author: MONTEMURO, Judge.

text:
    674 A.2d 735
    In re Martin T. DILLON, Deceased. Appeal of Patricia SCHER, Michael Dillon, and Suzanne R. Dillon.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed Feb. 26, 1996.
    Reargument Denied May 7, 1996.

      Thomas A. Sprague, Philadelphia, for appellant.
    Peter G. Loftus, Waverly, for Lawrence Dillon, participating party.
    John M. Popilock, Deputy Attorney General, Harrisburg, for Commonwealth, participating party.
    Before KELLY and POPOVICH, JJ., and MONTEMURO, J.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge.

These cross appeals he from an order of the Court of Common Pleas of Susquehanna County denying an emergency petition for disinterment and reautopsy of the deceased, Martin T. Dillon, filed by petitioner Patricia Dillon Scher, supported by intervenors Suzanne R. Dillon and Michael Dillon, and granting the disclosure to petitioner of an autopsy report in the possession of the Commonwealth.

On June 2,1976, the deceased, Martin T. Dillon, died from a shotgun blast to the chest. The gun belonged to Stephen Scher, M.D., a close friend with whom the deceased had been shooting clay pigeons at a hunting lodge owned by the Dillon family. The petitioner herein, Patricia Dillon Scher, is the widow of the decedent and the wife of Stephen Scher. The death was ruled accidental by the [then] coroner pursuant to autopsy findings.

In April of 1995, pursuant to legal proceedings initiated by the coroner, the body of Martin Dillon was exhumed, reautopsied and reburied. In June, a public announcement was released by the [current] coroner to the effect that the manner of Martin Dillon’s death had been homicide. The basis of the coroner’s conclusion was not revealed, nor was the report of the second post mortem examination made public. At no point during the course of these proceedings was an appeal taken, or emergency injunction or intervention sought by Patricia Dillon Scher. Rather, in August, the instant petition was filed, requesting that the body of petitioner’s late husband be disintered and reautopsied, and that preliminary discovery in aid of the reautopsy be granted. The petition, supported by Suzanne Dillon and Michael Dillon, the children of the deceased and petitioner, grounded the request on assertions that the publicity surrounding the coroner’s announcement that the death had been a homicide necessarily resulted in speculation that Stephen Scher, petitioner’s husband, was responsible for Martin Dillon’s demise. Such speculation, it was argued, resulted in great personal anguish to the petitioner, had caused her severe emotional distress as well as possible loss of future income, and only a reautopsy by three (named) disinterested pathologists, aided by certain items of discovery would resolve the difficulties caused by the coroner’s conclusion.

After hearings, the trial court denied the petition in part on the basis that the standard for granting an exhumation had not been met, but granted petitioner’s request that the autopsy report be disclosed. Both petitioner and the Commonwealth now appeal from the trial court’s order.

Petitioner first argues that the trial court applied the wrong standard in denying her request for exhumation and reautopsy. The trial court based its decision on the holding in Commonwealth v. Marshall, 287 Pa. 512, 135 A 301 (1926). There our Supreme Court stated:

Without reciting the averments of the petition and answer, it is sufficient to say, the former did not state facts which imperatively required that its prayer be granted, and, when the averments of the answer are taken into consideration, the matter appears as one entirely for the discretion of the tribunal.

Id. at 530, 135 A. at 307 (emphasis supplied).

The trial court concluded that the exhumation was not imperatively required because the sole basis for petitioner’s prayer for relief was jeopardy to her future income, which was dependent on Stephen Schér, and because the children’s prayer for relief showed no injury to themselves or to their mother which an exhumation and reautopsy would definitively redress. The Commonwealth adopts this position with the additional contention that because there is an on-going criminal investigation almost all of the material, both documentary and testimonial, related to Martin Dillon’s death is privileged; thus, the higher standard, that the need for exhumation be shown as “imperatively required,” is necessary but has not been met. Petitioner contends that Marshall is distinguishable on its facts, and that the proper standard was enunciated by this court in Wawrykow v. Simonich, 438 Pa.Super. 340, 652 A.2d 843 (1994), where it was concluded that a showing of “reasonable cause” was sufficient to justify exhumation.

In Marshall, the request of a convicted murderer who sought to have the body of his victim exhumed was denied. The Court observed that the procedure was not imperatively required as “the petition [for exhumation and autopsy] fails to disclose what it was proposed to develop through an autopsy more than had already been shown by the examination of the body made by the coroner’s physician.” Thus, not even a “reasonable cause” standard would have been met by the proffered explanation for the exhumation and autopsy. Moreover, the Court noted that the close relatives of the deceased had been given no notice of the request, which omission, standing alone, would have sufficed to warrant denial of the petition.

In Wawrykow, exhumation was sought in order that DNA testing might be performed to determine the paternity of a child, on whose behalf a claim had been lodged against the decedent’s estate. The Superior Court held that the averments of the exhumation petition, in conjunction with the evidence of the proposed DNA testing, supplied the reasonable cause necessary to warrant disinterment.

In actuality, the seminal case in Pennsylvania on the right to disinter and reinter bodies is the Supreme Court’s decision in Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904), which concerned a ’widow’s petition to move her husband’s body from the cemetery in which it was buried to another containing the grave of a daughter. Because of space considerations, the daughter’s body could not be moved to where the husband was buried. Relatives of the husband sought to enjoin the reinterment. The Court found that reasonable cause was necessary for reinterments, and that the widow had made the necessary showing. See also, Leschey v. Leschey, 374 Pa. 350, 97 A.2d 784 (1953). Marshall does not mention Pettigrew, but is not necessarily inconsistent with it, first because the appellant supplied no reason of whatever caliber to justify his request, and second because the denial of the request for exhumation and autopsy was without prejudice, permitting appellant to reapply for the procedure with a reason advanced. We do not know what standard would have then been applied, because appellant chose not to renew his request.

What is common to these cases, Marshall excepted, is that if reasons were given for the exhumation at all, they were not speculative — the objective would definitively solve the particular problem at issue. In Marshall, the reasons were not only such as would not imperatively require exhumation, they were, for all intents and purposes, nonexistent. See also Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979). This brings us to petitioner’s second and third claims which are the obverse and reverse of the same issue. She argues that the trial court erred in finding that the loss of future income was the sole basis of her petition, and that the claims actually made did supply reasonable cause for granting her request.

Petitioner advanced as specific reasons for exhumation and reautopsy the emotional effects and/or (putative) financial reverses attributable to the homicide announcement. Whether the trial court erred in imputing to her only the latter is of no importance in itself, in light of the fact that these reasons, whether ascribed to petitioner or her children, were determined by the trial court, as a matter of its discretion, to be insufficient. We conclude that in so finding the trial court abused its discretion: the testimony as to the emotional/psychological effects of the April autopsy findings, and the economic effects of the homicide announcement do constitute reasonable cause.

Further, our Supreme Court has determined that the paramount right to possession and custody of a body and the concomitant right to control burial or other disposition rests with the surviving spouse of the deceased. Pettigrew, supra. See also, Leschey, supra. Petitioner, therefore, is invested with that right, and has, in addition, provided the necessary justification to support her decision in this matter. The Commonwealth’s response to her request has relied on the argument that exhumation and reautopsy should be prohibited because there is an ongoing criminal investigation. However, there has been no showing that to grant the petition here would in any way impede, obstruct or interfere with that investigation. The Commonwealth has, in fact, conceded that exhumation and reautopsy would have no effect whatsoever on its efforts. Accordingly, having supplied reasonable cause, petitioner, whose right it is to direct such matters, should be permitted to do so.

Moreover, in its role as cross-appellant, the Commonwealth’s major contention is that the autopsy report on which the finding of homicide was based is protected by governmental privilege, as evidenced by the trial court’s prior numerous rulings, and should not be released. All of the Commonwealth’s arguments on this point, however, are mooted by 16 P.S. § 1251, which reads as follows, “Every coroner, within thirty (30) days of the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein.” We note that the statute makes no exceptions for records connected with criminal investigations.

This same statutory provision controls the result of any examination of the remaining issue raised by petitioner and that claimed by the Commonwealth. Petitioner argues that the materials, other than the autopsy report, used by the coroner and his designated pathologist in concluding that the death of Martin Dillon was a homicide, and sought in her petition for reautopsy, are not privileged documents. They are, however, official records of the coroner’s office and thus covered by the statute cited above. Further, the billing to the coroner for the pathologist’s services, which the Commonwealth in its first issue claims were wrongly released, also fall under the rubric of coroner’s official records. Thus, contentions that these documents were wrongly released or wrongly withheld are also moot.

Accordingly, the trial court’s order denying petitioner’s request for exhumation and autopsy and for discovery is hereby reversed; the ordered disclosure of the autopsy report is affirmed.

Jurisdiction is relinquished.

      . The coroner’s petition for exhumation was preceded by similar legal action commenced by Martin Dillon’s father, Lawrence Dillon, and opposed by Patricia Dillon Scher and her children. Lawrence Dillon has filed an Appellee’s Brief in this matter.

      . The failure to appeal or intercede in the proceedings earlier is mentioned by appellees and the trial court but regarded by nobody except Lawrence Dillon as an impediment to this appeal. In view of our disposition of this case, and as a matter of judicial economy, we will address the merits now.

      . The emergency nature of the matter derives from the fact that having once been disintered, the body would begin to decompose more rapidly than before exposure to air.

      . It might also be argued that as a criminal matter Marshall requires a higher standard. No charges have yet been filed relative to Martin Dillon’s death, and no argument has been advanced that if such charges are filed, the petitioner will be accused.

      . The Commonwealth also argues that the report should not be disclosed because the petition reflects not the effect of the homicide announcement on the feelings/economics of Martin Dillon’s family, but rather represents only Stephen Scher's attempt to conduct discovery as to the evidence against him prior to any charges being brought. While it is noted that no objection to the second autopsy was made until it became known that the results were adverse to Stephen Scher’s interests; that he has underwritten the legal proceedings in this matter; and that neither he nor petitioner has appeared at any of the hearings, none of these factors affects petitioner’s status as Martin Dillon’s surviving spouse.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    674 A.2d 1080
    FIRST SENECA BANK d/b/a Integra Bank, Pittsburgh/North, Appellant, v. Gusty A.E. SUNSERI. FIRST SENECA BANK d/b/a Integra Bank, Pittsburgh/North, Appellant, v. PIZZA ROMA FRANCHISE, INC., d/b/a Roma Italian Restaurant & Pizzeria of Hampton, Ltd.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1995.
    Filed March 1, 1996.
    Reargument Denied May 10, 1996.

      Reed J. Davis,'Pittsburgh, for appellant.
    Gusty A.E. Sunseri, Oakmont, appellee, in pro. per.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge.

In these consolidated cases, First Seneca Bank, d/b/a Integra Bank of Pittsburgh/North (the Bank) brings this appeal claiming that the trial court improperly awarded liquidated damages to both Gusty A.E. Sunseri and Pizza Roma Franchise, Inc., d/b/a Roma Italian Restaurant & Pizzeria of Hampton, Ltd. (Pizza Roma) (collectively, the defendants), pursuant to 42 Pa.C.S. § 8104. The Bank relies upon Marston v. Tryon, 108 Pa. 270 (1884), in support of its claim that the demand for satisfaction of a judgment must be made upon the creditor, and not the creditor’s attorney. Because wé find that Marston is no longer good law, and we find no other error in the award of liquidated damages, we affirm.

On June 2 and 16, 1987, the Bank entered into two five-year equipment leases with Pizza Roma for restaurant equipment. Contemporaneously, Sunseri executed two guaranty agreements with the Bank whereby he agreed to guarantee the full and timely performance of Pizza Roma’s obligations under these leases. In January 1990, the Bank, alleging a default, obtained judgments against Pizza Roma and Sunseri. Thereafter, in December 1992, the Bank sold the equipment for $8,000. At the time of the sale, Pizza Roma’s outstanding debt on the leases was $5,805.95.

In February 1993, the defendants initiated proceedings to have the proceeds of the sale applied to the debt and have the judgments marked satisfied on the docket. On March 18, 1993, Sunseri made a written request to the Bank’s counsel demanding that the Bank “settle and discontinue all judgments associated with the [Pizza] Roma Restaurant leases,” including a $10.00 check for filing fees. The Bank refused, claiming that the proceeds from the sheriffs sale did not apply to the outstanding debt obligation. After a hearing, the court issued an order, dated January 5,1994, that directed the Bank to apply the proceeds from the equipment sale as follows: $5,805.95 on the remaining balance for the equipment leases, $2,194.05 for the Bank’s reasonable attorney fees, with any excess remitted to the Bank. The order also directed the Bank to have the judgments marked satisfied on the docket. The Bank did not appeal this order. On January 27, 1994, the judgments were marked satisfied.

On March 29, 1994, the defendants filed petitions with the trial court pursuant to 42 Pa.C.S. § 8104, seeking liquidated damages for the Bank’s failure to have the judgments marked satisfied within 30 days from their written request of March 18, 1993. The court directed the parties to proceed in accordance with Pa.R.C.P. 209, which provides for the taking of depositions. After a hearing, the court entered an order that denied the Bank’s attempt to submit depositions by written interrogatories, but, nevertheless, denied the request for liquidated damages based upon Marston v. Tryon, 108 Pa. 270 (1884). The defendants filed a motion for reconsideration, which was granted. Following another hearing, the court concluded that Marston was no longer good law. Accordingly, the court granted the defendants’ petitions for liquidated damages, awarding each defendant damages in the amount of $32,185.54. This appeal followed.

We have renumbered the Bank’s issues for purposes of review. On appeal, the Bank contends, in essence, that the trial court erred in granting the petitions for liquidated damages because (1) the petitions were rendered moot by the satisfaction of the judgments on January 27, 1994; (2) the issue of liquidated damages should have been raised in the February, 1993 petition to have the judgments marked satisfied; (3) the Bank had a bona fide basis for its refusal to have the judgments marked satisfied prior to the entrance of the January 5, 1993 order; and (4) the defendants did not satisfy the statutory requirements for relief set forth in 42 Pa.C.S. § 8104. Further, the Bank claims that the court erred in (5) refusing to consider its submitted depositions by written interrogatories.

Initially, we note that the Bank’s brief submitted in this case has been produced in a typeface substantially smaller than what is provided for in the Rules of Appellate Procedure. “Briefs and records reproduced by conventional typographical printing shall be printed throughout from type at least as large as point 11 with 2 point lead.” Pa.R.A.P. 2171(a). Here, the body of the Bank’s brief is in point 9 type, with quotations in point 8 type and footnotes in point 6 type. The use of smaller print has only made the Bank’s brief harder to read, and this Court admonishes counsel not to attempt to circumvent the Rules in the future or run the risk that a meritorious appeal will be quashed for this procedural defect.

Central to our evaluation of the merits of this case is 42 Pa.C.S. § 8104, which provides as follows:

§ 8104. Duty of judgment creditor to enter satisfaction (a) General rule. — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment, (b) Liquidated damages. — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.

42 Pa.C.S. § 8104.

As its first issue, the Bank contends that the trial court erred in granting the petitions for liquidated damages because the petitions were moot. “Unless an actual case or controversy exists at all stages of the judicial process, a case will be dismissed as moot.” County Council of Erie v. County Executive of Erie, 143 Pa.Cmwlth. 571, 574, 600 A.2d 257, 259 (1991). The Bank claims that the controversy ceased to exist when the judgments were marked satisfied on January 27, 1994, within 30 days of the January 5, 1994 order. However, the defendants assert that the 30-day statutory period began to run on March 18, 1993, when the defendants made their written demand for satisfaction. Thus, because a controversy continued to exist concerning how to apply the 30-day period when determining whether § 8104(b) applied, we find the petitions were not moot.

Next, the Bank asserts that the trial court erred in granting the petitions for liquidated damages because this issue should have been raised in the defendants’ February 1993 petition to have the judgments marked satisfied. Specifically, the Bank contends that the defendants should have presented their claim for liquidated damages at the same time as the petition on the underlying claim. The Bank maintains that it suffered severe prejudice because it would have appealed the January 5, 1994 order if the liquidated damages provision had been included. However, the statute does not provide that the request for liquidated damages must be brought contemporaneously with a suit to settle and discontinue the underlying judgment. Rather, the statute clearly states that “[s]uch liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings42 Pa.C.S. § 8104(b) (emphasis added). Thus, this action was properly brought in the subsequent proceeding initiated on March 29, 1994.

As its third issue, the Bank maintains that the trial court erred in granting the petitions for liquidated damages because the Bank had a bona fide basis for its refusal to mark the judgments satisfied. Specifically, the Bank claims that until the court entered the January 5,1994 order, it was under no contractual obligation to apply the proceeds of the equipment sale to the defendant’s debt. We disagree.

We are guided in our resolution of this issue by the decision in Key Savings and Loan Assoc. v. Louis John, Inc., 379 Pa.Super. 226, 549 A.2d 988 (1988), appeal dismissed, 529 Pa. 573, 605 A.2d 1223 (1992). In that case, a corporation and its two owners jointly signed a mortgage as security for a construction loan. The loan went into default, and the bank issued a notice of foreclosure. After a dispute between the owners, one partner purchased the other partner’s shares of the corporation. The bank approved the sale and executed a release in favor of the departing partner that discharged any future claims it could assert regarding the mortgage obligation. Subsequently, the bank confessed judgment against both the corporation and each of the former partners. The ex-partner requested the bank to mark the judgment satisfied pursuant to the release, but the bank refused. Thus, the ex-partner filed a petition to have the judgment against him marked satisfied. This petition was granted, and the bank did not appeal. Thereafter, the ex-partner filed a petition for liquidated damages. In responding to this petition, the bank argued that its refusal to mark the judgment satisfied was justified because it arose from a bona fide dispute over the effect of the release, and, thus, liquidated damages were not appropriate. This Court disagreed.

In making this conclusion, this Court analyzed the language of § 8104(b), which states that a judgment creditor who “shall fail or refuse” to comply with a request for entrance of satisfaction shall be liable for liquidated damages. We determined that “the plain and unambiguous meaning of the word ‘fail’ in the statute is simply ‘to omit or neglect;’ no requirement of willfulness or unreasonableness is thereby implied.” Id. at 233, 549 A.2d at 992. In addition, we reasoned that an acceptance of the bank’s contention that a requirement of willfulness or unreasonableness should be implied would “render the word ‘refuse’ mere surplusage.” Id. at 232, 549 A.2d at 992. Thus, citing the case of First National Consumer Discount Co. v. Fetherman, 515 Pa. 85, 527 A.2d 100 (1987), we concluded that the creditor’s state of mind in failing or refusing to mark the judgment satisfied is irrelevant:

We find it significant that our Supreme Court [in Fetherman ] used unqualified language in characterizing the creditor’s liability and we note the conspicuous absence of any suggestion that the creditor’s motivation for failing to have the judgment marked satisfied is even relevant. Thus, the language utilized in Fetherman supports our conclusion that the debtor is entitled as of right to liquidated damages whenever the creditor has received satisfaction and fails to comply with a written request to mark the judgment satisfied, regardless of the creditor’s reasons or motives.

Id. at 234, 549 A.2d at 992.

Similarly, in the present case, the defendants were entitled as of right to the liquidated damages when the Bank refused to comply with their request, regardless of the Bank’s motivation. Accordingly, we cannot conclude that the trial court erred in granting the petitions for liquidated damages on this basis.

As its fourth issue, the Bank contends that the court erred in granting the petitions for liquidated damages because the defendants did not satisfy the statutory requirements for relief pursuant to § 8104. Specifically, the Bank claims that (a) it had not received satisfaction of the outstanding obligations under the equipment leases when the initial demand for satisfaction was received; (b) the defendants failed to make a written request for satisfaction to the Bank as required by Marston v. Tryon, supra; and (c) the defendants failed to tender the required costs with their request for satisfaction of the judgment.

Again, the Bank is claiming that it had not received satisfaction of the outstanding obligations under the equipment leases when the defendants demanded satisfaction on March 18, 1993. However, the trial court, in its January 5, 1994 order, resolved this issue. Memorandum in Support of Order, dated January 5,1994. “In order to preserve the right to appeal from an order which finally adjudicates a dispute between litigants, it is beyond question that the appeal must be filed within 30 days of the date of the order.” In re Greist, 431 Pa.Super. 188, 191, 636 A.2d 193, 195 (1994); Pa.R.A.P. 903(a). As the Bank failed to appeal the January 5, 1994 order within 30 days, this Court is without the authority to revisit this issue.

The Bank also claims that the defendants failed to satisfy the requirements of § 8104(a) because they did not make a written request for satisfaction to the Bank but, rather, sent such a request to the Bank’s counsel. In support of this claim, the Bank cites Marston, supra, which held that the written demand for satisfaction of a judgment must be sent directly to the judgment creditor and not to the creditor’s attorney. However, we find the Bank’s reliance on this decision to be misplaced. In the century that has elapsed since that decision was rendered, our supreme court has promulgated Rules of Civil Procedure that govern the service of legal papers. Rule 440(a) provides that “[s]ervice shall be made by handing or mailing a copy [of all legal papers other than original process] to or leaving a copy for each party at the address of the party’s attorney of record.... ” Pa.R.C.P. 440(a). Moreover, this rule is applicable to actions brought pursuant to § 8104, which provides for “written notice in the manner prescribed by general rules.” 42 Pa.C.S. § 8104(b). Thus, we conclude that Marston is no longer good law, and service of a written request for satisfaction of a judgment can properly be made upon the judgment creditor’s attorney. Accordingly, the Bank’s claim of improper service is without merit.

The Bank further contends that the defendants failed to comply with § 8104 because the defendants failed to include the filing fees necessary for entry of satisfaction with the demand letter. However, the Bank concedes that Sunseri’s March 18, 1993 letter included a $10.00 check, an amount equal to the filing fee for a praecipe for entry of satisfaction. Brief for Appellant at 24. Moreover, in its review of this claim, the trial court found that the Bank had a significant overage resulting from the sale of the equipment which covered the satisfaction costs. Trial Court Opinion, dated April 13, 1995, at 9-10. We agree and, thus, conclude that this contention is without merit.

As its final issue, the Bank contends that the trial court erred when it refused to consider the Bank’s submitted depositions by written interrogatories. After the defendants filed their petitions for liquidated damages, the court ordered the parties to proceed in accordance with Pa.R.C.P. 209. Consequently, the attorneys for both parties deposed Sunseri. Thereafter, the Bank attempted to submit what they termed “depositions by written interrogatories.” These consisted of questions by one attorney for the Bank directed to the Bank’s principle attorney and one of the Bank’s vice presidents. The trial court found that these depositions were not conducted so as to allow the defendants to cross-examine the deponents. Rather, it concluded that they were self-serving attempts at giving uncontested testimony, in the nature of affidavits. Opinion, supra, at 8. We agree with this determination. Thus, we conclude that these documents do not satisfy the provision of Rule 209 which provides for the taking of depositions regarding disputed issues of fact. Accordingly, the trial court did not err when it refused to consider these documents.

Based upon the foregoing, we affirm the order that awarded liquidated damages to the defendants.

Order AFFIRMED.

CAVANAUGH, J., concurs in the result.


author: CERCONE, Judge:

text:
    674 A.2d 1085
    SOVEREIGN BANK and New Home Financial Services, Inc. v. Richard A. HARPER, Dianne C. Harper, and Robert J. Carey Appeal of Robert J. CAREY. SOVEREIGN BANK and New Home Financial Services, Inc. v. Richard A. HARPER, Dianne C. Harper and Robert J. Carey Appeal of Richard A. HARPER and Dianne C. Harper.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1995.
    Filed March 7, 1996.
    Reargument Denied May 16, 1996.

      Robert J. Carey, West Chester, in propria persona (at 4235) and for appellants (at 412).
    Daniel B. Huyett, Reading, for appellee.
    Before KELLY, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an interlocutory appeal and cross-appeal as of right from an order which granted a preliminary injunction and directed a Revocation of Deed to be stricken. See Pa.R.A.P., Rule 311(a)(4), 42 Pa.C.S.A. (interlocutory appeals from orders granting injunctions). We affirm.

The instant case had its inception in November of 1988 when plaintiff/appellee Sovereign Bank (Sovereign) made a loan in the sum of $2,775,000.00 to Quail Run Homes, Ltd. (Quail Run), a Pennsylvania corporation. Defendant/appellant Richard A. Harper was the sole shareholder of Quail Run, a residential subdivision located in Franklin Township, Chester County, Pennsylvania. Mr. Harper and his wife, defendant/appellant Dianne C. Harper, both signed a written agreement with Sovereign to act as sureties for the Quail Run loan. The Harpers’ suretyship obligations were secured by second mortgage liens on nine separate tracts of land. These premises (the Turkey Hill properties), are subject to leases with Turkey Hill Minit Markets, Inc. and all are used for running convenience stores. The Turkey Hill properties are located in five different Pennsylvania counties: Berks, Lancaster, York, Lebanon and Dauphin. Before the suretyship agreement was signed, these properties had been encumbered by a blanket first lien mortgage with an outstanding balance of more than $700,000.00 in favor of Elverson National Bank. See Trial Court Opinion dated January 24, 1995, docketed January 25, 1995 at 2-5 (factual findings 1-7).

The subdivision at Quail Run was not as financially successful as the parties had hoped. In order to avoid defaulting on the loan with Sovereign, Mr. Harper auctioned all unsold lots at Quail Run on April 3,1993. Later that month, the Harpers and Sovereign entered into a written loan modification agreement with a subsequent amendment which was signed on May 24, 1993. Defendant/appellant Robert J. Carey, Esquire, represented the Harpers during their loan renegotiations with Sovereign. The written loan modification agreement provided, inter alia, that Mr. Harper would pay over the net proceeds of the Quail Run auction sale to Sovereign. Pursuant to the amendment, the Harpers executed “deeds in lieu of foreclosure” for the Turkey Hill properties. The deeds named appellee New Home Financial Services (New Home), Sovereign’s wholly owned subsidiary, as the “designated grantee.”

The Harpers delivered the deeds to Sovereign to be held in escrow until Sovereign could properly investigate the Turkey Hill properties and determine ■ whether environmental problems existed, and whether there was pending litigation or some other defect of title. Sovereign agreed to release the Harpers from any further liability if they complied with all of the terms and conditions of the original loan modification agreement signed on April 27, 1993 and the May 24th amendment. These agreements also indicated that upon delivery of the deeds in lieu of foreclosure to Sovereign or its designated grantee, the Harpers were to have no further right, title or interest in or to the deeds or any right to control the use or disposition of the properties by either Sovereign or New Home. Id. (factual findings 8-15).

On September 9, 1994, Paul J. Schmidt, entered into an agreement of sale with Sovereign to purchase the nine Turkey Hill properties for the price of $1,080,000.00. Settlement was scheduled for 9:30 a.m. on November 23, 1994, the day before the Thanksgiving holiday. However, approximately forty-five minutes before the closing, Attorney Carey telephoned counsel for Sovereign and New Home to say that on the previous day he had recorded a “Revocation of Deed” for each of the nine Turkey Hill properties. Not surprisingly, the purchaser’s title insurance company refused to issue title insurance coverage for any of the nine properties. The buyer thereupon declined to proceed with settlement. Mr. Schmidt also threatened to exercise the rescission clause in the agreement of sale if the cloud to marketable title could not be quickly cleared. Id. (factual findings 16-22).

The following Wednesday, November 30, 1994, Sovereign and New Home commenced the action underlying this appeal by filing a complaint in equity with an accompanying motion requesting injunctive relief against the Harpers and Mr. Carey. The filings specifically sought protection from any interference with the sale of the Turkey Hill properties. The lower court’s docket indicates that on that date, the Honorable Scott D. Keller, acting on behalf of the Honorable Thomas J. Eshelman, scheduled a preliminary injunction hearing for December 5, 1994. Judge Keller issued a Rule Returnable which assigned the matter to the Honorable Frederick Edenharter. The Rule also directed Mr. Carey either to disclose the Harpers’ address within five hours of his receipt of the complaint, or to accept service of the complaint on behalf of the Harpers. Rule Returnable dated 11/30/94. Additionally, Judge Keller granted appellees permission to serve the Harpers by Federal Express instead of certified mail if Mr. Carey chose to reveal their location rather than accept service on their behalf. Id.

On December 5, 1994, Judge Edenharter recused. The hearing on the preliminary injunction was rescheduled for December 9, 1994 and the case was reassigned to the Honorable Albert A. Stallone. See orders docketed 12/5/94 and 12/6/94. When the hearing convened on the 9th, Mr. Carey indicated that he had spoken with the Harpers on an unspecified date, and that they did not intend to come to Pennsylvania from South Carolina unless it was “necessary.” N.T. 12/9/94 at 8-9. Mr. Carey also stated that the Harpers had agreed to authorize him to act on their behalf, but only if plaintiffs permanently dismissed him as a party defendant. Id. at 9-10. Sovereign and New Home declined to permanently dismiss Mr. Carey, who would not accede to a temporary dismissal “without prejudice.” Id. at 13-14.

Judge Stallone considered the fact that the plaintiffs’ difficulties in effectuating service were initially created by the Harpers’ failure to notify their mortgage holder, Sovereign, of their forwarding address. This problem was compounded when Mr. Carey refused to comply with Judge Keller’s order and disclose the Harpers’ whereabouts. Furthermore, neither Mr. Carey nor the Harpers had notified the court that the Harpers would not be present and had not retained new counsel. In light of these circumstances, because several witnesses were waiting to testify, and also because he had deliberately rearranged the court’s calendar to accommodate the preliminary injunction hearing, Judge Stallone decided to proceed in order to develop an understanding of the issues at stake in the case. Id. at 9, 15-17, 136-37.

When the hearing concluded shortly after 4:00 p.m. that Friday afternoon, Judge Stallone stated that the evidence clearly supported Sovereign’s petition. N.T. 12/9/94 at 137-38. Consequently, he ruled, on the record, that the motion for preliminary injunction was granted. Id. The chancellor deliberately postponed drafting and entering any written order so that he could conduct a conference with the parties after they had an opportunity to consider and recommend language that would fully explain the obligations to be imposed. Id. at 138-147. Nevertheless, Judge Stallone extensively discussed the parameters which he considered necessary for any such order. Id. Furthermore, Judge Stallone explicitly directed Mr. Carey not to “interfere in any way” with the properties and to do nothing affecting the case until after the conference. Id. at 142. The trial court scheduled the conference for 11:30 a.m. on the next business day, Monday December 12, 1994. Id. at 143. The transcript clearly indicates that the late morning time was selected for Mr. Carey’s convenience. Id.

Despite the unequivocal instructions of the trial judge to refrain from impairing in any way the rights of Sovereign or New Home, early on the morning of December 12th, Mr. Carey filed a summons initiating a companion law suit on behalf of the Harpers. N.T. 12/12/94 at 5. The action named Sovereign, New Home, and Sovereign’s counsel as party defendants. Id. When the conference convened, Mr. Carey informed Judge Stallone of this fact, and also stated that he had filed a praecipe for lis pendens. Id. Mr. Carey did not specify whether praecipes had been filed in each county where Turkey Hill property is located or whether the filings only occurred in Berks County.

Judge Stallone duly considered this new problem and determined that it did not change the outcome of the issues before the court because his ruling on the preliminary injunction was operative when orally promulgated at the hearing conducted December 9th. Thereupon Judge Stallone entered the following written order setting forth the terms of the prehminary injunction:

AND NOW, this 12th day of December, 1994, retroactive and effective as of December 9, 1994, upon consideration of plaintiffs’ motion for preliminary injunction and hearing requesting the striking of a Revocation of Deed (“Revocation of Deed”) dated November 21, 1994 which identifies the declarants as Richard A. Harper and Dianne C. Harper, his wife, and the properties affected as [the Turkey Hill properties] (the “Properties”), and the response thereto, IT IS HEREBY ORDERED AND DECREED that plaintiffs’ motion is GRANTED.
IT IS FURTHER ORDERED THAT:
1. Defendants Richard A. Harper and Dianne C. Harper shall by December 16, 1994 cause to be withdrawn and stricken the Revocation of Deed filed in Berks, Lancaster, York, Lebanon and Dauphin Counties;
2. Upon the filing of this Order in the Recorder of Deeds Offices of Berks, Lancaster, York, Lebanon and Dauphin Counties or any other appropriate office or place, the Revocation of Deed attached hereto shall be deemed stricken and cancelled and shall have no further force or effect at any time thereafter;
3. Defendants Richard A. Harper, Dianne C. Harper and Robert J. Carey are enjoined from taking any action to cloud plaintiffs’ title to the Properties or to interfere with the sale of the Properties; and
4. This order shall be binding on the parties until further Order of Court.
Plaintiffs shall post a surety bond (or check in lieu of bond) in the amount of $500 within two days of this order.

Order dated and docketed 12/12/94 (the specific addresses of the Turkey Hill properties have been omitted). Mr. Carey made an oral motion for a supersedeas pending appeal, which the trial court denied. Finally, Judge Stallone indicated on the record that Mr. Carey’s conduct in this matter was subject to sanctions. Id. at 6-7.

Mr. Carey immediately filed a notice of appeal to the Superior Court, accompanied by an emergency petition for supersedeas and suspension of injunction. This court denied the motion on December 14, 1994. The Harpers subsequently filed a separate timely notice of appeal. Appellants present two issues for our consideration: (1) whether the trial court erred as a matter of fact and law in granting the mandatory preliminary injunction; and (2) whether the trial court erred in declaring the preliminary injunction to be “retroactive” in order to preempt the action commenced on December 12,1994 on behalf of the Harpers.

As an initial point, we note that an appellate court’s review of the grant or denial of a preliminary injunction is limited to a determination of whether any apparently reasonable grounds existed for the action taken by the trial court; appellate courts will not review the merits of the controversy itself. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 269, 479 A.2d 452, 454 (1984). The Superior Court may interfere with the chancellor’s decision regarding a preliminary injunction only if the certified record reveals that no grounds exist to support the decree, or that the rule of law relied upon was either palpably erroneous or misapplied. Coatesville Development Company v. United Food Workers, 374 Pa.Super. 330, 337, 542 A.2d 1380, 1384 (1988) (en banc).

In order to sustain a preliminary injunction, the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.

Willman, supra (emphasis in original; citations omitted). An injury is “irreparable” if it cannot adequately be compensated by money damages. New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 463-64, 392 A.2d 1383, 1385 (1978).

The preliminary injunction set forth above contains both prohibitory and mandatory provisions. The long-standing law of this Commonwealth recognizes the propriety of employing a mandatory injunction as a preventive remedy. See, e.g., Audenried v. Philadelphia & R.R. Co., 68 Pa. 370 (1871); Appeal of Brown, 62 Pa. 17 (1869); Appeal of Mammoth Vein Consolidated Coal Co., 54 Pa. 183 (1867). Because a mandatory injunction compels the defendant to perform an act, rather than merely refraining from acting, courts will only grant a mandatory injunction upon a very strong showing that the plaintiff has a “clear right” to relief. Roberts v. Board of Directors of the School District of Scranton, 462 Pa. 464, 469-70, 341 A.2d 475, 478 (1975); Trainer v. International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of U.S. and Canada, Local No. 516, of Chester, 353 Pa. 487, 491, 46 A.2d 463, 465 (1946). However, this does not mean that the party seeking a mandatory preliminary injunction must establish his or her claim absolutely. Shenango Valley Osteopathic Hospital v. Department of Health, 499 Pa. 39, 51, 451 A.2d 434, 440 (1982). Pennsylvania law places the burden upon the party seeking an injunction to establish his or her own rights as well as the inequitable nature of the defendant’s conduct. Straup v. Times Herald, 283 Pa.Super. 58, 68, 423 A.2d 713, 718 (1980). Nevertheless, the defendant must show that his or her conduct was reasonable or that a defense exists to the plaintiffs claims. Dougherty v. Pennypack Woods Home Ownership Association, 181 Pa.Super. 121, 126, 124 A.2d 703, 705-06 (1956).

The record certified to this court shows that the chancellor was fully apprised of the enhanced standard applicable to mandatory injunctions and of the petitioners’ burden of proof in this regard. See N.T. 12/9/94 at 43-44, 116, 131. Mindful of the applicable scope and standard of review, we have carefully examined the record in conjunction with the chancellor’s explanation of why he granted the petition for an injunction. For appellants’ benefit, we shall briefly address each of the elements which are necessary in order to justify the grant of injunctive relief.

Appellees presented substantial evidence that all rights pertaining to the Turkey Hill properties had been conveyed to Sovereign’s designated grantee, New Home, pursuant to the loan modification agreements signed by the Harpers. See N.T. 12/9/94 at 18-74; Exhibits 3-11 (deeds conveying the Turkey Hill properties from the Harpers to New Home Financial Services, Inc.). Beth Ann Moore, Vice-President of Sovereign’s Commercial Loan Department, testified that the purpose of the loan modification agreements was to permit Sovereign to salvage as much as it could from the failed real estate subdivision at Quail Run and to provide the Harpers with a release of any further liability to the bank. N.T. 12/9/94 at 67-69. According to Ms. Moore, the inducement to the Harpers to convey the Turkey Hill properties rather than forcing Sovereign to foreclose on them was substantial, involving roughly $620,000 in personal loan forgiveness. Id. at 68.

By way of contrast, appellants made no effort at the hearing to refute appellees’ evidence. On appeal, they have stressed the fact that appellees’ claim to title is weak because the deeds to the Turkey Hill properties were never recorded. However, recording a deed is not essential to establish its validity; title to real estate may be passed by delivery of the deed without recording it. Matter of Pentrack’s Estate, 486 Pa. 237, 240, 405 A.2d 879, 880 (1979); Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961). In light of all the pertinent evidence, we conclude that the chancellor properly found that appellees demonstrated a “clear right” to relief within the meaning of the enhanced requirements concerning mandatory injunctions.

The next question is whether appellees’ need for relief was “immediate.” The certified record shows that the terms of the agreement of sale did not require Mr. Schmidt to purchase the Turkey Hill properties unless Sovereign and New Home could convey “good and indefeasible title,” valid of record, and insurable by the title insurance company of the' buyer’s choice. See Exhibit 12 ¶ 3(a) (agreement of sale dated 9/9/94). Testimony indicated that if the title defect could not be cured quickly, Mr. Schmidt intended to exercise his legal rights, cancel the agreement of sale, and “do something else with [his] money.” N.T. 12/9/95 84. This evidence is sufficient to support the chancellor’s determination that appellees needed an immediate resolution for their impasse with the Harpers.

Our final inquiry is whether appellees would suffer an “irreparable injury” if the chancellor refused to grant a preliminary injunction. An injury is regarded as “irreparable” if it will cause damage which can be estimated only by conjecture and not by an accurate pecuniary standard. Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 522, 573 A.2d 575, 586, appeal denied, 527 Pa. 596, 589 A.2d 687 (1990). See John G. Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 8, 369 A.2d 1164, 1167 (1977) (plaintiff may establish “irreparable” harm by proving the likelihood of a loss that is not entirely ascertainable and hence compensable by money damages). For purposes of a preliminary injunction, harm must be irreversible before it will be deemed “irreparable.” Boehm, supra.

Pennsylvania courts sitting in equity have jurisdiction to prevent the continuance of acts prejudicial to the interest of individual rights, including the authority to enjoin wrongful breaches of contract where money damages are an inadequate remedy. Straup v. Times Herald, 283 Pa.Super. at 68, 423 A.2d at 718. In the commercial context, the impending loss of a business opportunity or market advantage may aptly be characterized as an “irreparable injury” for this purpose. For example, in the case of John G. Bryant Co. v. Sling Testing and Repair, Inc., supra, our Supreme Court approved a preliminary injunction enforcing an anticompetitive employment covenant on the grounds that the alleged interference with customer relationships would be “irreparable” because the extent of the injury was inherently unascertainable, and hence incapable of being fully compensated by money damage. Likewise, in Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 445 A.2d 1288 (1982), this court held that a newspaper would suffer irreparable injury by being deprived of a popular syndicated feature. The Superior Court found that loss of the “Peanuts” comic strip would hamper efforts to compete for the business of the customers of a defunct publication. The loss was considered irreparable as the number of lost customers could not be accurately tabulated.

The evidence discussed above shows that in the instant case, Mr. Schmidt intended to cancel the agreement of sale for the Turkey Hill properties if appeliees could not provide him with clear title in the very near future. Appellants are correct in their contention that the potential profit, and hence the possible loss, on this particular real estate deal are both readily calculable. However, that is not the only issue at stake. The testimony presented at the hearing indicated that the Turkey Hill Properties are “questionable” investments in that they have been subjected to serious environmental contamination. N.T. 12/9/94 at 35, 105, 109, 113. At least one of these parcels is already the focus of pending environmental litigation while another is a likely candidate for suit because it contains a structure improperly located over a sewer line. Id. at 35. Moreover, all of the properties are subject to long-term leases with terms which are extremely unfavorable to the land owner/lessor. Id. at 31-32. Despite almost two years of aggressively attempting to market the properties, Sovereign had located no prospective buyer (other than Mr. Schmidt) who was willing to accept these serious drawbacks, prepared to rectify the environmental damage, and willing to pay a reasonable approximation of the appraised value for the land. Id. at 34-36. Testimony established that Mr. Schmidt was even willing to pay cash for the properties and had imposed no financing contingencies in the agreement of sale. Id. at 36. See Exhibit 12 (agreement of sale dated 9/9/94).

We find that these factors more than adequately justify the chancellor’s conclusion that appellants’ behavior would irreparably harm appellees by depriving them of a bona fide market advantage deriving from the agreement of sale with Mr. Schmidt. Sovereign clearly wanted to take advantage of the business opportunity presented by Mr. Schmidt’s offer thereby limiting its liability and ending further losses in connection with the loan to the Harpers. It is simply impossible to calculate the length of time Sovereign might need to search for another buyer willing to accept the drawbacks of the Turkey Hill properties. Moreover, there is no guarantee that Sovereign could ever locate another potential buyer who combines the advantages of offering a reasonable approximation of the appraised value for the land with the ability to handle his own financing and pay cash at the closing. In light of these facts, we find that the chancellor based his decision on reasonable grounds, and that the certified record contains no indication that Judge Stallone either misapplied Pennsylvania law or relied on a palpably erroneous interpretation of our law in reaching his determination. See Coatesville Development Company v. United Food Workers, supra.

Appellants also contend that the chancellor committed an abuse of discretion and/or an error of law by making the preliminary injunction “retroactive” to a time prior to December 12, 1994, the date on which the written order was entered. We cannot agree that this is a proper characterization of Judge Stallone’s actions. First, the chancellor clearly indicated at the close of the hearing held December 9, 1994, that he was granting the relief requested by appellees and that he was issuing a preliminary injunction in favor of Sovereign and New Home. N.T. 12/9/94 at 137-38. As discussed above, Judge Stallone explained- the terms of the preliminary injunction and discussed the responsibilities of all the parties. Id. at 138-47. Although the chancellor deliberately postponed entering a written version of his ruling so that the parties would have an additional opportunity to propose specific language for the order, he left them in no doubt as to their obligations. Moreover, the certified record is quite clear that the written order as entered on December 12, 1994 contained no surprises for the appellants and merely constituted a written expression of the oral ruling issued December 9th.

We note additionally that the Superior Court ordinarily upholds the Court of Common Pleas’ power to enter an order retroactively (or nunc pro tunc) where the purpose of such an action is to avoid an injustice. Chapliski v. Churchill Coal Corporation, 349 Pa.Super. 285, 288, 503 A.2d 1; 3 (1985) (citing Fitzgerald v. Stewart, 53 Pa. 343 (1866)). In this case, Judge Stallone explicitly warned Mr. Carey on December 9th to refrain from taking any action which would impair appellees’ rights in the Turkey Hill properties and to do nothing further in the matter until after the conference to be held the following Monday morning. N.T. 12/9/94 at 142. To accommodate Mr. Carey, the chancellor scheduled the Monday-conference at 11:30 a.m. rather than earlier. Mr. Carey responded by abusing the court’s indulgence and disobeying Judge Stallone’s instructions. We see no indication that the chancellor erred by drafting his written order in response to Mr. Carey’s early morning activities on December 12th and thereby avoiding injustice to appellees.

Order affirmed.

      . The amendment signed May 24, 1993 specifically states that if Sovereign’s investigation disclosed unsatisfactory information concerning title, environmental impact or other problems, Sovereign could direct the escrow agent to return one or more of the "deeds in lieu of foreclosure” to the Harpers. In the event Sovereign directed any deed to be returned, the Harpers would take title to the property therein described and the "deed in lieu of foreclosure" would be null and void with respect to that property. The agreement also explicitly provides that delivery of any deed from the escrow agent to Sovereign, or to Sovereign's designated grantee, would vest title solely in Sovereign or the grantee. Plaintiff's Exhibit No. 2 at 3-4, ¶ A-4(b).

        Testimony was presented at the hearing indicating that Mr. Carey actually violated the terms of the written agreements between the Harpers and Sovereign by delivering the deeds in lieu of foreclosure directly to Sovereign rather than honoring the terms of the escrow agreement. N.T. 12/9/94 at 96-97, 102 (testimony of Steven Douglas Buck). Thus, the evidence supports the inference that Mr. Carey had actual knowledge that the deeds to the Turkey Hill properties were in the possession of Sovereign and that the Harpers’ rights were extinguished. See also id. at 61-65, 67 (testimony of Beth Ann Moore indirectly corroborating Mr. Buck’s statements concerning the escrow arrangements). Mr. Carey presented no contrary evidence at the hearing.

        . A portion of the purchase price was to be applied in satisfaction of Elverson National Bank's first lien mortgage. Sovereign expected to realize approximately $280,000 while the Harpers would receive roughly $620,000.00 in loan forgiveness. N.T. 12/9/94 at 66-68.

      . Andrew Monastra, Esquire, Executive Vice-President for Sentry Abstract Company and an experienced real estate attorney, testified that he had never heard of a "Revocation of Deed” on the date of the aborted closing. N.T. 12/9/94 at 78. He therefore contacted an underwriter at Commonwealth Land Title, a firm with over one hundred years of experience in the field. Id. Upon consultation with Commonwealth’s home office, the underwriter could find nobody who was familiar with this type of filing. However, Commonwealth's position was that a “Revocation of Deed” constituted a defect rendering title uninsurable and unmarketable. Id. at 78-79. Based on his conversation with the Commonwealth underwriter, and his reading of the revocation documents, Mr. Monastra concluded that the title to the Turkey Hill properties could not be insured as "good and marketable.” Id. at 79, 92-95.

      . The transcript from the preliminary injunction hearing indicates that Mr. Carey did not comply with Judge Keller’s order, and that he refused to disclose the Harpers’ location. N.T. 12/9/94 at 12. The Harpers have no permanent residence in Pennsylvania, and they moved from their last known address without notifying either Sovereign or New Home of a forwarding address. Id. at 16-17. Although the Harpers executed the Revocation of Deed in Buncombe County, North Carolina, the document lists Mr. Carey’s law offices at “780 Market Street, Suite 280, West Chester, PA 19382” as the "address of the Declarants.” See Exhibit 15 at 3. The Harpers actually reside in Charleston, South Carolina, not in West Chester, Pennsylvania or Buncome County, North Carolina.
      Counsel for Sovereign was unable to learn the proper location for service on the Harpers until December 5, 1994, the date originally set for the preliminary injunction hearing. Id. The certified record contains a certificate of service indicating that on December 7, 1994, the Harpers were personally served in Charleston, South Carolina with a copy of the complaint, the motion for preliminary hearing, the order scheduling the hearing, and a notification of the rescheduled hearing date of December 9, 1994. The certificate of service further indicates that the Harpers were also served with all of the above documents by Federal Express and by certified mail on December 5, 1994. See Certificate of Service filed 12/8/94, docketed 12/9/94.

      . We note that Mr. Carey’s conduct in this matter on December 12th directly contradicts his repeated assertions at the December 9th hearing to the effect that he no longer represented the Harpers, that he could not and would not act for them, and that continuing to represent them would be a direct conflict of interest for him. See, e.g., N.T. 12/9/94 at 6, 9-13, 16, 17, 136.

      . We note that the trial court docket incorrectly shows the order’s effective date as December 3, 1994 rather than December 9, 1994.

      . Mr. Carey and the Harpers have not filed separate briefs. The appellants’ brief in this case was prepared and filed by Mr. Carey for the Harpers and on his own behalf.

      . We are cognizant of appellants’ argument that the chancellor erred by applying the standard our Supreme Court promulgated in Shenango Valley Osteopathic Hospital v. Department of Health, 499 Pa. 39, 451 A.2d 434 (1982) rather than the version set forth by the Superior Court in Rollins Protective Services Company v. Shaffer, 383 Pa.Super. 598, 557 A.2d 413 (1989) and Blair Design and Construction Co., Inc. v. Kalimon, 366 Pa.Super. 194, 530 A.2d 1357 (1987). We cannot agree with this contention. First, the trial courts of this Commonwealth are certainly entitled to rely upon the decisions of our Supreme Court. Second, the standard of review as explained in these Superior Court cases is essentially the same as that contained in Shenango, supra. The only difference is that these particular Superior Court decisions treat the Supreme Court’s definition of "irreparable injury” as a separate and explicit requirement which must be proved by the plaintiff. This distinction is irrelevant, however, because the pertinent Supreme Court cases clearly indicate that the plaintiff must demonstrate that money damages will provide inadequate recompense. See, e.g., New Castle Orthopedic Associates v. Burns, supra. We note, furthermore, that the chancellor was well aware of this requirement and discussed it at the preliminary injunction hearing. N.T. 12/9/94 at 130-132.

      . Ms. Moore testified that except for Mr. Schmidt, the “level of interest” displayed by potential buyers was “significantly below the appraised values” for the Turkey Hill properties. N.T. 12/9/94 at 34-35.


author: McEWEN, Judge.

text:
    674 A.2d 1095
    John McGRATTON, Jr., Appellee, v. Melvina BURKE and Joseph Burke, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1995.
    Filed March 7, 1996.
    Reargument Denied May 16, 1996.

      Louis E. Bricklin, Philadelphia, for appellants.
    Joanne Fishman, Philadelphia, for appellee.
    Before McEWEN, SAYLOR and BROSKY, JJ.
   McEWEN, Judge.

This appeal has been taken by Melvina and Joseph Burke (hereinafter appellants) from the judgment in the amount of $75,000.00 entered in favor of John McGratton, Jr. (hereinafter appellee), following a nonjury verdict in this action instituted by appellee as a result of an automobile accident involving the parties. We are constrained to vacate the judgment and remand.

Appellants contend that they are entitled to judgment n.o.v. or, in the alternative, a new trial, and frame their arguments in their brief as follows:

The trial court erred in denying [appellants’] request for a medical examination of [appellee] merely because the request was made after an arbitration hearing, where the nature and extent of [appellee’s] injuries were in dispute and the request was made several months prior to trial. The evidence presented at trial was insufficient to support the [trial] court’s finding that the [appellee] had sustained a “serious injury,” as defined by 75 Pa.C.S. § 1702.
The evidence presented at trial was insufficient to support the [trial] court’s finding that the [appellee] had sustained damages in the amount of $75,000.00 for pain, suffering and the loss of life’s pleasures.

Appellee, who conceded that, on the date of the accident, October 10, 1991, he was subject to the limited tort verbal threshold provided by Section 1705(d) of the MVFRL, 75 Pa.C.S. § 1705(d), contended that he was entitled to recovery of noneconomic damages because he had sustained a “permanent injury” to his back when the vehicle in which he was a passenger was struck in the rear by the automobile operated by appellant, Melvina Burke. Appellee, who was 20 years old at the time of the accident, presented himself at the emergency room of the Frankford Torresdale Hospital shortly after the accident and was examined, x-rayed, and released. Appellee, who alleged that he was bed-ridden for three days and unable to work for approximately one week following the accident, subsequently came , under the care of Dr. Maurice Singer, an osteopathic physician, who prescribed muscle relaxants and physical therapy treatment. Appellee thereafter received physical therapy once a month for one year, during which time objective testing procedures indicated that the symptoms appellee reported were related to muscle strain of the lower back. Appellee ceased the monthly physical therapy treatments in February of 1993.

The arbitration panel which heard the case on October 19, 1993, pursuant to 42 Pa.C.S. § 7361(a), restricted its award in favor of appellee to an economic loss in the amount of $2,893.95, because the majority of the members of the panel determined that appellee had not sustained a “serious injury” as defined by the Motor Vehicle Financial Responsibility Law, and, thus, was not eligible for recovery of any damages for pain and suffering.

When appellee filed a timely appeal to the Court of Common Pleas, appellants filed a motion to compel an independent medical examination (hereinafter “IME”) of appellee. The motion was denied and the matter proceeded to trial on May 4, 1994, before the distinguished Judge G. Craig Lord, sitting without a jury, who found that appellee had suffered a “serious injury” for purposes of the MVFRL, and, therefore, awarded noneconomic damages to appellee in the amount of $75,000. After the trial court denied the post-trial motions of appellants, judgment was entered in favor of appellee in the amount of $75,167.36.

Appellants contend that the trial court erred in failing to find that their motion to compel appellee to appear for an independent medical examination was improperly denied. While we maintain an abundant respect for the jurisprudential scholarship of the trial court, we are constrained to agree. A trial court is authorized to order an independent medical examination of a plaintiff upon a showing of good cause for such an exam. Uhl v. C.H. Shoemaker & Son, Inc., 432 Pa.Super. 230, 234, 637 A.2d 1358, 1360 (1994); Pa.R.Civ.P. 4010(a). Whether good cause exists is a determination committed to the sound discretion of the trial court, whose decision may not be reversed in the absence of an error of law or abuse of discretion. Uhl v. C.H. Shoemaker & Son, Inc., supra at 234, 637 A.2d at 1360.

Pennsylvania Rule of Civil Procedure 4010(a) provides:

(a) When the mental or physical condition (including blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

Pa.R.Civ.P. 4010(a).

The requirement of “good cause” set forth in Rule 4010(a) is designed to protect parties against an unwarranted invasion of their privacy and preclude the use of such an examination for improper purposes. Uhl v. C.H. Shoemaker & Son, Inc., supra at 233, 637 A.2d at 1360; State Farm Insurance Companies v. Swantner, 406 Pa.Super. 235, 243-47, 594 A.2d. 316, 320-21 (1991). See also: Pa.R.Civ.P. 4010, Explanatory note (2). The rule further requires that the examinee’s physical or mental condition be “in controversy.” Rule 4010(a). Appellee does not dispute that his medical condition was “in controversy,” since the nature and extent of appellee’s injuries was the sole issue for resolution at trial in light of the stipulations concerning liability and the applicability of the limited tort threshold. Appellee contends, however, that the request was properly denied as appellants should have arranged for an IME prior to arbitration if they reasonably believed that such an examination was necessary to properly defend against the claims made by appellant.

While the motion to compel the examination was denied without explanation by the motions judge, Judge Lord has suggested in his post-trial motions opinion that the motion was denied not because of the absence of good cause, but rather because the request had first been presented after the arbitration hearing had been conducted, and even observed that:

In January 1994 it was well known by the Philadelphia trial bar that requests for medical examinations made after an arbitration hearing would generally be denied unless there was a significant change in the plaintiffs medical condition or other particular good cause was shown.

This observation is the subject of discussion by the eminent Judge Eugene Edward Maier, Supervising Judge of the Discovery Motion Court of the Court of Common Pleas of Philadelphia County, in Case Notes and Procedures of the Philadelphia Discovery Court, Section 10.3, who recites:

Post-Arbitration Discovery has been and will continue to be severely limited. Arbitration is a diversionary program to dispose of a claim without the extraordinary expense of and time of a Court and Jury trial. Generally speaking, post-arbitration interrogatories, request for production, depositions, medical exams, and other discovery requests, are not ordered, absent a showing of substantial change from Arbitration to trial. For example, where an Arbitration matter was litigated with a claim of a broken toe, but on appeal, severe ankle and back injuries were alleged, additional discovery was ordered.

Pennsylvania Rule of Civil Procedure 239(a) defines a local rule as “every rule, regulation, directive, policy, custom, usage, form, or order of general application, however labeled or promulgated, which is adopted and enforced by a court of common pleas to govern civil practice and procedure.” Pa. R.Civ.P. 239(a). The policy of the Philadelphia Court of Common Pleas to deny post-arbitration discovery requests is equivalent to a local rule pursuant to the definition provided by Pa.R.Civ.P. 239(a). However, if a practice or policy is to be effective and enforceable as a local rule, specific steps must be taken by the court of common pleas to promulgate, file, and publish the proposed rule.

It appears, however, that:

(1) No steps have been taken in the Philadelphia County Court of Common Pleas to fulfill the mandates of Pa. R.Civ.P. 239(c) regarding post-arbitration discovery,
(2) The Rules of the Philadelphia County Court do not contain a recitation of the policy regarding post-arbitration discovery, and
(3) The policy has not been filed with the Administrative Office of the Pennsylvania Courts or been published in the Pennsylvania Bulletin.

We, therefore, conclude that the policy of the Court cannot serve as a valid basis for the denial of a motion to compel an independent medical examination of a plaintiff where the physical condition of the plaintiff is clearly at issue and the request is otherwise in conformity with the Pennsylvania Rules of Civil Procedure.

In any event, and more essentially, the policy which prohibits all post-arbitration discovery is invalid as a result of the conflict with the Rules of Civil. Procedure governing compulsory arbitration, namely Pa.R.Civ.P. 1311 and 42 Pa. C.S. § 7361(d). It is well-established that “[l]ocal courts have the power to formulate their own rules of practice and procedure.” Rieser v. Glukowsky, 435 Pa.Super. 530, 541, 646 A.2d 1221, 1226 (1994). Accord: Murphy v. Armstrong, 424 Pa.Super. 424, 426-28, 622 A.2d 992, 994 (1993); Pennridge Elec., Inc. v. Souderton Area Joint School Auth., 419 Pa.Super. 201, 214, 615 A.2d 95, 102 (1992). However, local rules are intended to implement the statewide rules, Stock v. Arnott, 415 Pa.Super. 113, 120, 608 A.2d 552, 555 (1992), and may “ ‘not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.’ ” Murphy v. Armstrong, supra at 427, 622 A.2d at 994, quoting Pa.R.Civ.P. 239(b)(1).

Section 7361(d) of the Judicial Code, 42 Pa.C.S. § 7361(d), and Rule 1311 of the Rules of Civil Procedure provide for trial de novo following an appeal from an arbitration award. Our Supreme Court has previously held that a local rule, which limited the use at trial of witnesses who had not been called at a prior arbitration hearing, violated the de novo provision of the Judicial Code and the Rules of Civil Procedure, opining that the right to trial de novo included the right “to proceed to trial with no evidentiary limitations upon the parties other than those which would be applicable to an original trial.” Weber v. Lynch, 473 Pa. 599, 610, 375 A.2d 1278, 1283 (1977). The Weber court also concluded that, in providing for compulsory arbitration, the legislature “did not intend to limit the evidence presented at the de novo jury trial to that which had been presented to the arbitrators,” as it would severely infringe upon a party’s right to a trial by jury guaranteed by Article 1, section 6 of the Pennsylvania Constitution. Weber v. Lynch, supra at 607-09, 375 A.2d at 1282.

The instant refusal, based solely upon the aforecited policy, of the request to conduct an independent medical examination of the plaintiff, denied appellants the opportunity to present testimony from a physician who had examined appellee and who was qualified to offer testimony to refute the expert testimony presented by appellee on the issue of whether appellee had sustained a serious injury. This evidence was essential to the proper defense of the case, as evidenced by the comments of the trial judge at the close of the evidence that this was a “troublesome case,” that resolution was “on the cusp,” and that his decision as to whether appellee had, in fact, sustained a serious injury “could go either way.” Accordingly, we are constrained to conclude that application of the policy expressed in Section 10.3, which is contrary to Rule 1311 of the Pennsylvania Rules of Civil Procedure and Section 7361(d) of the Judicial Code, was error requiring the award of a new trial.

Judgment reversed. Case remanded. Jurisdiction relinquished.

      . Murray Dalinka, M.D., evaluated an MRI performed on March 7, 1992, and concluded that it revealed a normal lumbar spine, while Bong S. Lee, M.D., advised appellee’s treating physician that the MRI showed "no evidence of any discogenic disease” and that the “problem appears to mostly of soft tissue.... ”

      . As the Superior Court issued the en banc opinion in Dodson v. Elvey, 445 Pa.Super. 479, 665 A.2d 1223 (1995) on September 28, 1995, and the opinion did not appear in the advance sheets until November 24, 1995, the learned trial judge was without the benefit of that opinion when, on December 12, 1994, he ruled upon the post-verdict motions filed on July 18, 1994.

      . Pennsylvania Rule of Civil Procedure 239(c) sets forth the procedures for the implementation and promulgation of local rules by the courts of common pleas:
      (c) To be effective and enforceable:
      (1) A local rule shall be in writing.
      (2) Seven certified copies of the local rule shall be filed by the court promulgating the rule with the Administrative Office of Pennsylvania Courts.
      (3) Two certified copies of the local rule shall be distributed by the court promulgating the rale to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
      (4) One certified copy of the local rule shall be filed by the court promulgating the rule with the Civil Procedural Rules Committee, unless the rale relates to domestic relations matters, in which case it shall be filed with the Domestic Relations Committee.
      (5) The local rule shall be kept continuously available for public inspection and copying in the office of the prothonotary or clerk of court. Upon request and payment of reasonable costs of reproduction and mailing, the prothonotary or clerk shall furnish to any person a copy of any local rule.
      Pa.R.Civ.P. 239(c).

      . We have not ruled on the challenge to the finding of the trial court that the injury sustained by appellee was a "serious injury" as defined by the MVFRL. This issue may again be presented to the trial court upon remand.