text:
    644 A.2d 1259
    Nancy L. BRATTON, Appellee, v. Charles B. JURY, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1994.
    Filed July 21, 1994.

      Richard D. Gearhart, Clearfield, for appellant.
    J. Richard Mattern, II, Clearfield, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

In the present appeal, we must apply the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, 23 Pa.C.S.A. § 4501 et seq., to an unusual set of facts. Appellant, a resident of South Carolina, was ordered by the Court of Common Pleas of Clearfield County to pay child support in the amount of $620.00 for the maintenance of his two children who currently reside with their maternal grandparents in Clearfield County. Herein, Appellant questions: 1) Whether appellee, the maternal grandmother who has physical custody of the children, could legally bring a child support action; and 2) Whether the lower court lacked jurisdiction since the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”) and Pa.R.C.P. 1910.2 provide that the proper forum for this support action is in South Carolina. Upon review, we find that the lower court erred in entering a support award, and we are compelled to hold that the court should have transferred this support action to the courts of South Carolina.

The record reveals the following facts: appellant and Jodi L. Jury are the parents of the minor children sub judice and were divorced in 1988. By agreement, primary physical custody of their son was granted to appellant, while physical custody of their two daughters was vested in Jodi Jury. In addition, appellant agreed to pay Jodi Jury child support of $300.00 per month, which was taken directly from his pay as a United States Marine. Appellant has complied with this agreement which was incorporated into the parties’ divorce decree.

In 1993, the daughters were removed from Jodi Jury’s home in South Carolina and placed in the protective custody of the Beaufort County Department of Social Services. An investigation found Jodi Jury and her paramour to be perpetrators of neglect, abandonment and verbal abuse. Jodi’s paramour was also found to be the perpetrator of the “threat of sexual abuse” of the children. On April 23, 1993, the Beaufort County Family Court transferred primary physical custody of the two daughters to appellee, Nancy Bratton, and Gary Bratton, of Philipsburg, Pennsylvania. The Brattons are the children’s maternal grandparents. The South Carolina court ordered that legal custody of the minor children would remain with Beaufort County Department of Social Services until such time as legal custody could be transferred to Clearfield County Children & Youth Services. The court also ordered appellant to make his child support payments to appellee. As. of the present date, legal custody of the minor children remains with the Beaufort County Department of Social Services since it appears that Clearfield County Children & Youth Services has refused to accept legal custody of the children.

On May 10, 1993,' appellee filed her child support complaint in the Court of Common Pleas of Clearfield County. Following a support conference on June 11, 1993, the Domestic Relations Office of Clearfield County, in accordance with Pennsylvania’s child support guidelines, recommended that appellant pay support in the amount of $620.00 per month, plus $25.00 per month towards arrearages. See, Pa.R.C.P. 1910.16-1 et seq. (Sets forth the support guidelines and their proper application).

Appellant requested and was granted a hearing de novo since he was unable to attend the June 11 conference. At the de novo hearing, appellant asserted that the Clearfield Court of Common Pleas lacked jurisdiction to issue a support order since legal custody of the children remained with the Beaufort County Department of Social Services and he was a resident of South Carolina through the relevant time period. Nevertheless, the lower court determined it had jurisdiction over the matter since the children were residing in Pennsylvania, and the court ordered appellant to pay child support in accordance with the prior recommendation of the Clearfield County Domestic Relations Office.

First, appellant cites Pa.R.C.P. 1910.3 and asserts that only a person who has legal custody of a child can bring a support action on the child’s behalf. Thus, appellant contends that appellee lacked standing to file the present support action since legal custody of the children remains with the Beaufort County Department of Social Service. However, we find this argument to be meritless. Pa.R.C.P. 1910.3, in pertinent part, provides that “An action [for child support] shall be brought ... on behalf of a minor child by a person having custody of the minor____” Pa.P.C.P. 1915.1(b) defines custody as “the legal right to keep, control, guard, care for and preserve a child and includes the terms ‘legal custody,’ ‘physical custody,’ and ‘shared custody!.]’ ” Clearly, appellee has primary physical custody of the children, and, thus, she has standing to bring a support action on the children’s behalf.

Second, appellant contends that the lower court lacked jurisdiction over appellant and erred by failing to comply with the terms of Pa.R.C.P. 1910.2 and the Revised Uniform Redprocal Enforcement of Support Act, 23 Pa.C.S.A. § 4501 et seq. We agree. Pa.R.C.P. 1910.2 provides that “An action [for child support] may be brought in any county in which (1) the defendant resides, or (2) the defendant is regularly employed, or (3) the plaintiff resides and that county is the county in which the last family domicile was located and in which the plaintiff has continued to reside.” Clearly, the present facts do not fall within any of those categories. Appellant has been a resident of and employed in South Carolina throughout the relevant time period, and the last family domicile was in South Carolina.

The note to Pa.C.R.P. 1910.2, in pertinent part, states: “If an action for support is brought in the county in which the plaintiff resides but that county is not the county in which the last family domicile was located and in which the plaintiff has continued to reside, the action shall proceed in accordance with the Revised Uniform Reciprocal Enforcement of Support Act (1968), 23 Pa.C.S.A. § 4501 et seq., if the defendant is outside of the Commonwealth, ... and not in accordance with these rules.” (Emphasis added.) Thus, this support action should have proceeded in accordance with the provisions of RURESA, since appellant is a resident of South Carolina and Clearfield County is not the site of the last family domicile. See, Carney v. Dahlmann, 425 Pa.Super. 163, 624 A.2d 197 (1993). In fact, it was the duty of the Court of Common Pleas of Clearfield County to certify and forward this support action to the Family Court of Beaufort County, South Carolina which possessed the requisite jurisdiction over appellant. 23 Pa. C.S.A. § 4514. Furthermore, it is clear that “[d]uties of support applicable under [RURESA] are those imposed under the laws of the state where [appellant] was present for the period during which support is sought.” 23 Pa.C.S.A. § 4507. Thus, it is the law of South Carolina which governs this support action, including the amount of support to be paid to appellee on the children’s behalf. Cf., Miller v. Jolly, 347 Pa.Super. 218, 500 A.2d 485 (1985); Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984); Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984).

In sum, we find that the lower court erred in setting appellant’s support obligation in accordance with the laws of Pennsylvania. Rather, pursuant to the express provisions of RURESA, this support action should have been transferred to the courts of South Carolina and that state’s laws governing child support applied. Accordingly, we must vacate the support order sub judice and remand for transfer of the action to the courts of South Carolina in accordance with RURESA.

Order vacated. Case remanded for proceedings in accordance with the provisions of this opinion.

      . In addition, appellant was ordered to pay $ 25.00 per month until his accumulated arrearages of $ 150.00 are satisfied.

      . Appellant’s and Jodi Jury's son is not a subject of this child support action.


source: Caselaw Access Project

author: McEWEN, Judge.

license: Public Domain

text:
    644 A.2d 1262
    J.M. WHITE, Appellant, v. Martin KREITHEN, Esquire, Bruce Baron, Esquire, Peter M. Villari, Esquire, and Richard M. Golomb, Esquire, Individually and t/a Kreithen, Baron, Villari & Golomb, P.C., Appellees.
    Superior Court of Pennsylvania.
    Argued April 27, 1994.
    Filed July 25, 1994.
    Petition for Allowance of Appeal Denied Nov. 28, 1994.

      Martin Heller, Philadelphia, for appellant.
    James Prahler, Philadelphia, for appellees.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge.

This appeal has been taken from the order, entered December 1, 1993, which dismissed, with prejudice, the amended complaint filed by appellant seeking damages incurred as a result of the alleged legal malpractice committed by appellees during their representation of appellant. The trial court, believing the case to be controlled by Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991), granted the preliminary objections in the nature of a demurrer filed by appellees and dismissed the malpractice complaint. Since we find Muhammad inapplicable to the facts of the instant case, we vacate and remand for further proceedings.

Appellant, in the amended pro se complaint she filed against appellees, her former counsel, alleged, in pertinent part:

7. Pursuant to the aforesaid [contingency fee] agreement, defendants herein filed a lawsuit in December, 1987, in the Court of Common Pleas of Philadelphia County, against a number of health care providers involved in plaintiffs medical treatment.

8. On April 17, 1992, plaintiff discharged defendants as her attorneys, because of their negligence in handling of the case and, further, because they were not ready for trial, the case having been scheduled to be added to the Major Jury List on August 25, 1992. Defendants’ specific acts of negligence are enumerated in paragraph 17 hereof.

9. Plaintiff entered her appearance pro se in the medical malpractice case on July 9, 1992.

10. Defendants were permitted by the court to withdraw their appearance on July 28, 1992.

11. Because the case was to be tried in the fall of 1992, plaintiff promptly, after discharging defendants, diligently sought to retain other counsel to represent her, but was unable to secure counsel because of defendants’ refusal to transfer the file to plaintiff and because of unreasonable demands made by defendants for “referral fees” from proposed new counsel.

12. When the case was placed on the trial list on August 25, 1992, no new attorney had entered an appearance on plaintiffs behalf.

13. At a conference before the Calendar Judge, in October, 1992, which was not attended by any of the within defendants, the Calendar Judge recommended a settlement in the amount of $150,000.00. He stipulated that plaintiff would be forced to immediate trial, if she did not accept his recommendation and that plaintiff would be granted a continuance, if defendants, in the medical malpractice case, did not agree to pay that sum. Plaintiffs medical expenses alone exceeded $150,000.00 at that time.

14. Defendants in the medical malpractice case agreed to pay the figure recommended by the Calendar Judge. Plaintiff had no choice but to accept the figure, because of the negligence of defendants herein in not having the case ready for trial, as set forth more specifically in paragraph 17 hereof, and because plaintiff would have been unable to try the case herself.

15. On June 5, 1992, before the defendants withdrew their appearance, they filed of record in the underlying medical malpractice case a document placing a value on plaintiffs case of between $250,000.00 and $500,000.00.

16. Had the case been properly investigated and prepared for trial by defendants, the case would have had a settlement or verdict value of at least $500,000.00, because of the seriousness of plaintiffs illness and the amount of her past and future medical expenses.

17. Defendants, acting as aforesaid, were careless and negligent in:

(a) failing to properly, adequately and timely investigate plaintiffs claim;

(b) failing to properly, adequately and timely conduct pre-trial discovery;

(c) failing to properly, adequately and timely prepare plaintiffs case for trial;

(d) failing to properly, adequately and timely secure the medical records, medical bills and other expenses necessary to prepare the case for trial;

(e) failing to properly, adequately and timely respond to defendants’ discovery requests in the medical malpractice action;

(f) failing and/or refusing to consult with plaintiff and keep her fully informed of developments in the case resulting in plaintiffs inability to discover defendants’ negligence in the medical malpractice action until approximately August, 1992;

(g) obstructing plaintiffs efforts to promptly secure new counsel after defendants were discharged, resulting in plaintiff being compelled to accept $150,000.00 or be forced to immediate trial;

(h) failing to properly, adequately and timely secure the necessary medical experts and all other necessary experts herein;

(i) failing to deliver the file to plaintiff until three days before the case was added to the trial pool preventing proper assessment and preparation by plaintiff and/or anyone on her behalf;

(j) holding themselves out to be competent to handle plaintiffs claim, when, in fact, they were not.

18. Due solely to the carelessness and negligence of the defendants herein, acting as aforesaid, plaintiff was compelled to accept a settlement offer, which was at least $350,000.00 lower than the true value of the case, as placed thereon by defendants themselves and the value of the case as warranted by the facts and the law.

Appellees filed preliminary objections in the nature of a demurrer to the amended complaint, alleging that appellant had failed to state a cause of action for malpractice since she had admittedly settled the underlying action. Appellees relied upon the decision of the Supreme Court in Muhammad v. Strassburger, supra, for their argument in support of a demurrer. The learned trial court judge agreed with appellees, concluding that the settlement of the underlying action precluded any claim for legal malpractice against appellees. We have studied the decision of the Supreme Court in Muhammad v. Strassburger, supra, and find ourselves unable to agree that, under the facts as set forth in the amended complaint, all causes of action against appellees are barred as a result of the settlement of the medical malpractice action.

We note that our scope of review is limited where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). Our inquiry goes only to determining the legal sufficiency of appellant’s complaint and we may only decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa.Super. 253, 489 A.2d 1364 (1985). We must also be able to state with certainty that “upon the facts averred, the law will not permit recovery by the plaintiff.” Berger v. Ackerman, 293 Pa.Super. 457, 459, 439 A.2d 200, 201 (1981).

VanMastrigt v. Delta Tau Delta, 393 Pa.Super. 142, 147-48, 573 A.2d 1128, 1130 (1990). Accord: Collas v. Garnick, 425 Pa.Super. 8, 10-11, 624 A.2d 117, 119 (1993), allo, denied, 535 Pa. 672, 636 A.2d 631 (1993). Since a demurrer may only be sustained where the complaint is clearly insufficient to establish the plaintiffs right to relief, all well-pleaded, material facts must be taken as true in ruling upon the motion. Conclusions or averments of law are, of course, not admitted for purposes of ruling on the demurrer. See: County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 371, 490 A.2d 402, 408 (1985).

There are three essential elements which must be established in order to bring an action for legal malpractice: 1) the employment of the attorney or other basis for duty; 2) the failure of the attorney to exercise ordinary skill and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff. Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986), allo. granted, 514 Pa. 643, 523 A.2d 1132 (1987); ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986); Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979) (establishing the elements in Pennsylvania).

Storm v. Golden, 371 Pa.Super. 368, 374-75, 538 A.2d 61, 64 (1988), allo, denied, 524 Pa. 630, 574 A.2d 71 (1989). Accord: Collas v. Garnick, supra at 12, 624 A.2d at 120. The averments of appellant’s complaint, accepted as true only for purposes of our review, establish each of the required elements of legal malpractice. Nonetheless, appellees understandably argue the trial court properly sustained their demurrer to the complaint of appellant because our Supreme Court, in Muhammad v. Strassburger, supra, barred all actions for legal malpractice where the plaintiff voluntarily and knowingly concluded the underlying action by entering into a settlement agreement.

It is necessary, however, to scrutinize the entire Muhammad opinion of our Supreme Court since focus only upon the ruling is to see the tree but not the forest. Our distinguished colleague, the eminent Judge James R. Cavanaugh, reflected quite an insightful view of Muhammad when, in Miller v. Berschler, 423 Pa.Super. 405, 621 A.2d 595 (1993), he opined:

The court gave the following rationales for this rule: the court declared that the essence of settlement is contractual in nature, and similar to a contract, the time for questioning whether a settlement agreement is advantageous is before settlement, [Muhammad v. Strassburger, supra] 526 Pa. at 547-548, 587 A.2d at 1349; the contract principle of caveat emptor applies similarly to settlements, so that a person entering into a settlement agreement is locked into whatever compromise he agreed to once the settlement becomes effective, id. at 548, 587 A.2d at 1349; the court found that overriding principles of public policy supported its result, as lawyers might be reluctant to settle a case if they feared a client might later find a way to sue them for something that “ ‘could have been done, but was not,’ ” id. at 548, 587 A.2d at 1349; the court was concerned with the lack of finality and delay in already overcrowded courts and believed “we [the court] should view ‘litigation concerning litigation’ cases with a jaundiced eye,” id. at 549-550, 587 A.2d at 1350; litigation over settlements is of particular concern, because settlement is an essential part of the efficient operation of our judicial system, id. at 550, 587 A.2d at 1349; and finally, there are distinct societal advantages to a judicial system which is not adversarial in nature but attempts to resolve disputes by compromise or concession, id. at 551-552, 587 A.2d at 1351.
It appears that, given the broad policy rationales employed by the Supreme Court and the unqualified articulation of its “simply stated” holding, Muhammad proclaims a clear, bright line rule which, absent fraud, shields attorneys from legal malpractice claims sounding in negligence or contract where they involve cases concluded by completed settlement. Post-Muhammad, a party dissatisfied with the settlement agreement provided by their attorney can only seek redress if it can establish it was fraudulently induced into agreeing to settle, and it is incumbent on the client to plead with specificity fraud in the inducement. Id. at 552-53, 587 A.2d at 1351.

Miller v. Berschler, supra at 409-10, 621 A.2d at 597-598. See also: Spirer v. Freeland and Kronz, 434 Pa.Super. 341, 643 A.2d 673 (1994).

It is thus apparent that Muhammad does not control the present case since the settlement in the underlying action was not a settlement negotiated by counsel for appellant. Rather, after appellant discharged appellees, allegedly for failure to properly investigate and prepare her case for trial, appellant was forced, due to her inability to retain counsel, to accept the settlement figure proposed by the judge. Moreover and quite importantly, none of the motivating reasons for the Supreme Court decision in Muhammad, supra, would be achieved by finding the instant malpractice action barred, since appellees did not participate in the settlement, and appellant was prevented — allegedly as a result of appellees’ conduct — from questioning “before settlement” whether the terms of the settlement were advantageous. Rather, the instant action more closely resembles Collas v. Gamick, supra, where this Court held that the mere fact that the allegedly negligent act — resulting in harm to the plaintiff — occurred as part of the settlement of another claim, does not require that Muhammad be found applicable so as to bar all causes of action for malpractice. Thus, we conclude that, because the complaint alleges that appellant was subsequently forced to settle her claim as a result of appellees’ negligence, the rule pronounced in Muhammad may not be invoked to preclude her claim for such negligence. We, therefore, vacate the order entered on December 1,1993, and remand for proceedings consistent with this Opinion.

Order reversed. Case remanded. Jurisdiction relinquished.


author: OLSZEWSKI, Judge:

text:
    644 A.2d 1266
    J. Donald GRONINGER and Margaret E. Groninger v. Thomas AUMILLER and Barbara Aumiller and David A. Basom and Kathy Jo Basom. Appeal of J. Donald GRONINGER and Margaret E. Groninger.
    Superior Court of Pennsylvania.
    Submitted June 22, 1994.
    Filed July 25, 1994.
    Daniel W. Stern, New Bloomfield, for appellants.

      Karen L. Hackman, Sellinsgrove, for appellees.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   OLSZEWSKI, Judge:

For nearly five years now, Margaret and Donald Groninger have been trying to prevent their neighbors Thomas and Barbara Aumiller from running a contracting business out of their model home on Nolan Drive, Derry Township. The Groningers filed an equity action claiming that the Aumillers’ contracting business violated both the township zoning ordinances and restrictive covenants contained in the Aumillers’ deed. The Aumillers’ model home is entirely residential in appearance. Home-buying customers come to inspect the building, choose appointments, and negotiate deals. No equipment or materials are stored at the model home, and all construction work is done at the job site. Still, the Groningers contend that this constitutes a commercial use forbidden by a restrictive covenant in the Aumillers’ deed, and seek to enjoin their neighbors from operating this business next door.

The Groningers filed their complaint in 1989, and most of the time since then has been spent litigating the zoning question, which is not before us. This case eventually proceeded to cross-motions for summary judgment to determine whether the deed forbids commercial use, or whether it merely forbids the erection of non-residential structures on the property. The trial court ruled in favor of the Aumillers. Sadly, the trial judge left the bench before she could draft any kind of explanatory opinion. See R. 9 (Statement in lieu of opinion, 2/4/94). But since the trial court’s decision turns upon the interpretation of a written instrument, our review is not hampered. After careful consideration of the arguments and review of the record, we affirm.

The only question to be answered on appeal is whether the Aumillers’ deed creates a use restriction or a building restriction. Other deeds from the neighborhood’s common grantor contain similar though not identical restrictions; we agree with the Aumillers that the varying language does not evidence any clear development design by the common grantor. Nor was any subdivision or development plan recorded. But a recorded plan or common scheme is not the only way to restrict future land use; their absence simply focuses our inquiry on the language of the Aumillers’ deed, which controls this question.

One of several restrictions in the Aumillers’ deed states: Structures erected upon the premises above-described shall be limited to residential purposes and shall exclude all structures known and designated as house trailers, whether or not the same are erected upon permanent foundations and intended for permanent habitation.

R. 10, Complaint, exhibit 2. At first blush, this language would appear to limit the property’s structures to residential uses; “residential purposes” is the functional equivalent of “residential uses.” Pennsylvania caselaw, however, strongly disfavors limiting a landowner’s free and unconstrained use of her property, and has adopted specific legal characterizations for the sort of terminology used in the above restriction.

The seminal case distinguishing between building and use restrictions is Jones v. Park Lane for Convalescents, 384 Pa. 268, 120 A.2d 535 (1956). There, our high court held that because of legal disfavor and strict construction, an effective land use restriction must be “expressly and plainly stated.” Id. at 273, 120 A.2d at 538. Our high court thus interpreted the language “the said lot ... shall be used only for the purpose of erecting thereon private dwellings ...” to create a building restriction. It reasoned that whenever a restriction refers to what may be erected on the property, it is a building restriction; to create a use restriction, the deed’s language must squarely address the use or manner of occupation of the property. Id.

Subsequent cases follow this use/building distinction. By far the most apposite case is Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643 (1968). There the deed employed language nearly identical to that in the Aumillers* deed: “no building except for residence purposes shall ever be erected upon said premises.” Id. at 646, 246 A.2d at 646. Our high court held that this language did not prohibit commercial uses, but merely required that the type of buildings erected be of a residential nature. Id. (citing Jones v. Park Lane, supra).

The cases which the Groningers cite involve substantially different language; they refer only to uses of the property and not to the sorts of buildings which may be erected. See Morean v. Duca, 287 Pa.Super. 472, 430 A.2d 988 (1981) (the phrase “used for residential and recreational purposes only” created a use restriction, prohibiting commercial use of a garage as a snowmobile repair shop); Grasso v. Thimons, 384 Pa.Super. 593, 559 A.2d 925 (1989) (“none of the Lots shall be used for any purpose other than residential uses” created a use restriction, prohibiting the operation of an accounting business).

The Groningers unconvincingly attempt to distinguish the more apposite language of Schulman, supra. While admitting that Schulman’s “language is similar to the language in our case, the Court should note that we are not dealing with office use, but the operation of a contracting business with customers and equipment coming and going.” Appellant’s brief at 9. Our review of the record indicates that the Aumillers use their model home as an office. Customers do come and go, but in numbers consistent with the residential nature of the neighborhood. The Groningers point to nothing in the record to suggest that any construction or other type of equipment is stored on the property. Simply put, there is nothing about the Aumillers’ model home (except possibly the small sign designating it a model home for their contracting company) which sets it apart from the other residential homes in the neighborhood.

Likewise, we must disagree with the Groningers’ contention that the trial court found the restrictions to be unenforceable. Appellant’s brief at 7. The restriction in the Aumillers’ deed is perfectly enforceable. The Groningers can prevent the Aumillers from erecting an ugly cinderblock building, a tower, or any other nonresidential type structure which would clash with the surrounding houses. That is the effect of a building restriction. But since the Aumillers’ model home is quintessentially residential in character, it does not offend the restriction in their deed.

Order affirmed.

POPOVICH, J., notes his dissent.

      . We note that this does not amount to a prohibition of all commercial uses — the deed’s language merely states that structures on the lot shall be for residential purposes. The Aumillers could hold regular yard sales, and perhaps even establish an outdoor flea market without running afoul of their deed's restriction. Zoning ordinances are another matter, of course. But as we noted earlier, the Groningers’ litigation regarding zoning violations is not before us.

      . Some large houses subject to the deed restriction had been converted ' into offices, though they maintained their outward residential appearance.

      . We note that the restriction in the Groningers’ deed more clearly resembles such a use restriction. It states that "any buildings thereon erected shall never be used for any commercial purpose.” R.10, Complaint exhibit A (emphasis added). The different language used in the Groningers’ and Aumillers’ deeds undercuts the Groningers’ contention that the alleged common grantor intended to prohibit all commercial use. If such had been the case, we would expect to see a similar use-specific restriction in the Aumillers’ chain of title.


author: WIEAND, Judge. DEL SOLE, Judge,

text:
    644 A.2d 1268
    Robert G. KINCADE and Sandra Lee Kincade, Appellants, v. LAUREL COURTS, INC., a Pennsylvania corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued March 15, 1994.
    Filed July 19, 1994.

      Dan P. Wimer, New Castle, for appellants.
    Donald E. Williams, New Castle, for appellee.
    Before WIEAND, DEL SOLE and FORD ELLIOTT, JJ.
   WIEAND, Judge.

In this action for the wrongful use and occupancy of land, the trial court denied a petition by the successful plaintiffs to add delay damages to the amount of the jury’s verdict. After careful review, we affirm.

On December 30, 1983, Robert G. Kincade and Sandra Lee Kincade, husband and wife, filed a civil action against Laurel Courts, Inc., a corporation, contending that the said defendant had improperly placed on plaintiffs’ land a portion of a sewer system which serviced a trailer park owned and maintained by the defendant. The defendant, plaintiffs alleged, had refused plaintiffs’ demands to either remove the sewer system or pay rent for plaintiffs’ land. As a consequence, they alleged, defendant had committed either a trespass or nuisance, had been “unjustly enriched” and had become liable to plaintiffs for “loss of use,” “loss of value,” “loss of rental value,” “taxes” paid by plaintiffs, and attorneys’ and experts’ fees. The defendant denied that a trespass had occurred and relied upon an alleged lease from a prior owner. A jury, by verdict on May 31, 1990, found that the defendant had committed a trespass, but not a nuisance, and awarded damages of $51,-480.00. On June 12, 1990, the plaintiffs filed a motion to mold the verdict to include Rule 238 damages. This motion was denied on October 8, 1993.

Pa.R.C.P. 238(a)(1) permits damages for delay “in a civil action seeking monetary relief for bodily injury, death or property damage.” The rule, however, has no application to actions for rent or rental value of real estate. It also has no application for the wrongful use and detention of real estate or for damages intended as restitution for unjust enrichment.

Pursuant to the averments contained in plaintiffs’ complaint, the trial court instructed the jury as follows:

Now, should you find that there is a trespass in this case, should you find that the Plaintiff has met their burden by [a] fair preponderance of the evidence relative to the trespass action, then you have to determine what damages that you would direct that the Defendant pay to the Plaintiff.
Now, the law states that the owner of realty on which a trespass has been committed may recover from the trespasser damages for the loss of the use of that realty which may include an amount representing the value of the realty for rental purposes or any other purpose for which the owner may have utilized that particular portion of the property.

It was in response to this instruction that the jury determined the amount of damages to be awarded to the plaintiffs.

It is readily apparent from the foregoing and also from the evidence during trial that plaintiffs’ claim was not for permanent injury to their property. Rather, the claim was for the fair rental value of their land, which the defendant had used and occupied. With respect to such a claim, Pa.R.C.P. 238 has no application. It has no greater applicability to this claim than it would have to any other claim for rent or the rental value of real estate.

Order affirmed.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

A review of the docket entries established that the jury returned its verdict on May 31,1990 and Appellee filed timely Post>-Trial Motions on June 11, 1990 . Appellants filed a Motion for Rule 238 delay damages on June 21, 1990 and the trial court entered its Opinion addressing Appellee’s Post-Trial Motions on May 28, 1991. No disposition was made of the Rule 238 Damages Motions. Appellee filed a Notice of Appeal to this court on June 27, 1991 and pursuant to a praecipe filed by Appellants, judgment was entered on the trial court’s verdict on July 26, 1991. On March 23, 1992, this court filed an unpublished Memorandum affirming the judgment and on February 11,1993, Appellants then filed a Motion for a Hearing on Delay Damages. The trial court denied the motion on October 8, 1993 and on November 8, 1993, Appellants filed this appeal.

The Majority concludes that the jury’s verdict was for the rental value of the property and, therefore, was not a proper item for imposition of Rule 238 delay damages. In addition, in footnote number 2 of its Opinion, the Majority seems to imply that Appellants’ Motion for Rule 238 delay damages should have been denied because it was untimely filed. I disagree with both of those conclusions.

The jury’s award was for damages to the real estate resulting from Appellee’s trespass. In its charge, the trial court did not state that the jury should establish a rental value for the property, rather it instructed the jurors that they could use the rental value of the property as a tool for determining the amount of damages. The court stated, in pertinent part, as follows:

COURT: Now, the law states that the owner of realty on which a trespass has been committed may recover from the trespasser damages for the loss of the use of that realty which may include an amount representing the value of the realty for rental purposes or any other purpose for which the owner may have utilized that particular portion of the property.

Notes of Testimony, dated May 30-31, 1990, Volume II, pages 162-163. Evidence of the property’s rental value was used only to determine the damages to the property. This loss falls within the scope of Rule 238 and delay damages should have been granted.

I also disagree with the Majority’s implied position that Appellants’ claim for Rule 238 damages should be denied because their Motion for delay damages was filed more than ten days after the jury’s verdict was announced. Rule 238(c)(1) provides that a defendant must file an answer to a plaintiffs motion for delay damages setting forth reasons why the delay damages should not be imposed. See Pa.R.C.P. No. 238(c)(1), 42 Pa.C.S.A. In the present case, however, Appellee’s Answer did not raise an objection to the late filing of Appellants’ Motion. Furthermore, at the time Appellants’ Motion was filed, Appellee’s Post-Trial Motions were pending before the court, so no prejudice from the delayed filing would have resulted.

However, I concur with the result reached by the majority because I believe that Appellants’ claim for delay damages has been waived. Subsection (c)(3)(i) of Rule 238 states that, “[i]f a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is opposed, a judgment may not be entered until all motions filed under Rule 227.1 and this rule have been decided.” Pa.R.C.P. No. 238(c)(3)(i), 42 Pa. C.S.A.

In the instant case, Rule 238 became inoperative when judgment was entered and an appeal was filed prior to the disposition of Appellants’ Rule 238 Motion. To allow a review of the trial court’s denial of Appellee’s Posh-Trial Motions and then allow a second review of the court’s disposition of Appellants’ Rule 238 Motion, as occurred here, results in fragmented appeals and unnecessary delays. This is not the intent of the rules nor is it appropriate judicial administration. I conclude that the entry of judgment following disposition of post-trial motions, and the appeal and matter before.disposition of the Rule 238 Motion, waives any claim for Rule 238 delay damages.

Accordingly, I concur in the result of this case.

      . Appellants have assumed incorrectly that the record of the proceedings in the trial court are irrelevant to a determination of this issue. Although they have failed to reproduce any part of the record, this Court has had available for review the original record which was duly certified by the prothonotary of Lawrence County.

      . This motion was untimely. Pa.R.C.P. 238(c) requires that a written motion requesting damages for delay be filed "not later than ten days after the verdict.”

      . The tenth day to file the motions fell on Saturday, June 9, 1990.