing units, it notified appellants. Appellants disclaimed liability for the tax bill; therefore, appellee paid $9,915.00 for the 1982 taxes. As a result, appellee filed an action for declaratory judgment in Erie County seeking judgment in the amount of $9,915.00 and a decree holding appellants and others liable for 1983 and 1984 real estate taxes.

Appellee’s motion for summary judgment was granted by order dated August 12, 1983. The court ruled as a matter of law that appellants breached the warranty of tax exemption for the years 1982, 1983 and 1984. A money judgment was entered against appellants for $9,915.00, and appellants were further declared liable for 1983 and 1984 real estate taxes. Appellants perfected this appeal from that order.

A motion for summary judgment is properly sustained where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Just v. Son’s of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976); Toth v. Philadelphia, 213 Pa.Super. 282, 247 A.2d 629 (1968); Pa.R.C.P. 1035(b). In entertaining a motion for summary judgment, the record is viewed most favorably for the nonmoving party. All reasonable inferences must be drawn for the benefit of the respondent so that summary judgment will be granted only in those cases that are free of any doubt. Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967). With this standard in mind, we consider appellants’ arguments and the propriety of the order granting declaratory judgment.

Appellants’ first argument is that the tax exemption warranty was included in the agreement by mutual mistake. They contend that both parties relied upon a letter written by Erie City Treasurer Carl Cannavino. This letter, which was dated June 29, 1981, notified appellants’ lessor that an exemption from county, city and school district real estate taxes was granted to the subject property for 1982, 1983 and 1984.

Should both parties to a contract be mistaken as to existing facts at the time of execution, the party adversely affected by such mistake may be given relief. Ehrenzeller v. Chubb, 171 Pa.Super. 460, 90 A.2d 286 (1952). Whether relief is granted depends upon the nature and effect of the mistake. The mistake must relate to the basis of the bargain; it must materially affect the parties’ performances; and, it must not be one as to which the injured party bears the risk. Spatz v. Nascone, 283 Pa.Super. 517, 424 A.2d 929 (1981). If this tripartite test is met, the injured party may acquire reformation of the contract or, as appellants are attempting to do here, avoid the contractual obligations. Appellants are seeking to avoid their obligations under the warranty of real estate tax exemption.

Since the warranty paragraph of the agreement refers to a real estate tax exemption granted by the City Treasurer’s office, both parties executed the contract under the mistaken belief that the property was tax exempt. However, this is not the type of mutual mistake for which appellants can obtain relief.

First, the exemption was not the basic premise on which the contract was formed. This contract involved the assignment of a leasehold interest in 10,500 square feet of land for a purchase price of $1,350,000.00. It was valuable property suitable for commercial development. A real estate tax exemption valued at $9,915.00 a year for three years pales in comparison to the purchase price. The significant purchase price reflects many factors, whose combined effect reduces the significance of the tax exemption. With an agreement of this considerable value, the real estate exemption could hardly be a basic premise on which the contract was made. For these same reasons, the mistake does not materially affect the parties’ performances.

Finally, we hold that appellants bore the risk that the property was in fact not tax exempt. Assignors of substantial real estate interests, who had the better opportunity to determine the condition of the property, bear the risk that any warranty on condition will be breached. This is true whether, as here, such breach is due to the assignors’ reasonable reliance upon an erroneous government report that the property is tax exempt. Certainly, the risk of no tax exemption cannot fall upon appellee who was not privy to conditions surrounding the writing and procurement of Cannavino’s letter.

Next, appellants argue that the exemption paragraph of the agreement is ambiguous; therefore, mutual mistake may be proven through parol evidence. Inasmuch as there was no mutual mistake which would accord relief to appellants, the introduction of parol evidence would have been inconsequential.

Appellants next argue that, if there was no mutual mistake and the warranty was breached, appellee was limited to the remedy of rescission according to paragraph 3(b) of the agreement. Paragraph 3(b) stated that the agreement was contingent upon the “non-breach of all warranties and representation herein.” Paragraph 3 concluded that should “any of these contingencies” not be met, then the “Agreement shall become null and void and both Assignor and Assignee shall be released from all obligations hereunder.”

We agree that rescission is a contractual remedy here; nevertheless, paragraph 3 does not exclude other appropriate remedies. It does not expressly refer to a limitation of remedies, nor is it entitled as such. We hold that the limitation of the afflicted party’s right to seek full redress is of such serious consequence that, in order to be effective, it must be written in clear, direct and unmistakable language. See 17 Am.Jur.2d Contracts § 445 (1964). Paragraph 3 does not meet this standard; accordingly, appellee was not limited solely to rescission.

Next, appellants complain that appellee failed to mitigate damages when it paid the 1982 and 1983 real estate taxes without protest. It was not enough, according to appellants, for appellee to pledge its cooperation in any assessment appeal.

The injured party is not obligated to mitigate damages where both he and the liable party have an equal opportunity to reduce damages. S.J. Groves & Sons Co. v. Warner Company, 576 F.2d 524 (3rd Cir.1978). Upon receiving the 1982 tax invoice, appellee immediately notified appellants. Furthermore, appellee pledged its cooperation. In light of the real estate tax exemption warranty, it was appellants’ obligation to process and cover the expense of an appeal, although it was to be properly captioned in appellee's name.

In addition, due to procedural errors in the tax exemption application, it was not certain that the assessment appeal would succeed. There was some question whether the particular exemption act would apply retroactively as it was enacted subsequent to the application for a building permit for improvements on the subject premises. Secondly, a tax exemption application was not submitted at the time of the building permit application; consequently, exempt status may have been waived. Where the issue of mitigation of damages is in doubt, the injured party has no obligation to mitigate.

Appellants’ final argument is that the declaratory relief extends beyond the warranty. Appellants point out that the letter from the Erie City Treasurer designated $150,-000.00 as the exempt amount limit. We disagree. The letter informed appellants’ lessor that the temporary value of improvements was $150,000.00. It did not state that $150,000.00 was the tax exempt limit. The exemption applied to the full tax irrespective of the value of the improvements.

Order affirmed.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    493 A.2d 764
    PAXTON NATIONAL INSURANCE COMPANY, Appellee, v. William BRICKAJLIK, Individually and t/a Brick’s Farm Market, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1984.
    Filed May 31, 1985.

      Nino V. Tinari, Philadelphia, for appellant.
    John S. Thome, Jr., Doylestown, for appellee.
    Before CAVANAUGH, WIEAND and MONTGOMERY, JJ.
   WIEAND, Judge:

William Brickajlik was the owner of a truck which had been stolen while in the possession of Mycek’s Sunoco Service Center. Paxton National Insurance Company (P.N. I.), which had written a policy insuring against theft, reimbursed Brickajlik for his loss in the amount of $3,350. P.N.I. then attempted to assert a third party claim against Mycek’s Sunoco Service Center. Brickajlik refused to sign a complaint which would have enabled P.N.I. to commence an action against Mycek in Brickajlik’s name. Thereafter, P.N.I. commenced an action against Brickajlik, its insured, to recover damages for breach of the cooperation clause in the policy of insurance. The action was tried nonjury and resulted in a decision in favor of P.N.I. and against Brickajlik for $3,350, plus interest. Post-trial motions were denied, and judgment was entered on the verdict. Brickajlik appealed. We reverse.

Paragraph 7 of the policy of insurance provides:

Subrogation: In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights, (emphasis in the original).

Paragraph 4-C of the policy also provides:

The insured shall cooperate with the company and, upon the company’s request, assist in making settlements, in the conduct of suits, and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which the insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of the accident.

When appellant signed a “Sworn Statement in Proof of Loss (Automobile),” he agreed as follows:

Subrogation: The insured hereby covenants that no release has been or will be given to or settlement or compromise made with any third party who may be liable in damages to the insured and the insured in consideration of the payments made under this policy hereby subrogates the said Company to all rights and causes of action the said insured has against any person, persons or corporation whomsoever for damage arising out of or incident to said loss or damage to said property and authorizes said Company to sue in the name of the insured but at the cost of the Company any such third party, pledging full cooperation in such action.

Brickajlik concedes that he refused requests by his insurer to sign a complaint against the bailee of his truck. He argues that he had no duty to cooperate with his insurance company and that the latter, having paid his claim, cannot pursue a claim against him. He is obviously incorrect, and the trial court so held.

The purpose of cooperation clauses is to protect the insurer’s interest and prevent collusion between the insured, to whose rights the insurer has been subrogated, and the third party tortfeasor. See: 8 Appleman, Insurance Law and Practice § 4771. The cooperation clause is a material condition to the liability of the insurer. Cameron v. Berger, 336 Pa. 229, 233, 7 A.2d 293, 295 (1938). Before an insurer is relieved of liability, however, it must show that there was more than an unsubstantial or immaterial departure from the letter of the policy and that the insurer suffered substantial prejudice because of the conduct of its insured. Conroy v. Commercial Casualty Ins. Co., 292 Pa. 219, 140 A. 905 (1928).

As a part of his proof of loss, Brickajlik had already authorized P.N.I. “to sue in the name of the Insured ... any such third party.” P.N.I., therefore, was the real party in interest. It could have commenced an action in the name of its insured or its own name against the third party bailee. Pa.R.C.P. 2002(d). P.N.I. did not ever file an action against the third party bailee. Instead, it sued its own insured for breach of the agreement to cooperate. Because the insurer never pursued its remedy against the third party bailee, it was unable to show that Brickajlik’s refusal to sign the complaint had been a material failure to cooperate or had caused any loss to P.N.I. Cf. Moses v. Ferrel, 97 Pa.Super. 13 (1929). We reject as unsound the trial court’s conclusion that pursuit of an action by the insurer could not be expected in view of the risks of filing suit without the signature of its insured. If, after P.N.I. had commenced a third party action, the insured failed to cooperate by refusing to give relevant testimony or otherwise refused to cooperate, his refusal would have become a material breach of the agreement to cooperate. The mere failure of the insured to respond to requests to sign a third party complaint in this case, however, did not prevent the commencement of an action by P.N.I. to recover its subrogation claim from the third party. The insured’s refusal to sign the complaint, therefore, was not, without more, a material breach of the cooperation clause.

Judgment reversed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. The majority discusses the issue of whether Brickajlik’s conduct constituted a material and prejudicial breach of the cooperation clause in his insurance policy, and finding that it did not, reverses the lower court order appealed from herein. “It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party to an appeal, will not be considered by an appellate court. See Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); Commonwealth v. Stowers, 363 Pa. 435, 70 A.2d 226 (1950); Nicola v. American Stores Inc., 351 Pa. 404, 41 A.2d 662 (1945)____ [A]n appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appeal level. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).” Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). Although the issue discussed by the majority was raised below, my review discloses that it was not made and preserved on appeal and therefore, I would not reach the merits of this issue.

Moreover, were the merits of the issue properly addressed, I would part ways with the majority for the reasons expressed by Judge Biester, writing for the court en banc below. I agree with the en banc court that Brickajlik’s characterization of the action as one in subrogation is erroneous, and that the action is properly based upon a breach of contract which occurred when appellant signed the proof of loss form pursuant to the terms of his insurance policy with Paxton National Insurance Co., yet refused to perform his promise of cooperation. In addition, I agree with the court’s conclusion that appellee did suffer damage resulting from Brickajlik’s refusal to sign the complaint against Sunoco. Notwithstanding that Paxton might also sue Sunoco in its own name, the claim, undertaken by Paxton in Brickajlik’s name, would more likely yield the result desired by Paxton. Contractually, Paxton clearly would have a right to expect and receive the advantage of a lawsuit in Brickajlik’s name in advancing its case against Sunoco. Therefore, I would affirm the judgment of the court below.

      . The issue decided in the trial court and the issue preserved for review in this Court, although admittedly not well argued in appellant’s brief, is whether the insurer should be allowed to recover from its insured those benefits previously paid after the insured refused to comply with the insurer’s request that the insured sign a third party complaint. The Superior Court is not relieved of its responsibility for deciding this issue correctly merely because appellant’s argument has been poorly articulated and has been couched in language referring to the insurer’s right of subrogation against its insured rather than its right to recover against him for breach of contract.


author: WIEAND, Judge:

text:
    493 A.2d 767
    Jill R. COHEN, Esquire v. Gustine J. PELAGATTI, Esquire, Nabcor and Frank Maiorana. Appeal of Gustine J. PELAGATTI, Esquire.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1984.
    Filed May 31, 1985.

      Stephen W. Bruccoleri, Philadelphia, for appellant.
    Jonathan Wheeler, Philadelphia, for appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

This appeal seeks to determine whether a trial court can properly issue a preliminary injunction prohibiting the use of subpoenas to compel ex parte productions of scholastic and other records of a non-litigant for examination by an attorney and his client. We conclude that in this case the issuance of the preliminary injunction was based on reasonable grounds and affirm.

“[0]n an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the [trial court].” Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981), quoting Roberts v. Board of Directors of School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975). See also: Singzon v. Commonwealth, Department of Public Welfare, 496 Pa. 8, 10-11, 436 A.2d 125, 126-127 (1981); Bell v. Thornburgh, 491 Pa. 263, 267-268, 420 A.2d 443, 445 (1980). A preliminary injunction, however, should be granted only where the rights of the plaintiff are clear, the need for relief is immediate, and the injury irreparable. South Fayette Township v. Commonwealth, 477 Pa. 574, 580, 385 A.2d 344, 347 (1978); Zebra v. Pittsburgh School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 301, 464 A.2d 1349, 1353-1354 (1983).

Jill Cohen, Esquire, was law clerk to the Honorable Bernard Snyder during the period in which Judge Snyder presided over the non-jury trial of a case in which NABCOR and Frank Maiorana sought to recover damages against Philadelphia National Bank (PNB). The plaintiffs in that action were represented by Gustine J. Pelagatti, Esquire, who was successful in recovering a verdict for them in the amount of 8.7 million dollars. During the period of Jill Cohen’s clerkship, Judge Snyder had also presided at a trial in which James R. Edgehill alleged that he had been libeled by Philadelphia Magazine. In the Edgehill action, a petition for the recusal of Judge Snyder was filed by Philadelphia Magazine, and Jill Cohen was named as a witness. Although she was not permitted to testify, an offer of proof was made and included an accusation of improper conduct on the part of the trial judge. The offer of proof also contained references to alleged improprieties during the NABCOR trial.

At the time when this offer of proof became known publicly via the news media, post-trial motions had already been filed in the NABCOR action and were then awaiting disposition. Counsel for PNB suggested to Pelagatti that he was considering the use of Jill Cohen’s testimony as a basis on which to attack NABCOR’s verdict against PNB. Pelagatti thereupon caused subpoenas to be issued ex parte to various educational institutions, including Enfield Middle School, Springfield Township Board of Education, Franklin and Marshall College, Temple University and the Delaware Law School, for the production of Jill Cohen’s scholastic records. Pelagatti also suggested that Jill Cohen had a record of psychiatric disorders and attempted to use a subpoena to obtain records from Fairmount Farms. It appears, however, that those records did not pertain in any way to the present appellee.

Jill Cohen, who is the present appellee, commenced an action in equity to enjoin the further issuance of subpoenas for her records and also to prevent the dissemination of information already obtained. The subpoenas which appellant Pelagatti used had been issued under the caption of the NABCOR action. They had been obtained from the Philadelphia prothonotary in the form required by 42 Pa.C.S. § 5905 and Pa.R.C.P. 1357 but had been altered. Pelagatti, who referred to the subpoenas as “record copy subpoenas,” had removed language directing the person served to appear in court for purposes of testifying and, instead, had inserted language instructing the person served to deliver up immediately the records of Jill Cohen to the person serving the subpoena. In this manner Pelagatti was able to obtain copies of Jill Cohen’s private and confidential educational records. It was this practice by Pelagatti and his clients, inter alia, which the trial court enjoined.

“The essence of a subpoena’s function is to aid the court in the resolution of litigation, so if there is no formal proceeding pending before the court there can be no legitimate reason to issue a subpoena.” Commonwealth v. Polak, 438 Pa. 67, 69, 263 A.2d 354, 356 (1970). In the absence of statute granting the subpoena power to nonjudicial bodies or officials, the power to issue subpoenas is limited to the judiciary. Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 263, 81 A.2d 891, 893 (1951); In re January, 1974 Special Grand Jury, 238 Pa.Super. 479, 483 n. 4, 357 A.2d 628, 631 n. 4 (1976). The power to issue subpoenas has not been vested in an attorney. See: Commonwealth v. Fallings, 251 Pa.Super. 365, 370, 380 A.2d 822, 825 (1977). See also: Commonwealth ex rel. Margiotti v. Orsini, supra.

In the instant case, the NABCOR trial had been completed, and the post-trial motions which had béen filed raised only matters of record. The trial court had no need of Jill Cohen’s testimony to decide those issues. Cf. Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). Moreover and in any event, the court did not issue a subpoena for her appearance. On the contrary, the subpoenas had been obtained and were served solely to assist counsel’s investigation as he sought to uncover information for his or his clients’ future use. This was improper.

Pelagatti argues that he had a right to use the subpoena for purposes of discovery. In using the subpoena to compel the production of documents, he used it as a subpoena duces tecum. The object of a subpoena duces tecum, however, “is the production of evidence to be used ... before the court. It is not the object of the [subpoena duces tecum] to require the production of books and papers merely for the party’s inspection, and the subpoena is not to be used as a bill of discovery [or] for a mere ‘fishing’ expedition.” 81 Am.Jur.2d Witnesses § 14 (1976). See also: American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529, 70 A. 867 (1908).

Appellant’s reliance upon Pa.R.C.P. 4009(a)(1) is misplaced. This rule authorizes a party to litigation to serve upon another party a request for the production of documents. It has no application to nonparties. Subsection (c) thereof suggests that where production of documents is sought from a person not a party, an independent action against that party is necessary. Appellants did not follow the procedure suggested by Pa.R.C.P. 4009(c). They attempted, rather, to obtain production of Jill Cohen’s records ex parte and without prior notice. They used deceptive subpoenas to gain access to Cohen’s confidential records even though neither she nor the custodians of her records were parties to the NABCOR action or any other action in which appellants had a direct interest.

Our holding that appellants misused the subpoena process finds support in, but is not controlled by, the Civil Procedural Rules Committee’s proposed Rule 234.1 which, if adopted by the Supreme Court, will provide as follows:

Rule 234.1. Subpoena
(a) A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or control of that person.
(b) A subpoena may be used to command a person to attend and to produce documents or things only at
(1) a trial or hearing in an action or proceeding pending in the court, or
(2) the taking of a deposition in an action or proceeding pending in the court.
(c) A subpoena may not be used to compel a person to appear or to produce documents or things ex parte before an attorney, a party or a representative of the party.

Pennsylvania Proposed Amendments to Civil Procedural Rules, 487 A.2d XXXVI (Adv.Rep. March 15, 1985) (emphasis added).

Appellants argue that an injunction was an inappropriate remedy. They contend that an adequate remedy existed under the provisions of Pa.R.C.P. 4012, which establishes procedure by which protective orders may be issued by a court upon motion. A protective order under this rule is available, however, only in limited circumstances. The rule has application to and is available in discovery proceedings. It permits a party or person from whom discovery or a deposition is sought to seek an order protecting such party or person “from unreasonable annoyance, embarrassment, oppression, burden or expense____” Rule 4012, by its terms, has no application to subpoenas issued ex parte to obtain copies of records from third persons who are not parties to and not essential witnesses in pending litigation. Although we are not prepared to hold that a protective order under circumstances similar to those in the present matter would be improper, we have no hesitancy in concluding that the procedure established by R.C.P. 4012 provided an inadequate remedy in this case. Without notice to anyone, appellants abused the subpoena process by issuing subpoenas which had been altered in form and which deceptively misrepresented an order of the court to compel delivery of Cohen’s records to appellants’ agent and process server. It is readily apparent, in view of the irregular practice adopted by appellants, that a protective order, available only after the person served had been identified and Cohen’s confidential records already violated, was an inadequate remedy. Appellants’ conduct was such that the only adequate remedy was a court order enjoining appellants’ dissemination of information obtained and also the future issuance of improper subpoenas.

The granting of equitable relief, it has been said, “depends not so much on the want of a common-law remedy, as upon its inadequacy and its exercise is a matter which often rests within the discretion of the court; in other words the court may take upon itself to say whether the common-law remedy is, under all the circumstances and in view of the conduct of the parties, sufficient for the purpose of complete justice.... ” Penn Iron Co., Ltd. v. City of Lancaster, 25 Pa.Super. 478, 483 (1904). In the instant case, the learned trial court did not err when it concluded that a preliminary injunction was appropriate to maintain the status quo until the action could be litigated and finally determined.

There were reasonable grounds for the trial court to believe that Cohen would suffer irreparable harm if appellants were to continue unfettered their abuse of the subpoena process to invade Cohen’s privacy by obtaining and exploring confidential files and records from persons who were the lawful custodians thereof. Cohen had a legitimate interest in maintaining the privacy of her educational and other records. See: Family Educational and Privacy Act, 20 U.S.C.A. § 1232g (b) and (d). The trial court did not err when it issued an injunction to protect and preserve her privacy rights against the improper practices adopted by appellants.

Order affirmed.

      . The trial court’s order provided as follows:
      AND NOW, this 16th day of September, 1983, upon consideration of plaintiff’s Motion for Preliminary Injunction, Complaint in Equity, and after hearings held thereon, it is hereby ORDERED and DECREED that defendants Gustine Pelagatti, NABCOR and Frank Maiorana be and they are hereby enjoined and restrained until final hearing and thereafter until further Order of this Court from:
      (1) issuing subpoenas under the NABCOR caption to acquire documents concerning plaintiff, Jill R. Cohen;
      (2) reviewing any documents which have been produced pursuant to subpoenas previously issued under the NABCOR caption;
      (3) disseminating any information contained in such documents; and

        (4) otherwise invading or intruding upon plaintiffs privacy.
      Plaintiff shall furnish a bond in the sum of $1,000.00, with sufficient surety, conditioned on its paying to defendants all costs and damages which may accrue to defendants by reason of the issuance of said preliminary injunction, in the event that it shall be adjudged that said preliminary injunction was wrongfully issued.


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    493 A.2d 772
    Frances X. FASCIANA, Appellee, v. AETNA LIFE & CASUALTY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed May 31, 1985.

      Paul A. Barrett, Scranton, for appellant.
    Alan P. Schoen, Scranton, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Frances Fasciana sustained fractures of her right femur, right clavicle, left ankle, fibula and tibia as a result of a vehicular accident occurring on June 26, 1978. Aetna Life & Casualty Co. (Aetna), which had written no-fault insurance coverage for the vehicle which she had been driving, paid work loss benefits and medical benefits, including the cost of physical therapy treatments rendered prior to June 24, 1980. It refused to reimburse her for the cost of physical therapy treatments rendered between June 24, 1980 and October 19, 1982 on grounds that they were not “reasonably necessary.” Ms. Fasciana filed this action to recover the cost of such treatments and also to recover counsel fees. Following trial without jury, the court found that she was entitled to recover costs of physical therapy in the amount of $7,037.90, plus interest, and counsel fees in the amount of $2,045.00. Exceptions were dismissed, and judgment was entered on the verdict. Aetna appealed.

The Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, § 103, 40 P.S. § 1009.103, specifically allows recovery for “reasonable charges incurred for ... reasonably needed and used products, services, and accommodations for ... medical and vocational rehabilitation services.” (emphasis added). Medical and vocational rehabilitation services include physical therapy.

The evidence in this case showed that a metal pin previously inserted in appellee’s leg had been removed in January, 1980. Dr. Raklewicz, the treating orthopedic surgeon, recommended that appellee return to her work as a secretary. She did not return to work until April, 1980. After three days she complained of pain, swelling, and weakness in her leg, which she attributed to the need to operate a floor button on dictating equipment. She informed Dr. Raklewicz of her complaint, but he declined to examine or treat her further. Appellee’s family doctor, who was continuing to treat her, referred her to Geisinger Medical Center for an orthopedic evaluation. There she was examined by Dr. G.L. Wolfgang on June 4, 1980; he also told her that there was nothing further to be done other than for her to exercise and use her limbs. He advised her to return to work and “strongly recommended that she stop shopping around for physicians and get busy with exercises and physical therapy.” Ms. Fasciana sought another medical opinion from Dr. Christopher Metzger. He examined her and prescribed physical therapy. Dr. Metz-ger did not tell his patient how long to continue physical therapy; and appellee continued such treatments until October 19, 1982. When appellee consulted Dr. Metzger in November, 1980, it was his assessment that she was bene-fitting from physical therapy; and, therefore, he recommended that it be continued. He told her at that time that he could do nothing further for her and that exercise was the best means for strengthening the leg. He testified that the benefits from therapy had peaked by October, 1982 and that future therapy would serve only to maintain strength in the leg.

This evidence was sufficient to support the finding of the trial court that physical therapy was reasonably necessary in the months preceding November, 1982. It is correct, as appellant contends, that there was conflicting evidence. Dr. Metzger’s records contained an entry made in June, 1980, that “there is absolutely nothing further that I would offer or could offer at the present time____” On cross-examination at trial, Dr. Metzger testified regarding physical therapy as follows:

A. In November of 1980,1 prescribed it in the sense that I felt that there would be no harm to her continuing physical therapy.
Q. But it wasn’t in your opinion reasonable and necessary for her treatment, that is correct, isn’t it?
A. That is correct.
Q. If she chose to have physical therapy, your medical opinion wouldn’t say it was reasonable and necessary for her to do it?
A. I don’t really know how much it would have benefited her, that is correct.
(Record, p. 164a). Subsequently, Dr. Metzger said:
Q. Doctor, yet when you saw her, you indicated you saw her in November of 1980, and at that time she was still getting physical therapy beyond the two-month period you just indicated; and you have testified that you still felt ... the physical therapy was still serving some need, rehabilitative purpose at that time?
A. Minimal, yes.
Q. But some rehabilitative purposes?
A. Really, it is so difficult to comment on the length of time that physical therapy would have benefited her, because she didn’t see me on a regular basis. I did not have correspondence with physical therapists; and perhaps, proper limits, three months or so really would be about all that I would feel that would have helped her. And, the history that she had told me really had not informed me that she had seen these other physicians and was not aware, I guess, of all the treatment that she had or not had, or whatever ... (A)t that point in time, there is no harm in trying but, I have to state it now that I just don’t feel it was worth two and one-half years.
Q. You didn’t tell her that in November of 1980, though, did you? You didn’t tell her to stop therapy?
A. I didn’t tell her to stop therapy, no.
Q. So in November of 1980, you were aware that she was getting therapy?
A. Yes, but I did not anticipate something that would have gone on for two and one-half years.

(Record, pp. 168a-170a). This testimony suggests that Dr. Metzger prescribed physical therapy for appellee and did not tell her to stop it until November, 1982, although in retrospect he conceded that maximum physical benefit had probably been achieved within three months of commencement.

Under these circumstances, the trial court found that physical therapy was reasonably necessary. Such a course of treatment had been medically prescribed, and appellee had not been told to discontinue the treatments prior to November, 1982. Both appellee and her therapist testified, moreover, that there were subjective benefits derived by appellee from the prolonged course of treatment. We cannot say, under these circumstances, that the trial court’s finding was wholly unsupported by the evidence.

It seems clear, however, that Aetna’s denial of reimbursement for physical therapy treatments after June 24, 1980 was not predicated upon bad faith but, rather, was based upon reasonable foundation. The award of counsel fees, therefore, was error.

Section 107(3) of the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.107(3) provides for an award of counsel fees in some actions as follows:

If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

(Emphasis supplied). This has been construed by the appellate courts of this state to allow an award of counsel fees only upon proof of bad faith on the part of an insurer in denying the claim. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 160, 425 A.2d 419, 424 (1981); Hall v. Midland Insurance Co., 320 Pa.Super. 281, 288-289, 467 A.2d 324, 328 (1983); Shomper v. Aetna Life & Casualty Co., 309 Pa.Super. 97, 100, 454 A.2d 1101, 1102 (1982); Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 92-93, 454 A.2d 1092, 1098 (1982), overruled on other grounds, Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), aff'd, 507 Pa. 68, 488 A.2d 571 (1985).

In the instant case, there were no facts upon which to rest a finding that Aetna’s denial of the claim for physical therapy treatments rendered after June 24, 1980 was in bad faith. On the contrary, the history of appellee’s treatment, including her examination by three separate orthopedic surgeons all of whom at one time or another challenged her continuing need for treatment, suggests strongly that appellant was warranted in contesting appel-lee’s claim for almost two and one-half years of physical therapy between June, 1980 and November, 1982.

Remanded for the entry of judgment consistent with the foregoing opinion.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

I join the majority in its affirmance of the trial court’s finding that the physical therapy charges are recoverable against the no-fault carrier. Further, I concur in the result reached in reversing the trial court on the issue of counsel fees under the no-fault act. However, I write separately to express my view that the test of recoverability of counsel fees based upon 40 P.S. § 1009.107(3) does not require a showing of bad faith on the part of the carrier to make it responsible for counsel fees, only that its action in denying benefits was unreasonable. I agree with the majority opinion that the actions of the carrier in this case in denying the payment of benefits were not unreasonable and therefore concur in the result that counsel fees are not recoverable herein.