author: CIRILLO, President Judge:

text:
    517 A.2d 968
    Callie G. BRYANT v. GIRARD BANK and Provident National Bank and State Farm Fire & Casualty Co., Inc. and Young Adjustment Company. Appeal of YOUNG ADJUSTMENT CO. Callie BRYANT, Appellant, v. GIRARD BANK and Provident National Bank and State Farm Fire & Casualty Co., Inc. and Young Adjustment Company.
    Superior Court of Pennsylvania.
    Argued June 17, 1986.
    Filed Nov. 3, 1986.

      Robert H. Malis and Stephen A. Cozen, Philadelphia, for appellants in No. 3228 and appellees in No. 82.
    Meyer A. Bushman, Philadelphia, for appellant in No. 82 and appellee in No. 3228.
    Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   CIRILLO, President Judge:

This case involves cross appeals from an order denying the post-trial motions of Young Adjustment Company (Young), granting in part the post-trial motions of Callie Bryant and assessing damages in favor of Callie Bryant. On appeal, Young contends that the trial court erred in refusing to grant its motions for judgment n.o.v. and a new trial. In the alternative, Young contends that the trial court incorrectly calculated damages. Callie Bryant contends that the trial court erred in calculating the amount of interest due on the award. Each appeal will be considered separately.

FACTS AND PROCEDURAL HISTORY

The standard of review in cases involving the denial of a motion for judgment n.o.v. is well established. As stated by this Court in Walsh v. Gas and Water Co., 303 Pa.Super 52, 449 A.2d 573 (1982):

In reviewing the denial of a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, “A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper....” Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).

303 Pa.Super. at 58, 449 A.2d at 576. With this standard in mind, the complex facts of the instant case may be summarized as follows.

Bradley and Callie Bryant were married and owned a home in Devon, Pennsylvania, as tenants by the entireties. The home and its contents were insured pursuant to a contract of insurance issued to the Bryants jointly by State Farm Fire and Casualty Company, Inc. (State Farm). The Bryants became separated late in the summer of 1977. On July 8, 1978, the marital home and its contents were destroyed by fire while both Bryants were in Florida. On the following day the Bryants entered into a contract with Young, a public adjustor. Young agreed to represent the Bryants in the presentation and adjustment of their insurance claim in exchange for a fee of ten percent of the Bryant’s total monetary recovery.

During the fall of 1978, State Farm issued three drafts in satisfaction of the Bryants’ claims. The drafts represented the insurance proceeds from the loss of their home, for loss of their personal property, and for emergency living expenses, respectively. Each draft was made payable to the Bryants jointly. Young was also listed as a joint payee on each of the drafts in light of its fee which was payable upon successful adjustment and payment of the Bryants’ claim. Girard Bank was also listed as a joint payee on one of the drafts due to its mortgage interest in the home. Each of the drafts was embossed on its reverse side with the words “ALL PAYEES MUST ENDORSE THIS DRAFT.”

The record reveals that on the morning of September 15, 1978, Mr. Lamb, Callie Bryant’s attorney, telephoned Mr. Horowitz, Young’s Vice President. While in Callie Bryant’s presence, Lamb informed Horowitz that he represented Callie Bryant in a domestic relations dispute and that Callie Bryant was concerned. At trial, Lamb testified that he also instructed Horowitz that “when the release came in and the checks [drafts from State Farm] came in, that one or both of us wanted to be there to have Mrs. Bryant sign the releases, and when the checks came in to get the checks....” Callie Bryant testified that Lamb instructed Horowitz that “[u]nder no circumstances are you to release those releases or the drafts unless Mrs. Bryant or myself are present.”

Lamb also instructed Horowitz that Young represented both Mr. and Mrs. Bryant. According to Lamb, Horowitz stated that he understood Mr. Lamb and that there would be “no problem.”

At approximately 4:00 p.m. on September 15, 1978, Mr. Leach, a representative and employee of Bradley Bryant, appeared in Horowitz’ office bearing two of the State Farm drafts. The drafts were handed to Mr. Horowitz. Mr. Horowitz endorsed the drafts and handed them back to Leach. In return, Leach handed Horowitz an envelope containing two checks, totalling approximately $47,000, which represented Young’s fee. Leach then left Horowitz’ office and delivered the State Farm drafts to Bradley Bryant. This process was repeated on October 17, 1978 with respect to the third draft.

Mr. Horowitz did not notify Mr. Lamb or Callie Bryant of any of his transactions with Leach. Neither Lamb nor Callie Bryant were present to receive the drafts.

Subsequently, and without his wife’s knowledge, Bradley Bryant printed his name and his wife’s name on the back of each draft. The checks were then negotiated through joint accounts maintained by the Bryants at various banks, including Girard, which satisfied the Bryant’s mortgage obligation out of the proceeds. The drafts were honored by the banks.

In November of 1978, Lamb and Callie Bryant learned through contacting Horowitz that the drafts had come through and that Horowitz considered the case closed. Horowitz also informed Lamb that, as far as Young and Horowitz were concerned, Young represented Bradley Bryant only.

Bradley Bryant disappeared and disposed of all of the insurance proceeds to the exclusion of his wife and children. He was subsequently incarcerated on unrelated charges.

In 1979, Callie Bryant instituted the present action in Philadelphia County on her own behalf and on behalf of Bradley Bryant as an unwilling plaintiff against Young, State Farm, Girard, and Provident National Bank. Alternatively, the action was brought “on her own behalf by virtue of the fact that her claim for equitable distribution under the 1980 Divorce Code ... involves and includes the property which is the subject matter of this litigation.” In sum, it was alleged that Young breached its fiduciary duty and breached its agency contract when it endorsed and forwarded the drafts to Bradley Bryant despite having advance warning and actual knowledge that Bradley might act adversely to his wife’s interest. It was also alleged that Girard and Provident negligently honored the drafts without Callie Bryant’s endorsement. Provident joined Savannah and Pioneer banks as additional defendants. Savannah joined Bradley Bryant for purposes of indemnification. Bradley Bryant did not appear at trial and apparently, with the exception of a divorce action subsequently instituted by Callie Bryant, no other action has been instituted against him by any of the parties in the instant matter.

On October 6, 1980, Callie Bryant filed a complaint for divorce in Montgomery County. A decree granting the divorce and retaining jurisdiction to resolve the issue of equitable distribution was entered on December 21, 1982. On September 6, 1983 the Montgomery County court awarded Callie Bryant “the entire proceeds or recovery against [Young] ... free and clear from any claim or interest of [Bradley Bryant] ... ,” and also any and all real or personal property previously or currently titled in Callie Bryant’s name. This order was amended on March 9, 1984, and awarded Callie Bryant all property ever possessed by her, titled in her name, or held as tenants by the entireties with her husband.

The instant action went to trial in May of 1985. Prior to trial, Callie Bryant entered into settlement agreements with Provident and the additional defendant banks. Each bank executed a joint tortfeasor release. On the final day of trial, but prior to verdict, Girard also settled and executed a release. The trial proceeded against Young alone. The jury returned a verdict on liability against Young alone with specific findings that Young was negligent with regard to its handling of the State Farm drafts and that such negligence was a substantial factor in bringing about the harm suffered by Callie Bryant.

The issue of damages was decided by the trial court. The trial judge determined that Callie Bryant was entitled to the full amount of the net insurance proceeds payable to the Bryants minus the following: (1) an amount paid in satisfaction of a mortgage on the property, (2) the amounts received in settlement with the banks plus interest earned thereon, and (3) the amount previously paid to Young in fees. Damages were assessed and awarded in the amount of $275,215.84. Young’s post-trial motions for judgment n.o.v. and new trial were denied. Callie Bryant’s exception to the trial court’s order insofar as it deducted interest purportedly accruing on the settlement monies paid previously by the settling banks was denied. These appeals followed.

YOUNG’S APPEAL

A. JUDGMENT NOTWITHSTANDING THE VERDICT

Young raises three issues with regard to the trial court’s denial of its motion for judgment n.o.v.: (1) whether the evidence was legally sufficient to establish a duty on the part of Young and a breach thereof; (2) whether, as a matter of law, Young’s conduct could constitute a substantia] factor in bringing about Callie Bryant’s loss; and (3) whether the. record demonstrates the existence of intervening, superseding causes which, as a matter of law, preclude Young’s liability for the loss of the drafts.

In support of its first judgment n.o.v. issue, Young asserts that the record does not support an inference that it breached a duty owed to Callie Bryant pursuant to the adjusting contract; that it owed or assumed any duties outside the adjusting contract, or that it breached a duty owed to Bradley or Callie Bryant as members of the entire-ties estate. We hold that Young’s first and second judgment n.o.v. issues are not preserved for our review.

It is well settled that issues not raised in the trial or hearing court are not properly preserved for appellate review and will not be considered. Kovach v. General Telephone Co. of Pennsylvania, 340 Pa.Super. 144, 489 A.2d 883 (1985); Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983); Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983); O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980); Pa.R.A.P. 302(A); Pa.R.C.P. 227.1(b). Moreover, failure to set forth an argument in briefs filed in the trial court in support of post-trial motions constitutes a failure to preserve the issue or issues not argued. Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386 (1985), citing Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). See also Equipment Finance v. Toth, 328 Pa.Super. 351, 476 A.2d 1366 (1984); Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978).

In the instant case, Young failed to raise or even suggest in its post-trial motions for judgment n.o.v. the duty and substantial factor issues and related sub-issues now raised on appeal. Further, Young’s brief filed in support of its post-trial motions contains no argument whatsoever concerning the nature or existence of the duty owed to Callie Bryant or to the entireties estate. Under these circumstances, we conclude that Young’s first two issues have not been preserved for our review.

Young’s remaining judgment n.o.v. issue concerns the intervening conduct of Bradley Bryant and the banks. Young argues that the conduct of Bradley Bryant and the banks were superseding causes of the harm suffered by Callie Bryant and that judgment n.o.v. should have been granted on this basis. We disagree.

As stated by our Supreme Court in Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977):

Although some force may have intervened between appellee’s conduct and the resulting harm to the appellant, it cannot be said, as a matter of law, that any such intervening force superseded appellee’s conduct. Not every intervening force is a superseding force. Section 435(1) of the Restatement of Torts, Second, states:
“If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that neither foresaw nor should have forseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.” See Churbuck v. Union Railroad Company, 380 Pa. 181, 110 A.2d 210 (1955).

474 Pa. at 595-96, 379 A.2d at 115. (Emphasis added.)

In Ford, the Court applied the Restatement (Second) of Torts, Sections 435, 442B, and 438 to a situation where an unidentified intervening force started a fire in a negligently maintained building. The fire spread and damaged a neighboring building. The Court held that the owner of the building could not escape liability as a matter of law simply because the harm resulted in a manner which was unforeseeable. Further, the Court in Ford held that the owner of the building could not escape liability as a matter of law simply because the intervening act may have been done by a third person committing an intentional tort or crime. We find such reasoning applicable here.

Section 448 of the Restatement (Second) of Torts, provides as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should, have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

(Emphasis added).

The trial testimony of Callie Bryant and her attorney established that Horowitz was specifically informed of: (1) Callie Bryant’s concern about the handling of the drafts and the distribution of the insurance proceeds; (2) the Bryants’ domestic situation; and (3) Callie Bryant’s understanding that Young acted as agent for both Bryants. More importantly, there is ample support in the record for the inference that Horowitz was specifically instructed that Callie Bryant or her attorney were to be present to receive the drafts prior to the processing and release of them by Horowitz. Under these circumstances, we conclude that Horowitz’ conduct in disregarding Lamb’s instructions created a situation in which third persons, particularly Bradley Bryant, might avail themselves of the opportunity to commit a tort or crime. Whether or not Young realized or should have realized that such a situation had been created was a question for the jury to decide. Ford, supra. In sum, the trial court properly concluded that Young could not escape liability as a matter of law based on the intervening acts of Bradley Bryant.

Young contends that an application of the factors listed in Section 442 of the Restatement (Second) of Torts establishes that, as a matter of law, the conduct of the banks constitutes a superseding cause which insulates Young from liability. We have considered these factors and find none of them dispositive of the issue at hand. We are guided by Comment b of Section 442B of the Restatement:

If the actor’s conduct has created or increased the risk that a particular harm to the plaintiff will occur, and has been a substantial factor in causing that harm, it is immaterial to the actor’s liability that the harm is brought about in a manner which no one in his position could possibly have been expected to foresee or anticipate. This is true not only where the result is produced by the direct operation of the actor’s conduct upon conditions or circumstances existing at the time, but also where it is brought about through the intervention of other forces which the actor could not have expected, whether they be forces of nature, or the actions of animals, or those of third persons which are not intentionally tortious or criminal. This is to say that any harm which is in itself foreseeable, as to which the actor has created or increased the recognizable risk, is always ‘proximate, ’ no matter how it is brought about, except where there is such intentionally tortious or criminal intervention, and it is not within the scope of the risk created by the original negligent conduct.

(Emphasis added.)

Young’s conduct in the instant case could have increased the risk that Bradley Bryant would harm his wife and children by (1) obtaining the insurance proceeds and (2) diverting them to his own use, or (3) preventing Callie and the children from sharing in the proceeds. The possibility of such harm caused Callie Bryant’s concern. The possibility of such harm prompted the telephone call to Horowitz. The possibility of such harm prompted Lamb’s specific instructions to Horowitz. Horowitz ignored the concern and ignored the instructions. Such harm in fact occurred. As stated by the Court in Ford, supra:

If one engages in negligent conduct toward another, such as unreasonably increasing the risk that that person will suffer a particular kind of harm, it cannot be said, as a matter of law, that the actor is not liable simply because the foreseeable plaintiff suffered the foreseeable harm in a manner which was not foreseeable.

474 Pa. at 596, 379 A.2d at 111 (Emphasis added).

We conclude that the conduct of the banks did not, as a matter of law, constitute a superseding cause of the harm suffered in the instant case.

B. NEW TRIAL

We next consider Young’s contention that the trial court improperly denied its motion for a new trial. Initially, we reiterate the well established rule regarding the circumscribed scope of appellate review applicable to a trial court’s order granting or denying a new trial. The grant or denial of a new trial will not be subject to reversal on appeal absent either an error of law which controlled the outcome of the case, Martin v. Johns-Manville Corp., 508 Pa. 154, 163, 494 A.2d 1088, 1093 (1985), citing Anzelone v. Jesperson, 436 Pa. 28, 258 A.2d 510 (1969); Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967), or a palpable abuse of discretion when the ruling turns on the weight of the evidence. Martin v. Johns-Manville, supra, citing Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 367-68, 263 A.2d 432, 436 (1970).

Young first contends that the trial court erred in refusing to charge the jury as to the comparative negligence of the settling banks for purposes of apportioning damages. We disagree.

First, our review of both the original record and that portion of the record reproduced by Young on appeal fails to reveal the existence of a request by Young for an instruction regarding the apportionment of liability or damages. Error cannot be predicated upon the failure to give instructions which were never requested. Campana v. Alpha Broadcasting Co., Inc., 239 Pa. 39, 361 A.2d 708 (1976).

Second, as noted by the Court in Wade v. S.J. Groves and Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981), “... the Restatement places the burden of proving an apportionment on the party who seeks it. Restatement (Second) of Torts, § 433(B)(2).” 283 Pa.Super. at 774, n. 7, 424 A.2d at 905, n. 7. Young has not met this burden. Indeed, it is clear that there existed no reasonable basis upon which the jury could apportion Callie Bryant’s loss among the causes. As stated in Wade, supra: “There was no reasonable basis for determining the contribution of each cause to a single harm and, therefore, the damages should not have been apportioned.” 283 Pa.Super. at 474, 424 A.2d at 905 (footnote omitted). See also Martin v. Johns Manville Corporation, 349 Pa.Super. 46, 502 A.2d 1264 (1985) (damages may be apportioned when there are distinct harms or separate causes of a single harm and a reasonable basis exists for apportionment). In the instant case there was but one distinct and indivisible harm: the loss of the insurance proceeds as represented by the three State Farm drafts. This harm was caused by the combined negligence of Young and the banks. However, stated simply, our review of the record reveals no reasonable basis for isolating any of the causative factors and assigning them a percentage of liability for the total loss.

We next consider Young’s contention that the trial court erred by refusing to charge the jury as to the comparative negligence of Callie Bryant. The trial court denied such an instruction, ruling that the evidence was insufficient to support an inference that Callie Bryant had been negligent. Our review of the record convinces us that the trial court’s conclusion was entirely correct.

Young raises three instances of alleged negligence on the part of Callie Bryant. First, Young asserts that Callie Bryant did little or nothing to protect her interests after Lamb’s telephone call to Horowitz. However, the evidence adduced at trial reveals that Callie Bryant’s alleged inaction was clearly the result of her reliance upon representations by Horowitz, her agent, that he would comply with Lamb’s specific instructions regarding the handling of the drafts. Contributory negligence on the part of the plaintiff is negated when the harm results from a concealed danger of which the plaintiff has neither actual or constructive notice. Walters v. Char-Mar, Inc., 220 Pa.Super. 79, 284 A.2d 139 (1971). In the instant case, the record reveals that Callie Bryant had no notice of Horowitz’ complete disregard of her instructions until well after the drafts had been lost. The trial judge correctly concluded that no inference of negligence could be drawn from Callie Bryant’s reliance upon Young’s representations.

Young next argues that an inference of negligence may be drawn from Callie Bryant’s failure to close joint bank accounts maintained by her and her husband. Young argues that Callie Bryant knew or should have known that her husband might use the joint accounts to somehow deprive her of the insurance proceeds. Therefore, according to Young, the trial court erred in refusing to instruct the jury as to Callie Bryant’s negligence. This argument, although not without facial appeal, lacks merit.

The following quote from the Restatement (Second) of Torts is instructive:

There is a difference to be noted between negligence and contributory negligence. Where the negligence of a defendant creates a risk of a particular harm, occurring in a particular manner, and the same harm is in fact brought about in another manner, through the operation of some intervening force which was not one of the hazards making up the original risk, the defendant normally is not relieved of responsibility by the intervention of the force, and is liable for the harm. (See § 442A and Comments.) But where the negligence of the plaintiff creates a risk c 3j| particular harm to him, occurring in a particular manner, and the same harm is in fact brought about by the intervention of a force which was not one of the original hazards, the plaintiff is not barred from recovery. This difference is to be attributed to the more restrictive attitude of the courts toward contributory negligence, as compared with negligence, and their tendency to confine it within somewhat narrower limits.

Restatement (Second) of Torts, 468, Comment c. (Emphasis added.)

While Section 468 deals with a plaintiff’s conduct as it relates to the doctrine of contributory negligence, we find the above emphasized portion of the comment to that section applicable here. Assuming arguendo that Callie Bryant’s failure to close the joint accounts constitutes negligence, and that her negligence created the risk that Bradley might harm her by misusing the accounts in some way, the fact remains that the actual loss of the drafts was brought about by a force which was not one of the original hazards. Further, the force was clearly one that Callie Bryant had no duty to foresee. See Fahringer v. Rinehimer, 283 Pa.Super. 93, 423 A.2d 731 (1981). That “force” was Young’s complete disregard of Lamb’s specific instructions regarding the handling of the drafts. We agree with the trial court that the continued maintenance of the joint accounts could not support an inference of negligence on the part of Callie Bryant under the facts of this case.

Young next asserts that Callie Bryant was negligent in authorizing the preparation and mailing of the following letter from Lamb to Horowitz:

As I indicated to you in my telephone conversation of September 15, 1978, I represent Mrs. Bradley F. (Callie) Bryant. She and her husband are experiencing some domestic difficulties at this point and I am very concerned that if and when a settlement of the fire loss in Devon takes place, that you be absolutely sure that Mrs. Bryant has signed the release and the check is made out to both her and her husband. It is not my intention to accuse anyone of anything; I am merely concerned that you verify with me or with Mrs. Bryant that she has actually signed the release before the check is issued.

(Emphasis added.)

Young argues that the letter, dated September 20, 1978, supports an inference that Callie Bryant, through her attorney, created an ambiguity regarding Lamb’s instructions and thereby contributed to Young’s belief that he acted in a reasonable manner and in accordance with Lamb’s telephone instructions. We disagree. First, the letter clearly could have had no impact on Horowitz’ handling of the first two drafts. These drafts were signed and relased by Horowitz within hours of the telephone conversation with Lamb and several days prior to his receipt of the allegedly ambiguous letter. Second, any “ambiguity” is clearly obviated by the last sentence of Lamb’s letter, in which Horowitz was instructed to “verify ... before the check is issued.” Horowitz’ deposition testimony, which was read into the record at trial, reveals that no such verification was made or even attempted with regard to any of the three drafts. Upon review, we conclude that the record does not support an inference that Callie Bryant negligently created any ambiguity with respect to the clear instructions given to Horowitz. Therefore, the trial court was correct in refusing a comparative negligence charge founded upon Callie Bryant’s authorization of the letter in question.

Young would also assign error on the basis of the trial court’s failure to instruct the jury as to the comparative negligence of Bradley Bryant as a member of the entireties estate. Our examination of the trial transcript reveals that this exact issue was the subject of a discussion between the trial judge and counsel for the parties prior to the court’s charge to the jury. At that time, counsel for Young agreed that the issue of Bradley’s comparative negligence would not be included in the court’s charge to the jury. This agreement was freely given without reservation or qualification. Moreover, Young made no objection at the conclusion of the charge. Thus, Young can not be heard to complain on appeal that the trial court erred by failing to instruct the jury as to Bradley’s negligence. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

The final new trial issue raised by Young concerns the trial court’s failure to instruct the jury on the issue of superseding cause. Young contends that it was entitled to such an instruction based upon the acts and omissions of Bradley Bryant and the banks as established at trial. Having reviewed the trial court’s general charge on causation as well as the charge in its entirety, we conclude that the trial court’s careful instructions on substantial factor and concurring cause obviated the need for a separate instruction on superseding cause. See Piekarkski v. Club Overlook Estates, Inc., 281 Pa.Super. 162, 421 A.2d 1198 (1980). See also Pennsylvania Proposed Standard Jury Instructions, No. 3.28 and accompanying note.

C. DAMAGES

The issue of Callie Bryant’s interest in the insurance proceeds is complex. To summarize, Young contends that Callie Bryant is entitled to only one half of the insurance proceeds. Appellant claims that the applicable caselaw establishes that whenever a husband and wife are co-insured they each possess a one-half interest in the policy proceeds. In support of this proposition Young cites Maravich v. Aetna Life and Casualty, 350 Pa.Super. 392, 504 A.2d 896 (1986); Opat v. State Farm Fire and Casualty Insurance Co., 542 F.Supp. 1321 (E.D.Pa.1982) and McDivitt v. Pymatuning Mutual Fire Insurance Company, 303 Pa.Super. 130, 449 A.2d 612 (1982).

We must reject this assertion. Young’s claim is based on a total misinterpretation of the very cases it has cited. The McDivitt, Maravich and Opat courts each recognized that a party’s right to recover under an insurance policy is determined by the terms of the policy and not the ownership of the underlying insured asset. Even if the marital home is owned by the entireties, if the husband and wife are joint co-owners of the policy insuring the home they are each entitled to fifty percent of any insurance proceeds. If the policy is owned by the entireties they each own an undivided interest in the total amount of the proceeds. Maravich, 350 Pa.Super. at 407, 504 A.2d at 904 (it is contract of insurance and nature of interests created by its terms which is determinative of rights of co-insured). Nor does the method of payment chosen by the insurance company affect the parties rights. No matter how the company drafts its payment, the right to that payment is controlled by the ownership of the policy.

Ownership of the policy is a factual question which is determined by the totality of the circumstances. McDivitt v. Pymatuning Mut. Fire Ins. Co., 302 Pa.Super. 130, 136, 449 A.2d 612, 615 (1982). The court must examine whose name the policy is in, who paid the premiums and from what funds, and whether the policy was held for the common benefit of husband and wife. Id., 302 Pa.Superior Ct. at 135-137, 449 A.2d at 615-16. However, property jointly held by a husband and wife is presumptively owned by the entireties. In re Estate of Holmes, 414 Pa. 403, 406, 200 A.2d 745, 747 (1964).

The cases cited by Young have carved out a limited exception to these rules. However, that exception is no help to Young. The cases hold that even if a homeowner’s policy is owned by the entireties, an innocent spouse is entitled to fifty percent of the policy’s value when the other spouse destroys the home by arson. Maravich, 350 Pa.Super. at 401-07, 504 A.2d at 901-04. This equitable exception protects the innocent spouse, who otherwise would receive nothing. It is inapplicable to this case since arson is not involved. Also, each of the cited cases concerned a dispute over the insurance company’s obligation to pay the proceeds. No such dispute is present here as State Farm has already paid the Bryant’s claims. Young questions only the ownership of the payments. Furthermore, Young is attempting to turn the exception around and use it to victimize an innocent party. This we refuse to do.

In the instant case, the policy was held in the names of both husband and wife and thus, was presumptively entire-ties property. See Holmes, 414 Pa. at 406, 200 A.2d at 747. Young has failed to rebut this presumption. It has offered no evidence in support of his theory that appellee and her husband each owned separate one-half shares in the policy. As noted above, Young’s argument rests on a total misinterpretation of the law.

In the decree of divorce, appellee was awarded all the property owned by the entireties. Therefore, she was entitled to one hundred percent of the insurance proceeds unless the entireties estate in those proceeds was terminated prior to the decree.

An entireties estate may be terminated by an offer and acceptance of partition. Gray v. Gray, 275 Pa.Super. 131, 133-134, 418 A.2d 646, 648 (1980). If one owner misappropriates the funds for his own benefit, it is considered an offer of partition. Id., 275 Pa.Superior Ct. at 133-34, 418 A.2d at 648. If the other party then files suit for partition, it is deemed an acceptance of the offer and the entireties estate is terminated. Id.

Mr. Bryant misappropriated the insurance proceeds but appellee never accepted this offer of partition. She responded by filing suit for divorce. Therefore, the entireties estate was not destroyed and was still in existence at the time of the decree.

Young claims that awarding appellee one hundred percent of the insurance proceeds constitutes overcompensation. It argues that State Farm has already paid the full value of the policy to the entireties estate. However, appellee will certainly not be overcompensated. She was entitled to one hundred percent of the insurance proceeds but she received nothing because of Young’s negligence. She is entitled to the difference between what she should have gotten and what she did get. As the learned trial court stated:

“... had Young Adjustment Company not acted negligently in endorsing the drafts and turning them over to Bradley Bryant without Callie Bryant being notified and present contrary to the express instructions of her attorney, the proceeds of those drafts would have been marital property and subject to equitable distribution pursuant to the Divorce Code of Pennsylvania. Furthermore, since the drafts were titled in the names of both Callie and Bradley Bryant, the proceeds were properly entireties property, and the subsequent decree of the Court awarded all such property to Callie Bryant.”

If Young thinks it has been unfairly penalized because of Bradley Bryant’s wrongful acts, it should take recourse against Mr. Bryant.

For the foregoing reasons, the trial court’s decision as to damages is affirmed.

CALLIE BRYANT’S APPEAL

Callie Bryant challenges the trial court’s deduction of statutory interest purportedly accruing on the settlement funds paid by the settling banks from the total amount assessed against Young. We affirm the trial court.

The trial court’s calculation of damages was as follows:

$496,566.17 ..... (full amount of drafts)
Less: 106,886.41 ..... (amount of Girard’s
_ Mortgage)
$389,679.76
Less: 49,656.62 ..... (amount of Young’s _ fee)
$340,023.14
Less: 127,778.00 ..... (amount of settlements)
$212,245.14
Plus: 89,142.97 ..... (interest from 1/1/ _ 78-11/1/85
_ $301,388.11 at 6% on above amount)
Less: 26,172.27 ..... (credit for interest at 6%
$275,215.84 on settlement from respective dates of settlement [with defendant banks] until 11/1/ 85)

Callie Bryant would assign error on the basis of the final deduction of $26,172.27, arguing that the deduction is illogical and unjust in that it penalizes her for having settled with the banks. We disagree.

“Interest is the compensation allowed by law ... for the deprivation of money. When there is no such deprivation, no interest can be awarded.” Schleeter v. Intrieri, 326 Pa.Super. 233, 235, 473 A.2d 1067, 1068-69 (1984) (Emphasis added). In the instant case, Callie Bryant was not “deprived” of the amounts received in settlement with the banks in that she received these monies several months prior to entry of judgment in her favor. The trial court correctly adjusted the total award to reflect the fact that she had the use of these monies during that period of time. We find no abuse of discretion.

AFFIRMED.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    517 A.2d 980
    COMMONWEALTH of Pennsylvania v. Allen CARROLL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Filed Nov. 10, 1986.

      Allen Carroll, Jr., in propria persona.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant was convicted of driving under the influence of alcohol after a hearing in Philadelphia Municipal Court. He subsequently filed an appeal pro se for a trial de novo in the Common Pleas Court and was arraigned on January 3, 1986 at which time he advised the court he would have “counsel of his choice” on the scheduled trial date.

On February 4, 1986, the appellant filed a document entitled “Constructive Notice” and a “Brief in Support of Constructive Notice” which the court characterized as “attacks on our entire system of justice.” (Slip Op. 4/9/86, p. 2).

The appellant’s case was called for trial on February 18, 1986 at which time he advised the court of his desire to be represented by a non-lawyer. The appellant continued to argue that he had a right to counsel of his choice and when the court would not agree, he sought a continuance.

The court granted the continuance but also held appellant in contempt of court for obstructing justice and fined him $500. This appeal pro se followed.

Appellant in his pro se brief argues that the court erred in finding him in contempt for attempting to have the counsel of his choice. We do not agree.

“Each court is the exclusive judge of contempts against its process, and on appeal its action will be reversed only when a plain abuse of discretion occurs.” Neshaminy Water Res. v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 469, 481 A.2d 879, 883 (1984) citing East & West Coast Service Corp v. Papahagis, 344 Pa. 188, 190, 25 A.2d 341, 342 (1942).

The court in its Opinion discusses the law as it applies to choice of counsel and properly establishes that a non-lawyer cannot represent others in court.

In his brief, appellant cites to the earliest statutes of the Commonwealth which would permit a person to be represented by a friend. This was in the context of colonial society where the practice of law, as a profession, was unregulated and the number of persons trained in the law was few. Necessity dictated that untutored and illiterate persons have available to assist them a person who might have superior skills, knowledge or literacy. Pursuant to the Pennsylvania Constitution, power to regulate the practice of law before all the courts of Pennsylvania has been exclusively granted to the Supreme Court of Pennsylvania. Article V, section 10(c) provides:

(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions, (emphasis added)

For the purpose of administering the admission to the bar and practice of law, the Supreme Court has created the Board of Law Examiners, which establishes standards for admission to the bar and has adopted the Code of Professional Responsibility (detailed in 42 Pa.C.S.A.) enunciating the standards governing the conduct of those privileged to practice law in this Commonwealth.

In Wajert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980), the Supreme Court determined that a former judge was a public official, as defined by the Ethics Act, 65 P.S. § 403(e), but that the act was unconstitutional as it infringed upon the exclusive power of the Supreme Court to govern conduct of persons privileged to practice law, Pennsylvania Constitution, Article V, section 10(c).

In this case, appellant would place himself above the constitution, above the Supreme Court administrative rulings and above the law in designating a non-lawyer to defend him. It might be argued that the appellant would get the representation he deserved in such a designation, but the law, particularly in criminal cases, will, whenever possible, protect the individual from his own folly. Only where the appellant/defendant insists on representing himself, pursuant to the guarantee of the federal and state constitutions, will the exception be made, and then, only after the court has assured itself that the party is aware of the danger of such a practice and standby counsel has been afforded. To do otherwise would simply interfere with the orderly administration of justice and undermine the principles of justice that requires fairness and procedural due process.

Local courts have no power to admit persons to the practice of law as the Supreme Court of Pennsylvania has exclusive authority over admissions to the bar. Laffey v. Court of Common Pleas of Cumberland County, 503 Pa. 103, 468 A.2d 1084 (1983). The practice of law involves matters of serious public concern and in addition to regulation by the Supreme Court (pursuant to the constitution), the legislature has determined to control abuse and to prevent the unauthorized practice of law. In doing so, it has enacted the following:

42 Pa.C.S.A. § 2521. Office of attorney at law
Persons admitted to the bar of the courts of this Commonwealth and to practice law pursuant to general rules shall thereby hold the office of attorney at law.

and

§ 2524. Penalty for unauthorized practice of law
Any person who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney at law, attorney and counsellor at law, counsellor, or the equivalent in any language, in such a manner as to convey the impression that he is a practitioner of the law of any jurisdiction, without being an attorney at law or a corporation complying with the act of July 9, 1970 (P.L. 461, No. 160), known as the “Professional Corporation Law,” commits a misdemeanor of the third degree, (footnote omitted)

We believe the above discussion clearly establishes that a non-lawyer cannot represent another person in court and that the determination of what qualifications are required to be a lawyer is exclusively within the authority of the Supreme Court. Neither the appellant nor the trial court could qualify the appellant’s designee as a lawyer for purposes of representing him in a criminal proceeding.

The court also discussed appellant’s conduct and determined that it constituted a knowing and deliberate attempt to delay the proceedings by attempting to have a crime (the unauthorized practice of law) committed at the bar of the court. This, the court found, was justification for the contempt Order.

After a complete review of the record and applying the standard of review set forth above, we find no basis for reversing the action of the lower court.

The Order holding appellant in contempt of court is hereby affirmed.

Order affirmed.


text:
    517 A.2d 982
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. Nathan M. ELITZKY and Judy Elitzky, H/W and Honorable Joseph C. Bruno. Appeal of Nathan ELITZKY and Judy Elitzky, H/W. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Nathan M. ELITZKY and Judy Elitzky, H/W and Honorable Joseph C. Bruno.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1986.
    Filed Nov. 13, 1986.

      Stephen A. Scheuerle, Philadelphia, for appellant (at 424) and appellee (at 611).
    Larry R. McDowell, Philadelphia, for appellant (at 611) and appellee (at 424).
    Ellen Q. Suria, Philadelphia, for Bruno, appellee.
    Before CIRILLO, President Judge, and MONTEMURO and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal and cross-appeal from a declaratory judgment entered by the Court of Common Pleas of Philadelphia County. We reverse.

Appellant, United Services Automobile Association (“United”) brought an action for declaratory judgment requesting a decree that it had no duty to indemnify or to provide a defense for appellees, Nathan and Judy Elitzky, in an action filed against them by appellee, the Honorable Joseph C. Bruno, Judge of the Court of Common Pleas of Philadelphia County. Judge Bruno’s complaint states that from September 9, 1980 until October 4, 1983, Judy Elitzky was a litigant in certain proceedings in the Orphans’ Court Division of the Court of Common Pleas of Philadelphia County over which Judge Bruno presided. The complaint also alleges that during the course of this litigation, the Elitzkys wrote numerous letters which were sent to Judge Bruno, Jack Anderson, the Hon. Charles Klein, Edward G. Rendell, Esq., the District Attorney of Philadelphia, Leroy Zimmerman, Esq., the Attorney General of Pennsylvania, and Marvin L. Block, Esq., in which the Elitzkys stated that Judge Bruno was involved in a “behind the scenes arrangement to circumvent discovery,” was believed by “federal officials” to be “a participant in the coverup of the criminal activity of trustees,” was guilty of “judicial corruption,” attempted to “fix” a case, and had an “improper relationship” with a party to the case and with the law firm of Wolf, Block, Schorr and Solis-Cohen. Judge Bruno has denied all of these allegations.

The complaint contains three counts. Count 7 is entitled “Malicious Defamation” and seeks compensatory damages from the Elitzkys for the allegedly defamatory statements made by them. Paragraph 24 of the complaint states in pertinent part:

At the time of the publication of the letter of September 23, 1983, defendants knew that the statements, inferences and innuendos impugning the integrity of plaintiff contained in that letter were entirely false or, if not, their failure to determine the accuracy of the letter was in utter and reckless disregard of its truth or falsity....

Count II of the complaint is entitled “Intentional Infliction of Emotional Injury” and in paragraph 33, Judge Bruno alleges that:

Defendants published the false and groundless charges against plaintiff as described in this complaint with no legitimate purpose, but rather with the purpose of intentionally inflicting emotional distress upon plaintiff.

Count III is entitled “Punitive Damages” and seeks recovery for the alleged “malicious, intentional and reckless conduct of defendants....”

The Elitzkys purchased a homeowner’s insurance policy from appellant United in November, 1979 which was still in force at the time of the acts alleged in Judge Bruno’s complaint. The policy provided coverage for “damages because of bodily injury and property damages” subject to the following exclusionary clause:

1. Coverage E — Personal Liability and Coverage F— Medical Payments to others do not apply to bodily injury or property damage.
a. Which is expected or intended by the insured.

United disclaimed coverage under the policy for the acts alleged in Judge Bruno’s complaint and in March, 1984, United filed the instant action seeking a declaratory judgment. Upon conclusion of a trial without jury, the court entered a decree that United need not provide coverage but the court refused to rule on the indemnity issue, holding that it was not yet ripe for judicial resolution. The court held that the Elitzkys’ need for indemnity may never arise because Judge Bruno may not prevail in his suit. Though the court denied United’s request for declaratory relief concerning its obligation to indemnify the Elitzkys, it did so without prejudice to the company’s right to seek such relief should a judgment eventually be secured by Judge Bruno.

The court found that the alleged injuries for which Judge Bruno sought compensation were covered by the policy provisions relating to “bodily injury” and “property damage.” However, the court then stated that Judge Bruno’s causes of action were exclusively based upon intentional tort theories and therefore were excluded from coverage under the policy as damage or injury “intended or expected by the insured.” Therefore, the court concluded that United had no duty to defend the Elitzkys in the action brought by Judge Bruno.

At trial, the court granted United’s motion in limine seeking to bar the Elitzkys from introducing any testimony or other evidence in connection with their understanding of the coverage provided by the policy and any alleged representations made to them concerning that coverage. The court ruled that such testimony was impermissible because the policy exclusions were clear and unambiguous.

Appellees, the Elitzkys, present three issues for our review: (1) whether the trial court erred in determining that United is not required to defend the Elitzkys in the action brought by Judge Bruno; (2) whether the trial court erred in not affirmatively determining that United was obligated to indemnify the Elitzkys should Judge Bruno receive a judgment against them; and (3) whether the trial court erred in granting United’s motion in limine.

United argues that the trial court erred in not affirmatively deciding that it will have no duty to indemnify the Elitzkys even if Judge Bruno receives a judgment against them.

The obligation of an insurer to defend an action against the insured is fixed solely by the allegations in the underlying action. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Vale Chemical Co. v. Hartford Acc. & Indem., 340 Pa.Super. 510, 490 A.2d 896 (1985). As long as the complaint comprehends an injury which may be within the scope of the policy, the company must defend the insured until the insurer can confine the claim to a recovery that the policy does not cover. Vale, 340 Pa.Super. at 518, 490 A.2d at 900.

Therefore, in order to decide whether United must defend the Elitzkys in the action brought by Judge Bruno, we must determine whether the injuries alleged by Judge Bruno are potentially within the coverage of the Elitzkys’ policy. In order to make that determination we must interpret the insurance contract itself. The construction of a writing is a question of law over which this court need not defer to the finding of the trial court. Erie Ins. Exchange v. Transamerica Ins. Co., 352 Pa.Super. 78, 83, 507 A.2d 389, 392 (1986). However, we must remember that it is a contract which we are interpreting and that we must do so in light of the parties’ reasonable expectations. Standard Venetian Blind Co. v. Am. Empire Ins., 503 Pa. 300, 469 A.2d 563 (1983).

The standards to be applied in reviewing such a contract are well settled. First, the words included in the instrument must be given their ordinary meaning. Erie, 352 Pa.Superior Ct. at 83, 507 A.2d at 392. Second, ambiguous terms in an insurance policy should be construed against the insurer. Id. Third, a term is ambiguous only “if reasonably intelligent men on considering it in the context of the entire policy would honestly differ as to its meaning.” Id. Fourth, the parties true intent must be determined not only from the language but from all the surrounding circumstances. Id.

Even if coverage is not excluded by the terms of the policy it may be excluded as violative of the public policy of Pennsylvania. Nationwide Mutual Ins. Co. v. Hassinger, 325 Pa.Super. 484, 489, 473 A.2d 171, 173 (1984). In Has-singer, we held that it is against the public policy of this state to provide insurance for certain intentional acts. This ruling is based on the common law adage that a person should not profit from his wrongful acts. Id. The Hassinger court defined intent by relying on the Restatement (Second) of Torts, § 8A. The court held that intent means that the actor desired to cause the consequences of his act or that he acted knowing that the consequences were substantially certain to result. Id., 325 Pa.Superior Ct. at 493, 473 A.2d at 175. The court stated that intent may also be transferred from the intended victim to another. Id.

Resolution of the first issue hinges on interpretation of the words “intended” and “expected” as used in the Elitzkys’ insurance contract. We will apply the foregoing principles to each term separately.

Contemporary liability insurance policies generally exclude coverage for injury or damage intended by the insured. See Annot., 31 A.L.R. 4th 957. Understandably, insurance companies do not want to allow a person to insure against harms he may intentionally and unlawfully cause others. This is a corollary of the idea that insurance is meant to cover only fortuitous losses. See Keeton, Insurance Law 291 (1971). However, courts have been unable to reach a consensus as to the correct interpretation of the word intended when it appears in such an exclusionary clause. Some courts have held that the exclusion is inherently ambiguous while other courts have found it to be clear and unambiguous as a matter of law. See Cowan v. Insurance Co. of North America, 22 Ill.App.3d 883, 318 N.E.2d 315 (1st Dist.1974) (clause is ambiguous); Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga.App. 874, 285 S.E.2d 566 (1981) (clause is clear and unambiguous).

Though the cases disagree over the proper interpretation of the term, most of them distinguish between intentional actions and intentionally causing a particular result. The vast majority of courts hold that the clause precludes coverage if the insured acted with the specific intent to cause some kind of bodily injury or damage. See Pachucki v. Republic Ins. Co., 89 Wis.2d 703, 278 N.W.2d 898 (1979). See also cases collected, Annot., 31 A.L.R. 4th 957.

Some courts, however, focus on whether the act producing the injury was intentional. These jurisdictions have held that when an intentional act results in injury which is a natural and probable consequence of that act, the injuries are excluded from coverage. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633 (Tex.1973). Other courts have rejected this view as being inapplicable to the interpretation of an insurance contract. See Continental Western Ins. Co. v. Tool, 309 Minn. 169, 244 N.W.2d 121 (1976). In Continental Western, the court stated that insurance contracts are interpreted in light of the intent of the contracting parties and the legal presumptions of tort law are relevant only if they reflect that intent. Id.

Some insureds have asserted that not only should a specific intent to harm be required but it must be an intent to produce the specific damage that in fact occurred. Courts have usually rejected this argument, holding that the exclusion applies as long as some harm is intended, even if the actual damage which results is of a totally different character from that intended. See Butler v. Behaeghe, 37 Colo.App. 282, 548 P.2d 934 (1976). But see Allstate Ins. Co. v. Sparks, 63 Md.App. 738, 493 A.2d 1110 (1985) (intended means specific intent to cause precise injury which occurs).

However, some courts appear to have held that the exclusion only applies if the actor intended to cause a harm of the same general type as that which did result. See Riverside Ins. Co. v. Wiland, 16 Ohio App.3d 23, 474 N.E.2d 371 (1984).

From this brief summary it is apparent that exclusionary clauses such as the one in the Elitzkys’ insurance policy are susceptible to several reasonable interpretations. Therefore, we must reject the learned trial judge’s conclusion that the clause is clear and unambiguous. We hold that as a matter of law, such clauses are ambiguous and must be construed against the insurer. See Erie, 352 Pa.Super. at 83, 507 A.2d at 392.

Pennsylvania law is clear on at least one of the issues involved. In our state, the exclusionary clause applies only when the insured intends to cause a harm. Insurance coverage is not excluded because the insured’s actions are intentional unless he also intended the resultant damage. See Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). The exclusion is inapplicable even if the insured should reasonably have foreseen the injury which his actions caused.

In Mohn, a beneficiary sought to recover on an insurance contract after the insured was fatally wounded by a policeman while fleeing from a burglary. Id., 458 Pa. at 577, 326 A.2d at 347. The insurer disclaimed coverage, asserting that the insured’s injury was the reasonably foreseeable result of his own wrongful actions. The Supreme Court rejected this argument and held that coverage was not excluded. The Court ruled that the doctrine of forseeability is inapplicable to the interpretation of insurance contracts. The Court agreed with reasoning similar to that employed by the Continental Western court. Both courts held that the interpretation of an insurance contract is controlled by the intention of the parties and technical legal concepts such as forseeability are little help in understanding an insured’s intent. Id., 458 Pa. at 585-86, 326 A.2d at 351-52.

Our Supreme Court considered a similar exclusionary clause in Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673 (1970). In Eisenman, Alton Hornberger broke into the home of Mr. and Mrs. Eisenman to steal some liquor. While in the house, Hornberger lit matches to find his way around and as each, match burned down, he dropped it on the floor. One match smoldered for hours, eventually resulting in a fire which completely destroyed the house and the personal property within it. Id., 438 Pa. at 47-48, 264 A.2d at 673-74. At the time, Hornberger was insured under a policy which excluded from coverage “property damage caused intentionally by ... the insured.” Id., 438 Pa. at 48-49, 264 A.2d at 674. The court focused on the victim’s injury, holding that the exclusion applied only to situations where “the insured intended by his act to produce the damage which did in fact occur.” Id. The court also stated:

The insurance policy does not exclude damage resulting from intentional acts of the insured but only damage intentionally caused by him. There is no basis on which to conclude that the insured in this case intended to cause any property damage in dropping the matches as they burned down to the end of the stem.

Eisenman appears to align Pennsylvania with those jurisdictions which hold that the exclusion applies if the insured intended to cause a harm of the same general type as that which did occur. The court stated that the fire was not intended because Hornberger did not intend “to cause any property damage....” Id. This implies that the court would have considered the damage to be intentional had the insured intended some type of property damage even if he did not wish to start a fire.

Also, Hornberger did intentionally cause the Eisenmans harm as he purposefully broke into their house to steal from them. As noted previously, other courts have held that if an insured intentionally causes some harm, any other harm which results is also considered intentional even if it is of an entirely different character and magnitude. Under the view of these courts, the fire would be intentional even though it was a different harm than Hornberger intended when he broke into the house. By rejecting this conclusion the court implicitly rejected the reasoning of those jurisdictions.

We also reject the view that intent means specific intent to cause the precise injury which did occur. See Riverside Insurance Co., supra. Such an approach would reward wrong-doers by affording them insurance coverage just because their plans went slightly awry. A gunman who intends to shoot a victim in the foot should not be awarded insurance coverage because his aim was faulty and he shot the victim in the heart. The gunman’s intention never deviated from its wrongful path. The Riverside court’s approach also prevents difficulties of proof. An insured would be entitled to coverage unless he admitted that he intended the precise injury which occurred. We hope it is not too jaundiced a view of human nature to express doubt that such testimony would be forthcoming.

Our interpretation of Eisenman is consistent with the policies underlying that decision. Courts must construe ambiguous clauses in favor of the insured but at the same time insurance companies should not be forced to insure against harm deliberately brought about by the insured. Our interpretation affords maximum coverage to insured persons as coverage is precluded only for harm of the same general type as that which they set out to inflict. This is the harm controlled by the insured and it is this harm which the companies should not be forced to insure against.

This interpretation is also consistent with public policy. Insured persons will not be encouraged to act wrongfully knowing that they are protected by insurance. An insured will only be covered if he causes a harm of a generally different type than that which he set out to cause. This meager protection is hardly sufficient to embolden wrongdoers.

As noted, the opposing viewpoint is that any time harm is intended, the insured is responsible for any and all harm which results no matter how far from the character and magnitude of the injury which the insured actually intended. This view ignores that it is a contract which we are interpreting and that we must do so in light of the parties reasonable expectations. Standard Venetian Blind Co. v. Am.Empire Ins., 503 Pa. 300, 469 A.2d 563 (1983). Innumerable hypothetical examples may be created which illustrate the point. An insured angrily slaps someone in the face, intending only to sting the victim’s cheek. But the person’s head jumps back from the impact and hits a wall, causing neurological damage and sending the victim into a coma. The insured intentionally caused the victim harm and under the view that it does not matter what type of harm results, the insured would be denied insurance coverage. Yet, would any reasonable insured expect that in such circumstances he would be viewed as having intended that a coma would result? Such a conclusion is based on legal notions of intent and causation which have very little relevancy to a layman’s expectations when he signs an insurance contract.

As previously noted, in Mohn, supra, our Supreme Court held that the doctrine of foreseeability is inapplicable to the interpretation of insurance contracts. Mohn 458 Pa. at 581, 326 A.2d at 349. The Court reasoned that such legal concepts are little help in understanding an insured’s intent. Likewise, we believe that complicated and technical doctrines of intent and causation are little help in determining an insured’s reasonable expectations as to his insurance coverage.

As we stated in Hassinger, supra, intent means that the “actor desired to cause the consequences of his act” or that he acted knowing such consequences were “substantially certain to result....” Hassinger, 325 Pa.Super. at 493, 473 A.2d at 175.

We adopt the Hassinger court’s definition of intent even though that case did not deal with the interpretation of a contractual provision. Hassinger dealt only with what type of acts should be excluded from insurance coverage as violative of public policy. However, we feel that an “intended” harm clause should be coterminous with the public policy exclusion. A contrary conclusion would lead to the illogical holding that certain acts are not excluded from coverage under an “intended harm” clause but are nonetheless excluded because of public policy. The law is complex enough without the addition of such highly technical and ultimately pointless distinctions.

In summary, we hold that an intended harm exclusionary clause in an insurance contract is ambiguous as a matter of law and must be construed against the insurer. We hold that such a clause excludes only injury and damage of the same general type which the insured intended to cause. An insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result.

In light of the preceding discussion, it is apparent that Judge Bruno’s complaint does state a cause of action which may be covered by the Elitzkys’ insurance policy. Judge Bruno’s libel claim is excluded under the policy’s intended harm provision only if the Elitzkys made their comments about the judge with the specific intent to cause him a harm generally similar to the emotional distress or injury to reputation which the Judge allegedly suffered. If the Elitzkys are found to have made false statements about the judge even though they knew their claims were untrue, such an intent to harm might be presumed. But Judge Bruno can recover on his libel claim even if the Elitzkys thought their claims were true if that belief was in reckless disregard of the truth. Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983). If the Elitzkys believed their statements were true then it is very possible that they did not make them for the purpose of injuring Judge Bruno. It is possible that the Elitzkys recklessly disregarded the truth and libeled Judge Bruno yet did so with pure hearts. For instance, they may have acted intending only to help reform the court system. Even so, if they recklessly ignored the possibility that their beliefs about Judge Bruno were misguided, liability may be imposed. Theoretically, Judge Bruno may succeed in his cause of action even if the Elitzkys intended him no harm. In that situation, the “intended injury” exclusion would be inapplicable. In this regard, it is essential to distinguish intent from recklessness. In Hassinger, supra, we stated that a person acts intentionally when he desires to cause the consequences of his act or believes those consequences are substantially certain to result from it.

The Restatement (Second) of Torts states that as “the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness____” Restatement (Second) of Torts § 8A.

Recklessness is defined in § 500 of the Restatement which has been adopted by the Pennsylvania courts. See Stubbs v. Frazo, 308 Pa.Super. 257, 260-61, 454 A.2d 119, 120 (1982). Section 500 provides:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500.

However, some cases suggest that the standard for recklessness for purposes of a libel case is slightly different from the usual definition cited above. In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court stated that recklessness for libel purposes can be established based on a conclusion “that the defendant, in fact, entertained serious doubt as to the truth of his publication.” Id. at 731, 88 S.Ct. at 1325. Even if recklessness is defined in this manner, the Elitzkys should still be covered by the policy. It is possible that they doubted the truth of their allegations about Judge Bruno but decided to send the letters anyway. They could have made this decision because of a belief that their actions would aid society. Resolving one’s doubts in favor of helping society is not the equivalent of intentionally harming someone.

Similarly, Judge Bruno may recover for intentional infliction of emotional distress even if the Elitzkys did not have the specific intent to cause him such distress as long as they acted recklessly. Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 495 A.2d 203 (1985). Though Judge Bruno has only alleged recklessness under the count in his complaint for libel, we note that he may amend his complaint at a later time. Therefore, Judge Bruno’s complaint clearly comprehends injuries which may not be excluded from coverage by the intended injury clause.

However, our inquiry does not end here as the policy in question also excludes injury “expected” by the insured. During the 1960’s, insurance companies re-wrote the standard liability policy, adding an exclusion for injuries expected by the insured. The companies wished to exclude coverage for certain foreseeable results. They were aware that the courts had been generally unsympathetic to such an exclusion when construing the term “intended” in the old policies. The companies added “expected” to the new standard policy hoping to broaden the class of excluded injuries. See Keeton, Insurance Law 299-300 (1971).

Ever since this change, courts have puzzled over the proper interpretation of the term. The main areas of disagreement have been: (1) is there any difference between “intended” injury and “intended and expected” injury; (2) whether “expected” connotes an element of conscious awareness by the insured; and (3) what degree of forseeability is required to exclude an injury from coverage as “expected”. See Annot., 31 A.L.R. 4th 957.

Some jurisdictions have ruled that intended and expected are synonymous when used in insurance policies and when used together, do not detract nor add to the other term. See Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla.App.2d 1974). In Grange, the court reasoned that differentiating between the legal consequences of the two terms would be inconsistent with a layman’s reasonable expectations.

Some cases have ruled that intended and expected are distinguishable. In City of Carter Lake v. Aetna Cas. and Sur. Co., 604 F.2d 1052 (8th Cir.1979), the court held that an injury is expected if the actor knew or should have known that there was a substantial probability the harm would result from his actions. Id. at 1058-59.

Other courts have distinguished the two terms but rejected the Carter Lake court’s interpretation. In C. Raymond Davis & Sons, Inc. v. Liberty Mut. Ins., 467 F.Supp. 17 (E.D.Pa.1979), the court defined expected as “more likely than not.” Id. at 20. However, the court also held that the insured must be aware that the risk of harm is more likely than not. Id. at 20-21. Even if the insured should have been aware of the risk but was not, the injury may not be excluded from coverage.

In Bay State Ins. Co. v. Wilson, 96 Ill.2d 487, 71 Ill.Dec. 726, 451 N.E.2d 880 (1983), the court agreed that expected connotes an element of conscious awareness on behalf of the insured. The court then held that expected means that the insured acted even though he was consciously aware that the injury was practically certain to result. Id. at 490, 71 Ill.Dec. at 729, 451 N.E.2d at 883.

As we have previously noted, the words in an insurance policy are to be given their common, ordinary meaning. Erie, 352 Pa.Super. at 83, 507 A.2d at 392. Webster’s defines “expect” as follows:

3a. to look for, specifically to anticipate the coming of.
3b. to look forward to, specifically to anticipate the occurence of.
4a. to consider probable or certain.

Each of these definitions connotes an element of conscious awareness by the insured. None of them defines expected as events the insured should have known about. We are also fearful that an exclusion of injuries the insured “should have anticipated” might exclude from coverage, not only intentional injuries but also those caused by negligence. As the court stated in Grange, supra:

“[I]f we were to give the exclusion before us the meaning argued by appellant, then, by a parity of reasoning, we would have to exclude any injury from an unintentional tort which a given jury might categorize as being “expected” depending upon the degree of likelihood thereof under the facts and circumstances of the case. Conceivably, indeed, this might include an injury resulting from simple negligence....”

Id. at 159.

We do not believe that a layman would reasonably expect that as a result of the inclusion of such a phrase in his insurance contract he might not be insured for negligent acts. These are the very acts which insurance is purchased to protect against. Even if the “more likely than not” view only excludes coverage for gross negligence few laymen would realize that such serious legal consequences emanate from the word “expected.” Therefore, we hold that the term expected, for purposes of an insurance exclusion, does connote an element of conscious awareness on the part of the insured. It is fair to say that when a person expects something, he is consciously aware that it is going to occur.

Though we have decided that the insured must be aware that the harm is likely to result, the question remains, how likely must that harm be? As discussed above, some courts have said, more likely than not while other courts have ruled the insured must be practically certain of the result. This very disagreement over the term’s proper meaning demonstrates that it is susceptible to more than one reasonable interpretation. Therefore, it is ambiguous and must be construed against the insurer. Erie, 352 Pa.Super. at 83, 507 A.2d at 392.

In light of our obligation to construe ambiguous terms in favor of the insured, we find the Bay State court’s interpretation persuasive. We hold that for purposes of an exclusionary clause in an insurance contract, expected injury means that the insured acted even though he was substantially certain that an injury generally similar to the harm which occurred would result. This interpretation affords insured persons the maximum legal protection they could reasonably expect under a contract excluding expected injuries.

However, this definition is also encompassed within the definition of intentional adopted by the Hassinger court. Therefore, we find ourselves in agreement with those jurisdictions which have ruled that intentional or expected are synonomous for purposes of insurance exclusionary clauses. In doing so, we have balanced the need to protect laymen from unforeseeable and hypertechnical legal constructions against the insurance industry’s right to control which risks it wishes to provide contractual protection for. If the industry feels that our decision is in error and in serious conflict with its interests, its task is a simple one. It can protect itself by re-writing its policies to clearly exclude those risks against which it does not want to insure.

For the foregoing reasons, we find that United must defend the Elitzkys in the suit filed by Judge Bruno. In light of our disposition of this issue, it is unnecessary for us to examine the third issue presented for our review. We agree with the learned trial court that the issue of United’s obligation to indemnify the Elitzkys is not yet ripe for judicial resolution. It is possible that Judge Bruno’s cause of action will be unsuccessful and the Elitzkys will never need to be indemnified. A declaratory judgment must not be employed for the determination of rights in anticipation of an event or events which may never occur. Johnson Estate, 403 Pa. 476, 171 A.2d 518 (1961). Therefore, the trial court properly dismissed, without prejudice, United’s request for declaratory relief on this issue.

Reversed.


author: DEL SOLE, Judge:

text:
    517 A.2d 992
    COMMONWEALTH of Pennsylvania v. Joseph S. CACEK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1986.
    Filed Nov. 12, 1986.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Paul Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Joseph S. Cacek was found guilty after a jury trial of rape, simple assault and terroristic threats with respect to his conduct toward his stepdaughter from the time she was twelve until twenty-two years of age. Post-trial motions for new trial and/or arrest of judgment were filed and subsequently denied. Thereafter, Appellant was sentenced to a term of imprisonment for not less than four nor more than eight years for rape, a consecutive two year period of probation for simple assault and a two year period of probation for terroristic threats to run concurrent with the period of probation for simple assault.

Initially, Appellant contends the trial court erred in denying his pre-trial Motion for discovery of any statements made by the victim to personnel of the Erie County Rape Crisis Center in the possession of the Commonwealth. In denying the Motion the trial court reasoned, “that such statements are specifically determined to be confidential by legislative enactment and not subject to pre-trial discovery. (42 Pa.C.S.A. § 5945.1(b)).” (Trial Court Opinion at 6). In this respect the trial court erred and for the following reasons, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

The Confidential Communications To Sexual Assault Counselors statute provides in pertinent part:

(b) Privilege — A sexual assault counselor has a privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim being counseled by the counselor as to any confidential communication made by the victim to the counselor or as to any advice, report or working paper given or made in the course of the consultation.

42 Pa.C.S.A. § 5945.1(b).

Appellant contends the trial court erred in denying his motion as 42 Pa.C.S.A. § 5945.1(b) “infringes upon the right of confrontation guaranteed by the Sixth Amendment without the justification of a compelling state interest....” (Appellant’s Brief at 15).

“[W]e take note of the well-established proposition that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it.” Commonwealth v. Samuels, 354 Pa.Super. 128, 144-145, 511 A.2d 221, 230 (1986). It is unnecessary to the disposition of this appeal to reach the issue of the constitutionality of § 5945.1(b). The statute is simply inapplicable in this matter. “It grants sexual assault counselors a privilege....” Commonwealth v. Samuels, 354 Pa.Super. at 147, 511 A.2d at 231. Appellant has not attempted to discover any communication by the victim in the possession of a counselor or any advice, report or paper given or made in a counselor’s possession. Here, pursuant to Pa.R.Crim.P. 305, Appellant filed a pre-trial Motion for discovery of information within the Commonwealth’s possession. 42 Pa.C.S.A. § 5945.1(b) does not grant the Commonwealth a privilege to prevent disclosure of discoverable items and information requested by a defendant pursuant to Pa.R.Crim.P. 305. In denying Appellant’s Motion, the trial court erred. However, “[e]rror in the abstract does not require a new trial. Error which does not result in prejudice to the accused or deny the accused a fair trial does not warrant an appellate court’s reversal of the trial court’s denial of a motion for a new trial.” Commonwealth v. Pittman, 320 Pa.Super. 166, 177, 466 A.2d 1370, 1375 (1983). Therefore, on remand, Appellant must be permitted discovery of information and items within the Commonwealth’s possession pursuant to Pa.R.Crim.P. 305 unfettered by the privilege accorded under 42 Pa.C.S.A. § 5945.1(b). Appellant may then argue to the trial court what use, if any, could have been made of the information. “The Commonwealth may attempt to establish that any error was harmless. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978). Unless the trial court is convinced that any error was necessarily harmless, it shall vacate judgment of sentence and grant ... a new trial.” Commonwealth v. Ritchie, 509 Pa. 357, 368, 502 A.2d 148, 154 (1985).

Appellant next asserts the court erred in denying a pre-trial Motion to Suppress a statement he gave to police officers and in subsequently denying his Motion for a Mistrial when the statement was admitted into evidence at trial. It is contended that considering the totality of the circumstances, i.e. that he did not sign a waiver form, that he has limited reading ability, and that he was nervous, the statement was involuntary.

In reviewing the ruling of a suppression court, the reviewing court’s initial task is to determine whether the factual findings are supported by the record. In making this determination, if the suppression court held for the prosecution, the reviewing court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole remains uncontradicted.

Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986).

The uncontradicted testimony of the police officers at the suppression hearing was that they read Miranda warnings to Appellant who indicated he understood them, and that he then proceeded to make a statement. Before Appellant had an opportunity to sign the waiver form, an investigator from the Public Defender’s office arrived and inquired whether Appellant wanted to see an attorney. Appellant replied he did and the interview was concluded.

The record of . the suppression hearing as well as the transcript of trial testimony reveal Appellant was informed of his rights and made a brief inculpatory statement prior to deciding to consult an attorney. There is no record of threats, mistreatment or coercion. The trial court did not err in denying Appellant’s Motion to suppress his statement and subsequently denying his Motion for a mistrial.

Appellant claims the court erred in denying a Motion to excuse or question a potentially biased juror.

A conversation took place between a tipstaff and juror which revealed the juror had participated in a protection from abuse hearing. When informed of this by the trial judge, Appellant’s counsel moved to excuse the juror on the basis that evidence of domestic abuse had been introduced at Appellant’s trial. The motion was denied and the court noted the juror had been asked whether she had ever been the victim of a crime and she had not indicated that she had been. The court further noted that a protection from abuse proceeding is not criminal in nature. Counsel then sought to question the juror as to the possibility of bias. The court refused to permit questioning.

The trial court exercised discretion apparently satisfied the juror had not been the victim of a crime. “The discharge of a juror is a matter within the sound discretion of the trial judge and the lower court will only be reversed for an abuse of that discretion.” Commonwealth v. Graves, 316 Pa.Super. 484, 492, 463 A.2d 467, 471 (1983). We find no abuse of discretion.

Finally, it is argued that trial counsel was ineffective for failing to ascertain by proper questioning during voir dire whether the juror had previously been involved in any court proceeding. “When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit....” Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). In this instance the issue is not of arguable merit. Counsel is not required to ask all possible questions at voir dire. During voir dire, it was established that the juror had not been involved with the criminal justice system. There is no basis for a finding of ineffectiveness.

The case is remanded to the trial court for proceedings consistent with this opinion. Jurisdiction relinquished.

CERCONE, J., concurs in the result.

      . 18 Pa.C.S.A. § 3121(1 and 2) provides:
      A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion. (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.

      . 18 Pa.C.S.A. § 2701(a)l provides:
      (a) Offense defined. — A person is guilty of assault if he:
      (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.

      . 18 Pa.C.S.A. § 2706 provides:
      A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.


author: WIEAND, Judge:

text:
    517 A.2d 995
    Robert BOLUS and Jule Ann Bolus, his wife, Appellants, v. RYDER TRUCK RENTAL, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 28, 1986.
    Filed Nov. 19, 1986.

      Paul A. Barrett, Scranton, for appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

This appeal is from a decree nisi which vacated a preliminary injunction previously granted. Before we review the substantive issues raised by the appellant, we must determine whether the appeal is jurisdictionally proper and, if so, the scope of our review.

On November 4, 1983, the trial court entered an order preliminarily enjoining the defendant, Ryder Truck Rental, Inc. (Ryder), from interfering with a right of way asserted by Robert Bolus and Jule Ann Bolus, plaintiffs, to use Ryder’s land for purposes of ingress and egress from Bolus’ land. After the pleadings had been closed and a final hearing had been held, however, the trial court determined that plaintiffs did not have a right of way across Ryder’s land. Therefore, on May 9, 1985, the court entered a decree nisi which vacated the preliminary injunction and dismissed the complaint. The plaintiffs filed a timely motion for post-trial relief in the trial court. The motion for post-trial relief has not been decided. Plaintiffs also filed notice of appeal to the Superior Court.

Pa.R.App.P. 311(a)(4) provides that an appeal may be taken as a matter of right from “[a]n order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” (Emphasis added). This rule, it seems clear, permits an appeal from a decree nisi which has dissolved or vacated a preliminary injunction. See: Agra Enterprises, Inc. v. Brunozzi, 302 Pa.Super. 166, 448 A.2d 579 (1982). We conclude, therefore, that we have jurisdiction to hear the instant appeal.

The appeal, however, is not from a final decree; it is from a decree nisi. The plaintiff-appellants have filed a motion for post-trial relief pursuant to Pa.R.C.P. 227.1, and a final decree will not be entered until that motion for post-trial relief has been determined by the trial court. Until a final decree has been entered, the trial court’s adjudication will not be ready for final review in this Court. See: Humphreys v. Cain, 84 Pa.Commw. 222, 474 A.2d 353 (1984).

In the meantime, Pa.R.App.P. 311(a)(4) permits us to review only that portion of the decree which dissolved or vacated the preliminary injunction and thereby refused to maintain the status quo pending final adjudication in the trial court. Our scope of review under these circumstances is severely limited. Review is limited to a determination of whether there were any reasonable grounds for the action of the trial court. Only if no reasonable grounds exist to support the trial court’s order, so that its ruling was palpably erroneous or a misapplication of law, will we disturb the order. Crozer Chester Medical Center v. May, 352 Pa.Super. 51, 56, 506 A.2d 1377, 1379-1380 (1986).

The instant case is not one in which the trial court lacked reasonable grounds for dissolving the preliminary injunction. Plaintiffs had been the owners of a rectangular tract of land, containing ten (10) acres, in Dunmore, Lackawanna County. On September 5, 1980, they conveyed the northernmost four acres to Ryder. When they did so, however, they did not reserve the right to use any portion of the land conveyed to Ryder for purposes of access to their remaining land. The tract which they retained, moreover, was not landlocked; other means of access continued to exist. Although Mr. and Mrs. Bolus have added fill to raise the level of portions of their land, the only effect thereof has been to make access to all parts of their tract less convenient — and perhaps more expensive — than by continuing to drive over Ryder’s land. This was inadequate to establish an easement by necessity. Similarly, the fact that Ryder had consented to its neighbor’s use of its land for right of way purposes for several years did not vest in plaintiffs the right to continue doing so in perpetuity.

The trial court’s decision to vacate the preliminary injunction was not the result of an arbitrary refusal to accept credible evidence or a palpable abuse of discretion. It was based, rather, upon plaintiffs’ failure to show the existence of an express or implied right of way. Although plaintiffs were entitled to pursue their motion for post-trial relief, the trial court could reasonably conclude that, having failed to prove a clear right to use Ryder’s land for right of way purposes, they should not be allowed in the interim to burden Ryder’s land by driving their vehicles over it.

The order dissolving the preliminary injunction is affirmed.