author: HUDOCK, Judge:

text:
    591 A.2d 1122
    COMMONWEALTH of Pennsylvania, Appellee, v. Bradley Lee KOPP, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed May 31, 1991.

      Kenneth L. Eckard, York, for appellant.
    John W. Thompson, Jr., Asst. Dist. Atty., York, for Com., appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty, at the conclusion of a jury trial, of aggravated assault, attempted aggravated assault, recklessly endangering another person, firearms violation and criminal mischief. Timely filed post-verdict motions were denied by the trial court and Appellant was sentenced to an aggregate sentence of eight (8) to sixteen (16) years imprisonment. This direct appeal followed. We reverse the judgment of sentence and discharge Appellant as to the aggravated assault charge and remand for resentencing on the charges of attempted aggravated assault.

The facts may be summarized as follows: In the early morning hours of May 15, 1988, Officer W.W. Smith of the West Manchester Township Police Department followed Appellant to his residence in the City of York in order to effectuate a traffic stop for suspicion of driving under the influence. Appellant exited the vehicle, pulled out a .357 magnum revolver, and started yelling obscenities at Officer Smith and other officers who had arrived at the scene. At this time, Appellant pointed the gun directly at Officer Smith and stated, “I got your head.” (N.T. 1/9/89 at p. 21). Appellant then continued to scream obscenities at the police and then shot the gun in the air. He then approached the vehicle which Officer Smith and another officer were standing alongside and pointed the gun at them stating, “I see your head, I see your head.” (N.T. 1/9/89 at p. 21-22).

Appellant continued his verbal barrage directed toward the police officers. Appellant then discharged the revolver into two police vehicles. While Appellant was shooting at the vehicles, a police officer, Gerald Williams, was struck by a bullet which ricocheted off of the pavement. Appellant next re-entered his vehicle and began ramming several of the police cars at the scene until the police disabled the car by shooting out its tires. Appellant then exited his vehicle, with the gun still in his hand, and pointed it toward the police, screaming obscenities. Appellant returned to his residence where he remained for several hours before surrendering to the police.

Numerous counts were filed against Appellant as a result of the incident which involved a total of nine police officers who were present at the scene. Prior to trial, Appellant requested a bill of particulars regarding the crimes with which he was charged. Specifically, Appellant requested that the Commonwealth state “[T]he particular subsections the Commonwealth intends to prosecute the charge of Aggravated Assault.” The Commonwealth responded to this request by citing to 18 Pa.C.S.A. § 2702(a)(3) and (4).

At trial, the Commonwealth’s evidence consisted of testimony from Officer Williams and several other police officers who were at the scene. The Commonwealth also presented Officer Williams’ treating physician who testified to the “serious bodily injury” sustained by the officer. Appellant demurred at the close of the Commonwealth’s case. The trial court entertained the demurrer in chambers after the jury had been dismissed for the day. Counsel for Appellant stated as follows:

With respect to Officer Williams, I would demur to the Commonwealth’s case, in that the Commonwealth has failed to show that his injuries were the result of an intentional or knowing action on the part of [Appellant], or that it was an attempt on the part of [Appellant] to injure the police officer, that being Officer Williams. (N.T. 1/9/89 at p. 130).

The Commonwealth responded by stating its belief that the assault fell within that subsection of § 2702 which deals with recklessness under circumstances manifesting extreme indifference to the value of human life. Counsel for Appellant then stated that it was his understanding, from the response to the request for a bill of particulars, that the case involved the attempt to cause or intentionally or knowingly cause bodily injury as enumerated in subsection (3) and (4) of the aggravated assault statute rather than the standard enumerated by the Commonwealth and found at § 2702(a)(1). While recognizing that the theory now posed by the Commonwealth violated the bill of particulars filed in the case, the trial court, after noting that the criminal information filed against Appellant included all four subsections of the statute, allowed the case to go to the jury under § 2702(a)(1) and (2).

On appeal, the Appellant initially complains that the trial court erred in overruling his demurrer, especially in light of the Commonwealth’s bill of particulars. More specifically, Appellant claims that the response to the request for a bill of particulars led him to fashion his cross-examination in an effort to establish that his actions were merely reckless, as opposed to intentional or knowing. He also claims that he was surprised and thus unprepared to present expert testimony with respect to the nature of the wounds suffered by Officer Williams in an attempt to rebut the allegations of serious bodily injury.

The function and purpose of a bill of particulars, as recently explained by this Court, is as follows:

A motion for a bill of particulars does not question the sufficiency of an indictment or information, but, rather assumes its validity. It does not become part of the indictment or information, and therefore can neither remedy a defective indictment or information, nor render an indictment or information good on its face demurrable. The function of a bill of particulars, rather, is to give notice to the accused of the offense charged in order to permit him to prepare a defense, avoid surprise, and be placed on notice as to any restrictions upon the Commonwealth’s proof.
Where the bill of particulars is broader than the actual evidence at trial, there is no error; conversely, however, where the bill of particulars specifically limits proof to be adduced at trial to specific acts, the Commonwealth is not permitted to obtain a conviction on the offense charged by proof of acts other than those specified in the bill, (citations omitted).

Commonwealth v. March, 380 Pa.Super. 64, 70-71, 551 A.2d 232, 235-36 (1988), alloc. den’d in 524 Pa. 595, 568 A.2d 1246 (1989). Applying these standards to the present case, in order to obtain the conviction for the aggravated assault of Officer Williams, the Commonwealth was restricted to proving that Appellant attempted to cause or intentionally or knowingly caused bodily injury to either a police officer while he or she was performing his or her duty, or to another person by use of a deadly weapon. The Commonwealth did not restrict its proof at trial in this manner. Thus, we conclude that the trial court erred in allowing the case to go to the jury, after Appellant’s demurrer to the Commonwealth’s proof of § 2702(a)(3) and (4), under § 2702(a)(1) and (2).

While we are unable to discover a case precisely on point with the procedure and facts of the present case, we conclude that the effect of the trial court’s decision to allow the Commonwealth to proceed under § 2702(a)(1) and (2) is analogous to the effect caused by the trial court’s permitting the Commonwealth to amend its information, after trial began, in Commonwealth v. Neal, 274 Pa.Super. 225, 418 A.2d 378 (1980) (plurality). In Neal, the indictment charged the defendant with robbery, 18 Pa.C.S.A. § 3701(a)(l)(iii), and the trial court subsequently charged the jury on robbery, § 3701(a)(1)(h). These two robbery sections contain different elements to be proven and thus resulted in a substantive change of the elements of the crime. This Court held that it was error to permit this amendment in that it prejudiced the defendant. A substantive amendment to an information is one that changes the nature or grade of the offense charged. Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979). In Neal, both the grade and the elements of the robbery charge were changed. Thus, this Court vacated the judgment of sentence and reversed the conviction of the defendant.

In the present case, the Commonwealth restricted its proof at trial, via its response to Appellant’s request for a bill of particulars, to proof of the elements of aggravated assault under § 2702(a)(3) and (4); however, and the jury was subsequently charged under § 2702(a)(1) and (2). This change resulted in a substantive change of the elements to be proven and a change in the grade of the offense from that of a second degree felony to a felony of the first degree. While we recognize that the criminal indictment filed against Appellant included all four subsections of the aggravated assault statute, allowing the Commonwealth to rely on this document despite a more restrictive bill of particulars would render the purpose and function of the latter meaningless.

Thus, as we find the trial court’s actions to be in error, we must reverse Appellant’s judgment of sentence and discharge him as to the aggravated assault of Officer Williams. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972). See also Commonwealth v. Russell, 261 Pa.Super. 161, 395 A.2d 1365 (1978) (en banc).

Appellant also claims that his sentence was excessive. As Appellant is challenging the discretionary aspects of sentencing, there is no right to appeal to this Court and Appellant’s appeal must be considered as a petition for permission to appeal. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. § 9781(b). Initially, we note that he has complied with the basic procedural requirements of Tuladziecki by timely filing a notice of appeal and by complying with the dictates of Pa.R.A.P. 2116(b) and 2119(f). Having complied with these procedural requirements, we must now determine whether Appellant has established that a substantial question exists as to the appropriateness of his sentence, since it is only where a party can “articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Tuladziecki, at 515, 522 A.2d at 20.

As recently stated by this Court, the Legislature has “clearly acknowledged the deep-rooted tradition that trial courts are given wide latitude in fashioning sentences, and, yet, it has balanced that discretion with a review process recognizing that such discretion is not completely unfettered.” Commonwealth v. Chilcote, 396 Pa.Super. 106, 120, 578 A.2d 429, 436 (1990) citing Commonwealth v. Jones, 523 Pa. 138, 142-143, 565 A.2d 732, 734 (1989). In short, we will not vacate a sentence that is within the statutorily prescribed limits and remand for resentencing absent a manifest abuse of discretion. Commonwealth v. Plank, 498 Pa. 144, 445 A.2d 491 (1982); Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990). Thus, the determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). However, this Court will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. Id.

In the present case, Appellant’s 2119(f) statement provides as follows:

[Appellant] respectfully contends that a substantial question exists that the sentence imposed is not appropriate ... in that:
1. The sentencing Court purported to sentence within the Sentencing Guidelines with respect to Attempted Aggravated Assault but applied the Guidelines erroneously in imposing a sentence of 5 to 10 years when the Jury’s Verdict was mute as to the Subsection for which [Appellant] was convicted;
2. The Sentencing Court sentenced outside the Sentencing Guidelines with respect to Aggravated Assault and Attempted Aggravated Assault and the sentence is unreasonable in that no aggravating circumstances existed such as to warrant sentencing outside of the Sentencing Guidelines.
3. Appellant contends that the Sentence of the Sentencing Court with respect to Aggravated Assault is illegal in that the Appellant’s Motion for Arrest of Judgment with respect to the charge of Aggravated Assault concerning Officer Gerald Williams should have been granted. (Appellant’s Brief at p. 20-21).

As to Appellant’s third reason enumerated above, it is noted that the issue of the legality of a sentence is never waived and is reviewable as a matter of right rather than in a petition for permission to appeal from the discretionary aspects of sentencing. See, e.g., Commonwealth v. Ohlinger, 337 Pa.Super. 437, 487 A.2d 25 (1985). However, since we have already determined that Appellant is to be discharged on this charge, any claim regarding the sentence imposed is rendered moot.

Appellant’s first two enumerated reasons above raise a substantial question since they claim that the sentencing guidelines were erroneously applied and that the sentence imposed was outside the guidelines. See Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1987), alloc. den’d in 525 Pa. 642, 581 A.2d 568 (1990). Thus, we will address the merits of each claim.

Appellant does not provide any argument to support the second reason enumerated above regarding the excessiveness of his sentence. Thus, this Court is unable to review the merits of this claim. As to Appellant’s first reason enumerated above, Appellant claims that since the verdict slip did not delineate which subsection of 18 Pa. C.S.A. § 2702 of which Appellant was convicted, in regard to the eight other officers at the scene, the sentencing court erred in applying an offense gravity score of eight to the crime. This score would be consistent with first degree felonies such as § 2702(a)(1) and (2). A review of the record reveals that the trial court charged the jury in regard to attempted aggravated assault as to the other police officers, only on subsection (a)(3) and (4) of the statute; both of these subsections are graded as felonies of the second degree with an offense gravity score of six. Thus, the sentencing court did indeed apply the wrong offense gravity score and Appellant must be resentenced on these charges.

Judgment of sentence is reversed and Appellant is discharged as to the aggravated assault charge. Appellant’s petition for permission to appeal the discretionary aspects of sentencing is quashed in part. The matter is otherwise remanded for resentencing as to counts two through nine of the criminal information regarding attempted aggravated assault. Jurisdiction is relinquished.

      . The statute governing aggravated assault provides in pertinent part:
      (a) Offense defined.—A person is guilty of aggravated assault if he:

        (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
      (2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer ...;
      (3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer ...;
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; ...
      18 Pa.C.S.A. § 2702(a)(l)-(4).

      . At oral argument, the Commonwealth stated that it interpreted the specific question in the bill of particulars as one that concerned all of the nine police officers who were at the crime scene. The Commonwealth did not state this understanding in its brief, and consequently the argument has not been developed on appeal. Upon reviewing the bill of particulars, while we note that the specific question did not name Officer Williams, it did deal with a singular charge of aggravated assault and that the next question specifically listed the other eight officers.

      . We note that Neal has been cited for this proposition in subsequent decisions by this Court. See, e.g., Commonwealth v. Gray, 329 Pa.Super. 347, 478 A.2d 822 (1984).

      . As cited above, a conviction under § 2702(a)(1) or (2) can be achieved by proving to the jury that Appellant’s conduct was reckless rather than requiring a showing under § 2702(a)(3) or (4) that Appellant’s conduct was intentional or knowing.

      . A review of the sentencing transcript reveals that the sentencing court did not refer to the sentencing guidelines when sentencing on the attempted aggravated assault charges and merely meted out a five to ten year sentence. We must, therefore, look to the calculations of the probation department to determine the guideline figures with which the trial court was presented. These calculations clearly use an offense gravity score of eight; an offense gravity score not available for the subsections of the statute charged to the jury.

      . While we note that § 2702(a)(4) could carry a offense gravity score of seven, this score is used only when a jury finds that the criminal defendant caused bodily injury with a deadly weapon. In the present case, this score would be inapplicable since the record was devoid of any evidence that any other police officer was actually injured in the incident other than Officer Williams.

      . In his statement of questions raised on appeal, Appellant claims that the sentence imposed on the criminal mischief charge is excessive. Upon review, we conclude that our review and ultimate determination of whether a substantial question has been presented is hampered by Appellant’s failure to address this claim in his 2119(f) statement. Thus, we invoke the authority of Pa.R.A.P. 2119(f) and quash that part of the appeal. Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    591 A.2d 1128
    Albert VOSBURG, III and Joan Vosburg, Appellants, v. Edward CONNOLLY and John Connolly & Sons, Inc. a Corporation, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 13, 1990.
    Filed June 3, 1991.

      Mark A. Ciavarella, Jr., Wilkes Barre, for appellants.
    Jordan H. Pecile, Wilkes Barre, for appellee.
    Before DEL SOLE, KELLY and FORD ELLIOTT, JJ.
   PER CURIAM:

This is an appeal from an order entered by the trial court granting summary judgment in favor of Edward Connolly and John Connolly & Sons, Inc., and against Albert Vosburg, III and Joan Vosburg (husband and wife). We affirm in part and reverse in part.

The facts which gave rise to this appeal, as alleged in the complaint and subsequent deposition may be summarized as follows. In 1980, Albert Vosburg (Appellant) was hired by-John Connolly & Sons, Inc. (Appellee) to work as a heavy equipment operator. On May 6, 1987, Appellant was directed by Appellee to excavate a piece of property at Harvey’s Lake that had previously been blasted in preparation for the construction of a tennis court. Once at the property, Appellant was approached by the owner of the land who, apparently suspicious that the previous and costly blasting operations had been unnecessary, requested that Appellant dig into the land to determine whether the earth was too solid to have been excavated without using explosives. When the ground proved to be relatively soft, the owner became infuriated and contacted Appellee. Appellant thereafter completed his work, and returned the company vehicle to the premises of Appellees’ company around 4:45 p.m.

By roughly 5:00 p.m., Appellant had punched out and retreated to the parking lot of Appellee-company to socialize with fellow workers while drinking a beer. About fifteen minutes later, as Appellant was about to leave, he was stopped by Tim Connolly, one of the owners of Appelleecompany, and asked about the day’s excavation. Appellant explained that he had found no rock and that the owner had discovered this fact and had become very upset as a result. Tim Connolly acknowledged his own awareness of the situation and then left.

Shortly thereafter, Danny Connolly, another of the owners, pulled into the parking lot and hotly confronted Appellant about his work at Harvey’s Lake, shouting vulgarities and obscenities at Appellant for failing to “keep his mouth shut.” The exchange quickly escalated into a pushing match and at that point a third owner, Edward Connolly, interposed by profanely insisting that Appellant immediately leave the premises. The interruption only served to fuel the already dandered tempers, however, and when Appellant refused to comply, Edward Connolly threw Appellant to the ground, and punched him several times in the face. Severely injured and only semi-conscious, Appellant was rushed to the hospital where it was discovered that the assault had broken his leg and necessitated four stitches in his tongue and five in the back of his head.

Appellants thereafter filed this suit claiming Appellees were responsible for intentionally and negligently causing his injuries. Following the deposition of Appellant, Appellees filed a motion for summary judgment alleging that Appellants’ suit was barred by the exclusivity provisions of the Worker’s Compensation Act, 77 Pa.S.A. § 101, et seq. The trial court embraced Appellees’ arguments and granted summary judgment in their favor. Appellants thereafter filed the instant timely appeal.

On appeal, Appellants’ sole contention is that the trial court erred in determining that the Worker’s Compensation Act barred the common law suit.

At the outset, we note that in reviewing orders granting summary judgment, our scope of review is as follows:

A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Moreover, it is clear that to survive a motion for summary judgment, the nonmoving party may not rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Kerns v. Methodist Hospital, 393 Pa.Super. 533, 536-37, 574 A.2d 1068, 1069-70 (1990); Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 88-9, 546 A.2d 1168, 1170-71 (1988) (citations omitted); Pa.R.C.P. 1035(d).

Section 303(a) of the Worker’s Compensation Act (the Act) contains the “exclusive remedy” provision at issue herein. That section provides:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 Pa.S.A. § 481(a) (emphasis added). Section 301(c)(1) defines “injury” in pertinent part as follows:

The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto____ The term “injury arising in the course of his employment,” as used in this article, shall not include any injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere____

77 Pa.C.S.A. § 411(1) (emphasis added).

Instantly, Appellants’ contention, reduced to its essence, is simply that Albert Vosburg’s injury does not fall within the Act’s definition of “injury.” The determination of whether an employee is within the course of his or her employment at the time an injury occurs is a conclusion of law to be determined on the basis of facts subject to the court’s review. Oakes v. Workmen’s Compensation Appeal Bd., 79 Pa.Cmwlth. 454, 469 A.2d 723 (1984); Davis v. Workmen’s Compensation Appeal Bd., 41 Pa.Cmwlth. 262, 398 A.2d 1105 (1979); Pypers v. Workmen’s Compensation Appeal Bd., 105 Pa.Cmwlth. 448, 524 A.2d 1046 (1977); Peer v. Workmen’s Compensation Appeal Bd., 94 Pa.Cmwlth. 540, 503 A.2d 1096 (1986). In conducting such a review, the court must bear in mind that “[t]he Act does not say that the injury must ‘occur’ or ‘be manifested’ or ‘be consummated’ in the course of employment. It merely says that it must ‘arise ... in the course of employment.’ ‘Arising’ connotes origin, not completion or manifestation.” Krawchuk v. Philadelphia Electric Company, 497 Pa. 115, 122, 439 A.2d 627, 632 (1982) {quoting 1A, Larson, Workmen’s Compensation Law § 29.22 at 5-375-76 (1978)) (emphasis added).

In discerning the appropriate application of the Act, a two step analysis has been used:

The statute establishes that, for workmen’s compensation purposes, an employe will be considered to have suffered an injury arising in the course of employment under two separate circumstances: either (1) where the employe is injured while actually engaged in furtherance of the employer’s business or affairs; or (2) where the employe is injured on the premises of the employer even though not actually engaged in furtherance of the employer’s business or affairs, but only if the nature of his or her employment requires the employe’s presence.

Pypers v. Workmen’s Compensation Appeal Bd., supra, 524 A.2d at 1048; see also 77 Pa.C.S.A. § 411(1). In addition, a corollary, so-called “third party attack” exception has been recognized. Derived directly from the Act’s definition of injury, courts have interpreted that exception to apply as follows.

Under that exception, an employee is permitted to maintain a common law action against his employer whenever his or her injury is the result of an attack or assault by a third person or fellow employee for reasons that are personal to the attacked and not connected with the victim’s employment. To fit within this exception, the third party’s or fellow employee’s act must have been motivated by his animosity against the injured employee. If the third party would have attacked a different person in the same position as the injured employee, the attack falls outside the “third party attack” exception. Brooks v. Marriott Corporation, 361 Pa.Super.Ct. 350, 356, 522 A.2d 618, 621 (1987).

Mentzer v. Ognibene, 126 Pa.Cmwlth. 178, 185-186, 559 A.2d 79, 82 (1989) (footnote omitted) (emphasis added); Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980).

Applying the foregoing analysis instantly, we must first determine whether appellant was injured while actually engaged in the furtherance of his employer’s business. Initially, we must determine whether Appellant was actually engaged in the furtherance of Appellee John Connolly & Sons, Inc. (Connolly & Sons) business affairs, and thus the liability of employer under the Workmen’s Compensation Act is the exclusive remedy. Here, Appellant asserts the following relevant facts: 1) he was injured on the premises of his employer; 2) he was injured no more than forty-five minutes after he had stopped work; and, most significantly 3) he was injured after arguing over whether his job performance was satisfactory.

Even viewed in the light most favorable to Appellant, these facts establish that his injuries were the direct result of an argument that he had with his employers, Connolly & Sons, and that this argument was founded in a purely business related controversy, i.e., whether Appellant improperly revealed information to a customer. The degree to which Appellant may speak on business related affairs on behalf of his supervisors, is unquestionably, a matter decided in the course of Appellant’s employment. The mere fact that Appellant was not actually “on the clock” at the time that either the argument commenced or the injury occurred is irrelevant. The method or reasonableness of the chosen form of discussion is also irrelevant. What is important is that the discussion’s origin was, in the appropriate sense, to further Appellees’, Connolly & Sons’ business. Thus, under the relevant prior interpretations of the Act, these facts conclusively establish that Appellant was injured while actually engaged in the furtherance of Appellee, Connolly & Sons’, business or affairs.

The second step of the analysis requires a determination of whether the nature of the employee’s employment required his or her presence where “the employee is injured on the premises of the employer even though not actually engaged in the furtherance of the employer’s business or affairs.” As we have concluded that Appellant was actually engaged in the furtherance of Appellee, Connolly & Sons, business or affairs at the time of his injury, this analysis is unnecessary and inappropriate herein. See also City of Harrisburg v. Worker’s Compensation Appeal Board, 118 Pa.Cmwlth. 22, 28-29, 544 A.2d 1078, 1080 (1988).

Finally, we find that with regard to the “third party attack” exception, we note that the record conclusively precludes the possibility that personal animosity lead to the attack. The hostilities encountered herein were, according to Appellant, a direct result of the day’s excavation work. As the assault was not for reasons personal to Appellant, but rather was connected with Appellant’s employment, the “third party attack” exception is inapplicable.

Accordingly, we conclude that Appellant was an employee of Connolly & Sons, Inc., who was injured while actually engaged in the furtherance of Appellee-Corporation’s business affairs, and therefore the trial court correctly held that as a matter of law, Appellant’s claim against the Corporation falls within the ambit of the statutory cause of action provided in the Worker’s Compensation Act, and thus, was not actionable in a common law suit. Hence, we affirm that portion of the trial court's decision.

We must further determine whether this defense also inures to the benefit of Appellant-Vosburgs’ co-employee, Appellee Edward Connolly, who acted in an intentional manner to inflict serious harm upon Vosburg and who was responsible for the resulting injuries. We find that he is not entitled to this protection.

Our legislature has provided for liability of fellow employees in Title 77 P.S. § 72, which states as follows:

§ 72 Liability of Fellow Employe
If disability or death is compensable under this act, a person shall not be liable to any one at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong, (emphasis added).

In the instant case, a business related dispute arose between employee-Vosburg and Daniel Connolly which quickly escalated into a shoving match. Appellee-Edward Connolly interceded, throwing Vosburg to the ground and hitting him several times in the face, causing Vosburg severe injuries. We find that Edward Connolly can be characterized as an employee of John Connolly & Sons Inc., and thus as a fellow-employee of Appellant-Vosburg upon whom he committed an intentional assault. Therefore we hold that the intentional wrong exception of § 72 applies and Appellant Vosburg is entitled to pursue a civil remedy against Appellee, Edward Connolly.

Our Court in Higgins v. Clearing Machine Corporation, 344 Pa.Super. 325, 496 A.2d 818 (1985) distinguished between non-actionable intentional misconduct such as an employer’s knowing violation of safety requirements and actionable intentional misconduct, such as an employer’s physical assault upon an employee. McGinn v. Valloti, 363 Pa.Super. 88, 525 A.2d 732 (1987). In determining the nature of the intentional tort that will give rise to a cause of action under section 205 (77 P.S. § 72). We examine whether the “intentional wrong” is one that is not normally expected in the workplace. An employee does, not normally expect a physical assault ... Id., 363 Pa.Superior Ct. at 94, 525 A.2d at 735. Also, it is inconceivable that the Compensation Act should operate to insulate a person who commits a physical assault on a co-worker. Since Appellant was the victim of an unanticipated intentional wrong at the hands of a fellow employee, Edward Connolly, occurring at their place of employment, we reverse the granting of the summary judgment in favor of Edward Connolly and allow Appellant to maintain a law suit against him.

Affirmed in part, reversed and remanded in part. Jurisdiction Relinquished.

      . Appellant’s wife was included as a plaintiff based on an alleged loss of consortium claim.

        . See 77 Pa.S.A. 411(1) (“The term injury arising in the course of his employment ... shall not include any injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment____”)

      . We note additionally that contrary to appellees’ assertion, our Supreme Court’s holding that there exists no “intentional tort exception" to the statute, see Barber v. Pittsburgh Corning Co., 521 Pa. 29, 555 A.2d 766 (1989), is not itself dispositive of the issue. Our Supreme Court’s ruling simply made futile the argument that all intentional torts claims may be brought under a common law cause of action. The question of whether the intentional injury arose while in the course of employment and whether the attack or assault was the result of personal or business related animosity are still the dispositive inquiries.

      . See Webster v. Worker’s Compensation Appeal Board, 92 Pa.Cmwlth. 412, 499 A.2d 1117 (1985), allocator denied, 514 Pa. 633, 522 A.2d 561 (1985) (claimant bartender found to have acted "in the course of employment," although fatally stabbed two hours and twenty minutes after his shift had ended, where he had stayed on his employer’s premises and had been attempting to break up a brawl among customers at the time of his injury); Fashion Hosiery Shops v. Workmen’s Compensation Appeal Board, 55 Pa.Cmwlth. 465, 423 A.2d 792, 797 (1980) (claimant manager/salesperson of hosiery and lingerie shop found to have acted “in the course of employment” although injury occurred between 15 and 30 minutes before shift was to begin, where she was about to enter and had been about to prepare to open shop).

      . We note that Appellant’s reliance on Dana Corp. v. Workmen's Compensation Appeal Bd., 120 Pa.Cmwlth. 277, 548 A.2d 669 (1988), allocator denied, 522 Pa. 606, 562 A.2d 828 (1988), and Pypers v. Workmen’s Compensation Appeal Bd. (Baker), 105 Pa.Cmwlth. 448, 524 A.2d 1046 (1977), is misplaced. In Dana, the worker/claimant suffered disabling injuries in employer’s parking lot after being accident

        ly struck by co-employee's automobile while helping to change a tire. Similarly, in Pypers v. Workmen’s Compensation Appeal Board, supra, the injury was a result of a slip and fall which occurred well after claimant had completed her duties and had embarked on a course of social recreation. See Pypers, supra, 524 A.2d at 1048. In each of these cases the question of whether the injury arose in the course of employment was decided not (as here) by determining whether the claimants were, at the time of their respective injuries in furtherance of the business or affairs of the employer, but by reaching the secondary issue as to whether “the employe [was] injured on the premises of the employer even though not actually engaged in furtherance of the employer’s business or affairs, [and] if the nature of his or her employment require[d] the employe’s presence.” Pypers, supra, 524 A.2d at 1048; see also Dana, supra, 548 A.2d at 670. As the facts in the instant case make clear that appellant was, at the time of his injury, acting in the furtherance of appellees’ business or affairs, the cases cited by appellant are of no consequences herein.

      . Appellant’s actual testimony was as follows. "I was leaving. Well Tim Connolly himself stopped me, and said, how did you make out there, Albert. And I said, well, you know, I’m getting it. I said, I dug through. See, that’s more or less you have got to understand. This is why the incident started____” Deposition of Albert Vosburg at 12-13.


author: MONTEMURO, Judge.

text:
    591 A.2d 1133
    In re ADOPTION OF M.A.R. and Involuntary Termination of Parental Rights of E.M.G. Appeal of E.M.G., the Natural Mother of the Child.
    Superior Court of Pennsylvania.
    Argued April 18, 1991.
    Filed June 6, 1991.

      Guy A. Messick, Media, for appellant.
    James E. DelBello, Media, for Children and Youth Services, participating party.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   MONTEMURO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Delaware County terminating appellant’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(5) . The child, M.A.R., was born out of wedlock on March 16, 1988, and has been in the custody of Children and Youth Services (CYS) since June 17, 1988. Appellant was sixteen at the time of M.A.R.’s birth. In August, 1989, CYS filed a Petition for Involuntary Termination of Parental Rights of both natural parents, and the father’s rights were terminated on September 25, 1989. The matter was continued until January 18, 1990 with respect to the mother. After a hearing on that date, the trial court entered an order terminating mother’s parental rights; an appeal was filed. In March, 1990, CYS filed a petition to reopen the case, and appellant’s appeal was dismissed. A second hearing was held on May 24, 1990 during which evidence was presented that appellant had lied to the court during the first hearing. The trial court entered a final decree terminating appellant’s rights on May 30, 1990, and this appeal followed.

Appellant has raised the following three issues on appeal: 1) whether CYS has met its burden under 23 Pa.C.S.A. § 2511(a)(5); 2) whether the admission of evidence concerning the father and his alleged involvement with drugs is irrelevant and unduly prejudicial to appellant; and 3) whether CYS’s refusal to permit appellant to have contact with the father as a condition of not terminating appellant’s parental rights is a denial of her Constitutional rights. We will address each seriatim.

Preliminarily, we note that absent a showing by clear and convincing evidence that a parent’s rights should be terminated, no such termination may occur. Additionally, this Court’s scope of review in termination cases is limited to a determination of whether the decision by the trial court was supported by competent evidence. In re Adoption of T.M., 389 Pa.Super. 303, 305, 566 A.2d 1256, 1257 (1989); In re J.G.J., Jr., 367 Pa.Super. 425, 429, 532 A.2d 1218, 1220 (1987). “If our comprehensive review of the record does not reveal an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s findings, the order must stand.” Id. 532 A.2d at 1220.

In this case, the evidence demonstrates that M.A.R. was removed from his parents’ home because both his father and his mother were intravenous drug abusers who were not providing proper care for him. Due to his mother’s addiction during pregnancy, M.A.R. suffers from severe medical problems including hypospadias, and chronic hypothyroid condition, and has been hospitalized repeatedly with pneumonia. He has had several operations to repair hernias, and he is developmentally delayed. Because of these infirmities, M.A.R. must be given medication constantly, and he must be taken to the doctor for blood tests regularly. Appellant’s failure to meet these parental responsibilities led to the removal of the child.

Since the time that M.A.R. was removed, appellant has not undergone a full drug evaluation and treatment as ordered by the court. She claims to be drug free, but refuses to prove it to the court or to CYS. Rather, she ran away from a residential treatment facility, and lied to the hospital workers about her reasons for missing the evaluation appointments. Ms. Hume of CYS testified that the agency offered all of the available services to appellant, and that there “were no further services the Agency can provide that would make Ms. G. focus on M.A.R.’s needs so that she could safely parent him.” N.T., January 18, 1990 at 13.

Appellant’s first contention, that CYS did not meet its burden under 23 Pa.C.S.A. § 2511(a)(5) is misplaced. CYS had the burden to prove, by clear and convincing evidence, that each of the five elements of § 2511(a)(5) were present. There is no question about the first: M.A.R. had been removed from his mother’s care for over six months. Next, the trial court correctly determined that the conditions which led to the removal continue to exist. Appellant argues that she is now living in a clean, stable home and that she is no longer using drugs, and therefore the preexisting conditions have been eliminated. However, appellant has refused to submit to drug evaluation and treatment; there is no objective proof that appellant no longer abuses drugs. Additionally, M.A.R.’s natural father still resides with appellant and was recently convicted of an illegal drug offense. The presence of a convicted drug user/seller in the home does not argue the existence of a stable environment.

Third, appellant has not remedied the conditions within a reasonable amount of time. A parent “has an affirmative duty to work toward reunification.” In re Baby Boy P., 333 Pa.Super. 462, 469, 482 A.2d 660, 664 (1984) (citing In re Interest of C.M.E., 301 Pa.Super. 579, 586, 448 A.2d 59, 63 (1982)). At the time of the hearings, M.A.R. had been placed with CYS for two years. During that time, appellant continued to live with the natural father, refused drug testing, ran away from a residential treatment facility, and was often late for visits with the child or missed them altogether. CYS attempted to provide services but to no avail; appellant has not remedied, nor tried to remedy, the problems that existed in June, 1988. In In re Adoption of Michael, J.C., 506 Pa. 517, 486 A.2d 371 (1984) the Pennsylvania Supreme Court stated:

The legislature in adopting the Adoption Act concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties. In re William L., 477 Pa. 322, 345, 383 A.2d 1228, 1239 (1978). Instantly, appellee has demonstrated that she would be incapable of meeting the child’s essential needs. The state is therefore permitted to intervene to protect the “physical or mental well being” of the child. Although we are faced with a situation where the needs of the parent in keeping the child conflict with the interest of the child, the “legislature has mandated that the interests of the weaker party, the child, should prevail.” Id., 477 Pa. at 339, 383 A.2d at 1236.

506 Pa. at 524, 486 A.2d at 375. As in Michael, J.C., appellant in the present case has demonstrated her inability to care for the child, and therefore M.A.R.’s needs must prevail.

Next, CYS demonstrated that “the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal” of M.A.R.. 23 Pa.C.S.A. § 2511(a)(5). As was stated above, Ms. Hume testified that CYS provided as many services as possible. In a CYS report dated September 25, 1989 Ms. Hume listed the services that were made available to appellant after M.A.R. was placed:

1. We referred Miss G. repeatedly for drug evaluations and treatment and transported her to two of these appointments.
2. We provided counseling during home and office visits.
3. Miss G. was repeatedly offered the option to be placed in a foster home where she could reside with her child.
4. Regular visitation was provided for Miss G. with her child.
5. Extensive transportation arrangements were made for family visitation to occur.
6. Several collateral contacts were made with Delaware Police and child welfare authorities when Miss G. was arrested for shoplifting in Delaware.
7. We explored relatives as resources to care for the child.

CYS Report, September 25, 1989 at 4-5. Appellant did not change her lifestyle as a result of the above listed services or those offered her from the time of the report through the final hearing in May, 1990. CYS amply demonstrated its efforts to provide services in the past, and the strong probability that further services in the future would not assist appellant in caring for the special needs of her child.

Finally, CYS demonstrated that termination of appellant’s parental rights would best serve the needs and welfare of the child. Appellant argues that she has had a second child that she is able to provide for, and therefore could properly care for M.A.R. as well. We disagree. First, we note, as did the trial court, that the second child, who may or may not be well taken care of, is irrelevant to the instant case. M.A.R., our only concern herein, has special medical needs, and appellant has done very little to prove that she is now able to take responsibility for his needs, irrespective of her abilities toward any other child. See In re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980) (one factor to consider in termination proceeding was mother’s lack of interest in learning to care for child’s special need; child needed home therapy for a hip deformity); In Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989) (trial court appropriately considered the fact that the parents could not provide for the children’s minimal needs let alone their special care needs; one child was mentally retarded and the other had emotional problems), allocatur denied, 525 Pa. 593, 575 A.2d 560. Appellant has lied to the court and to CYS about her living arrangements, and she has proven no change in her drug habit. M.A.R. needs constant attention, which appellant has failed to provide in the past. We find, accordingly, that the trial court did not abuse its discretion in concluding that appellant was not able to provide that attention.

Appellant’s next issue on appeal, that the admission of evidence concerning the natural father’s alleged involvement with drugs was irrelevant and unduly prejudicial, is also without merit. M.A.R.’s natural father’s parental rights have been terminated, and therefore he has no rights to be with M.A.R., nor any responsibility for the child’s care. The evidence that he was convicted of illegal drug activity was admitted to answer the question, “[d]oes that person who is a convicted drug user, dealer and so forth— does he frequent the house in which she allegedly lives with her child who is involved here?” The trial judge then agreed with appellant’s counsel that parental rights are not terminated every time a person is convicted of using drugs, however the judge stated that

we know what the background is here and we’ve already terminated the rights of the natural father. The record is already replete with the evidence of the association of this woman with that man and consequently it puts us and you and Jim Del Bello [counsel for CYS] on guard that that’s one of the things that might happen to this child. And all of us here are concerned about what’s going to happen to that child____

N.T., May 24, 1990 at 5-6. The natural father’s convictions were relevant to the trial court’s ability to assess appellant’s home environment. A child cannot be returned to a home in which drug activity is occurring, especially in a case such as the present one where the child was originally removed due, in part, to the parents’ drug abuse. The evidence was, therefore, not irrelevant and not unduly prejudicial.

Finally, appellant argues that CYS’s refusal to allow appellant to have contact with the natural father as a condition of not terminating her parental rights is a denial of her Constitutional rights of free association and equal protection. We disagree. As the trial judge stated, the concern in this case is M.A.R.. Both CYS and the trial court made the determination that appellant was incapable of having contact with M.A.R.’s natural father and providing the care that M.A.R. both needs and is entitled to, as apparently she places the needs of the father before those of the child. If appellant is unwilling to make changes in her life, as she demonstrated, the court had no choice but to terminate her rights. We see no abuse of discretion in that decision, nor a violation of appellant’s Constitutional rights.

M.A.R. is a special needs child requiring ongoing and elaborate medical care. Appellant has been unable or unwilling to provide consistent attention to M.A.R., and has not demonstrated any change in her lifestyle such as would fit the level of care that the child requires. Appellee has met its burden of proving, by clear and convincing evidence, that appellant is unable to meet her parental responsibilities. In the instant case, therefore, the needs and welfare of the child are best served by placing him with another family. Thus, the order of the trial court is affirmed.

Order affirmed.

      . Title 23 Pa.C.S.A. § 2511(a)(5) provides:
      (a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: ******
      (5) The child has been removed from the care of the parent by the court or under the voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of parental rights would best serve the needs and welfare of the child.

      . We note that the record reflects that there is a family ready to adopt M.A.R.


author: WIEAND, Judge:

text:
    592 A.2d 47
    PHILADELPHIA HOUSING AUTHORITY, Appellant, v. Pearline BARBOUR, Appellee. PHILADELPHIA HOUSING AUTHORITY, Appellee, v. Pearline BARBOUR, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed May 2, 1991.
    Reargument Denied July 2, 1991.
    Petition for Allowance of Appeal Granted Oct. 7, 1991.

      Denise J. Baker, Philadelphia, for appellant (at 1060) and appellee (at 1314).
    Michael T. Donahue, Philadelphia, for appellant (at 1314) and appellee (at 1060).
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a “Homebuyers Ownership Opportunity Agreement” under the federal Turnkey III housing program is a lease (with an option to buy) or a long term sales agreement. The trial court held that it was a real estate sales agreement which precluded an eviction for nonpayment of rent without prior compliance with the notice requirements of state foreclosure proceedings, as contained in the Act of January 30, 1974, P.L. 13, No. 6, § 101 et seq., as amended, 41 P.S. § 101 et seq. and the Act of December 23, 1983, P.L. 385, No. 91, § 2, as amended, 35 P.S. § 1680.401c. We reverse.

Pearline Barbour entered a “Homebuyers Ownership Opportunity Agreement” with Philadelphia Housing Authority (PHA) on April 13, 1981. Pursuant thereto, Barbour took possession of a home under a HUD sponsored housing program known as “Turnkey III.” This program has been described by the Court of Appeals for the Third Circuit as follows:

The Turnkey III housing program is a federal program designed to provide home ownership opportunities for low income families. It is funded through the United States Department of Housing and Urban Development (HUD) and is subject to detailed federal regulation. These regulations cover virtually every aspect of the relationship between the tenants/purchasers and the landlord/seller— in this case the PHA as a HUD agent.
The program works in the following manner. PHA acquires low rent housing developments with the financial assistance of HUD, and owns the homes until title is transferred to a homebuyer. PHA is responsible for the management of the program. To be eligible for the program, low income families must meet certain income guidelines. Once the PHA determines that a family is income eligible, the family is placed on a waiting list. The priority the family receives is determined by the PHA in accordance with HUD regulations. After a family is accepted into the program, but before the family may occupy a Turnkey III residence, the family must execute a Homebuyers Ownership Opportunity Agreement (“HOOA”). The HOOA is a contract between the occupant family (“homebuyer”) and the PHA. The HOOA specifies the obligations of the homebuyer and many of the obligations of the PHA.
The unique characteristic of this program is that participating residents in the program may, through the procedure described in the regulations, actually purchase their residences and become homeowners. The regulations provide two methods by which a homebuyer may purchase the home, both of which relate to his paying a percentage of his expenses into various HUD accounts; see 24 C.F.R. § 904.107.

Ayers v. Philadelphia Housing Authority, 908 F.2d 1184, 1185-1186 (3rd Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1003, 112 L.Ed.2d 1086 (1991) (footnotes omitted).

When Barbour failed to pay rent as agreed, PHA commenced an action seeking to recover possession and unpaid rent in the amount of five thousand, five hundred ($5,500) dollars in the Municipal Court of Philadelphia, as permitted by the Landlord and Tenant Act of 1951. See: 42 Pa.C.S. § 1123(a)(3). The Municipal Court held that the agreement between Barbour and PHA was a lease and that, therefore, it had jurisdiction to hear the action. The court then entered judgment in favor of PHA for possession of the premises and for rent in arrears. Barbour appealed to the Court of Common Pleas of Philadelphia, where PHA’s action was dismissed. The court held that the agreement between the parties was a land purchase agreement and that, because PHA had failed to satisfy statutory notice requirements for foreclosure proceedings, the court lacked jurisdiction to hear the case. PHA appealed.

When a party uses a preliminary objection in the nature of a petition raising a question of subject matter jurisdiction, the court’s function is to determine whether the law will bar recovery due to the lack of such jurisdiction. See: In re: Ordinance No. 1-9-86, Logan Township, 116 Pa.Commw. 640, 542 A.2d 1051 (1988). The trial court, in this case, correctly held that the notice requirements pertaining to foreclosure proceedings are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act. See: Main Line Federal Savings and Loan Ass’n v. Joyce, 632 F.Supp. 9 (E.D.Pa.1986). Recently, however, the Court of Appeals for the Third Circuit, in Ayers v. Philadelphia Housing Authority, supra, held that the Pennsylvania statutes establishing procedures for evicting homeowners for failure to make mortgage payments have been preempted by federal regulations applicable to resident evictions in Turnkey III housing sponsored by the federal Department of Housing and Urban Development (HUD). Inasmuch as state notice requirements are inapplicable to evictions of Turnkey III housing occupants, therefore, the trial court erred when it dismissed the instant complaint for the PHA’s failure to comply. Our inquiry does not end, however, for we must now determine whether Barbour was properly evicted for nonpayment of rent by the Municipal Court under jurisdiction granted by the Landlord and Tenant Act of 1951.

PHA contends that a Homebuyers Ownership Opportunity Agreement is nothing more than a lease with an option to buy. Unless and until the option to buy is exercised, therefore, the relationship between the parties is that of landlord and tenant. Jurisdiction over landlord and tenant actions is vested by statute in the Municipal Court of Philadelphia. Barbour argues, however, that the agreement is a contract to purchase real estate and that jurisdiction over disputes between buyer and seller is vested in the Court of Common Pleas.

As is true in other cases of written contracts, we look to the language of the agreement to ascertain the intention of the parties. Cusamano v. Anthony M. DiLucia, Inc., 281 Pa.Super. 8, 13, 421 A.2d 1120, 1122 (1980). When we do so, we are constrained to agree with PHA that the parties’ agreement, prior to exercise of the option to buy, is a lease.

The name of the agreement, “Homebuyers Ownership Opportunity Agreement”, indicates precisely what is created: an ownership opportunity. The language used throughout this agreement, however, suggests an intent to create a léase agreement. The very first provision reveals the nature of the contract, for it provides: “[i]n consideration of the agreements and covenants contained in this agreement and in the Homebuyers Ownership Opportunity Agreement Part II, ... the Authority hereby leases to the Homebuyer the following described land ...” (emphasis added). The agreement grants the lessee an option to purchase the home only upon the satisfaction of certain conditions. Meanwhile, the occupant is required to make monthly payments, referred to as “lease-rental” payments, which may increase or decrease according to changes in the “rent” schedule. Part II of the agreement explains that the home is “for occupancy by low-income families under lease-purchase agreements, each in the form of the Homebuyers Ownership Opportunity Agreement.” It also recites that until the occupant satisfies the conditions precedent to exercising the option, he or she shall have the status of a lessee of the PHA. Although the tenant is referred to as a “homebuyer,” such is defined as “member or members of a low-income family who have executed a Homebuyers Ownership Opportunity Agreement with the Authority.” The agreement specifies that the name “also refers to the occupant during his status as lessee.” A “homebuyer” is distinguished from a “homeowner” in the agreement in that a homeowner is “a homebuyer who has acquired title to his home.” The terms “lease” and “option” in this case do not disguise a sales agreement. On the contrary, they clearly indicate the parties’ intent that the agreement shall create a landlord and tenant relationship until such time as the option to purchase is exercised.

An agreement may be a lease, so as to create at first the relation of lessor and lessee, and also an executory contract of sale on certain conditions, and a lease may contain a provision giving the lessee an option to purchase the property during or at the end of the period specified therein.

51C C.J.S. Landlord and Tenant § 202(8) (1968). A lease with an option to purchase has been defined as “[a] lease under which the lessee has the right to purchase the property. The price and terms of the purchase must be set forth for the option to be valid. The option may run for the length of the lease period.” Black’s Law Dictionary 801 (5th ed. 1979).

“An option is not a sale, but is a right of election in the party taking the same to exercise a privilege, and only when that privilege has been exercised by acceptance in the manner specified in the agreement does it become an absolute contract binding upon both parties.” 32 P.L.E. Options § 11 (1977). See also: Biggins v. Shore, 365 Pa.Super. 237, 529 A.2d 487 (1987) (an option is an offer which, when accepted, is a valid and binding contract), aff'd, 523 Pa. 148, 565 A.2d 737 (1989). When a lessee of real property exercises an option to purchase contained in the lease, it is then that the landlord and tenant relationship between the parties ceases to exist and the lease is converted into a contract of sale. Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947).

With regards to a lease, the Supreme Court has said: It is difficult to define a lease in terms which will fit all modern conditions; it may, we believe, be accurately defined as a conveyance or grant or demise of certain described land or tenement (usually in consideration of rent or other recompense) for a prescribed period or at will, but for a less time than the lessor hath in the premises: ____
“... no particular form of words is necessary to constitute a lease and ... any writing is sufficient which establishes the intention of one party voluntarily to dispossess himself of the premises, for a consideration, and of the other to assume the possession for a prescribed period: ____”

Morrisville Shopping Center, Inc. v. Sun Ray Drug Co., 381 Pa. 576, 582, 112 A.2d 183, 186 (1955) (citations omitted). See also: Ottman v. Albert Co., 327 Pa. 49, 54, 192 A. 897, 899-900 (1937) (lease, not sale occurs when use and possession pass, but not title).

Instantly, the agreement grants the homebuyer the right to use and possess the home in consideration of monthly payments, maintenance, and repair of the premises for a prescribed period of thirty (30) years. At the end of this period, if the homebuyer has not exercised the option to purchase, the home reverts to the PHA. The agreement clearly expresses PHA’s intent to deliver possession of the home and the homebuyer’s intent to possess the home for the prescribed period, with an option that the period may be decreased by purchase of the home.

In order for the homebuyer to be eligible to exercise the option, he or she must have: (1) achieved a certain balance in his or her Earned Home Payments Account within the first two years; (2) met the requirements of the agreement; and (3) rendered satisfactory performance of responsibilities owed to the Homebuyers Association. Even after satisfying these conditions, the homebuyer is still required to pay the applicable purchase price in order to exercise the option to purchase. Unless and until the homebuyer satisfies the conditions and pays the purchase price, the offer to sell has not been accepted and the relationship can only be characterized as that of landlord and tenant.

In the meantime, the agreement requires the homebuyer to make monthly payments and maintain and repair the home. The lease continues from month to month with automatic extensions for a period of thirty years. PHA may not freely terminate the agreement but must comply with regulations prescribed by HUD. Nowhere in the agreement, however, does the homebuyer promise or agree to purchase the home. His or her obligation is to occupy the premises and make monthly payments as prescribed by the agreement. If these payments are made and other conditions are met, then the occupant may, upon payment of an agreed price, purchase the home. Although PHA is then required to sell, the homebuyer is not only not required to purchase but may terminate the agreement at any time upon thirty (30) days’ notice.

The monthly payments required to be made by the occupant cannot be applied directly to satisfaction of the purchase price. These payments are based on the homebüyer’s income. They are used to cover two costs: the debt-service cost and the “break even” cost. The debt-service cost covers PHA’s payment on principal and interest. The “break even” cost is comprised of three amounts which are necessary to prevent PHA from operating at a loss. They include: (1) the monthly operating expenses of PHA; (2) the estimated monthly maintenance cost for the home; and (3) the estimated monthly non-routine maintenance cost for the home. From each monthly payment, the homebuyer has credited to his or her Earned Home Payment Account (EHPA) the estimated monthly cost for maintaining the home. Since the agreement requires the homebuyer to maintain and repair the home to the satisfaction of PHA, the homebuyer is, in effect, earning the credit. The EHPA also acts as a security account for PHA, because in the event the homebuyer fails to maintain or repair the premises, PHA may use the funds from the homebuyer’s account to fulfill the occupant’s neglected obligations. If the agreement is terminated or the homebuyer vacates the home, he or she may remove any remaining funds from the EHPA, for they are funds which have been earned through the program. Upon satisfaction of the conditions precedent to exercising the option to purchase, the homebuyer may also apply the funds in the EHPA account towards the price of the home.

An amount estimated for non-routine maintenance is credited to the homebuyer’s Non-Routine Maintenance Reserve account. This account is created for the benefit of the home. If the agreement is terminated or the homebuyer vacates the home, the homebuyer is not entitled to the funds in the Non-Routine Maintenance Reserve account. However, if the homebuyer opts to purchase the home, any balance remaining in this account is paid to the homebuyer at settlement.

A careful analysis of the Homebuyer’s Ownership Opportunity Agreement makes it clear, we conclude, that the agreement is in reality a lease with an option to purchase. In the instant case, the option to purchase had not been exercised when PHA started an action to evict Barbour. The relationship between the parties, therefore, was that of landlord and tenant. As such, the action was governed by the Landlord and Tenant Act of 1951 and was properly brought in the Municipal Court of Philadelphia.

The order of the Court of Common Pleas is reversed and set aside, and the order of the Municipal Court is reinstated.

      . Because the state statutes are inapplicable to the instant action, they do not support Barbour’s claim for counsel fees.


author: OLSZEWSKI, Judge:

text:
    592 A.2d 51
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. TRAVELER’S INSURANCE COMPANY, Charles E. Sanders, Randall Kevin Gossert and Little Sicily Pizzeria, Appellees.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed May 6, 1991.
    Reargument Denied July 10, 1991.
    Petition for Allowance of Appeal Denied Nov. 18, 1991.

      Thomas E. Brenner, Harrisburg, for appellant.
    Stephen L. Banko, Harrisburg, for Traveler’s Ins., appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Lancaster County following an order denying appellant’s motion for summary judgment. The only issue before this Court is whether the insurance policy issued by Traveler’s Insurance Company affords coverage under the circumstances of the present case. The facts of the present case, as stated by the trial court, are as follows:

Randall Kevin Gossert (hereinafter referred to as Gossert), on November 13, 1985, was returning from making a delivery of pizza for his employer, Little Sicily Pizzeria, when the automobile he was driving collided with an automobile driven by Charles E. Sanders. The title of Gossert’s automobile was in his parents’ names.

Little Sicily Pizzeria’s insurance is with Traveler’s Indemnity Company (Travelers). Gossert’s insurance is with Pennsylvania National Mutual Casualty Insurance Company (PNI). Mr. Sanders brought suit against Mr. Gossert and Little Sicily Pizzeria seeking damages for injuries incurred in the accident. On or about September 4, 1986, Travelers orally informed PNI that Travelers would provide a legal defense for PNI’s insured, Gossert. (R.R. at 10a.) Travelers subsequently denied that it would defend Gossert, however, alleging that Gossert is the actual owner of the automobile in question and is therefore not covered under the non-owner provision of Travelers’ policy with Little Sicily Pizzeria.

Appellant PNI filed a declaratory judgment action against Travelers seeking a legal declaration that Travelers must defend Gossert under the terms of the Travelers insurance policy. PNI then moved for summary judgment, alleging the Travelers insurance policy to be ambiguous and arguing that such ambiguity should be construed against Travelers to provide coverage for Gossert. {See n. 1.) After determining the policy to be capable of interpretation and, therefore, unambiguous, the trial judge denied PNI’s motion for summary judgment. Thereafter, appellant PNI defended Gossert in the litigation, which resulted in a verdict in favor of Mr. Sanders of $50,000.00, in addition to delay damages in the amount of $16,258.00. PNI has paid the verdict and seeks reimbursement from Travelers. {See appellant’s brief at pp. 5-6.) On May 11, 1990, the trial court entered a declaratory judgment in favor of Travelers, requiring PNI to provide the insurance coverage. The sole issue decided by the trial court at that time was whether Gossert was the actual owner of the vehicle in question. The trial court determined that he was the owner, thereby denying him coverage under Travelers’ policy.

Appellant presents for our review the trial court’s denial of its motion for summary judgment. As stated, the only issue presented at the summary judgment stage of the proceedings was whether the non-owner provision in the Travelers policy was ambiguous. The trial court held that the provision was not ambiguous and denied appellant’s motion for summary judgment, as a genuine issue of material fact existed as to the ownership of the automobile in question. Appellant argues that the trial court erred in its interpretation of the non-owner provision, alleging that such provision is ambiguous and should be construed against the insurer, Travelers. Citing, Huffman v. Aetna Life & Casualty Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984). We agree with appellant, that the non-owner provision is ambiguous and hold that the trial court erred in denying PNI’s motion for summary judgment.

Generally, ambiguous provisions of an insurance policy are to be construed against the drafter and in favor of the insured. Loomer v. M.R.T. Flying Service, Inc., 384 Pa.Super. 244, 558 A.2d 103, 105 (1989). Appellee would have this Court believe that this rule does not apply to the present case. {See appellee’s brief at 8.) Appellee argues that this proposition of law does not apply where the parties to the dispute are two insurance companies. Appellee directs our attention to federal cases which support this position; however, appellee fails to discuss our Supreme Court’s position on the issue. In Erie Insurance Exchange v. Transamerica Insurance Co., 516 Pa. 574, 533 A.2d 1363 (1987), an automobile liability insurer brought an action against a homeowner’s insurer, seeking a declaration as to which insurer had a duty to defend and pay any damages in personal injury and wrongful death actions brought against an insured. The cause of action arose from an accident wherein the insured’s child set a visitor’s automobile into motion. After stating certain rules of construction with respect to insurance policies, our Supreme Court stated:

Although this case involves a controversy between two insurers, we will consider each policy from the point of view of the insured and construe each policy most strongly against the insurer.

Id. 538 A.2d at 1366-1367.

Therefore, applying this above reasoning of our Supreme Court, we reject appellee's argument and hold that the rule relating to ambiguity in an insurance policy applies, even though two insurers are the only parties involved. We now turn to the issue of whether the trial court erred in determining that the non-owner provision was not ambiguous. The non-owner provision provides coverage “to the use in the Named Insured’s business of a non-owned private passenger automobile by any person other than the named insured ...” That provision later provides, “This insurance does not apply to the owner of a non-owned automobile or any agent or employee of such owner and shall be excess over any other valid and collectible insurance available to the named insured.” The trial court, interpreting the non-owner provision, found it to be unambiguous. The trial court held that the clause does not extend insurance coverage to Gossert if he is the actual owner of the automobile in question but does extend coverage to him if his parents are the actual owners. While this certainly is one plausible interpretation of the non-owner provision, it is not entirely clear that it is the only possible construction of that provision. The first paragraph of the provision, providing coverage to the use in the named insured’s business of a non-owned automobile by any person other than the named insured, undoubtedly affords coverage to Gossert under the facts of the present case. The vehicle driven by Gossert was not owned by the named insured and was being used by Gossert in furtherance of the named insured’s business. The second paragraph, however, denies coverage to the owner of a non-owned automobile, which would include Gossert. When read in its entirety, it seems the non-owner provision would lead to the anomalous conclusion of affording coverage only to persons, other than the named insured, who use a vehicle owned by someone other than themselves in furtherance of the named insured’s business.

A provision of an insurance contract is “ambiguous” if reasonably intelligent people could differ as to its meaning. Loomer v. M.R.T. Flying Service, Inc., 384 Pa.Super. 244, 247-249, 558 A.2d 103, 105 (1989), citing, Musisko v. Equitable Life Assurance Society, 344 Pa.Super. 101, 496 A.2d 28 (1985). Where a provision of an insurance policy is ambiguous, it will be construed in favor of the insured. Loomer, supra, citing Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Where the terms of the insurance contract are not ambiguous, this Court must read the policy in its entirety and give the words therein their plain and proper meanings. Loomer, supra 558 A.2d at 105, citing, Koval v. Liberty Mutual Insurance Co., 366 Pa.Super. 415, 531 A.2d 487 (1987). In doing so, courts do not wish to convolute the plain meaning of a writing nor bestow upon the words a construction which is belied by the accepted and plain meaning of the language used. Loomer, supra 558 A.2d at 105, citing, DiFabio v. Centaur Insurance Co., 366 Pa.Super. 590, 531 A.2d 1141 (1987).

We believe that the non-owner provision is ambiguous, as the two paragraphs of that provision are plainly inconsistent with one another. When read together, the two paragraphs of the non-owner provision afford coverage to a very restricted group of persons. We agree with appellant that the inconsistency within the non-owner provision creates an ambiguity which the trial court should have construed against the insurer, Travelers, thereby affording coverage to Gossert.

In conclusion, we hold that the trial court erred in denying appellant’s motion for summary judgment and accordingly reverse the order denying such motion. (See notes 2 and 3.)

Judgment reversed. Jurisdiction relinquished.

      . The pertinent provision of the liability policy issued by Travelers provides:
      NON-OWNED AUTOMOBILE COVERAGE
      Such insurance as is afforded by bodily injury and property damage coverage also applies to the use in the named insured’s business of a non-owned private passenger automobile by any person other than the named insured or a non-owned commercial automobile used occasionally or infrequently by an employee of the named insured. The exclusion pertaining to automobiles in such form is amended accordingly.
      This insurance does not apply to the owner of a non-owned automobile or any agent or employee of such owner and shall be excess over any other valid and collectible insurance available to the named insured.

      . Interpreting the Non-Owned Automobile Coverage Provision, the trial judge determined that the clause would not extend coverage to Gossert if he is the actual owner of the automobile in question but would extend coverage to him if his parents are the actual owners. The trial court went on to state that there was an existing issue of fact as to whether Gossert or his parents are the owners of the automobile in question and accordingly denied PNI’s motion for summary judgment.

      . Appellees Travelers Insurance Company and Little Sicily Pizzeria, Inc., filed a motion to quash the present appeal for the reason that the case was submitted to the trial court on a “case stated” basis and appellant failed to preserve its right of appeal or file post-verdict motions. On January 16, 1991, a full panel of this Court denied appellees’ motion to quash. We consider, however, only that issue which was the subject of appellant’s motion for summary judgment (i.e., interpretation of Travelers’ insurance policy) as that is the only issue raised in appellant’s statement of questions or argued in its appellate brief. We note that appellant could not have immediately appealed the trial court’s order denying its motion for summary judgment, as that order was interlocutory. This appeal is now properly before us, as a final judgment has been entered by the lower court. See Lane v. Schacht, 260 Pa.Super. 68, 393 A.2d 1015, 1018 (1978).

      . Appellee cites to Keystone Insurance Co. v. Allstate Insurance Co., 633 F.Supp. 1358 (W.D.Pa.1986); Chicago Insurance Co. v. Pacific Indemnity Co., 566 F.Supp. 954 (E.D.Pa.1982); Union Carbide Corp. v. Travelers Indemnity Co. 399 F.Supp. 12 (W.D.Pa.1975), for the proposition that the rule does not apply where the dispute is between two insurance companies. A federal court’s interpretation of state law, however, does not bind this Court. See Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), citing, Moore v. Sims, 442 U.S. 415, 428, 99 S.Ct. 2371, 2379, 60 L.Ed.2d 994 (1979).