author: CAVANAUGH, Judge:

text:
    526 A.2d 413
    Westley HALL v. Delores BROWN and Commonwealth of Pennsylvania Department of Public Welfare. Appeal of Delores BROWN.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1986.
    Filed May 26, 1987.

      John A. Lord, Philadelphia, for appellants.
    Richard A. Weisbord, Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN and MONTEMURO, JJ.
   CAVANAUGH, Judge:

This appeal arose out of an action for personal injuries sustained in a motor vehicle accident which occurred on October 15, 1979. Appellee Hall commenced suit by filing a complaint on July 1, 1980, and as a result of information obtained through depositions, suit was also instituted against the Commonwealth of Pennsylvania — the employer of the defendant at the time of the accident. Subsequently, the Commonwealth’s motion for summary judgment was granted by an order of the court dated October 28, 1983.

As the insurance carrier for defendant, appellant Government Employee’s Insurance Company (hereinafter Geico), entered into negotiations with appellee, resulting in the execution of several stipulations. The first stipulation outlined an agreement between the parties whereby the court would enter a verdict of $50,000.00, the full amount of Geico’s policy limits, along with an additional agreed verdict in the amount of $1,035.00 for property damage.

By an order dated January 30, 1986, a verdict in that amount was entered, and the court also “conditionally assessed” delay damages of $18,792.85 against the defendant, Delores Brown. The apparent reason for this conditional assessment was a separate stipulation whereby the parties agreed that the issue of liability for payment of the delay damages would be submitted to the trial court for adjudication. It was further stipulated that regardless of which party was found liable, the plaintiff below would not seek to collect from the defendant insured any amounts in excess of the policy limits.

The parties presented the issue of delay damages liability to the trial court by way of a motion to garnish filed by the plaintiff and Geico’s answer thereto. We note that this unusual procedure, in conjunction with the previously mentioned stipulations, had the intended effect of subjecting Geico to the jurisdiction of the court for the limited purpose of resolving a single issue. Consequently, although the defendant insured’s name still appears in the caption of this matter as the appellant, the true appellant before us is the insurer, Geico.

The trial court determined that appellant Geico, as insurance carrier for the defendant, was liable for delay damages of $18,792.85 in accordance with Rule 238. In its opinion, the court pointed out that Rule 238 was created to encourage early settlements, lessen congestion in the courts and compensate injured plaintiffs for the prior inability to utilize funds rightfully due them. Since Geico, through its contract with the insured, had sole authority to make settlement offers, and because it had exclusive use of funds later paid over to appellee, the trial court determined that Geico was responsible for the delay and was therefore liable under Rule 238.

The court took note of the rule of law requiring a showing of bad faith before an insurance carrier will be held liable for amounts in excess of the policy limits. It was held that failure to act within the mandate of Rule 238 is a per se determination that an insurer did not act with good faith in its efforts to dispose of a claim. Under the trial court’s analysis, if delay damages are found to be owing, and if the insurance carrier is found to be the “responsible” party pursuant to Rule 238, then the rule of law requiring a showing of bad faith before an insurer’s liability will be enlarged beyond the policy limits is simultaneously satisfied. Where delay damages are assessed in the typical situation in which a carrier controls the defense, such assessment conclusively establishes the carrier’s bad faith.

The lower court’s opinion relies on its “per se bad faith” proposition as the basis of a novel theory which effectively extends the contractual obligations of an insurance carrier well beyond currently recognized bounds. We cannot agree and accordingly vacate the order of the trial court finding Geico liable for delay damages.

The primary flaw in the trial court’s reasoning becomes clear when a comparison is made between the good faith standard and the factors necessary for a recovery of delay damages under Rule 238.

It is settled law that an insurer may be held liable for the entire amount of the judgment against its insured, regardless of the policy limits, if in handling the claim the insurer acted in bad faith in the discharge of its contractual duties. Cowden v. Aetna Casualty & Surety Company, 389 Pa. 459, 134 A.2d 223 (1957). By asserting a right under the policy to handle all claims, including a right to make a binding settlement, the insurer assumes a fiduciary position toward the insured and becomes liable to act in good faith and with due care in representing the interests of the insured. Gedeon v. State Farm Mutual Automobile Insurance Company, 410 Pa. 55, 188 A.2d 320 (1963); Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8 (1966); Moody v. Nationwide Insurance Company, 257 Pa.Super. 642, 390 A.2d 311 (1978). The insurer has not satisfied the good faith standard merely by demonstrating that it acted sincerely. More is required, including an intelligent and objective appraisal of the case in order to best determine the advisability of settlement. Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981). In order to recover, the insured must prove by clear and convincing evidence that the carrier acted in bad faith. Cowden, Supra.

As the preceding discussion demonstrates, a determination by the factfinder that an insurer has acted in bad faith toward its insured is anything but a mechanical one. Rather, it is one which relies on consideration of many difficult to quantify factors, such as the reasonableness of a refusal to settle in light of the particular facts and circumstances of the underlying claim. A finding that delay damages are due an injured plaintiff is fundamentally different from a determination that an insurer acted in bad faith.

Prior to our Supreme Court's holding in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), a decision as to whether a defendant was liable for delay damages, and if so, the extent of the award, was arrived at by a simple computation involving the dates of key events in the litigation, the size of the verdict and the amounts of any settlement offers made.

Following Craig, the mandatory provisions of Rule 238, which assess delay damages against a defendant with no determination as to which party was responsible for the delay, were suspended. Now, before the computational aspects of the Rule are brought to bear, the plaintiff must petition the court for such damages and a hearing may be held to resolve factual disputes. The factfinder will consider the respective responsibilities of the parties, presumably “charging” the plaintiff or defendant with various delays in much the same way that our courts presently conduct Rule 1100 hearings in criminal actions.

From the foregoing, it is clear that a determination that an insurance carrier is liable for delay damages, even under the more discretionary and fault-based analysis mandated by Craig, is something less than a finding that the carrier acted in bad faith. At best, it might be said that in some circumstances, the fact that an insured has been exposed to personal liability for delay damages may constitute evidence of bad faith. However, in a subsequent action by the insured or the insured’s assignee, the inquiry into the carrier’s bad faith in handling the claim would be complete by any means. It is not difficult to imagine a number of scenarios in which the carrier’s handling of a claim fully comports with its duties and obligations under the contract, but the insured is nevertheless obliged to pay all or a part of the damages assessed for delay. The carrier is entitled to have the reasonableness of its actions judged in view of the posture of the case during the time period at issue. It should be permitted to argue to the factfinder that a refusal to settle at a certain point or for a particular amount was not, under the circumstances, a breach of its contractual responsibilities. Serious questions of Due Process would therefore be raised if we were to consider liability under Rule 238 as a per se determination that an insurance carrier did not act with good faith in attempting to timely dispose of the claim.

It should be noted that Rule 238 does not provide for assessment of delay damages against the person or entity deemed responsible for the delay. Our reading of the Rule reveals that if such damages are found owing, the plaintiff may collect them from the defendant only. There is no provision for shifting liability to an insurer who has the sole right to conduct the defense. Where the carrier has paid the limits of its policy, its liability may be enlarged provided the defendant (or the plaintiff under an assignment of rights) is able to demonstrate in a subsequent action that it breached its duty to act in good faith. In the case at bar there has been no contention that the defendant insured assigned her potential claim for bad faith against Geico to the appellee. Instead, knowing that the carrier had paid its policy limits, appellee signed a stipulation releasing from liability the only party who, in our view, could be held liable.

We do not make this decision under any illusions about the role of an insured defendant in a civil action. That role may in fact be a limited one, largely governed by a contract between the defendant and the insurance carrier. The carrier has exclusive control over conduct of the defense, and in exercising its contractual right to effect settlement may expose the insured to liability for delay damages. However, a determination that such damages are owing is a matter separate and apart from the issue of whether a requirement of good faith has been met.

Accordingly, the order of the trial court finding Geico liable for delay damages is vacated.

      . While the actual text of this stipulation was not made a part of the record below, its terms and conditions were explained in the trial court opinion and were discussed by the parties in their briefs on appeal.

      . Pennsylvania Rule of Civil Procedure 238 provides:
      (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975 P.L. 390, 40 P.S. § 1301.101 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision of a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision:
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      (b) In arbitration under the Act of 1836, the amount of damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.
      (c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
      (d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.
      (f) If an action is pending on the effective date of this rule, or if an action is brought after the effective date on a cause of action which accrued prior to the effective date, damages for delay shall be computed from the date plaintiff files the initial complaint or from a date one year after the accrual of the cause of action, or from a date six (6) months after the effective date of this rule, whichever date is later.
      (g) This rule shall not apply to
      (1) eminent domain proceedings;

        (2) pending actions in which damages for delay are allowable in the absence of this rule.

      . In order for the case at bar (which was decided prior to Craig) to receive the post-trial delay damages hearing mandated by Craig, appellant would have had to raise the issue of the constitutionality of Rule 238 in the court below. Morgan v. Monessen Southwestern Railway Company, 513 Pa. 86, 518 A.2d 1171 (1986). Since this issue was raised for the first time on appeal, it has been waived, and the mandatory provisions of Rule 238 properly apply.


source: Caselaw Access Project

license: Public Domain

text:
    526 A.2d 417
    Nicholas A. SAMANGO, v. Vincent PILEGGI, Jr. and Gabriel Berk, Esquire v. CHELSEA TITLE AND GUARANTY CO. and Luigi’s Restaurant Co., Inc. Appeal of CHELSEA TITLE AND GUARANTY CO.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1986.
    Filed May 26, 1987.

      John J. Scroko, Philadelphia, for appellant.
    David N. Bressler, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   CAVANAUGH, Judge:

In this case we must determine (1) whether the court below erred in allowing the joinder of Chelsea Title and Guaranty Co. as an additional defendant, and (2) whether, in the procedural stance of this particular case, judgment was properly entered against the additional defendant even if it were improperly joined as an additional defendant?

The case was originally commenced by Nicholas A. Samango against Vincent Pileggi, Jr. and Gabriel Berk, Esquire, who were the defendants below. The action was in trespass and assumpsit. The basis for the suit was an alleged breach of a written agreement of sale dated May 19, 1979, of a liquor license to Mr. Samango. The complaint alleged that Mr. Pileggi warranted in the agreement of sale that he was the sole and unconditional owner of a liquor license and further alleged that a sum of money was to be held in escrow by Mr. Berk and that the sum was not returned to Mr. Samango in accordance with the agreement. The trespass action complained that the defendants made false representations. Mr. Samango sought compensatory damages and also punitive damages in excess of $50,000.00 from the defendants.

Vincent Pileggi, Jr. filed a third party complaint against the Chelsea Title and Guaranty Company and Luigi’s Restaurant Company, Inc. as additional defendants. The complaint against the additional defendants alleged, inter alia:

36. Furthermore, the additional defendants are liable to this defendant on the following cause of action which this defendant has against the additional defendants arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.
37. On or about September 29, 1978, this defendant and additional defendant Luigi’s Restaurant Company, Inc., entered into an Agreement of Sale, under which additional defendant Luigi’s Restaurant Company, Inc., agreed to sell to this defendant, and this defendant agreed to purchase from the additional defendant, that certain plenary liquor license # 0102-33-143-001, issued to said additional defendant by the City of Atlantic City. A true and correct copy of said Agreement of Sale is attached hereto, made part hereof and marked Exhibit “C”.
38. The closing under said Agreement of Sale took place on January 16, 1979 at the offices of additional defendant Chelsea Title and Guaranty Co.
39. At said settlement, this defendant and the additional defendants entered into a certain Escrow Agreement dated January 16, 1979, a true and correct copy of which is attached hereto, made part hereof and marked Exhibit “D”.
40. Under said Escrow Agreement, the amount of $50,000.00 was placed in escrow with, to be held by and invested in trust by, said additional defendant Chelsea Title and Guaranty Co., pending transfer of said liquor license from additional defendant Luigi’s Restaurant Company, Inc. to this defendant, and only to be released to additional defendant Luigi’s Restaurant Company, Inc. upon the transfer of said license pursuant to said Agreement of Sale dated September 29, 1978 (Exhibit “C” within one hundred and twenty (120) days from January 16, 1979).
41. Said liquor license was not so transferred within said one hundred and twenty (120) days, or at any other time.
42. Nevertheless, improperly and in violation and breach of said Escrow Agreement, said additional defendant Chelsea Title and Guaranty Co. on or about May 18, 1979, released said $50,000.00 to said additional defendant Luigi’s Restaurant Company, Inc., without the knowledge, permission or consent of this defendant.

The appellant, Chelsea Title and Guaranty Company, filed preliminary objections to the complaint which joined the additional defendants on the ground of misjoinder of causes of action. The preliminary objections were dismissed by White, J. on June 5, 1981. The action against the additional defendant, Luigi’s Restaurant Company, Inc., was dismissed by McCrudden, J.

Prior to the trial of the instant case, the original action by Mr. Samango against Messrs. Pileggi and Berk was discontinued. The matter continued to trial solely on the complaint of Pileggi against the additional defendant, Chelsea Title and Guaranty Company. The matter was heard before Katz, J., without a jury, who found in favor of Mr. Pileggi against the additional defendant in the amount of $50,000.00 plus interest in the amount of $20,750.00.

Chelsea Title and Guaranty Company appeals, alleging first that the court below improperly permitted the joinder of Chelsea Title and Guaranty Company as an additional defendant in the original action. Pa. R.C.P. 2252 (a) provides:

Rule 2252. Right to Join Additional Defendants

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

(Emphasis added.)

The agreement of sale of September 29, 1978, was between Mr. Pileggi and Luigi’s Restaurant and the escrow agreement of January 16, 1979, was between Mr. Pileggi and the additional defendants, Luigi’s Restaurant and Chelsea Title and Guaranty Company. These two agreements were the basis for joining the additional defendants and did not involve in any way Mr. Samango’s original claim against Messrs. Pileggi and Berk. Mr. Samango and Mr. Berk were not parties to the agreements of September 29, 1978 and January 16, 1979. The underlying claim in the original complaint and the complaint to join the additional defendants arose out of separate transactions and occurrences. We are cognizant that Rule 2252 (a) is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transactions or occurrences which gave rise to the plaintiff’s complaint. Svetz v. Land Tool Company, 355 Pa.Super. 230, 513 A.2d 403 (1986); Upper Makefield Township v. Benjamin Franklin Federal Savings and Loan Association, 271 Pa.Super. 399, 413 A.2d 726 (1979). However, as noted in DiLauro v. One Bala Avenue Associates, 357 Pa.Super. 209, 515 A.2d 939, 945 (1986):

Joinder is permitted only so long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against the original defendant.

Under Pa.R.C.P. 2252 (a) it is not a necessary condition for joinder that the complaint to join the additional defendant be based on the same cause of action as the complaint against the original defendant. Stokes v. Loyal Order of Moose Lodge # 696, 502 Pa. 460, 466 A.2d 1341 (1983). Nevertheless, the cause of action against the additional defendant must arise out of the same transaction or occurrence or series of transactions or occurrences. Upper Makefield Township v. Benjamin Franklin Federal Savings and Loan Association, supra.

The facts upon which the original complaint was filed against Mr. Pileggi and Mr. Berk are unrelated to the basis of Mr. Pileggi’s claim against Chelsea Title and Guaranty Company. If the evidence that would establish defendant’s liability to the plaintiff is distinct from that which would establish the third party defendant liability to the defendant, the complaints should not be joined. Stokes v. Loyal Order of Moose Lodge, No. 696, supra. See also Brown Boveri Building Automation, Inc. v. Midland-Ross Corporation, 333 Pa.Super. 261, 482 A.2d 557 (1984). In Upper Makefield this court held that where a cause of action in the original complaint is independent of the cause of action in the third party complaint, joinder is improper. The court noted at 271 Pa.Super. 403-4, 413 A.2d 728: “Any relationship between the separate causes of actions is entirely too remote and tenuous to allow Mt. Eyre’s causes of action against the additional defendants to be litigated in the Township’s assumpsit action against the Association.”

Similarly, in our case the contract on which the plaintiff sued the original defendants was based on a contract of sale of a liquor license allegedly entered into between Mr. Samango and Mr. Pileggi. Mr. Samango also claimed fraud on the part of the defendants in the original action. His cause of action could have been established entirely without dependence on the contracts alleged by Mr. Pileggi in his endeavor to join the Chelsea Guaranty and Title Company and Luigi’s Restaurant, Inc. as additional defendants. The law only permits joinder where the asserted liability of the additional defendant is related to the claim of the original plaintiff. Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971); General State Authority v. Coleman Cable & Wire Co., 32 Pa.Commwlth Ct. 117, 377 A.2d 1291 (1977). In our opinion, the court below erred in denying the additional defendant’s preliminary objections.

We must determine if this error warrants reversal of the judgment entered in favor of appellee. We conclude, in the narrow procedural confines of this case, that it does not. Plaintiff Samango’s complaint against original defendant Pileggi was settled, discontinued and ended prior to trial. The only controversy litigated at the trial was original defendant Pileggi’s complaint against additional defendant Chelsea There was no prejudice to the additional defendant as there might have been if the litigation had continued between the plaintiff and original defendant, as in that situation issues not relevant to the proceedings between the defendant and the third party defendant might have been introduced. The appellant has not alleged that it suffered any prejudice as a result of the improper joinder and we discern none.

We now turn our attention to the merits of the case. Appellant contends that the court below erred in deciding that the appellant had improperly disbursed funds held in escrow. Appellant argues the funds were disbursed in accordance with the contract between Chelsea Title and Guaranty Co. and the appellee. To determine the propriety of appellant’s release of the funds, we must look at the escrow agreement and the circumstances surrounding the establishment of the escrow fund. Luigi’s Restaurant Company, Inc. owned a liquor license and in September, 1978 it agreed to sell the license to Pileggi. The transfer of the liquor license was “conditioned upon the settlement of the sale between B & K Enterprises, seller, and Vincent Pileggi, Jr., buyer of the property ... located at 2019 Pacific Avenue, Atlantic City, New Jersey.” The license was approved for use on the premises at Pacific Avenue.

The settlement for the transfer of the premises and the license was scheduled for January 16, 1979. It was held at the offices of Chelsea, which was insuring the title of the premises. At the settlement, the real estate, but not the liquor license, was transferred to Pileggi. Since the liquor license was not transferred, Pileggi and Luigi’s entered into an escrow agreement. Pursuant thereto, Pileggi delivered $50,000.00 to Chelsea, as escrow agent, to hold pending the transfer of the liquor license.

The escrow agreement dated January 16, 1979 entered into by Chelsea Title and Guaranty Co., Pileggi and Luigi’s Restaurant Company, Inc. provided that Chelsea Title was to hold $50,000.00 in escrow

pending transfer of liquor license of Luigi’s Restaurant to Vincent Pileggi, Jr. and [the funds] are only to be released to Luigi’s Restaurant Company, Inc. upon transfer of said license # 0102-33-430-001 persuent [sic] to agreement of sale dated Sept. 29, 1978 between Luigi’s Restaurant and Vincent Pileggi, Jr. within 120 days from this date.

The $50,000.00 placed in escrow were funds of Vincent Pileggi. The liquor license was not transferred to Mr. Pileggi, but on May 18, 1979, at the request of counsel for Luigi’s Restaurant, Chelsea Title released $50,876.39 to Luigi’s Restaurant Company, Inc. This was done without any notice to, or the knowledge of, Mr. Pileggi.

The propriety of Chelsea Title’s conduct in releasing the funds to Luigi’s Restaurant is to be determined by interpretation of the agreement of the parties. The intention of the parties is paramount, and the court must adopt an interpretation which under all the circumstances ascribes the most reasonable, probable and natural intentions of the parties, considering the objects to be accomplished. Village Beer and Beverage Co. v. Vernon D. Cox, Inc., 327 Pa.Super. 99, 475 A.2d 117 (1984).

The depositary under an escrow agreement is generally considered to be the agent of both parties, and the agent’s authority must be strictly construed. Paul v. Kennedy, 376 Pa. 312, 102 A.2d 158 (1954). The escrow agreement under consideration was very specific that the sum of $50,000.00 placed in escrow was to be released to Luigi’s Restaurant Company “upon transfer of said license # 0102-33-1430-001 persuant [sic] to agreement of sale dated Sept. 29, 1978 between Luigi’s Restaurant and Vincent Pileggi, Jr. within 120 days from this date.” Transfer of the liquor license from Luigi’s to Vincent Pileggi did not occur, and the condition precedent to releasing the funds was not met. There was no evidence introduced to show that Chelsea Title & Guaranty Co. even attempted to ascertain if the transfer took place, and in any event it did not seek the approval of Mr. Pileggi before it released his funds to Luigi’s Restaurant.

Appellant argues that it acted properly as Pileggi made no request to have the funds returned to him at the expiration of the 120 day period. However, this did not justify Chelsea Title turning the funds over to Luigi’s Restaurant in the absence of Luigi’s Restaurant transferring the liquor license to Mr. Pileggi. Appellant also argues that Pileggi represented to Mr. Samango that he was the owner of the liquor license. This does not alter the fact that he was not the owner, and in fact a basis of Samango’s claim of fraud by Pileggi was that Pileggi represented that he was the owner of the license when in reality it was owned by Luigi’s Restaurant Company, Inc.

The escrow agent was required to strictly comply with the terms of the agreement and it failed to do so. Accordingly the order of the court below is affirmed.

      . The court, speaking through Katz, J., agreed that the joinder of Chelsea Title and Guaranty Company was improper "because Pileggi’s claim did not arise out of the same transaction or occurrence as did Samango’s claim against Pileggi and Berk. We agree with Chelsea that where, as in the instant case, plaintiffs complaint and the defendant’s joinder complaint are based on separate and distinct contracts, the two claims do not arise out of the same transaction or occurrence.” Slip Opinion, page 4.
      However, since Judge White had already overruled the additional defendant’s preliminary objections, the court determined that it could not set aside an interlocutory order by another judge, relying on Robert Wooler Company v. Fidelity Bank, 330 Pa.Super. 523, 479 A.2d 1027 (1984).

        . There was no evidence that the first part of Rule 2252 (a) was applicable. That section of the Rule permits the joinder of an additional defendant who alone is liable or liable over to the defendant on the cause of action declared upon or jointly or severally liable with the defendant on the cause of action declared upon.

      . Katz, J. noted at footnote 2, slip opinion:
      We do not agree with Pileggi that the misjoinder, if any, ceased to exist when Samango's claim against the original defendants was settled.

      . Appellant admits that had its preliminary objections been sustained, the dismissal of the third party complaint would have been a dismissal without prejudice to the original defendants’ filing of another complaint against appellant. (Appellant’s brief, page 23)

      . The stated consideration that Chelsea Title and Guaranty Co. received for acting as escrow agent was $25.00.


author: HOFFMAN, Judge:

text:
    526 A.2d 422
    Julia HIRSCH, Martin Hirsch and William Langfelder, t/d/b/a JMW Partnership, Appellants, v. MOUNT CARMEL DISTRICT INDUSTRIAL FUND, INC. v. Gerald MALINOWSKI.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed May 26, 1987.

      Leroy G. Adams, Pottsville, for appellants.
    Robert B. Hoffman, Harrisburg, for Mount Carmel, appellee.
    Gerald Malinowski, Mount Carmel, for Malinowski, appellee.
    Before BECK, KELLY, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order below granting appellee’s motion for summary judgment. Appellants contend that the lower court erred in holding that a release provision in a second contract between the parties barred appellants from recovering against appellee for appellee’s negligent performance of its obligations under a prior agreement between the parties. We agree and, accordingly, reverse the order below and remand the case for trial.

The pertinent facts, summarized by the court below, are as follows:

[Appellants] filed a Complaint against [appellee] on 6 March 1985. The central allegation of the Complaint was that [appellee] failed to complete financing arrangements through Pennsylvania Industrial Development Authority (PIDA) in an expeditious manner and that a prior agreement between the parties would have resulted in [appellants’] eventual enjoyment of the benefits of this financing____ The Complaint alleged ... damages to [appellants] in interest and legal fees which were paid as the result of the delay. On 15 April 1985, the [appellee] filed an Answer ... alleging] [that] a contractual release ... [insulated appellee] from liability----

Lower Court Opinion at 1-2. Appellee later filed a motion for summary judgment, based upon the contractual release. The lower court granted the motion and entered judgment in favor of appellee. This appeal followed.

Appellants contend that the lower court erred in holding, as a matter of law, that the release provision bars them from recovering from appellee in tort for appellee’s negligent performance of its duties under the previous agreement. We agree.

The court based its holding upon this Court’s opinion in Raab v. Keystone Ins. Co., 271 Pa.Superior Ct. 185, 412 A.2d 638 (1979), appeal dismissed, 496 Pa. 414, 437 A.2d 941 (1981). In Raab, Judge Lipez noted that

Generally, when the breach of a contractual relationship is expressed in terms of tortious conduct, the cause of action is properly brought in [contract] and not in [tort]---- However, there are circumstances out of which a breach of contract may give rise to an actionable tort---- The test used to determine if there exists a cause of action in tort growing out of a breach of contract is whether there was an improper performance of a contractual obligation (misfeasance) rather than the mere failure to perform (nonfeasance).

Id., 271 Pa.Superior Ct. at 187-88, 412 A.2d at 639 (citations omitted). See also Behrend v. Bell Tel. Co., 53 D. & C.2d 421, 426-27 (C.P. Allegheny 1971). Under Raab, then, a suit between parties to a contract based on negligent breach of contract may be brought in tort only when the plaintiff alleges improper performance of a contract rather than nonperformance.

Here, the basis for the lower court’s granting summary judgment was a release provision that was contained in an installment sales agreement executed by the parties two years after their original agreement. The release provides in pertinent part:

SECTION 12. INDEMNIFICATION OF SELLER AND WAIVER OF CLAIMS.

Except when such costs or liabilities are [due] to negligence or willful misconduct of [appellee], [appellants] shall protect, exonerate, defend, indemnify and save [appellee] harmless from and against any and all costs or liabilities which may arise or have arisen out of [appellee’s] ... execution and delivery of this Agreement, the Bank Notes, the PIDA Note, the Bank and PIDA Mortgages, or Loan Agreements, if any....

Installment Sales Agreement, August 29, 1984 at § 12. The lower court held, as a matter of law, that this release “expressly bars” appellants from recovering against appellee based on a breach of contract theory. Lower Court Opinion at 3. Applying Raab, the court then reviewed the complaint and concluded that because it charged appellee with “nonfeasance” rather than “misfeasance,” it set forth only a contractual claim and not a tort claim. Id. Because the release “directly addresses the very nonfeasance” that the court concluded was the basis of appellants’ complaint, the court entered judgment in favor of appellee. Id. at 3-5.

A review of the record convinces us that the lower court erred in concluding that the basis of appellants’ complaint was an allegation of nonperformance rather than improper performance. Under the first agreement between the parties, appellee had a duty to “in good faith, make every effort to obtain these loans and produce these funds” that would enable appellants to have an addition made to their manufacturing plant. Agreement, May, 1982, at 6, § 13. It is undisputed that appellee eventually did perform this duty, and that, in August, 1984, appellants did receive the financing contemplated in the May, 1982 agreement. See Complaint ¶¶ 13, 18-20; Answer [of Appellee] ¶ 13; Counterclaim 11113-4; Brief for Appellants at 5; Brief of Appellee at 3. Instead, the gravamen of appellants’ complaint, and the point of contention between the parties, is the allegation that appellee performed its duty in a dilatory fashion. Thus, in their complaint, appellants alleged that:

(13) [Appellee] ... failed to cause the Pennsylvania Industrial Development Authority [PIDA] portion of the financing to close as contemplated, and said financing did not close until August of 1984.
******
(18) The failure of the [PIDA] portion of the financing to close promptly as contemplated in July of 1982, was the sole result of the failure of the [appellee] ... to expeditiously and in good faith, handle the transaction, thereby breaching its duties to the [appellants], both at law, and pursuant to the Agreement dated May of 1982.
(19) Said [appellee’s] negligence consisted of inattention to detail, including, but not limited to: refusal to cooperate with [PIDA] in its reasonable requests for information and documentation; in its refusal to complete and furnish documents necessary for the [PIDA] financing; in its failure to respond to correspondence and telephone communications from [PIDA]; in its failure to advise [appellants] of items which may have been reasonably required by [PIDA]; in its failure to exercise good faith in doing everything possible to comply with its obligations under the Agreement; and in its general failure to deal with matters necessary to close said financing.
(20) The delay in closing the [PIDA] portion of the financing was in no way attributable to [appellants].

Complaint 1ÍTÍ13, 18-20. In conclusion, the complaint sought damages for the costs that were incurred incident to the delay. Id. ¶ 21.

On these facts, we conclude that the lower court erred in finding that appellants’ complaint was based upon an allegation of nonperformance rather than improper performance. Thus, under the distinction outlined in Raab, appellants have properly set forth a cause of action in tort, deriving from appellee’s negligent performance of its contractual duties. Moreover, the release provision upon which the lower court based its decision clearly does not apply to cases where appellee is alleged to have been negligent. See, e.g., Wolbach v. Fay, 488 Pa. 239, 242, 412 A.2d 487, 488 (1980) (citation omitted) (effect of release must be determined from ordinary meaning of its language). Because the lower court based its order entering summary judgment solely upon the release, and because we have found that the court erred in concluding that the release was applicable to appellants’ complaint, we reverse the order below and remand the case for trial.

For the foregoing reasons, we reverse and remand the case for trial.

Reversed and remanded for trial. Jurisdiction is relinquished.

      . Raab and Bekrend are the only Pennsylvania cases that have directly addressed this issue. Raab was decided by a three-judge panel consisting of Judges Price, Spaeth, and Lipez. The language quoted in the text was written by Judge Gelfand in the court below, and was adopted by Judge Lipez in the lead opinion for the Superior Court. Judge Price filed a concurring statement and Judge Spaeth dissented. Thus, technically, Raab appears not to have precedential value.

      . We note that there is a split among authorities regarding whether the historical distinction between misfeasance and nonfeasance retains vitality. For example, the caveat to § 323 of the Restatement (Second) of Torts provides that:
      The Institute expresses no opinion as to whether:
      (1) the making of a contract, or a gratuitous promise, without in any way entering upon performance, is a sufficient undertaking to result in liability under the rule stated in this Section____
      Restatement (Second) of Torts § 323 caveat (1965). The comment on this caveat then notes that:
      This distinction [between misfeasance and nonfeasance] has persisted to the present day, largely in cases involving questions of pleading____
      ******
      There is no essential reason why the breach of a promise which has induced reliance and so caused harm should not be actionable in tort. This is true particularly where the harm is physical harm, to the person, land, or chattels of the plaintiff. The technicalities to which the courts have resorted in finding some commencement of performance indicate a development of the law toward such liability....

        Id. § 323 comment d.
      Professors Keeton and Prosser, however, note that:
      Much scorn has been poured on the distinction [between misfeasance and nonfeasance], but it does draw a valid line between the complete non-performance of a promise, which in the ordinary case is a breach of contract only, and a defective performance, which may also be a matter of tort.
      W. Prosser & W. Keeton, Prosser and Keeton on the Law of Torts § 92, at 660 (5th ed. 1984).
      In the instant case, we hold that appellants properly stated a cause of action in tort based upon appellee’s improper performance of its contractual obligations. See infra. Because we hold that appellants have properly stated a cause of action under the more restrictive view reflected in Raab, we need not determine, and we express no opinion on, whether an allegation of nonperformance of a contract is also actionable in tort.


author: BECK, Judge:

text:
    526 A.2d 425
    Vera HERTZOG, Assignee of the Blue Ball National Bank, Appellant, v. George JUNG, and Annamarie Jung and Vince A. Guarini and Linda L. Kachmar.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1986.
    Filed May 28, 1987.

      Christina L. Hausner, Lancaster, for appellant.
    Daniel B. Huyett, Reading, for Guarina and Kachmar, appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   BECK, Judge:

The issue is whether a contract releasing real estate from the lien of a judgment continues to protect the real estate from levy and execution after the judgment is - revived. This is an appeal by Vera Hertzog, the assignee of the judgment creditor, from an order striking the revived judgment and the writ of execution issued thereon insofar as each pertained to the released property. We hold that a release is to be interpreted according to the intent of the parties. We find that the parties intended this release to release the property from the lien of the original judgment and all revivals thereof. We therefore affirm the order of the trial court.

I.

The relevant facts are not in dispute. On March 14,1979, Blue Ball National Bank (“Bank”) entered a judgment by confession against George Jung, Annamarie Jung, Vera Hertzog, and Levi Hertzog. This judgment was assigned as No. 1371 on the 1979 Confessed Judgment Docket for Lancaster County.

At the time of entry of judgment, the Jungs were owners in fee simple as tenants by the entireties of the premises at 105 Meadow View Drive in the city of Leola in Lancaster County. The Jungs reached an agreement with the Bank to free these premises from the lien of the confessed judgment. On August 30, 1979, the Bank filed a form captioned “Release of Real Estate” which listed the docket number of the confessed judgment and provided:

Blue Ball National Bank, the Plaintiff in the above Judgment, for value received, hereby release [sic] from the lien, effect and operation of the above judgment ALL THAT CERTAIN lot or tract of land, together with the improvements thereon erected ... known as No. 105 Meadow View Drive, Leola, Pennsylvania.

In consideration of this release, the Bank was paid $24,000. At no time after the date of this agreement did the Bank attempt to levy on the Jungs’ home.

In December, 1980, the Jungs conveyed this property to their daughter Angelica. Angelica reconveyed the property to the Jungs in April, 1981.

On January 12, 1983, the Bank praecipied for a writ of revival of judgment. This writ was issued and served on the Jungs, who did not contest the revival. Judgment in the revival action was entered in favor of the Bank on May 20, 1983. Nearly six months later, the Jungs conveyed their home to its current owners, Vince Guarini and Linda L. Kachmar.

On April 22, 1985, the Bank assigned its revived judgment to former judgment debtor Vera Hertzog. Soon afterward, Ms. Hertzog praecipied for a writ of execution, and a writ was issued directing the sheriff to levy upon, attach, and sell 105 Meadow View Drive. This writ was served on Mr. Guarini and Ms. Kachmar, who then filed a petition requesting the Court of Common Pleas of Lancaster County to (1) strike and/or open the confessed judgment as it pertained to 105 Meadow View Drive, and (2) vacate any execution on the judgment. Ms. Hertzog filed an answer to this petition. See Pa.R.Civ.P. 2959.

On April 7,1986, 40 Pa.D & C 3d 474, the court ruled that the legal effect of the contract between the Bank and the Jungs had been to release 105 Meadow View Drive from the lien of the revived judgment. The court entered an order striking both the revived judgment and the writ of execution. Ms. Hertzog filed this timely appeal.

Appellant contends that: (1) 105 Meadow View Drive is subject to the lien of the revived judgment, and (2) even if it were not, it was procedurally improper to grant a petition to strike the judgment as it pertained to that property. We disagree on both counts.

“A petition to strike off a judgment is the remedy sought by one who complains of fatal irregularities appearing on the face of the record.” Cameron v. Great A & P Tea Co., 439 Pa. 374, 266 A.2d 715 (1970) (citations omitted). Matters dehors the record will not be considered, nor will documents placed in the record after judgment was entered. Linnett v. Linnett, 434 Pa. 441, 254 A.2d 7 (1969); Bethlehem Steel Corp. v. Tri-State Industries, 290 Pa.Super. 461, 434 A.2d 1236 (1981). However, the court may draw inferences as to the intentions of the parties from the documents in the record. Solebury National Bank of New Hope v. Cairns, 252 Pa.Super. 45, 380 A.2d 1273 (1977); Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985).

Applying these standards to this case, we find that the petition to strike the judgment as it pertained to 105 Meadow View Drive was properly granted if it can be determined from looking at the documents in the record prior to the entry of the revived judgment that the judgment was inaccurate in some important respect. Cf. Pattinato v. Moody, 248 Pa.Super. 32, 374 A.2d 1302 (1977) (misspelling of defendant’s name insufficient to support a petition to strike). We find that examination of the release compels the inference that 105 Meadow View Drive was released from the lien of the original judgment and all revivals thereof. We hold that the blanket revival of the judgment, without reference to the exclusion of that property from the lien of the revived judgment, made the judgment facially incorrect and inaccurate. It was therefore properly subject to a petition to strike to correct the inaccuracy.

Appellant contends that the release entered into between Blue Ball National Bank and the Jungs released 105 Meadow View Drive from the lien of the original judgment only, and that the revival of the judgment created a new lien on the property.

In support of her contention, she cites sections 878 and 880 of the Judgment Lien Law of 1947. Section 878 provides:

Every judgment now or hereafter entered of record and indexed in any court of record in this Commonwealth shall be a lien upon all real property within the county where the judgment is entered, which at the time of the entry and indexing of the judgment is owned by the person against whom the judgment is entered, and shall, unless sooner discharged as provided by law, continue as a lien as to the defendant and all other persons for a period of five years from the date on which the judgment was entered, and no longer, unless the same is revised as hereinafter provided. 1947, July 3, P.L. 1234, § 2.

Section 880 comes into play after the creditor procures a renewal of his judgment by praeciping for the prothonotary to issue a writ of revival (formerly known as a writ of scire facias). See Pa.R.Civ.P. 3025. Section 880 provides:

“A writ of scire facias issued to revive a judgment at any time either before or after the expiration of five years after the indexing thereof, or before or after five years after the indexing of the last preceding judgment of revival thereof, shall, when indexed in the judgment index, be a lien upon all real property within the county which at the time of the indexing thereof is owned by the defendant against whom the original judgment is entered, whether or not such real property was owned by him at the time the judgment was indexed or previously revived. All liens against after-acquired property, or against property as to which the lien of the original judgment has been lost, shall be effective as of the date when the writ of scire facias was indexed, and shall, unless sooner discharged as provided by law, continue as a lien for a period of five years from the date of the indexing of the judgment of revival thereon, and no longer, unless the same is revived as provided in this act. 1947, July 3, P.L. 1234, § 4.

Appellant’s theory is that the Bank initially relinquished its right to execute on the Jungs’ home pursuant to section 878, but obtained a new right to execute on these same premises pursuant to section 880. By virtue of Section 878, the Bank originally acquired a lien on all the real property which the Jungs owned in Lancaster County as of March 14, 1979, when judgment was entered. Appellant concedes that 105 Meadow View Drive was released from the lien of this judgment. She interprets section 880, however, as creating a new and independent lien on all the real property which the Jungs owned in Lancaster County as of January 12, 1983 when a writ of revival was issued. The 105 Meadow View Drive property was owned by the Jungs on that date.

We interpret section 880 as giving the creditor, in the absence of a release, a lien on all the debtor’s real property in the county at the time that the writ of revival is issued. However, a release is a contract whereby a creditor may choose to waive legal rights to which he would otherwise be entitled. We find that by signing the release, the Bank surrendered any right to 105 Meadow View Drive it could otherwise have claimed under section 880.

A release is to be interpreted according to the intent of the parties. Sparler v. Fireman’s Insurance Co. of Newark, N.J., 360 Pa.Super. 597, 521 A.2d 433 (1987) (en banc); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). Intention can be gleaned from the actual language of the release, Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967), or from allegations of the parties as to their intentions. Sparler. We have neither source to guide us in this case. This release is silent as to the critical question of its duration or scope, and neither party has made any allegations regarding the intentions of the signatories to the release.

In the absence of such guidance, we turn to general principles of release construction:

[I]n construing a release, a court should adopt an interpretation which, under all of the circumstances, ‘ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.’ General Mills, Inc. v. Snavely, 203 Pa. Super. 162, 168, 199 A.2d 540, 543 (1964). See: Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa.Super. 99, 107, 475 A.2d 117, 121 (1984).

Sparler v. Fireman’s Insurance Co. of Newark, N.J., 360 Pa.Super at 601, 521 A.2d at 437; see also Vogel v. Berkley. Applying this standard, we are persuaded that this contract should be construed as releasing 105 Meadow View Drive from the lien of the original judgment and all revivals thereof.

A release from the lien of a judgment is designed to serve two functions. From the debtor’s viewpoint, the release removes a cloud on title. This may well be essential in order for the debtor to exercise his right to alienate his land. From the creditor’s viewpoint, the release provides a convenient opportunity to obtain partial satisfaction of his debt. The value received in return for the release is a substitute for the proceeds which the creditor would have received if the debtor’s land had been levied upon and sold.

Were we to accept appellant’s view as to the scope of the release, we would have to believe that the Jungs gave valuable consideration for a release the effect of which could have been wiped out the very next day by the Bank’s procuring a writ of revival of the judgment. This we decline to do. It would hardly be reasonable and natural for the Jungs to give valuable consideration for such a valueless right. Moreover, under appellant’s theory the Bank would have been permitted to obtain two recoveries— one in consideration for the release of the premises from the lien, and one from a sheriff’s sale of the premises. We simply cannot believe that the parties intended that the contract be so one-sided.

Furthermore, as between the Jungs and Blue Ball National Bank, certainly the Bank had greater expertise in and familiarity with matters of mortgage and lien law. Where one party has special expertise in the subject matter of a contract, silence in the contract will be construed against him or her in order to prevent overreaching of the less-knowledgeable party. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987).

We note that the release stated that 105 Meadow View Drive was released from the “lien, effect and operation” of the judgment against the Jungs. This is impressive language that reasonably suggested to the Jungs that they were obtaining a release in perpetuity. In the absence of claims that the intentions of the parties were to the contrary, we give the contract that effect.

Having found that the revived judgment is facially incorrect and inaccurate because it failed to exclude 105 Meadow View Drive, we find the trial court was correct in striking the judgment and the writ of execution thereon.

Order affirmed.

      . This appeal was filed pursuant to Pa.R.A.P. 311(a)(1). The rule provides that an appeal may be taken as of right from "[a]n order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief." In this case, the lower court disposed of each claim for relief, since it granted appellee's petition to strike and thereby rendered moot appellee's petition to open.

       Probably should read “revived."

      , 12 Pa.Stat.Ann. § 877-884 (Purdon 1953). Although the Judgment Lien Law has been officially repealed, it remains authoritative for present purposes.
      In 1964, the Judgment Lien Law was suspended in so far as it conflicts with Pa.Rs.Civ.P. 3025-3049. See Rule 3049(3). These rules deal primarily with the proper method for filing for revival of judgment; they do not alter the substantive rights of judgment creditors. See Rule 3025 Note; 8 Goodrich-Amram 2d § 3025:1 (1977).
      Fourteen years later, the General Assembly passed the Judiciary Act Repealer Act, Act of April 28, 1978, Pa.Laws 202, No. 53, § 1, which specifically repealed the Judgment Lien Law to the extent that the law is inconsistent with duly promulgated general rules of procedure. 42 Pa.Cons.Stat.Ann. § 20002(a)(1257) (Purdon 1982). However, since no current rule of procedure regulates the duration and scope of judgment liens, sections 878 and 880 continue in force as part of the common law of Pennsylvania. See 42 Pa.Cons.Stat.Ann. § 20003(b)(Purdon 1982); In re Lucas, 41 B.R. 785, 787 (E.D.Pa.1984); cf. Commonwealth v. Ballem, 334 Pa.Super. 255, 482 A.2d 1322 (1984) (Pa.Stat.Ann. tit. 17 § 1802 (Purdon 1962) (repealed 1978) continues in force); Commonwealth v. Kelly, 319 Pa.Super. 204, 465 A.2d 1301 (1983) (Pa.Stat.Ann. tit. 19, § 525 (Purdon 1964) (repealed 1978) continues in force).

      . Sections 877-884 of this title."


text:
    526 A.2d 429
    Linda A. YANKOSKIE, Appellant, v. Samuel Marlin LENKER, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1987.
    Filed May 28, 1987.

      Carol J. Coyne and Joseph R. DeCristopher, Susquehanna Legal Services, Sunbury, for appellant.
    Before BECK, HESTER and ROBERTS, JJ.
   BECK, Judge:

This is an appeal from an order of the Court of Common Pleas of Northumberland County denying appellant’s petition for relief under the Protection From Abuse Act, Pa. StatAnn. tit. 35, §§ 10181-10190 (Purdon 1977 & Supp. 1986). Finding that relief was improperly denied, we reverse.

Appellant Linda A. Yankoskie seeks court protection from Samuel Marlin Lenker, her former boyfriend. During the early 1980’s, appellant and Mr. Lenker shared a residence on Main Street, in Sunbury, Pennsylvania. They cohabited for an extended period of time. In March, 1983, appellant moved to an apartment on Pennsylvania Avenue where she currently resides. This apartment is leased exclusively to the appellant. Mr. Lenker maintains his own separate residence.

In the years which followed, appellant’s new home became the focus of Mr. Lenker’s family life. The parties had three children together who were raised in the apartment: Samuel Lee Lenker, born September 30, 1983, Sandra Lynn Lenker, born February 14, 1985, and Aaron Marlin Lenker, born May 16, 1986. Mr. Lenker visited appellant and the children with increasing frequency. On the occasion of each visit, he was admitted to the apartment with appellant’s consent.

On June 16, 1986, appellant filed a Petition for Protection from Abuse, and a hearing was held within ten days as mandated by the Abuse Act. Pa.Stat.Ann. tit. 35, § 10185(a). Appellant testified that while in the apartment with her permission Mr. Lenker had become intoxicated and had attempted to assault her. She also testified that Mr. Lenker had broken his infant son Aaron’s leg and had shoved his young son Samuel’s face against a cellar door. Mr. Lenker did not appear at the hearing or otherwise contest these allegations.

At the conclusion of the hearing, the Honorable James J. Rosini orally denied appellant’s petition. Appellant filed posttrial motions as required by Pa.R.Civ.P. 1905(b). These motions were denied. The judge issued a memorandum decision which stated that there was “... no doubt in the Court’s mind that the acts alleged and testified to constitute sufficient conduct to grant an order if in fact the Abuse Act applies.” The court found, however, that it lacked authority under the Abuse Act to grant an order designed to safeguard appellant from Mr. Lenker. We disagree.

Section 10186(a) of the Abuse Act empowers the Court of Common Pleas to:

... grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children, which may include:
(1) Directing the defendant to refrain from abusing the plaintiff or minor children.

Section 10182 provides:

“Abuse” means the occurrence of one or more of the following acts between family or household members who reside together; or who formerly resided together and both parties continue to have legal access to the residence:
(i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon.
(ii) Placing by physical menace another in fear of imminent serious bodily injury.
(iii) Sexually abusing minor children as defined pursuant to the act of November 26, 1975 (P.L. 438, No. 124), known as the “Child Protective Services Law.”

Section 10185(a) further provides that “... the plaintiff must prove the allegation of abuse by a preponderance of the evidence.” Thus, in order to obtain a protective order, a plaintiff must show: (1) that the defendant has engaged in misconduct as specified by section 10182(i), (ii) or (iii); (2) that the defendant and the victims were “family or household members”; and (3) that the defendant satisfies the Act’s residency requirement.

I.

The first of these three conditions is not here at issue. Appellant presented uncontradicted testimony that Mr. Lenker attempted to cause her bodily injury and knowingly caused her sons bodily injury within the meaning of section 10182(i). The trial judge did not question appellant’s credibility.

II.

The second condition for an order has also been satisfied. Section 10182 specifies that:

“Family or household members” means spouses, persons living as spouses, parents and children, or other persons related by consanguinity or affinity.

Mr. Lenker, Ms. Yankoskie, Aaron Lenker, and Samuel Lenker are clearly “parents and children.” Moreover, we believe that Mr. Lenker and Ms. Yankoskie independently qualify as “persons living as spouses”.

As the General Assembly recognized, the problem of domestic violence is not confined to married couples who reside together in conventional living arrangements. In order to evaluate whether two unmarried persons are “living as spouses”, a court should consider the full range of circumstances in the particular case before it. The fact that a defendant maintains a residence apart from where the plaintiff lives is not dispositive; otherwise a defendant could place himself beyond the reach of the Act merely by temporarily renting an apartment or by moving in with a relative. Other relevant factors include: (1) the duration of the relationship between the parties; (2) the frequency of contact between the parties; (3) whether the parties are financially interdependent; (4) whether the parties have had children together or have helped raise children together; (5) whether the parties have engaged in tasks directed toward maintaining a common household.

In the case sub judice, appellant bore the defendant three children in three years. She testified that the defendant visited her apartment nearly every day and evening. Significantly, she also testified that the defendant was sterilizing baby bottles for his son Aaron at the time he attacked the infant. The defendant presented no testimony. Under these circumstances, we find that appellant and the defendant were “living as spouses” and are therefore “family or household members” under the Abuse Act.

III.

The remaining question concerns appellee Lenker’s residency. The Act as originally passed in 1976 described abuse as “acts between family or household members who reside together.” In 1978, the legislature passed an amendment adding the language “or who formerly resided together and both parties continue to have legal access to the residence.”

Ms. Yankoskie contends on appeal that she and Mr. Lenker “reside together” within the meaning of the statute. This argument is bolstered by some of the same considerations which led us to conclude that the parties were “living as spouses”. However, since appellant did not raise this issue in her posttrial motions, the question has been waived. See Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 495 A.2d 540 (1985). See generally Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Ms. Yankoskie also contends that she and Mr. Lenker formerly resided together and that both parties continue to have legal access to her residence. The “legal access” to which she refers is the permission that she gave appellee to enter her apartment on the days when he tried to attack her and the children. We agree that permissive entry is a form of “legal access” under the Abuse Act.

No appellate court has previously construed the term “legal access” in this context. The Act itself contains no definition of the phrase. Nor can the term be said to have a uniform common and approved usage or a single plain and unambiguous meaning. See 1 Pa.Cons.Stat.Ann. §§ 1903(a), 1921(b) (Purdon Supp.1986) (Statutory Construction Act). Here we must be guided by the general principle that “... provisions of a statute shall be liberally construed to effect their objects and promote justice.” 1 Pa.Cons. Stat.Ann. § 1928(c).

This court has repeatedly characterized the Act as a “vanguard measure dealing with the problems of wife and child abuse.” In re Penny R., 353 Pa.Super. 70, 73, 509 A.2d 338, 340 (1986); Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 560, 490 A.2d 918, 922 (1985); Cipolla v. Cipolla, 264 Pa.Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979). The goal of the Act is to provide immediate protection from the threat of physical violence. See Rosenberg v. Rosenberg, 350 Pa.Super. 268, 270 n. 1, 504 A.2d 350, 351 n. 1 (1986). The Act was also designed to compensate for the deficiencies of the criminal justice system in handling domestic abuse matters. Police are often reluctant to intervene in intra-family disputes. See Comment, Ex Parte Protection Orders: Is Due Process Locked Out?, 58 Temp. L.Q. 843, 845 (1985). Prosecutors will often decline to press charges where the defendant is accused of beating someone with whom he has had a close relationship. See Note Domestic Relations — The Protection From Abuse Act, 51 Temp.L.Q. 116, 119 (1978). As the Pennsylvania Supreme Court noted in Commonwealth v. Allen, 506 Pa. 500, 509, 486 A.2d 363, 367 (1984), cert. denied, 842 U.S. 474, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985), “... domestic violence and spousal and child abuse are serious and widespread societal problems which are effectively beyond reach, absent such legislation.”

The setting in which the Act most clearly applies is where the defendant may claim an affirmative legal right to enter the plaintiffs residence. This situation will arise, for example, where the defendant has an ownership interest in the residence or where the plaintiff and the defendant are co-tenants. In such cases, a court may enter a protective order evicting the defendant from the premises. See § 10186(a)(2).

The Act, however, requires only “legal access to the residence” — not a legal right to the residence. In light of the statute’s overall remedial purpose, we find that the term “legal access” is sufficiently broad to allow the courts to protect a plaintiff who voluntarily gave the defendant access to her home. Such a plaintiff would significantly benefit from a court order simply “[directing the defendant to refrain from abusing the plaintiff or minor children.” § 10186(a)(1). A court order would tend to deter future acts of violence. If the defendant persists in harassing the plaintiff he could be held in contempt for violating the order. See § 10190. Perhaps most importantly, a court determination that the defendant is in fact an abuser would increase the likelihood that law enforcement officials will take special efforts to protect the victim and will treat the defendant’s acts as serious crimes.

We hold that the term “legal access” means access as of right or access by permission. In other words, “legal access” includes any access to plaintiffs residence which the defendant obtained, or could have obtained, by a means which is legal — i.e. not in violation of the criminal law. In the instant case, Mr. Lenker had legal access to Ms. Yankoskie’s apartment since he entered the premises with her consent on the days when he attacked her and the children.

Judgment is reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

HESTER, J., concurs in the result.

      11 P.S. § 2201 et seq.

      . We do not construe the Act so narrowly as to require that a defendant continue to have legal access to the very same residence in which he previously resided with the plaintiff. It is enough that the parties formerly resided together in one location and that the defendant had legal access to the residence in which the plaintiff lived at the time the abusive acts occurred.

      . Section 10182 provides that "[t]erms not otherwise defined by this act shall have the meaning given to them by the Crimes Code.” The Crimes Code does not define “legal access". Yet, we note that the Crimes Code describes “criminal trespass” — an antithetical concept— in such a way as to exclude the act of entering onto property with the owner’s permission. 18 Pa.Cons.Stat.Ann. § 3503 (Purdon 1983).

      . The eight enumerated exceptions to this principle are not here applicable. 1 Pa.Cons.Stat.Ann. § 1928(b).

      . Enlisting the cooperation of law enforcement personnel is particularly important to a plaintiff who has been assaulted after inviting the defendant into her home. Many officers may tend to view such a plaintiff as partially responsible for her own victimization. They may also believe that she would be likely to drop charges against the defendant and to attempt a reconciliation.


author: WIEAND, Judge:

text:
    526 A.2d 434
    Walter and Margaret BANKER, Individually and as Parents and Natural Guardians of Sharon Banker, a Minor, Appellants, v. VALLEY FORGE INSURANCE COMPANY, Wagner Agency, Inc., and Bernard Rafferty, Appellees.
    Superior Court of Pennsylvania.
    Argued March 31, 1987.
    Filed May 27, 1987.

      Pamela G. Shuman, Harrisburg, for appellants.
    Bruce M. Mundorf, State College, for Valley Forge, appellee.
    Christian S. Erb, Jr., Harrisburg, for Wagner, appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

In this case an insured requested his broker to obtain an endorsement to his no-fault, automobile insurance policy which would reduce his premium by making his personal injury protection excess coverage over his private health care insurance. Several years after the endorsement had been issued, the insured’s daughter was rendered a quadriplegic as a result of an automobile accident. The insured commenced an action to compel the insurer to pay past and future medical bills even though the health care insurance had not been exhausted. The basis for the action was an averment that the full effect of the endorsement had not been explained to him. The trial court sustained the insurer’s preliminary objections in the nature of a demurrer and entered judgment in its favor. The insured appealed. We affirm.

In January, 1981, Valley Forge Insurance Company (Valley Forge) renewed an automobile insurance policy which had been issued to Walter Banker in accordance with Pennsylvania’s No-fault Motor Vehicle Insurance Act. In September, 1981, Banker’s wife, Margaret Banker, contacted Bernard Rafferty, an agent employed by the Wagner Agency, Inc., and asked if it were true that the premiums of the policy could be reduced by making the family’s private medical insurance the primary source of coverage in the event that a family member were to sustain injuries in an automobile accident. Rafferty responded affirmatively. Therefore, on September 29, 1981, Banker signed an application for an endorsement to his automobile policy which would provide that his personal injury protection was to be excess over any other hospital or medical expense coverage. The endorsement was issued and caused a subsequent reduction in the premiums paid by Banker. The endorsement was made a part of the policy and was listed, in bold-faced lettering, in the Schedule of Endorsements in the policy which the Bankers received from Valley Forge.

On February 23, 1983, Sharon Banker, the insured’s minor daughter, was rendered a quadriplegic by injuries received in an accident involving a motor vehicle in which she had been riding as a passenger. The Bankers incurred substantial medical expenses and gave notice to Rafferty and the Wagner Agency, which, in turn, notified Valley Forge. Because of the excess coverage endorsement, however, the Bankers were instructed to submit their medical bills to their private health care insurer and were told that Valley Forge would pay only those bills for which the primary health care carrier denied coverage.

The Bankers commenced an action against Valley Forge and also against Rafferty and the Wagner Agency in which they sought to invalidate the excess insurance endorsement and compel payment of the medical bills incurred on behalf of their daughter. They alleged in an amended complaint that Valley Forge had failed to inform them that except for the endorsement they could have recovered from both insurers or retained the private health insurance lifetime maximum benefits for non-accident related bills. Valley Forge filed preliminary objections in the nature of a demurrer to the complaint. It argued that the endorsement which the insured had requested more than two years before the accident was clear and unambiguous and that under the circumstances it had no duty to offer an explanation of the endorsement to its insured. The trial court agreed and sustained the preliminary objections.

In DeAngelo v. Fortney, 357 Pa.Super. 127, 129, 515 A.2d 594, 594-595 (1986), the law was summarized as follows:

“Upon demurrer, a reviewing court must regard as true all well pleaded facts and reasonable inferences deducible therefrom.” Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983). Conclusions of law, however, do not bind a reviewing court. Cunningham v. Prudential Property and Casualty Insurance Co., 340 Pa.Super. 130, 133, 489 A.2d 875, 877 (1985). It is in this light that we examine the complaint to determine whether it sets forth a cause of action which, if proved, would entitle the plaintiff to the relief sought. Id. If the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Id.; Rubin v. Hamot Medical Center, 329 Pa.Super. 439, 441, 478 A.2d 869, 870 (1984).

See: Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970); Jamison v. City of Philadelphia, 355 Pa.Super. 376, 379-380, 513 A.2d 479, 480 (1986).

In the instant case, the Bankers argue that although the language of the endorsement itself was clear and unambiguous, the collateral effects thereof were not known to them. These collateral consequences, they argue, should have been explained. We disagree.

In Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), Venetian Blind had purchased a general liability policy from the insurance company. The policy provided liability insurance coverage for all sums which Venetian Blind became legally obligated to pay by way of damages. Conspicuously displayed in the exclusion section of the policy, however, was a statement that the policy did not apply to property damage to Venetian Blind's own property or to work performed by or on behalf of Venetian Blind. During the effective period of the policy, a portico which had been installed on the property of a customer by Venetian Blind’s agent collapsed, causing damage to the customer’s property. Venetian Blind made a claim under the policy for the cost of the customer’s damaged property and the cost of the portico itself. The insurer agreed to indemnify the customer for the cost of the damaged property which had been stored beneath the portico but refused to tender payment for the cost of the portico itself. Venetian Blind filed a petition for declaratory judgment, contending that the exclusion was unenforceable because Venetian Blind had not been made aware of and had not understood the effect of the exclusion. The trial court agreed and, on appeal, this Court affirmed. The Supreme Court reversed, holding “that where ... the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it” Id., 503 Pa. at 307, 469 A.2d at 567 (emphasis added).

This holding was clarified by the Supreme Court in Tonkovic v. State Farm Mutual Automobile Insurance Co., 513 Pa. 445, 521 A.2d 920 (1987). There, Tonkovic had applied for an insurance policy to provide disability coverage which would enable him to make his mortgage payments in the event of an injury, without regard to where the injury might occur or whether Tonkovic might be eligible for worker’s compensation benefits. Tonkovic was subsequently injured on the job and made a claim for disability benefits. His claim was denied by the insurance company because the policy which had been issued to Tonkovic specifically excluded coverage for injuries incurred in the work place if worker’s compensation benefits were available. Tonkovic instituted an action in assumpsit to recover benefits. He averred that he had never received a copy of the policy and had never been advised by State Farm of the variance between the coverage for which he had applied and that which he had received.

Trial by jury was held, and a verdict was returned in favor of Tonkovic. On appeal, this Court reversed and remanded for a new trial, relying on the decision in Standard Venetian Blind Co. v. American Empire Insurance Co., supra. The Supreme Court granted allocatur and reversed. It held that Venetian Blind was factually dissimilar and, therefore, inapplicable. The Court explained that in Venetian Blind

[t]he insurance policy issued ... was what it purported to be, and what the insured purchased, a general liability policy. The purpose of a general liability policy is to protect an insured from claims made by third parties for injuries to their person or property resulting from the policy-holder’s negligence. In such a case, it is patently unreasonable for an insured to contend that he should be paid for his own property damage loss from a liability policy. Neither the negotiations for benefits nor the type of coverage sought would lead an insured to believe that a liability policy would provide insurance coverage on one’s own property. Based on these facts and circumstances, we determined that the insured could not avoid the consequences of the exclusion provision by asserting that he failed to read the policy, or that he did not understand it.
.... Contrary to the facts in Venetian Blind, [Tonkovic] specifically requested a type of coverage that would have protected him in this instance, but was issued a policy quite different from that which he requested. Also contrary to Venetian Blind, [Tonkovic’s] claim [was] that he never received a copy of the policy and had never been advised of a change in the coverage that he had originally applied for, not that he received it, but failed to read it.
We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for. When the insurer elects to issue a policy differing from what the insured requested and paid for, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes, or not read it at his peril.

Tonkovic v. State Farm Mutual Automobile Insurance Co., supra, 513 Pa. at 451-455, 521 A.2d at 923-925 (emphasis in original).

The instant case is controlled by Standard Venetian Blind Co. v. American Empire Insurance Co., supra. Like Venetian Blind, the insured in the instant case received the precise policy endorsement which he had requested. This endorsement plainly and unambiguously stated: “Personal Injury Protection is excess over any other Medical Expenses Coverage.” It is difficult to perceive a clearer provision. When the insured requested that an excess coverage endorsement be added to his policy, he neither requested the insurer’s advice on the advisability of the requested change nor indicated that he was unaware of the collateral consequences of the change. His request was for a specific change. He and his wife explained that they desired to decrease the nature of their coverage in exchange for a reduction in the amount of premiums which they would be required to pay. They received precisely what they requested. Unlike Tonkovic v. State Farm Mutual Automobile Insurance Co., supra, the insurer did not unilaterally insert an unanticipated provision in the policy. Under these circumstances, the law will not permit the insured to avoid the consequences of the endorsement which he specifically requested by contending that he failed to understand the full effect thereof.

In Hess v. Allstate Insurance Co., 614 F.Supp. 481 (W.D. Pa.1985), aff'd, 804 F.2d 1248 (3d Cir.1986), the insured had purchased a no-fault automobile insurance policy from Allstate. The policy contained a “coordination of benefits” endorsement which provided that the insured’s health insuranee would be the primary source of benefits in case of an accident, with the automobile insurance policy to provide coverage only for additional costs. After the insured had been seriously injured in an automobile accident, he brought suit against Allstate in an attempt to recover reimbursement for his medical expenses. He argued that the endorsement was ineffective because Allstate had failed to inform him of (a) the availability of a double recovery of medical payments arising both from Allstate and the insured’s health care provider if no coordination of benefits had been made; and (b) the possibility that medical expense benefits paid under the insured’s health care insurance as a result of an automobile accident might exhaust the limits of coverage under that policy. Summary judgment in favor of Allstate was granted by the district court. Relying on Standard Venetian Blind Co. v. American Empire Insurance Co., supra, the Court held that the language of the limitation was clear and unambiguous and, therefore, its effect could not be avoided on the ground that the insurer had failed to explain its meaning to the insured. The Court said: “Under Pennsylvania law, the insurer would only have to prove that the insured received a copy of the policy containing the clear and unambiguous exclusionary language in order to prevail.... [M]ere allegations of failure of the insurer to explain a clearly-worded limitation are legally insufficient.” Hess v. Allstate Insurance Co., supra at 487. The Court added: “Finally, we reject [the insured’s] argument that Allstate was under a duty to explain purely hypothetical effects on [the insured’s] other medical insurance policies. Where the limitation is clearly worded and unambiguous, the language of the policy controls.” Id.

We agree with the federal district court’s analysis and hold that where, as here, the policy provision is clear and unambiguous, neither the insurer nor its agents have a duty to explain all of the hypothetical consequences which may result from an excess coverage endorsement which the insured has specifically requested. The trial court correctly held that the amended complaint failed to state a cause of action against Valley Forge.

If it is evident that a pleading can be cured by amendment, a court may not enter a final judgment, but must give the pleader an opportunity to file an amended complaint. Stevens v. Doylestown Building & Loan Assoc., 321 Pa. 173, 183 A. 922 (1936). This is a positive duty of the court and not a matter of discretion. Framlau Corp. v. Delaware County, 223 Pa.Super. 272, 299 A.2d 335 (1972). However, if it clearly appears that a defective complaint cannot be cured, a demurrer to it and dismissal of the action is proper. Seitz v. Fulton National Bank, 325 Pa. 14, 188 A. 569 (1936).

Mace v. Senior Adult Activities Center, 282 Pa.Super. 566, 569, 423 A.2d 390, 391 (1980). See: Carlino v. Whitpain Investors, 499 Pa. 498, 505, 453 A.2d 1385, 1388 (1982). Appellants did not disclose to the trial court and have not enlightened us with alternative facts which would support a cause of action against Valley Forge. The trial court under these circumstances was not required to afford them an opportunity to file a second amended complaint.

The trial court also dismissed appellants’ amended complaint against the insurance brokers who had obtained for appellants the policy of insurance and the excess insurance endorsement thereto. This was error. Rafferty and the Wagner Agency, although having been served with the amended complaint, did not file preliminary objections thereto or answer the complaint on the merits. They requested and received an extension of time within which to file a pleading, but they had not filed the same when Valley Forge’s preliminary objections were decided. With respect to Rafferty and the Wagner Agency, therefore, there was nothing before the trial court which required decision. For the court to dismiss the complaint against them sua sponte was improper. It may be, of course, that appellants will ultimately be unable to plead or prove a legally cognizable cause of action against the brokers, but that is a matter separate from the cause of action alleged against Valley Forge and must await further proceedings.

The order sustaining preliminary objections in the nature of a demurrer to the complaint and entering judgment in favor of Valley Forge Insurance Company is affirmed. The order entering judgments in favor of Bernard Rafferty and the Wagner Agency, Inc. is reversed, and the counts of the complaint against those defendants are remanded for further proceedings. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . The endorsement provided
      “Personal Injury Protection is excess over any other Hospital/Medical Expense Coverage.”


author: DEL SOLE, Judge:

text:
    526 A.2d 438
    COMMONWEALTH of Pennsylvania v. Larry Donnell GIBSON a/k/a Larry Donnell, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1987.
    Filed May 27, 1987.

      Michael Streily, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

The Appellant was convicted of third degree murder in April of 1982. The victim was the Appellant’s common law wife. Mr. Gibson’s appeal was heard by a panel of this Court in 1984; that panel disposed of four issues raised by the Appellant but remanded the case, for new counsel to represent Mr. Gibson in connection with his claim of ineffective assistance of counsel. (Commonwealth v. Gibson, 353 Pa.Super. 643, 506 A.2d 1336 (1985). That claim is before us now.

Mr. Gibson claims that his trial counsel should have objected to the hearsay testimony of the victim’s sister, Nina Willis, who testified that the victim told her that the Appellant had beat her, and that she has seen bruises on her sister and other evidence of the beatings. Our review of the record, however, shows that the Appellant’s counsel filed a Motion in Limine seeking to have testimony of family members about past violent acts of the defendant excluded. This Motion was argued before trial and the trial judge ruled against the Appellant. (N.T. p. 34). It was not necessary for trial counsel to renew her objection during the trial. This is analogous to the situation where proposed voir dire questions were specifically denied. A renewed objection at the conclusion of voir dire is not necessary. Commonwealth v. Holland, 298 Pa.Super. 289, 292 n. 3, 444 A.2d 1179, 1181 n. 3 (1982).

We find that the testimony of Nina Willis was admissible in any event. The Appellant argues that the testimony was speculative and about events too remote in time from the crime but we find these arguments to be without merit. Mrs. Willis testified that during the year 1980 her sister had reported beatings by the Appellant; Mrs. Willis also testified that she had seen bruises and cuts which resulted from the beatings. (N.T. 190-194). Her sister’s death occurred in 1981.

The law is clear that evidence concerning the previous relations between a defendant and a homicide victim is relevant and admissible for the purpose of proving ill will, motive or malice. Evidence of prior occurrences in which the accused threatened, assaulted, or quarrelled with the decedent may be admissible for this purpose. This principle applies when the decedent was the spouse of the accused. Thus evidence concerning the nature of the marital relationship is admissible for the purpose of proving ill will, motive or malice. This includes, in particular, evidence that the accused physically abused his or her spouse. Commonwealth v. Ulatoski, 472 Pa. 53, 61, 371 A.2d 186, 190 (1977) (citations omitted).

Whether the evidence is of events too remote in time to be probative is a matter for the discretion of the trial judge, Ulatoski, 472 Pa. pp. 62-63, 371 A.2d pp. 191-192. We find no abuse of discretion in this case, since the events in question took place on a continuing basis from twelve to twenty-two months before the crime took place.

We find that there is no merit to the Appellant’s claim of ineffective assistance of counsel, because trial counsel attempted to have the complained-of testimony excluded by means of a pre-trial motion. We also find that, even if counsel had not objected to the testimony of Mrs. Willis, there is no ineffectiveness because the evidence was properly admissible to show the state of mind of the accused. We therefore affirm judgment of sentence.

Judgment of sentence affirmed.


text:
    526 A.2d 440
    COMMONWEALTH of Pennsylvania v. James Earl DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1987.
    Filed May 27, 1987.

      John H. Corbett, Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from an order which denied Appellant’s Post-Conviction Hearing Act Petition. Appellant filed the petition following his conviction for numerous counts of Burglary, Theft, Receiving Stolen Property, Attempt and Conspiracy. A Judgment of Sentence totaling 2OV2 to 205 years was imposed on these charges after the court received Appellant’s guilty plea. When Appellant later filed a motion to reconsider sentence, the court granted the motion and reduced Appellant’s sentence to a total of IOV2 to IO2V2 years based upon Appellant’s cooperation with the Commonwealth in other cases.

The Petition filed by Appellant alleged that he was entitled to relief for the following reasons:

1. The introduction of a coerced confession into evidence;

2. The introduction into evidence of a statement obtained in the absence of a lawyer at a time when representation is constitutionally required;

3. The infringement of my privilege against self-incrimination under either federal or state law;

4. The denial of my constitutional right to representation by a competent lawyer;

5. A plea of guilty unlawfully induced;

6. The abridgement of a right guaranteed by the constitution or laws of this state or the constitution or laws of the United States, including a right that was not recognized as existing at the time of trial if the constitution requires retroactive application of that right.

Counsel was appointed on Appellant’s behalf, however counsel never amended the petition and never filed a Brief. Counsel did appear before the court to make an argument on the motion.

Appellant maintains that counsel although appointed did not “meaningfully participate” in the case, and therefore, he was in effect “uncounseled” and entitled to have the court’s order reversed and new counsel appointed. We agree. The Supreme Court in Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975) considered a case where an appellant filed a PCHA petition and had counsel appointed. No attempt was made to file an amended petition, no oral argument was held and no Brief was filed on appellant’s behalf. The court ruled that under these circumstances the proceeding was in fact uncounseled. Since mandatory appointment is a salutary requirement, Id., 462 Pa. at 412, 341 A.2d 448, the court vacated the PCHA court’s order and remanded the case to appoint counsel to represent the appellant in the filing of an amended petition and further proceedings held thereon. Citing Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148 (1967) the Court also remarked:

Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are function of an advocate that are inappropriate for a judge or his staff.

Commonwealth v. Fiero, supra, 462 Pa. at 412-413, 341 A.2d 448.

The holdings of Commonwealth v. Mitchell and Commonwealth v. Fiero, have been cited repeatedly by the courts of this Commonwealth. (See: Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976), where counsel was appointed but failed to file an amendment to appellant’s inarticulately drawn petition; Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980), where counsel did not attempt to amend appellant’s pro se petition or prepare argument thereon; and Commonweealth v. Ollie, 304 Pa. Super. 505, 450 A.2d 1026 (1982), where counsel failed to amend an inartfully drawn petition containing claims which were not “patently frivolous”.) More recently in Commonwealth v. Turner, 353 Pa.Super. 173, 177, 509 A.2d 391 (1986), this court quoted language from earlier cases which noted:

The mandatory appointment of counsel requirement of the Post Conviction Hearing Act is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.

Commonwealth v. Ollie, supra, 304 Pa.Super. at 508, 450 A.2d at 1028, Commonwealth v. Carrier, 494 Pa. 305, 308-310, 431 A.2d 271, 273 (1981). The court in Commonwealth v. Turner, went on to remark that:

should such representation fail in its objective due to the cognizable ineffectiveness of counsel, the petitioner is entitled to a reversal of the PCHA court’s adverse decision, as well as the appointment of new counsel regardless of the merit of any issues previously asserted[.]

Commonwealth v. Turner, supra, 353 Pa.Super. at 177, 509 A.2d 391.

In the instant case, Appellant presented the court with a petition which contained, even by his counsel’s observations, “a very general statement and not specific”. This petition was not amended by counsel, despite counsel’s awareness of its shortcomings, and the issues set forth in the petition were not developed by counsel in a Brief. Counsel was present at argument on the petition, however, our examination of the transcript in the matter, leads us to conclude that counsel failed to fulfill the duties required by his representation. Counsel stated to the court that the relief Appellant sought was withdrawal of his guilty plea. Appellant’s PCHA counsel, Mr. Conflenti, remarked:

What he is alleging here is that a motion was filed after he pled to withdraw his guilty plea because he wasn’t given a proper deal. He says that motion was then pulled out, that the motion was filed and that motion — the motion to withdraw was withdrawn and that’s what he says his counsel was ineffective in.

Counsel then went on to reveal his unfamiliarity with the case.

THE COURT: Withdrawn when, after he was sentenced or before he was sentenced?
MR. CONFLENTI: When was the motion withdrawn?
JAMES DAVIS: After sentencing.
MR. CONFLENTI: After he was sentenced.
MR. WOLTSSHOCK: Your Honor, if I may clarify the point. He filed a motion to reconsider sentence as well as a motion to withdraw the plea contemporaneously after his original—
THE COURT: After?
MR. WOLTSHOCK: After he was sentenced. In both of those motions — in the motion to reconsider sentence he raised the allegation that he had assisted the police in this investigation and, therefore, because of his assistance he requested that this Court reduce sentence. The Court, in fact, on the basis of that petition reduced the sentence in half. On the very same day—
THE COURT: I did it already?
MR. WOLTSHOCK: Yes. On the very same day he withdrew his motion to withdraw. His signature is on that withdrawal.
And as the Court has already explained, his plea would have failed anyway because in his plea he said that no promises have been made to induce his plea.
MR. CONFLENTI: Was that petition for reduction also filed by Mr. Baginski? (Appellant’s trial counsel).
MR. WOLTSHOCK: He filed both.
MR. CONFLENTI: So his time was then cut in half.
THE COURT: Seems to me you are pretty lucky, sir. Petition is denied.

We do not view counsel’s actions as “meaningful participation” in this case. Counsel by his comments demonstrated that he was unprepared for meaningful argument on his client’s behalf. Further, Counsel failed to even mention other possible claims which could have been made and which were preserved by means of Appellant’s pro se petition.

Accordingly, we conclude Appellant was denied meaningful and effective assistance of counsel. We reverse the order of the PCHA court and remand the case for appointment of counsel to represent Appellant in the filing of an amended PCHA petition and any further proceedings thereon.