author: TAMILIA, Judge:

text:
    623 A.2d 850
    Joseph E. DOLAN and Janet M. Dolan, His Wife and Dolan Construction, Inc., Appellants, v. CARRIER CORPORATION and Alltemp Enterprise, Inc. The Most Reverend Thomas J. WELSH, D.D., J.C.D., Appellant, v. CARRIER CORPORATION and Alltemp Enterprise, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed April 23, 1993.

      Frederick K. Hatt, Reading, for appellants.
    Christine M. Mooney Brenner, Philadelphia, for Carrier Corp., appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

The plaintiffs, Joseph E. and Janet M. Dolan, Dolan Construction, Inc., and the Most Reverend Thomas J. Welsh, appeal from the June 30, 1992 judgments entered in favor of the defendants, Carrier Corporation (hereinafter Carrier) and Alltemp Enterprise, Inc. (hereinafter Alltemp). The appellants’ suit, asserting strict liability, negligence and breach of warranty, alleged a gas furnace manufactured by Carrier and installed by Alltemp was the cause of a fire in a building owned by the Dolans and in which Welsh had stored personal property. Under special verdict the jury found the furnace was not defective and a verdict was entered in favor of appellees. Post-trial motions were denied, judgments were entered and this appeal followed.

Appellants present four issues for our consideration beginning with the allegation the trial court erred by allowing Dr. Lewis Mifsud, defendants’ expert witness on fire investigations, to exceed the scope of his pre-trial written report and testify regarding a gas regulator valve of the type contained in the furnace involved in the fire. (N.T. 10/25/91, p. 573.)

In reviewing a trial court’s admission of testimony, this Court will reverse only if there has been an abuse of discretion or error of law. Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 595 A.2d 1211 (1991); Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990). Upon plaintiffs’ objection to Dr. Mifsud’s testimony, a side bar was conducted after which the trial court ruled the gas regulator valve was mentioned in Mifsud’s written report by inclusive reference to a heating unit component and his testimony was admissible as rebuttal to the testimony of plaintiffs’ expert (N.T. 10/25/91, p. 574). Our review of the record and appellants’ argument reveals no basis upon which to find the trial court abused its discretion or committed an error of law by allowing Dr. Mifsud’s testimony. Accordingly, we find appellants’ argument to be without merit.

Next, appellants argue the trial court erred by allowing the testimony of Fire Marshall Dolores Lorah regarding the origin of the fire. Specifically, appellant contends it was error to allow Lorah to opine where the fire did not originate after she earlier had testified she was unable to state, with a reasonable degree of certainty, the fire’s point of origin.

We have considered this argument bearing in mind the previously stated standard of review for the admissibility of testimony and, in the interest of judicial economy, have set forth the trial court’s reasoning for denying this argument, adopting it in support of our finding the trial court did not err.

Defendant’s expert may not know the precise area of the origin of the fire, but she can testify as to those areas she eliminated as the origin. The essence of Lorah’s testimony is that while she can’t tell the jury where the fire started, she can tell them where it didn’t start. There is nothing improper with such testimony when considering the parties’ different burdens of proof in this action.
Plaintiffs have the burden of persuading the jury that the fire was caused by Defendant’s defective furnace, and therefore, that the fire originated in the area where the furnace was located. Defendant has a right to rebut this evidence by showing that the fire did not start in the area where Plaintiffs say it did. The Fire Marshall could disagree with Plaintiffs’ theory of origin, without first identifying the area where the fire did start. Undoubtedly, the Fire Marshall’s testimony would be stronger and more persuasive if she could provide the jury with an alternative area of the fire’s origin, rather than simply disagreeing with Plaintiffs’ proposed origin. If she is unable to determine the fire’s origin, however, she is not then disqualified from explaining why Plaintiffs’ offered origin is wrong. The weight of her testimony is for the jury to determine.

(Slip Op., Schaeffer, J., 9/9/92, p. 6.)

Appellants also argue they are entitled to a mistrial as a consequence of the following inadvertent comment regarding insurance made by defense witness Fire Marshall Lorah.

Q. [Defense counsel] And could you tell the jury, please, the name of those persons? As you can remember them?
A. [Defense witness, Fire Marshall Lorah] I first became involved in the investigation the day following the fire incident. I was out of state at the time of the fire on March 22nd. I believe the date was March 23rd, and I was in the company of Terry Wagner, who is — who was at that particular time an investigator for the City of Reading’s Bureau of Police and worked with the fire department on fire investigations. I believe also that date that — I know that Mr. Dolan was there. I had asked him questions. I believe that Mr. Goetz was also there. Martin Goetz from the Pennsylvania State Police.
Q. And what else can you recall?
A. Okay. On the March 23rd date I believe that Mr. Sterner, Robert Sterner, was also there and he was an investigator hired by, I believe, the insurance carrier for Dolan, [emphasis added.]
Q. On the — can you tell the jury whether before that day you’d had any training as a fire investigator?
A. Okay.
MR. KOZLOFF: [Plaintiffs’ counsel] Your Honor, may we see the Court at sidebar?

(N.T. 10/24/91, p. 366.) After a side bar discussion, the court denied appellants’ request for a mistrial and offered an immediate, curative instruction which plaintiffs’ counsel refused. (Id. pp. 369-370.)

Whether a trial court has abused its discretion by refusing a motion for a mistrial must be determined by the circumstances under which the statement was made and the precautions taken to prevent the statement from having a prejudicial effect on the jury. Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377 (1987). The general rule in Pennsylvania is that evidence of insurance is irrelevant and prejudicial and justifies the grant of a mistrial. Paxton Nat. Ins. Co. v. Brickajlik, 513 Pa. 627, 631, 522 A.2d 531, 533 (1987). The reason is obvious: fact-finders should not be tempted to render decisions based upon the extraneous consideration that an insurance company will actually pay the bill. Id. However, the mere mention of the word insurance by a witness does not necessitate a new trial; rather, there must be some indication the [movant] was prejudiced. Phillips v. Schoenberger, 369 Pa.Super. 52, 534 A.2d 1075 (1987).

There is no evidence plaintiffs were prejudiced by the fire marshall’s inadvertent comment. Immediately after the insurance remark, defense counsel, without hesitation, began a line of questioning concerning the fire marshal’s qualifications. At side bar, an immediate curative instruction was offered but refused. Also, at the close of trial, plaintiffs chose not to request a charge on insurance. The prejudice appellants now allege they suffered as a result of the fire marshall’s statement obviously garnered potency as time passed. Moreover, the decision in favor of defendants was entered via special verdict wherein the furnace was found not defective thereby precluding all liability. Had the jurors been influenced by Lorah’s testimony, and, therefore, arguably swayed to deny damages, according to the special verdict questionnaire the jury had the option to find the furnace defective but not a contributing factor to the fire, obviating money damages. See Moidel v. Peoples Natural Gas Co., 397 Pa. 212, 154 A.2d 399 (1959) (After the introduction into evidence of the plaintiffs tax return which reflected a $100,000 insurance settlement, the jury returned an initial verdict in favor of defendant but with no liability to the plaintiff, an obvious indication they were influenced by the tax return and the related line of questioning.) The circumstances before us do not warrant a mistrial due to prejudicial error.

Finally, appellants argue the verdict was against the weight of the evidence. Appellants’ argument challenges the credibility of the witnesses and the weight given to their testimony by the jury.

The decision whether to grant a new trial on weight of the evidence grounds rests within the discretion of the trial court and that decision will not be disturbed absent an abuse of discretion. Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991) en banc. To warrant a new trial, the weight of the evidence must be so contrary as to shock one’s sense of justice. Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989). When a challenge to the weight of the evidence is predicated on the credibility of the trial testimony, this Court’s review of the factfinder’s verdict is extremely limited. Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990). The verdict in favor of the defendants indicates the jury chose to believe the opinion of appellees’ experts the fire started at the first floor level, below the room in which the allegedly defective furnace was located. We will not disturb the fact-finders’ decision on this issue.

Based on the foregoing reasons of law and fact, we affirm the judgments entered on June 30, 1992 in favor of the appellees.

Judgments affirmed.

      . The separate actions by the Dolans (No. 02780 Philadelphia, 1992) and Reverend Welsh (No. 02781 Philadelphia, 1992) against the appellees were consolidated for purposes of trial as were the respective appeals to this Court.

      . The record indicates plaintiffs did not request a limited instruction at the close of trial and, because neither party has provided this Court with a transcript of the actual instructions given, we are unable to determine if the jury was charged on the insurance issue.

      . As further explanation, when this initial verdict was rendered, the court instructed the jury it must find for either Moidel or Peoples. The jurors then retired and returned with the verdict "Peoples Natural Gas Company not guilty. Verdict — favor of Defendant Peoples Natural Gas Company.” Moidel v. Peoples Natural Gas. Co., 397 Pa. 212, 217, 154 A.2d 399, 401 (1959). Plaintiff appealed and the Supreme Court reversed, reasoning the owner’s evidence was sufficient to present a jury question as to the gas company’s negligence.


source: Caselaw Access Project

author:
OLSZEWSKI, Judge:
      WIEAND, Judge,

license: Public Domain

text:
    623 A.2d 854
    AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Appellee, v. George M. LAUGHLIN, Individually and Trading as Best Auto Tag Service, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed April 23, 1993.

      Joseph T. Kelley, Jr., Plymouth Meeting, for appellant.
    Barry N. Sklar, Jenkintown, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the Hon. Maureen F. Fitzpatrick’s order granting appellee American Express Travel Related Service Company’s [“AMEX”] petition for a preliminary injunction. Appellant George M. Laughlin, trading as Best Auto Tag Services [“Laughlin”] contends, for various reasons, that the injunction was improperly granted. We affirm.

Laughlin and AMEX entered into a contractual agreement whereby Laughlin issued money orders on AMEX’s behalf. Although the contract permitted- Laughlin to charge his customers a fee for his services, he received no right to possession or title in any funds he received in exchange for the orders. The contract specifically provides that Laughlin assumed a fiduciary duty as to all funds received on AMEX’s behalf:

1. Trust Relationship. AMEX appoints Agent [Laughlin] as its agent authorized to sell American Express Money Orders issued by AMEX (“Money Orders”) in accordance with the provisions stated herein. Upon execution of this agreement and pursuant to its terms, Agent shall be a trustee and act in a fiduciary capacity with respect to any Money Orders in Agent’s possession and Proceeds, as defined in subsection 2(d) hereof. Agent shall account for the money orders and proceeds separate and apart from all other funds and monies of Agent and shall not commingle the Money Orders and Proceeds with these other funds and monies. In the event agent does commingle Money Orders and/or Proceeds with any other funds and/or monies, such other funds and monies shall be deemed to be impressed with a trust with respect thereto. It is expressly understood that Agent does not, by operation of this Agreement, acquire any right, title, or interest of any kind in the Money Orders, the Proceeds, or the AMEX Fee as defined in subsection 3(b) hereof.

Trust Agreement, R.R. 66A.

The relationship between the parties was apparently amicable until AMEX became concerned over Laughlin’s “unstable” reporting patterns. AMEX performed an extensive audit in December of 1991, which disclosed that Laughlin had failed to remit over $180,000 in money order proceeds. Shortly thereafter, AMEX filed this equity action alleging, inter alia, that Laughlin breached his fiduciary duty by failing to remit the proceeds.

Before Laughlin filed his answer, AMEX filed a motion for a preliminary injunction, asking the court to prevent Laughlin from dissipating, alienating, transferring, concealing or substantially impairing the funds he held pursuant to the trust agreement. The injunction also sought an accounting of the trust proceeds, and remission of any trust proceeds to AMEX. The trial court held a two-day hearing on the injunction on February 11, and February 24, 1992. The only evidence at the hearing, presented by AMEX, established that AMEX’s audits were substantially correct and that Laughlin (through a conversation with AMEX’s auditor and a letter signed by Laughlin) tacitly admitted that he had not remitted $193,000 in proceeds to AMEX. The trial judge therefore determined that AMEX’s success on the eventual merits was likely and granted, the injunction. The injunction was conditioned upon AMEX’s posting a $180,000 bond in court.

Laughlin presents numerous arguments on appeal, all of which contend that the injunction, or portions of it, were improperly granted. He argues that the injunction should not have issued in the first place because AMEX had an adequate remedy at law and that AMEX has not shown irreparable injury requiring injunctive relief. He also contends that the trial court abused its discretion in granting an accounting and in requiring Laughlin to remit any proceeds in his possession.

“Appellate review of a decree granting a preliminary injunction is limited to whether the action of the court has any ‘apparently reasonable grounds.’ ” East Hills TV and Sporting v. Dibert, 366 Pa.Super. 455, 459, 531 A.2d 507, 509 (1987) (quoting Hospital Association of Pennsylvania v. Comm., Dept. of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981)). The purpose of a preliminary injunction is to preserve the status quo as it exists or as it existed before the acts complained of, thereby preventing irreparable injury or gross injustice. The injunction should not issue unless there is urgent necessity to prevent injury not compensable by damages. Maritrans v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992). We may reverse the trial judge only if she clearly has abused her discretion. Id. We find no such abuse.

Laughlin argues first that AMEX has an adequate remedy at law and is not suffering irreparable harm. He claims that any arrearages due to AMEX may await judgment after a hearing on the merits. We disagree. Since Laughlin’s relationship with AMEX is that of trustee, rather than debtor, the existence of a remedy at law is irrelevant. Restatement of Trusts (Second), § 199, comment a. Indeed, a trust beneficiary has an option to pursue either equitable or legal relief in an action against a trustee. Ramsey v. Ramsey, 351 Pa. 413, 41 A.2d 559 (1945); see Restatement of Trusts (Second), § 199.

Here, the trial judge determined that AMEX was likely to succeed in its action against Laughlin, given Laughlin’s tacit admissions that he did not remit the funds which he held on AMEX’s behalf. The court therefore enjoined him from concealing or dissipating those funds. Moreover, the court held that an injunction in this case is especially appropriate to return the parties to the status quo as it existed prior to Laughlin’s alleged breach of his fiduciary duty. The agreement between the parties specifically provides that Laughlin never acquired any interest whatsoever in the funds he received on AMEX’s behalf. Without injunctive relief enjoining further breach of Laughlin’s fiduciary duty, AMEX would suffer great injustice. Laughlin would be entitled to utilize, or perhaps conceal or destroy, proceeds in which he agreed he had no interest. The trial judge did not abuse her discretion in granting the preliminary injunctive relief.

Laughlin contends next that the trial court abused its discretion in granting the injunction because AMEX cannot identify a trust “res” for which he is responsible. He further argues that AMEX’s failure to identify the “res” renders an accounting unnecessary, since AMEX has acquired the necessary information regarding the proceeds through its audits. These arguments rest on the erroneous assumption that the court imposed a constructive trust on Laughlin’s assets.

As Laughlin correctly notes, a constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground that he will be unjustly enriched if he were permitted to retain it. Kimball v. Barr, 249 Pa.Super. 420, 378 A.2d 366 (1977). In such cases, the plaintiff must “trace” the trust funds into an identifiable fund which represents the trust property. City of Philadelphia v. Mancini, 431 Pa. 355, 246 A.2d 320 (1968). Here, the court did not impose a constructive trust on Laughlin’s assets and therefore it is not necessary for AMEX to “trace” the funds which Laughlin received. Instead, the trial court attempted to return the parties to the status quo by compelling Laughlin to conform to the express terms of the trust agreement. In other words, when Laughlin received cash in exchange for a money order, he was required to place the funds in a separate designated account. If he commingled the funds with his personal assets they immediately became trust funds by operation of the agreement. There is nothing “constructive” about the trust, since Laughlin agreed that any money he received for money orders was held on AMEX’s behalf. Moreover, AMEX’s audit only revealed the amount of funds Laughlin failed to remit, not their location. Only Laughlin knows what he did with the funds. The trial judge therefore properly compelled Laughlin to account for monies received on AMEX’s behalf.

Finally, Laughlin claims it was an abuse of discretion to require him to remit any trust funds to AMEX. He claims that such repayment is premature and should await resolution of the case on the merits. We disagree. The agreement, as we have repeatedly noted, clearly establishes that all monies received on AMEX’s behalf became trust property to which Laughlin had no possessory or legal rights. Thus, the injunction only requires Laughlin to remit proceeds to which he was never entitled. He suffers nó harm by remitting these funds and AMEX is assured that it can protect funds which it will likely be awarded. AMEX’s posted bond of $180,000 is sufficient to protect Laughlin’s interests if he eventually presents a successful defense. See, East Hills TV and Sporting v. Dibert, 366 Pa.Super. 455, 531 A.2d 507 (1987).

The preliminary injunction in this case was simply designed to place the parties in the status quo and to protect AMEX from losing funds to which it has proven, preliminarily, it is likely entitled. This is not an abuse of discretion.

The order is affirmed.

WIEAND, Judge,

dissenting:

In this appeal we are asked to review a preliminary injunction which enjoined George M. Laughlin, t/a Best Auto Tag Service, from “dissipating” the “value of the Trust Funds as detailed in the terms and provisions of the Trust Agreement” with American Express Travel Related Services Company, Inc. (AMEX). The defendant, by the same preliminary order, was also directed to state an account and “immediately surrender and return to Plaintiff all Trust Funds or assets impressed with a trust in Defendant’s possession, custody or control.... ” A majority of this Court affirms the preliminary order entered by the trial court. In my judgment, however, the preliminary order decided too much, was too broad in its scope and, indeed, constituted an abuse of discretion. The court could properly do nothing more than maintain the status quo until the rights of the parties could be fully litigated.

In May, 1989, AMEX and Laughlin entered into a written agreement by the terms of which Laughlin was to sell money orders for AMEX. The proceeds of these sales, according to the terms of the agreement, were to be deemed trust funds. Laughlin was to act in a fiduciary capacity, and the proceeds from sales of money orders were to be kept separate and apart from other funds held by Laughlin. Specifically, the parties’ agreement provided as follows:

1. Trust Relationship. Amex appoints Agent as its agent authorized to sell American Express Money Orders issued by Amex (“Money Orders”) in accordance "with the provisions stated herein. Upon execution of this Agreement and pursuant to its terms, Agent shall be a trustee and act in a fiduciary capacity with respect to any Money Orders in Agent’s possession and Proceeds, as defined in subsection 2(d) hereof. Agent shall account for the Money Orders and Proceeds separate and apart from all other funds and monies of Agent and shall not commingle the Money Orders and Proceeds with these other funds and monies. In the event Agent does commingle Money Orders and/or Proceeds with any other funds and/or monies, such other funds and monies shall be deemed to be impressed with a trust with respect thereto. It is expressly understood that Agent does not, by operation of this Agreement, acquire any right, title or interest of any kind in the Money Orders, the Proceeds or the Amex Fee as defined in subsection 3(b) hereof, (emphasis added)

These proceeds were to be remitted to AMEX in accordance with procedures established by other paragraphs of the agreement.

In November, 1991, AMEX became aware that Laughlin was not following the reporting procedures required by the agreement. Therefore, an AMEX representative was dispatched to conduct an audit of Laughlin’s books and records. As a result of this audit, it was determined that Laughlin had failed to remit almost one hundred ninety-three thousand ($193,000) dollars which were due AMEX.

On or about January 13, 1992, AMEX commenced an action in equity against Laughlin and requested the trial court to issue a preliminary injunction. When its request was heard by the court on February 11, 1992, AMEX called two witnesses. Jerry Horton, the AMEX employee who had conducted the audit of Laughlin’s records, testified that his audit had revealed a shortfall of funds paid to AMEX for money orders sold by Laughlin of approximately one hundred ninety-three thousand ($193,000) dollars. Ginger Waterbury, the manager of the AMEX collection unit, described the AMEX money order system and recited a telephone conversation with Laughlin following the audit in which he had confirmed a failure to submit all funds and had promised to remit monies due. This was further confirmed by a letter to AMEX signed by Laughlin. The hearing concluded before Waterbury could be cross-examined. The court subsequently entered the order from which the present appeal has been taken. Appellant argues that the AMEX claim is for the payment of money damages for which AMEX has an adequate remedy at law. He also contends that the trial court’s order, entered after only a preliminary hearing, has the effect of preventing his continuing to do business.

An action for breach of trust is an equitable proceeding, even if money damages are the only remedy sought. Philadelphia v. Penn Plastering Corp., 434 Pa. 122, 253 A.2d 247 (1969); Ramsey v. Ramsey, 351 Pa. 413, 41 A.2d 559 (1945); Commonwealth by Kane v. Hilton, 24 Pa.Commw. 285, 355 A.2d 841 (1976). “In the exercise of its jurisdiction over trustees and its power to require compliance with, and the performance of the duties and obligations of, a trust, equity will, in a proper case ... decree an injunction for certain purposes, such as to restrain an unauthorized sale or diversion of the trust property. Furthermore, a temporary injunction will lie to freeze the res of an alleged constructive trust upon a showing that the res is in probable danger of dissipation and that there is a reasonable likelihood of success on the merits with respect to the constructive trust claim.” 76 Am.Jur.2d, Trusts § 669.

The purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, thereby preventing irreparable injury or gross injustice. Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306 (1961). A preliminary injunction should issue only where there is urgent necessity to avoid injury which cannot be compensated for by damages. Independent State Store Union v. Pa. Liquor Control Bd., 495 Pa. 145, 432 A.2d 1375 (1981). The court which is to exercise discretion in the matter of issuance of an injunction is the trial court and not the appellate court and the action of the trial court may be reviewed on appeal only in the case of a clear abuse of discretion but not otherwise. Rick v. Cramp, 357 Pa. 83, 53 A.2d 84 (1947).

Maritrans v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 259, 602 A.2d 1277, 1286 (1992).

The evidence in this case was that the money owed to AMEX by Laughlin had not been kept separate and apart from other assets of Laughlin and, in fact, had been commingled with the general funds by which Laughlin conducted business. The moneys owed AMEX, therefore, no longer constituted a separate trust res. The parties’ agreement provided, if AMEX funds were commingled, that a trust should be impressed on any funds or assets with which the original trust funds had been commingled. In this case, that was all funds needed by Laughlin to conduct his business. Thus, when the trial court entered a preliminary order enjoining Laughlin from “dissipating, transferring, alienating, concealing, substantially impairing the value of the Trust Funds as detailed in the terms and provisions of the Trust Agreement,” and directing the immediate surrender of all assets impressed with a trust, it not only rendered a final decision, but it effectively prevented Laughlin from using its funds and assets to engage in future business. In my judgment, this was an abuse of discretion. If a specific trust res were no longer in existence, Laughlin was indebted to AMEX for the shortfall, but the trial court could not enter a preliminary order impressing a trust on all assets of the defendant and preventing his continuing to do business. Moreover, it could not decide the case finally without allowing the defendant to offer a defense.

It was also premature, in my judgment, for the trial court to order appellant preliminarily to render an accounting. The trial court had held only a preliminary hearing; it had not heard from the defense. Indeed, it is questionable whether the defendant had a full opportunity to cross-examine AMEX’s second witness. In any event, AMEX had already conducted an audit of appellant’s books and records. Therefore, it is not at all clear to me what additional information appellant can be expected to provide.

The record discloses unequivocally that Laughlin is indebted to AMEX for misappropriated funds. Unless Laughlin can show a defense to the claim by AMEX, the trial court will be required to fashion an order requiring repayment. At the present time, however, only a preliminary hearing has been held; the defense has not had an opportunity to be heard. For the trial court to enter an order deciding the merits of the case and granting AMEX full relief after only a preliminary hearing was, in my judgment, improper. I would reverse and remand for further proceedings.


author: HUDOCK, Judge:

text:
    623 A.2d 859
    COMMONWEALTH of Pennsylvania, Appellee, v. Betty IMES, Appellant, COMMONWEALTH of Pennsylvania, Appellee, Patrick IMES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 8, 1993.
    Filed April 23, 1993.

      Byron M. Yatron, Boyertown, for appellants.
    Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.
    Before CIRILLO, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

This is an appeal from the judgments of sentence entered in these consolidated cases against Appellants Betty and Patrick Imes. Both Betty and Patrick (mother and son) were convicted in a non-jury trial of theft by deception for their participation in, and ownership of, two carnival games. Post trial motions were filed and denied. Patrick was sentenced to one year probation and a $500 fine. Betty was sentenced to one year probation and a $300 fine. These appeals followed and were consolidated by stipulation. We reverse.

The facts which led to the arrest of Appellants involved a carnival which was being sponsored by the Downingtown Chamber of Commerce at Kerr Park in the Borough of Downingtown, Chester County. Patrick, Betty, and two other family members own Oscar Amusements, Inc., which provided the rides and arranged for the game booths. Patrick personally owns the milk bottle game involved in this action; Betty owns the milk can game also involved here. The trial court summarized the other pertinent facts of this case as follows:

On July 28, 1990, Trooper Richard M. O’Brien of the Pennsylvania State Police Barracks was directed to go to the carnival sponsored by the Downingtown Chamber of Commerce at Kerr Park in the Borough of Downingtown, Chester County, and while there observed two games, a milk bottle game and a milk can game.
The milk bottle game consisted of three white milk bottles. The object of the game was to knock all the bottles down. The cost was one dollar per game, and on this occasion Trooper O’Brien played this game twice. He further observed 18 to 20 people playing the game and observed no winners. The bottles were stacked with two on the bottom and one on the top, and there appeared to be no difference in the bottles to an observer.
The milk can game consisted of the standard milk cans, and the object was to toss a softball into the can. The cost was one dollar ($1.00) per game. Trooper O’Brien played this game with no success, and observed at least a dozen people attempt to win the stuffed toy animals, and observed no winners.
Trooper O’Brien also observed the balls strike the center of the can and bounce back on several occasions.
Corporal Ramos of the Pennsylvania State Police, Embreeville Barracks, also was detailed to observe these games. Trooper Ramos played and participated in the milk can game, and he, likewise, had no success, and he observed one dozen to two dozen people play, and also observed the ball bounce out of the center of the can a number of times.
Trooper Ramos also observed the milk bottle game and observed at least two dozen persons participate in this game, and did not observe anyone knock the three bottles down at the same time.
The officers convened to determine what they had observed from these two games along with other troopers who were situated in the park, and who also participated in these games. They concluded that they would shut down the two games. Trooper O’Brien went to the milk bottle game and identified himself as a Pennsylvania State Trooper to a Mr. Bowman, and indicated to him that he wanted to inspect the game.
Upon the inspection of the milk bottles, the trooper clearly noted the difference in weight of two of the three bottles, and those two were situated on the bottom row of the two-tier setup. Upon observing this difference in weight, Trooper O’Brien indicated that the game would be shut down, and at that time one Patrick Imes approached the trooper and indicated that he was the operator of the game.
Prior to the group of troopers meeting to converse, Trooper Ramos had stepped back from the milk can game to stand on a slight hill, or incline, and observed from his view that the milk can contained a metal ring inside of the can neck.
Trooper Ramos then approached the milk can game to inspect that game and observed Josh Painter and Joseph Imes behind the setup with aprons on, and made them aware at that time that he wanted to inspect the game, and the game was shut down.
At the time of the participation of Trooper Ramos in the actual games earlier that evening, he observed Betty Imes standing behind the counter wearing an apron and operating this game.
At the time of Trooper Ramos’ participation in the game, the only signs that were visible were signs that indicated, “one in, you win”. There were approximately four signs in and around this particular trailer area where this game was located.
At trial, the cans and bottles were accepted into evidence and this Court noted that some of the bottles were weighted and observed the inner ring structure of the cans.

Trial Court Opinion at pp. 1-4. (Footnote 2 omitted.)

Appellants raise the following issues in their appeal:

I. ARREST OF JUDGMENT.

A. Was the Commonwealth’s evidence insufficient as a matter of law because the Commonwealth failed to prove the elements of the creation or reinforcement of a false impression.
B. Must the Defendants be granted an arrest of Judgment because the Crimes Code and the Theft by Deception statute have no application to carnival games and/or to the conduct of the Defendants in this matter.

II. NEW TRIAL.

C. Must the Defendant’s [sic] be granted a new trial due to the introduction of evidence resulting from a warrant-less and illegal search and seizure.
D. Must [the] conviction of Betty Imes be reversed because it is against the weight of evidence which indicates that Betty Imes was not operating the milk can game.
E. Must the convictions for Theft by Deception be reversed because there exists an innocent explanation for the conduct for which the crime was charged.

Appellants’ Brief at p. 3.

We note initially that Appellants’ issue E has been waived for failure to raise it in their 1925(b) statement. Pa.R.A.P. 1925(b).

In reviewing a motion in arrest of judgment, we must determine whether the Commonwealth’s evidence was legally sufficient to support the verdict. Where the evidence is insufficient to establish guilt beyond a reasonable doubt as to the crimes charged, the motion is properly granted. The standard is the same whether a finder of fact was a jury or a judge sitting without a jury. Commonwealth v. Robinson, 351 Pa.Super. 309, 311-12, 505 A.2d 997, 998 (1986). In reviewing the evidence to determine whether it is legally sufficient, we must examine the evidence in the light most favorable to the Commonwealth as verdict winner and, in light of this and the permissible inferences which may be drawn therefrom, whether all of the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).

Appellants were charged with the crime of theft by deception which reads in pertinent part:

(a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promised]

18 Pa.C.S. § 3922(a)(1).

The Commonwealth argues that Appellants created a false impression that the two games were easier to win than they in fact were. The Commonwealth argues that because the milk bottles looked alike, people who would come to play the game would assume they were alike in all respects including their weight. Likewise, the Commonwealth argues that the milk can looked like an ordinary milk can, and because the can was positioned so that people could generally not see the opening of the can, people would assume that the opening was, in fact, the same size as the outside dimensions suggested, rather than substantially smaller as a result of a metal ring having been welded to the inside of the mouth of the can. The Commonwealth relied upon the observations of the state police officers in assessing the impact the games had upon those who played both games.

In response to the Commonwealth’s argument, Appellants assert that they created no false impression because they carefully designed the games to reflect a winning percentage which would enable them to make a profit. They argue that the prizes they award to a winner have a value between $25 and $35; therefore, the games must be sufficiently difficult to win in order to create the profit margin they placed on the games. They argue that merely making the game more difficult than it first appears is not sufficient alone to create a false impression. Furthermore, Appellants argue that the Commonwealth failed to prove that anyone was, in fact, deceived by the manner in which the games were conducted. We find this last argument of Appellants to be persuasive.

We held in Commonwealth v. Linder, 284 Pa.Super. 327, 334, 425 A.2d 1126, 1129-30 (1981):

Section 3922 of the Crimes Code clearly gives a person of ordinary intelligence notice that it is unlawful for that person to intentionally create a false impression in the mind of another and then use the other person’s reliance on the false impression to obtain someone else’s property. This statute does not penalize a person for what is in his mind, as appellant argues, but rather it punishes a person for his actions in creating the false impression and thereby obtaining another’s property.

(Emphasis added.) Therefore, the Commonwealth must establish not only the presence of a false impression, but the reliance upon that impression by the victim. See also Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344 (1933) (the crime of attempted false pretenses, now theft by deception, does not require that the victim be deceived, however, the completed offense does) and Commonwealth v. Mitchell, 234 Pa.Super. 21, 335 A.2d 521 (1975) (both cases under former false pretense crime). Therefore, the state of mind of the victim must be established in order to satisfy the element of “creating” or “reinforcing” the false impression.

At trial, the Commonwealth presented evidence that several state police officers played the two games, and observed other unnamed people play the games, all without success. We find, however, that none of the unnamed people were called to testify at the trial. Consequently, none of them could state whether they relied on a false impression which might have been created by Appellants. Furthermore, the state police officers who played the games were sent to the carnival by their supervising officer to investigate the two games as potentially fraudulent. The following exchange took place while Appellants’ counsel was cross-examining one of the state police officers:

Q: In fact, were you deceived?
A [Paul Ramos]: I was not deceived because I am an investigator, and I don’t believe I can be deceived.

N.T. 6/23/91 at p. 36. There was no testimony by the other officers that they had been deceived. All who testified agreed that they were investigating these two games at the request of their supervisor. It is apparent from this evidence that the Commonwealth failed to present any evidence that a victim had been deceived, and, therefore, gave up property in reliance upon any representation. As a result, we find that the Commonwealth failed to prove, beyond a reasonable doubt, reliance on a false impression, which is a necessary element of the crime of theft by deception. Therefore, we reverse the convictions of Appellants and direct that the charges be dismissed. Because of our disposition of this issue, we do not need to address the other issues raised in Appellants’ brief.

Judgments of sentence reversed. Jurisdiction relinquished.

      . 18 Pa.C.S. § 3922.

       The games were bought from an Allentown, Pennsylvania, toy company, but the bottles were purchased unweighted and Defendant had them weighted. (N.T., 6/24/92, p. 149). Trooper O'Brien testified that while the milk bottles appeared to be identical, and there were not [sic] signs that indicated otherwise, the bottle on top weighed one pound, while the two on the bottom weighed 12 pounds. (N.T. 6/23/91, 11:15 a.m. session, pp. 6, 11).

       In addition to this Court’s observation of the cans, Corporal Ramos testified at trial that based on training in carnival investigation, in order for the milk can game to be fair the needed to be a 30 inch clearance above the can and the opening [of] the can must be the width of the ball plus 3A of an inch. He further testified that neither of these requirements were present in the defendants’ games. (N.T. 6/23/91, 2:00 p.m. session, pp. 19, 20).

      . We do not decide whether the manner in which these games were conducted does create a false impression. We leave that issue to be decided another day because its resolution is not necessary to our disposition of this appeal.


author: PER CURIAM: HESTER, Judge,

text:
    624 A.2d 114
    William H. URBAN, Jr., Appellee v. RADICE CORPORATION, a corporation; Radice Office Building One, Inc., a corporation; and Radice Management of Pennsylvania Corporation; a corporation v. Robert COLOSIMO d/b/a Public Parking of Pittsburgh Company, Appellant. William H. URBAN, Jr., Appellee v. RADICE CORPORATION, a corporation; Radice Office Building One, Inc., a corporation; and Radice Management of Pennsylvania Corporation, a corporation v. Robert COLOSIMO d/b/a Public Parking of Pittsburgh Co., Appellee. Appeal of RADICE MANAGEMENT OF PENNSYLVANIA CORPORATION.
    Superior Court of Pennsylvania.
    Argued July 29, 1992.
    Filed March 8, 1993.
    Reargument Denied May 19, 1993.
    Before JOHNSON, Judge.

      Dara A. Decourcy, Pittsburgh, for Colosimo.
    Herbert N. Rosenberg, Pittsburgh, for Urban.
    Lynette Norton, Pittsburgh, for Radice Management.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   PER CURIAM:

Judgment vacated. The matter is remanded for new trial. Jurisdiction relinquished.

Concurring and dissenting opinion by HESTER, J.

HESTER, Judge,

concurring and dissenting.

I must respectfully dissent from the conclusion of my esteemed colleague that a new trial is warranted in this case. The majority has authored a well written adjudication, I believe, however, that the trial court did not abuse the wide discretion accorded it under our case law when it determined that the evidence of the prior accident was admissible.

The evidence produced by Mr. Urban is as follows. On December 7, 1984, Mr. Urban slipped in a parking lot which had been covered with an accumulation of snow and ice for several days. He now suffers serious and permanent injuries. Appellee, who was forty years old at the time of the accident, worked for AT & T his entire life. In spring, 1983, his office location was moved to a building owned by Radice Management of Pennsylvania (“Radice”). Mr. Urban regularly parked his automobile, a 1976 Mark IV Lincoln Continental that he kept in perfect condition, in the back portion of the rear lot to protect it from getting hit. At the time of Mr. Urban’s accident, Robert Colosimo, d/b/a Public Parking of Pittsburgh Company (“Colosimo”) was under contract "with Radice to clear snow from the parking lot.

The record is replete with evidence, including admissions of employees of Radice, that Colosimo was dismally negligent in fulfilling this contractual obligation, that Radice continually was informed of this default, and that Radice did nothing to correct the situation. When Mr. Urban started to work at the building site in 1983, it snowed several times. Mr. Urban complained to Dan Thomas and Les Ransom, Radice personnel involved in the management of the building, that the snow was not removed from the parking lot. Mr. Urban testified that all four parking lots which serviced the building were icy and hazardous every time there was below freezing precipitation. Most significant was Mr. Urban’s testimony that each time it snowed, the condition of the parking lot was very bad, that it was not “any different” from the day he fell, and that “all” of the parking lots servicing the building were in the same condition. Reproduced Record (“R.R.”) at 520a. Mr. Urban complained both to Thomas and Ransom and to his own manager about the lack of maintenance on the parking areas.

Mr. Urban’s testimony was supported by other witnesses. Joyce Imhoff, an AT & T employee who worked at the Radice building location since November, 1983, confirmed Mr. Urban’s testimony that there was no maintenance of any parking lots when it snowed. There were never any snow plows operating or salt being applied on the lots. She also complained to her managers about the condition of the parking lots. She stated that on the day of the accident, the ridge-filled ice had covered the entire parking area for two days. R.R. at 588a.

Two other AT & T employees testified similarly that nothing ever was done when there was ice and snow on the parking lots. Robert Leonard complained to Dan Thomas about the condition of the parking area and testified that he never recalled seeing any evidence of snow removal at the building. Judy Kimbrugh recalled having to hold onto cars to transverse the lots. She testified that there never was a clear path to use to get to her car after there was snow or ice, and she had complained to her supervisors at AT & T about the situation.

Sandra Weiland, supervisor for AT & T administrative services at the time, testified that when complaints were made by employees relating to maintenance, a member of her group would call Radice and convey the substance of the complaint. She confirmed that all parking lots servicing the building were generally ice covered, slippery, and hazardous during and after sub-freezing precipitation. She stated specifically that “generally all of the parking area was the same.” Supplemental reproduced record at 23b.

Thomas, Radice’s employee, acknowledged receipt of a number of complaints about the condition of the parking lots. These complaints were that the parking lots were not cleaned, were not salted, and were dangerous. He also acknowledged that the complaints were justified and that Radice was responsible for contacting Colosimo when maintenance was required.

The evidence relating to Mr. Urban’s fall was as follows. It snowed the first week of December, 1984. Colosimo contended that it plowed the snow on December 5, 1984, and salted the lots on December 6, 1984. On Thursday, December 6, 1984, however, the witnesses for Mr. Urban testified that the parking lots were all extremely hazardous since it snowed both December 5, 1984, and again that day. The snow had compacted into an icy, rough surface. No effort to clean the lots was made on December 6, and when Mr. Urban arrived at work on Friday, December 7, 1984, the parking lot was worse since the ice was covered with an additional light snow. When he left work that evening, traffic was very congested and cars were slipping on the icy lots. Mr. Urban noticed that there was no indication that any plowing or salting had occurred on the lots and that the ice had formed into ruts and ridges. There was no area cleared for pedestrian traffic and no way for him to get to his car without walking across the ice-covered parking lot. He fell and hit his head while attempting to reach his car. He was unconscious temporarily and now suffers permanent brain damage.

Richard Mancini, a forensic meteorologist, testified that the first significant snowfalls for the winter of 1984 were on December 5 and December 6. The snow started with flurries at 7:00 p.m. on December 5 and by midnight, 2.5 inches of snow was reported. An additional 1.5 inches fell between midnight and 7:00 a.m. on December 6. Snow flurries continued through the day and the temperature remained below freezing. Between 3:00 and 4:00 p.ni. on December 6, 1984, there was an additional accumulation of .8 inches of snow fall.

Mr. Mancini stated that if Colosimo had plowed the lot on December 5, as claimed, and then salted on the morning of December 6, as his invoice indicates, the condition of the lot would have been as follows at the time of Mr. Urban’s fall. There would have been uneven areas of snow and frozen slush that would have been very slippery. Since there would have been pedestrian or vehicular traffic over the area, the snow would be packed down to anywhere from one inch to one and one-half inches into a wavy surface unsafe for pedestrian traffic. Based on this evidence, the jury returned a verdict in favor of Mr. Urban and determined that Radice was ninety percent negligent and that Colosimo was ten percent negligent.

I agree with the majority’s cogent analysis of the first two issues presented in this appeal. There was sufficient evidence of hills and ridges to sustain the jury’s assessment of liability. Further, Mr. Urban’s evidence established that he did not have a safe path to travel to his car over the parking area, and therefore there was no evidence to warrant a jury instruction on assumption of the risk.

My departure with the majority comes with its conclusion that the evidence of the prior fall requires grant of a new trial. The testimony produced at trial supports the inference that whenever subfreezing precipitation occurred, the condition of the entire parking lot generally was the same: unmaintained, dangerous, icy, and snowy. This was applicable to the handicapped area where Robert Leonard fell as well as the area where Mr. Urban parked. The fact that the area where Mr. Leonard fell was slightly cleaner at times due to sun exposure vitiates Radice’s position on this issue, not Mr. Urban’s position. Significant also to my analysis is the fact that the snow caused Mr. Leonard’s fall. My review of the case law leads me to conclude that as long as a prior accident occurred under similar conditions, it is properly presented to the jury. Only where the plaintiff cannot establish that the cause of the prior accident was the same as the cause of the plaintiffs accident should the evidence of the prior accident be prohibited.

The law as to this issue is established. Evidence of prior accidents are admissible to prove the existence of a dangerous condition if the accident occurred at the same place and under the same or similar conditions. McCarthy v. Ference, 358 Pa. 485, 58 A.2d 49 (1948). Rogers v. Johnson & Johnson Products, Inc., 401 Pa.Super. 430, 585 A.2d 1004 (1990). Vernon v. Stash, 367 Pa.Super. 36, 532 A.2d 441 (1987). A trial court has wide latitude in determining whether evidence of prior accidents or occurrences should be admitted into evidence. Lynch v. McStome & Lincoln Plaza Ass’n, 378 Pa.Super. 430, 548 A.2d 1276 (1988). Further, if there are differences and similarities between the two accidents, the trial court has the discretion to determine if the similarities outweighed the differences.

I believe that McCarthy, Rogers, and Vernon compel our affirmance of the trial court’s decision in this matter. In McCarthy, the Pennsylvania Supreme Court ruled admissible evidence about a landslide prior to the landslide that caused the accident at issue. The Court concluded that it was not significant that the prior landslide occurred on a different portion of the landowner’s property because it was established that the condition along the stretch of land was similar. Thus, under the reasoning of McCarthy, the fact that Mr. Leonard fell on a different portion of the parking area cannot be determinative since the evidence clearly was that the entire parking area generally was in the same condition following a snowfall.

In Rogers, we held that evidence that a product was involved in burning other consumers was admitted properly where the plaintiff established that the product involved in the prior accidents was manufactured at the same time in the same plant. We concluded that the fact that different batches of the product were involved did not impact on the admissibility of the evidence, since the trial court reasonably could have concluded that the similarities in the accidents outweighed the differences for the purpose of establishing that the defendant should have had notice of the condition of its product. Similarly, in Vernon, we upheld the trial court’s admission of evidence that there were previous problems with a transmission in an allegedly defective truck where the transmission was responsible for the accident that caused the plaintiffs injuries.

Thus, it is where the plaintiff cannot establish that the cause of the prior accident was the same as the cause of his accident that such evidence is ruled inadmissible. In Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984), for example, we held that evidence that numerous other accidents occurred at a controlled intersection was admitted improperly into evidence because the plaintiff failed to establish that those accidents were caused by the same traffic signal timing problem that caused his accident.

Applying the same reasoning in Lynch v. McStome & Lincoln Plaza Ass’n, supra, we held that the fact that other people fell when elevators stopped abruptly was not admissible where there was no evidence that the defendant had manufactured the other elevators and no evidence regarding the causes of the incidents. Also compare Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), where the plaintiff failed to substantiate that prior accidents were similar to his or the circumstances under which the accidents occurred.

In the present case, there was sufficient evidence from which the trial court could have concluded that the prior accident occurred under sufficiently similar conditions to have warranted its admission into evidence. It occurred at the same place and under similar conditions, and the fall was caused by the same condition that caused Mr. Urban’s fall. As I cannot conclude that the trial court abused the wide latitude accorded it on the admission of evidence, I would not grant Radice and Colosimo a new trial on this basis.

I also must disagree strongly with the majority’s conclusion that the condition of the lots at times other that December 7, 1984, was irrelevant. Liability in this case was premised upon the condition of the landowner’s property and the landowner’s knowledge of it. The facts that this parking area never was maintained following snowfalls and that Radice was aware of this were directly relevant to its negligence since it established Radice’s notice and knowledge that the lots were not being maintained properly. Radice attempted at trial to shift responsibility for this accident to Colosimo, which was contractually obligated to keep the area free of snow. This made the evidence even more relevant as the prior complaints established both Radice’s knowledge that Colosimo was not fulfilling its obligation and Radice’s failure to correct the situation. I conclude the evidence was highly relevant to the issue of Radice’s notice of the condition of their parking area after snowfalls and whether they discharged their duty as landowners to their invitees properly. See Mitchell v. Borough of Rochester, 395 Pa. 373, 150 A.2d 338 (1959); Fritzky v. City of Pittsburgh, 340 Pa. 217, 16 A.2d 422 (1940). Evidence is relevant if it tends to establish a fact at issue or advances the inquiry. I believe highly relevant the fact that Radice let this lot remain unattended after snowfalls despite repeated, warranted complaints. This evidence impacted directly on the issue of whether it was negligent.

As I find the other issues raised on appeal to be without merit, I would affirm the judgment.


author: WIEAND, Judge:

text:
    624 A.2d 117
    Marie COLLAS and Ronald Collas, H/W, Appellants, v. Michael GARNICK, Esquire, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed March 10, 1993.
    Reargument Denied May 17, 1993.

      Armando A. Pandóla, Jr., Philadelphia, for appellants.
    Arthur W. Lefco, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

If a lawyer negligently advises a client regarding the effect of a release and the client, in reliance on the lawyer’s advice, signs a release which unintentionally has the effect of barring an action contemplated by the client, is the lawyer immune from liability because the release was executed as part of the settlement of a prior, separate action. The trial court held that the lawyer was immune from liability and sustained preliminary objections in- the nature of a demurrer to a complaint filed by the client against the lawyer for legal malpractice. The client appealed. We reverse.

Marie Collas was injured in an automobile accident in 1986. At the time of the accident she was a passenger in the rear seat of a vehicle which collided with a vehicle owned by Park’s Cleaners, Inc. She and her husband, Ronald, employed Michael Garnick, Esquire, to represent them in the pursuit of claims arising from the accident. Pursuant to this employment, Garnick caused a writ of summons to be issued against Park’s Cleaners in October, 1987, and effected a settlement of the claims of Marie and Ronald Collas for two hundred forty-five thousand ($245,000.000) dollars.

In order to complete the settlement, Marie and Ronald Collas were requested to execute a general release which, by its terms, released and discharged the other driver and all other parties, known or unknown, who might be liable for the damages sustained. Before signing the release, according to the averments of the present complaint, Marie Collas asked her lawyer if the release would have any impact upon her plan to sue the manufacturer of the vehicle in which she had been riding or any other tortfeasor. Her lawyer, she alleges, assured her that a viable cause of action against the designer and manufacturer of the car’s seat belt system would survive the release which she was being asked to sign in connection with the settlement of her claim against Park’s Cleaners. In reliance on Garnick’s advice, according to the complaint, she and her husband signed the release. Garnick’s advice, she alleges, was incorrect and was based on a negligent failure to interpret correctly the language of the release.

In October, 1989, the Collases filed an action against the manufacturer of the seat belt restraining system of the vehicle in which Marie had been riding. The trial court held that the action was barred by the prior release and dismissed the action. The Superior Court affirmed, see Collas v. Key Hyundai, Inc., 415 Pa.Super. 652, 601 A.2d 367 (1991). The Supreme Court denied allocatur, see 530 Pa. 630, 606 A.2d 900 (1992).

The Collases then filed an action against Garnick for legal malpractice. Garnick, however, filed preliminary objections in the nature of a demurrer to the complaint. The trial court sustained these preliminary objections and dismissed the complaint. The court held that the action was barred by the decision of the Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346, reh. denied, 528 Pa. 345, 598 A.2d 27, cert. denied, — U.S. -, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). From the judgment entered in the trial court, the Collases have appealed to this Court.

In reviewing the trial court’s ruling, we accept as true all factual averments contained in the complaint and all inferences reasonably deducible therefrom. We then determine whether, on the facts alleged, the law says with certainty that no recovery is possible. Where a doubt exists, that doubt is resolved in favor of the plaintiff. Kemper National P & C Companies v. Smith, 419 Pa.Super. 295, 299, 615 A.2d 372, 374 (1992); Taras v. Wausau Insurance Companies, 412 Pa.Super. 37, 42, 602 A.2d 882, 884, allocatur denied, 532 Pa. 657, 615 A.2d 1313 (1992).

The elements which must be alleged in order to state a cause of action for legal malpractice are: “the employment of the attorney or other basis for duty; the failure of the attorney to exercise ordinary skill and knowledge; and that such negligence was the proximate cause of damage to the plaintiff.” Liberty Bank v. Ruder, 402 Pa.Super 561, 567, 587 A.2d 761, 764-765, allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991). See also: McHugh v. Litvin, Blumberg, Matusow & Young, P.C., 525 Pa. 1, 5, 574 A.2d 1040, 1042 (1990); Rizzo v. Haines, 520 Pa. 484, 499, 555 A.2d 58, 65 (1989). A lawyer will be found to be negligent if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances. McPeake v. Cannon, Esquire, P.C., 381 Pa.Super. 227, 232, 553 A.2d 439, 441 (1989). The lawyer has a duty to inform himself or herself of the manner in which a proposed settlement affects the client and to inform the client regarding consequences thereof. 7A C.J.S. Attorney and Client, § 261 (1980), citing Wade v. Clemmons, 84 Misc.2d 822, 377 N.Y.S.2d 415 (1975). See also: In re Snitoff, 53 Ill.2d 50, 289 N.E.2d 428 (1972), cert. denied, Snitoff v. Board of Managers of Chicago Bar Assn., 412 U.S. 906, 93 S.Ct. 2292, 36 L.Ed.2d 971 (1973). As one trial court has observed,

a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.

Lang v. Anton, 40 D. & C.3d 47, 48 (Wash.1983). See also: Ziegelheim v. Apollo, 128 N.J. 250, 262, 607 A.2d 1298, 1304 (1992) (attorneys should advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks.). Although a lawyer is not expected to be infallible, he or she is expected to conduct that measure of research sufficient to allow the client to make an informed decision. 7A C.J.S. at § 257. In order for a lawyer to advise a client adequately, he or she is obligated to scrutinize any contract which the client is to execute, and thereafter must disclose to the client the full import of the instrument and any possible consequences which might arise therefrom. Id. at n. 96, citing Ramp v. St. Paul Fire & Marine Insurance Co., 263 La. 774, 269 So.2d 239 (1972); Gill v. DiFatta, 364 So.2d 1352 (La.App.1978). See also: Soderquist v. Kramer, 595 So.2d 825 (La.App.1992); Bush v. O’Connor, 58 Wash.App. 138, 791 P.2d 915 (1990). The lawyer, moreover, must be familiar with well settled principles of law and the rules of practice which are of frequent application in the ordinary business of the profession. George v. Caton, 93 N.M. 370, 377, 600 P.2d 822, 829 (1979).

The effect of a general release is a basic principle of contract law. In Pennsylvania, the decisions have repeatedly interpreted provisions similar to those in the instant release and have determined the effect thereof. See: Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961); Mayer v. Knopf, 396 Pa. 312, 152 A.2d 482 (1959); Brosius v. Lewisburg Craft Fair, 383 Pa.Super. 454, 557 A.2d 27 (1989). It would appear, therefore, that allegations of plaintiffs’ complaint, which suggest that the defendant-lawyer failed to exercise care and thereby misinterpreted the effect of the release which his clients had been asked to sign, were sufficient to state a cause of action for legal malpractice. The defendantappellee, in his capacity as lawyer, had been requested specifically by his clients for advice regarding the effect of the language contained in the release and had given advice which was erroneous. Not only was it erroneous, but it fell below standards which the clients had a right to expect of their lawyer. If he was unfamiliar with the effect of a general release, he had a duty to conduct the necessary research to enable him to advise his clients regarding the effect of the contract about which the clients had requested advice.

The decision of the Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, supra, has no application to the facts of this case and does not require a dismissal of the complaint. There, the plaintiffs had agreed to accept the sum of twenty-six thousand, five hundred ($26,500.00) dollars in full settlement of their claim for the death of a son who had died following surgery. In an action against their lawyers because of the alleged inadequacy of the settlement, the Supreme Court upheld an order dismissing the complaint. The Court said:

This case must be resolved in light of our longstanding public policy which encourages settlements. Simply stated, we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when that client has agreed to a settlement. Rather, only cases of fraud should be actionable.

Id. 526 Pa. at 546, 587 A.2d at 1348.

In the instant case, the plaintiffs have not alleged an inadequacy of the settlement negotiated by their lawyer. Instead, they complain that their lawyer negligently gave them bad advice about .a written agreement which they had been asked to execute. The fact that the written agreement was prepared as part of the settlement of their prior action was incidental; it did not relieve counsel of an obligation to exercise care in. determining the effect of the agreement which his clients were being asked to sign. This was particularly so where, as here, the clients had specifically asked the lawyer regarding the effect of the release and had told him of their plans to file a second action for the wife-claimant’s injuries. With respect to his advice regarding the agreement of release, counsel was required to exercise the same degree of care as he or she would have exercised in advising a client about a complex agreement not a part of the settlement of a legal action.

The present action also is not controlled by the recent decision of the Superior Court in Miller v. Berschler, 423 Pa.Super. 405, 621 A.2d 595 (1993). There, a husband filed an action for legal malpractice against a lawyer who had failed to advise the client that under the Divorce Law in Pennsylvania a duty to pay alimony terminated at such time as the receiving wife entered into cohabitation with another man. As a consequence, the client had entered into a marital settlement agreement which required him to pay alimony even though his wife was cohabiting with another man. The Superior Court, relying upon the decision of the Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, supra, held that because the husband had agreed to the marital settlement, he could not maintain an action against the lawyer who had failed to advise him fully of the applicable law.

In the instant case, the plaintiff-appellants do not complain of the settlement in their action against Park Cleaners. The prior action, they agree, was fully settled, and they do not wish to open it or be compensated for any inadequacy therein. Before signing a release, however, they asked their lawyer whether the release would affect adversely an action which they planned to bring against the manufacturer of the seat belt assembly. This, in effect, was a request for advice and legal assistance in connection with a separate action. It was in regard to this separate action that the defendant-lawyer failed to exercise that degree of care which his clients were entitled to expect. Because he failed to exercise that degree of care which a lay person has a right to expect from a practitioner of the law, the plaintiff-appellants lost their right to maintain an action against the manufacturer of the seat belt assembly. To an action for legal malpractice of such a nature, the decision in Miller v. Berschler, supra, does not speak.

If the averments of the complaint are correct, the defendant-lawyer’s negligence resulted in the defeat of a claim which his clients intended to pursue. In determining whether there is liability, the lawyer’s conduct must be measured according to the same standard applicable to a missed statute of limitations. A different standard does not apply merely because the lawyer’s negligence, if any, occurred as part of the settlement of another claim.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Marie Collas’s injuries were to her intestines and to her back. She incurred medical expenses in excess of one hundred twenty thousand ($120,000.00) dollars.


author: HOFFMAN, Judge:

text:
    624 A.2d 122
    Robin E. HILLWORTH, Appellant, v. Daniel A. SMITH and Harry J. Smith.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1992.
    Filed March 16, 1993.
    Reargument Denied May 20, 1993.

      Stephen H. Price, Wyomissing, for appellant.
    Bradley D. Miller, Reading, for appellees.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order dated April 13, 1992, granting appellee Daniel A. Smith’s motion for summary judgment. Appellant, Robin E. Hillworth, presents one issue for our review.

Did the [appellee] demonstrate by the pleading, depositions, answers to interrogatories, affidavits, or admissions of record that no genuine issue of material fact existed so as to entitle him to summary judgment as a matter of law which judgment would result in dismissal of [appellant’s] complaint which sought to recover the amount of underinsured motorist protection afforded to [appellant] by her insurance carrier?

Appellant’s brief at 2. For the following reasons, we reverse and remand.

On July 16,1986, appellant, a passenger in a truck driven by appellee, was rendered a paraplegic as a result of a single motor vehicle accident. Subsequent to the accident, appellant instituted an action against appellee and his father, the owner of the truck [hereinafter “first action”]. Prior to filing a complaint in the first action, appellant entered into a release and settlement agreement with appellee’s insurer, Brotherly Aid Liability Plan for the Lancaster Mennonite Conference [hereinafter “Brotherly Aid”].

The release settlement agreement provided that Brotherly Aid was to pay appellant $250,000 in consideration for appellant releasing appellee and Brotherly Aid from all causes of action and claims except those set forth in the release and settlement agreement. Specifically, appellant was permitted to maintain an action against appellee as follows:

[Appellant] expressly states that by executing this release, she does not waive any of the rights of Donegal Mutual Insurance Company to proceed against [appellee]. Further, [appellant] may bring suit against [appellee] for the benefit of Donegal Mutual Insurance Company in an effort to protect the rights of the Donegal Mutual Insurance Company only to the extent of its underinsured motorist coverage payment of $100,000.00.
Notwithstanding the foregoing provisions, it is agreed between the parties hereto that the injured person’s damages are hereby reduced to the exten[t] of the amount of the consideration paid for in this release and that other than the interest of Donegal of $100,000.00 underinsured motorist coverage, no further liability for damages is owed by the [appellee] to the [appellant].

Release Settlement agreement, September 18, 1987.

The $100,000.00 mentioned in the release settlement agreement represents the policy limits of underinsured motorist coverage which, appellant’s insurer, Donegal Mutual Insurance Company [hereinafter “Donegal”], paid to appellant. This amount was in addition to the $250,000 appellant received from Brotherly Aid in consideration for the release settlement.

On September 29, 1987, one day after the Release and Settlement agreement was signed, appellant’s attorney marked the first action docket “settled, discontinued, and ended, all costs paid by the defendants.” Appellant commenced the present action against appellee and his father, Harry J. Smith, in July 1988. Appellant’s complaint sought compensatory damages and punitive damages in excess of $500,000 against appellee.

Appellee filed a motion for summary judgment, which the lower court granted. The lower court held that appellant’s complaint did not come within the narrow exception permitted by the release. This timely appeal followed.

Our standard of review of a motion for a summary judgment motion is as follows:

The legal standards which govern our review of a grant of a motion for summary judgment are well-settled. Under Pa.R.C.P. 1035(b), summary judgment is properly granted only ‘if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issued as to any material fact and that he moving party is entitled to judgment as a matter of law.’ Id. In considering a motion for summary judgment, a court must examine the entire record in the light most favorable to the non-moving party, (citations omitted). The party moving for summary judgment has the burden of proof.
Barber v. Harleysville Mutual Insurance Co., 304 Pa.Super. 355, 450 A.2d 718 (1982).

Holmes v. Lado, 412 Pa.Super. 218, 223-224, 602 A.2d 1389, 1391, (1982), appeal denied, 530 Pa. 660, 609 A.2d 168 (1992).

Appellant first argues that although Donegal, the subrogated insurer, was not a named party in the present action, the lower court erred in holding that appellant’s complaint was precluded by the release settlement agreement. Specifically, appellant argues that pursuant to Pennsylvania Rules of Civil Procedure, the insured may institute a cause of action on behalf of the insurer in the name of the insured. Thus, appellant concludes that the lower court erred in finding that the present action was not pursued for the benefit of the insurer and thereby outside the terms of the release. We agree.

In granting appellee’s motion for summary judgment, the lower court held that:

[Appellant’s] complaint clearly does not state a cause of action within the narrow exception permitted by the release. It is a complaint by and for the [appellant] seeking to recover damages for any and all losses sustained by [appellant] as a result of the accident of July 16, 1986. Nowhere in [appellant’s] pleadings is it alleged that [appellant] has brought the action for the benefit of Donegal Mutual Insurance Company to recover payments made under Donegal’s underinsured motorist policy.

Trial Court Opinion, May 27, 1992 at 4.

Appellant, however, was not obliged to prosecute the instant action in the name of the subrogee insurer, Donegal. Pa. R.Civ.P. Rule 2002 states that:

(a) Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the nature of the real party in interest, without distinction between contracts under seal and plural contracts.
(d) Clause (a) of this rule shall not be mandatory where a subrogee is a real party in interest.

Id. Section (d) of Rule 2002 was enacted to avoid the prejudicial effect to both the insured and insurer which may result from disclosing the insurer’s interest in the claim. See Goodrich-Amram 2nd § 2002(d):l. Thus, it is clear that in the instant action, appellant was permitted to proceed in her own name under Rule 2002(d) without joining the subrogated insurer for whose benefit the action was brought. Rohm, & Haas Co. v. Lessner, 168 Pa.Super. 242, 77 A.2d 675 (1951); see also Paxton National Insurance Company v. Brickajlik, 513 Pa. 627, 631, 522 A.2d 531, 532 (1987) (“[W]e have long recognized the right of the subrogee to sue in either his own name or the name of the subrogor to recover monies paid.”) (citation omitted). Furthermore, when suit is commenced in the name of the insured alone, the cause of action will be pleaded as though there were no subrogation. The pleading will contain only the statement of the cause of action against the defendant and the damages claimed. There will be no reference to insurance, to payments made thereunder, or to subrogation. See Goodrich-Amram 2nd § 2002(d):2. Thus, appellant properly proceeded in the instant action under her own name and the absence of the subrogee’s name and interest was immaterial.

The lower court further held that appellant’s claims for punitive damages and damages in excess of $500,000 exceeded the narrow exception of the release. We disagree.

The release settlement agreement does not restrict the causes of action appellant is permitted to maintain against appellee. The release settlement agreement merely limits the amount of damages appellant may be awarded to $100,000.00, the amount of underinsured motorist benefits she received from Donegal. Therefore, whether appellant claims compensatory or punitive damages, or, as in the present case, both, is irrelevant. Appellant may proceed under any viable cause of action against appellee to recover the award to which she is entitled to under the release settlement agreement. Moreover, appellant is not prohibited from pleading damages in excess of $100,000.00.

In the case at bar, we find it would prejudice appellant to place a cap upon the amount of damages she can plead. Instead, we are in agreement with appellant that she may proceed under any viable theory of recovery against appellee for any amount subject to molding by the court to reduce a judgment over $350,000.00. Thus, we instruct the lower court to limit a judgment rendered in appellant’s favor to $350,-000.00. Appellee, moreover, is entitled to a credit for $250,-000.00, the amount already paid by his own insurance carrier to appellant. Therefore, appellant’s recovery, for the benefit of Donegal, to the extent the judgment exceeds $250,000.00, will be limited to $100,000.00. See, e.g., Gallop v. Rose, 420 Pa.Super. 388, 616 A.2d 1027 (1992) (trial court did not err in molding verdict to reflect insurance company’s subrogation rights).

Finally, appellee contends that because the first action, which resulted in the $250,000.00 settlement, was docketed and marked “settled, discontinued and ended” appellant is barred in the case at bar by the doctrine of res judicata. See, e.g., Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 325, 197 A.2d 44, 46 (1964) (“As between the parties involved, the settlement and discontinuance had the same effect as the entry of a judgment for the defendant in the proceedings.”). This argument, however, is meritless.

If the release settlement agreement in the present case was a general release, then appellant’s present action would be barred. However, because the release expressly permitted a subsequent action against appellant for the benefit of appellant’s insurer, the first action was not conclusive. Sustrik does not stand for the proposition that the discontinuance itself gives rise to res judicata. Rather, the terms of the release settlement agreement determines the effect of the discontinuance. Thus, in accordance with the release settlement agreement, appellant is permitted to proceed against appellee for the benefit of Donegal. For the foregoing reasons, we reverse the lower court’s summary judgment order and remand for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . The Brotherly Aid liability policy for appellee had a policy limit of $300,000.00. The settlement with Brotherly Aid during the first action included $250,000 to appellant and $50,000 shared by other claimants from the accident.

      . Appellee’s complaint also sought damages from Harry J. Smith, the owner of the truck. On January 30, 1992, however, the lower court granted summary judgment in his favor. Appellant has not pursued an appeal of that ruling.

      . Donegal’s right to subrogation is unequivocal. "Once the insurer has paid a claim to the insured, it may then stand in the shoes of the insured and assert the insured’s rights against the tortfeasor. The right to stand in the insured's shoes and to collect from the tortfeasor once it has paid the insured an amount representing the tortfeasor’s debt is called the insurer's right to subrogation.” Daley-Sand v. West American Insurance Company, 387 Pa.Super. 630, 564 A.2d 965 (1989). As Donegal has paid an underinsured motorist claim in the amount of $100,000 to appellant, pursuant to the release settlement agreement, Donegal has a right of subrogation against appellee.