author: POPOVICH, Judge:

text:
    486 A.2d 978
    RICHLAND MALL CORPORATION t/a Richland Mall Associates v. KASCO CONSTRUCTION CO., INC. and Hamada, Inc. v. HESS BROTHERS, INC. and Drexel Realty, Inc. t/a Montgomery Development Co. and Leonard Evantash t/a Evantash Associates and Paul H. Cohen. Appeal of KASCO CONSTRUCTION CO., INC.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1984.
    Filed Dec. 21, 1984.

      I. Leonard Hoffman, Philadelphia, for appellant.
    Steven A. Bergstein, Allentown, for appellee.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by Kasco Construction Company, Inc. (hereinafter Kasco), appellant, from the order of the Court of Common Pleas of Bucks County granting a motion for summary judgment filed by appellee, Hess Brothers, Inc. (hereinafter Hess) after Kasco filed a third party complaint against Hess. In response thereto, appellee has filed a motion to dismiss the appeal of Kasco Construction Company-

On April 30, 1975, Kasco entered into a Limited Partnership Agreement with, among others, Hess, to form a limited partnership known as Richland Mall Associates (hereinafter RMA) in which Hess was the sole general partner. The purpose of the agreement was to erect, own and operate Richland Mall in Richland Township. Kasco undertook the general construction of the mall after executing a construction agreement with RMA in 1975. Subsequently, Kasco, as general contractor, entered into a contract with Hamada, Inc. (hereinafter Hamada) whereby the latter, as sub-contractor, would undertake to construct the roof of the Rich-land Mall. On June 30, 1978, Richland Mall Corporation (RMC) entered into an agreement of sale with Hess and RMA whereby RMC acquired the partnership known as RMA. After construction of the mall, it was found that the roof was defective.

On June 29, 1981, RMC instituted a federal action against Kasco and Hamada alleging the defective construction of the roof. This suit involved the same subject matter as the instant appeal and was brought before the United States District Court for the Eastern District of Pennsylvania. It was dismissed by order dated March 8, 1982.

On June 15, 1982, a complaint was filed by RMC trading as RMA against Kasco and Hamada, alleging problems with the roof installed at the Mall. Kasco filed a complaint joining the additional defendants, including Hess, on July 14, 1982. Various pleadings were exchanged until a motion for summary judgment was filed by Hess on March 3, 1983, which was granted on April 7, 1983. A Notice of Appeal to this court was filed on May 6, 1983. Subsequent to presentation of the motion for summary judgment, answers were filed on behalf of two additional defendants; however, Kasco never responded to the motion by brief. The trial court granted appellee’s motion for summary judgment on two separate substantive grounds: (1) that Hess was not responsible for the defective roof and (2) that Kasco had executed a release in favor of Hess which acts as an effective bar to the action. This appeal followed, and Hess filed a motion to dismiss appellant’s appeal, which motion is likewise predicated on two contentions: (1) that Kasco failed to respond effectively and properly to the motion for summary judgment of Hess and has, therefore, waived its right to appeal under Pa.R.A.P. 302(a) and (2) that the decision to grant summary judgment was interlocutory in character and not appealable. By per curiam order dated August 9, 1983, the disposition of the Motion to Dismiss was deferred to this court.

Appellant herein claims that there is a triable issue of fact as to (1) whether Kasco has a valid claim against Hess for indemnification and/or contribution; (2) whether the claims of Kasco are not barred by virtue of the release; and finally, (3) whether Kasco has effectively reserved its right to appeal. We affirm.

At the outset, we are constrained to deny Hess’s Motion to Dismiss the appeal. The lower court held that Kasco’s failure to respond to the motion for summary judgment was fatal and deemed Kasco’s inaction an abandonment of its opposition to the motion, citing Bucks County Rule of Civil Procedure 266, which provides that the non-moving party must file a responsive brief or memorandum of law within ten days of the date of the mailing of a copy of the moving party’s brief or memorandum of law or suffer, in the judge’s discretion, a dismissal. In Brogan v. Holmes Electric Protection Company, 501 Pa. 234, 460 A.2d 1093 (1983), the Court invalidated a local rule of court which authorized dismissal upon counsel’s failure to file timely briefs. In Brogan, a motion for summary judgment had been filed and was granted because plaintiff had failed to file a reply brief within thirty days from the date appellee’s brief was filed. The Court held

The trial of a lawsuit is not a sporting event where the substantive legal issues which precipitated the action are subordinate to the “rules of the game”. A lawsuit is a judicial process calculated to resolve legal disputes in an orderly and fair fashion. It is imperative that the fairness of the method by which the resolution is reached not be open to question. A rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a non-prejudicial procedural mis-step, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure. Rule 126 is not a judicial recommendation which a court may opt to recognize or ignore. Rather the rule is a statement of the requirement of fairness and establishes an affirmative duty courts are bound to follow in applying all procedural rules whether they be statewide or local in origin.

Brogan,, 501 Pa. at 240, 460 A.2d at 1094. Since we deny appellee’s motion to dismiss, the appeal is ripe for disposition.

Although as noted above, Brogan does not support the pro forma grant of a motion for summary judgment on the basis of a failure to file a reply brief, we further note that a non-moving party who does not properly oppose a motion for summary judgment with affidavits, depositions or the like may not rely on the allegations of his pleadings to controvert facts presented by the moving party's depositions. Pennsylvania Gas and Water Company v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983). First Mortgage Company of Pennsylvania v. McCall, 313 Pa.Super. 54, 459 A.2d 406 (1983). Aimco Imports, Ltd. v. Industrial Valley Bank and Trust Company, 291 Pa.Super. 233, 435 A.2d 884 (1981). Notwithstanding any issue of Kasco’s failure to act, summary judgment was properly entered on the merits. Summary judgment should not be entered unless a case is free from doubt. The moving party must prove that there is no genuine issue of material fact to be tried and that it is entitled to judgment as a matter of law. Moreover, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983).

First, subsequent to the discovery of roof problems, Kasco, for consideration, released Hess “from all, and all manner of, actions and causes of action, suits ... claims and demands whatsoever in law or equity ... arising from the Limited Partnership or the Post-Closing Agreement from the beginning of the world to the date of these presents.” This release was dated August 28, 1979. The facts and circumstances existing at the time of the execution of the release indicate that the parties thereto wished to cause a general settlement of accounts, (see, e.g., Gateway Center Corporation v. Merriam, 290 Pa.Super. 419, 434 A.2d 823 (1981)). This is not a case where a particular party lacked bargaining power but involved sophisticated business entities represented by counsel. Kasco asserts that the general words of a release will not bar enforcement of a claim not accrued at the date of execution, citing Restifo v. MacDonald, 426 Pa. 5, 230 A.2d 199 (1967). Restifo involved unsophisticated litigants and was specifically limited to its facts. 426 Pa. at 11, 230 A.2d at 202. The Court stated

Our opinion in this case, of course, does not prevent the parties from contracting for the release of the right to seek contribution in the event of a lawsuit by a third party, for “[i]t is well settled that where the terms of a release and the facts and circumstances existing at the time of its execution indicate the parties had in mind a general settlement of accounts, the release will be given effect according to its terms.” Brill’s Estate, 337 Pa. 525, 528, 12 A.2d 50, 52 (1940).

The release at issue here was bargained for and was executed after the sale of the mall and after roof problems had developed and the parties had been made aware of the defects.

Kasco further claims that Hess’s liability is predicated upon representations and warranties alleged by RMC in its complaint. RMC never alleged that any representations or warranties were made to it by Hess, and there is no proof offered of any such warranties or representations. Appellant will not be permitted to rest on mere allegations. Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982), Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974).

RMC’s complaint alleged that the defects in the mall roof resulted from the time chosen for its construction, i.e., “the roof was constructed during the adverse and inclement weather of winter months without reasonable and necessary precautions being taken to prevent damage to the roof.” Kasco joined Hess, asserting tnat the latter determined when the roof would be constructed. The lower court correctly held “there is not one word of record establishing that Hess, or any of its agents or employees participated in any way in the determination of when the roof should be constructed and installed.” (Opinion, Garb, P.J. at 5). Moreover, in its Answers to Interrogatories, Kasco names no Hess personnel as being involved in the decision as to the time of the construction.

We, therefore, find no genuine issue of material fact and hold that summary judgment was properly entered in favor of Hess.

Order affirmed.

      . Hess has also raised an issue of res judicata as to its liability since the action in Federal court was dismissed. The trial court stated, and we agree
      We are unable to determine whether that order constitutes res judicata because we do not have before us the facts, circumstances and pleadings of that case.
      (Opinion, Garb, P.J. at 7)

      . It is inappropriate for us to decide the continuing validity of Rule 266 and whether it is consistent with the Pennsylvania Rules of Civil Procedure and the fairness mandated by Pa.R.Civ.P. 126, since we affirm on the merits. We chose to adopt the spirit of Brogan as applied to this, albeit discretionary, local rule but decline to extend our examination to affirm based solely on these grounds. The validity of the rule has not been called into question.

      . The grant of the motion for summary judgment is final and appeala-ble since it has the effect of dismissing Hess from the case. Fireman’s Fund Insurance v. Nationwide Mutual Insurance, 317 Pa.Super. 497, 464 A.2d 431 (1983).

      . Under Pa.R.Civ.P. 1035, a judge is empowered to enter summary judgment only “if appropriate".


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    486 A.2d 982
    COMMONWEALTH of Pennsylvania ex rel. Cynthia VAN FOSSEN v. Terry PAUL, Warden Luzerne County Prison. Appeal of Cynthia VAN FOSSEN. COMMONWEALTH of Pennsylvania, v. Cynthia VAN FOSSEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 4, 1984.
    Filed Dec. 21, 1984.

      Michael R. Kostelansky, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellee.

      Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

These consolidated appeals arise from (1) the denial of appellant’s habeas corpus petition; and, (2) the grant of the Commonwealth’s petition to modify sentence to provide total confinement.

A plea of guilty to one count of aggravated assault was entered by appellant on March 21, 1983, and charges of resisting arrest and escape were nolle prossed. She was immediately sentenced to three (3) to eighteen (18) months county imprisonment, said sentence to be served on forty-five (45) consecutive weekends from 7:00 p.m. on Friday until 7:00 p.m. on Sunday, beginning March 25, 1983. Upon her arrival at Luzerne County Prison at approximately 7:15 p.m., Friday, September 2, 1983, appellant exhibited characteristics indicative of being under the influence of alcohol. As was her right, appellant refused to submit to a breath-ometer reading. On Sunday, prison officials did not release appellant and she remained in continuous confinement until October 19, 1983.

Appellant filed an application for writ of habeas corpus on September 7, 1983, and the Commonwealth filed a motion to modify sentence that same date. A single hearing on both matters was held September 20, 1983, and the habeas corpus petition was denied while the petition to modify sentence was granted. Appellant was released on parole October 19, 1983, upon expiration of her minimum sentence. Her maximum sentence will expire January 15, 1985.

Traditionally, appellant’s release from actual custody would render moot that portion of this matter relating to the denial of her habeas corpus petition. Commonwealth ex rel. Yambo v. Jennings, 220 Pa.Super. 186, 188, 190, 286 A.2d 909, 911-912 (1971). A matter is also rendered moot by satisfaction of sentence under the traditional view. Cf., Commonwealth v. Sheehan, 446 Pa. 35, 41, 285 A.2d 465, 468 (1971). This latter traditional view has been modified to state that satisfaction of sentence renders the case moot unless the conviction and sentence causes the petitioner to suffer collateral criminal disabilities which survive the satisfaction of sentence and give the petitioner standing to attack the conviction. Id. Our Supreme Court went even further several years later and determined that those who show criminal and/or civil collateral consequences resulting from a wrongful conviction and have not been charged with any other criminal offense have the right to challenge an alleged wrongful conviction. Commonwealth v. Doria, 468 Pa. 534, 541, 364 A.2d 322, 326 (1976).

Appellant seeks to extend the holding in Doria to the instant matter by stating that she intends to pursue civil remedies in an action against the prison officials for alleged unlawful detention. As appellant is not challenging her conviction or, more specifically, her plea of guilty, we see no reason to apply the view in Doria. Instead we find the case of Commonwealth ex rel. Yambo v. Jennings, supra, to be applicable, thereby rendering her habeas corpus denial claim moot.

As to whether the trial court had the authority to entertain and grant the Commonwealth’s petition to modify sentence, we find that issue to also be moot. In light of the holding in Commonwealth v. Doria, we note that appellant states her intention to challenge, in a civil action, her confinement from 7:00 p.m., September 4, 1983, to September 20, 1983. The modification of appellant’s sentence became effective after the hearing on the motion held September 20, 1983. As a result she makes no claim of “civil and/or criminal disability” due to the sentence modification despite her parole or release from confinement. Hence, the prerequisites set forth in Doria are not met, rendering her claim moot.

Appeal dismissed as moot.


author: OLSZEWSKI, Judge:

text:
    486 A.2d 984
    COMMONWEALTH of Pennsylvania v. William H. BIVENS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1984.
    Filed Jan. 4, 1985.

      Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.
    John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In this case, William H. Bivens appeals the judgment of sentence imposed by the Court of Common Pleas of Crawford County. He contends that the sentencing judge erroneously calculated his prior record score and thus, under the Sentencing Guidelines, sentenced him to a longer term than was proper. After reviewing the record, the opinion of the sentencing court and the law, we agree and vacate the judgment of sentence.

William H. Bivens was charged on June 27, 1983, with unlawful delivery of a controlled substance, in connection with the sale of 24 grams of marijuana to an undercover police officer. He entered a plea of no contest on November 15, 1983, and was sentenced to 21 months to 42 months in the State Correctional Institution at Pittsburgh. He moved for reconsideration of sentence, arguing that the court had added to his prior record score two points for a juvenile adjudication when that adjudication should have counted as zero. The court rejected his argument.

The general rule for courts in selecting among sentencing alternatives is that “the sentence imposed should call for confinement consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs. of the defendant.” 42 Pa.C.S. Sec. 9721(b) (Purdon’s 1982). To effectuate this principle, the court is required to consider the Sentencing Guidelines when determining the appropriate sentence for felonies and misdemeanors. 42 Pa.C.S. Sec. 9721; 204 Pa.Code Sec. 303.1(a).

The Sentencing Guidelines impose strict limitations on the use of juvenile adjudications in sentencing for crimes committed as an adult. Juvenile adjudications may be counted when:

(T)here was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.

204 Pa.Code Sec. 303.7(b)(ii).

The juvenile record in the case at bar, which the lower court thoughtfully appended to the record of the case, contains the following items:

(1) A complaint that William Harrison Bivens “did commit acts of shoplifting and on two occasions, burglary and larceny.”

(2) An order setting a hearing date for the complaint.

(3) An order adjudging William Harrison Bivens delinquent and placing him under the care of his mother, subject to the supervision of the Juvenile Probation Officer of Crawford County.

(4) An order releasing William Harrison Bivens from the jurisdiction of the Juvenile Court upon his enlistment in the U.S. Navy.

(5) A report entitled “Probation Department — Presen-tence Report” dated February 1, 1965, containing an official version of the events leading to the adjudication of delinquency and the juvenile’s version of the events. A family history is appended, as is the juvenile officer’s recommendation that the juvenile be reprimanded rather than put on probation.

The juvenile adjudication at issue occurred in 1965, when appellant was 18. There is no transcript of the hearing that took place. There is no indication that the accused juvenile had counsel, or had the chance to confront his accuser, or cross-examine him. The only evidence that then-juvenile William Bivens committed burglary or any other crime is in the probation officer’s unsworn presentence report. The court’s order finding appellant delinquent is not specific.

In our opinion, the Sentencing Commission, when drafting the Guidelines, meant for juvenile adjudications not to be counted in sentencing unless there was no doubt that the juvenile had been adjudicated delinquent for a specific offense that would be a felony if committed by an adult. Otherwise, the juvenile adjudication may be counted against the adult defendant unfairly.

Since the juvenile court did not expressly find appellant delinquent for burglary, a Felony I, we cannot hold that the adjudication should be counted as two points in this sentencing. The adjudication thus should not have been counted toward his prior record score. Appellant’s prior record score should have been counted as three, counting one adult burglary as two points, and misdemeanors as one point, and thus his sentence was in excess of the Sentencing Guidelines.

We note that the sentencing court examined appellant’s juvenile record and concluded that the adjudication was for burglary, a Felony I, making the adjudication useable in the prior record score. The court below apparently relied on the presentence report of the probation officer in deciding that appellant had committed a burglary when he was a juvenile.

We believe the court was correct to try to determine the nature of the juvenile adjudication, but that the record available does not support a finding that the adjudication was for burglary. The juvenile court made no specific, or even general, statement as to its reason for determining appellant delinquent. The statements in the presentence report were unsworn. The only account of the juvenile’s version of the facts is through the probation officer. The adjudication could have been for burglary; given the limited record available, we cannot say that the juvenile court determined that the various allegations and statements were true.

We hold that when a 18-year-old adjudication of delinquency is used in sentencing an adult, the Sentencing Guideline’s requirement of “express finding” of the commission of a felony is not fulfilled when there are multiple charges and there is no statement by the court on specific offenses. If only one charge were presented in the petition and adjudication, we might hold differently; if the adjudication were relatively recent, it might be appropriate to remand for a determination of whether the felony charged was the basis for the adjudication. That is not the case here. Accordingly, we vacate the sentence of 21 months to 42 months and remand for resentencing. Jurisdiction is relinquished.

      . Twenty-four grams of marijuana is less than one ounce.

      . Appellant was convicted of one burglary as an adult, and of two misdemeanors. Under the Sentencing Guidelines, if only those convictions were to be counted, his prior record score would be three. The calculation of his record score for the juvenile adjudication is the problem.
      The Sentencing Guidelines allow a sentencing court to score only juvenile adjudications for crimes that would count as felonies if committed by adults. Any type of burglary is a Felony I. See 42 Pa.C.S. Sec. 9721, 204 Pa.Code 303.8 (statutory classification of offenses). Appellant’s juvenile adjudication, if for burglary, thus would count as two points in a prior record score calculation. If his juvenile adjudication were to be counted as an adjudication for larceny and shoplifting, both misdemeanors if of the nature alleged in the juvenile petition, his adjudication would count as zero, since juvenile misdemeanors are not scored. 42 Pa.C.S. Sec. 9721; 204 Pa.Code 303.-7(b)(l)(ii).
      The offense gravity score for delivery of controlled substances is five. With two points for his prior record score for an adult burglary, and one point for misdemeanors, appellant’s minimum sentence with the juvenile adjudication deemed to be a misdemeanor (and not counted under the Guidelines) would be 8 months to 12 months. His minimum sentence with the juvenile adjudication counted as a burglary would be 21 months to 30 months.

      . The Sentencing Commission apparently was divided on this issue, but eventually decided to bar the use of juvenile adjudications unless an "express finding” had been made.

      . We note that the Supreme Court held in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that juveniles are entitled to some of the same procedural protections with which we surround adult criminal defendants. This juvenile adjudication, unfortunately, occurred two years prior to the Court’s holding in Gault, and it appears, from the record, that no protective procedures were followed.

      . A juvenile weapons misdemeanor would also be counted, as one point, in the prior record score. 42 Pa.C.S. Sec. 9721; 204 Pa.Code 303.7(b)(l)(ii).

      . We believe that it would be futile to remand for a determination of whether a felony had been committed in 1965 because of the length of time involved.


author: HOFFMAN, Judge:

text:
    486 A.2d 987
    COMMONWEALTH of Pennsylvania v. Stefan CIHYLIK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1984.
    Filed Jan. 4, 1985.

      Richard D. Atkins, Philadelphia, for appellant.
    Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

The issue on appeal is whether appellant had a legitimate expectation of privacy in the contents of a garbage pit located beside a barn on a leased lot so as to warrant suppression of evidence seized by police in a trespassory warrantless search. We hold that appellant had no such privacy expectation and, accordingly, affirm.

Based upon the lower court’s findings of fact and the record, the relevant facts are as follows: On January 22, 1981, appellant became the lessee of a lot located at the southeast corner of Eighth Street and Beil Alley in Northampton County, Pennsylvania. According to the terms of the lease, the premises were to be used for non-commercial purposes and appellant was to pay for all utilities. Upon the lot was a woodframe barn measuring approximately 20 feet by 40 feet with a single locked door at the front, no windows, and a sheet metal roof punctuated by two large exhaust vents. Near one side of the barn was an open pit comprised of a hollow metal drum or tub planted in the ground to a depth of about four feet. Although this pit was clearly observable from both Eighth Street and Beil Alley, its contents were not visible from either street. The lot was grassy, overgrown with weeds and dirt patches, and was not fenced or enclosed in any way. The lot was surrounded closely by alleys and neighboring buildings.

On January 15,1982, Patrolman Richard Fenstermaker of the Northampton Borough Police Department received information regarding alleged suspicious activities at this lot based upon an unusual amount of traffic in the area. On February 28, 1982, Officer Fenstermaker, along with Officers Robert Benson and Howard George, began periodic surveillance of the barn and surrounding area. On March 5, Officer Benson observed appellant exit the front of the barn carrying some dried plants or weeds and throw the vegetation into the open pit. Appellant then left the premises. That evening, Officer Fenstermaker returned to the lot and, upon approaching the pit, observed dried clippings of what appeared to be marijuana plants lying atop some garbage. He took several of these clippings and returned to police headquarters, where the material was “field tested” and positively identified as marijuana. Officer Fenster-maker returned to the lot and took photographs of the pit contents. At this point in time, a “more earnest surveillance” was established. Over the next two months, appellant was observed sixteen times at the barn, and, each time, appellant would immediately lock the door upon entering and exiting the barn. Officers Benson and Fenstermaker also took electrical and water readings from meters attached to an exterior wall of the barn and visible from adjoining property. These readings, covering the period from March 1981 through March 1982, revealed that extremely high amounts of water and electricity were being consumed for an uninhabited building.

Based upon the above information, a warrant was obtained on May 19, 1982, to search for marijuana plants, other controlled substances, and any related paraphernalia or instruments used in the growing or manufacture of such items. As a result of the May 19 search conducted in appellant’s presence, 344 immature marijuana plants were seized from the barn. The total weight of the dried leaves and stems when stripped from the plants was 11.9 pounds.

Appellant was arrested and charged with unlawful possession of a controlled substance (marijuana) and possession with intent to deliver a controlled substance (marijuana). On December 7, 1982, after making findings of fact and conclusions of law, the lower court denied appellant’s motion to suppress the physical evidence seized by police and impounded the record of the suppression hearing. On December 15, appellant waived jury trial and the lower court found him guilty on both counts. Appellant then waived his rights to file post-verdict motions and to a pre-sentence investigation report. He was subsequently sentenced to (1) a term of five years probation and a $5,000 fine plus prosecution costs on the possession with intent to deliver charge, (2) a concurrent term of one year probation plus costs on the possession charge, and (3) community service as a volunteer at the Northampton County Prison for a minimum of twelve hours per month during the first year of probation. This appeal followed.

Appellant contends that Officer Fenstermaker’s trespas-sory and warrantless search and seizure of the marijuana clippings from his pit was unreasonable because neither probable cause nor exigent circumstances existed. He therefore argues that the marijuana plants seized in the subsequent search of the barn pursuant to a warrant should have been suppressed as the fruit of the prior illegal search of the pit. The Commonwealth, on the other hand, argues that appellant had no reasonable expectation of privacy in the clippings which he had abandoned.

“The Fourth Amendment does not prohibit warrantless searches, but rather unreasonable searches. The reasonableness of a search depends upon the facts and circumstances of the particular case, considered in the context of established Constitutional principles.” United States v. Samuels, 374 F.Supp. 684, 685 (E.D.Pa.1974). See also Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963); Commonwealth v. Weimer, 262 Pa.Superior Ct. 69, 74-75, 396 A.2d 649, 651-652 (1978) (en banc). In Pennsylvania, “the burden is upon the Commonwealth to prove by a preponderance of the evidence that a search or seizure did not violate the fourth amendment.” Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978). It is now well-recognized that, in order to challenge successfully a warrantless search, the challenger must have a legitimate expectation of privacy in the area or property searched:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (citations omitted). This privacy test is twofold: “the expectation must not only be ‘actual (subjective),’ but also one that ‘society is prepared to recognize as reasonable.’ ” Commonwealth v. Lowery, 305 Pa. Superior Ct. 66, 71, 451 A.2d 245, 247 (1982), quoting Katz v. United States, supra 389 U.S. at 361, 88 S.Ct. at 516 (HARLAN, J., concurring). Accord, Commonwealth v. Tann, 500 Pa. 593, 599, 459 A.2d 322, 325 (1983). In Commonwealth v. Sell, 288 Pa.Superior Ct. 371, 432 A.2d 206 (1981), this Court stated:

The controlling consideration, therefore, is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched.
* * * # * #
Moreover, in deciding the legitimacy of an accused’s asserted privacy expectation, no single factor is determi-native____ “Obviously, however, a ‘legitimate’ expectation of privacy by definition means more than a subjective expectation of not being discovered____ Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” ... Thus, the Supreme Court has considered whether the individual claiming the protection of the fourth amendment took ordinary precautions to insure his privacy, ..., and has examined the manner in which an individual has used a particular location____ Finally, as the Court recognized in Rakas [v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ], principles of property law reflect society’s express recognition of an individual’s authority to conduct himself as he desires in certain areas and, while not controlling, “should be considered in determining whether an individual’s expectations of privacy are reasonable.” ...

Id., 288 Pa.Superior Ct. at 378-79, 432 A.2d at 210-211 (citations omitted). Accord, Commonwealth v. Lowery, supra 305 Pa.Superior Ct. at 71, 451 A.2d at 247 (“Property rights, actual usage, and historical distinctions are all used to determine whether the Fourth Amendment right to privacy applies.”).

It is also well-established that “no one has a standing to complain of a search and seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976). “The determination of whether or not there has been an abandonment of property is an ultimate fact, dependent upon the purported act of abandonment and the manifested intent of the person alleged to have abandoned the property.” Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978). “The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned.” Id. In Commonwealth v. Minton, 288 Pa.Superior Ct. 381, 432 A.2d 212 (1981), this Court held that “placing trash for collection is an act of abandonment which terminates any fourth amendment protection.” Id., 288 Pa.Superior Ct. at 391, 432 A.2d at 217. In Minton, police removed a large plastic trash bag sitting at the curb side directly in front of the defendant’s residence and discovered marijuana residue in the bag. See also United States v. Reicherter, 647 F.2d 397, 399 (3d Cir.1981) (“Every circuit considering the issue has concluded that no reasonable expectation of privacy exists once trash has been placed in a public area for collection”; such trash has been abandoned).

In the instant case, after reviewing the photographs taken of the contents of the pit and the testimony on the record, we think it is clear that the pit was used by appellant as a garbage dump and that it was left open and accessible to anyone crossing the lot. The Commonwealth also presented a video tape of the area in question which showed the close proximity of the surrounding structures and the fact that the general area was used as a playground by children. Although appellant did not put this garbage in a bag on the edge of his lot for collection, we believe that the instant case is still analogous to the above-cited trash cases because appellant’s actions also evidenced an intent to abandon the contents of the pit. There is no indication that appellant ever retrieved any of the contents of the pit or ever approached the pit except to throw things in. Additionally, and more importantly, our conclusion that appellant did not have a legitimate expectation of privacy in the contents of the pit is bolstered by the following circumstances:

Firstly, the pit was completely open having no lid or other cover signifying an attempt to hide its contents from inspection. Secondly, there were no fences, gates or other enclosures designed to prevent access to the pit. Thirdly, the defendant’s conduct in leaving the premises without removing the marijuana clippings from the pit or taking ordinary measures to conceal them hardly manifests a legitimate expectation of privacy. Fourthly, defendant had always been very careful to secure the barn from the public. Yet, he did not display such an attitude with the clippings leaving them on top of garbage which was accessible to the public.

(Lower Court Opinion at 6-7). Accordingly, even assuming that appellant had an actual expectation of privacy, we concur with the lower court’s finding as follows:

Given the wide-open appearance of the pit, its location in an unfenced yard, the easy access provided by an adjoining public alley, and the proximity of other homes, we find the defendant's expectation of privacy for this outside area is not one which society is prepared to recognize as reasonable.

(Lower Court Opinion at 7).

Appellant argues, however, that he had a reasonable expectation of privacy in the contents of the pit because they were seized from within the constitutionally protected “curtilage” of the barn.

The Fourth Amendment provides for “the right of the people to be secure in their persons, houses, papers and effects.” The word “houses” in the Fourth Amendment has been extended by the Courts to include the curti-lage .... Thus, the enclosed area surrounding a dwelling place is part of the protected premises.

United. States v. Wolfe, 375 F.Supp. 949, 958 (E.D.Pa.1974) (citations omitted). “Not every object near or attached to a dwelling is entitled to Fourth Amendment protection.” United States v. Romano, 388 F.Supp. 101, 104 (E.D.Pa. 1975). “Whether a given area is within the protected curtilage of one’s dwelling depends upon a number of factors, including its proximity to the dwelling, whether it is within the enclosure surrounding the dwelling, and its use as an adjunct to the domestic economy of the family.” United States v. Minker, 312 F.2d 632, 634 (3d Cir.1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). See, e.g., id. (outside trash receptacle for multi-tenanted apartment building was not within curtilage of second floor tenant’s dwelling); United States v. Romano, supra (drainpipe attached to rear wall of townhouse-student residence in which defendant lived was not within curtilage); but see Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978) (old Cadillac sitting behind defendant’s house near the edge of the woods was within the curtilage).

However, in defining curtilage, the courts have made a distinction between dwelling houses and business offices:

Curtilage, discussed above, means a small piece of land, not necessarily enclosed, around a dwelling house and generally includes buildings used for domestic purposes in the conduct of family affairs; the term has no application to any building not used as a dwelling____
Whereas, the term “house” within the Fourth Amendment may include a business office or store, ... the concept of curtilage does not apply to buildings other than dwellings____ Thus, the backyard of the defendant’s business premises would not be afforded the same protection as part of the curtilage of a dwelling.

United States v. Wolfe, supra at 958-59 (citations omitted). See also Monnette v. United States, 299 F.2d 847, 851 n. 6 (5th Cir.1962); United States v. Hayden, 140 F.Supp. 429, 435 (D.Md.1956); United States v. Vlahos, 19 F.Supp. 166, 170 (D.Or.1937); People v. Sperber, 40 Misc.2d 13, 242 N.Y.S.2d 652, aff'd, 15 N.Y.2d 566, 254 N.Y.S.2d 538, 203 N.E.2d 219 (1964). “Thus, it may be concluded that the Fourth Amendment does not cover a business establishment with the same degree of protection against warrantless searches and seizures as that afforded a bona fide dwelling.” United States v. Wolfe, supra at 959.

Here, we reject appellant’s assertion that the pit area constituted “curtilage”. Although the pit was situated close to the building and the lot appeared to be surrounded by residential dwellings, we cannot accept appellant’s claim that the building was his “dwelling”. As we have noted, the structure had air vents on the metal roof, no windows, and only one entrance. Moreover, there is no indication that appellant used the place as a residence, visiting it only sixteen times over a two-month period. The building was obviously a barn used for nonresidential purposes. Therefore, because the police trespass was not an intrusion into a constitutionally protected area, Officer Fenstermaker’s mere viewing of the contents of the pit, which was open to view, did not constitute a search prohibited by the Fourth Amendment. See Commonwealth v. Weimer, 262 Pa.Superior Ct. 69, 73-74, 396 A.2d 649, 650-651 (1978) (en banc); Commonwealth v. Adams, 234 Pa.Superior Ct. 475, 481, 341 A.2d 206, 209 (1975).

Additionally, we agree with the lower court that the instant case is better analyzed “on the basis of defendant’s expectation of privacy rather than a property concept of curtilage.” (Lower Court Opinion at 8). Accord, United States v. Minker, supra at 634 (“factors of paramount importance in considering a Fourth Amendment claim are the nature of the individual’s interest in and the extent of the claimed privacy of the premises searched”); United States v. Romano, supra at 105 (because the Fourth Amendment protects people, not places, “the scope of protection should be based upon the degree of privacy an individual should reasonably expect rather than the venerable concept of curtilage”).

Appellant also argues that the police trespass onto his lot constituted an unreasonable search. We disagree and find analogous support in the “open fields” cases. The term “open fields” has been defined as “privately owned grounds or outbuildings which are not located in close proximity to the owner’s dwelling.” Commonwealth v. Robbins, 216 Pa.Superior Ct. 233, 235, 263 A.2d 761, 762 (1970) (HOFFMAN, J., concurring); Commonwealth v. Wagner, 69 D. & C.2d 560, 563 (Lebanon Co.1974). In the landmark case of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the United States Supreme Court held that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields.” Id. at 59, 44 S.Ct. at 446. In Hester, revenue officers went to the house of the accused’s father without a warrant and, concealing themselves approximately 50-100 yards away, saw the accused hand a quart bottle to another man. In the subsequent foot pursuit, the accused and the other man dropped a jug and a bottle, which the agents seized when the men abandoned them and which were discovered to contain illegal moonshine whiskey. In affirming judgment, the Court held that, even if the agents had trespassed, their testimony was not obtained by an illegal search and seizure and should therefore be allowed.

This Court followed Hester in Commonwealth v. Janek, 242 Pa.Superior Ct. 340, 363 A.2d 1299 (1976). In Janek, the field in question belonged to the defendant’s mother; contained a tent, various gardening implements, approximately 200 live marijuana plants and a can of fertilizer; was not visible from the nearest public road; and was posted with “No Tresspassing” signs. Police, who were unlawfully on the property, arrested the defendant and his companion as they were leaving the field. We held, in part, that under Hester, the police were justifiably in a position to observe the illegal acts and to seize the marijuana and gardening implements. See also Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976) (defendant had no standing to challenge police search and seizure of murder victim’s body from a shallow grave in a wooded area separated by a fence and 148 yards from the backyard of a small farmhouse owned by a third party); Commonwealth v. Metzger, 295 Pa.Superior Ct. 267, 441 A.2d 1225 (1982) (where corpse of murder victim was found in a shallow grave in a grassy field approximately 200 feet behind the farm house rented by defendant and his girlfriend, court held that there was no Fourth Amendment protection in open fields).

More recently, in Commonwealth v. Beals, 313 Pa.Superior Ct. 346, 459 A.2d 1263 (1983), an informant told a state narcotics agent that he had observed marijuana plants growing on the defendant’s land and took the agent to the property to show the area in which he had seen the growing marijuana, but their actual view of the plants was obstructed by woodland. Two days later, the agent and another agent went upon a neighbor’s lands with permission but were still unable to see the clearing because of surrounding trees. They observed “No Trespassing” signs but, nevertheless, entered the woods on the defendant’s land. Thus, they were able to observe 350-400 marijuana plants growing in the cleared space among the trees. The day after, the agents circled over the clearing in a state police helicopter at a height of 200 feet and, with the assistance of binoculars, were able to observe the growing marijuana plants and take aerial photographs. They then obtained a search warrant and consequently seized 81 grams of marijuana and remnants of several marijuana plants. In reversing an order suppressing the evidence, this Court noted that “[o]pen fields generally are not considered areas subject to a reasonable expectation of privacy.” Id., 313 Pa.Superior Ct. at 353, 459 A.2d at 1266. We reasoned that the field was located 1170 feet from the dwelling and was not visible therefrom, and consisted of cleared space surrounded on all sides by woodland. Id., 313 Pa.Superior Ct. at 354, 459 A.2d at 1267. We also stated that the trespass on the defendant’s land did not of itself constitute an illegal search but was only a factor to consider in determining the reasonableness of the visual intrusion. Id., 313 Pa.Superior Ct. at 352, 459 A.2d at 1266.

Clearly, the instant area in question, which was only about 10 feet from one side of the barn, differs from the fields in the above-cited cases which were situated some distance from the houses. Therefore, we cannot hold that the portion of the lot containing the garbage pit constituted an “open field” as that term has been judicially defined and applied. However, we note that the courts in the “open fields” cases upheld a government trespass to obtain incriminating evidence because the area intruded upon was not an area considered subject to a reasonable expectation of privacy. Similarly, here, we find that the police officer’s intrusion onto appellant’s lot to look at the pit does not warrant suppression because appellant did not have a reasonable expectation of privacy in the open, exposed area containing the pit.

Having concluded that appellant had no legitimate expectation of privacy in the items seized from the pit, we hold that the marijuana seized during the subsequent search of the barn pursuant to a valid warrant was properly admitted into evidence.

Judgment of sentence affirmed.

      . Upon receiving the notice of appeal to the Superior Court from the December 15, 1982 order, the lower court filed a Pa.R.A.P. 1925(a) opinion on January 20, 1983, in which it relied upon its December 15 opinion, dealing with appellant’s suppression motion, to support its order.

      . In United States v. Romano, 388 F.Supp. 101 (E.D.Pa.1975), the court explained the derivation of the word "curtilage" as follows:
      The word curtilage is derived from the Latin cohors (a place enclosed around a yard) and the old French cortilliage or courtil-lage which today has been corrupted into courtyard. Originally it referred to the land and outbuildings immediately adjacent to a castle that were in turn surrounded by a high stone wall____ Today its meaning has been extended to include any land or building immediately adjacent to a dwelling. Usually it is enclosed some way by a fence or shrub.

        Id. at 104 n. 4 (citations omitted).

      . In Wolfe, the court denied a motion to suppress where an FBI agent went into the alleyway behind the defendant’s business offices and removed a cardboard carton from the trash located in the backyard without a search warrant.


author: CAVANAUGH, Judge:

text:
    486 A.2d 994
    COMMONWEALTH of Pennsylvania v. Paul A. STOPPIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1984.
    Filed Dec. 21, 1984.
    Petition for Allowance of Appeal Denied June 28, 1985.

      Before CAVANAUGH, McEWEN and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, Paul A. Stoppie, was convicted of murder in the first degree following a jury trial before Dolbin, J. His motions for new trial and in arrest of judgment were denied and appellant was sentenced to life imprisonment. He has appealed to this court from the judgment of sentence.

Counsel for the appellant in this case has failed in numerous respects to comply with the Rules of Appellate Procedure concerning the contents of appellate briefs. We would be justified in quashing this appeal under Pa.R.A.P. 2101 which provides that appeals may be quashed where defects in the brief are substantial. See also Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984) and cases cited therein. See also Commonwealth v. Gigli, 287 Pa.Super. 347, 430 A.2d 319 (1981); Commonwealth v. Holcomb, 261 Pa.Super. 532, 396 A.2d 29 (1978); Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978); Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981). Notwithstanding almost complete disregard of the Rules of Appellate Procedure concerning the contents of a brief, we have considered the appeal on the merits in a separate memorandum opinion. We note a trend in which appellate counsel ignore our appellate rules concerning the preparation of briefs. See Commonwealth v. Rose, 265 Pa.Super. 159, 166, 401 A.2d 1148, 1152, Footnote 6, (1979) wherein we stated:

Appellant’s brief also violates some of our other rules, e.g. Pa.R.A.P. 2115, and the appeal could have been quashed pursuant to Pa.R.A.P. 2101. We did not take such drastic action in this appeal due to the seriousness of the issues involved. However, such blatant violations of our rules, without leave of court, will not be tolerated in the future.

See also Commonwealth v. Casner, 315 Pa.Super. 12, 461 A.2d 324 (1983); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). Appellate counsel who do not comply with our rules run a grave risk that their appeals will be dismissed, and that the responsibility for such dismissal will weigh heavily on the counsel who fail to comply with published rules.

In this case, appellate counsel, who was also counsel in the court below, filed a brief which failed to comply with Pa.R.A.P. 2111(a)(2) which requires that the brief shall contain the “order or other determination in question.” This should follow immediately after the Statement of Questions involved. Counsel also ignored Pa.R.A.P. 2115 which requires that “[t]he text of the order or other determination from which an appeal has been taken or which is otherwise sought to be reviewed shall be set forth verbatim immediately following the statement of jurisdiction.” One of counsel’s most egregious errors was found in his noncompliance with Pa.R.A.P. 2116 which deals with the statement of questions involved. The Rule provides that the statement of questions involved “should not ordinarily exceed 15 lines, [and] must never exceed one page.” (Emphasis added) The rule also provides that it is to be “considered in the highest degree mandatory, admitting of no exception.” Counsel was not intimidated by this Rule and his brief contains a statement of questions covering thirteen pages. We also note that the statement of questions involved, while it should not ordinarily exceed 15 lines, in this case covers approximately 195 lines.

Pa.R.A.P. 2118 provides that the summary of argument “should not exceed one page and should never exceed two pages.” The summary of argument in the instant case is eight pages long. The appellate rule dealing with the manner of setting forth the argument in the brief is found at Pa.R.A.P. 2119. One of the important provisions of this Rule is found at 2119(b) dealing with citations and is often violated in appellate briefs, as it was in the brief now under consideration. The Rule provides in part:

Opinions of an appellate court of this or another jurisdiction shall be cited from the National Reporter System, if published therein, and to the official reports of Pennsylvania appellate courts, if published therein.

This rule has considerable practical significance as it is a cause of continuing frustration to appellate judges and their staffs to find incomplete and inaccurate citations. Pa.R. A.P. 2119(c) is of equal importance and this Rule was also ignored by counsel. The Rule states in part:

(c) Reference to record. If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears (see Rule 2132) (references in briefs to the record).

Appellant’s brief also violates Pa.R.A.P. 2119(d) which provides:

(d) Synopsis of evidence. When the finding of, or refusal to find, a fact is argued, the argument must contain a synopsis of all the evidence on the point, with a reference to the place in the record where the evidence may be found.

It is most important that counsel point out to the appellate court the place in the record which sustains the matters to which he is referring. The argument in this brief is 134 pages long and contains innumerable references to evidence and other matters in the record. Yet, there is not one place in the argument where counsel refers us to the page in the record where we may find the subject matter that he is discussing. The trial in this case covered ten days and ran from November 15, 1982 to November 30, 1982. The Notes of Testimony from the trial alone cover 680 pages and the testimony in other proceedings before Judge Dolbin cover just over 200 pages. Since counsel’s brief gives us no assistance in our perusal of the record, we must perform, to a certain extent, the duties of appellate counsel and search the record in an attempt to discover what counsel is talking about. Clearly, “appellant has failed to guide the court as to the facts or applicable law.” Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944, (1981).

Counsel has ignored Pa.R.A.P. 2135 dealing with the length of briefs and which provides:

Rule 2135. Length of Briefs
Except by permission of the court, briefs (exclusive of pages containing the table of contents, tables of citations and any addendum containing opinions, etc., or any other similar supplementary matter provided for by these rules) shall not exceed:
(1) 50 pages of conventional typographical printing or 70 pages of reproduction by any other process of duplicating or copying, in the case of principal briefs.
(2) 25 pages of conventional typographical printing or 35 pages of reproduction by any other process of duplicating or copying, in the case of reply briefs.

In this case the brief was not prepared by “conventional typographic printing” but by some “other process of duplicating or copying” and is 161 pages in length. It exceeds the maximum length by approximately 90 pages and counsel did not seek permission of our court to file such a brief. It is clear beyond peradventure that the defects in this brief are substantial. While we are not dismissing the appeal in this case, we should insist on compliance with our appellate rules concerning the preparation of briefs. Counsel who do not comply with the rules, as in this case, have an unfair advantage over those lawyers who conscientiously attempt to comply, as judicial resources are needlessly devoted to cases involving non compliance.

Two recent cases illustrate how close appellate counsel came to having his appeal quashed. In Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982) the case was submitted on brief without oral argument as in this case. The appeal was quashed for failure to meet the requirements of the Rules of Appellate Procedure in several respects and we stated at 306 Pa.Superior Ct. 2, 3, 451 A.2d 1360, 1361:

The court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions which are correctable through less drastic means. However, where gross deviations from the appellate rules, which substantially impair our ability to exercise the power of review, are present, we will not hesitate to suppress the party’s brief and quash the appeal. (Emphasis Added.)

In Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982), the appeal was quashed under Pa.R.A.P. 2101 as the defects in the appellant’s brief were substantial and the brief was so defective as to preclude effective appellate review. We pointed out at 299 Pa.Super. 67, 445 A.2d 150:

We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof. (Emphasis Added.)

We have reviewed the numerous issues raised by appellant in a separate Memorandum Opinion to be filed today and none of them warrant a new trial.

Judgment of sentence affirmed.


author: SPAETH, President Judge: BECK, Judge,

text:
    486 A.2d 997
    THREE COUNTY SERVICES, INC., Trading As Tri-County News Service v. The PHILADELPHIA INQUIRER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1984.
    Filed Jan. 11, 1985.

      Samuel E. Klein, Philadelphia, for appellant.
    Hal F. Doig, Media, for appellee.
    Before SPAETH, President Judge and BECK and TAMI-LIA, JJ.
   SPAETH, President Judge:

This is an appeal from an order granting appellee’s petition for a preliminary injunction. Appellant makes several arguments that we need not address because we agree with appellant’s argument that appellee did not prove that the preliminary injunction was necessary to prevent immediate and irreparable harm. We therefore vacate the trial court’s order and remand for further proceedings.

Appellee’s complaint and petition for preliminary injunction were filed on April 20, 1981. Hearings on the petition were held on May 28, July 14, and September 8 & 10, 1981. On August 17, 1982, the trial court filed the preliminary injunction from which this appeal is taken, and on August 18, an opinion in explanation of the order.

In its opinion the trial court stated the facts as follows:

1. In 1972, the Petitioner [appellee] entered into an oral agreement to deliver newspapers for the Respondent [appellant];

2. The Petitioner did not pay for the route, nor for his customer list;

3. The Petitioner purchased additional customer lists from other deliverymen and eventually “rounded out” his delivery area;

4. The Petitioner was originally titled as a “special adult” which provided him with a travel allowance;

5. The Petitioner, due to a large number of bad credit risks, instituted a prepayment plan;

6. The Respondent was aware of the prepayment plan, but took no action except to eliminate the Petitioner’s travel allowance;

7. The Petitioner continued to operate his delivery route with no interference from the Respondent;

8. In November, 1980, Petitioner instituted a $1.00 price for the Thanksgiving Day edition of the newspaper;

9. Respondent’s Circulation Director, Carlton Rosen-burgh, was a customer of the Petitioner;

10. When Mr. Rosenburgh learned of the delivery charge, he decided that the Petitioner was price gouging and as such, he decided to start an alternate delivery system;

11. In setting up an alternate delivery system, the Respondent hired Donnelly Associates to solicit business;

12. Donnelly Associates, as agent for the Respondent, called on Petitioner’s customers;

13. In setting up the alternate delivery system, the Respondent offered to sell the newspaper at a price that is less than its cost;

14. The Respondent’s agent led the Petitioner’s customers to believe that Petitioner would be out of business by January, 1981;

15. The Respondent ceased all solicitations in the Petitioner’s area as of January, 1981.

Trial Court Opinion at 1-3.

The trial court’s order provided:

1. The Petitioner is entitled to a Preliminary Injunction;

2. The Respondent is enjoined from soliciting Petitioner’s customers;

3. The Respondent is to return to the Petitioner those customers obtained through its solicitation of Petitioner’s customers;

4. The Respondent is to refer all new customers in Petitioner’s geographic area to the Petitioner;

5. The Petitioner shall re-list this matter for the determination of damages.

The trial court recognized that one of the prerequisites of a preliminary injunction is proof that the injunction is necessary to prevent immediate and irreparable harm. In explaining that it was satisfied that there was such proof, the court stated:

[W]e find that the injury here is immediate and the harm is irreparable. The Petitioner has suffered a loss of business which was immediate not only in lost customers but also in having his name ‘smeared’ by the agent of the Respondent. The irreparable harm was done when Don-nelly, agent for the Inquirer, began to solicit customers of the Petitioner and when he told these customers that the Petitioner would be out of business by the end of January, 1981.
The question of whether greater harm would result from refusing the injunction must be answered in the positive. Clearly the Respondent’s failure to turn new customers over to the Petitioner is causing a continuing harm. Further, while no more solicitations have taken place, should the Respondent attempt to further solicit the Petitioner’s customers, a far greater harm would result. Trial Court Opinion at 4-5.

The Court further stated, at the end of its opinion:

Injury to reputation or good will is not easily measurable in monetary terms and is irreparable.
Where the economic loss is so great as to threaten the existence of a business, an injunction will issue even though the amount of direct financial harm is ascertainable.
Trial Court Opinion at 14.
As we have mentioned, appellant argues nevertheless that appellee did not prove immediate irreparable harm. More specifically, appellant argues that appellee did not prove any serious threat to its business, and that such harm as appellee did prove is compensable by money damages.

When reviewing an order entering a preliminary injunction, we do not inquire into the merits of the controversy but examine the record only to determine if there were any apparently reasonable grounds for the action of the trial court. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Zebra v. School District of City of Pittsburgh, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972). In making this determination, we are controlled by well-settled principles establishing the purpose of a preliminary injunction and the petitioner’s burden of proof.

The purpose of a preliminary injunction is to preserve the status quo as it exists or existed before the acts complained of, and the injunction should not go beyond preserving the status quo. Naus & Newlyn, Inc. v. Mason, 295 Pa.Super. 208, 441 A.2d 422 (1982). Since a preliminary injunction operates until the final adjudication on the merits of the controversy, the court must decide whether the petitioner will likely be subjected to immediate and irreparable injury if a preliminary injunction is not issued before the final adjudication. Restatement (Second) Torts § 936 Comment e (1979). The petitioner must show the need for immediate relief, and the preliminary injunction, if issued, should be no broader than is necessary for the petitioner’s interim protection. Id. at § 943 Comment h. See Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., supra (denial of a preliminary injunction affirmed where no showing of urgent necessity to avoid immediate and irreparable harm that could not be compensated); Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958) (preliminary injunction dissolved where no showing of urgent necessity to prevent irreparable harm). Given that a preliminary injunction is a “harsh remedy,” Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., supra, 450 Pa. at 371, 301 A.2d at 818, the petitioner has a heavy burden of proof. “In order to sustain a preliminary injunction the plaintiff’s right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.” Zebra v. School District of City of Pittsburgh, supra, 449 Pa. at 437, 296 A.2d at 750 (citation omitted). “Furthermore, when a preliminary injunction contains mandatory provisions which will require a change in the position of the parties, it should be granted even more sparingly than one which is merely prohibitory.” Id. Here the preliminary injunction does contain mandatory provisions requiring a change of position, for not only did the trial court order appellant to refrain from soliciting appellee’s customers in the future, it also ordered appellant to return the customers it had previously solicited and to refer all new customers to appellee.

In applying the principles just recited, we may start with the observation that the trial court found that irreparable harm was done and that appellee has suffered immediate loss when appellant smeared appellee’s name and solicited appellee’s customers. The harm thus referred to by the court is past harm. The court found, and there was no evidence that contradicts the finding, that appellant ceased all special solicitation in appellee’s area in January 1981. The court made no finding, and there was no evidence that could have supported a finding, that appellant had intended to or was likely to resume special solicitation in appellee’s area pending final adjudication. There was therefore no showing that a preliminary injunction was necessary to prevent special solicitation in appellee’s area. Especially was there no such showing given the fact that the preliminary injunction was entered on August 17, 1982, 18 months after the solicitation had stopped. See Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978) (preliminary injunction vacated where sole proof of anticipated injury was evidence of incidents occurring months and years before hearing at facilities operated under different circumstances). Cf. Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976) (preliminary injunction restraining appellant from soliciting business in specified area upheld where appellant was soliciting appellee’s customers, appellee’s business in area dropped from $490,000 per month to $90,000 per month in one month, and relief was necessary to prevent irreparable harm to appellee’s customer relationships).

The only continuing, as distinguished from past, harm referred to by the trial court is the loss of business that appellee continued to sustain as a result of appellant’s continuing refusal to turn over new customers to appellee, and as a result of appellant’s past solicitation of appellee’s customers.

With respect to appellant’s refusal to turn over new customers to appellee: It is far from clear that this practice was continuing at the time of the hearings, let alone that it was continuing in August 1982, when the preliminary injunction was entered. Appellee’s principal, Mr. Greentree, testified on May 28, 1981, that although he did not get any referrals from appellant from December 1980 through March 1981, since that time appellant had referred three or four customers. N.T. v.l at 55. Moreover, even if appellant did continue to refuse to refer new customers to appellee, appellee was in no way restricted from soliciting new customers on its own, as it had done in the past. See N.T. v.l at 25-26. In addition, there was no evidence, and the court made no finding, that by itself appellant’s refusal to refer new customers to appellee threatened immediate and irreparable harm to appellee’s business.

With respect to appellant’s past solicitation of appellee’s customers: It is not clear, either what was the extent of the loss caused by appellant’s actions, or that the loss was so serious as to be an immediate threat to the existence of appellee’s business. There was evidence that appellee’s net income before Mr. Greentree’s draw was $34,000 in 1977, $32,000 in 1978, $34,000 in 1979, $11,978 for January through September 1980, and $12,851 for October 1980 through June 1981. N.T. v. 3 at 26, 49, 50, 185. Appellant’s special solicitation of business in appellee’s area continued from November 1980 to January 1981. Thus, appel-lee did prove loss. However, it was uncontroverted that some of the decline in appellee’s circulation and net profit after 1979 was due to customer dissatisfaction with actions taken by appellee. In January 1979 appellee introduced a new advance billing program. N.T. v.l at 37-38, 107-112. In June 1980 appellee introduced a new requirement that a customer must give three days’ notice of a request to stop delivery of the newspaper during the customer’s vacation. N.T. v.l at 115-119; In November 1980 appellee introduced a new $1.00 charge for the Thanksgiving day edition of the newspaper. N.T. v.l at 41-42, 125-29. These new policies resulted in a decline in circulation and net profit. N.T. v.3 at 186, 188. The trial court characterized the decline in circulation as “temporary,” Trial Court Opinion at 12, Finding 15, but the court made no finding as to whether, or to what extent, the decline had ceased prior to appellant’s special solicitation in appellee’s area. It is therefore unclear to what extent appellee’s decline in net profit was caused by the new policies implemented by appellee and to what extent it was caused by appellant’s actions. Cf Precision Polymers, Inc. v. Pillar Industrial Products Corp., 432 F.Supp. 700 (W.D.Pa.1977) (irreparable harm not established where plaintiffs financial problems arose before defendant’s contemplated termination of relationship with plaintiff).

Moreover, if we assume that appellee did establish that appellant’s actions caused it to suffer some loss of business, still, appellee was only entitled to a preliminary injunction if the loss that would be incurred pending final adjudication would not be compensable by an award of money damages. See In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137 (3d Cir.1982) (preliminary injunction vacated where loss can be fully compensated by monetary damages awarded at final judgment). Only when there is proof that the threatened monetary loss is so great as to threaten the existence of the business is a preliminary injunction properly granted. See id. (preliminary injunction vacated where evidence insufficient to show that plaintiff was on verge of bankruptcy); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir.1970) (preliminary injunction affirmed where defendant threatened to terminate plaintiff’s dealership and thereby end plaintiff’s business; award of lost profits will not compensate for loss of right to continue a business); Graham v. Triangle Publications, Inc., 344 F.2d 775 (3d Cir.1965) (denial of preliminary injunction affirmed where it was clear that any loss that plaintiff suffered during proceeding was ascertainable by multiplying number of newspapers sold by profit per sale and case did not involve claimed destruction of business enterprise). Here, appellee did not introduce sufficient evidence to show that the existence of its business was threatened by appellant’s actions. At the hearing held on September 8 & 10, 1981, there was testimony by appellee’s accountant, based on a profit and loss statement he had prepared, that appellee’s net profits were $7,196 for October 1980 through December 1980; $2,872 for January 1981 through March 1981; and $2,783 for April 1981 through June 1981. N.T. v.3 at 26. According to the accountant this situation changed. He testified that he estimated that appellee had a loss of $2,400 in July 1981 and $1,500 in August 1981. Id. at 27-28. However, this estimate was not supported by any documentation or explanation. Moreover, appellee’s principal, Mr. Greentree, testified that ap-pellee’s gross income for August 1981 was $12,088. This gross income was consistent with the gross income for prior months in which appellee had not suffered a loss, and there was no explanation as to why, given this fact, there should be a loss in August 1981 when there had not been in prior months. Id. at 199-200. There also was no explanation of why appellant’s continued failure to refer new customers and appellant’s special solicitation should result in greater losses to appellee’s business in July and August 1981 than had resulted from January through June 1981, given that appellant’s special solicitation had ceased in January 1981. Finally, the preliminary injunction was not entered until August 1982, which was 18 months after appellant’s special solicitation had ceased, 14 months after the petition for a preliminary injunction was filed, and almost one year after the last hearing on the petition was held. At the hearing on May 28, 1981, appellee’s contention was that in the absence of extraordinary relief, it would be driven out of business by the end of the summer. N.T. v.l at 49-50. If there was such a threat, either it had been realized or it had disappeared by the time the preliminary injunction was entered. In any event, there is no basis in the record for finding that when the preliminary injunction was entered, almost a year later, there was any threat to the existence of appellee’s business as a result of appellant’s actions.

The order of the trial court is vacated and the case remanded for further proceedings. Jurisdiction is relinquished.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority’s conclusion that the instant appellee has failed to prove immediate and irreparable harm and therefore is not entitled to a preliminary injunction.

However, I write separately because I believe that despite the explanation of irreparable harm contained in the majority’s first footnote, the majority’s opinion may be read as implying an overly restrictive construction of irreparable harm in a business setting. In the body of its opinion the majority maintains that “[ojnly when there is proof that the threatened monetary loss is so great as to threaten the existence of the business is a preliminary injunction properly granted.” (Emphasis added). Thus, the majority’s definition of irreparable harm appears to preclude relief where a plaintiff’s business will be severely circumscribed, but not completely destroyed, by a defendant’s conduct or where a defendant’s actions will not reduce a plaintiff’s business but will prevent expansion of the plaintiff’s business.

For this reason, I write to emphasize that to which the majority alludes in its first footnote. Now, as previously, a plaintiff may establish the irreparable harm prerequisite for a preliminary injunction by proving the likelihood of a loss that is not entirely ascertainable and compensable by money damages. John G. Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977).

In commercial contexts, Pennsylvania courts have repeatedly issued preliminary injunctions upon proof of impending loss of business opportunities or market advantages, i.e., upon a showing of irreparable harm that did not endanger the plaintiff’s entire corporate existence. For example, in Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 56, 445 A.2d 1288, 1296 (1982), three plaintiff newspapers asserted that they “would suffer irreparable injury by being deprived of an extremely popular feature [‘Peanuts’ comic strip], hampering their effort to compete” for the prior customers of a defunct newspaper. The defendant newspaper claimed that the plaintiffs had not evidenced irreparable harm because “the plaintiff newspapers would not cease to exist if deprived of ‘Peanuts.’ ” Id., 300 Pa.Superior Ct. at 56, 445 A.2d at 1296. Reasoning that “[p]laintiffs [were] required to show irreparable harm, not annihilation,” id., 300 Pa.Superior Ct. at 56, 445 A.2d at 1296, we held that the plaintiffs had carried their burden of proof by establishing the “superior value of ‘Peanuts’ in the competition for former ... subscribers” of the defunct newspaper, id., 300 Pa.Superior Ct. at 56, 445 A.2d at 1296, and the incalculable worth of “Peanuts” whose “drawing power ... [did] not stand on its own, but only in combination with other features.” Id., 300 Pa.Superior Ct. at 57, 445 A.2d at 1297 (footnote deleted). That is, plaintiffs demonstrated the probability of their suffering a loss that was unascertainable and not compensable by money damages.

Analogously, in John G. Bryant Co., the supreme court approved a preliminary injunction enforcing an anticompeti-tive employment covenant without proof that the plaintiff business would terminate unless the injunction were granted. In analyzing the irreparable harm to be averted by the preliminary injunction, the court explained that an anticom-petition

covenant seeks to prevent more than just the sales that might result by the prohibited contact but also the covenant is designed to prevent a disturbance in the relationship that has been established between appellees and their accounts through prior dealings. It is the possible consequences of this unwarranted interference with customer relationships that is unascertainable and not capable of being fully compensated by money damages ...
... [SJome customers may be persuaded, or even be very willing, to abandon the employer should the employee move to a competing organization or leave to set up a business of his own____

Id., 471 Pa. at 8-9, 369 A.2d at 1167-68 (emphasis added); see also Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 189 A.2d 180 (1963) (supreme court sustained a preliminary injunction forbidding dissemination of trade secrets and violation of anticompetition covenant without proof that the plaintiff business would cease to exist in the absence of an injunction).

Accordingly, I would hold that irreparable harm in a business setting need not be premised upon proof that the plaintiff business will be destroyed if the defendant’s actions are permitted to continue. Rather, I would remain with the traditional definition of irreparable harm which requires a showing that the injury likely to be incurred by the plaintiff business is “unascertainable and not capable of being fully compensated by money damages.” John G. Bryant Co., 471 Pa. at 8, 369 A.2d at 1167.

      . We note in this regard that the “irreparable harm" alleged by appellee is solely monetary. Ordinarily, since such a loss is fully compensable in a later action for damages, the equitable remedy of a preliminary injunction is not appropriate; it is only where a threatened monetary loss is of such a magnitude as to render an action for damages inadequate as a remedy, as where the loss threatens the existence of a business, that a preliminary injunction may be appropriate. Where, however, the irreparable harm claimed is not solely monetary, and therefore not subsequently fully compensable in damages, the plaintiff need not prove a threat to the existence of his business, but simply that the damage remedy is not adequate. That was the situation in the cases cited in the concurring opinion. See John G. Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 445 A.2d 1288 (1982).

      . As noted in discussing our scope of review, see text supra at-, we express no view on the merits of the controversy or, if the trial court on final adjudication should rule on the merits in appellee’s favor, on appellee’s entitlement to permanent injunctive relief. See Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., supra. Our holding is limited to the conclusion that appellee did not establish that it was entitled to a preliminary injunction pending final adjudication on the merits. Cf. Straup v. Times Herald, 283 Pa.Super. 58, 423 A.2d 713 (1980), where the trial court ruled on the merits of the controversy and denied permanent injunctive relief.


text:
    486 A.2d 1004
    Randoll PIERCE & Rosemary Pierce v. PHILADELPHIA HOUSING AUTHORITY and Ernest Dixon v. ALBERT J. KAYTES & COMPANY, Appellant and Randoll PIERCE & Rosemary Pierce v. Sarah STEINBERG and Albert J. Kaytes & Co., Appellant v. PHILADELPHIA HOUSING AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed Jan. 11, 1985.

      Alton G. Grube, Sellersville, for appellants (1231 and 1232).
    James M. Marsh, Philadelphia, for Philadelphia Housing, appellees (1231 and 1232).
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The appeal in this case arises from the lower court’s granting of a directed verdict as to one defendant in a consolidated personal injury action involving several defendants. The remaining defendants contested the directed verdict by the filing of motions for judgment n.o.v. or a new trial. These motions were denied in the lower court.

The record shows that the Plaintiff, Randoll Pierce, was injured on November 1, 1976, in a fall on a cellar stairway of a single family dwelling located at 2019 North 30th Street in Philadelphia. At the time, Pierce was an employee of a third party, and the purpose of his visit was to conduct repairs on a household appliance. The building was owned at that time by the Defendant-Appellant Sarah Steinberg (hereinafter referred to as “Steinberg”). Albert J. Kaytes & Company (hereinafter referred to as “Kaytes”), another Defendant-Appellant, was Steinberg’s agent with respect to the property, and apparently had managerial functions with respect to it.

On December 4, 1968, Kaytes, acting as Steinberg’s agent, entered into a lease covering the property, with the Philadelphia Housing Authority (hereinafter referred to as “PHA”), the Defendant-Appellee on this appeal. Details concerning that lease will be more fully discussed later in this Opinion. PHA in turn sub-let the premises to one Ernest Dixon, who lived at the dwelling at the time of the Plaintiff’s injuries.

The Plaintiff instituted separate suits against Steinberg and Kaytes, and against PHA, asserting causes of action based upon negligence. In each action, the respective defendant or defendants joined the other or others as additional defendants. The two cases were consolidated for trial. At the conclusion of the presentation of all of the evidence, the court granted a motion by PHA for a directed verdict. Before the case was submitted to the jury, Steinberg and Kaytes settled with the Plaintiff, receiving a release as to all of the Defendants.

The Appellants maintain that the lower court erred in this case in directing a verdict in favor of the Appellee PHA. In Cox v. Equitable Gas Company, 227 Pa.Super. 153, 324 A.2d 516 (1974), our Court reviewed the applicable law, and discussed the standard by which a motion for directed verdict must be evaluated. It was explained by Judge Cercone in his Opinion that the trial court must accept as true all facts and proper inferences in the evidence which tend to support the contention of the party against whom the motion has been made, and must reject all testimony and differences to the contrary. It was also declared that only a clear case should be removed from the jury, and when there is any doubt, the motion should be denied. This appeal must be evaluated in light of such standards.

The parties in this case and the lower court apparently all agree that the issue of PHA’s potential liability rested upon questions of its obligations as a landlord and of the degree of its possession and control of the premises where the Plaintiff was injured. It is held that a landlord is liable to a lessee and others lawfully on the premises for physical harm caused by a dangerous condition in a part of the premises over which the landlord retains control if by the exercise of reasonable care the landlord could have discovered the condition and risk involved, and made the condition safe. See Smith v. M.P.W. Realty Company, Inc., 423 Pa. 536, 225 A.2d 227 (1967) and authorities cited therein. The Smith case was one where the landlord retained partial control of the property. Generally, where the landlord is out of possession, it is not liable for bodily harm sustained on the property by one on the premises under the lessee’s right unless the landlord knew, or had reason to know of a defect at the time of leasing. See Dinio v. Goshorn, 437 Pa. 224, 270 A.2d 203 (1969), a case in which the Court found that the out-of-possession landlord had retained no control.

This case presents an unusual fact situation in which the party in question, PHA, is both a lessee and a lessor as to the premises in question. Documentary evidence and testimony was presented upon the questions of its possession, control and inspection of the North 30th Street property. Our detailed review of all of the evidence and testimony presented in the case leads us to the conclusion that the lower court erred in directing a verdict in favor of PHA. We cannot find that there was an absence of doubt as to its potential liability.

The record shows that the lease between Kaytes and PHA, covering an initial term from December 4, 1968 through December 3, 1971, with renewal options through October 17, 1978, was a form lease of PHA. It contained the following provisions relating to possession, control and inspection:

Said Premises are to be sub-let by the Authority [PHA] to a low-income family (hereinafter called “sub-tenant” or “sub-lessee”) in accordance with the requirements of its leased housing program under Section 23 of the United States Housing Act of 1937, as amended, to be used and occupied solely by the sub-lessee as a private dwelling. The eligibility of sub-tenants, the selection of sub-tenants, and the termination of their occupancy shall be effected only by the Authority; but the Authority will at any time consider representations by the Lessor [Kaytes] regarding the termination of any occupancy.
* # ‡ J]C * *

5. The Authority covenants and agrees as follows: ...

B. To permit the Lessor to enter the Premises at any reasonable time for the purpose of making repairs or to determine the condition of the Premises and/or compliance with the conditions of this lease by the Authority or its sub-lessee.
C. To permit the Lessor, during a period of sixty (60) days prior to the expiration of this lease, to show the Premises to prospective tenants or purchasers at all reasonable times and to exhibit notices for letting or sale.
D. To notify the Lessor promptly of any defect appearing in any part of, or in any equipment at the leased Premises which the Lessor is obligated to maintain and operate.

6. The Lessor hereby covenants and agrees as follows:

A. That the Authority and its sub-lessee shall have peaceful possession of the premises herein leased.
B. To make all structural and other repairs, including specifically, but not limited to, repairs to the roof, plumbing, exterior walls, screens, steps, walks, fences and painting, and repair or replacement of heating equipment and cooking range, as any such become necessary during the term of this lease or any extension thereof. Repairs or replacements as aforesaid shall be at Lessor’s sole expense. Any and all permits, licenses and the like required to permit the Authority to have the premises occupied for the purpose herein stated will be obtained by the Lessor at his expense. In the event the Lessor fails to comply with these provisions within a reasonable time after notice, the Authority may do so and deduct the expense thereof from the rent or collect the cost from the Lessor.
C. To redecorate the Premises throughout in a reasonable and workmanlike manner on a three-year cycle computed from the inception of this lease. It is understood that the exercise of any option by the Authority which would extend occupancy beyond three years from inception or from last redecoration is on the basis that redecoration as aforesaid will be accomplished on the three-year schedule. In the event the Lessor fails to comply with this provision within a reasonable time after notice, the Authority may do so and deduct the expense thereof from the rent, or collect the cost from the Lessor.
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7. It shall be the duty and responsibility of the Authority to prevent the sub-lessee from violating any of the covenants and conditions of this lease with respect to the Premises, and the Authority will take such action as it may deem necessary to abate any violation of this lease by the sub-lessee upon notice from the Lessor or otherwise.

* * * * * *

10. Upon expiration of the term of this lease, any extension thereof, or termination, as set forth in Section 9, the Authority will return the Premises to the Lessor in the same condition they were when leased, except for ordinary wear and tear and damage caused by acts of God, fire, riots or acts of the Lessor, his agents or employees.

Several aspects of these lease provisions clearly raise factual questions regarding the issues of possession, control and inspection as to PHA. The unnumbered paragraph first recited above indicates that the Authority will assume control of the premises, vis-a-vis Kaytes, to the extent that PHA will retain sole discretion on the eligibility, selection and termination of occupancy of any sub-tenants. Presumably, if no eligible sub-tenants was in the premises for some time period of the lease term, it would be contemplated that PHA would be in possession of the premises itself, with the authority and control necessary to either sub-lease or leave the premises vacant. In paragraphs 5.B. and 5.C. the PHA agreed to permit Kaytes to enter the premises for repairs, to determine the condition of the premises, to assure compliance with the lease by PHA or its sub-lessee, or to show the property near the end of the lease term. Certainly, such provisions infer that PHA will retain possession and/or control of the building sufficient to allow it to give Kaytes access for the purposes stated.

Paragraphs 5.D. and 6.B. have a relationship and should be discussed together. 5.D. indicates a possible degree of control and possession by PHA, as well as a recognition of an ongoing duty and a right of inspection. It provides, that PHA agrees to notify Kaytes promptly of defects appearing in any part of the premises or in equipment at the premises which Kaytes is obligated to maintain. 6.B. recites the structural and other repairs which the lessor has agreed to complete. These clauses must be construed to indicate that the parties, including PHA, contemplated that PHA would retain possession and control sufficient to carry out planned inspections of the premises for defects. As will be discussed below, such inspections apparently took place.

Proof of some retention of possession in the premises by PHA could not be made clearer than in the wording of paragraph 6.A. of the PHA lease, which recites that PHA shall be assured of having “peaceful possession” of the premises, together with any sub-lessee. In such regards, a retention of possession is implied and a degree of control over the premises is strongly suggested in the PHA-sub-lessee relationship, in paragraph 7, where the PHA agrees to prevent any violations of the lease by the sub-lessee. The “duty and responsibility” undertaken therein by the PHA could not be accomplished without some maintenance of a degree of control over the premises, and PHA’s retention of a right of inspection could also thereby be contemplated. The same elements are suggested by Paragraphs 6.B. and 6.C., which require repairs and redecoration by Kaytes, which could be ordered or inspected by PHA, and completed by PHA, at Kaytes expense, if the Lessor fails to do so. Finally, a degree of possession and/or control by PHA is implied in its agreement, in paragraph 10, to “return the premises” to Kaytes in a reasonable condition.

All of these lease provisions, suggesting a degree of possession and control, as well as inspection obligations, by PHA, militated against a direction of a verdict in favor of the Appellee at trial. The lower court appears to have perceived this situation. In its opinion, the court stated: “The language of the lease is not clear on the issue of whether PHA was to retain possession and control of the property after it was leased to a low income tenant.” This recognition of a lack of clarity in the lease provisions should have convinced the lower court to deny PHA’s motion for a directed verdict.

The lease did not comprise the only evidence in the record which created an issue for the jury concerning PHA’s liability in this case. For instance, the deposition testimony of Richard Eisele, a PHA employee, was entered into evidence at trial. That testimony was to the effect that the PHA considered itself to be managing the property. When questioned as to what it meant to “manage” the property, the witness responded that it meant taking care of maintenance, as well as collecting rent. Mr. Eisele agreed that the PHA maintenance work under the lease would include some maintenance on the stairways of the premises. All of this testimony created inferences not only of possession and/or control by the Appellee, but also responsibility to keep the stairways of the property in good repair. Because the Plaintiff asserted negligence regarding the condition of the stairs upon which he was injured, the latter evidence was especially significant. We find that such testimony provided evidence of possible liability on the part of PHA sufficient to have made it an error to direct a verdict in its favor.

An agent of the Appellant Kaytes also provided testimony which showed some degree of possession, control and responsibility for repairs by the Appellee. The witness, Louis Magaro, testified that when repairs were necessitated by normal wear and tear, Kaytes would have the obligation to make repairs. However, where a condition was caused by tenant neglect, the PHA would make the repairs or have Kaytes do it and then reimburse Kaytes. Further, Mr. Megaro testified that the Appellee would give Kaytes notices, on standard PHA forms, when repairs to the premises were needed. The witness also disclosed that the Appellee had informed him of the accident which gave rise to the Plaintiffs claims in this case, but had performed needed repairs itself, rather than having Kaytes do them. Mr. Magaro’s testimony, in these particulars, furnished additional indicia of possession, control, and repair duties for which PHA had responsibilities. Again, such evidence should have compelled the lower court to deny a directed verdict to PHA.

As noted earlier, the applicable law provides that a landlord out of possession should not be held liable for harm caused to persons on the premises unless it knew or had reason to know of the harm-causing defect at the time of leasing. From the evidence discussed above, including the lease and the testimony recited, it would be unreasonable to find that no proof of possession by the PHA was presented. However, even if we ignore such proof and assume that PHA could only be considered to be a landlord not in possession, there was still enough evidence presented to preclude to issuance of a directed verdict in its favor.

Such evidence was provided through the testimony of Ronald Kobelin, an expert witness for the Plaintiff. Mr. Kobelin expressed the opinion that the particular unsafe condition of the stairs in issue had existed for at least ten to fifteen years prior to the Plaintiffs fall. Both Kaytes and PHA admitted that no significant repairs had been made on the stairs at any relevant time prior to the accident. Thus, there was evidence that the harmful condition existed prior to the PHA sub-lease of the premises to Ernest Dixon. If credited by the jury, such testimony would have established that PHA, even as a landlord out of possession, could have been held liable by the jury because of the harm-causing defect, of which the PHA had reason to know at the time of its sub-leasing of the premises. Therefore, even if the lower court concluded that the record was barren of evidence suggesting continued possession of the property by PHA, it should not have directed a verdict in light of the evidence that a defect was in existence of which PHA should have had knowledge before Mr. Dixon attained possession.

The directed verdict for PHA was improper. The lower court should have granted the Appellants’ motion for a new trial. It is apparent that this case will have to be remanded to the lower court for further proceedings to address the respective rights and liabilities of the Appellee and Appellants.

The order of the lower court is reversed, and this case is remanded for further proceedings. Jurisdiction is not retained.

      . Any ambiguity in the language of the lease, or uncertainty concerning the meaning of the language used, must be resolved and construed most strongly against the PHA, the party which drafted the lease in this case. See Cusamano v. Anthony M. DiLucia, Inc., 281 Pa.Super. 26, 421 A.2d 1120 (1980).