author:
TAMILIA, Judge:
      CIRILLO, Judge,

text:
    607 A.2d 1077
    The HOWARD SAVINGS BANK, Appellant, v. Alan COHEN and Marilyn Cohen.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1992.
    Filed April 13, 1992.
    Reargument Denied June 17, 1992.

      Gerald M. Hershenson, Langhome, for appellant.
    Andrew L. Miller, Philadelphia, for appellees.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

The Howard Savings Bank appeals the trial court’s Order denying its motion for post-trial relief after the court found appellant could not execute upon property held as tenants by the entireties by appellees, Alan and Marilyn Cohen.

Appellant loaned Alan Cohen (Alan) $50,000 as working capital in a corporate venture. The venture later required an additional $100,000, which Alan obtained by signing another promissory note. At appellant’s request, Marilyn Cohen (Marilyn) executed a guaranty for the full amount of the second loan. Alan did not co-sign this guaranty, which was a completely separate contract from Alan’s promissory notes. This guaranty, drafted by the New Jersey bank, expressly provided “[t]he guaranty and all rights and obligations under it shall be interpreted according to the laws of the State of New Jersey.” After the interest payments ceased due to Alan’s illness, appellant sought to have appellees execute two new notes with Marilyn signing as a joint obligor. Appellees refused this request and appellant made demand for repayment on the two notes. On January 29, 1990, after the parties agreed Alan had defaulted on the loan, the trial court entered a verdict, later reduced to judgment, against each appellee in the amount of $202,-871.05 plus interest. Thereafter, a 60-day moratorium against enforcement was agreed to by the parties to allow the court to determine whether the judgment could be satisfied by levying against property located in Pennsylvania and held by appellees as tenants by the entireties. The trial court held the judgments against appellees were not a joint debt and, therefore, appellant could not execute upon property held as tenants by the entireties.

Appellant argues the obligations of appellees under the promissory notes and guarantees should be interpreted under Pennsylvania law, which, according to appellant, treats a guarantor as a surety or co-obligor so that Pennsylvania law allows a judgment against appellees as joint debtors to be satisfied by executing against tenancy by the entirety property. Appellant also contends even assuming New Jersey law applies, the debt still should be treated as a joint obligation.

We agree with the trial court both Alan’s promissory notes and the guaranty signed by Marilyn state unequivocally that they are to be governed by New Jersey law. Therefore, appellant’s reliance on In re Bialon, 67 B.R. 451 (W.D.Pa.1986), in arguing the contract signed by Marilyn was a suretyship, is clearly misplaced. Appellant now argues the guaranty should be treated as a Pennsylvania document which is governed by Pennsylvania law because Marilyn signed the agreement in Pennsylvania. This absurd proposition fails when we note it was appellant who drafted the unambiguous choice of law provision in the guaranty. The separate nature of the contracts involved herein is also demonstrated by the fact that none of the three contracts were co-signed by the appellees and each contract was executed months apart from the others.

Appellant next contends under New Jersey law there is no substantive distinction between a suretyship and a guaranty. Appellant does not directly support this proposition but instead cites various New Jersey cases dealing with general principles regarding co-guarantors. See McCarthy v. Schwalje, 234 N.J.Super. 396, 560 A.2d 1283 (1988); and D’Ippolito v. Castoro, 51 N.J. 584, 242 A.2d 617 (1969). Under New Jersey law, the maker and guarantor of a debt may not be found jointly liable. Saskel v. Rubin, 125 N.J.L. 68, 13 A.2d 553 (1940); Smith v. Dowden, 92 N.J.L. 317, 105 A. 720 (1919). In contrast, the maker and surety of a debt may be found jointly liable. Black’s Law Dictionary, 5th Ed., 1979, sets forth the relevant distinctions between a guarantor and a surety:

A surety is usually bound with his principal by the same instrument, executed at the same time---- He is an original promisor and debtor from the beginning____ On the other hand, the contract of guarantor is his own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal____ The original contract of the principal is not the guarantor’s contract____ The surety joins in the same promise as his principal and is primarily liable; the guarantor makes a separate and individual promise and is only secondarily liable. “Surety” and “guarantor” are both answerable for debt, default, or miscarriage of another, but liability of guarantor is, strictly speaking, secondary and collateral, while that of surety is original, primary, and direct. In case of suretyship there is but one contract, and surety is bound by the same agreement which binds his principal, while in case of guaranty there are two contracts, and guarantor is bound by independent undertaking.

Id. (citation omitted).

The final issue is whether appellant can execute, pursuant to individual judgments against appellees, upon Pennsylvania property held by appellees as tenants by the entireties. Under New Jersey precedent, where a husband and wife hold land by the entireties, judgment creditors of either spouse may levy and execute upon such spouse’s separate right of survivorship. King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959). The New Jersey Supreme Court in King reasoned there is “no compelling policy reason why a judgment creditor should be inordinately delayed, or, in some instances completely deprived of his right to satisfaction out of the debtor-spouse’s assets.” Id. at 413, 153 A.2d at 60. More recently, in Freda v. Commercial Trust Co., 118 N.J. 36, 570 A.2d 409 (1990), and Bauer v. Miglioccio, 235 N.J.Super. 127, 561 A.2d 674 (1989), the courts have affirmed the rule announced in King. The trial court, however, correctly notes that in the above New Jersey cases where the judgment creditors were allowed to execute upon tenancy by . the entireties property, the property in question was New Jersey property. Here, we are presented with a case involving Pennsylvania real estate owned by Pennsylvania residents. Therefore, even though we concede New Jersey law governs the terms of both promissory notes and the guaranty, we will not apply this New Jersey precedent to the enforcement of these respective debts.

In Pennsylvania, the only case directly on point is Blusiewicz v. Rosenfield, 33 Pa.D. & C.2d 470, 84 Montg. 40 (1964), which held a judgment entered against a husband and wife individually does not give rise to a valid lien against real estate held by them as tenants by the entire-ties. It is also settled principle a husband and wife do not own separate interests in entireties property which can be reached by their individual creditors. Stop 35, Inc. v. Haines, 374 Pa.Super. 604, 543 A.2d 1133 (1988). Execution upon the property in question would lead to a sheriffs sale, which would divide the entireties property. This division would conflict with the principle that one cannot execute upon a judgment as long as the entireties property is not destroyed.

We affirm the trial court’s Order of August 30, 1990 which denied appellant post-trial relief thereby preventing it from executing on the judgments obtained against appellees as the property against which execution is sought is held by appellees as tenants by the entireties.

Order affirmed.

CIRILLO, J., dissents.

CIRILLO, Judge,

dissenting:

I respectfully dissent from the majority’s opinion. I write separately in order to address the majority’s decision which, in my opinion, adheres far too rigidly to elements of tenancy by the entireties, without regard for the unjust results in this case.

Initially, I will re-examine the facts, as it appears there are some inadvertent discrepancies in both the trial court and majority opinions. Appellee Alan Cohen (“husband”) owes appellant The Howard Savings Bank (“bank”) a total of $202,871.05 as the result of two loans. Both the bank and the Cohens have stipulated to this amount and judgment has been entered accordingly.

In order to finance a business venture, husband borrowed the necessary funds from the bank. Husband signed a promissory note on October 5, 1984. This contract allowed him to borrow up to $50,000.00 which would be advanced to him as needed. No one co-signed this promissory note. On the same day, however, Marilyn Cohen (“wife”), at the bank’s request, signed a separate instrument, a guaranty, which stated: “I guaranty the Borrower [husband] will punctually pay whatever he owes the Bank now or later.” (emphasis added). Husband did not co-sign this guaranty. Several months later when husband needed additional capital for his business, he requested that the bank increase his credit line. The bank agreed to lend him the additional funding if he would sign an additional promissory note. On May 23, 1985, husband signed a second promissory note. This contract allowed him to borrow up to $150,000.00 which again would be advanced to him as needed. No one co-signed this second promissory note. Both notes and the guaranty clearly stated that the contracts were to be governed by the laws of New Jersey. In 1987, husband stopped paying the interest on the loans and the bank requested that he renew the two promissory notes and that wife co-sign the notes. Husband and wife refused. Consequently, the bank made demand for repayment on the two notes, which was authorized under the contracts.

After a lengthy procedural delay, the bank and the Co-hens agreed that husband had defaulted on the loans and that he owed the bank $202,871.05. On January 29, 1990, the parties stipulated before the Court of Common Pleas of Montgomery County that judgment would be entered against husband and wife individually in the amount of $202,871.05, plus interest to accumulate at $49.51 per diem. The trial court so held. Subsequently, after the bank filed a praecipe, the trial court entered judgment. The parties also stipulated to a sixty day moratorium against enforcement to permit the trial court sufficient time to determine whether the bank could execute its judgment against property located in Pennsylvania and held by the Cohens as tenants by the entireties.

After considering the complexities of the situation, the trial court determined that the bank could not satisfy its judgment by executing against the Cohens’ Pennsylvania property. The court reasoned that since judgment was entered in the full amount against each spouse individually, the debt was not a joint debt. Therefore, the Pennsylvania property was not subject to levy, as only joint debts can be satisfied with property held in tenancy by the entireties. Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960). Thereafter, the bank filed post-trial motions. The motions were denied and this appeal followed. The bank now requests this panel to consider whether it can enforce its judgment against the property held by the Cohens as tenants by the entireties.

On appeal the bank initially contends that the interpretation of and execution on this contract is governed by the laws of Pennsylvania. In support of its assertion the bank cites the fact that husband and wife are Pennsylvania residents, the contract was signed in Pennsylvania and the property they seek to levy against is in Pennsylvania. However, the bank is confusing two separate choice of law principles. Generally, absent a choice of law provision in the contract, a contract is governed by the law of the state in which the contract is signed. See Restatement, Second, Conflict of Laws § 188.

The two promissory notes husband signed and the guaranty wife signed, however, state unequivocally that they are to be governed by the laws of New Jersey. In interpreting the intent of the parties in a written contract, when the words are clear and unambiguous, as in this case, the intent is to be determined only from the express language of the agreement. Scherer v. Nash, 405 Pa.Super. 37, 591 A.2d 1086 (1991); Warren v. Greenfield, 407 Pa.Super. 600, 595 A.2d 1308 (1991). To do otherwise would undermine the integrity of written contracts. See Gianni v. Russell, 281 Pa. 320, 126 A. 791 (1924). Conversely, if the language of the contract is ambiguous and unclear, a written agreement is to be construed against its drafter, which in this case is the bank. Warren, supra; Ormond Realty v. Ninnis, 341 Pa.Super. 101, 491 A.2d 169 (1985). Therefore, the laws of New Jersey, not Pennsylvania, govern the contracts and the debt incurred by the Cohens. The contracts are to be executed under New Jersey law and, consequently, questions or disputes concerning the contract or the debt, are to be resolved under New Jersey law. Indeed, a review of the record indicates that the loans were extended according to New Jersey law, husband’s default was stipulated to under New Jersey law, husband’s default was stipulated to under New Jersey law, and the loans were called in under New Jersey law. Moreover, the debt was reduced to judgment under New Jersey law. Now that the bank has a judgment to enforce, it seeks to levy against real estate located in Pennsylvania.

Although the laws of New Jersey govern the contracts and the debt, the laws of Pennsylvania govern execution of any judgment, against real estate located in this Commonwealth. It is well established that the courts of Pennsylvania have jurisdiction over the land situated within the Commonwealth, even if a person owning or claiming an interest in the land is not personally subject to the jurisdiction of the Pennsylvania courts. 42 Pa.C.S. § 5302; Alpern v. Coe, 352 Pa. 208, 42 A.2d 542 (1945). This case involves real estate located in Pennsylvania and owned by Pennsylvania residents as tenants by the entireties. Therefore, although New Jersey law governs the contracts and debt, it does not govern the execution of the judgment against real estate located outside the state of New Jersey. The issue of whether or not the bank can execute against property in Pennsylvania held by the Cohens as tenants by the entire-ties can only be determined under the laws of Pennsylvania.

To understand the dilemma posed by the parties on the facts of this case, one must first comprehend the nuances of tenancy by the entireties. Tenancy by the entireties is a “unique form of co-ownership grounded in the common law concept that husband and wife were but one legal entity.” Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986). Essentially, a tenancy by the entireties is based on the uniqueness and unity of the marital relationship. Id. The distinguishing feature of this type of ownership is that a husband and wife individually own the entire or whole property, and not a one-half or a divisible portion. Id. Justice Musmanno offered an illustrative analogy for this type of ownership:

Husband and wife own an estate in entireties as if it were a living tree, whose fruits they share together. To split the tree in two would be to kill it and then it would not be what it was before when either could enjoy its shelter, shade and fruit as much as the other.

Sterrett, 401 Pa. at 585, 166 A.2d at 2.

Given such unity, neither spouse may deprive the other spouse of the use or enjoyment of the entireties property, and neither spouse may sever or encumber the estate without the consent of the other spouse. Schweitzer v. Evans, 360 Pa. 552, 63 A.2d 39 (1949). Neither spouse, alone, may convey the entireties property, Clingerman, supra, and an entireties estate may only be terminated by a joint act of the husband and wife. In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132 (1945).

At common law, under the concept of coverture, husband and wife were considered one, but with the legal identity of the wife merging into that of her husband. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975). Society presumed that it was the husband’s duty to provide his wife with a home and the requisite household goods. Id. Therefore, as married women were not legally capable of owning property in their own names until the nineteenth century, the husband owned the property, both real and personal. Id. To afford a woman, who had few property rights, some measure of protection from the possibility of losing her home due to a husband’s reckless actions, the concept of tenancy by the entireties was created. Id.; see also Wallaesa v. Wallaesa, 174 Pa.Super. 192, 100 A.2d 149 (1953). This type of ownership preserved the tenancy even if the husband incurred debts and his creditors attempted to seize the marital home in lieu of payment. See Amadon v. Amadon, 359 Pa. 434, 59 A.2d 135 (1948). Also, it protected entireties properties from being conveyed to a third party by one spouse without the other spouse’s consent. See Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975); see also Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979).

When the Married Women’s Property Acts were enacted in several states in the late nineteenth century, see footnote four, supra, there was a question as to the continued need for tenancy by the entireties. Wallaesa, supra. Women no longer required legal protection as they had achieved the same property rights as their husbands. Today, of course, husbands and wives are regardéd as two separate and distinct individuals in all but one area of the law. Pennsylvania chooses to retain the common law concept of tenancy by the entireties, which views a husband and wife as a single entity. DiFlorido, supra; see Madden v. Gosztonyi, 331 Pa. 476, 200 A. 624 (1938).

Here, I find the majority’s strict adherence to the traditional attributes of tenancy by the entireties unwarranted. In this case it only serves to enable husband and wife to avoid payment of a debt. Husband and wife are each individually responsible for the debt by virtue of the promissory notes and guaranty. The majority, however, denies the bank execution of judgment on the entireties property on the basis that the Cohens are not jointly obligated. Such an anomalous interpretation is misguided and undermines the very purpose for which tenancy by the entireties was created. Application of the common law principle in this case allows one spouse, or both spouses, individually, to protect their jointly held property. Tenancy by the entire-ties was never intended to work such an inequity, and I therefore register my disagreement with the majority’s analysis and result.

      . We do not dispute that if appellant had obtained judgment in a New Jersey court and if appellees’ property was located in New Jersey, appellant could execute against the survivorship interest of either or both of the appellees.

      . The promissory notes and guaranty read in pertinent part as follows:
      APPLICABLE LAW: This note will be governed by the law[s] of the State of New Jersey.

      . Husband suffered a heart attack on December 6, 1987. He did not make any interest payments after the onset of his illness.

      . The parties stipulated to the amount of money owed and the judgment was entered individually against husband and wife in Pennsylvania. However, this was done pursuant to the laws of New Jersey as the contracts were governed by those laws. The promissory notes provided for payment. Both promissory notes state, “If I do not pay any amount when due under this note or under any of my other debts to the Bank Bank may sell any of the collateral at any price the Bank believes best, for cash or on credit, to anyone including the Bank itself without any notice to me, and apply the proceeds of the sale to pay any or all of my debts to the Bank.” Therefore, the promissory notes were called in under their own terms which are governed under New Jersey law. Thus, this case has been brought before the courts of this Commonwealth in order to enforce the judgment against Pennsylvania property pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306.

      . In Pennsylvania, married women's rights were advanced under the Married Women’s Property Acts. Act of May 23, 1887, P.L. 170, and Act of June 8, 1893, P.L. 344 Sec. 1 (48 P.S. § 31). The Act of 1893 permitted married women to lease, sell, and own their real estate, but, also, stated that married women could not "execute or acknowledge a deed or other written instrument conveying or mortgaging her real property unless her husband joined in such mortgage or conveyance.” Act of June 8, 1893, P.L. 344, 48 P.S. § 32; Ladner on Conveyancing 59 (4th ed.). The Act of 1957 equalized a married woman’s rights with these rights of a married man: a married woman “shall have the same right and power as a married man to acquire, own, possess, control, use, convey, lease or mortgage any property of any kind, real, personal or mixed, either in possession or expectancy, or to make any contract in writing or otherwise, and may exercise the said right and power in the same manner and to the same extent as a married man.” A woman’s rights were further enhanced in 1971 with the Equal Rights Amendment to the Pennsylvania Constitution. See Pa.Const., art. I, § 28.


source: Caselaw Access Project

author: HESTER, Judge: WIEAND, Judge,

license: Public Domain

text:
    607 A.2d 1083
    Louis EDMONDS, a Minor By Taneika JAMES, Mother and Natural Guardian, and Taneika James, in her own right, Appellants, v. The WESTERN PENNSYLVANIA HOSPITAL RADIOLOGY ASSOCIATES OF WESTERN PENNSYLVANIA P.C., Neal B. Simmons, M.D., and Harvey L. Neiman, M.D. Louis EDMONDS, a Minor by Taneika JAMES, Mother and Natural Guardian, and Taneika James, in her own right, Appellants, v. Wynne COOPER, M.D.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed April 30, 1992.

      Bruce S. Gelman, Pittsburgh, for appellants (at 83 and 146).
    Richard Federowicz, Pittsburgh, for Western Pennsylvania Hosp., appellee (at 83).
    Bernard R. Rizza, Pittsburgh, for Neiman, appellee (at 83).
    Elaine S. Nace, Pittsburgh, for Cooper, appellee (at 146).
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   HESTER, Judge:

This is a consolidated appeal from orders entered in the Court of Common Pleas of Allegheny County on November 30, 1990, and January 2, 1991. Those orders, which respectively sustained certain preliminary objections in the nature of a demurrer and granted Wynne Cooper, M.D., judgment on the pleadings, disposed of actions arising from circumstances related to the pregnancy of Taneika James and the birth of her physically impaired son, Louis Edmonds. For the reasons set forth below, we affirm.

The procedural history of the first appeal, number 00083 Pittsburgh, 1991, may be summarized as follows. On September 25, 1990, Ms. James, on behalf of herself and her son, filed a complaint against the Western Pennsylvania Hospital, Radiology Associates of Western Pennsylvania, P.C., Neal B. Simmons, M.D., and Harvey L. Neiman, M.D. In that complaint, Ms. James asserted that a sonogram taken during her pregnancy revealed a fetal abnormality, alleged that she was not informed of that condition in a timely fashion, and implied that she would have sought an abortion had she been so informed. Consequently, Ms. James requested damages arising from both the pregnancy and the birth of her son. In addition, she sought damages on behalf of her son for the pain and complications associated with his impairment as well as the treatment it rendered necessary.

Shortly after initiating the action, appellants amended their complaint to clarify the relationship between the individual and institutional medical providers. Thereafter, appellees, relying upon the statutory prohibition against causes of action premised upon a claim that a person should not have been born, see 42 Pa.C.S. § 8305, filed preliminary objections in the nature of a demurrer. On November 30, 1990, the trial court entered the challenged order sustaining those objections. Appellants subsequently filed a timely notice of appeal.

We now turn to appeal number 00146 Pittsburgh, 1991. On January 3,1989, appellants initiated proceedings against Wynne Cooper, M.D., by filing a praecipe for a writ of summons. Subsequently, following the reissuance of the writ and the effectuation of service, they filed a complaint which contained allegations substantially similar to those previously described. The parties then filed additional pleadings and proceeded with discovery. On September 11, 1990, after appellants requested a jury trial, Dr. Cooper moved for judgment on the pleadings contending that the causes of action asserted by appellants were barred by 42 Pa.C.S. § 8305. Four months later, the trial court entered the order granting the requested relief. Appellants filed a timely notice of appeal, and we consolidated the action with appeal number 00083 Pittsburgh, 1991, for argument and disposition.

It has long been clear that we have an obligation to consider the appropriateness of each appeal and that such consideration may be undertaken sua sponte. Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990) (per curiam). Moreover, we note that absent a specific statutory provision to the contrary, any appeal determined to be interlocutory must be quashed. Id. With these principles in mind, we sua sponte address the propriety of the present appeals.

Our review of the record relating to appeal number 00146 Pittsburgh, 1991, clearly establishes that it was taken from a final order, and that it is properly before us for disposition. See Indiana County Hospital Authority v. McCarl’s Plumbing & Heating Co., 344 Pa.Super. 226, 496 A.2d 767 (1985) (per curiam) (order granting judgment on the pleadings is a final order and therefore, appealable). With respect to the remaining appeal, we note that the order sustaining the preliminary objections of the various medical providers did not dismiss appellants’ complaint or explicitly dispose of the action; however, it effectively terminated the proceedings. Therefore, we find that order also to be final and appealable. See Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970) (order which sustains preliminary objections in the nature of a demurrer without explicitly terminating the action is final and appealable if it effectively terminates action). Accordingly, we turn to the merits of the two appeals.

The standards utilized in reviewing the propriety of decisions either sustaining preliminary objections in the nature of a demurrer or entering judgment on the pleadings are well-established. With respect to the former decisions, we note:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolf, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Greenspan v. United Services Automobile Assn., 324 Pa.Super. 315, 318, 471 A.2d 856, 857-58 (1984), quoting Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982). In connection with the latter decisions, we have indicated:

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. Karns v. Tony Vitale Fireworks Corporation, 436 Pa. 181, 259 A.2d 687 (1969). It may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986); Groff v. Pete Kingsley Building, Inc., 374 Pa.Super. 377, 543 A.2d 128 (1988). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings & Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). The scope of review on appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Keystone Automated Equipment Co. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988).

Kosor v. Harleysville Mutual Insurance Co., 407 Pa.Super. 68, 71-72, 595 A.2d 128, 129-30 (1991). In the present cases, the various motions of appellees were premised upon the contention that appellants’ claims supported no causes of action in light of 42 Pa.C.S. § 8305. Appellants’ challenge to the trial courts’ decisions on those motions concerns only the personal claims of Ms. James. In addition, we note that none of the parties question the fact that 42 Pa.C.S. § 8305 extinguished a previously recognized cause of action for wrongful birth or contend that its provisions are inapplicable to Ms. James’s claims. Accordingly, resolution of the question of the propriety of the two contested orders hinges upon a determination as to the constitutionality of 42 Pa.C.S. § 8305.

Appellants assert that 42 Pa.C.S. § 8305, by extinguishing causes of action for wrongful birth, interferes with a woman’s abortion right by allowing a physician to both intentionally misrepresent and negligently fail to impart information impacting upon such a decision. Accordingly, they contend that 42 Pa.C.S. § 8305 impinges upon abortion rights and violates both the due process and equal protection clauses of the fourteenth amendment of the United States Constitution. This issue, which is one of first impression, is devoid of merit.

Preliminarily, we note that legislative enactments, such as the challenged statutory provision, enjoy a strong presumption of constitutionality. Dranzo v. Winterhalter, 395 Pa.Super. 578, 577 A.2d 1349 (1990). Consequently, all doubts relating to the constitutionality of such an enactment must be resolved in its favor. Id. Thus, it is clear that a party raising a constitutional challenge has a heavy burden of rebutting the presumption of constitutionality and demonstrating that the statute clearly, plainly, and palpably violates constitutional precepts. Id. Utilizing these principles, we must examine the contested provision and determine whether either the due process or equal protection clauses of the fourteenth amendment render it unconstitutional.

In pertinent part, 42 Pa.C.S. § 8305 (footnotes omitted) states:

(a) Wrongful birth. — There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.

It long has been clear that in order to establish a fourteenth amendment violation, a litigant must demonstrate state action or involvement in connection with the matter at issue. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Furthermore, a state normally may be held responsible for private conduct only when it has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [s]tate.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534, 546 (1982). As mentioned previously, appellants assert that the statutory provision at issue impinges upon a woman’s right to obtain an abortion, a right that with some qualifications was recognized by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). However, our review of the clear language contained within that provision reveals that it neither regulates nor directly affects such rights. Instead, that language merely extinguishes all causes of action arising from a claim that but for the improper conduct of a medical provider, a child would have been aborted prior to birth. Thus, resolution of the state action issue rests upon the determination of whether 42 Pa.C.S. § 8305(a) encourages medical providers to infringe upon the abortion rights of their patients.

The Osteopathic Medical Practice Act, 63 P.S. § 271.1 et seq., and the Medical Practice Act of 1985, 63 P.S. § 422.1 et seq., respectively create the State Board of Osteopathic Medicine and the State Board of Medicine. In addition, they establish licensing procedures for various medical professionals, including physicians, and provide that licenses may be refused, revoked, or suspended for certain enumerated reasons. According to the two acts, physicians may be disciplined by the appropriate boards for making intentional misrepresentations in connection with patient care. See 63 P.S. §§ 271.15(a)(2) and 422.41(2). Thus, if a physician intentionally misrepresented to a woman the state of her health or that of her fetus in an effort to infringe upon her abortion rights, he could be disciplined by the appropriate licensing authority. Since 42 Pa.C.S. § 8305(a) specifically indicates that it provides no defense to a disciplinary proceeding involving such misrepresentations, it clearly does not encourage physicians to make them. Consequently, we turn to the question of whether the challenged provision encourages negligent behavior on the part of physicians with respect to the impartation of information affecting abortion decisions.

Although the provisions of 42 Pa.C.S. § 8305(a) clearly relieve physicians from liability for negligently failing to provide women with information affecting abortion decisions, we would be engaging in speculation were we to assume that this extinguishment of liability encourages such improper behavior. Thus, it is clear that the issue of the challenged provision’s effect is open to question. Since all doubts relating to the constitutionality of a statutory provision must be resolved in its favor, see Dranzo v. Winterhalter, supra, we must presume that 42 Pa.C.S. § 8305(a) does not encourage physicians to engage in the negligent conduct at issue.

As demonstrated above, 42 Pa.C.S. § 8305(a) does not encourage either intentional misrepresentations or the negligent impartation of information relating to abortion rights. Consequently, that provision does not amount to state action affecting such rights, and appellants’ fourteenth amendment claims must fail. Since 42 Pa.C.S. § 8305 is constitutional, the trial courts properly could have relied upon it to dismiss Ms. James’s claims as not supporting a cause of action.

Orders affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur in the result. In my judgment, 42 Pa.C.S. § 8305 is rationally designed to meet a legitimate state interest and, therefore, is constitutional. In this respect, I would adopt the reasoning of the Honorable David S. Cercone who, in entering judgment on the pleadings in favor of the physician-defendant, wrote as follows:

“We believe that our legislature unquestionably had a rational basis for enacting section 8305. Senator Rocks provided the following viewpoint during debate on this legislation:

‘this is the intent of what the wrongful birth and wrongful life legislation is about to stop a court engendered policy which views the birth of a child, be that child handicapped or otherwise, as a damaging event for which someone should be punished in order to prevent this quality of life ethic from becoming so pervasive that a handicapped child is routinely considered better off dead and of less value than what we would call a ‘normal child’ and to prevent the practice of medicine especially obstetrics and gynecology, from becoming coerced into accepting eugenic abortion as a condition for avoiding what are particularly wrongful birth lawsuits.’ Pa. Senate leg. 1961 (March 22, 1988).

Other proffered rationale for this statute are also persuasive. The legislature believed that it would be improper to view any birth as an evil or wrong, and thus a cause of action. Secondly, our society has become increasingly aware and protective of the rights of the handicapped. To recognize the validity of a wrongful life statute would be to make the handicapped a lower class of citizen. Third, the recognition of these type causes of action by the legislature would, in essence, have dictated to the medical profession how to practice in the area of obstetrics. Finally, a recognition of these causes of action would have caused ever increasing malpractice insurance rates to increase exponentially, with a resulting loss of adequate medical care in this vital area. See Pa.House Leg. 2306 (February 24, 1988).

We believe that section 8305 has a rational basis designed to meet a legitimate state interest. The legislature has not opted to make physicians exempt for their wrongdoings. Rather, the legislature has validly freed physicians from liability for defects or handicaps for which the physician is in no way responsible.

We are persuaded by the arguments of Justice Nix in the Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 decision. See 497 Pa. at 92-99, 439 A.2d at 118, 120-21. We agree with Justice Nix that ‘... any intimation that a recognition is required of these proffered causes of action because of constitutional mandate is completely without foundation.’ 497 Pa. at 96, 439 A.2d at 120. ‘... [Tjhere can be no question that refusal to create new tort liability does not constitute governmental interference with the constitutionally protected access to abortion.’ 497 Pa. at 97, 439 A.2d at 120.

We believe that the refusal of our legislature to recognize a cause of action for wrongful birth and wrongful life ‘does not impede the decision of the parents’ regarding procreation, nor does it impede a woman’s right to choose to have an abortion. See Speck, 497 Pa. at 99, 439 A.2d at 121.”

      . 42 Pa.C.S. § 8305 (footnotes omitted) states:
      § 8305. Actions for wrongful birth and wrongful life
      (a) Wrongful birth. — There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L.- 457, No. 112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.
      (b) Wrongful life. — There shall be no cause of action on behalf of any person based on a claim that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
      (c) Conception. — A person shall be deemed to be conceived at the moment of fertilization.

      . Our review of the record reveals that appellant, in substantial conformity with the dictates of Pa.RX.P. 235 and Pa.R.A.P. 521, provided the Attorney General’s Office with notice of its constitutional challenge at both this level and the trial level. To date, the Attorney General has not expressed a willingness to intervene in the proceedings.

      . We note that amici curiae challenged the constitutionality of both the substantive provisions of 42 Pa.C.S. § 8305 and its retroactive application in Butler v. Rolling Hill Hospital, 382 Pa.Super. 330, 555 A.2d 205 (1989). However, as we determined that they failed to provide the Attorney General’s Office with the appropriate notification, we declined to address those issues.
      Two years after Butler was decided, we considered similar challenges in Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 585 A.2d 1091 (1991) (en banc). In that case, we concluded that retroactive application of 42 Pa.C.S. § 8305(a) to bar a cause of action that accrued four years prior to its enactment was unconstitutional. Accordingly, we reversed an order striking certain provisions of a complaint. In light of this disposition, we did not address any of the substantive challenges.

      . Appellees Harvey L. Neiman, M.D., and Radiology Associates of Western Pennsylvania, P.C., assert that appellants’ constitutional challenge is moot. In support of this assertion, they point out that appellants admitted in the complaint that Louis’s average gestational age was over twenty-five weeks at the time that the alleged failure to notify occurred, see Reproduced Record ("R.R.”) at 78a, and that physicians are prohibited by 18 Pa.C.S. § 3211(a) from performing abortions on fetuses with a gestational age over twenty-four weeks. However, we note that 18 Pa.C.S. § 3211(a) is a criminal provision that became effective in January, 1990, over two years after the relevant events occurred. See R.R. at 77a. Furthermore, the provision’s retroactive application would render it an ex post facto law in violation of article 1 section 10 of the United States Constitution. Accordingly, as we find that 18 Pa.C.S. § 3211(a) could not have affected Ms. James’s ability to obtain an abortion at the relevant time, it is clear that the mootness claim is devoid of merit.

      . We note that our decision in this regard is consistent with one reached by the Supreme Court of Minnesota in connection with a statutory provision which indicated that no person may pursue a cause of action premised upon a claim that a child would have been aborted absent the acts or omissions of another. In Hickman v. Group Health Plan, 396 N.W.2d 10 (Minn.1986), that court, citing Shelley v. Kraemer, supra, determined that the provision in question did not directly affect the right of a woman to obtain an abortion. Consequently, it concluded that the plaintiffs had established no state action relating to that matter.

      . We uphold the statutory bar relating to the maintenance of causes of action premised upon assertions that but for the improper acts of another a-child would not have been born. However, our decision does not impact upon the right of a mother to recover under ordinary malpractice principles for treatment rendered her by a medical provider during the period of gestation. Appellants clearly indicated in their complaints that these actions were premised upon the former theory and they do not challenge the applicability of the provisions contained in 42 Pa.C.S. § 8305.


author: HOFFMAN, Judge:

text:
    607 A.2d 1089
    Richard David LUTZ, Appellant, v. Paul CYBULARZ and Deborah Cybularz, h/w and Philadelphia Newspapers, Inc., a Pennsylvania Corp., d/b/a the Philadelphia Inquirer.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed April 30, 1992.

      Stephen David, Philadelphia, for appellant.
    Craig L. Thorpe, Chief Asst. City Sol., for Philadelphia Newspapers, appellee.
    Deborah and Paul Cybularz, pro se.
    Before DEL SOLE, HUDOCK, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order dated July 22, 1991, granting summary judgment in favor of appellee Philadelphia Newspapers, Inc. (“PNI”). Appellant Richard David Lutz (“Lutz”) argues that the trial court improperly granted summary judgment because issues of fact exist as to whether Paul Cybularz (“Cybularz”) was an agent of PNI and as to whether PNI was negligent for failing to determine if Cybularz was insured or licensed to drive. For the reasons that follow, we affirm.

The underlying action arose when appellant was injured in an automobile accident with Cybularz. Cybularz delivered several newspapers including The Inquirer, a newspaper distributed by PNI. Appellant filed a complaint against Cybularz and PNI seeking compensation for his injuries. In his complaint against PNI, appellant asserted theories of vicarious liability and negligent hiring. PNI filed a motion seeking summary judgment which was granted. The trial court found that Cybularz was an independent contractor and therefore PNI was not responsible for any accidents Cybularz had while making deliveries. The court further determined that PNI was not negligent for failing to ensure that he had a driver’s license and insurance. This timely appeal followed.

Our standard of review of an order granting summary judgment is well-settled. Summary judgment may properly be entered only if ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.Civ.P. 1035(b).

The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-41, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Garcia v. Savage, 402 Pa.Super. 324, 328, 586 A.2d 1375, 1377 (1991) (citing Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 579 A.2d 388, 390 (1990)). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1811, 1313 (1988). With these principles in mind, we proceed to examine whether summary judgment was properly granted.

A.

As a general rule, while an employer may be held responsible for negligent acts of its servants/employees, it will not be held liable for harm caused by acts of independent contractors. See Ortiz v. Ra-el Development Corp., 365 Pa.Super. 48, 52, 528 A.2d 1355, 1357 (1987), appeal denied, 517 Pa. 608, 536 A.2d 1332 (1987). Thus, we must first determine whether Cybularz was a servant or an independent contractor of PNI. The test for determining whether one is a servant or an independent contractor is well-established:

The characteristic of the former relationship is that the master not only controls the result of the work but has the right to direct the way in which it shall be done, whereas the characteristic of the latter is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result____ “Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor____ It is not ... the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor____”

Moon Area School Dist. v. Garzony, 522 Pa. 178, 190, 560 A.2d 1361, 1367 (1989) (citations omitted). “It is the exclusive function of the jury to determine, from the evidence, the precise nature of the relationship, except where the facts are not in dispute, in which latter event the question becomes one for determination by the court.” Melmed v. Motts, 341 Pa.Super. 427, 430-31, 491 A.2d 892, 893 (1985) (citations omitted).

Applying the above test to the matter before us, we conclude as a matter of law that Cybularz was an independent contractor of PNI. During his deposition, Cybularz testified that in 1979 he purchased a newspaper delivery route which delivered various newspapers including Barrons, The Wall Street Journal, The New York Times, The Philadelphia Bulletin, and The Philadelphia Inquirer. Deposition of Paul Cybularz, November 30, 1990, at 29. He testified that on the date of the accident, approximately one-half of the five hundred newspapers he delivered were The Philadelphia Inquirer. Id. at 47. He would purchase newspapers wholesale from each company and then deliver them to his customers according to their orders. With respect to the Inquirer, the publisher would drop off newspapers at a garage where Cybularz would pick them up. Id. at 49. Cybularz derived his income from the difference between the wholesale cost and the delivery charge. He collected money from the customers directly and then paid PNI for the papers that were delivered to him. Id. at 74. He never received payments from PNI and was not required to sell subscriptions to the Inquirer. Id.

Cybularz merely had an account with PNI under which PNI would supply him with the newspapers. In return, he was required to maintain records of his customers’ names and addresses which he would provide to PNI once or twice a year. Id. at 80-81. When obtaining new customers, he would distribute cards indicating the newspapers that he delivered and the rate. He was not required to obtain PNI’s approval for new clients. Id. at 89. In fact, he testified that PNI had no control over how he conducted his business. Id. at 95.

There was no written agreement between Cybularz and PNI, nor did Cybularz ever complete an employment application for PNI. Id. Cybularz set his own hours, working from five o’clock to eight o’clock in the morning. Id. at 69. Cybularz was also responsible for all business-related expenses, including maintenance of his automobile, fuel expenses, and benefits for those who worked for him, and all expenses for the maintenance of the delivery vehicle. Moreover, PNI provided no insurance benefits or vacation time, and did not reimburse him for any expenses. Id. at 79.

Appellant argues that deposition testimony indicates that Cybularz was interviewed and approved for his position by a PNI district manager who testified that Cybularz “worked under” him, that Cybularz was not permitted to deliver The Inquirer at the same time as another newspaper, and that “Cybularz would lose his Inquirer route and be replaced by another carrier if he did not deliver the newspaper in the manner specified by PNI” to suggest that a jury could conclude that Cybularz was an agent of PNI. Appellant’s Brief at 8. However, the testimony upon which appellant relies does not compel the conclusion that Cybularz was an employee of PNI. Rather, the testimony indicated that the only restrictions placed upon Cybularz and other adult carriers were the following:

Prompt, courteous service; payment of the bill for papers given to the carrier by the 5th of each month for the preceding month; papers to be delivered on a daily basis no later than 6:30 a.m. in the morning and 8 o’clock on Sunday morning.

Deposition Testimony of John J. Shirley, February 26, 1991, at 17. Cybularz’ testimony does not contradict this. See Deposition Testimony of P. Cybularz, November 30,1990, at 66. In light of all of the above testimony, we find that PNI had limited authority to interfere with or control the manner in which Cybularz conducted his business. Accordingly, we find no issue of material fact regarding whether Cybularz was an independent contractor and therefore conclude that the trial court correctly granted summary judgment in favor of PNI on the issue of vicarious liability.

B.

We must now determine whether summary judgment in favor of PNI regarding the issue of PNI’s negligent hiring of Cybularz was proper. In his complaint against PNI, Appellant Lutz alleges that 19. The accident as aforesaid was caused solely by the negligence and carelessness of defendant, Paul Cybularz, who was acting as the agent, servant, workman and/or employee of defendant, The Philadelphia Inquirer, which negligence and carelessness consisted of the following:

(a) permitting an inexperienced, careless and negligent driver to operate said vehicle;
(b) permitting an individual with physical disabilities to operate said vehicle;
(c) being otherwise negligent and careless under the circumstances.

Complaint at 6.

Although neither the parties nor the trial court phrase it as such, we read this allegation of negligence as a claim arising under § 411 of the Restatement of Torts. There is little case law on point in this jurisdiction, so we must look to the Restatement as well as the law of other jurisdictions.

Comment C to § 411 points to three important factors in determining the degree of care required of the employer of an independent contractor:

(1) the danger to which others will be exposed if the contractor’s work is not properly done; (2) the character of the work to be done — whether the work lies within the competence of the average man or is work which can be properly done only by persons possessing special skill and training; and (3) the existence of a relation between the parties which imposes upon the one a peculiar duty of protecting the other.

Applying these factors to the matter before us, it is clear that there is only a minimal degree of care required of PNI. First, the foreseeable danger resulting from improperly delivered newspapers is significantly less than, for example, that of an improperly constructed building or machinery. The risk associated with delivering newspapers is unlikely to result in serious physical harm or property damage.

As to the second factor, the present matter is unlike the situation where the work to be done is extremely dangerous unless properly done and which requires peculiar skill for successful accomplishment. One who provides newspapers to another for resale and delivery is entitled to assume that the latter has a reliable method of delivering those newspapers, whether it be a bicycle or insured automobile. See Comment C to Restatement 2d Torts.

Regarding the third factor, the Restatement points to two relationships, master-servant and common carrier-innkeeper, as examples of situations in which a special duty arises. In contrast to those situations, there is no connection here between PNI and appellant which would impose a duty on PNI to protect appellant. The relationship between PNI and appellant is too tenuous because it was not foreseeable that appellant’s automobile would be the one struck by Cybularz.

By contrast, in Wilk v. Haus, 313 Pa.Super. 479, 460 A.2d 288 (1983), this court reversed an order granting summary judgment in favor of defendant, a building owner who hired a remodeling contractor, in an action resulting from the death of the contractor’s employee when scaffolding collapsed. The court reasoned that issues of material fact existed as to whether the owner who was a named party in the remodeling agreement was negligent in the selection, control, and supervision of the contractor. The instant case is distinguishable from the facts of Wilk. First, Wilk involved construction, work which poses a much greater risk of injury than than that posed by newspaper delivery. Moreover, here there was no written agreement between PNI and Cybularz, and their relationship was, at most, an informal one.

We find the present case to be analogous to Webb v. Justice Life Ins. Co., 563 S.W.2d 347, 349 (1978). In Webb, plaintiff sued two life insurance companies for the death of her husband, allegedly caused by the negligent driving of the defendants’ soliciting agent. Defendants were granted summary judgment on the ground that the soliciting agent was an independent contractor. Plaintiff appealed, contending, inter alia, that the defendants were negligent in failing to discover that the agent was an incompetent or careless driver. The court of appeals affirmed. The court held that defendants could not be held liable for negligence in selection of an incompetent independent contractor where the agent was not employed to do any work which would involve risk of physical harm, where he was not employed to perform any duty that defendants owed to third persons, and where his choice of transportation was his own. The court noted that the defendants would only have been required to investigate the agent’s competency to drive if the performance of the agent had included driving.

Here, as in Webb, Cybularz’s performance did not require the use of an automobile and the choice of transportation was his own. Accordingly, PNI owed no duty to appellant to inquire into Cybularz’s competency to drive. Therefore, the trial court properly granted summary judgment in favor of PNI.

Order affirmed.

      . Appellant does not challenge the trial court’s granting summary judgment solely on the basis of the oral testimony of PNI’s witnesses. See Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Rather, appellant insists that a material issue of fact exists based upon the interpretation of that testimony.

      . § 411. Negligence in Selection of Contractor
      An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
      (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
      (b) to perform any duty which the employer owes to third persons.