author: ROWLEY, President Judge:

text:
    611 A.2d 1325
    Lana K. ROMEO v. Michael J. ROMEO, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 18, 1992.
    Filed Aug. 20, 1992.

      Anthony J. Magnotta, Hawley, for appellant.
    Lila F. Levy, Milford, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   ROWLEY, President Judge:

Appellant Michael J. Romeo (“Husband”) and appellee Lana K. Romeo (“Wife”) were divorced on September 28, 1990. In an order entered December 5, 1991, the trial court, responding to Wife’s request, modified certain aspects of the equitable distribution and child support provisions that had been incorporated in the divorce decree. In this timely appeal from that order, Husband contends that the trial court’s modifications are unsupported by the evidence. For the reasons set forth below, we affirm the order of the trial court.

Before considering the merits of Husband’s claims, we are required to address a more fundamental issue, one that has not been raised by the parties or the trial court: Did the trial court improperly modify a final, unappealed decree of equitable distribution? We turn first to the procedural history of the case, which is as follows: Following a hearing, the master filed recommendations as to the parties’ economic claims. Of those recommendations, the following are pertinent to this appeal:

1) Wife would continue living in the marital residence and would pay the first and second mortgages, taxes, and insurance until such time as both parties decided to sell the residence; a commercial lot owned by the parties would be listed for sale at a price to which both parties agreed; when the properties were sold, Wife would receive 66.66% and Husband 33.33% of the proceeds.

2) Husband would continue to provide health insurance for the children.

Neither party filed exceptions to the master’s report and recommendations, and a decree of divorce was entered on September 28, 1990. On the decree is the following printed statement: “The court retains jurisdiction of the following claims which have been raised of record in this action for which á final order has not yet been entered[.]” In response, the Honorable Harold A. Thomson, Jr., has written “none; the recommendations of the master in his report of September 6th, 1990 are adopted and incorporated herewith.” This was not only a final decree of divorce, therefore, but also a final decree of equitable distribution. No appeal was taken from the final decree.

On May 24, 1991, some eight months later, Wife filed a “motion to modify order of court dated September 28, 1990.” The “order” referred to was, of course, the final decree. Wife asserted in her motion that although the parties had executed listing agreements for the properties, the asking prices were no longer realistic and she lacked the resources to continue to pay the mortgages, taxes, interest, and insurance. In addition, she noted that the parties’ children incurred unusual medical expenses because they suffered from hemophilia. Wife asked “that a modification of the said agreement be entered requiring [Husband] to share the costs of the mortgage, interest, taxes and insurance, pending the sale of the properties and for [Husband] to be required to execute listing agreements which lower the asking prices of the parcels which represents the fair market value of the properties, and that [Husband] be responsible for all of the children’s medical needs.” Along with her motion to modify, Wife filed a document entitled “Petition of Lana Romeo” in which she asserted, inter alia, that Husband had refused her request to execute listing agreements reducing the price of the marital home.

Husband filed a reply to Wife’s petition and an answer to her motion to modify, and the trial court directed that the matter be heard by the master who had heard the parties’ economic claims prior to their divorce. Following a hearing, the master filed a “modification of master’s report” which included the following recommendations:

1) Title to the vacant lot would be conveyed to Husband, and title to the marital residence would be conveyed to Wife subject to both mortgages, which Wife would pay. According to the master’s calculation of the value of the properties, this arrangement would closely approximate the original 33%/66% division.

2) Husband would pay all of the children’s medical bills. Husband filed exceptions to the modification of the master’s report, and Wife filed answers to Husband’s exceptions. In an order entered December 5,1991, the trial court denied Husband’s exceptions and made the modification of the master’s report an order of the court. Husband’s timely appeal followed.

The Divorce Code makes no provision for a “modification” of a final decree of equitable distribution, and in fact it is settled law that such a decree is non-modifiable. The Code provides, however, that

[t]he courts shall have original jurisdiction in cases of divorce ... and shall determine, in conjunction with any decree granting a divorce ... the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses____

23 Pa.C.S. § 3104(a)(1) [formerly 23 P.S. § 301(a)(1)] (emphasis added). In addition, 23 Pa.C.S. § 3502(e) provides as follows:

(e) Powers of the court. — If, at any time, a party has failed to comply with an order of equitable distribution, ... the court may, in addition to any other remedy available under this part, in order to effect compliance with its order:
(4) order and direct the transfer or sale of any property required in order to comply with the court’s order;

23 Pa.C.S. § 3502(e)(4) [formerly 23 P.S. § 401(k)(4)]. Finally, we note that Pa.R.C.P. 1920.43 provides for the filing of a petition for special relief, as follows:

(a) At any time after the filing of the complaint, on petition setting forth facts entitling the party to relief, the court may, upon such terms and conditions as it deems just, including the filing of security,
(1) issue preliminary or special injunctions necessary to prevent the removal, disposition, alienation or encumbering of real or personal property ...; or
(2) order the seizure or attachment of real or personal property; or
(3) grant other appropriate relief.

Pa.R.C.P. 1920.43(a). The granting of such relief is an exercise of the trial court’s equitable powers. Jawork v. Jawork, 378 Pa.Super. 89, 96, 548 A.2d 290, 293 (1988). This Court has held that “petitions for special relief are not limited to the period when an action is pending[,]” since “[i]t is easily conceivable that, after the final disposition of all matters in the divorce action, a party may need the assistance of the court in enforcing some portion of its order.” Id., 378 Pa.Superior Ct. at 94 n. 6, 548 A.2d at 292 n. 6.

Although Wife did not attach the label “petition for special relief” to her motion to modify and accompanying petition, she asserted therein that Husband’s refusal to list the marital residence at a reasonable price had, in effect, denied her the benefit of the equitable distribution scheme adopted by the court. We conclude, therefore, that Wife petitioned the court for special relief and that the court properly entertained her petition. The trial court’s disposition thereof will not be reversed by this Court absent an abuse of discretion. Id., 378 Pa.Superior Ct. at 96, 548 A.2d at 293.

Husband contends, first, that the evidence of record does not support the findings of fact upon which the master based his recommendation that Wife be awarded the marital residence and Husband the commercial lot. He asks that we reverse the order of December 5,1991, and reinstate the order of September 28, 1990. Having reviewed the master’s report as modified, we conclude that it is based on the evidence of record and that it provides an equitable resolution of the parties’ dilemma. Although the solution recommended by the master is not the same as that proposed by Wife in her petition, the master’s solution acknowledges that “[a]ny recommendation that would attempt to keep the parties together in the disposal of any property in all likelihood would only invite further litigation and costs” (Modification of Master’s Report at 4). Accordingly, we conclude that the trial court did not abuse its discretion in adopting the master’s recommendation as to the disposition of the real property owned by the parties.

Husband’s second claim, which occupies only one paragraph in his brief, is that the trial court’s order that he pay all of the medical bills for the parties’ hemophiliac sons “is clearly based upon conjecture by the Master as to what the special needs of the children are” (Brief for Appellant at 12). To the contrary, the record shows that the children require office visits which are not covered by Husband’s Blue Cross/Blue Shield plan and for which Wife has difficulty paying. Given these facts, we conclude that the trial court did not abuse its discretion in modifying the order of child support.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    611 A.2d 1328
    David A. JORDON, a Minor, By His Parents and Natural Guardians, Ronald L. JORDON and Charmaine P. Jordon, and Ronald L. Jordon and Charmaine P. Jordon, Appellants, v. The K-MART CORP. and the John Doe Corp. v. Kenneth L. CRUSE, Jr. and Janice L. Cruse.
    Superior Court of Pennsylvania.
    Argued June 17, 1992.
    Filed Aug. 26, 1992.

      Thomas L. Walters, Easton, for appellants.
    Robert C. Brown, Jr., Easton, for K-Mart and John Doe Corp., appellees.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   ROWLEY, President Judge:

This appeal is taken from an order granting appellee, K-Mart Corporation, summary judgment. Appellants raise the following issues: (1) Did the trial court err in granting summary judgment to appellee by finding that as a matter of law the product involved was not unreasonably dangerous? and (2) Did the trial court err in determining that the sled was not unreasonably dangerous due to lack of warnings or instructions because the dangers inherent in the use of the product were obvious to the ultimate user and the plaintiff in this case? After a careful review of the record, we affirm the order granting summary judgment.

On February 16, 1986, appellant, David A. Jordon, a ten-year-old boy, was involved in a sledding accident when he lost control of his sled and hit a tree. The sled David was using was a plastic toboggan-like sled purchased from appellee, K-Mart, by Kenneth L. Cruse and Janice L. Cruse, appellees, aunt and uncle of David.

David and his parents sued appellee, as well as the unknown sled manufacturer, The John Doe Corporation, the landowners where the accident occurred, Cooper Industries, Inc., and Kenneth and Janice Cruse, who were caring for David when the accident occurred. Cooper Industries’ motion for summary judgment was granted by the trial court on April 23, 1991, on the basis that it was immune from liability under the Pennsylvania Recreational Use of Land and Water Act, 68 Pa.S. §§ 477-1 to 477-8. Appellants sued appellee, K-Mart, under the theories of negligence, strict liability, and breach of implied warranties of merchantability and fitness for a particular purpose. K-Mart moved for summary judgment which the trial court granted by its order of November 18, 1991. This timely appeal follows.

In reviewing a motion for summary judgment, the Court’s function is to determine whether issues of triable fact exist. Summary judgment is only proper in cases free and clear of doubt. When reviewing summary judgment cases, the Court accepts as true all well-pleaded facts, giving the plaintiff the benefit of all reasonable inferences from those facts. Zackhery By and Through Young v. Crystal Cave Co., Inc., 391 Pa.Super. 471, 474, 571 A.2d 464, 465 (1990).

Appellants first argue that the trial court erred in granting summary judgment by finding that as a matter of law the product involved, the plastic sled, was not unreasonably dangerous. Appellants contend the sled was defective and unreasonably dangerous because it contained design defects; (1) molded runners that rendered the sled unsteerable and (2) it lacked any independent steering or braking mechanisms. Specifically, appellants argue that the trial court should not have determined the threshold question of whether the product was unreasonably dangerous under Azzarello but should have allowed their cause of action for strict product liability for a design defect to be submitted to the finder of fact, allowing appellants to call expert witnesses to substantiate their claims.

The Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), adopted and made a part of the substantive law of Pennsylvania, Section 402A of the Restatement (Second) of Torts, which makes a seller of products strictly liable for the physical harm caused by a product sold in a defective condition unreasonably dangerous to the user. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 94, 337 A.2d 893, 899 (1975). A seller of a product, however, is not liable as an insurer to the user. Without a showing of a defect, the supplier of a product has no liability under Section 402A. Berkebile, 462 Pa. at 94, 337 A.2d at 898. The Pennsylvania Supreme Court in Azzarello v. Black Bros., 480 Pa. 547, 556, 391 A.2d 1020, 1025 (1978), held that while the fact finder may be competent in resolving a dispute as to the condition of a product, it is an entirely different question as to whether that condition of the product justifies placing liability upon the supplier. The Court held in Azzarello that whether the risk of loss is to be placed on the supplier is a question of law for the Court. The Court stated: “Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy____ It is a judicial function to decide whether, under plaintiff’s averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averment of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution.” 480 Pa. at 557-558, 391 A.2d at 1026.

In this instant case, the trial court, using the Azzarello threshold, held as a matter of law that the subject sled was not an unreasonably dangerous product as a result of a design defect. The trial court, citing social policy, meticulously weighed the relative risks and utility of the sled in question and the type of sled, a toboggan, to determine whether liability should be imposed. The Court found that like most recreational activities, sledding involves a degree of risk and even changing the design to require brakes or steering would not remove the inherent risk in the activity. We agree with the trial court’s analysis of social policy and hold that the trial court correctly applied the Azzarello threshold in determining the strict liability claim based on product design.

Next appellants argue that the trial court erred in determining that the sled was not unreasonably dangerous due to lack of warnings because dangers inherent in the use of the sled were obvious to the ultimate user and specifically to the ten-year-old appellant in this case. Specifically, appellants contend that the sled was “unreasonably dangerous” because it was sold without specific instructions concerning its use and without warnings concerning the dangers of toboggan-type sleds. Under Pennsylvania law, it is well established that a dangerous product can be considered defective for strict liability purposes if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. Mackowick v. Westinghouse Electric Corp., 525 Pa. 52, 55, 575 A.2d 100, 102 (1990). Comment j to § 402A of the Restatement (Second) of Torts, adopted by the Pennsylvania courts as noted above, states that the maker of an unreasonably dangerous product may be required to warn potential users of the product’s dangerous propensities. Comment i to § 402A states the following guideline to use in determining whether a product is “unreasonably dangerous” and thus requires warnings: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Ellis v. Chicago Bridge and Iron Co., 376 Pa.Super. 220, 229, 545 A.2d 906, 911 (1988), appeal denied, Ellis v. Atlantis Contractors, Inc., 524 Pa. 620, 571 A.2d 383 (1989). Thus it follows that if the product is one customarily used by children, the danger must be one which children would be likely to recognize and appreciate. 376 Pa.Super. at 229, 545 A.2d at 911. The determinations of whether a product is ‘defective’ due to inadequate warnings or, in this case, no warnings are questions of law to be answered by the trial judge. Azzarello, 480 Pa. at 558, 391 A.2d at 1026.

Here in this instant case, it is undisputed by appellee that no instructions for use and no warnings were included with the sled. The trial court found as a matter of law that the danger is one that an ordinary ten-year-old child would recognize and appreciate as part of the risk of sledding. The court held that the danger was not latent; it was a well-known part of sledding, namely that sleds in general are hard to steer and hard to stop and should not be used in areas where many stationary obstacles, such as trees, are present.

Appellants argue that the defect is latent because a ten-year-old boy would not understand that the existence of underside molded runners on the sled in question would prevent it from being steered. However, we agree with the trial court. The sled did not have a latent defect making it unsteerable. The record shows that the ten-year-old appellant had used the sled or one of the same design the previous day, making seven sledding runs down the same hill in approximately the same location. (R. 148). He described how he steered the sled by using the handles and leaning to the left or right to steer it. (R. 198). He admitted he had no problem steering the sled the day before while sledding. (R. 197). He also admitted having made six previous sledding runs the day of the accident in which he successfully steered the sled down the hill without hitting a tree. (R. 114). From the record, the ten-year-old appellant seems to be knowledgeable in the art of sledding and how to steer a toboggan-like sled and had previously used the sled successfully. We hold that the dangers inherent in sledding with a toboggan-like sled with limited steering capacity is one which an ordinary ten-year-old child would recognize and appreciate as part of the risk of sledding. Thus the absence of warning labels or instructions for use do not make the product unreasonably dangerous to hold the supplier strictly liable.

For the reasons stated above, we affirm the trial court’s order granting summary judgment to appellee, K-Mart.

Summary judgment affirmed.


author: POPOVICH, Judge:

text:
    612 A.2d 438
    COMMONWEALTH of Pennsylvania, Appellee, v. W.P., Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1992.
    Filed June 24, 1992.

      Bradley S. Bridge, Asst. Public Defender, Philadelphia, for appellant.
    Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for Com.

      Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

We affirm, in a case of first impression, the court’s denial of a “Petition to Expunge Criminal Record” by the appellant, W.P.

The appellant’s petition alleged that, inter alia, he was arrested in November of 1988, charged with various offenses, tried without a jury and found not guilty by reason of insanity. He also claimed that he had no prior record, “ha[d] been caused to suffer embarrassment and irreparable harm” as a result of his arrest, and the expungement of his record would not cause harm to the Commonwealth.

To resolve the matter, the petition was scheduled for a hearing on August 13, 1991. On the date stated, counsel stipulated to the following facts:

... a police officer approached the defendant in response to a radio call of a disturbance caused by the defendant. Defendant then attacked him with a knife; police officer shot the defendant one time and he had to be treated at the hospital____ the police officer was also treated for lacerations to his legs ... when he fell during the scuffle. Defendant also then attacked a nurse at the hospital.

As an outgrowth of the attack on the officer, the appellant was charged with aggravated assault, simple assault, possession of an instrument of crime, possession of an instrument of crime with a weapon and recklessly endangering another person. At the completion of a non-jury trial, the appellant was found not guilty by reason of insanity.

Thereafter, an expungement hearing was held wherein counsel argued that since 1988 the appellant had served in the military, received an honorable discharge and completed two years at a community college. Thus, it was the contention of counsel for the appellant that her client’s record should be expunged because: 1) the Commonwealth had failed to establish any reason for its retention, and 2) the appellant’s arrest was the by-product of an “aberration” not repeated since the 1988 incident.

Counsel argued that retaining the appellant’s arrest record might impair her client’s ability to receive “proper treatment” as a patient in a mental health facility if his record became known, and such information could affect the appellant’s ability to secure employment. The court disagreed with counsel on all grounds.

First, the court believed that a mental health facility was entitled to know whether the appellant had any “violent” tendencies. Second, the court was presented with no evidence that the appellant was suffering an “impediment” because of his arrest record. Third, and most importantly, the court found that there was no denial by the appellant of having assaulted the police officer, and his “continuing” treatment indicated a potential for recidivism. Accordingly, in the absence of any prejudice being suffered by the appellant, when joined with the fact that the offenses charged had been committed, the request for expungement was denied. This appeal followed.

The sole issue posited for our consideration is whether the court erred in refusing to expunge the appellant’s arrest record following a non-jury trial in which he was found not guilty by reason of insanity.

It is well-established in this Commonwealth that in those instances in which the prosecution has been unsuccessful in establishing a defendant’s guilt beyond a reasonable doubt, or the prosecution admits to its inability to bear its burden of proof, the force of persuasion remains with the prosecution to produce “compelling evidence” against expungement of one’s arrest record. Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981); Commonwealth v. G.C., 398 Pa.Super. 458, 581 A.2d 221 (1990); Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983).

In Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980), the appellant was acquitted by a jury. In aligning the respective burdens of proof at the expungement hearing, we wrote: Id., 282 Pa.Superior Ct. at 461, 422 A.2d at 1385. Accord Rambo v. Commissioner, 301 Pa.Super. 135, 447 A.2d 279 (1982) (Commonwealth has burden at expungement hearing where accused is acquitted on appeal by the Pennsylvania Supreme Court); Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979) (Commonwealth has burden at expungement hearing where accused is acquitted by justice of the peace).

It is not disputed that appellant was acquitted by a jury as opposed to being discharged as a result of a procedural irregularity. One of the basic tenets of our system of criminal justice is that the accused is innocent until proven guilty beyond a reasonable doubt. We, therefore, refuse to impose upon the appellant the burden of proving his innocence subsequent to acquittal by requiring him to show non-culpability in an expungement hearing.

Instantly, the appellant was found not guilty by reason of insanity because the trier-of-fact concluded that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong. 18 Pa.C.S.A. § 315 (1983).

Traditionally, it is the prosecution which is vested with the burden of proving the accused guilty beyond a reasonable doubt. Commonwealth v. Sohmer, 519 Pa. 200, 546 A.2d 601, 605 n. 1 (1988). This burden does not shift where there is sufficient evidence to raise the issue of insanity. The burden remains on the Commonwealth to establish the defendant’s guilt beyond a reasonable doubt. It need not, however, present evidence sufficient to support a finding of sanity beyond a reasonable doubt. Id.

In this case, as in Rambo, Capone and Rose, the Commonwealth’s failure to satisfy its burden of proof placed the presentment of compelling evidence against expungement upon the Commonwealth. As such, in order to decide whether the Commonwealth has met its burden of showing a compelling reason why an arrest record should be retained, the Commonwealth’s interest in retention must be balanced against the individual’s interest in expunction. In Wexler, our Supreme Court cited the following factors to assist in the weighing process; namely:

These [factors] include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

494 Pa. at 330, 431 A.2d at 879, quoting Commonwealth v. Iacino, 270 Pa.Super. 350, 358, 411 A.2d 754, 759 (1979). It was noted that the factors listed were not necessarily an exhaustive or exclusive list; other factors may require examination in a particular case. Id. We find that such a case has been presented to us here.

To start with, the appellant focuses upon the aberrational nature of the assault, his age (40), the absence of a criminal record before or since the assault, his honorable discharge from the service and the completion of two years of college as reflective of the isolated nature of his aberrant behavior.

Given the insanity defense, we may not merely close our eyes to the whole thrust of the expungement process, i.e., to exculpate an innocent individual from the jaws of unwarranted punishment which manifests itself and flows from the retention of one’s arrest record following, e.g., a dismissal of charges at the district justice level, a finding of not guilty, acquittal on appeal or completion of an accelerated rehabilitative disposition program; viz.:

Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual’s reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender.

Commonwealth v. Malone, 244 Pa.Super. 62, 68-69, 366 A.2d 584, 587-88, quoting Menard v. Mitchell, 139 U.S.App. D.C. 113, 117, 430 F.2d 486, 49-91 (1970). Accord Commonwealth v. Rank, 312 Pa.Super. 572, 459 A.2d 369, 372 (1983); Commonwealth v. Briley, 278 Pa.Super. 363, 420 A.2d 582, 584, 587 (1980). Ergo, punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy the denial of that right, a court has the authority to order the expungement of an arrest record. Matter of Pflaum, 305 Pa.Super. 600, 451 A.2d 1038, 1041 (1982), quoting Malone, supra, 244 Pa.Super. at 69, 366 A.2d at 588.

The case law which we have examined endorses the tenet that “expunction is proper only in cases were acquittal is consistent with a finding [of] innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence.” Commonwealth v. G.C., supra, 398 Pa.Super. at 462, 581 A.2d at 224; Matter of Pflaum, supra, 305 Pa.Super. at 605-606, 451 A.2d at 1041; Iacino, supra, 270 Pa.Super. at 354-355, 411 A.2d at 757; Rose, supra, 263 Pa.Super. at 351, 397 A.2d at 1244; Wert v. Jennings, 249 Pa.Super. 467, 378 A.2d 390, 392 (1977); Malone, supra, 244 Pa.Super. at 68-69, 366 A.2d at 588.

Although we in no way equate a not-guilty-by-reason-of-insanity verdict with a “legal technicality” removed from a finding of innocence or guilt, we do note that the defense of insanity by its very terms accepts the fact that the actor had engaged in “the commission of the offense” being tried. See Sohmer, supra; see also 18 Pa.C.S.A. § 315(b). To this extent, we observe that there was no denial by counsel for the appellant at the expungement hearing (counsel nodded her “head up and down”) to the court’s remark that the appellant “did the act, there’s no question; you don’t deny that.” Contrast Commonwealth v. G.C., supra.

Further, the record discloses that the appellant’s assault was committed with a weapon (“knife”) against a police officer who had to use “extreme” force to quell the affray. Also, there was evidence that the appellant’s conduct caused serious harm to himself (gunshot wound) and the officer resulting in the need for medical treatment. Indeed, at the expungement hearing there was a stipulation by counsel that the appellant not only “scuffled” with the officer, but the appellant “attacked a nurse at the hospital.”

Therefore, we do not have an innocuous encounter between citizen and law enforcement officer wherein neither is exposed to or sustains (serious) bodily injury or no force is utilized to diffuse the meeting. Rather, we have a police officer responding to a disturbance which erupts into a volatile situation leading to a shooting of the appellant for his bellicose activity and the interjection of a knife into the fray.

Notwithstanding the fact that the incident was singular in nature — the appellant has had no other episode since the 1988 incident — we may not ignore the severity of the confrontation, the force needed to subdue the appellant, his use of a knife as an offensive weapon and the resultant injuries to the appellant and police, as well as the hospital encounter between nurse and appellant. Contrast In re Haefner, 291 Pa.Super. 604, 436 A.2d 665, 666 (1981); Briley, supra. 278 Pa.Super. at 370, 420 A.2d at 586.

Most importantly, however, one cannot ignore the fact that the appellant is “still being treated” for his malady, a point which was not disputed by his counsel who noted that “he has been monitored since he’s been in the programs” without incident. N.T. 9 and 12 (Emphasis added). Even the court found that the appellant’s continuing treatment posed “a chance of recidivism”. And, with this likelihood in the offing, the court stated:

This is not the case where somebody has absolutely done nothing and is suffering prejudice. This is a case, it may certainly work a hardship on the defendant, but it may work a harder hardship in the future on other people. * * * * * *
[The appellant] was found not guilty by reason of insanity. It’s slightly different — in fact, tremendously different — where there’s a finding of not guilty, period.

Id. at 11 and 12. In its opinion at page 2, the court supplemented its decision with the following observations:

In order for expungement to be granted, the Court must be satisfied that the individual’s interest in being free from the disabilities created by the criminal record outweigh the Commonwealth’s interest in retaining it. Commonwealth v. PFLAUM, 305 Pa.Super. 600, 451 A.2d 1038 (1982). At the conclusion of the hearing in this matter, we were not satisfied that the defendant’s interests outweighed that of the Commonwealth. The underlying case is not one of outright acquittal nor is it one in which the Commonwealth withdrew prosecution or entered a nolle pros. In point of fact, the defendant essentially admitted to the violent conduct involved but was successful in negating the intent element of the crimes charged. Despite the verdict rendered at trial, this Court believes that the Commonwealth has a compelling interest in maintaining such a record of violence, especially one involving an attack on a police officer. The generalized and presumed disabilities related by the defendant pale by comparison to the Commonwealth’s need to retain the record of the underlying incident. Mental health treatment aside, the defendant is a dangerous individual whose record of violence should be maintained as a protection for society and those that enforce its laws.

We agree, and we would add that the circumstances surrounding the appellant’s arrest, his admission to the commission of the assault and the continuing nature of his treatment for mental illness weigh in favor of the Commonwealth retaining his arrest record. Appellant is not a petitioner who comes before us cloaked in the mantel of innocence seeking to eradicate a blemish on his good name and character. On the contrary, but for the defense of insanity, the appellant might have received a term of imprisonment for his obstreperous behavior against a police officer. See 18 Pa.C.S.A. § 314 (Guilty but mentally ill); Sohmer, supra.

Order affirmed.

MONTEMURO, J., concurs in the result.

      . Generally, in those cases in which a petitioner seeking expungement has been found not guilty, had her/his charges dismissed at the preliminary hearing stage or he/she completed an accelerated rehabilitative disposition program, the petition is normally granted. See, e.g., Commonwealth v. Richardson, 354 Pa.Super. 194, 511 A.2d 827 (1986) (Acquittal following a directed verdict); Commonwealth v. Rank, 312 Pa.Super. 572, 459 A.2d 369 (1983) (Not guilty verdict); Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980) (Acquittal by jury); Matter of Pflaum, 305 Pa.Super. 600, 451 A.2d 1038 (1982) (Charges dropped before District Justice); Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979) (Acquittal at a trial before a District Justice of the Peace); Commonwealth v. Briley, 278 Pa.Super. 363, 420 A.2d 582 (1980) (Completion of A.R.D. program).
      Instantly, despite the fact that the petitioner was found not guilty of the offenses charged, the relief requested is not justified since his exoneration is not pristine because of its attainment via the defense of insanity (which acknowledges a defendant’s "commission of the offense”).

      . The appellant was charged with two counts of simple assault. The second simple assault charge was nol prossed by the Commonwealth.

      . It is to be observed that the Commonwealth gave no reason in support of its request that the appellant’s petition to expunge be denied. Only in its appellate brief does the Commonwealth articulate its reasons for sustaining the denial of the appellant’s petition. We do not find this fatal to the Commonwealth’s position. Cf. Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) (Commonwealth did not advance any reason at expungement hearing; on appeal Supreme Court looked to Commonwealth’s brief to assess whether the presentment of compelling reasons for expungement were extant); Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983) (Only mention of compelling reasons by the Commonwealth against expungement appeared in its appellate brief; the reasons were responded to on appeal); Commonwealth v. Hughes, 295 Pa.Super. 304, 441 A.2d 1244 (1982) (Commonwealth’s answer to the appellant’s petition to expunge was looked to for reasons not warranting ex-pungement).

      . § 315. Insanity
      (a) General rule. — The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of the evidence that the actor was legally insane at the time of the commission of the offense.
      (b) Definition. — For purposes of this section, the phrase "legally insane" means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act, that he did not know that what he was doing was wrong.
      Act of December 15, 1982, P.L. 1262, No. 286, § 1, 18 Pa.C.S.A. § 315.

      . Even though the appellant was not prosecuted for his attack on the nurse, we are not foreclosed from considering this as a factor in weighing the propriety of the denial of the expungement petition. See Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) (List of factors to consider in expungement context is not exclusive; it can be added to when appropriate).


author: BROSKY, Judge.

text:
    612 A.2d 443
    Eileen LIVINGSTON, Appellant, v. John E. MURRAY, Jr., in His Own Right, and As Agent for Duquesne University, and Duquesne University.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed June 29, 1992.
    Petition for Allowance of Appeal Denied Nov. 23, 1992.

      Joel S. Sansone, Pittsburgh, for appellant.
    Robert E. Durrant, Pittsburgh, for appellee.

      Before HUDOCK, MONTGOMERY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order of the lower court which granted appellees’ motion for summary judgment. The sole issue presented for our review is whether the trial court erred in granting summary judgment on the basis that appellees’ statements were incapable of defamatory meaning. For the reasons discussed below, we affirm.

Before addressing appellant’s claim, we will briefly recount the relevant facts of this case. Appellant, Eileen Livingston, was employed by Duquesne University as its athletic director. Because the athletic program was to be reorganized or restructured, appellant was notified in March 1989 that her contract would not be renewed and that her employment at Duquesne would terminate as of June 30, 1989. Articles discussing the reorganization/restructuring of Duquesne University’s athletic program as well as other changes at Duquesne were published in the March 21, 1989 edition of the Pittsburgh Post-Gazette and in the April 6, 1989 and October 22, 1989 editions of the Pittsburgh Press.

Because of the allegedly defamatory statements contained in these articles, appellant instituted this action against appellees, Duquesne University and its president, John E. Murray, Jr., by writ of summons on April 3, 1990. A complaint involving only the March and April articles was subsequently filed. In March of 1991, appellant sought leave of court to amend her complaint to include a third cause of action for the allegedly defamatory comments contained in the October article. Because the statute of limitations had expired as to the October publication, appellant’s motion to amend was denied by the lower court. See 42 Pa.C.S.A. § 5523(1) (providing a one-year statute of limitations for defamation actions) and Graham v. Today's Spirit, 503 Pa. 52, 58, 468 A.2d 454, 457 (1983) (providing that a separate cause of action arises for defamatory statements which are contained in separate editions). After obtaining appellant’s consent, appellees amended their answer to include new matter raising the statute of limitations as an affirmative defense to the March publication. Appellees thereafter filed a motion for summary judgment which was granted by the trial court. This timely appeal followed.

In reviewing the trial court’s grant of summary judgment, we observe that

[sjummary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P.[, Rule] 1035(b)[, 42 Pa. C.S.A.] An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. [Further,] [t]he record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Marks v. Tasman, 527 Pa. 132, 134-135, 589 A.2d 205, 206 (1991) (citations omitted). Accord Curran v. Philadelphia Newspapers, Inc. (I), 497 Pa. 163, 177-178, 439 A.2d 652, 659 (1981); Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 590, 581 A.2d 619, 620-621 (1990), allocatur de nied, 527 Pa. 648, 593 A.2d 421 (1991). Moreover, an appellate court will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, -, 608 A.2d 1074, 1077 (1992), citing McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

With respect to defamation actions, we additionally note that “[i]t is the function of the court to [initially] determine whether the challenged publication is capable of a defamatory meaning. If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial.” Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 464-465, 442 A.2d 213, 215-216 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). Accord Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987); Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 591, 594, 581 A.2d at 621, 622-623; Dobson by Dobson v. WBRE-TV, Inc., 347 Pa.Super. 612, 614, 500 A.2d 1226, 1227 (1985); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 305, 483 A.2d 456, 461 (1984); Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 250, 482 A.2d 266, 268 (1984) . However, in cases “where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury.” Dougherty v. Boyertown Times, 377 Pa.Super. 462, 472, 547 A.2d 778, 783 (1988). Accord Corabi v. Curtis Publishing Co., 441 Pa. at 447, 273 A.2d at 906-907; Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. 253, 261, 489 A.2d 1364, 1368 (1985) . We will evaluate the trial court’s decision in accordance with these principles.

The article published in the April 6 edition of the Pittsburgh Press appeared as follows:

Duquesne hires Colleary as AD
Duquesne University has hired Marist College’s Brian Colleary as athletic director to replace Eileen Livingston, fired last month after nearly six years as head of the Dukes’ athletic department.
Colleary has been athletic director at Marist in Poughkeepsie, N.Y., for four years, during which the men’s basketball team made two NCAA tournament appearances and the men’s tennis, lacrosse, football and women’s volleyball teams made significant improvement. Colleary oversaw a program of 14 Division I sports at Marist.
Duquesne President Dr. John Murray said Colleary was recommended to him by “some people in athletics for whom we have the utmost respect. He comes with a great many recommendations from people who have seen his work.[”]
“After meeting him, we understand why there was so much enthusiasm in those recommendations.”
Colleary also is given credit for expanding and improving the school’s athletic facilities and upgrading the men’s basketball schedule to include such teams as Providence and Villanova and a berth in the ECAC Holiday Festival in 1987.
Marist’s basketball program recently completed a two-year NCAA probation tenure for violations committed in 1984, before Colleary was hired.
Murray said that issue was discussed during the interview.
“As I understand it, Brian made absolutely certain that situation was not only resolved but would never occur again, so it was a very positive aspect of his background.”
Murray said the hiring of Colieary would help Duquesne in the pursuit of a head basketball coach.
The search committee has interviewed several candidates this week, including Tim Grgurich, Nevada-Las Vegas assistant coach, and Penn State assistant Tim Loomis.
“It’s nice to have an AD for the coach to meet,” Murray said. “If the new coach does not know who the AD will be, he might have some misgivings.[”]
“Now we have an AD who has respect around the country.”
Colieary is a graduate of Fordham University.
He served as head football coach, assistant director of athletics and associate director of athletics at Iona College in New Rochelle, N.Y., during the late 1970s and early 1980s.

Appellant’s Complaint, Exhibit B. Appellant believes that the statement “[n]ow we have an AD who has respect around the country”, which appears to be attributed to President Murray, is capable of defamatory meaning. We disagree.

A publication is defamatory if it tends to blacken a person’s reputation or expose him to public hatred, contempt, or ridicule, or injure him [or her] in his [or her] business or profession. [Also,] [a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Agriss v. Roadway Express, Inc., 334 Pa.Super. at 305, 483 A.2d at 461. Accord Baker v. Lafayette College, 516 Pa. at 296, 532 A.2d at 402; Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 464, 442 A.2d at 215; Corabi v. Curtis Publishing Co., 441 Pa. at 441-442, 273 A.2d at 904; Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 591, 581 A.2d at 621; Dobson by Dobson v. WBRE TV, Inc., 347 Pa.Super. at 615, 500 A.2d at 1227; Zartman v. Lehigh County Humane Society, 333 Pa.Super. at 250, 482 A.2d at 268. Further, a communication is defamatory if it ascribes to another conduct, character or a condition that would adversely affect his or her fitness for the proper conduct of his or her lawful business, trade or profession. Thomas Merton Center v. Rockwell International, Corp., 497 Pa. at 466, 442 A.2d at 216; Dougherty v. Boyertown Times, 377 Pa.Super. at 473, 547 A.2d at 783; Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. at 260, 489 A.2d at 1368.

In determining whether a communication is defamatory, the court must consider

the effect the [entire] article is fairly calculated to produce[ ] [and] the impression it would naturally engender[ ] in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same significance that other people are likely to attribute to them. [In addition,] [t]he nature of the audience is a critical factor in determining whether a communication is capable of defamatory meaning---However, the fact that the challenged statements may annoy or embarrass a person is not sufficient as a matter of law to create an action in defamation.

Dougherty v. Boyertown Times, 377 Pa.Super. at 472-473, 547 A.2d at 783 (citations omitted). Accord Baker v. Lafayette College, 516 Pa. at 296-297, 532 A.2d at 402; Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 465, 442 A.2d at 215; Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 594-595, 581 A.2d at 621; Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. at 261, 489 A.2d at 1368; Agriss v. Roadway Express, Inc., 334 Pa.Super. at 305-306, 483 A.2d at 461-462; Zartman v. Lehigh County Humane Society, 333 Pa.Super. at 251, 482 A.2d at 269. “Finally, opinion without more does not create a cause of action in libel. Instead, the ‘allegedly libeled party must demonstrate that the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.’ ” Baker v. Lafayette College, 516 Pa. at 297, 532 A.2d at 402 (citations omitted).

When the allegedly defamatory article is viewed in accordance with these considerations, we are compelled to agree with the trial court that it is incapable of defamatory meaning. The sole mention of appellant in the entire article appears in the first paragraph which indicates that appellant had been terminated from her position. However, this statement was not placed in quotes and does not appear to be directly attributable to either President Murray or other Duquesne officials. More importantly, the statement does not disparage appellant’s reputation, conduct or character nor does it appear to be the type of statement which, in and of itself, would subject appellant to public hatred, contempt or ridicule. Compare Baker v. Lafayette College, 516 Pa. at 297-299, 532 A.2d at 402-403 (statements criticizing the plaintiff’s performance of his teaching duties were not defamatory); Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 595-506, 581 A.2d at 623 (statements mentioning the plaintiff’s absence from council meetings and the plaintiff’s refusal to attend private council meetings and offer verbal opinions were not defamatory); Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. at 261-262, 489 A.2d at 1369 (statements expressing lack of confidence in the plaintiff’s professional abilities and recommending that his contract not be renewed were not defamatory) and Beckman v. Dunn, 276 Pa.Super. 527, 535, 419 A.2d 583, 587 (1980) (statements criticizing the plaintiff’s mediocre academic performance and bickering over exam results were not defamatory) with Corabi v. Curtis Publishing Co., 441 Pa. at 447, 273 A.2d at 907 (news article was capable of defamatory meaning where it implicated the plaintiff in the commission of various criminal offenses and immoral conduct); Dougherty v. Boyertown Times, 377 Pa.Super. at 473, 547 A.2d at 783 (statements were capable of defamatory meaning where they disparaged the plaintiff’s professional competence as a chiropractor and insinuated that he had defrauded his patients and a health insurer); Agriss v. Roadway Express, Inc., 334 Pa.Super. at 306, 483 A.2d at 462 (statements were capable of defamatory meaning where they accused the employee of dishonesty, a lack of integrity and untrustworthiness as well as the federal criminal offense of opening another’s mail) and Zartman v. Lehigh County Humane Society, 333 Pa.Super. at 253, 482 A.2d at 270 (statements were capable of defamatory meaning where they accused the plaintiff of being cruel to animals, maintaining animals in unhealthy living conditions, and selling animals to laboratories for research).

Aside from the single reference to the fact that appellant had been terminated from her position as athletic director, the remainder of the article reviews the achievements, qualifications and recommendations of appellant’s successor, Mr. Colleary. In addition, the article discussed Duquesne University’s search for a new basketball coach and identified the names of individuals who were to be interviewed for the coaching position. However, neither of these topics can reasonably be construed as impugning appellant’s professional reputation and skills as the statements do not pertain to appellant nor do they make explicit reference to her.

Moreover, the statement attributed to President Murray relating to Duquesne University’s acquisition of an athletic director who is respected around the country does not defame appellant. This statement expresses nothing more than President Murray’s opinion that Duquesne University’s new athletic director is one who has received national respect. Further, this opinion appears to be based on disclosed facts relating to the new athletic director’s prior qualifications, achievements and the enthusiastic recommendations from other respected individuals who are employed in the athletics field. President Murray’s statement therefore cannot be viewed as defamatory. See Baker v. Lafayette College, 516 Pa. at 297-299, 532 A.2d at 402-403 (concluding that opinions based on disclosed facts were incapable of defamatory meaning).

Appellant does not dispute this assessment but nevertheless suggests that the article is defamatory by innuendo. The essence of appellant’s argument is that the reference to appellant being fired in connection with the enthusiastic and favorable comments relating to Mr. Colleary implies that appellant lacks national respect and the necessary qualifications to be an athletic director. See Appellant’s Brief at 13-14. Appellant is correct in her assertion that a communication may be deemed capable of defamatory meaning by innuendo even though the words utilized therein are not in themselves defamatory. See Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 467, 442 A.2d at 217; Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677, 679 (1962); Sarkees v. Warner-West Corporation, 349 Pa. 365, 367-368, 37 A.2d 544, 546 (1944); Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 592, 581 A.2d at 623; Dobson by Dobson v. WBRE-TV, Inc., 347 Pa.Super. at 615, 500 A.2d at 1227 (all of which discuss defamation by innuendo). See also Corabi v. Curtis Publishing Co., supra (although defamation by innuendo was not expressly discussed, passages that were taken out of context and accompanying innuendos were deemed capable of defamatory meaning). To establish defamation by innuendo, the “innuendo must be warranted, justified and supported by the publication.” Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 467, 442 A.2d at 217. Accord Sarkees v. Warner-West Corporation, 349 Pa. at 367, 37 A.2d at 546. As further explained by the Supreme Court:

[t]he purpose of an innuendo, as is well understood, is to define the defamatory meaning which the plaintiff attaches to the words; to show how they come to have that meaning and how they relate to the plaintiff[.] But it cannot be used to introduce new matter, or to enlarge the natural meaning of the words, and thereby give to the language a construction which it will not bear[.] It is the duty of the court in all cases to determine whether the language used in the objectionable article could fairly and reasonably be construed to have the meaning imputed in the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff and do not sustain the innuendo, the case should not be sent to a jury____ [Consequently,] [i]f the publication complained of is not in fact libelous, it cannot be made so by an innuendo which puts an unfair and forced construction on the interpretation of the publication.

Sarkees v. Warner-West Corporation, 349 Pa. at 368, 369, 37 A.2d at 546. Accord Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 467, 442 A.2d at 217; Bogash v. Elkins, 405 Pa. at 440, 176 A.2d at 679; Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 592, 581 A.2d at 621; Dobson by Dobson v. WBRE-TV, Inc., 347 Pa.Super. at 615, 500 A.2d at 1227. Application of these considerations leads us to conclude that the April article is not defamatory by innuendo.

As previously discussed, President Murray’s statement relating to the new athletic director is merely an expression of his opinion based on disclosed facts. The only innuendo which reasonably could be inferred from this statement is President Murray’s belief that Duquesne University’s athletic program previously did not possess national recognition or respect and that the hiring of a nationally recognized and respected athletic director will enable Duquesne University’s athletic program to attain respect and recognition throughout the country. To arrive at the innuendo suggested by appellant, however, a reader must take the statement out of context, juxtapose it with the reference to appellant, and then ascribe thereto a meaning which directly contravenes the ordinary meaning and usage of the words set forth in the statement. Because appellant’s innuendo can only be obtained by means of a tortured and unreasonable construction, the publication cannot be deemed defamatory. See Thomas Merton Center v. Rockwell International, Corp., Bogash v. Elkins, Sarkees v. Warner-West Corpo ration, Neish v. Beaver Newspapers, Inc., and Dobson by Dobson v. WBRE-TV, Inc., supra.

In sum, the communication of which appellant complains is neither explicitly defamatory on its face nor defamatory by innuendo. Because appellant failed to establish that the publication was capable of defamatory meaning, summary judgment was properly granted. We therefore affirm the order of the lower court.

Order affirmed.

HUDOCK, J., did not participate in the decision of this case.

      . Appellant has not instituted a separate appeal from the order denying her motion to amend nor has she challenged this ruling in the instant appeal. Accordingly, we will not review the trial court’s order denying her motion. Since appellant’s cause of action for the October publication is barred, it will not be further discussed.

        . The trial court concluded that summary judgment was appropriate with regard to the April publication because it was incapable of defamatory meaning. Trial Court Opinion, dated January 6, 1992, at 3. Summary judgment was granted as to the March communication on the basis that it was barred by the applicable statute of limitations. See id. at 2. Because appellant has not challenged the trial court’s conclusions relating to the expiration of the statute of limitations, the March article need not be further discussed.

      . We must examine the full context of the communication in which the statements appear to properly determine whether the statements are capable of defamatory meaning. See Baker v. Lafayette College, 516 Pa. at 296, 532 A.2d at 402; Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 465, 442 A.2d at 216; Dobson by Dobson v. WBRE-TV, Inc., 347 Pa.Super. at 614, 500 A.2d at 1227; Zartman v. Lehigh County Humane Society, 333 Pa.Super. at 251, 482 A.2d at 269. We have accordingly set forth the article in its entirety because of the nature of the allegedly defamatory statements at issue in this case.


author: HOFFMAN, Judge.

text:
    612 A.2d 450
    Richard E. THOMPSON and Darlene I. Thompson, His Wife v. The MARYLAND AND PENNSYLVANIA RAILROAD PRESERVATION SOCIETY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed June 30, 1992.

      Steven M. Hovis, York, for appellant.
    Ronald L. Hershner, York, for appellees.
    Vincent E. Duane, pro se.
    Christopher R. Cook, pro se.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from judgment entered August 8, 1991, denying the Maryland and Pennsylvania Railroad Preservation Society’s [“Preservation Society”] post-verdict motions, and upholding a jury verdict finding that Preservation Society did not have an interest in the property which was the subject of the dispute. Preservation Society contends that the trial court erred (1) by not allowing the society to introduce evidence on the issue of whether the railroad owned a fee simple interest; (2) by not granting Preservation Society’s motion for a directed verdict; (3) by not entering judgment notwithstanding the verdict; (4) by committing reversible error in its jury instructions; and (5) by mischaracterizing the Preservation Society’s predecessor’s interest in the disputed property. For the following reasons, we reverse.

The instant dispute involves a portion of land in which the Maryland & Pennsylvania Railroad Company (“M & P”) possessed a right of way interest conveyed to them by Elizabeth Shaul in 1872. The property through which the right of way passes is now owned by Richard and Darlene Thompson [“the Thompsons”], appellees herein. Specifically, this dispute arises out of M & P’s quitclaiming its interest in an eight-mile stretch of the railroad to Preservation Society, which organized to oppose dismantlement of the railway after M & P had terminated service on the line and begun to remove the tracks.

M & P operated a passenger and freight railway service until the early 1980s, when the service was discontinued. In February 1985, M & P petitioned the Interstate Commerce Commission (“ICC”) for permission to abandon service on that line. That petition was granted in 1986. M & P then sought to sell the line, but was unable to do so. Thus, M & P entered into a Salvage Agreement with Pohl Corporation (“Pohl”) in September 1986, under which M & P sold to Pohl all of the tracks and rails for scrap value. Pohl began removing the tracks starting from both ends. Additionally, M & P began issuing quitclaim deeds to other land owners adjoining the Thompsons along the length of the right of way, thus clearing itself of the rights of way that it had acquired across private property for operation of its railroad.

During this time, Preservation Society, concerned with maintaining the railroad’s historical value, organized to oppose dismantlement of the railroad. Preservation Society approached M & P with a plan to purchase an eight-mile stretch of the railroad, a portion of which is situated on the Thompsons’ property. M & P advised Preservation Society to contact Pohl, who agreed to refrain from removing the eight-mile stretch of track if Preservation Society paid Pohl the profit it would have realized from the track’s salvage value. On May 18, 1987, M & P executed a quitclaim deed conveying to Preservation Society its interest in the eight-miles of land.

The Thompsons brought an action to quiet title on January 4, 1988, in the Court of Common Pleas of York County. A jury trial was conducted on February 4-6, 1991. At the conclusion, a verdict was rendered for the Thompsons. Preservation Society’s post-trial motions were filed and denied. This timely appeal followed.

Preliminarily, we note that when reviewing a trial court’s decision in a quiet title action, an appellate court must determine whether the findings of fact that led to the legal conclusion of abandonment of a property interest were supported by competent evidence. Leet v. Vinglas, 366 Pa.Super. 294, 298, 531 A.2d 17, 19 (1987) (citing MacCurdy v. Lindey, 349 Pa. 655, 658, 37 A.2d 514, 516 (1944)), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988). Ordinarily, an appellate court will not reverse a determination of the trial court in a quiet title action absent an error of law or capricious disregard of the evidence. Klebach v. Mellon Bank, 388 Pa.Super. 203, 207, 565 A.2d 448, 450 (1989), appeal granted, 527 Pa. 647, 593 A.2d 420 (1990).

I.

Preservation Society first contends that the lower court erred by not allowing it to introduce evidence at trial on the issue of whether M & P owned a fee simple interest in the disputed property. The trial court entered an order on October 2, 1990 following a hearing, in which it found as a matter of law that the interest conveyed to M & P was not a fee simple interest, but rather a right of way. See Order, October 2, 1990, at 2.

We cannot consider whether this order was correct, as Preservation Society did not raise the issue in post-trial motions, nor did the trial court address it in its opinion. Thus, Preservation Society has failed to preserve it for our review. See Pa.R.Civ.P. 227.1(b)(2); Pa.R.A.P. 302(b). See also Bryant v. Girard Bank, 358 Pa.Super. 335, 344, 517 A.2d 968, 973 (1986).

II.

Preservation Society next contends that the trial court erred by denying its motion for a directed verdict. Specifically, Preservation Society argues that the Thompsons did not present sufficient evidence to satisfy the two-prong test establishing abandonment. This claim is without merit.

Initially, we note that “[i]n reviewing the grant or denial of a motion for a directed verdict, we must determine if ‘an abuse of discretion or error of law which controlled the outcome of the case occurred’____ If so, only then will we reverse.” Fleck v. Timmons, 374 Pa.Super. 417, 426-27, 543 A.2d 148, 153 (1988) (quoting Bucchianeri v. Equitable Gas Company, 341 Pa.Super. 319, 328, 491 A.2d 835, 840 (1985)). In deciding a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the party against whom the motion is made and must accept as true all evidence which supports that party’s contention and must reject all adverse testimony. Cooke v. Travelers Ins. Co., 350 Pa.Super. 467, 471, 504 A.2d 935, 936 (1986) (citations omitted).

Moreover, “[t]he determination of whether a railroad has actually abandoned its right of way by acting upon and effecting its expressed intention to abandon is a question for a jury to decide.” Quarry Office Park Assoc. v. Philadelphia Electric Co., 394 Pa.Super. 426, 437, 576 A.2d 358, 363 (1990) (citations omitted). Thus, a directed verdict may be granted only where the facts are clear and there is no room for doubt. Cooke v. Travelers Ins. Co., supra, 350 Pa.Super. at 471, 504 A.2d at 936.

In order to find that a right of way has been abandoned, there must be an intention to abandon, accompanied by external acts by which the intention is carried out. Quarry, supra, 394 Pa.Super. at 437, 576 A.2d at 363. This court has further stated:

It is well established in Pennsylvania law that in order to show an abandonment of a right-of-way or easement created by deed, the evidence must clearly show some conduct on the ground by the holder of the right-of-way which manifests that he intended to abandon and give up permanently his right to use it. Such conduct must consist of some affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment.

Sabados v. Kiraly, 258 Pa.Super. 532, 535, 393 A.2d 486, 487-88 (1978) (emphasis in original) (quoting Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966)).

The Thompsons introduced the following evidence to prove abandonment:

(1) testimony by Alfred Smith, President of M & P, regarding the company’s successful application to the ICC to abandon its rail line from Delta to York, the line that is the subject of the instant case. See N.T., February 4-6, 1991, at 54.
(2) testimony of Walter Pohl, President of Pohl Corporation, regarding the salvage agreement between Pohl and M & P. Id. at 127-28.
(3) testimony of Alfred Smith regarding the other property owners along the rail line seeking quitclaim deeds, and the letter that M & P sent to those property owners, as well as to appellees, regarding the procedure to be followed by each respective owner of property through which a right of way ran, in order to obtain a quitclaim deed. Id. at 64-71.
(4) authenticated photographs of the disputed portion of the rail line which had become overrun with weeds and brush. Id. at 338-39.
(5) testimony of Alfred Smith that the salvage agreement was intended to apply to the entire thirty-three miles of track, and that Pohl had begun dismantlement of the M & P tracks pursuant to the salvage agreement. Id. at 58, 61-62.

We must now consider whether this evidence was sufficient to raise a question of fact for the jury as to whether M & P abandoned its interest in the right of way running through the Thompsons’ property.

A certificate of abandonment issued by the ICC may be evidence of intent to abandon. Lacy v. East Broad Top R.R. & Coal Co., 168 Pa.Super. 351, 359, 77 A.2d 706, 710 (1951). When such evidence is presented, a question of fact is raised for the jury as to whether the holder of the right of way interest intended to abandon that interest. Quarry, supra, 394 Pa.Super. at 439, 576 A.2d at 364.

Similarly, the evidence that M & P entered into the salvage agreement with Pohl and that it had begun to execute quitclaim deeds to other property owners along the line raises a question of fact as to M & P’s intent to abandon. The salvage agreement provided for the purchase, dismantlement and removal of “facilities, equipment, structures, and/or material.” Salvage Agreement, September 22, 1986, at 1 ¶ 1. Specifically, Pohl was hired as an independent contractor to remove trackage, cut rails on each side of every public crossing, erect barricades across approaches to each bridge and remove ties from tracks. Id. at 8-9. As removal of the tracks and related facilities would permanently impair M & P’s ability to use the right of way for operation of a railroad, such an agreement raises a question of fact for the jury as to M & P’s intent to abandon. Further support can be derived from the fact that M & P had begun quitclaiming back to other property owners rights of way running across other land along the line.

Nonetheless, Preservation Society argues that even if a question of fact existed as to M & P's intent to abandon, the question of abandonment should not have been submitted to the jury because there was insufficient evidence to satisfy the second prong of the test — an affirmative act of abandonment. We disagree.

We recognize that “[m]ere nonuse of [a] right-of-way by its holder, no matter how long continued, cannot manifest an intention to abandon the right____” Sabados, supra, 258 Pa.Super. at 535, 393 A.2d at 487-88. However, in Hatcher v. Chesner, supra, our Supreme Court examined acts constituting more than mere nonuse:

In the instant case, the plaintiff, or his predecessors in title by whose actions in relation to the property he is bound, planted or permitted a tree to grow on the land now owned by the plaintiff which obstructed use of the easement to a material extent. Further, the same parties placed, or permitted to be placed, a bar across the doors of the garage serving as the only entrance to the easement right of way. These acts, in our opinion, were not mere inaction, but rather affirmative acts on the part of the plaintiff and his predecessors in title, which were sufficiently inconsistent with further use of the easement to constitute an abandonment thereof and to bring the issue squarely within the rule of Eagan v. Nagle [378 Pa. 206, 106 A.2d 222 (1954)] [of external acts].

Hatcher v. Chesner, 422 Pa. at 143, 221 A.2d at 308. This court, in a more recent case, noted, “the crucial feature of the Hatcher case is the purposeful barring of the right-of-way entrance showing an intention on the part of the right-of-way holder to close it, give it up and abandon it____” Sabados, supra, 258 Pa.Super. at 536, 393 A.2d at 488.

Turning to the facts of the instant case, there was sufficient evidence of a purposeful affirmative act to raise a question of fact for the jury, and preclude the granting of a directed verdict. Ordinarily, failure to maintain a railroad line or allowing brush to grow is not considered an affirmative act of abandonment. See Quarry, supra, 394 Pa.Super. at 438, 576 A.2d at 363; Sabados, supra, 258 Pa.Super. at 536-37, 393 A.2d at 488. However, we agree with the trial court that “the salvager beginning to remove the track materials could be sufficient to qualify as an external act.” Opinion, July 18, 1991, at 4. See Quarry, supra, 394 Pa.Super. at 439, 576 A.2d at 364 (evidence that railroad had part of its tracks removed was external act raising question for jury as to whether removal was done in furtherance of abandonment). Accordingly, the trial court did not abuse its discretion in denying Preservation Society’s motion for a directed verdict.

III.

Preservation Society next contends that the trial court should have granted judgment notwithstanding the verdict (“JNOV”) because as a matter of law, M & P could not have abandoned the right of way. Specifically, Preservation Society argues that (1) M & P could not lawfully abandon its interest until it received permission from the Pennsylvania Public Utilities Commission (“PUC”) to remove the railway crossings; and (2) M & P engaged in activity that was inconsistent with abandonment.

It is well-settled that JNOV may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds would disagree that the verdict was improper. Scullion v. EMECO Indus., 398 Pa.Super. 294, 298, 580 A.2d 1356, 1358 (1990) (citation omitted), appeal denied, 527 Pa. 625, 592 A.2d 45 (1991); Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987) (citation omitted), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988). Any doubts should be resolved in favor of the verdict winner. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 516, 546 A.2d 639, 643 (1988) (quoting Geyer v. Steinbronn, 351 Pa.Super. 536, 549, 506 A.2d 901, 908 (1986)), appeal denied, 522 Pa. 576, 559 A.2d 37 (1989). With this standard in mind, we proceed to consider each of Preservation Society’s arguments.

A.

Preservation Society first argues that, as a matter of law, M & P could not abandon its right of way until it applied for and received a PUC certificate granting permission to abandon the highway/railroad crossings. Additionally, Preservation Society argues that the trial court erroneously instructed the jury that M & P could abandon its right of way even though it had not obtained PUC authorization to abandon the railroad crossings. These arguments are without merit.

A PUC certificate granting permission to abandon railway crossings is not dispositive of whether or not a railroad has abandoned a right of way, as the certificate, without more, does not constitute abandonment. Lacy v. East Broad Top R.R. & Coal Co., supra, 168 Pa.Super. at 357, 77 A.2d at 710. “At most, the proceedings before the Commission constitute only the expression of the railroad’s intention to abandon its right of way, the Commission’s conditional approval of the plan of abandonment, and the consent of the Commonwealth thereto.” Id., 168 Pa.Superior Ct. at 358, 77 A.2d at 710. Moreover, the PUC does not, “and manifestly could not, determine or adjudicate the property or contractual rights of the parties----” Id. (citation omitted).

Preservation Society relies on New York Central R.R. Co. v. Pennsylvania P.U.C., 188 Pa.Super. 647, 149 A.2d 562 (1959) for the proposition that a railroad is unable to abandon its property interest before obtaining PUC approval. Preservation Society’s characterization of New York Central’s holding is inaccurate. In New York Central, a panel of this court recognized that it is possible to complete abandonment without obtaining PUC permission, see id., 188 Pa.Superior Ct. at 651, 149 A.2d at 564-565, but noted that the PUC has the power to later reverse the unauthorized abandonment by ordering the railroad to resume operations. Id., 188 Pa.Superior Ct. at 650, 149 A.2d at 564. Thus, we disagree with Preservation Society that, as a matter of law, M & P could not have abandoned the right of way before obtaining a PUC certificate. In light of this conclusion, Preservation Society’s argument that the court erroneously instructed the jury that M & P could have abandoned the right of way without first obtaining a PUC certificate is also without merit.

B.

Preservation Society also argues that M & P engaged in conduct that was inconsistent with abandonment and, thus, JNOV should have been granted. Specifically, Preservation Society points to the fact that there was testimony that the tracks were cleared of brush and growth yearly and kept passable until they were removed, and, further, that specially-outfitted rail cars were used to stock the adjoining creek with fish. Thus, Preservation Society argues that in light of this activity, it was impossible for the Thompsons to satisfy the second prong of the abandonment test — an external act.

We have already concluded in section II, supra, that sufficient evidence was presented to raise a jury question with respect to both prongs of the test. Contradictory evidence was presented as to the extent of M & P’s use of the rail line. The jury, as fact-finder, was free to believe all, some or none of that evidence. See Williamson v. Williamson, 402 Pa.Super. 276, 286, 586 A.2d 967, 972 (1991). Preservation Society’s claim must fail because it is not so free from doubt that the jury’s verdict was incorrect and thus, that JNOV should have been granted.

IV.

Preservation Society next contends that the trial court committed reversible error with respect to the jury instructions. Specifically, Preservation Society claims that the trial court incorrectly stated the law as it applied to the brush and weeds that had grown on the tracks. We agree.

The standard of review with respect to jury instructions is well-settled in Pennsylvania:

A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury in its deliberations____ In reviewing the court’s charge for error, we must read the charge as a whole; error will not be predicated upon an isolated excerpt, instead it is the general effect of the charge that controls____ Furthermore, if a requested point for charge is already sufficiently and adequately covered in the trial court’s jury instructions, it is not error to deny the requested point even though it may contain a correct statement of law.

Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 606, 592 A.2d 1377, 1378-79 (1991) (citations omitted). See also Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980). If a charge inaccurately describes the law, there is error. Summit Fasteners, Inc. v. Harleysville National Bank & Trust Co., Inc., 410 Pa.Super. 56, 61, 599 A.2d 203, 206 (1991) (citations omitted), appeal denied, 606 A.2d 902 (1992).

The court instructed the jury on the issue of the brush and weeds as follows:

Let’s look at the respective sides of the case. What does the Plaintiff say shows abandonment?
Well, first thing he shows is that there is a lack of maintenance. The railroad line was deteriorating. It was falling apart. They weren’t using it anymore and he gives testimony from the Plaintiffs about the weeds are growing up and there is testimony, I believe, from Mr. Crowl [charter member of appellant Preservation Society] said something or suppose to have said something in the newspaper about it being overgrown and all the other testimony you heard about lack of maintenance.
Now, this lack of maintenance is actually possible. I suppose that strictly from the lack of a maintenance alone, you could find abandonment. The same way if you see a house or a car, you don’t even know who owns it, they let it sit there. It sat there for 20 years. It’s all rusted out. It was vandalized. It’s abandoned as you classically know.
The mere fact alone could convince you alone that the owner of that car has abandoned it. By the same token here, the lack of maintenance, the weeds growing up and trees growing up through the railroad, it [is] grown to the point three feet thick and you couldn’t put any railroad car through there no matter how small it was, you say, well hey they have abandoned it.
You will have to determine whether that testimony went to that extent. Even if you don’t find it went to that extent, you can still use the testimony of abandonment of lack of maintenance rather along with all the other factors. It could be one piece of a larger total picture or it could be sufficient all by itself.
Obviously, for it to be sufficient by itself, it would have to be pretty overwhelming. There are a lot of other factors that come into play. So, we have with [a] railroad many other factors that go into play, that you wouldn’t have with an abandoned car. For example, if you are going to find it strictly on abandonment and find it very [clearly] and take into account that there are other factors [that go] into it.

Ñ.T., February 4-6, 1991, at 442-45.

This instruction significantly misstates the law in this Commonwealth. Specifically, the trial court’s repeated statement that evidence of the weeds and brush was sufficient in itself to constitute abandonment is incorrect. In Quarry Office Park Associates v. Philadelphia Electric Co., 394 Pa.Super. 426, 576 A.2d 358 (1990), this court stated that the “failure to operate trains on the line and maintain the line are not indicative of an intent to abandon.” Id., 394 Pa.Superior Ct. at 438, 576 A.2d at 363. Moreover, in Sabados v. Kiraly, 258 Pa.Super. 532, 393 A.2d 486 (1978), this court expressly stated:

Defendant argues that permitting the trees and brush to grow up on the right-of-way area, from her house through the woods back to plaintiffs’ property line, during the period of nonuse, is an ‘affirmative act' by the holders of the right-of-way rendering its use impossible, and is an obstruction thereof by the right-of-way owner inconsistent with further use or enjoyment of the right-if-way, evidencing an intention to abandon it. This contention is impossible to accept. Allowing brush and saplings to grow on the right-of-way area which runs through the woods is not an act of active or affirmative character; instead, the growth results from merely doing nothing. These circumstances do not involve an affirmative act or placement of a physical obstruction or barrier, as is legally required for abandonment of a granted right-of-way____
In the present case, none of the owners of plaintiffs’ land ever intentionally barricaded the right-of-way. In this case, growth of brush and small saplings in the roadway through the woods was but the natural closing in of nature upon an unused road, not the affirmative or intentional obstruction of the way by the owners of plaintiffs’ land.

Id., 258 Pa.Superior Ct. at 536-37, 393 A.2d at 488 (emphasis added). This clearly contradicts the instructions provided by the court. Moreover, the court’s example of a car or house left unattended for twenty years was misleading and, in our opinion, could have further confused the jury. There was no testimony in the case at hand that the weeds were left unattended for anywhere near twenty years. Nonetheless, reversal is not warranted unless the error, read in context of the jury charge in its entirety, would have prejudiced Preservation Society. See Schecter v. Watkins, 395 Pa.Super. 363, 374-75, 577 A.2d 585, 590-91 (court will not reverse on basis of isolated inaccuracies if jury charge as whole is not erroneous and did not prejudice complaining party), appeal denied, 526 Pa. 638, 584 A.2d 320 (1990). Here, we find that there was a strong possibility that this inaccuracy could have prejudiced the jury’s verdict. First, the trial court repeated three times its incorrect statement that the overgrown weeds were sufficient to constitute abandonment. This repetition served to emphasize the misstatement of the law to the jury. Furthermore, we cannot say that the jury would have found the second prong of the abandonment test to have been satisfied if it had not been incorrectly instructed on this factor. Accordingly, the court committed reversible error and thus, a new trial must be ordered.

V.

Lastly, Preservation Society contends that trial court mischaracterized the interest embodied in M & P’s right of way and thus, applied incorrect standards governing abandonment. However, Preservation Society did not raise this issue in its post-trial motions. Thus, it is waived, and we cannot consider it on appellate review. See Bryant v. Girard Bank, supra.

For the aforementioned reasons, we reverse judgment and order a new trial.

Reversed; new trial ordered. Jurisdiction relinquished.

      . Although we ultimately reverse on Preservation Society’s jury instruction issue, we must address Preservation Society’s two contentions that have been preserved for review because if there is merit to those issues, the required relief would be greater than that called for as a result of the jury instruction error.

      . M & P is not a party to the instant action.

      . Application to the ICC was necessary because the railroad crossed the Maryland state line.

      . Preservation Society applied for and received permission from the PUC to abandon the line approximately one year after the instant complaint was instituted. Although M & Fs application exempted the disputed portion of land, because it had conveyed its interest in that land to Preservation Society, that exemption does not affect our result, in light of our conclusion that M & P could lawfully abandon its interest before it received PUC permission, and, thus, that the jury verdict that M & P had no interest to convey at the time it quitclaimed its interest in the right of way to Preservation Society was correct.

      . In light of our ruling as to this issue, we need not address Preservation Society’s remaining allegations of error with respect to the jury instructions.