author: WIEAND, Judge:

text:
    598 A.2d 31
    Charles L. BERRINGTON, Appellant, v. Claire L. BERRINGTON, Appellee.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed Sept. 9, 1991.
    Reargument Denied Nov. 4, 1991.

      Patricia G. Miller, Pittsburgh, for appellant.
    Richard R. Isaacson, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this divorce action, the trial court, in making distribution of an employed spouse’s interest in a defined benefit pension plan according to the deferred distribution method, ordered payment based upon the value of the pension at a future date on which the payment of pension benefits will commence. The employee spouse argues on appeal that in this manner the trial court has distributed assets which, because they will be acquired following separation, are non-marital. We agree and reverse.

Charles and Claire Berrington were married on May 7, 1955. They separated on July 15, 1984. At all relevant times, Charles was an employee of Westinghouse Electric Corporation. He started in Westinghouse’s employ on February 22, 1955 and continues such employment at the present time. As a Westinghouse employee, he has participated in the company’s pension plan since the commencement of his employment. Charles will become sixty-five on June 21, 1997, and his anticipated retirement date is the first day of the month thereafter.

The Westinghouse pension plan is a defined benefit plan and consists of a basic portion and a supplemental portion. All Westinghouse employees are eligible to participate in the basic portion; however, only those persons who were salaried employees on or before August 1, 1985 are eligible to participate in the supplemental portion of the Westinghouse pension plan. Appellant-husband participates in both the basic and supplemental portions of the Westinghouse pension plan.

An employee has the option of contributing to his or her retirement plan. Under the supplemental plan, if the employee makes no contributions, the employer also makes none. Appellant-husband’s retirement plan is contributory. Between the date of separation and February 28, 1990, he contributed the sum of $14,770.16 to the basic and supplemental portions of the plan.

Westinghouse also provided and husband participated in an excess benefit program known as the executive benefit plan. This plan was available only to employees occupying an executive position for at least five continuous years preceding retirement. The pension benefit per month is determined by multiplying the pensioner’s average total compensation by an executive pension multiplier. The employee’s average total compensation equals the sum of his or her average monthly salary and average monthly incentive compensation for the highest five months’ salaries for each year of the ten years immediately preceding retirement. The executive pension multiplier equals the employee’s years of service at retirement multiplied by 1.47%.

Charles. Berrington filed a complaint for divorce on January 9,1985, and a decree was entered on July 27,1987. The court retained jurisdiction over the parties’ remaining claims for equitable distribution of marital property, alimony and counsel fees. A settlement agreement regarding the remaining claims was subsequently reached and was entered as an approved order of court on September 28, 1988. Pursuant thereto, appellee-wife was to receive non-modifiable alimony in the amount of fifteen hundred ($1500.00) dollars per month until the first of the following occurrences: (1) wife’s cohabitation or remarriage; (2) husband’s attaining age 65; (3) husband’s permanent retirement from Westinghouse at age 62, 63, or 64, should he elect to do so; or (4) the death of either party. The wifeappellee was awarded sixty (60%) percent of marital property, and husband-appellant received forty (40%) percent. The marital portion of husband’s pension was divided in the same way, and counsel were directed to prepare orders effecting a distribution of pension benefits.

The Westinghouse pension plan is a qualified plan under the Retirement Equity Act of 1984. The executive plan, however, is not a qualified plan. Therefore, the parties submitted two proposed orders: a Qualified Domestic Relations Order (QDRO) pertaining to the Westinghouse pension plan and a Domestic Relations Order pertaining to the Executive Pension Plan. The orders proposed by appellant-husband calculated his pension benefit by using his annual salary on the date of separation. The order proposed by wife-appellee calculated the amount of the pension benefit as of the deferred date. The trial court entered an order based on wife's calculations. Husband appealed. He argues that the court’s order has erroneously treated significant post-separation contributions to the plan as marital property.

Our scope of review in equitable distribution matters is limited. Awards of alimony, counsel fees, and property distribution are within the sound discretion of the trial court and will not be reversed absent an error of law or abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). See also: Lyons v. Lyons, 401 Pa.Super. 271, 276, 585 A.2d 42, 45 (1991); Miller v. Miller, 395 Pa.Super. 255, 259, 577 A.2d 205, 207 (1990), allocatur denied, 525 Pa. 664, 583 A.2d 794 (1990); Hunsinger v. Hunsinger, 381 Pa.Super. 453, 459, 554 A.2d 89, 92 (1989); Hutnik v. Hutnik, 369 Pa.Super. 263, 266, 535 A.2d 151, 152 (1987); LaBuda v. LaBuda, 349 Pa.Super. 524, 528, 503 A.2d 971, 974 (1986), allocatur denied, 514 Pa. 648, 524 A.2d 494 (1987); Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). An abuse of discretion “is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that [an] appellate court is of [the] opinion that there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment— one that is clearly against logic and [the] effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law.” Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991), citing Commonwealth v. Powell, 527 Pa. 288 n. 8, 590 A.2d 1240 n. 8 (1991), quoting Black’s Law Dictionary, 5th Ed. (1979).

It is now firmly established in Pennsylvania that retirement pension benefits, vested and non-vested, military and civilian, are marital property subject to equitable distribution. Verdile v. Verdile, 370 Pa.Super. 475, 485, 536 A.2d 1364, 1369 (1988). See also: Vaughn v. Vaughn, 370 Pa.Super. 333, 536 A.2d 431 (1988); Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986); Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985); Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, supra; King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Where the employee “benefits result from employment during the marriage, they are marital property since the benefits are received in lieu of higher compensation which would have enhanced the marital assets or the marital standard of living.” Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 195-196, 488 A.2d at 618. The policy for this holding was stated in Flynn v. Flynn, supra, as follows: “Since a pension benefit is an economic resource acquired with funds that would otherwise have been utilized by the parties during their marriage to purchase other assets, it constitutes marital property.” Id., 341 Pa.Superior Ct. at 83, 491 A.2d at 160.

There are two basic approaches to distributing the marital property portion of an employee-spouse’s pension. The first is the immediate offset method, and the second is the deferred distribution method. The immediate offset method distributes the present value of the pension benefits at the time when distribution is made. In this manner, the non-employee spouse receives an immediate distribution of marital assets in order to provide him or her with an equitable share of the pension even though the pension itself will not actually be received by the employee-spouse until some time in the future. See: Lyons v. Lyons, supra, 401 Pa.Superior Ct. at 278-281, 585 A.2d at 46-47; Lowry v. Lowry, 375 Pa.Super. 382, 402, 544 A.2d 972, 982 (1988); Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 197, 488 A.2d at 619. The present value is the estimate of the present worth to the employee-spouse of these future benefits. See: Zollars v. Zollars, 397 Pa.Super. 204, 209-210, 579 A.2d 1328, 1330 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991).

In the immediate offset method, we begin by calculating the amount of the monthly pension benefit, assuming that the employee was at retirement age with a fully vested pension based upon compensation and plan provisions as of the date of separation. We then determine the value of the monthly benefit the employee-spouse will receive at retirement. This is computed according to the life expectancy of the employee-spouse and an appropriate interest rate. Because of the present distribution under the immediate offset method, it is then necessary to calculate the present value of the employee-spouse’s pension benefits. After reducing the value of the benefits by accounting for interest rates and other contingencies, such as death, the calculation yields an actual present value of the employee-spouse’s benefits payable at age 65. See: Lowry v. Lowry, supra, 375 Pa.Superior Ct. at 402-403, 544 A.2d at 982-983; DeMasi v. DeMasi, 366 Pa.Super. 19, 50, 530 A.2d 871, 886 (1987), allocatur denied, 517 Pa. 631, 539 A.2d 811 (1988). It is then necessary to calculate the portion of the present value which was earned during the marriage. The present value is multiplied by the “coverture fraction” to equal the present value of the entitlement which was acquired during the marriage. The numerator of the fraction equals the total period of time the employee-spouse participated in the plan from the date of marriage until the date of separation. The denominator equals the total period of time the employee-spouse participated in the pension benefits program. See: Lyons v. Lyons, supra, 401 Pa.Superior Ct. at 280, 585 A.2d at 47; DeMasi v. DeMasi, supra at 50, 530 A.2d at 886; Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 198, 488 A.2d at 619; King v. King, supra, 332 Pa.Superior Ct. at 533, 481 A.2d at 916. After determining the non-employee-spouse’s interest in the employee-spouse’s pension benefits, the total of the non-employee-spouse’s award is offset by distributing other marital property or by ordering payment to the non-employee-spouse.

The second method of distributing the marital property portion of the employee-spouse’s pension, the deferred distribution method, requires the trial court to retain jurisdiction and distribute the pension benefits as of the benefit determination date. Under this method, present value figures are not used. Rather, the coverture fraction is multiplied by the value of the employee-spouse’s pension benefits on the benefit determination date. See: Lyons v. Lyons, supra, 401 Pa.Superior Ct. at 280, 585 A.2d at 47; Hunsinger v. Hunsinger, supra, 381 Pa.Superior Ct. at 461, 554 A.2d at 93; Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 198, 488 A.2d at 619; King v. King, supra at 534, 481 A.2d at 917.

The immediate offset method, because it effectuates an immediate and final distribution of retirement benefits, has the advantage of avoiding continued hostility between the parties. Lyons v. Lyons, supra, 401 Pa.Superior Ct. at 278, 585 A.2d at 46; Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 198, 488 A.2d at 620. On the other hand, there are instances in which the deferred distribution method is clearly the preferable, sometimes the essential, way of proceeding. Deferred distribution is the preferred method of equitably valuing and distributing “unvested” retirement benefits which may never actually be received by the employee-spouse because of the possibility of death or termination of employment before vesting. To insure that the employee-spouse will not be forced to distribute a portion of the marital estate to offset an award of a pension which may never vest, the non-employee-spouse is given an equitable share of the pension benefits only after they become nonforfeitable to the employee-spouse. In such cases, the deferred distribution method divides equally the risk of forfeiture between the parties. Deferred distribution is also preferred when the parties’ other marital assets are insufficient to offset an award of a share of the marital property portion of the pension to the non-employee-spouse. DeMasi v. DeMasi, supra, 366 Pa.Superior Ct. at 49, 530 A.2d at 886. See also: Lyons v. Lyons, supra, 401 Pa.Superior Ct. at 280, 585 A.2d at 47; Zollars v. Zollars, supra, 397 Pa.Superior Ct. at 209, 579 A.2d at 1330; Hutnik v. Hutnik, supra, 369 Pa.Superior Ct. at 270, 535 A.2d at 154. “When the value of the employee-spouse’s pension far exceeds the value of the other marital property, the deferred distribution method must be used.” Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 199, 488 A.2d at 620.

The trial court must weigh the advantages and disadvantages of each method of distribution according to the facts of each case in order to determine which method best effects economic justice between the parties. In the instant case, the appellant does not dispute the trial court’s choice of the deferred distribution method. Rather, the argument is that inherent in the use of the deferred method of pension evaluation and distribution is a factoring of pension benefits which have accrued after the date of separation and, indeed, benefits which will continue to accrue after the parties have been divorced. Appellant argues that while the benefit distribution may be deferred, the value of the pension must be determined as of the date of separation rather than on the benefit determination date. It is his contention that, under the deferred distribution method, the date of separation should be treated as the date of retirement, just as in the immediate offset method, for purposes of equitably distributing the marital property portion of the employee-spouse’s pension benefits which has accrued from the date of marriage to the date of separation. To include benefits accruing after the date of separation, he argues, is to effect a distribution of property which is non-marital.

The terms of the Divorce Code define marital property as all property acquired during the marriage with certain exceptions. This is set forth in Section 401(e) of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(e), as amended, 1988, February 12, P.L. 66, No. 13, effective immediately, as follows:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage, including the increase in value prior to the date of final separation, of any nonmarital property acquired pursuant to paragraphs (1) and (3), except:
(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, except between spouses; bequest; devise; or descent.
(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the date of final separation.
(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

(emphasis added). The intent of the Legislature was not to include as marital property any property acquired after separation. See: King v. King, supra, 332 Pa.Superior Ct. at 531, 481 A.2d at 915.

As a general rule, “[o]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.” Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 196, 488 A.2d at 618. See also: King v. King, supra. However, in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986), the Court created an exception where a plan had vested and value had increased, aside from contributions made by the employer and employee, after the date of separation. Id., 357 Pa.Superior Ct. at 344-345, 516 A.2d at 12-13. In such case, the Court held, the increase in value after the date of separation, which is not attributed to additional contributions, is marital property. See: Zollars v. Zollars, supra, 397 Pa.Superior Ct. at 209, 579 A.2d at 1331 (growth of the marital contribution is marital property); Liciardello v. Liciardello, 391 Pa.Super. 219, 224-225, 570 A.2d 1062, 1064 (1990); Hutnik v. Hutnik, supra, 369 Pa.Superior Ct. at 269, 535 A.2d at 153-154. In Liciardello, supra, the Court upheld a valuation of the marital property portion of husband’s pension on a date subsequent to the date of separation in order to allow for an increase in value of the vested marital property portion of the pension. This, however, did not involve subsequent contributions to the pension made by the employee-spouse.

As in all cases concerning the valuation of marital property, “[i]t is implicit ... in the statutory provisions governing equitable distribution that a valuation date reasonably proximate to the date of distribution must, in the usual case, be utilized.” Sutliff v. Sutliff, 518 Pa. 378, 381, 543 A.2d 534, 536 (1988). See also: Downey v. Downey, 399 Pa.Super. 437, 450-451, 582 A.2d 674, 681 (1990); Malseed v. Malseed, 388 Pa.Super. 214, 218, 565 A.2d 453, 455 (1989); Gioia v. Gioia, 382 Pa.Super. 538, 542-543, 555 A.2d 1330, 1333 (1989). Value is by no means a constant; and, therefore, the fluctuation in value of marital assets from the date of separation to the date of distribution shall be calculated as part of the value of a marital asset. In determining that which is and that which is not marital property, however, it is the date of separation which is controlling.

Thus, pension benefits purchased with assets earned by a spouse following separation are not marital property. Consistent with the language of 23 P.S. § 401(e), recently codified at 23 Pa.C.S. § 3501(a), “the degree to which the employee accrues additional benefits after separation, these additional benefits are property acquired after separation and not marital [property].” Lowry v. Lowry, supra, 375 Pa.Superior Ct. at 404 n. 7, 544 A.2d at 983 n. 7. It follows that the only time span which is relevant for equitable distribution purposes is the total period of time the employee-spouse contributed to the pension program from the date of marriage until the date of separation. Contributions made outside this period entail the purchase of benefits with funds not available to the parties during their marriage.

The decision in Morschhauser, supra, does not require a different result. It does not require the inclusion of contributions made by employer or employee after separation for the purpose of evaluating pension rights on the date of separation. Indeed, the opinion in Morschhauser specifically acknowledges that contributions made following separation do not serve to increase the marital portion of the employee-spouse’s pension. It is only the appreciation in value of the marital portion of a pension fund which can be added to the value of the pension on the date of separation in making distribution.

The trial court in the instant case has acknowledged that by its calculation of the deferred distribution of the pension fund the non-employee spouse has benefitted by participating (1) in pension benefits purchased with earnings of the employee-spouse following separation; and (2) in a pension fund larger than that which would have been distributable under the immediate offset method. The trial court based its decision on “moral” grounds. Its decision, however, is contrary to the express language of the statute which authorizes a divorce court to distribute only property acquired prior to separation.

It is incorrect to apply “moral” grounds in order to determine that which constitutes marital property. Marital property has been defined by statute. Sacrifices made by a non-employee spouse during the early years of a marriage can be factored into a court’s order distributing marital assets pursuant to Section 401(d) of the Divorce Code. However, it cannot be substituted for the statute’s unambiguous definition of that which constitutes marital property. Marital property means all property acquired during the marriage, with certain exceptions. See: Divorce Code, supra, § 401(e). It does not include “[property acquired after final separation until the date of divorce.” Divorce Code, supra, § 401(e)(4). It does not include pension benefits purchased with contributions made after separation.

Here the trial court considered the factors recited in Section 401(d) of the Divorce Code in determining that the wife should receive sixty (60%) percent of the marital property. This was entirely correct. However, it was improper to consider the same factors in determining what constituted marital property.

In construing Pennsylvania’s Divorce Code, we must follow the Pennsylvania legislature’s scheme which separates the factors for defining marital property from the factors for distributing marital property. Time of acquisition is the factor that the legislature mandates the courts use in determining whether property is a marital asset. See 23 P.S. § 401(e)-(f). In contrast, a list of ten factors found in subsection 401(d) of the statute are considerations that the legislature mandates courts use in determining distribution of marital property. Those ten factors relate to the personal and economic circumstances of the parties and the parties’ contributions in bringing about an increase or decrease in the value of the marital assets. 23 P.S. § 401(d)(1)-(10). In other words, under the statute the court first determines what is marital property based upon the time of acquisition and then determines the equitable distribution of that property taking into account the factors in subsection 401(d).
Subsection 401(d) concerns the fair apportionment of marital property between the parties following a divorce, not the designation of assets as marital or nonmarital property. Once the parties’ property has been earmarked as either marital or nonmarital property according to the time of its acquisition and the subsection 401(e) exceptions, see 23 P.S. § 401(e)-(f), then the court may, in conformity with subsection 401(d) of the Code, equitably divide and distribute the parties’ marital property after due regard for all relevant factors among which are those listed in subsection 401(d) such as the “contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.” 23 P.S. § 401(d)(7). In Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982), we noted that factors such as the parties’ efforts or contributions toward procurement, preservation or enhancement of property are appropriately considered for purposes of equitable division and distribution of marital property under subsection 401(d) of the Code.

Anthony v. Anthony, 355 Pa.Super. 589, 594-595, 514 A.2d 91, 93-94 (1986).

We have observed that the policy reasons for a court choosing the deferred distribution method over the immediate offset method of distribution are because either the employee-spouse’s pension plan has not vested or because there are insufficient marital assets to pay an award of the present value of the marital property portion of the pension to the non-employee-spouse. None of these policy reasons legitimize an award to the non-employee-spouse which is greater because the deferred distribution method was used in preference to the immediate offset method. To permit the distribution of a larger pension under the deferred distribution method than under the immediate offset method is not sanctioned by any provision of the Divorce Code. For a court to sanction it is to encourage an employee-spouse to terminate his or her employment at or shortly after separation in favor of a new position with a different employer who has a different pension plan.

In LaBuda v. LaBuda, supra, the Court was unwilling to disturb the trial court’s deferred distribution of the employee-spouse’s pension where the employee spouse merely asserted the error of the trial court in failing to consider that his earnings were at their highest level in the period following the parties’ separation. The Court stated that no abuse of discretion could be found by the trial court by following the deferred distribution method where at no stage in the proceedings had the appellant-pensioner offered an alternative formula for determining the portion of the pension which was marital property. Id., 349 Pa.Superior Ct. at 536, 503 A.2d at 977-978. The appellant in the instant case has proposed a proper alternative which would equalize the disparate result under the two methods of pension benefit distribution. It is appellant’s proposal that the disparate result of the two alternate methods of pension benefit distribution be equalized by determining the employee spouse’s pension benefit value as of the benefit determination date, after the vesting of the pension, based solely on the employee-spouse’s salary on the date of marital separation. Under this method, when the pension value is multiplied by the coverture fraction it will yield only those pension benefits which accrued from the date of marriage to the date of separation. Because the Court has selected a deferred date of distribution, however, it is necessary to account for the fluctuation which may have occurred in the value of the pension between the date of separation and the date of valuation. If, as of the deferred date, the value of the marital property portion of the pension has increased, aside from contributions of the employee or employer, this increase is also marital property to be added to the value of the pension after application of the coverture fraction. See: Morschhauser v. Morschhauser, supra.

The marital property calculation must yield the same pension under either method of distribution. If a court believes that a non-employee-spouse is entitled to a greater share of the marital property portion of the employee-spouse’s pension due to the marital efforts of the non-employee-spouse or an extended time during which the spouse must wait to acquire his or her share of the marital property portion of the employee-spouse’s pension, these factors may be weighed in determining the equitable division of the marital property pursuant to Section 401(d) of the Divorce Code. They may not be utilized, however, to make marital property out of assets acquired after separation. Where an employee-spouse’s pension is not vested and it is uncertain if it will vest before termination of employment or death of the employee-spouse or where the other marital assets are insufficient to offset an immediate award of an equitable share of the marital property portion of the pension to the non-employee-spouse, it will best effectuate economic justice between the parties to defer the distribution of the marital property portion of the employee-spouse’s pension until the benefit determination date. In such cases, however, we seek to achieve only a deferred distribution, not an increased benefit to the non-employee spouse.

It is argued by appellee that application of the coverture fraction alone equalizes the disparate result inherent in the two alternate methods of determining pension benefit value and distribution. This reasoning is mathematically unsound, for the same coverture fraction is used under either the immediate offset or deferred distribution method. If appellee’s argument is accepted, however, the coverture fraction will be multiplied by an inordinately larger pension value under deferred distribution than under the immediate offset method.

We conclude, therefore, that the trial court’s distribution of the full pension benefits available upon appellant’s retirement, much of which was purchased with contributions made following separation, was erroneous. Only those pension benefits available on the date of separation are marital property.

Reversed and remanded for the entry of an order consistent with the foregoing opinion. Jurisdiction is not retained.

      . A defined benefit plan is a promise to pay in the future an amount which will be calculated in the future by use of a set formula defined in the pension plan provisions. The employer pays a specified amount of benefits at retirement. Contributions to the plan are based on the amount needed to provide the projected benefit. Tax Management Portfolio. Pension Plans — Qualification, Vol. 351, p. A-2 (1990).

      . The deferred date, known as the benefit determination date, is the earliest to occur of: (1) the employee-spouse’s separation from service; (2) the employee-spouse's death; or (3) the date the non-employee-spouse begins receiving her portion of the benefit awarded to her. The benefit determination date is different in each case and the possible times at which the benefit determination may occur is set out by the court in the QDRO.

      . The court’s order purports to be in all respects a final order. Therefore, appellant’s right of appeal is not defeated by his failure to file exceptions. See: Storti v. Minnesota Mutual Life Ins. Co., 331 Pa.Super. 26, 28-29, 479 A.2d 1061, 1062 (1984). See also: Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976); Barton v. Penco, 292 Pa.Super. 202, 204, 436 A.2d 1222, 1223 (1981); Greenwood Township v. KEFO, Inc., 52 Commw.Ct. 367, 370, 416 A.2d 583, 584-585 (1980).

      . A vesting schedule in the provisions of the employer’s pension program specifies the percentage of a participant’s benefit which is nonforfeitable at a given point in time. See: Troyan, Pension Evaluation and Equitable Distribution, 10 FAM.L.REP. (BNA) 3001 (1983). See also: Tax Management Portfolio. Pension Plans — Qualification, supra at A-22. Charles Berrington became fully vested under the Westinghouse Pension Plan (basic and supplemental portions) when he completed ten (10) years of service.

      . We note also that the appellant has not challenged the trial court’s designation of the numerator and denominator of the coverture fraction. As in Lyons v. Lyons, supra, we recognize the imprecision in cases filed in this Commonwealth concerning the coverture fraction. We adhere to the definition that the denominator of the coverture fraction equals the total period of time the employee-spouse participated in the pension benefit plan.

      . The Divorce Code was codified on December 19, 1990, effective in 90 days. Section 401(e) now appears at 23 Pa.C.S. § 3501(a).

      . This section of the Divorce Code, recently codified at 23 Pa.C.S. § 3502(a), requires a court to make distribution in accordance with the following mandate:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
      (11) Whether the party will be serving as the custodian of any dependent minor children.

      . The pension being distributed in Holland v. Holland, 403 Pa.Super. 116, 588 A.2d 58 (1991) was a non-contributing plan maintained by the federal government.

      . 23 P.S. § 401(e)-(f) has been codified at 23 Pa.C.S. § 3501(a) and (b).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    598 A.2d 41
    Gordon R. BAILEY and Mary Bailey, His Wife, Appellees, v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation, Appellant. Maurice A. MUTH, Executrix of the Estate of William R. Muth, Jr., Deceased, Appellee, v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued June 18, 1991.
    Filed Oct. 11, 1991.

      Raymond H. Conaway, Pittsburgh, for appellant (at 1608 and 1704).
    Edward J. Balzarini, Pittsburgh, for appellees (at 1608 and 1704).

      Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

Before this Court are consolidated appeals from two orders entered in the Court of Common Pleas of Westmoreland County. The underlying cause of action is negligence. The appellees Gordon R. Bailey and Mary Bailey, his wife, sued the appellant Pennsylvania Electric Company (“Penelec”) for personal injuries sustained as a result of a helicopter accident and for loss of consortium, respectively. The appellee Maurice A. Muth, Executrix of the Estate of William R. Muth, Jr., deceased, filed a wrongful death and survival action against Penelec for injuries arising out of the same accident. The factual and procedural history of this case is outlined below. Following review of Penelec’s appellate issues, we affirm the trial court’s orders.

This litigation arose following a helicopter crash. Gordon Bailey, who was piloting the plane, and William Muth, Jr., Bailey’s co-worker, were employees of The Bill Muth Aircraft Co., Inc. and were contractually obligated to perform patrols of Penelec’s electrical transmission and subtransmission lines. By means of aerial survey, Bailey and Muth were to observe the lines and report any notable defects to Penelec. See R.297a-301a, 998a-999a. As well, Muth Aircraft was to inspect supporting structures and rights of way. R.998a-999a.

On March 12,1982, during a scheduled patrol of a Penelec 46Kv line, Bailey’s aircraft collided with an intersecting 115Kv line. As a result of the impact, the helicopter plunged to the ground, causing Muth’s death. Bailey survived, but he suffered severe, multiple injuries.

Following a two week trial, the jury returned a verdict in favor of the appellees. Bailey was deemed 35% contributorily negligent. Post-trial motions were filed, entertained and denied. Penelec filed a motion with the trial court seeking a supplemental opinion; its request was denied. Final, judgment was entered on the record. This appeal ensued.

Penelec raises seven issues for our consideration, as set forth below.

1. Whether the trial court erred in refusing to grant Penelec’s motion for judgment n.o.v. where there was no evidence that Penelec had notice of the alleged dangerous condition of the line crossing warning system or the particular 115Kv-46Kv line crossing? In the alternative, whether the court erred in denying Penelec’s motion for a new trial based upon its refusal to charge the jury that in order to impose liability on Penelec, Appellees must have produced evidence that Penelec had notice of the alleged dangerous condition?
2. Whether the trial court erred in denying Penelec’s motion for judgment n.o.v. where Appellees did not present evidence establishing [a] breach of the duty of care owed? In the alternative, whether the trial court erred in denying Penelec’s motion for a new trial based upon its granting of Appellees’ Points for Charge Nos. 3 and 4?
3. Whether the trial court erred in denying Penelec’s motion for judgment n.o.v. because the evidence established that Penelec owed no duty to warn Appellees of the alleged dangerous condition? In the alternative, whether the trial court erred in denying Penelec’s motion for a new trial based upon its refusal to grant Penelec’s Points for Charge Nos. 16, 17, 18 and 19?
4. Whether the trial court erred in denying Penelec’s motion for a new trial where the evidence established that Appellees’ conduct was reckless? In the alternative, whether the trial court erred in denying Penelec’s motion for a new trial based upon its refusal to grant Penelec’s Points for Charge Nos. 32, 33 and 34?
5. Whether the trial court erred in denying Penelec’s motion for judgment n.o.v. where there was no evidence that the existing warning system failed?
6. Whether the trial court erred in denying Penelec’s motion for a new trial based on its refusal to grant Penelec’s Point for Charge No. 36 which would have informed the jury that the 115Kv line was not required to be marked?
7. Whether the trial court erred in granting Appellees’ Petition for Delay Damages Pursuant to Pa.R.Civ.P. 238 for the reason that Rule 238 constitutes an unconstitutional exercise of the Pennsylvania Supreme Court’s rule-making authority and violates Penelec’s rights to due process and equal protection as guaranteed by the United States and Pennsylvania Constitutions?

Appellant’s brief, at 3.

The record in this case is extensive. We have reviewed the applicable materials in light of the issues raised on appeal. As well, we have considered the relevant law, the parties’ comprehensive briefs and the trial court’s opinions. Although Penelec asserts that it was entitled to judgment non obstante verdicto or to a new trial, we must conclude that each of Penelec’s claims is without merit. The law is established in this Commonwealth as to each of the queries posed by Penelec.

Our standard of review of an order denying judgment n.o.v. is limited: we must determine whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et. al., 523 Pa. 1, 3-5, 564 A.2d 1244, 1246 (1989). See also Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967), appeal after remand 430 Pa. 255, 242 A.2d 460 (1968); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 60-62, 486 A.2d 478, 480 (1984). In so doing, we must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence. We also must reject all unfavorable testimony and inferences. Ingrassia, supra. See also Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 507-09, 559 A.2d 550, 552 (1989); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978). Judgment n.o.v. may be granted only in clear cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). We note that judgment n.o.v. may not be employed to invade the province of the jury. Thus, where there is a question of fact to be resolved, this is the jury’s function. Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).

Our standard of review of an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 426-27, 521 A.2d 413, 420-21 (1987). See Solomon v. Baum, 126 Pa.Commw. 646, 560 A.2d 878 (1989). The trial court’s order must be affirmed if there is record support for its decision. See Stevenson, supra.

With these guidelines in mind, we turn to Penelec’s substantive arguments. Penelec asserts that judgment n.o.v. should have been directed in its favor because (a) it had no notice of a dangerous condition; (b) it did not have to maintain a high duty of care to the appellees, but rather, only an ordinary duty of care; (c) the appellees’ conduct was reckless; and (d) there was no evidence that Penelec’s warning system failed. Penelec further contends that the trial court erred in rejecting its proposed jury instruction that the 115Kv line did not require markings. Without repeating the arguments set forth by the litigants, suffice it to say that we have read each brief and reviewed each case cited by the parties. We agree with the appellees and the trial court that Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956) controls the disposition of issues (a) and (b), above.

In Yoffee, the pilot of a single engine aircraft was flying over the Susquehanna River when he collided with a transmission line that was strung across the water .at a height of 185 feet. In determining that the transmission line was a dangerous instrumentality that could, in the event of contact, cause death to a human being, the Pennsylvania Supreme Court held that the Power and Light Company had a duty to take all practicable precautions necessary to preserve life.

But the power company, of course, owed more than a negative duty to the deceased pilot. That a transmission line is a dangerous instrumentality is recognized everywhere. No matter where located it is a source of grave peril and the law requires that the possessor of such an instrumentality exercise a high degree of care: “Vigilance must always be commensurate with danger. A high degree of danger always calls for a high degree of care. The care to be exercised in a particular case must always be proportionate to the seriousness of the consequences which are reasonably to be anticipated as a result of the conduct in question.” MacDougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 396, 166 A. 589, 592 [1933].

Id., 385 Pa. at 536, 123 A.2d at 645. The court continued:

Did the defendant measure up to its responsibility in this regard? Was it negligent in the manner in which it erected and maintained its installation at Berry Mountain Gap? We said in Adley Express Co. v. Willard, 372 Pa. 252, 93 A.2d 676, 679 that: “ ‘The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm * * * resulting from his act’ ”.

Id., 385 Pa. at 536, 123 A.2d at 645-46. Later, the court wrote:

Did the presence of the numerous air bases and the activities of the numerous airplanes in the vicinity of Millersburg constitute a situation which put the defendant company on notice that its transmission line could be an obstruction to air navigation? If it did, the defendant owed a high degree of care to aviators approaching or passing over that transmission line. If, in fact, its towers and transmission line were invisible to aviators using their normal faculties for detection, and if as a result of that invisibility or difficulty of detection, the pilot Levitz lost his life, the company would be responsible in damages to the administrator of his estate. If the owner of any instrumentality, equipment, or device has reason to believe or expect that an airplane will use the legalized unoccupied air space above his installation and he erects or permits to exist an obstruction which, without fault on the part of the aviator, will do damage to the pilot or his aircraft, the owner of the installation will be as responsible for the damage done the aircraft and its passengers as if he had shot down the aircraft.

Yoffee, 385 Pa. at 540-41, 123 A.2d at 648. By virtue of the holding in the Yoffee case alone, it is apparent that Penelec had requisite notice that its lines constituted a dangerous condition to fliers. Yoffee demonstrated that power lines may cause disaster if they are not properly marked. Furthermore, Yoffee established that where there is a likelihood that an aircraft will fly by a transmission line, harm is foreseeable. Therefore, it is imperative that a power company take the necessary precautions to identify and properly delineate the lines so as to avoid injury or death to the fliers.

Here, the fact that Bailey and Muth were retained to perform flight inspections for Penelec is sufficient proof that the power company was aware that aviation activities would be taking place over its lines. Furthermore, Penelec installed signs on the approaches (although the issue in this case centers around the signs’ effectiveness) to warn the patrol pilots that utility poles and line crossings were in their flight paths. By erecting the signs, the power company recognized that the lines created a potential hazard to pilots. If there was no danger in flying near the wires, then there would have been no need to post warning signs. Thus, it is clear that the power company had notice of a dangerous condition. See R.585a, 1079a.

More basically, the power company was informed numerous times that “a more visible and identifiable color” should be used for the warning signs or that the utility poles should be painted to reflect that a dangerous instrumentality was close-by. See generally R.369a, 966a-1009a, 151a-153a, 165a-166a, 278a-279a, 383a-401a, 422a-426a, 437a-443a, 451a-465a, 470a-474a, 495a-497a. It was suggested by subcommittee report that danger signs be installed on the line crossings to warn pilots of the presence of electrical lines. R.389a. A complete review of the trial transcripts reveals that Penelec was well aware of the dangers inherent in maintaining power lines. R.438a-444a; 472a-474a. That the pilots did not give notice to Penelec that the signs were inadequate is not dispositive of the issues on appeal. Penelec knew that an aircraft would be flying over its lines. It knew, by the nature of its business and under the facts of this case, that proper warning signals were imperative, and crucial to preserving the well-being of those who flew over the property. See Yoffee, supra, 385 Pa. at 540-41, 123 A.2d at 647-48 (the notice requirement centers around the likelihood that an aircraft will fly in the vicinity of the dangerous wires; not necessarily around information supplied to the company by the pilots). Cf. Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983).

Similarly, the law clearly provides that where a dangerous instrumentality is present, a commensurate or high duty of care is required to protect those who might come into contact with that instrumentality. The owner is held to a high standard to implement adequate precautionary measures in order that the safety of others is preserved. See Slater v. Pennsylvania Power Co., 383 Pa.Super. 509, 557 A.2d 368 (1989). See also Jemison v. Pfeifer, 397 Pa. 81, 89, 152 A.2d 697, 701 (1959). See Geiger v. Schneyer, 398 Pa. 69, 157 A.2d 56 (1959); Malitovsky v. Harshaw Chemical Co., 360 Pa. 279, 61 A.2d 846 (1948) (both discussing high degrees of care).

Under the Yoffee rationale, it is evident that Penelec was properly held to a high, not an ordinary, duty of care inasmuch as it is responsible for hundreds of high voltage lines over which pilots fly their aircrafts. It is axiomatic that warning signs must be highly visible and suitable to accomplish their purposes. As the trial court aptly noted:

The defendant contends that it did not owe the highest degree of care to the plaintiffs, but only an ordinary degree of care, claiming that the highest degree of care is required only where the transmission lines pose a danger of electrocution. The Yoffee court, however, placed the highest degree of care standard upon the utility where there was an air strike, not an electrocution, because air strikes, like electrocutions, carry a high probability of death or serious injury.

Trial court opinion, at 4. See also Beary v. Container General Corp., 368 Pa.Super. 61, 533 A.2d 716 (1987). See Slater v. Pennsylvania Power Co., 383 Pa.Super. 509, 557 A.2d 368 (1989) (a supplier of electricity is required to exercise the highest degree of care practicable); Kintner v. Claverack Rural Elec. Co-op., Inc., 329 Pa.Super. 417, 478 A.2d 858 (1984) (same). See Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 7-15, 130 A.2d 123, 128-31 (1957). See Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 345 A.2d 758 (1975).

For the foregoing reasons, we conclude that there was sufficient evidence that Penelec had notice of the dangerous condition. Furthermore, we find that there was ample evidence for the jury to conclude that the pilots in this case were not alerted properly as to the presence of certain transmission lines. The jury was free to surmise that the insufficient warning signs were the proximate cause of the helicopter crash. See Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 11, 130 A.2d 123, 130 (1957) (stressing that “the question of what is the proximate cause of an accident is almost always one of fact for the jury.”); Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986) (defines proximate cause). See Vernon v. Stash, 367 Pa.Super. 36, 46-47, 532 A.2d 441, 446 (1987). Likewise, it was within the province of the jury to determine that Penelec did not meet its requisite standard of care, properly classified by the trial court as a “high duty” standard. Schriner v. Pennsylvania Power & Light Co., 348 Pa.Super. 177, 184-85, 501 A.2d 1128, 1131 (1985); Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616 (1984). Thus, judgment n.o.v. was correctly denied as to the first two issues on appeal. For the same reasons, Penelec’s motion for a new trial was properly denied. The trial court applied the law of this Commonwealth. There was no evidence of trial court error or abuse of discretion. See also Appellee’s brief, at 26. See Appellees’ points for charge 3, 4, at R.54a.

Penelec advances as its third argument on appeal that a verdict should have been directed in its favor because it had no duty to warn Bailey and Muth of a condition that was open and obvious. The Yoffee case addresses this issue as well. Our Supreme Court stated:

There is controversy in this case concerning the manner in which the accident happened — considerable controversy. The plaintiff contends that Levitz was killed because the defendant had strung its wires across the river in such a manner as to make them invisible to airmen. The defendant denies that this is true. The plaintiff further contends that the towers supporting the wires were hidden behind the topography and vegetation of the land and thus were not perceptible to pilots approaching the transmission line. This is also denied by the defendant. These two elements of factual controversy alone, aside from others in the case, render it impossible for a trial court to decide, as a matter of law, the proximate cause of the collision here involved.

Yoffee, 385 Pa. at 642, 123 A.2d at 642. Yoffee reiterates the long-standing principle that issues of a factual nature that are in dispute, must be resolved by the jury. See also Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 484 A.2d 744 (1984); R.P. Clarke Personnel, Inc. v. Commonwealth Nat’l Bank, 384 Pa.Super. 524, 529-31, 559 A.2d 560, 563 (1989). Here, whether the condition was open and obvious was a matter for the jury’s determination. As the trial court noted, considerable evidence was offered at trial to aid the jury in deciding whether the 115Kv transmission line was visible at the time of the accident. The conditions were replicated by means of video reenactment. See R.210a, 212a, 217a-240a. Helicopters which followed the same route as Bailey and Muth filmed that path. Pilots who flew over the wires testified as to their perception of the field. Evidence was proffered by both sides concerning the condition, placement and effectiveness of the warning signs, including testimony as to their size, color, visibility and spread. It is apparent from the jury’s verdict that the conditions were not “open and obvious.” Thus, we find no merit to Penelec’s third claim on appeal. See Carrender v. Fitterer, 503 Pa. 178, 185-86, 469 A.2d 120, 124 (1983) (the question of whether a danger was known or obvious is usually one of fact for the jury; the question may be decided by the court where reasonable minds could not differ as to the conclusion).

Similarly, we cannot conclude that the trial court erred in refusing Penelee’s proposed jury instructions, numbers 16-19. The law on this point is established. A trial judge has wide latitude in instructing a jury. S/he may use any particular language, as long as the words sufficiently and fully convey the rules of law applicable to the case. Pagesh v. Ucman, 403 Pa.Super. 549, 589 A.2d 747 (1991); Beary v. Container General Corp., 368 Pa.Super. 61, 78, 533 A.2d 716, 724 (1987). The jury will be instructed on different points of law depending on the given facts. “It is axiomatic that where there is a dispute as to what the relevant facts are, this dispute must be submitted to the jury along with instructions on points of law which, with a view to the evidence in the case, are relevant:” Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 190, 484 A.2d 744, 748 (1984). In reviewing a jury charge, this Court is bound to consider the instructions in their entirety and as a whole, against the background of the evidence. In so doing, we must determine whether any error was committed and if so, whether that error was prejudicial to the complaining party. Beary, supra, 368 Pa.Super. at 78, 533 A.2d at 724 (citing Reilly by Reilly v. SEPTA, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985)).

Here, the requested instructions were as follows:

16. At low altitudes there is always danger of coming in contact with objects on the ground and this danger must be known to every pilot.
17. A pilot flying at an altitude of 125 feet is bound to know the danger of encountering obstacles on the ground.
18. One of the dangerous consequences to be reasonably apprehended in low flying is coming in contact with structures on the ground.
19. The Plaintiff Gordon R. Bailey as the pilot in command had an absolute duty to see and avoid objects on the ground which do not exceed 200 feet in height.

None of these instructions was necessary to better the trial court’s jury charge. R.875a-906a. Proposed charges numbers 16-18 are not summaries of law. At best, they are statements of common knowledge. Moreover, they are misleading. It is unclear from the trial testimony whether a wire, suspended between two towers that are implanted in the ground, qualifies as an object on the ground. R. 862a-870a. There is also conflicting testimony as to whether the pilot was able to see the towers due to obstructions, trees, vegetation and landscape. The jury had ample evidence before it by which it could assess the pilot’s performance capabilities. The jury was adequately charged on the legal principles. It was within its domain to apply the facts, as it discerned them, to the law of the case.

Proposed point for charge number 19 is of no consequence. The jury evidently found that the pilot hit an object in the air. (The transmission wire hung between two towers at a height of approximately 80 feet. R.197a, 201a, 204a, 205a.) See also R.203a (the pilot hit the unmarked 115Kv line; the line being patrolled, identified as the 46Kv line, was patrolled safely). Moreover, if Penelec is implying that since the “objects on the ground” (the poles) did not exceed 200 feet, the pilot had a duty to avoid the wire which was suspended between the polés, its argument must fail. It is not clear whether the pilot actually saw the poles. R.601a, 754a-755a, 800a, 820a. Moreover, the condition of the poles, or the towers as the case may be, does not relieve Penelec from its duty to provide adequate warnings of line crossings. Finally, the jury was instructed as to the applicable Federal regulations and was told that a violation of the regulations constituted negligence per se. R.886a. We find no error in the trial court’s jury instruction, which was complete and comprehensible. See also R.881a-883a (charge on contributory negligence); R.888a891a (charge on comparative negligence). Therefore, Penelec’s motion for a new trial on this point was rightly denied.

Penelec also argues that Bailey and Muth “assumed the risk” of injury when they undertook to fly the route, that they were reckless, and that Penelec was entitled to a directed verdict because Bailey and Muth violated Federal Aviation Regulations.

We note that there was conflicting testimony as to whether Bailey and Muth’s conduct contravened Federal regulations. R.834a-847a. Thus, the jury was free to weigh and assess the testimony and to reach its own conclusions. Moreover, the trial court instructed the jury that a violation of the regulations constituted negligence per se. R.886a. The jury was also instructed on the Comparative Negligence Act. 42 Pa.C.S.A. § 7102, et seq. R.886a-891a. Following deliberations, the jury found that the pilot was 35% negligent. It was within the province of the jury to measure the pilot’s degree of fault against that of Penelec. See White by Stevens v. SEPTA, 359 Pa.Super. 123, 137, 518 A.2d 810, 817 (1986). We find no error in the trial court’s refusal to direct a verdict under these circumstances.

Moreover, there is no evidence to indicate that the pilot’s actions were reckless. This appears to be a bald assertion on Penelec’s part. Section 500 of the Restatement of the Law, Torts 2d, defines “reckless disregard of safety” as follows:

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

Cf. Evans v. P.T.C., 418 Pa. 567, 212 A.2d 440 (1965); Lewis v. Miller, 374 Pa.Super. 515, 543 A.2d 590 (1988) (discussing wanton and willful misconduct, and recklessness). See Stubbs v. Frazer, 308 Pa.Super. 257, 260, 454 A.2d 119, 120 (1982) (Pennsylvania courts have adopted the standard for recklessness or wanton misconduct as set forth in the Restatement (Second) of Torts, § 500). Here, the evidence establishes that Bailey and Muth did not see the warning sign. R.545a-546a. There is no indication that they saw the sign and then consciously ignored it. We are compelled to agree with the appellees that “[i]t is obviously not recklessness to fail to see an inadequate warning.” Appellees’ brief, at 29.

Finally, Penelec suggests in its brief that the appellees “assumed the risk” of danger. This issue was not preserved in post-verdict motions nor was it addressed by the trial court. Therefore, it is waived. Pa.R.Civ.P. 227.1.

In any event, the jury considered the comparative negligence of Bailey and Muth and attributed 35% of the negligence to the pilot. This apportionment was reflected in the liability award. For these reasons, we find that the trial court properly denied Penelec’s motion for judgment n.o.v. and its motion for a new trial based on its refusal to charge on the law of reckless conduct.

Penelec next contends that the appellees did not present evidence that the warning system failed. We find this issue to be without merit. Aside from the fact that ample evidence was presented from which the jury could conclude that the signs were inadequate, the circumstances of this case clearly prove the appellees’ point. It is obvious that the system was not effective. If it were, this case most likely would not be before us. See Yoffee, supra. See also R.212a, 263a-266a, 546a-551a, 277a-279a (discussing alternative methods of marking); R.348a-358a.

Penelec claims that the trial court erred in denying its Point for Charge number 36, which would have instructed the jury that, under Federal regulations, the 115Kv line was not required to be marked with an orange sphere because it was under 200 feet in height. The orange sphere is commonly and widely accepted as a means of precaution against aircraft strikes. R. 151a-153a, 243a-252a, 275a-276a. The trial court cited Yoffee for the proposition that

there is no reason, where preventable, that there should be any toll of human life. [____] “When human life is at stake, the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense.” [citation omitted] In comparison to the benefit of saving human life, the cost of a few cans of paint and a few electric bulbs would be negligible. And since the defendant company is engaged in the very manufacture and creation of electric current, the cost of the current needed to supply the desired illumination would be as insignificant as the cost of a few bread crumbs in a bakery.

Yoffee, 385 Pa. at 544-45, 123 A.2d at 650. See Trial court opinion, at 7. With the above holding in mind, we conclude that the jury was free to determine that Penelec’s failure to use spherical line markers constituted negligence in this case. Notably, there was conflicting testimony at trial on the issue of whether the transmission line was required by statute or regulation to be marked. R.268a-273a. See also R.565a, 573a, 595a, 667a. Thus, it remained the jury’s function to resolve the factual dispute based on the evidence presented and on credibility determinations. For these reasons, judgment n.o.v. and Penelec’s motion for a new trial were properly denied relative to this claim.

Penelec’s final assertion of error concerns the award of delay damages. The arguments raised by Penelec have been repeatedly addressed and finally decided by our Supreme Court. See Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 589 A.2d 1103 (1991); see Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) and its progeny. See also Shellhamer v. Grey, 390 Pa.Super. 122, 568 A.2d 224 (1989); Novelli v. Johns-Manville Corp., 395 Pa.Super. 144, 576 A.2d 1085 (1990); Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990). Unless or until the law changes, we are bound by the pronouncements of our Supreme Court. Penelec has asserted constitutional challenges to the validity of Pa.R.Civ.P. 238, but has not contested the computation of delay damages. Thus, we refer the parties to the Schrock holding and affirm the trial court’s award of delay damages.

Orders affirmed.

      . One of the central issues in this case was whether the line crossing warning system was adequate; to wit, whether the signs were sufficient in location, color and placement to alert a pilot that the transmission lines were in their way. The appellees allege in their complaint that their injuries resulted from Penelec’s negligence, inter alia, in failing to warn them of a hidden danger, failing to install warning signs or markers on the approach path to the electrical line crossings and failing to adequately warn them of the locations of the line crossings. R.10a-11a, 18a.

      . We reject Penelec’s contention that it owed the appellees any less of a duty because the pilots were independent contractors, not everyday fliers. This issue was not specifically preserved in post-verdict motions. Therefore, it is waived. Pa.R.Civ.P. 227.1. Cf. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970) (discussing distinguishable situations involving contractors).
      Moreover, we are not persuaded by Penelec’s argument that it should not be penalized because the appellees hit its wire rather than a building (which assertedly would lessen the degree of care owed). The issue here is whether the lines were properly marked. Ample trial testimony showed that power lines are virtually invisible to a pilot unless they are marked. R. 165a-166a; 263a, 820a. The distinction between a wire and a building is obvious. Moreover, there is always a danger of electrocution where there are power lines. Thus, a high degree of care is required to prevent injury or fatalities.
      Finally, we find that a lack of prior accidents is not dispositive of the issue of due care. See Cummings v. Borough of Nazareth, 427 Pa. 14, 19-20, 233 A.2d 874, 877-878 (1967), appeal after remand 430 Pa. 255, 242 A.2d 460 (1968). The conditions that existed on the Penelec property at the time of the instant accident constitute the only evidence before us. The jury assessed the circumstances as they related to this case. We will not disturb their fact-finding process or determinations.

      . Penelec states that the pilot was provided with a "day map” which depicted the lines to be patrolled and informed the reader of line crossings on the route. Penelec argues that Bailey flew the patrols for approximately 22 days before the accident occurred and never indicated that the map insufficiently warned him of the presence or location of line crossings. Appellant’s brief, at 7. It is not our function to pass upon the validity of these assertions. We note, however, Bailey’s testimony that the map was not a useful navigation tool. R.499a-502a; 530a-532a, 598a-601a. See R.261a-267a. Moreover, we do not find that Penelec is relieved of its responsibility to provide a safe working environment simply because it gave the pilots a map. See R.262a-263a; 500a-502a; 529a-536a. See Yoffee, supra, 385 Pa. at 536, 123 A.2d at 645 (power company "owed more than a negative duty to the deceased pilot”).

      . In Beary, this Court stated:
      A transmission line is a dangerous instrumentality and the law requires that the possessor of such instrumentality exercise a high degree of care. [Citations omitted].
      Enigmatic as is the basic element of electricity, no one with the slightest mentality is ignorant of its vast potentialities for destruction. The degree of care required to protect people from this devastating element is no less than that required to prevent poisonous reptiles from breaking loose from their restraining enclosures. As the proprietor of ferocious beasts may not, by pleading excessive cost for confining them, escape liability for the loss of life occasioned by his savage wards, so also the owner of high-voltaged electric machinery may not avoid responsibility for the devastation caused through his failure to adequately guard such uninhibited devices. This court has declared that when human life is at stake the rule of due care and diligence require everything that gives reasonable promise of its preservation to be done regardless of difficulties or expense. [Citation omitted].

        Beary, 368 Pa.Super. at 70-71, 533 A.2d at 720.

      . In Stark, decided one year after Yoffee, the Pennsylvania Supreme Court wrote:
      Lehigh, on the other hand, was bound to know the degree of danger involved. Those handling electricity of high voltage are not only bound to know the extent of the danger but to use the very highest degree of care practicable to avoid injury to everyone who may be lawfully in proximity to such wires and liable to come accidentally or otherwise in contact with them. [Citations omitted].

        Stark, 388 Pa. at 8, 130 A.2d at 128. The court further held:
      In the erection of its poles and wires, Metropolitan was bound to anticipate only such combination of circumstances, and accidents and injuries therefrom, as it may reasonably forecast as likely to happen. [Citation omitted]. “In Pennsylvania, liability for negligence depends on the antecedent probability, not the mere possibility, of harmful results therefrom. The general test of liability is whether the injury imputed to the defendant is such that a person of ordinary intelligence would have foreseen it as the natural and probable outcome of his conduct." [Citations omitted].

        Id., 388 Pa. at 14-15, 130 A.2d at 131-32.

      . See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), appeal after remand 309 Pa.Super. 518, 455 A.2d 1204 (1982). See also Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989); Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 495 A.2d 963 (1985) (discussing negligence).

      . See Crowe v. Nanticoke Light Co., 209 Pa. 580, 58 A. 1071 (1904) (a utility must take all practical precautions to prevent foreseeable injury or death, including the use of the latest available safety appliances and devices).

      . The appellees objected to Penelec’s attempts to submit its supplemental points for charge relating to the issue of notice after closing arguments were completed. Pa.R.Civ.P. 226(a). The trial court addressed the appellees’ concern during trial. R.906a-913a. It also discussed the issue of notice in response to Penelec’s motion for post-trial relief.

      . We note once more that in reviewing the denial of a motion for judgment n.o.v., we are bound to review the record in a light most favorable to the verdict winner. Ingrassia, supra.

      . The requested points for charge, numbers 32-34, were as follows:
      32. Reckless conduct is intentional acting or failing to act in complete disregard of a risk of harm to others which is known or should be known to be highly probable and with conscious indifference to the consequences. Reckless conduct is acting or failing to act when existing danger is actually known and with an awareness that harm is reasonably certain to result.
      33. If you find that the Plaintiff Gordon R. Bailey violated 14 C.F.R. Section 91.3 in operating the aircraft in a reckless manner then the Comparative Negligence Statute is not applicable to the Defendant Pennsylvania Electric Company and the Plaintiff is barred from recovery.
      34. If you find that the Plaintiff Gordon R. Bailey was reckless by acting in complete disregard of a risk of harm to others which is known or should have been known to him then the Comparative Negligence Statute is not applicable to the Defendant Pennsylvania Electric Company and the plaintiff is barred from recovery.

      . See Trial court opinion, at 6. Also, aside from Bailey’s testimony, an expert who flew the route as a line patrol observer testified at trial that he was actively watching for the signs and could not or did not see any warnings to alert him that there were upcoming power lines. R.280a-281a, 545a-546a, 537a-542a, 550a-551a, 644a-647a, 650a. Absent credible or convincing testimony to the contrary, the jury was free to believe that the warning system was inadequate. See also R.282a.


author: HESTER, Judge:

text:
    598 A.2d 52
    Stelios J. VASILIS t/d/b/a Aamco Transmissions, Cyn & Bill, Inc., d/b/a Aamco, Kenneth E. Craven and Constance Craven t/d/b/a Craven Aamco, Rolam, Inc., d/b/a Aamco Transmission and L.S.W. Inc. d/b/a Aamco Transmissions, Appellants v. BELL OF PENNSYLVANIA.
    Superior Court of Pennsylvania.
    Argued April 25, 1991.
    Filed Aug. 21, 1991.

      D. Gregory Whitney, Pittsburgh, for appellants.
    Richard B. Tucker, III, Pittsburgh, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County entered June 13, 1990, granting judgment on the pleadings in favor of appellee, Bell of Pennsylvania (“Bell”). Appellants operate five franchises of Aamco Transmissions, Inc. located in Allegheny and Westmoreland Counties. They instituted suit against Bell for damages for economic losses sustained as the result of Bell’s failure to list the five franchises in the Bell of Pennsylvania Yellow Pages. We affirm.

Appellants entered into a written contract with Bell on May 27, 1988, for business listings in various telephone directories compiled, published, and distributed by Bell. Some of the listings were omitted in the 1988-89 Yellow Pages, and appellants filed suit. In its answer and new matter, Bell asserted a limitation of damages clause in defense. After the close of the pleadings, Bell filed a motion for judgment on the pleadings which was granted following oral argument and the submission of briefs. Reconsideration was denied, and this appeal followed.

Appellants raise one issue for our review: “The lower court erred as a matter of law in granting judgment on the pleadings based on a limitation of damages clause that is clearly unconscionable and invalid.” In addressing this issue, the following standards are relevant:

In reviewing an order granting judgment on the pleadings, we must limit our consideration to the facts set forth in the pleadings, such as the complaint, answer, reply to new matter and relevant documents, and accept as true all of the well-pleaded allegations of the party against whom the motion is granted. Aughenbaugh v. North American Refractories, 426 Pa. 211, 231 A.2d 173 (1967); Keystone Automated Equipment Co., Inc. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988) allocatur denied, 519 Pa. 654, 546 A.2d 59 (1988); Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 514 A.2d 576 (1986); Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Eberhart v. Nationwide Mutual Insurance Co., 238 Pa.Super. 558, 362 A.2d 1094 (1976). Judgment on the pleadings is proper only when no material facts are in dispute. Groff v. Pete Kingsley, 374 Pa.Super. 377, 543 A.2d 128 (1988); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878, 880 (1986), citing Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984); Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). “In reviewing the court’s decision, we must determine if the action of the court was based on a clear error of law or whether there were facts disclosed by the pleading which should properly go to the jury. The decision will be affirmed only in cases which are clear and free from doubt.” Groff, supra 374 Pa.Super. at 382, 543 A.2d at 130, quoting Vogel, supra 354 Pa.Super. at 296, 511 A.2d at 880. Judgment on the pleadings may be appropriate in cases which turn upon the interpretation of a written agreement. Vogel, supra 354 Pa.Super. at 296, 511 A.2d at 880; Gallo, supra 328 Pa.Super. at 270-71, 476 A.2d at 1324, quoting DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 546, 456 A.2d 1066, 1070 (1983).

Lyons v. Nationwide Insurance Company, 390 Pa.Super. 25, 26-27, 567 A.2d 1100, 1101 (1989) (footnote omitted). With these standards in mind, we address the issue presented.

As noted supra, in its answer and new matter, Bell raised the limitation of damages clause contained in paragraph 9 of the contract which provides for a predetermined amount of consequential damages to be recovered as a result of advertising errors or omissions. Paragraph 9 provides as follows: “The Telephone Company’s liability for damages resulting from errors in or omissions of the advertising or listings provided herein shall be limited to an amount not exceeding the monthly charges for advertising or listings involved.” Answer and New Matter, exhibit “A”; Reproduced record at 42a. In granting judgment on the pleadings, the trial court stated:

The law of Pennsylvania has been aptly stated in a case exactly on point cited in Defendant’s brief. Checker Van Lines, Inc. v. Bell of Pennsylvania, 17 Phila. 168 (C.P.Phila.Cty.1988). This case decided by Judge Murray Goldman of the Philadelphia Court of Common Pleas has upheld the validity of the exact clause in dispute. This decision has been affirmed by the Superior Court at 551 A.2d 591 (1988).

Trial court opinion, 11/29/90, at 2. Appellants assert that while the language of the limitation of damages clauses is identical in Checker and the instant case, the arguments of the parties differ significantly. Therefore, appellants assert, the trial court’s reliance on Checker exclusively and without discussion was error. Appellants contend that the limitation of damages clause should be construed strictly against Bell because the agreement between the parties is a contract of adhesion, under which the parties are not of equal bargaining power. As such, appellants, as buyers, were required to adhere to the terms of the form contract in order to purchase the services.

We do not agree. In Behrend v. Bell Telephone Company, 242 Pa.Super. 47, 363 A.2d 1152 (1976), vacated on other grounds, 473 Pa. 320, 374 A.2d 536 (1976), we noted that paid advertising in the Yellow Pages is a matter of private contract between the customer and the telephone company. While Bell furnishes telephone listings in the white pages and a one-line listing in the Yellow Pages to business subscribers at no additional charge, a business subscriber who wishes to advertise in the Yellow Pages must contract with Bell. As we stated in Behrend, “[Yjellow pages listings and advertisements are generally considered outside the realm of necessary services and are usually the subject of a private contract between the customer and the telephone company.” Id., 242 Pa.Super. at 71 n. 16, 363 Pa.Super. at 1164 n. 16. The parties contracting for paid advertising are at liberty to fashion the terms of their bargain. While appellants contend that this is not so, they have not pointed to anything in the record that supports their argument.

Courts have upheld limitation of damage provisions in sales contracts between merchants or experienced business concerns because there is no disparity between such entities in either bargaining power or sophistication. See K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970) (buyers were an experienced attorney and the owner of a used furniture business who dealt with the renovation and sale of the type of machines being purchased); Chatlos Systems, Inc. v. National Cash Register Corp., 635 F.2d 1081 (3rd Cir.1980) (buyer was a manufacturer of complex electronic equipment who purchased a defective computer system).

Appellants suggest it is significant that Bell does not contend that the limitation of damages clause was the subject of negotiations between the parties or that it would have contemplated omitting or modifying the provision. We conclude, instead, that it is noteworthy that appellants do not assert that the provision in question was a matter of concern to them before they entered into the agreement with Bell, nor do they contend that they attempted to negotiate with Bell concerning deletion or modification of paragraph 9 from the agreement.

We are inclined to agree with appellee that where, as here, a contract provision affects commercial entities with meaningful choices at their disposal, the clause in question will rarely be deemed unconscionable. We believe that the doctrine of unconscionability, developed to provide relief to customers who lack sophistication and business acumen, is inapplicable herein.

Order affirmed.


text:
    598 A.2d 54
    Wayne CULVER, a minor, by William R. CULVER, his natural parent and guardian; and William R. Culver and Carole A. Culver, husband and wife, Appellants, v. PORT ALLEGANY REPORTER ARGUS and Leader Publishing Company, Inc.; and Ronald Ungerer, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1991.
    Filed Oct. 25, 1991.

      Harold B. Fink, Jr., Port Allegany, for appellants.
    George Stenhach, Coudersport, for appellees.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

In this action for an alleged invasion of privacy, the trial court sustained the newspaper defendant’s preliminary objection in the nature of a demurrer and dismissed the complaint. The court held that there could be no cause of action for the accurate publication of information obtained by a reporter while attending a public meeting of the local school board. The claimants appealed. We affirm the order of the trial court.

A demurrer admits as true all well-pleaded factual averments set forth in the complaint, as well as all inferences reasonably deducible therefrom. However, when those facts and inferences fail to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Mack Trucks, Inc. v. Performance Associates Corp., 381 Pa.Super. 173, 553 A.2d 412 (1989); Modesta v. Southeastern Transportation Authority, 300 Pa.Super. 6, 445 A.2d 1271 (1982).

William R. Culver and Carole A. Culver were informed by school administrators of the Port Allegany School District that the district intended to request that their son, Wayne, repeat the third grade. The Culvers did not believe the school had properly evaluated Wayne and, therefore, sought a second opinion from a certified school psychologist. This psychologist informed the Culvers that Wayne was “learning disabled.” The Culvers subsequently requested reimbursement of $225.75, the cost of the evaluation, from the “school board and/or certain administration officials.” This request was presented by the Superintendent of Schools, Ronald Ungerer, to the members of the school board at a public meeting. A reporter from the defendant, Port Allegany Reporter Argus, was in attendance at the meeting, and the newspaper thereafter published two articles regarding the Culvers’ reimbursement request. The first article reported that both the private psychiatrist and the school district psychiatrist “had found the boy has a learning disability.” The second report also recited that Wayne Culver had a learning disability. This information had been disclosed and was discussed openly during the public meeting of the school board.

The Culvers, on their own behalf and on behalf of their son, Wayne, filed an action against Reporter Argus and its publisher, Leader Publishing Company, Inc. They averred that the published information had been an invasion of their right to privacy because it was of a type “the plaintiffs consider as being personal and private such that they do not wish to have this information generally disseminated and available to the public generally.” The newspaper filed preliminary objections to the complaint, which the court sustained.

Invasion of privacy is not one tort but rather a complex of four analytically distinct causes. These four causes are identified by the Restatement (Second) of Torts §§ 652B-E as: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life, and (4) publicity placing a person in false light. See: Larsen v. Philadelphia Newspapers Inc., 375 Pa.Super. 66, 81, 543 A.2d 1181, 1188 (1988), alloc. denied, 520 Pa. 597, 552 A.2d 251 (1988); Marks v. Bell Telephone Co. of Pa., 460 Pa. 73, 85-56, 331 A.2d 424, 430 (1975). Appellants contend that the tort committed by the appellee newspaper was based upon publicity given to their private lives.

One who gives publicity to a matter which concerns the private life of another is subject to liability to the other for invasion of privacy if the matter published is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. Harris By Harris v. Easton Publishing Co., 335 Pa.Super. 141, 154, 483 A.2d 1377, 1384 (1984); Restatement (Second) of Torts § 652D. “When the matter to which publicity is given is true, it is not enough that the publicity would be highly offensive to a reasonable person. The common law has long recognized that the public has a proper interest in learning about many matters. When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy.” Restatement (Second) of Torts § 652D, comment d. See: Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (no invasion of privacy where truthful information published is matter of legitimate public concern). “Included within the scope of legitimate public concern are matters of the kind customarily regarded as ‘news’.” Restatement (Second) of Torts § 652D, comment g.

In the instant case, the fact that the school district was being asked to pay with tax dollars the cost of a privately retained psychologist who had examined a pupil was newsworthy. Therefore, so long as the facts were reported accurately and truthfully, the newspaper-appellee cannot be held liable for invasion of privacy by reporting that which transpired in a public meeting.

In Cox Broadcasting Corp. v. Cohn, supra, the Supreme Court held that a broadcasting corporation could not be found liable for invading privacy after it had published the name of a rape victim obtained from official records open to public inspection. The same rule is applicable to media dissemination of matters disclosed at public meetings of local school boards. There can be no liability for accurately and truthfully publishing such information. See also: Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979).

A contrary result is not required by the decision in Harris By Harris v. Easton Publishing Co., supra. There, the newspaper had published a fictionalized account of a woman’s difficulty in obtaining welfare benefits, which account had been disseminated by the Department of Public Welfare. In holding that it was improper to dismiss the complaint summarily, the Court determined that the facts divulged by the applicant were confidential and, therefore, could be found by a jury to be private and not the subject of public information. This is distinguishable from the instant case, where the information printed by the newspaper was a factual reporting of a discussion concerning the expenditure of public funds which took place at a public meeting of a local school board. The instant case is one in which there can be no action for invasion of privacy, for as the Harris court acknowledged:

The right of privacy competes with the freedom of the press as well as the interest of the public in the free dissemination of news and information, and these permanent public interests must be considered when placing the necessary limitations upon the right of privacy. See Hull v. Curtis Publishing Company, 182 Pa.Super. 86, 125 A.2d 644 (1956). An action based on such right must not become a vehicle for establishment of a judicial censorship of the press. Aquino v. Bulletin Company, [190 Pa.Super. 528, 154 A.2d 422 (1959)].

Id., 335 Pa.Superior Ct. at 162, 483 A.2d at 1388.

Order affirmed.


author: HOFFMAN Judge:

text:
    598 A.2d 57
    Catherine ALBA and Joseph Alba, her Husband v. UROLOGY ASSOCIATES OF KINGSTON and Ira C. Grossman, M.D., Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 27, 1991.
    Filed Oct. 28, 1991.

      John J. Aponick, Jr., Wilkes-Barre, for appellants.
    Kevin J. Dempsey, Scranton, for appellees.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   HOFFMAN Judge:

This appeal is from an order of September 9, 1990, entered by the Luzerne County Court of Common Pleas denying appellants’ petition to open a default judgment. Appellants, Urology Associates of Kingston and Ira C. Grossman, M.D., contend that the trial court abused its discretion in denying their petition because prior notice of entry of the judgment was not given, nor was such notice excused under Pa.R.Civ.P. 237.1. We agree and accordingly vacate the order and remand for proceedings consistent with this opinion.

Appellee, Catherine Alba, contends that she was injured because of the negligence of appellant, Ira C. Grossman, M.D. Appellee’s complaint was filed on November 16, 1989 and served upon appellants on November 17, 1989. Appellants’ insurance carrier was the Pennsylvania Medical Society Liability Insurance Company (PMSLIC). Ms. Merry Blew, a claims supervisor with PMSLIC, orally contacted Michael Roth, the attorney representing the appellee, on November 28, 1989. During the course of that telephone conversation, an extension of time within which to answer was discussed. In a letter dated November 28, 1989, Ms. Blew referred to the conversation with Mr. Roth and a sixty day extension for the filing of an appearance and an answer. R.R. at 12a-2. The purpose of the extension was to permit Ms. Blew to investigate and possibly settle the claim. On January 24,1990, Ms. Blew telephoned Mr. Roth informing him that PMSLIC was not going to settle. A letter was also written on that date reiterating the denial of the claim and stating that it was Ms. Blew’s understanding that Mr. Roth intended “to proceed with litigation and accordingly, upon service of your complaint, we will be assigning counsel to represent Mr. Grossman.” R.R. at 19a.

On February 12, 1990, a default judgment was entered against appellants upon praecipe. R.R. at 12a-l. Fourteen days later appellants filed a petition to open the default judgment. R.R. at 15a. On September 19,1990, the Honorable Patrick J. Toole, Jr. denied the petition to open the judgment. This timely appeal was filed on September 19, 1990.

Appellants contend that the trial court erred in refusing to open the default judgment entered against them because they satisfied the three requirements needed to open a default judgment. We agree. Our standard of review of claims regarding opening a default judgment is well-settled. A petition to open a default judgment is an appeal to the equitable powers of the court. Central Penn Nat'l Bank v. Williams, 362 Pa.Super. 229, 232, 523 A.2d 1166, 1167 (1987). The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and we will not overturn that decision “absent a manifest abuse of discretion or error of law.” N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 593, 456 A.2d 1377, 1379 (1983) (citations omitted). An abuse of discretion is not a mere error of judgment, “but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.” St. Vladimir Orthodox Church v. Preferred Risk Mut. Ins. Co., 239 Pa.Super. 492, 497, 362 A.2d 1052, 1056 (1976) (citations omitted). Generally, a default judgment may be opened when three factors coalesce. The moving party must have 1) promptly filed a petition to open; 2) shown a meritorious defense; and 3) provided a reasonable excuse for the failure to file a responsive pleading. McFarland v. Whitham, 518 Pa. 496, 498, 544 A.2d 929, 930 (1988); Quintilliano v. O’Neill, 308 Pa.Super. 35, 38, 453 A.2d 1055, 1056 (1982). Viewing the record in accordance with our standard of review and the conditions required to open a judgment, we conclude that the trial court abused its discretion.

There is no dispute here that appellants promptly filed their petition to open the default judgment. Timeliness is measured from the date that notice is received of the entry of default judgment. Ruczynski v. Jesray Constr. Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974). Appellants filed their petition to open fourteen days after judgment was entered. We agree with the trial court’s determination that appellant filed a timely petition.

A petition to open a default judgment must also allege a meritorious defense, and it must be set forth in specific, concise terms. See Central Penn Nat’l Bank v. Williams, 362 Pa.Super. 229, 235, 523 A.2d 1166, 1169 (1987). Appellants claim that they amply demonstrated the existence of a meritorious defense. We agree. The petition to open alleges that the small bowel obstruction allegedly suffered by the appellee was not the result of appellant’s negligence, but was an unforeseeable event during a “blind” surgical procedure, which occurred because of an unpredictable anatomic anomaly created by prior surgeries. R.R. at 17a. During the deposition of Dr. Grossman, Mr. Roth was able to delve into the claim that the event was unforeseeable. During that deposition, Dr. Grossman explained that he performed the same procedure before and has never had a problem except in this case. He states that for it to have occurred would require the bowel to be in a non-anatomic position. R.R. at 56a-57a. Certainly, a meritorious defense has been alleged by the appellants.

Finally, appellants claim that their failure to file a responsive pleading is reasonably excused because appellees failed to give notice of their intention to take a default judgment, as required by Pa.R.Civ.P. 237.1. Appellees do not deny that they failed to give the notice required under Rule 237.1. They argue, however, that the failure to give notice is excused under the Rule because the parties executed an agreement for extension of time to file an answer, and appellants failed to comply with this agreement. We cannot agree that the “agreement” between the parties was sufficient to obviate the notice requirement of the Rule. Under Pa.R.Civ.P. 237.1, the party seeking default must serve a written notice of intent to file the praecipe for entry of default judgment upon the other party unless a written agreement exists between the parties specifying an agreed upon extension of time. Our Supreme Court has noted that the requirements governing a written agreement for an extension of time under Rule 237.1 “basically, are the same as for any writing which purports to be a contract: the parties must be known; the terms must be definite; and the writing must, when plainly construed, indicate an agreement or meeting of the minds on the terms.” Johnson v. Southeastern Pa. Transp. Auth., 524 Pa. 209, 214, 570 A.2d 71, 73 (1990). The Johnson Court further noted that, “although the agreement need not be formal ... it does require at least an ‘exchange of letters.’ ” Id., 524 Pa. at 215, 570 A.2d at 73-74. The Court then held that,

absent an exchange of letters manifesting a meeting of the minds, and absent an unambiguous statement of a definite time period for an extension, a separate ten day notice in a form substantially the same as that set out in Rule 237.1 would be required before a default judgment was permitted under the rule.

Id., 524 Pa. at 217, 570 A.2d at 74-75 (emphasis in original).

Johnson held unequivocally that a term such as “thirty (30) day extension” or “sixty (60) day extension” without more, inherently is insufficiently specific to effect a waiver of the requirement of the ten (10) day notice. The court held that in the face of such uncertainty, it cannot be said that an agreement exists. The letter sent by Ms. Blew creates the same type of ambiguity which the Rule intended to avoid. The one letter she sent does not constitute an “exchange of letters” which Johnson refers to as a “sort of procedural statute of frauds.” Id., 524 Pa. at 215, 570 A.2d at 74. The letter at issue in this case refers to a sixty (60) day extension. This is exactly the type of ambiguity the Johnson Court ruled against. We cannot find that the letter written by Ms. Blew is evidence of an “unambiguous statement of the definite time period” that was to be governed by the sixty 60 day extension. Because the sixty (60) day extension was subject to different interpretations we find that an ambiguity existed. We see no principled difference between this case and Johnson v. Southeastern Pa. Transp. Auth., supra. Therefore, we find that appellees failed to comply with Rule 287.1 because they failed to file notice of intent to take a default judgment in the absence of a written agreement.

Accordingly, we hold that appellant provided a reasonable explanation for its failure to file an answer prior to entry of the default, and that the trial court abused its discretion in failing to open the judgment. For the foregoing reasons, the order denying the petition to open a default judgment is vacated, the default judgment is opened, and the case is remanded for further proceedings consistent with this opinion.

Order vacated; default judgment opened; case remanded. Jurisdiction is relinquished.

      . Rule 237.1, in relevant part, is as follows:
      NOTICE OF PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT

        No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule.