author: MONTGOMERY, Judge: HUDOCK, Judge,

text:
    600 A.2d 220
    AUTOMATIC TIME AND CONTROL CO., INC., Appellant, v. ifm ELECTRONICS, GmBh, a Foreign Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued July 17, 1991.
    Filed December 17, 1991.
    Albert B. Gerber, Philadelphia, for appellant.
    Daniel L. Lemisch, Philadelphia, for appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellant instituted the instant appeal from a trial court order granting preliminary objections in the nature of a demurrer, and dismissing the plaintiffs complaint with prejudice. We affirm the order of the trial court.

The plaintiff-appellant, Automatic Time and Control Co., Inc., was a distributor of electrical parts, including devices known as proximity switches. The plaintiff was sued in separate products liability actions by two individuals who claimed that proximity switches distributed by the plaintiff had caused them injuries. The switches in question were manufactured by the defendant-appellee, ifm Electronics, GmBh. The plaintiff asked the defendant to defend the suits and indemnify the plaintiff in both actions. The defendant either failed or refused to respond. The plaintiff defended the two cases and was successful in avoiding liability, as both suits were dismissed. There was no determination of a product defect or other negligence in manufacturing in either of the personal injury actions. The plaintiff then instituted the instant litigation, claiming that it is legally entitled to be indemnified by the defendant for the legal fees and court costs it incurred in defending the two products liability actions.

The issue presented by this appeal is whether a retailer or other seller of a product has a right to recover attorney’s fees and other defense expenses from the manufacturer of the product, incurred in the defense of a product liability case, where there has been no finding that there was manufacturing neglect, and no liability was. incurred by the seller in the product liability action. Federal District Courts in Pennsylvania have decided two cases involving claims identical to that asserted by the plaintiff. In both Papas v. Ewing Brothers, Inc., 581 F.Supp. 1272 (M.D.Pa. 1984), where the plaintiff was a retailer, and Merck & Company, Inc. v. Knox Glass, Inc., 328 F.Supp. 374 (E.D.Pa.1971), in which the plaintiff was an intermediate seller, recoveries of defense costs, including counsel fees, were sought against manufacturers after the plaintiffs had successfully defended cases involving product liability claims. In each of the product cases, there was no finding of neglect in manufacturing, and no liability was imposed against the seller. In Papas and in Merck & Co., both Federal District Courts, relying on Pennsylvania law, rejected the subsequent indemnification claims asserted by the sellers against the manufacturers.

Although these Federal Court decisions may provide guidance to us, we are not bound by their interpretations of our state law. Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 534 A.2d 798 (1987), appeal denied 518 Pa. 656, 544 A.2d 1342 (1988); Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985). Accordingly, we must independently analyze the issue presented by this appeal, which appears to be one of first impression in the appellate courts of our Commonwealth.

The resolution of this appeal requires an examination of the principles applicable under the doctrine of indemnification. In Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 506 A.2d 868 (1986), our Supreme Court stated that a right of indemnity arises only when a person or entity secondarily liable has been compelled, by reason of some legal obligation, to pay damages occasioned by the negligence of the party which should be primarily liable. “Primary” liability can only rest upon a fault by the person or entity primarily responsible for a defect or a dangerous condition in the product. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). It is evident that under such guidelines, no right of indemnification arises in the circumstances presented in the instant case. First, the plaintiff retailer has not been compelled to pay any damages in the underlying product liability actions. Second, there has been no determination of any negligence or other fault by the defendant manufacturer in failing to discover or correct a defect or dangerous condition in either of the proximity switches involved in the two separate products liability cases defended by the plaintiff. Thus, the defendant cannot be held to have any “primary” liability, for purposes of the doctrine of indemnification.

The Restatement of Restitution provides further support for this conclusion. In Section 93(1), it states that a right of indemnification is created: “Where a person has supplied to another a chattel which because of the supplier’s negligence or other fault is dangerously defective for the use for which it is supplied and both have become liable ... to a third person injured by its use____” (emphasis added) Section 95 of the Restatement provides for restitution for expenditures properly made in the discharge of liability for “harm caused to a third person because of ... negligent failure to make safe a dangerous condition of land or chattels which was created by ... misconduct ...” of the party from whom indemnification is sought, (emphasis added) Obviously, the Restatement only envisions a right of restitution arising when there has been harm caused to a third person because of a dangerous defect in the chattel supplied, which created a liability for resulting harm to the injured party. Such factors were not present in the instant case.

We must also recognize that if the plaintiff’s action were permitted to proceed, it would establish a new rule in our Commonwealth which would make all manufacturers of products responsible for any and all legal costs arising in any Pennsylvania litigation involving products liability claims when some other party in the chain of distribution is successful in defending such a claim. Such an enormous change in our law is not supported by applicable precedents nor by well-established doctrines of indemnification.

Moreover, such a reformation of our law would be both unwise and impractical. Our legal and commercial systems have well-developed procedures for dealing with circumstances such as those presented in this case. If a retailer or an intermediate seller of a product becomes a defendant in an action in which it is alleged that a product it sold caused harm to the buyer or others, because of negligence in manufacture or design, the defendant seller is free to institute joinder proceedings to bring the manufacturer or others in the distribution chain into the litigation as additional defendants. In the alternative, a seller may contract with the manufacturer, or even with others in the distribution chain, to provide for a defense against any such claims, and/or to indemnify and hold the seller harmless from legal costs or any other expenses or liability associated with such litigation. A third alternative, most frequently employed by sellers, is to purchase insurance coverage to provide for the legal defense of all liability claims, and coverage, as needed, for successful claims. Also, it is clear that if a seller is found liable to a buyer of the product because of harm caused by a manufacturing defect, the seller may seek restitution from the manufacturer for those expenses properly made in the discharge of the claim. Sirianni v. Nugent Bros., Inc., supra. Such mechanisms and practices are integral in the legal and business practices involved in the marketing of products in our country.

We also must recognize that if we were to permit the plaintiffs claim to proceed in this case of first impression, we would create a situation of great uncertainty for manufacturers of products. Without having a role in the conduct of defense efforts, the selection of defense counsel, or even the amount of professional fees to be expended, every manufacturer of a product would be faced with the risk of having to pay for any and all legal expenses arising when any buyer of one of the manufacturer’s products alleged an injury and sought a recovery against any other person or entity in the chain of distribution. However, the manufacturer would lack control over defense strategy or settlement decisions which might be made in such cases. Also, the defenses in these actions would often proceed without the benefit of the manufacturer’s particular expertise in analyzing claims of defects or failure to discover defects in the manufacture of its own products. Further, manufacturers would frequently be unaware of one or more pending claims, which, if known, might convince them to alter products, to change manufacturing and/or inspection procedures, or to issue vital safety warnings to consumers.

We also cannot ignore obvious conflicts of interest which would arise in some situations. Counsel selected by a defendant seller in a product liability case could be expected to attempt to design a defense and establish evidence which would result in a determination that if any defect existed, it arose from the neglect of the manufacturer of the product, rather than from any fault of the seller. That would create a no-risk situation for the seller. If it prevailed in the litigation, all of its legal expenses would be passed on to the manufacturer. If the injured plaintiff prevailed, the verdict would be likely to be based upon a finding of manufacturer’s negligence, thereby entitling the seller to indemnification from the manufacturer for the legal fees and other defense costs expended, as well as for any recovery by the injured plaintiff. In such a situation, there would be no incentive for the seller to consider an appeal of the unfavorable verdict, as appeal proceedings would only delay the seller’s recovery of indemnification from the manufacturer. Accordingly, it is clear that even though it would have no control or even a voice in such litigation, the manufacturer would bear all of the risks in the case, including the possibility of paying the seller’s attorney for presenting a defense contrary to the manufacturer’s interests.

Based upon our determination that the applicable law does not support the plaintiff’s claim of a right to indemnification, and also upon our conclusion that there are no factors mitigating in favor of a creation of such a new right of indemnification in the law of our Commonwealth, we hold that the trial court did not commit error in sustaining the preliminary objections in the nature of a demurrer. The dismissal of the complaint in this case was proper.

The order of the trial court is hereby affirmed.

HUDOCK, J. files a dissenting opinion.

HUDOCK, Judge,

dissenting:

I respectfully dissent. As the majority states, ifm Electronics (ifm) is the manufacturer of proximity switches distributed by Automatic Time and Control Co., Inc. (ATC). When ATC was sued in underlying tort actions, ifm was made a party to those actions. ATC requested that ifm indemnify and defend under a theory of common law indemnity and a contract which allegedly provided for the same type of indemnification and defense, ifm refused. ATC was then put in a position where it either defended the actions or risked a default judgment. ATC elected to defend the actions and was successful in having the actions dismissed. At this stage in the present situation, we do not know what the reasons were that those underlying actions were dismissed, but it appears from the record that no finding of a defect was ever reached.

ATC then sought recovery from ifm of the costs it incurred in successfully defending these underlying tort actions. There seems to be little dispute here that had ATC been unsuccessful, and had there been a finding of neglect or product defect, a cause of action would have been stated by ATC under either a common law or contract theory of indemnification. Therefore, the one variation which occurred in the present situation is that ATC was successful in litigating a challenge to the proximity switches involved.

As one of our sister states so aptly put it:

“If the right to costs and attorney’s fees for defending the law suit is made contingent on losing on the merits of that action, in every case the indemnitee would be put in the difficult position of attempting to show lack of his own culpability at the same time that he is aiding the plaintiffs case by attempting to prove the liability of his indemnitor.” [Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059, 1067 (Alaska 1979)].
Such a result would not inspire confidence in our adversarial judicial system. Another court in following the Heritage rationale has stated that a rule that allows recovery of attorney’s fees only if the indemnitee loses would “penalize a party for successfully defending the allegation against it”. Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn.1985). The baseball equivalent would reward a batter for striking out, but cost him dearly if he gets a hit. Just as such a rule would be inimical to the interests of baseball so it also runs counter to the Anglo-American adversary tradition of litigation. These concerns underscore the reasonableness of requiring a manufacturer to pay for those legal costs incurred in the defense of claims for which it would be ultimately liable.

Booker v. Sears Roebuck & Co., 785 P.2d 297, 304 (Okla.1989) (concurring opinion).

The majority is concerned that finding for ATC in the present case would create an enormous change in the law of Pennsylvania and put manufacturers in the position of having to pay for litigation in which it has no role or over which it has no control. I disagree. The cases in this area of indemnification show that often manufacturers are notified of the litigation and given an opportunity to defend and indemnify. Papas v. Kohler Co., Inc., 581 F.Supp. 1272 (M.D.Pa.1984). This is a reasonable requirement and I would also require it. In other cases, the manufacturer has been made a party to the litigation. Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 506 A.2d 868 (1986); Walton v. Avco Corp., 383 Pa.Super. 518, 557 A.2d 372 (1989). In the present situation, ifm was made a party to the underlying tort actions, and ATC notified ifm to indemnify and defend, ifm had every opportunity to take over the defense and control the flow of the litigation but it refused to do so.

The majority also expresses concern that there are potential conflicts of interest involved in finding for ATC. The majority states:

Counsel selected by a defendant seller in a product liability case could be expected to attempt to design a defense and establish evidence which would result in a determination that if any defect existed, it arose from the neglect of the manufacturer of the product, rather than from any fault of the seller. That would create a no-risk situation for the seller.

Majority opinion at p. 442.

Again, one of our sister states has solved this problem by requiring that the downstream party, ATC in our case, must present a unified defense and not take a position adverse to the manufacturer. To take an adverse position precludes the downstream party from obtaining indemnity. Booker v. Sears Roebuck & Co., supra. This is sound reasoning that I would likewise embrace.

Although the majority would find an enormous change in the law of indemnity in Pennsylvania, I would not find such a far reaching result and would apply this theory to cases similar to this one where the manufacturer has been made a party, notified to defend and indemnify, and still refuses. Clearly, manufacturers are entitled to notice that their product has been called into question either in the form of joinder as a party or a formal notice to defend and indemnify. If the manufacturer refuses to take up the defense at that point, forcing the downstream party to defend, then the manufacturer, who is later released from liability upon a finding of no defect, has received a benefit for which payment should be made to put the downstream member in the position of being held harmless for actions against it by injured third parties. As the Alaska Supreme Court stated:

[The manufacturer] argues, however, that because [the retailer] successfully contested the [tort plaintiffs] law suit, that no right of indemnity arose and, therefore, [the manufacturer] should not be required to reimburse [the retailer’s] expenses in defending the action. We think that the attempt to draw a distinction along these lines is without merit. In the first place, [the manufacturer] owed [the retailer] a duty to defend the strict products liability suit---- Further, [the manufacturer] could have avoided assessment of attorney’s fees by taking over defense of the [tort plaintiff’s] claim when it was tendered by [the retailer], but it declined to do so____ Thus, we hold that where indemnification is required, and the indemnitor has been given proper notice of the pending litigation and an adequate opportunity to undertake its duty to defend, the indemnitee is entitled to recover full costs and attorney’s fees for the expenses of its successful defense of the action giving rise to the claim for indemnity.

Heritage, supra at 1067 (footnotes omitted). I would, therefore, hold that ATC has stated a cause of action and reinstate the complaint.

      . The defendant’s brief to our court indicates it was brought in to both of the product liability actions as an additional defendant by the plaintiff-appellant Automatic Time and Control Co.

      . The plaintiffs complaint asserted, inter alia, a right to indemnification under a clause in an agreement between the parties. The defendant contended, in its preliminary objections, that the clause only required indemnification as to activities of an entity known as effector, Inc., which was apparently a distributor of the defendant’s products. The trial court agreed, and noted that the plaintiff failed to allege any activities by effector, Inc. in its complaint. This aspect of the trial court’s ruling is not challenged by the defendant on this appeal.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    600 A.2d 225
    C. Richard LOGAN, Appellant, v. MIRROR PRINTING COMPANY OF ALTOONA, PA., a corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed Dec. 18, 1991.

      J. Bradley Kearns, Pittsburgh, for appellant.
    John Fleming, Pittsburgh, for appellee.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   WIEAND, Judge:

If a newspaper fails to print a political advertisement in accordance with its contract to do so, is the newspaper liable to a losing candidate for the emoluments of office which the candidate would have earned if elected? The trial court held that there could be no such recovery and entered summary judgment in favor of the newspaper. The candidate appealed. We affirm.

C. Richard Logan, a candidate for re-election to the Board of Commissioners of Blair County, entered into a contract with the Altoona Mirror by the terms of which the newspaper was to print five advertisements promoting Logan’s candidacy. Three of these ads were to be published in the Mirror’s edition of November 5, 1987, and two ads were to be published in the edition of November 7, 1987. The Mirror published two of Logan’s political ads on November 5, 1987 and one on November 7, 1987. It failed to publish a third ad on November 5, 1987 and a second ad on the day before election.

In addition to the advertisements placed with the Altoona Mirror, Logan advertised his campaign by means of other print media including the Tyrone Herhld, the Shoppers’ Guide of Blair County, and the Morrisons Cove Herald. The campaign also utilized radio advertisements placed with local stations WJSM, WKMC, WHPA, WRTA, WFBG, WVAM, and WTRN.

When the election tallies were counted on November 8, 1983, Logan had lost his seat by 79 votes: 12,846 votes (49.85%) for Logan and 12,925 (50.15%) for his opponent. Logan subsequently commenced an action against the Altoona Mirror, alleging that the breach of contract had caused him to lose the election.

In order to recover for damages pursuant to a breach of contract, the plaintiff must show a causal connection between the breach and the loss. Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1969); Adams v. Speckman, 385 Pa. 308, 122 A.2d 685 (1956); Taylor v. Kaufhold, 368 Pa. 538, 84 A.2d 347 (1951).

Where one party to a contract, without any legal justification, breaches the contract, the other party is entitled to recover, unless the contract provides otherwise, whatever damages he suffered, provided (1) they were such as would naturally and ordinarily result from the breach, or (2) they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract, and (3) they can be proved with reasonable certainty.

Taylor v. Kaufhold, supra, 368 Pa. at 546, 84 A.2d at 351 (emphasis added).

In the instant case, Logan argued that his election loss was “either the natural and ordinary result or a reasonably foreseeable result of inadequate advertising.” The trial court held that Logan’s claim was too speculative.

In reviewing an order granting summary judgment, an appellate court must determine whether there is a genuine issue of triable fact. Bowman v. Sears, Roebuck and Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). The granting of the summary judgment can be sustained only if the pleadings, depositions, answers to interrogatories and admissions show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. O’Boyle v. J.C.A. Corporation, 372 Pa.Super. 1, 538 A.2d 915 (1988).

In our judgment, Logan’s alleged damages are entirely too speculative and cannot be proved with sufficient certainty to permit recovery. The Pennsylvania Supreme Court has held:

[A] party seeking damages for breach of contract “must be able to prove such damages with reasonable certainty.” Wilcox v. Regester, 417 Pa. 475, 484, 207 A.2d 817 (1965). See also Nakles v. Union Real Estate Co. of Pgh., 415 Pa. 407, 411, 204 A.2d 50 (1964). “Compensation for breach of contract cannot be justly refused because proof of the exact amount of loss is not produced ... [T]he law does require ... that the evidence shall with a fair degree of probability establish a basis for the assessment of damages.” Massachusetts Bonding & Ins. Co. v. Johnston & Harder, Inc., 343 Pa. 270, 280, 22 A.2d 709 (1941).

Exton Drive-In, Inc. v. Home Indemnity Co., supra 436 Pa. at 488, 261 A.2d at 324.

The Superior Court has observed that “the test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable damages---- Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.” Pashak v. Barish, 303 Pa.Super. 559, 561-562, 450 A.2d 67, 69 (1982) (emphasis in original). Accordingly, it was held in Pashak that recovery could not be had against a lawyer for legal malpractice in allowing a client, as part of a settlement, to sign a release barring future recovery of statutory compensation benefits where the right to such future recovery was entirely speculative.

Consistently with the holding in Pashak v. Barish, supra, we conclude that appellant’s contention that he would have won the election if the Altoona Mirror had printed his third ad on November 5, 1987 and a second ad on the day before election was entirely too speculative. Therefore, appellant cannot recover in this action the salary, pension benefits and other emoluments of office which he would have enjoyed if he had been elected to office.

Appellant argues that his losses can be proved with reasonable certainty by the testimony of a public relations consultant, William J. Green, who would testify that additional advertising would have helped appellant win the election. However, Green’s testimony was based on only the following two factors: (1) Logan’s advertising expenditures and (2) the closeness of the election. His opinion failed to take into consideration'any number of additional factors which may have affected the result of the election. These factors include, inter alia, Logan’s qualifications for office, his performance while in office, his stand on issues of concern to the community, his message, and the strength of the opposition. Green also failed to give consideration to the fact that Logan’s campaign material had reached the members of the voting public by other advertisements appearing in the print and radio media. Green’s testimony was, of necessity, as speculative as the issue of loss on which appellant’s action was based. His testimony cannot establish with sufficient certainty that the results of the election would have been different if the Altoona Mirror had printed two additional ads in the days preceding the election. Under these circumstances, the trial court did not err when it entered summary judgment in favor of the newspaper.

Affirmed.


author: TAMILIA, Judge:

text:
    600 A.2d 228
    N.E.A. CROSS, INC., a Pennsylvania Corporation, Appellant, v. NATIONAL FUEL GAS SUPPLY CORPORATION, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1991.
    Decided Dec. 19, 1991.
    Petition for Allowance of Appeal Denied June 1, 1992.

      Bradford J. Mcillvain, Philadelphia, for appellant.
    Gary Eiben, Erie, for appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

Appellant, N.E.A. Cross Inc. (NEA), appeals from the judgment nunc pro tunc in favor of appellee, National Fuel Gas Supply Corporation (National).

The present dispute relates to an overpayment by National involving Gas Purchase Agreement No. 37061, executed in February, 1982. The parties stipulated to the following facts before the trial court. Between 1977 and 1982, NEA and National entered into a series of gas purchase agreements, which developed into transactions involving often in excess of $1,000,000 per month. National issued checks to NEA monthly, based on check requisitions detailing the amount of gas purchased. In turn, based on these figures, NEA would make monthly payments of a one-eighth share to various landowners. Mistakes by National in the collection of data necessary for preparation of check requisitions and in the computation of payments were not uncommon. Thus, in Agreement No. 37061, the parties made the following allowance for mistakes:

ARTICLE IX(c): If any error or inaccuracy in chart information, payments, statements, calculations or determinations is discovered, proper adjustment and correction thereof shall be made as promptly as practicable thereafter.

When issuing a check for the gas purchased during July/August, 1982, National overpaid NEA by $7,181.50. The mistake was a result of an error by National in recording information received from meter readings for gas received during the months in question. The error was detected by National and the check requisition for September/October, 1982, was issued accordingly with the notation “volume adjustment.” Because only a limited amount of fuel was provided during that period, however, National was able to recoup only $2,096.96, leaving an outstanding balance of $5,084.54. Although check requisitions for October/November, 1982, and November/December, 1982, show sufficient quantities of gas were delivered so that National could have deducted the amount due from NEA, National erred in failing to do so. National continued to purchase gas from NEA under Agreement 37061 but apparently forgot about the credit it was due until March, 1988, when it deducted $5,084.54 from its payment to NEA.

NEA filed the underlying action, arguing National was not entitled to recovery because, pursuant to the terms of the purchase agreement, it waited too long to try to recoup the overpayment. Argument was held and the trial court, without a jury, found in favor of National. Although the Order in National’s favor was entered May 23, 1990 and amended June 5, 1990, judgment was not entered until May 7, 1991. The court held, in light of the relationship of the parties, the process of determining amounts of gas purchased and the ongoing, complex billing process, the delay in the set-off was “reasonable.” (Slip Op., Bozza, J., 3/21/ 91, pp. 3-4.) The court reasoned the oversight was understandable considering the volume of business exchanged by the parties. Also, the parties’ continuing relationship meant recoupment would not in any way be burdensome to NEA.

NEA now argues National’s attempt to correct a billing error more than five years after it was discovered was untimely under the terms of the contract, which directly governs the present dispute. In short, National did not correct the problem “as promptly as practicable” and, therefore, should be precluded from adjusting the payments to NEA more than five years later.

National contends it made two mistakes in the preparation of check requisitions for payment to NEA, and each of these errors was corrected almost immediately after it was discovered. Thus, National did correct the errors which led to the over-collection “as promptly as practicable.” In the alternative, National contends the language of the agreement was ambiguous and, therefore, the trial court correctly considered extrinsic evidence in deciding whether National’s actions were in compliance with the contract.

Whether the trial court has correctly interpreted a writing, in ascertaining the legal duties which arise from it, is a question of law which this Court may review. Loeffler v. Mountaintop Area Joint Sanitary Authority, 101 Pa. Cmwlth. 514, 516 A.2d 848 (1986); citing Cowen v. Krasas, 438 Pa. 171, 264 A.2d 628 (1970). As cited above, the following provision in the contract was subject to the trial court’s interpretation:

If any error or inaccuracy in chart information, payments, statements, calculations or determinations is discovered, proper adjustment and correction thereof shall be made as promptly as practicable thereafter.

Although the trial court did not find that National corrected the problem “as promptly as practicable,” it found under the circumstances the more than five year delay was commercially reasonable. In support of its interpretation, the trial court cited 13 Pa.C.S. § 2309(a), Shipment, delivery or other action, which states: “[T]he time for shipment or delivery or any other action under a contract if not provided in this division or agreed upon shall be a reasonable time.” We agree with NEA the trial court erred in applying this provision of the Pennsylvania Commercial Code because the parties clearly agreed that time for performance would be “as promptly as practicable.”

“When a contract is clear and unequivocal, its meaning must be determined by its contents alone.” Department of Transportation v. Manor Mines, Inc., 523 Pa. 112, 119, 565 A.2d 428, 432 (1989). In PBS Coals, Inc. v. Burnham Coal Co., 384 Pa.Super. 323, 558 A.2d 562 (1989), we stated:

The paramount goal of contractual interpretation is to ascertain and give effect to the intent of the parties. In determining the intent of parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly.

Id., 384 Pa.Superior Ct. at 328, 558 A.2d at 564 (citations omitted). Here, the trial court ignored the language of the contract and substituted the requirement that corrections be made a reasonable time thereafter.

The obvious purpose of the contractual requirement that corrections be made “as promptly as practicable” is to allow the parties to close the books on past transactions. NEA argues as follows:

If a correction could be made more than five years after discovery, then [NEA] would not know for at least five years later whether National Fuel would seek reimbursement for an earlier mistake by National Fuel. [NEA] also makes payments to landowners who own the property on which the gas wells are located. [NEA] bases its payments to the landowners based on National Fuel’s payments. Thus, the longer National Fuel waits to correct errors, the greater chance that [NEA] may be caught in the middle and prejudiced.

Appellant’s brief, p. 9. The fact that little or no prejudice resulted or could result from the type of error National made in this case should not be determinative of the outcome of this case. Under the contract, there should be no difference whether the error by one of the parties is major or minor. The parties did not differentiate between large and small errors in the agreement language, yet it appears the trial court based its decision upon the degree of magnitude of the error involved.

An oversight of the kind involved in this dispute is understandable considering the volume of business and amount exchanged by the parties. Moreover, the parties’ continuing relationship facilitated recoupment in a manner not in anyway burdensome to N.E.A. Cross. This is not to suggest, however, that future set-offs, particularly for significantly larger amounts, would meet the requirements of commercial reasonableness.

(Slip Op., Bozza, J., 3/21/91, p. 4, emphasis added.) Thus the trial court’s decision, which should have been based on his interpretation of the contract language, instead focused on the size of the error.

National contends it made two mistakes rather than one and both errors were corrected shortly after being discovered. It argues the first error occurred in the preparation of the check requisition for the month of July/August 1982 and was discovered and corrected by noting it on the check requisition for the month of September/October. National asserts its second error was in failing to carry over the balance of $5,084.54 in the October/November 1982 check requisition. It claims this second error was not detected until the preparation of the check requisition for the month of March, 1988, at which time the money was recouped. National argues, therefore, it complied with the agreement because both errors were corrected soon after they were discovered.

We do not accept National’s analysis, as the only unlimited time period reflected by the agreement is applicable to discovery of the billing error in the first instance. Upon discovery, the error must be rectified as “promptly as practicable,” which in this case would have been in the November/December 1982 billing or immediately thereafter. National’s two error position would allow for reconstituting each failure to adjust the discovered error, because of a lapse on their part, as a new error tacking and extending the “as promptly as practicable” requirement to each new discovery. This is patently untenable and we find there was just one continuing error made by National.

Next, appellee contends the trial court implicitly found the language of the contract to be ambiguous and, therefore, correctly considered extrinsic evidence in adhering to commercial reasonableness standard in making its decision. Specifically, the court considered the facts surrounding the relationship between the parties, including the following: the parties had entered into a long-term and ongoing relationship; the process of determining the amounts of gas purchased and formulating check requisitions was complex and ongoing; the volume of business transacted between the parties was large; and there was no evidence the recoupment was prejudicial or burdensome to NEA.

The trial court erred in basically rewriting the parties’ agreement with reference to the concept of reasonableness, even though the court properly examined the circumstances surrounding the case. The words in the provision at issue are unambiguous. “If any error ... is discovered ... correction thereof shall be made as promptly as practicable thereafter.” “Promptly” is defined as ready and quick to act as occasion demands. To do something promptly is to do it without delay and with reasonable speed. Blacks Law Dictionary, 1093 (5th ed. 1979). In Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977), our Supreme Court stated: “[w]e have interpreted ‘as soon as practicable’ to mean within a reasonable time depending on the facts and circumstances of each case, ____” Id., 472 Pa. at 70, 371 A.2d at 195. Putting the words “promptly” and “practicable” in the same phrase, we interpret them to mean the party must act without delay and with reasonable speed depending upon the circumstances. Certainly National did not act with reasonable speed under the circumstances by correcting its error more than five years after discovering it. As we stated in PBS Coals, supra, “the law does not assume the language of the contract was chosen carelessly,” thus, in looking to the plain meaning of the agreement language, we find National did not comply with it. The volume of business transacted between the parties and the longevity of their relationship are irrelevant in determining whether National’s error was corrected as promptly as practicable after being discovered. Only the processes of determining the amounts of gas purchased and formulating check requisitions were properly considered by the trial court. But even though these processes were complex and ongoing, five years is still too long of a period under the agreement.

Finally, appellee argues NEA should not be allowed to keep the overpayment because the law abhors a forfeiture. The case appellee cites for support is Williams v. Vesley, 290 Pa.Super. 192, 434 A.2d 196 (1981), which states: “forfeitures are viewed as odious in law, and are enforced by our courts only where there is the clearest evidence that a forfeiture was what was meant by the agreement of the parties.” Id., 290 Pa.Superior Ct. at 196, 434 A.2d at 197-198. In Williams, the court found the relevant clause in the contract was not sufficient to create a forfeiture of the defendant’s rights under the agreement when the violation of the agreement was the result of circumstances beyond the control of the defendant. Here, the violation of the agreement was entirely within National's control. In addition, though we do not favor forfeitures, here the parties explicitly agreed if a mistake was made, prompt and practicable correction must follow after discovery of the error. The obvious extension of this provision is that by failing to timely correct the error, the party loses this right under the contract.

In light of the foregoing discussion, we reverse the trial court’s judgment and find in favor of appellant, NEA.

Judgment reversed; case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.


author: CERCONE, Judge:

text:
    600 A.2d 545
    William G. RUFFING v. 84 LUMBER COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 30, 1991.
    Filed Oct. 31, 1991.
    Reargument Denied Jan. 13, 1992.

      Larry K. Elliott, Pittsburgh, for appellant.
    James F. Donohue, Butler, for appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

Although originally presented as an appeal from an order denying post trial relief, this is actually an appeal from the judgment entered following a jury verdict in favor of plaintiff/appellee, William Ruffing and against defendant/appellant 84 Lumber Company. For the reasons that follow, we affirm.

The events underlying the instant appeal began when, in the context of accepting a job as outside sales contractor with 84 Lumber, appellee signed two documents purporting to be “terms of compensation” or employment contracts. Appellee alleged at trial that he signed the first document in conjunction with his hiring by Regional Sales Contractor Manager, Ed Gold. He also alleged that he later signed the second document because 84 Lumber’s Area Manager, Terry Tharnish, made representations it was identical to the first document and was needed to fill a gap in the files. Although the first document contained no covenant not to compete, the second document did contain such a clause.

Appellee worked only a few weeks for appellant 84 Lumber before seeking employment with a competitor. Appellant wrote to the competitor informing them of the non-competition clause and threatening to obtain an injunction to prevent them from employing appellee. As a result, the competitor did not hire Mr. Ruffing. Although appellee requested 84 Lumber to withdraw its letter to the competitor, appellant refused to do so. Appellee subsequently initiated suit against appellant, alleging both tortious interference with contract and fraud in inducing appellee to sign the second document.

A jury trial conducted before the Honorable John H. Brydon of Butler County, resulted in a verdict favoring 84 Lumber on the fraud count. However, the jury found in favor of appellee on the tortious interference claim and awarded him compensatory damages of $23,420.00 for lost wages and benefits as well as punitive damages in the amount of $15,000.00. Appellant subsequently filed post-trial motions which were denied by the lower court. A notice of appeal was filed with this court, and judgment was subsequently entered in the lower court.

Appellant now raises the following five claims for our consideration:

1. The trial court should have excluded [appellee’s] Exhibit 1 from evidence.
2. Because [appellee’s] Exhibit 2 was the operative contract, 84 Lumber was justified in preventing [appellee’s] employment with a competitor.
3. The trial court erred by instructing the jury on contract law and on failure of consideration when the only claims made by [appellee] were tort claims.
4. There was no factual basis upon which the jury could award punitive damages.
5. In his closing, counsel for [appellee] misrepresented the facts and the law concerning tortious interference. [Appellant] is therefore entitled to a new trial on the issue of tortious interference.

We shall consider these contentions seriatim.

Appellant’s first complaint is that the trial court should have excluded plaintiff/appellee’s Exhibit 1 from evidence. This document, a copy of the initial employment contract appellee signed with appellant, does not contain a covenant not to compete. The thrust of appellant’s argument is that it was error for the trial court to admit an unsigned, incomplete document into evidence for the purpose of contradicting the terms of a later and fully executed document. Although we agree with appellant’s explanation of the law relating to integrated contracts, appellant’s argument shoots wide of its mark.

Unquestionably, when parties adopt a writing as the final and complete expression of their agreement, evidence of negotiations leading to the formation of that agreement is inadmissible to vary the terms of the writing. McGuire v. Schneider, Inc., 368 Pa.Super. 344, 348-49, 534 A.2d 115, 117 (1987), aff'd, 519 Pa. 439, 548 A.2d 1223 (1988). Appellant is correct that prior or contemporaneous oral representations or agreements concerning subjects that are specifically dealt with in a written contract are merged in or superseded by the contract. Id., 519 Pa. at 349, 548 A.2d at 117. An unambiguous written contract must be held to express all the negotiations, conversations and agreements made prior to its execution; oral testimony, prior written agreements, and other writings are inadmissible to explain or vary the terms of the contract. Id., 519 Pa. at 349, 548 A.2d at 117-18. However, our review of the record shows that appellee did not offer the questioned evidence for the impermissible purpose to which appellant now objects. Quite clearly, appellee introduced Plaintiff’s Exhibit 1 to show that an employment relationship commenced at the time the first document was signed and not upon the execution of the second document. The challenged exhibit was not introduced to vary or contradict the terms of the second writing which appellant characterizes as a fully integrated contract of employment. Rather, it was introduced to show that the first writing comprises the agreement between the parties and that the second document has no legal effect.

The trial court has wide discretion in rulings on the relevancy of evidence and the propriety of its admission. Dunkle v. West Penn Power Co., 400 Pa.Super. 334, 337, 583 A.2d 814, 815 (1990). We will not reverse such a determination absent an abuse of that discretion. Id. Any evidence which tends to establish facts in issue or in some degree advance the inquiry at hand is relevant. Scullion v. EMECO Industries, Inc., 398 Pa.Super. 294, 301, 580 A.2d 1356, 1360 (1990), allocatur denied, 527 Pa. 625, 592 A.2d 45 (1991). Appellee pled two counts in his complaint: tortious interference with his right of employment and fraud. The latter claim was based on the allegation that after signing a binding contract of employment, appellee was fraudulently induced to sign a second document which had been misrepresented to him as identical to the prior agreement set forth in Plaintiffs Exhibit 1. The contested exhibit was obviously relevant regarding the manner in which the two documents differed, as well as on the question of the benefits that accrued to appellant upon securirig appellee’s signature on the second employment contract. Plaintiff’s Exhibit 1 was also relevant to the question of whether 84 Lumber was privileged to interfere with appellee’s subsequent contract of employment with appellant’s competitor. We see no indication that the trial court committed abuse of discretion in permitting the evidence to go before the jury, and we affirm on this issue.

The essence of appellant’s second argument is that appellee’s claim for tortious interference with contract must fail because appellant was justified in blocking appellee’s employment by a competitor under the terms of Plaintiff’s Exhibit 2, which appellant characterizes as “the operative contract.” Appellant is correct that an actor is privileged to interfere with another’s performance of a contract when: (1) the actor has a legally protected interest; (2) he acts or threatens to act to protect the interest; and (3) the threat is to protect it by proper means. Gresh v. Potter McCune Co., 235 Pa.Super. 537, 541, 344 A.2d 540, 742 (1975). However, we disagree with appellant’s conclusion that the methods utilized in this case were proper to protect a legally cognizable interest.

In this context, appellant contends that Plaintiff’s Exhibit 2 must be deemed to be a valid employment contract because the jury found in its favor on the question of whether 84 Lumber committed fraud in obtaining appellee’s signature on that document. According to appellant, if the signature on Plaintiff’s Exhibit 2 was not fraudulently induced, its terms necessarily govern the conditions under which appellee was employed by 84 Lumber. Thus, its covenant not to compete must be given full effect. We cannot, however, adopt this line of specious reasoning.

Appellee certainly alleged at trial that his signature on the writing entered as Plaintiff’s Exhibit 2 was procured by fraud. However, appellee also alleged, in the alternative, that the terms of his employment were governed by the first document and that the second document was an invalid modification and no true contract because it conferred no benefit corresponding to the detriment it imposed. Simply put, appellee contended that the first document was a valid contract but that the second document was not because it provided no additional consideration for the agreement to be bound by the covenant not to compete contained therein.

Our law is clear that where a restrictive covenant is executed after the commencement of employment, it will not be enforced unless the employee restricting himself receives a corresponding benefit or change in status. Maintenance Specialties Inc. v. Gottus, 455 Pa. 327, 330, 314 A.2d 279, 280 (1974); Wainwright’s Travel Service v. Schmolk, 347 Pa.Super. 199, 204, 500 A.2d 476, 478 (1985). Both writings were properly before the jury to elucidate the questions of when appellee was actually hired and which document embodied the terms of his employment. We agree with the trial court’s conclusion that the jury was free to find the first document to be a valid contract because it contained both appellant’s promise to hire appellee and appellee’s promise to work for appellant. Having accepted Plaintiff’s Exhibit 1 as the operative contract, the jury could properly find that Plaintiff’s Exhibit 2 conferred no privilege upon appellant to interfere with appellee’s attempt at seeking employment with appellant’s competitor.

Appellant also contends that a good faith belief in the validity of Plaintiff’s Exhibit 2 constituted a sufficient “good faith” defense to negate appellee’s claim of tortious interference with contract. We disagree, however, with appellant’s characterization of any such “good faith” defense as it pertains to the constituent factors of the tort in question. In Pennsylvania, a plaintiff must demonstrate four elements in order to sustain a cause of action for intentional interference with contractual relations:

(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct.

Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466, 471 (1979). The question of whether a defendant has acted in “good faith” appears to implicate both the second and third of these component factors. Our law does not, however, encompass an explicit “good faith” test in the context of intentional interference with contractual relations. Rather, the Pennsylvania Supreme Court has determined that the relevant inquiry must focus on the propriety of a defendant’s conduct considering the factual scenario as a whole. Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 432-33, 393 A.2d 1175, 1183-84 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979). The Adler court found the following extract from comment b to section 767 of the Restatement (Second) of Torts highly relevant:

Privilege to interfere, or interference not improper. Unlike other intentional torts such as intentional injury to person or property or defamation, this branch of tort law has not developed a crystallized set of definite rules as to the existence or non-existence of a privilege to act in the manner stated in §§ 766, 766A or 766B. Because of this fact, this Section is expressed in terms of whether the interference is improper or not rather than in terms of a specific privilege to act in the manner specified. The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another.”

Adler, supra, 482 Pa. at 433 n. 17, 393 A.2d at 1184 n. 17.

Following the lead provided by Adler, supra, we shall evaluate the facts of the instant case under section 767 of the Restatement (Second) of Torts. It is therefore instructive to set forth the specific provision involved:

§ 767. Factors in Determining Whether Interference is Improper
In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.

Restatement (Second) of Torts, § 767. Our analysis is tempered by recognizing that the second element of the tort, the “purpose or intent to harm” the plaintiff by preventing the contractual relation from occurring, “must be understood as requiring only an intention to interfere with the plaintiff’s prospective contractual relation, and not malevolent spite by the defendant.” Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 581 n. 11, 422 A.2d 611, 622 n. 11 (1980). Ill will toward the person harmed is not an essential condition of liability. Id. Nor is a “specific intent to harm” required in Pennsylvania in order to sustain an action for intentional interference with contract. Id., 281 Pa.Superior Ct. at 582 n. 11, 422 A.2d 611, 622 n. 11. The third element, absence of the privilege to act, simply imports “purposeful interference without justification.” Id.

The first two factors for consideration under section 767 are the nature of the actor’s conduct and the actor’s motive. Appellant argues that any discussion of the conduct and motive to be scrutinized is to be confined to the actions of corporate counsel for 84 Lumber. In this regard, appellant contends that corporate counsel wrote to the competitor “in good faith” based on the information in Mr. Ruffing’s personnel file. We will accept, for the sake of appellant’s argument, that the conduct in question is that of Mr. Bosilovic rather than that of all 84 Lumber employees. However, whether corporate counsel acted in good faith in deciding to send a letter to the competitor still constitutes only part of the picture.

At trial, Mr. Bosilovic testified that he sent a letter to appellee’s potential employer falsely claiming that Mr. Ruffing had signed a non-competition agreement which barred him from accepting employment with a competitor located within twenty-five miles of any 84 Lumber location. N.T. 6/26/90 at 238-39. In actuality, the non-competition clause stated only that Mr. Ruffing could not work for a competitor located within twenty-five miles of the specific 84 Lumber store to which he had been assigned. See Plaintiff’s Exhibit 3. Even assuming that Mr. Bosilovic had a genuine “good faith” belief that Mr. Ruffing was bound by the non-competition clause, by the terms of that very clause he could not possibly have held any such belief regarding 84 Lumber’s right to prevent appellee’s employment in a location which was beyond the twenty-five mile limit stated in the agreement. Under these circumstances, we have no difficulty concluding that appellant’s reliance on a “good faith” defense is simply misplaced.

Appellant next contends that it was error for the trial judge to instruct the jury on contract law and on failure of consideration when the only claims made by appellee sounded in tort. According to appellant, “Why the trial court instructed the jury with regard to contract law remains a mystery.” Appellant’s brief at 14. Contrary to appellant’s assertions, however, we see no cause for mystification in the jury instructions. It is well established that the primary duty of the trial judge when charging the jury is to clarify all matters so that the jury may comprehend the questions they are to decide. Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 29, 527 A.2d 134, 136 (1987), allocatur denied, 517 Pa. 629, 539 A.2d 810 (1988); Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985), allocatur denied, 512 Pa. 641, 518 A.2d 266 (1986).

As discussed supra, in order to establish the tort of interference with contractual relations, a plaintiff must prove that the defendant acted in the absence of privilege or justification. In the instant case, the jury’s determination of whether appellant was privileged to prevent appellee’s employment with a competitor hinged on the question of whether either Plaintiff’s Exhibit 1 or 2 constituted a binding contract which governed the case. The trial court correctly recognized this fact and charged so as to enable the jury to understand the law regarding contract formation and consideration. Nor are we surprised that the jury viewed the non-competition clause in Plaintiff’s Exhibit 2 as being of special interest. The presence or absence of this clause constituted the major difference between the two employment contracts.

Our supreme court has explained the scope of review applicable to appellant’s claim in the following manner:

When reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.

Reilly by Reilly v. SEPTA, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985) (citations omitted); Schecter v. Watkins, 395 Pa.Super. 363, 577 A.2d 585 (1990); allocatur denied, 526 Pa. 638, 584 A.2d 320 (1990). Contrary to appellant’s assertions, the trial judge was not required to charge in complianee with the specific points supplied by counsel. Brandimarti v. Caterpillar Tractor Co., supra, 364 Pa.Superior Ct. at 29, 527 A.2d at 136. The trial court has wide latitude as to the manner in which the charge is phrased. Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 143, 542 A.2d 525, 537 (1988). Any particular language may be used as long as it fully and adequately covers the applicable law. Id. Accord Hawthorne v. Dravo Corp., Keystone Div., 352 Pa.Super. 359, 508 A.2d 298 (1986), allocatur denied, 514 Pa. 617, 521 A.2d 932 (1987). Mindful of this standard of review, we have carefully scrutinized the certified record in the instant case. Finding no indication that the jury charge was either legally erroneous or inapplicable on the evidence presented at trial, we affirm on this issue.

Appellant’s fourth argument is that there was no factual basis upon which the jury could have awarded punitive damages. Assessment of punitive damages is proper when a party’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). Appellant correctly states that Pennsylvania has adopted section 908(2) of the Restatement (Second) of Torts. However, appellant urges us to employ too narrow an interpretation of that provision. Section 908(2) permits punitive damages to be awarded for conduct that is outrageous either because of the defendant’s evil motive or because of his reckless indifference to the rights of others. Id., 526 Pa. at 493, 587 A.2d at 704. “In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause[,] and the wealth of the defendant.” Id., quoting Restatement (Second) of Torts, § 908(2).

In this regard, appellant contends that no evidence of malicious, wanton, reckless, willful and oppressive conduct by 84 Lumber was presented at trial. We disagree with this allegation because our careful review of the record has convinced us that the trial court’s analysis of the evidence is correct:

[S]uch evidence did exist and included the following: [appellant] blatantly ignoring the protests of [appellee] that he had already signed a contract and that the second one was unnecessary; [appellant’s] unexplained and unwarranted failure to investigate the validity of [appellee’s] concerns; and, the unprofessional hiring procedures used by [appellant] as evidenced by [appellant’s] sloppy control of paperwork which resulted in the loss of the original contract.

Trial court opinion at 3-4.

A single example serves to demonstrate the baselessness of appellant’s argument. The certified record contains a copy of the letter written to 84 Lumber’s competitor, Lezzer Lumber, by Robert J. Bosilovic, corporate counsel for appellant. See Plaintiff’s Exhibit 3. This letter states, inter alia, that “Mr. Ruffing’s Terms of Compensation Agreement contained a covenant not to compete with 84 Lumber Company for a period of twenty-four (24) months in an area within a radius of twenty-five (25) miles from any 84 Lumber location.” Id. (emphasis added). Yet at trial, Mr. Bosilovic testified that this statement in the letter was incorrect. N.T. 6/26/90 at 238-39. The actual non-competition clause contained in Plaintiff’s Exhibit 2 merely barred Mr. Ruffing from employment with a competitor located within twenty-five miles of the specific 84 Lumber Store for which he had previously worked. Id. The certified record is silent as to whether appellant ever attempted to correct the erroneous information conveyed to Lezzer Lumber. In light of this, as well as the additional evidence presented, it was within the province of the jury to find that the hiring practices used by 84 Lumber were based on reckless indifference to the rights of others. We therefore can grant no relief on this claim.

The final argument advanced by appellant is that 84 Lumber is entitled to a new trial on the issue of tortious interference with contract because appellee’s counsel misrepresented the facts and the law governing tortious interference in his closing argument. Indubitably, a lawyer must act with decorum and must not misquote testimony, take liberties with evidence, or unfairly ill treat witnesses or opposing counsel during summation to the jury. Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 185, 191 A.2d 662, 671 (1963). However, trial counsel must be expected to advance spirited argument to support the client’s cause. O’Malley v. Continental Insurance Co., 305 Pa.Super. 302, 309, 451 A.2d 542, 546 (1982). Whether counsel’s speech transgresses appropriate parameters is a matter left to the discretion of the trial judge. Purcell v. Westinghouse, supra. See also Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980) (extent of final argument in civil cases is addressed to the discretion of the trial judge). In this regard, the words penned nearly half a century ago by Justice Musmanno remain equally applicable today:

There is nothing in the law, and certainly nothing in the history of American forensic appeal, which remotely suggests that a lawyer’s summation must be a prosaic and dull affair, devoid of metaphor, empty of simile, and stranger to dramatic, poetical, or sentimental allusion. So long as no liberties are taken with the evidence, a lawyer is free to draw such inferences as he wishes from the testimony and to present his case in the light most suited to advance his cause and win a verdict in the jury box.

Contractors Lumber and Supply Co. v. Quinette, 386 Pa. 517, 522, 126 A.2d 442, 444 (1956).

As stated previously, we have carefully reviewed the record in the instant case. We are satisfied, despite appellant’s extensive argument to the contrary, that appellee’s counsel did not transgress the bounds of proper summation. Appellant appears to have forgotten that appellee was advancing claims of both fraud and interference with contract. While certain of counsel’s remarks, taken in isolation, appear inapposite and prejudicial on the question of interference with contract, these statements are perfectly reasonable and relevant regarding the alleged fraud.

Moreover, we find that the trial court gave a comprehensive jury charge which correctly set forth the law of this Commonwealth on the pertinent concepts. N.T. 6/26/90 at 319-332. The trial court stressed that the jury was the sole arbiter of what is, and what is not, a fact in the case. Id. The trial judge explicitly charged that only the court, and not trial counsel, could tell the jury what law should apply in reaching their decision. Id. The court’s initial charge was followed, at the request of counsel for both parties, with further elucidation on certain points. Id. at 336-342; 345-346; N.T. 6/27/90 at 349-350. Subsequently, the jury requested clarification on the definition of the terms “fraud” and “tort.” After proper consultation with counsel, the lower court provided correct explanations. N.T. 6/27/90 at 351-363. Under these circumstances, we have no difficulty concluding that any possible prejudice to the appellant was cured by the lower court’s instructions.

Judgment affirmed.

      . Copies of these writings were admitted into evidence at trial as Plaintiffs Exhibit 1 and 2, respectively.

      . A verdict favoring either the plaintiff or defendant following jury or non-jury trials in civil actions for damages is not appealable until judgment has been entered on the verdict. Blacktop Paving Co., Inc. v. John Carlo, Inc., 292 Pa.Super. 404, 405, 437 A.2d 446, 447 (1981); Dennis v. Smith, 288 Pa.Super. 185, 186, 431 A.2d 350, 350-51 (1981). In the instant case, the jury verdict was rendered June 27, 1990 and the judgment was entered March 7, 1991.

      . We remain unconvinced by the reiteration and amplification of this argument in appellant’s reply brief. Fallacious contentions do not become meritorious simply through repetition. We note that appellant contends in its reply brief that the document exemplified by Plaintiffs Exhibit 2 "acted as a novation." This argument was neither fully developed nor supported by caselaw or statutory precedent. It is therefore waived. Taurino v. Ellen, 397 Pa.Super. 50, 58, 579 A.2d 925, 930 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991). See also Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-02, 551 A.2d 1112, 1114 (1988) (point is waived when not properly carried forward by appellant).

      . The recent case of Kelly-Springfield Tire Company v. D’Ambro, 408 Pa.Super. 301, 596 A.2d 867 (1991) concerns an action filed against a lawyer for wrongful use of civil process and intentional interference with a prospective contractual relationship. The plaintiff in Kelly-Springfield averred that the defendant did not “act in good faith” to preserve a legally protected interest of his client, but rather acted from the improper motive of harassing the client’s adversary. Although the case discusses the concept of "good faith," Kelly-Springfield has not adopted “good faith” as a per se defense to a claim of intentional interference with contractual relations. Instead, the KellySpringfield court applied the traditional standards expounded in Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978) which are discussed infra.

      . Strictly speaking, appellee has challenged the conduct of appellant as a corporate entity, and not merely the actions of corporate counsel. Consideration of the "good faith" of 84 Lumber as an entity cannot be confined solely to the actions and motivations of a single employee: corporate counsel was not operating in a vacuum. At a minimum, this line of inquiry implicates the question of whether the Regional Sales Contractor Manager and the Area Manager also acted in "good faith” by supplying incomplete information to corporate counsel via Mr. Ruffing’s personnel file.

      . The certified record is unclear whether 84 Lumber’s competitor is located outside the latter twenty-five mile limit.

      . We note additionally that a proper understanding of the nature and effect of such a clause in Plaintiffs Exhibit 2 constitutes a necessary underpinning for the jury’s proper deliberation on the claim of fraud in connection with appellee’s signature on that document. The jury instruction did not become erroneous and irrelevant because the jury found in favor of appellant and against appellee on this question.

      . Mr. Bosilovic characterized this error as "a typographical mistake,” blaming in the alternative, himself, his secretary, or “the computer” for the fault. N.T. 6/26/90 at 238-39. Mr. Bosilovic’s averment to the contrary, no evidence was presented at trial that 84 Lumber possesses a computer capable of independent volition.


author: HUDOCK, Judge:

text:
    600 A.2d 553
    OPTIMUM IMAGE, INC., Appellant, v. PHILADELPHIA ELECTRIC CO., Appellee.
    Superior Court of Pennsylvania.
    Argued July 17, 1991.
    Filed Dec. 6, 1991.

      Robert Hayes, Philadelphia, for appellant.
    James C. Brennan, Media, for appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge:

Optimum Image, Inc., (Optimum), appeals from an order of the trial court transferring its claim to the Pennsylvania Utility Commission, (PUC), for investigation, review and report, and from the court’s subsequent order denying its motion to amend its complaint and its motion for leave to file a nunc pro tunc demand for jury trial.

The facts may be summarized as follows: Optimum is a business engaging in retail and commercial photographic film developing. Optimum purchased sophisticated, computerized film developing equipment for use in its development processes. These machines permit Optimum to develop film quickly such that it could not only continue to service Optimum’s commercial accounts but also develop a retail trade. Optimum opened in May, 1984, and subsequently moved to a larger store at Newtown Square in December of 1984.

On November 10, 1986, upon opening the store it was discovered that the film processing machines and the cash register were inoperative. The machines were tested and the electrical power being supplied to Optimum’s place of business was tested. These tests revealed that the voltage of the electrical power being supplied to the premises was subject to spikes and diminutions, line chattering and irregularities. Philadelphia Electric Company, (PECO), was, therefore, contacted and requested to identify and correct the unstable power supply. PECO responded by installing metering equipment. These meters revealed that PECO was delivering electrical service to Optimum which was indeed subject to voltage fluctuations. These power surges destroyed Optimum’s cash register and damaged the film processing equipment. Moreover, the film processors would malfunction whenever the surges occurred.

Claiming that PECO refused to acknowledge and/or correct the problem, which continued unabated and recurred regularly, prior counsel for Optimum commenced a civil action against PECO. The single count complaint alleged that PECO wrongfully, negligently, carelessly and without reasonable cause delivered, over an extended period of time, unreasonably defective electrical power to Optimum’s business premises. Optimum averred that PECO’s negligence consisted both in failing to maintain adequate and reasonable equipment and otherwise providing defective service as well as its refusal to take adequate measures to correct these deficiencies as required by the Public Utility Law. The complaint further specified that the unstable power supply caused Optimum’s equipment to malfunction, resulting in extensive losses. PECO filed an answer and new matter denying liability and Optimum filed its response to PECO’s new matter.

On May 16, 1990, a pre-trial conference was held in the matter. At that time, Optimum advised the court of its dissatisfaction with the performance of its counsel. Consequently, the trial court entered an order on May 17, 1990, which continued the trial of the matter and granted Optimum the right to obtain new counsel. At the request of Optimum’s new counsel a pre-trial conference was held before the trial court on September 5, 1990. During this conference, counsel for PECO suggested that a jury trial was never demanded and that the prior orders of court scheduling the matter for jury trial were in error. In response, Optimum filed a motion for leave to file a nunc pro tunc demand for jury trial.

While preparing for trial, counsel for Optimum determined that the complaint previously filed was unsatisfactory and in need of amendment. It was determined that the complaint omitted crucial factual allegations and contract causes of action. Additionally, while pleading that the power supplied was unreasonably defective, the complaint did not contain a separate products liability count. Thus, Optimum filed a motion for leave to file an amended complaint. PECO did not respond to this motion.

Within weeks of receiving Optimum’s supplementary answers to interrogatories and expert interrogatories, PECO filed a motion to transfer the matter to the PUC for investigation, review and report. In support of this motion, PECO argued that the PUC has primary jurisdiction over the controversy. On October 15, 1990, the trial court held oral argument on all three outstanding motions. As to the transfer motion, PECO conceded, contrary to its prior argument, that the trial court had primary jurisdiction over the dispute but that a report and review method was available with the PUC to utilize its expertise in the area. PECO then argued that the court could use the report of the PUC in subsequent proceedings on damages. As to Optimum’s motion for a jury trial, PECO conceded that it would not be prejudiced by such a filing. PECO did not provide any substantive response to Optimum’s motion to amend.

Despite these concessions, the trial court, ruling from the bench, stated that both of Optimum’s motions should be denied and that the liability aspects of the dispute should be referred to the PUC. It executed from the bench PECO’s proposed order as to the motion to transfer and thereafter issued orders denying Optimum’s motions. Optimum timely filed notices of appeal from these orders which have been consolidated for disposition.

The first issue raised by Appellant is whether the trial court acted outside its authority in transferring the dispute to the PUC. Alternatively, Optimum argues that if the trial court had authority to do so, it abused its discretion since transfer was not appropriate in the present case.

In regard to the jurisdiction of the PUC and a trial court’s authority to transfer a dispute to that agency, we find our Supreme Court’s decisions in Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) and Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980), instructive. In Feingold, the Supreme Court held that the courts of common pleas have original jurisdiction to hear suits against public utilities for damages arising from failure to provide adequate service. Feingold, 477 Pa. at 10, 383 A.2d at 795. In Elkin, the parameters of Feingold were further defined. Elkin was an action challenging the adequacy of a complainant’s telephone service. In reversing this Court and sanctioning the actions of the trial court, our Supreme Court approved of a bifurcated procedure for certain situations, whereby the issue of liability is initially decided by the PUC, after which the court of common pleas considers the issue of damages, if appropriate:

[WJhere the subject matter is within an agency’s jurisdiction and where it is a complex matter requiring special competence, with which the the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter to the appropriate agency. Also weighing in the consideration should be the need for uniformity and consistency in agency policy and the legislative intent.

Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. at 134, 420 A.2d at 377. However, our Supreme Court cautioned against an abuse of this referral authority:

Courts should not be too hasty in referring a matter to an agency, or to develop a “dependence” on the agencies whenever a controversy remotely involves some issue falling arguably within the domain of the agency’s “expertise.”
* sis * * * *
Where ... the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility. In such cases, it would be wasteful to employ the bifurcated procedure of referral, as no appreciable benefits would be forthcoming.

Id., 491 Pa. at 134-35, 420 A.2d at 377 (footnote omitted).

Thus, in DeFrancesco v. Western Pennsylvania Water Co., 499 Pa. 374, 453 A.2d 595 (1982), the Supreme Court found that resolution of suits brought by business property owners in trespass and assumpsit against a water company alleging negligent failure to provide adequate water service to extinguish a fire neither depended upon the peculiar expertise of the PUC nor presented a question of agency policy, service owed to the general public, or a particular standard of safety or convenience articulated by the PUC. Thus, reversing the orders of this Court stating jurisdiction over the dispute was properly vested in the PUC, our Supreme Court remanded the consolidated cases to the trial court for disposition.

More recently, this Court, in Schriner v. Pennsylvania Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128 (1985) held that an action brought by a farmer, for damages for loss of dairy cattle, against the electric company which electrified his milking equipment concerned a question as to whether the electric company failed to perform an affirmative duty, a question that required no specific knowledge and experience and thus fell within the ordinary business of the courts. The Schriner court also cited with approval to the trial court which stated:

[W]hile the expertise of a member of the PUC would be helpful, this area of litigation is no more complex than many others which come before the Court. With the assistance of expert testimony, there is no reason why a judge or jury could not become familiar with the alleged problem of stray voltage injury to dairy cattle.

Id., 348 Pa.Superior Ct. at 183, 501 A.2d at 1131.

Thus, the issue becomes whether the complaint filed in the instant action is of such a nature that referral to the PUC was proper. Appellant’s complaint provides, in pertinent part:

10. On or about November 9, 1986, PECO suddenly, and without prior notice to [Appellant], wrongfully, negligently, carelessly, and without reasonable cause, caused or permitted a surge or surges of electrical power through the electrical lines and into [Appellant’s] business premises causing severe damages to the computer photographic processing equipment at the premises.
11. Since November 9, 1986, in spite of numerous complaints, the electrical power supply of [Appellant] has been the subject of surges and diminution and/or loss of power which have and continue to interfere with [Appellant’s] equipment and its business.
12. The negligence, carelessness and lack of reasonable care on the part of PECO as mentioned above consists of the following:
(a) [PECO] failed to maintain adequate and reasonable equipment, including equipment to protect [Appellant] from variations in the flow of electrical power and the complete loss of power.
(b) [PECO] failed to take adequate action to investigate and correct deficiencies in its equipment and supply of electrical power which caused harm to [Optimum].
(c) [PECO] allowed the interference with electrical power to [Optimum] to continue for an unreasonable length of time without due cause or justification.

Optimum also states that, on more than one occasion, the electrical power supplied by PECO exceeded the ten percent variation allowed by PECO’s tariff filed with the PUC. In addition, Optimum, through answers to expert interrogatories, alleges that the power with which it was supplied was substandard and outside the regulatory requirements and that the problem it experienced was not investigated with the proper equipment. For example, in its memorandum in support of matters complained of on appeal, Optimum states that controversy would include such issues as whether “spikes” appearing on a recording voltage meter PECO installed at its place of business were the result of PECO’s improper installation or actually reflected substantial and extended voltage increases. In response, PECO contends that it at all times provided electrical power in compliance with its tariff filed with the PUC and otherwise furnished and maintained adequate, efficient, safe and reasonable services and facilities to Optimum.

Upon careful review of the record, we conclude that the expertise of the PUC is required to decide the present dispute. Matters relating to tariff, necessity of equipment, deposits and use of various types of services are within the particular expertise of the PUC. Morrow v. Bell Telephone Co. of Pennsylvania, 330 Pa.Super. 276, 479 A.2d 548 (1984). The Public Utility Law of Pennsylvania provides that the PUC prescribes, as to service and facilities, just and reasonable standards, classifications, regulations and practices to be furnished, imposed, observed and followed by any and all public utilities. Further, the law provides that the PUC may prescribe adequate and reasonable standards for the measurement of quantity, quality, pressure, initial voltage or other condition pertaining to the supply of service. In addition, the statute provides that the PUC may prescribe reasonable regulations, specifications and standards to secure the accuracy of all meters and appliances for measurement. Act of July 1, 1978, P.L. 598, No. 116; 66 Pa.C.S.A. § 1504. Faced with the averments of the complaint, and the allegations raised in the answers to expert interrogatories, the trial court, in its discretion, availed itself of the bifurcated procedure of referring the liability part of Appellant’s claim to the PUC. Unlike the claims in DeFrancesco and Schriner, supra, we find these allegations encompass more complex, technical claims and that the alleged problem with the supply of electrical power continued over an extended period of time. Optimum not only takes issue with the quality of electric supplied to its premises but also the equipment used to measure same. Thus, we hold that the referral of the matter to the PUC was proper.

Optimum’s remaining claims on appeal are that the trial court erred in denying its motion to amend its complaint and its motion for leave to file a nunc pro tunc demand for jury trial. PECO contends that the order denying these motions is interlocutory in nature and therefore not properly before this Court. We agree.

In Barr v. General Accident Group Insurance Company, 360 Pa.Super. 334, 520 A.2d 485 (1987), this Court considered the appealability of an order denying amendment of a complaint:

In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramification. The finality of an order is a conclusion which can be reached only after an examination of its ramifications. When an order so restricts the pleader as to virtually put him out of court on the cause of action he seeks to litigate, it is a final appealable Order.

Id., 360 Pa.Superior Ct. at 344, 520 A.2d at 490 (citations omitted). An order is also deemed final if it precludes a party from presenting the merits of his or her claim to the trial court. Lansdowne v. G.C. Murphy Co., 358 Pa.Super. 448, 517 A.2d 1318 (1986).

The order rendered in the present case did not have the practical effect of placing Optimum out of court as to a cause of action against PECO. Optimum concedes it in its brief that it wished to add a contract claim and strict liability claim to its complaint because it was easier to prove. (Optimum’s Brief at p. 6). By these assertions, Optimum admits that it merely wished to add alternative theories of recovery. Thus, it is still able to proceed with its claim against PECO. As we do not find that Optimum’s requested amendment to its complaint would add a cause of action sufficiently distinct and separate from the cause of action already sued upon, we conclude that the denial of Optimum’s motion to amend is interlocutory. We therefore quash this part of Optimum’s appeal.

Finally, we conclude that the order denying Optimum’s motion for leave to file a nunc pro tunc demand for jury trial is interlocutory as it in no way affects Optimum’s ability to pursue their cause of action. To consider the appeal of this order, at this time, would be to create the piece-meal litigation which was to be prevented by ruling matters interlocutory. Sweener v. First Baptist Church of Emporium, Pa., 516 Pa. 534, 533 A.2d 998 (1987). Thus, we also quash this part of Optimum’s appeal.

The order referring this case to the PUC is affirmed. The appeal from the order denying Optimum’s motion to amend its complaint and its motion for leave to file a nunc pro tunc demand for jury trial is quashed.

      . Optimum also discusses whether the transfer order is appealable. PECO does not contest the appealability of this order. PECO does, however, contest the appealability of the denial of Optimum’s two other motions. These latter motions will be discussed below.