author: OLSZEWSKI, Judge:

text:
    542 A.2d 1374
    Nancy G. BOLD, Appellee, v. Richard A. BOLD, Appellant. Nancy G. BOLD, Appellant, v. Richard A. BOLD, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1987.
    Filed May 5, 1988.
    Reargument Denied June 22, 1988.

      David A. Eisenberg, Allentown, for appellant (at 1047) and appellee (at 1226).
    John R. Greisamer, Allentown, for appellant (at 1226) and appellee (at 1047).
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), the Supreme Court of Pennsylvania was asked to determine whether Section 501 of the Divorce Code, 23 P.S. § 501, permits an award of “reimbursement alimony” to a supporting spouse for contributions made to a student spouse during the course of a marriage. In this case, we are asked to examine Hodge and to fashion an equitable award under Section 401 of the Divorce Code to reimburse a supporting spouse for the contributions made while the other spouse pursued an academic degree. Having carefully considered the argument advanced under Hodge, supra, and, in light of our decision in Lehmicke v. Lehmicke, 339 Pa.Super. 559, 489 A.2d 782 (1985), we are constrained to vacate the order granting appellant an award of “reimbursement equity” and to remand the case for further proceedings.

I. Background

Nancy G. Bold and Richard A. Bold were married on May 25, 1974. At the time of the marriage, Nancy had attained a bachelor of science degree in medical technology and had been employed as a medical technician. In 1974 she earned between $12,000-13,000 annually, and in 1979 she accepted employment at a salary of $19,000. Nancy brought approximately $2,500 into the marriage. When Richard entered the marriage he had completed a few years of college and the police academy in Los Angeles, California. He had been employed at various odd jobs such as sales, construction and automobile repair but was unemployed due to “layoffs” at those jobs. Mr. Bold entered the marriage with approximately $700, some personal property and a camper.

From 1974 through 1979, the parties lived in California. In May of 1977, they purchased a home there for $57,480: Mrs. Bold contributed $500 to the down payment, the parties borrowed $5,000 from Mr. Bold’s mother and they took a mortgage in the amount of $49,000. The parties sold the house in July of 1979 for $84,040, realizing a profit of $24,984.40.

Starting in September of 1974 and until 1976, Mr. Bold attended college pursuing courses in business and geology, and from 1976 through May of 1979, he attended the Los Angeles College of Chiropractic. While pursuing a degree, Mr. Bold received Veterans Administration educational benefits which totaled in excess of $12,000. During that same time, tuition and book expenses totaled approximately $14,-300. Mr. Bold also received a student loan in the amount of $1,187.15 which was repaid within nine months of graduation. While pursuing his studies, Mr. Bold earned approximately $16,000 at various odd jobs. During the five years that Mr. Bold was in school, Mrs. Bold earned in excess of $80,000.

Although Mr. Bold was in school, the couple enjoyed numerous outings, camping trips, vacations, and sightseeing and skiing trips. The parties also dined out and entertained at home. In total, the parties expended approximately $106,612 between 1974 and 1979.

Mr. Bold graduated from chiropractic school in May of 1979. In August of that year, the parties sold the house in California and moved to Pennsylvania where they purchased a house for $55,000. Upon moving to Pennsylvania, Mrs. Bold obtained a job at an initial salary of $17,000 and Mr. Bold found work at a weekly salary of $200. In February of 1980, Mr. Bold left his job and opened his own chiropractic practice. There is no doubt that his education has increased his earnings potential. In 1984, for example, Mr. Bold had gross receipts of $87,394 and a net profit of $31,934 from his chiropractic practice.

On October 1, 1981, Mrs. Bold moved out of the marital home at the request of Mr. Bold. She relocated to a one-bedroom apartment where she enjoys few modern facilities. Mrs. Bold has remained at her present job even though there is no potential for a significant increase in earnings. She has, however, attended college since January of 1985 in pursuit of a master’s degree, a move which will increase her earning potential. Her employer pays two-thirds of her educational costs.

The assets available for distribution are as follows. Furnishings and equipment at Mr. Bold’s office are valued at $8,095. The parties jointly own two cars which have a combined total value of $5,500. In addition, Mrs. Bold obtained stock worth $6,887 from her employer and the balances in the several bank accounts total $540. In 1984 the marital house was valued at $59,000, and at the time of the separation, the equity value of the house was $15,-863.35. From the time the parties were separated in 1981 until the time of the divorce in 1984, Mr. Bold has paid insurance, mortgage and tax bills totaling $4,433.

The record also contains the following summary of the earnings of Mrs. Bold and the net profit of Mr. Bold, respectively:

1981 — $19,503/$18,542;

1982 — $22,161/$32,254;

1983 — $23,700/$37,023;

1984 — $26,363/$31,934 (plus interest income of $1,120).

On May 12, 1981, Mrs. Bold filed a complaint seeking a divorce, equitable distribution, counsel fees, costs and expenses. A bifurcated divorce decree was entered by stipulation of the parties on April 26, 1984. A master was appointed to hear the economic claims and, after several hearings, a report and recommendation was filed on January 24,1986. Mr. Bold subsequently filed timely exceptions to the master’s report. Arguments were heard and, on March 23, 1987, the lower court issued an opinion and the following decree:

EQUITABLE DISTRIBUTION

NOW, March 23, 1986, IT IS HEREBY ORDERED AND DECREED that Nancy G. Bold, Plaintiff, execute a deed transferring all her right, title and interest to the premises known as 1803 Saratoga Court, Allentown, Le-high County, Pennsylvania to Richard A. Bold, Defendant, upon notice of entry of this decree and that said deed shall be held in escrow by plaintiff’s attorney until defendant pays to plaintiff the sum of $9,200.00.

IT IS FURTHER ORDERED that plaintiff shall retain as her separate property the following:

(a) Bristol Myers and Smith Kline stock $6,887.00
(b) 1974 Volkswagen 2,500.00
(c) All personal property listed on Exhibit “C” of the Master’s Report followed by the designation “N” 4,680.00
Total $14,067.00

IT IS FURTHER ORDERED that defendant shall retain as his separate property the following:

(a) All office furnishings and equipment $8,095.00
(b) 1979 Dodge Aspen 3,000.00
(c) All personal property listed on Exhibit “C” of the Master’s Report followed by the designation “R” 4,002.00
(d) First National Bank Accounts 540.00
Total $15,637.00

EQUITY AWARD

IT IS FURTHER ORDERED that defendant pay to plaintiff the sum of $33,000.00 in reimbursement equity in equal monthly installments of $550.00 without interest to commence upon entry of this decree and continue sixty (60) months; should any installment be more than five (5) days overdue, defendant shall pay interest at ten percent (10%) per annum on the over due amount.

COUNSEL FEES, COSTS & EXPENSES

IT IS FURTHER ORDERED that defendant pay the sum of $5,444.27 to plaintiffs counsel, John Greisamer, Esquire, towards plaintiffs counsel fees, costs and expenses and that plaintiff be responsible for all other outstanding fees and costs. Said payment to be made within forty-five (45) days of the entry of this decree.

Both parties timely filed appeals from this final decree.

II. Appeal of Mr. Bold

We turn first to the appeal of Mr. Bold which raises three claims of error: (1) a challenge to the award of “reimbursement equity”; (2) an attack on the order directing that he reimburse Mrs. Bold for one-half of her counsel fees; and (3) a claim that the lower court forced him into a “buy-out” arrangement and failed to credit him for expenses incurred in preserving the marital property following the separation.

Before addressing the merits of these contentions, we are reminded that our standard of review of such claims is a narrow one. We may not reverse the order before us absent an abuse of discretion by the lower court. Campbell v. Campbell, 357 Pa.Super. 483, 489-90, 516 A.2d 363, 366 (1986) (en banc); Remick v, Remick, 310 Pa.Super. 23, 28-30, 456 A.2d 163, 165-166 (1983) (en banc). “ ‘An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence____ However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law.’ ” Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986), quoting, Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). In any event, we may not disturb any of the lower court’s factual findings which are based upon credible evidence. Campbell, 357 Pa.Super. at 489-90, 516 A.2d at 366.

A.

In his appeal, Mr. Bold first contends that the court erred in making an award of “reimbursement equity,” i.e., contribution to Mrs. Bold for the financial and other support given while Mr. Bold continued his education. Under the facts of this case we are constrained to agree with this contention.

Summarizing the facts, this case presents the not unfamiliar situation in which one spouse works toward a professional degree while the other spouse provides support and maintains the home. Mr. Bold spent the first five years of the marriage completing his college education. During that time, his earnings were minimal, averaging approximately $4,000 per year. On the other hand, Mrs. Bold earned in excess of $80,000 and used the money to support the household. The marriage ended at a point in time when Mr. Bold’s earning potential was just being realized and before the couple could enjoy the fruits of their labors. While Mr. Bold has embarked upon a lucrative career path, Mrs. Bold anticipates no likelihood of increasing her earnings absent an advanced degree which, she testified, would require five years of schooling.

After hearing the testimony and making factual findings, the master awarded Mrs. Bold the sum of $33,000 as “equitable alimony.” Relying upon the recent pronouncement of the Supreme Court of Pennsylvania in Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), and the decision by this Court in Lehmicke v. Lehmicke, 339 Pa.Super. 559, 489 A.2d 782 (1985), the lower court rejected the master’s recommendation but awarded the sum of $33,000 as “reimbursement equity.” Mr. Bold now contends the award is neither authorized by case law nor supported by the facts. Conversely, Mrs. Bold argues that the equitable remedies recognized in Hodge and Lehmicke are appropriate here. The initial question before us then is whether the Hodge and Lehmicke decisions are applicable in this case.

In Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), the Supreme Court of Pennsylvania was asked to examine the propriety of an order granting a working spouse’s request for alimony as compensation for the support given to her spouse while he pursued his education. Id., 513 Pa. at 269, 520 A.2d at 17. Speaking for a divided Court, Mr. Justice Zappala examined Section 501 of the Divorce Code, 23 P.S. §§ 501 et seq., and determined that alimony may only be granted for the purpose of rehabilitation, not reimbursement. Id., 513 Pa. at 271, 520 A.2d at 18. Consequently, Justice Zappala concluded that the Superior Court erred in upholding an equitable remedy in the nature of alimony pursuant to Section 501. Id., 513 Pa. at 271-72, 520 A.2d at 19. Because the Court was divided on this issue, however, the decision of the Superior Court was affirmed. Hodge, 513 Pa. at 272, 520 A.2d at 19.

We recognize the significance of the Hodge decisions to the matter at hand; however, a question regarding an award of reimbursement alimony is not properly before this Court for review. Although Hodge was applied in the proceedings before the master, Mrs. Bold has failed to raise the issue of reimbursement alimony in her appeal from the order of the lower court. Because the issue is not properly before us, any discussion concerning the effect of the Hodge decisions would be improper.

We turn then to question the propriety of the award as one in the nature of an equitable reimbursement. An equitable award to a spouse who has contributed to the other’s advanced degree is a remedy which has only recently been recognized by our Court. In Lehmicke v. Lehmicke, 339 Pa.Super. 559, 489 A.2d 782 (1985), this Court determined that, in a proper case, Section 401(c) of the Divorce Code permitted the trial court to fashion an equitable remedy which would reimburse the working spouse for contributions to the non-working student spouse. Underlying the decision in Lehmicke was a notion of fairness; where one spouse’s contributions to the marriage include financial support toward the education of a non-working spouse, it would be unfair and inequitable to deny reimbursement for the educational contributions.

Lehmicke gave approbation to an award of equitable reimbursement. A majority in Lehmicke, however, was unable to determine what expenses were to be reimbursed. Writing in support of the majority’s decision to remand the case for further consideration, Judge Brosky opined that a working spouse was entitled to reimbursement for all financial contributions—household expenses and educational costs—incurred while the other pursued a course of education. Underpinning , this position was the theory that an award to a working spouse “is in the nature of recompense for [a spouse’s] contribution and ought to relate to it.”

Lehmicke, 339 Pa.Super. at 568, 489 A.2d at 787. In his dissent from the decision to remand, Judge Wieand found no evidence that the working spouse directly contributed to the cost of the student spouse’s education. Emphasizing that the parties owed an equal duty of support, Judge Wieand reasoned:

The duty of support is imposed by rule of law on both spouses. Compliance with this legal duty does not result in unjust enrichment to the other. Marriage is for better or worse. It is not entered with a conscious intent that at some future time there will be an accounting of and reimbursement for moneys contributed to the support of the family. To inject such a concept would, in my judgment, have far-reaching and unfortunate consequences. If I am correct in my view regarding the duty of spousal support, then it is difficult to perceive good reason for creating an exception which would reimburse a spouse for support contributed while the other is attending an institution of higher learning or otherwise obtaining advanced training.
[A] nonworking spouse is liable to reimburse a working spouse only for sums advanced in excess of the legal duty of support imposed by law upon the working spouse. In most cases where the nonworking spouse is engaged in obtaining an education, this will be the amount contributed by the working spouse to the cost of educating the other spouse. Such a limit on the right to obtain restitution on equitable grounds is consistent with the contract of marriage, the legal duty of spousal support, and the purpose of the Divorce Code to effectuate economic justice between the parties upon divorce.

Lehmicke v. Lehmicke, 339 Pa.Super. 559, 573-574, 489 A.2d 782, 790 (1985) (Wieand, J., Concurring and Dissenting) cited with approval in Hodge v. Hodge, 513 Pa. 264, 271, 520 A.2d 15, 18 (1986).

Having carefully considered the standards proposed in Lehmicke, we are in agreement with the view expressed by Judge Wieand. Marriage is not a business enterprise which requires a strict economic accounting for all financial aid rendered during its course. Rather, each party owes the other a duty of support. Accordingly, principles of equity will intervene only when one party has been unjustly enriched by financial contributions rendered which exceed that imposed by the law.

Instantly, the evidence indicates that Mrs. Bold did not contribute to the cost of Mr. Bold’s academic degree. While pursuing a degree, Mr. Bold received educational benefits from the Veterans Administration in excess of $12,000, he obtained a student loan in the amount of $1,187.15, and he earned approximately $16,000 at various jobs. The evidence also shows that Mr. Bold’s educational costs were approximately $14,300. Although Mrs. Bold worked and contributed to her husband’s support while he was attending school, her contributions did not exceed that required by the law for the benefit of the family. Because the evidence fails to establish that Mr. Bold was unjustly enriched by his former spouse's contributions, we conclude the court erred in fashioning an equitable remedy pursuant to Section 401(c) of the Divorce Code. Accordingly, the order directing that Mr. Bold pay appellee the sum of $33,000 is vacated.

B.

Secondly, Mr. Bold claims the court erred in forcing him into a “buy-out” of his former spouse’s interest in the marital house. In addition, Mr. Bold contends the court erred in failing to credit him for making post separation payments which preserved that asset. We agree.

A court may not resort to a buy-out remedy absent specific findings as to why the marital property cannot be divided. Wolf v. Wolf, 356 Pa.Super. 365, 375, 514 A.2d 901, 906 (1986), citing, Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984). Instantly, the master failed to make any specific findings before recommending a buy-out arrangement. Upon review of the master’s recommendation, the lower court recognized that specific findings were required under Barletta, yet failed to heed the mandate of that decision before approving the buy-out remedy. In light of this error by the court, the order regarding the equitable distribution of the marital property is reversed and the case is remanded for proceedings consistent with Barletta and Wolf.

C.

Mr. Bold’s final claim is a challenge to the order directing him to pay one-half of his former spouse’s counsel fees. Specifically, Mr. Bold asserts that an award of counsel fees should not be assessed against him because his former spouse is financially independent and, in any event, she has received sufficient marital assets through distribution of the marital property.

A court may, of course, make an award of fees pursuant to its discretionary power. 23 P.S. § 401(b). The factors to be considered in making this determination include the size of the estate of the moving party, the value of counsel’s services and the moving party’s ability to pay. Semasek v. Semasek, 331 Pa.Super. 1, 14, 479 A.2d 1047, 1054 (1984), order modified and affirmed, 509 Pa. 282, 292 n. 4, 502 A.2d 109, 113 n. 4 (1985). In making an award, the lower court may also consider the distributive share of the moving party’s estate. See Campbell v. Campbell, 357 Pa.Super. 483, 494, 516 A.2d 363, 369 (1986) (en banc). The paramount concern, however, is with placing the parties “on a par in defending their rights.” Deck v. Deck, 342 Pa.Super. 17, 23, 492 A.2d 41, 44 (1985).

Given our determinations regarding the award of reimbursement equity and the division of the marital property, we believe that review of the award of counsel fees would be premature and speculative. Consequently, we decline to review the merits of the award of counsel fees.

III. Appeal of Mrs. Bold

Notwithstanding our determination regarding the appeal of Mr. Bold, we find it necessary to examine and comment on the appeal of Mrs. Bold. In her appeal, Mrs. Bold claims only that the lower court abused its discretion in rejecting the master’s recommendation for a sixty-forty division of the marital property.

In making an award of equitable distribution, we assume the lower court considered that it was also making an equitable award to Mrs. Bold in the amount of $33,000. Because we are vacating the equitable award, the lower court must redetermine a proper division of property, giving consideration to the factors listed in the Divorce Code, 23 P.S. § 401(d). See Aletto v. Aletto, No. 371 Pa.Super. 230, 242-243, 537 A.2d 1383, 1389 (1988).

IV. Conclusion

For the reasons set forth, in the appeal of Mr. Bold at No. 1047 Philadelphia, 1987, and the cross-appeal of Mrs. Bold at No. 1226 Philadelphia, 1987, the decree of the court is reversed and vacated. The case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . No children were born of the marriage.

      . On April 28, 1987, two petitions were filed in the lower court: the master petitioned for compensation and appellee requested that the court direct appellant to pay interim counsel fees, costs and expenses of not less than fifty percent of the amount so required by the order of March 23, 1987. Acting upon these petitions, the lower court entered an order on April 28, 1987, directing, inter alia, that this appeal shall not act as a supersedeas and that appellant immediately pay $3,000 of the counsel fees incurred by appellee or turn over the stock subjected to distribution. This order is not now before us on appeal.

      . Mrs. Bold relies upon the Superior Court decision in Hodge v. Hodge, 337 Pa.Super. 151, 486 A.2d 951 (1984), which affirmed the order granting an award of alimony as recompense for contributions to an educational degree.

      . We note that Mrs. Bold did not request equitable relief in the divorce complaint. Generally, an economic claim is forfeited if it is not presented in a complaint and preserved for resolution before a divorce is granted. See Pa.R.Civ.P. 1920.13, 1920.72. In this case, however, the complaint was filed and the divorce was granted before our decision in Lehmicke, supra. Consequently, we will examine the merits of the order granting equitable relief to Mrs. Bold.

      . The opinion in Lehmicke was authored by Judge Brosky with Judge McEwen concurring in the result and Judge Wieand concurring and dissenting. Judge Wieand agreed with Judge Brosky that pursuant to Section 401(c) the Court may fashion an equitable remedy to compensate the contributing spouse but disagreed with him as to the scope and application of that remedy.

      . Although Mrs. Bold failed to file exceptions to the master’s report, this issue has not been waived. See Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986) (exceptions need not be filed to preserve issues for appellate review when the court’s decree modified the terms of the master’s report and recommendation).


source: Caselaw Access Project

author: ROWLEY, Judge: BECK, Judge, TAMILIA, Judge,

license: Public Domain

text:
    542 A.2d 1380
    COATESVILLE DEVELOPMENT COMPANY and Giant Food Stores, Inc., Appellants, v. UNITED FOOD AND COMMERCIAL WORKERS, AFL-CIO; United Food and Commercial Workers, Local 1357, AFL-CIO and United Food and Commercial Workers, Local 56, AFL-CIO.
    Superior Court of Pennsylvania.
    Argued June 8, 1987.
    Filed May 19, 1988.

      Eric Hemmendinger, West Chester, for appellants.
    N. Michael Katz, Philadelphia, for United Food, Local 1357, appellee.
    Miriam L. Gafni, Philadelphia, for United Food, Local 56, appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and JOHNSON, JJ.
   ROWLEY, Judge:

This is an appeal from an order denying appellants’, Coatesville Development Company and Giant Food Stores, petition for a preliminary injunction against appellees, two locals of the United Food and Commercial Workers Union. We affirm.

On August 28, 1984, appellant Giant Food Stores, Inc. (Giant) opened a new supermarket at Thorndale Shopping Center which shopping center is owned by Coatesville Development Company (Coatesville). The Thorndale Shopping Center consists of several stores in addition to Giant and a large parking area, and it is immediately adjacent to another shopping center which includes a competitor of Giant. The same day that the store opened, appellees were engaged in a labor dispute with Giant and began picketing and distributing handbills in front of the store as well as in the parking lot of the shopping center. The appellees charged that Giant paid substandard wages to its employees and discouraged public patronage of the store. The Union was not attempting to organize Giant’s employees and none of the pickets was employed by Giant.

Coatesville has no policy limiting or restricting the purposes for which a person is invited onto the mall premises. Giant has a policy prohibiting unauthorized solicitation by non-employees on its premises and prohibiting employees from soliciting during working time on both the company’s property as well as in the common areas of the shopping center. This policy is made known to the public by a sign which is posted inside the store’s vestibule. The sign reads:

UNAUTHORIZED SOLICITATION FOR ANY PURPOSE OR THE DISTRIBUTION OF LITERATURE OF ANY KIND BY NON-EMPLOYEES ON COMPANY PREMISES IS NOT PERMITTED.
EMPLOYEES ARE NOT PERMITTED TO SOLICIT OR DISTRIBUTE LITERATURE DURING WORKING TIME IN WORKING AND PUBLIC AREAS.

The sign is not visible to one driving past the store in an automobile, and there is no positive evidence in the record that the sign is visible by pedestrians in the parking lot or on the sidewalk outside the store.

The day after the picketing began, Giant obtained a temporary ex parte injunction permitting the pickets, but limiting their number and their location, at specific places on the sidewalk and in the parking areas of the mall. Five days later, Giant and the Union consented to the entry of an injunction on terms similar to the ex parte injunction, and the trial court made the consensual injunction an order of court. However, both the Union and Giant expressly reserved the right to assert and challenge, respectively, the Union’s legal right to picket on the mall property.

Almost three months after the ex parte injunction was obtained, Coatesville filed a separate complaint in equity against the Union seeking a temporary and permanent injunction against all picketing on its property by the Union. Despite Giant’s consent to the earlier limited injunction in its separate action, Giant, along with Coatesville, filed an amended complaint in Coatesville’s equity action naming both Coatesville and Giant as plaintiffs in the action. One of the paragraphs in the complaint stated that all the proceedings in Giant’s separate action in which it had consented to the preliminary injunction were incorporated by reference. In its answer to the amended complaint, the Union denied that anything from Giant’s separate action against the Union was incorporated or that the two actions had been properly joined. Also, in response to the amended complaint the Union filed unfair labor charges against appellants. The National Labor Relations Board dismissed the charges on the basis that the Union had failed to show that appellants’ action was frivolous or lacking a reasonable basis in fact or in law, or that the action was retaliatory. Thus, it did not constitute an unfair labor practice.

In December, 1984, a hearing was held in the Coatesville/Giant action on the issue of whether the trial court should grant the requested preliminary injunction and permit the Union to picket on appellants’ property. The trial court determined that while peaceful picketing on private property is not protected by the First Amendment of the United States Constitution, it is protected by Art. 1, § 7 of the Pennsylvania Constitution.

In reaching its conclusion, the trial court relied on Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), in which our Supreme Court held that the Pennsylvania Constitution affords more expansive protection of free speech than the federal constitution. Tate further established a test which balances the right to possess and use property against the right of free expression. Applying this test to the instant action, the trial court held that it was a reasonable exercise of police power to permit peaceful picketing by the Union on appellants’ property particularly since it determined that the Union’s alternatives were wholly inadequate. Thus although the trial court found that the Pennsylvania Constitution protected the Union’s right to picket, it found it unnecessary to grant the preliminary injunction because the existing injunction granted in Giant’s separate action against the Union and which was agreed to by Giant and the Union but not Coatesville, was an appropriate accommodation of the parties’ constitutionally protected rights. For these reasons the trial court denied the petition for a preliminary injunction in the present case.

Coatesville and Giant appealed from the order denying the preliminary injunction claiming that the trial court erred in holding that the Union’s right to picket and distribute handbills on private property was constitutionally protected. A panel of this Court reversed the trial court’s order by holding that the Union did not have a right under the Pennsylvania Constitution to picket on the private property of Coatesville and Giant.

Reargument before the court en banc was granted, and the parties were given permission to file supplemental briefs addressing the impact of the recent decision of the Pennsylvania Supreme Court in Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 512 Pa. 33, 515 A.2d 1331 (1986). The trial court had addressed the Superior Court’s disposition of Socialist Workers, 335 Pa.Super. 493, 485 A.2d 1 (1984), which had held that a privately owned shopping center was purely private and, therefore, the state constitution did not restrict the owner’s right to prohibit political activity on its property. However, the trial court found that the Superior Court had relied on a line of cases rejected by the majority in Tate and that it had misconstrued Tate.

Despite the emphasis on the constitutional rights of the parties in the trial court’s opinion, the panel’s disposition, and the parties’ briefs, we find it unnecessary to reach the constitutional issue of whether Article 1 § 7 of the Pennsylvania Constitution protects the right of union members engaged in a labor dispute with a store to picket and distribute, on the private property of a shopping center, including the parking lot and sidewalks of the shopping center, handbills announcing that the store does not comply with area-standards with regard to its treatment of employees. We can determine whether the trial court’s order denying the preliminary injunction was an abuse of discretion by applying principles of the common law. Where an issue can be resolved on a basis other than constitutional law, the court should not address the constitutional question. Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981). We therefore will not address the constitutional issue.

Before discussing the merits of the case we note that despite the cessation of Union picketing at Giant’s store at the Thorndale Shopping Center in April, 1985, the present case involves an exception to the strict application of the doctrine of mootness. The Union is still picketing at other Giant stores, and because the Union can stop picketing at any time, it is quite possible that the issue involved here would not reach the appellate courts before the Union would stop picketing. Therefore, this case presents an important issue which is likely to escape review. Consequently, we will not apply the doctrine of mootness, but will reach the merits of the case. See Western Pennsylvania Socialist Workers v. Connecticut General Like Insurance Company, 512 Pa. 23, 515 A.2d 1331 (1986); Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362, cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974).

The standard of review of an order denying or granting a preliminary injunction is well established.

As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was misapplied will we interfere with the decision of the Chancellor. Intraworld Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316 (1975); Credit Alliance Corporation v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748 (1972). “In order to sustain a preliminary injunction, the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.” Zebra v. Pittsburgh School District, 449 Pa. at 437, 296 A.2d at 750 (emphasis added). Roberts v. School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975) (emphasis added).

Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 269, 479 A.2d 452, 454-455 (1984). We can affirm the decision of a trial court on any basis even if the reasons givén by the trial court for its decision are incorrect. Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987). Applying this limited scope of review, we affirm.

Grounds for the trial court’s order denying a preliminary injunction in this case exist. Most importantly, it was proper not to grant an injunction in this case because neither Coatesville nor Giant took adequate measures to prohibit the activities of the Union. The property involved here, a shopping center, undeniably was open to the public for the public to come onto the property despite the fact that it was privately owned. Coatesville placed no limitations whatsoever on the conduct which could be engaged in upon that property. While Giant attempted to limit the scope of activities on its property, the extent of those limitations is not clear.

Giant’s posted notice concerning non-solicitation and distribution of handbills was located only inside the store and was not visible from outside the store. Yet the activity to which Coatesville and Giant object, is activity conducted outside the store. For Giant’s efforts to prohibit the picketing and handbilling engaged in on the parking lot and on the sidewalk to be effective, its prohibition must be clear and unambiguous, and it must state unequivocally the nature of the conduct prohibited and the location to which the prohibition extends. Furthermore, Giant’s prohibition on the particular activity must exist prior to the commencement of the activity and cannot be imposed ex post facto.

Giant’s alleged no-solicitation policy satisfied none of these requirements. The notice which was posted did not unequivocally state that picketing could not be conducted on the property. The words on the sign posted inside the store stated only that there could be no solicitation and no distribution of handbills. It did not prohibit people wearing or carrying placards from walking and standing on the property. Therefore, at least some of the activities of the Union were not expressly prohibited.

Giant’s notice also did not unambiguously indicate the geographic parameters of its no-solicitation rule. As to non-employees, the sign simply stated that solicitation and distribution were prohibited “on company property.” The public, which is not privy to the precise language included in Giant’s lease with Coatesville, would have no idea precisely what constituted “company property,” and the public certainly could not be expected to understand “company property” to relate to common areas of the shopping center including the parking lot and sidewalks, even if the agreement between Coatesville and Giant provided that such areas were to be considered Giant’s company property. Furthermore, the sign setting forth the prohibition was located inside the store and could not be seen from outside the store. Thus, at the time that the Union began to picket on the sidewalks and in the parking lot, neither Giant nor Coatesville can be said to have taken measures to unambiguously and specifically have prohibited the activity of the Union nor taken measures to ensure that the Union, picketing outside the store only, would have known about the policy.

This case is factually distinguishable from Socialist Workers, where a plurality of the Supreme Court upheld a trial court’s refusal to enjoin the owners of a shopping mall from enforcing their non-solicitation policy. Although we do not have the benefit of all the information concerning the shopping mail’s non-solicitation rule in Socialist Workers, what we do know about it distinguishes it from the present case. In Socialist Workers, the shopping mall required a permit to solicit in the common areas. When the political organizers applied for a permit, it was denied because the mall had a uniform policy denying all political solicitation on its property. In the present case, there was no general permit requirement for solicitation, and there was nothing to indicate a clear and unambiguous, uniformly applicable policy as in Socialist Workers. We therefore, do not find the ultimate result in Socialist Workers to be applicable here.

Neither the right of the Union to picket nor the right of the Coatesville and Giant to limit the conduct permitted on its private property is absolute. However, in the absence of any unambiguous and meaningful prohibition on the use of the shopping center property, we cannot conclude that under the common law the trial court erred in allowing the union to continue its activities on the property until the rights of the parties were finally determined. We hold that the trial court properly denied the preliminary injunction in this case because where a private property owner holds his property open for public use and invites the public onto the property, the property owner is not entitled to an injunction against peaceful informational picketing directed at the conduct of one of the possessors of the property or a tenant on the property in the absence of an established policy specifically and unambiguously prohibiting such picketing on the property in the specific location where the picketing is being conducted and in the absence of a publication of the policy prohibiting such activity where those conducting the prohibited activity can reasonably be expected to be aware of the publication of the policy.

Furthermore, we note that the injunction which was denied here was only a preliminary one and not a permanent one. The rights of the parties to the use of this property has not yet been finally determined. Moreover, the trial court was aware that a limited preliminary injunction had already been obtained. In light of our limited scope of review and the fact that the record supports the trial court’s decision, we affirm the trial court’s order denying the preliminary injunction.

Order affirmed.

BECK, J., files a concurring opinion.

TAMILIA, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring:

I agree with the majority that the trial court did not abuse its discretion by denying appellants’ request for a preliminary injunction against all union picketing at the Thorndale Shopping Center. A preliminary injunction is a special equitable remedy which need not be granted in every case which involves a continuing trespass on private property.

In Wilkes-Barre Independent Company v. Newspaper Guild, Local 120, 455 Pa. 287, 314 A.2d 251 (1974), labor union pickets blocked two of the ten entrances to the employer’s plant. The employer sought a preliminary injunction, the trial court denied relief, and the employer appealed. Although the Pennsylvania Supreme Court concluded that the union had seized the employer’s private property, the denial of a preliminary injunction was affirmed. The Court noted that since the union had not prevented the employer from gaining access to his plant, the trial judge had been correct in finding that there were no imperative circumstances requiring injunctive relief.

In the instant case, appellant Giant obtained an initial injunction limiting the number of picketers. The union agreed to abide by the terms of this order. Appellants then sought a broader preliminary injunction which would wholly exclude union picketers from the parking lot in front of the Giant Super Market. The trial judge denied this request, but noted that if the picketers obstructed the store entrance or harassed shoppers, he would hear argument on whether to hold the union in contempt for violating the existing injunction. Under these circumstances, the trial court did not abuse his discretion by allowing union picketing to continue. As in the Wilkes-Barre Independent Company case, appellants’ need for immediate relief from interference with their property is not so compelling as to justify appellate court intervention at this stage of the proceedings.

Apart from the narrow question of our standard of review of the denial of a preliminary injunction, a few general comments about private property and free speech are in order. New would deny that owners of private property have important rights which merit legal protection. However, in the case of land owned by business enterprises which invite the patronage of the public, there are competing interests which deserve to be taken into account. The walkways and parking lots that surround commercial establishments are not essentially private—at least in the same sense that residences, or offices, or the interiors of discrete stores are private. These outdoor areas often closely resemble the public streets and squares that have been used throughout the history of our country as a forum for the citizenry. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 90, 100 S.Ct. 2035, 2045, 64 L.Ed.2d 741 (1980) (Marshall, J., concurring). Indeed, in many regions, developers and promoters have succeeded in turning a shopping complex into the principal center of community activity. Thus, a general ban on picketing at the outskirts of a shopping complex significantly restricts the means by which members of the community can convey ideas and exchange information.

This does not mean that unions should have as much a right to demonstrate outside a shopping center as in a city park. My point is rather that the legal system ought to accommodate the interests of all of the parties who are affected by shopping center picketing. The interests to which I refer are: 1) the property owners’ interest in controlling their land; 2) the store owners’ interest in running their businesses without substantial disruption; 3) the labor union’s interest in speaking out in order to promote the welfare of its members (and more generally, the interest of individuals in having a forum in which to comment on matters of public concern); and 4) the public’s interest in gaining ready access to information which will allow shoppers to make an informed decision concerning which stores they wish to patronize. In order for justice to be done, courts must develop a legal framework for balancing these factors. There are at least three potential sources for such a framework: the constitution, the common law, and the statutory law of this Commonwealth.

Appellants argue that in Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Company, 512 Pa. 23, 515 A.2d 1331 (1986), the Pennsylvania Supreme Court conclusively determined that there is neither a constitutional right nor a common law right to picket on private property. We need not reach this issue. However, even assuming that appellants are correct, nothing would prevent the General Assembly from explicitly authorizing reasonable public use of outdoor commercial property for communicative activity. The state legislature has broad authority to regulate the use of private property in the public interest. See Western Pennsylvania Socialist Workers, 512 Pa. at 37, 515 A.2d at 1339 (plurality opinion). This regulation may include imposing limitations on a landowner’s right to exclude trespassers—so long as the regulation does not so thoroughly deny a landowner the use of his land as to constitute a taking of property without just compensation. See Pruneyard Shopping Center, supra (rejecting federal constitutional challenge to California Supreme Court decision preventing shopping mall owner from banning political solicitation on his property).

Of the features which distinguish this society from others, few are of more importance than the extraordinary value which we as a people attach to freedom of expression. Apart from any affirmative rights which appellees may have to picket, the Commonwealth itself has an interest in ensuring that appellees have a fair opportunity to communicate their message. The General Assembly should advance this interest by passing appropriate legislation.

I agree that the trial court order should be affirmed.

TAMILIA, Judge,

concurring and dissenting:

While I concur in the result propounded by the majority, I respectfully dissent to the conclusion reached by the majority that the case does not implicate constitutional rights to picket but may be resolved by applying common law principles.

The entire thrust of the holding of the majority is to the effect that in a mall or industrial district, a combination of business and economic interests may consolidate in a consortium to control the area by instituting an area-wide policy in advance, with very specific prohibitions and restrictions against Union activities such as picketing, and thereby successfully prevent job actions of any kind by a Union. It is conceivable in a mall or an industrial park that such a grouping could involve thousands of employees, very large businesses and economic interests, which in effect would be circumscribed in such a way that employees could not effectively deal with grievances except by patrolling the perimeters of such an area. In such a case, a perimeter patrol might be more violative of public interests, subject to prohibition because of interference with traffic and persons having no relationship to the economic interests under protest and thereby would be subject to injunctive relief.

Under the majority’s reasoning, with prohibitions enacted by the property owner as to the private property surrounding a business, a Union could be prevented from going upon that property to make a legitimate protest. This would have the effect of turning back legislation, concerning work-related grievances, developed over the last fifty years, which I believe has protection of the Pennsylvania Constitution. For this reason I respectfully believe, in avoiding the constitutional issue the majority holding in resolving the matter on common law principles, sends a message that can radically alter the rights of Unions in this Commonwealth.

As stated by the appellees:
When the General Assembly passed the Labor Anti-Injunction Act in 1937, Act of June 2, 1937, P.L. 1198, § 1, 43 Pa.Stat. § 206a, et seq., the legislators were particularly concerned with the power of property owners aided by governmental authority for corporate ownership to overpower workers in their rights to organize and protect conditions of employment. 43 Pa.Stat. § 206b(a). Consequently, whenever a legitimate labor dispute arose, they established an absolute prohibition on the power of courts to enter an injunction limiting that protection of those employee rights, except on certain specific terms and conditions. 43 Pa.Stat. § 206c(a), (b), (c); § 206f(e), (g), CD, (m)-

Appellees’ supplemental brief at 10. Thus a public policy has been created by the General Assembly supporting the rights of Unions to picket in cases such as this and it will not depend upon whether or not Coatesville and Giant did or did not establish standards and procedures upon which persons could or could not picket. Appellees correctly allege it would have been incumbent upon Coatesville and Giant, had they promulgated such standards, to establish there were alternative means which would be effective to communicate the message founded by the Unions in order for injunctive relief to be granted, as this is not a political action subject to Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981) and Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986) but an economic one with totally different considerations.

In this case, the only effective means of conveying a message to Giant and the people patronizing Giant was at the location of Giant. To place them on the periphery or in any other area of the mall would have been totally ineffective and probably disruptive of the activities of innocent business interests and the public. Although Tate, supra, was a political action and this one is economic, the balancing test espoused by Tate would be applicable to such a determination, Tate relying on tests espoused by the United States Supreme Court in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) which said:

It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.

Id. at 81, 100 S.Ct. at 2040, 64 L.Ed.2d at 752.

Again, I agree with appellees and the trial court who suggest that Unions have a constitutional right, both under the Federal and State Constitutions to engage in peaceful picketing to communicate their grievances. In N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112-13, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1955); Warren v. Motion Picture Machine Operators, 383 Pa. 312, 317, 118 A.2d 168 (1955). The majority correctly points out that despite cessation of picketing by the Union, the question raised by this case is not moot as similar picketing is ongoing throughout the Commonwealth. Unquestionably, the constitutionality of such picketing will be an issue in those instances where the property owner had the foresight to limit picketing as suggested by the majority. That right is specifically protected by the Labor Anti-Injunction Act, supra, and the decision of the trial court denying the preliminary injunction requested by Giant and Coatesville in this case, therefore, must be affirmed.

      . Technically, Coatesville Development Company does not have full legal and equitable title to the shopping center. Coatesville has entered into a land installment sales agreement to purchase the shopping center, and as a result of that agreement, it has equitable title to the shopping center.

      . Article 1 § 7 of the Pennsylvania Constitution provides:
      The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

      . As a first step, the legislature could amend Pennsylvania’s Labor Anti-injunction Act so as to authorize trial courts to take free speech concerns into account when deciding whether to issue an order restraining union picketing. The current Act does not explicitly protect peaceful communicative activity by unions on private property. See Pa.Stat.Ann.tit. 43 § 206a-r (Purdon 1964).


author: WATKINS, Judge:

text:
    542 A.2d 1388
    Richard DEMPSEY v. Madaline FIGURA, Appellant.
    Superior Court of Pennsylvania.
    Submitted February 22, 1988.
    Filed June 20, 1988.

      James D. Wolfe, Johnstown, for appellant.
    David J. Weaver, Johnstown, for appellee.
    Before CIRILLO, P.J., and OLSZEWSKI and WATKINS, JJ.
   WATKINS, Judge:

This case concerns an appeal from an order of the Orphans Court of the Court of Common Pleas of Cambria County dated October 7, 1987, which nullified a will as the product of undue influence and also decided an equity action, by which an executrix of an estate sought to have certain bonds titled in joint names declared as estate assets, in favor of the joint tenant of the bonds. The executrix of the estate has initiated the instant appeal.

Cora I. Juneman died on September 11, 1984. On April 10, 1984, the home in which she had resided for thirty years was destroyed by fire. She and her husband, Robert June-man, then went to live with her only natural son, Richard Dempsey. On April 25, 1984, Robert Juneman died intestate possessed of approximately $70,000 in bonds held in his name and that of Cora Juneman. In May, 1984, Cora Juneman transferred title to the bonds to herself and her son, Robert Dempsey, to hold as a joint tenancy with the right of survivorship. On August 11, 1984, physical custody of the bonds was transferred to the attorney for Madaline Figura, the executrix named in Cora Juneman’s will of July 17, 1984, executed while she was hospitalized due to heart failure and deterioration of her lungs.

Cora Juneman had been hospitalized on June 6, 1984, due to her health problems. Helene Whip, sister of Cora June-man, resides in Florida but frequently visited her sister and spent a great deal of time with her. Helene Whip disliked Richard Dempsey very much. Upon learning of her sister’s hospitalization, Helene Whip prevailed upon her to execute the July 17, 1984 will by which she gave Richard Dempsey, her son, only one-tenth of her estate. Grandchildren with whom she maintained only a casual relationship would, under the terms of the will, receive the other nine-tenths of her estate. Dr. George Katter, who had treated Cora Juneman from 1961 until shortly before her death in 1984, testified that he had seen her a few days after she had executed her will on July 17,1984 and that “she was in such a weakened condition that she could have been taken advantage of, because she was so demoralized”. He stated that the loss of her home of thirty years in the fire, the death of her husband, and her deteriorating health, all occurring within a short period of time rendered her in a mental state where “she may have been influenced”. Helene Whip was not mentioned in Cora Juneman’s will.

After Cora Juneman was released from the hospital she went to Indiana to reside with one of her grandchildren where she died on September 11, 1984. Her will was probated on September 17, 1984.

On May 16, 1985, Richard Dempsey filed a Complaint in Equity seeking the return of the bonds after the executrix refused to turn them over to him. On March 4, 1986, Richard Dempsey filed an appeal from Probate and the Grant of Letters Testamentary challenging the will of July 17, 1984, as the product of undue influence. The trial court consolidated the two actions for trial and, after trial was completed, ruled that the July 17, 1984 will was indeed the product of undue influence and declared it void. The court also ordered the return of the bonds to Richard Dempsey rejecting the executrix’ arguments that the placing of the bonds into joint names was the product of undue influence and rejecting her argument that it was a violation of Richard Dempsey’s fiduciary duties because he was the personal representative of the Robert Juneman estate. The executrix then took the instant appeal.

At the outset, we must acknowledge that there is an issue as to whether the executrix is a party who can take an appeal as to the probate of a will where the executrix, as here, is merely the personal representative of the estate. Estate of Hain, 464 Pa. 349, 346 A.2d 774 (1975). However, the grandchildren, who sought to be included in the case as additional defendants, are aggrieved parties as beneficiaries under the will. Atlee’s Estate, 406 Pa. 528, 178 A.2d 722 (1962). Furthermore, the executrix does have the standing to take an appeal from the decision which held that the bonds, as joint property, are not assets of the estate since a personal representative does have the right to seek to include in the estate all assets which she believes form a part of the estate. See Krick’s Estate, 342 Pa. 212, 20 A.2d 195 (1941). Because the grandchildren of the decedent who are heirs under the will possess the proper standing to appeal the will contest we will decide both actions.

As set forth, the will in this case was probated on September 17, 1984. Robert Dempsey’s Petition to Appeal Probate was not filed until March 6, 1986. The applicable Statute of Limitation for an appeal from the probate of a will is one year. 20 Pa.C.S.A. 908. The trial court held that it would be in the interest of justice to waive the statutory period in this case because the factual and legal issues involved in the equity action and the will contest are inextricably intertwined and because the executrix would not be prejudiced by allowing the will challenge to proceed since there had been no distributions, accountings, conveyances, or transfers in the Cora Juneman estate. The court then went on to find that the will of July 17, 1984, was the product of undue influence. While we commend the trial court for its diligence in attempting to sort out the conflicting legal and factual issues involved in this case, we believe that the one year period in which an appeal from the probate of a will can be taken is mandatory and cannot be aside to entertain a claim of undue influence. Estate of Colucci, 342 Pa.Superior Ct. 349, 492 A.2d 1155 (1985); Kirkander v. Kirkander, 490 Pa.Superior Ct. 49, 415 A.2d 26 (1980). The only situation permitting us to set aside the statutory period for filing such an appeal occurs in cases where there has been a fraud on the court or the Register of Wills. Kirkander v. Kirkander, supra. No such situation occurred here. Richard Dempsey admitted that he always had believed that the will, though signed by his mother, was the product of undue influence. It was he who filed the equity action seeking that the bonds be given to him. That equity action was filed on May 16, 1985 well within the one year statutory period. Appellee could easily have filed his challenge to the will at that time. Instead he waited until March 4, 1986 to file it. The purpose of the Statute of Limitations is to set a specific limit on claims such as undue influence in order to assure a personal representative of an estate of finality and to encourage the timely, orderly and efficient administration of estates. This is an important purpose the ends of which will not be served by permitting a waiver of the statutory period in this case.

We hold that the filing of the equity action on May 16, 1985 does not provide a basis for excusing the late filing of the appeal from probate action by joining the latter action to the former one. Thus, we will reverse the trial court on this issue and order appellee’s challenge to the will dismissed as time-barred by the Statute of Limitations.

Appellant’s next argument is that the trial court erred in ordering that the bonds be given to Richard Dempsey as his personal property. Counsel stipulated that the executrix bore the burden of proving that the bonds had been transferred into the names of Cora Juneman and Richard Dempsey as the product of undue influence. The trial court found that she had failed to carry that burden. We agree. Dr. Katter testified that the decedent’s condition had weakened in June and July when she was in the hospital. There was nothing to indicate that her condition was such in May when she transferred joint ownership of the bonds to her only son. Furthermore, appellant’s argument that the burden of proof was on Richard Dempsey to show lack of undue influence because he was the personal representative of the Robert Juneman estate is not convincing because this case concerns Cora Juneman’s estate and her actions in adding Robert Dempsey’s name to the bonds. As such the trial court properly held that the appellant had the burden of proving undue influence with regard to the bonds and that she failed to carry that burden.

Order is affirmed with regard to ownership of the bonds; reversed with regard to the appeal from Probate of the Will and the will of July 17, 1984, is to be probated by the Register of Wills of Cambria County.


author: ROWLEY, Judge:

text:
    543 A.2d 116
    Frank G. RICHARDS and Eleanor B. Richards, husband and wife v. Thomas A. TRIMBUR, an individual, Paul J. Trimbur Inc., a corporation and CNA Insurance Company, a stock insurance company. Appeal of John A. SIPPOS.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1987.
    Filed May 18, 1988.

      Michael I. Markowitz, Pittsburgh, for appellant.
    Before ROWLEY, TAMILIA and POPOVICH, JJ.
   ROWLEY, Judge:

This appeal of John A. Sippos, an incompetent, by his guardian, Irene Sippos, is from the trial court’s order of January 23, 1987, denying appellant’s petition to intervene as a plaintiff in this declaratory judgment action brought by Frank and Eleanor Richards against Thomas A. Trimbur, Paul J. Trimbur, Inc., and CNA Insurance Company. The action has since been discontinued at the request of the Richards. Appellant contends that 1) he is an indispensable party in this declaratory judgment action instituted by the Richards, and, therefore, the trial court erred in denying his petition to intervene; and 2) despite the discontinuance of the Richards’ action, his appeal is not moot. He asks that we strike off the discontinuance, reverse the trial court’s order, and remand the case so that he can, after a reasonable time, proceed to trial. We conclude that appellant’s appeal must be dismissed as moot.

The facts of the case are as follows: On June 11, 1984, appellant was seriously injured when the motorcycle that he was operating collided with an automobile operated by Eleanor Richards. Alleging that Richards’ negligence was solely or partially responsible for the accident, appellant, by his guardian, commenced an action for damages against Richards at No. GD86-478 on January 9, 1986. On March 26, 1986, Frank and Eleanor Richards instituted this declaratory judgment action at No. GD86-5474 against Thomas A. Trimbur, an insurance agent, Paul J. Trimbur, Inc., an insurance agency, and the CNA Insurance Company. The Richards had maintained a basic automobile liability insurance policy with Allstate Insurance Company (who was not a party to their lawsuit) in the amounts of $100,000 per person and $300,000 per occurrence. They believed that such “100/300 coverage” was the required minimum coverage that allowed them to qualify for excess liability insurance of up to $1,000,000 under a separate “personal umbrella excess policy” issued to them by CNA. In fact, the minimum basic coverage required by CNA was, or at some point became, $250,000 per person and $500,000 per occurrence. The Richards feared that if the suit filed against Eleanor Richards by appellant resulted in a judgment against her, she could be personally liable for the difference between the maximum coverage per person under the basic Allstate policy and the minimum coverage per person under the CNA umbrella policy. The Richards sought a declaration that the appellees were jointly and severally liable for the difference between the $100,000 and the $250,000 and that CNA was required to provide excess liability insurance protection between $100,000 and $1,100,000 for appellant’s claim against Eleanor Richards.

On January 23, 1987, appellant presented, to the trial court, a petition to intervene as a party plaintiff in the Richards’ declaratory judgment action. He asserted that he was an indispensable party to the action and that he needed to intervene in order to protect his interest in an outcome favorable to the Richards. Appellant also requested that the trial of the case be continued in order to afford him sufficient time to prepare for trial. His petition to intervene was denied in an order filed that day by the trial court. In its statement in lieu of an opinion the trial court explained that appellant had been aware of the trial schedule since the case was listed for trial and had refused the court’s offer to allow his intervention without a continuance. Notice of appellant’s appeal to this Court from the trial court’s order of January 23, 1987, was filed on February 20, 1987.

On February 24, 1987, the trial court granted a motion for summary judgment in favor of defendants Thomas Trimbur and Paul J. Trimbur, Inc. On March 6, 1987, appellant presented a petition to remove the case from the trial list. The trial court denied the petition. On March 9, 1987, appellant filed a second petition to be joined as an indispensable party. The record that has been certified to us does not reveal that the trial court took any action on that petition. On March 12, 1987, the trial court, upon the request of the Richards, ordered that the case be discontinued pursuant to Pa.R.C.P. 229(a). All of the parties to the now-discontinued action have declined to participate in this appeal.

Before addressing the issues raised by appellant, we- must determine whether his appeal is properly before us. Issues of appealability and jurisdiction may be addressed sua sponte. M. London, Inc. v. Fedders Corporation, 306 Pa.Super. 103, 106, 452 A.2d 236, 237 (1982). Generally an appeal will not lie from an order denying a petition to intervene because such an order is not final. Boise Cascade Corporation v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 281, 446 A.2d 614, 615 (1982) (quoting Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912)). Where, however, denial of the petition to intervene would amount to a practical denial of relief to which the petitioner is entitled and which he can obtain in no other way, an order denying the petition to intervene is final as to the petitioner, and therefore appealable. Id. (quoting Frey’s Estate, supra). Because the finality of the order is a judicial conclusion that can only be reached after examining the ramifications of the order, we must address the merits of appellant’s case to determine whether the order denying his petition to intervene amounts to a practical denial of relief. Id. 300 Pa.Super. at 281-82, 446 A.2d at 615.

The Richards, plaintiffs in the action in which appellant petitioned to intervene, sought a declaratory judgment that the defendants were liable to them for any “gap” that might exist in the Richards’ insurance coverage. Our Declaratory Judgments Act, 42 Pa.C.S.A. § 7540(a), requires that when declaratory relief is sought, all persons shall be made parties who have or claim any interest that would be affected by the declaration. In Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 292, 516 A.2d 684, 685 (1986), our Supreme Court held that a person who had brought a personal injury claim against an insured was an indispensable party in a declaratory judgment action on the issue of coverage between the insured and the insurance carrier. In such a case the personal injury plaintiff has an obvious interest in seeing that the insurance company pays any judgment eventually obtained against its insured. Id., 512 Pa. at 294, 516 A.2d at 686-87. Where the personal injury plaintiff has not been joined, the court lacks jurisdiction to enter a declaratory judgment. Id., 512 Pa. at 293, 516 A.2d at 686. If such a judgment has been issued, it must be vacated and the case dismissed. Id. Appellant is thus correct when he asserts, in his first issue, that he was an indispensable party to the Richards’ action. We conclude that if appellant’s interest was so directly implicated in the Richards’ action that his absence deprived the trial court of jurisdiction to issue a judgment in that action, then the trial court’s order denying appellant leave to intervene had the effect of denying him relief to which he was entitled and which he could not obtain in any other way. The order denying appellant’s petition to intervene is therefore final as to appellant, and his appeal therefrom is properly before us.

The fact that we have jurisdiction to entertain appellant’s appeal does not mean, however, that we can now grant him the relief that he requests. We will not decide moot or abstract questions, nor can we enter a judgment or decree to which effect cannot be given. Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 317, 444 A.2d 1190, 1193 (1982). As a general rule, an actual case or controversy must exist at every stage of the judicial process, and a case that was once “actual” may be rendered moot by a change of facts. In re Estate of Dorone, 349 Pa.Super. 59, 65, 502 A.2d 1271, 1274 (1985), appeal granted, 511 Pa. 609, 515 A.2d 893 (1986). Such is the case here: the action in which appellant seeks to intervene no longer exists.

In his second issue appellant asserts that, nevertheless, his appeal is not moot. He offers several arguments in support of his claim. First, appellant contends that his appeal cannot be moot because he is guaranteed the right to appeal by Article 5, Section 9 of the Pennsylvania Constitution. The fact that appellant’s appeal is now being considered by this Court indicates that appellant’s constitutional right of appeal has not been denied him. He is not guaranteed the right to succeed in his appeal.

Second, appellant argues that because he was an indispensable party to the Richards’ declaratory judgment action, the discontinuance of the action was ineffective as to him. Appellant’s argument is based on misconceptions both as to the nature of a discontinuance and as to his role in the Richards’ action. Pursuant to Pa.R.C.P. 229(a), a discontinuance is the exclusive method by which a plaintiff may terminate an action before commencement of the trial. Pa.R.C.P. 1032, which appellant contends was the only proper method of terminating the action, merely states that failure to join an indispensable party is a non-waivable defense and that the court shall dismiss an action if at any point it appears that there has been a failure to join an indispensable party. Rule 1032 does not address the plaintiffs right to terminate an action. Moreover, as the trial court explains (Statement in Lieu of Opinion at 3), although the court entered an order of discontinuance at the parties’ request, the Richards did not require the court’s permission in order to terminate their action. Rule 229(b) and the Note following the rule specify the circumstances in which court approval of a discontinuance is required, and appellant’s case is not among those circumstances. In particular, we note that while Pa.R.C.P. 2064(a) requires court approval of a discontinuance where an incompetent is a party, appellant had never been made a party to the Richards’ action. Pa.R.C.P. 2330(a) states that an intervener shall have all the rights and liabilities of a party to the action after entry of an order allowing intervention. In the absence of such an order, appellant was not a party to the action and therefore had no standing to object to its discontinuance.

Third, appellant argues that the Richards’ discontinuance after appellant’s filing of this appeal violated Pa.R. A.P. 1701(a), which states that after an appeal is taken “the trial court ... may no longer proceed further in the matter.” This general prohibition is limited by Pa.R.A.P. 1701(c), however, to the particular claim involved in the appeal. In addition, as we have just stated, it was not necessary for the trial court to proceed further: the Richards did not require court approval of their discontinuance. We also find no merit in appellant’s related claim that as a party acting in a representative capacity, he has an automatic supersedeas under Pa.R.A.P. 1736. Rule 1736, the purpose of which is to ensure satisfaction of judgments to appellees, Rice v. Shuman, 343 Pa.Super. 318, 322, 494 A.2d 866, 868 (1985), is not relevant to the type of appeal brought by appellant.

Finally, appellant argues that his appeal is not moot because the Richards’ discontinuance could prejudice him by permitting CNA to assert a statute of limitations defense against him if he obtains a judgment against Eleanor Richards and then brings a garnishment action against CNA. Appellant’s argument is without merit. The case cited by appellant, American Surety Company of New York v. Dickson, 345 Pa. 328, 28 A.2d 316 (1942), does not support his theory. In any event, we are aware of no authority which holds that we may decide an appeal that is otherwise moot in order to forestall any possible prejudice to the appellant. Moreover, appellant does not assert that he will be unable to bring his own declaratory judgment action against CNA, if and when he obtains a judgment against Eleanor Richards. See Avrich v. General Accident Insurance Co., 367 Pa.Super. 248, 532 A.2d 882 (1987).

In conclusion, the fact that appellant was an indispensable party to the Richards’ declaratory judgment action was not a bar to the discontinuance of that action. Because the action has been discontinued, appellant’s appeal must be dismissed as moot.

Appeal dismissed as moot.

      . The caption given herein correctly denotes the parties to the action. Frank and Eleanor Richards brought the action against Thomas A. Trimbur, Paul J. Trimbur, Inc., and CNA Insurance Company. John A. Sippos, appellant, petitioned to intervene and now appeals from the order denying his petition. He is not, and has never been, a party to the action. On his notice of appeal to this Court, appellant used the caption that is given here as well as a caption naming himself as petitioner and all of the parties to this action as respondents. The latter caption, which has been used on the documents pertaining to this appeal, is incorrect.

      . The trial court states that appellant’s January 23, 1987, request came "on the eve of Trial” (Statement in Lieu of Opinion at 2). Our review of the certified record indicates that trial was scheduled to begin in March of 1987.