author: OPINION PER CURIAM:

text:
    586 A.2d 978
    Joan M. BARAN and Raymond Baran, Co-Administrators of the Estate of Robert Baran, Deceased, Appellants, v. PAGNOTTI ENTERPRISES, INC., d/b/a Pagnotti Enterprises and/or Pagnotti Coal Company, a Pennsylvania Corp., The Sullivan Trail Coal Co., Inc., a Pennsylvania Corp., Coal Heat Co., Inc., a Pennsylvania Corp., Louis Pagnotti, Sr., Louis Pagnotti, Jr., and Louis Pagnotti, III, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1990.
    Filed Feb. 21, 1991.

      R. Thomás Price, Philadelphia, for appellants.
    Thomas B. Helbig, Wilkes-Barre, for appellees.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   OPINION PER CURIAM:

Appellants Joan and Raymond Baran (hereinafter “Bar-ans”), as co-administrators of the estate of their son, Robert Baran, brought these Wrongful Death and Survival actions against appellees Pagnotti Enterprises, Inc., et al (hereinafter “Pagnotti”), seeking compensatory and punitive damages arising out of the death of Robert Baran. At the close of the Barans’ evidence in a jury trial, the trial court granted Pagnotti’s request for a compulsory nonsuit. The Barans appeal from the. trial court’s denial of their request for removal of the nonsuit, arguing that the court did not apply the appropriate standard in deciding the motion for a compulsory nonsuit. We agree with the Barans that the trial court erred in granting the nonsuit, and reverse and remand this case for further proceedings.

It has long been settled that a compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established. The plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff____ We must therefore review the evidence to determine whether the order entering judgement of compulsory nonsuit was proper.

Gorfti v. Montgomery, 384 Pa.Super. 256, 261-62, 558 A.2d 109, 112 (1989), allocatur denied 524 Pa. 608, 569 A.2d 1367 (1989), quoting Coatesville Contractors and Engineers, Inc. v. Borough of Ridley Park, 509 Pa. 553, 559-60, 506 A.2d 862, 865 (1986).

The testimony at trial established the following facts. Pagnotti owns a 1,500 acre parcel of undeveloped coal mining property located in Hazle Township, Luzerne'County, Pennsylvania. Numerous strip mining pits are located on the property. The nineteen year-old decedent, Robert Baran, and his friends were in the habit of congregating on Pagnotti’s premises. At around nine-thirty or ten o’clock in the evening of June 5, 1983, the group of friends, including Robert Baran, met on Pagnotti’s property to visit with each other and listen to music on their car tape players. When Robert left the group that night, he drove his car along a road which leads off the property to a nearby highway. A very large strip mine pit borders a portion of this access road. The next morning, Robert’s mother alerted Robert’s friends that Robert had never come home the previous night. Two of the friends returned to the property and discovered Robert’s body lying near his vehicle at the bottom of the 150 to 200 feet deep strip mining pit which abuts the access road. Testimony at trial revealed that the night in question was very dark, with no moonlight or artificial light to illuminate the property.

The Barans brought this suit on behalf of the estate of Robert Baran to recover damages for economic loss and pain and suffering arising out of the accident.

Pagnotti raises the Recreation Use of Land and Water Act, 68 P.S. § 477-1 et seq., as a defense to its liability. The Act relieves landowners of the duty to keep the premises safe or to warn of dangerous conditions, uses, structures or activities thereon. 68 P.S. § 477-3. Likewise, those landowners who by some means invite or permit others to use their property for recreational purposes extend no assurances that the premises are safe, assume no duty of care toward recreational users, and incur no liability for negligent injury to the users. 68 P.S. § 477-4. This statutory immunity is subject to two exceptions: an owner is not insulated from liability if the owner charges a fee to persons who enter the land for recreational purposes, 68 P.S. § 477-6; nor does the Act relieve the owner of liability for wilful or malicious failure to warn or guard against a dangerous condition, use, structure or activity. Id.

The stated purpose of the Act is to encourage owners of land to make land available to the public for recreational use, 68 P.S. § 477-1. The Act has been interpreted to limit the liability of all landowners, private and public, who allow free access to their unimproved land, for injuries that occur on the land as a result of recreational activity. Thomas Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991) (Recreation Use of Land Act protects private and public owners who allow free and indiscriminate access to their unimproved land for recreational purposes); Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super. 311, 484 A.2d 148 (1984) (where snowmobile collision occurred on private road, trial court should have permitted defendants to amend pleadings to raise applicability of Recreation Use of Land and Water Act); Barrett v. Pennsylvania Gas & Water Co., 631 F.Supp. 731 (M.D.Pa.1985) (although gas and water company had repeatedly made attempts to prevent people from swimming in the company reservoir, Act immunized the company from liability to swimmer who was injured while swimming in the reservoir). As the Barans do not dispute the Act’s applicability to Pagnotti, we will assume that the Act applies. Therefore, § 477-6, dealing with wilful or malicious failure to guard or warn against a dangerous condition, provides the only basis upon which Pagnotti may be held liable for the incident involving Robert Baran.

The issue before us is whether the trial court erred in granting a nonsuit on the basis that as a matter of law, appellants failed to sustain their burden of showing that appellees wilfully or maliciously failed to warn Robert Bar-an about the pit or to guard against his injuries pursuant to § 477-6. Although neither our Supreme Court nor this Court has interpreted § 477-6, in Hahn v. Commonwealth, 18 Pa.D & C 3d 260 (1980), the court of common pleas equated the § 477-6 standard of “wilful and malicious” misconduct to the standard owing to gratuitous licensees at common law, that is, liability for wilful or wanton injury. See also Livingston By Livingston v. Penna. Power and Light Co., 609 F.Supp. 643 (1985), aff'd. 782 F.2d 1029 (3d. Cir.1986). A gratuitous licensee is a person who is permitted, expressly or impliedly, to enter upon the land of another solely for the licensee’s own accommodation, benefit, or convenience, and not for the owner’s benefit or interest. Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659, 660 (1970); Potter Title & Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76, 78 (1951); Oswald v. Hausman, 378 Pa.Super. 245, 548 A.2d 594, 598 (1988); 27 P.L.E. Negligence § 42. Because the Act concerns situations analogous to that of the gratuitous licensee, that is, landowners permitting free access to their property to the public for the public’s recreational pursuits and not for the benefit of the landowner, we agree with the Hahn court that the Act’s “wilful and malicious” standard represents a codification of the standard of care owing to a gratuitous licensee at common law.

In defining the wilful and wanton standard applicable in cases involving gratuitous licensees, Pennsylvania decisional law has relied on the Restatement (Second) of Torts provision regarding the duty owed to licensees:

§ 342. Dangerous Conditions Known to Possessor

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

See Sharp v. Luksa, supra, quoting Restatement (Second) of Torts § 342; Kopp v. R.S. Noonan, Inc., 385 Pa. 460, 123 A.2d 429, 431 (1956); Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 577 A.2d 894 (1990); Fisher v. Findlay, 319 Pa.Super. 214, 465 A.2d 1306 (1983).

The pit in question constitutes a particularly dangerous pitfall, due to the pit’s location directly adjacent to the access road. There is no question in this case that appellees were fully aware of the condition of their property and the risk of harm posed by the strip mining pits. In fact, trial testimony reveals that Pagnotti had taken some steps to guard against the danger posed by the pits. At trial, appellants called on cross-examination appellee Louis Pagnotti, III, an engineer employed by his family’s business, the Pagnotti Coal Company (“Company”). Mr. Pagnotti testified that the Company purchased the subject property in the early 1960’s for the purpose of coal mining operations. Mr. Pagnotti stated that in 1982, he became aware of the strip mining pit in which the accident occurred when he went onto the property. He estimated the dimensions of the pit to be 600 feet long, 300 feet wide and 150 feet deep. Mr. Pagnotti further testified that there are “dozens and dozens of pits just like this” on the property, all of which were present on the property when the Company bought the property in the 1960’s. N.T. Nov. 30, 1988 at 14. Pagnotti was aware that people came onto the property; in fact, the Company had hired professional people to patrol the property, had erected barriers and posted No Trespassing signs on the property. Id. at 12. Mr. Pagnotti testified that

[w]e put up mounds of dirt, we put a wire across—we put everything we could think of to dissuade people from accessing these properties. If there’s some kind of access way leading on the road we will string something up across it ... We’re just beside ourselves to think of what more we can do to protect this property ...
... We did everything we possibly could do to protect this property and other properties we owned. We own 30,000 acres of land in 80 municipalities over northeastern Pennsylvania.

Id at 14.

When questioned about the lack of reflectors along or near the pit in question, Pagnotti responded that the Company had tried placing reflectors on the property, but that trespassers used them for target practice and shot bullet holes through them. He also indicated that there were so many pits on the property that he wouldn’t know where to begin in terms of safeguarding against the danger posed by each individual pit. Signs reading “Danger. Blasting. Keep Away. Danger. Hard Hat Area. No Trespassing, Private Property” were posted along the access road to the property. Thus, there is no dispute here that the Barans met their burden of proving that Pagnotti knew of the existence of the strip mining pit and the danger presented by the pit, and that Pagnotti was aware that people came onto the premises.

We now must consider whether the trial court erred in concluding that as a matter of law, appellants failed to prove that Robert Baran did not know of the presence of the pit, that is, that the pit was a non-obvious danger. The court stated:

[T]he uncontradicted testimony indicated that the decedent had been on Defendants’ land on several occasions, in daylight and at night, and was aware of the pit in question having driven by it in daylight and at night, including June 5, 1983 at night. The pit involved was approximately 600 feet long by 200 to 300 feet wide and 150 to 200 feet deep, containing about twenty (20) acres, and it was not covered, hidden or camouflaged, and was visible, open and notorious. The access road to the pit was wide enough for several cars side-by-side and therefore the pit was an obvious danger with which the decedent was fully aware.

Trial Court Opinion, April 12, 1990 at 5-6. The court concluded that

the Plaintiffs’ evidence overwhelmingly indicated, without any reservations, that the decedent, in day and nighttime, was aware of the obvious danger (the pit), having on prior occasions been near it, around it and into it, and therefore there was no duty upon the Defendants to warn of the danger that was obvious..

Id. at 7.

Upon reviewing the record and resolving all conflicts in the evidence in favor of the plaintiff, as we must in reviewing a grant of a nonsuit, we must disagree with the trial court’s conclusion that the pit was an obvious danger, as the facts do not “lead unerringly to but one conclusion.” Our courts have held that a danger is obvious when “ ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.’ ” Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525, 534 (1988), quoting Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). Although evidence at trial showed that the decedent knew of the existence of the pit and was familiar with the area, three witnesses testified that the night in question was very dark, as there was no moonlight or artificial light to illuminate the road or property, and that visibility was poor. N.T. December 1, 1988 at 74, 195, 318. The evidence that the night was exceedingly dark would support a reasonable inference that the lighting conditions of the property made it difficult if not impossible to perceive the edge and location of the pit. Given the singular circumstances of this case, we are reluctant to remove the question of the obviousness of the danger from the jury, as there is evidence to support a finding that the pit was not obvious to, or not likely to be discovered by, the decedent at the time of the accident.

Although the cases cited by Pagnotti address the question of the obviousness of certain dangers, none of the cases present a factual scenario similar to the situation presented by this case. Each case must be decided in view of its own peculiar factual history. We disagree with Pagnotti’s position that the evidence at trial “compelled the conclusion that this condition was ‘likely to be discovered’ by the decedent if he was properly attentive and utilizing his vehicle’s headlights,” see Brief for Appellee at 16, and therefore appellants were relieved of any duty to warn or guard against the danger posed by the pit. This is a factual question which must be presented to and resolved by a jury. Cf. Ferencz v. Milie, 517 Pa. 141, 535 A.2d 59, 64 (1987) (whether ice patch, which was difficult to see in daylight, was an obvious danger was for jury to decide). It is elementary to our system of jurisprudence that a jury should decide factual questions. We refuse to usurp this basic function of the jury.

Although we have found no cases directly on point, we find that several cases support our conclusion that the decedent’s familiarity with the property does not mandate a finding that the danger was obvious or likely to be discovered. In Davidow v. United States, 583 F.Supp. 1170 (W.D. Pa.1984), the court held that the failure of the defendant United States to maintain a danger buoy at a dangerous peninsula point during boating season was a willful failure to guard and warn against a known danger, in violation of § 477-6 of the Act. In Davidow, plaintiffs’ boat collided with another boat as both boaters were rounding a dangerous point of the peninsula from opposite directions. The point of the collision was a dangerous area due to severe limitations in the visibility of boaters when approaching the location from opposite directions. The testimony at trial showed that the plaintiff had operated his boat on the lake frequently during the current and preceding three boating seasons and thus was familiar with the area. Despite this, the court found that the failure to maintain a danger buoy at the dangerous peninsula point was a wilful failure to warn against the danger under § 477-6.

In Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923 (1960), a case involving the duty owed to a gratuitous licensee, the Court held that the question of the defendant property owner’s liability for failure to warn or safeguard against the danger posed by an open cellarway on the defendant’s property was properly submitted to the jury. Slobodzian involved an incident whereby one evening after dárk the plaintiff fell into the unguarded hole and injured herself. The evidence showed that although there were lights on the property, the lights were not lit at the time of the accident. There was also evidence showing that the plaintiff was familiar with the property, as she testified that the cellarway was “normally dark.” Id., 401 Pa. at 527, 164 A.2d at 926. The fact that the plaintiff had some familiarity with the property did not defeat her ability to recover. The Court stated:

The exact solvent is not the precise degree of light or darkness, nor is it the presence of the plaintiff on public or private land, indoors or out. It is rather whether under all of the existing conditions, there existed an effective trap to catch the reasonably unwary.

Id. Although the Slobodzian case does not concern the Recreation Use of Land and Water Act, we find the case to be instructive, as the case deals with the standard owed to a gratuitous licensee, which is the same standard to be applied under § 477-6 of the Act, and the case involves an unguarded hole which was not visible after dark.

We agree with appellants that whether the pit was an obvious to Robert Baran was for a jury to determine, and there was sufficient evidence to warrant submission of that question to the jury. Also to be decided by a jury is whether Pagnotti made reasonable efforts to make the condition safe or warn the public of the danger posed by the property. The trial court erred in granting a compulsory non-suit. We need not address the Barans’ second argument that the grant of the nonsuit was improper on the grounds that Pagnotti introduced elements of its defense during the plaintiffs’ case in chief.

Reversed and remanded.

      . Trial testimony reveals that Pagnotti considered Robert Baran and other visitors to the property to be trespassers, and in fact, made efforts to keep the general public off of the property. See N.T. November 30, 1988 at 12-14. Because the stated purpose of the Act is to encourage landowners to make their land and water available for recreational purposes, there may be some question as to the availability of the Act’s immunity provisions to landowners who attempt to keep people off of their land. One federal district court in Pennsylvania has held that the clear language of the Act "provides that an owner of land, regardless of whether he holds open his land to others,” is not liable for injuries stemming from recreational use of the property. Barrett v. Pennsylvania Gas & Water Co., supra. A split exists among other jurisdictions which have interpreted the model Recreation Use Act. Compare Johnson v. Stryker Corp., Ill.Ct.App., 70 Ill.App.3d 717, 26 Ill.Dec. 931, 388 N.E.2d 932 (1979) (holding that the Act protects landowners whose property is used gratuitously, with or without permission, for recreational purposes) with Georgia Power Co. v. McGruder, 229 Ga. 811, 194 S.E.2d 440 (1972) (holding Act did not bar suit where landowner had expressly denied use of land by posting "keep out" signs on property) and Gibson v. Keith, 492 A.2d 241 (Del.1985) (holding that Act could not used to bar recovery against an uninviting owner in suit brought by trespasser). We find no need to address this question, as the Barans do not dispute that the Act applies. We note that even if Robert Baran were treated as a trespasser, the same duty against wilful or wanton misconduct would apply. See infra n. 2.

      . We note that at common law, this "wilful and wanton” standard applied to landowners in cases where the gratuitous licensee sustains injury from the natural or artificial condition of the land itself, such as "defects, obstacles or pitfalls.” Potter Title & Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76 (1951); see also Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 519 (1983). On the other hand, where the injury stemmed from the owner's "active” negligence, for example, "negligence in the operation of machinery or of moving vehicles whereby a person lawfully upon the premises is injured," the owner owed the gratuitous licensee a duty of ordinary care. Potter Title & Trust, supra, 367 Pa. at 242-44, 80 A.2d at 78-79. We also note that the "wilful and wanton” standard is also the standard applied in cases involving trespassers. See e.g., Engel v. Friend’s Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965); Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983). See also W. Prosser, Law of Torts §§ 58, 60 (4th ed.1971).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    586 A.2d 983
    Tammy A. SCHREFFLER, Administratrix of the Estate of Richard B. Schreffler, Deceased, Individually and as the Assignee of Richard Keenan and Jean Keenan, Jointly and Severally and t/d/b/a Keenan’s Tavern, Appellant, v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Filed Feb. 22, 1991.

      W. Russell Carmichael, Media, for appellant.
    Michael O’Hayer, Paoli, for appellee.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   CAVANAUGH, Judge:

The sole issue presented in this appeal is whether the Pennsylvania Insurance Guaranty Association (PIGA) may be held liable for bad faith failure to settle a claim against the insureds of an insolvent insurer.

This case is brought by the administratrix of the estate of decedent who died as a result of an automobile accident. The administratrix sued the tavern, Keenan’s Tavern, at which the decedent had been drinking on the day of the accident for serving alcoholic beverages to decedent and his companion when they were visibly intoxicated. The tavern was insured by Amherst Insurance Company, which became insolvent. Pursuant to the terms of the Pennsylvania Insurance Guaranty Association Act (the Act), PIGA undertook the payment of covered claims owed by Amherst.

Besides the wrongful death action instituted by appellant, a declaratory judgment action was commenced by PIGA to determine the limitation of its liability under the terms of both the contract of insurance and of the Act. Appellant offered to settle for $75,000.00, but this offer was rejected by PIGA. PIGA quesitoned the amount of appellant’s recovery, if any, under the terms of the insurance policy in light of the claims made by decedent’s companion at the time of the accident. Appellant and the Keenans stipulated to an entry of judgment in excess of $1 million, the Keenans assigned their rights against PIGA to appellant, and the instant suit was filed.

In response to the complaint for damages for bad faith failure to settle, PIGA filed preliminary objections in the nature of a demurrer. It asserted three bases upon which it sought dismissal of the complaint: appellants did not seek recovery for a “covered claim” within the meaning of the Act; PIGA is immune from suit for a claim of bad faith failure to settle; and lack of privity between the parties precludes recovery.

The lower court granted the preliminary objections on the grounds that the complaint did not allege a “covered claim” within the meaning of the Act. It concluded that the allegations of bad faith failure to settle did not arise under PIGA’s responsibility as the deemed insurer, but from actions taken in its own right as the entity handling the claim. “It is, therefore, in the nature of a tort claim resulting from improper or wrongful adjustment of the claim. Clearly, it does not arise from the direct obligations of the insurance contract itself.” Lower Court Opinion, 3-1-90, at 4. Therefore, the claim was not cognizable under the Act. The lower court did not reach the immunity or privity issues since it found for PIGA on another basis.

After study of the law, we determine that PIGA enjoys immunity from liability under 40 P.S. § 1701.601, and we affirm the order of the lower court.

The immunity provision of the Act is as follows:

§ 1701.601 Immunity

There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer,, the association or its agents or employes, the board of directors, or the commissioner or the representatives for any action taken by any of them in the performance of their respective powers and duties under this act.

Appellant does not address the merits of the immunity issue in her brief. Rather she states that since the lower court did not base its decision upon immunity, the issue is not before this court. Brief for Appellant, at 13 n. 2. On the contrary, as noted above, we may affirm the decision of the lower court for a reason other than the one utilized by it.

Where the words of a statutory enactment are clear and unambiguous, the statute must be construed according to its plain and obvious meaning. Blackwell v. Pennsylvania Insurance Guaranty Association, 390 Pa. Super. 31, 567 A.2d 1103 (1989). We conclude that PIGA, under § 1701.601, has no liability for actions taken by it in performance of its duties under the Act. Applying the clear language of the statute requires the conclusion that there is no cause of action for bad faith failure to settle since settlement is a power conferred upon PIGA under the terms of the Act.

Appellee cites Fernandez v. Florida Insurance Guaranty Association, Inc., 383 So.2d 974 (Fla.Dist.Ct.App.1980) in support of a finding of immunity. The court in Fernandez applied a Florida statute, similar in terms to § 1701.601, to preclude a cause of action for bad faith failure to settle against its state insolvent insurer guaranty association. The court stated:

It is obvious that the present claim arises from FIGA’s refusal to accept the $10,000 settlement offer which was an “action” it took “in the performance of [its] powers and duties” under the statute to dispose of the covered claim in question. An application of the plain terms of § 631.66, which neither require nor permit judicial construction, therefore compels the conclusion that no bad faith action lies against FIGA.

Id. at 975.

We find the language employed by the Pennsylvania legislature in conferring immunity on PIGA to be equally clear and we are bound to apply its terms.

As this court discussed in Blackwell, the Act does not intend to place a claimant in all cases in the same position she would have been had the insurance company remained solvent. The Act creates a means by which limited recovery may be had in instances where none would have been possible due to the insolvency. Where the Act explicitly denies a recovery, creates an immunity, or bars a cause of action, that provision must be strictly construed.

Although, as noted, appellant does not present argument on the immunity issue, the certified record contains appellant’s Brief in Support of Plaintiff’s Reply to the Preliminary Objections of the Defendant, in which she treats the question of immunity. She relies upon § 1701.201(b)(2)(iii), (the association may: sue or be sued). This provision is simply a statement of amenability to appropriate legal actions, and may not serve to create a cause of action where none exists. Under the terms of § 1701.601, no cause of action arises for any action taken under the Act. Therefore, the “sue or be sued” provision does not vitiate the effect of the immunity section.

Because PIGA is immune from the liability alleged in the complaint, the lower court properly sustained the preliminary objections.

Order affirmed.

      . 40 P.S. § 1701.101 et seq.

      . This court may affirm the decision of a trial court for reasons other than those relied upon by the trial court. As long as the result is correct, the decision will be affirmed. McKenna v. Mooney, 388 Pa.Super. 298, 565 A.2d 495 (1989); Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840 (1984).


text:
    586 A.2d 986
    In re ESTATE OF Joseph A. BURCH, Deceased. Appeal of Gregory BURCH, Executor, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1990.
    Filed Feb. 25, 1991.

      John D. Blumenthal, Doylestown, for appellant.
    John H. Wood, Jr., Langhorne, for participating party.

      Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

The sole issue in this case is the reasonableness of counsel fee in the amount of $2,000.00 which was awarded by the Orphans’ Court to counsel for the Executor of the Estate of Joseph A. Burch. The fee awarded has been challenged as excessive by the present executor, the appellant herein. The decedent died on February 2, 1981. His two sons, Joseph A. Burch, Jr. and Gregory H. Burch were the sole executors and beneficiaries under the will. The decedent also had two other children who were not designated beneficiaries. The executors retained John H. Wood, Esquire as counsel for the estate.

The court below in its opinion noted that what would appear to be a normal estate administration “turned into something of a nightmare.” From the beginning, the executors were antagonistic toward each other and this resulted in Joseph petitioning to have Gregory removed as personal representative. There were also protracted negotiations between the estate and the disinherited children of the decedent. In addition, there was litigation involving claimants against the estate, including the decedent’s former wife.

The antagonism between the executors resulted in Mr. Wood being inexorably drawn into the conflict, and he was subjected to voluminous correspondence and telephone calls from the executors, family members and various attorneys for the claimants. Finally, in 1984 it appeared that the disputes between the members of the family and others would be settled. On June 15, 1984 Taxis, Jr., J. entered a decree approving a family settlement which incorporated the discontinuance of two equity suits and an action in assumpsit. The court also approved settlement of an action brought by William L. Slotter, discharged Joseph A. Burch, Jr. as co-executor, and reduced the balance of counsel fees owing as of that date to John H. Wood, Esquire.

In the family settlement, Gregory H. Burch, the appellant herein, was identified as the remaining co-executor and he was designated as the individual responsible for winding up the affairs of the estate. However, Gregory Burch immediately appealed from the decree which approved the compromise settlement of June 15, 1984 to this court, pro se, contending that he had not consented to the decree.

We remanded the matter for hearing on the issue of consent. A hearing was set for April 23, 1986 but was not held because of a further settlement among the parties.

The administration of the estate was still not completed and not because of any fault of Mr. Wood. On August 16, 1988, Gregory H. Burch filed a petition to compel transfer of assets from Mr. Wood, averring that on July 1, 1988 Gregory H. Burch had discharged Mr. Wood as attorney for the estate and demanded that Mr. Wood release all estate funds to Mr. Burch. As a result of this petition by Mr. Burch, further meetings were held before Stefan, J. New counsel for Mr. Burch copied voluminous records at Mr. Wood’s office pertaining to the administration of the estate.

The court below, following a hearing at which Mr. Wood and his bookkeeper testified concerning legal services determined that $2,000.00 was a reasonable fee for services to the estate from June, 1984 to September, 1988. Mr. Wood testified as to his dealings with the executors and the protracted correspondence, telephone calls and negotiations. His bookkeeper, Mrs. Wint, also testified concerning the basis of the bill for legal services, which was in the amount of $2,843.00. Voluminous records were also produced detailing the activities in Mr. Wood’s office involving the estate during the period in question.

The test for determining the appropriateness of a fee for legal services in an estate is reasonableness. Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986). Primarily, the responsibility for passing upon the reasonableness of counsel fee rests with the auditing judge. Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967). The determination that a fee is reasonable is within the sound discretion of the hearing judge whose decision will not be reversed in the absence of a clear error or abuse of discretion. Lychos Estate, 323 Pa.Super. 74, 470 A.2d 136 (1983); Wanamaker Estate, 314 Pa.Super. 177, 460 A.2d 824 (1983).

In determining the reasonableness of counsel fee, the court must consider many factors including the amount of work performed, the character of the services rendered, the difficulty of the problems, the amount of money or value of the property in question, the degree of responsibility involved, the professional skill and the standing of the attorney in his profession, and the ability of the client to pay a reasonable fee. LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968). The court below considered these factors in determining counsel fee and we discern no ábuse of discretion.

The appellant argues that we should not approve the court’s finding that counsel fee was reasonable because counsel for “the estate did not prove with precision the amount of hours he worked on behalf of the estate. We find the argument meritless, as there was evidence produced by the attorney for the estate, his bookkeeper, and voluminous records that indicated substantial legal work over an extended period of time. The court below referred to “the modern method” of determining fees in an estate “simply by multiplying the number of hours displayed on the [computer] printout by an hourly rate (or rates) for the attorney’s time.” It also acknowledged the traditional method of billing a client based on the attorney’s appraisal of the value of his services.

The determination of reasonable compensation to an attorney for an estate is not relegated to a clock and computer. Time expended does not replace the test of reasonableness, and while time involved is a factor in setting a fair and reasonable fee, it is only one of several factors set forth in LaRocca Estate, supra. As noted by the court in Bailey Estate, 10 Fiduciary Rep.2d, 55, 57 (O.C.Chester Co.1990) in determining counsel fee in an estate, the court must “... focus ultimately on what is fair and reasonable under the circumstances.”

Considering the difficulties encountered by counsel in administering this estate, many of which are traceable to the executors, and other relevant factors, the counsel fee approved by the court is very reasonable.

Order affirmed.

      . The court noted that "the ‘modern method’ makes the perhaps questionable assumption that a lawyer’s efforts and time are always worth his hourly rate.”
      In Homer Trust, 10 Fiduciary Rep.2d 382, 383 (O.C.Chester Co. 1990) the court stated: "... [I]t has long been recognized that time alone does not measure the value of services, nor hourly rate the quality.”


author: TAMILIA, Judge: POPOVICH, Judge,

text:
    586 A.2d 1372
    TTMAR, INC., a Pennsylvania Corporation v. John G. SULKA and Barbara L. Sulka, His Wife, Individuals, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed Feb. 1, 1991.
    Reargument Denied March 8, 1991.

      Frank D. Magone, Washington, for appellants.
    Bernadette L. Puzzuole, Pittsburgh, for appellee.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

The facts of this case are not in dispute nor are they complex. Appellee/seller filed suit in Allegheny County against appellants/buyers for an alleged breach of a land sale contract. The matter proceeded to arbitration on June 8, 1989 and appellants prevailed. On July 6, 1989, after a settlement agreement had been withdrawn, appellee took an appeal from the award to the Court of Common Pleas.

In the January 22, 1990 issue of the Pittsburgh Legal Journal, the case was listed for de novo trial on March 26, 1990. The Pittsburgh Legal Journal is the official newspaper for the court system of Judicial District V, which is Allegheny County. On March 26, 1990, the case was called for trial. Appellee, their witnesses and attorney appeared and were ready for trial. Appellants and their counsel of record did not appear. The case proceeded without appellants or their counsel when neither appeared after the third call. After the hearing, the court found in favor of appellee in the sum of $8,500 with interest from January 20, 1989.

Our initial inquiry is whether Allegheny County’s notice requirements comport with due process of law and Rule 218. Appellant initially argues Pa.R.C.P. 218, Party not ready when case is called for trial, requires the trial court to make the determination whether a defendant has a satisfactory excuse for not being ready for trial, as a condition precedent, before the plaintiff may proceed to trial. Appellants argue their counsel did not have actual notice of the trial and, therefore, had a satisfactory excuse for missing the trial. Appellants request this Court to shift the duty to make sure they are personally aware of the date and time of trial to the trial court or opposing counsel. This argument is unsupportable.

Appellants’ counsel is trained and schooled in the practice of law. He is a member of the Pennsylvania Bar and thus has successfully completed those rigorous requirements necessary for admission to the Bar. The duties, responsibilities and obligations attendant to this profession are to be undertaken with the utmost degree of care. If counsel chooses to accept a case and practice in a particular forum, then he must master notice requirements of local rules and procedures of that forum. This is not a case where notice could be posted on a tree to bind all interested parties. Counsel attacks the very process which every responsible member of the Bar practicing in Allegheny County is bound to follow. The Pittsburgh Legal Journal is the official court publication of Allegheny County as authorized by the local rules of court. Appellants’ counsel, choosing to practice in the forum, was duty bound to identify this rule, and reliance on the telephone opinion of an unidentified clerk does not relieve him of the obligation to be aware of notice procedure. Appellants’ counsel’s law offices are located in Washington County, adjacent to Allegheny County’s southern border, within one-half hour of the city of Pittsburgh, the County Seat of the Judicial District. Such geographic proximity makes reasonably certain appellants’ counsel would have occasion to practice law in that forum. Counsel is under a high duty of care to learn and familiarize himself with the local rules of all forums in which he chooses to practice law and to read the Pittsburgh Legal Journal for notice of the date and time of any Allegheny County trials with which he is concerned. Failing to do so does not excuse counsel. (See Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986), counsel is under obligation to keep abreast of publications to the bar and local rules of court).

We hold publication of the time and place of the trial afforded counsel legal notice of the trial. The court is required to do no more. Thus counsel is deemed to have notice of the trial and does not have a “satisfactory excuse” pursuant to Pa.R.C.P. 218. The trial court, in taking notice of the fact that counsel had actual notice of the trial, comported with the requirements of Rule 218 when it allowed plaintiff-appellee to proceed to trial.

This case is inapposite to Potter v. Temple University Hospital, 380 Pa.Super. 376, 551 A.2d 1101 (1988), and Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988), which are relied upon by the appellants. In those two cases, both parties displayed a lack of due diligence by failing to monitor the list and be present at the same call. This Court’s rationale in both decisions was that neither party was prepared to go forward, and under those circumstances, neither party was permitted to profit from the combined negligence of indifferent or incompetent counsel of the parties. In the instant case, however, appellee was prepared at the call of the case and did, in fact, go through with the trial. Appellants’ counsel’s oversight alone is the reason for appellants missing the trial.

Finally, appellants argue there is insufficient evidence to support the trial court’s verdict. Our studied review of the uncontroverted record indicates otherwise. Ttmar Inc. is in the business of buying and selling real and personal property. On or about January 15, 1989, appellants John G. and Barbara L. Sulka contacted Ttmar and expressed interest in buying two parcels of Ttmar’s property. The parties entered into a contract of sale and appellants tendered $8,500 hand money. Afterwards, appellants stopped payment on the check, later admitting they changed their minds and decided not to purchase the property. Paragraph 15(a) of the agreement states the seller shall retain the earnest money deposit upon a buyer’s default.

Accordingly, we find the evidence sufficient to support the trial court’s verdict, Sipowicz v. Olivieri, 174 Pa.Super. 549, 102 A.2d 175 (1954).

Order affirmed.

POPOVICH, J., joins TAMILIA, J., and also files a concurring statement.

POPOVICH, Judge,

concurring.

Although I join in the opinion of the majority, I write separately to note my concern over the lack of uniformity in legal procedure within our Unified Judicial System. I believe something as basic as legal notice of a trial should be governed by uniform state-wide rules, not by local determination. However, until such a time comes when the state has a “true” Uniform Judicial System, the law will remain as cited by the majority with which I join.

      . This Court, in Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986), stated its rationale, in pertinent part, as follows:
      The Legal Intelligencer is the official periodical for publication of all notices to the Philadelphia Bar. It is incumbent upon a Philadelphia practitioner to be familiar with the Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia courts____ [C]ounsel [was not excused] from her duty to be knowledgeable concerning other portions of the Intelligencer---- As such, former counsel was not excused from her duty to monitor the master lists; it was her duty, as a diligent practitioner, to monitor the master major jury list and the individual judge calendars.
      Her duty to have so performed is further buttressed by Philadelphia Local Rule of Court 200, which governs the assignment of cases for trial[.]
      As such, the Rule imposes upon a Philadelphia practitioner a need for watchfulness with respect to the civil trial listings in the Intelligencer, as opposed to the type of limited scrutiny which was applied by appellee's former counsel.
      In light of the foregoing, it is inconceivable to this Court that former counsel’s excuse for nonappearance, i.e. the letter, can be deemed reasonable. A litigator is under an obligation to keep abreast of publications to the bar, such as the Intelligencer, as well as local rules of court.

        Id., 359 Pa.Superior Ct. at 580, 519 A.2d at 504 (citations omitted).

      . Wherein the trial court stated:
      THE COURT: Neither Defendant present. No Defendant lawyer. No other witness for Defendant. Let the record show that this case was advertised in the Pittsburgh Legal Journal in its issue of January 22, 1990. The PLJ is the official newspaper for the court system of Allegheny County. In that issue it announced that this case was to be heard on March 26, 1990 at nine a.m. in Pittsburgh, Room 648—City-County Building, add that in there.
      (T.T., 3/26/90, p. 2.)


author:
      BECK, Judge:
      HOFFMAN, Judge,

text:
    586 A.2d 1375
    David GARCIA and Marycellis M. Garcia, Appellants, v. David J. SAVAGE t/d/b/a David J. Savage Corporation, v. PENNSYLVANIA HOUSE.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1990.
    Filed Feb. 19, 1991.

      Robert P. Wilkison, Sunbury, for appellant.
    Gregory E. Cassimatis, Harrisburg, for Savage, appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

The issue is whether summary judgment may be had where the moving party supports his motion with the deposition testimony of allegedly disinterested witnesses and the testimony of the movant himself.

We hold that proper application of the rule announced in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), forbids entry of summary judgment in these circumstances.

This case arose out of an accident that occurred on April 24, 1986 on the premises of Pennsylvania House, a manufacturing facility in Lewisburg. Pennsylvania House contracted with Beery Building and Components (“Beery”) to replace the roof on the facility. Beery subcontracted the roofing job to Laird Roofing (“Laird”). On the day set for the job to commence, Laird found that it did not have enough available workers to send to the Pennsylvania House project. Beery contacted appellee, David Savage, who owned a small construction business, and asked if Savage could send some of its workmen to assist in the Pennsylvania House project. Savage sent three of his workmen to the job.

Appellant, David Garcia, was employed by Laird and was assigned to the Pennsylvania House project. He and the three workmen from Savage began the roof job by removing the old roof and the insulation under it. Shortly after lunch, while Garcia was working on the roof, he stepped onto an area where he thought the roof was still intact. In fact, the steel roof had already been removed from the section where he stepped and all that remained was the insulation that had been under the steel. Garcia fell through the insulation to the concrete floor thirty feet below, sustaining severe personal injuries.

Garcia brought a workmen’s compensation claim against Beery, alleging that Beery was his statutory employer. He did not bring a claim against his direct employer, Laird, because he had been informed that Laird’s workmen’s compensation insurance was no longer in effect at the time of the accident. Although Laird was later joined in the claim, Garcia ultimately received an award of workmen’s compensation benefits against Beery alone.

On November 13, 1986, this action was commenced by writ of summons. The only defendant was Savage. Garcia alleged that his fall resulted from the negligence of the three Savage workmen in removing the steel roof without simultaneously removing the insulation underneath it. This was alleged to be negligent because the steel and the insulation were allegedly the same color so that removing the steel and not the insulation created the risk that someone would step on the insulation, thinking it was steel, and fall through, as did Garcia. The complaint alleged that Savage was liable for the negligence of his employees on a respondeat superior theory.

Savage thereafter joined Beery, Laird and Pennsylvania House as additional defendants. Beery and Laird were granted summary judgment by order dated December 22, 1988. Motions for summary judgment filed by Savage and Pennsylvania House were denied. After further discovery via depositions, Savage again sought summary judgment. He contended that since his three workers had been under the control of Beery, Laird and Pennsylvania House during their work at Pennsylvania House, he had no liability for their actions on that day. Savage supported his factual allegation that his workers were not under his control on the day of the accident by reference to deposition testimony by the three workers themselves, who had stated that they were not supervised by Savage on that day, and deposition testimony of Beery, Laird and Savage himself to the same effect. This motion was granted by order entered January 31, 1990. Garcia appeals the grant of summary judgment in favor of Savage.

Summary judgment is not to be lightly entered. The standard that must be met by a party seeking summary judgment is exacting. We have most recently stated it as follows:

Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-41, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 579 A.2d 388, 390 (1990).

Because the burden to establish the absence of a genuine issue of material fact is squarely on the movant, Rule 1035 imposes no requirement of a response by the non-moving party. Failure to answer a motion for summary judgment, through the filing of counter-affidavits or otherwise, does not constitute a waiver of issues necessary to decide the motion. Moore v. Gates, 398 Pa.Super. 211, 580 A.2d 1138, 1140 (1990). If the moving party has failed to support his motion adequately, summary judgment must be denied, even if the opposing party has not responded.

The issue in this case is whether Savage as the moving party adequately supported his motion for summary judgment by relying on his own deposition testimony and that of Beery, Laird and the three workmen. Garcia argues that this testimony is incompetent under the rule of Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). In Nanty-Glo, the plaintiff borough sued the surety company that had issued a bond on the borough’s tax collector for amounts the tax collector had misappropriated from the borough. The surety company joined the tax collector as an additional defendant. At trial, the borough used the testimony of the additional defendant, the tax collector, who testified to the misappropriation, and of a county clerk who testified to the fact that timely notice of the claim had been given to the surety company. The surety company offered no evidence contradicting this testimony. The trial court granted plaintiff’s motion for binding instructions and directed a verdict for the plaintiff. The surety company appealed. The company argued that even though it had not produced any testimony contradicting the oral testimony of the witnesses the plaintiff relied on, nevertheless the case had to be submitted to the jury since it was for them to decide whether to believe those witnesses. Id., 309 Pa. at 237-38, 163 A. at 524. The Supreme Court agreed, reversed the judgment that had been entered on the directed verdict and remanded the case for a new trial. The Court held:

In granting plaintiff’s motion for binding instructions, the trial judge assumed the testimony of [the tax collector and the clerk] ... to be true. This he had no right to do, even though it was uncontradicted. In the words of JUSTICE SHARSWOOD, “However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” ____The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury----

Id., 309 Pa. at 238, 163 A. at 524.

Although Nanty-Glo itself was concerned with a directed verdict, it has equally been applied to motions for summary judgment and is now most commonly applied in the latter situation. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). Thus, the general rule that flows from Nanty-Glo is that summary judgment may not be had where the moving party relies exclusively upon oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact. Id.

Although Savage appears to concede that Nanty-Glo would prohibit summary judgment in his favor if he had relied on his own testimony alone, Savage argues that Nanty-Glo does not render his reliance on the testimony Beery, Laird and the three Savage workmen improper. He argues that since these witnesses were disinterested witnesses, their credibility need not be judged by a jury. Savage bases this argument on a suggestion found in a case decided by the Commonwealth Court. See Post v. Dodd, 116 Pa.Commw. 114, 541 A.2d 56 (1988). Since we are not bound by a decision of the Commonwealth Court on this issue, we are free to reject the principles set forth in Post if we find them to be inconsistent with the Supreme Court’s decisions, or those of this court, or if we disagree with them on any ground. Francisco v. Ford Motor Co., 397 Pa.Super. 430, 438 n. 8, 580 A.2d 374, 378 n. 8 (1990).

In Post, one defendant in a motor vehicle accident case supported his motion for summary judgment with evidence consisting of his own testimony, plaintiff’s testimony and the testimony of an eye witness to the accident who was not a party to the suit. The parties opposing the motion did not produce evidence contradicting the movant’s, but argued that his evidence was incompetent to support summary judgment under Nanty-Glo. The moving party countered by arguing that at minimum the deposition testimony of the eyewitness was competent to support the motion because she was an independent, disinterested witness who had no reason to misrepresent the facts. The Commonwealth Court rejected this contention, finding that this witness was not disinterested since she was the wife of the moving party. Nevertheless, the court appeared to accept the general proposition that oral testimony of a truly disinterested witness would, be competent to support summary judgment. Thus, the Commonwealth Court’s opinion may be cited for the proposition that there is an exception to the Nanty-Glo prohibition on oral testimony where that testimony is from a disinterested witness.

The Post court appeared to base this interpretation of Nanty-Glo on the manner in which the Supreme Court had described the Nanty-Glo rule in the case of Curran v. Philadelphia Newspapers Inc., 497 Pa. 163, 439 A.2d 652 (1981). There, the Court stated that the Nanty-Glo rule prohibited summary judgment based solely on the oral testimony of the moving party or “his witnesses.” Id., 497 Pa. at 183, 439 A.2d at 662. The Commonwealth Court appears to have interpreted this phraseology to indicate that summary judgment cannot be supported if only based on testimony of witnesses who are somehow aligned with or biased in favor of the moving party.

We find no support whatsoever for this interpretation of Nanty-Glo, either in that case or in any other that has construed or applied it. Nanty-Glo itself prohibited the direction of a verdict for the plaintiff, who had presented evidence from its own representative, i.e. the county clerk, and from a party on the other side of the case, i.e. the tax collector himself, who was a defendant in the action. See discussion of Nanty-Glo, supra. Moreover, early cases decided not long after Nanty-Glo make no distinction between the oral testimony of interested and disinterested witnesses. For example, in MacDonald v. Pennsylvania R.R. Co., 348 Pa. 558, 36 A.2d 492 (1944), the Supreme Court reiterated the rule that where at trial a party presents his own interested testimony, he is entitled to have the case submitted to the jury, even though his evidence is contradicted by the testimony of disinterested witnesses for the other side. The mere fact that the opposing testimony was from disinterested witnesses did not remove from the jury their traditional function of judging the credibility of those witnesses. Importantly, the court cited Nanty-Glo in the course of this discussion. The clear implication is that credibility is an issue solely for the jury to determine, whether it be the credibility of an interested or a disinterested witness.

In addition, close analysis of cases directly applying Nanty-Glo and reversing an improper grant of summary judgment reveals that in such cases the courts have not distinguished between situations where the motion was supported by the testimony of interested or disinterested witnesses. For example, in Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 260 A.2d 785 (1970), the trial court had granted summary judgment to the defendant insurance company which had denied benefits to the beneficiary plaintiff on her deceased husband’s life insurance policy. The insurance company alleged that the deceased had filed a fraudulent application for the life insurance, having failed to reveal a circulatory problem. The deceased allegedly knew of this problem because two doctors with whom he had consulted prior to applying for the insurance had diagnosed the problem. The insurance company supported its motion for summary judgment with the deposition testimony of the two doctors. Plaintiff produced no evidence contradicting this testimony. Nevertheless, the Supreme Court reversed the grant of summary judgment under Nanty-Glo, finding that the credibility of the two doctors’ testimony must be judged by a jury. Id., 436 Pa. at 498-99, 260 A.2d at 787. The fact that the two doctors were not in any way interested in the outcome of the case was not even mentioned by the court and did not impact on its decision to reverse the entry of summary judgment under Nanty-Glo.

Viewed in the light of the foregoing precedent, the Supreme Court’s statement in Curran that Nanty-Glo prohibits reliance on the oral testimony of either the moving party or his witnesses cannot be read to inject an exception to the Nanty-Glo rule for the testimony of disinterested witnesses. When the Curran court referred to the moving party’s witnesses, it clearly meant nothing more than those witnesses whose testimony the movant produces in support of his version of the facts, whether those witnesses have an interest in the outcome of the lawsuit or not. The court clearly did not mean to limit the Nanty-Glo rule only to the testimony of those witnesses who were interested in the moving party’s success. Such a radical change in the law cannot be assumed from the Curran court’s mere use of the phrase “his witnesses”.

Thus, we find that there is not now nor has there ever been an exception to the Nanty-Glo rule which allows summary judgment based on the testimony of disinterested witnesses. This conclusion leads inexorably to the reversal of the trial court’s grant of summary judgment for Savage in this case. Savage relied on his own testimony and on deposition testimony of witnesses, not including any admissions by the opposing party, and produced no documentary evidence in support of his motion. He sought to show that he had no control over his workmen on the day of the instant accident solely through oral testimony. The credibility of these witnesses’ testimony on this crucial factual question should not have been accepted by the trial court. Whether or not they are to be believed, no matter what their interest or lack thereof in this lawsuit, is for a jury to decide.

The order of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

HOFFMAN, J. files a concurring statement.

HOFFMAN, Judge,

concurring.

I join in the excellent and well-reasoned Opinion by Judge Beck, with the exception of the discussion in footnote 3 concerning Troy v. Kampgrounds, and the scope of our Supreme Court’s decision in Penn Center House v. Hoffman. I was a member of the Troy panel, and I joined in Judge Ford Elliott’s careful expression in that case. The facts in this case do not require a reexamination of the approach in Troy; accordingly, I offer no Opinion at this time on the question of the vitality of Troy. In all other respects, I join Judge Beck’s thorough Opinion without reservation.

      . Garcia is joined in this appeal by his wife, Marycellis Garcia.

        . The standard for deciding whether a party is entitled to summary judgment has long been equated with that for deciding whether that party would be entitled to a directed verdict at trial. See Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 497, 260 A.2d 785, 786 (1970).

      . There is one well-established exception to this proposition. Where the moving party supports his motion for summary judgment by using the admissions of the opposing party, even though they are testimonial, or of the opposing party’s own witnesses, Nanty-Glo does not forbid the entry of summary judgment. In such a situation, the court may grant the motion without determining the credibility of the testimony, for it is an "unconditional surrender” by the opposing party, to which he must be held. See Rivoli Theatre Co. v. Allison, 396 Pa. 343, 152 A.2d 449 (1959).
      Despite this long-standing exception to the Nanty-Glo rule, we note that in a very recent panel decision of this court it is suggested that although Nanty-Glo was originally intended to apply only to the testimony of the movant or his witnesses, the rule was expanded by the Supreme Court in Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989), to forbid summary judgment based on oral testimony, no matter what the source, and even if the testimony is an admission of the non-moving party. This suggestion is found in Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 49, 581 A.2d 665, 669-670 (1990).
      Although the foregoing interpretation of Nanty-Glo and Penn Center House is set forth in what appears to be dicta in the Troy opinion, we are nevertheless compelled to note our disagreement with it. We do not read the Penn Center House opinion to have made any change in the Nanty-Glo rule.
      Summarily stated, the issue in Penn Center House was whether plaintiff, a shareholder in and resident at Penn Center House, a cooperative housing corporation, had violated Penn Center House’s rules by keeping a dog in her apartment. The trial court granted summary judgment to Penn Center House based on the admission of plaintiff in her deposition testimony that she did indeed have a dog and on the affidavit of Penn Center House's manager to the effect that this violated the rules, of which plaintiff had knowledge. The Supreme Court reversed. The court found that Penn Center House had not established the lack of a genuine issue of fact and cited Nanty-Glo.

      The panel in Troy interpreted this holding to mean that summary judgment cannot be granted where the moving party relies on the testimony of the opposing party himself and, therefore, constitutes an expansion of Nanty-Glo. This conclusion is not supported by a careful reading of the Penn Center House opinion. The court did not hold that summary judgment had to be denied because defendant, the moving party, had relied on plaintiffs admission that she had a dog in her apartment. The court denied summary judgment because despite plaintiffs admission of this fact, there were still other issues of fact as to whether Penn Center House had specifically exempted plaintiff from the rule against pets or was unfairly and inconsistently enforcing this rule. These issues arose from plaintiffs other deposition testimony and her pleadings wherein she had alleged that she had been exempted from the rule and that its enforcement was discriminatory. The court’s refusal to allow summary judgment resulted from the incompetence of the affidavit testimony of Penn Center House’s manager to rebut these allegations by plaintiff. Thus, Penn Center House does not expand Nanty-Glo to bar reliance on admissions of the non-moving party in seeking summary judgment.
      We note that there is no allegation in the instant case that Garcia ever admitted to the fact at issue, i.e. that the Savage workmen were not controlled by Savage at the Pennsylvania House project.


author:
PER CURIAM: CAVANAUGH, Judge,
      CIRILLO, President Judge,

text:
    586 A.2d 1380
    COMMONWEALTH of Pennsylvania v. Michael RIZZI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1990.
    Filed Feb. 22, 1991.

      Robert M. Rosenblum, Matamoras, for appellant.
    Charles F. Lieberman, Dist. Atty., Milford, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, Me EWEN, OLSZEWSKI, DEL SOLE, BECK and TAMILIA, JJ.
   OPINION

PER CURIAM:

This is an appeal from the judgment of sentence entered following appellant’s convictions, by a jury, of two counts each of possession with intent to deliver cocaine, and possession of cocaine. The convictions arose out of two incidents. During each incident, appellant sold approximately one-half gram of cocaine to an informant.

Appellant now claims the trial court abused its discretion when it denied appellant’s demurrer to the Commonwealth’s evidence because (a) the Commonwealth’s evidence was insufficient to go to the jury; and (b) the court should not have allowed the case to be reopened to permit the Commonwealth to supplement its evidence. Secondly, appellant asserts the trial court erred in denying appellant’s motion for a mistrial because evidence which implied appellant was involved in uncharged criminal conduct was admitted at trial. Thirdly, appellant claims the court erred in several respects in its charge to the jury. Finally, appellant claims the court abused its discretion in fashioning his sentence. While appellant’s allegations of trial error must fail, his sentencing claim has merit, and we therefore vacate the judgment of sentence and remand for resentencing.

The controlled buys which led to appellant’s conviction occurred on June 10, 1987 and August 29, 1987. The informant, Leonard Lombardo, who purchased cocaine from appellant, was cooperating with the government to obtain leniency on drug charges then pending against him. Lombardo entered the service station owned and operated by appellant on both occasions to make the purchases. On both June 10, 1987 and August 29, 1987, the police officers conducting the investigation searched Lombardo for drugs and money before and after he went to appellant’s business. After each controlled buy, Lombardo had a packet of cocaine that he did not have before leaving the police. Also, on both occasions, Lombardo had $50 less after the purchase than he did before the purchase.

Appellant first claims the above evidence was insufficient to go to the jury. In support of this claim, appellant alleges the police did not conduct a thorough enough search of Lombardo’s car and body to support the inference that Lombardo got the drugs from appellant and that he did not have the drugs before entering appellant’s service station. We find this claim to be completely without merit. Whether to believe Lombardo’s testimony was an issue of credibility. Because there was enough evidence presented from which the jury could conclude the crime was committed, the judge did not err in refusing to grant a demurrer on this ground. Commonwealth v. Trudell [ & Verdon], 371 Pa.Super. 353, 365, 538 A.2d 53, 59 (1988) (as long as there was sufficient evidence for the jury to rationally reach a verdict, the court did not err in allowing case to go to jury), alloc. denied, Commonwealth v. [Trudell & ] Verdon, 519 Pa. 665, 548 A.2d 255 (1988).

Appellant also claims his demurrer should have been granted because the judge erred in reopening the case so the Commonwealth could introduce the two packets of cocaine Lombardo purchased from appellant. Reopening the case is appropriate to avoid a miscarriage of justice. Commonwealth v. Irving, 485 Pa. 596, 603, 403 A.2d 549, 552 (1979), cert. den’d, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980); Commonwealth v. Mathis, 317 Pa.Super. 226, 463 A.2d 1167 (1983) (permissible for judge to reopen case in order to allow Commonwealth to prove value of stolen goods when value was an element of the crime). In this case, if the court had not reopened the case, it may have been impossible for the Commonwealth to prove appellant sold two one-half gram packets of cocaine. Indeed, appellant’s argument that a demurrer would have been appropriate envisions the Commonwealth would not have been able to prove its case without the evidence at issue. Reopening of the case was appropriate to avoid a miscarriage of justice.

Appellant next contends the court wrongly refused to grant his motion for a mistrial which followed the admission of certain allegedly prejudicial testimony. Lombardo testified he had made three purchases from appellant. Appellant claims this reference to a third, uncharged, transaction was grounds for a mistrial. Upon further questioning, however, Lombardo testified the third buy was not illegal, and that appellant was not charged with any crime as a result of the third transaction. Lombardo’s statement, when read in light of the subsequent explanation, was not grounds for a mistrial.

In addition, appellant claims the court erred in its charge to the jury. His primary contention concerns the court’s failure to give a corrupt source instruction. A corrupt source instruction is only required when the witness is the accomplice of the defendant. Commonwealth v. Watts, 348 Pa.Super. 224, 228, 501 A.2d 1152, 1154 (1985). Appellant alleges Lombardo was his accomplice. Lombardo bought drugs from appellant in a controlled drug transaction as an agent of law enforcement authorities. He had no intention of keeping the drugs and, therefore, he had no criminal intent. Under these circumstances we cannot label Lombardo an accomplice for purposes of the corrupt source charge. Consequently, the court did not err in refusing to provide the requested jury instruction.

Appellant’s remaining claims address alleged errors in sentencing. As with all appeals involving discretionary aspects of sentencing, we must determine whether appellant has met the procedural requirements of Pa.R.A.P. 2119(f), and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Appellant has provided a statement of reasons relied upon for allowance of appeal. In that extensive Rule 2119(f) statement, appellant claims the sentencing judge erred in refusing to apply the guidelines which had been found unconstitutional between the commission of the crime and the imposition of sentence. In addition, appellant claims the court did not consider the rehabilitative needs of the defendant, and instead focused solely on the seriousness of the crime. Appellant also claims the court erred in failing to explain its deviation from the guideline ranges. These claims raise a substantial question that the sentencing scheme as a whole has been compromised. See Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9 (1988) (Rule 2119(f) statement raised substantial question when it contained allegation that sentencing court did not adequately explain its reason for the sentence); Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989) (claim that sentence exceeded guideline range that was not in effect raised a substantial question).

When we review appeals involving sentencing, we must abide by 42 Pa.C.S. § 9781, Appellate review of sentence, which provides in relevant part:

(d) Review of record.—In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.

We will not disturb the sentence imposed by the trial court absent a manifest abuse of discretion. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760, alloc. denied, 514 Pa. 624, 522 A.2d 49 (1987).

In support of the sentence the judge made only the following statement on the record:

You have a young family. You have a clean record. On the other hand, I have had the benefit of a presentence investigative report, and the jury has found you guilty of both counts here, and I do have the unpleasant duty of sentencing you. I have to regard this as a very serious offense. The problem that’s been spreading through our community and our country generally. We do have to recognize this as a most serious offense, and I think if I were to do anything but impose a substantial period of incarceration I would certainly not be doing my duty.

(N.T., 8/10/89, p. 19.) Appellant was then sentenced to a total of three to six years imprisonment for two counts of possession with intent to deliver. The judge imposed a twelve (12) to twenty-four (24) month sentence on the first of the two counts, and he imposed a consecutive twenty-four (24) to forty-eight (48) month sentence for the second possession with intent to deliver count, which the judge considered to be a second offense.

In Burdge, supra, while recognizing that a sentence double what would have been recommended by the prior and pending sentencing guidelines would present a substantial question permitting a challenge to the discretionary aspects of the sentence, 42 Pa.C.S. § 9781(b), this Court went on to affirm the sentence based on review of the sentencing code as a whole. This case is in the same posture as Burdge. The court reviewed the charges and imposed two sentences consecutively, well within the permissible sentencing range. The court had before it a presentence report which it examined. However, the court did not establish any chronic patterns of criminality or any basis for prolonged incarceration from that record. See notes of testimony in support of sentence, supra.

At the outset, we make it clear that we consider it unnecessary to implicate the application of prior record scores to the convictions involved here, pursuant to Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986). Since neither prior nor pending guidelines were in effect at the time of the present sentencing, the trial court was free to apply the guidelines or ignore them while remaining within the parameters of the sentencing code. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), instructs us that where a presentence report exists, it will be presumed the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations, along with mitigating factors. When the sentencing court has been informed by such a presentence report, its sentence should not be disturbed, particularly where it can be shown the judge had any degree of awareness of the sentencing considerations. Mindful of the heavy impact of Devers, we are constrained to find the trial court may not be reversed lightly when it has reviewed and considered a presentence report. We do not believe, however, mere reference to a presentence report, without evidence of record that it supports the sentence, will fulfill the requirements of Devers. In this case, aside from reference to the seriousness of the crime, the court has failed to establish the necessity for a total sentence of 36 to 72 months incarceration. If the guidelines had been applicable, the first sentence would have been within the standard range of both prior and proposed guidelines while the second sentence would have been beyond the aggravated range for both.

In imposing a sentence, the judge must comply with the dictates of 42 Pa.C.S. § 9721 which provides in relevant part as follows:

(b) General standards.— ... the court shall follow the general principle that the sentence imposed should call for confinement that is 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---- The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing____ In every case in which the court, imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.

We have reviewed the entire presentence report. According to the report, appellant was 29 years old. He graduated from high school as an above average student. Appellant was skilled as an auto mechanic and at welding, sheet metal fabrication, mechanical drawing, and excavating. Appellant was an occasional marijuana user and a social drinker. In January, 1989, when the report was prepared, appellant had a four-year old child, and appellant’s wife was in her third trimester of pregnancy with their second child. The report also discloses appellant owned and operated an auto repair shop for the past eight years, where he was earning $28,000 per year; that he and his wife recently bought a house for which the mortgage was $628 per month, and that his wife was employed as a sales assistant for which she was paid approximately $250 per week. In addition, the report indicates appellant showed no remorse for his actions and refused to help in an ongoing investigation by the State Police of drug dealers in the area.

At the sentencing hearing, appellant testified at length about a serious injury he had sustained to his eye between the time of trial and sentencing. He described his difficult treatment regimen, which was required lest he lose sight in his eye. Appellant’s counsel pointed to the many letters received by the sentencing court attesting to appellant’s good character. The prosecutor acknowledged there were few if any aggravating factors, but asked for the maximum penalty under the law.

Upon our review of the presentence report and the sentencing record, even absent applicable guidelines, we must conclude the sentencing judge committed a manifest abuse of discretion in sentencing appellant to three to six years imprisonment for two sales of one-half gram of cocaine. The judge c[id not point to sufficient evidence in the record to support such a severe sentence. While not denigrating the seriousness of the offense of selling cocaine, we must require that the sentencing court consider more than the gravity of the offense. Now that new sentencing guidelines are in effect, the trial court has a ready instrument to structure a sentence which will balance the need of society to punish such offenses and to assure a'sentence which will not result in excessive harshness to the individual.

Judgment of sentence is vacated and case remanded for resentencing consistent with this Opinion.

Dissenting Opinion filed by CAVANAUGH, J., in which CIRILLO, President Judge, and ROWLEY and WIEAND, JJ., join.

Dissenting Statement filed by CIRILLO, President Judge.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent and would affirm the judgment of sentence. I do not agree with the majority’s statement at slip opinion, page 1385, as follows:

We do not believe, however, mere reference to a presentence report, without evidence of record that it supports the sentence, will fulfill the requirement of Devers. I believe this statement is at odds with our Supreme

Court’s decision in Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18, (1988), in which it was stated:

Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. (Emphasis added.)

In the instant case, the court below did not merely “refer” to the sentencing report but expressly stated “I have had the benefit of a pre-sentence investigative report.” The report, according to our Supreme Court, constitutes the record and speaks for itself. The report stated “the defendant has not cooperated with on-going state police investigations despite an initial offering to do so.” The court below also noted that the appellant showed no remorse for his conduct. Appellant was involved not merely in the possession of cocaine but in its sale on two separate occasions. The sentencing court considered the seriousness of the offenses and other factors involving the appellant.

Furthermore, I would disagree with much of what the majority argues in support of a more lenient sentence in this case, i.e., the appellant’s skill as an auto mechanic and his experience at welding, sheet metal fabrication, and mechanical drawing, as well as his owning and operating an automobile repair shop for eight years where he had substantial earnings. To the contrary, I believe that using the cover of a legitimate business enterprise in order to deal illicit drugs and thereby attempting to escape law enforcement scrutiny are reasons to call for a more serious sentence than one who openly engages in the sale of drugs on the street.

In my opinion, the sentencing court’s discretion should not be disturbed and I would affirm the judgment of sentence.

CIRILLO, President Judge, and ROWLEY and WIEAND, JJ., join.

CIRILLO, President Judge,

dissenting:

I join Judge Cavanaugh’s dissenting opinion which would, pursuant to Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), affirm Michael Rizzi’s judgment of sentence. I write separately, however, because I cannot agree with the portion of the dissent which states that “using the cover of a legitimate business enterprise in order to deal illicit drugs and thereby attempting to escape law enforcement scrutiny are reasons to call for a more serious sentence than one who openly engages in the sale of drugs on the street.” Selling illicit drugs, whether on the street or behind a counter, is a horrific act with harmful and, far too often, fatal consequences. For this court to assign a greater degree of seriousness to the selling of drugs under the guise of a legitimate business than it does to the open and notorious selling of drugs on the street is ludicrous. In my opinion, they are equally reprehensible.

      . 35 Pa.C.S.A. § 780-113(a)(30).

      . Id., § 780-113(a)(16).

      . While we hold here that Lombardo was not appellant’s accomplice because of the nature of the transactions at issue, we express no opinion regarding the question of whether the buyer in an uncontrolled drug purchase is the accomplice of the seller for these purposes. Cf. Commonwealth v. Monku, 61 Luz.L.Reg. 213 (1971) (buyer of drugs is not seller’s accomplice).
      In support of the remainder of appellant's allegations of errors in the jury instruction, appellant simply asserts the language he proposed was better than the language actually used by the court. The claims are made in an off hand manner with no supporting argument. We find the judge’s instructions to be adequate, and we reject appellant’s frivolous challenges to the charge.

      . Some circumstances make the crime of selling cocaine particularly condemnable and justify a more severe sentence. These circumstances include selling to a minor, enlisting many people to sell the drug, selling exceptionally pure cocaine, or obtaining substantial income from the activity. See 204 Pa.Code. § 303.3(b), reprinted at 42 Pa.C.S. § 9721. The sentencing judge pointed to no such circumstances and we uncovered none in our review of the record.