author: BECK, Judge:

text:
    557 A.2d 393
    LOWER PAXON TOWNSHIP, Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1988.
    Filed April 3, 1989.

      F. Lee Shipman, Harrisburg, for appellant.
    Richard H. Wix, Harrisburg, for appellee.
    Before BECK, KELLY and HESTER, JJ.
   BECK, Judge:

This is an appeal from a judgment entered on a verdict for appellee Lower Paxton Township (the “Township”) in its action for coverage under a comprehensive general liability policy issued by appellant United States Fidelity and Guaranty Company (“USF & G”) to the Township. The Township sought coverage for various expenses it incurred in remedying a problem arising from methane gas that was emanating from a landfill owned by the Township.

Although numerous issues are presented, the dispositive issue concerns the proper construction of the policy’s pollution exclusion and the application of this exclusion to the facts of this case. The pollution exclusion excludes coverage for any bodily injury or property damage arising out of the discharge, dispersal, release or escape of pollutants, including gases, unless the discharge, dispersal, release or escape is “sudden and accidental.”

Since we find that there is no record evidence that could lead a jury reasonably to find that the methane gas dispersal that gave rise to the Township’s claimed damages was “sudden”, we grant judgment n.o.v. in favor of USF & G. The basis for this decision is our punctilious review of the record, which we have conducted with constant vigilance to our limited duty in reviewing a denial of judgment n.o.v.:

... the sole duty of the appellate court is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and inferences.

Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509, 514-15 (1984).

Viewed in this manner, the record reveals the following facts. In 1961, the Township began operating a sanitary landfill located in the southeast portion of the Township. The landfill occupies approximately 35 acres. Along the northern border of the landfill is Conway Road, with homes located on both sides of the road. One of these homes, 6621 Conway Road, is owned by Mr. and Mrs. Fleming. The Fleming home is located between the northern edge of the landfill and Conway Road.

A by-product of the natural decomposition of organic material in the refuse buried at the landfill is methane gas, an odorless, colorless gas that ventilates into the atmosphere through the cover soil on the landfill or migrates laterally underground. The record contains the following description, authored by the Township’s engineering firm, of the process through which methane gas forms and enters the atmosphere:

Organic components of landfilled solid waste decompose by a combination of biological, chemical and physical processes. Within the confines of a landfill, these processes occur simultaneously. The composition of landfill gas develops through an evolutionary process as waste experiences first aerobic (characterized by the presence of free oxygen) and then anaerobic (featuring the lack of oxygen) environments. The major constituents of landfill gas are methane and carbon dioxide.... After six months to a year, methane gas concentrations in the landfill gases rise to about 45 to 50 percent, remaining relatively constant through the period of active gas production. Gas production, and its methane component, will take many years to complete and is principally dependent upon refuse composition and moisture content. It is generally accepted that typical landfills, containing mostly municipal solid waste, will produce gas for between 20-40 years____

Methane gas can explode at certain concentrations and can adversely affect the health of those exposed to it at even lower concentrations.

During the 1970’s, the Township became aware of the phenomenon of methane gas production at landfills, but was not aware of any specific problem with methane gas migrating from its own landfill and had taken no steps to control any such possible migration. However, by letter dated May 4, 1981, the Department of Environmental Resources notified the Township that methane gas was migrating off the landfill at dangerously high levels. The Township immediately hired Gannett Fleming Corddry and Carpenter, Inc., an engineering firm, to evaluate gas production and migration at the landfill. Their initial report, dated August 11, 1981, indicates that Gannett Fleming’s testing revealed strong concentrations of gas at the north end of the landfill, along Conway Road. The report further states that these tests are a “... strong indication of LFG [gas] migration across Conway Road toward the nearby residential community.”

Gannett Fleming recommended the immediate installation of a gas migration control system along the northern edge of the landfill. This system, which was installed in the spring of 1982, consisted of a perforated pipe laid horizontally in a trench of crushed stone and a standpipe to vent the collected gas into the atmosphere.

This perforated pipe system, sometimes referred to as a trench barrier, was recommended by Gannett Fleming as a first step toward addressing the gas problem at the landfill. Gannett Fleming’s August 11, 1981 report also recommended that additional venting be installed at locations all over the fill and, after monitoring of the gas production at these vents, that a “... permanent [gas] collection and control system be designed.”

During the remainder of 1982, Gannett Fleming, the Township, and the Township’s own engineers, Herbert, Rowland and Grubic, Inc. (the “Rowland firm”), continued to monitor and study the methane gas situation at the landfill. Gannett Fleming monitored the gas production at sites all over the fill, largely to ascertain whether it would be advisable for the Township to install a system of gas collection so that the gas could be sold for commercial use. Both Gannett Fleming and the Rowland firm also monitored the gas situation at the north end of the fill to determine the effectiveness of the trench barrier. Although the Township expected that the barrier would be effective in controlling gas migration in that area, as of October 22, 1982 Gannett Fleming preliminarily reported to the Township that its monitoring of the fill indicated only that .. the trench barrier is moderately effective in controlling the gas migration northward toward Conway Road.” This report indicates that gas readings at probe G---6, the one closest to the Fleming home, ranged from 15% to 0% in the period from June 22, 1982 to September 14, 1982.

The Rowland firm’s own test results were reported to the Township on December 16, 1982. This report includes testing data from October and November of 1982, when gas was consistently detected at Probe G-6. In October the gas levels ranged from 15% to 25% and in November from 18% to 27%. The report also included the Rowland firm’s recommendations regarding the methane gas problem, including the following:

We recommend that several additional monitoring points be established to further evaluate this area. These probes should be installed at the north side of Conway Road, and we recommend that 3 additional probes be installed on private property at 6621 Conway Road [the Fleming home] to monitor any possible migration.

At trial, Mr. Rowland, the author of the foregoing report, testified that he recommended the installation of these additional probes because of his concern for possible migration in that direction. He was also concerned that the Township still did not know exactly where the outer limits of the fill itself were and had only recently discovered that some waste was actually located under Conway Road, whereas the Township had long thought that the fill material stopped at the edge of the road. Mr. Rowland wanted to ascertain whether there was waste extending even further past the trench barrier and the road, since any such waste could be emitting gas that could not be controlled by the trench barrier.

On December 15, 1982, just five days after the Rowland firm report was submitted, the Department of Environmental Resources notified the Township that the basement of the Fleming home contained a dangerous level of methane gas. Shortly before December 15th, the DER had received an anonymous telephone call indicating that the caller had been in the Fleming home and had smelled gas. DER could not immediately identify where the Fleming home was, since the caller had mistakenly stated that it was located in a different township. When DER finally ascertained that the property was in Lower Paxton, and was in fact at the edge of the landfill, they immediately tested the Fleming home and found a 28% level of gas in the basement.

The Township immediately made expenditures to correct the problem in the Fleming home, including sealing the basement and installing vents around the foundation of the home. An inspection of the basement revealed a sump pump in the basement floor lined with an old coal bucket which had rusted through. It was thought that this opening in the cement floor had provided the opening through which the gas had entered the home. There was no testimony or any other evidence as to when the bucket had rusted, nor was there evidence of any abrupt opening of the bucket or of any other abrupt event at the home that could have released the gas from the underlying soil.

The total cost of correcting the gas problem at the Fleming home was approximately $8,000. However, the Township thereafter also expended substantially larger sums in remedying the methane gas problem in the landfill as a whole, including amounts paid for engineering studies as to how to remedy the problem, testing the landfill to assess the problem, and installing a gas migration control system. The total amount expended, excluding engineering services, was slightly in excess of $200,000.

The Township notified USF & G of the methane gas problem at the Fleming home on December 27, 1982. They also notified USF & G that the Township was concerned about the potential for numerous other claims against the Township arising from the gas emanating from the landfill.

USF & G denied coverage based on several grounds, including the pollution exclusion. This lawsuit ensued. The Township’s complaint alleged that the event that triggered coverage was the migration of methane gas into the Fleming property. The complaint specifically alleged that the migration occurred “suddenly and without warning” on or about December 15, 1982. Following a jury trial, a verdict for the Township in the amount of $212,000 was returned. This amount represented all of the Township’s expenditures in remedying the problem at the Fleming home, as well as the entire expense of installing a gas control system over the landfill as a whole. The only item claimed by the Township that was not recovered was $77,-000 expended for engineering services related to the fill. USF & G’s post-trial motions, including both a request for judgment n.o.v. and a new trial, were denied and judgment for the Township was entered.

USF & G raises numerous issues for our review, all of which can generally be characterized as falling into two categories. First, USF & G contends that the terms of the policy exclude coverage for amounts paid by the Township as a result of an event like the one that occurred at the Fleming home because the migration of gas into the home was not sudden and accidental. Second, USF & G argues that even assuming coverage for damages directly arising from the event at the Fleming home, the Township cannot possibly recover for all of its expenditures to remedy the methane gas problem at the landfill as a whole. At most, USF & G argues, the Township is only covered for those expenditures made to remedy the problem at the Fleming home. Since we are persuaded by one of USF & G’s arguments in the first category, i.e. that any damages arising from the event at the Fleming home, whether directly or indirectly, are excluded from coverage under the pollution exclusion, we need not address the remaining issues.

We necessarily begin with a review of the pertinent policy provisions, since the central question presented is one of contract interpretation. The interpretation of a contract, including interpretation of a contract of insurance, is a matter of law for the court. Gene & Harvey Builders, Inc. v. Pennsylvania Mfrs.’ Ass’n. Insur. Co., 512 Pa. 420, 517 A.2d 910 (1986). Unless we first determine what the pertinent policy language means, we cannot determine whether USF & G is entitled to judgment as a matter of law in applying that language, as we have construed it, to the evidence of record.

Prior to analyzing the insurance contract, however, we must note that both parties to this appeal have been joined by amici curiae who have thoroughly briefed the issues. Some of these amici have also expended considerable effort in arguing the respective public policies that support their positions. Those favoring the insured urge upon us the prospect of municipal governments crumbling under the financial strain of environmental liabilities. Those favoring the insurer express concern over the effect of granting coverage on potential polluters, who may be less concerned about protecting the environment if they know that any resulting damages will be borne by their insurers.

We must reply to these concerns as did the Appellate Division of New Jersey in addressing similar “policy” arguments made in the context of a pollution coverage case:

... we underscore the limited nature of our inquiry. Whatever the relative merits of the competing public policies ... we perceive no legal principle which would permit us to circumvent what the contract says. So it throws no light to inveigh against the “collapse of the pollution insurance market” ... or, on the other hand, to argue that protection of “blameless victims” is best served by seeking to spread the financial risk---- Our role is merely to interpret the language of the insurance contract.

Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 528 A.2d 76 (App.Div.1987).

The insurance contract in question is a standard comprehensive general liability policy, containing the following basic insuring agreement:

I. The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
bodily injury or
property damage
to which this insurance applies, caused by an occurrence, and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted
at or from the insured premises,____
The policy defines “occurrence” as follows:
“occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;
The policy also contains the following pollution exclusion:
This insurance does not apply: ...
(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or other water course or body of water; but this exclusion does not apply if such discharge, dispersal, escape or release is sudden and accidental;

It is the meaning of this exclusion, and particularly of the phrase “sudden and accidental”, that lies at the center of the instant dispute. USF & G and its amici curiae argue that the plain meaning of this phrase requires that damages resulting from gradual releases of pollution are excluded from coverage. Applying this interpretation to the facts of this case, USF & G argues that under any construction of the evidence, the pollution in question was gradual and judgment n.o.v. in USF & G’s favor is required.

Although the trial court accepted this interpretation of the policy, it refused to accede to USF & G’s request that the case be removed from the jury and decided in favor of USF & G as a matter of law on the ground that there was no evidence of a sudden release or discharge of pollutants. Accordingly, the case went to the jury with the following instruction:

The burden is not on the defendant [USF & G] to prove that in this case the alleged escape or release was not sudden or accidental. The plaintiff has the burden of proof____ It must prove that there was a sudden and accidental release of pollutants. They must prove it was both sudden and accidental. There are two words here. Now, how are those words defined. They are defined in the law pretty much as you would have found them in ordinary life in construing them. The dictionary definition, sudden is an event that occurs abruptly. It implies a distinct happening at a particular time. An occurrence, assignable to a single act identified in space and time with reasonable certainty. Of course the alleged sudden act in this case was the incident that occurred at the Fleming residence so far as the presence of migrating methane gas. Accident is an event that takes place without one’s foresight or expectation. It is an undesigned, unexpected event. The term accident within the meaning of an insurance policy is an event happening by chance unexpectedly taking place. It is the opposite of something likely to occur, foreseeable in due course. These are the definitions of these terms.

The Township argues that even if we construe the pollution exclusion as the trial court did and require that the discharge of pollutants be both sudden, defined to mean abrupt and lasting only a short time, and accidental, defined to mean unexpected, the evidence in this case supports the jury’s finding of coverage. However, the Township’s main argument is that the pollution exclusion is ambiguous and must be construed against the insurer. The Township urges us to construe the exclusion to exclude coverage only-in cases of intentional pollution, i.e. where the pollution is either expected or intended by the insured. Whether the pollution discharge is sudden or gradual would be irrelevant. Thus, the Township urges us to affirm the trial court on the alternative ground that the evidence overwhelmingly supports the conclusion that the dispersal of methane gas into the Fleming home was neither expected nor intended by the Township.

The meaning of the pollution exclusion has been the subject of numerous cases decided in the past decade. An ever-increasing number of courts have rejected the insured’s ambiguity argument and have found that sudden and accidental has a clear plain meaning that excludes coverage not only for intentional pollution but also for any unintentional release or dispersal of pollution that occurs gradually over time. See, e.g., United States Fidelity & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir.1988); United Stales Fidelity & Guar. Co. v. The Murray Ohio Mfg. Co., 693 F.Supp. 617 (M.D.Tenn.1988); American Motorists Ins. Co. v. General Host Corp., 667 F.Supp. 1423 (D.Kan.1987); Claussen v. Aetna Casualty & Sur. Co., 676 F.Supp. 1571 (S.D.Ga.1987) (appeal pending, No. 87-8972 11th Cir.); International Minerals & Chem. Corp. v. Liberty Mutual Ins. Co., 168 Ill.App.3d 361, 119 Ill.Dec. 96, 522 N.E.2d 758, app. den., 122 Ill.2d 576, 125 Ill.Dec. 218, 530 N.E.2d 246 (1988). In fact, it has recently been noted that “... there is an emerging nationwide judicial consensus that the ‘pollution exclusion’ clause is unambiguous....” Technicon Electronics Corp. v. American Home Assurance Co., 141 A.D.2d 124, 533 N.Y.S.2d 91, 96 (2d Dept.1988).

Pennsylvania precedent on this issue is limited, but to the extent that it exists, it is consistent with the view that the pollution exclusion is not ambiguous. As early as 1984, this court was confronted with interpreting the pollution exclusion in Techalloy Company, Inc. v. Reliance Insurance Co., 338 Pa.Super. 1, 487 A.2d 820 (1984), allocatur denied, 338 E.D.Allo.Dkt.1985 (Pa. Oct. 31, 1985). In Techalloy, the insured (Techalloy) had been sued for allegedly recklessly dumping or storing Trichloroetheline (TCE), a chemical Techalloy used in its steel business, which allegedly could cause severe injury to the plaintiff class who had been exposed to the TCE. Techalloy’s insurer, Reliance, refused to defend or indemnify, relying in part on the pollution exclusion. Techalloy defended the suit at its own expense, won and sued Reliance for the costs of defense.

The Techalloy court began its analysis with the following statement of applicable principles of insurance policy interpretation, with which we concur:

Words of an insurance policy which are unambiguously written should be construed according to their plain and ordinary meaning. Pennsylvania Manufacturers’ Ins. Co. v. Aetna Casualty and Surety Ins. Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967), and we should give effect to the language. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). If, however, a term is susceptible to two interpretations or subject to reasonable question, it should be liberally construed in favor of the insured. C. Raymond Davis & Sons, Inc. v. Liberty Mutual Ins. Co., 467 F.Supp. 17, 20 (E.D.Pa.1979); Hofing GMC Truck, Inc. v. Kay Wheel Sales Co., Inc., 543 F.Supp. 414, 419 (E.D.Pa. 1982); Most importantly, in close or doubtful cases, we should find coverage for the insured, and if we err in interpreting a policy provision, we should err in favor of the insured. Motley v. State Farm Mutual Automobile Ins. Co., Inc., 502 Pa. 335, 340, 466 A.2d 609, 611 (1983).
While we are compelled to interpret the meaning of a term whose application was ambiguous, if the language of a policy is clear and unambiguous, we must apply its plain and ordinary meaning, and not struggle to create ambiguity solely for the purpose of finding coverage where none exists. Monti v. Rockwood Ins. Co., 308 Pa.Super. 473, 476, 450 A.2d 24 (1976).

Id. 388 Pa.Super. at 7, 12, 487 A.2d at 823, 826.

With these principles in mind, the Techalloy court analyzed the meaning of the pollution exclusion and the allegations of the underlying complaint against Techalloy to determine whether Reliance had erred in refusing to defend Techalloy. Noting that the complaint alleged only that Techalloy was responsible for pollution that occurred on a “regular or sporadic basis from time to time during the past 25 years,” the court held that this allegation could in no way be construed to allege a sudden release, escape, discharge or dispersal of pollutants. The court found that the pollution exclusion “unambiguously states that there will be no coverage for toxic discharges into the environment unless that discharge is both sudden and accidental.” (emphasis in original). Based on the allegations of the complaint and this interpretation of the policy, the court found that “[a]t best Techalloy could prove that the discharge was accidental”, i.e. not intended or expected by Techalloy, but could not prove that it was also sudden. The court held that Reliance was justified in refusing even to defend Techalloy since there was no possibility that any damages Techalloy might have to pay would be covered. Id., 338 Pa.Superior Ct. at 11-15, 487 A.2d at 826-27.

Thus, Techalloy established that the pollution exclusion is not ambiguous and must be accorded its plain meaning. That meaning is simply that damages resulting from a pollution discharge are covered only if the discharge itself is both sudden, meaning abrupt and lasting only a short time, and accidental, meaning unexpected. Techalloy also strongly suggests that the burden of proving both of these requirements lies with the insured, since the court’s discussion of the issue is framed entirely with reference to what Techalloy, the insured, would be able to prove regarding the nature of the release of the pollutant.

The Techalloy decision has been followed by several federal district courts applying Pennsylvania law. See American Mutual Liab. Ins. Co. v. Neville Chem. Co., 650 F.Supp. 929 (W.D.Pa.1987); Fischer & Porter Co. v. Liberty Mutual Ins. Co., 656 F.Supp. 132 (E.D.Pa.1986) (“contamination that results from continuous dumping of toxic chemicals into drains ... or tanks that would, in turn, spill ... onto the ground is not sudden, even if one could argue that the spillage was accidental or the resulting damage unexpected”; burden of proving sudden and accidental is on insured).

Even more recently, in United States Fidelity & Guaranty Co. v. The Korman Corp., 693 F.Supp. 253 (E.D.Pa. June 15, 1988), the District Court for the Eastern District of Pennsylvania applied Techalloy to facts similar to those presented in this case and determined that under the unambiguous meaning of the pollution exclusion, there was neither a duty to defend nor to indemnify.

In Korman, several insurers brought a declaratory judgment action seeking a determination of their defense and coverage obligations to Korman in connection with two class action suits that had been filed against Korman. The complaints in the class actions alleged numerous causes of action arising out of Korman’s sale to the plaintiffs of homes located on the edge of a landfill. Plaintiffs alleged that Korman had caused them a variety of forms of damage by selling them the properties without informing them of the dangers and inconveniences posed by the landfill, which was allegedly leaching hazardous and toxic wastes and residue from such wastes, including gases, into the adjacent environment.

The Korman court carefully analyzed the provisions of the governing policies, which contain the selfsame insuring agreement and pollution exclusion as is involved in the instant case, and determined that insofar as the complaint alleged damages resulting from the gradual leaching of pollutants from the landfill, no duty to defend and no coverage existed. The court stated:

Any ... damage alleged falls within the ambit of exclusion (f) [the pollution exclusion] because it allegedly arose out of the leaching of hazardous and toxic wastes and residue from solid wastes and from the giving off of “noxious odors, gases and fumes.” ...
While exclusion (f) provides that it “does not apply if such discharge, dispersal, release or escape is sudden and accidental,” the ... plaintiffs do not allege, and nothing in their complaints suggests, that the leaching and giving off of fumes was sudden.

Id. at 259. See also Claussen v. Aetna Casualty & Sur. Co., 676 F.Supp. at 1580 (leaching of gases from landfill into adjacent areas is not sudden; pollution exclusion limits “coverage for pollution-related damages to situations where such damages are caused by sudden pollution incidents involving equipment malfunctions, explosions and the like”).

The Township and its amici curiae urge us to depart from the foregoing line of cases. It is argued that we can and should reconsider the wisdom of Techalloy and those federal cases relying on it. The contention that we have the authority to reconsider Techalloy, by which we are bound, rests on the Techalloy court’s passing reference to the fact that in that case, the insured did not offer any reasonable alternative interpretation of the pollution exclusion that would reveal an ambiguity. 338 Pa.Super. at 7, 12, 487 A.2d at 823, 826. Here, on the other hand, the Township is offering an alternative interpretation that the Township views as reasonable and indicative of an ambiguity.

We do not consider ourselves free to disregard the clear import of Techalloy on the legal question of the meaning of the pollution exclusion. We are bound by the prior decisions of this court. Moreover, we do not find that the Township has offered us a reasonable alternative interpretation of the pollution exclusion which reveals an ambiguity. Our analysis of the arguments in favor of finding an ambiguity only further convinces us of the rectitude of the Techalloy court’s conclusions. Thus, even if we could reject the Techalloy interpretation, we would not.

The primary analysis adopted by those courts that have found the pollution exclusion ambiguous, and which is urged on us by the Township, is that an ambiguity appears when the “sudden and accidental” exception to the exclusion is read in the context of the definition of a covered “occurrence.” See, e.g., United States Fidelity & Guar. Co. v. Thomas Solvent Co., 683 F.Supp. 1139 (W.D.Mich. 1988), issues certified for appeal; Buckeye Union Ins. Co. v. Liberty Solvents & Chem. Co., 17 Ohio App.3d 127, 477 N.E.2d 1227 (1984); Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 528 A.2d 76 (App.Div.1987).

Simply stated, the argument is that both the definition of an occurrence and the exception to the pollution exclusion are coverage provisions, and yet they are contradictory and confusing. The alleged ambiguity arises from the fact that the basic requirement for coverage is the existence of an occurrence as the event that causes the claimed damages. The policy defines occurrence as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Thus, an occurrence can occur gradually, as opposed to suddenly. The pollution exclusion, on the other hand, provides a separate specific requirement for coverage of damages resulting from pollution. It provides that all such coverage is excluded unless the polluting event giving rise to the damages is “sudden and accidental.” Courts finding the pollution exclusion ambiguous have opined that the juxtaposition of these two different coverage requirements, i.e. the general requirement of an occurrence, which can be gradual, and the specific requirement applicable to a release of pollutants, which must be sudden, creates confusion in the policy.

As described by the United States District Court for the Western District of Michigan, the ambiguity arises as follows:

[t]o write a policy which includes a broad definition of occurrence (“continuous discharge”) and where the exclusion clause is, in the main, coextensive with the definition of an occurrence and then to allow for a very narrow exception to the exclusion — that is, where the pollution is “sudden and accidental”--is, at the least, confusing, if not deceptive to the policyholder ... It invokes a “hidden meaning” as to what, if any, instances of “unintentional” pollution will be covered and what instances will be excluded.

United States Fidelity & Guar. Co. v. Thomas Solvent Co., 683 F.Supp. at 1159.

Other courts have rested their conclusion that the pollution exclusion is ambiguous on the ground that the word sudden itself has no clear plain meaning and is not specifically defined in the policy. For example, in New Castle County v. Hartford Accident and Indemnity Co., 673 F.Supp. 1359 (D.Del.1987), the court opined that the “primary” definition of sudden is “happening without previous notice” or “occurring unexpectedly.” The fact that other definitions of sudden stress its temporal quality and define it to mean abrupt only convinced the court that the word is ambiguous. Thus, the New Castle court concluded that sudden must be interpreted against the insurer to mean only unexpected, i.e. the pollution discharge must only have been accidental to be covered. The fact that it may have also been gradual does not defeat coverage. Id. at 1362.

On the surface, these arguments appear to be the result of a close reading of the entire policy and a faithful application of the precise dictates of the English language. On closer inspection, they are revealed to be just the opposite. Acceptance of these arguments would result in the emasculation of the policy in violation of our duty to enforce it. Abraham, K.S., Environmental Liability and the Limits of Insurance, 88 Col.L.Rev. 942, 962 (1988). As several courts have noted, the pollution exclusion’s language is “... clear and plain, something only a lawyer’s ingenuity could make ambiguous.” American Motorists Ins. Co. v. General Host Cory., 667 F.Supp. 1423 (D.Kan.1987) (quoted with approval in United States Fidelity & Guar. Corp. v. Star Fire Coals, Inc., supra).

The juxtaposition of the occurrence provision and the pollution exclusion creates no confusion in the policy. As the Court of Appeals for the Sixth Circuit recently stated:

We have no difficulty reconciling the two provisions. We believe the “occurrence” definition results in a policy that provides coverage for continuous or repeated exposure to conditions causing damages in all cases except those involving pollution, where coverage is limited to those situations where the discharge was “sudden and accidental.”
We believe the everyday meaning of the term “sudden” is exactly what this clause means. We do not believe that is is possible to define “sudden” without reference to a temporal element that joins together conceptually the immediate and the unexpected. It must also be emphasized that the focus of this “sudden and accidental” exception to the general pollution exclusion is on the nature of the discharge itself, not on the nature of the damages caused.

Star Fire, supra, at 84.

Commentators have similarly noted that the pollution exclusion can easily be construed according to its plain meaning and in a manner consistent with the definition of an occurrence:

The combined meaning of the definition of “occurrence” and the “pollution exclusion” was that the policy afforded coverage against liability for bodily injury or property damage caused by continuous or repeated exposure to risks, unless that exposure was the result of any of the various forms of pollution detailed in the exclusion. Coverage against liability for damages caused by pollution exposures was excluded except when the exposure resulted from “sudden and accidental” pollution.

Abraham, supra, at 962.

Any other interpretation of the policy is blatantly unreasonable. To read “sudden and accidental” to mean only unexpected and unintended is to rewrite the policy by excluding one important pollution coverage requirement-abruptness of the pollution discharge. The very use of the words “sudden and accidental” (emphasis added) reveal a clear intent to define the words differently, stating two separate requirements. Reading “sudden” in its context, i.e. joined by the word “and” to the word “accident”, the inescapable conclusion is that “sudden”, even if including the concept of unexpectedness, also adds an additional element because “unexpectedness” is already expressed by “accident”. This additional element is the temporal meaning of sudden, i.e. abruptness or brevity. To define sudden as meaning only unexpected or unintended, and therefore as a mere restatement of accidental, would render the suddenness requirement mere surplusage. Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F.Supp. 1317, 1325-26 (E.D. Mich.1988).

Having reaffirmed our confidence in the Techalloy interpretation of the pollution exclusion, we now turn to the application of the pollution exclusion as we have interpreted it to the facts of this case. The question is simply whether there was sufficient evidence to support the jury’s conclusion that the Township had sustained its burden of proving that there was an abrupt discharge, dispersal, release or escape of methane gas into the Fleming home. This is the only pleaded sudden event in this case. There is no contention that the gas was produced by the landfill waste materials in an abrupt manner. It is undisputed that the gas is produced and emanates from the buried waste material gradually, leaching into the surrounding soil and atmosphere.

We find no record evidence supporting the contention that the methane gas dispersed or was released into the Fleming home suddenly. The only facts available indicate that the gas had for some time been migrating in the direction of the home. Indeed, the area proximate to the home was the area where the DER first detected dangerous levels of gas in May 1981. The record also reveals the presence of gas near the home in the fall of 1982 after the trench barrier had been installed. Both Gannett Fleming and the Rowland firm’s reports in early December of 1982 confirm the presence of gas at the test probe closest to the Fleming property.

There is no direct information concerning the presence of gas in the home itself prior to when the DER found it there on December 15, 1982 simply because no testing had been done on the Fleming property. Although the Township alleges that the gas suddenly entered the home on December 15,1982, in reality this is only the date on which the gas was first detected there. The record is bereft of evidence indicating when or how the gas entered the home. In fact, the only inference the record would support on this point would be that gas had been entering the home for some time prior to December 15th. The record shows that the actual anonymous report of gas in the home was made to the DER some time before December 15th and that Mrs. Fleming had been experiencing headaches possibly due to exposure to the gas for several months prior to that date. This evidence leads to the conclusion that the gas entered the home as it entered any other area — -gradually over time, leaching through the soil and up through the basement floor.

The record also does not support a conclusion that, although the gas may have slowly leached toward the home, it was then released into the home on December 15th through some abrupt rupture of the basement floor. The sum total of the evidence as to how the gas penetrated the floor was testimony from the Township that it was thought to have entered through a rusty coal bucket containing a sump pump. There was no evidence that the gas built up under the bucket and then was suddenly emitted into the house through a rupture in the bucket or any other sudden breach of the floor.

The only evidence the Township points to in arguing “suddenness” is evidence that the Township never expected that the gas would enter the home, that the trench barrier was intended to prevent precisely this type of problem, and that Township officials were shocked to find the gas in the home on December 15th. This is irrelevant to whether the release of the gas into the home was sudden. It goes only to whether the Township intended or expected the gas to migrate as it did.

We find that there is insufficient evidence to support the jury’s verdict. We reverse the judgment of the trial court and enter judgment n.o.v. for appellant. Jurisdiction is relinquished.

      . DER regularly checked landfills to assess levels of methane gas production and to test for migration of the potentially dangerous gas off the landfill. The May 1981 letter to the Township was occasioned by one of these spot checks.

      . As was noted at trial, the fact that the caller reported the smell of gas is curious, since methane gas is odorless.

      . In fad, the record reveals that no other claim has ever been made against the Township as a result of the gas problem.

       The term “sudden” is not synonymous with the term "accidental”. Thus, contrary to Korman's suggestion, all toxic discharges caused by occurrences, which by definition are "accidental”, are not necessarily “sudden and accidental.” Rather, toxic discharges may be caused by occurrences while at the same time fall within the ambit of exclusion (f) because they are not sudden.

      . The Township cites Cohen v. Erie Indemnity Co., 288 Pa.Super. 445, 432 A.2d 596 (1981) for the proposition that where a provision in an insurance policy has been construed in different ways by the various courts that have considered it, this alone mandates that we find the provision ambiguous. We reject this contention, as have other courts that have considered it in the context of the pollution exclusion itself. See Fireman’s Fund Ins. Co. v. Ex-Cell-O Corp., 702 F.Supp. 1317, 1323, n. 7 (E.D.Mich.1988).
      We do not regard Cohen as mandating that we find an ambiguity wherever judicial decisions considering a policy provision are in conflict, with no regard for our own analysis of the provision or of the wisdom of these decisions. Surely we would be abdicating our judicial role were we to decide such cases by the purely mechanical process of searching the nation’s courts to ascertain if there are conflicting decisions. The law of Pennsylvania is that we must find an ambiguity only where the policy is reasonably susceptible of differing interpretations. Armon v. Aetna Sur. & Casualty Co., 369 Pa. 465, 87 A.2d 302 (1952). Thus, whether other courts have reached varying conclusions regarding the meaning of a policy is only relevant where the various meanings ascribed are reasonable. In this case, we find that those courts that have eliminated a temporal quality from the meaning of "sudden" have ascribed an unreasonable meaning to an unambiguous provision.

      . Amici curiae writing in support of the Township have provided this court with lengthy argument and documentary materials concerning the drafting history and regulatory approval process of the exclusion when it was first proposed in the early 1970’s. Amicus seek to convince us that the Township’s coverage-promoting interpretation of the exclusion is correct because it was the insurers’ own interpretation at the time they drafted it and was the interpretation relied upon by insurance regulators in approving it.
      We express no comment on these arguments. Having found the exclusion unambiguous on its face, we are bound to construe it in accordance with its plain meaning and may not refer to extrinsic evidence of the drafters’ intent. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982); Camp Joy, Inc. v. Commonwealth, 70 Pa.Commw. 142, 452 A.2d 891 (1982). We also note that the documentary materials are dehors the record, having been presented for the first time on appeal.

      . Other cases involving the leaching of pollutants from landfills and construing the pollution exclusion to require an abrupt release of the pollutants have similarly concluded that the production and movement of the pollutants were gradual. See, e.g., Korman, supra; Claussen, supra. In this case, however, the Township has employed a novel approach to securing coverage. Conceding that the methane gas is produced gradually and migrates slowly, the Township has attempted to inject an element of suddenness by focussing on the specific release of gas into the Fleming home and pleading that this release was sudden, therefore triggering coverage. Unfortunately, there is no evidence to support this allegation.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    557 A.2d 404
    Frederick BUCK and Vivian Buck, Appellants, v. COLDWAY FOOD EXPRESS, INC., Joseph J. Klotz, Jr. & D.J. Viskoe Trucking, Inc. and Carolina Casualty Insurance Company.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1988.
    Filed March 17, 1989.

      Joel M. Lieberman, Philadelphia, for appellants.
    Albert S. Fein, Philadelphia, for appellees.
    Before BECK, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

This is a garnishment action in which appellants Frederick Buck and Vivian Buck appeal from the order granting the preliminary objections of garnishee/appellee Carolina Casualty Insurance Company (Carolina) to a writ of execution filed by the Bucks. We vacate and remand.

This litigation arose following an April 15, 1980 automobile accident involving a car driven by Vivian Buck, a tractor-trailer owned and driven by William Ewing and a truck driven by Joseph Klotz. Ewing was operating the tractor-trailer under a long-term permanent lease with Cold-way Food Express, Inc. (Coldway). At the time of the accident this tractor-trailer was operated pursuant to a “trip-lease” for D.J. Viskoe Trucking, Inc., (Viskoe), the party thus carrying the primary insurance for the Ewing/Coldway/Viskoe tractor-trailer. Klotz was operating a truck owned by Frederick Forte. Vivian Buck was proceeding in a westerly direction on Red Lion Road in Philadelphia and was entering the intersection of Roosevelt Boulevard when she was struck by the Klotz/Forte vehicle. The Klotz/Forte vehicle, attempting to make a right turn from Roosevelt onto Red Lion, was forced into hitting Buck’s car by the erratic actions of the Ewing/Coldway/Viskoe vehicle, which was travelling in the lane to Klotz’ right and was also trying to negotiate a right turn onto Red Lion. Vivian Buck sustained spinal and other injuries requiring extensive treatment and rehabilitation.

The Bucks filed suit against Coldway on July 14, 1981. Coldway filed a third-party complaint against Viskoe, Klotz and Forte on September 11,1981 and attempted to serve the complaint on Viskoe by certified mail. The letter, sent to Viskoe Trucking’s last known address, in Illinois, was returned stamped “return to sender, not deliverable as addressed, unable to forward.” On October 14, 1981 Coldway requested Viskoe’s address from the United States Postmaster and on October 26, 1981 received a Charlotte, North Carolina address from the Postmaster. Coldway immediately sent the complaint by certified and by regular mail to the North Carolina address. On December 3,1981 Coldway filed an Affidavit of Service pursuant to Pa.R.C.P. 2079(c). The docket entries show a praecipe to reinstate and a reinstatement of the complaint on December 7, 1981, but these documents are not in the record. The complaint was then served upon the two other third-party defendants, Klotz and Forte. As with Viskoe, these defendants had eluded process until this point. However, this time Cold-way was successful in completing service upon Klotz and Forte, who then proceeded to defend the action.

After this, although the letter sent to Viskoe by regular mail was never returned, the certified letter was returned on December 20, 1981. Coldway then retained two investigative services in an attempt to locate Viskoe. National Claims Service, Inc., issued a report on January 21, 1982 stating that their efforts yielded no results. Commercial Index Bureau, Inc. also attempted to locate Viskoe for a period of about four months and issued reports in March and in April of 1982 documenting their ultimately unsuccessful efforts.

On May 5,1982, Coldway petitioned the court for leave to serve process by publication. Their petition, accompanied by affidavits and exhibits, documented their continuous, eight-month long unsuccessful search for Viskoe. The petition was unopposed. By order of May 10,1982 The Honorable Charles Lord granted the petition. Process was completed by publication on May 21, 1982 in the Philadelphia Legal Intelligencer and on June 4, 1982 in the Charlotte, North Carolina Observer and in the Charlotte News.

Following trial before the Honorable Beryl Caesar from November 5 to November 7, 1986, the jury returned a verdict in favor of Vivian Buck in the amount of $40,000.00 against “the driver of the Ewing vehicle.” The jury found no liability on the part of Klotz and Forte. Pursuant to the trip lease between Coldway and Viskoe and at the request of counsel for both the Bucks and Coldway, the court directed a verdict in favor of Coldway. The court then molded the verdict to show a verdict in favor of the Bucks and against Viskoe and added delay damages to the verdict for a total of $61,200.00 due from Viskoe. Judgment was entered on the verdict on September 21, 1987.

On the same day, Buck filed a praecipe for a writ of execution against Carolina Casualty Company, Viskoe’s insurer. The writ was filed on September 25, 1987. Carolina Casualty filed preliminary objections challenging the court’s jurisdiction over their insured, the Viskoe Trucking Company, on several grounds, among which was the claim that the service of process by publication on Viskoe was void because the complaint was not viable at the time of service. By order of April 20, 1988 Judge Caesar granted Carolina’s preliminary objections. His order states in pertinent part:

... the Amended Preliminary Objections are sustained and Plaintiffs’ Writ of Execution and Post Judgment Garnishment Interrogatories against said Garnishee are DISMISSED for the reason that valid process was never served upon D.J. Viskoe Trucking, Inc., and, therefore, the Court has no jurisdiction over Garnishee, Carolina Casualty Insurance Company.

Order of April 20, 1988. The order struck the judgment entered on September 21, 1987. The Bucks now appeal from this order.

The Bucks present their issue on appeal in the following terms:

Was the order of Court entered by the Honorable Charles Lord on May 10, 1982 permitting service by publication void?

In other words, the Bucks challenge Judge Caesar’s voiding of the service approved by Judge Lord.

First, the trial court’s decision reversing Judge Lord was incorrect. Judge Lord’s order effectively completed good service of a viable complaint by publication upon Viskoe. Therefore, the lower court abused its discretion in finding Judge Lord’s decision in error. See Bandes v. Klimoski, 260 Pa.Super. 137, 393 A.2d 1050 (1978). The issue is resolved simply, by application of the then-operative rule, former Pa.R.C.P. 2254(b), rescinded June 20, 1985, effective Jan. 1, 1986, now replaced by Pa.R.C.P. 425. The rule states in pertinent part:

(b) The writ, or the complaint of the defendant ... shall be served within thirty days after the commencement of the action to join, unless the time be extended by the court upon cause shown.

Pa.R.C.P. 2254(b) (rescinded). Coldway filed its complaint to join additional Defendant Viskoe on September 11, 1981. It is not disputed that the manner of service was good; Judge Lord granted leave and Coldway properly completed service by publication. Carolina argues that the served complaint was void because it had not been reinstated within thirty days after its filing date of September 11. Neither the plain language of the old rule nor any case authority supports this position. The rule merely requires that the party seeking joinder present the court with “cause shown” why service could not be completed within the thirty days. “Reinstatement” of a complaint only becomes relevant when the party seeking joinder acts without leave of the court. See Pa.R.C.P. 1010. As stated in Goodrich Amram, the application for an extension under Rule 2254 may be made at any time either before or after the expiration of the 30-day period. A footnote further explains that this procedure abrogated that in original rule 2255 requiring that the application be made within the original sixty-day period. 8 Goodrich Amram 2d § 2254(b):4 (1977); 4A Anderson Pennsylvania Civil Practice § 2254.15 (1962).

Carolina’s argument, which the trial court accepts, that Judge Lord’s granting of Coldway’s petition to effect service upon Viskoe was void because the complaint was no longer viable, begs the question. Rule 2254(b) contemplates that by granting Coldway leave to serve process by publication, Judge Lord was at the same time validating the complaint. No authority exists to the contrary. All the cases relied upon by the trial court, which are in turn relied upon by Carolina, present fact situations either where a complaint was served beyond the thirty days without leave of court, or where the court granted leave without having sufficient “cause shown” before it. These cases are therefore inapposite.

In Mowrey (now Issues) v. Stein Beer Company, 78 Pa.D. & C. 89 (1951), the challenged service was effected seven months after the filing of the complaint, and leave of court was neither requested nor given. The court explained that, had leave of court been requested, the court could grant leave only if the party seeking joinder had presented cause shown, and emphasized that a court could not grant leave simply as a matter of course. In Christman v. Chadderton, 55 Pa.D. & C. 325 (1945), application was made to the court for leave to serve a complaint beyond the (original) 60-day time period, and leave was granted. However, the challenge to the service was sustained because the court heard no evidence, nor did the party seeking joinder present the court with any, to document reasons for the delay. The only published appellate opinion on this issue, Bandes v. Klimoski, supra, addresses a situation in which writs were reissued and served four months after expiration of the thirty days “without the permission of Court as contemplated by Pa.R.C.P. 2254(b).” Bandes, 260 Pa.Super. at 141, 393 A.2d at 1052. In none of these cases was a second Common Pleas judge reviewing a decision by a previous judge that sufficient cause had been shown to allow the court to grant leave to file the complaint beyond the prescribed period, as is true in the present case.

Judge Lord accepted Coldway’s “cause shown,” as indeed he should have. Coldway successfully demonstrated that it had assiduously pursued Viskoe, first by mail, then by private detectives. At no time during the eight-month period between the September 11, 1981 filing of the third-party complaint and the court’s May 10, 1982 order did Coldway neglect the suit. Further, Viskoe was in no way prejudiced by being served on May 10, 1982 instead of in September of 1981. Lengthy pre-trial proceedings delayed the trial until November of 1986. Viskoe had ample time to defend effectively if it so chose. Further, Viskoe’s position was actually fully represented at trial by Coldway.

Notwithstanding the invalidity of his ruling, it was improper for Judge Caesar to “relitigate” and to reverse the law of the case already established by the motions court. Judge Lord, serving as motions judge, rendered a decision on the issue of whether Viskoe could be validly served by publication. His order of May 10,1982 ruled that they could. Each judge considered the same facts and the same arguments. Judge Caesar merely reversed Judge Lord’s decision. To do this was improper. Reed v. Reed, 354 Pa.Super. 284, 288-289, 511 A.2d 874, 876 (1986). It is well settled in Pennsylvania that a trial judge may not pass upon the decision of another trial judge of the same court on an interlocutory matter. Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983). No new evidence was presented to Judge Caesar on this issue. See Commonwealth v. Madden, 342 Pa.Super. 120, 492 A.2d 420 (1985). There is no question that Judge Lord’s allowanee of joinder of the third-party defendant Viskoe was an interlocutory order; see Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 479 A.2d 1027 (1984); it neither ended the litigation nor put any party out of court. Judge Lord’s decision became the law of the case on the issue of whether service to Viskoe was good and should have been followed by Judge Caesar.

Neither is it relevant that Carolina had not previously been in the action. Carolina had been notified of the suit by Coldway three years before trial and had affirmatively decided to do nothing. Letter of August 16, 1983. We do not question the propriety of Carolina’s challenge to the execution of judgment. As garnishee/insurer in this action for the first time, Carolina is entitled to defend by asserting any defense that was available to Viskoe in the main action. Matthews v. Malloy, 217 Pa.Super. 338, 272 A.2d 226 (1970). Therefore, Carolina is entitled to plead the court’s lack of jurisdiction over Viskoe in that Viskoe was served with a void complaint.

However, as explained above, Judge Lord’s order allowing service validated the complaint and became the law of the case on this issue. A different situation would have presented itself had Carolina asserted the court’s lack of jurisdiction over itself; this issue had obviously not been previously decided. However, Carolina did not raise this issue. Last, Carolina did not argue, nor could it, that it was not responsible for indemnifying Viskoe. It is well-settled that, in a garnishment proceeding, a verdict winner can assert the insured’s claim against the insurer as assignee of the insured. Alfiero v. Berks Mutual Leasing Company, 347 Pa.Super. 86, 500 A.2d 169 (1985); see Malley v. American Indemnity Corp., 297 Pa. 216, 146 A. 571 (1929). That Viskoe did not defend the suit does not affect the insurer’s liability. Id.

Judge Caesar’s action becomes inequitable as well as improper when viewed in its procedural context. In the pretrial stage of the case, Judge Lord allowed service by publication and thus effective joinder of third-party defendant Viskoe. Judge Caesar presided over the jury trial. The jury returned a verdict for the Bucks. The jury exonerated those responsible for the middle vehicle, the Klotz/Forte vehicle. The jury’s verdict placed liability for the accident upon the Ewing/Coldway/Viskoe vehicle. Ewing, the driver, was not a defendant in the case. After the jury verdict was rendered, Judge Caesar presided over the motion of the Bucks and Coldway to release Coldway on the grounds that Viskoe, trip lessors, carried the primary insurance for the trip. While the Bucks must of course accept the consequences of releasing Coldway, it must also be borne in mind that they did so in reliance on the knowledge that Viskoe was a default defendant in the case. Fundamental fairness precludes the court from allowing a judgment molded against a party that had been held to be in the case before the trial began and then declare that that same party was never in the case after all after the jury had found them liable.

We conclude that Judge Caesar reversed the law of the case, thus taking action beyond the power conferred upon his court by the ease law of this Commonwealth. Hence, we declare his order void. See Marzullo v. Stop-N-Go Food Stores, 364 Pa.Super. 106, 527 A.2d 550 (1987) (Brosky, J. dissenting).

We find Carolina’s remaining arguments to be frivolous in addition to being inadequately developed so as to present no issues for our review.

For the foregoing reasons, we vacate the order of April 20, 1988 and remand to allow the court to reinstate the judgment of September 21, 1987 against Viskoe Trucking Company and to proceed with the execution of the judgment.

Order vacated. Case remanded. Jurisdiction relinquished.


author: DEL SOLE, Judge:

text:
    557 A.2d 409
    John CARELLI and Kathleen Carelli, Individually and as Husband and Wife, Appellants, v. PENNSYLVANIA MEDICAL SOCIETY LIABILITY INSURANCE COMPANY, Dr. Saul R. Berg, Dr. Alan J. Silverstein and Dr. Robert C. Rankin, Appellees. Jeannette Tibbens HORNER v. Joan O. MELVIN, Chief Magistrate, City of Pittsburgh Housing Court, Richard Bruce, Code Enforcement Administrator of the City of Pittsburgh and Brian Hill, Senior Building Inspector of the City of Pittsburgh, Bureau of Building Inspection, Appellees. Appeal of Jeannette Tibbens HORNER and Allen N. Brunwasser, Appellants. Allen N. BRUNWASSER, Appellant, v. PRESBYTERIAN-UNIVERSITY HOSPITAL OF PITTSBURGH, Michael Karpf, M.D., Henry Booth Higman, M.D., University Neurological Associates, Inc., Presbyterian-University Systems, Inc., Presbyterian-Health Resources Mgt., Inc., Internal Medicine Specialists, P.C. Steven B. Larchuck, Esquire and Dickie, McCamey and Chilcote, a Professional Corporation, Appellees. Charlotte SCHWARTZ, Appellant, v. CONCORD-LIBERTY SAVINGS AND LOAN ASSOCIATION and Eugene Coon, Sheriff of Allegheny County Pennsylvania Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1988.
    Filed Feb. 14, 1989.
    Reargument Denied April 13, 1989.

      Allen N. Brunwasser, Pittsburgh, for Carelli, appellants (at 1571); for Horner, appellant (at 25); for Brunwasser, in propria persona, appellant (at 25, 26); and for Schwartz, appellant (at 675).
    Lynn E. Bell, Pittsburgh, for PA Medical Society, appellees (at 1571).
    Nancy E. Gilberg, Philadelphia, for Melvin, appellee (at 25).
    Gretchen G. Donaldson, Pittsburgh, for Bruce and Hill, appellees (at 25).
    Bonnie Webster, Pittsburgh, for Presbyterian-University Hosp., appellees (at 26).
    Arnold M. Epstein, Pittsburgh, for Concord-Liberty and Coon, appellees (at 675).
    Before ROWLEY, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

These consolidated appeals follow the dismissal of Appellants’ complaints. We affirm.

Appellants argue that the trial court orders dismissing their complaints were in error because the trial court imposed “nit-picking” pleading standards rather than overlooking what were merely examples of “inartful pleading.” We disagree. Pa.R.C.P. 126 provides as follows:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

In applying the rationale expressed in this rule, courts have been inclined to overlook minor technical violations of the rules and have permitted the parties to amend. Wholesale disregard of the rules, however, cannot and will not be countenanced. Our independent review of the record and briefs leads us to conclude that the Honorable Silvestri Silvestri, faced with the bewildering configurations filed by Appellants as complaints, was not in error when he entered the orders in these cases. Accordingly, we affirm on the basis of his well-reasoned opinion.

Orders affirmed.


author: WIEAND, Judge:

text:
    557 A.2d 410
    Beverly MISHER, Administratrix of the Estate of Martin Misher, Deceased, v. BO’S AUTO PARTS, INC. and Charles Hickey and Harleysville Insurance Company. Appeal of HARLEYSVILLE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1989.
    Filed April 18, 1989.

      Joseph H. Foster, Philadelphia, for appellant.
    Ronald L. Wolf, Philadelphia, for Misher, appellee.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   WIEAND, Judge:

This appeal requires that we construe Pa.R.C.P. 3141(b) and determine when and under what circumstances a garnishee may exercise its option to proceed in the county to which a writ of attachment has been directed.

Martin Misher was killed on September 15,1983 when the vehicle which he was operating was in an accident involving a vehicle owned by Bo’s Auto Parts and driven by Charles Hickey, one of its employees in Lower Merion Township, Montgomery County. In a subsequent death action by the administratrix of Misher’s estate, liability was admitted, and a jury awarded damages of $3,087,002.72. A remittitur was subsequently granted by the trial court; and after delay damages had been granted and adjustments made, judgment was entered in the amount of $2,303,982.80. The vehicle owned by Bo’s Auto Parts was insured by Harleysville Insurance Company (Harleysville) under a policy having a liability limit of three hundred thousand ($300,000.00) dollars. This amount was paid on account of the judgment.

On November 20, 1987, an attachment execution was issued in Philadelphia County against Harleysville to recover the balance of the judgment because of Harleysville’s alleged bad faith refusal to settle prior to trial. A writ of attachment was issued and was forwarded, together with a set of interrogatories, to the Sheriff of Montgomery County for service on Harleysville at its “home office” in Montgomery County. On January 4,1988, Harleysville filed answers to the interrogatories in Philadelphia, the county from which the writ had been issued. Later, on January 21, 1988, Harleysville filed identical answers in Montgomery County, together with an election of optional venue in Montgomery County. Copies were forwarded to the court in Philadelphia County. On motion of the plaintiff-estate, however, the court in Montgomery County struck Harleysville’s election. The court held that an election had previously been made when Harleysville filed answers to interrogatories in Philadelphia County, from which the writ had issued. Having made that election, the court held, Harleysville could not subsequently change it. From the order striking its election of venue and returning the case to Philadelphia, Harleysville appealed.

“Venue” is the right of a party sued to have the action brought and heard in a particular judicial district. Potteiger v. Fidelity-Philadelphia Trust Co., 424 Pa. 418, 421 n. 5, 227 A.2d 864, 868 n. 4 (1967); Simpson v. Simpson, 404 Pa. 247, 251, 172 A.2d 168, 171 (1961). Although a plaintiff, as a general rule, may choose the forum in which to institute suit, that right is not absolute. See: Vogel v. National R.R. Passenger Corp., 370 Pa.Super. 315, 320, 536 A.2d 422, 425 (1988); McReynolds v. Benner Twp., 118 Pa.Cmwlth. 215, 301, 544 A.2d 566, 567 (1988). In garnishment proceedings, the rule permits a garnishee in all cases to require attachment proceedings to be heard in the county to which the writ has been directed. Pa.R.C.P. 3141(b) provides as follows:

(b) When the writ is issued to another county, preliminary objections, proceedings for stay, or release of property from attachment, answers to interrogatories, or other matters relating to the attachment, may at the option of the garnishee be filed or taken by him in the county to which the writ is directed or from which it issued. If filed or taken in the county to which the writ is directed, copies thereof and any order of the court thereon shall also be forwarded to the prothonotary of the county in which the writ issued, and to the plaintiff and the defendant or their attorneys, and shall contain or have attached an election of optional venue in the garnishee county. A copy is forwarded within the meaning of this rule if it is sent in the manner provided by Rule 8140(c).

This rule provides that the garnishee’s option to have the attachment heard and decided in the county to which the writ is directed must be exercised by filing “preliminary objections, proceedings for stay, or release of property from attachment, answers to interrogatories, or other matters relating to the attachment” in such county, and by forwarding a copy thereof, together with an election of venue, to the county from which the writ issued. If the garnishee does not wish to change venue and responds to a writ of attachment by filing his response in the county from which the writ issued, he necessarily elects thereby to have the attachment proceed in the county of issuance. Once the election has been made and the attachment has proceeded, the garnishee cannot at some future, indefinite time elect to remove the proceeding to the county to which the writ was directed.

This is the clear import of Pa.R.C.P. 3141(b). Because the words of the rule are clear and free from ambiguity, we will not disregard the letter of it under the pretext of pursuing the general principle that a garnishee shall have a choice of venue. See: Pa.R.C.P. 127(b). The right to object to venue is a personal privilege which may be waived so long as the court has jurisdiction to hear the matter before it. McLain v. Arneytown Trucking Co., 370 Pa.Super. 520, 524, 536 A.2d 1388, 1389 (1988); Wolf v. Weymers, 285 Pa.Super. 361, 367, 427 A.2d 678, 680-681 (1981). See also: Pa.R.C.P. 3145(a) (“The procedure between the plaintiff and the garnishee shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action.”). Thus, the right to change venue conferred by Rule 3141(b) may be waived by a garnishee and will be deemed waived where a garnishee accedes to and accepts the venue selected at the time of the issuance of the writ.

Appellant argues that Rule 8141(b) gives a garnishee an unfettered, nonwaivable, absolute right to elect venue in either county at any time, and that an election of venue in the county from which the writ has been issued cannot occur, regardless of the pleadings which may have been filed in that county, until the garnishee files a statement of election of venue. This argument is in direct conflict with the express language of the rule that the filing of an election is necessary only if the “optional venue” is to be laid in the county to which the writ has been directed. For us to hold that the rule allows the garnishee the “absolute and nonwaivable right” to elect venue at any time in the proceedings would be to interject a constant uncertainty as to where venue would ultimately lie. Such uncertainty would serve no useful purpose and surely could not have been the intent of the Supreme Court when it promulgated this rule. See: Pa.R.C.P. 127(a), 127(c)(6).

We hold, therefore, that in garnishment proceedings venue will lie in the county from which the writ of execution was issued unless the garnishee elects optional venue in the county to which the writ was directed by filing his first responsive pleading there and forwarding a copy thereof along with an election of optional venue to the county from which the writ of execution was issued.

In the instant case, the writ of execution and interrogatories were issued from Philadelphia County and were directed to Montgomery County. Appellant-garnishee elected to file its answers to the interrogatories, together with new matter, in Philadelphia County, the county from which the writ had issued. Appellant thereby elected to proceed in Philadelphia County and could not thereafter act ex parte to remove the proceedings to Montgomery County. The trial court acted properly in striking the garnishee’s later attempt to alter its original election to proceed in the county from which the writ had issued.

Order affirmed.

      . Because the question is not squarely before us we do not decide whether once venue has been established under Rule 3141(b), the garnishee may nonetheless avail himself of Rule 1006(d)(1) to effect a transfer of venue on grounds of forum non conveniens.


author: BROSKY, Judge: DEL SOLE, Judge,

text:
    557 A.2d 413
    ROLLINS PROTECTIVE SERVICES COMPANY, a Division of Rollins, Inc., a Delaware Corporation, Appellant, v. Daniel J. SHAFFER, an Individual. ROLLINS PROTECTIVE SERVICES COMPANY, a Division of Rollins, Inc., a Delaware Corporation, Appellant, v. Michael ALUISE, an Individual.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1988.
    Filed April 11, 1989.
    Reargument Denied May 10, 1989.

      John W. Jordan, IV, Pittsburgh, for appellant (at 782 and 783).
    Ralph H. German, Pittsburgh, for Shaffer, appellee (at 732) and for Aluise, appellee (at 788).
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   BROSKY, Judge:

These are appeals from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, entered April 28, 1988, denying appellant’s petition for preliminary injunction. The question before this court is whether a former employer must suffer irreparable harm from the competition of a former employee before it can enforce a non-competition clause in the former employee’s employment agreement. We affirm.

Appellees, Shaffer and Aluise, are former employees of appellant, who as of October 16, 1987 and November 9, 1987, respectively, left the employ of appellant to work for a direct competitor, Westec Securities Systems, Inc. On February 24, 1988, appellant filed suit in equity against each appellee, seeking preliminary and permanent injunctions against their continued employment with Westec, by virtue of covenants not to compete contained within the employment contracts signed by appellees when hired by appellant. Each contract contained a written restrictive covenant requiring the appellees not to engage in employment competitive with appellant for a period of two years within a 50 mile radius of Pittsburgh, Pennsylvania, in the event they left the appellant’s employ. It is agreed by all parties that both appellees are working for a direct competitor of appellant and are doing so within the Pittsburgh area.

The Chancellor found that the employment agreements are valid, but denied the motions for preliminary injunctions because the appellant not only failed to establish proof of irreparable harm, but failed to establish proof of any harm.

The scope of review with respect to the grant, refusal, or continuance of a preliminary injunction is very limited. We may only determine if there were any apparently reasonable grounds for the actions of the court below. Only if it is plain that no grounds exist to support the decree, or that the rule of law relied upon was palpably erroneous or misapplied, will we interfere with the decision of the chancellor. Blair Design and Construction Co., Inc. v. Kalimon, 366 Pa.Super. 194, 199, 530 A.2d 1357, 1359 (1987).

Appellant contends that the Chancellor applied a palpably erroneous rule of law when he held that appellant’s inability to prove actual harm prevented it from obtaining an injunction against appellees’ violation of their agreements not to compete with appellant in the Pittsburgh area. Appellant contends that, on the contrary, a former employer need not suffer irreparable harm from the competition of a former employee before it can enforce a noncompetition clause in the former employee’s employment agreement. In support of its position, appellant cites Bettinger v. Carl Berke Assoc., Inc., 455 Pa. 100, 314 A.2d 296 (1974), in which the court granted the issuance of an injunction to the former employer:

While it is generally trué that injunctions will only be issued upon a showing of irreparable harm, we are here dealing with a restrictive covenant in an employment contract. In Jacobson & Co. v. Int. Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967), we stated: ‘... employment contracts containing general covenants by an employee not to compete after the termination of his employment are prima facie enforceable if they are reasonably limited as to duration of time and geographical extent ... within such territory and during such time as may be reasonably necessary for the protection of the employer.’

427 Pa. at page 452, 235 A.2d at page 620.

The Bettinger court, after concluding that the record supported a finding that the covenant was reasonable, reviewed testimony with regard to plaintiffs customer contact in his employment as salesman in Bettinger’s temporary help division, and found that, since the customer contact was crucial to Bettinger’s business, it was reasonable for Bettinger to seek protection from competition from former employees like the plaintiff, whose sole job was to maintain close affiliations with prospective customers.

Appellant in the present case contends that the chancellor was in error when it said that “the Bettinger court relied upon the plaintiff’s evidence of irreparable injury to his business in concluding that the restrictive covenant was reasonable and the issuance of the preliminary injunction justified.” Appellant characterizes the evidence of injury to employer’s business in the Bettinger case as a “possibility of harm,” rather than an “irreparable injury,” and maintains that such a threat of irreparable injury exists in the present case.

While we do not disagree with appellant’s assertion that the harm found in the Bettinger case was in the nature of a “threat” of irreparable injury, appellant has failed to produce evidence to prove any harm, even in the form of a threat of injury to his business which resulted from the violation of the non-competition clause of his employment agreement with appellees.

In John G. Bryant Co. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977), the court upheld the issuance of a preliminary injunction even though the employer proved damages of only $427.00. In rejecting appellants’ argument that the amount of damages was not sufficient to establish irreparable harm, the court stated:

[Appellants’] reasoning, however, ignores the nature of the violation herein involved. It is not the initial breach of the covenant which necessarily establishes the existence of irreparable harm but rather the threat of unbridled continuation of the violation and the resultant incalculable damage to the former employer’s business the constitutes the jurisdiction for equitable intervention. ... The covenant seeks to prevent more than just the sales that might result by the prohibited contact but also the covenant is designed to prevent a disturbance in the relationship that has been established between appellees and their accounts through prior dealings. It is the possible consequences of this unwarranted interference with customer relationships that is unascertainable and not capable of being fully compensated by money damages. 471 Pa. at 8, 369 A.2d at 1167.

In the instant case, appellant has failed to prove any “unwarranted interference with customer relationships” that would constitute a threat of irreparable harm. The record below clearly establishes that appellees: 1) have not “stolen” any Rollins customers; 2) have not knowingly solicited any Rollins customers; and 3) did not take the Rollins customer lists with them upon their departure from appellant’s employ. As such, appellant is threatened with no greater harm to “customer relationships” from appellees, than from any other similarly situated employee not formerly employed by appellant, working for competitors other than Westec. Nor has appellant proven harm of any other nature resulting from the violation of the non-competition clause of his employment agreement with appellees.

This court recently set forth the four essential prerequisites of law, which must be found by the hearing court to coalesce prior to granting a preliminary injunction. They are:

immediate and irreparable harm which could not be compensated by damages; the greater injury would result by refusing it than by granting it; that it would properly restore parties to their status as existing immediately prior to the alleged wrongful conduct; and that the activity sought to be restrained in actionable suited to abate such activity. Blair Design & Construction Co., Inc. v. Kalimon, 366 Pa.Super. 194, 199, 530 A.2d 1357, 1359 (1987).

Inasmuch as appellant has failed to prove any harm resulting from appellee’s violation of their non-competition clause of their employment agreement, we affirm the order of the chancellor.

Order affirmed.

DEL SOLE, J. files a concurring opinion.

DEL SOLE, Judge,

concurring:

While I join in the decision of the Majority, I write separately to clarify what I believe is an important issue in Pennsylvania. It is my view that the law of this Commonwealth does not provide that non-competition clauses in employment contracts are entitled to enforcement by preliminary injunction absent a showing of irreparable harm.

The granting of a preliminary injunction is an extraordinary remedy. In order for that remedy to be warranted, four essential elements must coalesce. They are:

Immediate and irreparable harm which could not be compensated by damages; the greater injury would result by refusing it and by granting it; that it would properly restore parties to their status as existing immediately prior to the alleged wrongful conduct; and that the activity sought to be restrained is actionable and that an injunction is reasonably suited to abate that activity. Blair Design & Construction Co., Inc. v. Kalimon, 366 Pa.Super. 194 at 199, 530 A.2d 1357 at 1359 (1987).

A non-competition clause in an employment contract does not diminish the standard necessary for the entry of a preliminary injunction. Rather, the existence of a non-competition clause in an employment contract only permits the employer to seek relief from the court. It does not guarantee relief. In order to be granted a preliminary injunction to prevent competition by former employees, there must be a showing of irreparable harm. In New Castle Orthopedic Association v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978) the Supreme Court stated:

Herman states the threshold evidentiary requirement that must be met before a preliminary injunction may be issued: Actual proof of irreparable harm. Sling Testing supplements Herman in those case where the plaintiffs proof of injury, although small in monetary terms, foreshadows the disruption of established business relations which would result incalculable damage should the competition continue in violation of the covenant. 481 Pa. at 467, 392 A.2d at 1387.

Non-competition clauses do not enjoy any magical status which permits a preliminary injunction to be issued merely because of the existence of the clause. Rather, before a preliminary injunction can be issued there must be a showing of actual or potential irreparable harm to the employer. In the present case I agree with the conclusion of the Majority that no such showing existed. Rather, the record establishes that the plaintiff suffered no harm as a result of the actions of the defendants. Thus, I agree with the Majority in affirming the trial court’s determination on the issue of the preliminary injunction and remanding the matter back to the trial court for consideration of request for a permanent injunction.


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    557 A.2d 416
    Francis Gerald SANTILO and Esther Santilo, v. Lonny D. ROBINSON and David Kellerman. Appeal of David KELLERMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1989.
    Filed April 12, 1989.

      Charles W. Garbett, Ellwood City, for appellant.
    Peter J. Pietrandrea, Ellwood City, for appellees.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Appellant files this appeal from an order granting summary judgment and denying his claim for counsel fees. We affirm.

After plaintiffs’ (husband and wife’s) vehicíe was involved in a three car collision, they brought an action against the operators of the two other vehicles. Plaintiffs’ complaint alleged that their vehicle was traveling south along a roadway and that defendant, Lonny D. Robinson’s vehicle was traveling north on that same roadway. The Robinson vehicle was being followed by the Appellant’s automobile. Plaintiffs’ asserted that the Robinson vehicle crossed the center line colliding with their vehicle. They also alleged that a subsequent second collision, between Appellant’s automobile and their vehicle, was caused by Appellant’s negligence. Appellant responded by filing an Answer, New Matter and Counterclaim seeking an award of counsel fees on the basis that plaintiffs’ suit against him was based upon arbitrary, vexatious and bad faith conduct. In addition to these pleadings various answers to interrogatories, admissions, and depositions were filed on the issues of liability.

A Motion for Summary Judgment was subsequently filed by Appellant asserting that the Answers Interrogatories and Depositions establish conclusively that he was not at fault, but rather that the collision was due to the negligence of the Plaintiff-husband. This motion was denied. Sometime later Plaintiffs executed a general release discharging Robinson from liability. A praecipe to discontinue the action against Appellant was also filed. When Appellant failed to discontinue his counterclaim for counsel fees plaintiffs filed a Motion for Summary Judgment averring that the record indicates that the commencement of this action was not arbitrary, vexatious or in bad faith. The trial court’s order granting plaintiffs’ Motion for Summary Judgment is the subject of this appeal.

The court may require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was “arbitrary, vexatious or in bad faith”. 42 Pa.C. S.A. § 2503; Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983). The trial court concluded that the although plaintiffs’ case was weak, there was no evidence of arbitrary, vexatious or bad faith conduct in bringing this action. In reaching this determination the court concluded that the pleadings, depositions, answers to interrogatories and admissions on file, show that there was no genuine issue of material fact. Pa.R.C.P. 1035(d). The court properly acknowledged that when a motion for summary judgment is made, the adverse party may not rest upon the mere allegations contained in the pleadings, but a response by affidavits or other evidence must set forth specific facts showing that there is a genuine issue for trial. 42 Pa.R.Civ.P. 1035. “A motion for summary judgment must be granted in favor of a moving party if the other party chooses to rest on its pleadings, unless a genuine issue of fact is made out in the moving party’s evidence taken by itself.” Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 660 (1984).

In supporting his claim for attorney fees Appellant relied upon the Plaintiffs’ deposition, the deposition of the investigating officer and the accident report. We agree with the trial court that this evidence does not raise a genuine issue of material fact as to whether Plaintiff-husband believed he was the sole cause of the accident or whether plaintiffs intended to annoy Appellant by commencing the lawsuit. Although plaintiffs’ claim against Appellant may not have been a strong one and while they may have not been able to prove their case of negligence, the record does not indicate that plaintiffs did not reasonably believe that their claim was valid under existing or developing law. 42 Pa.C.S.A. § 8352(1). In fact, it can be noted that the trial court refused to grant Appellant’s motion for Summary Judgment on the liability issue.

Actions are not brought only where there is certain proof of liability and damages. Punishing all those who initiate actions which are not ultimately successful by granting the defendant’s request for counsel fees would have a chilling effect on right to bring a suit for negligence. This was not the intent of the rule permitting recovery of counsel fees upon a showing of arbitrary, vexatious or bad faith conduct. Finding no evidence in the record raising a genuine issue concerning plaintiffs’ conduct in bringing this claim, we affirm the trial court’s order.

Order affirmed.


text:
    557 A.2d 418
    RELIANCE SECURITY SERVICE, INC., Appellee, v. 2601 REALTY CORP., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1989.
    Filed April 25, 1989.

      Mark C. Rifkin, Philadelphia, for appellant.
    A. Taylor Williams, Philadelphia, for appellee.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   WIEAND, Judge:

Where a corporate defendant is found liable for breach of contract in compulsory arbitration and appeals, is the rate of interest on his indebtedness, as subsequently adjudicated in a trial de novo, determined according to the terms of the contract or at the legal rate? The trial court determined that the indebtedness continued to bear interest at the rate established by the contract until a verdict was entered. We agree and affirm.

2601 Realty Corporation (2601 Realty) contracted with Reliance Security Service, Inc. (Reliance) for fire security service to be provided to an apartment building owned by 2601 Realty while the building’s fire alarm system was being upgraded. The contract provided for weekly payments for Reliance’s services and imposed an interest rate of one and one-half (iVa%) percent per month for any payments overdue for more than thirty (30) days. 2601 Realty failed to pay any of Reliance’s invoices, contending that the services had been inadequately rendered. Reliance, therefore, filed suit. The matter was referred to compulsory arbitration where, after hearing, an award was entered in favor of Reliance for $6,886.20. 2601 Realty appealed. Following trial without jury, the trial court allowed a recovery by Reliance in the amount of $4,312.50, plus counsel fees of $3,405.50' and interest of $2,644.08. Interest was computed at the rate of one and one-half (IV2 %) percent per month, or eighteen (18%) percent per annum, as provided in the parties’ agreement. Post-trial motions were denied, and judgment was entered. On appeal, 2601 Realty argues only that the trial court erred in computing interest.

Appellant contends that after an award had been entered by a board of arbitrators, interest on any amount found to be due thereafter had to be calculated at the legal rate of six (6%) percent. Act of January 30, 1974, P.L. 13, No. 6, 41 P.S. § 202. We disagree. The statutory provision relied upon by appellant requires that a judgment bear interest at the legal rate “from the date of the verdict or award or from the date of the judgment, if the judgment is not entered upon a verdict or award.” 42 Pa.C.S. § 8101.

The purpose of an appeal from compulsory arbitration, however, “is to prevent judgment. When an appeal is taken the award becomes an undetermined cause which must be tried de novo and prosecuted to judgment, discontinuance or non pros.” Lanigan v. Lewis, 210 Pa.Super. 273, 277, 232 A.2d 50, 52-53 (1967). See also, Weber v. Lynch, 473 Pa. 599, 610 n. 7, 375 A.2d 1278, 1283 n. 7 (1977); Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 393, 300 A.2d 900, 901 (1972) (“The arbitrator’s award, unless appealed from, will remain in full force and effect and binding upon the parties. Where, however, there is a timely and proper appeal by one of the parties, such as in this case, the arbitrator’s award loses its finality and the case is heard anew.”) (emphasis added).

As soon as appellant perfected an appeal from the compulsory arbitration award, therefore, the arbitration award ceased to exist. The court in which the appeal was filed was not bound by the findings of the arbitrators, and the action could “proceed to trial with no evidentiary limitations upon the parties other than those which would be applicable to an original trial.” Weber v. Lynch, supra, 473 Pa. at 610, 375 A.2d at 1283. The effect of the appeal, in law and in fact, was to return the parties to the positions in which they were prior to arbitration. Thus, the trial court could properly assess interest at the rate specified by the parties in their agreement. It was only after the trial court’s verdict had been entered that it bore interest at the rate of six (6%) percent per annum.

Affirmed.

      . Appellant has not argued that the rate established by the contract was usurious. Section 15.1 of the Act of July 20, 1968, P.L. 459, No. 216, 15 P.S. § 1313, amending the Business Corporation Law, provides:
      No business corporation shall plead or set up usury, or the taking of more than six percent interest, as a defense to any action brought against it to recover damages on, or to enforce payment of, or to enforce any other remedy on, any mortgage, bond, note, or other obligation executed or effected by the corporation.


text:
    557 A.2d 419
    Daniel P. HOWELL, Appellant, v. Theodore CLYDE and Pamela Clyde, his Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1988.
    Filed April 17, 1989.

      Arthur Cutruzzula, Pittsburgh, for appellant.
    Darryl R. Slimak, State College, for appellees.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

Daniel Howell, Appellant, was injured when a miniature cannon owned by Theodore and Pamela Clyde, Appellees, exploded. Howell brought suit against the Clydes for damages. At the end of Howell’s case-in-chief, the Clydes were granted a compulsory non-suit. Howell filed a Petition for Post-Trial Relief requesting the trial court to remove the non-suit. The trial court denied the Motion and this appeal followed.

Howell attended a “Fourth of July” party at the Clydes’ home. During the party, fireworks were set off. As the evening wore on, a number of people began to talk about Theodore Clyde’s cannon. This cannon was a cast iron hollowed-out piece of pipe approximately 14 inches in length which had been made by Clyde’s grandfather. The party-goers discussed discharging the cannon but Clyde had no gun powder. Howell, who had previously owned a muzzle loader gun, supplied the gun powder. He helped Clyde pour the powder into the cannon and then watched Clyde pack wadding into the muzzel. When Clyde lit the fuse of the cannon he warned his guests to stand back. The majority of the guests stood behind a nearby car while Howell stood 80 to 40 feet away from the cannon but in front of the car. When the cannon fired it broke into pieces and one of the fragments hit Howell in the thigh.

The trial court found that, as a matter of law, the danger was obvious to any adult of normal intelligence, that Howell had assumed the risk and, therefore, granted the Clydes’ Motion for a Compulsory Non-Suit. Howell appeals raising two issues which, taken together, ask whether the trial court properly granted a non-suit to the Clydes on the basis of the evidence presented and on the doctrine of assumption of risk. We think not and vacate the judgment of non-suit and remand for a new trial.

The applicability of the assumption of risk doctrine has been in flux in Pennsylvania for some time. In Rutter v. Northeastern Beaver School District, 496 Pa. 590, 437 A.2d 1198 (1981), a plurality of the Pennsylvania Supreme Court announced that “except where specifically preserved by statute; or in cases of express assumption of risk, or cases brought under 402A, (a strict liability theory), the doctrine of assumption of risk is abolished.” 496 Pa. at 613, 437 A.2d 1198. Rutter involved a high school student who was injured during football practice. The trial court ruled that he had assumed the risk and granted the school district a non-suit. The Superior Court affirmed but the Supreme Court reversed stating that:

... the difficulties of using the term “assumption of risk” outweigh the benefits. The issues should be limited to negligence and contributory negligence. Those are the problems in the case at bar and in all cases brought on a negligence theory. There is no need to introduce further complications. The policy reasons which once existed to preserve the doctrine because of its use in the master-servant cases no longer exist.

496 Pa. at 613, 437 A.2d 1198.

Two years later a majority of the Supreme Court reversed a trial court decision because the trial court had not given an assumption of risk instruction to the jury. In Carrender v. Fitterer 503 Pa. 178, 469 A.2d 120 (1983), the plaintiff was a patient who parked in her doctor’s parking lot. The plaintiff testified that certain parts of the lot were icy and she was aware of this condition but proceeded to walk on the ice. The patient fell on the ice on the way back to her car and brought suit against the doctor. The Supreme Court held that the defendant owed no duty to the plaintiff because a possessor of land is not liable to invitees for obvious dangers of which the invitee is aware. The Supreme Court based its decision on the duties of landowners to invitees and wrote that “the doctrine of assumption of risk operates merely as a counterpart to the possessor’s lack of duty to protect the invitee from those risks.” 503 Pa. at 188, 469 A.2d 120.

The Supreme Court attempted to reconcile Carrender with Rutter by pointing out that while Rutter was a plurality opinion, both cases mean that “holding that a risk has been assumed is in many cases tantamount to a determination that, as a matter of law, the defendant owed the plaintiff no duty.” 503 Pa. at 189, Note 6, 469 A.2d 120. In Malinder v. Jenkins Elevator and Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) an en banc panel of the Superior Court held that assumption of risk is still a viable defense where “the record fails to establish a duty owed by the defendants to the plaintiff.” 371 Pa.Super. at 427, 538 A.2d 509. Malinder concerned a person who was struck by an elevator after he put his head in the elevator shaft to call for the freight elevator. The usual method to call for the elevator was an intercom system which was working the day of the injury. The plaintiff brought suit against various defendants including those who had undertaken the duty to inspect the elevator. The jury found in favor of the plaintiff, but on appeal the Superior Court held that the facts in this case were indistinguishable from Carrender. Consequently, the defendants had the same duty to the plaintiff that the landowner had to his invitee who was aware of the dangerous conditions: none.

Taken together, these cases do give one beacon of guidance for the present case. That is, the assumption of risk defense, at the non-suit stage at trial, is generally limited to situations where no duty of care is owed to the plaintiff. In order to receive a non-suit based on the assumption of risk defense, it must be established that the defendant has breached no duty of care owed to the plaintiff. Where the duty of care owed by the defendant has been breached, the question of whether the plaintiff has assumed the specific risk of injury should be submitted to the jury. We do not decide today whether a non-suit should be granted in a situation where the defendant owed a duty of care to the plaintiff and there is no question that the plaintiff knowingly accepted the risk of injury. (For a comprehensive discussion about the applicability of the assumption of risk doctrine at the non-suit stage see Justice Flaherty’s plurality opinion in Rutter, supra.)

The court erred in granting a non-suit in favor of the Clydes on the basis of the assumption of the risk doctrine. The court could only have granted a non-suit had Howell’s evidence failed to demonstrate a breach of a duty owed by the Clydes. That was not the case. Because the record does not establish that Howell knew of the existence of the specific risk he was alleged to have assumed, it cannot be held as a matter of law that he assumed the risk or that the Clydes owed any duty to him. See, Rutter, supra. Judgment of non-suit lifted. Case remanded for new trial. Jurisdiction relinquished.