author: HOFFMAN, Judge:

text:
    454 A.2d 31
    ESTATE OF Franz A. KEIPER, Deceased. Appeal of: Lloyd H. MOLL, Executor of the Estate of Franz A. Keiper, Deceased, and Luise G. Moll.
    Superior Court of Pennsylvania.
    Argued May 12, 1982.
    Filed Oct. 29, 1982.
    Reargument Denied Jan. 6, 1983.
    Petition for Allowance of Appeal Denied March 3, 1983.

      J. Brooke Aker, Norristown, for appellant.

      Peter W. Schmehl, Reading, for appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in returning the assets of appellant Luise Moll’s bank accounts to decedent’s estate. Because the record supports the lower court’s decree, we affirm.

Following his wife’s illness and his own hospital stay for inoperable cancer, decedent opened a bank account giving power of attorney to his son-in-law, appellant Lloyd Moll. After his wife’s death and his own rehospitalization, decedent signed a document prepared by Lloyd Moll authorizing that assets in decedent’s accounts be put in the joint names of him and his daughter, appellant Luise Moll, “as he [Lloyd Moll] shall deem appropriate.” Lloyd Moll then put decedent’s accounts in the names of decedent and Luise Moll. Decedent subsequently executed a will leaving certain amounts to his three children. Finally, decedent took a down payment from the sale of his residence and placed it in a new account, without any power of attorney in Lloyd Moll. When the balance was paid, however, the down payment and the balance were deposited in one of the joint accounts, not in decedent’s own account. Following decedent’s death, Lloyd Moll, as executor, filed an inventory of the estate’s assets excluding certain items of personal property and the contents of the joint accounts. Appellees, decedent’s other two children, objected to the account. After a hearing, the lower court found the personal property properly excludable inter vivos gifts but determined that the joint accounts had been established as a result of a confidential relationship and thus must be returned to the estate. This appeal followed.

Appellants contend first that no confidential relationship existed between decedent and appellant Lloyd Moll

Although no precise formula has been devised to ascertain the existence of a confidential relationship, it has been said that such a relationship is not confined to a particular association of parties, but exists whenever one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest.

Silver v. Silver, 421 Pa. 533, 537, 219 A.2d 659, 662 (1966). The relationship between decedent and Lloyd Moll, together with the circumstances surrounding the transactions, supports the lower court’s finding of a confidential relationship. “No clearer indication of a confidential relationship could exist than giving another person the power of attorney over one’s entire life savings.” In re Estate of Ziel, 467 Pa. 531, 542, 359 A.2d 728, 734 (1976); see Foster v. Schmitt, 429 Pa. 102, 239 A.2d 471 (1968). Although the mere power of attorney may be insufficient to establish a confidential relationship when it is clear that the attorney served only at the instance and for the convenience of the decedent, In re Estate of Ziel, supra, we are satisfied that the surrounding circumstances clearly established Lloyd Moll’s confidential relationship with decedent. See Foster v. Schmitt, supra. The lower court rejected appellants’ uncorroborated and self-serving testimony that the transfers were made at the request of decedent and, in fact, found that Lloyd Moll was the motivating force behind the document authorizing him to add Luise Moll’s name to the accounts. A “natural confidence,” Silver v. Silver, supra, existed between decedent and Lloyd Moll, a trust officer at a local bank, and decedent could easily have assumed his affairs would be administered with his best interest in mind. In fact, decedent automatically turned to Lloyd Moll when arranging for the sale of his residence. Moreover, in the course of ten months, decedent lost his wife, was terminally ill, and was unable to care for himself. One of his physicians testified that he was getting mentally weaker and required care from others. N.T. May 27, 1981 at 175. Lloyd Moll occupied a position relative to decedent that inspired confidence in administering his business affairs. The evidence clearly supports the lower court’s finding of a confidential relationship.

Appellants argue, however, that even if a confidential relationship existed between decedent and Lloyd Moll, the transfers were not invalid as to Luise Moll because she, the donee of the alleged inter vivos gift, did not have a confidential relationship with her father, the donor.

Appellants correctly maintain that a parent-child relationship does not necessarily indicate a confidential relationship. It is, however, a fact to be considered. In re Null’s Estate, 302 Pa. 64, 153 A. 137 (1930). Although the “creation of a joint account with rights of survivorship, evidenced by a signature card signed by both parties, is prima facie evidence of an inter vivos gift from the party funding the account to the other joint tenant,” Scott Estate, 455 Pa. 429, 431, 316 A.2d 883, 885 (1974), this general principle does not apply, and the burden of proof shifts to the recipient, “where the relation of the parties to each other or some vicious element in connection with the transaction, is such that the law compels the recipient of the bequest or gift to show that it was the free, voluntary and intelligent act of the person giving it.” Weber v. Kline, 293 Pa. 85, 87, 141 A. 721, 722 (1928). The burden will shift if, “circumstances make it certain the parties do not deal on equal terms but, on the one side there is an overmastering influence or, on the other, weakness, dependence or trust, justifiably reposed...” Kees v. Green, 365 Pa. 368, 374-5, 75 A.2d 602, 605 (1950). Moreover, “the normal rules respecting the burden of proof will not obtain where there is something in the relationship or circumstances of the donor or the donee that makes it doubtful that the normal presumption of a gift has any basis in reality.” Dzierski Estate, 449 Pa. 285, 289, 296 A.2d 716, 718 (1972). “Transactions by which a decedent shortly before his death practically strips himself of all his available property are naturally regarded with suspicion, and are to be scrutinized with a keen and somewhat incredulous eye.” Wise’s Estate, 182 Pa. 168, 171, 37 A. 936 (1897).

We find the relationships of the parties, coupled with the surrounding circumstances sufficient to shift the burden of proof to appellants. In June, 1976, decedent executed a will leaving certain monetary bequests to each of his three children, and the following month, opened the one account solely in his name and deposited in it the down payment from the sale of his house. In September, 1976, Lloyd Moll exercised his power of attorney, closed the account in decedent’s own name, and then transferred the initial deposit and the balance from the sale. Through Lloyd Moll’s actions, Luise Moll acquired a right of survivorship in accounts totalling almost $40,000, all of the liquid assets belonging to decedent, wholly negating decedent’s bequests to his remaining children and any intent decedent had to effectuate his will with money from the sale of the house. Moreover, in the ten month period during which the transfers occurred, decedent’s health was failing, he lost his wife, was diagnosed as having inoperable cancer and leaned increasingly on appellants when making decisions and administering his business affairs. Thus, this situation, in which a donor suffering terminal illness and recent bereavement, had his assets effectively disposed of by a trusted adviser, contrary to the intent expressed in the donor’s will and suggested by his independent actions, must be regarded with such suspicion as to shift the burden of proof to the recipient of the purported gift. Although Luise Moll, the recipient, disclaims any knowledge of the transfers prior to decedent’s telling her of the gift, we cannot find imposing the burden of proof on her to be unfair, especially because her own husband’s actions and power of attorney were so intrinsically involved in the questioned transfers. Furthermore, appellants offered no evidence why decedent would have given Luise Moll the majority of his assets, and why he would have voluntarily precluded his own will from being effectuated.

We see no reason to disturb the lower court’s finding that appellants had not met their burden and, accordingly, affirm its order that the asserts be included in decedent’s estate.

Affirmed.

      . Lloyd Moll had power of attorney over all accounts except that opened by decedent with the initial deposit from the sale of the residence.

      . Appellees have not appealed that decision.

      . Appellants contend also that appellees were bound by appellants’ testimony because of counsel’s failure to call appellants as on cross-examination. Appellees called appellants on at least two occasions each but only specifically stated the witness was called as on cross-examination on the last occasion. Generally, if a party calls an adverse witness the testimony is conclusive unless rebutted. 42 Pa.C.S.A. § 5935. This is not true, however, "if the testimony of the adverse party is contradicted by the direct testimony of other witnesses, or is impeached by its own inconsistencies or by such intrinsic improbability or obvious falsity as to stamp it unworthy of belief." Kelly v. Oxgrove Development Corp., 456 Pa. 306, 308, 319 A.2d 424, 425 (1974); see Piwoz v. Iannocone, 406 Pa. 588, 178 A.2d 707 (1962). The record is replete with contradictory evidence about the transactions. In addition, the testimony as to decedent’s instructions which, in effect, negated the intent of his will, is intrinsically improbable. We therefore find this contention without merit.
      Appellants contend also that the lower court incorrectly held them to the professional standard of an attorney because of Lloyd Moll’s position as a trust officer. Because we find that there was indeed a confidential relationship, we need not address appellants’ contention.


source: Caselaw Access Project

author: PRICE, Judge: HOFFMAN, Judge,

license: Public Domain

text:
    454 A.2d 35
    COMMONWEALTH of Pennsylvania, Appellant, v. Steven C. ZOCK.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Granted March 29, 1983.

      Richard A. Hernán, Assistant District Attorney, Warren, for Commonwealth, appellant.
    Joseph C. Barnhart, Tionesta, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   PRICE, Judge:

The court below granted appellee, Steven Zock, a new trial after a jury found him guilty of possession of marijuana with intent to deliver. The new trial was granted because evidence admitted against Zock was allegedly the product of an illegal search by police officers.

On May 16, 1979, two Pennsylvania State Police Troopers went to the residence of William Jackson for the purpose of serving an arrest warrant on him for a drug charge. Upon arrival, Trooper Mechling observed appellee Zock, whom he knew, walking rapidly into Jackson’s residence. Trooper Rain was met at the front door by Stephen L’Angelo who advised Trooper Rain that he was in charge of the premises and that Jackson was not at home. L’Angelo permitted the officers to enter the premises to search for Jackson.

In an upstairs bedroom, the troopers found in plain view twenty-two clear plastic bags, each containing about one pound of marijuana. The officers seized the marijuana, placed it in the police car, and secured the premises, ordering the approximately ten persons in the house to gather on a front porch—terrace area. Corporal Lynn arrived to aid the officers, and Trooper Rain was dispatched to apply for a search warrant to search the remainder of the premises. Lynn positioned himself to watch one door and Mechling positioned himself to watch the only other door. While the premises were thus secured pending arrival of a search warrant, appellee, a friend of Trooper Mechling, asked Mechling for permission to clean up the yard. Mechling granted Zock’s request.

Shortly thereafter, several of the remaining individuals gathered around Trooper Mechling and kept his attention. Mechling then noticed Zock running away from the officers and into the woods. Mechling saw that Zock was carrying three suitcases, one of which he recognized as having been in the bedroom from which the marijuana in plain view had been seized. The officer chased and apprehended Zock in the woods. Mechling noticed that there was a ladder leading to a second floor bedroom at the rear of the building from which Zock had run toward the woods. Zock and the three suitcases were returned to the porch—terrace area to await the arrival of Trooper Rain with the search warrant.

When Trooper Rain returned, the warrant was served and the suitcases were opened. The suitcases contained a total of twenty six clear plastic one pound bags of marijuana. Appellee was then arrested for possession with intent to deliver marijuana.

After the court below refused his motion to suppress the marijuana found in the suitcases, Zock was found guilty in a jury trial. Subsequently, the lower court granted a new trial after reconsidering and determining that the contents of the suitcases should have been suppressed. The court found the search of the suitcases to be outside the scope of the warrant issued for the Jackson premises. It was also determined that there were no exigent circumstances to excuse the police from obtaining a second warrant before searching the luggage taken from Zock.

The Commonwealth attempts to justify the officers’ actions on two grounds. The first contention is that the suitcase search would not have required a warrant because it was conducted incident to a lawful arrest. We disagree. However, the second allegation is that the search was permissible because it was within the ambit of the warrant issued to search the Jackson premises. We agree and for this reason reverse the grant of a new trial.

We first address the contention that the search would be proper even if not authorized by a warrant, because it was incident to a lawful arrest. Warrantless searches of areas immediately accessible to an arrestee are permitted for the protection of the arresting officer or to prevent the destruction or concealment of evidence. Commonwealth v. Long, 489 Pa. 369, 374, 414 A.2d 113, 115 (1980). Under the present circumstances Trooper Mechling had probable cause to believe the suitcases Zock was running off with contained evidence of illegal drug trafficing. See Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1977). Nevertheless, the limit of the trooper’s authority in such a situation is to seize the suitcases if, as under the present circumstances he does not find it necessary to conduct an immediate search to protect himself or prevent the destruction of evidence. {See R.R. 35-36). Once under police control, luggage normally may not be searched unless a search warrant has been issued. See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). A warrantless search of the bags would have been unlawful in the present case, the facts of which are similar to those of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) in that:

the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, there was not the slightest danger that [the luggage] or its contents could have been removed before a valid search warrant could be obtained.

Id. at 762, 99 S.Ct. at 2592 (quotation marks and citation omitted). Accord United States v. Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485, Commonwealth v. Timko, 491 Pa. 32, 37-38, 417 A.2d 620, 622-23 (1980). The Commonwealth when asserting an exemption from the requirement for a search warrant bears the burden of establishing its actions come within the exemption. Arkansas v. Sanders, supra, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), reh den. 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969), Commonwealth v. Timko, supra. The Commonwealth has not carried the burden of establishing the search was valid as incident to a lawful arrest, in light of the general rule that luggage lawfully seized during an arrest, and thereafter placed wholly within police control can be searched only after a warrant is obtained.

We thus reject the contention that even if not authorized by a warrant, the search was valid as incident to a lawful arrest. The Commonwealth’s second contention is valid, however: the search was authorized because it was within the scope of a warrant issued for the premises from which Zock absconded with the bags.

Appellee Zock and the court below have correctly noted that a search warrant issued for the premises or effects of a particular person cannot be extended by police officers to include a search of things not belonging to or under the control of that person. Commonwealth v. Platou, 455 Pa. 258, 263, 312 A.2d 29, 32 (1973) cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). In Platou, id., officers with a warrant to search the premises of an individual also searched suitcases belonging to a guest who happened to be present when they arrived. In Platou the police were told by the guest that the suitcases belonged to him, and not to a resident of the premises. The present case is clearly distinguishable from Platou, however, because the police were never informed that the property belonged to anyone other than the owner of the premises. They initially saw the suitcases in a bedroom from which they had seized marijuana in plain view. At that time, and at all times until the search warrant arrived, the officers could properly assume the suitcases were a part of the Jackson premises. In Commonwealth v. Sellers, 236 Pa. Superior Ct. 191, 344 A.2d 689 (1975), we stated that after obtaining a search warrant for the premises police are expected to search any bags and pocketbooks lying around, as well as dresser drawers, closets and clothing. “It would have been a dereliction of duty for the officers to fail to inspect areas and objects which were apparently part of the premises covered by the warrant and under the control of [the occupant].” Commonwealth v. Sellers, 236 Pa.Superior Ct. at 195, 344 A.2d at 691. The luggage in the present case, like the handbag in Sellers, was presumptively subject to search because the police: “could have logically determined that the pocketbook was part of the general contents of the room.” 236 Pa.Superior Ct. at 196, 344 A.2d at 691. A separate search warrant would be required for the luggage only if the police were first clearly notified that the bags belonged to a guest and not to a resident of the premises, as in Platou, supra. Therefore, in the instant case, if Zock had expressly stated to the officers that the suitcases were his, a second warrant would have been required for a search of the bags.

Zock contends, however, that by merely attempting to abscond with the suitcases from secured premises, he identified himself by a “nonverbal act” as their owner, so that the premises warrant no longer justified a search of the bags. We disagree, because it is far from clear that Zock’s running away with the suitcases identified him as their owner. It is quite possible that Zock did not own or possess the luggage at any time except when he was running away from the house. Zock may instead have been attempting to help a friend who owned the drugs, believing he could prevent their discovery by taking advantage of his friendship with Trooper Mechling. It is also possible that Zock acted on the mistaken belief that without any other connection to the contraband he would be incriminated by his mere presence in a house where marijuana is found. We need not speculate further as to why Zock would attempt to remove marijuana from a house about to be searched by state troopers. Whatever his motive, appellee has not shown any more than that he possessed the suitcases while running from the house. This act alone did not preclude the police from reasonably concluding that at all other relevant times the suitcases were a part of the premises to be searched. In Platou, supra, it was “undisputed” that the resident of premises for which the warrant was issued “had no control over” the effects searched. 455 Pa. at 263, 312 A.2d at 32. “Moreover, the police before undertaking their search were on notice that the suitcases belonged to [a guest].” Id.

Because Zock did not expressly claim the drug-filled suitcases were his and not a part of the premises, the officers were permitted to assume under the circumstances that the premises warrant continued in force and authorized a search of the bags. Thus the evidence was properly admitted because it was within the scope of a search warrant issued for the premises.

Accordingly, the order granting appellee’s motion for a new trial is reversed and the case is remanded for sentencing. Jurisdiction is not retained.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I respectfully dissent. The police here should have obtained a second warrant before searching appellant’s luggage. After appellant returned from the yard, the luggage was firmly under police control, and no exigent circumstances compelled the immediate warrantless search as they might in an automobile case. See Commonwealth v. Davis, 270 Pa.Superior Ct. 202, 411 A.2d 250 (1979) (Commonwealth must prove exigent circumstances by clear and convincing evidence). Moreover, the majority draws contrary inferences from the same facts. Appellant’s nonverbal act of carrying the suitcases was the basis of his being convicted of possessing their contents. Yet the majority holds that this act was not enough for purposes of seeking a warrant to notify the police officers that appellant laid claim to the suitcases as his. The lower court refused to accept such reasoning, and so do I. Accordingly, I would affirm the lower court’s suppression order.

      . Recently, the United States Supreme Court expanded the scope of warrantless searches based on probable cause to search an automobile, holding that such probable cause permits a warrantless search of all of a car’s contents, including luggage and other containers found in the car. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The Court, however, noted the distinction between Ross, where police had probable cause to search a car in which luggage happened to be located, and cases such as Chadwick, (and the instant case) in which police have probable cause to search only particular articles of luggage. In the latter cases, there is no lessened expectation of privacy, nor any other exigency inherent in the characteristics of personal luggage, that can justify a warrantless search after a lawful seizure. 456 U.S. at 815-16, 102 S.Ct. at 2168, 72 L.Ed.2d at 588. The Court thus preserved the rule that a warrant must be obtained before such particular items of luggage are searched, noting that "a person’s expectations of privacy in personal luggage are substantially greater than in an automobile,” 456 U.S. at 811, 102 S.Ct. at 2165, 72 L.Ed.2d at 585 (quoting United States v. Chadwick, supra), and further stating that “the practical problems associated with the temporary detention of luggage during the period of time necessary to obtain a warrant are significantly less than those associated with the detention of an automobile.” 456 U.S. at 811, 102 S.Ct. at 2166, 72 L.Ed.2d at 585.


author: WIEAND, Judge:

text:
    454 A.2d 39
    RELIANCE UNIVERSAL, INC. OF OHIO, a corporation, Appellant v. ERNEST RENDA CONTRACTING COMPANY, INC., a corporation, t/d/b/a Ernest Renda Construction, Co., Inc. and Safeco Insurance Company of America, Appellant
    at No. 225 Pgh. 81,
    at No. 194 Pgh. 81.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed Dec. 10, 1982.

      Marshall J. Conn, Pittsburgh, for Ernest Renda, appellant (at No. 194) and appellee (at No. 225).
    Donald J. Snyder, Greensburg, for Reliance Universal, appellant (at No. 225) and appellee (at No. 194).
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

The action in assumpsit which spawned the cross appeals presently before this Court was brought by Reliance Universal, Inc. of Ohio (“Reliance”) to recover amounts due for materials supplied to Ernest Renda Contracting Company, Inc. (“Renda”) in the course of a sewer construction project in Hempfield Township, Westmoreland County. Named as defendant in addition to Renda was Safeco Insurance Company of America (“Safeco”), the corporate surety on the labor and material bond supplied by Renda to Hempfield Township Municipal Authority. A jury found that Renda had failed to pay $91,382.85 for materials purchased. It also made a special finding that Renda had agreed to pay and was liable to Reliance for a service charge of IV2 per cent per month. The trial court computed this amount and molded the verdict against Renda in the total amount of $116,921. Although observing that Safeco was not liable for the same service charge, the trial court nevertheless added interest at the rate of ten (10%) per cent per year and molded the verdict against Safeco to be $105,535.19. Post-trial motions were denied, judgments were entered on the molded verdicts, and all parties appealed. We conclude that the assessment of interest against Safeco at the rate of ten (10%) per cent per annum was unauthorized and erroneous. Other averments of trial error, however, have been decided correctly by the court en banc and have been fully considered in the comprehensive opinion of The Honorable Gilfert M. Mihalich. These alleged errors are:

(1) That the court erred by allowing the jury to consider as an admission a statement in Renda’s pleading that it had sent to Reliance a letter and check for $81,-304.75 as “full payment for all materials supplied to the project;”
(2) That the court erred by refusing to allow the defendants to amend their counterclaim during the surrebuttal stage of the trial;
(3) That the court erred by refusing to permit Frank Renda, a defense witness, to express an expert opinion regarding the cause of leaks in the pipes and by refusing to permit testimony of the cost of repairing such leaks;
(4) That the court abused its discretion by allowing allegedly prejudicial comments during closing argument by Reliance’s counsel;
(5) That the court erred when it failed to give immediate curative instructions following the closing remarks of Reliance’s counsel.

The trial court interpreted Paragraph 19 of Renda’s New Matter as a partial admission of liability. Paragraph 19 states:

19. Together with a letter dated June 19, 1978, defendant Renda mailed a check to Mr. R.R. Gedrock of Reliance in the total amount of $81,304.75 as full payment for all materials supplied to the project in the above captioned case. (T. 73, 74)

This averment, as the lower court observed, “makes no attempt to state, as counsel for Defendants has suggested in his Brief, that the letter dated June 19, 1978 was an offer of compromise or settlement. Defendant recites a statement of liability admitted in the amount of $81,304.75.”

The law in Pennsylvania generally excludes evidence of offers of compromise. However, offers of compromise are to be distinguished from admissions of fact, which, of course, may be received as competent evidence. Gogel v. Blazofsky, 187 Pa.Super. 32, 142 A.2d 313 (1958), citing Woldow v. Dever, 374 Pa. 370, 97 A.2d 777 (1953) and Liebster v. Lucas, 82 Pa.Super. 184 (1923). The trial court could properly treat Renda’s check as an admission that it owed Reliance for materials sold and delivered in the amount of $81,304.75.

Renda’s motion to amend its counterclaim was made after two weeks of trial and during surrebuttal. The trial court found that the untimeliness of the request to amend would, if allowed, substantially prejudice Reliance. We find no error in this ruling.

Allowance of an amendment to pleadings is a matter of judicial discretion. Amendments, although to be liberally permitted, may properly be refused where surprise or prejudice to the other party will result. Berman v. Herrick, 424 Pa. 490, 227 A.2d 840 (1967); Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966). In a similar case, West Penn Power Company v. Bethlehem Steel Corporation, 236 Pa.Super. 413, 348 A.2d 144 (1975), the plaintiff had made a motion to amend its pleading on the last day of an eight-week trial in order to add three alternative bases of a contract. The trial court denied the motion, and the Superior Court affirmed, stating:

As appellants correctly note, the general rule is that amendments to a pleading are to be liberally allowed and may be made at any point in the litigation. Pa.R.Civ.P. 1033, 12 P.S. However, the decision whether to allow an amendment is a matter of judicial discretion, and a motion to amend is properly denied when the moving party would gain an inequitable advantage____
To permit a plaintiff to change its claim at the very end of the case may be unjust. The defendant will necessarily have conducted its case in response to the claim as presented; had the defendant known that a change in the claim would be permitted, it might have conducted its cross-examination of the plaintiffs witnesses in an entirely different manner. To be sure, this will not always be so; much will depend on the particular circumstances. Here, had the judge been sitting without a jury, perhaps he would have been willing to allow the amendment, and, so to speak, recast the case and start all over in order to decide whether the steel had been delivered within a reasonable time. However, the judge was sitting with a jury. Considering all of the circumstances, we conclude that it was within his discretion to decide that in offering their amendments, appellants had waited too long. (Emphasis added.)

Id., 236 Pa.Superior Ct. at 433-34, 348 A.2d at 155-56.

It is well-settled law in Pennsylvania that an expert may not express his opinion upon facts which are not warranted in the record, regardless of the expert’s skill and experience. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); DeFrank v. Sullivan Trail Coal Co., 425 Pa. 512, 229 A.2d 899 (1967); Gordon v. State Farm Life Insurance Co., 415 Pa. 256, 260, 203 A.2d 320, 322 (1964); Murray v. Siegal, 418 Pa. 23, 195 A.2d 790 (1963); Small v. Flock, 407 Pa. 148, 180 A.2d 59 (1962); Donaldson v. Maffucci, 397 Pa. 548, 558, 156 A.2d 835, 840 (1959); Karavas v. Poulos, 381 Pa. 358, 365, 113 A.2d 300, 304 (1955); Roberts v. Pitt Publishing Co., 330 Pa. 44, 51, 198 A. 668, 671 (1938). In Small v. Flock, supra, the Supreme Court affirmed a trial court’s decision to exclude an expert’s opinion that the cause of an automobile-truck accident was a broken spindle on the truck which, if it occurred while or before the truck went around a turn, would explain why the vehicle turned over, saying:

The offer carried so many conjectures, speculations and hypotheses that any conclusion based on the answers would have been entirely extraneous to the law of cause and effect. In the first place, it was not asserted that the broken spindle, if there was one, accounted for the overturning of the truck, nor even that the spindle was broken before the tractor-trailer entered into the curve. The offer did not exclude the possibility that the spindle snapped because of the intolerable strain placed upon it as the result of the centrifugal force generated as the truck hurled itself into the turn at a high rate of speed. Nor did it exclude the possibility that the spindle may have broken when the truck was righted after the accident, or when it was taken off the highway____
Moreover, expert testimony, to have any evidentiary value, must state with some positiveness that a given state of affairs is the result of a given cause. It is not enough to say that something could have happened. Anybody can guess. Expert testimony must assert that it is the professional opinion of the witness that the result in question came from the cause alleged.
Id., 407 Pa. at 152, 180 A.2d at 61.

In Murray v. Siegal, supra, where plaintiff had called a civil engineer to show that the inner wall of a catch basin was in a rotten and deteriorated condition which permitted water to seep through it, thereby causing the collapse of an adjacent sidewall and the injuries to the plaintiff, the Supreme Court stated:

While hypothetical questions may be based on an assumed statement of facts, they may not be based on matters which do not appear in the record, or on facts not warranted by the evidence: Keilbach v. Met. Life Ins. Co., 157 Pa.Superior Ct. 590, 43 A.2d 652 (1945); Zeigler v. Simplex Found. Co., 228 Pa. 64, 77 Atl. 239 (1910). Further, an expert may not express an opinion which is based on guess or conjecture: First Meth. Ch. v. Bangor Gas Co., 388 Pa. 115, 130 A.2d 517 (1957).

Id., 413 Pa. at 30, 195 A.2d at 794.

A trial court is vested with substantial discretion in receiving or refusing expert testimony. In the instant case, based upon all the testimony and all the surrounding circumstances relating to the proffered testimony, the trial court did not abuse its discretion by excluding the opinion testimony of Frank Renda. Although he would have expressed an opinion regarding the reason for and cost of correcting leaking in the system, the evidence failed to show (1) the existence of cracks or leaks in the pipe prior to installation, or (2) that water had entered the system through cracks in the pipe. The presence of myriad causes for the presence of water, including leaks in manholes not supplied by the plaintiff and inflow from manhole covers, rendered his opinion testimony speculative and without adequate foundation. Had the defendants offered direct testimony that water was entering the system through cracks in the pipe, it would then have been proper for Frank Renda to express an opinion as to whether or not the presence or lack of steel in the spigot end of the pipe would have caused leakage. Renda failed to do so, and the trial judge correctly sustained an objection to opinion testimony when the requisite facts were not in evidence.

The lower court considered at length those portions of trial counsel’s closing argument which Renda and Safeco found objectionable. We find it unnecessary to recite them at length herein. Suffice it to say that we find no error in the rulings of the trial judge.

“Whether a lawyer’s speech transgresses the bounds of legitimate argument ... is primarily a matter for the trial judge to decide because he is present and can note not only the structure of the argument but the manner in which it is projected to the jury.” Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 184-85, 191 A.2d 662, 671 (1963). The trial court held that the arguments of Reliance’s counsel were within the bounds of legitimate advocacy, and we perceive no basis for holding otherwise. “A trial in an American court is distinctly an adversary proceeding and is therefore bound at times to excite counsel into making statements overladen with partiality. However, so long as decorum is maintained, and there is no leaving the highway of fact to agitate in the marshes of palpable exaggeration, unwonted characterizations, hortatory appeals to latent prejudices, and improper imputations of gross motives, there is no reason why lawyers should not be permitted to express themselves in such manner as they believe best serves the interests of justice. The responsibility is on the trial judge to see that counsel do not transgress the bounds of what is proper, wholesome, and fair.” Rondinelli v. Pittsburgh, 407 Pa. 89, 94-95, 180 A.2d 74, 77-78 (1962).

The court’s imposition of a 10% charge against Safeco was not supported by any established rule of law. The jury found, and the trial court agreed, that Safeco was not liable for the 172% per month service charge contained in the contract between Renda and Reliance. Nevertheless, the court determined that, by analogy to Pa.R.C.P. 238, it was authorized to assess a penalty against Safeco because it had failed to make prompt payment of an amount admitted by Renda’s pleading to be due. Thus, the court held:

... Safeco has been paid a premium for undertaking its suretyship obligations. In its bond, it specifically calls for the “prompt” payment of claims by all lawful claimants. [Renda] admitted liability in its pleadings for the amount of $81,304.75. Had Safeco paid this amount, it certainly would have had recourse against [Renda] for indemnification. [Reliance] could have had the use of its money rather than same being retained in the hands of Safeco.

This was improper. Delay damages under Rule 238 may be awarded only in actions for bodily injury, death, or property damage. The rule was promulgated to ease “congestion and delay in the disposition of civil actions for bodily injury, death or property damages pending in the trial courts.” Explanatory note of Civil Procedural Rules Committee, 8 Pa.Bulletin 2668 (1978). See also: Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed sub nom. Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982); Goodrich-Amram 2d § 238:1. The rule permits a court to impose a 10% penalty for delay from the date of complaint to the date of verdict. Pa.R.C.P. 238(a)(1), (2). The penalty may only be imposed, however, in tort cases. The rule makes no provision for recovery of delay damages in contract cases. Indeed, the law is clear that punitive damages are not recoverable in contract actions. See: Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc., 287 Pa.Super. 74, 429 A.2d 726 (1981); DeLuca v. Fidelity Bank, 282 Pa.Super. 365, 422 A.2d 1159 (1980); Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 420 A.2d 620 (1980), overruled on other grounds, Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981). See also: 22 Am.Jur.2d Damages § 245. That the 10% interest imposed against Safeco by the trial court was intended as a punitive measure is clear from its explanation.

Reliance contends, however, that Safeco should be liable for the service charge which Renda agreed to pay as a part of its contract for the purchase of materials. Therefore, we consider next whether a surety which executes a labor and material payment bond can be held liable for service charges which its principal has contracted to pay?

Reliance and Renda entered into a contract for the sale of various sizes of pipes. The contract was on a form, provided by Reliance, which . contained the following notice:

A service charge of lx/2% per month (18% per year) will be made a part of all past due accounts. Service charges will be added to unpaid accounts at the end of the month following the payment due date. To avoid this additional cost, please pay your bills in keeping with our terms.

The labor and material payment bond, with Safeco as surety, was executed subsequently. Because Renda was constructing a municipal sewer project, the bond was required by the Public Works Contractors’ Bond Law of 1967, December 20, P.L. 869, §§ 1-12, 8 P.S. §§ 191-202. The statute required and the executed bond obligated Safeco to make payments to claimants “for all labor and material used or reasonably required for use in the performance of the contract,” if Renda failed to make prompt payments. A bond under this statute is intended “solely for the protection of claimants supplying labor or materials to the prime contractor to whom the contract was awarded ... in the prosecution of the work provided for in such contract, and shall be conditioned for the project payment of all such material furnished or labor supplied or performed in the prosecution of the work.” 8 P.S. § 193(a)(2). Are “service charges” a part of the cost of “labor and materials used in the prosecution of the work”?

Reliance argues that the surety’s obligation must be defined in terms of the contract between its principal and the supplier, so that the surety is responsible for all charges arising from the contract. It contends that if the surety had desired to limit its obligations under the bond, it could have done so. We disagree with this analysis. When a bond is executed, it is the language of the bond that is determinative of the surety’s obligation and not the agreement between the municipal contractor and his material-man. This is particularly true where, as here, the bond is statutorily required, and the bond’s terms are framed in the language of the statute. Safeco did not agree to obligations beyond the requirements of the statute; the obligations to which it agreed are specifically stated in and limited by the bond and are those required by the statute.

In Lite-Air Products, Inc. v. Fidelity & Deposit Co. of Maryland, 437 F.Supp. 801 (E.D.Pa.1977), the plaintiff sought to recover finance charges from a surety under a labor and material payment bond. As in the instant case, the surety’s obligations depended upon the language of the bond and the interpretation of “labor and materials.” The court concluded:

[Finance charges are not] a properly included item under “labor and materials.” First this claim is not an indispensable cost for labor or materials which added value to the building project. Rather, the claim for finance charges is in the nature of a penalty, and therefore would more appropriately be classified as damages than as part of the value of the materials. In addition, there is no language in the bond from which the court could find that the parties intended the surety to be liable for this charge.

Id. at 804.

One year later, Can-Tex Industries v. Safeco Insurance Company of America, 460 F.Supp. 1022 (W.D.Pa.1978) was decided. The case involved a factual situation similar to the instant case and, ironically, involved Renda and Safeco as principal and surety. The plaintiff in that case argued that the surety was obligated to pay finance charges and attorneys’ fees in addition to the principal amount due. Rejecting this contention, the court wrote:

It is of course true that a surety can be bound only to the extent and in the manner and under the circumstances set forth in his agreement. See Peter J. Mascaro v. Milonas, 401 Pa. 632, 166 A.2d 15 (1960); Nazareth Foundry and Machine Co. v. Marshall Machinery and Supply, 258 Pa. 558, 102 A. 268 (1917); New Holland Dairies, Inc. v. Regent Dairy Products Corp., 115 Pa.Super. 87, 174 A. 664 (1934). The Bond in this case was executed in conformity with the requirements of state law and for the payment of all money “due any claimant” supplying labor and materials on a public works project. The Surety Bond could not be extended by language in a subcontract under which the general contractor agreed to be liable for finance charges and attorney’s fees upon default. The law cannot impute an intent to cover such additions beyond the statutory requirements of the Payment Bond without express inclusion in the Bonding Agreement. No such language appears in the Agreement presently before this Court.

Id. at 1025.

We agree with these federal court decisions that service/ finance charges are not covered by the instant bond or required by the Public Works Contractors’ Act. The wording of the statute is narrow, and bonds drafted pursuant thereto may be equally narrow. Safeco was paid a premium to guarantee payment for costs of “labor and materials used or reasonably required for use in the performance of the contract.” It did not obligate itself for all claims that might be made against Renda, but only for costs of labor and materials. Compare: Kuhn v. Torr Construction Co., Inc., 64 D. & C.2d 332 (Cambria 1974) (plaintiff sued for rental fee for tractor and for damages caused by contractor; held, machine rental is included under cost of labor and materials under statute, but damage to machine is not; surety liable for rent but not for repair costs). Compare also: Price Brothers Co. v. Charles J. Rogers Construction Co., 104 Mich.App. 369, 304 N.W.2d 584 (1981) (surety liable for service charge where bond obligated it to pay “all indebtedness”); Price Brothers Co. v. Olin Construction Co., Inc., 528 F.Supp. 716 (W.D.N.Y.1981) (surety obligated to pay service charge where bond required payment for “all lawful claims”).

For the foregoing reasons, we conclude that only Renda was liable for the 18% service charge. We also conclude that the trial court erred in imposing a 10% interest charge against Safeco as a penalty for failure to make prompt payment. All other issues, however, have been correctly decided by the trial court.

The judgment against Renda is affirmed; the judgment against Safeco is vacated, and the case is remanded for the recomputation of interest at a rate of 6% per annum on the unpaid balance due for labor and materials.


author: BECK, Judge:

text:
    454 A.2d 46
    Andrew MATTOX v. CITY OF PHILADELPHIA and Eastern Body Company and City Tank Corporation. Appeal of CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Denied March 30, 1983.

      Alan J. Davis, City Sol., Philadelphia, for appellant.
    Lawrence D. Finney, Philadelphia, for appellees.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

The City of Philadelphia (hereinafter “City”) appeals an order of the Court of Common Pleas of Philadelphia County which denied the City’s motions for a judgment n.o.v. or a new trial and which entered judgment in favor of Andrew Mattox (hereinafter “Appellee”) in the amount of two hundred and twenty thousand dollars ($220,000) plus interest as provided in Pa.R.C.P. 238. We affirm.

Our scope of review in such cases is clearly settled. In reviewing a motion for a judgment n.o.v., we must consider the evidence most favorable to the verdict winner and all reasonable inferences therefrom. Ditz v. Marshall, 259 Pa.Super.Ct. 31, 35, 393 A.2d 701, 703 (1978). “A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict.” Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980).

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz, 259 Pa.Superior Ct. at 35, 393 A.2d at 703. “[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion,” Myers v. Gold, 277 Pa.Super.Ct. 66, 69, 419 A.2d 663, 664 (1980), or committed “a clear error of law.” Eldridge v. Melcher, 226 Pa.Super.Ct. 381, 387, 313 A.2d 750, 754 (1973), allocatur denied.

On December 3, 1973, Appellee, then an inmate at the House of Correction, was injured while working on the prison garbage collection detail. The facts surrounding Appellee’s injury were well and succinctly summarized by the trial court as follows:

[Appellee] was assigned to the garbage detail, requiring him to ride on a trash truck around the prison and at the city-owned Riverview Home. The standard procedure for loading trash was ...: the driver, a correction officer, would stop the truck at a designated pick-up where inmates would dump garbage into the back of the truck. Some one [sic] would call to the correction officer, who would be in the cab of the truck (N.T. 62), to engage the power take-off (P.T.O.) (N.T. 356). This procedure could only be done when the truck was in neutral. (N.T. 319) After the trash was dumped, one of the inmates would operate a lever at the passenger’s side of the truck, towards the rear, which would actually activate the [trash compacting] blade. (N.T. 61-62) Only when the P.T.O. was engaged could the blade be operated. A buzzer system was located at the rear of the truck for the purpose of signaling the driver when to engage the P.T.O. and when to turn it off. However, this buzzer was not operable on the day of the accident. (N.T. 63) Consequently, when the crew was finished at a stop, one of the inmates would have to yell to the driver to signal that they were ready to go. (N.T. 120) Upon receiving such notice, the driver would then disengage the P.T.O. and drive on.
The rear of the truck, where the mishap occurred, had three prominent features. First was the loading or hopper sill, about two to four inches wide, against which the blade came in contact when the compactor was in operation. Second, about three inches below the loading sill, was a four inch ledge or “lip,” formed by a piece of structural steel known as the “T.” This piece, when placed on its side, had been welded onto the truck after the vehicle was purchased by the City. Finally, there was a bottom step below the license plate, approximately nine inches below the T bar ledge____
On the date in question, the accident occurred at approximately 9:30 a.m. at the truck detail’s last stop, the Riverview paint shop (N.T. 64). [Appellee] had emptied the last of the trash into the hopper and had operated the compactor blade to pack this garbage into the track (N.T. 64). [Appellee] then resumed his position on the back of the truck, standing on the hopper sill, in anticipation of returning to the House of Correction. Instead, the compactor blade was activated again, catching the tip of [Appellee’s] left foot between the blade and the hopper sill. As a result, all of the toes on that foot were severed

On appeal the City’s first argument is that Appellee should be denied recovery because his injury was in part occasioned by his own contributory negligence.

“ ‘It is well settled that where a person has a choice of two ways, one of which is perfectly safe and the other subject to obvious risks, and voluntarily chooses the latter and is injured, he is guilty of contributory negligence.” Strother v. Binkele, 256 Pa.Super.Ct. 404, 415-16, 389 A.2d 1186, 1192 (1978) (citations omitted); Claytor v. Durham, 273 Pa.Super.Ct. 571, 417 A.2d 1196 (1980).

As was stated in Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 584, 187 A.2d 646, 649 (1963), working conditions must be considered together with other evidence in determining the question of contributory negligence ...: “In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered____”

Lambert v. PBI Industries, 244 Pa.Super.Ct. 118, 131, 366 A.2d 944, 950-51 (1976), allocatur denied.

At trial Appellee testified that the three inmates assigned to the garbage detail would customarily ride from one garbage collection site to another on the loading sill at the rear of the trash truck, the precise location in which Appellee received his injury. Appellee stated that the inmates could not stand on the “T” bar ledge at the rear of the truck because the ledge was too narrow to permit secure footing. In addition, Appellee contended that the inmates could not stand on the bottom step below the “T” bar ledge because the “T” bar ledge extended beyond the rear of the truck body and caused anyone standing on the bottom step to assume an awkward jackknife position in order to prevent the protruding ledge from bruising his shins.

In support of this latter contention Appellee offered the expert testimony of Dr. James Currie, associate professor of mechanical engineering at Villanova University, who had examined scale drawings of the trash truck as it originally appeared when purchased by the City and as it appeared when in use at the time of Appellee’s injury after the truck had been structurally altered by the City.

Dr. Currie explained that the City had made two significant modifications of the truck’s original rear design: (1) the addition of a “T” bar ledge and (2) a change in the bottom step. In discussing the effects of these modifications Dr. Currie stated:

In my opinion, this whole thing is a ... defective design
If, for example, this [bottom step] were to be a step, as any step on a ladder would be, it’s inclined the wrong way.
You’ve got to step with your feet up underneath and you’ve got a ... horizontal bar [“T” bar ledge], sticking back into your knees.
Steps are not built that way. Steps are built inclined the other way.
Here we have an inverted step [bottom step], ... inverted ladder. It would be almost like ... trying to climb up to your roof with the ladder leaning back.

Dr. Currie further asserted that the drawings revealed that the original bottom step at the back of the truck had a slip-resistant surface whereas the modified bottom step lacked a non-skid surface.

Appellee also maintained that the truck cab would only accommodate two passengers in addition to the correction officer who drove the truck and that the inmates were only permitted inside the cab during inclement weather. In contrast, as the City’s witness, the correction officer who had been driving the trash truck at the time of Appellee’s injury, testified that he had told the inmates always to ride inside the truck cab or walk between collection sites.

Assuming arguendo the credibility of Appellee’s evidence, the City argues that even if Appellee was not negligent in standing on the hopper sill while the truck was traveling from one collection site to another, Appellee was nevertheless negligent in positioning himself on the hopper sill at the time of his accident because the officer driving the trash truck had not been signaled to disengage the P.T.O. by taking the truck out of neutral, the only gear in which the P.T.O. was operable. Responding to the City’s argument, Appellee asserts that since all the garbage had already been collected and compacted at the particular collection site and since the truck had completed its last collection of the day, he reasonably relied on the fact that the P.T.O. would be disengaged so that the truck could return to the House of Correction. The City, however, questions the reasonableness of Appellee’s act by noting that Appellee was the only inmate who attempted to stand on the sill at that exact moment.

The City’s motion for a judgment n.o.v. was properly denied because “[contributory negligence can be determined as a matter of law only where it ‘is so clearly revealed that there is no room for reasonable disagreement as to its existence.’ ” Claytor, 273 Pa.Superior Ct. at 577, 417 A.2d at 1199 (citation omitted).

Judgment n.o.v. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury. This method of attacking the verdict may never be utilized so as to invade the province of the jury, especially where that determination is based partly on questions of conflicting testimony and credibility of witnesses ____ Where such questions were determined by the trier of fact, and if there is reasonable support for the verdict which was rendered, a judgment n.o.v. will not be granted, as the weight of the evidence is a jury matter and may only be raised by a motion for a new trial if the verdict is contrary to the weight of the evidence. As to whether there is reasonable support in the evidence for the verdict, it should be noted that the evidence may be found sufficient, though it be meager or uncorroborated.
____ [I]t is not this Court’s function to substitute our judgment or evaluation of evidence where there is some credible evidence upon which to base the jury’s verdict ____ “[T]he evidence presented must be such that by reasoning from it, ... a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be reached ....”

Eldridge, 226 Pa.Superior Ct. at 386-87, 313 A.2d at 753-54 (emphasis in original); Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa.Super.Ct. 382, 406 A.2d 1093 (1979); allocatur denied, October 31, 1979. Here, conflicting evidence was presented on several, material issues; hence, it would have been improper for the trial court to have removed such matters from the jury’s consideration. Moreover, the jury’s verdict was supported by ample evidence in the record. Consequently, we hold that the trial court correctly denied the City’s motion for a judgment n.o.v.

Additionally, the City’s motion for a new trial was properly denied because

a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice ____ A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.

Myers, 277 Pa.Superior Ct. at 69, 419 A.2d at 664.

In this case, Appellee’s expert witness, Dr. Currie, testified that the City had improperly redesigned the bottom step at the rear of the trash truck and that the City’s addition of a “T” bar had rendered the bottom step virtually inaccessible, making the hopper sill the only available area on which the inmates could stand. Both Appellee and the City presented contradictory evidence of the work standards employed by the prison garbage detail. Appellee and the City also offered varying accounts of the reason for Appellee’s presence on the hopper sill at the time of the accident. Confronted with these facts, we cannot say that the jury’s verdict is opposed to the evidence and requires a new trial. Thus, we hold that the trial court did not abuse its discretion in refusing to grant the City’s motion for a new trial.

Next, the City contends that Appellee’s expert witness, Dr. Currie, usurped the jury’s function by impermissibly proffering his opinion on an ultimate issue in the case, i.e., whether the City had negligently altered the bottom step of the trash truck and thereby caused Appellee to stand on the hopper sill.

“[Wjhile there is no per se test for determining what is ‘an opinion on an ultimate issue,’ an opinion upon the possibilities open to a party in a negligence case has been classified as an opinion on the ultimate issue of negligence.” Lewis v. Mellor, 259 Pa.Super.Ct. 509, 520, 393 A.2d 941, 947 (1978), allocatur granted, March 1, 1979, appeal discontinued, October 21, 1980. In the present case Dr. Currie discussed the operation of the trash truck’s compacting cycle, “buzzer” signal system (inactive at the time of Appellee’s accident), added “T” bar ledge, and modified bottom step and then stated that the inverted slant of the bottom step plus the awkward positioning of the “T” bar ledge would act as “an inducement for [Appellee] not to use [the bottom step] and to step somewhere else” and would be “quite the reason for [Appellee’s] being up in other places [i.e., the hopper sill with which the compacting blade came into contact.”

Citing Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966), and Taylor v. Fardink, 231 Pa.Super.Ct. 259, 331 A.2d 797 (1974), the City maintains that although Dr. Currie’s testimony describing the structural modifications of the truck was competent and admissible, Dr. Currie’s statement as to the impact of the modifications upon Appellee’s behavior was an inadmissible conclusion as to an ultimate issue for the jury’s determination, i.e., whether the City had negligently altered the bottom step and thereby caused Appellee to stand on the hopper sill. “Jurors are ... impressed by scientific talk even though ... in [a] particular field ... they are as much at home as the scientist. The jury should be insulated ... from undue persuasion from the witness stand ____” Zediker, 421 Pa. at 55, 218 A.2d at 778.

However, Fardink and Zediker are factually distinguishable from the instant case. Fardink concerned not the testimony of an expert witness, but rather, the testimony of a lay eyewitness to a vehicular accident. Thus, the witness was not better qualified than the jury to render an opinion as to whether “the appellee had done everything that she could have done to avoid the accident: that appellee had not been negligent.” Id., 231 Pa.Superior Ct. at 263, 331 A.2d at 799. In Zediker an engineer offered expert testimony on the speed of a pedestrian involved in an accident. The Supreme Court of Pennsylvania held that such testimony was inadmissible because “[phenomena and situations which are matters of common knowledge, may not be made the subject for expert testimony .... No experience could be more ordinary and within the range of a jury’s comprehension than the speed of a walker. Everybody walks.” Id., 421 Pa. at 53-54, 218 A.2d at 777.

“Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge, intelligence and experience of the jury .... Evidence of the custom or practice prevailing in a particular business in the use of methods, machinery and appliances is admissible ... to prove negligence or ... to disprove negligence.” Kubit v. Russ, 287 Pa.Super.Ct. 28, 35, 429 A.2d 703, 706-07 (1981) (citation omitted).

In this instance Dr. Currie supplied information about the acceptably safe engineering design of an ordinary step and contrasted that design to the City’s altered structure of the trash truck’s bottom step. Unlike Zediker, the present case required the scientific explanation of matters beyond the jury’s common knowledge, i.e., the engineering configurations of steps. While the jury certainly had general familiarity with stairways, the jury lacked experience with the trash truck’s altered bottom step which, according to Dr. Currie, had an abnormal, inverted construction.

The general rule is that a witness must testify as to “facts,” and may not venture an “opinion” as to these facts. When, however, “mere descriptive language is inadequate to convey to the jury the precise facts of a case or their bearing on the issues of the case, a witness may supplement his description by his opinions ____” Taylor v. Fardink, 231 Pa.Super.Ct. 259, 262, 331 A.2d 797, 799 (1974)____ “In several classes of questions, the line between the witness’ judgment or opinion and his affirmation of fact is so indistinct that it cannot be marked out in practice.” [Graham v. Pennsylvania Co., 139 Pa. 149,] 158, [21 A. 151,] 152 [(1891)].

Commonwealth v. Gay, 269 Pa.Super.Ct. 164, 169, 409 A.2d 416, 418-19 (1979) (footnote deleted).

In Gay a police officer “testified that he ... confiscated a screwdriver from appellant ... and ‘used the same screwdriver to re-open the front door’ at [a burglarized] residence ____ He further testified that the ‘marks ... made from the [confiscated] screwdriver matched ... the marks ... made earlier on the door [of the burglarized residence].’ ” Id., 269 Pa.Superior Ct. at 168-69, 409 A.2d at 418 (emphasis added to underscore alleged opinion testimony). Recognizing the “amorphous nature of the fact-opinion dichotomy,” Gay, 269 Pa.Superior Ct. at 169, 409 A.2d at 419, this Court held that although the police officer’s testimony consisted neither entirely of fact nor entirely of opinion, the officer’s testimony was “more akin to ... a factual description of the two sets of marks. The fact finder was still free to determine whether the earlier marks were made with the same instrument and whether appellant was responsible for the earlier marks.” Id., 269 Pa.Superior Ct. at 170, 409 A.2d at 419. Thus, the officer’s testimony was deemed admissible.

In Freed v. Priore, 247 Pa.Super.Ct. 418, 426, 372 A.2d 895, 899 (1977), allocatur denied, a medical expert testifying in a malpractice suit stated that having carefully exam-' ined the medical records, he considered that the doctor in question had “administered quality obstetrical care.” The expert further declared that he did not “see any part in [the defendant-doctor’s] treatment ... [which could be called] mistreatment or bad management.” Id. This Court held that although the expert’s quoted statements were presented in the form of an opinion, they were admissible as being “merely a summary of [the expert’s] prior testimony.” Id,, 247 Pa.Superior Ct. at 427, 372 A.2d at 900. Furthermore, acknowledging that “comprehensive expert testimony [had been offered] over a period of several days,” id., we declared “it ... hard to conceive that one sentence made by one expert would have such an overwhelming influence on the jury as to cause them to abandon their own judgment for that of [the expert].” Id. (footnote deleted).

Similarly, in the present case we hold that Dr. Currie’s challenged statements were properly admitted by the trial court. They are admissible both as being akin to a factual description of the available standing area at the back of the trash truck, Gay, and as being merely a shorthand summary of Dr. Currie’s prior testimony, Freed.

Furthermore, “the fact finder was still free” to make an independent assessment of the testimony presented in order to ascertain the pertinent facts. Gay, 269 Pa.Superior Ct. at 170, 409 A.2d at 419. The trial court gave the jury a cautionary instruction regarding the nature of expert testimony. In charging the jury, the trial court stated that the testimony of Dr. Currie and the other expert witnesses at trial was to be treated in the following manner: “You look at their testimony carefully and understand that they are expressing opinions and it is necessary that you make an evaluation of those opinions. You are not bound by them at all, but you certainly consider them, because they come from people who are qualified in their particular areas.”

We hold that the trial court’s instruction conforms to the principles of Freed wherein we explained that

when an expert witness states his opinion, this testimony is to be received by the jury just as any other opinion testimony. The court and jury are not bound by an opinion of an expert. Expert testimony, if believed, merely proves, that, in light of the expert’s general experience and his observations ..., he had reached the conclusions announced. These opinions are to be considered with the other evidence; they may be rejected in whole or in part; the weight to be given them is for the jury.

Id., 247 Pa.Superior Ct. at 426, 372 A.2d at 899-900.

The City’s third argument on appeal is that the trial court should have granted the City’s motion for a new trial because the jury awarded excessive damages to Appellee.

Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts are supported by the opinion and approval of the trial judge ____ The granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. We will not hold that a verdict is excessive unless it is “ ‘so grossly excessive as to shock our sense of justice ....’” [Wjhile each case is unique and dependent upon its own special circumstances, the following factors, inter alia, are relevant in determining whether a particular verdict is excessive: (1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

Robert v. Chodoff, 259 Pa.Super.Ct. 332, 366-67, 393 A.2d 853, 871 (1978) (citations omitted) (footnote deleted); Fretts v. Pavetti, 282 Pa.Super.Ct. 166, 422 A.2d 881 (1980).

Here, Appellee suffered the permanent loss of all the toes on his left foot. Appellee presented evidence of the continuous problems engendered by the amputation including difficulty in his maintaining stability, lifting objects, ascending a staircase, and walking long distances. In addition, Appellee asserted that since the amputation he has had continual back pain which has necessitated hospitalization and physical therapy and which prevents prolonged sitting and standing.

Appellee’s medical expert explained that x-rays of Appellee’s back

reveal a congenital abnormality which comprises a so-called unstable back, and ... this prior situation was made to become symptomatic as a result of a subtle low back strain that developed in the course of [Appellee’s] recuperation from his foot injury and his limp ____ [W]hile this man was recuperating from his foot problem, he was most certainly limping and that limp produced a certain strain on his back .... [Appellee is] going to have some back pain on and off from time to time .... It will respond to rests, some exercises____ He might one day require a corset____ He has a back that will give him some trouble from time to time, indefinitely.

Dr. Leshner, a vocational psychologist, testified on behalf of Appellee that Appellee’s physical impairments would limit Appellee

to work of an unpressured routine nature.
He couldn’t do bench work, because, with a bad back, he can’t sit all day long.
But where he could alternately sit and stand, he could work in a supply room. He could be an inspector ... where he can alternately sit on a stool or stand.
He could be a general, routine clerical worker ....
He could work in a tool room ....
There is a whole class of jobs where ... he could alternately sit and stand and sustain an eight-hour day without any great stress or without any great pressure.
If he had not been injured, he could do heavier work, which would pay more money.
[If he had not been injured,] he could do a lot of heavy work, generally labor, machine operation and so on. These are jobs that pay between five and eight dollars an hour.
[T]hese light routine jobs he could perform ... would pay somewhere between three and a half dollars and five dollars an hour.

Dr. Leshner also addressed the effect of Appellee’s prison record upon his future employability. “The prison record does not keep him from ultimately getting a job .... [M]y experience has been, those with extended prison records, particularly during adolescence, do tend to stabilize and ... get into employment____ My own experience in placing people with these ... problems indicates that he could ... get a job.”

Somewhat corroborative of Dr. Leshner’s opinion as to Appellee’s employability despite a prison record was Dr. Leshner’s testimony that while imprisoned Appellee had received a high school equivalency diploma and had taken courses in dry cleaning, carpentry, welding, and cooking.

Comparing the class of jobs available to Appellee in his present physical condition with the class of jobs that would have been available to Appellee in his pre-accident condition, Dr. Leshner estimated that the difference in annual earnings between the two classes of jobs, using mean hourly wage figures for both classes, would be $5,200.

The City asserts that because Appellee has been imprisoned and has not worked steadily, Dr. Leshner did not have an adequate basis for determining Appellee’s lost earning capacity. But “ ‘ “[t]he consideration of loss of earning capacity is not solely the comparative amount of money earned before or after an injury. The true test is whether or not there is a loss of earning power, and of ability to earn money.” ’ ” Wright v. Engle, 256 Pa.Super.Ct. 321, 326, 389 A.2d 1144, 1147 (1978) (citations omitted).

The City emphasizes that Appellee’s out-of-pocket medical expenses of $2,600 for hospitalization represent little more than one percent of the jury’s verdict. However, “[m]ere disparity between the amount of out-of-pocket expenses and the verdict will not by itself provide sufficient basis to upset the award.” Murphy v. Penn Fruit Co., 274 Pa.Super.Ct. 427, 436, 418 A.2d 480, 485 (1980).

Finally, Appellee’s medical expert stated that Appellee should have the calluses on his foot shaved by a podiatrist “every couple of months or so” and that such treatment would cost twenty-five or thirty dollars per visit.

Considering all of the foregoing evidence, we do not find that the jury’s award of $220,000 (two hundred and twenty thousand dollars) is so extreme as to shock our sense of justice. Therefore, we hold that the jury’s verdict is not excessive.

The City’s last contention on appeal is that the trial court improperly ordered the City to pay Appellee damages for delay in accordance with Pa.R.C.P. 238.

The City maintains that payment by a municipality of damages in the form of prejudgment interest is barred by Section 404 of the Political Subdivision Tort Claims Act (“Act”), Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P.S. § 5311.404, repealed by Section 333 of the Act of October 5, 1980, P.L. 693. Section 404 of the Act is captioned “Prejudgment interest” and states that “[n]o interest shall accrue prior to any entry of judgment.”

However, Section 803 of the Act, formerly 53 P.S. § 5311.803, repealed by Section 333 of the Act of October 5, 1980, P.L. 693, restricts the Act’s application to “all causes of action arising” sixty days after November 26, 1978. (Emphasis added).

In Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 65-66, 436 A.2d 147, 154-55 (1981) (footnotes deleted), the Supreme Court of Pennsylvania acknowledged that Rule 238 created a new obligation for defendants but held that the rule did not thereby enlarge the substantive rights of plaintiffs.

The rule undeniably imposes an additional duty upon defendants in the form of prejudgment interest. But what is the essence of this duty? Rule 238 provides compensation to a plaintiff for delay in receiving the monetary damages owing as a result of a defendant’s tort. This serves to indemnify the plaintiff for the money he would have earned on his award if he had promptly received it____
... Although the award for delay of time may be ‘in the nature of interest,’ in reality, it is merely an extension of the compensatory damages necessary to make a plaintiff whole ____ The law of damages concerns the just administration of remedies for the disregard of rights recognized by substantive law, which is the definition, according to the Supreme Court of the United States, of procedural law____

Thus, the cause of action underlying the instant controversy is Appellee’s suit in trespass seeking recompense for a bodily injury received on December 3, 1973, as a result of the City’s negligent redesign of a trash truck. The award of damages under Rule 238 does not give Appellee a separate cause of action against the City, but rather, is concomitant to and derivative from Appellee’s original complaint in trespass and merely serves to penalize the City for failing to attempt to settle that complaint without resort to judicial process. Consequently, Appellee’s cause of action arose in 1973 and predates the effective date of the Political Subdivision Tort Claims Act.

Accordingly, we affirm the order of the Court of Common Pleas of Philadelphia County, dated July 3, 1981.

      . We note the comprehensive and ably crafted opinion of the Honorable John J. McDevitt III of the Court of Common Pleas of Philadelphia County.

      . "Comparative negligence principles are not to be applied in any case where the cause of action arose before September 7, 1976, regardless of when the case is tried.” Fahringer v. Rinehimer, 283 Pa.Super.Ct. 93, 101, 423 A.2d 731, 735 (1980). See 42 Pa.C.S.A. § 7102.

      . Appellee testified that each inmate at the House of Correction had to perform some type of work or face solitary confinement.

      . In addition to scale drawings of the original and modified trash truck, pictures of the modified truck together with a scale model built from pictures and blueprints of the truck, were introduced into evidence.

      . Appellee stated that when it was raining or snowing, two of the inmates—on a first come, first served basis—could join the correction officer in the truck cab. The third inmate would hang on the door of the cab.

      . There was no testimony that on the date of Appellee’s accident the weather had been inclement or that any of the inmates had been permitted to ride inside the cab.

      . In connection with this argument the City states in its brief that when Appellee stepped onto the hopper sill, he realized that another inmate was standing on the passenger’s side of the truck at the lever which activated the trash compacting blade and was not in a position to see Appellee on the hopper sill. However, in Gregorious v. Safeway Steel Scaffolds Co., 409 Pa. 578, 583-84, 187 A.2d 646, 648 (1963), the Supreme Court of Pennsylvania declared that ”[o]ne does not have to anticipate that another will negligently cause him injury, in other words, he is not bound to guard against lack of ordinary care on the part of another____” Thus, the lack of care of a co-worker should not be imputed to Appellee.

      . Since 1942, there has been a trend to abandon the rule that witnesses would not be permitted to give their opinions or conclusions upon an ultimate issue of fact .... ‘This change in judicial opinion has resulted from the fact that the rule excluding opinion on ultimate facts in issue is unduly restrictive, pregnant with close questions of application and the possibility of misapplication, and often unfairly obstructive to the presentation of a party’s case, to say nothing concerning the illogic of the idea that these opinions usurp the jury function.’ McCormick on Evidence, pp 27-28.

        Freed, 247 Pa.Superior Ct. at 427 n.8, 372 A.2d at 900 n. 8. See Lewis v. Mellor, 259 Pa.Super.Ct. 509, 393 A.2d 941 (1978), allocatur granted, March 1, 1979, appeal discontinued, October 21, 1980, wherein the common law rule prohibiting opinion testimony by lay witnesses was abandoned in favor of the federal rule embodied in Fed.R.Evid. 701 and 704, which admits opinion testimony where a judge decides that such testimony will be helpful and will not cause confusion or prejudice. Id., 259 Pa.Superior Ct. at 522, 393 A.2d at 948.

      . The parties agreed that Appellee’s work life expectancy at the time of trial was thirty-five years. Projecting Appellee’s annual lost earnings over a thirty-five-year period produces an anticipated loss of future earnings equalling $182,000.

      . In pertinent part Rule 238 (effective 120 days after December 16, 1978) states: "[I]n an action seeking monetary relief for bodily injury, ... the court ... shall (1) add to the amount of compensatory damages ... in the verdict of a jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... verdict .... ”


text:
    454 A.2d 56
    Kirk FOULKE v. William A. LAVELLE, Deft. and Robert A. Rosin, Esq., Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Denied April 5, 1983.

      Geri H. Gallagher, Norristown, for appellants.
    Jerome B. Nulty, Souderton, submitted a brief on behalf of appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

This appeal from a denial of a motion to set aside a Writ of Execution raises a jurisdictional question which must be resolved before considering the merits of the case.

Appellant William Lavelle was a creditor of a bankrupt company, Harris, Henry, & Potter, Inc., and appellant Robert Rosin was Trustee in Bankruptcy. In January 1981, the Bankruptcy Court issued its Final Order, directing the distribution of the debtor’s assets, including $10,000 which Lavelle had loaned to the Receiver. After the Final Order, but before payment was made, the Court of Common Pleas of Philadelphia issued a Writ of Execution based on a judgment which appellee Kirk Foulke had against Lavelle, and interrogatories were served on Trustee Rosin to determine whether he held Lavelle’s funds. Rosin then filed Preliminary Objections to the Writ of Attachment, and Lavelle moved to set aside the Writ, both claiming that the funds in question and the Trustee were immune from state action by reason of 11 U.S.C. § 362(a), which operates to impose an Automatic Stay on the property of a bankrupt’s estate. The interrogatories have since been answered.

Appellants Lavelle and Rosin now seek to appeal the order of the lower court which denied Rosin’s Preliminary Objections and dismissed Lavelle’s motion. Foulke challenges the appealability of the order, and the applicability of 11 U.S.C. § 362.

Appellate jurisdiction of this Court extends to review of final orders, 42 Pa.C.S. § 742, and interlocutory orders authorized in law or by permission at the discretion of the Court, 42 Pa.C.S. 702(a)(b). A final order ends litigation or disposes of the entire case. An order is interlocutory, and not final, unless it effectively puts the litigant out of court. Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super. 511, 430 A.2d 1007 (1981), Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980).

In determining what constitutes a final order, the Court looks to a practical rather than a technical construction. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542. An order will be viewed as final if it precludes a party from presenting the merits of his claim to the lower court.

This Court, relying on Commonwealth v. Orsatti, 448 Pa. 72, 292 A.2d 313 (1972), has recently explained that “out of court” is not to be interpreted literally. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981). One must ask whether, even if appellant is still in court, the order in its practical aspects is sufficiently final to make it appealable. The general rule is that an order dismissing a party’s Preliminary Objections is interlocutory and therefore not appealable. Urbano v. Meneses, 288 Pa.Super. 103, 431 A.2d 308 (1981). An appeal from such an order will be quashed unless it falls within the scope of a statute or special rule which obviates the general rule. Gibney v. Council of the Borough of Darby, 38 Pa.Cmwlth.Ct. 566, 394 A.2d 667 (1978), Opie v. Glasgow, Inc., 30 Pa.Cmwlth.Ct. 555, 375 A.2d 396 (1977).

Pa.R.A.P. 311(a)(l)(2), which appellants invoke, provides for an appeal from an interlocutory order as of right in certain instances:

Rule 311. Interlocutory Appeals as of Right
(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment.
(2) Attachments, etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property.

Part (2) of the lower court’s order, which denies appellant’s motion to set aside or stay the Writ of Attachment, has final aspects since it has the result of “affecting the possession or control of property.” It therefore falls within the class of orders which are appealable as or right under Pa.R.A.P. 311(a)(2).

We turn now to the merits of appellant’s argument that the disputed funds are protected from the Writ of Attachment by reason of 11 U.S.C. § 362(a), which imposes a stay on all assets of the bankrupt’s estate:

§ 362. Automatic stay
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;

The $10,000 in issue in this case is outside the protection of the stay, and within reach of the Writ, for several reasons. First, the language of § 362(a) makes it clear that the purpose of the provision is to protect the funds of the debtor, not creditors of the debtor. The unambiguous language of the statute is supported by the Note to § 362, which reads:

Notes of Committee on the Judiciary, Senate Report No. 95-989. The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.

Second, the funds are not, in fact, part of the bankrupt’s estate at all. Lavelle loaned the sum to the Receiver, interest free, to ease cash shortage (R. 16A). The money was not loaned to the bankrupt, Harris, Henry & Potter, Inc., and was never claimed by a creditor of the bankrupt. The automatic stay provisions apply to proceedings against the debtor, the debtor’s property, and the property of the estate, but they do not apply to acts against property which is neither the debtor’s nor the estate’s. If, under Pennsylvania law, the debtor did not have an interest in property at the time the bankruptcy petition was filed, the provisions of 11 U.S.C. § 362 cannot be applied to shield that property. In re Sparkman, Bkrtcy.E.D.Pa., 9 B.R. 359 (1981).

Finally, even if, arguendo, the $10,000 was at one time within the bankrupt’s estate, on January 22, 1981 the Bankruptcy Court issued its Final Order of distribution of funds (R. 23A). The issue of the duration of the stay is clear in the language of the statute and in case law. 11 U.S.C. § 362(c) reads:

(c) Except as provided in subsections (d), (e), and (f) of this section—
(1) the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate; and
(2) the stay of any other act under subsection 9(a) of this section continues until the earliest of—
(A) the time the case is closed;
(B) the time the case is dismissed; and
(C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, or 13 of this title, the time a discharge is granted or denied.

The House Report explaining 362(c) clarifies the duration of the stay. It says, in part,: “Paragraph (2) terminates the stay of any other act on the earliest of the time the case is closed, the time the case is dismissed, or the time a discharge is granted or denied____” H.R.Rep. No. 95-595, 95th Cong. 1st Sess. at 643 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787, In re Berry, Bkrtcy.W.D.Pa., 11 B.R. 886 (1981) incorporates this explanation of § 362(c) and holds that when an order of discharge is issued, any act to create or enforce a lien against the property of the debtor is no longer subject to the automatic stay and a creditor may pursue whatever actions are available. This holding is consistent with the United States Supreme Court’s ruling that the stay of proceedings does not act as a bar, but as a suspension. A discharge in bankruptcy does not oust a state court of jurisdiction over a claim which was institute prior to the discharge. Dimock v. Revere Copper Co., 117, U.S. 559, 6 S.Ct. 855, 29 L.Ed. 994 (1886).

We conclude, therefore, that the Final Order issued in January 1981 terminated the bankruptcy action in its entirety, thus ending the stay, and the $10,000 became the property of appellant Lavelle. This $10,000 is not immunized from the Writ of Execution by virtue of 11 U.S.C. § 362 and we affirm the order of the lower court.

SPAETH, J., concurs in result.

      . Appellee Foulke filed a motion with this Court to dismiss the appeal as interlocutory, and we requested both parties to address the jurisdictional propriety of the appeal. A courtesy copy of the motion to dismiss the appeal was sent to the lower court, which inadvertently acted on the Superior Court motion by refusing to quash the appeal (R. 33A).