author: OLSZEWSKI, Judge:

text:
    507 A.2d 828
    HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellant, v. Joseph SMITH, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1986.
    Filed March 27, 1986.
    Reargument Denied May 2, 1986.

      Kenneth D. Powell, Philadelphia, for appellant.
    Allen L. Feingold, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This matter comes before this Court on appeal from an order of the lower court vacating and striking the order of November 30, 1984, and granting summary judgment in favor of appellee. The present action is brought pursuant to 40 P.S. Sec. 1009.501 of the Pennsylvania No-Fault Motor Vehicle Insurance Act.

On October 8, 1977, Mrs. Smith, the passenger in a car driven by her husband the appellee, was injured in an automobile accident. Since appellee was an uninsured motorist, Mrs. Smith applied for basic loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act on or about January 12, 1978. Pursuant to Sec. 1009.108 of this Act, the claim was assigned to Harleysville Mutual Insurance Company on or about January 26, 1978. Mrs. Smith received her first benefits from the assigned insurer on June 23, 1981. Appellant then commenced an action against appellee on August 9, 1982, to recover the payments it had made to Mrs. Smith under the assigned claims plan.

It is noteworthy that the insurer’s right to recover these benefits is unambiguously provided for under Sec. 1009.501 of the No-Fault Act. This section in pertinent part provides:

The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator’s license.

Act of July 19, 1974, P.L. 489, No. 176, Sec. 501, 40 P.S. Sec. 1009.501, repealed Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a) effective October 1, 1984.

Now, in what appears to be a case of first impression before this court, we are asked to resolve the following two issues: (1) when does a cause of action by an assigned claims insurer accrue pursuant to Sec. 1009.501 of the No-Fault Act, and (2) what statute of limitations governs this action. Appellant argues that its cause of action should accrue when it makes its first payment to the claimant and that a six-year statute of limitations should govern the action. Appellee contends that a four-year statute of limitations for this action should begin to run at the time of the accident. In adopting appellee’s argument, the lower court reasoned that since the recipient of benefits under the plan is treated as though he had been issued a no-fault policy by the assigned insurer, any action by the injured party for such benefits must be premised upon an implied contract. Analogizing that situation to the instant case, the court then concluded that an insurer’s claim against the uninsured owner is similarly based upon a contract implied in law. We disagree.

I

It is generally well accepted that when an insurance carrier, acting as subrogee of its insured, brings an action against a third party, the cause of action for the purposes of the statute of limitation begins to run on the day the insured sustained an injury to his person and not on the day the insurer suffered an “injury” as a result of the arbitrator’s award. Insurance Co. of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971). Our supreme court noted that as a subrogee, the insurer possesses no greater rights than its insured, since it was the insured’s right of action which the insurer was pursuing when it filed the action.

Appellee in the present case proposes a similar argument; nevertheless, we hesitate to adopt this reasoning because we believe the factual situation before us is distinguishable. Unlike the present case, the court in Carnahan found that the insurer’s subrogation rights were the consequence of a contractual agreement between the insured and insurer. It is noteworthy that pursuant to Sec. 1009.108(b) of the No-Fault Act an assigned claims insurer does not enter freely into a relationship with the injured party, but rather is obligated by law to compensate the party under a uniform system providing for the “maximum feasible restoration” of all victims of motor vehicle accidents. See Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 218, 436 A.2d 621, 622 (1981). In accordance with this plan, the Act guarantees that even an uninsured motorist will receive prompt and comprehensive professional treatment of injuries in a vehicular accident. Harleysville Mutual Insurance Co. v. Schuck, 302 Pa.Super. 534, 539, 449 A.2d 45, 47 (1982).

Compensating an injured victim of a vehicular accident is a paramount purpose of the legislatively adopted no-fault scheme. Thus, an injured victim, even if he or she is an uninsured owner, can receive “prompt and comprehensive professional treatment” and thus be rehabilitated and returned as a productive member of society as quickly as possible. See Section 102(a)(9) of the No-fault Act, 40 P.S. Sec. 1009.102(a)(9).

Id., 302 Pa.Superior Ct. at 538-539, 449 A.2d 42.

Yet, despite the strong language favoring compensation, the legislature nevertheless intended an assigned claims insurer to recover what benefits it has paid under the Act, thereby “placing the ultimate risk of loss upon those who have deliberately refused to comply with the statute.” Id.

After a careful review of this matter, we find that the relationship between Harleysville and Mrs. Smith is one imposed by law under Sec. 1009.108(b) of the No-Fault Act and does not arise as the result of a contractual agreement freely entered into by the parties. As a result, the statute of limitations will only accrue on an insurer’s cause of action under 40 P.S. Sec. 1009.501 when it has been assigned the claim under the assigned claims plan. We therefore conclude, on our review of the record, that appellant’s cause of action against the uninsured motorist accrued on January 26, 1978.

II

With respect to appellant’s second argument, we must now decide which statute of limitations is applicable. The lower court reasoned on the basis of Tubner, that any action by an injured party for no-fault benefits must be premised upon an implied contract whereby coverage is provided to the insured party. It then concluded that when an assigned obligor seeks reimbursement from an uninsured owner for payments made pursuant to the assigned claims plan, that action is also based upon an implied contract. We disagree.

Although Sec. 1009.501 of the No-Fault Act gives the insurer the right to recover the benefits it paid out under the assigned claims plan, it however does not create a contract between the third party uninsured owner and the assigned claims insurer. Nor does a contract arise by virtue of Sec. 1009.108 of the same Act. Inasmuch as the assigned claims insurer is not in a contractual relationship with either the third party tortfeasor or the injured party, the insurer’s claim for reimbursement therefore falls under 42 Pa.C.S.A. Sec. 5527 and the six-year statute of limitations governs. See Reliance Insurance Co. v. Gullotta, 28 Pa.D. & C.3d 365 (1983). Since appellant filed its claim pursuant to 40 P.S. Sec. 1009.501 against the uninsured owner on August 9, 1982, we find that this cause of action was properly brought before the expiration of the statute of limitations.

We therefore reverse the order of the lower court and remand the case for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. Secs. 1009.101-701, repealed Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a) effective October 1, 1984.

      . An insurance policy which provided "uninsured motorist” coverage was in effect at the time of the accident in Carnahan.

      . Section 1009.108(b)(2) of the No-Fault Act provides:
      (2) The assigned claims bureau shall promptly:
      (A) assign each claim for no-fault benefits to an assignee who shall be a participating insurer; and
      (b) notify the claimant of the identity and address of such assign-ee.

      . Further support for this proposition can be found in Tierney v. Pennsylvania Assigned Claims Plan, 319 Pa.Super. 299, 466 A.2d 168 (1983). In this case the court noted:
      We agree that the language of Sec. 1009.108(b)(2) appears obligatory without reservation; nevertheless, under these facts, (the Plan) must have the authority to reject the claim without first assigning it to a participating insurer. If (the Plan) had assigned the claim to a participating insurer; Sec. 1009.201(b) would have been rendered meaningless with respect to accidents occurring outside the Commonwealth. Once the claim is assigned, the "assignee thereafter has rights and obligations as if he had issued a policy of basic loss insurance complying with this Act applicable to the injury.” 40 P.S. Sec. 1009.109(b).
      Consequently, if the statute of limitations were to begin to run against an insurer on the day of the accident, as the appellee and the lower court proposes, any delay in assigning the claim would jeopardize an insurer’s rights under the Act. The statute of limitations, therefore, should not begin to run against the insurer until the claim has been assigned.

      . The six-year statute of limitations found in 42 Pa.C.S.A. Sec. 5527 (Purdon 1985) provides;

        Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.


source: Caselaw Access Project

license: Public Domain

text:
    507 A.2d 831
    GENERAL MACHINE CORPORATION and Reliance Steel Products Company and Raymond G. Perelman, Appellants, v. Stephen M. FELDMAN, Individually, and Stephen M. Feldman, P.C., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1985.
    Filed April 8, 1986.

      Carl N. Martin, II, Philadelphia, for appellants.
    Jeffrey B. Albert, Philadelphia, for appellees.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   OLSZEWSKI, Judge:

This matter comes before this Court on appeal from an order of the lower court sustaining appellees’ demurrers to certain counts of appellants’ complaint and dismissing the same with prejudice. For the reasons that follow, we quash part of the appeal and affirm the trial court’s decision with respect to the remaining issues.

In May 1982, the corporate appellants, General Machine Corporation (“General”) and Reliance Steel Products Company (“Reliance”) retained appellees, Stephen M. Feldman and Stephen M. Feldman, P.C., to pursue two unrelated civil actions in federal court. Three months later, General’s case was scheduled for trial in November 1982. At the same time, a personal injury case of appellees was also listed for trial commencing in November 1982. Appellants allege that communications continued between the parties into the Fall of 1982, but at no time did appellees alert their clients of the potential scheduling conflict. In addition, appellees were granted a continuance without appellants’ knowledge and approval; and, despite appellant Perelman’s instructions to proceed to trial without any delay, appellees petitioned the court to withdraw as counsel in General’s case. The petition was denied and appellees were instructed to proceed to trial on November 29, 1982. Because appellees appealed this decision, the trial was postponed pending the outcome of that matter. Subsequently, appellees sought to withdraw their appearance on behalf of appellant Reliance.

On October 24, 1983, a hearing was conducted before the Fee Dispute Committee of the Philadelphia Bar Association to ascertain General’s right to recover attorney’s fees paid to appellees. Following a discussion, it is alleged that appellee Feldman refused to return certain documents belonging to appellants and threatened to interfere with anyone’s attempted retrieval. Appellants thereafter filed a six count complaint against appellees seeking to recover damages resulting from appellees’ withdrawal from the case.

In Count I of the complaint, appellant General alleged that appellees had breached their contract to represent General in certain litigation in federal court. Count II of the complaint incorporated by reference the facts averred in Count I, and demanded damages for appellees’ allegedly tortious conduct as established by the facts in Count I. In Count III of the complaint, appellant Reliance claimed that appellees had breached their contract to represent Reliance in certain other federal court litigation. Count IV incorporated by reference the facts averred in Count III, and demanded damges for appellees’ tortious conduct as established by the facts in Count III. In Count V, appellant General sought damages for appellees’ conversion of certain documents belonging^to General. Finally in Count VI, appellant Perelman sought damages from appellees for assault and for the robbery of documents and services.

In response to the complaint, appellees filed preliminary objections which included demurrers to Counts II, IV, and VI. The trial court sustained the demurrers to these counts by an order of March 6, 1985. Appellants now contend that the lower court erred in dismissing Counts II and IV of their complaint since these counts stated a cause of action for tortious conduct based on appellees’ alleged violations of certain Disciplinary Rules and certain Local Rules of the United States District Court for the Eastern District of Pennsylvania. They further contend that Count VI of their complaint states a cause of action for assault or statutory robbery and that it was error for the trial court to dismiss Counts II, IV and VI without giving them an opportunity to amend the pleadings.

In the first instance, it should be noted that this Court lacks the jurisdiction to address appellant’s first claim based on this Court’s decision in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (en banc). According to the Praisner court, when separate counts of a multi-count complaint have been used to state alternative theories of recovery on the same cause of action, an order dismissing or entering judgment on one or more but not all counts of the complaint is interlocutory, since plaintiff still can proceed to a determination on the underlying cause of action. Id., 313 Pa.Superior Ct. at 341, 459 A.2d at 1260. See also J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1976).

In the instant case, we note that Counts I and II and Counts III and IV, respectively, state alternative theories of recovery for appellees’ alleged attorney malpractice action; Counts I and III having for their basis a breach of contract claim, and Counts II and IV having for their basis a tortious misconduct claim. Since Counts II and IV of appellants’ complaint are still viable, we therefore conclude that the appeal taken pursuant to the order dismissing Counts II and IV of appellants’ complaint is interlocutory and unap-pealable.

With respect to appellants’ second contention that Count VI of their complaint adequately states a cause of action for assault or statutory robbery, we disagree. Appellants allege that at a hearing before the Fee Disputes Committee, appellant General supplied certain documents to appellee Feldman solely for his use at the hearing. When it became apparent that appellee would not participate in the hearing, the panel directed him to return the documents. Appellee allegedly refused to comply and threatened to inflict bodily injury upon any person who attempted to recover the documents from him. Appellant Perelman was present at the hearing and interpreted the statements in a manner outlined in Count VI of the above mentioned complaint. The court below dismissed this count noting that appellee Feldman’s threatening words alone were insufficient to place appellant Perelman in reasonable apprehension of physical injury or offensive touching. After a careful review of this matter, we agree with the trial court that the alleged threat here was conditional and thus did not reflect a present purpose to do harm. According to our supreme court’s decision in Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960), “threatening words alone are insufficient to put a person into reasonable apprehension of physical injury or offensive touching; rather, the actor must be in position to carry out threats immediately and he must take some affirmative action to do so.” Id., 399 Pa. at 27, 159 A.2d at 217.

We further disagree with appellants’ contention that the facts as alleged in pertinent part of appellants’ complaint state a cause of action for statutory robbery, 18 Pa.C.S. Sec. 3701(a)(1)(ii) and (iv) and terroristic threats, 18 Pa.C.S. Sec. 2706. Since a common law tort remedy is available to appellants in this instance, they may not obtain relief by utilizing penal statutes to support their claim for civil remedies. Cf. Everett v. Harron, 380 Pa. 123, 110 A.2d 383 (1955).

Nor do we find merit in appellants’ final argument that the trial court should have allowed appellants to amend their complaint with respect to Counts II, IV, and VI. It is noteworthy that a decision to permit an amendment to a pleading is a matter committed to the discretion of the trial court. See Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983). And, although amendments are liberally allowed by Pennsylvania courts, they will not be granted where the proposed amendment is against a positive rule of law. Id., 321 Pa.Superior Ct. at 137, 467 A.2d at 1167. As a result, we therefore are compelled to find that such an attempted amendment to the instant pleadings would only result in a waste of the court’s resources and impose a burden on the opposing party to defend against a meritless amendment. Since the law is well settled on the appellants’ cause of action for assault, we affirm the trial court’s decision denying such an amendment.

Order affirmed. Appeal quashed in part.


author: HESTER, Judge:

text:
    507 A.2d 834
    Frank J. RICCOBONO, as Administrator of the Estate of Patricia A. Riccobono v. KEYSTONE HELICOPTER CORPORATION, Appellant. Kirsten Kay EDMONDS, Administratrix of the Estate of Leonard Blaine Edmonds, Deceased, and Kirsten Kay Edmonds, in her own right v. M.B.B., INC. and Messerschmitt-Boelkow-Blohm and Keystone Helicopter Corporation and Lehigh Valley Hospital Center, Inc. and Adella J. Dillman, Administratrix of the Estate of Scott Dillman, Deceased, and Adella J. Dillman, in her own right. Appeal of KEYSTONE HELICOPTER CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed April 8, 1986.

      Ronald C. Scott, Philadelphia, for appellant.
    William A. Loftus, Philadelphia, for Riccobono, appellees (at 522).

      Howard J. Levin, Philadelphia, for Dillman, appellee (at 1348).
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

These are the consolidated appeals of two wrongful death actions arising from a helicopter accident. One appellee is Frank J. Riccobono, administrator of the estate of Patricia A. Riccobono, deceased. The other appellee is Kirsten Kay Edmonds, administratrix of the estate of Leonard Blaine Edmonds, deceased. Each appellee filed separate complaints against appellant, Keystone Helicopter Corporation.

In November, 1984, seventeen months after appellee Ric-cobono filed suit and fourteen months after appellee Ed-monds filed suit, appellant moved for leave to join additional defendants, Mario Aurigemma, t/a Mr. A’s Bar, and Jennie Kunkel, t/a Jennie’s Place, in both actions nunc pro tunc. Orders were entered on January 18, 1985, in both actions, denying leave to file complaints against the additional defendants. Appellant filed separate appeals which were later consolidated for argument and disposition. We affirm.

On April 27, 1982, eighteen-year-old Leonard Edmonds was one of four passengers in a motor vehicle operated by Scott Dillman. The vehicle struck a telephone pole on Route 895 in East Brunswick Township, Schuylkill County, Pennsylvania. Dillman was fatally injured while Edmonds and the others were seriously injured.

Appellant provided helicopter medical service for Allentown and Sacred Heart Hospital Center. The hospital dispatched one of appellant’s helicopters to the accident scene to transport Edmonds to the hospital for treatment. Twenty-four-year-old Patricia Riccobono, a paramedic, was a member of the helicopter’s medical evacuation team. The helicopter landed safely at the accident scene, and Edmonds was removed from the vehicle and placed in the helicopter. Shortly after take-off, the helicopter crashed, killing Ed-monds, Riccobono, the pilot and another paramedic.

The proposed additional defendants operated taverns from which Scott Dillman, the driver, had purchased beer. Appellant alleged that their negligence in serving beer to a minor had caused Dillman to wreck his automobile. Had the automobile accident not occurred, appellant reasoned, the helicopter and medical evacuation team would not have been dispatched to the scene.

Pennsylvania Rule of Civil Procedure 2253 prohibits the filing of a praecipe or complaint to join an additional defendant more than sixty days after the original defendant is served with plaintiffs initial pleading. Rule 2253 permits an untimely filing only upon cause shown. In both actions, appellant filed motions to join additional defendants more than one year after being served with the complaints. Unless appellant demonstrated cause to justify the untimely filing, the trial court had no choice but to deny the motions to join nunc pro tunc.

Joinder after the sixty day period may provide a method of expeditiously litigating disputes involving many parties provided the plaintiff is not subjected to unreasonable delay. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970). To justify late joinder, the petitioning defendant must show,

(1) some reasonable justification or excuse for the delay;
(2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. It should ask for leave to file both the praecipe and the complaint called for by Rule 2252(b).

Kovalesky v. Esther Williams Swimming Pools, 345 Pa. Super. 95, 103, 497 A.2d 661, 665 (1985), quoting Goodrich-Amram 2d § 2253:3.1 at 108 (1977). Whether cause is shown to justify late joinder is a matter for the sound discretion of the trial court, and we shall not reverse absent an abuse of discretion. Welch Foods, Inc. v. Bishopric Products Co., 254 Pa.Super. 256, 385 A.2d 1007 (1978).

Appellant argues that it did not discover the identity of the additional defendants until depositions were taken of the surviving passengers in the Dillman automobile. These depositions were taken more than one year after the Riccobono complaint was filed and nearly one year after the filing of the Edmonds complaint. Furthermore, appellant argues that joinder would not prejudice appellees as Aurigemmo and Kunkel were defendants in a third lawsuit filed by the estate of the other paramedic of the medical evacuation team. According to appellant, appellees could utilize the discovery in that case to prepare here. Finally, appellant contends that Rule 2253 should be liberally applied as joinder enhances inexpensive and expeditious litigation.

The evidence supports the trial court’s finding that a reasonable cause, justification or excuse was not shown for late joinder. Appellant had an opportunity to discover the facts relative to the two taverns prior to the summer of 1984. The police report of the accident and the pathological examination of Dillman revealed that he had consumed alcohol. This information was sufficient to place appellant on notice that Dillman may have purchased the alcohol from a distributor or tavern. These facts should have alerted appellant to request a statement or to take depositions shortly after the complaints were filed. Had it done so, it could have discovered the existence of the additional defendants several months earlier.

Having failed to demonstrate reasonable justification for late joinder, appellant has not satisfied the Kovalesky test; accordingly, we hold that the trial court did not abuse its discretion in denying late joinder.

Orders affirmed.

      . Appellant alleges that the trial court incorrectly stated in Riccobono that appellant was attempting to join the estate of Scott Dillman as additional defendant. In addition, appellant argues that the trial court incorrectly ruled in Riccobono that pilot error, not Dillman's negligence, caused the helicopter crash.
      The order on appeal here consolidated the motions to join the taverns in both actions. It is clear from the trial court’s opinion under Pa.R.A.P. 1925 that joinder of the taverns in both actions was considered.
      Appellant moved to join the estate of Scott Dillman as an additional defendant in Riccobono. That motion was also denied; however, no appeal was taken. Appellant incorrectly asserts that the disposition of its motion to join the estate of Scott Dillman was inverted for the disposition of its motion to join the taverns.


author: DEL SOLE, Judge:

text:
    507 A.2d 837
    METROPOLITAN LIFE INSURANCE COMPANY v. Catherine BODGE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed April 9, 1986.

      Catherine Miraglia-Lecky, Norristown, for appellant.
    Gregory S. Thomas, Norristown, for appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

On December 15, 1985, Metropolitan Life Insurance Company (Metropolitan) commenced by complaint an action for declaratory judgment seeking a determination of the respective rights of the parties to the proceeds of a no-fault automobile insurance policy issued by Concord Mutual Insurance Company, (Concord), and processed and adjusted by the Pennsylvania Assigned Claims Plan, (PAC).

This is an appeal from the trial court’s orders granting Metropolitan’s motion for summary judgment and denying Appellant’s cross-motion for summary judgment. The court in granting the motion determined that Metropolitan is entitled to recover from Appellant in her representative capacity as Guardian of the Person and Estate of her daughter, Catherine Theresa Bodge, (Terri), any medical bills and expenses paid by Metropolitan that were subsequently paid pursuant to the Concord policy. The order concluded with the statement that, “[t]he exact amount of said recovery ... shall be determined by an appropriate proceeding, if necessary.” In this respect, the trial court opinion stated, “[w]e note a possible factual question may exist as to the amount Metropolitan would be entitled to recover should we find in favor of its right to reimbursement. However, ... we may still determine and declare by partial summary judgment the rights of the parties to recover in this proceeding.” (Trial Court Opinion at 7).

The relevant facts are not in dispute. In April or May of 1979, Terri, an adult, while residing apart from her mother became employed and through this employment was covered by a Group Health Insurance Policy issued by Metropolitan. In September of 1979, Appellant, without Terri’s knowledge, secured and paid the premiums on a no-fault automobile insurance policy issued by Concord. The trial court found that pursuant to the express terms of the Concord policy, Terri automatically became an insured when she moved into Appellant’s home in January 1980.

On or about March 2, 1980, Terri suffered severe disabling injuries as a result of an automobile accident with an uninsured motorist. Appellant submitted Terri’s various medical bills and expenses to Metropolitan which paid in excess of $100,000 either directly to the respective health care providers, or to them through Appellant. Appellant subsequently submitted these same bills and expenses to PAC for payment and PAC issued a check in the amount of $105,892.44. Pending resolution of this litigation, the proceeds of this check were placed in an escrow account.

In its motion for summary judgment, Metropolitan asserts entitlement to the proceeds of the PAC check based on a coordination of benefits provision within the Metropolitan policy. The provision in question states in part:

(8) If an overpayment is made under the Group Policy because of failure to report other coverage or otherwise, the Insurance Company shall have the right to recover such overpayment ...

On appeal from the trial court’s order granting Metropolitan’s motion for summary judgment, Appellant contends in essence that:

1. The trial judge improperly restyled the action sua sponte treating the action as one against Appellant in her representative capacity when the pleadings indicate Appellant was sued as an individual.
2. Metropolitan’s coordination of benefits provision is void and unenforceable as contrary to 40 P.S. § 1009.-11(a)(4) [1009.111(a)(4)], 31 Pa.Code § 89.97(c), 40 P.S. § 753 and the case law interpreting these statutes.
3. Even if valid, the coordination of benefits provision is not binding on Appellant as there was no privity of contract between Metropolitan and Appellant.
4. The coordination of benefits provision is unconscionable and unenforceable.

Before we may consider these issues it must first be determined whether Appellants are properly before this Court.

An appeal will lie only from a final order unless otherwise permitted by statute. ‘A final order is usually one which ends the litigation or, alternatively, disposes of the entire case ... “Conversely, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.” ’

Cloverleaf Development v. Horizon Financial, 347 Pa.Super. 75, 80, 500 A.2d 163, 166 (1985).

It is noted that although Appellees have not raised the issue as to whether the order granting summary judgment is appealable, “the question of the appealability of an Order goes to the jurisdiction of this Court and may be raised at any time by the Court itself”. Vendetti v. Schuster, 418 Pa. 68, 73, 208 A.2d 864, 867 (1965); Rossi v. Pennsylvania State Univ., 340 Pa.Super. 39, 43, 489 A.2d 828, 830 (1985). “Indeed since our jurisdiction to hear appeals is limited we cannot entertain appeals not within our jurisdiction.” Rigidply Rafters, Inc. v. Aetna Casualty and Surety Co., 311 Pa.Super. 549, 552, 457 A.2d 1318, 1320 (1983).

As has already been stated, the trial court determined by partial summary judgment the rights of the parties to recover in the declaratory judgment proceeding. However, the order from which this appeal is taken clearly is not a final determination as to the amount Appellee is entitled to recover. This is a summary judgment with respect to liability only.

Rule 1035(b) of the Rules of Civil Procedure permits a court to grant summary judgment with respect to liability only: ‘A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.’ (Emphasis added). Such an order is, by definition, ‘interlocutory in character’ and clearly nonappealable.

Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 408, 435 A.2d 1290, 1291 (1981). See also: Sims v. Feingold, 329 Pa.Super. 437, 439, 478 A.2d 868, 869 (1984); Brown v. State Farm Mutual Automobile Insurance Co., 326 Pa.Super. 489, 491, 474 A.2d 346, 347 (1984); Rigidply Rafters, Inc. v. Aetna Casualty and Surety Co., supra, 311 Pa.Super. at 553, 457 A.2d at 1320. Decisions of this Court have uniformly held that a summary judgment on the issue of liability in favor of a plaintiff is not appealable until damages have been determined and judgment entered in a monetary amount. Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 580, 493 A.2d 741, 743 (1985).

The policy of law “abhors ‘piecemeal determinations and the consequent protraction of litigation.’ ” Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 215 (1985). This Court is without jurisdiction to entertain the interlocutory appeal from the order granting summary judgment as to liability only. Accordingly, this appeal is quashed.

      . The trial court opinion indicates PAC was processing and adjusting the claim as Concord was declared insolvent in 1980.


author: CAVANAUGH, Judge:

text:
    507 A.2d 839
    Ruth Tobin-Cowan HELD, an Individual, Appellant, v. Burton H. NEFT, M.D., an Individual, Raymond J. Boylan, M.D., an Individual, Pittsburgh Anesthesia Associates, Ltd., a Professional Corporation and Central Medical Health Services, a Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed April 3, 1986.

      John T. Tierney, III, Pittsburgh, for appellant.
    Kenneth J. Nolan, Pittsburgh, for Neft, appellee.
    Lynn E. Bell, Pittsburgh, for Boylan, appellee.
    Louis C. Long, Pittsburgh, for Central Medical, appellee.
    Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   CAVANAUGH, Judge:

In this case, appellant, Ruth Cowan Held contends that the lower court erred in granting summary judgment in favor of the appellees. The judgment was entered by the Honorable Martin Wekselman of the Court of Common Pleas of Allegheny County on the ground that the statute of limitations barred Held’s claim. We agree.

Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b).

In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court’s function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party____ We also note that ‘ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury’____ Specifically, the question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question____ ‘Whether the statute has run on a claim is usually a question of law for the judge, but where, as here, the issue involves a factual determination, i.e. what is a reasonable period, the determination is for the jury.’ This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, ... or admits facts sufficient to admit the limitations defense____ or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial, Pa.R.C.P. No. 1035(d), or where the evidence relied upon by the plaintiff is inherently incredible

Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981) (citation omitted).

On December 14, 1979, Ruth Held was surgically treated for the revision of scars which were the result of an automobile accident. The anesthesiologist involved, Dr. Boylan, placed an intravenous solution into her left hand. Held noticed that the intravenous was not running properly and had to be stopped and restarted. She found this procedure to be very painful. Although she was discharged the next day, Held phoned the hospital the following week and spoke with an anesthesiologist about the pain in her arm. Dr. Boylan wrote on Held’s record that the phlebitis which caused the pain was due to the medication. This notation was dated December 21, 1979. At another part of her record, Boylan also wrote that the pain was “most likely” due to the irritating effects of the medication. Although Held’s brief does not question the authenticity of these notations, she contends that this information was not conveyed to her on December 21, 1979, or at anytime thereafter. According to Held, the intense, throbbing type of pain, redness, and tenderness in her arm lasted approximately two months before slowly subsiding. She claims that her arm is now weak where once it had been strong. She further contends that the physician who administered post-operative check-ups, Dr. Neft, told her that the injury to her arm was occasioned by the intravenous needle which had been poked into her hand several times, and that such a thing happens after surgery. Held claims that in fact the injury was caused by the irritating effects of the medicine infused into her system from the intravenous line, but that Dr. Neft did not tell her that.

Ms. Held asserts that she left Dr. Neft’s care in May of 1980, and alleges that she had no cause to seek further medical care at that time because the phlebitis had subsided. She alleges that it was not until sometime in 1982 that she learned that it was not the needle which had caused the inflammation in her arm, but that it was the medication. No cause of action was brought by Held until December of 1982.

It is undisputed that the two year statute of limitations is applicable to the within matter. See 42 Pa.C.S. § 5524. We are asked to decide whether under the discovery rule the statute did not commence running at the time of the injury. “An exception to this [two year statute of] limitation[s] has been articulated by our courts in medical malpractice cases where very often the patient (and prospective plaintiff) has no reason to believe that he has suffered an injury caused by the administration of a physician’s treatment.” DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 498, 460 A.2d 295, 298 (1983). “The ‘discovery rule’ concept is premised on the concept that where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence.” Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982). The case which first applied this rule was Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) where our Supreme Court wrote that an “injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” The now settled delineation of this rule is as follows: “[T]he statute commences when the medical malpractice plaintiff has knowledge or (and this is crucial to the determination) through the exercise of reasonable diligence should have had knowledge of: (1) his injury; (2) the operative cause of his injury; and, (3) the causative relationship between his injury and the operative conduct.” DeMartino v. Albert Einstein Medical Center, Northern District, 313 Pa.Super. at 500, 460 A.2d at 299. Knowledge of the negligence is not a part of the discovery rule. Id.

In appellant’s brief, she contends that the second and third prongs of the test set forth in DeMartino, supra, have not been satisfied, and that the statute of limitations should not have precluded her claim.

First, appellant alleges that she lacked knowledge, and had no reason to know, of the operative cause of the injury. She states that it was her belief that the phlebitis was the result of the intravenous needle being poked into her arm several times while, in reality, the true operative cause was the medication which was intravenously filtered into her body. We note that appellant’s amended complaint differs significantly from this conclusion in that it does not single out the medication as the sole cause of the injury.

Moreover, although appellant argues that she was unaware of the cause of her injury, she was clearly aware that the injury was caused by the intravenous procedure administered to her on December 14, 1979. A lay person is not reasonably expected to know the precise medical cause of such an injury even though he knows that the injury was occasioned by a discrete medical procedure. It is reasonable to expect an injured person to pursue professional advice. In the instant case, appellant alleges that she sought professional advice and was misled by it. She asserts that she reasonably believed that the cause of her injury was the needle’s repeated insertion into her arm, not the medication transmitted through the intravenous tube. She contends that the following made this belief reasonable: Dr. Neft’s comments to her that the injury was the result of the needle being poked in her arm, that the injury was just temporary, and that it was nothing to worry about; moreover, Held noticed her vein becoming irritated when the needle was repeatedly poked into her arm during the surgery; and, Held’s prior experience with thrombophlebitis in her leg following a previous surgery was not caused by intravenous medication.

The cause of her injury was objectively discoverable in December of 1979. (Dr. Boylan had indicated the true cause on Held’s record at that time.) However, if as Held contends, she was given assurances by a physician whom she trusted that the cause was the needle and that it was only temporary, such assurance could toll the running of the statute. Because of the procedural posture of this case, we must believe Held when she states that Dr. Neft told her the cause of the injury was the needle not the medication, and that it was temporary. We note, however, that Held left Dr. Neft’s care in May of 1980, having lost confidence in his professional ability. Pertinent portions of her deposition are as follows:

Q. Did you tell him [Dr. Neft] you were dissatisfied with his treatment of you?
A. I inquired with him what had happened, and I was just told not to worry about it, it would go away.
Q. I take it at some point you decided not to see Dr. Neft about the condition?
A. I decided not to see Dr. Neft period.
Q. When was that?
A. I don’t remember the exact date. ... [A]fter that [last] visit I decided I didn’t need this person. I decided he was not a very good surgeon.
Q. What was it that happened that made you feel you didn’t want to see Dr. Neft anymore?
[Plaintiff’s Counsel]: You are referring to the nose surgery and the — both surgeries?
The witness: It does relate to the nose surgery because it was also at that time that it was past the time period where he said wait six months, the nose swelling will go down, sometimes it takes a year, and by that time it was a year. So then I just went to another doctor and he told me the good news, I am never going to have it repaired. And after having several pat-on-the head type responses from Neft, instead of getting don’t worry about it, it will be all right, we’ll take care of it later, I finally decided this man doesn’t have my best interests at heart and I’m not going to go back to him.

Although the chief precipitating cause of Held’s decision to seek another physician’s care in place of Dr. Neft was the manner in which he treated a different injury, Held’s deposition, above, indicates a general dissatisfaction with Dr. Neft’s overall treatment of her.

This court has written that “[assurances given by a physician which lull a patient into a false sense of security act as ‘concealment’ and toll the statute.” DeMartino, supra. In Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1973), the appellant’s reliance on her physician’s assurance that her injury was temporary was reasonable because appellant had “absolute confidence in his judgment----” Applying these principles to the instant case, we find that even if Dr. Neft’s initial assurance to Held (that the injury was caused by the needle and that this sort of thing happens after surgery) can be characterized as a “concealment” which served to toll the statute of limitations, the statute nevertheless began to run from the time Held lost confidence in Dr. Neft in May, 1980. See Barsha-dy, supra. Since no action was brought until December, 1982, Held’s claim is barred by the statute of limitations.

Appellant had lost confidence in Dr. Neft because she believed that he regarded her ailments too lightly. Yet, she maintains that she was justified in relying upon his advice that her injury was caused by the needle, and that she should not worry about it. We find such reliance unreasonable. “[Rjeliance upon the word of one physician when the patient’s own common sense should lead one to a different conclusion is unreasonable.” DeMartino v. Albert Einstein Medical Ctr. N.D., 313 Pa.Super. 492, 506, 460 A.2d 295, 302 (1983). We must insist that those who assert claims of negligence be vigilant in bringing actions based thereon. The statute of limitations demands nothing less.

Held also asserts that her own experiences (i.e., a prior injury and the actual poking of the needle during the surgery) led her to reasonably believe that the cause of her injury was the needle and not the medication. This does not alter our holding. We note that Held had called the hospital one week after the surgery and spoke with an anesthesiologist about the pain in her arm. Moreover, she raised the question of the pain in her arm with Dr. Neft more than once. The fact that Held sought professional advice concerning the pain indicates that she did not choose to rely upon her own subjective knowledge of its cause. We believe this was a reasonable decision. Having lost confidence in her own doctor’s ability to treat her in May of 1980, we believe that the proper course for her would have been to exercise diligence at that time and seek further professional advice to ascertain the true cause of her injury. Furthermore, in her brief, Held states that her previous bout of thrombophlebitis in her leg responded to treatment within one to two weeks. This is different from the instant ailment which did not slowly subside until two months after its onset. In addition, Held asserts that her arm is now weak where once it had been strong. This raises questions about the reasonableness of the appellant’s reliance on her prior bout of phlebitis to guide her in the latest ailment.

Held does not aver that she could not learn of the true cause of her injury from May of 1980 on. In fact, the injury could have been discovered in May of 1980. On December 21, 1979, as was stated before, Doctor Boylan wrote on Held’s chart that the phlebitis which caused the pain was due to the medication. Although Held asserts that this information was not conveyed to her at that time, her brief does not dispute the authenticity of the notation. The chart clearly indicates that the cause of her injury was objectively discoverable in December of 1979.

Moreover, Held claims that when she left Dr. Neft’s care in May of 1980, the phlebitis had subsided and she did not have cause to seek medical attention concerning it at that time. We believe that the statute should run nonetheless. The statute is not tolled merely because an injury is less intense than it once was. Such a holding would wreak havoc on the purposes behind the statute of limitations.

The law allowed Held two full years after she left Dr. Neft’s care in May of 1980 in which to investigate and to bring an action. However, it was not until December 13, 1982 that Held filed a praecipe for writ of summons. Because this was some six or seven months beyond the statutory period, we are constrained to hold that her claim is barred.

We further hold that in the exercise of reasonable diligence, Held should have had knowledge of the causative relationship between her injury and the operative conduct. We adopt the analysis espoused, supra, as it addresses this contention as well.

Judgment affirmed.


author: McEWEN, Judge:

text:
    507 A.2d 844
    Patricia BURKHART, Executrix of the Estate of Roger Alan Mahaffey, on behalf of Molly L. Mahaffey, Mikele E. Mahaf-fey, and Monica L. Mahaffey, Minors and Shirley A. Mahaf-fey, Individually and as parent and natural guardian for Molly L. Mahaffey, Mikele E. Mahaffey, and Monica L. Ma-haffey, Minors, Appellants, v. BROCKWAY GLASS COMPANY and Liberty Mutual Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued March 27, 1985.
    Filed March 31, 1986.

      Frank A. Conte, Washington, for appellants.
    W. Patric Boyer, Canonsburg, for appellees.
    Before McEWEN, CERCONE and HANDLER , JJ.

       Judge Earl R. Handler of the Court of Common Pleas of Indiana County is sitting by designation of the Pennsylvania Supreme Court.

   McEWEN, Judge:

This is an appeal from a summary judgment entered in favor of appellees. Appellant claims that the trial court erred in granting summary judgment in favor of appellee Brockway Glass Company and asserts: (1) a cause of action exists against an employer/social host who furnishes and authorizes the use of alcoholic beverages at business meetings where the employee/decedent was visibly intoxicated; and (2) a cause of action exists against an employer for “negligent entrustment” of a company owned motor vehicle to an employee/decedent who was visibly intoxicated. We affirm.

Appellant, in her complaint, set forth, inter alia, the following averments which she contends give rise to a cause of action against appellee Brockway Glass Company:

4. Brockway Glass Company, Defendant, is a corporation authorized to do business in the Commonwealth of Pennsylvania and at all relevant times to the within action was the employer of Roger Alan Mahaffey, who was employed at the plant of the Defendant Brockway Glass Company known as Plant No. 7 in the City of Washington, Washington County, Pennsylvania.
5. On or about October 23, 1980, while driving a vehicle owned by the Defendant, Brockway Glass Company, Roger Alan Mahaffey was killed as a result of an accident on Route 136 in South Strabane Township, Washington Company, Pennsylvania.
6. The accident occurred when the vehicle which the decedent was driving left the travelled portion of the highway and struck a tree a short distance from the travelled portion of the highway.
7. The accident aforesaid was caused solely, directly and proximately as a result of the negligent acts of the Defendant Brockway Glass Company through its servants, agents and employees in that:
(a) It negligently, carelessly, and recklessly furnished to Roger Alan Mahaffey, while Mr. Mahaffey was intoxicated, alcoholic beverages when it knew or should have known that such furnishing of alcoholic beverages was contrary to law, and could result in death or serious bodily injury to the plaintiffs’ decedent.
(b) It authorized the use of alcoholic beverages during business meetings on the date of the accident and continued to authorize and expend monies for the furnishing of alcoholic beverages to the plaintiffs’ decedent for a period of at least four (4) hours and probably longer in sufficient quantities to cause the plaintiffs’ decedent to become intoxicated.
(c) In spite of the knowledge of the Defendant Brock-way Glass Company through its servants, agents or employees of the intoxication of the Plaintiffs’ decedent, it failed to warn him against driving the vehicle or to take any steps to prevent the operation of the motor vehicle owned by the Defendant Brockway Glass Company, even though the said ownership of the vehicle would permit them to preclude the plaintiffs’ decedent from operating that motor vehicle while he was intoxicated.
8. Solely as a result of the negligence of the Defendant Brockway Glass Company aforesaid, and as a proximate cause thereof, the decedent was involved in an automobile accident as aforesaid and was killed.

The motion for summary judgment was submitted to the trial court by appellee Brockway Glass Company and subsequently granted on April 27, 1984. Appellant then filed exceptions pursuant to a local Washington County rule but they were denied by the court en banc on August 6, 1984. An appeal was filed in this Court on August 28, 1984.

We must initially address the procedural issue presented by the conflict between the Pennsylvania Rules of Civil Procedure and the local rule followed in Washington County. The order granting summary judgment was a final and appealable order. See: Praisner v. Stocker, 313 Pa.Super. 332, 339, 459 A.2d 1255, 1259 (1983). Therefore, once the trial court had granted the summary judgment, appellant was required, under the Pennsylvania Rules of Appellate Procedure, to appeal to this Court within thirty days. See Pa.R.A.P. 903(a). While the Pennsylvania Rules of Civil Procedure do not provide for the filing of exceptions to the entry of a summary judgment, appellant, pursuant to the County rules, filed exceptions which were ultimately denied by the court en banc. As a result, appellant did not file an appeal with this Court until well after the thirty day period had expired. Ordinarily, failure to timely file an appeal would result in the appeal being quashed. U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 631, 487 A.2d 809, 814 (1985); Indiana County Hospital Authority v. McCarl’s Plumbing & Heating Company, 344 Pa.Super. 226, 229, 496 A.2d 767, 768 (1985). It would, of course, be callously unjust to penalize a litigant because her counsel complied with a rule of the forum. Thus, we deny the motion of appellee to quash the appeal and proceed to a consideration of the merits of the ruling of the trial court.

The standard of review to be applied to our consideration of an appeal from a summary judgment is well established:

In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.

Craddock v. Gross, 350 Pa.Super. 575, 578, 504 A.2d 1300, 1301 (1986) quoting Lookenbill v. Garrett, 340 Pa.Super. 435, 439, 490 A.2d 857, 859 (1985). See also Green v. Juneja, 337 Pa.Super. 460, 463, 487 A.2d 36, 38 (1985). A summary judgment should not be entered unless a case is clear and free from doubt. Lookenbill v. Garrett, supra 340 Pa.Super. at 438, 490 A.2d at 859 (1985); Richland Mall Corp. v. Kasco Construction Co., 337 Pa.Super. 204, 210, 486 A.2d 978, 981 (1984). In the instant case, the trial court accepted the factual averments of appellant as true, resolved all questions regarding the existence of a material fact in favor of the non-moving party, determined that appellee Brockway Glass Company did not owe a duty to the decedent Roger Alan Mahaffey, and entered summary judgment against appellant. We are compelled to the conclusion that the trial court properly did so.

It is undisputed that a liquor licensee can be held civilly liable for injuries proximately resulting from the unlawful sale of intoxicants to a visibly intoxicated person. That liability arises from, inter alia, the following statutory proscription contained in the Liquor Code:

§ 4-497. Liability of licensees
No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated.

Act of April 12, 1951, P.L. 90, Art. IV, added December 22, 1965, P.L. 1144, No. 441 § 1, 47 P.S. § 4-497. See Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (Civil liability imposed upon licensee who violated Liquor Code, 47 P.S. § 4-493, by serving intoxicants to visibly intoxicated person); Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958) (Civil liability imposed upon licensee who violated Liquor Code, 47 P.S. § 4-493, by serving intoxicants to visibly intoxicated person). See also Mancuso v. Bradshaw, 338 Pa.Super. 328, 487 A.2d 990 (1985) allo. granted, 508 Pa. 346, 497 A.2d 607 (1985).

The question of whether non-licensed dispensers of intoxicants can be held civilly liable based upon the provisions of the Liquor Code was addressed in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). Our Supreme Court ruled that the civil cause of action created by the Liquor Code was applicable only to liquor licensees and not to non-licensed persons who furnish intoxicants for no renumeration. The Court did not at that time, however, resolve the issue of whether a non-licensed person who furnishes intoxicants could be the subject of a cause of action sounding in negligence as distinguished from the cause of action created by virtue of the provision contained in the Liquor Code.

In 1983, the Supreme Court decided two cases in which the question of the civil liability of a non-licensed person for furnishing intoxicants to his or her guests was raised in the context of a negligence claim. In Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983), the Supreme Court determined that there can be no liability on the part of a social host who serves intoxicants to his or her adult guests. Id., 504 Pa. at 147, 470 A.2d at 511. However, in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), decided on the same day as Klein, supra, the Supreme Court narrowed the effect of Klein and held that a minor may state a cause of action against an adult social host who knowingly serves him intoxicants, while noting that, however, the social host may assert as a defense the minor’s contributory negligence under the Comparative Negligence Act. Id., 504 Pa. at 164, 470 A.2d at 518.

Pennsylvania law, therefore, recognizes three categories of persons who serve alcoholic beverages: (1) those persons engaged in the manufacture, importation, sale and disposition of liquor, alcohol and malt or brewed beverages who are required to be licensed pursuant to the Liquor Code, 47 P.S. § 1-101 et seq.; (2) those social hosts, i.e., non-licensed persons, who serve intoxicants for no renumeration to their adult guests and (3) those social hosts who knowingly serve intoxicants to a minor. Thus, while liquor licensees may be held civilly liable, social hosts will not be held civilly liable for furnishing alcoholic beverages to their guests provided the guests are competent, adult individuals.

Appellant does not here claim that appellee Brock-way Glass Company was a licensed person under the provisions of the Liquor Code, nor does appellant claim that the decedent, Roger Alan Mahaffey, was a minor. Rather, appellant claims that a special duty arose by virtue of the employer/employee relationship which required Brockway Glass Company as employer of decedent Roger Alan Mahaf-fey to protect him from harm arising from his consumption of alcohol. We cannot accept this assertion. Since appellee Brockway Glass Company was a social host as that term has been interpreted by our Supreme Court, and Roger Alan Mahaffey was an adult guest, the trial court properly concluded that there can be no liability on the part of Brockway as social host for the furnishing of alcoholic beverages to Roger Alan Mahaffey, an adult guest.

Appellant also claims that Brockway Glass Company, through its agents, servants or employees, was negligent in that it failed to prevent Roger Alan Mahaffey from operating the company owned automobile when he was visibly intoxicated. We disagree.

The law does not recognize a cause of action against one who fails to prevent another from committing a crime. Indeed, a social host is not privileged to use force against or impose confinement upon another for the purpose of preventing the violation of a statute or the commission of a misdemeanor, Restatement of Torts 2d § 141, and may become liable to the other if force is applied or confinement imposed. Restatement of Torts 2d § 144.

Klein v. Raysinger, 302 Pa.Super. 248, 252 n. 3, 448 A.2d 620, 623 n. 3 (1983) aff'd. 504 Pa. 141, 470 A.2d 507 (1983). Although appellant characterizes the cause of action as being one of negligent entrustment because the car in which decedent Roger Alan Mahaffey died was owned by Brockway Glass Company, no cause of action for negligent entrustment is presented since it was not pleaded in the complaint that the automobile was entrusted to Roger Alan Mahaffey after or while he was intoxicated. Thus, the trial court properly concluded that no cause of action had been stated for negligent entrustment. The summary judgment entered by the distinguished Judge Thomas J. Terputac is, therefore, affirmed.

Judgment affirmed.

      . The Restatement (Second) of Torts defines negligent entrustment as follows:
      It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
      Restatement (Second) of Torts § 308 (1965). See Pulleyn v. Cavalier Insurance Corp., 351 Pa.Super. 347, 352, 505 A.2d 1016, 1018 (1986). See also Anno.: Liability Based on Entrusting Automobile to One Who is Intoxicated or Known to be Excessive User of Intoxicants, 19 A.L.R.3d 1175 (1968).

      . It would appear, happily, that the rule is no longer in effect.

      . The Liquor Code provides that:
      "It shall be unlawful ... for any licensee or the board or any employe, servant or agent of such licensee or of the board or any other person to sell, furnish or give any liquor ... or to permit any liquor ... to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.”
      Act of April 12, 1951, P.L. 90, Art. IV, § 493(1), as amended, 47 P.S. § 4-493(1).

      . Act of April 28, 1978, P.L. 202, No. 53, § 10 (89) as amended. 42 Pa.C.S. § 7102.


author: POPOVICH, Judge:

text:
    507 A.2d 848
    David G. LEACH, and Frederick J. Close, t/a Boyd & Shriver, Appellants v. H.D. HOUGH and Robert W. Lambert, Individually and d/b/a the Van Lieu Oil Company, a Partnership, the Denton Corporation, Donald C. Frederick, Clyde E. Frederick, William Frederick, Richard Frederick, and Donald C. Frederick, Jr., Individually and d/b/a FF & R Oil and Gas, a Partnership, Robert W. Lambert.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed April 1, 1986.

      William T. Jorden, Meadville, for appellants.
    James R. Schadel, Pittsburgh, for Lambert, appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order, later reduced to judgment, of the Court of Common Pleas of Indiana County granting the preliminary objections in the nature of a demurrer of the defendant/appellee, Robert W. Lambert. We reverse and remand.

At the threshold of our consideration on this appeal is whether the order is appealable.

As a general rule, an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or otherwise terminating the action between the parties is interlocutory, and, therefore, lacks the requisite finality to be an appealable order. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970). Where, however, the order does, in effect, terminate the action as to certain members of the lawsuit, e.g., the plaintiffs action against one of the defendants in a multi-defendant complaint, it is a definitive and final order, and, thus, is appealable. United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985). The latter situation is reflective of the case instantly.

As an appellate court reviewing the approval of a demurrer, we must accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). But, conclusions of law or unjustified inferences are not to be drawn from the face of the complaint. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974). Further, in ruling on a demurrer, the court may consider only such matters as arise out of the complaint; it cannot supply a fact missing in the document under scrutiny. Linda Coal and Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964). Lastly, if there is any doubt as to whether the preliminary objections should be granted, this should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

With the preceding in mind, we will now examine the five-count complaint in equity filed by the plaintiffs/appellants, David G. Leach and Frederick J. Close, t/a Boyd & Shriver.

In Count I of the complaint, the plaintiffs alleged that H.D. Hough, a co-defendant in the suit, was hired as general manager of their Pennsylvania-based partnership, which was engaged in the production, leasing and drilling of oil and gas wells. In his capacity as general manager, Hough employed the services of Lambert, an attorney, “to represent the interests of Boyd & Shriver in preparing limited partnership agreements, contracts, performing title examinations and any other services incidental to representation of Boyd & Shriver.” (Paragraph 26)

The complaint reads further that Lambert and Hough acted in concert to acquire at least 42 gas and oil leases throughout the Commonwealth, including one in New York State. These acquisitions, according to the plaintiffs, were “usurped” partnership opportunities that Lambert and Hough “should have secured and performed on behalf of Boyd & Shriver.” (Paragraph 20) The plaintiffs charged that Lambert’s covert acts, both individually and in conjunction with Hough, netted him profits and royalties in violation of his fiduciary duty to the partnership.

In addition to the claims regarding Lambert’s breach of his fiduciary duty, the plaintiffs asserted that the defendant engaged in a course of conduct resulting in his securement of “excessive and fraudulent legal fees for services rendered.” (Paragraph 30) Also, the plaintiffs averred that the defendant owed them $4,698.30 plus interest for subscribing to a certain interest in an oil project, of Boyd & Shriver, known as the Bolivar Oil Projects. (Paragraph 31)

Preliminary objections were filed by Lambert contending that, except for the averments of paragraphs 30 & 31, the plaintiffs failed to set forth a cause of action against him. Therefore, he requested that either his demurrer or motion to dismiss for the plaintiffs’ failure to state a cause of action be granted. Additional motions appear of record, but, because they are unrelated to the issue at bar, they do not concern us.

By opinion and order dated December 13, 1984, the court below granted Lambert’s preliminary objections, which, in turn, dispensed with the need to rule on the Motion For More Specific Pleading. This appeal followed, and from our scrutiny of the record and briefs there is no indication that the other litigants, i.e., Hough, The Van Lieu Company, The Denton Corporation and the Fredericks, have been successful in having the suit terminated as to them.

Placed in perspective, we have for consideration only the legal sufficiency of the statement of claim in equity as a pleading. As a result, we do not concern ourselves with what the defendant may argue at trial. Lichow v. Sowers, 334 Pa. 353, 6 A.2d 285 (1939). Rather, we must decipher the precise relationship between the plaintiffs and the defendant, for upon this determination does the validity of the complaint hinge.

There is no dispute that Hough was hired by the plaintiffs “to manage all the affairs of Boyd & Shriver”. Cloaked with such authority, Hough secured the services of Lambert “to represent the interests” of the plaintiffs not only to handle specific legal matters, but he was engaged to perform “any other services incidental to [the] representation of Boyd & Shriver.” In the course of doing so, the plaintiffs claim, Lambert, contrary to the fiduciary duty owed to his clients/plaintiffs, “assisted” the co-defendant Hough in amassing a veritable gas and oil syndicate spanning two states and embracing some 42 operations in the field. These acquisitions and the profits that flowed therefrom, according to the plaintiffs, were partnership (Boyd & Shriver) opportunities converted by the defendant and Hough to their own interests. This course of conduct, contend the plaintiffs, was in violation of the duty of loyalty owed to the partnership (client) by Lambert (attorney).

Lambert’s cardinal loyalty when he undertook to represent Boyd & Shriver was to his client, to whom he owed absolute candor, unswerving fidelity and undivided allegiance. It would appear that sometime during this affiliation the interests of Lambert were (purportedly) diverted from his client to self-aggrandizement.

It is well-settled in this jurisdiction that the “... relation [attorney — client] is so confidential in its nature that it calls for the exercise of the most perfect good faith ... [and] no shadow of anything like deception or unfair dealing upon the part of an attorney can be countenanced. [That is why i]n every case in which complaint is made, the courts will scrutinize the [facts] with jealous care to see that there is no relaxation of the rule. * * * ‘Unless[, e.g., a] transaction is fair and conscionable, it is deemed constructive fraud.’ * * *.” Martin’s Petition, 237 Pa. 159, 160-161, 85 A. 88, 89 (1912) (Citation omitted). Accord Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982).

In the complaint, the plaintiffs’ arguments encompass the retainment of Lambert’s expertise as an attorney, and this indenture, read in a light most favorable to the complainants, was not limited solely to the performance of a single or series of act(s) on their behalf. Rather, the plaintiffs state that the defendant was hired to engage in “any ... services incidental to the representation of Boyd & Shri-ver.”

To the extent that the court below embarks on a recitation of the “intent” of the parties in entering into an attorney-client relationship and the “nature” of the plaintiffs’ business enterprise impacting upon the “type of work that defendant performed for the plaintiffs”, we find the discussion to be an embellishment of the facts not supported by the complaint. (See Trial Opinion at 2-3). Linda Coal and Supply Co. v. Tasa Coal Co., supra.

Our reading of the complaint, drawing all reasonable inferences therefrom in favor of the plaintiffs, leads us to conclude that the nature and extent of the services (to be) rendered by Lambert, given the capacity in which he was employed, rendered him a party to a confidential relationship. As our Supreme Court has stated on this subject:

... what constitutes ... a confidential relationship ... [i]s not limited ... to one which arises from circumstances or relations preceding the occurrence which gives rise to the controversy____ It exists between two persons whenever “one has gained the confidence of the other and purports to act or advise with the other’s interest in mind”: Restatement, Restitution § 166; comment d. “Confidential relation is not confined to any specific association of the parties; it is one wherein a party is bound to act for the benefit of another, and can take no advantage to himself. It appears when the 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; in both an unfair advantage is possible. * * No precise language can define the limits of the relation or fetter the power of the court to control these conditions. * * * In some cases the confidential relation is a conclusion of law, in others it is a question of fact to be established by the evidence”: Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411, 412; Null’s Estate, 302 Pa. 64, 68, 153 A. 137, 139; McCown v. Fraser, 327 Pa. 561, 564, 565, 192 A. 674, 676; Ringer v. Finfrock, 340 Pa. 458, 461, 462, 17 A.2d 348, 350. “A confidential relationship is not limited to any particular association of parties but exists wherever one occupies toward another such a position of advisor or counsellor as reasonably to inspire confidence that he will act in good faith for the other’s interest”: Drob v. Jaffe, 351 Pa. 297, 300, 41 A.2d 407, 408.

Hamberg v. Barsky, 355 Pa. 462, 465-466, 50 A.2d 345, 346-347 (1947).

Lambert, during the course of his employment for the plaintiffs, is alleged to have appropriated to his own benefit various gas and oil leases, conduct which, taking the averments in the complaint at face value, contravened the precept that one in whom is reposed a degree of trust, creating a confidential relationship or fiduciary duty, “is bound to act for the benefit of another, and can take no advantage to himself.” Id. Such action is clearly at odds with the position taken by our Supreme Court that: “ ‘The attorney is not permitted by the law to take any advantage of his client/ ” Peyton v. Margiotti, 398 Pa. 86, 93, 156 A.2d 865, 869 (1959), quoting Berman v. Coakley, 243 Mass. 348, 137 N.E. 667, 668 (1923). Under these circumstances, the defendant would be considered to have acquired the property in constructive trust for the plaintiffs and be required to account for any profits derived therefrom. This conclusion is consistent with the remarks of the Court in Stewart v. Hooks, 372 Pa. 542, 548, 94 A.2d 756, 759 (1953), wherein it is written:

65 C.J., Trusts, § 228:

“In general, a confidential relation, or fiduciary relation, the two terms being ordinarily used interchangeably, within the meaning of the rule that a constructive trust arises from the abuse or violation of such a relation, exists wherever confidence is reposed on one side and there is a resulting superiority and influence on the other. It has been said that there is no invariable rule which determines the existence of a confidential relationship, but that ordinarily there must be not only confidence of the one in the other, but also on the part of the former some inequality, dependence, weakness, want of knowledge, or other conditions giving to the latter some advantage over the former.”

4 Pomeroy’s Equity Jurisprudence 138:

“Thus constructive trusts have been imposed where the relation between the parties was that of principal and agent, attorney and client, husband and wife, parent and child, grandparent and grandchild, and the like in respect of transactions where the promisor was the dominant party. * * * A fiduciary relation exists where there is a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interest of the one reposing the confidence; it exists where confidence is reposed on the one side and resulting superiority and influence are found on the other side.”

While the law provides no magic formula by which the sufficiency of a plaintiff’s complaint can be ascertained, the law is clear that a demurrer can only be granted in a case free from doubt. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). In this regard, we hold that the court below misapplied the law to the facts. In other words, any doubt should have been resolved by the court below in favor of refusing to enter a demurrer. This did not occur. Thus, because we cannot state with certainty that the law will not permit the plaintiffs to recover on the basis of their allegations against Lambert, we will reverse the lower court’s order sustaining Lambert’s demurrer.

Also, our reading of the lower court’s order, as supplemented by its opinion to us, would appear to encompass the allegations of the plaintiffs in respect to the questionable legal fees charged by the defendant and his incurring a debt still owed to them because of the Bolivar Oil Projects, although they were not the subject of any such preliminary objections by Lambert. In this regard, we also find that the lower court erred in holding that the plaintiffs “failed to state a cause of action against defendant Lambert.”

We reverse and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.


author: PER CURIAM:

text:
    507 A.2d 853
    ESTATE of Ellen Drexel MILLS, Settlor. Appeal of Samuel W. MILLS, Jr. & Barbara K. Mills.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed April 10, 1986.
    Edward J. Kaier, Philadelphia, for appellant.

      Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order of distribution of trust principal. The trust in question was created by an irrevocable deed of trust in 1917. Settlor provided therein that the trustee accumulate income until each of her children reached the age of twenty-one. At that time, the child would receive one equal share of such accumulated income. Thereafter the child would receive the net income on his or her share of the principal for life. Upon the death of the child,

... the principal of the said share shall be paid over absolutely to the issue of such deceased child, being the lineal descendants of ... [Settlor] ... in equal shares absolutely.

When Settlor’s son, Samuel Wynne Mills died, the trustee proposed to pay one-third of his share to each of his children, Samuel W. Mills, Jr., Barbara K. Mills and Alexandra Devine. A guardian ad litem was appointed to represent the two minor children of Alexandra Devine. The guardian argued that the language of the deed required a per capita distribution so that the five parties, Settlor’s three grandchildren and two greatgrandchildren, would each receive one-fifth of the share of the principal. The auditing judge agreed with the per capita distribution and the court en banc affirmed. Samuel W. Mills, Jr. and Barbara K. Mills appealed. Finding no error in the determination, we affirm.

Appellant argues that the words “in equal shares absolutely” do not require an equal distribution among all beneficiaries, i.e., a per capita distribution, but rather an equal distribution among beneficiaries of the same generation, i.e., a per stirpes distribution. We are unable to agree with appellant’s interpretation of the relevant case law. In Hamilton Estate, 454 Pa. 495, 312 A.2d 373 (1973), the trust principal was bequeathed to “such persons as would be entitled to share in the distribution of my estate under the intestate laws ... share and share alike.” In affirming a per capita distribution to the testatrix’s nephews, grandnephews and grandnieces, Justice Pomeroy noted the presumption that the words “share and share alike” or their equivalent require a per capita distribution. Similarly, in In re Hoover’s Estate, 417 Pa. 263, 207 A.2d 840 (1965), the same words were held to require a per capita distribution to the testator’s last surviving child and seven surviving grandchildren. A distribution “equally amongst the children of my children” was held to require a per capita distribution in In re England’s Estate, 414 Pa. 115, 200 A.2d 897 (1964). Contrary to appellants’ argument, the word “equally” prima facie means a per capita distribution. Burleigh Estate, 405 Pa. 373, 175 A.2d 838 (1961). Absent other language disclosing an intention to distribute stirpitally, the words “equally to be divided” and the like favor per capita, rather than per stirpes, distribution. Davis’s Estate, 319 Pa. 215, 179 A. 73 (1935).

Appellants argue, however, that the general scheme of distribution of the deed of trust provides sufficient support for an intent to distribute all funds per stirpes. The only stirpital distribution in the deed is found in the gift over to surviving children and issue of deceased children of any share of a child who dies before the age of twenty-one without leaving issue. In that instance, Settlor clearly stated that the issue of deceased children were “to take per stirpes and not per capita absolutely.” Para. Second (c). We must therefore agree with the court en banc’s quotation from Bache Trust, 43 Pa.D. & C.2d 780 (1968):

Since it is obvious that [Settlor] knew how to make a stirpital gift when he so intended, we must assume that he intended this gift to be per capita and thus give effect to the meaning of the plain language used by him.

Finally, appellants urge us to consider the relative equities of the two distribution schemes. Which is the fairest or most equitable distribution is not for this court to say. Settlor determined this herself and the words of her deed bind us. A court cannot rewrite such a document in order to create what some think is a fairer or more equitable distribution of property. In re Hoover’s Estate, supra; In re Henderson’s Estate, 405 Pa. 451, 176 A.2d 428 (1962).

Order affirmed.

      . Settlor further provided for the payment of income and principal shares in the event that a child died prior to attaining the age of twenty-one as follows: if a deceased child left issue, the child’s share was to be paid to the child’s issue; if a child died without issue, that child’s share was to be paid to Settlor’s surviving children and the issue of deceased children per stirpes.


author: CERCONE, Judge:

text:
    507 A.2d 854
    Deanna BRUCH, Appellant, v. William CLARK and Fred Yeager.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1986.
    Filed April 10, 1986.

      Malcolm H. Waldron, Jr., Philadelphia, for appellant.
    C.Y. Lamb, Cheltenham, for appellees.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

Appellant brings this appeal from the order of the trial court en banc reversing the judgment in favor of plaintiff-appellant and granting defendants-appellee’s Motion for Judgment N.O.V. The sole issue raised on appeal is whether the trial court erred in finding that the appellant failed to state a cause of action for malicious prosecution. We find that it did not err and affirm the judgment of the lower court.

Appellant, Deanna Bruch, was employed by the Department of Public Welfare, Bucks County Board of Assistance, Bristol Office. In October 1976, while still employed full-time, she applied for and began receiving welfare benefits for her two children. That same month she began training for a position as, and soon became, an income maintenance worker. Her responsibilities as an income maintenance worker included computing client eligibility for receiving welfare benefits. She continued to receive welfare checks during this time. Her application for welfare had been approved by Mr. Ernest Maleski an Intake Supervisor at the Bucks County office, who was later investigated for welfare fraud.

Defendant-appellees Bill Clark and Fred Yeager, special investigators for the Department of Public Welfare, were assigned to investigate welfare fraud within the Bristol Office. Continuing an investigation begun by another investigative team, they found numerous irregularities relative to appellant’s receipt of welfare benefits. The investigation of appellant was prompted by a finding of her file on Mr. Maleski’s desk. In addition to the inaccuracies found therein, her file had not received the customary six month review, nor had appellant reported her pay increases to the Department, although she had knowledge that she was required to do so.

When appellant first met with the appellees she had already been suspended from her position as the result of previous investigative findings. During this meeting appellant alleged that the appellees promised to help her gain reinstatement in return for her supplying evidence incriminating Mr. Maleski. Appellant responded that she had no information to offer.

- Upon completion of the investigation, the appellees turned the results over to the Bucks County District Attorney’s Office.

Shortly thereafter, appellant was arrested and charges were brought against her for welfare fraud, theft by deception and receiving stolen property. Ultimately these charges were dropped by the District Attorney. Appellant was subsequently reinstated with back pay.

Appellant commenced a malicious prosecution action against Clark and Yeager. At the close of the trial, the trial judge submitted the issue to the jury of whether probable cause existed for Clark and Yeager to believe appellant was guilty of a crime. The jury returned a verdict for the appellant in the amount of Ten Thousand Dollars. Thereafter, the appellees filed timely post-trial motions for a New Trial and/or Judgment N.O.V. The lower court en banc found uncontradicted evidence establishing probable cause sufficient to initiate the prosecution of appellant, and that the issue of probable cause had been erroneously submitted to the jury. It, therefore, entered a Judgment N.O.V. in favor of the appellees. It is on this' basis appellant appealed.

It is undisputed that, in an action for malicious prosecution, the plaintiff must prove that: (a) the defendant initiated the criminal proceedings against him without probable cause and primarily for a purpose unrelated to bringing an offender to justice, and (b) the proceedings terminated in plaintiff’s favor. Shelton v. Evans, 292 Pa.Super. 228, 232, 437 A.2d 18, 20, (1981); see also Restatement (Second) Torts § 653; Neczypor v. Jacobs, 403 Pa. 303, 308-09, 169 A.2d 528, 531 (1961) (relying on Restatement (Second) Torts § 672).

As explained by the late Justice Musmanno:

By probable cause is not meant an actual state of guilt. One is justified in launching a criminal prosecution if the facts convince him, as a reasonable, honest and intelligent human being, that the suspected person is guilty of a criminal offense. The arresting person may be in error, but if his error is an honest one, not motivated by personal malice, bias or revenge, the law will hold him harmless, regardless of the eventual result of the criminal prosecution.

Neczypor, supra, 403 Pa. at 303, 308, 169 A.2d at 531 (1961). Further, as was pointed out in Neczypor, a plaintiff fails to establish a prima facie case merely by showing she was arrested on a criminal charge and that it was terminated in her favor. She must also show the defendants lacked probable cause of initiating these proceedings and that her prosecution was motivated by malice. Id., 403 Pa. at 308-309, 169 A.2d at 531, relying on Restatement (Second) Torts § 672. However, if probable cause is found to exist, the prosecutor’s motive, malicious or otherwise, is immaterial. De Salle v. Penn Central Transportation Co., 263 Pa.Super. 485, 490, 398 A.2d 680, 683, (1979) citing Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A.2d 674 (1946). Where the evidence is undisputed or only slight differences exist in collateral matters, the issue of probable cause is a matter for the court and not the jury. The policy reasons for this rule have been explained by our Supreme Court:

It has been immemorially held that the public interest requires that the legally trained mind of the judge and not the more or less emotional minds of jurors, decide whether or not there was probable cause of the initiation of the prosecution. Jurors are likely to confuse the issue of the guilt or innocence of the defendant in the criminal case out of which the civil action originated with the basic issue whose determination decides the civil action. That basic issue is the want of probable cause for the criminal prosecution.

Simpson, supra, 354 Pa. at 96, 46 A.2d at 678. cited with approval in De Salle, supra, 263 Pa.Super. at 491, 398 A.2d at 683.

In reviewing the facts of this case, the trial court en banc properly found the defendants’ testimony establishing probable cause uncontradicted. The criterion for probable cause “is not equivalent to the ‘proof beyond a reasonable doubt’ standard applied in a criminal trial” De Salle, supra, 263 Pa.Superior Ct. at 492, 398 A.2d at 684 (citation omitted). Rather, it is a test of whether the facts and circumstances convince the defendant “as a reasonable, honest and intelligent human being, that the suspected person is guilty of a criminal offense.” Neczypor, supra, 403 Pa. at 308, 169 A.2d at 530. See also De Salle, supra. Here, the appellant produced no affirmative evidence to dispute probable cause. Although she did produce conflicting evidence concerning whether the appellees made certain promises to her in an attempt to induce her cooperation in the Maleski investigation, these facts relate to the issue of malice and not probable cause. Where probable cause is found to exist, however, the defendant’s motive is not material. De Salle, supra, 263 Pa.Super. at 490, 398 A.2d at 683.

Therefore, we find the trial court en banc correctly found the evidence sufficient to establish probable cause to justify the initiation of appellant’s prosecution. The trial judge erred in failing to decide the issue of probable cause as a matter of law and in not directing a verdict for the defendants. As such, the lower court en banc properly entered Judgment N.O.V. in favor of the appellees, and judgment as entered is affirmed.