author: HESTER, Judge:

text:
    681 A.2d 803
    MARTINDALE LUMBER COMPANY, A Partnership v. Larry C. TRUSCH and Bonnie J. Trusch, his Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 30, 1996.
    Filed July 30, 1996.

      Michael Sossong, Ebensburg, for appellants.
    Bruce F. McKenrick, Ebensburg, for appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   HESTER, Judge:

Larry C. and Bonnie J. Trusch appeal following a trial court’s decision to hold them liable to appellee, Martindale Lumber Company, for breach of contract. The court awarded appellee $99,265.90 in damages plus prejudgment interest. We reverse.

Appellee instituted this action by filing a complaint wherein appellee pleaded specifically that the action was a “civil action — in equity for specific performance.” Complaint at 1. Appellee alleged therein that it had an agreement with appellants whereby appellee had been granted the right to harvest trees on property owned by appellants and located in Portage Township, Cambria County. Appellants subsequently refused to permit appellee to harvest trees on the property. The only request for relief appearing in the complaint is as follows:

WHEREFORE, the Plaintiff needing equitable relief, prays that your Honorable Court may decree and direct as follows:
First: That the Defendants, Larry J. Trusch and Bonnie C. Trusch be enjoined and restrained temporarily until final hearing and perpetually thereafter from conveying, selling, encumbering, leasing, or transferring any interest in the premises and more particularly the legal rights of the Plaintiffs to said premise as described in Exhibit “A” herein.
Second: That such other and further relief be granted as your Honorable Court may deem proper together with costs and counsel fees so subjected by this suit.

Complaint at 3.

In response to appellee’s complaint, appellants filed a counterclaim and alleged that they had rescinded the contract based on appellee’s acts of fraud, intentional misrepresentation, negligent misrepresentation, and breach of a confidential relationship. Appellants then filed a motion for judgment on the pleadings asking that the action be dismissed since appellee had failed to state a cause of action upon which relief could be granted in equity and therefore that the equity side of the court did not have jurisdiction over the matter. The motion was denied, but appellee did not amend its complaint to request monetary damages for breach of contract. Furthermore, appellee never proceeded with requested injunctive relief.

The case proceeded, in equity, to a nonjury trial in November, 1994. The equity court determined that appellants were liable under the contract, but the court also concluded that appellee was not permitted the remedy of specific performance based on the Uniform Commercial Code, 13 Pa.C.S. §§ 1101, et seq. After a review of the complaint, however, the trial court concluded that appellee had set forth sufficient allegations of breach of contract and a sufficient request for monetary damages to allow the court to bifurcate the damages portion of the trial so that evidence could be taken as to monetary damages. It therefore held a second trial as to damages approximately six months later. At that trial, appellee presented evidence as to the fair market value of the timber on the land. The trial court subsequently entered a damages award which represented the fair market value of the timber appellee would have harvested had the agreement been fulfilled, less the amount it agreed to pay for the timber.

The trial court relied upon the following facts in rendering its decision. In July, 1989, Larry Trusch contacted appellee to propose a joint venture for the purchase of the real estate in question. The real estate was auctioned on August 5, 1989, and prior to the action, the parties met to discuss the terms of the joint venture. Don McCabe, a partner in appellee, agreed that he would contribute one-half of the purchase price of the land, to a maximum of $45,000. Mr. Trusch was to contribute the other one-half of the purchase price. Appellee was to harvest the timber on the property, and after that timbering was complete, Mr. Trusch and his wife would be the sole owners of the property.

Mr. McCabe was the successful bidder on the real estate for the amount of $90,000. Mr. McCabe then assigned his right to the property to appellants. In exchange, the parties entered a written contract on August 24, 1989, whereby appellants granted to appellee the right to harvest timber above a certain size on the land for six years.

However, the seller of the property at the auction, the Estate of John H. Benko, did not have clear title to the real estate. Appellants had to institute legal proceedings, which eventually were successful, to procure title to the real estate. During the course of that litigation, they learned that the value of the timber was far in excess of $45,000, the amount Mr. McCabe had told Mr. Trusch it was worth.

Thus, in October, 1992, appellants indicated that they intended to repudiate the contract and tendered a check to appellee in the amount of $9,000, the down-payment appellee had made on the property when Mr. McCabe successfully bid on it at the auction. Appellee instituted this action on March 10,1993.

After the equity court determined that the contract was breached by appellants, it noted that the relief requested by appellee in its complaint, specific performance of the contract and an injunction permitting it to harvest the timber, could not be granted.

Under Pennsylvania law, timber is considered goods. 13 Pa.C.S. § 9105. Under the U.C.C., specific performance will be granted for a sale of goods only where the goods are unique or where other circumstances exist warranting a grant of specific performance. 13 Pa.C.S. § 2716. The equity court indicated that there was no evidence presented at trial to support a finding that the timber on the real estate was unique or that other circumstances existed to justify the remedy of specific performance.

Then, the equity court determined that an award of legal damages for breach of contract was the only proper remedy. It elected to determine the difference between the market price of the timber on the date appellee learned of the breach and the contract price of $45,000. The court scheduled a “special evidentiary hearing to determine the exact date [appellee] learned of the breach and the fair market value of the timber on that date.” Trial court opinion, 1/9/95, at 5. The trial court did not certify the action to the law side of the court, thereby affording appellants the benefit of a jury trial, but instead entered the following order:

ORDER
AND NOW, this 9th day of January, 1995, it is hereby ORDERED and DECREED that JUDGMENT be entered in favor of the plaintiff on the breach of contract claim and on the defendants’ counterclaim.
It is further ORDERED and DECREED that an evidentiary hearing be held to determine plaintiffs damages. The sole issues before the court at the hearing will be the date plaintiff learned of the breach by defendants and to determine the value of the timber on that date.

As noted above in footnote one, this order does not certify the action to the law side; it bifurcates the liability and damages phases of the action. We also observe that appellants were denied their right to a jury trial both as to the damages phase of the action and as to the liability phase since the case proceeded initially as an equity action for specific performance and injunctive relief.

We believe that the Court’s decision in Holiday Lounge, Inc. v. Shaler Enterprises Corp., 441 Pa. 201, 272 A.2d 175 (1971), is dispositive. Therein, as in this case, in its complaint, plaintiff requested only injunctive relief and that type of equitable relief was not available. Our Supreme Court held that the equity court did not err in failing to certify the action to the legal side of the court since the complaint did not contain a prayer for relief in law. The court concluded that certification was not required because the plaintiff requested only equitable relief in its complaint. The court ruled that since no demand for monetary damages was made in the complaint, there was no remedy at law which would satisfy plaintiffs claim. Therefore, the complaint could not be certified to the law side.

Appellee alleges that the trial court properly determined that the general plea in its complaint for “such other and further relief ... as your Honorable Court may deem proper” was sufficient to plead monetary damages. We disagree. Pa.R.Civ.P. 1021(a) requires that a pleading demanding relief “shall specify the relief’ requested. Herein, the only type of relief requested was equitable relief. Nothing in the complaint can be construed as a request for monetary damages, and the equity court improperly awarded them. Holt’s Cigar Co. v. 222 Liberty Associates, 404 Pa.Super. 578, 591 A.2d 743 (1991) (where the only allegation in the complaint was a request for monetary damages pursuant to a liquidated damages clause, equity court did not have jurisdiction to award damages clause, equity court did not have jurisdiction to award damages based on lost profits, which was not pled in complaint); see also Christian v. Johnstown Police Pension FundAss’n, 421 Pa. 240, 218 A.2d 746 (1966).

Appellee relies upon language in Puleo v. Thomas, 425 Pa.Super. 285, 624 A.2d 1075 (1993), whereby we noted that a court in equity has jurisdiction to award damages in addition to providing for equitable relief. Of course, in that case, as in the others upon which appellee relies, equity jurisdiction properly was invoked and the action called for equitable relief in addition to legal relief. See Holt’s Cigar Co. v. 222 Liberty Associates, supra (where plaintiff properly invoked equity jurisdiction initially in a request for injunctive relief, equity court had power to enter monetary award because complaint contained a specific request for monetary award under liquidated damages clause in addition to equitable relief).

Herein, appellee had a cause of action for breach of contract and for monetary damages. Nothing in the facts of this case warrants the grant of any type of equitable relief. Appellee improperly invoked equitable jurisdiction from the inception. It was notified of this by way of appellants’ motion for judgment on the pleadings. The equity court was without power to proceed once it determined that equitable jurisdiction improperly was invoked.

We also reject appellee’s position that appellants waived this issue. Appellants raised the fact that there was no equity jurisdiction by means of a motion for judgment on the pleadings. Appellee should have been aware at that point that equity did not have jurisdiction over this matter which involves purely a legal action for monetary damages. Appellee should have amended its complaint at that point and requested that the matter be certified to the law side of the court. Instead, it elected to proceed solely in equity. Appellants were correct in that motion for judgment on the pleadings. Appellee improperly attempted to invoke equity jurisdiction.

Order reversed. Judgment in favor of Martindale Lumber Company vacated. Jurisdiction relinquished.

      . In the opinions issued in this case, the equity court indicates a number of times that it certified this case from the equity side to the law side. However, certification never occurred.

      . Under the reasoning of this case, it is clear that appellants were not required to object under Pa.R.Civ.P. 1509(c) that appellee had an adequate remedy at law. Since appellee made no request for monetary damages, there was not a remedy at law available to it.

      . The trial court indicates that amendment was unnecessary since it would have granted amendment to plead monetary damages at any time. However, a court does not have the power sua sponte to raise and decide issues. Herein, appellee never asked to amend its complaint; it remains un-amended to date. The court did not have the power sua sponte to raise and decide this case on the basis of something the litigant never asked the court to do. Department of Transportation v. Boros, 533 Pa. 214, 620 A.2d 1139 (1993).


source: Caselaw Access Project

author: TAMILIA, Judge:'

license: Public Domain

text:
    681 A.2d 806
    COMMONWEALTH of Pennsylvania v. Scott Alan WEBSTER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1996.
    Filed July 31, 1996.

      David R. Thompson, Philipsburg, for appellant.
    J. Karen Arnold, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON, and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge:'

Scott Alan Webster appeals the judgment of sentence suspending his operating privileges for ninety (90) days and imposing a $100 fine for underage drinking entered May 4, 1995 following a trial de novo before the Honorable Charles C. Brown, Jr. Appellant now claims there was insufficient evidence presented to find him guilty of the offense.

In reviewing the sufficiency of evidence, this Court must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all elements of the crime beyond a reasonable doubt. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). This standard is equally applicable where the evidence is circumstantial as opposed to direct, provided the combination of the evidence links the accused to the crime beyond a reasonable doubt. Id. Viewed in this light, the evidence establishes that around 11:15 p.m. on January 16, 1995, Pennsylvania State Trooper Michael Britton stopped a vehicle traveling in Phillipsburg, Centre County, after observing it being operated in an erratic manner. The driver was arrested for driving under the influence and Officer Britton thereafter questioned appellant, a passenger in the vehicle, as to his ability to operate the car. At that time he noticed the odor of alcohol coming from appellant’s breath, appellant’s red, bloodshot eyes and the fact he swayed while standing. Appellant admitted he had been drinking and explained to the trooper they recently had left the Country Garden Six-Pack, located in Clearfield County just outside Phillipsburg, where the driver had purchased Miller Lite beer in 12-ounce cans. At least one empty container of this brand of beer was found in the vehicle by the trooper. Finally, identification presented by appellant established he was 20 years of age at the time of the incident.

Appellant now argues the evidence presented was insufficient to find him guilty of “consumption” of an alcoholic beverage pursuant to section 6308(a) which states “[a] person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages.... ” Specifically, appellant claims the Commonwealth failed to prove beyond a reasonable doubt he consumed alcoholic beverages in Centre County and thus the trial court had no jurisdiction to hear the case. Appellant contends the arresting officer presented no evidence as to where the alleged consumption took place and cannot state with any degree of certainty appellant consumed alcoholic beverages in Centre County.

As an initial matter, we note appellant relies on Commonwealth v. Elliott, 8 D. & C. 4th 486 (1990), and Commonwealth v. O’Brien, 8 D. & C. 4th 41 (1990), to support his claim a conviction under section 6308(a) is predicated upon actual consumption and not merely upon the presence of alcohol in the bloodstream. These cases are of no precedential value, we are not bound by the decisions, and instead we rely on applicable, controlling Pennsylvania caselaw.

It is a fundamental precept of law that “ ‘the court has no jurisdiction of the offense unless it occurred within the county of trial ... ’ ” The locus of a crime is always in issue, because the court has no jurisdiction over an offense unless it occurred within the county of trial or unless, by some statute, it need not. For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county. Moreover, in order to base jurisdiction on an overt act, the act must have been essential to the crime, an act which is merely incidental to the crime is not sufficient. We must also look to the nature of the offense and the elements thereof to determine whether the crime was sufficiently related to the locus where the defendant is being prosecuted.

Commonwealth v. McPhail, 429 Pa.Super. 108, 113-14, 631 A.2d 1305, 1311 (1993) (citations omitted).

Looking to the nature of the offense and the elements thereof, it is clear there was a sufficient relationship to Centre County. Appellant was traveling in a vehicle operated by an intoxicated driver when it was stopped approximately two to two and one-half miles inside the Centre County line. Appellant admitted drinking Miller beer which recently was purchased just across the border in Clearfield County. Appellant was visibly intoxicated and at least one empty beer can was found in the vehicle. Clearly, there was sufficient evidence presented, albeit circumstantial, that the fact-finder could conclude appellant had consumed at least part of the purchased beer in Centre County. We find this conclusion even more persuasive given the fact appellant’s testimony at trial did not coincide with his present position on appeal. Rather, he testified he did not consume any alcoholic beverages that evening and further claimed the trooper lied when he testified he noticed the odor of alcohol on his breath. The fact-finder, in this case the presiding judge, is free to believe all, some or none of the evidence presented and to determine the weight to be given each witness’s credibility. Commonwealth v. Fox, 422 Pa.Super. 224, 619 A.2d 327 (1993). Here, the judge chose to believe the testimony of the officer and determined the combination of evidence presented links appellant to the offense beyond a reasonable doubt. McCullum, supra. Appellant’s denial of any involvement in the offenses does not serve to exculpate him on the basis of territorial jurisdiction when facts presented at trial tend to prove otherwise.

Finally, we note, when attempting to ascertain the meaning of a statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Elliott, 410 Pa.Super. 354, 599 A.2d 1335 (1991). We are to presume the legislature did not intend a result that is absurd or unreasonable. Id. To limit the scope of “consumption” in section 6308 to only those situations where a police officer actually viewed the offense, as appellant argues, would lead to an absurd and unreasonable application of the statute. Specifically, for all intents and purposes, it would abolish application of this provision as the majority of evidence in these situations is circumstantial. Seldom does a police officer view first hand a minor with an alcoholic beverage in his hand, much less actually consuming the beverage from the container. Rather, the normal situation, as here, involves a visibly intoxicated minor, empty containers nearby and an admission of some sort on the part of the minor. As it has long-been held, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence, so long as the inferred facts flow, beyond a reasonable doubt, from the facts presented to establish appellant’s guilt or the elements of the crime. Here, the Commonwealth presented sufficient evidence from which the trial judge, as finder of fact, could draw reasonable inferences appellant consumed alcoholic beverages in Centre County, which conclusion we will not disturb on appeal.

Judgment of sentence affirmed.

JOHNSON, J., concurs in the result of this Opinion.

      . 18 Pa.C.S. § 6308.


author: OLSZEWSKI, Judge:

text:
    681 A.2d 809
    ROBEC, INC., T/A Robec Distributors, Appellees, v. Franklin POUL, Jerome J. Shestack and 107 Additional Unknown Partners T/A Wolf, Block, Schorr & Solis-Cohen, Appellants.
    Superior Court of Pennsylvania.
    Argued June 18, 1996.
    Filed Aug. 13, 1996.

      Barry E. Ungar, Carol J. Sulcoski, Philadelphia, for appellants.
    Douglas I. Zeiders, Lansdale, for appellee.
    Before KELLY, EAKIN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On April 12, 1993, appellee Robec, Inc., t/a Robec Distributors (“Robec”) instituted a legal malpractice action against certain named and unknown individuals t/a Wolf Block Schorr & Solis-Cohen (“Wolf Block”), appellants herein. Instantly, we are presented with an appeal from the August 28, 1995 order entered in the Court of Common Pleas of Montgomery County, granting Robec’s motion to compel Wolf Block to produce certain documents for discovery. We remand this matter to the lower court to prepare a statement pursuant to Pa.R.AP., Rule 1925(a).

In its complaint, Robec avers that, in May, 1990, it consulted with Raymond Agran, Esquire, then an associate with Wolf Block, regarding potential credit sales of computer equipment to one of its customers, HCI. Robec further avers that it was incorrectly advised by Attorney Agran that, notwithstanding a blanket hen already held by a financing entity on all of HCI’s assets, it could obtain a first priority security interest in the goods sold to HCI, as well as such an interest in the accounts receivable and cash proceeds resulting from the re-sale of those goods by HCI. Robec claims that it relied upon this advice in deciding to sell equipment to HCI during the period from mid-May through October, 1990. Following such shipments, HCI’s parent company filed for protection under the United States Bankruptcy Code. Robec asserts that, as a result of its reliance upon the alleged erroneous advice of counsel, it sustained losses when the financing company claimed entitlement to first priority over the accounts receivable and cash proceeds generated from the re-sale of inventory purchased from Robec. Robec also alleges that Jason Shargel, Esquire, then a partner at Wolf Block, improperly advised appellee that Attorney Agran was an expert in the area of the law in question.

Wolf Block denies that it counseled Robec as alleged. Instead, Wolf Block contends that it properly advised Robec about the risk involved with the credit sale transaction and, further, that Robec was apprised of the various methods by which it could minimize this risk of loss if it nevertheless decided to engage in the transaction. Claiming that Robec ignored this advice and used security agreements drafted by an unknown party, Wolf Block has counterclaimed for unpaid legal fees and costs.

On March 7, 1995, Robec filed a motion seeking to compel Wolf Block to produce various documents which it had previously refused to disclose. These documents are Attorney Agran’s personnel file and all of his performance evaluations as well as the personnel file for Attorney Shargel and his performance evaluations from May 1, 1990. Based upon a subsequent in camera review of the documents in question, the trial judge entered an order on August 28, 1995, directing Wolf Block to disclose to Robec the requested papers, subject to certain limited enumerated exceptions and redactions. Wolf Block then filed a petition seeking permissive appeal pursuant to Pa.R.A.P., Rule 312. We denied this request in a per curiam order dated February 8, 1996, and are now presented with an appeal wherein appellant seeks review as a matter of right under Pa.R.A.P., Rule 313.

In this appeal, Wolf Block raises three issues for our review. First, Wolf Block challenges the relevancy of the documents at issue to the action instituted against it and, also, the trial court’s determination that these documents could lead to the admission of evidence at trial. Next, Wolf Block claims that the trial court erred in failing to recognize compelling public policy reasons against the disclosure of employee personnel files and performance evaluations. Finally, Wolf Block argues that the trial court erred in failing to properly balance the law firm’s interest in the confidentiality of the documents against any minimal relevance that they may have to Robec.

Before we may address these substantive challenges to the lower court’s discovery order, we must determine whether such order is the proper subject of appellate review. R.W. v. Hampe, 426 Pa.Super. 305, 626 A.2d 1218 (1993); Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986). “As a general rule, this Court will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts.” McManus v. Chubb Group of Ins. Companies, 342 Pa.Super. 405, 410, 493 A.2d 84, 87 (1985). “In the absence of unusual circumstances, we will not review discovery ... orders prior to final judgment in the main action.” Id.

It is well established that an appeal lies from a final order unless otherwise provided by statute. 42 Pa.C.S.A. § 742; Commonwealth v. Miller, 406 Pa.Super. 206, 207-10, 593 A.2d 1308, 1309 (1991). Since the August 28, 1995 order did not end the litigation nor dispose of the entire case, it is not a final order. Id. Accordingly, appellants seek our review of this interlocutory order under the so-called collateral order doctrine. See Pa.R.A.P., Rule 313. “Pursuant to this principle, an [interlocutory] order may be appealed if: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” In re Estate of Israel, 435 Pa.Super. 347, 353, 645 A.2d 1333, 1336 (1994). See also Hampe, 426 Pa.Super. at 309, 626 A.2d at 1219. All three elements must be satisfied for an order to qualify for review under the doctrine. Id. Additionally, we note that

[n]arrow construction of the collateral order doctrine is required to protect the integrity of the fundamental legal principle that only final orders may be appealed. To hold otherwise would allow the collateral order doctrine to swallow up the final order rule, causing litigation to be interrupted and delayed by piecemeal review of trial court decisions.

Watson v. City of Philadelphia, 665 A.2d 1315, 1317 (Pa. Cmwlth.1995).

In an attempt to satisfy the second prong of the collateral order doctrine, Wolf Block asserts a right to confidentiality of the requested documents. Wolf Block does not, however, gain the right to appeal merely as a result of such a claim. The importance of the asserted right must be established. In re Estate of Israel, supra. While the courts of this Commonwealth have previously recognized that certain rights to confidentiality are sufficient to satisfy the requirements of the collateral order doctrine, the issue of whether a claimed right to confidentiality of personnel files and performance evaluations does so remains unresolved. Moreover, we find that the record in the case sub judice is inadequate for us to make such a determination presently.

Our review of the briefs indicates that there is significant dispute as to the content of the documents which are the subject of the August 28, 1995 order. Notably, Wolf Block asserts that the documents ordered to be disclosed were generated both before and after the events at issue. Further, Wolf Block argues that none of the performance evaluations or personnel files make reference to Robec or the HCI transaction. Robec, however, contends that the reports are for relevant periods and also that they may indeed contain references to either it or the transaction which gave rise to the cause of action against Wolf Block. Clearly, without any indication of the contents of the documents at issue, we are not presented with a sufficiently specific question to address. Any attempt, therefore, on our part to resolve the issue of whether the right to confidentiality claimed by Wolf Block is sufficient to satisfy the collateral order doctrine would be general and without reference to the specific facts of the case before us. Consequently, if we were to decide this matter, we would be rendering an advisory opinion. See Sedat, Inc. v. Fisher, 420 Pa.Super. 469, 475-77, 617 A.2d 1, 4 (1992) (“An advisory opinion is one which is unnecessary to decide the issue before the court, and it is true that the courts of this Commonwealth are precluded from issuing such advisory opinions.”).

Unfortunately, no trial court opinion was filed in this case pursuant to Pa.R.A.P., Rule 1925(a) despite Wolf Block’s filing, on September 27, 1995, of a concise statement of matters complained of on appeal. This Rule requires the trial judge, upon receiving notice of an appeal from his or her order, to file, of record, an opinion setting forth the reasons for its order, unless such reasons already appear of record. The trial judge in this case has merely written a letter to the Superior Court prothonotary in which she states, in pertinent part:

I have not as yet written an opinion inasmuch as I believe this is an interlocutory matter.... I reviewed in camera close to 1[,]000 documents and sustained objection to the production of some, which I felt were totally irrelevant to the issues at bar, and overruled the objections to the majority of them, with deletions to protect client privilege. Inasmuch as the crux of the issue is the competency of the legal advice given, I have no doubt in my mind that the information sought is relevant and could lead to the admission of evidence at trial.

Based upon the nature of the claims raised on appeal and the dispute regarding the contents of the documents, as discussed supra, we find this to be an inadequate compliance with Rule 1925(a). Indeed, “[w]e are surprised that the trial judge failed to follow our Rules of Appellate Procedure, as [Rule 1925(a) ] enables us to conduct effective and meaningful review of lower court decisions.” Commonwealth v. Thomas, 449 Pa.Super. 646, 649, 674 A.2d 1119, 1120 (1996). In order to better understand the specific reasons for the court’s order, we will remand this case for a more complete statement of reasons for the trial court’s order. See Commonwealth v. Pate, 421 Pa.Super. 122, 617 A.2d 754 (1992); Commonwealth v. Kinsel, 403 Pa.Super. 67, 588 A.2d 34 (1991). The trial judge, in apprising us of the reasons for its order, should address the relevant content of the documents in question with reference to the issues raised by Wolf Block in this appeal.

Remanded to the Court of Common Pleas of Montgomery County for preparation of a statement pursuant to Pa.R.A.P., Rule 1925(a) consistent with this opinion. Jurisdiction relinquished.

KELLY, J., concurs in the result.

      . See, e.g., Hutchison v. Luddy, 414 Pa.Super. 138, 606 A.2d 905 (1992) (presented with an order directing the Roman Catholic Church to produce for discovery certain records which the church deemed secret, we found that an asserted right of confidentiality pursuant to 42 Pa.C.S.A. § 5942, recognizing a privilege for communications made in confidence to a clergyman, was too important to be denied review); Miller, supra; Stenger v. Lehigh Valley Hosp. Center, 386 Pa.Super. 574, 563 A.2d 531 (1989).

      . We recognize that an inquiry into the existence of a right to confidentiality of the personnel information at issue differs from an evaluation of an assertion of such a right for purposes of satisfying the collateral order doctrine. While a complete analysis of the asserted right of confidentiality is not required to satisfy the latter, we note that we should, nevertheless, be presented with a sufficiently specific issue in addressing such.


author: DEL SOLE, Judge:

text:
    681 A.2d 813
    Darlene S. WEINZETL v. Richard M. WEINZETL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1996.
    Filed Aug. 14, 1996.

      William L. Stang, Pittsburgh, for appellant.
    Michael D. Gallagher, Butler, for appellee.
    Before DEL SOLE, HUDOCK and BROSKY, JJ.
   DEL SOLE, Judge:

This matter comes before us as a result of a request filed by Appellee/wife seeking to have the court determine the value of Appellant/husband’s pension and its manner of distribution. Because of the procedural irregularities found in this case, this court does not have an opportunity to review the ultimate issue concerning the pension.

The relevant procedural history begins with an Order of April 22, 1994, which was docketed April 25, 1994 to which Wife filed a petition for reconsideration. The court, in response, issued an Order dated May 18,1994 and docketed May 24, 1994 which expressly granted reconsideration. No action was noted on the docket for over one year.- Then, following a phone call from Wife’s attorney the court issued a reconsidered Order dated May 25, 1995. The present appeal has been taken from the May 1995 order. The trial court attempted to explain its delay in issuing the order following reconsideration in an Opinion written in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), Pa.R.A.P., 42 Pa.C.S.A. The trial court stated that it had made a decision in July of 1994, however due to clerical errors by court staff, the decision was misfiled and never docketed or sent to the parties.

The Rule governing the procedure in this case is found in Pa.R.C.P., No. 1930.2, 42 Pa.C.S.A. It provides in relevant part:

(b) A party aggrieved by the decision of the court may file a motion for reconsideration in accordance with Rule of Appellate Procedure 1701(b)(3). If the court does not grant the motion for reconsideration within the time permitted, the time for filing a notice of appeal will run as if the motion for reconsideration had never been filed.
(c) The reconsidered decision, except as set forth in subdivision (e), shall be rendered within 120 days of the date the motion for reconsideration is granted. If it is not rendered within 120 days, the motion shall be deemed denied.
(d) The time for filing a notice of appeal will begin to run anew from the date of entry of the reconsidered decision, or, if the court does not enter a reconsidered decision within 120 days, from the 121st day.
(e) If the court grants the motion for reconsideration, and files same, within the 30 day appeal period, it may, at any time within the applicable 120 day period thereafter, issue an order directing that additional testimony be taken. If it does, the reconsidered decision need not be rendered within 120 days, and the time for filing a notice of appeal will run from the date the reconsidered decision is rendered.

Pa.R.C.P., No. 1930.2, 42 Pa.C.S.A.

In the present situation the court did grant reconsideration within the time permitted, Rule 1930.2(b), but did not order additional testimony or take any further action within the next 120 days, Rule 1930.2(e). Therefore, according to Rule 1930.2(c) the motion shall be deemed denied, and the 30 day time for appeal ran from 121st day, Rule 1930.2(d). Thus, since the court granted reconsideration on May 24, 1994, it had 120 days in which to act and either direct that additional testimony be taken or issue a new reconsidered order. Neither action was taken within 120 days and on the 121st day, or September 22, 1994, the motion was deemed denied. The aggrieved party then had 30 days in which to file an appeal. In this case, no appeal was filed until after the court issued a new reconsidered order approximately one year after granting reconsideration. This 1995 order, which was rendered well beyond the 120 day time period in which the court is to act, is a nullity, and the appeal from that order will not be entertained.

The trial court in its Opinion has attempted to offer reasons why the Rule should not apply in this case. It notes that there was a clerical error on the part of court staff and that it would be “inequitable to permit a judicial error to preclude Wife from further proceeding in this case.” Trial court opinion, 6/24/95 at p. 5. The court wrote: “In this case, the reconsideration request was filed timely by Wife and the court fully intended to issue a timely order. Wife did not act in any way to delay the case and, to this point, has proceeded appropriately.” Id. at 4.

Whether because of clerical error, as in this case, or inattentiveness by the court, Rule 1930.2, applies and directs that where a reconsidered decision is not rendered within 120 days, the reconsideration motion is deemed denied. Wife, if she so desired, should have appealed that “denial” within 30 days. It was not appropriate for Wife to wait beyond the 120 day period and then contact the court regarding a decision. When no decision was rendered by the 121st day, the proper course was for Wife to file an appeal. As stated in the explanatory comment: “If the court grants the motion for reconsideration, it has 120 days in which to enter a reconsidered decision. The appeal period begins to run anew upon the entry of the reconsidered decision, or on the 121st day if the decision is not entered within the 120 day period.” See Explanatory Comment — 19U, following Rule 1930.2. Wife’s inaction in failing to take an appeal following the 121st day cannot be excused regardless of the reason why a new reconsidered order was not entered on the docket before that day. Wife had the ability to view the docket to see if an order had been entered. When none was filed, a direct appeal should have been taken.

Accordingly, we vacate the Order of May 25, 1995, and hold that the previous Order of April 22, 1994 is final and dictates the respective rights of the parties regarding the Husband’s pension.

Order vacated. Jurisdiction relinquished.

      . The court's order expressly granting reconsideration was timely signed and docketed within 30 days of the date upon which the reconsidered order was docketed. See Pa.R.A.P., 108, 42 Pa.C.S.A., Pa.R.Civ.P. 236(b), 42 Pa.C.S.A. and Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912 (1989).

      . We note that under Pa.R.A.P. 1701 when a trial court expressly grants reconsideration of a final order, the time for filing an appeal is postponed until the decision on reconsideration is entered. This is the general procedure. However, where a Rule of Civil or Criminal procedure specifically sets forth different time restrictions, the specific requirements will supersede the general requirement.

      . This rule was adopted March 30, 1994, and became effective July 1, 1994, while this matter was pending. Neither party or the trial court dispute its application to the facts of this case.


author: POPOVICH, Judge: DEL SOLE, Judge,

text:
    681 A.2d 815
    Darlene L. VARGO, an Individual and as Administratrix of the Estate of Andrew A. Vargo, Deceased, Appellee, v. KOPPERS COMPANY, INC., Engineering & Construction Division a/k/a Koppers Industries, Inc., Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1996.
    Filed Aug. 14, 1996.

      Kathleen J. Cabraja, Pittsburgh, for appellant.
    William R. Caroselli, Pittsburgh, for appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of October 24, 1995, entered in the Court of Common Pleas of Allegheny County, in favor of appellees in the amount of $1,154,631.22. Herein appellant contends: 1) The lower court erred when it refused to grant judgment n.o.v. on the grounds that appellees’ suit was barred by Pennsylvania’s statute of repose; 2) The verdict was against the weight of the evidence; 3) The lower court improperly excluded expert testimony relating to decedent’s intoxication at the time of the accident; and 4) The lower court improperly charged the jury regarding the issue of causation.

Upon review, we find that the trial court committed reversible error when it ruled that the statute of repose was inapplicable to the present case. Accordingly, we reverse and remand for entry of judgment in appellant’s favor.

Appellant first asserts that the lower court erroneously refused to grant its motion for judgment n.o.v. which alleged that appellees’ suit was barred by the statute of repose. The Pennsylvania Supreme Court set forth the proper standard for reviewing a denial of motion for judgment n.o.v. in Wenrick v. Schloemanrir-Siemag, 523 Pa. 1, 564 A.2d 1244 (1989), as follows:

[T]he proper scope of review for an appellate court examining a denial of judgment n.o.v., according to the longstanding rule, is whether, reading the record in the light most favorable to the verdict winner and granting him the benefit of every favorable inference, there is sufficient competent evidence to support the verdict.

Id., 564 A.2d at 1246.

This denial of motion for directed verdict will be reversed only if there is “an abuse of discretion or error of law.” Brown v. Philadelphia Asbestos Corp., 433 Pa.Super. 131, 639 A.2d 1245, 1248 (1994).

Applying the above-stated standard of review, the record reveals the following: This wrongful death and survival action arose out of an industrial accident which took place on September 14, 1988, at the USX Coke Works located in Clairton, Pennsylvania. Appellees’ decedent was employed as a door cleaner/jamb cutter when he was pinned between a support beam and a coke oven door as the door was being moved by the No. 6 door machine. The decedent died from the injuries he sustained in the accident.

Appellees’ expert witness established that the No. 6 door machine was designed, manufactured and constructed by appellant 85 years prior to the subject accident. The appellees’ theory of liability was that the No. 6 door machine was defective because of an accessible pinch point created when the door extractor arm moved toward the battery oven opening. Appellees argue that the pinch point was created because an elevator was not installed on the door machine as the original design required.

The operation of the door machine in question was performed by a two-worker team, an operator and a door cleaner, in a standard sequence of maneuvers. The door machine operator moved the door machine along a rail system and operated the equipment controls. This involved operation of the extractor arm which unlocked and removed the coke oven door to its cleaning position in front of the heat shield and then rotated the door back to the oven opening for replacement. The decedent was responsible for cleaning the sides of the door and the oven opening after it had been pulled into the pit area by the extractor arm. The door machine serviced a number of coke ovens and moved from oven to oven on a rail system.

The No. 6 door machine was necessary for the operation of the coke oven battery and was assembled on-site as part of the battery construction. In general, door machines are designed and constructed to operate on specific batteries only. The door machines are temporarily assembled in the shop for a customized fit, then disassembled and shipped in pieces to the job site for construction on the rails on which they eventually operate. Complete installation requires a fitting of the machine to the batteries utilizing a procedure whereby the battery front rails are not finally tied in to the rail system until the batteries are heated and expansion has stabilized. In the USX Coke Works, the oven doors themselves were 18" deep, 20-24" wide, several stories high, and weighed more than five tons, while the door machines were 20-30' long, 15-16' high and 7-8' wide.

At trial, the jury found in favor of appellees and awarded $55,000 under the Wrongful Death Act and $850,000 under the Survival Act. Appellant then filed a Motion for Post-Trial Relief including a Motion for Entry of Judgment for Defendant and a Motion for New Trial. In the Motion for Entry of Judgment, appellant maintained that a Pennsylvania statute of repose, codified at 42 Pa.C.S.A. § 5536(a), extinguished actions based on improvements to real property brought twelve years after the completion of the improvements. In response, appellees filed a Motion to Mold the Verdict to Include Damages for Delay Pursuant to Pa.R.C.P. 238, which would increase the verdict by $249,631.22. On October 13, 1995, the trial judge denied appellant’s Motion for Post-Trial Relief, including its within Motion for Entry of Judgment and Motion for New Trial. Additionally, the trial judge allowed the verdict of $905,000 to stand and granted appellees’ Motion to Include Damages for Delay in the amount of $249,631.22. This appeal followed.

In a civil action, the statute of repose enacted by the Pennsylvania legislature bars causes of action under the following circumstances:

(a) General Rule. Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within twelve (12) years after completion of such improvements to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).

42 Pa.C.S.A. § 5536(a).

The statute of repose does not merely bar a plaintiffs right to remedy, but it completely abolishes the cause of action itself. Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 434 A.2d 1243, 1248 (1981). The statute applies where the party moving for its protection proves that: (1) what was supplied was an improvement to real estate; (2) more than twelve years elapsed between the completion of the improvement and the injury; and (3) the activity of the moving party was within the class which is protected by the statute. McConnaughey v. Building Components, Inc., 536 Pa. 95, 637 A.2d 1331, 1333 (1994); See, McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989).

The court below held that under this three-prong test, the second and third elements of the test had been satisfied. The record established that construction of the coke batteries, which included installation of the door machines, was completed 35 years prior to the accident in question. The lower court ruled that appellant was within the class protected by § 5536(a), as it designed, manufactured and constructed the batteries with all attendant operating fixtures, including the rails and door machines, all of which were necessary for the operation of the battery ovens. However, the lower court held that the No. 6 door machine was not an improvement to real property within the meaning of the statute of repose. Since the lower court ruled that appellant did not satisfy the first prong of the test, it rejected appellant’s statute of repose defense.

Presently, it is undisputed that more than twelve years have elapsed since the door machine was designed and constructed on its current location. Thus, we must first determine whether appellant is a member of the class protected by the statute of repose and whether the No. 6 door machine is an “improvement to real property”.

The court below noted that 42 Pa.C.S.A. § 5536(a) is generally designed to protect parties such as architects, engineers and contractors and does not apply to manufacturers of products. See, McCormick, 522 Pa. 520, 564 A.2d at 909-10. However, Pennsylvania courts have further specified that manufacturers who perform acts of “individual expertise” akin to those commonly performed by builders may also benefit from the statute’s defense. See, McConnaughey, 536 Pa. 95, 637 A.2d at 1334. Thus, a party who simply manufactures a product is outside the protection of the statute, see, Schmoyer by Schmoyer v. Mexico Forge, Inc., 538 Pa. 1, 645 A.2d 811 (1994), overruling Schmoyer by Schmoyer v. Mexico Forge, Inc., 423 Pa.Super. 593, 621 A.2d 692 (1993), but a party who manufactures and is involved in the design and construction of the product may use the defense. McConnaughey, 536 Pa. 95, 637 A.2d at 1334. Since the lower court determined that appellant actually designed and worked with. USX in the installation of the door machine, it concluded that appellant was within the class protected by § 5536(a), even though appellant also manufactured the door machine. We agree-with the lower court’s conclusion that appellant is a member of the class protected by the statute of repose.

We now turn to appellant’s contention that the No. 6 door machine is an improvement to real property and agree with appellant’s assertion that the door machine was an improvement to real property under Pennsylvania law. Accordingly, we hold that the trial court committed reversible error when it denied appellant the statute of repose defense.

Although no Pennsylvania court had addressed the specific issue of whether a coke oven door machine constitutes an improvement to real property, the reasoning of the Pennsylvania Supreme Court in McCormick, supra, and this court in Radvan v. General Electric Company, 394 Pa.Super. 501, 576 A.2d 396 (1990) is controlling. In McCormick, our supreme court considered the application of § 5536(a) in a products liability action and held that a belt conveyor which was part of a coal delivery system and which was integrated into the construction of the facility was an improvement to real property. In Radvan, this court followed the holding of McCormick and applied § 5536(a) to bar an employee’s products liability action on the grounds that a side trim machine was an improvement to real property. The lower court distinguished McCormick and Radvan from the immediate case because the equipment involved in McCormick and Radvan was stationary, i.e., somehow affixed to the realty. In contrast, the trial court noted that the No. 6 door machine moved on wheels and serviced several coke ovens. Consequently, the court below determined that the door machine was not an improvement under McCormick and Radvan.

Notwithstanding the fact that the No. 6 door machine moved on wheels, it is this court’s opinion that this distinction is not dispositive in the present case. In McCormick, our supreme court embraced the following definition of “improvement” from Black’s law dictionary:

[A] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.

522 Pa. 520, 564 A.2d at 909.

Applying this familiar interpretation of “improvement”, we find that the No. 6 door machine satisfies this definition. According to the record established at trial, the door machine constituted a substantial part of the oven battery construction. The door machine was custom-designed to accommodate the design of the doors and latches of the batteries on which it operated and was integrated into the construction of the USX facility. Together, the oven battery and the oven door machine created a production facility for the processing of steel. The coke oven battery cannot operate without the concurrent operation of the coke oven door machine. Undoubtedly, the No. 6 door machine enhanced the utility of the coke batteries within the USX Coke Works facility, and it can easily be characterized as a valuable addition to the industrial realty. Thus, we find that the trial court erred when it held that the No. 6 door machine did not constitute an improvement to real property under the McCormick standard.

The trial court was amiss when it distinguished Radvan from the facts of the present case. The Radvan Court, using the McCormick standard, held that a side trim machine was an improvement to real property because, “it had been in place for more than thirty years; it had never been moved since its installation; it was bolted to the floor and was connected to conduit piping for power; and ... its ‘weight was in the dozens of tons and it would have been very difficult to dismantle.’ ” Radvan, 394 Pa.Super. 501, 576 A.2d at 397. It is this court’s opinion that the No. 6 door machine is analogous to the side trim machine at issue in Radvan. But for the fact that the door machine moved on wheels and served more than one coke oven battery, it has remained affixed to the same rail system within the USX Coke Works facility since its assembly on-site in the early 1950’s. Although the door machine was not bolted in place as the side trim machine was, its movement was limited to the confined area of the rail system upon which it was attached. Further, the record reflects that the large size and substantial weight of the door machine necessitated on-site repairs and maintenance. We thus find that the trial court’s interpretation of Radvan was erroneous. Despite the fact that the No. 6 door machine was movable from one part of the battery to another, it was substantially affixed to the USX facility in such a way as to constitute an improvement to real property.

We also reject the lower court’s reliance upon our supreme court’s decision in Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994), to determine that the No. 6 door machine was not a fixture within the USX Coke Works facility. Under Noll, a fixture is, by definition, an improvement to real property. Id., 643 A.2d at 87. In Noll, plaintiff was injured when he dived from a starting block into a swimming pool. Plaintiff then commenced an action against the manufacturer of the starting blocks. Our supreme court ruled that the starting blocks were not fixtures and refused to apply § 5536(a), since the starting blocks were not permanently attached to the pool, they were not necessary or essential to the use of the property as a swimming pool, they were removable and removal would not cause damage to the pool. Id., 643 A.2d at 89.

The Noll court then noted that for purposes of statute of repose analysis, the “objective intent of the parties ... should be considered in determining whether an object has become a fixture for the purposes of § 5536.” Id., 643 A.2d at 88. The court outlined various factors to be considered when determining whether an object is a fixture:

[A] court must make an objective determination of whether an object is a fixture for the purposes of § 5536. The considerations in making such a determination may include: the degree to which and manner in which the object is attached to real property ... the ease of removing the object ... whether the object may be removed without damaging the real property.... whether the object is necessary or essential to the real property ... and the conduct of the party and whether it evidences an intent to permanently attach the object to the realty----

Id. (citations omitted)

After reviewing the criteria listed in Noll, the court below concluded that the No. 6 door machine operated on a track with its own wheels, was capable of being moved or completely relocated without damage to the real property itself and was not permanently attached to any one part of the coke oven battery. Thus, it was not a fixture.

However, we conclude that the immediate case must be distinguished from Noll. The fact that the No. 6 door machine was confined to the rail system for over 35 years prior to the accident in question objectively demonstrates an intent to affix the door machine permanently to a particular area within the USX Coke Works facility. The door machine was also necessary to the use of the property as a steel manufacturing facility. Unlike a swimming pool, which is fully operable without starting blocks, a coke oven battery is inoperable without a door machine. We therefore conclude that the No. 6 door machine was clearly a fixture as defined by the objective standards established in Noll.

The court below also misapplied the tax assessment case of In Re: Borough of Aliquippa, 405 Pa. 421, 175 A.2d 856 (1961) when it determined that the No. 6 door machine was not “necessary or essential to the real property.” In Aliquippa, the Pennsylvania Supreme Court reviewed the issue of improvements to real property in the context of the tax assessment law. Focusing on the intent of the legislature in enacting the tax assessment law, our supreme court found that the legislature desired to remove all machinery from real estate taxation as an incentive to the development of industries within the state of Pennsylvania. Id., 175 A.2d at 860-61. Our supreme court refused to apply the common law doctrine of fixtures when it determined that coke batteries were not improvements to real property for tax assessment purposes. The high court also distinguished improvements which were used directly in the manufacturing process from improvements which benefited the land generally. Id., 175 A.2d at 861. Specifically, our supreme court held that coke ovens did not benefit the land generally but were part of the manufacturing process. Thus, they were not fixtures for the purposes of real estate taxation.

In the immediate case, the lower court concluded incorrectly that Aliquippa was dispositive on the issue of whether the No. 6 door machine was an improvement to real property. Citing Aliquippathe lower court determined that by implication the No. 6 door machine did not benefit the land generally, and it was therefore not essential to the USX realty. The court below concluded that because the door machine benefited only the “particular manufacturer present on the land”, the door machine was not an improvement covered by § 5536(a).

To the contrary, we find that the lower court’s reliance on Aliquippa was misguided. The legislative intent behind a tax assessment statute differs significantly from the legislative intent behind a statute of repose. In Adair v. Koppers Co., Inc., 741 F.2d 111 (6th Cir.1984), the United States Court of Appeals for the 6th Circuit interpreted the applicability of Ohio’s statute of repose to an industrial accident involving a pulley head and conveyer belt which was part of a coke plant designed and built by Koppers. The plaintiff argued that the equipment on which he was injured was not an “improvement to real property” under the statute of repose. The Federal Appeals Court, in deciding whether the equipment in question met the definition of “improvements to real property”, refused to apply an Ohio tax provision (similar to that applied in Aliquippa) because of the difference in legislative intent behind the statute of repose and the taxation statute. While the tax provision relating to “land and improvements thereon” was written in the context of fostering economic growth, the statute of repose provision was enacted to extend “special protection from stale litigation and extensive liability for the design or builder of ‘an improvement to real property.’ ” Id. at 113. Despite the provision which provided that certain fixtures were not improvements to real property for taxation purposes, the Court of Appeals ruled that the equipment in Adair was an improvement to real property for the statute of repose analysis. We concur with the réasoning adopted by the Sixth Circuit and find that the lower court’s reliance on Aliquippa was improper.

Finally, we find that the reasoning adopted in First National Bank of Mount Carmel v. Reichneder, 371 Pa. 463, 91 A.2d 277 (1952) is instructive. In Reichneder, the Pennsylvania Supreme Court ruled that the law of fixtures, as it related to industrial mortgages, was helpful in determining when industrial equipment became part of the real property so that it constituted a fixture within the industrial facility. The Court noted that under the integrated industrial plant doctrine:

[NJothing but a passive regard for old notions could have led them [the courts] to treat machinery as personal property when it was palpably an integrant part of a manufactory or mill, merely because it might be unscrewed or unstrapped, taken to pieces, and removed without injury to the building. * * * Whether fast or loose * * * all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for a part of the freehold____ [T]he question is not whether this [equipment was] bolted and strapped to the floor and ceiling, for if [it was] a necessary part of the machinery for carrying on the business of the machine shop, [it] belonged to the manufactory, whether bolted to the floor or not ... [and] “the criterion of a fixture depends on the business for which the premises are used. A fixture in a manufactory, mill or colliery may have no adaptation to other kinds of business. Although not attached, yet, if it be designed for the convenience of trade on the premises, and be so used, or subject to be called into use at any time, it becomes a fixture. If the article is indispensable in carrying on the specific business, it becomes part of the realty.”
“The Pennsylvania rule is that a chattel placed in an industrial establishment for permanent use, and necessary to the operation of the plant becomes a fixture, and as such is part of the real estate, although not physically attached thereto; * * *. Whatever is a necessary part of the machinery for carrying on the business is a fixture, irrespective of the manner of its attachment.” ...

Id., 91 A.2d at 278-79 (citations omitted).

Thus, under the Reichneder standard, the No. 6 door machine clearly is a fixture since it is indispensable in carrying on the manufacturing of steel at the USX Coke Works facility. The simple fact that it moved between several coke ovens on a rail system does not eliminate its status as a fixture. Accordingly, we find that appellant is entitled to the protection of the statute of repose.

In sum, we hold that appellant is entitled to the statute of repose defense codified in 42 Pa.C.S.A. § 5536(a). Appellees’ cause of action against appellant is thereby barred. We find that the No. 6 door machine was a “fixture” and constituted an improvement to real property as defined by the statute. We also find that more than twelve years have elapsed between the completion of the improvement and the injury and that appellant was within the class protected by the statute. Accordingly, we remand the immediate case to the lower court for entry of judgment in appellant’s favor.

Judgment reversed. Case remanded for entry of judgment in appellant’s favor. Jurisdiction relinquished.

DEL SOLE, J., files a Dissenting Opinion.

DEL SOLE, Judge,

dissenting.

I cannot agree that the coke oven door machine is an improvement to real property. I would therefore affirm the trial court’s refusal to enter judgment in favor of Appellant.

Appellant’s primary argument on this point centers on the size of the door machine. However, while that may be a factor to consider, it is not determinative. In Schmoyer v. Mexico Forge, Inc., 423 Pa.Super. 593, 621 A.2d 692 (1993), reversed on other grounds, 538 Pa. 1, 645 A.2d 811 (1994), a playground ride, which is considerably smaller than the door machine, was found to be an improvement to real property because it was anchored in concrete and embedded in the ground. The machine in question here, however, is not attached to the real property. It moves on rails and is capable of being relocated without damage to the real property. It is not attached to the coke oven battery in any way and is, in fact, moved to a separate area for repairs and maintenance. It is akin to a railroad car in that it moves from place to place on tracks similar to railroad tracks. Surely, one would not consider an Amtrak car, for example, to be an improvement to all the real property over which it passes. Prior cases holding the statute applicable involved equipment which was affixed to the real property and stationary. See, e.g., McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989) (belt conveyor component of coal delivery system). Here, the machine itself is not affixed to the real property; the rails on which it travels may be but the machine itself is .not. The door machine is simply a very large piece of machinery, but is not an improvement to real property.

Moreover, in my opinion, the concept that this particular statute is a statute of repose needs to be re-examined. A statute. of repose completely abrogates a cause of action whereas a statute of limitations merely sets a time limit within which an action on a cause of action must be commenced. Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971). A statute of limitations must be pleaded as an affirmative defense whereas a statute of repose is not waived by the failure to plead it but may be raised by a motion for nonsuit, directed verdict or judgment N.O.V. First Pool Gas Coal Co. v. Wheeler Run Coal Co., 301 Pa. 485, 152 A. 685 (1930).

In Freezer Storage v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), our Supreme Court, in discussing the predecessor statute, noted that the statute eliminated a cause of action, thus making it a statute of repose. This court thereafter relied on Freezer Storage v. Armstrong Cork Co. as precedent for holding that the present statute is also a statute of repose. Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981). Subsequent cases have referred to the Mitchell holding with little or no discussion. Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994); Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 539 A.2d 360 (1988); but see, Altoona Area School Dist. v. Campbell, 152 Pa.Cmwlth. 131, 618 A.2d 1129 (1992).

The Mitchell court did not note any differences between the two statutes, merely stating that the prior statute was “substantially reenacted” as 42 Pa.C.S. § 5536. There is, however, a very significant difference between the two statutes. The predecessor statute read, in relevant part: “No action ... shall be brought.... ” 12 P.S. § 65.1 (repealed July 9, 1976, P.L. 586, effective June 27, 1978). The present statute states that an action “must be commenced.” 42 Pa.C.S. § 5536. This is the precise language used in the various statutes of limitation.

Of the eleven statutes contained in the chapter on limitation of actions, all use the phrase “must be commenced” or “shall be commenced.” These include the six-month statute of limitations for setting aside a judicial sale and establishing a deficiency judgment, 42 Pa.C.S. § 5522, the one-year statute of limitations for libel and slander and actions on bonds, 42 Pa.C.S. § 5523, the two-year statute of limitations for tortious conduct, 42 Pa.C.S. § 5524, the four-year statute of limitations for contract actions, 42 Pa.C.S. § 5525, the five-year statute of limitations for specific performance, redemption and trusts in real property, 42 Pa.C.S. § 5526, the fifteen-year statute of limitations for escheat actions, 42 Pa.C.S. § 5528, the twenty-year statute of limitations for instruments in writing under seal, 42 Pa.C.S. § 5529, and the twenty-one year statute of limitations for possession of real property, 42 Pa.C.S. § 5530, as well as the catch-all statute of limitations of six years for actions not otherwise specified, 42 Pa.C.S. § 5527. All of these statutes of limitation use the very same language used in § 5536, the statute involved here.

The only statutes which are different are 42 Pa.C.S. § 5537 and § 5538 which concern land surveying and landscape architecture. Both of these statutes include the additional language that an action not commenced within the time period “shall be forever barred.” It is this language which differentiates these two statutes from the remaining ones and which is an immediate indication that § 5537 and § 5538 are statutes of repose rather than statutes of limitation. Section 5536 contains no such language. The language of § 5536 is identical to the language of the statutes of limitation and is not the same as the language of the statutes of repose. The legislature has specifically stated, in § 5537 and § 5538, that it intends to abrogate the cause of action rather than simply set a time limit for commencing an action. It has not indicated such an intent in § 5536 but has merely set forth a statute of limitations.

A statute of limitations is, of course, an affirmative defense which must be pleaded or it is waived. Stahl v. Hilderhoff, 432 Pa. 179, 247 A.2d 582 (1968); Fudula v. Keystone Wire & Iron Works, 283 Pa.Super. 502, 424 A.2d 921 (1981). Appellant did not plead the statute as a defense. Although it appears that there may have been some discussion of the statute prior to trial, the first record mention of § 5536 is when Appellant moved for a nonsuit after Appellee presented her case. Appellant should not be permitted to raise an affirmative defense at that stage of the trial.

For all of these reasons, I would affirm the judgment and therefore must respectfully dissent from the majority decision.

      . Having determined that appellees' cause of action was barred by the statute of repose, we need not address appellant's remaining issues.

      . In appellee’s brief, Vasquez v. Whiting Corp., 660 F.Supp. 685 (E.D.Pa.1987) is cited to support the proposition that appellant may not assert the statute of repose merely because the door machine was assembled on-site. In Vasquez, the United States District Court held that the manufacturer of a crane which was assembled on-site as an industrial facility was not entitled to the protection of § 5536(a). However, the manufacturer in Vasquez played no role in the design and installation of the crane. Id. at 686. Thus, we find that the immediate case is distinguishable from Vasquez since appellant played the primary role in the design and installation of the No. 6 door machine within the USX Coke Works facility. See, McConnaughey, supra.

      . Certainly, if the door machine was dedicated to just one coke oven and was bolted to the floor (as the side trim machine was in Radvan), there would be absolutely no dispute concerning the door machine’s status as an “improvement to real property”.

      . We note that Pennsylvania courts, applying the statute of repose, have ruled that factory equipment similar to that found not to be an "improvement” for taxation purposes in Aliquippa was an "improvement to real property.” See, McCormick, supra (coal conveyer belt system was improvement to real property); Radvan, supra (factory side trim machine was improvement to real property).


author: POPOVICH, Judge. EAKIN, Judge,

text:
    681 A.2d 1345
    Kenneth Eldon STAKE, Appellant, v. Robert E. METZGER, Trading and Doing Business as Red Horse Auto Repair, Appellee.
    Superior Court of Pennsylvania.
    Argued May 7, 1996.
    Filed July 10, 1996.

      Charles A. Rector, Lemoyne, for appellant.
    Michael J. Toms, Waynesboro, for appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge.

This is an appeal from the civil judgment of the Court of Common Pleas of Franklin County awarding the sum of $1,633.86 to appellee, Michael Clarkson. Appellant, Kenneth Stake, challenges the trial court’s jurisdiction to award a monetary judgment in response to appellee’s criminal motion for return of property in this civil proceeding. Upon review, we find that the trial court improperly entertained a criminal motion and awarded a judgment not authorized pursuant to appellee’s motion for return of property. Accordingly, we reverse the trial court’s monetary judgment in favor of appellee.

The factual history of this case is as follows: Roger McLucas and Robert E. Metzger removed $370,000 in cash belonging to appellant from his mother-in-law’s residence without lawful authority. A portion of this money was used to purchase various vehicles, including a racing car worth approximately $25,000. Appellee was an employee at Red Horse Auto Repair, a business owned by Mr. Metzger. Appellee agreed to perform services on the race car for his employer in return for an ownership interest in the car and a share of any profits which the car might yield. Appellee alleged that he installed automobile parts in the amount of $1,633.86 into the race car. Appellee was not aware that the race car was purchased with stolen money.

The Pennsylvania State Police brought criminal charges against Mr. Metzger and Mr. McLucas in 1994. Mr. McLucas pleaded guilty to theft charges and the charges are still pending against Mr. Metzger. Pursuant to these criminal charges, the State Police seized the race car. Thereafter, appellant commenced a civil lawsuit against Mr. Metzger to recover the stolen funds. A default judgment was entered against Mr. Metzger in the amount of $370,000 on January 26, 1995, and a writ of execution was issued on April 19, 1995, on various vehicles, including the race car.

On April 28, 1995, appellee filed a Petition for Return of Property pursuant to Rule 324 of the Pennsylvania Rules of Criminal Procedure seeking the return of the engine and transmission which he allegedly installed in the race car. On May 25, 1995, a hearing was held on appellee’s petition, at which time the Commonwealth indicated that it had no proprietary interest in the race car. On July 13, 1995, the trial court ruled that appellee had an ownership interest in the engine and transmission of the race car and awarded appellee the sum of $1,633.86. In essence, the record reveals that appellee filed a criminal motion for return of property under a civil caption, and in the civil division of the Court of Common Pleas of Franklin County. In response, the trial court awarded appellee a civil judgment in the form of a monetary award which is an inappropriate remedy for a criminal motion for return of property. We find this series of events improper.

We note initially that, although appellant did not file a preliminary objection raising the issue of jurisdiction, “it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction.” Commonwealth v. Lewis, 288 Pa.Super. 198, 202, 481 A.2d 357, 358 (1981) (quoting Marcus v. Diulus, 242 Pa.Super. 151, 157, 363 A.2d 1205, 1208 (1976)). Accordingly, we will address appellant’s claim that the trial court was without jurisdiction to adjudicate this matter.

It is well settled that a court of equity will decline jurisdiction in criminal matters except in such cases where there exists no adequate remedy at law. Marcus, supra, 363 A.2d at 1210. In the present case, however, appellee had two adequate remedies at law available to seek the return of his property. Pursuant to Rule 324 of the Pennsylvania Rules of Criminal Procedure, appellee could have pursued his claim in the criminal division of the Court of Common Pleas of Franklin County. 42 Pa.R.Crim.P. Rule 324. Appellee’s second option would have been to file a property claim pursuant to Chapter 3200 of the Pennsylvania Rules of Civil Procedure once the writ of execution was levied upon the race car. 42 Pa.R.Civ.P. Rule 3201, et seq. Rule 3201 explains that the rules governing sheriffs interpleader apply “when tangible personal property levied upon pursuant to a writ of execution is claimed to be the property of a person other than the defendant in the execution.” 42 Pa.R.Civ.P. Rule 3201.

In the present case, appellee did not act correctly under either option. Consequently, the civil division trial court was presented with a criminal motion for which it had no jurisdiction because there was an adequate remedy at law; whether it be a civil motion filed in the court herein or a criminal motion filed in the criminal division. See Lewis, supra, 431 A.2d at 358 (where the appellant’s complaint filed in the civil division of the court requesting the return of his property was dismissed by the equity court on the ground that the proper forum was in the criminal division). See Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995) (holding that every division of the court of common pleas has jurisdiction to transfer any case properly heard in the court of common pleas to the proper division having subject matter jurisdiction over that particular matter, but every division does not have jurisdiction to hear any matter that could be brought in the court of common pleas).

Clearly, the trial court herein, being a civil court, was without jurisdiction to consider a criminal motion for return of property. In addition to entertaining a matter for which it had no jurisdiction, the trial court proceeded to award appellee a monetary judgment in response to appellee’s criminal Motion for Return of Property. Rule 324 provides that “[a] person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof.” 42 Pa.R.Crim.P. Rule 324(a). Clearly, Rule 324 contemplates a return of the actual property seized as opposed to reimbursement for the value of the property.

Under the circumstances of the present case, we find that the trial court lacked subject matter jurisdiction to adjudicate appellee’s Motion for Return of Property and awarded an inappropriate judgment. Accordingly, we vacate the judgment of the trial court awarding appellee the sum of $1,633.86.

Judgment vacated.

EAKIN, J., files'a dissenting opinion.

EAKIN, Judge,

dissenting.

I respectfully dissent. Given the procedural hash that the record here reflects, I would not find the equity court to have acted without jurisdiction, particularly as the appellant did not raise the issue until after the Court had entered its order.

As a result of a factual patchwork as piecemeal as the car itself, appellee had multiple considerations under the criminal and civil rules. He was faced with pursuing a claim to autoparts, appended to a racecar procured with stolen money, seized by the state police as evidence in a pending criminal proceeding, yet levied on as the result of appellant’s money judgment stemming obtained in an action in equity. This situation was more suggestive of a law school examination question than it was of a straightforward “adequate and complete” remedy at law.

Appellant’s challenge suggests an adequate remedy at law, as appellee ended up with a money judgment. Appellant makes this claim, having himself received (indeed, pleads it herein) a money judgment at the very same term and number as the order he challenges. While money usually connotes an adequate remedy at law, appellee did not request a money judgment; he asked for return of his property. That the eventual order gave him a judgment should not retroactively deprive the court of equitable jurisdiction. Where equity is the goal, a monetary award is among the remedies available to the court in fashioning a result.

Rule 1509 required appellant to raise the issue of jurisdiction by preliminary objection; he did not raise the issue until after the final order was entered. While it is true that we are not required to treat appellant’s failure as a waiver of the issue, certainly we may do so. See, e.g., Waksmunski v. Delginis, 391 Pa.Super. 37, 41, 570 A.2d 88, 91 (1990). Where appellant’s very complaint is appellee’s failure to choose the right rule in a muddled situation, appellant would have us ignore his own failure to comply with a straightforward and basic rule.

Where the appellant did not abide by the applicable Rules, and obtained in equity the very remedy he would deny appellee, his position should not prevail. The equity court, faced with the broken procedural eggs of the situation, simply decided to make an omelet. No one offered a better recipe, suggested a different pan, nor complained he was using the wrong burner of the Franklin County stove until the cooking was done.

I would not disturb the chefs result.

      . Just how the Sheriff levied on criminal evidence is unclear; appellant avers in his answer that the Writ of Execution was issued April 19, and says no more. It is unclear whether appellee knew of the levy before the Answer was filed.