text:
    559 A.2d 555
    Debra ULLOM, Appellant, v. Roland Garth ULLOM, Appellee. Debra ULLOM, Appellee, v. Roland Garth ULLOM, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 81, 1989.
    Filed May 26, 1989.

      Lori K. Serratelli, Harrisburg, for appellant in No. 464 and appellee in No. 494.
    Paul R. Wagner, Harrisburg, for appellee in No. 464 and appellant in No. 494.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

The principal issue in these cross-appeals from an order of equitable distribution is whether “good will,” found by the hearing court to be an asset of a closely held corporation, can be excluded from marital property by the court in equitably distributing shares of stock in that corporation.

Debra Ullom and R. Garth Ullom were married on November 26, 1977. From 1972 until the present, and throughout the marriage, husband was employed at Cumberland Valley BMW, Inc., a closely held corporation of which husband’s father is president and the majority shareholder. The corporation is a car dealership, engaged in the business of selling BMW and Subaru automobiles. Husband is currently vice president of the corporation, earning approximately $60,000.00 per year in that capacity and also from his earnings as a professional race car driver. Husband is the holder of fifty (50) of the 410 outstanding shares of the corporation’s stock. Wife is a graduate of Cornell University, and during the marriage was employed full-time at Cumberland Valley BMW, Inc., earning a salary of $20,000.00 per year. During the marriage, the parties acquired a one-fourth interest in a travel agency business, First World Management of Pennsylvania, which they began with three other couples and where wife currently is employed, earning approximately $9,000.00 per year. No children were born of the marriage. The parties were divorced in a bifurcated proceeding on February 19, 1988. The matter of equitable distribution of the parties’ marital assets was referred to a master, who held a full hearing and filed his recommendations on November 10, 1987.

At the hearing before the master, wife presented the report and testimony of William Boles, CPA, which placed a value of $147,150.00 upon the husband’s shares of Cumberland Valley BMW, Inc. This sum he arrived at by applying a capitalized earning method and an industry average operator’s margin method. He testified that he capitalized the corporation’s excess earnings at ten (10%) percent to estimate a good will value of $1,295,130.00 and placed an overall value of the corporation’s stock at $1,609,428.00. He then discounted the stock by 12.5% because of its lack of marketability and further discounted husband’s minority shares by 12.5%, arriving at the conclusion that husband’s shares had a market value totalling $147,150.00. Husband’s expert witness, Michael Menear, a CPA and accountant for the corporation, valued the entire corporation at its book value of $355,583.00. He testified that the stock should be valued under the stock purchase agreement at the price at which husband had purchased the shares plus a seven (7%) percent incremental increase per annum. He also valued the stock using an industry average return on tangible assets of 15.7%, a capitalization rate of 15% and a discount factor for husband’s minority interest of 50%. By averaging these two methods, husband’s expert witness arrived at the value of husband’s stock as $21,000.00. This valuation did not include good will as an asset in evaluating the corporation or in valuing the stock. The master accepted the value placed on the stock by wife’s expert and determined that the stock should be distributed between the parties at a value of $147,150.00. Husband filed exceptions to the master’s recommendations, and the hearing court altered the distribution suggested by the master. It entered the equitable distribution order from which both husband and wife have appealed.

The hearing court valued the marital estate at $102,-462.00 and made the following distribution of property in kind to the parties:

To wife:

First World Management of Pennsylvania stock $20,000.00

Farmers Trust Company bank account 2,000.00

BMW automobile 10,000.00

Personal property in the residence 18,000.00

$50,700.00

To husband:

Cumberland Valley BMW, Inc. stock $32,523.00

Commonwealth National Bank account 5,039.00

BMW automobile 9,000.00

Shelby automobile 5,200.00

$51,762.00

In order to effect a division of property of sixty-five (65%) percent to wife and thirty-five (35%) percent to husband, the court ordered husband to make an additional payment of $15,900.30 to wife.

The principal issue raised by wife on appeal is whether the court erred in its distribution of the fifty shares of stock of Cumberland Valley BMW, Inc. Wife argues that the court acknowledged that good will is a corporate asset to be included in the valuation of a corporation, but incorrectly excluded that asset in distributing the marital property. Wife also raises other issues regarding the valuation of personal property, as well as the court’s denial of her request for alimony, counsel fees and costs. Wife concedes, however, that these additional issues have been raised only to balance the distribution should good will be excluded from the distributed assets. Because of our disposition of the wife’s first issue, we need not discuss her remaining issues at length. Husband, on cross-appeal, challenges the trial court’s determination that the stock of Cumberland Valley BMW, Inc. was marital property, arguing that he obtained the stock prior to the marriage and that, therefore, it should have been excluded from the distribution of marital assets.

On appeal from an order of equitable distribution, this Court’s scope of review is limited to a determination of whether the hearing court abused its discretion. Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986); LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), appeal denied, 514 Pa. 648, 524 A.2d 494 (1987). We are bound by all findings of fact made by the court which are supported by evidence of record. Therefore, only unsupported findings or erroneous applications of the law will justify reversal of an equitable distribution order by this Court. Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987), appeal denied, 516 Pa. 638, 538 A.2d 92. “[A]n 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.” Id., 360 Pa.Superior Ct. at 106, 519 A.2d at 1014, quoting Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985).

First, we must address whether the hearing court erroneously included the stock of Cumberland Valley BMW, Inc. in the marital assets. Husband argues that one month prior to his marriage he contracted to buy this stock and obtained a loan from his father to do so. The hearing court found, however, that the corporation had merely entered into a stock\ purchase agreement with husband on that date which allowed him thereafter to purchase fifty shares of stock at $200.00 each, a total of $10,000.00. The court further found that marital funds had been used to pay for the subsequent purchase of the stock. After the final payment was made, the corporation issued a stock certificate to husband on February 27,1980. The court concluded that the stock was an asset which had been acquired during marriage and that it was, therefore, marital property. This finding is amply supported by the evidence. The “[t]ime of acquisition is the factor that the legislature mandates the courts use in determining whether property is a marital asset.” Anthony v. Anthony, 355 Pa.Super. 589, 594, 514 A.2d 91, 93 (1986). Clearly, in this case, although the agreement to purchase the stocks was entered by husband one month prior to the marriage, the stocks were not acquired in fact until they had been paid for in full and a stock certificate had been issued. Both of these events occurred after the marriage had taken place.

Husband also contests the hearing court’s determination that the restriction on the stock did not set its value. The restriction provided:

The stock so sold shall be restricted so that it cannot be transferred to a third party without first offering it to the Corporation. Additionally, the Corporation will be obligated to repurchase the shares upon termination of employment of any of the aforesaid employees for a price equal to their cost plus an increment of 7% per annum.

The court found that this provision did not limit the value of the stock but only required the seller to offer the shares to the corporation. The evidence supports the court’s interpretation that if the corporation was unwilling to pay the seller’s asking price, the seller was free to sell to another buyer.

The next issue presents a more difficult problem. The hearing court, in rejecting the master’s recommendation to distribute the stock at a value which included good will, cited Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986), appeal denied, 516 Pa. 631, 533 A.2d 90 (1987), in which the Superior Court had held that good will was not an element in the valuation of the solo practice of an attorney. However, the Court there did “not ... say that good will expressed as a share of a partnership or professional corporation, with an ascertainable value which can be purchased or transferred, is to be excluded.” Id., 359 Pa.Superior Ct. at 42 n. 4, 518 A.2d at 556 n. 4. The hearing court, recognizing the distinction between the instant case and the facts in Beasley, stated:

On the facts of the case sub judice we are satisfied that the formula used to estimate the value of the goodwill of Cumberland Valley BMW, Inc., as set by wife’s accountant is not subject to an automatic exclusion for equitable distribution purposes. The question now becomes whether that estimated amount of goodwill should be utilized on the facts of this case for equitable distribution purposes. That requires an analysis of the factors we must consider in dividing marital property under Section 401(d) of the Divorce Code.

The court then proceeded to analyze the factors involved in this case, including the relative ages, education, incomes, and potential incomes of the parties, and determined that good will should not be considered as a factor for distribution purposes. This, we hold, was error.

Although the Pennsylvania courts have not ruled on the specific issue presented in the instant case, some guidance has been offered in similar situations. Good will has been defined as “the favor which the management of a business has won from the public, and probability that old customers will continue their patronage.” White v. Rairdon, 52 D. & C. 558, 559 (Delaware County 1944). In Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988), the Superior Court held that good will was a factor in valuing an architectural partnership for the purpose of equitable distribution. In Beasley v. Beasley, supra, although the Court determined that good will was not a factor in placing a value on a lawyer’s solo practice, it stated: “It would appear to be incontrovertible that good will is a valuable asset and in proper context must be considered in valuation of a property.” Id., 359 Pa.Superior Ct. at 35, 518 A.2d at 552. Courts of other jurisdictions have held good will to be an asset of a closely held corporation for the purpose of valuing its shares of stock for equitable distribution. See: Locklear v. Locklear, 92 N.C.App. 299, 374 S.E.2d 406 (1988) (hearing court correctly recognized good will as asset of closely held corporation but erred by failing to place value thereon for purpose of equitable distribution). See also: In re Marriage of Brooks, 742 S.W.2d 585 (Mo.App.1987) (describing methods for valuing good will of closely held corporation for marital distribution); Patton v. Patton, 318 N.C. 404, 348 S.E.2d 593 (1986) (hearing court must make specific findings as to value of closely held corporation, including value of good will, for equitable distribution). In keeping with the role of good will and the rationale advanced by the decided cases, it appears that the trial court erred when it refused to include existing good will in determining the value of husband’s interest in the corporation.

Good will is property of an intangible nature and constitutes a valuable asset of the business of which it is part, unless in the particular instance it is of too uncertain and contingent a nature to be appraised. Often a large portion of the intrinsic marketable or assessable value of a business consists of its good will. However, good will cannot be separated from the business in which it inheres, nor can it be disposed of independently from the business. It has no existence as property in and of itself, as a separate and distinct entity, but only as an incident of a continuing business having locality or name.

38 Am.Jur.2d Good Will § 3. Good will is a corporate asset and may not be separated from the other assets nor ignored in determining the value of a corporate business. See: Buckl v. Buckl, supra.

After the court had found good will to be a corporate asset, it was improper to exclude it in determining the value of the assets available for distribution. The factors considered by the court under § 401(d) of the Divorce Code are intended to provide guidance in equitably distributing the assets accumulated during the marriage; they may not be used to exclude assets from the pool of marital property. When the court found that the valuation of the corporation included a value for good will, it erred in accepting the reduced “book value” for the purpose of valuing the stock for distribution. We must therefore reverse and remand for a redetermination of the value of husband’s interest in Cumberland Valley BMW, Inc.

Whether to award alimony, counsel fees and costs to a party in a divorce action is within the sound discretion of the hearing court, whose decision will not be reversed absent an abuse of discretion. Mazzei v. Mazzei, 331 Pa.Super. 432, 480 A.2d 1111 (1984); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). That determination must be based on the financial circumstances of the parties, including the amount each will receive after distribution of the marital property. Fitzpatrick v. Fitzpatrick, 377 Pa. Super. 268, 547 A.2d 362 (1988); Braderman v. Braderman, supra; Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). In the instant case, the court determined that the distribution of assets was sufficient to allow wife to bear her own attorney’s fees and costs and that her education and talents made alimony unnecessary. This was not an abuse of discretion. Moreover, because we have held that the hearing court erred in excluding a valuable corporate asset when appraising the marital property, on remand wife’s portion of the distribution will in all probability increase. Therefore, we find no error in the trial court’s denial of wife’s request for alimony, counsel fees and costs.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . After determining that no estimated good will value of the stock would be distributed to wife, the court valued the shares at the book value reduced by 25% for husband’s minority interest and the lack of marketability of the shares as part of a close corporation. The court concluded that the total value of the husband’s fifty shares equalled $32,523.00.

      . Wife states that the court erred in valuing personal property distributed to her at §18,000.00 without adjusting for depreciation. However, prior to the master’s hearing, the parties stipulated to the value of the personal property at this figure. Wife cannot now retract that stipulation on appeal.

      . Husband relies on Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986), appeal denied, 515 Pa. 598, 528 A.2d 955 (1987), for the proposition that the hearing court is free to use the book value as a basis upon which to determine the value of the asset subject to equitable distribution. In Campbell, however, the hearing court determined, based on evidence of record, that the good will was not an asset of the corporation in question. The situation in the instant case is distinguishable. Here, the court found that good will was an asset, but chose to exclude it in distributing the marital property.

      . Act of April 2, 1980, P.L. 63, No. 26, § 101, 23 P.S. § 101, et seq.

      . The trial court stated in a footnote that wife’s expert had failed to testify that his estimated value of good will was based on generally accepted accounting principles. The court also later referred to the good will value as "speculative.” However, the hearing court determined that because it excluded good will on the facts of the case, the accuracy of the expert’s valuation did not need to be further explored. Because we reverse the hearing court’s basis for its distribution, we are unable to determine what good will value, if any, would have been accepted by the hearing court.

      . 23 P.S. § 501.

      . 23 P.S. § 502.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    559 A.2d 560
    R.P. CLARKE PERSONNEL, INC. v. COMMONWEALTH NATIONAL BANK, Appellant. R.P. CLARKE PERSONNEL, INC., Appellant, v. COMMONWEALTH NATIONAL BANK.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1989.
    Filed May 23, 1989.

      John S. Feinour, Harrisburg, for appellant (at 554) and appellee (at 561).
    Marvin Beshore, Harrisburg, for appellee (at 554) and appellant (at 561).
    Before WIEAND, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Commonwealth National Bank, situate in York, Pennsylvania, and now an affiliate of Mellon Bank, N.A. (appellant), appeals from the judgment entered by the Court of Common Pleas of Dauphin County on July 14,1988, awarding an employment referral commission to R.P. Clarke Personnel, Inc., t/a Career Bankers, appellee.

Appellant argues that the trial court erred by not directing a verdict in its favor since there was no evidence to support the alleged referral contract entitling appellee to a fee, by refusing to instruct the jury that the employment agency must be the predominant “efficient procuring cause” for hiring the job applicant in order to be entitled to receive a fee, and by admitting irrelevant and self-serving business records of appellee. Appellant also argues that the trial court improperly permitted appellee to amend its complaint to conform to the evidence introduced at trial. We find no merit in any of appellant’s arguments and, accordingly, affirm.

The facts adduced at trial are as follows. In late 1983, appellant, due to its poor earnings and the consequent diminished possibilities for bonuses and security in employment, had difficulty obtaining a senior lender. Appellee, which specialized in banking placements, previously had solicited appellant for information about its job openings and had attempted to find suitable applicants whose backgrounds met appellant’s requirements. At least one of appellee’s referrals was hired for trust work and resulted in the payment of a referral fee. In 1983 or early 1984, appellant informed appellee of its need for a senior lender. Consequently, appellee submitted several resumes.

In January, 1984, Timothy Price, a senior loan officer for an Indiana bank, wanted to return to the eastern United States for personal reasons. He simultaneously sent his resume and an introductory letter to several employment agencies that he knew, including appellee. Appellee acknowledged receipt of his resume and screened it. R. Peter Clarke, appellee’s president, immediately called Mr. Price and informed him about a job opening with an anonymous bank and requested permission to submit his resume. Mr. Price assented, and appellant submitted his resume, slightly altered, along with a cover letter outlining its customary fee requirements to appellant on February 2, 1984.

Several weeks later, Mr. Clarke called appellant’s personnel manager, Craig Hill, to question him about Mr. Price’s resume. Mr. Hill acknowledged receipt of the resume and asked to interview Mr. Price over the telephone on March 16,1984. Mr. Clarke then called Mr. Price and urged him to telephone Commonwealth National Bank on March 16,1984, providing him with Mr. Hill’s name and telephone number. Subsequently, Mr. Clarke confirmed with Mr. Hill that Mr. Price would call him on March 16. Mr. Hill customarily conducted telephone interviews before arranging a personal interview. Mr. Price did telephone Mr. Hill on March 16, 1984, but Mr. Hill was unavailable.

Prior to these events, on December 21, 1983, appellant had signed an employment search agreement with R.J. Evans Agency. This agreement entitled R.J. Evans to an exclusive right to present qualified candidates for sixty days in consideration for its best efforts to locate and present three qualified candidates for each job opening. R.J. Evans was entitled to a $3,000 commission upon presenting three candidates considered by appellant as qualified, regardless whether any one of them was hired. Appellee was never informed of R.J. Evans’s exclusive contract with appellant.

R.J. Evans also had Mr. Price’s resume and submitted it to appellant. R.J. Evans contacted Mr. Price by telephone after Mr. Clarke contacted R.J. Evans about the opening. Mr. Price informed R.J. Evans that Mr. Clarke had already spoken to him about the job opportunity with appellant, but that he had not yet been interviewed. At this point, appellant realized that both appellee and R.J. Evans were recruiting the same individual, and appellant ceased returning appellee’s telephone calls. In addition, Mr. Price informed appellee that another agency was recruiting him for the position with appellant.

Subsequently, R.J. Evans set up a series of interviews for Mr. Price and made considerable effort to convince both Mr. Price and his wife of the merits of the York, Pennsylvania area and the terms offered by appellant. Mr. Price accepted the position in May, 1984.

At trial, appellee argued that appellant’s actions after March 16, 1984, prevented appellee from recruiting Mr. Price, even though it attempted to make further efforts at recruitment. Mr. Hill refused to return appellee’s telephone calls.

Following a jury verdict in favor of appellee, appellant filed timely motions for post-trial relief. Appellee also filed a cross-motion for post-trial relief. Pursuant to a stipulation by the parties, the trial court entered an order enlarging the record to include the requested charges by both parties, their objections, and the court’s rulings on them. Post-trial motions were denied, judgment was entered, and this appeal and cross-appeal followed.

Appellant initially argues that the case should not have been submitted to the jury since there was no evidence to support the allegation that it entered into a referral contract entitling appellee to a fee for placing Mr. Price. At most, appellant continues, an initial contact was requested, but this contact was not made and an interview was never scheduled through appellee agency. Appellant insists that R.J. Evans Agency did all the work to bring the parties together and is entitled to the referral fee. It argues that mere negotiations by a broker that do not result in bringing parties together do not entitle the broker to a commission. See Christo v. Ramada Inns, Inc., 609 F.2d 1058 (3rd Cir.1979).

Appellant further argues that, as a matter of law, only one employment agency can be the efficient procuring cause of an employment transaction, and appellant can owe only one fee. See Earp v. Cummins, 54 Pa. 394, 93 A.M.Dec. 718 (1867). Consequently, appellant maintains that appellee’s efforts to refer Mr. Price did not legally entitle the agency to a fee, since R.J. Evans Agency is entitled to the fee.

As to the first allegation, we concur with the trial court’s determination that there was evidence from which the jury could conclude that appellant and appellee entered into a referral fee contract prior to any efforts by R.J. Evans Agency. Appellee's letter transmitting Mr. Price’s resume included specific terms evidencing a referral contract. These specifics included a referral fee of twenty-five percent of Mr. Price’s annual earnings, a refund if the applicant were terminated within sixty days, and submission of an invoice for payment within fifteen days if the candidate were hired. Furthermore, appellee presented evidence that prior dealings had created the understanding between the parties that, once an initial interview was solicited, appellee would undertake reasonable and necessary steps requested by appellant to present the candidate for employment and earn the contingent fee if the applicant were hired. Custom dictated that employment firms would take additional steps only at an employer’s direction.

In Correll v. Werner, 293 Pa.Super. 88, 437 A.2d 1004 (1981), we stated: “In our Commonwealth, it has long been held only in a case where the facts are all clear, and there is no room for doubt, should the case be removed from the jury’s consideration, and a motion for a directed verdict or binding instructions be granted.” Id., 293 Pa.Superior Ct. at 90, 437 A.2d at 1005 (citations omitted). “The question is not what inferences we could draw from the evidence, but whether there was evidence from which the trial court could infer liability.” Colish v. Goldstein, 196 Pa.Super. 188, 193, 173 A.2d 749, 751 (1961).

Appellee established at trial the terms of its offer and appellant’s admission that it directed appellee to take steps to set up a telephone interview. Further, appellee established from prior dealings and industry custom that oral contracts were the norm and that it was understood that once a candidate was presented, the employment firm was entitled to its fee if the candidate were hired. The employment firm was expected to take further actions after the referral only if requested to do so. Therefore, we conclude that the trial court correctly determined that appellee established a sufficient factual basis upon which the jury could conclude that the parties entered into a contract and properly denied appellant’s motion for a directed verdict.

Appellant’s second argument is that the trial court erred by refusing to instruct the jury that it must first find that appellee was the predominant “efficient procuring cause” of the employment in order to award appellee a fee. Appellant relies upon Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962), and Seligson v. Young, 189 Pa.Super. 510, 151 A.2d 792 (1959), where it was held that a real estate broker who does not contribute to bringing the parties together cannot recover a commission. Appellant argues that we should follow the legal requirement adopted in other states that a competing employment agency without an exclusive contract must meet the initial requirement of not only being an efficient procuring cause, but also being the predominant efficient procuring cause, in order to obtain a fee. See Nicastro Assoc., Inc. v. C.F. Wooding Co., 5 Conn.App. 244, 497 A.2d 1020 (1985) (employment agency not entitled to a fee where it only referred the individual who was ultimately hired, since the employee also came from an independent source); Scheff v. Robertson Paper Box Co., 39 Conn.Sup. 135, 471 A.2d 991 (1983) (referral led to interview and employment, but no fee was earned since resume was already in company’s files; therefore, referral was not the ultimate, efficient procuring cause of employment).

In Pennsylvania, the law is that a non-exclusive real estate broker must establish that it was an efficient procuring cause for consummating the transaction. We do not reject the analogy under Pennsylvania law between real estate contracts and employment referral contracts. However, we do reject appellant’s argument that, as a matter of law, it cannot be bound by two employment referral contracts. By analogy, we note that if a real estate seller signed two concurrent brokerage contracts and a buyer were produced during the term of both, a commission would be due under the terms of each contract.

In Pennsylvania, unlike Connecticut, there is no requirement that before a non-exclusive broker can recover, it must establish it was the ultimate or predominant efficient procuring cause. However, the insertion of such a special requirement by the parties would be permissible. In the cases relied upon by appellant, the issue of whether those special types of terms were part of the contract was a question of fact for the jury. See Axilbund v. McAllister, supra (“special” price terms were a requirement for a bonafide prospective purchaser and whether such a requirement existed in the contract was a question of fact); Helmig v. Rockwell Mfg. Co., 380 Pa. 305, 111 A.2d 118 (1955) (broker obtained steel ingots but did not satisfy the second requirement of obtaining mill time to make the ingots into sheets); Groskin v. Moore, 249 Pa. 242, 94 A. 1057 (1915) (broker required to sell the property and not just produce an able and willing buyer). Instantly, however, such a term was not included in the contract.

Appellant never disputed that appellee referred Mr. Price to appellant first and, thus, was a factor in procuring Mr. Price’s employment. Appellee simply was not the sole cause for his employment. Appellant wishes to rely upon requirements of other jurisdictions to insert a special condition, i.e., that appellee must be the predominant cause of the employment relationship, in this contract. Its argument is that it legally can be required to pay only one fee. We disagree and decline to insert such a condition as a matter of law when there is no question that the parties did not insert such a special requirement in their fee arrangement.

Furthermore, even under the Connecticut authority, we find no basis for the jury instruction in this case. We agree with appellee that appellant’s actions prevented it from being the efficient procuring cause of Mr. Price’s employment. After appellant realized that Mr. Price was being recruited by both firms, it refused to deal with appellee by not returning appellee’s telephone calls. Appellant was attempting to avoid its obligation to appellee by dealing only with R.J. Evans, even though appellee arranged the initial contact between the parties. Accordingly, there was no basis for giving the requested instruction under these facts.

We concur with the reasoning of Leach v. Brothers, 44 Pa. D. & C. 438 (1942), which involved similar facts. In Leach, the court stated, “[I]f the first broker has found a prospective purchaser and is in the midst of negotiations he may not be deprived of his commission by consummation through another broker, even for a price less than that the first broker was empowered to accept.” Id. at 442. Instantly, appellee referred a suitable candidate as requested but was prevented from completing the contract.

Similarly, we are not persuaded by appellant’s argument that 43 P.S. § 574(m), and 34 Pa.Code § 9.51 provide that only one placement fee can be earned between competing brokers and that the fee is earned by the broker whose professional effort resulted in the placement of the applicant. These statutory and regulatory provisions were intended to protect job seekers from unlawful practices and are not applicable to employers by their terms.

Appellant’s third contention is that the trial court committed prejudicial error by admitting irrelevant and self-serving business records of appellee. The Business Records as Evidence Act, 42 Pa.C.S. § 6108(b), provides in pertinent part:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time, act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

Appellant argues that the records introduced by appellee were marked by individuals other than Mr. Clarke, who was the only one who testified, and therefore no adequate foundation was laid for their admission into evidence. Appellant also argues that the introduction of these records was prejudicial since they were self-serving and concerned transactions independent from, and irrelevant to, Price’s application.

In Ganster v. Western Pa. Water Co., 349 Pa.Super 561, 504 A.2d 186 (1985), we stated:

[I]t is essential that no lack of trustworthiness appear in the source of information or the method or circumstances of preparation. The factors to be weighed include whether there was either motive or opportunity to prepare an inaccurate record, the period of delay prior to preparation of the record, the nature of the information recorded, the systematic checking, whether there was regularity and continuity in maintaining the records and whether the business relied on them. “In the case of records kept in the regular course of business the circumstantial guarantee of trustworthiness arises from the regularity with which they are kept.” Fauceglia v. Harry, [409 Pa. 155, 160, 185 A.2d 598, 601 (1962)].

Id. 349 Pa.Super. 561, 568, 504 A.2d at 190.

Instantly, the disputed records include Sprint telephone logs, appellee’s notes and records concerning Mr. Price, the contemporaneous hiring by appellant of another individual referred by appellee, and the final letter to Mr. Price setting forth the employment terms. The trial court determined that these records were kept in the ordinary course of business, were not specially prepared or untrustworthy, and were relevant to establish the customary course of conduct between these parties in a referral. It also found that these records were relevant to establish the ultimate remuneration terms offered to Mr. Price and therefore the commission owed to appellee, if any.

An evidentiary ruling constitutes reversible error only if appellant establishes that it was error to admit the challenged evidence and that prejudice resulted. Bessemer Stores Inc. v. Reed Shaw Stenhouse Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985). These records were material to the issue of whether there was any understanding between the parties regarding the terms of any job referral and to the determination of appellee’s efforts to refer Mr. Price. The testimony about these records indicated that they were made in the ordinary course of business. The letter of employment concerned the salary and benefits offered to Mr. Price, and thus the amount of any commission owed to appellee. All were material to the factual determination of the course of conduct by the parties and damages. We find that the trial court correctly concluded that this evidence was trustworthy and relevant.

The final argument raised by appellant is that the trial court erred in allowing appellee to conform its pleading to assert that it was owed a percentage of Mr. Price’s salary and benefits, which would yield a greater sum than the percentage of base salary that appellee originally pleaded in its complaint. Appellant claims that appellee’s motion was untimely and prejudicial since appellant was surprised and unexpectedly forced to defend a new issue.

The dispute whether appellee’s fee, stated as a percentage of annual compensation, was determined from base salary only, or included guaranteed bonus and fringe benefits, was a factual issue that arose at trial. Pa.R.Civ.P.1033 provides that an amendment to pleadings may be made at any time with filed consent of the parties or by leave of the court, including conforming the pleadings to the evidence introduced at trial.

Instantly, the trial court found that the amendments did not prejudice appellant since the validity of the referral contract and the consequent fee were the central factual issues of the case. Appellant clearly was on notice that both facts were in dispute. Appellee was not amending its claim to include a new cause of action or a new legal theory for recovery which surprised appellant or deprived it of a defense. Appellee only raised a new factual issue concerning determination of the amount of damages. Amendment of the ad damnum clause is permitted at any point in litigation. Sullivan v. City of Philadelphia, 314 Pa.Super. 381, 460 A.2d 1191 (1983). Such amendment is not an abuse of discretion. Fudula v. Keystone Wire & Iron Works, Inc., 317 Pa.Super. 526, 464 A.2d 446 (1983).

Appellant’s reliance upon McDermott v. Gekas, 404 Pa. 239, 171 A.2d 754 (1961), and Pa. R.R. v. Pittsburgh, 335 Pa. 449, 6 A.2d 907 (1939), is misplaced. They involved either surprise from a new cause of action or a new wrong pled under the same legal category, and both were decided under stricter pleading requirements. In addition, unreasonable delay alone is not a reason to deny a petition to amend. Carpitella by Carpitella v. Consolidated Rail Corp., 368 Pa.Super. 153, 533 A.2d 762 (1987); Brooks v. McMenamin, 349 Pa.Super. 436, 503 A.2d 446 (1986).

Appellee’s one argument on its cross-appeal is that it is entitled to a percentage of the total value of Mr. Price’s compensation including moving costs, club memberships and other fringe benefits, rather than only the percentage of his base salary and guaranteed bonus awarded by the jury. This was a factual determination made by the jury concerning the intent of the parties to the contract. A finding of fact will not be disturbed on appeal unless unsupported by competent evidence or predicated on errors of law. Eddystone Fire Co. No. 1 v. Continental Ins. Cos., 284 Pa.Super. 260, 425 A.2d 803 (1981). We find the jury’s determination is supported by the record and will not disturb it.

Judgment affirmed.

      . Appellee cross-appealed from a decision regarding calculation of damages. Our discussion of this issue appears at page 535-536, infra.


author: OLSZEWSKI, Judge:

text:
    559 A.2d 566
    Michael I. HINELINE, Appellant, v. STROUDSBURG ELECTRIC SUPPLY COMPANY, INC., and Stephen F. Sullivan and Sidney Friedman, Appellees.
    Superior Court of Pennsylvania.
    Argued April 12, 1989.
    Filed May 30, 1989.

      John B. Dunn, Stroudsburg, for appellant.
    Ronald P. Sweeda, Wilkes-Barre, for Stroudsburg, appellee.
    Gerald J. Geiger, Stroudsburg, for Sullivan, appellee.
    i Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellant, Michael I. Hineline, appeals from an order of the trial court sustaining appellees’ demurrers to four counts contained in appellant’s complaint. This appeal presents the question of whether an at-will employee has raised a cognizable claim for wrongful discharge when he was discharged for dismantling his employer’s allegedly illegal video camera with audio capabilities. We affirm.

From October 1, 1977, to December 17, 1986, appellant was employed by appellee Stroudsburg Electric Supply Company, Inc. (hereinafter “Stroudsburg Electric”). Stroudsburg Electric operated four video cameras with audio capabilities to monitor the activities in its place of business. On December 17, 1986, appellant disconnected the cameras and was subsequently fired as a result by appellee Stephen F. Sullivan (hereinafter “Sullivan”), president of Stroudsburg Electric.

On June 18, 1987, appellant filed suit against appellees. Appellant’s complaint consisted of six counts, summarized as follows: (I) wrongful discharge vs. Stroudsburg Electric and Sullivan; (II) intentional interference with contractual relationship by Sullivan; (III) breach of covenant of good faith and fair dealing by Stroudsburg Electric; (IV) punitive damages vs. Stroudsburg Electric and Sullivan; (V) and (VI) breach of fiduciary duty by Stroudsburg Electric and Sidney Friedman as trustees of appellant’s pension plan. Preliminary objections in the nature of a demurrer were filed by Sullivan on July 13, 1987. The trial court, on December 18, 1987, dismissed Counts I, II, and IV and ordered appellant to plead more specifically as to Count III.

Appellant appealed the trial court’s decision to this Court on December 29, 1987. Following argument on June 9, 1988, this Court, on September 7, 1988, entered an order quashing the appeal as interlocutory on the ground that because the trial court permitted appellant to amend Count III of his complaint, his cause of action for breach of contract remained intact and, therefore, appellant was not out of court. “Thus, it is apparent that the order dismissing appellant’s causes of action for wrongful discharge and intentional interference with contractual relation is interlocutory and, therefore, not appealable as of right.” Hineline v. Stroudsburg Electric Supply Co., No. 42 Philadelphia 1988 (filed September 7, 1988), memorandum at 4, 383 Pa.Super. 671, 550 A.2d 254 (table).

On October 7, 1988, appellant filed a praecipe to withdraw the breach of contract count of the complaint with prejudice. On November 2, 1988, appellant filed another notice of appeal.

Appellant raises one issue for our review: “Whether an at-will employee has stated a legally cognizable claim for wrongful discharge where it is claimed that the termination was due to the employee’s disconnection of the employer’s allegedly illegal electronic surveillance system?” Appellant’s brief at 3. When reviewing an order granting preliminary objections in the nature of a demurrer, our standard of review is as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true [for the purpose of this review]. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Woodward v. Dietrich, 378 Pa.Super. 111, 116, 548 A.2d 301, 303 (1988), quoting Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983).

Appellant avers that “his firing was a violation of public policy and conduct which gives cause to a claim for wrongful discharge” because he was an at-will employee fired for disengaging illegally employed surveillance equipment. Appellant’s brief at 8. In resolving this matter, we will adhere to the following guidelines:

Historically, Pennsylvania has recognized an employer’s unfettered right to discharge an at-will employee for any or no reason in the absence of a contractual or statutory prohibition. Henry v. Pittsburgh and Lake Erie Railroad Company, 139 Pa. 289, 21 A. 157 (1891). That right has been tempered with the emergence of the common law doctrine of wrongful dismissal whereby an employee may premise a cause of action on either tort or contract principles. H. Perritt, Employee Dismissal Law and Practice (1984)____ [Because appellant was clearly an at-will employee], the only issue before this Court is whether appellee’s discharge falls within the limited exception that has emerged in this State allowing recovery for a termination of employment that has violated a significant and recognized public policy. Novosel v. Nationwide Insurance Company, 721 F.2d 894 (3rd Cir. 1983).

Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 53, 505 A.2d 259, 260 (1985).

The extent to which public policy limits an employer’s control over his business must be determined on a case by case basis. Id., citing Yaindl v. Ingersoll Rand Company, 281 Pa.Super. 560, 572, 422 A.2d 611, 617 (1980). An essential element in permitting a cause of action for wrongful discharge is a finding of a violation of a clearly defined mandate of public policy which “strikes at the heart of a citizen’s social right, duties, and responsibilities.” Turner, supra, 351 Pa.Super., at 55, 505 A.2d at 261, quoting Novosel, supra, at 899. The public policy exception is a narrow one. Marsh v. Boyle, 366 Pa.Super. 1, 7-9, 530 A.2d 491, 495 (1987), citing Householder v. Kensington Mfg. Co., 360 Pa.Super. 290, 520 A.2d 461, 464 (1987). In fact, this Court has recognized a public policy exception in only two published cases since the exception was first recognized in Geary v. United States, 456 Pa. 171, 319 A.2d 174 (1974):

In Hunter v. Port Authority, 277 Pa.Super. 4, 419 A.2d 631 (1980), we held that an employee convicted of assault and pardoned by the governor had made out a cause of action in wrongful discharge although he was an at-will employee. This court held that there was an established public policy against stigmatizing former offenders. Id. at 11, 419 A.2d 635. In Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978), we again found that the employee had made out a cause of action in wrongful discharge. In that case, the employee was discharged either because he failed to inform his employer that he would be absent due to jury duty, or because he had jury duty. We held that under the second theory, damages would be recoverable because of the strong public policy of promoting the responsibility of performing jury duty. Id. at 33-34, 386 A.2d at 121.

Paul v. Lankenau Hospital, 375 Pa.Super. 1, 14-15, 543 A.2d 1148, 1155 (1988).

By comparison, this Court has refused to find that a public policy violation exists where an employee was discharged after complaining about the financially wasteful manner in which his department was run, Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985); where an employee was discharged for actively seeking a position with a competitor, McCartney v. Meadowview Manor, Inc., 353 Pa.Super. 34, 36-37, 508 A.2d 1254, 1255 (1986); where relations with those under the employee’s supervision had deteriorated irretrievably, Turner, supra; where an employee was discharged even though he had done the job well, Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280 (1986); where false accusations of criminal behavior led to discharge, Gillespie v. St. Joseph’s Univ., 355 Pa.Super. 362, 513 A.2d 471 (1986); where an employee claimed that every person had a right to earn a living in a job that he chooses, Marsh, supra; where a college president was discharged for insisting on a publicly conducted investigation of illegal activities of member of the Board and a dean of the College, Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 539 A.2d 1298 (1988).

Instantly, appellant asserts that appellees violated public policy by dismissing him for disengaging allegedly illegal surveillance equipment. The record reflects, however, that appellant had no authority nor statutory right to disengage the surveillance system installed by his employer. While we acknowledge that there is potential for abuse of an employer’s power of dismissal where an employee must exercise independent judgment in matters of employee relations, appellant was not that sort of employee. See e.g., Geary, supra, 456 Pa. at 180, 319 A.2d at 178. Therefore, appellant is arguing, in essence: (1) that his conduct should be be protected because his intentions were good, Id., 456 Pa. at 180, 319 A.2d at 179; and (2) that he was attempting to prevent an illegal act by his employer. Rinehimer, supra, 372 Pa.Super. at 490-91, 539 A.2d at 1303.

We find, however, no violation of a clearly defined mandate of public policy that “strikes at the heart” of appellant’s social right, duties or responsibilities. In fact, there is strong public policy against self-help or taking the law into one’s own hands. As our Supreme Court declared in Commonwealth v. Sleighter, 495 Pa. 262, 265-67, 433 A.2d 469, 471 (1981):

[i]n these days when crime is rampant and disobedience and defiance of Law and Order are so widespread, it would be folly to permit a person who has an adequate remedy at law to take the law into his own hands____ No matter how worthy ... any person’s objective may be, Law and Order must be preserved.

Id., quoting Commonwealth v. English, 446 Pa. 161, 279 A.2d 4 (1971). See, e.g., Jones v. City of Pittsburgh, Department of Fire, 505 Pa. 25, 476 A.2d 895 (1984) (Possible need of self-defense did not justify conduct of taking law into own hands simply because individual wished to right what he “apparently considered a grievous personal wrong.”); Fatemi v. Fatemi, 371 Pa.Super. 101, 119, 537 A.2d 840, 849 (1988) (Tamilia, J., concurring) (to experience benefits of our society, husband in a custody action must repudiate self-help approach and accede to reasonable and acceptable standards of conduct).

In the instant case, appellant has offered no excuse for failing to follow proper concepts of law and order, such as contacting law enforcement authorities or filing a private complaint, to curtail his employer’s alleged criminal behavior. Moreover, the circumstances do not suggest that appellant’s life was in jeopardy or that appellant was preventing a violent felony from taking place such that his failure to seek remedy at law would be excused. Commonwealth v. Harris, 444 Pa. 515, 281 A.2d 879 (1971). We, therefore, find no compelling public policy that justifies appellant’s behavior and would support appellant’s action for wrongful discharge.

Accordingly, we affirm the order of the trial court dismissing Counts I, II, and IV of appellant’s complaint.

      . We find that appellant’s appeal is no longer interlocutory. "When an Order so restricts the pleader as to virtually put him out of court on the cause of action he seeks to litigate, it is a final appealable Order.” Barr v. General Accident Group Ins. Co., 360 Pa.Super. 334, 344, 520 A.2d 485, 490 (1987). With the withdrawal of appellant’s breach of contract cause of action, the only remaining cause of action is his claim of breach of fiduciary duty by appellees regarding his pension fund. We find this cause of action to be separate and distinct from the wrongful discharge and intentional interference with contractual relation causes of action. Therefore, the order dismissing the latter causes of action is appealable. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

      . Specifically, appellant asserts that appellees were violating 18 Pa.C. S.A. § 5703(1) by the “secretive taping of a customer’s or an employee’s conversation in a retail establishment____” Appellant’s brief at 14. Appellant, however, has offered no interpretive case law to support his contention that the actions of appellees fit within the meaning of the statute. In any event, in light of the discussion infra, we need not reach this question.
      We note that this issue appears to be a novel one in this Commonwealth. We find, however, that whether or not the Wiretap Act applies to situations such as the instant one is a matter properly left to the appropriate authority to decide in an appropriate situation.

      . Pa.R.Crim.P. 133 provides that a person who is not a police officer may file misdemeanor charges against another subject to the approval of the appropriate district attorney. See also Commonwealth v. Eisemann, 308 Pa.Super. 16, 453 A.2d 1045 (1982).

      . Appellant did not specifically address the dismissal of counts II and IV on appeal because he determined that ‘‘[i]f the Lower Court was incorrect in it’s ruling on discharging Count I, the wrongful discharge claim, then it was also wrong with respect to the punitive damages claim and the claim for intentional interference with contractual relations as well as the claimed element of damages of loss of career standing and and reputation and emotional distress contained within the wrongful discharge count.” Appellant's brief at 12. Further, appellant concluded that "[tjhose Counts which have been dismissed are either dependent upon or flow from the first and most significant Count, that being a Count for wrongful discharge.” Appellant's brief at 8. Because appellant has not raised the dismissal of Counts II and IV before this Court, we will not address at length the dismissal of these counts. Pa.R.A.P. 2116(a) ("... [N]o point will be considered which is not set forth in the statement of questions involved or suggested thereby.”).


author: ROWLEY, Judge:

text:
    559 A.2d 570
    John OMODIO v. AETNA LIFE AND CASUALTY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1988.
    Filed May 25, 1989.

      Robert C. Little, Pittsburgh, for appellant.
    Edward H. Walter, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

The sole issue presented in this appeal by Aetna Life and Casualty (“Aetna”) is whether a provision in an automobile liability insurance policy issued by Aetna to appellee John Omodio which excludes from first party benefits coverage any bodily injury sustained by “any person ... as a direct result of loading or unloading any motor vehicle” is valid under the terms of sections 1711 and 1712 of the Pennsylvania Motor Vehicle Financial Responsibility Law (“the Financial Responsibility Law”), 75 Pa.C.S. §§ 1711, 1712, which direct insurers to make available for purchase first party benefits “with respect to injury arising out of the maintenance or use of a motor vehicle____” The trial court, concluding that coverage of persons in Omodio’s situation was required by the Financial Responsibility Law, rendered judgment in favor of Omodio and against Aetna in Omodio’s action to recover excess wage loss benefits under the policy. For the reasons set forth below, we affirm th^Tjudgment entered by the trial court.

The facts of the case are as follows: On October 8, 1985, plaintiff/appellee Omodio, acting within the scope of his employment as a truck driver for McKesson Drug Company, sustained an injury to his lower back while standing inside and loading his truck. Omodio submitted a claim for excess wage loss benefits to Aetna. Aetna denied the claim, explaining in a letter to Omodio that it did so in reliance upon the policy’s exclusion from coverage of anyone “sustaining injury as a direct result of loading or unloading any motor vehicle.”

On July 7, 1986, Omodio filed the present action against Aetna to recover excess wage loss benefits. The case was initially heard by a panel of arbitrators, who awarded damages for Omodio and against Aetna in the amount of $15,000, the maximum amount recoverable as excess wage loss benefits under Omodio’s policy. Aetna appealed the arbitrators’ award to the Court of Common Pleas, and the case was submitted to the trial court as a case stated, with the parties reserving the right to appeal. The trial court rendered judgment in favor of Omodio, and this timely appeal followed.

In an opinion dated July 14, 1988, the trial court set forth the reasons for its decision. First, section 1921(c)(5) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c)(5), provides that when the words of a statute are not explicit, the former law on the subject is one of the matters that may be considered in order to ascertain the intent of the legislature. The Financial Responsibility Law does not define “maintenance or use of a motor vehicle,” and therefore, the trial court explained, the courts may look to the definition of the phrase that is contained in the prior statute, the Pennsylvania No-fault Motor Vehicle Insurance Act (“the No-fault Act”), 40 P.S. §§ 1009.101 et seq. That definition is as follows:

“Maintenance or use of a motor vehicle" means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:
(B) conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.

40 P.S. § 1009.103 (repealed) (emphasis in original). Although Omodio sustained injury while loading his vehicle, he was occupying the vehicle at the time and therefore would have been entitled to recover if his suit had been brought under the No-fault Act.

A second element of the trial court’s analysis is the principle “expressio unius est exclusio alterius”: where some things are specifically designated in a statute, things not so designated should be understood as having been excluded. Samilo v. Commonwealth, Department of Insurance, 98 Pa.Cmwlth. 232, 234-35, 510 A.2d 412, 413 (1986). Section 1718 of the Financial Responsibility Law, 75 Pa.C.S. § 1718, specifies the circumstances under which individuals shall be excluded from benefits, and the specified exclusions do not include loading or unloading motor vehicles. Therefore, the trial court reasoned, in light of the maxim just cited, an individual such as Omodio who sustained injury while occupying and loading a motor vehicle cannot lawfully be excluded from coverage.

In addition, the trial court noted, the objectives underlying mandatory automobile insurance coverage and the legislative history of the Financial Responsibility Law suggest that recovery should be allowed in Omodio’s situation. Legislative debate on the Financial Responsibility Law, the trial court observed, “recognize[d] the need for continued coverage of broad scope to assure the financial integrity of policyholders” (Trial Court Opinion at 7). Taking into consideration all of the factors just discussed, the trial court concluded that the policy exclusion upon which Aetna relied in denying benefits to Omodio is “in derogation of applicable law and contrary to the intent of the General Assembly” (Trial Court Opinion at 8).

In the present appeal, Aetna raises two objections to the analysis relied upon by the trial court. Aetna argues, first, that the omission from the Financial Responsibility Law of the “maintenance or use” definition set forth in the former No-fault Act indicates the legislators’ intention not to extend coverage to injuries sustained while loading or unloading a motor vehicle. Aetna’s argument is based on the principle that deletion of statutory language by the legislature renders the language inoperative and indicates a change in legislative intent. Deremer v. Commonwealth, Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 415, 420, 483 A.2d 926, 928 (1981).

As the trial court observes, however, “[t]o the extent that [Aetna’s] assertion recites a rule of black letter law it is correct; but its application is misdirected” (Trial Court Opinion at 4). If the drafters of the Financial Responsibility Law had intended to delete entirely coverage of “conduct in the course of loading or unloading a motor vehicle,” they could have done so clearly and unambiguously by deleting from subsection (B) of the “maintenance or use” definition the phrase “unless the conduct occurs while occupying, entering into, or alighting from it.” The relevant portion of the exclusion would then read: “Maintenance or use of a motor vehicle does not include ... (B) conduct in the course of loading or unloading a motor vehicle.” Instead, the entire definition of “maintenance or use of a motor vehicle” has been deleted. Thus, “[consistent application of the logic [Aetna] espouses would almost certainly exclude from coverage not only those occupying a motor vehicle while loading or unloading pursuant to subsection (B) of the definition in question, but all those ‘occupying, entering into, or alighting from’ any vehicle pursuant to the definition’s main text as the entire definition has now been omitted” (Trial Court Opinion at 4). We agree with the trial court that the legislature cannot have intended such an absurd or unreasonable result. 1 Pa.C.S. § 1922(1); Zimmerman v. O’Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982).

A more reasonable view, suggested not only by the trial court but also by the authors of a treatise on the Financial Responsibility Law, J. Ronca, L. Sloane, & J. Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law § 3.5(b) (1986), is that the omission of the loading/unloading exclusion from the Financial Responsibility Law evidences the legislature’s intent that this class of victims receive coverage. Whether this interpretation is in fact correct, and all persons injured in the course of loading or unloading a motor vehicle — those who were not occupying, entering into, or alighting from the vehicle, as well as those who were — are entitled to coverage under the Financial Responsibility Law, is an issue that we are not called upon to resolve in this appeal, for the parties have stipulated that Omodio was standing inside the vehicle when he sustained injury. We cite this interpretation, which would broaden rather than restrict coverage, simply as further support for our conclusion that the omission of the “maintenance or use” definition from the Financial Responsibility Law should not automatically be taken to indicate legislative disapproval of coverage for persons in Omodio’s situation.

Moreover, in Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 550 A.2d 1346 (1988), this Court was asked to determine whether a bus passenger who was injured when a fight broke out between two other passengers was entitled to recover under the Financial Responsibility Law. After noting that the No-fault Act defined “maintenance or use of a motor vehicle” as “maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it,” and analyzing case law interpreting that definition, the Court concluded that the injury at issue did not arise from “use” of a motor vehicle. In the course of its analysis, the Court specifically noted the provision, in 1 Pa.C.S. § 1921(c)(5), allowing reliance upon former law. 380 Pa.Super. at 33, 550 A.2d at 1349-50.

Accordingly, we conclude that the definition of “maintenance or use of a motor vehicle” set forth in the prior No-fault Act is to be applied in determining whether Aetna is required by the present Financial Responsibility Law to extend coverage to the course of conduct at issue herein. Omodio’s conduct clearly falls within this definition.

Aetna also argues, however, that the only “nonexcludable conditions” specified in the Financial Responsibility Law are the following:

§ 1724. Certain nonexcludable conditions
(a) General rule. — Insurance benefits may not be denied solely because the driver of the insured motor vehicle is determined to be under the influence of drugs or intoxicating beverages at the time of the accident for which benefits are sought.
(b) Contract exclusions. — Provisions of an insurance policy which exclude insurance benefits if the insured causes a vehicular accident while under the influence of drugs or intoxicating beverages at the time of the accident are void.

75 Pa.C.S. § 1724. In Aetna’s view, therefore, the maxim “expressio unius est exclusio alterius,” cited by the trial court as a reason for allowing coverage, is in fact a reason for denying coverage, because the fact that an accident occurred while the insured was loading or unloading a motor vehicle is not listed in 75 Pa.C.S. § 1724 as a nonexcludable condition.

As was the case with regard to its first argument, Aetna has correctly cited a principle of black letter law, but has applied it too broadly. If Aetna’s argument is taken to its logical conclusion, an insurer may exclude from coverage any activity not mentioned in 75 Pa.C.S. § 1724, even if the activity would otherwise be considered an aspect of the “maintenance or use of a motor vehicle” for which an insurer shall, under the terms of 75 Pa.C.S. §§ 1711 and 1712, provide coverage. Such an argument, if accepted, would render meaningless any attempt to define the parameters of mandatory coverage under the Financial Responsibility Law. Because loading a motor vehicle while occupying the vehicle is an activity which falls within the purview of “maintenance or use” as referred to in 75 Pa.C.S. §§ 1711 and 1712, it is an activity for which coverage must, under the terms of the same statutory provisions, be provided. Our decision on this issue is in accord with the principle that the Financial Responsibility Law, like the No-fault Act, is to be liberally construed. Persik v. Nationwide Mutual Insurance Company, 382 Pa.Super. 29, 33, 554 A.2d 930, 932 (1989) (petition for allowance of appeal pending). We hold, therefore, that the exclusion in Aetna’s policy is contrary to sections 1711 and 1712 of the Financial Responsibility Law, 75 Pa.C.S. §§ 1711 and 1712, and is, for that reason, void. Accordingly, we affirm the judgment entered by the trial court in favor of appellee John Omodio.

Judgment affirmed.

      . Nor, we add, does the definitions section of the Vehicle Code, 75 Pa.C.S. § 102, provide such a definition.

      . 75 Pa.C.S. § 1718, Exclusion from benefits, provides as follows:
      (a) General rule. — An insurer shall exclude from benefits any insured, or his personal representative, under a policy enumerated in section 1711 (relating to required benefits) or 1712 (relating to availability of benefits), when the conduct of the insured contributed to the injury sustained by the insured on [sic] any of the following ways:
      (1) While intentionally injuring himself or another or attempting to intentionally injure himself or another.
      (2) While committing a felony.
      (3) While seeking to elude lawful apprehension or arrest by a law enforcement official.
      (b) Conversion of vehicle. — A party who knowingly converts a motor vehicle is ineligible to receive first party benefits from any source other than a policy of insurance under which he is an insured for any injury arising out of the maintenance or use of the converted vehicle.
      (c) Named driver exclusion. — An insurer may exclude any insured or his personal representative from benefits under a policy enumerated in section 1711 or 1712 when the insured is excluded from coverage while operating a motor vehicle in accordance with the act of June 5, 1968 (P.L. 140, No. 78) [40 P.S. § 1008.1 et seq.], relating to the writing, cancellation of or refusal to renew policies of automobile insurance.


author: WIEAND, Judge:

text:
    559 A.2d 574
    George MINNO, deceased, by PEOPLES BANK AND TRUST COMPANY, Assignee of Helen Minno, Legatee, Heir and Executrix of George Minno Estate, Appellant, v. John RUBAL, o/w John M. Rubal, and Carol Rubal, and R.J. Sepco, Inc., terre-tenant, Appellees.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1989.
    Filed May 26, 1989.
    Gordon D. Reynolds, Somerset, for appellant.

      William R. Carroll, Somerset, for appellees.
    Before WIEAND, McEWEN and CERCONE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the lien of a judgment, obtained against one of several devisees of real estate more than five years after the death of the testatrix and after the administrator c.t.a. had made distribution and had been released, is extinguished by the joinder of the administrator c.t.a. in a subsequent conveyance of the real estate by the devisees. The trial court held that the lien of the judgment had been extinguished, dismissed an action to revive the judgment, and held that the judgment could not constitute a lien against the undivided interest owned by the judgment debtor-devisee. We reverse.

Elizabeth Rubai, a widow, died testate on October 11, 1976. At the time of her death, she owned real estate, on which she operated a neighborhood grocery store, in Windber Borough, Somerset County. By her last will and testament, she devised and bequeathed her entire estate in equal shares to her four children: Robert, Paulette, Maryann, and John. Letters of administration c.t.a. were issued to Robert on January 3, 1977, and he posted the necessary bond on January 10, 1977. On March 3, 1977, the four children, individually, executed and delivered a mortgage on the real estate to the Citizens National Bank of Windber as security for a loan of fifty thousand ($50,000.00) dollars. On February 3, 1978, the devisees, in writing, acknowledged receipt of their distributive shares in the decedent’s estate, waived their right to a formal accounting, and released the administrator e.t.a. Upon petition, the Orphans’ Court of Somerset County entered an order releasing the surety on the bond which had been filed by the administrator c.t.a. The grocery store business continued to be operated thereafter by the children of the decedent.

By May, 1981, however, differences had arisen, and two of the children, Robert and Paulette, had commenced an action to partition the real estate. Then, on January 6, 1982, before partition had been effected, Citizens National Bank filed an action to foreclose the mortgage. On June 18, 1982, George Minno recovered a judgment against John Rubai and his wife, Carol. Minno died on May 7, 1983, and his wife, to whom his interest passed, assigned the judgment to Peoples Bank and Trust Company.

The sheriffs sale in the mortgage foreclosure action was repeatedly postponed to permit a private sale which, it was hoped, would realize funds sufficient to pay the claims of creditors. On August 30, 1984, the real estate was conveyed to R.J. Sepco, Inc. by deed executed by the four children and by Robert Rubai, administrator c.t.a. of the estate of Elizabeth Rubai, deceased. By agreement, all secured creditors and those entitled to a priority were paid in full from the proceeds, and general creditors were paid at the rate of approximately forty ($.40) cents on the dollar. The judgment which had been recovered by George Minno against John Rubai and his wife, however, was overlooked and remained unsatisfied.

On May 20, 1987, the assignee of the judgment, Peoples Bank and Trust Company, began proceedings to revive the judgment against John Rubai and his wife, Carol. Named as terre-tenant therein was R.J. Sepco, Inc. Preliminary objections were filed by the terre-tenant, and, on August 22, 1988, the court entered an order “that defendant Sepco’s preliminary objection to Writ of Revival is sustained, the action to revive judgment is dismissed with prejudice as to defendant, R.J. Sepco, Inc., and the judgment and revival thereof shall not constitute a lien on the subject real estate____” The trial court subsequently explained, in its opinion, that it believed the lien against John Rubai’s interest had been extinguished by the sale of the real estate to R.J. Sepco, Inc.

Legal title to a decedent’s real estate passes at death to his heirs or devisees, subject to powers granted to the personal representative by law or the decedent’s will. 20 Pa.C.S. § 301(b). The provisions of 20 Pa.C.S. § 3357 establish pertinently as follows:

§ 3357. Title of purchaser
(a) General rule. — If the personal representative has given such bond, if any, as shall be required in accordance with this title, any sale, mortgage, or exchange by him, whether pursuant to a decree or to the exercise of a testamentary power or of a power under this title, shall pass the full title of the decedent therein, unless otherwise specified, discharged from the lien of legacies, from liability for all debts and obligations of the decedent, from all liabilities incident to the administration of the decedent’s estate, and from all claims of distributees and of persons claiming in their right, except that no such sale, mortgage or exchange by a personal representative, unless made under section 3353 (relating to order of court) for the purpose of divesting a lien existing at the decedent’s death, shall divest the interest of a bona fide grantee of, or a holder of a lien on, real property of the decedent who has acquired such interest for value under a prior recorded document from or through those entitled to the interest of the decedent in the real property by will or by intestacy, either:
(1) more than one year after the death of the decedent and when no letters issued in the Commonwealth upon the decedent’s estate were in effect; or
(2) within such year if no letters upon the decedent’s estate have been issued in the Commonwealth during that year.

See also: 20 Pa.C.S. § 3385. This divestiture provision was intended to create stability of procedure in the disposition of a decedent’s realty and certainty in the marketability of title. Quality Lumber and Millwork Co. v. Andrus, 414 Pa. 411, 419, 200 A.2d 754, 759 (1964). “The draftsmen of this section clearly intended thereby 'to make title to real property freely alienable after one year where (1) no letters are granted or (2) there is a vacancy in letters[.]” DiLoretto v. Marsidell, Inc., 414 Pa. 572, 577, 200 A.2d 890, 892-893 (1964), citing Comment, Joint State Government Commission, 20 P.S. p. 243.

The legislative intent, garnered from an examination of both Sections [3357] and [3385], is that one who, in good faith, and for value, purchases an interest in realty from, or becomes a holder of a lien on realty, through the heirs or devisees of a decedent is protected from a divestiture of such interest or lien by the terms of Section [3357] if, but only if, such interest was purchased or such lien was created either more than one year after decedent’s death and at a time when no letters — either of administration or testamentary — were in effect or within the year after decedent’s death and at a time when no letters had been issued. If the conditions as to time are existent under § [3385], the terms of § [3357] as to divestiture of claims do not become effective.

DiLoretto v. Marsidell, Inc., supra, 414 Pa. at 578, 200 A.2d at 893.

In DiLoretto v. Marsidell, Inc., supra, a sole devisee of real estate had leased real estate to a third person more than five years after the testator’s death. The will was not admitted to probate and letters were not issued until another four years had passed. The land was thereafter sold by the personal representative, who was also the sole devisee, with court approval. Because the lease had been acquired from the sole devisee more than five years after the testator’s death and at a time when no letters were in effect, the Supreme Court held that the lease was not divested by the subsequent sale.

A different factual situation was presented to the Supreme Court in Quality Lumber and Millwork Co. v. Andrus, supra. There, letters of administration had been issued to the decedent’s sole heir, and bond had been posted. Less than a year later, the heir, in her capacity as heir, executed and delivered a mortgage on real estate in favor of Quality Lumber and Millwork Company. Four months later, she represented in a petition to the Orphans’ Court that she was the sole heir, that debts and taxes had been paid, and that she was aware of no unfinished estate business. The court, in response, entered an order releasing the surety on her bond. Three years later, the heir, acting in her capacity as administrator, conveyed the mortgaged real estate to a third person after obtaining from the Orphans’ Court an order excusing her from filing additional security. Because the mortgage had been executed by an heir within one year following the decedent’s death and while letters of administration were in effect, the Supreme Court held that the lien of the mortgage had been divested by the subsequent sale.

In the instant case, the judgment was recovered by appellant’s assignor over five and one-half (5V2) years after the death of the testatrix. At that time, the estate had been distributed to those entitled thereto, distribution had been acknowledged by the devisees, the administrator c.t.a. had been released by the devisees, and the devisees were in possession of the real estate where they jointly conducted a grocery store. Moreover, upon petition reciting the facts, the Orphans’ Court had terminated the administrator’s bond and had discharged the surety thereon. If one had examined the record of the Register of Wills Office, he or she would have found that the decedent’s estate had been distributed, that the administrator had been released and his bond discharged, and that title to the real estate had been vested in the decedent’s children and devisees. Not only had title vested in the devisees of the testatrix, but no letters of administration were then in effect. Under these circumstances, the lien of appellant’s judgment against the undivided one-fourth interest of John Rubai was neither extinguished nor discharged by the fact that the devisees’ subsequent deed for the premises was joined by the former administrator c.t.a. of the decedent’s estate. The joinder by the administrator was unnecessary to the conveyance of real estate which was then owned by the devisees of the testatrix as tenants-in-common.

We hold, therefore, that when the trial court dismissed appellant’s action to revive its judgment and held that the judgment could not constitute a lien against the judgment debtor’s one-fourth interest in the real estate, it erred.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . This section provides as follows:
      § 3385. Limitation upon claims
      All claims against the decedent, subject only to the provisions of section 3381 of this code (relating to liens and charges existing at death not impaired) and section 3382 of this code (relating to judgments which are liens at death), shall become unenforceable after one year from the decedent’s death against a bona fide grantee of, or holder of a lien on, real property of the decedent who has acquired his interest for value from or through those entitled to the property by will or by intestacy, either:

        (1) more than one year after the death of the decedent and when no letters issued in the Commonwealth upon the decedent’s estate were in effect; or
      (2) within such year if no letters upon the decedent’s estate have been issued in the Commonwealth during that year.
      Nothing in this section shall be construed to limit the right of a personal representative subsequently appointed to recover from the heir or devisee the value of property so sold or encumbered.


author: DEL SOLE, Judge:

text:
    559 A.2d 577

    Wilfred VANLEER, Appellee, v. Harvey J. LERNER, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1989.
    Filed June 1, 1989.

      Allison L. Persinger, Philadelphia, for appellant.
    Mary C. Kenney, Philadelphia, for appellee.
    Before DEL SOLE, MELINSON AND HOFFMAN, JJ.
   DEL SOLE, Judge:

Wilfred Vanleer, Appellee, brought a medical malpractice action against Harvey J. Lerner, M.D., Appellant. Lerner filed Preliminary Objections to Vanleer’s Complaint on the grounds that the allegations in paragraph seven of the Complaint did not contain material facts on which a cause of action could be based. (Pa. Rule Civ.Proc. 1019(a)). When Vanleer failed to contest Lerner’s preliminary objections, they were granted. Lerner then brought a Motion for Judgment on the Pleadings on the basis that with the deletion of paragraph seven Vanleer had set forth no allegations pertaining to his theory of negligence.

The Motion was granted by the trial court by Order, dated July 11, 1988 and was filed with the Prothonotary on July 14, 1988. The Order contained a memorandum opinion which stated:

If plaintiff can show that the discovery to date and/or his expert reports show a theory of negligence against the defendant, the Court will reconsider its decision. Such has not been shown in the Plaintiff’s Response to this Motion.

Vanleer filed a Petition for Reconsideration on August 22, 1988 and the trial court granted Vanleer’s Petition and reinstated his Complaint by an Order dated. August 31, 1988.

Lerner is appealing from the trial court’s Order reinstating Vanleer’s Complaint on the grounds that a court may modify or rescind its prior orders only if done within thirty days after entry. Vanleer's Petition for Reconsideration was not filed until thirty-nine days after the trial court had entered an Order granting Lerner judgment on the pleadings. Lerner argues that the trial court was no longer empowered to grant Vanleer’s Petition for Reconsideration. We agree and vacate the trial court’s Order to reinstate the Complaint.

The length of time that a trial court has to modify one of its own orders is determined by statute:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
42 Pa.C.S.A. § 5505

A trial court can grant reconsideration of an Order which is the subject of an appeal or petition only if “an application for reconsideration of the order is filed in the trial court or other government unit within the time period prescribed by law____” Rule 1701(b)(8) Pa. Rules App.Proc.

The date that an Order is entered is the date that the Order is filed with the Prothonotary. Pine Township Citizen’s Association v. Pine Township Board of Supervisors, 27 Pa.Cmwlth. 533, 367 A.2d 740 (1976). In the present case, the Order granting Lerner Judgment on the Pleadings was entered on July 14, 1988. At that point Vanleer had thirty days to petition the trial court for reconsideration and have it granted. Vanleer did not file a Petition for Reconsideration until August 22, 1988, thirty-nine days after the Order was entered.

In the case of fraud or other equitable demands, our Supreme Court has allowed trial courts to modify or rescind Orders beyond the statutory time limit. Estate of Gasbarini v. Medical Center of Beaver, 487 Pa. 266, 409 A.2d 843 (1979) Such equitable demands include the disbaring of one’s attorney (see Gasbarini supra) or mistakes made by the court or its officers. Great American Credit Corporation v. Thomas Mini-Markets, 230 Pa.Super. 210, 326 A.2d 517 (1974). The present case does not contain such an “extraordinary cause” that would allow us to affirm the trial court’s over-reaching actions. This court has repeatedly held that:

once a final order or judgment is entered, an appeal must be filed within thirty days or, the trial court must expressly grant reconsideration within thirty days. If either of these two events do not occur, the judgment is final and except for “extraordinary cause” is not subject to collateral attack by virtue of a petition to open and/or strike.

Luckenbaugh v. Shearer, 362 Pa.Super. 9, 15, 523 A.2d 399, 402 (1987).

In Municipal Council of Monroeville v. Kluko, 102 Pa.Cmwlth. 49, 517 A.2d 223 (1986), the Commonwealth Court was faced with the question of whether a trial court which has entered an order that specifically directs a party to pay its own counsel fees and costs, may, after the appeal period has expired, enter a new order pursuant to a new petition which directs the opposing party to pay the counsel fees and costs. The court, citing 42 Pa.C.S.A. § 5505, ruled that the trial court lacked authority to modify or rescind its own order after the thirty day period had passed. The court also found that the issue was jurisdictional and could not be waived by the parties.

In the present case, Yanleer argues that the trial court’s Order was conditional and that there was no time limit for Vanleer to produce an expert report regarding Lerner’s alleged deviation from standard medical practices. The Order may have been conditional, but it was only conditional for thirty days. After that time it became final and the trial court no longer had the authority to rescind or modify it. Because the trial court no longer had the power to grant Vanleer’s Petition for Reconsideration, we find that the trial court erred in granting the Petition. We vacate the trial court’s Order reinstating the complaint.

Order of the trial court vacated, complaint dismissed. Jurisdiction relinquished.