author: KELLY, Judge:

text:
    629 A.2d 944
    Eleanor COOPER, Appellee, v. Harvey OAKES as Administrator of the Estate of James L. Cooper, Appellees. Appeal of Christine RICHMOND, Karen Douthett and Sharon Braden, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed June 21, 1993.
    Reargument Denied Aug. 30, 1993.

      Timothy F. McCune, Butler, for appellants.
    Dan P. Wimer, New Castle, for Eleanor Cooper, appellee.
    Before KELLY, JOHNSON and HESTER, JJ.
   KELLY, Judge:

In this case, we are called upon to determine the enforceability of a pre-nuptial agreement against a widowed Wife, where the only evidence that the Husband had fully and fairly disclosed to the Wife the extent of his assets and her marital rights was a statement to that effect in the pre-nuptial agreement. For the following reasons, we hold that the trial court erred in voiding the agreement. Therefore, we reverse.

The facts and procedural history of this case may be summarized as follows. On June 16, 1987, James L. Cooper (“Husband” or “decedent”) entered into an ante-nuptial agreement with the woman who became his Wife, Eleanor A. O’Leary, now Eleanor A. Cooper (“Wife”). On that date, Husband was divorced and the father of three adult daughters, Sharon Braden, Karen Douthett and Christine Richmond (“daughters”). Husband and Wife were married on June 19, 1987. Husband died intestate on August 31, 1990.

During the administration of Husband’s estate, Wife filed a petition to void the ante-nuptial agreement which Husband and she had signed. While the named respondent was the administrator of the estate, Harvey Oakes, Husband’s three daughters intervened and filed an answer the same day, February 11, 1992.

The trial court held a hearing on March 5, 1992. Pursuant to the Dead Man’s Act, 42 Pa.C.S.A. § 5930, daughters presented a motion in limine to prevent the introduction of evidence against the pre-nuptial agreement. The court granted the motion in limine. Therefore, the ante-nuptial agreement was introduced at the hearing, and there was no evidence contrary to the terms of the agreement.

The trial court granted Wife’s petition and held that the ante-nuptial agreement was void. The court also denied daughters’ post-trial motions. Daughters timely appealed the trial court’s denial of their post-trial motions. Wife .has not appealed the order granting the motion in limine. For our review, daughters present these three questions:

I. DID THE TRIAL COURT PROPERLY GRANT THE SURVIVING SPOUSE’S PETITION TO DECLARE THE ANTENUPTIAL AGREEMENT NULL AND VOID, I.E., DID THE COURT PROPERLY APPLY THE LAW OF PENNSYLVANIA REGARDING THE EVALUATION OF ANTENUPTIAL AGREEMENTS TO THE CASE AT HAND AND PROPERLY APPLY THE LAW REGARDING BURDEN OF PROOF REQUIRED TO OVERTURN AN ANTE-NUPTIAL AGREEMENT REGARDING THE PRESUMPTION OF FULL AND FAIR DISCLOSURE OF THE FINANCIAL POSITION OF THE PARTIES TO AN ANTENUPTIAL AGREEMENT WHEN SAID AGREEMENT RECITES THAT FULL DISCLOSURE HAS BEEN MADE?
II. WHETHER THE SURVIVING SPOUSE MET HER BURDEN TO REBUT THE PRESUMPTION OF FULL DISCLOSURE BY CLEAR AND CONVINCING EVIDENCE?
III. WHETHER THE COURT ERRED IN HOLDING THAT THE PROPONENTS OF THE AGREEMENT HAVE TO PROVE ITS VALIDITY BY PROVING THAT THE DECEDENT MADE A FULL AND FAIR DISCLOSURE OF HIS FINANCIAL RESOURCES TO THE OTHER PARTY TO THE AGREEMENT?

Daughters’ Brief at 3.

Relying upon Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), daughters argue that the ante-nuptial agreement’s provision that Husband and Wife had full and fair disclosure of each other’s assets is prima facie evidence that there was full and fair disclosure. In order to rebut that evidence, daughters argue, the petitioner, as opponent of the agreement, had the burden of presenting evidence that full and fair disclosure was not made. As the trial court precluded Wife, the petitioner, from testifying against the ante-nuptial agreement, daughters maintain that there was no evidence of record to rebut the agreement. Therefore, daughters conclude that the trial court erred in placing the burden upon them to demonstrate, with evidence beyond the agreement itself, that Husband fully and fairly disclosed the extent of his assets.

Wife relies on the trial court’s analysis, which explained: As stated in the May 1 Opinion the Dead Man[’]s Act sealed the lips of the widow. The sole evidence of full and fair disclosure were the bare assertions of the prenuptial agreement that there had been a full and complete disclosure. There is nothing in the agreement to establish what was disclosed to either party. As between the parties the contract had been valid and enforceable under the procedural rules with a presumption of full disclosure and the requirement of clear and convincing evidence to rebut the presumption, (see Simeone v. Simeone, 535 [525] Pa. 392 (1992) [1990] 581 A.2d 162 [sic]).
In the case before us with one party deceased and the sole evidence being a contract containing representations/conclusions but no facts the presumption of full disclosure is considered rebutted. A contrary result because of the Dead Man[’]s Act would be unfair to the Petitioner (widow).

Trial Court Opinion, June 24, 1992 at 2. Further, Wife distinguishes Simeone v. Simeone, supra, stating that the instant case does not involve the claim of alimony pendente lite, as the Simeone case did. Wife’s Brief at 3-4. Wife further argues that the ante-nuptial agreement does not constitute prima facie evidence of a full and fair disclosure of Husband’s and Wife’s individual assets because it did not include a schedule of those assets. Therefore, Wife maintains that the daughters failed to establish the validity of the ante-nuptial agreement. Wife concludes that the trial court properly granted her petition to void the ante-nuptial agreement.

The eminent authority on the validity of ante-nuptial agreements is the Pennsylvania Supreme Court case of Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). In Simeone, our Supreme Court narrowed the earlier plurality decision of Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987). The court explained:

Further, Geyer and its predecessors embodied substantial departures from traditional rules of contract law, to the extent that they allowed consideration of the knowledge of the contracting parties and reasonableness of their bargain as factors governing whether to uphold an agreement. Traditional principles of contract law provide perfectly adequate remedies where contracts are procured through fraud, misrepresentation, or duress. Consideration of other factors, such as the knowledge of the parties and the reasonableness of their bargain, is inappropriate. See Geyer, 516 Pa. at 516-17, 533 A.2d at 434-35 (Flaherty, J. dissenting). Prenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. See Geyer, 516 Pa. at 508, 533 A.2d at 431 (“These agreements are nothing more than contracts and should be treated as such.” (Nix, C.J. dissenting)). Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.
Contracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains. See Standard Venetian Blind Co. v. American Empire Insur ance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (failure to read a contract does not warrant avoidance or nullification of its provisions); Estate of Brant, 463 Pa. 230, 235, 344 A.2d 806, 809 (1975); Bollinger v. Central Pennsylvania Quarry Stripping & Construction Co., 425 Pa. 430, 432, 229 A.2d 741, 742 (1967) (“Once a person enters into a written agreement he builds around himself a stone wall, from which he cannot escape by merely asserting he had not understood what he was signing.”); Montgomery v. Levy, 406 Pa. 547, 550, 177 A.2d 448, 450 (1962) (one is legally bound to know the terms of the contract entered). Based upon these principles, the terms of the present prenuptial agreement must be regarded as binding, without regard to whether the terms were fully understood by appellant. Ignorantia non excusat.

Id. 525 Pa. at 399-400, 581 A.2d at 165-66.

Nonetheless, the court in Simeone v. Simeone emphasized that it did not abrogate the requirement of full and fair disclosure in ante-nuptial agreements.

In discarding the approach of Geyer that permitted examination of the reasonableness of prenuptial agreements and allowed inquires into whether parties had attained informed understandings of the rights they were surrendering, we do not depart from the long standing principles that a full and fair disclosure of the financial positions of the parties is required. Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted. [In re Estate of Hillegass, 431 Pa. 144, 152-53, 244 A.2d 672, 676-77 (1968).] Parties to these agreements do not quite deal at arm’s length, but rather at the time the contract is entered into stand in a relation of mutual confidence and trust that calls for disclosure of their financial resources. Id. at 149, 244 A.2d at 675; Gelb Estate, 425 Pa. 117,120, 228 A.2d 367, 369 (1967). It is well settled that this disclosure need not be exact, so long as it is “full and fair.” Kaufmann Estate, 404 Pa. 131, 136 n. 8, 171 A.2d 48, 51 n. 8 (1961). In essence therefore, the duty of disclosure under these circumstances is consistent with traditional principles of contract law.

Id. 525 Pa. at 402-03, 581 A.2d at 166-67. The court then reiterated the presumptions and burdens with regard to the validity of ante-nuptial agreements.

If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence. Hillegass, 431 Pa. at 152-53, 244 A.2d at 676-77.

Id. 525 Pa. at 403, 581 at 167.

The court next explained that the agreement therein recited that the husband and wife had made full and fair disclosure. In that case, the agreement also included a list of the husband’s assets. The court reviewed the record and found support for the fact finder’s conclusion that the wife failed to prove that the list of assets understated the actual value of the husband’s assets. While the Supreme Court evaluated the list of assets, it did not hold that a scheduling of assets was required for a presumption of full disclosure. To so hold would require at least mention of, if not the express overruling of, established Pennsylvania Supreme Court precedent.

In In re Snyder’s Estate, 375 Pa. 185, 100 A.2d 67 (1953), a unanimous Pennsylvania Supreme Court reasoned:

[W]here the antenuptial agreement discloses that each of said parties has made a full and frank disclosure to the other as to the property owned by them and its nature and amount, such provision is prima facie evidence that a full and fair disclosure of his worth had been made, by the husband to the wife: McClellan’s Estate, [365 Pa. 401, 75 A.2d 595 (1950) ]. See also In re McCready’s Estate, 316 Pa. 246, 175 A. 554 [ (1934) ].
Therefore upon the laying down of the antenuptial agreement containing such provision, the burden was then cast upon the widow to show the contrary. This she did not do.

Id., 375 Pa. at 188, 100 A.2d at 68-69. Relying upon the Act of 1887, 28 P.S. § 322, the Court in In re Snyder’s Estate held that the widow was unable to challenge the validity of the antenuptial agreement which provided that each had made a full and frank disclosure to the other about the property each owned and about the rights they would have had in the absence of the agreement. Id. at 188, 100 A.2d at 69. The Act precluded a surviving party to an agreement from testifying against the agreement when the other party to it was dead. See id. at 189, 100 A.2d at 69, citing In re Inskipt’s Estate, 324 Pa. 406, 188 A. 127 (1936) and In re Robinson’s Estate, 222 Pa. 113, 70 A. 966 (1908) (trial court correctly determined that widow was an incompetent witness). The Court did not discuss any requirement of a listing of assets and certainly did not rely upon one.

The holding of In re Snyder’s Estate means that an antenuptial agreement is presumed valid if it provides that the future Husband and Wife have fully disclosed to one another the extent of their assets and the extent of possible marital rights in the absence of the agreement. See also Simeone v. Simeone, supra 525 Pa. at 403, 581 A.2d at 167 (“If an agreement provides that full disclosure has been made, a presumption of full disclosure arises.”); Karkaria v. Karkaria, 405 Pa.Super. 176, 188-89, 592 A.2d 64, 71 (1991), quoting In re Estate of Geyer, supra 516 Pa. at 506, 533 A.2d at 429 (“Such disclosure must include both the general financial pictures of the parties involved, and evidence that the parties are aware of the statutory rights which they are relinquishing.”); Adams v. Adams, 414 Pa.Super. 634, 607 A.2d 1116 (1992) (interpreting post-nuptial agreement under same principles of interpretation of ante-nuptial agreements; where agreement clearly mentions wife’s statutory rights, she was shown to be aware of those rights). None of these cases require that the agreement include a schedule of assets or list of marital rights. The statement of full and fair disclosure constitutes prima facie evidence of full and fair disclosure. The proponent of avoiding the agreement then bears the burden of proving an asserted fraud, misrepresentation or duress by clear and convincing evidence. Simeone, supra.

In the case at bar, the parties entered into an agreement which provided, in relevant part:

* * * # * *
WHEREAS, the parties to this AGREEMENT intend and desire to define certain property or property rights which each brings to the marriage, to the end that such property or property rights will be designated and set apart as the sole and separate property of the respective party; and,
WHEREAS, both parties to this AGREEMENT have made to each other a full and complete disclosure of the nature, extent, and probable value of all their respective property, estate, and expectancy; and,
‡ sfc J§C * # *
WHEREAS, the parties to this AGREEMENT desire to waive all rights and privileges that either of them might have as the surviving spouse of the other to take or share in any of the real or personal property of a deceased party hereto or in any of the real or personal property of the other spouse in the event of separation, living apart, divorce or annulment; now
THEREFORE, for and in consideration of the mutual covenants herein contained, the parties to this AGREEMENT do hereby expressly agree and stipulate as follows; to wit:
H. This AGREEMENT has been entered into by the parties hereto, will full knowledge on the part of each to the extent and probable value of all the assets and estate of the other and of all the rights that, but for this AGREEMENT, would be conferred by law, upon each of them in the assets or estate of the other by virtue of the consummation of the proposed marriage.
♦ * Jfr >f< *

Ante-nuptial Agreement, June 16, 1987 at 1, 2, 4.

This antenuptial agreement is presumptively valid because it states that each party made full disclosure to the other. Therefore, Wife bore the burden of proving, pursuant to a theory of duress, misrepresentation, or fraud, and with clear and convincing evidence, that the ante-nuptial agreement was invalid. She did not carry her burden.

The trial court recognized the validity of the agreement, but held that Simeone v. Simeone did not apply in an estate proceeding. Thus, the trial court placed upon daughters a burden of proving, with evidence beyond the face of the ante-nuptial agreement, that Husband had fully and fairly disclosed to Wife his assets and her rights at law. As the case in In re Snyder’s Estate involved a widow attempting to void an ante-nuptial agreement, that Pennsylvania Supreme Court case is controlling precedent on this precise issue. Therefore, the trial court erred in voiding the antenuptial agreement and in placing the burden of proof on daughters instead of on Wife, the opponent of enforcing the agreement. We reverse the trial court’s order.

Order reversed.

      . Although the record does not reveal whether judgment was entered on the order denying post-trial motions, we shall treat this appeal as one from a final order. See Bonavitacola v. Cluver, 422 Pa.Super. 556, 619 A.2d 1363, 1367 (1993), quoting Pa.R.A.P. 902 ("the failure to praecipe to enter judgment ‘does not affect the validity of the appeal’ ”).

      . In McClellan’s Estate, supra, the Supreme Court explained that the provision in the agreement which stated that full disclosure had been made was prima facie evidence of full and fair disclosure. However, a detailed statement that was appended to the agreement revealed that the Husband had materially misrepresented the value of his property. Therefore, the presumption of full and fair disclosure which the provision had created was overcome by the detailed schedule of assets and their false values.

      . The current version of the Dead Man’s Act, 42 Pa.C.S.A. § 5930 is "substantially a reenactment of ... 23 P.S. § 322.” See 42 Pa.C.S.A. § 5930 (Historical Notice, Official Source Note).

      . See also Karkaria v. Karkaria, supra 405 Pa.Super. at 185, 592 A.2d at 69 ("The Divorce Code’s policy of promoting economic equity and protecting financially dependent spouses in the context of a marital dissolution is virtually indistinguishable from that underlying the statutory right of a surviving spouse to elect against the decedent’s will.”).


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    629 A.2d 949
    COMMONWEALTH of Pennsylvania v. Nelson HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1993.
    Filed July 9, 1993.
    Reargument Denied Aug. 31, 1993.

      Suzanne M. Swan, Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Allegheny County. We affirm.

Following a non-jury trial before the Honorable Robert C. Gallo, appellant Nelson Hill was convicted of third-degree murder, a felony of the first degree. See 18 Pa.C.S. § 2502(c). The court sentenced Hill to a term of imprisonment of ten to twenty years. On appeal, Hill challenges the sufficiency of the evidence and the sentencing judge’s decision to sentence him in the aggravated range of the Sentencing Guidelines.

Hill argues the evidence presented was insufficient to support a third-degree murder conviction, claiming that he stabbed the victim in self-defense. Our standard of review is well settled:

[W]e must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt, [citation omitted]. The credibility of witnesses and the weight to be accorded the evidence are matters within the province of the trier of fact; the fact finder is free to believe all, some or none of the evidence, [citations omitted].

Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984).

The facts, viewed in the light most favorable to the Commonwealth as verdict winner, reveal that in the early morning hours of August 14, 1990, two Pittsburgh police officers were called to an apartment building where a fight had occurred. When the officers arrived at the scene, they were told that there was an injured person in a second floor apartment. The officers found the victim, Eugene Thomas, lying on the kitchen floor of the apartment, face down and unconscious. The officers observed blood all over the floor. The officers were told by two people on the premises that someone by the name of Nelson had been in the apartment and that they had observed him leave the building. The victim was transported to Presbyterian Hospital where he died a few days later from a major wound to the chest.

Following a search, the officers found a silver knife with a black handle and a five inch blade. The knife was found outside the apartment building underneath the tire of a parked car. Blood discovered on the knife was sent to the crime laboratory.

Later that same day, police headquarters received a telephone call from the suspect’s cousin, Ethel Mills. She stated that the suspect, Nelson Hill, was with her and that he wanted to turn himself in. The officers arrived at Ms. Mills’ home where Ms. Mills introduced the officers to Hill. The officers then accompanied Hill to Gateway View Plaza where Hill gave the officers the following statement: Hill, the victim, and two other men had been drinking alcohol on the day of the homicide. An argument ensued between the victim and Hill over the origin of a rumor that the victim had been sleeping with Clinton Peterson’s wife. Thereafter, Hill left the victim and went to a bar where he had a few drinks. After leaving the bar, Hill went to Peterson’s apartment to spend the night; Peterson’s apartment was “a hangout for everybody [in the neighborhood].” After letting Hill into the Peterson’s apartment, the victim brought up the rumor about Peterson’s wife and threatened to get his brother’s friends to beat up Hill and Hill’s brother because of the rumor. The victim grabbed Hill by his shirt collar and a struggle ensued. During the struggle, Hill stabbed the victim in the chest area. Both Hill and the victim fell to the floor. The victim landed on top of Hill. Hill apparently took another swing with the knife toward the victim’s chest area and somehow maneuvered to get out from underneath the victim and managed to stand up. Hill told the officer that he thought he had made contact with the victim’s chest area with the second swing of the knife. Hill stated that he told Peterson that he had stabbed the victim and asked Peterson to call a paramedic.

The victim was approximately six feet tall and weighed approximately 205 pounds; Hill weighed 130 pounds. One of the officers testified that Peterson told him that the victim was the initial aggressor and that Hill did not want to fight. Further, Hill indicated to the officer that he was intimidated by the victim’s size.

“Murder is an unlawful killing of another with malice aforethought, express or implied.” Commonwealth v. Hard-castle, 519 Pa. 236, 250, 546 A.2d 1101, 1107 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Third-degree murder is defined in the Crimes Code as “[all] other kinds of murder” other than first-degree murder or second-degree murder. 18 Pa.C.S. § 2502(c). The elements of third-degree murder, as developed by case law, are a killing done with legal malice but without the specific intent to kill required in first-degree murder. See Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). “Malice express or implied is the criteria and absolutely the essential ingredient of murder.” Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970).

The definition of malice, as set forth in Commonwealth v. Drum, 58 Pa. 9 (1868), includes “recklessness of consequences, . and a mind regardless of social duty, although a particular person may not be intended to be injured.” Id. at 15; see also Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978). Under the Crimes Code, 18 Pa.C.S. § 101 et seq., the offense of third-degree murder incorporates common law malice as an element. 18 Pa.C.S. §§ 2501, 2502(c).

“A person may be convicted of third-degree murder where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought.” Commonwealth v. Pigg, 391 Pa.Super. 418, 425, 571 A.2d 438, 441 (1990), alloc. denied, 525 Pa. 644, 581 A.2d 571 (1990); see also Commonwealth v. Seibert, 424 Pa.Super. 242, 622 A.2d 361 (1993). Malice may be inferred from the intentional use of a deadly weapon on a vital part of the body. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068, cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978). Further, malice imports the absence of justification. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). Thus, when a defendant claims self-defense, the Commonwealth must disprove that claim beyond a reasonable doubt. Hinchcliffe, 479 Pa. at 552, 388 A.2d at 1069. Hill’s claim of self-defense placed upon the Commonwealth the burden to prove beyond a reasonable doubt that he did not act in self-defense. Hinchcliffe, 479 Pa. at 552, 388 A.2d at 1069.

Here, the victim died as a result of a stab wound to the chest. The victim, although considerably larger in stature than the defendant, was unarmed. The evidence in this case indicates that Hill used a deadly weapon on a vital part of the victim’s body. Malice, therefore, could properly be inferred. See Hinchcliffe, supra; Pigg, supra; Seibert, supra.

Hill contends, however, that the inference of malice was negated by his theory of self-defense because the Commonwealth did not disprove, beyond a reasonable doubt, that his actions were necessary to defend himself. As Hill notes, when properly placed in issue, it is the Commonwealth’s burden to disprove self-defense beyond a reasonable doubt; a defendant has no burden to prove self-defense. See Commonwealth v. Gelber, 406 Pa.Super. 382, 391, 594 A.2d 672, 676 (1991), alloc. denied, 529 Pa. 667, 605 A.2d 332 (1992).

In order to meet its burden of disproving a defendant acted in self-defense, the Commonwealth must establish one of the following elements beyond a reasonable doubt:

(1) that the defendant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, or that appellant used more force than was reasonably necessary to save himself from death, great bodily harm, or the commission of a felony;
(2) that appellant provoked the use of force; or
(3) that appellant had a duty to retreat and that retreat was possible with complete safety.

18 Pa.C.S. § 505(b)(2); see also Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979); Commonwealth v. Zenyuh, 307 Pa.Super. 253, 453 A.2d 338 (1982). “Establishment beyond a reasonable doubt of any one of these three elements will insulate the conviction from a defense challenge to the sufficiency of the evidence in a case where self-protection is at issue.” Commonwealth v. Eberle, 474 Pa. 548, 554, 379 A.2d 90, 93 (1977).

In Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), the Pennsylvania Supreme Court observed:

[T]he requirement that the defendant be operating under a reasonable belief that he is in imminent danger of death, great bodily harm, or some felony, involves two elements. First, the defendant must have acted out of an honest, bona fide belief that he was in imminent danger. Second, the belief must be reasonable in light of the facts as they appeared to him. The first element is entirely subjective; the second element is entirely objective.

Id. at 334, 326 A.2d at 292 (citation omitted). The issues of whether a defendant acts out of an honest, bona fide belief and whether such belief was reasonable are questions properly resolved by the finder of fact.

Here, the record supports the trial court’s finding that at the time of the stabbing appellant did not believe he was in immediate danger of death or serious physical harm. The trial court found that although the victim grabbed Hill by the collar, there was no threat of serious bodily injury. The record supports this finding; the victim “grabbed [Hill] by his shirt collar ... when [Hill] stabbed the victim.” (N.T. 5/7/91, p. 34).

It is therefore clear that the trial court as finder of fact simply did not believe Hill’s assertion that he acted under the belief that deadly force was necessary. As the trial court stated in its opinion, “although the victim grabbed [appellant] by the collar and was physically larger than him, this does not invite one to grab a knife and use deadly force on a vital part of the body.” See Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990) (despite disparity in height and weight and the defendant’s claim that the victim had attempted to rape her, the Supreme Court found that the inference of malice from defendant’s use of a kitchen knife on the victim’s back and chest was not negated and the Commonwealth had disproved self-defense beyond a reasonable doubt; court upheld first-degree murder conviction).

Next, Hill argues that the sentencing court failed to adequately state its reasons on the record for sentencing in the aggravated range of the Guidelines. The Sentencing Code provides in part:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.

42 Pa.C.S. § 9721(b). Here, the sentencing court stated that it had reviewed the presentence report. The court also stated on the record that the court’s basis for sentencing as it did was the fact that the crime was committed with a deadly weapon, in addition to a consideration of the presentence report. In our considered opinion, we conclude that this satisfies the requirements of section 9721(b) of the Sentencing Code as well as the Pennsylvania Supreme Court’s decisions in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Commonwealth v. Devers, 519 Pa. 88, 96-98, 546 A.2d 12, 16 (1988).

In Riggins, the Court required that the sentencing court state its reason for the sentence on the record. In Devers, the Supreme Court was presented with the opportunity to clarify the Riggins requirement:

We emphatically reject, ... interpretations of our law in this area which call for separate, written opinions embodying exegetical thought. Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklist or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentencing report, the sentencing court’s discretion should not be disturbed.

Id. at 101-02, 546 A.2d at 18 (emphasis added). In Devers, this court had vacated and remanded for resentencing because the trial court had fulfilled its factfinding function, but not its explanation function. For doing so, when the sentencing judge had ordered and reviewed a presentence report, this court was criticized:

[F]or we fail utterly to see how, based on the Superior Court’s own statement of the case above, it is at all rational to believe that the sentencing judge could not have been so informed as to have arrived at a balanced judgment in imposing judgment.

Id. Simply put, the sentencing judge must state his or her reasons for the sentence imposed, Riggins, supra; a discourse on the court’s sentencing philosophy, as it applies to the defendant before it, is not required. The sentencing judge must explain its deviation from the guidelines if he or she chooses to sentence outside the guidelines. See 42 Pa.C.S. § 9721(b). Here, the court sentenced within the guidelines, albeit unthin the aggravated range. “The sentencing court is not required to state its reasons for sentencing within one guideline range over another.” Commonwealth v. Wright, 411 Pa.Super. 111, 115, 600 A.2d 1289 (1991).

In Devers, the Supreme Court evoked the words of Judge Price in Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979), noting his concern over “the increasingly fine web we are spinning around trial courts as regards sentencing procedures.” Id. at 391, 418 A.2d at 1345-46. Devers has refined our case law on the sentencing requirements and serves as a caution to this court to extricate itself from the web of our own refinements — “the voluminous progeny [which] represent an intolerable deviation from [the Supreme Court’s] original intent on this issue.” Devers, 519 Pa. at 102, 546 A.2d at 18.

Judgment of sentence affirmed.

      . 204 Pa.Code Chapter 303, reproduced at 42 Pa.C.S. § 9721.

      . Hill was sentenced to a term of imprisonment of ten to twenty years, clearly a legal sentence. See 18 Pa.C.S. § 1103(1).


text:
    629 A.2d 954
    Jody Page HALL, Appellee, NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1993.
    Filed July 12, 1993.
    Reargument Denied Sept. 16, 1993.

      James D. Jordan, Scranton, for appellant.
    Paul A. Barrett, Scranton, for appellee.
    Before CIRILLO, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this case, we are called upon to determine whether the trial court erred in interpreting an arbitration award and in confirming the award. Because the trial court did not abuse its discretion or commit an error of law, we affirm its order confirming the arbitration award.

The facts and procedural history of this case may be summarized as follows. Appellee, Jody Page Hall, was a passenger in an automobile when it was involved in a one car accident. Both the automobile and the driver were uninsured. Appellee had an automobile insurance policy with appellant, Nationwide Insurance Company. This policy provided uninsured motorist coverage up to $25,000.00 and stated: “If agreement cannot be reached with regard to liability or amount of damages, the matter will be decided by arbitration.” See Nationwide Insurance Policy at 11.

Appellee alleged personal injuries, and the parties submitted the case to common law arbitration and stipulated that appellee was fifty percent negligent in causing the accident. On September 10, 1991, the arbitrators decided in appellee’s favor in the amount of $75,000.00. See Arbitrators’ Letter, September 10, 1991. Eight days later, the chairman of the panel arbitrators further explained the award as follows:

As a follow up to my letter regarding the Arbitrators’ award in the above captioned, I would like to explain that we made our decision without regard to any policy limits or liability caps of any insurance policy. Also, the amount awarded, $75,000.00, is a gross award before the 50/50 split.
As always, please feel free to contact my office if you have any further questions or comments.

Arbitrators’ Letter, September 18, 1991.

Appellant paid appellee $25,000.00, the uninsured motorist coverage limit. Neither party challenged the arbitrators’ award, as explained by the arbitrators, within thirty days.

On February 13, 1992, appellee petitioned the Court of Common Pleas of Susquehanna County to confirm the arbitrators’ award and to enter judgment in the amount of $12,500.00. Appellee alleged, and appellant admitted, that “the arbitrators made their decision and awarded the sum of $75,000.00 to [appellee] with the proviso that the said amount would be reduced by fifty percent as previously stipulated by the parties through their respective counsel.” Petition to Confirm Arbitration Award and Enter Judgment, February 13, 1992, para. 6; Answer to Petition to Confirm Arbitration Award and Enter Judgment, March 17, 1992, para. 6.

In addition to filing an answer to the petition, appellant also filed a new matter. In the new matter, appellant alleged that appellee had not argued to the arbitrators that her uninsured motorist coverage was different than that which appeared on the declaration page of the policy. New Matter, March 17, 1992 at para. 14. Moreover, appellant alleged that “the panel was advised that [appellee’s] UM coverage was $25,000.” Id. Appellant requested the court to dismiss appellee’s petition.

Observing that neither party had challenged the award within thirty days from the date of the award, the court granted appellee’s petition. Appellant timely appealed.

Appellant presents the following questions for our review: DID COMMON PLEAS’ ENTRY OF JUDGMENT FOR $12,500 EXCEED THE PERMISSIBLE SCOPE OF REVIEW OF THE DECISION BY THE ARBITRATORS? WAS HALL’S PETITION TIMELY SO THAT COMMON PLEAS [COURT] HAD JURISDICTION TO DISPOSE OF IT?
DID THE NATIONWIDE POLICY REQUIRE THAT THE QUESTION OF UNINSURED MOTORIST LIMITS BE SUBMITTED TO THE ARBITRATORS AND WITHOUT ANY EVIDENCE TO THE CONTRARY, DID HALL WAIVE HER RIGHT TO HAVE THE POLICY LIMITS REFORMED TO AN AMOUNT MORE THAN THE STATED LIMIT?

Appellant’s Brief at 3.

Initially, we set forth our standard of review. Appellant does not ask us to review the arbitrators’ award. Instead, the thrust of appellant’s argument is that the trial court exceeded its scope of authority by confirming the arbitrators’ award and entering judgment in appellee’s favor for $12,-500.00. Therefore, in determining whether the trial court exceeded its scope of authority, we will reverse only for an abuse of discretion or error of law. See Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 459 A.2d 765 (1983) (Superior Court concluded that trial court erred in exceeding scope over arbitration); see also Savage v. Commercial Union Ins. Co., 326 Pa.Super. 204, 473 A.2d 1052 (1984) (Superior Court reversed due to trial court’s error of law).

Appellant’s three arguments rest upon one common premise: the September 18, 1991 letter from the arbitrators had only one reasonable meaning. Appellant proffers that the statement, “we made our decision without regard to any policy limits or liability caps of any insurance policy,” can only mean that the arbitrators determined damages and expected a court to mold appellee’s recovery according to the applicable insurance policy limit. Therefore, appellant contends that the trial court erred in molding the award in appellee’s favor. We disagree with appellant’s initial premise, and thus, with its three arguments.

“It is settled law in Pennsylvania that unless restricted by the submission, the arbitrators are the final judges of law and fact____” Brennan v. General Accident Fire & Life Assur. Corp., 524 Pa. 542, 550, 574 A.2d 580, 583 (1990) (citations omitted). Therefore, in a common law arbitration involving uninsured motorist coverage, the arbitrators are vested with jurisdiction to decide those questions which are necessary to determine whether and to what extent the insured could recover under the policy. Id.

In the instant case, the arbitrators awarded appellee $75,-000.00 on September 10, 1991. On September 18, 1991, they informed the parties that the award was before the “50/50 split” to which the parties had agreed. Neither party challenged the arbitrators’ award within thirty days.

In their supplemental letter, the arbitrators merely informed the parties that they disregarded the policy limits in reaching their award. The parties did not stipulate that appellee’s recovery should be limited to the policy limits, but the arbitrators were aware of the policy’s uninsured motorist coverage limit of $25,000.00.

The trial court interpreted the September 18, 1991 award letter to mean that the arbitrators awarded an amount greater than the policy limits. Such interpretation was reasonable and did not constitute an abuse of discretion.

In a common law arbitration case, the parties have only thirty days to challenge the arbitrators’ award. 42 Pa.C.S.A. § 7342(b). See Beriker v. Permagrain Products, Inc., 347 Pa.Super. 102, 500 A.2d 178 (1985). See also Elkins & Co. v. Swplee, 371 Pa.Super. 570, 538 A.2d 883 (1988) (citing Beriker, supra).

[42 Pa.C.S.A. § 7342(b) provides] that any issues a party wishes to raise must be raised within thirty days of the date of the award, since after that time it is mandatory for the trial court to confirm an award upon application of either party. This is in keeping with the thirty day time period for appeals established by the legislature in other types of cases.

Beriker, supra at 105, 500 A.2d at 179.

Appellant failed to challenge the award within thirty days, as required by 42 Pa.C.S.A. § 7342(b). Its failure to do so allowed the trial court to confirm the award. 42 Pa.C.S.A. § 7342(b); Beriker, supra; Suplee, supra Likewise, because the trial court properly confirmed the award, we have no cause to reverse its decision.

Order affirmed.

      . In its brief, appellant states that it had requested that the allegations in its New Matter be determined at a hearing pursuant to Pa.R.Civ.P. 209(b). Appellant's Brief at 7 n. 3. Appellant contends that the allegations should be deemed admitted. Our review of the record reveals no such motion by appellee. Therefore, for appellate purposes, none was made. See Kilian v. Allegheny County Distributors, 409 Pa. 344, 349, 185 A.2d 517, 519 (1962) (emphasizing importance of certifying facts of record). Even if we assume that the allegations in appellant’s New Matter were established, our analysis and outcome would not be affected.

      . This case was submitted for common law arbitration, as opposed to statutory arbitration, because the insurance policy did not expressly state and the parties did not otherwise agree that the Pennsylvania Arbitration Act should apply. Brennan v. General Accident Fire & Life Assur. Corp., 524 Pa. 542, 549, 574 A.2d 580, 583 (1990). The standard of reviewing a common law arbitration award is found at 42 Pa.C.S.A. § 7341.

      . Pursuant to the arbitrators' statement that the gross award was before the stipulated "50/50 split,” and pursuant to the parties’ reaffirmations of their stipulation that appellee was partially negligent, the trial court entered judgment such that appellee’s total recovery was $37,500.00. Appellant does not take issue with the court’s reduction of the award from $75,000.00 to $37,500.00. See generally Prudential Property & Cas. Ins. Co. v. Falligan, 335 Pa.Super. 195, 203 n. 4, 484 A.2d 88, 92 n. 4 (1984) (parties cannot contradict stipulation).

      . Appellant did not argue before the trial court, or on appeal, that the arbitrators’ award was ambiguous and in need of clarification. Had appellant contended that the award itself was ambiguous, the court would have had the opportunity to determine whether to accept evidence regarding the arbitrators’ intended award. See Converse v. Colton, 49 Pa. 346 (1865) (trial court should have allowed arbitrators to testify as to scope of award). However, since appellant did not put forth this argument, the trial court did not err in enforcing a reasonable interpretation of the arbitrators’ stated award.
      We note that another panel of this Court has recently discussed a related issue in the realm of statutory arbitration. In McIntosh v. State

        Farm Fire & Cos. Co., 425 Pa.Super. 311, 314, 625 A.2d 63, 64 (1993), the Court was presented with this question:
      Whether the trial court erred in not seeking clarification of the award pursuant to section 7311(a) of the [Pennsylvania Uniform Arbitration Act]?

        McIntosh, supra, which interpreted a statutory provision, is not determinative in this case where, but for appellant's failure to seek clarification, we would be presented with the question of whether the trial court should have sought clarification in a common law arbitration.


author: WIEAND, Judge:

text:
    629 A.2d 957
    O'BRIEN ENERGY SYSTEMS, INC., Appellant, v. AMERICAN EMPLOYERS' INSURANCE COMPANY, Federal Insurance Company, International Insurance Company, Liberty Mutual Insurance Company, National Union Fire Ins. Co. of Pittsburgh, Pa, Planet Insurance Company and Montgomery County, Pennsylvania, and Smithkline Beecham Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1993.
    Filed Aug. 3, 1993.

      Lee M. Epstein, Philadelphia, for appellant.

      Walter A. Stewart, Philadelphia, for Liberty Mut., appellee.
    James A.A. Pabarue, Jr., Philadelphia, for American Employers’, appellee.
    Richard W. Bryan, Arthur Burger, pro hac vice National Union Fire Ins. Co. of Pittsburgh, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

In this action for declaratory judgment to determine whether there was insurance coverage requiring one or more insurers to defend O’Brien Energy Systems, Inc. (O’Brien Energy) against a claim for property damage caused by the gradual migration of methane gas, the trial court entered summary judgment in favor of the insurers. O’Brien Energy appealed. For the reasons herein set forth, we affirm.

In 1979, SmithKline Beecham Corporation (SmithKline) purchased from National Gypsum Company certain quarry real estate in Montgomery County for the purpose of constructing and maintaining a research facility. Included in the sale was an assignment of a lease agreement which National Gypsum had with Montgomery County, pursuant to which the County conducted a landfill operation. According to the terms of the lease agreement, the County was required to (a) construct all necessary sanitary monitoring facilities and meet all requirements for the approved management of a sanitary landfill, and (b) indemnify the owner and hold it harmless from all claims for injury to persons or damage to property arising from the County’s use of the leased premises, including damages caused by methane gas.

O’Brien Energy develops, owns and operates alternative fuel and waste heat recovery projects. A significant part of its business involves the operation of gas to energy facilities. This entails the extraction of methane gas, which forms naturally in landfills, and the conversion thereof to power, which is then sold to nearby industries or public utilities. On October 13, 1983, O’Brien Energy entered into a Methane Gas Agreement with SmithKline and the County. Pursuant to this agreement, O’Brien Energy was granted a license to extract methane gas from the County’s landfills. The electricity and steam generated thereby were sold to SmithKline for use in its research facility. The agreement among the parties provided in pertinent part as follows:

Neither the purchase by [SmithKline] of electricity and steam from O’Brien nor the grant of a license to O’Brien to develop gas from the landfill property shall constitute a release of the County from its obligations to operate the landfill property so as to abate any nuisance from methane gas generated by decomposition of waste deposited on the landfill property____

SmithKline detected methane gas migration from the landfill in June, 1986 and commissioned consultants to make a landfill impact survey. In August, 1987, the consultants confirmed the migration of methane gas. In December, 1987, gas which had migrated onto SmithKline’s land caused an explosion within a utility conduit. On June 26, 1989, SmithKline commenced an action against the County to recover damages for and to prevent future damage from migrating methane gas. It alleged that the County had breached the terms of its lease and the Methane Gas Agreement by failing to control the migration of landfill gases. The County joined O’Brien Energy as an additional defendant. The defendant’s complaint contained five counts. It alleged causes of action for negligence and breach of contract and requested a mandatory injunction requiring O’Brien Energy to operate its gas recovery system at full capacity so as to prevent additional gas migration. The County also requested a declaratory judgment that the Methane Gas Agreement required O’Brien Energy to remedy the migration of methane gas; and, finally, the County requested indemnification for any liability which it might incur to SmithKline.

The present action for declaratory judgment was filed by O’Brien Energy against American Employers’ Insurance Company, Liberty Mutual Insurance Company, and National Union Fire Insurance Company of Pittsburgh to determine whether policies of comprehensive general liability insurance which they had issued required that they provide a defense for O’Brien Energy in the underlying action to which it had been named as an additional defendant. Thereafter, the parties filed motions for summary judgment. The trial court held that coverage for migrating gases was excluded by the terms of the several policies and entered judgment in favor of the insurers.

A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984).

The interpretation of an insurance contract is a matter of law for the court. The primary objective of contract interpretation is to ascertain and effectuate the intent of the parties as it is reasonably manifested by the language of their written contract. Toombs NJ Inc. v. Aetna Casualty & Surety Co., 404 Pa.Super. 471, 476-477, 591 A.2d 304, 307 (1991); J.H. France Refractories Co. v. Allstate Insurance Co., 396 Pa.Super. 185, 193, 578 A.2d 468, 472 (1990) (en banc), affirmed in part, reversed in part, — Pa.-, 626 A.2d 502 (1993). The words of an insurance policy which are unambiguous should be construed according to their plain and ordinary meaning. Harford Mutual Insurance Co. v. Moorhead, 396 Pa.Super. 234, 240, 578 A.2d 492, 495 (1990), allocatur denied, 527 Pa. 617, 590 A.2d 757 (1991). The court must assess the writing as a whole, and not in discrete units, when determining whether a writing is ambiguously drafted. Ready Food Products, Inc. v. Great Northern Insurance Co., 417 Pa.Super. 643, 646, 612 A.2d 1385, 1387 (1992). A contract term or provision may properly be deemed ambiguous if reasonable minds can differ as to its meaning. Id. While the court will not allow an overly-subtle or technical interpretation to defeat the reasonable expectations of the insured, it will not convolute the plain meaning of a writing merely to find an ambiguity. Id.

The insurer’s duty to defend the insured is dependent upon the coverage afforded by the insured’s policy. Harford Mutual Insurance Co. v. Moorhead, supra at 238, 578 A.2d at 494.

If the factual allegations of the complaint against the . insured state a claim which would potentially fall within the coverage of the policy, then the insurer has the duty to defend. As the Supreme Court has stated, “[i]t is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” In making this determination, the factual allegations of the complaint are taken to be true and the complaint is to be liberally construed with all doubts as to whether the claims may fall within the coverage of the policy to be resolved in favor of the insured.

Biborosch v. Transamerica Insurance Co., 412 Pa.Super. 505, 509, 603 A.2d 1050, 1052, allocatur denied, 532 Pa. 653, 615 A.2d 1310 (1992) (citations omitted).

The several policies issued to appellant by the appellees are comprehensive general liability policies which provide coverage for bodily injury and property damage liability, as well as personal injury and advertising liability. Each policy contains a pollution exclusion clause. The policy issued by American Employers’ states, in pertinent part:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, ____

An “occurrence” is defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” An exclusion thereto provided that the insurance coverage had no application

to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.

An endorsement to the American Employers’ policy extended indemnity to the insured for “personal injury” claims arising out of

A. false arrest, detention or imprisonment, or malicious prosecution;
B. the publication or utterance of a libel or slander or of other defamatory [or] disparaging material, or a publication [or] utterance in violation of an individual’s right of privacy, except publications or utterances in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the named insured;
C. wrongful entry or eviction, or other invasion of the right of private occupancy.

The policies issued by Liberty Mutual and National Union are similar, if not identical in all instances. Both contain pollution exclusion clauses as well as personal injury coverage. The policies issued to appellant by Liberty Mutual in 1984 and 1985 (policy numbers LG1-131-096550-034 and LG1-131096550-035) contain the same pollution exclusion and personal injury coverage as set forth above. A review of the policies included in the record reveals that Liberty Mutual changed its policies slightly in 1986 and 1987. The policies issued to appellant during that period (policy numbers LG1-131096550-036 and TB1-131-096550-037) contain a pollution exclusion which provides:

[This policy does not apply:]
(1) to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:
(a) At or from premises you own, rent or occupy;
(b) At or from any site or location used by or for you or others for the handling, storage, disposal, processing or treatment of waste;
(c) Which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for you or any person or organization for whom you may be legally responsible;
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

In 1987, the Liberty Mutual policy also set forth the personal injury liability coverage within the general liability form instead of by endorsement. “Personal injury” was defined in 1987 as an “injury, other than ‘bodily injury,’ arising out of,”

a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. Wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies;
d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; or
e. Oral or written publication of material that violates a person’s right of privacy.

The pollution exclusion clauses in the National Union policies are identical to those used by Liberty Mutual in 1986 and 1987. The National Union policies also contain an absolute pollution exclusion endorsement which excludes coverage for any

personal injury or property damage arising out of the discharge [or] release ... of toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water.

National Union defines “personal injury” in the same manner as Liberty Mutual’s 1987 policy.

The exclusionary language in the policies would seem to be controlling. The language is clear. There is no coverage for liability for damages caused by the escape of pollutants or the migration of gases from appellant’s operation unless, in the case of the American Employers’ policy, there has been a “sudden and accidental” discharge thereof. Here, it is clear that the basis for the underlying litigation is not the “sudden and accidental” discharge of polluting gases but the gradual migration thereof from the County’s landfill and/or appellant’s gas recovery project. Because the language of the policies is clear and unequivocal, there is no reason why the same should be avoided or ignored by a court which has been asked to interpret the same.

In Lower Paxton Township v. United States Fidelity and Guaranty Co., 383 Pa.Super. 558, 557 A.2d 393, appeal denied, 523 Pa. 649, 567 A.2d 653 (1989), the Superior Court considered a pollution clause and found that it was not ambiguous. The Court observed:

An ever-increasing number of courts have rejected the insured’s ambiguity argument and have found that sudden and accidental has a clear plain meaning that excludes coverage not only for intentional pollution but also for any unintentional release or dispersal of pollution that occurs gradually over time. See, e.g., United States Fidelity & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir. 1988); United States Fidelity & Guar. Co. v. The Murray Ohio Mfg. Co., 693 F.Supp. 617 (M.D.Tenn.1988); American Motorists Ins. Co. v. General Host Corp., 667 F.Supp. 1423 (D.Kan.1987); Claussen v. Aetna Casualty & Sur. Co., 676 F.Supp. 1571 (S.D.Ga.1987) (appeal pending, No. 87-8972 11th Cir.); International Minerals & Chem. Corp. v. Liberty Mutual Ins. Co., 168 Ill.App.3d 361, 119 Ill.Dec. 96, 522 N.E.2d 758, app. den., 122 Ill.2d 576, 125 Ill.Dec. 218, 530 N.E.2d 246 (1988). In fact, it has recently been noted that “... there is an emerging nationwide judicial consensus that the ‘pollution exclusion’ clause is unambiguous----” Technicon Electronics Corp. v. American Home Assurance Co., 141 A.D.2d 124, 533 N.Y.S.2d 91, 96 (2d Dept.1988).

Id. at 569, 557 A.2d at 398. To the same effect is Techalloy Company, Inc. v. Reliance Insurance Co., 338 Pa.Super. 1, 487 A.2d 820 (1984), allocatur denied, 338 E.D.Allo.Dkt. 1985 (Pa. Oct. 31, 1985), where the Court held that there could be no coverage for a chemical discharge in the face of a pollution exclusion unless the discharge was both sudden, meaning abrupt and lasting only a short time, and accidental, meaning unexpected. See also: Northern Insurance Co. of New York v. Aardvark Associates, Inc., 942 F.2d 189 (3rd Cir.1991); United States Fidelity & Guaranty Co. v. Korman Corp., 693 F.Supp. 253 (E.D.Pa.1988).

It must be said in this case, therefore, that the policy language in the several policies contains an unambiguous, all-encompassing disclaimer of coverage for damages caused by a migration of polluting gases. See: Guilford Industries, Inc. v. Liberty Mutual Insurance Co., 688 F.Supp. 792, 794 (D.Me. 1988) , aff'd, 879 F.2d 853 (1st Cir.1989); Alcolac Inc. v. California Union Ins. Co., 716 F.Supp. 1546, 1549 (D.Md. 1989) ; League of Minn. Cities Insurance Trust v. City of Coon Rapids, 446 N.W.2d 419, 421-422 (Minn.Ct.App.1989).

Appellant argues, however, that the several exclusionary clauses do not apply to a non-polluter. Here, O’Brien Energy suggests, the averments of the County are that O’Brien Energy was negligent in its design, installation, maintenance and operation of its gas to energy facility and not that it was an active polluter. There is no merit in this argument. Indeed, a similar argument was rejected by the Court of Appeals for the Third Circuit in Northern Insurance Co. of New York v. Aardvark Associates, Inc., supra. There, the insured had been engaged in the business of hauling industrial waste to sites for disposal. The Environmental Protection Agency discovered hazardous material at one of the disposal sites and commenced an action to recover cleanup costs from Aardvark pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607(a). When its insurance companies refused to provide coverage under policies of comprehensive general liability insurance, Aardvark commenced an action for declaratory judgment. The United States District Court for the Western District of Pennsylvania entered summary judgment in favor of the insurers, rejecting Aardvark’s argument that the pollution exclusion applied only to “active” polluters and not to “passive” polluters. The Third Circuit affirmed. It said:

[T]he clause in question excludes coverage for bodily injury or property damage “arising out of the discharge, dispersal, release or escape” of pollutants, subject to the exception for “sudden and accidental” discharges.... We have scrutinized this language for any hint that it is limited to “active” polluters or those who “actually release pollutants,” but we find no ambiguity and no support for Aardvark’s argument. The clause unambiguously withholds coverage for injury or damage “arising out of the discharge, dispersal, release or escape” of pollutants (emphasis added), not merely the insured’s discharge, dispersal, release or escape “of pollutants.” As the district court aptly wrote in Federal Insurance Co. v. Susquehanna Broadcasting Co., 727 F.Supp. [169, 177 (M.D.Pa.1989), modified, 738 F.Supp. 896 (M.D.Pa. 1990), aff'd, 928 F.2d 1131 (3d Cir.1991)], “the exclusion clause makes no reference at all to active polluters or passive polluters. The terms are foreign to the policies in question.” See also Powers Chemco, Inc. v. Federal Ins. Co., 74 N.Y.2d 910, 548 N.E.2d 1301, 549 N.Y.S.2d 650 (1989).

Northern Ins. Co. of New York v. Aardvark Associates, Inc., supra, 942 F.2d at 194. Accord: United States Fidelity and Guaranty Co. v. George W. Whitesides Co., Inc., 932 F.2d 1169 (6th Cir.1991).

We agree with this interpretation. The language of the several policies is clear. There is no coverage for claims which are based on the escape of pollutants, and this is so irrespective of the role which the insured is alleged to have played in the pollution.

It must also be observed that in this case appellant’s argument is based on a false premise. The averments of the County’s complaint are not that O’Brien Energy was a passive observer but, rather, that it was “guilty of acts and omissions that flatly resulted in the migration of landfill gas” and also that O’Brien Energy had an affirmative contractual obligation to prevent the migration of methane gas from the landfill.

Finally, appellant argues that an ambiguity in the coverage provided has been created by the added coverage for “personal injury” caused by “wrongful entry or eviction or other invasion of [the] right of private occupancy.” Because the SmithKline complaint against Montgomery County contains an averment that the County’s negligence has caused both an interference with SmithKline’s use and enjoyment of its property, as well as property damage, it is argued that the claim is based on a trespass or nuisance which is equivalent to a “wrongful entry” or other invasion of the right of private occupancy. We reject this argument. First and foremost, the argument fails to consider the effect of the absolute exclusion for polluting gases. This exclusion, as we have observed, is clear and unambiguous. It is equally applicable to claims for personal injury caused by a wrongful entry or eviction. The insurer did not eliminate the exclusionary language by providing additional coverage of the type listed in the “personal injury” endorsement.

In County of Columbia v. Continental Insurance Co., 189 A.D.2d 391, 595 N.Y.S.2d 988 (1993), an underlying complaint had alleged that leachate contamination from the insured’s landfill had polluted another’s soil, air, ground and surface waters and constituted a continuing trespass and nuisance. A policy of liability insurance contained a personal injury liability endorsement by which the insurer had agreed to provide coverage for liability claims based on personal injury, which was defined to include, inter alia, an injury arising out of the “wrongful entry or eviction or other invasion of the right of private occupancy.” The court, in an action to determine coverage, held that (1) an action for environmental damage to real estate did not constitute a “wrongful entry or eviction or other invasion of the right of private occupancy,” and (2) the pollution exclusion was applicable to exclude coverage. The court said:

Of greatest significance here is the fact that [the insurers’] policies provide comprehensive general liability coverage for property damage which, were it not for its specific pollution exclusion, would clearly cover [the insured’s] claim. Under the circumstances, to extend the personal injury coverage to occurrences which fall squarely within the property damage coverage would have the effect of rendering the pollution exclusion meaningless.

Id. 595 N.Y.S.2d at 991. Other jurisdictions have construed and applied “personal injury” liability endorsements in a similar manner. See: Gregory v. Tennessee Gas Pipeline Co., 948 F.2d 203 (5th Cir.1991); American Universal Insurance Co. v. Whitewood Custom Treaters, Inc., 707 F.Supp. 1140, 1144 (D.S.D.1989) (the pollution exclusion carries over into the endorsement providing “personal injury” liability coverage). Cf. Decorative Center of Houston v. Employers Casualty Co., 833 S.W.2d 257 (Tex.Ct.App.1992). Contra: Pipefitters Welfare Educational Fund v. Westchester Fire Insurance Co., 976 F.2d 1037 (7th Cir.1992); Titan Holdings Syndicate, Inc. v. City of Keene, New Hampshire, 898 F.2d 265 (1st Cir.1990).

The personal injury endorsement extends liability coverage to the specific torts there enumerated. It affords coverage only for defined risks. These include torts of a recognized type involving damages which can be lumped under the descriptive term “personal injury.” The coverage does not provide indemnification for environmental damage claims based on migrating gases. Coverage for such claims is specifically excluded by the pollution exclusion. To hold otherwise would emasculate the clear and unambiguous provisions of the pollution exclusion and could not be justified except as an unwarranted straining to reach a result different than that intended by the parties. The order of the trial court, therefore, will be affirmed.

Appellant has requested that costs be assessed against appellees for requiring unnecessary material to be placed in the reproduced record. Pennsylvania R.A.P. 2155 provides as follows:

Rule 2155. Allocation of Cost of Reproduced Record
(a) General rule. Unless the parties otherwise agree the cost of reproducing the record shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for a determination of the issues presented the appellant may so advise the appellee and the appellee shall advance the cost of including such parts. If the appellee fails to advance such costs within ten days after written demand therefor, the appellant may proceed without reproduction of the parts of the record designated by appellee which the appellant considered to be unnecessary.
(b) Allocation by court. The cost of reproducing the record shall be taxed as costs in the case pursuant to Chapter 27 (fees and costs in appellate courts and on appeal), but if either party shall cause material to be included in the reproduced record unnecessarily, the appellate court may on application filed within ten days after the last paperbook is filed, in its order disposing of the appeal impose the cost of reproducing such parts on the designating party.

After careful consideration, we are persuaded that the appellee insurance companies, in fact, requested the reproduction of matters unnecessary to meaningful appellate review. Our review entailed primarily an examination of the policy provisions. The unnecessary material is contained in volumes 3 and 4 of the reproduced record and involved printing costs of $1,451.00. We will assess this amount against the appellees.

Order affirmed. Appellees shall reimburse appellant for the cost of reproducing unnecessary portions of the record in the amount of $1,451.00.

      . In 1986, Liberty Mutual changed its pollution exclusion to that as stated by endorsement. The new exclusion was not incorporated into the general liability form until 1987.


text:
    629 A.2d 965
    Kelce MOSLEY, James M. Rizor, Lloyd A. Rohanna, Stephen C. Love and Robert Elliott, Individuals, Appellants, v. OBSERVER PUBLISHING COMPANY, A Corporation and David F. Pollock, Appellees.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Aug. 3, 1993.

      Joseph J. Hinchliffe, Pittsburgh, for appellants.
    Clarence A. Crumrine, Washington, for appellees.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

In this action to recover damages for defamation, the trial court entered summary judgment against the plaintiff-public officials and in favor of the Observer Publishing Corporation, publisher of the Observer-Reporter, a daily newspaper of general circulation in Washington and Greene Counties. On appeal, we affirm. A public newspaper is privileged to publish information of public concern contained in an affidavit for search warrant so long as the report is fair and accurate.

In news stories appearing in editions of the Observer-Reporter on June 1, 1990, June 6, 1990 and June 12, 1990, there were reports of the annual audit of Greene County funds. Also appearing were stories about investigations being made by the District Attorney and Federal Bureau of Investigation into possible investment kickbacks and the issuance of search warrants to assist therein. Thus, the article of June 1, 1990, announced in its headline, “FBI, DA Probe Allegations of Investment Kickbacks”, and the article, in pertinent part, reported as follows:

The FBI and Greene County District Attorney David F. Pollock are trying in investigating [sic] allegations that county officials received kickbacks from investments made with county money in 1988.
Information about the investigation was obtained by the Observer-Reporter from a search warrant issued by Pollock on April 6 for the county’s financial statements for 1988.
The warrant was served on M. James Milinovich of Milinovich and Co Inc. Waynesburg which conducted the county’s 1988 audit.
According to the search warrant, the county used money from the general fund account and “leveraged” or borrowed additional money to invest in U.S. Treasury bonds with values of either $1 million or $2 million. The bonds were traded daily on what is called “day trades,” beginning Sep. 3, 1988.
Two unidentified investment experts hired by Milinovich, “are supposedly of the expert opinion” the county’s transactions could have raised $225,000 in interest, the warrant states.
However, the county received only $25,000 and the remainder was paid in the brokerage firm for fees and commissions, it continues.
The district attorney’s office and Federal Bureau of Investigation are acting “to determine whether or not any unlawful fees were paid back to county officials,” the warrant states.

The second article was entitled, “Broker Says Day Trading on Investments Not Wise.” The article reported on an interview conducted with a local broker who questioned the the prudence of day-trading U.S. Treasury securities by a county government. The article also repeated the investigation of “kickbacks” by county officials which had been contained in the District Attorney’s search warrant.

The headline of the final article stated, “Controller: Commissioners Traded Bonds After Warning.” This article was based on an interview with Greene County Controller John Stets, who was quoted as stating that Greene County officials had agreed to stop day-trading U.S. Treasury securities with public funds in October of 1988 but that the trading had been resumed in February of 1989. This article also referred to the search warrant and the information contained therein.

Kelce Mosley, James M. Rizor, Lloyd A. Rohanna, who were county commissioners, and Stephen C. Love and Robert Elliott, who were county administrator and county treasurer respectively, filed a defamation action against the publisher and the District Attorney, David F. Pollock. Following extensive discovery, the trial court granted summary judgment in favor of the Observer Publishing Company, and the plaintiffs appealed.

Summary judgment can properly be entered only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Curran v. Philadelphia Newspapers, 497 Pa. 163, 177, 439 A.2d 652, 658-659 (1981). The motion for summary judgment has an important function in the context of a defamation case. This was recognized in Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967), where the Court said:

Summary judgment serves important functions which would be left undone if courts too restrictively viewed their power. Chief among these are avoidance of long and expensive litigation productive of nothing, and curbing the danger that the threat of such litigation will be used to harass or to coerce a settlement.
In the First Amendment area, summary procedures are even more essential. For the stake here, if harassment succeeds, is free debate. One of the purposes of the [New York] Times [v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ] principle, in addition to protecting persons from being cast in damages in libel suits filed by public officials, is to prevent persons from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government____ Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors. And to this extent debate on public issues and the conduct of public officials will become less uninhibited, less robust, and less wide open, for self-censorship affecting the whole public life is “hardly less virulent for being privately administered.”

Id. at 968 (citations omitted).

“Upon the theory that it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government.” Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 588 (1963). See also: Binder v. Triangle Publications, Inc., 442 Pa. 319, 324, 275 A.2d 53, 56 (1971). Because the privilege is a qualified one, however, it can be lost if the privilege is abused. Sciandra v. Lynett, supra; Binder v. Triangle Publications, supra.

If the newspaper account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate. Further, it is not essential that the governmental proceedings or, as in this case, the official report, be set forth verbatim by the newspaper. A summary of substantial accuracy is all that is required.

Sciandra v. Lynett, supra 409 Pa. at 600, 187 A.2d at 588-589 (citations omitted).' See also: Restatement (Second) of Torts §611. In Sciandra, the defendant-newspaper had published a series of articles which identified the plaintiff as attending and participating in a “gangland” or “hoodlum” meeting in upstate New York. One of these articles recited that the plaintiff had been previously arrested on rape charges and that the plaintiff had a number of “reputed associates.” The source of the articles was a public report authored by the New York Commissioner of Investigation which detailed the history, activities, and associations of those who attended the meeting. The plaintiff sued, claiming that it was not true that he had a prior arrest for rape and that he had been defamed by the articles. Upon comparing the article to the public report, the Supreme Court concluded that the publication was privileged as “clearly a reproduction and/or fair account of what was said in the [report] itself.” Id. 409 Pa. at 604, 187 A.2d at 591. With regard to the rape charge, the Court observed that the information, in fact, had been incorrect and the plaintiff obviously had been misidentified. Nevertheless, because the newspaper had merely quoted the report itself, the privilege had not been abused.

More recently, in Oweida v. Tribune-Review Publishing Co., 410 Pa.Super. 112, 599 A.2d 230 (1991), allocatur denied, 529 Pa. 670, 605 A.2d 334 (1992), the Superior Court had occasion to reexamine the historical underpinnings of the so-called privilege of fair reporting and said:

The fair report privilege developed as an exception to the common law rule that the republisher of a defamation was subject to liability similar to that risked by the original defamer. Pennsylvania had adopted the republication rule by the turn of the century, and no case brought to our attention suggests that Pennsylvania has abandoned it. With this rule, the law indulged the fiction that the republisher of a defamatory statement “adopted” the statement as his own. The common law regime created special problems for the press. When a newspaper published a newsworthy account of one person’s defamation of another, it was by virtue of the republication rule, charged with publication of the underlying defamation. Thus, although the common law exonerated one who published a defamation as long as the statement was true, a newspaper in these circumstances traditionally could avail itself of the truth defense only if the truth of the underlying defamation were established.
To ameliorate the chilling effect on the reporting of newsworthy events occasioned by the combined effect of the republication rule and the truth defense, the law has long recognized a privilege for the press to publish accounts of official proceedings or reports even when these contain defamatory statements. So long as the account presents a fair and accurate summary of the proceedings the law abandons the assumption that the reporter adopts the defamatory remarks as his own.

Id. 410 Pa.Super. at 118-119, 599 A.2d at 234, quoting Medico v. Time, Inc., 643 F.2d 134, 137-138 (3rd Cir.1981), cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981) (footnotes omitted).

Three reasons have been advanced for the fair report privilege.- Medico v. Time, Inc., supra at 140; Sowle,. Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U.L.Rev. 469, 483 (1979). The first is the agency theory. The rationale of this theory is that the media serves as an agent for citizens who have a right to attend public meetings and inform themselves of what transpired. Secondly, the privilege acts as a supervisory function which recognizes both the public’s duty to scrutinize official conduct and the security which publicity gives to the proper administration of justice. The final basis for the fair report privilege is the public’s interest in being fully informed of important issues and controversies. Medico v. Time, Inc., supra; Sowle, supra.

This privilege extends to the publication of information contained in an affidavit and search warrant used by a district attorney in the investigation of possible misconduct by one or more county officials. Citizens are entitled to be informed regarding the management of tax dollars by public officials. A vigorous press plays a crucial role in advancing issues of public concern for the edification of the members of the public. This information may well be contained in affidavits supporting search warrants. As the Pennsylvania Supreme Court observed,

Public access to arrest warrant affidavits fosters important policy considerations, such as discouraging perjury, enhancing police and prosecutorial performance, and promoting a public perception of fairness in the arrest warrant process.

PG Publishing Company v. Commonwealth, 532 Pa. 1, 5, 614 A.2d 1106, 1108 (1992).

That the fair report privilege extends to information contained in search warrants and affidavits for search warrants used in public investigations has been recognized by the courts of other jurisdictions. See: Lavin v. New York News, Inc., 757 F.2d 1416 (3rd Cir.1985) (FBI affidavits accompanying application for search warrant); Medico v. Time, Inc., supra (FBI affidavits implicating elected official); Seymour v. A.S. Abell Co., 557 F.Supp. 951 (D.Md.1983) (internal police investigation and administrative charges regarding alleged misappropriation of police property); Pearce v. Courier-Journal, 683 S.W.2d 633 (Ky.App.1985) (search warrant affidavit of drug enforcement officer); Reed v. Northwestern Publishing Co., 129 Ill.App.3d 133, 84 Ill.Dec. 305, 471 N.E.2d 1071 (1984) (report summarizing testimony before and findings by grand jury). The privilege is also recognized by the Restatement (Second) of Torts § 611, comment d, which suggests that the privilege extends to any action taken by any officer of any State or any of its subdivisions.

The privilege is qualified, however, and can be forfeited if the report is inaccurate or unfair. Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069, 1085 (3rd Cir.1988). In Oweida v. Tribune-Review Publishing Co., supra, the Superi- or Court set forth the standard for determining whether the fair report privilege has been forfeited. The court said:

The question of whether the fair report privilege has been abused has been distilled by the federal courts to a “gist” or “sting” test. “A statement is substantially accurate if its ‘gist’ or ‘sting’ is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.” Williams v. WCAU-TV, 555 F.Supp. 198, 202 (E.D.Pa.1983). The question is whether a reasonable person, comparing the complaint and the article as a whole, could conclude that the article was a fair and accurate rendition of the complaint. If the reader could conclude that the article carries with it a materially greater “sting”, then the fair report privilege has been abused and is thus forfeited. See: Lavin v. New York News, Inc., supra, 757 F.2d at 1419-1420. “An unfair summary in the present context is one that amplifies the libelous effect that publication of the government report verbatim would have on a reader who read it carefully — that carries a ‘greater sting’.” Lavin v. New York News, Inc., supra, 757 F.2d at 1426 (Becker, J., dissenting), quoting Brown & Williamson Tobacco Corporation v. Jacobson, 713 F.2d. 262, 271 (7th Cir.1983).

Id. 410 Pa.Super. at 129, 599 A.2d at 239.

In this case, the newspaper article contained no greater “sting” than the affidavit sworn to by District Attorney Pollock. The affidavit contained the following:

Your affiant is the District Attorney of Greene County. Affiant has received information from M. James Millinovich [sic], C.P.A. and Governmental Audit Director of Millinovich [sic] and Co., Inc., known personally by the affiant, that the County of Greene has levraged [sic] the general fund account in order to invest in U.S. Treasury Bonds with values of either one million or two million dollars and are traded daily. These transactions began on September 3, 1988. Two experts in the field of governmental investments were retained by M. James Millinovich [sic] and are supposedly of the expert opinion that the county’s transactions would have raised some Two Hundred and Twenty-Five Thousand ($225,000.00) Dollars in interest; whereupon only one-ninth of the interest or approximately Twenty Five Thousand ($25,000) Dollars was actually paid to the County of Greene. The other eight-ninths of the investment would have been paid to a brokerage firm for fees and/or commissions.
Your affiant is acting in conjunction with the Federal Bureau of Intestigations [sic] to determine whether or not any unlawful fees were paid back to county officials.

A comparison of this affidavit with the news story published by the Observer-Reporter discloses that the newspaper accurately reported the averments of the affidavit without embellishment and without editorial comment. It reported, as recited in the affidavit, that an investigation was being made by the FBI and the District Attorney, that investment experts were of the opinion that Greene County’s investments should have earned more income, that excessive brokerage fees may have been paid, and that inquiries were being made to determine whether unlawful fees had been paid back to county officials. Whether the averments in the affidavit were correct or incorrect, the newspaper was privileged to report the information contained therein. See: Binder v. Triangle Publications, Inc., supra at 326, 275 A.2d at 57; Sciandra v. Lynett, supra at 602, 187 A.2d at 589; Oweida v. Tribune-Review Publishing Co., supra at 128, 599 A.2d at 238; DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 541, 544 A.2d 1345, 1361 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 724 (1989), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989); Restatement (Second) of Torts § 611 comment a (“privilege exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false.”). Although the news articles may have contained a sharp “sting,” it is clear that their “sting” or “gist” was no greater than the information contained in the search warrant itself.

Appellants argue that the privilege was abused because: (1) the reporter who wrote the story misconstrued the terms of the search warrant affidavit and failed to furnish Stephen Love, the county administrator, with a copy of the affidavit before asking him to comment; (2) the newspaper failed to investigate a possible link between the district attorney and a local banking family which was or may have been harmed by the day trading of Greene County investments; and (3) the newspaper failed to verify the facts before publishing the story. These factors, however, were insufficient to deprive the defendant newspaper of the privilege to report the investigation so long as it did so fairly and accurately. This is so even if facts asserted in the search warrant affidavit were eventually shown to be inaccurate. Sciandra v. Lynett, supra. The investigation was undoubtedly a matter of great public concern, pertaining as it did to public funds and the conduct of public officials. The reporting thereof by the newspaper was determined by the newsworthiness of the story and not by any desire to harm county officials personally. Thus, the story is bereft of any suggestion of wrongdoing other than that contained in the affidavit for a search warrant to aid in the investigation. To hold that the defendant newspaper was liable for defamation damages under such circumstances would be to nullify the fair report privilege and impose a censorship which prevented the media from reporting investigations of public officials.

We hold, therefore, that the defendant newspaper was privileged to report fairly and accurately that information which was contained in an affidavit for a search warrant issued to aid the District Attorney in an investigation involving matters of public concern. That the privilege was not abused is so clear that reasonable minds cannot differ. Therefore, the trial court could properly enter summary judgment in favor of the defendant newspaper. See: Lavin v. New York News, Inc., supra; Restatement (Second) of Torts § 619(2), comment b.

Judgment affirmed.

      . A judgment on the pleadings was entered by the trial court in favor of Pollock, and this was affirmed on appeal by the Superior Court. See: Mosley v. Observer Publishing Co., 422 Pa.Super. 255, 619 A.2d 343 (1993).

      . The defendant also raised a constitutional privilege under the United States Supreme Court decision in New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964) (constitutional guarantees prohibit public officials from "recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice.'"). However, we need not address this issue, as we can decide the case on non-constitutional grounds. Binder v. Triangle Publications, Inc., supra (where case decided on the basis of the fair report privilege it was unnecessary to reach the merits of the constitutional issue). See also: Lavin v. New York News, Inc., supra (3rd Cir.1985) (fair report privilege provides "extra layer” of protection to media defendants).


text:
    629 A.2d 971
    Kelce MOSLEY, Lloyd Rohanna, James Rizor, Robert Elliott and Stephen Love, Appellees, v. David F. POLLOCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 14, 1993.
    Filed Aug. 6, 1993.

      David F. Pollock, in pro per.
    William R. Nalitz, Waynesburg, for appellees.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a District Attorney is entitled to be reimbursed under 42 Pa.C.S. § 8547 for counsel fees incurred in defending an action by county officials to remove him from an ongoing criminal investigation into county investment practices. The trial court held that the statute did not contemplate such reimbursement and dismissed a petition therefor. After careful review, we affirm.

David F. Pollock, Esquire, is the District Attorney of Greene County. In the year 1990, he was engaged in a criminal investigation regarding the manner in which county funds were being invested. As a consequence, he was named as a defendant in two separate legal actions commenced by the county solicitor on behalf of Kelce Mosley, Lloyd Rohanna and James Rizor, county commissioners; Robert Elliott, county treasurer; and Stephen Love, county administrator. In one of these actions a claim was made against Pollock for defamation. The trial court granted preliminary objections in the nature of a demurrer in this action in favor of Pollock, and the order was affirmed on appeal. See: Mosley v. Observer Publishing Co., 422 Pa.Super. 255, 619 A.2d 343 (1993). Pollock thereafter petitioned the court to be reimbursed by Greene County for the counsel fees which he had incurred in defending the defamation action. This petition was allowed, and Greene County did not appeal. It is not directly involved in the present appeal.

In a second action filed by officials of Greene County, the court was requested to remove Pollock from the investigation because of an alleged conflict of interest. In his place, the court was urged to direct the Attorney General to continue the investigation. A demand was also made against Pollock, in an amended petition, for the award of legal fees and costs. Pollock retained independent counsel to represent him in the action. The trial court found no basis for the action but concluded nevertheless that Pollock should discontinue his investigation of the plaintiff officials and that the Attorney General should be requested to intervene and prosecute if investigation revealed that there had been criminal conduct. It does not appear that Pollock was required by the court’s order to pay legal fees or costs to Greene County. A petition for reimbursement of counsel fees incurred by Pollock in the amount of $4,494.38, however, was denied. It is this denial which is the subject of the present appeal.

In urging that counsel fees be paid by the County, Pollock relies on the provisions of 42 Pa.C.S. § 8547. The provision of the statute is as follows:

§ 8547. Legal assistance
(a) Mandatory provision of legal assistance generally. — When an action is brought against an employee of a local agency for damages on account of an injury to a person or property, and it is alleged that the act of the employee which gave rise to the claim was within the scope of the office or duties of the employee, the local agency shall, upon the written request of the employee, defend the action, unless or until there is a judicial determination that such act was not within the scope of the office or duties of the employee.
(b) Optional provision of legal assistance generally.— When an action is brought against an employee of a local agency for damages on account of an injury to a person or property, and it is not alleged that the act of the employee which gave rise to the claim was within the scope of his office or duties, the local agency may, upon the written request of the employee, defend the action, and such undertaking to defend thereafter may be withdrawn only with the approval of the court. If the local agency has refused a written request to defend the action, and it is judicially determined that the act was, or that the employee in good faith reasonably believed that such act was, within the scope of the office or duties of the employee and did not constitute a crime, actual fraud, actual malice or willful misconduct, the local agency shall reimburse the employee for the expenses of his legal defense in such amounts as shall be determined to be reasonable by the court.
(c) Control of litigation. — When, pursuant to subsection (a) or subsection (b), the local agency defends an action against an employee thereof at the request of the employee, it may assume exclusive control of the defense of the employee, keeping him advised with respect thereto, and the employee shall cooperate fully with the defense, except that in situations where the legal counsel provided by the local agency determines that the interests of the employee and the local agency conflict, the local agency shall obtain the express written consent of the employee for such interested representation or shall supply independent representation. 1980, Oct. 5, P.L. 693, No. 142, § 221(1), effective in 60 days.

[1] The statute, it is readily apparent, was intended to protect a public employee who is sued “for damages on account of an injury to a person or property” which occurred while the employee was engaged in the scope of his or her office or duties. Pollock has conceded that he would not have been entitled to hire independent counsel solely to defend against a petition that he be removed from a criminal investigation in favor of the Attorney General. The defense of such an action would be within the scope of the official duties and responsibilities of the District Attorney’s office and would not support the payment of counsel fees to independent counsel. Pollock argues, however, that when the petition was amended to include a claim for legal fees and costs, he was required to defend personally against a claim for damages made against him because of acts performed in the scope of his office and duties. When this occurred, he contends, he became entitled to hire independent counsel whose fees should be paid by Greene County.

The statute, as interpreted by the Supreme Court, was intended to guarantee that public employees suffer no financial loss while defending acts performed within the scope of their employment. Wiehagen v. Borough of North Braddock, 527 Pa. 517, 523-524, 594 A.2d 303, 306 (1991). To accomplish this purpose, emphasis must be placed on that portion of the statute which provides for indemnification for damages incurred as a result of acts within the scope of the employee’s office or duties. Less emphasis may be placed on the nature of the claim for damages which was made. It follows that where a District Attorney is sued personally for damages, including legal fees and costs, he is entitled to employ independent counsel to defend himself and be reimbursed for the cost thereof.

We disagree, however, with appellant’s contention that after a claim has been made for legal fees and costs he can then abdicate his responsibilities as District Attorney and hire independent counsel, at the County’s expense, to defend against the petition to restrain him from further investigating the County’s investment practices. He was being paid as District Attorney to perform the duties of his office, and neither the statute nor common sense will allow him to assess the taxpaying public twice for the same services.

Unfortunately, appellant’s claim is in a form which makes it impossible to determine whether any part of the fees of independent counsel were attributable to the defense of damage claims made against appellant individually. Because he failed to plead or establish the separate cost of counsel fees incurred in defending the claim for damages made against him personally, the trial court could properly deny his petition for counsel fees. He was not entitled to employ independent counsel to defend against the action to compel removal of the District Attorney from the investigation of investment practices in Greene County.

Order affirmed.