author: MONTEMURO, Judge:

text:
    535 A.2d 1070
    Thomas McGILLEY and Gertrude McGilley, h/w, v. CHUBB & SON, INC. and Southeastern Pennsylvania Transportation Authority. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1987.
    Filed Dec. 9, 1987.
    Reargument Denied Feb. 5, 1988.

      Alfred W. Putnam, Jr., Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal by the Southeastern Pennsylvania Transportation Authority (hereinafter “SEPTA”) from an order of the Court of Common Pleas of Philadelphia County, denying SEPTA’s request for post trial relief from the trial court’s initial order directing a verdict in favor of appellee Chubb and Sons, Inc. (hereinafter “Chubb”) under Pennsylvania’s No-fault Motor Vehicle Insurance Act. (hereinafter “No-fault Act”).' We affirm.

The events leading up to this action began on August 15, 1980 when Thomas McGilley, a cab driver, pulled into a line of cabs at a cab stand in front of the Warwick Hotel in Philadelphia. The cab that McGilley was driving was owned by Mar-Jan Taxi Company, which insured the cab under a policy with Chubb. When Mr. McGilley pulled into the cab stand at approximately 10:25 in the morning, his plan was to pick up a short fare before meeting his partner, James Burns, for lunch at around noon. The rendezvous was to take place at a small restaurant approximately fifty (50) feet away from the Warwick Hotel, at which time, Mr. McGilley would exchange the cab for Mr. Burns’ private automobile and proceed to take his family to the New Jersey shore.

After waiting in line for approximately twenty minutes, Mr. McGilley turned his ignition key to off, got out, and walked to the cab in front of his to “bum a cigarette” from the driver. As he was chatting with the driver about the day’s business, a SEPTA bus approached from the rear. When warned by the driver of the other cab about the oncoming bus, Mr. McGilley attempted to make his way to the curb, but unfortunately to no avail. The bus struck him resulting in the loss of his leg.

Mr. McGilley filed an action in trespass against SEPTA which was settled. However, the settlement with SEPTA excluded Mr. McGilley’s medical expenses. Consequently, he filed a claim against the Mar-Jan Taxi Company, his employer, under the Workmen’s Compensation Act. Because Mar-Jan failed to carry such insurance, Mr. McGilley, who owned no car and therefore carried no automobile insurance of his own, filed suit under the No-fault Act against Chubb, Mar-Jan’s no fault insurance carrier. Alternatively, Mr. McGilley sued SEPTA, a self-insured entity, also under the No-fault Act.

A trial was held before a jury. Mr. McGilley was the sole witness presented and at the close of his testimony all parties moved for a. directed verdict. The stipulation of facts between the parties and the interim settlement agreement, when read together, left a purely legal question, that is, whether SEPTA or Chubb was the obligor responsible for compensating Mr. McGilley under the priorities established in Section 204(a) of the No-fault Act. The trial court directed a verdict in favor of Chubb and against SEPTA, finding that under the No-fault Statute SEPTA was the obligor responsible for paying basic loss benefits to Mr. McGilley. SEPTA’s post-trial motion was denied and this appeal followed.

The question before us today is whether the trial court properly concluded that SEPTA was responsible for the payment of basic loss benefits under the priority provisions of Section 204(a) of the No-fault Act, 40 P.S. § 1009.204(a). The resolution of this question requires us to determine: (1) Whether McGilley was “occupying” the cab at the time of the accident and (2) Whether the Act’s definition of an “insured” preempts the definition of an “insured” found in the Chubb insurance policy for purposes of determining the applicable security under Section 204(a).

Initially, we note that our scope of review of a trial court’s decision to direct a verdict is limited to a determination of whether there exists “an abuse of discretion or error of law which controlled the outcome of the case.” Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987), citing McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

In McMullin v. Dallago, 353 Pa.Super. 527, 510 A.2d 787, (1986), we explained the purpose behind the enactment of Pennsylvania’s No-fault Insurance Act, as well as the types of insurance coverage required on vehicles registered in the Commonwealth:

The stated purpose of the Pennsylvania No-fault Motor Vehicle Insurance Act was “to establish at reasonable cost to the purchaser of insurance a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). To accomplish this purpose, the Act required every vehicle registered or operated in Pennsylvania to be insured, either by a policy of insurance, or by self-insurance. 40 P.S. § 1009.104. This insurance had to provide for the payment of basic loss benefits and for the payment of statutorily-designated sums which the owner or authorized operator may be liable to pay as damages for personal injury to any one person and for property destruction. 40 P.S. § 1009.104(a); Tierney v. Pennsylvania Assigned Claims Plan, 319 Pa.Super. 299, 466 A.2d 168 (1983). Thus, an owner or authorized operator, driving an insured' vehicle, who was injured in an automobile accident was to be paid basic loss benefits by his insurer whether he was at fault or not. At the same time he was covered up to the limits of his insurance policy for any tort liability he may have incurred. 40 P.S. § 1009.111.

Id., 353 Pa.Superior Ct. at 530-31, 510 A.2d at 789-90.

Section 201 of the No-fault Act entitles any “victim” of an accident or survivor of a deceased victim to recover “basic loss benefits” in accordance with the provisions of the Act. 40 P.S. § 1009.201.

Section 204 of the No-fault Act establishes “categories and priorities as between insurers responsible for payment of benefits” to the victims of motor vehicle accidents. 40 P.S. § 1009.204; Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 29, 457 A.2d 95, 96 (1983) (citations omitted). Section 204(a), entitled “Source of Basic Restoration Benefits,” provides:

(a) Applicable Security. — The security for the payment of basic loss benefits applicable to an injury to:
(1) An employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such a vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause an unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

40 P.S.A. § 1009.204(a).

It is well-settled that in order to determine the applicable source of basic loss benefits under the priority provisions of Section 204(a), each preceding subsection in the hierarchy-must be excluded before the next subsection may be considered, with the security provided by the assigned claims plan applicable only as a last resort. McCabe v. Prudential Property and Casualty Insurance Company, 356 Pa.Super. 223, 227, 514 A.2d 582, 584 (1986); Tyler, supra 311 Pa.Super. at 30, 457 A.2d at 97.

In the case sub judice it is undisputed that Mr. McGilley is a “victim” within the meaning of the Act and entitled to basic loss benefits. The only question is who is responsible for payment of these benefits under the priority provisions of Section 204(a). If Section 204(a)(1) or (a)(2) or (a)(3) is deemed applicable to the facts of this case, then Chubb, the insurer of the Mar-Jan cab, would be responsible for payment of basic loss benefits to Mr. McGilley. If none of the preceding sections apply, then SEPTA is the applicable security under 204(a)(4) since its bus was “a motor vehicle involved in an accident resulting in injury.”

Because Mr. McGilley was not driving at the time of the accident, in order for either Section 204(a)(1) or 204(a)(3) to apply, making the security covering the Mar-Jan cab responsible, McGilley must have been “occupying” the cab at the time of the accident.

We first addressed the scope of the concept of occupancy under Section 204(a) in Tyler, supra. In Tyler, the plaintiff was a passenger on a bus owned by a transit company. She was struck by a motorcycle passing on the right as she was stepping off the bus. Neither the plaintiff nor any member of her household had applicable no-fault coverage. Therefore, she filed a claim against the transit company’s no-fault carrier, which denied liability, claiming that plaintiff was a pedestrian and not an occupant of the bus at the time of the accident. In finding that the plaintiff was occupying the bus at the time of the accident, we stated:

In general, it can be said that a person who is alighting from a vehicle is still an occupant thereof. He continues to 'occupy’ the motor vehicle until he severs all connection with it. That point of severance is reached when he becomes highway oriented as opposed to being vehicle oriented. Until then, the alighting passenger continues to be an occupant of the bus. Until such a person is on his or her own without reference to the bus, the person has not ceased to be a passenger or occupant.

Id,., 311 Pa.Superior Ct. at 31, 457 A.2d at 97.

Subsequently our supreme court, in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), expanded the test laid down in Tyler. In that case the claimant, Mr. Contrisciane, was standing approximately ninety-seven (97) feet from his vehicle giving information to a police officer after he was involved in a minor accident. The vehicle he was operating was owned and insured by his employer, Future Cars, Inc. While Mr. Contrisciane was standing beside the police cruiser, he was struck and killed by an uninsured motorist. His estate filed a claim against Utica Mutual Insurance Company, the insurance carrier for Future Cars, Inc., alleging that Mr. Contrisciane was “occupying” the insured vehicle at the time of the accident. Our supreme court rejected a strict definition of the term “occupying”, requiring physical contact with the vehicle, and adopted a liberal approach which focuses on whether the “claimant was performing an act normally associated with the immediate use of the vehicle.” Id., 504 Pa. at 335, 473 A.2d at 1009. In finding that Mr. Contrisciane was an occupant of his employer’s vehicle the court stated:

[W]e hold that when a person is engaged in the lawful use of an insured vehicle, he will be considered to be “occupying” that vehicle within the meaning of the policy, provided he can meet the following criteria:
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting- coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

Id.

In the case sub judice the trial court found that the first two criteria were met, but that Mr. McGilley did not fulfill the third and fourth criteria because he was “highway oriented” and was not “engaged in a transaction essential to the use of the vehicle.” We agree.

In contrast to Tyler where the plaintiff was injured in the process of alighting from the bus, Mr. McGilley had completed the process of alighting from the taxi at the time that he was struck by the SEPTA bus. Mr. McGilley had stopped his cab at the cab stand in front of the Warwick Hotel. There were several cabs ahead of him and, after waiting for approximately twenty minutes, he turned off the ignition, took the keys, and turned off the cab’s independently operated dome light, which when off, indicates that the cab is not in service. Mr. McGilley then walked to the cab in front of him to “bum a cigarette.” He testified that after securing a cigarette he planned to ask the doorman at the Warwick if he wanted coffee and then go to “Little Pete’s” to purchase a pack of cigarettes and meet Mr. Burns, his partner, for lunch. After dividing the fares, Mr. McGilley was planning to exchange the cab for Mr. Burns’ car and take his family to the beach. The SEPTA bus struck Mr. McGilley just after he obtained a cigarette from the driver in front of him. We conclude that these facts demonstrate that Mr. McGilley had severed his relationship with his cab at the time of the accident. Consequently Mr. McGilley was “highway” rather than “vehicle” oriented at the time he was injured.

We also conclude that Mr. McGilley was not involved in a transaction essential to the use of the vehicle at the time of the accident. The present case is distinguishable from Contrisciane, supra, 504 Pa. at 328, 473 A.2d at 1005. The court’s determination that Mr. Contrisciane was occupying his employer’s vehicle, even though he was situated ninety-seven (97) feet away exchanging information with a police officer, rested on two considerations. First, Mr. Contrisciane’s fiance remained in the vehicle during the entire time, indicating that they anticipated resuming their journey following the exchange of information. The court also relied on the fact that it was only because a statute required Mr. Contrisciane to stop his vehicle and exchange information and the police officer requested production of an owner’s card that Mr. Contrisciane found himself out of physical contact with his vehicle. Unlike Mr. Contrisciane, Mr. McGilley’s presence outside the cab was not necessitated by duties or obligations incident to his use of the taxi cab. At the time of the accident Mr. McGilley had effectively terminated his association with the taxi cab and was in pursuit of his own personal needs. We find that leaving a vehicle for the primary purpose of securing a cigarette is not a transaction “essential to the use of the vehicle.”

Because of our determination that Mr. McGilley was not an “occupant” of the cab insured by Chubb, neither Section 204(a)(1) nor (a)(3) are applicable. As a result, unless the facts of the instant case fall within Section 204(a)(2), SEPTA will be the applicable security under Section 204(a)(4).

Section 204(a)(2) provides that the applicable security “to an injury to ... an insured is the security under which the victim or deceased victim is insured.” 40 P.S. § 1009.-204(a)(4). SEPTA claims that the trial court erred in applying the statutory definition of “insured”, rather than the more liberal definition of “insured” contained in the policy issued by Chubb to the Mar-Jan Taxi Company. Section 103 of the No-fault Act provides in pertinent part that:

Insured means (a) an individual identified by name as an insured in a contract of basic loss insurance complying with this Act; and (b) spouse or other relative of a named insured, and a minor in the custody of a relative of a named insured if
(i) not identified in any other contract of basic restoration insurance complying with this act; and
(ii) in residence in the same household with a named insured....

40 P.S. § 1009.103 (emphasis added). However, the insurance policy issued by Chubb contains a broader definition of “persons insured.” The policy provides as follows:

struck by an uninsured motorist. The court concluded that Rau was "using” the truck for purposes of the policy definition of "insured." Rau's physical presence outside his vehicle was necessary for the continued use of his vehicle, to which he was returning when injured. Moreover, the court’s decision in Rau seems to rest more on contract principles and policy considerations than does the present case. In Rau the ;ourt was construing a contractual definition of "insured” and appeared to be influenced by the maxim that ambiguous provisions should be construed against the insurer. In addition, the court’s liberal interpretation was influenced by the policy behind the uninsured motorist statute of compensating victims for the acts of irresponsible drivers. These considerations do not weigh heavily in the present case because we are construing a statutory rather than a contractual term, and b is clear that Mr. McGilley will be compensated by either Chubb or SEPTA, regardless of our construction of the term “occupying.”

Each of the following is an insured under this insurance to the extent set forth below:

(a) the named insured;
(b) any partner or executive officer thereof, but with respect to a temporary substitute automobile only while such automobile is being used in the business of the named insured;
(c) any other person while using an owned automobile or a temporary substitute automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
(1) a lessee or borrower of the automobile or
(2) an employee of the named insured of such lessee or borrower;
(d) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a), (b) or (c) above.

(emphasis added.) Consequently, if the Act’s definition of insured is controlling, Mr. McGilley would not be an insured because he was neither named in the policy nor a spouse or relative of a named insured in the policy. But, if the policy provision is applicable, then Mr. McGilley would fall within subsection (c) of the definition since he was injured while using the cab with the permission of the named insured.

Our analysis of this issue begins with an oft-cited principle of statutory construction:

[W]hen the words of a statute are clear and free from all ambiguities, the letter of it is not to be disregarded under the pretext of pursuing the spirit.

1 Pa. C.S.A. § 1921(b). As with any statute, in construing the No-fault Act we look first to the express language of the statute to determine the intent of the legislature. If the language of the statute is unclear we may then look to external sources as an aid to interpretation. However, where the statute expressly defines what a term means, the legislature has created its own dictionary and the meaning of the term as defined excludes any other meaning. Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 684 n. 10, 58 L.Ed.2d 596 (1979); Hughes v. School District of Pittsburgh, 379 Pa. 145, 148, 108 A.2d 698, 699 (1954).

Our legislature expressly declared that one of the major purposes in enacting the Pennsylvania No-fault Motor Vehicle Insurance Act was to provide “a statewide low-cost comprehensive and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(a)(4) (emphasis supplied). As an integral part of this comprehensive system, Section 204(a) sets forth the general rules for determining the source of basic loss benefits for injuries arising out of a motor vehicle accident. In order to ensure that the No-fault Statute operated to effectuate the legislature’s intent, Section 103 was incorporated into the Act. Section 103 is comprised of a series of definitions which are to be applied throughout the statutory framework.

SEPTA maintains that while the terms of an insurance contract may not restrict the coverage required by the Act, the carrier may provide broader coverage than the Act requires. As a result SEPTA contends that the definition of “insured” contained in the Chubb policy should be incorporated into Section 204(a)(2), making Chubb the applicable security.

SEPTA’s argument fails for several reasons. First, the No-fault statute was designed to provide an effective remedy for the victims of motor vehicle accidents. This remedy was created by our legislature and is properly interpreted by applying statutory and constitutional principles rather than contractual principles. 3 A. Corbin, Corbin on Contracts § 551 (1951). Consequently, the statutory definition of “insured” must be interpreted in accordance with the intention of the legislature. That the parties to an insurance contract may have intended a different meaning is of no consequence in our analysis. Moreover, contrary to SEPTA’s contention, coverage would not be extended in the present case by reading the broad policy definition of “insured” into Section 204(a)(2). Section 204(a) creates a procedural hierarchy which is applied to determine which insurance policy will pay basic loss benefits to the claimant. See Tyler, supra, 311 Pa.Superior Ct. at 30, 457 A.2d at 97. While reading the policy definition of “insured” into the Act would change the party responsible for paying basic loss benefits to Mr. McGilley, it would not extend the coverage provided under the Act. This is not a case where the question is whether a given claimant is entitled to basic loss benefits under the Act. Under such circumstances our analysis would require us to consider the Act in light of its remedial purpose of providing prompt compensation to victims. See Bills v. Nationwide Insurance Company, 317 Pa.Super. 188, 463 A.2d 1144 (1983) (courts should err in favor of coverage in construing No-fault Act). The question here is which of the two insurers is responsible for compensating a victim who is entitled to receive basic loss benefits. We conclude that in such a situation the terms of the statute control. Because Mr. McGilley was not named in the Chubb insurance policy, he does not fit the definition of “insured” provided in Section 103 of the Act. As a result Section 204(a)(2) is inapplicable.

Our elimination of the applicability of Sections 204(a)(1), (2) and (3) requires us to examine Section 204(a)(4) as required by Tyler, sufra and it progeny. Because Mr. McGilley is not an “insured” or a “driver or other occupant” of a motor vehicle, the applicable security under Section 204(a)(4) is “the security of any motor vehicle involved in an accident.” The SEPTA bus which injured Mr. McGilley clearly fits within this definition, making SEPTA responsible for payment of Mr. McGilley’s basic loss benefits.

We find that the trial court properly resolved the questions of law in this case. Accordingly, the order of the trial court directing a verdict for Chubb and against SEPTA is affirmed. •

Order affirmed.

      . Act of July 19, 1974, P.L. 489, 40 P.S. §§ 1009.101-.601, repealed by Act of February 12, 1984, P.L. 26, No. 11 § 8(a), effective October 1, 1984.

      . Mar-Jan leased the cab to James Burns, who split a 12 hour shift with Mr. McGilley. At the end of each 12 hour shift Mr. Burns and Mr. McGilley would meet and split the fares earned.

      . McGilley v. SEPTA (No. 2236 C.C.P. Philadelphia, September, 1980).

      . Where an employee is injured in a motor vehicle accident while operating his employer’s vehicle in the course of employment, the employee is generally relegated to the following:
      (1) A claim for worker’s compensation against his employer;
      (2) For any loss in excess of the worker’s compensation coverage, the employee may bring an action against his personal No-fault insurer or, if none, the Pennsylvania assigned claims plan.

        Harleysville Insurance Co. v. Wozniak, 347 Pa.Super. 356, 360, 500 A.2d 872, 874 (1985).
      However, where an employer does not supply worker’s compensation, an injured employee may present a claim to the employer's no-fault insurer under section 204(a)(1) of the No-fault Act and bring an action at law against the employer. Id., 347 Pa.Superior Ct. at 361-362, 500 A.2d at 875.

      . While Chubb argues that Mr. Burns, rather than Mar-Jan, was Mr. McGilley’s employer within the meaning of section 204(a)(1), this issue was not raised below and is therefore waived for purposes of our review. Wenzel v. Morris Distributing Company, 439 Pa. 364, 266 A.2d 662 (1970).

      . By written agreement the parties were able to stipulate to many of the facts as set forth above. However, they expressly left open the question of whether Mr. McGilley was using the cab at the time of the accident. See Stipulation of Facts (R.21a).

      . The parties entered into a partial and interim settlement agreement for the purpose of providing prompt compensation to Mr. McGilley and to avoid the need for a trial on damages. The agreement provided that SEPTA and Chubb would pay $110,000 into escrow for Mr. McGilley. The party who was found obligated to compensate Mr. McGilley in the present action would then reimburse the other party in the amount of $110,000 (R.16a).

      . Victim is defined as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” Pa.P.S. § 1009.103).

      . Basic loss benefits are benefits "for the net loss sustained by the victim, subject to any applicable limitations, exclusions, deductibles, writing periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act, but do not include "benefits for damage to property” or “beneifts for net loss sustained by an operator or passenger of a motorcycle.” 40 P.S. § 1009.103.

      . The court believed that this approach best comported with the policy behind the Uninsured Motorist Act, 40 P.S. § 2000, which was intended to protect "those persons who while lawfully using the highways themselves suffer grave injuries through the use of those highways by others.”
      We note that a number of decisions in Pennsylvania, as well as in other jurisdictions, rely on public policy considerations in giving a liberal construction to the term "occupying.” These policy considerations include the liberal construction of no-fault statutes to provide for recovery in accordance with their remedial purposes, as well as the maxim that ambiguous policy provisions should be construed against the insurer. However, these policy considerations appear to be more compelling in determining whether the claimant is entitled to be compensated under the applicable No-fault Act. Such policy considerations are less compelling in construing the term "occupancy” where the question is not coverage under the Act, but merely priority, as in the present case, between two insurers. Moreover, in contrast to Contrisciane, where the court was construing a term contained in the insurance policy, we are presently construing a statutory term. The maxim that ambiguous provisions should be construed against the drafter is therefore inapplicable to this case. See Annotation, What Constitutes Occupancy of Motor Vehicle for Purposes of No Fault Automobile Insurance Coverage, 35 ALR 4th 364 (1985).

      . Although the record is unclear, it appears that Mr. McGilley abandoned his original plan to pick up a short fare before proceeding to lunch.

      . SEPTA’s reliance on Rau v. Liberty Mutual Insurance Company, 21 Wash.App. 326, 585 P.2d 157 (1978) is misplaced. In Rau the truck driver was returning to his truck after asking directions when he was

      . The term "using” is accorded a more liberal interpretation than the term “occupant”. Courts generally apply a causal analysis in determining whether a claimant was using a motor vehicle. The test is generally that there must be a sufficiently close connection between the injuries sustained and the insured vehicle. See Lewis v. Nationwide Insurance Co., 541 F.Supp. 951 (1982 M.D.Pa.); Fire Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1942). While Mr. McGilley was not an occupant of the Mar-Jan Cab, the causal connection between the injuries sustained and the cab were sufficiently close to satisfy the "use” requirement. See also D. Shrager, The Pennsylvania No-fault Motor Vehicle Insurance Act 62-64 (1979).

      . We note that the preamble to Section 103 begins with "[a]s used in this Act:” and then goes on to define a series of terms. Because the no-fault system was intended to be comprehensive, we believe that the language in the preamble to Section 103 accentuates the importance of consistent application of the statutory definitions in order for the various provisions of the Act to interrelate as intended.

      . Generally, the provisions of an act providing a method of procedure must be strictly construed and exclusively applied. See In re Shapp, 28 Pa.Comwlth. 163, 368 A.2d 858, aff’d 476 Pa. 480, 383 A.2d 201 (1977).

      . We have already recognized that Mr. McGilley is a victim entitled to basic loss benefits. See 40 P.S. § 1009.103; 40 P.S. § 1009.201.

      . Our resolution of this issue is consistent with recent decisions of this court. In Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 247-249, 518 A.2d 1213, 1218 (1986), we used the statutory definition of "insured” provided under Section 103 to find that an insurance carrier was responsible for paying basic loss benefits under Section 204(a)(2) to both the named insured victim and the victim’s spouse.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    535 A.2d 1078
    Joseph R. BUSIN and Edrie M. Busin, His Wife, Appellants, v. Francis L. WHITING and Eleanor D. Whiting, His Wife.
    Superior Court of Pennsylvania.
    Argued June 17, 1987.
    Filed Dec. 7, 1987.
    Reargument Denied Jan. 26, 1988.

      Charles S. Cusick, Jr., New Castle, for appellants.
    Allen L. Palmer, New Castle, for appellees.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Joseph and Edrie Busin, appellants, commenced this ejectment action in the Court of Common Pleas of Lawrence County against Francis and Eleanor Whiting. The Busins seek to exclude the Whitings from a disputed section of land and to recover damages. The Busins moved for Summary Judgment. They asserted that they had met their burden of pleading by proving their good title and were therefore entitled to judgment as a matter of law. In its Opinion and Order of October 28, 1986, the trial court denied the Busins’ motion and entered summary judgment for the Whitings. We affirm on different grounds.

The Whitings purchased their 175-acre farm from Andy Ratvasky in 1967. In 1981 the Busins acquired what they alleged to be a fee interest in a parcel of land from the trustees of the Erie-Lackawanna Railroad Company. As described in the deed submitted with their complaint, the property is “that portion of the Grantor’s right of way known as the New Castle Branch, which commences in the town of Pulaski [and] which extends therefrom in a generally southeasterly direction a distance of 7.86 miles [and is] 50 feet or wider.’’ A portion of this strip of land runs through the Whitings’ farm, thus generating the dispute. The Bu-sins claim that the Whitings commit continuing trespass by pursuing their farm activities and by otherwise exercising dominion over the land.

An action in ejectment has been held to be the appropriate form of action for the determination of a question of title to real property. In Re Yarnall’s Estate, 376 Pa. 582, 103 A.2d 753 (1954). The right to possession is the central element of the action, and establishing fee ownership is one valid way of proving this right to possession. Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979). In this case the Busins claim right to possession by virtue of a fee title to the land. If the plaintiff has neither title nor right to possession by other means, he may not oust the defendant by an ejectment action. Africa v. Trexler, 232 Pa. 493, 81 A. 707 (1911). As this court has written:

The plaintiffs burden in an action of ejectment is clear: he must establish a right to immediate exclusive possession____ In order to recover in an ejectment action, the plaintiff must show title at the commencement of the action and can recover, if at all, only on the strength of his own title, not because of weakness or deficiency of title in the defendant____ This rule places upon the

plaintiff the burden of proving a prima facie title. Hallman v. Turns, 334 Pa.Super. 184, 189, 482 A.2d 1284, 1287 (1984) (citations omitted).

The Pennsylvania Rules of Civil Procedure require that the initial showing of paper title be demonstrated by means of an abstract of title:

Rule 1504. Specific Averments. Abstract of title
(b) A party shall set forth in his complaint or answer an abstract of the title upon which he relies at least from the common source of the adverse titles of the parties.

Pa.R.C.P. 1054(b). “An abstract of title is simply a compilation in an abridged form of the record of the vendor’s title; it is a summary of the most important parts of the deeds and other instruments comprising the evidences of title, arranged in chronological order, and intended to show the original source and incidents of title.” 77 Am.Jur.2d Vendor and Purchaser § 259. Therefore, if the plaintiff’s abstract reveals a defect in his chain of title, he will not have established a prima facie title, without which his claim must fail; the defendant need prove nothing. Hallman v. Turns, 334 Pa.Super. at 189, 482 A.2d at 1287.

The Busins submitted with their complaint an abstract of title tracing their chain of title to an 1871 sheriff’s sale. The Whitings’ answer included their abstract of title, which demonstrated their title source to be a 1786 grant from the Commonwealth to John Stay, “duly recorded in the office for recording deeds.” The Busins countered with a Reply and a Motion for Summary Judgment accompanied by affidavits, chief among which was the deposition testimony of an expert, Robert M. White, taken March 27, 1986. This testimony purported to establish that the railroad grantors acquired fee title from the defunct Erie Canal Company, which had, the expert claimed, received its fee title by a legislative Act of March 7, 1843. The expert admitted that no recorded deed existed but maintained that the Act, which created the Canal Company, served as an implied conveyance that conveyed a fee title. The issue of whether parol evidence can be accepted to prove paper title was not raised, and therefore we will not address it.

The trial court found this questionable conveyance of title to fee interest from the Commonwealth to the Canal Company to be the dispositive issue: “It becomes necessary, therefore, to decide whether an alleged statutory claim of land transferred to a quasi-public body, without an actual deed of title to that body, will constitute a valid link in a chain of title.” (Opinion, 10/28/86 at 4). The court held that, because no recorded deed existed evidencing this transfer, no transfer of title had in fact occurred. “[T]he plain language of statutes going back more than two centuries [requires] the recording of deeds for all valid transfers of land in the Commonwealth.” (Opinion, 10/28/86 at 5). The trial court cited the original Pennsylvania statute, the Act of March 18, 1775, the pertinent portion of which has been retained Pa.Stat.Ann. tit. 21 § 444 (Purdon 1955). The trial court concluded that the lack of a recorded deed transferring title constituted a fatal defect in the Busin’s abstract of title and held that, not having presented prima facie good title, “they cannot maintain this suit in ejectment.” (Opinion, 10/28/86 at 8).

We agree both with the trial court’s finding that the Busins have not shown good prima facie paper title and with the trial court’s conclusion that the Busins’ ejectment action therefore must fail. However, while the trial court bases its conclusion on the fact that there is no recorded deed from the Commonwealth to the Erie Canal Company, we base ours on the fact that no deed exists, and that in any event the interest passed from the Commonwealth to the Canal Company was not a fee interest. Hence, the Busins never had title to the land and therefore cannot sustain their initial burden in ejectment. The non-recording of a deed can affect the rights of parties. A deed unrecorded for two years is not permitted to be given in evidence. Act of March 26, 1841, P.L. 106; 21 P.S. § 442. An unrecorded deed is void against a subsequent purchaser for value or against a creditor. Act of March 18, 1775, supra; 21 P.S. § 444. However, the non-recording in itself cannot prevent the actual passing of the interest in land. The interest passes when the written deed is duly delivered. Hogue v. Hogue, 114 Pa.Super. 432, 174 A. 598 (1934); See Act of March 21, 1772 1 Sm.L. 389, as amended, 33 P.S. § 1 (the Statute of Frauds).

By the Busin’s own admission, no deed exists from the Commonwealth to the Canal Company, which is in itself sufficient to render the Busins’ claim of title fatally defective. The plaintiff does not establish title in ejectment when possession is not shown and an essential deed in the chain of title is missing. Faux v. Cooke, 107 Pa.Super. 88, 163 A. 384 (1933). Nevertheless, if we accept the Busins claim that the Act of March 7, 1843 functions as a deed, our role is to construe this “deed” to discover what interest it does, in fact, convey. In doing so, we find that the Act does not convey a fee interest from the Commonwealth to the Erie Canal Company.

Some historical background is necessary at this point. When the Erie Canal was completed in New York State in 1825 and proved successful, Pennsylvanians were anxious to benefit the Commonwealth in a similar way. The Commonwealth embarked on the canal construction, incurring a heavy debt. By 1843 it was completed as far as Pittsburgh. After some dispute it was decided to extend the canal to Lake Erie at Erie. The Commonwealth, however, had more difficulty at this stage. After spending $4,000,000 on construction without completing the project, the legislature refused to appropriate the last $200,000 needed. The citizens of Erie, however, wanted the canal built, and a deal was struck. The legislature agreed to cede to a group of private citizens “all the work that had been done” if the group would agree to finish the project. J. Miller, A 20th Century History of Erie County, Pennsylvania 234-243 (1908).

The legislature’s primary concern was that the group would have sufficient funds to finish the canal and so provided that the Governor would issue letters patent to the “Erie Canal Company” only when one thousand shares of stock, at fifty dollars a share, had been subscribed. Act of March 7, 1843 §§ 1-2. Governor David R. Porter issued the letters patent on June 15, 1843. Records of the Department of State, Corporation Bureau, Pennsylvania State Archives. The canal was completed and in use by 1844, but by 1871 the new railroad had rendered it obsolete. Railroad interests bought the Canal Company stock and ran the canal for a time “in a very unsatisfactory manner” until a major aqueduct collapsed and the canal was abandoned. J. Reed, History of Erie County, Pennsylvania 349 (1925). “Its bridges, locks and other equipment were, from time to time, disposed of, and its ditches gradually became refilled, until its very site has been mostly forgotten.” Id. A sheriff’s sale disposed of the Canal Company’s interest in “the canal bed, bank, towing paths, slopes, locks, dams, ponds, pools, aqueducts and the land covered by the waters”, the Busins’ title abstract, N.T. 5/10/84 at 16a.

Of course, the Canal Company could not convey a larger interest in all of this than it possessed. We must now examine the Act of March 7, 1843 to determine what interest the Commonwealth gave to the Erie Canal Company. In deed construction, “[i]t is fundamental that the intent of the parties governs and that such intent must be ascertained from the entire instrument.” Mishkin v. Tem ple Beth El of Lancaster, 429 Pa. 73, 76, 239 A.2d 800, 803 (1968). Whether an easement or a fee “is intended in a particular instance must be determined by the agreement as a whole.” Graybill v. Hassel, 167 Pa.Super. 284, 289, 74 A.2d 686, 687 (1950). See Annot. 6 A.L.R.3d 973 (1966). Most pertinent to our case:

A rule of construction of deeds provides that in ascertaining the intention of the parties, the language of the deed should be interpreted “in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.”

Cronan v. Castle Gas Company, Inc., 354 Pa.Super. 381, 387, 512 A.2d 1, 3 (1986), citing Brookbank v. BenedumTrees Oil Company, 389 Pa. 151, 131 A.2d 103 (1957).

The legislative purpose, as stated in the act, is “[t]o authorize the Governor to incorporate the Erie Canal Company.” As we have seen, the act provides that this would happen when sufficient shares of stock were sold. The next step was:

Section II. That immediately upon the issuing of the letters by the Governor, as provided by the second section of the act the Erie division of the Pennsylvania canal, from the town of Erie to the mouth of Beaver, on the Ohio river, together with the French Creek Feeder, shall be immediately vested in said corporation, authorized to be created by this act and their successors forever, together with all the surplus water power of said canal, all toll houses, implements, and all the estate, real and personal, purchased and owned by the Commonwealth, for the use of said canal.

Act of March 7, 1843 (emphasis added). The purpose of giving the Canal Company the portions of the canal that had already been completed was to facilitate the canal’s completion and operation. The Busins cite the above passage in their brief, emphasizing the word “forever” as their best evidence that the land was given in fee simple absolute. Appellant’s Brief at 18. This language alone cannot support the Busins’ position. Even the strongest words of conveyance to a grantee do not necessarily convey an estate in fee simple if other parts of the agreement show that such was not the parties’ intent. Brookbank, supra. In Brook-bank the issue was identical to that in our case, whether a “right of way” constitutes an easement or a fee.

The legislature’s intent to give away less than a fee interest is clear from the contents of the Act of 1843 as a whole. Toward the legislature’s end of completing and operating the canal for the benefit of the Commonwealth, it retained substantial control over the Erie Canal Company. To grant the company a fee interest would be anomolous to benefiting the Commonwealth. A brief review of the Act will illustrate this point. No banking privileges inured to the Company. Act of March 7, 1843, § 2. The treasurer of the company was required to review the bonds with their sureties every two years. Id, § 7. The company’s loan ceiling was fixed at $400,000 unless the legislature consented to a change. Id., § 9. A contingent fund was required to be set aside for extraordinary repairs. Id. The Commonwealth reserved the right to resume possession of the portion of the line from New Castle to the Ohio River if the Commonwealth’s interests so dictated. Id., § 11. The Act allowed the company to collect tolls “provided that the canal shall forever be and remain a public highway.” Id., § 12. Truly telling is Section 14, which provides: “At any time hereafter, it shall be lawful for the Commonwealth, upon a passage of a law by the legislature for that purpose, to resume the said line of canal, and the power of privileges and franchises hereby granted by paying to the said company the amount of money expended by them____” Id., § 14.

The Act further provides that no sale or lease of water privileges is vested in the company, Id. § 16; that the company shall be bound by the contracts of the Commonwealth, Id., § 17; that all employees of the canal shall be retained by the company, Id., § 18; that the company may enter upon adjoining lands to take stone, gravel, clay, etc. but that they must first compensate the landowners for this, Id. § 19. Also significant are the provisions that give the legislature the power to inspect the company’s books “and to report whether the provisions of this charter have been ... abused,” and if so, “then the legislature may, by law, declare the said charter void,” and if the charter is declared forfeited then:

the canal aforesaid, with its appurtenances, and all the estate, real and personal, of the said corporation, shall revert to and revert in the commonwealth, upon the payment by the commonwealth to the stockholders, the money expended, with interest.

Id., § 22.

Such a recital of restrictions on use and of reservation by the Commonwealth of the power to re-take the canal make clear that something less than a fee simple interest was given to the company. In short, the act simply authorized the company to run the canal and to keep the profits, provided that the company finance, complete and operate the canal, which was “forever [to] be and remain, a public highway.” We find, therefore, that the Commonwealth did not give a fee simple interest in the land to the Erie Canal Company.

Because the canal company never had a fee simple interest in the canal land, they never had a fee simple interest to convey. Hence, the Busins never received title to this land. They have not sustained their burden of showing prima facie title. Hallman v. Turns, supra, and their ejectment action must fail. We note that the deed from the grantor railroad to the Busins is titled “Quitclaim Deed”, describes the interest passed as “the Grantor’s right of way” and identifies the land involved as a generally 50 foot wide strip extending for 7.86 miles. The habendum clause language “and their successors forever” does nothing to alter the less-than-fee interest conveyed. Brookbank, supra. Because the Busins must have a fee simple in the land and nothing less in order to succeed, and because we have held that they do not possess this, we find it unnecessary to characterize exactly what interest the Commonwealth did give the Canal Company.

The Busins did not submit a good abstract of title and thus did not present a prima facie case. Because their ejectment action failed as a matter of law, the trial court was correct in denying their motion for summary judgment. Nor did the trial court err in entering summary judgment for the Whitings, the non-moving party. On a motion for a judgment on the pleadings, “the judgment may be entered for or against any party without regard to whether he was the moving party” (citations omitted). Boron v. Smith, 380 Pa. 98, 102, 110 A.2d 169, 171 (1955). This principle has been applied to summary judgment motions in Port Authority of Allegheny v. Flaherty, 6 Pa.Commw. 135, 293 A.2d 152 (1972). Here, because the Busins are precluded from maintaining their ejectment action against the Whitings, the Whitings prevail, making summary judgment in their favor proper.

Judgment affirmed.


text:
    535 A.2d 1083
    QUAKER CITY ENGINE REBUILDERS, INC. v. Doreen L. TOSCANO and Jack W. McCullough and Tosmac, Inc., Appellants.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1987.
    Filed Dec. 28, 1987.

      James F. Carney, Norristown, for appellants.
    Howard L. Bobb, Philadelphia, for appellee.
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   OPINION OF THE COURT:

This is an appeal from a preliminary injunction entered by the Court of Common Pleas of Philadelphia County enjoining and restraining appellants from “any further business contacts or dealing with customers present or past of [appellee], and conducting business competitive with that of [appellee] ... until final hearing.... ” Of the three issues raised by appellants, the principal question is whether appellee has established a clear right to relief where appellant McCullough’s contract with appellee, which contains a restrictive covenant, is for performance of services as an independent contractor, and not as an employee. For reasons which follow, we find it necessary to remand this case to the trial court.

Appellee sells and distributes rebuilt auto and truck engines. Appellant McCullough began to work for appellee as director of sales on May 20, 1985, pursuant to an oral agreement. At some point later, McCullough notified appellee of his intention to leave the company. McCullough did not stop performing sales for the company, but as a result of his dissatisfaction, an agreement was entered into on February 1, 1986 whereby appellant Tosmac, Inc. (“Tosmac”) would act as a sales representative for appellee in the capacity of an independent contractor. As part of the agreement, McCullough became responsible for his own travel and entertainment expenses. Additionally, the agreement contained a restrictive covenant as follows:

15. If this agreement is terminated by either party “Salesman” agrees that it wll (sic) not engage, directly or indirectly, either for itself or as agent or employee of any other, in manufacturing, buying, selling or dealing in automotive products that could be construed as competitive with the products of company, in the territory herein-above described, for a period of 2 years after the termination of the agency herein created, without the written consent of the company.

The agreement was signed on behalf of Tosmac by appellant Jack McCullough, President, and appellant Doreen Toscano, Secretary. Appellant McCullough testified that he understood the terms of paragraph 15, and that he signed the agreement willingly.

In November, 1986, Tosmac ceased performing sales work for appellee. In January, 1987, appellee filed this action in Equity in which it alleged that on or about January 2, 1987, appellants began mailing advertisements to potential customers to purchase rebuilt engines from them, in violation of paragraphs 12, 13 and 15 of the agreement. The last paragraph of the advertisement stated:

I need your help to be successful. For the business you had given me while I was with Quaker City, I wish to thank you very much.

Appellee sought a preliminary injunction and temporary restraining order. A hearing was held on February 2, 1987, at which time the trial court entered an order granting the preliminary injunction and enjoining appellants “from any further business contacts or dealing with customers present or past of [appellee].” Appellants appealed the order of the trial court and filed a request for supersedeas pending appeal. The request for supersedeas was denied, and a concise statement of matters complained of on appeal was filed on April 8, 1987.

The issues raised by appellants on appeal are: (1) Did Quaker City prove that a preliminary injunction was warranted, and that immediate and irreparable injury would result if an injunction did not issue? (2) Did Quaker City prove that monetary damages would not be adequate to redress any injury suffered? (3) Did Quaker City establish a clear right to relief in that (a) appellant Tosmac was an independent contractor and not an employee, (b) there was an ambiguous choice of law in the agreement, and (c) appellee had previously breached the underlying agreement?

As this court recently noted,

[a]ppellate review of a decree granting • a preliminary injunction is limited to whether the action of the court has ‘any apparently reasonable grounds.’ Hospital Association of Pennsylvania v. Commonwealth Department of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981). The purpose of a preliminary injunction is to preserve the status quo as it existed before the acts complained of, and thereby prevent irreparable injury or gross injustice. Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306 (1961).

East Hills TV & Sporting v. Dibert, 366 Pa.Super. 455, 531 A.2d 507 (1987). “In order to sustain a preliminary injunction, the plaintiff’s right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.” Township of South Fayette v. Commonwealth, 477 Pa. 574, 580, 385 A.2d 344, 347 (1978).

We address the first two issues before focusing on the crux of appellants’ argument, which is contained in issue three. As to the first issue, our Supreme Court has held:

It is not the initial breach of a covenant which necessarily establishes the existence of irreparable harm but rather the threat of the unbridled continuation of the violation and the resultant incalculable damage to the former employer’s business that constitutes the justification for equitable intervention.

Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977); Robert Clifton Associates v. O’Connor, 338 Pa.Super. 246, 487 A.2d 947 (1985). At the hearing the trial court heard testimony that appellant McCullough had access to a customer list containing 3,000 names during his tenure with appellee. A current employee of appellee testified that he called at least 200 of appellee’s customers and learned that 95% had received appellants’ advertisement. Thus, with the prospect of “unbridled continuation” of this advertising process, the court had reasonable grounds to find immediate and irreparable harm under the standard elucidated in Bryant.

Second, on the issue of monetary damages, we also look to Bryant. The Court noted:

[A restrictive] covenant seeks to prevent more than just the sales that might result by the prohibited contact but also the covenant is designed to prevent a disturbance in the relationship that has been established between appellees and their accounts through prior dealings. It is the possible consequences of this unwarranted interference with customer relationships that is unascertainable and not capable of being fully compensated by money damages. [W]here a covenant of this type meets the test of reasonableness, it is prima facie enforceable in equity.

Id. 471 Pa. at 8, 369. A.2d at 1167 (citations omitted). Due to the clear dictates as set forth by our Supreme Court, we have no hesitation in holding that appellee proved that immediate and irreparable injury would result if an injunction did not issue, and that monetary damages would not be adequate to redress the injury. It is the third issue, whether appellee established a right to relief, which requires more detailed consideration.

Appellants primarily argue that appellant McCullough was an independent contractor, and as such, cannot be subject to a restrictive covenant. Appellee contends that “[a] change from employee to independent exclusive sales agent clearly constitutes a change in the conditions of employment sufficient to enforce a restrictive covenant” under Bryant. After close scrutiny of applicable cases we find that appellee has established a right to relief.

The history of the development of covenants not to compete was summarized by our Supreme Court in Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). Justice Cohen, writing for the Court, noted that contracts in partial restraint of trade arose, and were upheld by the English courts, in response to a new commercial era of changed economic conditions. Id., 390 Pa. at 627,136 A.2d at 844. As a result, Pennsylvania courts “held that employment contracts containing general covenants by an employe (sic) not to compete after termination of his employment are prima facie enforcible (sic) if they are reasonably limited as to duration of time and geographic extent.” Id., 390 Pa. at 628, 136 A.2d at 844.

The standard by which the validity of a restrictive covenant is judged has been set forth by our Supreme Court:

The law in this Commonwealth for more than a century has been that in order to be enforceable a restrictive covenant must satisfy three requirements: (1) the covenant must relate to either a contract for the sale of goodwill or other subject property or to a contract for employment; (2) the covenant must be supported by adequate consideration; and (3) the application of the covenant must be reasonably limited in both time and territory. Maintenance Specialties v. Gottus, 455 Pa. 327, 331, 314 A.2d 279, 281 (1974) (Jones, C.J., concurring); Jacobson & Co. v. International Environmental Corp., 427 Pa. 439, 235 A.2d 612 (1967); Capital Bakers, Inc. v. Townsend, 426 Pa. 188, 231 A.2d 292 (1967); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965); Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). See also Restatement of Contracts § 515(e) (1932).

Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 506-7, 351 A.2d 207, 210 (1976) (emphasis added). We must first analyze the case before us within the parameters of the initial criterion listed above, i.e., whether the covenant relates to “a contract for employment” within the meaning of cases handed down by our Supreme Court.

The rule upholding covenants not to compete between employers and former employees has been applied in numerous Pennsylvania cases. In Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976), defendant was employed as a salesman by plaintiff paper company under a written contract which contained a covenant not to compete within a certain geographical area for two years after termination of his employment. Defendant went to work for a competitor, immediately entered into direct competition with his former employer, and the employer brought suit to enforce the covenant. Our Supreme Court held:

[Pennsylvania] courts will permit the equitable enforcement of post-employment restraints only where they are incident to an employment relation between the parties to the covenant, the restrictions are reasonably necessary for the protection of the employer, and the restrictions are reasonably limited in duration and geographic extent. Girard Investment Co. v. Bello, 456 Pa. 220, 318 A.2d 718 (1974); Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974); Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967).

Id., 465 Pa. at 591, 351 A.2d at 252. Girard Investment, cited above by the Supreme Court, involved an employee who left his employer to open a competing consumer discount business, in violation of a restrictive employment covenant. In Bettinger, a salaried salesman left his employer to start a competing temporary-help business, in violation of a restrictive employment covenant. In Jacobson, a salesman with a company which sold building products left his employer to form a competing business, in violation of a restrictive employment covenant.

Recently, a panel of our Court reiterated that “[ejquitable enforcement of restrictive covenants is permitted when they are incident to an employment relation between the agreement’s parties, they are reasonably necessary for the protection of the employer, and they are reasonably limited in duration and geographic extent.” Blair Design and Construction Co. v. Kalimon, 366 Pa.Super. 194, 530 A.2d 1357, 1359-60 (1987). Blair Design involved the former employee of a construction and remodeling business who started a rival business which dealt with customers of his former employer, in violation of the restrictive covenant. We affirmed the preliminary injunction, which barred the former employee from conducting business in violation of the covenant.

It is evident that on the record as certified to us, we must decide whether the rule allowing a restrictive covenant which has traditionally applied between employer and employee can be extended to a principal and his independent contractor, where the contractor originally was employed by the principal, but did not have a restrictive covenant as part of his contract. In reaching our decision we accept the recent cautionary note of the Sixth Circuit Court of Appeals to the effect that the law applicable to employer/employee relationships should not automatically be applied to relationships between independent business entities such as a licensor or licensee, or an assignor or assignee, where a restrictive covenant is concerned. In re Talmage, 758 F.2d 162 (6th Cir., 1985). Nevertheless, our examination of two Pennsylvania Supreme Court cases which follow convinces us that the agreement with the independent contractor in this case is sufficiently analogous to that of an employment agreement that the same equitable principles should apply.

In the first of these cases, Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976), the enforceability of a covenant not to compete was addressed by the Pennsylvania Supreme Court within a franchise setting. A franchisor sought to enforce a covenant not to compete after the franchisees terminated their franchise agreement. In determining whether the protection of an enforceable covenant not to compete should be extended from the employer/ employee arena to franchise relationships, the court first determined that the franchisor had a protectible interest in its name. The Court then noted that courts in other jurisdictions have analogized covenants in franchise agreements to those contained in employment agreements. The Court held:

[Pennsylvania] courts will permit the equitable enforcement of a covenant not to compete included in a franchise agreement where the restrictions are reasonably necessary for the protection of the franchisor without imposing undue hardship on the franchisee and the restrictions are reasonably limited as to duration of time and geographical extent.

Id., 465 Pa. at 511, 351 A.2d at 212. Thus, in Piercing Pagoda, the Court demonstrated its willingness to extend the validity of restrictive covenants beyond the pure employment setting, if the rationale behind the covenant can be analogized to that which exists in the employer/employee relationship.

The following year, in 1977, our Supreme Court again examined the validity of a restrictive covenant outside the traditional employee/employer relationship, in the case of Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977). Bryant involved an employee of Bryant Co. who was hired pursuant to an oral contract in March 1963 to work for two companies involved in the specialized field of selling and servicing devices used in industrial material lifting. Three months later the employee entered into written employment contracts with both companies, under which he was appointed a sales representative. These contracts each contained a restrictive covenant by which the employee agreed not to compete for three years after his employment ceased. Id., 471 Pa. at 5, 369 A.2d at 1166.

As in the case before us, the employee in Bryant wanted to go into business on his own. In January, 1973, new agreements were prepared which permitted the employee to form a company and to solicit new business within the defined sales territory. However, a restrictive covenant prohibited him from selling directly to established accounts of his employers. Moreover, he was to remain in appellees’ employ until February 28, 1973, at which time one of the former employers was to become the manufacturer’s agent for the newly formed company while the new entity was to become sales agent for the other former employer. The Court held that the post-employment restrictive covenant was valid and enforceable because it was created ancillary to the 1973 agreement, which was created at the former employee’s request and resulted in a change of employment status to his benefit. Id., 471 Pa. at 11, 369 A.2d at 1168-9. Because of our Supreme Court’s willingness to extend the doctrine in Piercing Pagoda, and its recognition of a post-employment covenant in Bryant, we hold that the covenant in the case at bar is sufficiently related to “a contract for employment,” by reason of analogy, to give appellee a protectible interest.

We find additional support for our view that a valid restrictive covenant can be imposed on an independent contractor, under the circumstances of this case, in § 516 of the first Restatement of Contracts, “Instances of Reasonable Restraints.” This section has been cited repeatedly in Pennsylvania as support for the general rule upholding restraints in employer/employee cases. Section 516 states in pertinent part:

The following bargains do not impose unreasonable restraint of trade unless effecting, or forming part of a plan to effect, a monopoly:
(f) A bargain by an assistant, servant, or agent not to compete with his employer, or principal, during the term of the employment or agency, or thereafter, within such territory and during such time as may be reasonably necessary for the protection of the employer or principal, without imposing undue hardship on the employee or agent. (Emphasis added.)

This section clearly demonstrates that the first Restatement contemplates application of restrictive “employment” covenants to situations beyond the traditional employer/employee relationship. Therefore, § 516 when considered in conjunction with our Supreme Court’s holdings in Piercing Pagoda and Bryant, indicates to us that the restrictive covenant should not be set aside in the case before us, merely because appellant Tosmac is an independent contractor rather than an employee.

The second factor which we must examine under Piercing Pagoda is whether the restrictive covenant was supported by adequate consideration. In Maintenance Specialties v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974), our supreme court observed:

[A] restrictive covenant is enforceable if supported by new consideration, either in the form of an initial employment contract or a change in the conditions of employment.

Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 10, 369 A.2d 1164, 1169 (1977), quoting Maintenance Specialties v. Gottus, id. 455 Pa. at 330, 314 A.2d at 281. In the case before us, appellants, at their own request, entered into a new relationship with appellee which was of benefit to them. Therefore, the change in conditions of employment supplied the consideration necessary to support the restrictive covenant.

The final factor to be considered under Piercing Pagoda is whether the application of the covenant is “reasonably limited in time and territory.” The standard by which these criteria are judged is whether the covenant “imposes restrictions broader than necessary to protect the employer.” Sidco Paper Co. v. Aaron, 465 Pa. 586, 595, 351 A.2d 250, 254 (1976). Appellants assert that the trial court’s order barring them from “conducting business competitive with that of [appellee] within these United States of America until final hearing” is unreasonably broad in geographic scope. We agree.

Tosmac’s exclusive sales territory under the agreement of February 1st consists of the United States and Canada. The trial court’s order limited enforcement of the covenant to the United States. We hold that under the decision in Trilog Associates, Inc. v. Famularo, 455 Pa. 243, 314 A.2d 287 (1974), the geographic scope of the restrictive covenant in the case before us is “greater than is required for the protection of the person for whose benefit the restraint is imposed” and it imposes undue hardship on appellants. Id., 455 Pa. at 254, 314 A.2d at 293-94. The Court held in Trilog that the restrictive covenants had “no limitation on territory and thus are broader than is necessary for the protection of [plaintiff].” Id., 455 Pa. at 254, 314 A.2d at 294. Such a finding does not necessarily invalidate a restrictive covenant, however. In Pennsylvania, an otherwise valid restrictive covenant which is geographically overbroad is “divisible and enforceable [once it has been limited by the court] to reasonable geographical limits.” Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 186, 207 A.2d 768, 773 (1965); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965); see also Robert Clifton Associates v. O’Connor, 338 Pa.Super. 246, 487 A.2d 947 (1985). The record is not sufficient for a determination to be made by us as to the reasonableness of the duration and geographic scope of the restrictive covenant. Therefore, we remand this case to the trial court to determine the extent of protection necessary to protect appellee, and we instruct the court to amend its order of February 2, 1987, to reflect its findings.

The preliminary injunction is vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . See Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 628, 136 A.2d 838, 844 (1957); Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 452, 235 A.2d 612, 620 (1967); and Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 510, 351 A.2d 207, 213 (1976). See also Justice Pomeroy’s concurring opinion Sidco Paper Co. v. Aaron, 465 Pa. 586, 603-04, 351 A.2d 250, 259 (1976); Justice Pomeroy’s dissenting opinion in Girard Investment Co. v. Bello, 456 Pa. 220, 224-27, 318 A.2d 718, 720-22 (1974); and Justice Manderino’s dissenting opinion in Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 339, 314 A.2d 279, 285 (1974).

      . We do not address the issue raised by appellants regarding the alleged ambiguity which results from paragraph 19 of the February 1st agreement. Paragraph 19 states that the agreement shall be construed under New Jersey and Pennsylvania law. The record does not indicate that the covenant was "designed solely to prevent competition,” or that the territory specified in paragraph 3 of the agreement “is greater than that to which the business extends.” Therefore, appellants have not demonstrated that "an inherent ambiguity and conflict” exists in the application of Pennsylvania and New Jersey law to the restrictive covenant.
      As to appellants’ argument that appellee has breached the February 1st agreement by failing to pay commissions and back pay for 1986, that issue was not before the trial judge at the hearing regarding the preliminary injunction.


author: HESTER, Judge:

text:
    535 A.2d 1090
    MELLON BANK, East Natl Assn v. Jeffrey K. RAFSKY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed Dec. 29, 1987.

      Richard N. Lipow, Audubon, for appellant.
    Howard Solomon, Media, for appellee.
    Before CAVANAUGH, BECK and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order denying Jeffrey K. Raf sky’s petition to open or strike a judgment for $756,392 entered against him by confession. Mellon Bank confessed judgment against Rafsky, president of a corporation indebted to the bank, under a suretyship agreement whereby Rafsky had personally guaranteed the corporation’s debt. We affirm the order, holding that the trial court correctly applied the doctrine of collateral estoppel in refusing to open the judgment and that no defect on the face of the record warranted striking the judgment.

The international commercial transactions which form the background of this case were the subject of prior litigation in Mellon Bank (East) N/A v. The Trend Group, Inc., 42 Pa.D. & C.3d 374 (Montgomery County, 1986). We quote at length from the trial court opinion to explain the factually complex litigation.

“[Defendant, the Trend Group Limited, (Trend) seeks to have this Court open or strike a judgment by confession entered by plaintiff, Mellon Bank (East) National Association (Bank). On August 1, 1984 the Bank confessed judgment against Trend on a promissory note in the amount of $717,444.13. The note was executed by Trend on June 17, 1983 and secured part of an international financing arrangement wherein Trend Export Funding Company (TEFCO), a wholly owned subsidiary of Trend, contracted with a party in the Hashemite Kingdom of Jordan for the sale and delivery of certain heavy construction equipment. Trend filed a Petition to Open or Strike ... alleging that ... the Bank negligently mishandled certain security documents resulting in the construction equipment being delivered without the buyer first signing the documents. The petition also alleges the Bank manipulated maturity dates on certain notes which resulted in defenses being raised by the insurance company which insured the transaction. The petition seeks legal fees, travel and miscellaneous expenses. The hearing began on December 11, 1984. Additional testimony was taken on January 14 and 16, February 27 and 28 and March 4 and 5, 1985. The parties were also directed to argue one of the issues and this took place on August 27, 1985.

“During the course of the hearing Trend raised three additional defenses which were not mentioned in the first petition.... First, it claims the Bank coerced Jeffrey Rafsky, President and Chairman of the Board of Trend to sign the note at issue on behalf of Trend at meetings held on June 16 and 17, 1983. Second, it contends the Bank had a duty to inform Rafsky, before he signed the note, that a previous note securing the same transaction was purchased by the Bank 90% without recourse to TEFCO.

“Finally, Trend claims the Bank breached its duty under Section 4-501 of the Uniform Commercial Code and committed fraud in failing to notify Rafsky, before the execution of the June 17 note, that the purchaser of the equipment in Jordan had refused to sign a promissory note and pay a sight draft presented by the Bank’s correspondent in Jordan.

“Trend is a financial service organization involved in equipment lease financing, both domestically and internationally, in addition to other types of financing. TEFCO, as noted above, is a subsidiary of Trend. On April 14, 1982 TEFCO obtained a master policy of export insurance from the Foreign Credit Insurance Association (FCIA) with respect to the sale of heavy construction equipment. On September 1, 1982 TEFCO obtained a non-acceptance endorsement to its FCIA master policy which provided coverage against a loss caused by failure or refusal of a foreign buyer to accept shipment of goods. In November of 1982 officers of TEFCO met with Mr. Yousef F. Jashan (Jashan), a road building contractor in Jordan, and after negotiation agreed to sell and deliver to him at the port of Aquaba, in Jordan, the heavy construction equipment in question. The sale totalled $1,529,391 conditional upon approval by the FCIA. The sale was approved and FCIA provided coverage against non-acceptance of the merchandise.

“In an effort to secure financing for the transaction, TEFCO contacted Girard International Bank (Bank). It agreed to extend TEFCO a $2,500,000 line of credit. As part of the agreement the Bank was to process the collection of all payments to be made by Jashan. During negotiations with TEFCO, Jashan executed a power of attorney in favor of Steven R. Michaels, and Philip T. Amico, President and Vice-President respectively. Both Michaels and Amico later executed a promissory note dated April 1, 1983 as attorneys-in-fact, obligating Jashan to pay TEFCO the sum of $1,529,391. On that same date TEFCO forwarded to the Bank certain collection documents which included a sight draft for $106,427.67. The draft represented TEFCO’s commission on the transaction.

“The form sight draft included instructions for the bank to present the documents through Jordan Securities (Jordan). In addition to other instructions, the Bank was directed to contact Philip T. Amico in case of need. The Bank was further directed under a special instructions section, to “please have Yousef Jashan acknowledge the note by signing as the President and as the personal guarantor of the obligation. Have Bank (Jordan) release documents only upon signing of the note and payment of the sight draft. Please have Bank (Jordan) return signed note.” The Bank forwarded the collection documents, with various instructions, to Jordan on April 18, 1983. Jordan was directed to “pis have Yousef Jahshan (sic) acknowledge the note by signing as the President and as the personal guarantor of the obligation. Release documents only upon signing of the note and payment of the sight draft. Pis return the signed note to us. Pis remit funds to us via telegraphic transfer through your New York correspondent under cable advice to us.”

“On May 4,1983 TEFCO executed a “specific transactional request” wherein it requested the Bank to purchase, 90% without recourse, $700,000 of the Jashan obligation. The request incorporated by reference a short term Hold Harmless Agreement executed by TEFCO on April 8, 1983. By the Hold Harmless Agreement TEFCO requested the Bank to purchase from time to time unpaid drafts, with the insured percentage without recourse. By the request TEF-CO assigned the Bank $700,000 of its coverage under the FCIA insurance policy. Under the Hold Harmless Agreement TEFCO agreed to hold the Bank harmless for losses occurring from any of five stated causes. The equipment which was the subject of the sale was delivered to the port of Aquaba in mid-March of 1983. It was released from the dock and came into Jashan’s possession in April, ’83 without his signature first being obtained on the promissory note or payment made on the sight draft.

“On June 8, 1983, believing that other transactions involving TEFCO in England and West Germany were fraudulent, the Bank brought civil actions in the District Court in New York and Connecticut. On June 9, the Bank obtained ex parte orders of attachment and levied upon various bank accounts of Trend and TEFCO, effectively halting their business operations.

“On June 12, Jordan notified the Bank that Jashan had refused to sign the promissory note or pay the sight draft.

“A meeting was held at the Bank’s offices in Philadelphia on June 16 to discuss the suspect transactions and resolve matters so the attachments could be lifted. In attendance at the meeting were Jeffrey Rafsky, Fred Blume, Esq., and Roger Cox, Esq. for Trend, and Irwin Warren, Esq., Andrew Melnick, Esq., John York, Esq., Steven Kaplan, Esq., and Wesley Winfree, for the Bank. During the meeting, which began on the afternoon of the 16th and carried over into the early morning hours of the 17th, Rafsky and Blume were told that the Bank believed certain TEFCO transactions in England and West Germany were fraudulent. Trend agreed to pay the full indebtedness on them. The Bank also questioned the genuineness of the Jashan transaction, although never explicitly mentioning that Jashan had refused to sign the note and pay the sight draft. After extensive negotiations, Rafsky, on behalf of Trend, executed a promissory note in favor of the Bank for $700,000, thereby vitiating the specific transactional request executed on May 4, and transforming a 90% without recourse obligation into a 100% recourse obligation. In addition, the Bank required a personal guarantee of the transaction by Rafsky and directed Trend to obtain a promissory note signed personally by Jashan. In December, 1983 Jashan signed such a note, Trend defaulted on the June 17, 1983 note and judgment was confessed by the Bank.”

Id., slip opinion, 1/8/86, at 1-8 (footnotes omitted). The court refused to open or strike the judgment. Id. at 15.

Its holding was based, inter alia, on the conclusion that the three additional issues raised during the course of the hearing had been waived for failure to include them in the petition to open or strike, as required by Pa.R.C.P. 2959(c). The court held, alternatively, that the latter two issues, that the Bank neglected a duty to disclose to Rafsky that the note was 90% without recourse and that the Bank breached its duty under U.C.C. § 4-501, were not supported by evidence which would justify submission of the issues to a jury, and the issues were thus defective under Pa.R.C.P. 2959(e).

During the course of the Trend litigation, the Bank confessed judgment against Rafsky individually pursuant to the suretyship agreement he had signed on June 17, 1983. Rafsky filed a petition to open or strike the judgment. Denial of this petition is the subject of this appeal. The court held that the doctrine of collateral estoppel precluded relitigation of the grounds Rafsky raised in support of opening the judgment, and that there was no defect in the record which would justify striking the judgment. Trial court opinions, 12/29/86, at 3-4, 3/27/87, at 3-4.

Appellant Rafsky raises three issues: 1) whether the court erred in applying the doctrine of collateral estoppel to deny appellant’s petition to open or strike the judgment; 2) if collateral estoppel does not preclude litigation of appellant’s defenses, whether the trial court misapplied the standard of review in Pa.R.C.P. 2959(e); and 3) whether the trial court erred in refusing to strike the judgment when an allegedly fatal defect appears on the face of the record.

The doctrine of collateral estoppel operates to prevent a question of law or an issue of fact which has .once been litigated in a court of competent jurisdiction from being relitigated in a subsequent proceeding. There is no requirement that there be an identity of parties in the two actions in order to invoke the bar. Collateral estoppel may be used as either a sword or a shield by a stranger to the prior action if the party against whom the doctrine is invoked was a party or in privity with a party to the prior action. Collateral estoppel applies if five elements are present: 1) the issue decided in the prior case is identical to the one presented in the later case; 2) there was a final judgment on the merits; 3) the party against whom the plea is asserted was a party or in privity with a party to the prior case; 4) the party against whom the doctrine is asserted or his privy has had a full and fair opportunity to litigate the issue in the prior proceeding; and 5) the determination in the prior case was essential to the judgment therein. Schubach v. Silver, 461 Pa. 366, 377, 336 A.2d 328, 333-34 (1975); Matson v. Housing Authority of Pittsburgh, 326 Pa.Super. 109, 112-13, 473 A.2d 632, 634 (1984); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236-37, 464 A.2d 1313, 1318-19 (1983); Restatement (Second) of Judgments § 27.

Appellant challenges only the fifth element; he argues that collateral estoppel cannot preclude his defenses in this case because the adverse determinations in the Trend case were not essential to the judgment. Three defenses are at issue:

1. Was Jeffrey Rafsky coerced into signing the corporate note of June 17, 1983, that is the principal note as opposed to the one which is the subject of this action?
2. Was the bank under a duty to disclose to Rafsky before he executed that note, that the specific transactional request executed by the corporate defendant’s subsidiary in May of 1983 was 90% without recourse; and
3. Did plaintiff bank breach its duty under § 4-501 of the Uniform Commercial Code by failing to give notice of the consignee’s refusal to sign a certain promissory note and sight draft upon receipt of the shipment and thereby fraudulently induce Rafsky to sign that note as chief executive officer of the corporation?

The trial court had held in the Trend case that the latter two defenses were waived pursuant to Pa.R.C.P. 2959(c) and alternatively, were not supported by sufficient evidence under Rule 2959(e). In this case, the trial court held that collateral estoppel barred Rafsky from raising' these issues since they had been fully litigated in the prior case.

As alternative grounds were given for the decision in the prior case, it is difficult to determine which was “essential to the judgment” to satisfy the test for application of the doctrine of collateral estoppel. Judge Brown, who decided both cases, evidently believed that the second reason for the Trend judgment — that Trend and Rafsky failed to produce sufficient evidence — was essential to the judgment, for the court was not satisfied to rely on the ground of waiver. It therefore appears that the fifth requirement for application of collateral estoppel has been satisfied with regard to the second and third defenses. The first defense, the alleged coercion of Rafsky, has been waived under Pa.R.C.P. 2959(c) for failure to include it in his petition to open or strike the judgment in this case. Trial court opinion, 12/29/86, at 3-4. Wolgin v. Mickman, 233 Pa.Super. 218, 225 n. 10, 335 A.2d 824, 827 n. 10 (1975).

The second issue in this appeal has been resolved by our disposition of the first issue. Due to our holding that the defenses are barred by collateral estoppel and waiver, we cannot address the merits of the defenses.

The final issue is whether the trial court erred in denying appellant’s petition to strike. Appellant argues that appellee’s complaint for confession of judgment averred only that two of three conditions precedent to the entry of judgment had occurred. Appellant has juxtaposed paragraph ten of the complaint, stating the conditions precedent, with paragraph fourteen, alleging occurrence of the conditions:

10. As more specifically set forth in Exhibit “C” hereof, Defendant is legally obligated to discharge the said indebtedness from Trend upon the occurrence of the following events:
A. Trend shall fail to make the payment due on the note.
B. The obligation represented by the note is not satisfied from the proceeds of an alleged obligation of a customer of TEPCO, i.e., the “Jahshan Notes” in accordance with the terms thereof.
C. The obligation represented by the Note and the Jahshan Notes is not satisfied (other than due to action or failure to act by [the Bank]) from a policy of insurance issued by the Foreign Credit Insurance Association (“FCIA”) in favor of TEFCO with respect to the transactions pursuant to which the Jahshan Notes were issued within such period of time after March 1984 that FCIA would, in the ordinary course of business, satisfy such obligation (approximately six months). (Emphasis added.)
14. Accordingly, all of the events set forth in paragraph 10 hereinabove have occurred as follows:
A. Trend has failed to make payments due in connection with the Note as set forth hereinabove.
B. The obligation has not been satisifed from the proceeds of the Jahshan Notes.
C. The obligation has not been satisfied from the policy of insurance issued by FCIA despite the fact that Defendant and Trend have represented that the insurance claim has been pending for approximately one year, well in excess of the time provided for in the Suretyship Agreement.

Appellant argues that omission of the emphasized portion of paragraph 10.C. from paragraph 14.C. is a fatal defect which requires the striking of the judgment.

This argument is frivolous. Pa.R.C.P. 2952(e) states:

The complaint shall contain the following:
(e) if the judgment may be entered only after a default or the occurrence of a condition precedent, an averment of the default or of the occurrence of the condition precedent; ...

Paragraph fourteen of the complaint avers that all events in support of the entry of judgment have occurred, and incorporates by reference the earlier recitation of those events in paragraph ten, so the later specification was unnecessary and therefore surplusage. Moreover, if the omission were regarded as a defect, it would be a harmless and inconsequential technical defect which would not justify striking the judgment. Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981).

Order affirmed.