author: POPOVICH, Judge:

text:
    589 A.2d 747
    Christopher F. PAGESH, Appellant, v. Paul K. UCMAN, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed April 19, 1991.

      P. Thomas Woodman, Pitthhm~gh, :~o~ appellant.
    David R. Johnson, Pittsburgh, for appellee.

      Before TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Allegheny County in favor of the defendant/appellee Paul Ueman, Jr. and against the plaintiff/appellant Christopher Pagesh. We affirm.

The instant litigation arises out of a water-skiing accident in which Pagesh was injured. The record supports the trial court’s version of the basic facts, which are as follows:

The Plaintiff, Christopher F. Pagesh, injured one of his legs seriously when he was water skiing with three other young men including his brother David and the defendant, Paul K. Ueman, Jr., who was taking his turn at operating the small boat at the time of the accident. The other two defendants were not present and had nothing to do with the case except owning the boat. The plaintiff’s leg got twisted somehow, which is said to be very unusual in water skiing which makes it all the more regrettable but it was transparent in the evidence that there was no legal fault on the part of the defendant. The basic movement of water skiing which is simply to coast along in a straight line behind the boat becomes boring to active young people very quickly and therefore they seek more sporting variations of action. A standard variation — -which most of us have observed from time to time — -is to operate the boat in circles to make waves and then pull the skier through the waves. The challenge is to maintain your balance as you bounce up and down between the troughs and crests and in a sense it sometimes is a sort of contest between the operator of the boat and the skier.
These four young men had been taking turns doing this and it was the plaintiffs final turn of the day and, of course, he was doing exactly what he wanted to do. His protests to the contrary undoubtedly were as incredible to the jury as they were to the trial judge and the matter was sealed when a recorded statement of his brother David was produced, which was taken before the brother was aware of the financial consequence of telling the truth and which completely supported the defense.*

Trial court opinion, at 1-2. Following a jury trial, a verdict was reached in favor of the defendant Ucman. Post-trial motions were denied. This appeal followed.

Pagesh has raised four issues for our consideration:

1. Did the trial court err in allowing the jury to consider the defense of assumption of the risk in the trial of appellant’s personal injury action?
2. Did the trial court err during jury instructions in commenting on the credibility and weight to be given by the jury to appellant’s brother’s testimony at appellant’s personal injury action?
3. Did the trial court err in refusing to allow appellant’s use of expert testimony at [the] trial of appellant’s personal injury action?
4. Did the trial court err in refusing to charge the jury pursuant to appellant’s suggested points for charge?

Appellant’s brief, at 3.

At the onset, we note that issue number 2 is waived. The law is clear that any objections to the jury charge must be lodged at trial and on the record. See Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990). Our Rules of Appellate Procedure also provide for this requirement. Pa.R.A.P. 302 reads:

(a) General Rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.
(b) Charge to Jury. A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.

The official comment to Rule 302 states, “[t]his rule sets forth a frequently overlooked requirement.” See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974). See also Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977) (party must specifically object to charge as given); Slater v. Pennsylvania Power Co., 383 Pa.Super. 509, 557 A.2d 368 (1989) (accord); Vernon v. Stash, 367 Pa.Super. 36, 48, 532 A.2d 441, 447 (1987) (“[objections not appearing in the record may not be considered on appeal.”).

We have reviewed the jury charge in its entirety. At the conclusion of the trial court’s instructions, the trial judge asked counsel if there was “[ajnything you want to bring up before they go out?” N.T., September 13-15, 1898, Jury Charge, at 19. Trial counsel did not raise the merits of issue number 2, above. Accordingly, this issue is waived. See also Pa.R.Civ.P. 227(b).

For the sake of convenience, we will now address Pages/’s fourth issue on appeal, to wit, that the trial court erred in failing to charge the jury in accordance with Pagesh’s proposed points for charge. Although the trial court did not use language identical to Pagesh’s, we are satisfied that the jury instructions were clear and proper.

The law is established in this area. Our scope and standard of review was set forth in Yost v. Union R. Co., 380 Pa.Super. 236, 551 A.2d 317 (1988):

The failure to give a requested point for charge, which is accurate and applicable, is reversible error if the appellant is prejudiced. Whether the jury should be instructed on a given point of law depends upon the facts and issues of the case. Ultimately, the trial judge is responsible for defining all pertinent questions of law, and all issues which are relevant to pleadings and proof may become the subject of jury instructions.

Id., 380 Pa.Superior Ct. at 244, 551 A.2d at 321 (citations omitted). Similarly, in Commonwealth v. Myers, 376 Pa.Super. 41, 545 A.2d 309 (1988), this Court stated:

In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls.

Id., 376 Pa.Superior Ct. at 50, 545 A.2d at 314 (citations omitted). See also Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 453, 539 A.2d 880, 882 (1988) (where the sufficiency of the jury charge is challenged, this Court must examine the instructions in their entirety against the background of the evidence); Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983) (jury charge must be analyzed in context). See also Murphy v. Publicker Industries, Inc., 357 Pa.Super. 409, 516 A.2d 47 (1986).

A trial court maintains wide discretion in phrasing points for charge and may use its own words as long as the issues and questions to be resolved are clear. See Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983); Commonwealth v. Jordan, 407 Pa. 575, 587, 181 A.2d 310, 316 (1962). Of course, these rules have been applied in the context of civil as well as criminal cases. See Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). See also Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987) (eels forth our scope of review in assessing a trial court's denial of a motion for a new trial).

With these standards in mind, we have reviewed the jury instructions and conclude that the trial court adequately covered the pertinent legal issues. The mere refusal of títie trial court to use the exact language supplied by the parties is not necessarily a ground for reversal Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966); Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983). We reject Pagesh's claim.

In conjunction with the above assertion, Pagesh’s first claim of error is that the trial court wrongly allowed the jury to consider the defense of assumption of the risk. Pagesh asset is the inapplicability of the defense, or more pointedly, the mlsappiieabllity of the doctrine to Ms case.

Thu majority of; Pagesh's argument is more focused, however. He posits that the doctrine is confusing, especially in light of the enactment of the Comparative Negligence Adátete, and that It should be abolished. While we are sympathetic to Pagesh's case, and to his frustration ingurting this issue:, the: fact remains nevertheless that the amvrariptloa of the risk doctrine is still alive and well in Pennsylvania. See Malinder v. Jenkins Elevator & Machine Company, 371 Pa.Super. 414, 427, 538 A.2d 509, 516 (1988) (en banc). Thus, despite tire valiant effort by Pagesh to have the» doctrino declared null and void or at least subsumed by the Comparative Negligence Statute, we decline to lake that step presently.

As the trial court recognized, this Court has recently discussed Aaisumptlon oí the risk” in Malinder v. Jenkins Elevator & Machine Company, 371 Pa.Super. 414, 538 A.2d 509 (1988) (en banc) and Howell v. Clyde, 383 Pa.Super. 611, 557 A.2d 419 (1989) appeal granted 525 Pa. 612, 577 A.2d 544 (1990). Contrary to Pagesh’s assertion that he "could not have assumed the risk of an activity he did not know was going to occur,” we are persuaded by the appellee’s argument that Pagesh sustained an injury that resulted from an ordinary risk associated with waterskiing. Although it is unfortunate that the accident happened, Pagesh, a skier since 1980, knew the dangers inherent in the activity. He voluntarily chose to ski and willingly, as far as we can discern from the record certified to us, accepted the risks. As Ucman aptly suggested in his brief,

... Pagesh was well aware of any alleged danger, and he had several opportunities to avoid any aspect of the alleged danger. He could have signaled the defendant to slow down, stop or change the course of the boat. In addition, Pagesh could have dropped the rope being used to pull him. Pagesh elected voluntarily to continue skiing, and to attempt to stay upright despite any turbulence that existed. Pagesh accepted the challenge, kept trying, and never attempted to stop or desired to stop. Thus, a jury could reasonably conclude that Pagesh, by failing to use the means available to avoid any danger with which he was presented, assumed the risk of injury.

Appellee’s brief, at 13. See Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986); Jones v. Three Rivers Management Corp., 483 Pa. 75, 85, 394 A.2d 546, 551 (1978). See also Mike v. Lebanon Miridites League, 421 Pa. 217, 218 A.2d 814 (1966). Thus, we must conclude that the trial court did not err in instructing the jury regarding the assumption of the risk principle. Cf. Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525 (1988) (discusses concepts of “no duty” and the assumption of the risk defense); see also id., 374 Pa.Superior Ct. at 140, 542 A.2d at 536 (“It is true that defendants have no duty to protect roller skaters against the typical risks of roller skating, such as falling down or being bumped by other skaters. These are risks general to skating at any rink.”). See Missar v. Camelback Ski Resort, 30 Pa.D & C 3d 579 (1984).

Finally, while Pagesh contends that the trial court should not have compared his injury to those sustained during the participation in other sports, our perusal of the law compels a different finding. See Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986) (member of baseball association assumed the risk of injury when he voluntarily participated in team tryouts); Podvin v. Somerton Springs Swim Club, Inc., 406 Pa. 384, 178 A.2d 615 (1962) (plaintiff who sustained injuries after slipping on sand on the volleyball court assumed the risks of the game); Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa.Super. 420, 576 A.2d 72 (1990) (plaintiff assumed the risk of being struck by a flying puck when he attended a hockey game). Here, we note only that the assumption of the risk doctrine has been applied in situations involving injuries sustained during sporting events. The trial court’s use of analogy was both understandable and justified. See Podvin v. Somerton Springs Swim Club, Inc., 406 Pa. 384, 386 n. 2, 178 A.2d 615, 617 n. 2 (1962).

As for Pagesh’s specific claim (that is, the trial court should not have compared the hazards that Pagesh encountered to the dangers endured in football or to the injuries that could be suffered in croquet), we will not discuss the merits further, in part because we found the analogies proper, and in part because Pagesh failed to object to the trial court’s classifications at trial. By not preserving this issue on the record following the trial court’s charge, Pagesh has now waived his right to challenge this portion of the charge. See Pa.R.A.P. 302(b). See Pa.R.Civ.P. 227(b). See also discussion relating to objections following the jury charge, supra. See Slater, supra. and Vernon, supra.

Pagesh’s final contention is that the trial court erred in excluding at trial the proposed expert testimony of Dr. Della-Giustina. Dr. Della-Giustina would have testified as to water dynamics and boating safety. See Appellant’s brief, at 16.

Again, the law is well-settled. The decision to admit or exclude evidence rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989). “The test to be applied in determining the admissibility of such evidence involves weighing the inflammatory nature of this evidence against its essential evidentiary value.” Id., 381 Pa.Superior Ct. at 366, 553 A.2d at 1012 (citations omitted). See Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985) (same standard); Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509 (1984) (same). In Concorde Investments, supra, this Court stated, “[t]he court may exclude evidence that is irrelevant, confusing, misleading, cumulative or prejudicial.” Id., 345 Pa.Super. at 56, 497 A.2d at 641. See also Keough v. Republic Fuel & Burner Co., 382 Pa. 593, 116 A.2d 671 (1955); Yost v. Union R. Co., 380 Pa.Super. 236, 551 A.2d 317 (1988) (defines relevant evidence).

We have reviewed Dr. Della-Giustina’s report and must agree with the appellee that Dr. Della-Giustina reveals the apparent and does not set forth or explain any matters that would aid the jury in their understanding of the case or that would augment their appreciation of the evidence presented at trial. The report is devoid of any information that would fall outside of the realm of common knowledge. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 272, 525 A.2d 1215, 1228 (1987). Evidently, the trial court considered the relevance and probative value of Dr. Della-Giustina’s report. In its opinion, the trial court stated, “[cjomplaint was also made that the Court should not have excluded the testimony of an expert in water skiing. Of course, no expert is needed in an obvious matter of this nature and the expert’s report was a dissertation of an extremely objectional nature.” Trial court opinion, at 2.

This Court has reviewed the lengthy record here, as well as the comprehensive briefs filed by the parties and the applicable law. After consideration, we find no error in the trial court’s decision to preclude Dr. Della-Giustina’s “expert” testimony. Certainly, the jury was capable of understanding what happened to Pagesh without further explanation of why water accidents occur. See Collins v. Zediker, 421 Pa. 52, 53, 218 A.2d 776, 777 (1966) (“[phenomena and situations which are matters of common knowledge, may not be made the subject for expert testimony.”). On the facts of this case, we affirm the trial court’s judgment.

Affirmed.

      . Despite our own efforts, we have been unable to procure the trial transcripts in this case. Thus, we adopt the trial court’s version of the facts. We note that it is the appellant’s responsibility to provide this Court with a complete and comprehensive record for purposes of appeal. Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986); see abo Pa.R.A.P. Ch. 19 — Preparation and Transmission of Record and Related Matters. Absent such a record, we base our decisions upon the materials that we have, and the trial court’s assertions.

      . In Commonwealth v. Pigg, supra, this Court held that because trial counsel did not raise a specific objection to the trial court’s jury charge, the issue was not properly preserved for appellate review. In a footnote, this Court stated, "[ajlthough [the attorney] filed supplemental post-trial motions alleging the ambiguity of the trial court’s charge, such motions will not preserve a challenge to the charge which has not first been raised by objection in open court.” Id., 391 Pa.Super. at 429 n. 1, 571 A.2d at 443 n. 1.

      . The trial court noted in its opinion that no exception was taken to the charge. See Trial court opinion, at 3.

      . In Malinder v. Jenkins Elevator & Machine Company, 371 Pa.Super. 414 538 A.2d 509 (1988), this Court, sitting en bane, stated, "ftjhe bask pvssiisi&e of the dochine of aisumption of the risk is that a party who volt mfu illy and knowingly assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover rfaj'iMiges for such harm.” Id., 371 Pa.Superior Ct. at 418, 538 A.2d at 511 See. also Handschuh v. Albert Development, 393 Pa.Super. 444, 574 A.2d 693 (1990) (thoroughly discusses the assumption of the risk doctrine).

      . In Howell v. Clyde, supra, this Court declared:
      Taken together, these cases do give one beacon of guidance for the present case. That is, the assumption of the risk defense, at the non-suit stage at trial, is generally limited to situations where no duty of care is owed to the plaintiff. In order to receive a non-suit based on the assumption of risk defense, it must be established that the defendant has breached no duty of care owed to the plaintiff. Where the duty of care owed by the defendant has been breached, the question of whether the plaintiff has assumed the specific risk of injury should be submitted to the jury. We do not decide today whether a non-suit should be granted in a situation where the defendant owed a duty of care to the plaintiff and there is no question that the plaintiff knowingly accepted the risk of injury.

        Id., 383 Pa.Super. at 614-15, 557 A.2d at 421.

      . Appellant’s brief, at 13.

      . See Deposition of Christopher Pagesh, May 20, 1987, at 33-34.

      . In Bowser, supra., this Court held:
      There is an additional reason why Bowser cannot recover. When he agreed to participate on the field during the baseball tryouts, he voluntarily exposed himself to the risks inherent in baseball. One of the risks inherent in baseball is being hit by a batted ball. [Citation omitted.] Having voluntarily exposed himself to the risk of being hit by a batted ball, Bowser cannot recover from the sponsor of the baseball event for injuries caused by this very risk.

        Id., 357 Pa.Super. at 440, 516 A.2d at 63.

      . Each of these cases sounded in allegations of negligence (as opposed to strict liability).


source: Caselaw Access Project

author: BECK, Judge: POPOVICH, Judge,

license: Public Domain

text:
    589 A.2d 752
    Forrest SCHAEFFER, President Judge of the Court of Common Pleas of the County of Berks, Appellant, v. Linda Hilgendorf FREY, Recorder of Deeds of the County of Berks.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1990.
    Filed April 22, 1991.

      Paul R. Ober, Reading, for appellant.
    Jeffrey L. Schmehl, County Sol., Reading, for appellee.
    Before BECK, KELLY and POPOVICH, JJ.
   BECK, Judge:

Appellant, President Judge Forrest Schaeffer of the Court of Common Pleas of Berks County, appeals the denial of his request for injunctive relief against the Berks County Recorder of Deeds, Linda Frey. Judge Schaeffer sought to prohibit any further debinding or cutting of the Berks County deed books as part of a county contract to reproduce the deed books onto microfilm. Because we find appellant has not met the standards required in order to be awarded injunctive relief, we affirm the trial court’s order.

The relevant facts, which are generally undisputed, are as follows. Berks County entered into a contract in December 1986 to have the county deed books reproduced onto microfilm. Appellee, the Berks County Recorder of Deeds, a duly elected county officer, was named as Berks County’s agent for the contract and as the contract supervisor. In osier to accomodate tina microfilming process, some of the deed book» hare her®, debcund AImoist three years after the initiation of the contixct, and after approximately 1200 of total 1016 deetf books had been microfilmed, appellant, Sim spimie% entered a temporary rektrainfng order (“TEG”) prohibiting the Beeoiihv of Deeds from farther cutting of breaking of bindings of the deed books. The temporary restraining order rem,tuned hi effect for thirty days. After the lapse of the TEG, Judge Schaeffer filed the subject equity action requesting a preliminary and permanent injunction to enjoin any continuation of the debinding, break-lug, cutting, or removing- of pages from the Berks County deed boefe without the oppress aiqorovai of the court of common pleas.

As part of the instituted equity action, an evidentiary hearing war. held before a judge. Testimony was presented by appellee linda Drey, appellant Judge Schaeffer, William Campbell, the Berk» County Controller, and Frank Johns, the Berks County District Court Administrator. As a result of the hearing, the lower court determined (1) the Berks* County microfilming contract was properly authorized by law, 65 P.A § 6*8.1; (2) appellee had acted in accordance with the Jaw; (8) there w«g no destruction of the deed records that are within the responsibility of appellee; and (4) appellant had failed to demonstrate any irreparable harm if the injunction was not granted. Therefore, the court denied: Judge Schaefferis request for injunctive relief. This timeiy appeal followed.

Appellant raises two specific issues for our review. First, Judge Schaeffer contends he has been irreparably harmed by the debinding of the deed books, because the debinding precludes him from exercising the judicial discretion granted pursuant to 16 Pa.S.A. § 9872. Second, he argues that he has been irreparably harmed by the debinding of the deed books, because the books are within the responsibility and protection of the court; therefore, the debinding of the books without the knowledge of the court erodes and undermines public confidence in the court.

Our scope of review of a trial court’s grant or denial of injunctive relief is limited. Crozer Chester Medical Center v. May, 352 Pa.Super. 51, 55, 506 A.2d 1377, 1379 (1986), appeal denied, (Pa., Dec. 10, 1986); Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 315, 478 A.2d 484, 485 (1984). On appeal, this court “is restricted to whether there were any apparently reasonable ground[s] for the action taken by the court below.” Beck Computing Serv. v. Anderson, 362 Pa.Super. 505, 508, 524 A.2d 990, 991 (1987); Crozer Chester, 352 Pa.Super. at 56, 506 A.2d at 1379; Ogontz Controls v. Pirkle, 346 Pa.Super. 253, 256, 499 A.2d 593, 595 (1985). Moreover, unless the record shows that the trial court’s ruling was palpably erroneous, a misapplication of law, or a manifest abuse of discretion, this court will affirm the lower court’s decision. Crozer Chester, 352 Pa.Super. at 55-58, 506 A.2d at 1379-80; Buttonwood Farms, 329 Pa.Super. at 315, 478 A.2d at 485. With this standard of review as a foundation, we have reviewed appellant’s arguments.

Injunctive relief, in particular a preliminary injunction, is “considered an extraordinary remedy and may only be granted if the plaintiff has established a clear right to the relief sought.” Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 477, 522 A.2d 1129, 1131 (1987). In Pennsylvania, a preliminary injunction will be granted only where a party can demonstrate certain prerequisites. There must exist (1) a threat of immediate and irreparable harm, that cannot be remedied by damages; (2) the injury that would result by denying the injunction must be greater than the injury by granting the equitable relief; and (3) the grant of the injunction must properly restore the parties to the situation as it existed prior to the alleged wrongful conduct. Ogontz Controls Co. v. Pirkle, 346 Pa.Super. at 256, 499 A.2d at 595 (1985) (quoting Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770 (1965)). Underlying these three requirements, a court, sitting in equity, will not grant an injunction unless the conduct sought to be enjoined is actionable and an injunction can, in fact, restrict the conduct. Beck Computing Services Inc. v. Anderson, 362 Pa.Super. at 507-10, 524 A.2d at 991-92 (1987); Ogontz Controls, 346 Pa.Super. at 256, 499 A.2d at 595.

Appellant’s request for injunctive relief is primarily based on 16 P.S. § 9872, a statute originally enacted in 1827 and later repealed, except as it relates to the recorder of deeds. Section 9872 provides in relevant part:

At least once in each and every year, * * * it shall be the duty of each of the aforesaid ... recorders of deeds, ... in the several counties of this commonwealth, to submit the books of records belonging to their several offices to the inspection of the judges of the court of common pleas of the proper county; and it shall be the duty of the said court to order and direct such of the said books, as in their opinion may require it, to be bound anew; and also, in all cases where the same may be wanting, to order and direct full and complete indexes of the matters contained in said books to be made and prepared, within such time as the said court may think reasonable.

16 P.S. § 9872 (1827), repealed in part by 42 P.S. § 20002(a)[108] (1978). Appellant contends the Berks County contract violates section 9872 and thereby irreparably harms the court of common pleas. The harm to the court is, as argued by appellant, because section 9872 “places the responsibility for the physical integrity of deed books within the discretionary power of the Court of Common Pleas — not with the Recorder of Deeds.” Brief of Appellant, at 10 (emphasis in the original). Judge Schaeffer argues that the Berks County microfilming contract and the resulting debinding of the deed books irreparably thwarts his statutory duty to inspect and, if required, to order rebinding of the books. As presented by appellant, because the deed books are debound, they are no longer “books” which can be inspected by the court. Moreover, appellant contends that because section 9872 accords him the responsibility for the safeguarding of the deed books, the debinding of the books as part of the Berks County contract, without his approval, irreparably diminishes and erodes the public confidence in the court. We disagree.

We conclude Judge Schaeffer’s argument is without support because the court of common pleas’ statutory authority over the recorder of deeds and the deed records in the recorder’s custody is limited. Moreover, as determined by the lower court, there has been no demonstration of a destruction of public deed records held by the recorder of deeds. Because the issues in this appeal involve statutes and a county office that began with the creation of our commonwealth, we must, at least briefly, return to the constitutional and statutory language initially creating the position of, and the duties of, the recorder of deeds.

The individual holding the office of recorder of deeds is constitutionally recognized as being a county officer. Pa. Const, art. 9, § 4. The recorder of deeds is elected at municipal elections and holds his or her office for four years. Id. Significantly, this court has specifically stated that the recorder of deeds is not a judicial officer. Custer v. Glessner, 68 Pa.Super. 60, 61 (1917) (the recorder of deeds “is, in no accurate use of language, an officer of the court”).

The primary duty of the recorder of deeds is to serve the public by receiving and duly recording any recordable instruments so as to serve the future necessities of the law. 16 P.S. § 9701 (1715), repealed where inconsistent with Act of Aug. 4, 1955, P.L. 308, § 3; 76 C.J.S. Registers of Deeds §§ 1, 10(b) (1952) (stating the recorder’s duty “is to record deeds, mortgages, and other instruments affecting realty in the official books provided and kept for such purpose”). As the custodian of the recording books, or deed records, the recorder of deeds “is obligated to protect the public ... in preserving the integrity of the official records of his [or her] office.” 76 C.J.S. Registers of Deeds § 10(b). In 1775, the legislature of Pennsylvania first described the duty of the recorder of deeds. As originally enacted, the recorders of deeds “shall keep a fair book, in which he [or she] shall immediately make an entry of every deed or writing brought into his [or her] office to be recorded.” 16 P.S. § 9731 (1775), repealed where inconsistent with Act of Aug. 4, 1955, P.L. 303, § 3.

Our research shows that not only is the recorder of deeds not an officer of the court, but the records held by the recorder of deeds are not court .records. As noted by this court in Custer, “the records which, by law, [the recorder of deeds] is required to safely keep, [are not] the records of the judgments or decrees of the court____ [t]hey are the history of the transactions of the people of the county affecting the titles to land.” 68 Pa.Super. at 61.

We conclude the recorder of deeds, as the custodian of the county deed books, has the duty and responsibility to safeguard the deed records within her custody. Moreover, because the recorder of deeds is not an officer of the court, and the records within the custody of the recorder are not court records, any authority or control the court of common pleas may have over the recorder of deeds or the deed books retained by the recorder must be conferred by statute.

Because appellant primarily relies on 16 P.S. § 9872 in support of his argument that a continuation of the Berks County contract and debinding of the county deed books irreparably harms the court of common pleas, we turn to an analysis of that statute.

We take it as uncontroverted that in 1827, deed books, qua books, were the primary means of permanently recording deeds and other instruments for future reference. The deed books held by the recorder of deeds were the method of systematically recording and permanently retaining an organized history of the real estate transactions within a county. The clear intent of section 9872 was to ensure the integrity of this organized system of recording deeds. Section 9872, as enacted in 1827, created a procedure to ensure that deed books that needed “to be bound anew” because of continued and extensive public use could be systematically rebound. Within this statutory procedure, the court of common pleas has the discretionary authority to determine if any deed books are in such a condition that they need to be rebound. By providing a procedure for checking the integrity of the deed books, and if necessary, ordering their repair, the legislature was ensuring that the public would have access to and could effectively use the deed records that are in the recorder’s office.

By enacting section 9872 and creating this procedure, we conclude the legislature intended to grant the court of common pleas a supervisory role with respect to the deed records. We find no language within 9872 to support a legislative intent to substitute the court of common pleas for the recorder of deeds as the custodian with the control and responsibility over the deed records.

We find further support for our conclusion by referring to an analogous statute and related case law concerning the indexing of public records. Section 1981 of Title 17, as enacted in 1891, provided

The court of common pleas of the proper county is hereby authorized and empowered whenever it shall appear advisable on inspection of the books of records and indices belonging to the several offices of ... recorder of deeds of such counties, by its order, to change and alter the mode of preparing and keeping said indices in one or more of said offices and to direct the mode in which said indices shall thereafter be prepared and kept.

17 P.S. § 1981 (1981), repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[770] (1978), and replaced by 42 Pa.C.S.A. §§ 323, 912, 4301 (1978). Our supreme court interpreted section 1981 in Nicely v. Raker, 250 Pa. 386, 95 A. 556 (1915). Nicely involved a dispute between the county controller, the court of common pleas, and the recorder of deeds. Pursuant to section 1981, the court of common pleas ordered the recorder of deeds to enter into a contract to change the mode of indexing deeds in the county. The recorder of deeds accordingly let such a contract. Id., 250 Pa. at 388-89, 95 A. at 556-57. Thereafter, the county controller refused to approve payment under the contract, contending “the court was without authority to direct a reindexing of the records by contract.” Id., 250 Pa. at 389, 95 A. at 557. The supreme court affirmed the lower court’s judgment approving the contract, noting that section 1981 “vests in the court the sole power of changing or altering the mode of preparing and keeping the indexes in the several offices of record.” Id., 250 Pa. at 390, 95 A. at 557.

Two years later, this court in Custer v. Glessner, 68 Pa.Super. 60 (1915), also considered the legislative intent of section 1981 and further explained the practical application of the statute. In Custer, this court stated

[a]s we read the statute, it was clearly proper for the learned court below, after having determined there ought to be a change in the method of keeping the records referred to in the statute, to enter an order or decree requiring the same should be done and directing the manner in which the indices were thereafter to be kept. With the making of that order, the power conferred upon the court by the statute would apparently end.... It was not the purpose of the legislature, as expressed in the language of the act, to take away from the recorder of deeds, for instance, the custody of the records, for the security of which he was responsible by law.

Id., 68 Pa.Superior Ct. at 62 (emphasis added). As interpreted by this court, the authority and control extended by section 1981 to the court of common pleas was limited to that specifically described in the statute, that is, to order the change and alteration of the mode of preparing and keeping deed indices. Upon the entry of an order pursuant to section 1981, the court’s power was thereafter limited to its supervisory role. Section 1981 did not grant the court of common pleas broad custodial powers or control of the records, nor did the legislature intend to restrict or amend the recorder of deeds’ authority or responsibility over the deed records in his or her custody.

Section 9872, as relied on by appellant, is a similar grant of limited statutory power to the court of common pleas. As provided by section 9872, the court of common pleas has the discretionary authority to order the rebinding of the deed books that need to be bound anew. However, section 9872 does not grant the court the custody and responsibility for the deed books. Likewise, section 9872 does not grant the court the power to prohibit the lawful microfilming of deed books. Pursuant to section 9872, the court of common pleas has merely been given the power to order the binding anew of deed books that are in need of rebinding. We find no language in section 9872 suggesting that the legislature intended “to take away from the recorder of deeds, ... the custody of the records.” Custer, 68 Pa.Super. at 62.

Although we conclude section 9872 does not accord the court of common pleas broad custodial powers over the recorder of deed’s records, we emphasize that this holding is “not to be understood [to say] that the court is without power in any event to supervise a contract made by the proper officer if it should exhibit an intent to waste or squander the public money.” Custer, 68 Pa.Super. at 63 (emphasis added). Moreover, we emphasize that the court of common pleas is clearly not without power to enjoin an officer who is improperly restricting access to public records, or who is improperly destroying public records. Id.; McCommon v. Spong, 10 Sad. at —, 14 A. 260, 263 (1888).

Appellant cites McCommon v. Spong, 10 Sad. 453, 14 A. 260 (1888), in support of his argument that the court of common pleas has the statutory responsibility for the deed books. In McCommon, the court addressed the issue of whether the incumbent recorder of wills had the authority to rescind a contract entered into by order of the court of common pleas pursuant to section 9872. Id. at —, 14 A. at 260-61. The court of common pleas, in response to a petition from the bar, ordered the creation of indices for the records held by the recorder of wills. The recorder of wills, Spong, was chosen to undertake such a task, and he began the work. At the next general election, a new recorder of wills, McCommon, was elected, who then refused to permit Spong to continue with the indexing contract. Id. at —, 14 A. at 261. McCommon argued that he was entitled to any profits ascribable to the office of the recorder of wills, and therefore, the indexing contract should be given to him. The trial court, and the supreme court on appeal, upheld the original contract with Spong. Id. at —, 14 A. at 262.

The trial court’s opinion, adopted by the supreme court, explained that the enactment of section 9872 “imposed upon the courts the power and duty of directing the making of full and complete indexes, [and the legislature] certainly contemplated that [the courts] should have the power to intrust the labor to competent persons.... It could not have been intended by the legislature that the courts were compelled to commit it only to the person who happened to be the incumbent in the office.” McCommon, 10 Sad. at ——, 14 A. at 261. We do not find McCommon to be apposite.

The court in McCommon was specifically addressing a dispute between the recorder of wills and the former recorder of wills who was working under a court order to create new indices for the will record books. The former recorder, Spong, was working to create new record indices, under a court order. The court of common pleas had the authority, pursuant to section 9872, to order the creation of the new indices. Once ordered and contracted, it was not within a later elected recorder of wills’ authority to modify the court order.

McCommon is inapposite to the case at bar. The instant case does not involve an order and an attempt to modify or alter it. More importantly, we do not read McCommon to hold that the court of common pleas, pursuant to section 9872, has the power and authority to prohibit the recorder of deeds from continuing a valid contract to reproduce the county deed books onto microfilm, where the microfilming process does not destroy the deed records.

Judge Schaeffer also contends the Berks County contract irreparably harms the court of common pleas by eroding and undermining public confidence in the court. As argued by appellant, under 16 P.S. § 9872 the court is statutorily granted the responsibility to protect the county deed books. Therefore, the debinding of the deed books, without the express approval or knowledge of the court, erodes public confidence in the power of the court. We find appellant’s argument to be completely without support. Not only has appellant presented no evidence in support of his erosion of public confidence argument, but, as we concluded above, there is no merit to his argument that the court of common pleas has, pursuant to section 9872, the custodial authority or responsibility over the deed records. We specifically have found that the recorder of deeds is the deed records custodian with the responsibility to protect and safeguard the deed records.

In his brief, appellant further argues the debinding of the deed books has irreparably destroyed the deed books and threatens to irreparably destroy the remaining deed books if the microfilming contract is permitted to continue. Appellant’s Brief, at 13-15. As argued by Judge Schaeffer, the debinding of the deed books for the microfilming process “destroys public records” because the deed books are not accessible as “books” after being debound. Id.

The trial court held that no evidence was presented establishing that the recorder of deeds, “or any one acting on her behalf,” was in any sense unlawfully destroying public records. Trial Court Opinion, at 24. Moreover, the court “specifically found from the evidence presented that there was nothing that could be construed as a cutting or destruction of any of the volumes contained in the [appellee’s] office.” Id. After carefully and thoroughly reviewing the record and all relevant statutory language, we agree with the lower court.

We note that no evidence was introduced that remotely suggests the deed records, or wording on the pages has been or will be destroyed, cut off, torn or mutilated. The only evidence presented was that the pages from the deed books were removed, by cutting or other means, from the binding, then photographed, placed loose back into the binding, and finally wrapped in brown paper. (N.T. 25-87). Without more, we can not conclude that the above debinding and microfilming process undertaken pursuant to a valid county contract, irreparably is destroying the Berks County deed books. We find that under the applicable law, the debinding of the Berks County deed books, pursuant to a proper lawful contract, to accommodate the microfilming process, does not constitute a destruction of the deed or public records.

In summary, we conclude, that appellant has not established any form of immediate and irreparable harm caused by the Berks County microfilming contract. We find that the debinding of the county deed books as part of the lawful microfilming contract does not constitute a destruction of public records. Moreover, we find that the debinding process does not irreparably harm the court of common pleas by precluding the court from inspecting the deed books and ordering the binding anew of any books that, in the court’s opinion, need to be rebound. Finally, we conclude that the debinding of the Berks County deed books without the approval of the court of common pleas does not irreparably harm the court by eroding public confidence in the court.

The denial of injunctive relief is affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Under ordinary circumstances, the majority would probably be correct when it opines that the issue of standing was not raised and therefore is waived under Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). However, this case does not present ordinary circumstances. Indeed, it is a rare, if not an exquisitely unique, event when a judge (not as an individual, private citizen) on his own initiative institutes litigation directed toward another public official or entity to redress a perceived public wrong. I am not here concerned, let it be said, with the correctness of Judge Schaeffer’s assessment of the substance of his complaint; rather, what is bothersome is the notion that it is assumed that his sua sponte invocation of the power of the court is condoned simply because the issue was not raised heretofore as though the judge was a common litigant.

We are dealing here not with a routine equity case between ordinary citizens of the Commonwealth to whom the laws and rules of our judicial system apply equally. This is a special factual scenario requiring a special analysis not necessary for the resolution of common disputes. We, as judges of the Superior Court, an intermediary appellate step on the way to the Supreme Court, the ultimate, constitutionally ordained supervisor of our unified judicial system, have an inherent responsibility to scrutinize with the utmost care those uncommon cases involving a judge in his public role as a litigant.

While this case does not present facts or a controversy that would arouse anyone except the participants, it nevertheless has far-flung implications. Thus, I conclude, that this special case demands special treatment to ensure its correctness.

My analysis is that the result is not correct because Judge Schaeffer, without at least the majority approval of his court, had no authority to bring his action. The statute upon which Judge Schaeffer based his request for injunctive relief is 16 P.S. § 9872, which, in pertinent part, provides:

At least once in each and every year, * * * it shall be the duty of each of the aforesaid ... recorders of deeds, ... in the several counties of this commonwealth, to submit the books of records belonging to their several offices to the inspection of the judges of the court of common pleas of the proper county; and it shall be the duty of the said court to order and direct such of the said books, as in their opinion may require it, to be bound anew; and also, in all cases where the same may be wanting, to order and direct full and complete indexes of the matters contained in said books to be made and prepared, within such time as the said court may think reasonable, (emphasis added)

Nothing in the record indicates that President Judge Forrest Schaeffer was ever authorized by his colleagues in the Court of Common Pleas of Berks County to file this suit. Nor is President Judge Schaeffer granted the power to take such an action on behalf of the Berks County Court of Common Pleas. See 42 Pa.C.S.A. § 325(e)(1). As 16 P.S. § 9872 makes abundantly clear, it is the Court of Common Pleas of Berks County which has the power to take action under this statute, not President Judge Schaeffer acting alone. I would further comment that such authority, under our unified system, could only be derived from the prior advice and consent of our Supreme Court.

Accordingly, I would quash this appeal.

      . The authority to reproduce the Berks County deed books onto microfilm is based upon 65 P.S. § 63.1 (1949). Section 63.1, applicable to all counties except counties of the first class, authorizes any public officer to copy or microfilm a document where the copy produces a clear, accurate and permanent copy. Berks County is a county of the third class.

      . The evidence ira record iWr, not clearly explain how the deed books have bean debomieL hi the lower court evidentiary hearing, there was extensive questioning rotating to the “cutting" of the deed record gages Irma i he book Mnuiimg:-, (N.T. at 23-40). However, details of this “cutting" process were not introduced into the record. It is clear that the deed book pages wart' removed from the book binding and each page was separately photographed. (NX at 33-36).

      . Judge Beckeri, senior judge from Bucks County, presided over the equity hearing.

      . Neither party to this «ppepi has objected to our jurisdiction, as opposed to that of the counwwiwesith court, to consider this matter. Therefore, ouc jurisdiction has vested, is perfected, and we may properly review this appeal. See 42 Pa.C.S.A. § 704(a) (1978) (providing that ‘‘[t]he failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title ... vesting jurisdiction of such appeal in another appellate court"); Pa.R.App.P. 741 (reiterating the § 704(a) language); see also Oswald v. Hausman, 378 Pa.Super. 245, 250 n. 2, 548 A.2d 594, 597 n. 2 (1988); Newman v. Thorn, 359 Pa.Super. 274, 280, 518 A.2d 1231, 1235 (1986), transferred to, Thorn v. Newman, 113 Pa.Commw. 642, 538 A.2d 105 (1988); Rosenberg v. Holy Redeemer Hospital, 351 Pa.Super. 399, 401-04, 506 A.2d 408, 409-10 (1986), appeal denied, 514 Pa. 643, 523 A.2d 1132 (1986); Schultz v. City of Phila., 314 Pa.Super. 194, 197, 460 A.2d 833, 834 (1983).

      . We note that the issue raised in Judge Popovich's dissenting statement, whether an individual president judge of the court of common pleas is empowered to bring a lawsuit on behalf of the entire court without being authorized by a vote of the board of judges, was not raised below. Moreover, that issue was not briefed or argued by either party on appeal. Therefore, such issue was waived and will not be reviewed by this court. Pa.R.App.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Handschuh v. Albert Development, 393 Pa.Super. 444, 451, 574 A.2d 693, 697 (1990).

      . Section 9872 was originally enacted as P.L. 154, § 4, on March 29, 1827. The statute was transferred to Title 16, Counties, in 1981. Prior to 1981, the identical statutory language was under Title 17, Court Records, § 1951. The statute, as currently promulgated, only applies to the recorders of deeds. See Judiciary Act Repealer Act, 42 P.S. § 20002(a)[108] (1978).

      . We note that although Judge Schaeffer argues § 9872 grants the court of common pleas responsibility over the deed records in the recorder of deeds office, and that the court should inspect the deed books annually, both appellee and appellant testified that they do not recall the court having ever inspected, or requesting to inspect the deed books. (N.T. at 79, 135).

      . Sister states have also held that the recorder of deeds is not a judicial officer. Bergerman v. Byrnes, 114 N.Y.S.2d 416, 421 (1952), aff'd, 305 N.Y. 811, 113 N.E.2d 557 (1953). In Bergerman, the court stated that although the recorder was appointed by the president judge of the court and was required to perform "duties under such conditions and regulations as may be approved by the presiding justice," the recorder of deeds was not an officer of the court. Id.

      . Judge Schaeffer also cites 16 P.S. § 9876 in his brief in support of his request for an injunction. Section 9876 provides:
      It shall be the duty of the commissioners of the several counties of this commonwealth, whenever it shall be deemed necessary by the court of common pleas or district court of the proper county, to cause to be copied or transcribed, in a fair and legible manner, any dockets or books of record contained in the several public offices, in their respective counties, to be paid for out of the county funds, by orders drawn by the commissioners on the treasurer of the proper county.
      16 P.S. § 9876 (1827), repealed in part by 42 P.S. § 20002(a)[108] (1978). We have considered the language in § 9876 and conclude that it does not offer any additional support to appellant’s argument over that provided by § 9872.

      . We note that today, in comparison to 1827, "books” are not the primary means of recording documents in many counties in the commonwealth. Since January 1987, all deed records filed in Berks County are made solely on microfilm; that is, there have been no deed books, qua books, created in Berks County after December 1986. (N.T. at 18-19).

      . We note that many of the older cases uncovered in our research reveal petitions to the court requesting the creation of new indices of records, or repair of old index listings. See, e.g., In re Transcription of Perry County Judgment Index Dockets, 11 Dist. 557 (1902) (“[the] prothonotary ... presented his petition to the court, setting forth that Judgment Index Dockets “G” and "H” were so affected with decay that the records of matter therein contained would be lost unless properly cared for’’); Matter of Reindexing Judgment Dockets, 1 Dauph. 390 (1898) (“the bar ... presented a petition setting forth several reasons why new judgment indexes were desirable”); McCommon v. Spong, 10 Sad. 453, —, 14 A. 260, 261 (1888) (“a petition was presented to us, signed by the bar of the county, setting forth the great need of an index of the records”).

      . Although appellant suggests in his brief that the deed books are inaccessible to the public after they have been microfilmed, evidence was introduced at the evidentiary hearing, from which the lower court could find that members of the public can access the original deed books, even after they have been debound and photographed. (N.T. at 59-61). The record supports such a finding.

      . As we note infra, and contrary to appellant’s assertion, we agree with the lower court’s finding that there has been no demonstration of irreparable destruction of the deed records. Therefore, appellant’s argument that an injunction should be granted to prohibit further irreparable destruction of the deed books because of the cutting and debinding is without merit. Where appellant cannot show irreparable harm, an injunction will not be awarded. Ogontz Controls, 346 Pa.Super. at 256, 499 A.2d at 595.

      . The statute analyzed in McCommon is referred to as P.L. 154, § 4, Act of 1827, March 29. As noted above, P.L. 154, § 4 was later repromulgated as 16 P.S. § 9872.

      . Appellant also argues that the County Records Committee Manual states that deed books, qua books, must be retained permanently. Appellant’s Brief, at 9-10 (citing the County Records Committee Manual, chap. 6B, at 6-B-l). While the table noted by appellant does state deed books and grantor and grantee indices must be “retained permanently," we refer appellant to chapter 1 of the Manual, paragraph 4(a), which provides that “[tjhe fact that information is created and stored electronically or on microfilm rather than on paper has no bearing on its retention status.” We conclude that the rule to retain deed books permanently does not apply only to deed books consisting of paper and bindings, but applies to all deed records, whether electronically created, or microfilmed, or on paper.

      . Although we find in this case there has been no demonstration of a destruction of deed records or books, we emphasize that this decision is not to be read as an approval of the destruction or disposal of historically valuable documents. We acknowledge and completely support the retention of records solely for their value as historical records. We note that the County Records Committee, created pursuant to 16 P.S. §§ 13001-06 (1963), has stated that the establishment of the records disposition program was, in part, to “ensure the preservation of records of permanent value.” County Records Committee Manual, chap. 1A, para. 3(b), at l-A-2. Moreover, we note that the County Records Committee has set mandatory schedules, to be adhered to by all county officers when disposing of any county records. See Id.


author: HESTER, Judge:

text:
    589 A.2d 761
    John A. INTILI and Gladys O. Intili, h/w v. William J. SALAK, Sr., and Mary Salak, h/w; Francis Salak and Mary Ann Salak, h/w; William J. Salak, Jr., and Josephine Salak, h/w; and Donald W. Salak, single, Appellants.
    Superior Court of Pennsylvania.
    Argued March 12, 1991.
    Filed April 25, 1991.

      Lee C. Krause, Honesdale, for appellants.
    Richard B. Henry, Honesdale, for appellee.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   HESTER, Judge:

William and Mary Salak, Sr., .Francis and Mary Ann Salak, William and Josephine Salak, Jr., and Donald Salak, all of whom are owners of real property located in Wayne County, appeal from the July 12, 1990 order entering a permanent injunction against them by the Court of Common Pleas of Wayne County. The injunction prohibits them from using an artificial lake abutting their property. A December 23, 1938 decree barred appellants’ predecessors-in-title from using in any maimer said artificial lake which is situated entirely upon land that belonged to the predeeessors-in-title of John and Gladys Intili, appellees. Appellants argue that the trial court erroneously utilized both the 1938 decree and an admission of fact contained in a pleading in a previous action involving the instant parties as the basis for its injunction. The injunction compelled appellants to abide by the restrictions contained in the 1938 decree or be held in contempt, and dismissed appellants’ claim to the effect that they obtained a privilege to use the lake by a prescriptive right. We affirm.

The record reveals the following. In 1938, Austin Jayne and Jane Reap, appellees’ predecessors-in-title, instituted an action in equity in an effort to bar Michael, Thomas, and Margaret Brown, appellants’ predecessors-in-title, from using an artificial lake formed from Elk Creek (known originally as Little Keen Pond and then as Canoe Lake) for boating, fishing, or swimming. The lake is non-navigable water and is situated entirely on land belonging to appellees. The southwestern high water line of the shore of the lake is the boundary line between these adjoining landowners. On December 23, 1938, the trial court issued an injunction barring the Browns from using the lake for any purpose.

In 1958, appellants purchased land abutting the lake from the Browns. In 1968, appellees purchased the land under the lake from Austin Jayne and Jane Reap. In 1969, as successor owners to Austin Jayne and Jane Reap, appellees sought enforcement of the 1938 decree against appellants as successors to the property owned by the Browns. Appellees alleged that despite their repeated demands, appellants continued to fish from the shore and to permit their cattle to drink from the lake. In response, appellants filed an answer, verified by William Salak, Sr. on behalf of all appellants, denying that appellants used the lake for any purpose. No further action was taken in the dispute until 1988.

In 1988, appellees filed the instant action seeking to hold appellants’ in contempt for their alleged continued violation of the 1938 decree. Appellants responded by claiming that the 1938 decree did not apply to them since it did not state that it applied to the Browns’ heirs, successors, and assigns. Appellants also asserted that together with the Browns, they had established a prescriptive right to use the lake by their continued, open, hostile, and notorious use in excess of twenty-one years.

As the 1969 suit to enforce the 1938 decree did not result in a final decree, the court requested that the present suit be treated as cross-motions for summary judgment in the prior 1969 litigation; both parties agreed. The trial court subsequently denied appellants’ motion for summary judgment on their claim of a prescriptive right The court then ordered appellants to abide by the restrictions in the 1938 decree. This appeal followed.

Preliminarily, we note that since the court and parties agreed to treat the case as one involving cross-motions for summary judgment in the 1969 action, our standard of review is clear. In Overly v. Kass, 382 Pa.Super. 108, 110, 554 A.2d 970, 971 (1989) (citations omitted), we considered the standard of review utilized in eases involving motions for summary judgment and stated:

In determining whether the trial court erred in granting or denying a motion for summary judgment, this court must determine whether the “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.F. 1035(b).

With these principles in mind, we turn to appellants’ claims of error. Appellants first argue that the trial court erred in issuing its injunction based on the 1938 decree and pleadings in the 1969 litigation. They argue that while the trial court did not set forth its basis for applying those actions, neither the doctrine of res judicata nor collateral estoppel supply a basis for enforcing the injunction entered against their predecessors-k-iitle to them. Appellants note that res judicata and collateral estoppel require both a final judgment and an opportunity to appeal in order to preclude relitigation. Keystone Bldg. Corp. v. Lincoln Savings, 468 Pa. 85, 360 A.2d 191 (1976). Specifically, appellants argue that they were not parties to the 1938 action which by its language did not state that it bound the Browns’ heirs, successors, and assigns. Thus, they did not have the opportunity to appeal the 1938 decree. They further argue that the 1969 pleadings do not bind them since a final decree was not issued in the 1969 action. See Posternack v. American Casualty, 421 Pa. 21, 218 A.2d 350 (1966) (res judicata requires a final judgment). Appellants thus maintain that neither of those proceedings could be utilized by the trial court to decide the merits of this case.

Furthermore, appellants note that neither of the prior actions addressed the issue of appellants’ claim of the right obtained by prescription which they raised as an affirmative defense, and thus, this issue has not been finally litigated. City of Pittsburgh v. Zoning Bd. of Adjustment of City of Pittsburgh, 522 Pa. 44, 559 A.2d 896 (1989) (res judicata and collateral estoppel require, inter alia, identity of matter sued upon). Accordingly, appellants maintain that an issue of fact remains as to whether they obtained the right to use the lake by prescription and, thus, contend that the trial court’s entry of summary judgment on this issue was improper. Consequently, they assert that the injunction also is not valid.

We find appellants’ arguments meritless with regard to the validity of the 1938 decree and its application by the trial court. Appellants do not contest the factual basis of the 1938 decree. Instead, they contend that they have a right to fish in the lake from their shoreline and that the 1938 decree cannot apply to them. However, we note that the July 12, 1990 order merely embodies the long-held legal principle that where a non-navigable lake is entirely on property belonging to one party, that party has sole rights to it as the owner, and other owners whose property forms the shoreline do not obtain the right to use the lake by virtue of their ownership of adjoining land forming the shore. See Baylor v. Decker, 133 Pa. 168, 19 A. 351 (1890). Consequently, as the fact of ownership is not in dispute, the 1990 decree merely applies the legal principle to the facts established in the prior actions and does not rest upon application of the 1938 decree through res judicata. Therefore, we hold that appellants’ claim of a right to use the lake as the result of owning the shoreline and their allegation that the court committed error in applying the 1938 decree to them by res judicata are completely lacking in merit.

Appellants nevertheless contend that the trial court erred in utilizing the 1969 pleadings, in which William Salak, Sr. specifically denied, on behalf of all appellants, that they used the lake for any purpose. Appellants argue that William Salak, Sr.’s prior denial of use is not binding because it did not concern the issue of a prescriptive right, and pleadings may be amended liberally. Pa.R.C.P. 1033. Furthermore, appellants argue that an admission of non-use by William Salak, Sr. in the 1969 suit should not bind all appellants on the issue of their use of the lake, particularly when final judgment was not entered.

We conclude that the denial of the use of the lake by William Salak, Sr. is fatal to appellants’ claim of a prescriptive right to use that lake. Appellants are correct that the doctrine of collateral estoppel requires a final judgment on the same issue together with the same party or parties in privity to them in the prior action. Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A.2d 341 (1974). They also are correct that a final order was not entered in the 1969 litigation. However, the real issue is the effect of the admission in the 1969 suit on appellants’ claim of a prescriptive right in the present suit which brings the 1969 litigation to a conclusion. We find that this admission is binding and that it defeats appellants’ claim to a prescriptive right to use the lake. Our examination of the record reveals that William Salak, Sr. signed a verification of appellants’ answer in the 1969 suit which denied any use of the lake by all appellants, and the verification specifically stated that he was signing the answer on behalf of all of them, who were parties to the 1969 litigation. Therefore, his verification and answer constitute a judicial admission of non-use of the lake by all appellants in 1969. This admission may be used to establish a substantive fact. Lemmon v. Bufalino, 204 Pa.Super. 481, 205 A.2d 680 (1964). Accordingly, appellants’ admission of non-use defeats their claim of a prescriptive right through continuous, open, notorious, and hostile use of the lake by them for 21 years.

Summary judgment can be granted only when there are no issues of material fact. Then, and only then, is the moving party entitled to judgment as a matter of law. Overly v. Kass, supra. In our judgment there are no issues of material fact in the instant litigation. In 1969, there was an admission of record to the effect that appellants were not using the lake. Their allegation that they have the right to use the lake has not been substantiated. Accordingly, the court properly granted summary judgment in favor of appellees and issued the injunction enjoining appellants from use of the lake for any purpose.

Order affirmed.


author: MONTEMURO, Judge:

text:
    589 A.2d 764
    Curtis WHITE v. AMERICAN HONDA RESEARCH OF AMERICA, American Honda Motor Company, Honda Research & Development Company, Honda Motor Company, Ltd., Montgomeryville Cycle Center, Devon Honda, Broad Street Honda, Cycle Emporium, Inc. and Land Tool Company v. KG ENGINEERING, INC. Appeal of DEVON HONDA.
    Superior Court of Pennsylvania.
    Argued March 14, 1991.
    Filed April 29, 1991.

      Donald B. Scace, Jr., Philadelphia, for Devon Honda, appellant.
    Janet W. Mason, Philadelphia, for KG Engineering, appellee.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   MONTEMURO, Judge:

Appellant Devon Honda brings this timely appeal from an order sustaining the preliminary objection of appellee KG Engineering, Inc., and dismissing Devon Honda’s joinder complaint against additional defendant KG Engineering. The issue on appeal is whether the trial court abused its discretion in concluding that Devon Honda failed to show reasonable cause for the late joinder of KG Engineering, where the joinder occurred 22 months after the filing of the original complaint. We affirm.

On June 1, 1988, plaintiff Curtis White instituted this action alleging negligence, strict liability and breach of express and implied warranty arising out of a motorcycle accident which occurred on June 6, 1986. Original defendant Devon Honda filed its answer on October 4, 1988. Discovery subsequently ensued, and on February 13, 1990, Devon Honda had the opportunity to inspect the motorcycle upon which plaintiff was riding at the time of the accident. Upon inspecting the motorcycle, the defendants learned that in fact KG Engineering was the designer and/or manufacturer of the motorcycle’s allegedly defective “safety guard” or “engine bar.” On April 6, 1990, the trial court entered an order permitting the late joinder of additional defendant KG Engineering, and on April 17, 1990, Devon Honda filed its joinder complaint against appellee KG Engineering. Appellee responded by filing preliminary objections seeking dismissal of the joinder complaint on grounds that Devon Honda failed to set forth a reasonable explanation for its delay of almost two years in joining KG Engineering as an additional defendant. The court sustained KG Engineering’s preliminary objections and dismissed the joinder complaint.

The applicable rule of civil procedure provides:

Rule 2253. Time for Filing Praecipe or Complaint.
Neither praecipe for a writ to join an additional defendant nor a complaint if joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

Pa.R.C.P. 2253. Where the joinder complaint against the additional defendant is filed more than 60 days after service of the complaint on the original defendant, the burden of demonstrating sufficient cause to allow the late joinder rests with the defendant, who must establish some reasonable justification for the delay. Glabbatz v. Terminal Freight Handling, 386 Pa.Super. 447, 563 A.2d 151 (1989); Exton Development v. Sun Oil Co. of Penna., 363 A.2d 17, 525 A.2d 402 (1987); NPW Medical Center v. L.S. Design Group, P.C., 353 Pa.Super. 341, 509 A.2d 1306 (1986). “[T]he question of whether sufficient cause has been established so as to permit an extension of time is a matter resting within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of that discretion.” Id., 353 Pa.Superior Ct. at 345, 509 A.2d at 1309 (footnote omitted).

It is unclear exactly when the complaint was served upon Devon Honda. In its appellate brief, Devon Honda states that the complaint was served in July, 1988. The docket entries show that on August 8, 1988, counsel for Devon Honda entered his appearance in this case. Thus, Devon Honda was on notice sometime prior to August 8, 1988 of the allegation of defect regarding the motorcycle’s engine bar, as the complaint clearly asserts theories of recovery based on the defendant’s negligence and strict liability relative to the manufacture, testing and assembly of the engine bar. See Complaint, paras. 22, 23, 26, 27, 28, 29, 30, 32, 34, 36, 37, 39, 44, 51. Two months later, on October 4, 1988, Devon Honda filed its answer and new matter.

KG Engineering was not joined as an additional defendant in this suit until April, 1990. Devon Honda attributes its delay in joining KG Engineering to the fact that the defendants were not aware of KG Engineering’s involvement until the inspection of the motorcycle which took place on February 13, 1990. See Petition of Defendant Honda for Extension of Time Within Which to Join KG Engineering, Inc. Nunc Pro Tunc at 2-3. Devon Honda asserts that plaintiff’s failure to cooperate with discovery requests and to produce the motorcycle voluntarily for inspection necessitated the filing of a motion to compel the inspection of the vehicle, contributing to the delay in ascertaining the designer and manufacturer of the engine guard. Id. Two months after the court ordered plaintiff to produce the motorcycle for inspection, the defendants inspected the vehicle.

Although Devon Honda served a request for production of documents on plaintiff, the record does not reveal the filing of any discovery requests made by Devon Honda to obtain a visual inspection of the motorcycle. In fact, the inspection of the motorcycle was accomplished through the efforts of another defendant, American Honda Motor Co., Inc., who presented a motion to compel the inspection of the motorcycle on December 11, 1989, approximately 18 months after the filing of the complaint. Although a timely response by plaintiff to Devon Honda’s request for production of the sales records of the motorcycle may have provided Devon Honda with information as to the identity of the manufacturer of the safety guard, Devon Honda could have obtained the desired information through other means. Devon Honda has offered no explanation for its failure to make a prompt attempt to inspect the vehicle itself or to obtain discovery from the other defendants regarding the safety guard.

Devon Honda also argues that the joinder of KG Engineering furthers the underlying purpose of Rule 2253 to avoid a multiplicity of lawsuits. We have held, however, that this stated purpose of Rule 2253 does not obviate the requirement that cause must be shown to justify the late joinder. See, e.g., NPW Medical Center, supra.

The trial court concluded that Devon Honda did not meet its burden of establishing sufficient cause to excuse its delay, as Devon Honda should have had sales records showing KG Engineering’s potential involvement in this litigation. The court further reasoned that KG Engineering would be prejudiced by the late joinder, as KG Engineering “has been deprived of the opportunity to conduct prompt post-accident investigations.” Trial Court Opinion, September 21, 1990 at 8.

In view of the particular facts of this case and the lengthy period of delay between service of the complaint and joinder of additional defendant KG Engineering (approximately 21 months), we conclude that the trial court did not abuse its discretion in concluding that Devon Honda failed to provide a reasonable basis for its delay in joining KG Engineering.

In view of the foregoing, we affirm the order of the trial court.

Order affirmed.