author: HUDOCK, Judge:

text:
    600 A.2d 605
    Thomas LAND, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Dec. 18, 1991.

      Annemarie Algeo, Trenton, N.J., for appellant.
    Frederick E. Smith, Jr., Willow Grove, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

Thomas Land, (Appellant), appeals from the judgment entered following the denial of his petition to set aside an arbitration award. We affirm.

The pertinent facts are as follows: This matter arises from an uninsured motorist arbitration proceeding. The proceeding was commenced pursuant to a contract of insuranee which provided that the Pennsylvania Uniform Acts of 1927 and 1980, as amended, were applicable. The insurance policy likewise provided that each party shall select a competent and impartial arbitrator. These two would then select a third arbitrator. To this end, Norton A. Freedman, Esquire, was appointed by State Farm Insurance Company, (Appellee), and Howard Wishnoff, Esquire, was appointed by Appellant. David W. Moneymaker, Esquire, was then chosen to serve as the neutral arbitrator. The panel found in favor of Appellant in the amount of $4,500, with Mr. Wishnoff dissenting.

A short time thereafter, counsel for Appellant claims to have learned:

[F]rom several respected members of the Pennsylvania Bar that [Appellee’s] arbitrator served in that capacity on innumerable occasions, in fact, so frequently that he was now coined “State Farm’s arbitrator.” In addition, the reports to [A]ppellant’s counsel portrayed the arbitrator’s awards as frequently favoring [Appellee] or where liability was clear, dimunitive [sic].

(Appellant’s Brief at p. 7). Considering this information, and believing that Appellee’s arbitrator’s apparent partiality was the basis for the diminutive award, counsel for Appellant filed a petition to set aside the arbitration award. This petition was based on 42 Pa.C.S.A. § 7341 (Purdon 1982), and on the language of Appellee’s insurance policy which required that each party appoint a competent and impartial arbitrator.

Shortly after the filing of the petition, the prothonotary entered an order providing that discovery, if any was needed, was to be completed within sixty days from the date of the order. Pursuant to this directive, Appellant sent interrogatories, pursuant to Pa.R.C.P. 4005, 42 Pa.C.S.A. (Purdon 1987), to Appellee, which were directed to Norman Freedman, Esquire, containing fourteen questions regarding his relationship with Appellee, including, inter alia, whether he ever provided legal services to Appellee or its insureds, and the number of times he was appointed arbitrator for Appellee. Appellant also requested from State Farm the production of pertinent documents relating to the interrogatories pursuant to Pa.R.C.P. 4009, 42 Pa.C.S.A. (Purdon 1987).

Appellee filed preliminary objections to the discovery requests, and thereafter refused to respond. Appellant then filed a motion to compel Appellee to provide the requested discovery. Argument on both the petition to set aside the arbitration award and the motion to compel discovery was scheduled for the same day. After hearing oral argument, the trial court denied both. The trial court denied the discovery motion on the basis that it requested irrelevant information. The trial court, upon learning that several interrogatories did inquire as to whether Mr. Freedman had worked for Appellee or represented its insureds in the past, telephoned counsel for both parties and directed Mr. Freedman to answer these questions. The questions were answered in the negative.

Appellant claims that the trial court erred in relying exclusively on the common law standard in denying the petition, thereby ignoring the language of the insurance contract which called for the appointment of competent and impartial arbitrators, and in dismissing his petition to set aside the arbitration award without first permitting him to take discovery in the matter. We do not agree.

In Bole v. Nationwide Insurance Company, 475 Pa. 187, 379 A.2d 1346 (1977), the insurance policy at issue provided for common law arbitration and contained language that each party would choose a competent and disinterested arbitrator. The contract further provided that the two chosen arbitrators would then select a third arbitrator. Bole objected to Nationwide’s choice, because the attorney/arbitrator chosen had provided legal representation to Nationwide in the past. The attorney/arbitrator, however, refused to disqualify himself and helped to choose the third arbitrator. Bole again objected at the arbitration proceeding. Following the hearing, an award was given against Bole and in favor of Nationwide, with Bole’s arbitrator dissenting. Bole then filed a petition to vacate the award claiming, inter alia, that the attorney/arbitrator chosen by Nationwide should have disqualified himself. The trial court denied the requested relief and an appeal was taken to this Court.

Bole’s appeal to this Court resulted in a remand. Bole v. Nationwide Insurance Company, 238 Pa.Super. 138, 352 A.2d 472 (1975). This Court, however, was divided as to the scope of the remand. Judge Spaeth, in an opinion joined by Judges Hoffman and Cercone, remanded the case for an evidentiary hearing to determine whether the attorney/arbitrator evidenced an actual bias in favor of Nationwide. Judge Van der Voort, in an opinion joined by then President Judge Watkins, stated that the award should be vacated and the matter remanded for the appointment of a new panel of arbitrators, since it was felt that prior representation of a party by an arbitrator should require disqualification of that arbitrator upon objection by the opposing party. Thus, according to Judge Van der Voort, no showing of actual bias was required. In dissent, Judge Price, joined by Judge Jacobs, stated his belief that partisan appointments were permissible and that the award should be confirmed.

Allocatur was granted and our Supreme Court adopted the per se rule espoused by Judge Van der Voort, and, therefore, vacated the award and remanded for the appointment of a new panel of arbitrators. Thus, it was held that when a contract calls for “disinterested” arbitrators, the prior representation of one of the parties by a designated arbitrator will disqualify that arbitrator upon objection by the opposing party, In reaching this determination, the Supreme Court stated:

As a common law arbitration award cannot be reversed for either a mistake of law or fact, we believe it best to avoid even a hint of impropriety when a contract calls for a “disinterested” arbitrator.

Bole v. Nationwide Insurance Company, 475 Pa. at 190, 379 A.2d at 1348.

The Supreme Court then cited to Judge Van der Voort’s opinion:

“Because they are the final decision-makers on the law and the facts of the case, whose decision is final absent fraud or misconduct, arbitrators under common law stand as judges. Their function is judicial, and their conduct must be robed in judicial impartiality.”

Id., quoting Bole v. Nationwide Insurance Company, supra, 238 Pa.Super. at 147, 352 A.2d at 479.

Our reading of Bole leads us to conclude that a showing of a direct relationship between a party to an arbitration proceeding and a designated arbitrator must be shown, such as the existence of a prior employer-employee or attorney-client relationship, before the requisite partiality of that arbitrator is established. Therefore Appellant’s claim that the trial court ignored the contractual language in the insurance contract is without merit since the trial court, in its opinion, cited to Bole and its discussion of the contractual language “competent and disinterested arbitrators.” We see no distinction between the meaning of “disinterested” and “impartial,” such that a different result is required.

We will not extend such allegations of partiality to an alleged “indirect connection” with a party to arbitration. To do so would invite any dissatisfied claimant to allege partiality on the part of the opposing party’s arbitrator and thus require court supervision of arbitration. This is contrary to the purposes of arbitration. See Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (arbitration is favored because it provides “an expeditious and inexpensive method of resolving disputes with the further winning attribute of helping to ease congested court calendars”).

Finally, we find no error with regard to the trial court’s denial of the motion to compel discovery. The trial court did direct Mr. Freedman to answer interrogatories relating to whether he had ever been employed by Appellee or its insureds. Given the above law as to partiality, this was all to which Appellant was entitled. While discovery should be liberally allowed, “fishing expeditions” are not to be countenanced under the guise of discovery. In re Thompson’s Estate, 416 Pa. 249, 206 A.2d 21 (1965).

Judgment affirmed.

      . 5 P.S. §§ 161-179 (Purdon 1963) (repealed) and 42 Pa.C.S.A. §§ 7301-7320 (Purdon 1982), respectively.

      . In a dissenting opinion to the Supreme Court’s decision in Bole, Justice Roberts, joined by then Justice Nix, stated the belief that the partiality of an arbitrator, due to the arbitrator's prior representation of one of the parties, was not a matter which met the common law standard of "show[ing] by clear, precise, and [¡Indubitable evidence that he was denied a hearing, or that there was fraud, misconduct, corruption, or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable, or unconscionable award ..." Bole v. Nationwide Insurance Company, supra, 475 Pa. at 193, 379 A.2d at 1349, quoting Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 114, 299 A.2d 585, 588 (1973).

      . We note that Bole was decided prior to the enactment of the 1980 Act, supra. The 1980 Act does provide for the vacation of an award where “there is evident partiality by an arbitrator appointed as neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party.” 42 Pa.C.S.A. § 7314(a)(1)(H). Mr. Freedman was not the neutral arbitrator in the present case. However, Appellant’s argument is entirely directed to partiality rather than corruption or misconduct. As Appellant has not even referred to this section in arguing the matter, we will not address it further.

      . Appellant, citing to Allstate Insurance Co. v. Fioravanti, supra, states that the requested discovery was needed in order to prove collusion between Mr. Freedman and Appellee. However, such evidence is relevant to proving fraudulent conduct on the part of an arbitrator. Id. Appellant has made no such allegation in the present case.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    600 A.2d 608
    Lisa STEINBACHER, Appellant, v. John PAGE, Jr., John Page, Sr. and American States Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued June 20, 1991.
    Filed Dec. 18, 1991.
    Melinda F. Nowak, Lancaster, for appellant.

      Mark E. Lovett, Lancaster, for appellee American States Ins.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   WIEAND, Judge:

Lisa Steinbacher was injured on August 11, 1986, when her vehicle collided with a 1974 Pontiac Firebird owned by John Page, Sr., and operated by John Page, Jr., in Lower Paxton Township, Dauphin County. She filed an action against the driver, alleging negligent operation of the vehicle, and against the owner, alleging negligent entrustment. She also sought a declaratory judgment that American States Insurance Company (American States) was obligated to provide coverage pursuant to a policy of automobile insurance which it had issued to John Page, Sr., the owner. American States denied coverage. Depositions were taken in the declaratory judgment action, the parties stipulated that the facts were not in dispute, and the case was submitted to the trial court for decision on cross-motions for summary judgment. The trial court found that there was no coverage and entered judgment in favor of American States. Steinbacher appealed.

The insurance policy issued by American States provided coverage for four vehicles owned by John Page, Sr. from July 24, 1986 to January 24, 1987. The 1974 Pontiac Firebird was not one of the vehicles for which coverage was purchased. The Firebird had been purchased on May 27, 1986, and was titled in the name of John Page, Sr. He had purchased the same for his youngest son, Troy, who would not reach his sixteenth birthday until January, 1987. Because the car was not to be driven on the public highways until that time, Page did not include it among those automobiles for which he purchased insurance.

On August 10, 1986, Page gave permission to his son, John, Jr., to take the 1974 Pontiac Firebird to school on the following day because John, Jr.’s car had broken down. The owner-father intended to call his insurance agent on the morning of August 11, 1986, to list the Firebird as a covered vehicle, but he failed to do so until two days later. Meanwhile, the accident had occurred. Steinbacher argues that coverage nevertheless existed.

Whether a loss is within policy coverage is an issue of law, which may be decided on motion for summary judgment. Neil v. Allstate Ins. Co., 379 Pa.Super. 299, 302, 549 A.2d 1304, 1305 (1988), allocatur denied, 522 Pa. 578, 559 A.2d 38, 39 (1989); Creed v. Allstate Ins. Co., 365 Pa.Super. 136, 140, 529 A.2d 10, 12 (1987), allocatur denied, 517 Pa. 616, 538 A.2d 499 (1988). In making this determination, we examine and resolve the intent of the parties as expressed in the insurance contract. See: Donegal Mut. Ins. Co. v. Long, 387 Pa.Super. 574, 595, 564 A.2d 937, 948 (1989), allocatur granted, 525 Pa. 657, 582 A.2d 323 (1990). Where the policy provisions are unambiguous, the courts must give effect to the language used. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983); Neil v. Allstate Ins. Co., supra, 379 Pa.Superior Ct. at 311, 549 A.2d at 1309; Huffman v. Aetna Life & Casualty Co., 337 Pa.Super. 274, 281, 486 A.2d 1330, 1334 (1984).

The policy terms defining a covered automobile in the instant case were as follows:

“Your covered auto” means:
(a) Any vehicle shown in the Declarations.
(b) Any vehicle of which you acquire ownership during the policy period provided:
1. If the vehicle you acquire is a family car or trailer, you must ask us to insure it either during the policy period or within thirty days after you become the owner.
2. If the vehicle you acquire is not a family car or trailer, you must ask us to insure it within thirty days after you become the owner. If the vehicle replaces one shown in the Declarations, you have to ask us to insure it within thirty days only if you wish Damage to Your Auto Coverage to apply to the replacing vehicle. Under (b) 1 and 2 your covered auto does not include any vehicle for which you have other insurance. It also does not include any additional vehicle of which you acquire ownership during the policy period unless we insure all the vehicles you own as of the date you become the owner of an additional vehicle.
(c) Any trailer you own.
(d) Any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its breakdown, repair, servicing, loss or destruction.

The 1974 Pontiac Firebird was not a vehicle “shown in the Declarations” and was not a vehicle which the insured had asked the company to insure. The Firebird also could not qualify as a “temporary substitute” vehicle because it was owned by the insured. Only a vehicle not owned by the insured could be a “temporary substitute” vehicle. This language was clear and unambiguous. The 1974 Pontiac Firebird was not a covered vehicle.

Appellant argues that John Page, Sr., and John Page, Jr., were nevertheless “covered persons” under the policy. John Page, Sr., was clearly a “covered person.” However, he was not covered for an accident involving the 1974 Pontiac Firebird, for such coverage was specifically excluded. Under exclusion $ 10, the insurer “[did] not provide Liability Coverage:”

10. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.

It is clear, therefore, that the policy provided no liability coverage for the ownership or use of any vehicle owned by the named insured other than those which were covered by the policy. The 1974 Pontiac Firebird was owned by John Page, Sr., and it was not a covered vehicle. Exclusion $ 10 was applicable to exclude liability coverage on the vehicle irrespective of the identity of the person using the vehicle. Accord: Bohannon v. Aetna Casualty & Sur. Co., 166 Cal.App.3d 1172, 1175, 212 Cal.Rptr. 848, 850 (1985).

The exclusion had equal application to John Page, Jr. The exclusion, as the trial court sagely observed, did “not depend in any way on who is using the vehicle and to so construe [the exclusion] would torture [its] plain meaning.” The vehicle was owned by the named insured and was not a covered vehicle. With respect thereto, there was no liability coverage. Accord: Bohannon v. Aetna Casualty & Sur. Co., supra at 1175, 212 Cal.Rptr. at 850.

Exclusion $ 11 referred to vehicles owned by or furnished or available for the regular use of any family member. It had no application to the facts of the instant case. The 1974 Pontiac Firebird was neither owned by a family member nor available for the regular use of a family member. Even if it were, however, there would be no liability coverage. The vehicle was not a covered vehicle and did not become a covered vehicle merely because it was used by a family member.

The policy did not provide coverage for John Page, Sr., with respect to Steinbacher’s claim that he negligently entrusted the 1974 Pontiac Firebird to John Page, Jr. Such coverage was provided by the policy only “with respect to legal responsibility for acts or omissions of you [the named insured] or any family member for whom coverage is afforded under this Part [A].” (emphasis added). As we have already observed, no liability coverage was afforded with respect to a cause of action by a third person arising out of the use of the 1974 Pontiac Firebird on August 11, 1986.

Judgment affirmed.


author: MONTGOMERY, Judge. POPOVICH, Judge,

text:
    600 A.2d 610
    Kevin H. BAESEL, Appellant, v. NEW BOULEVARD BAKING COMPANY, INC. and Market Construction Company, Inc. and Hill Creek Farms, Inc. and Northeast Foods, Inc. and Philadelphia Baking Company and Grant Avenue Associates and U.S. Roofing Corporation and N.M.I. Companies, Appellees. Kevin H. BAESEL v. NEW BOULEVARD BAKING COMPANY, INC. and Market Construction Company, Inc. and Hill Creek Farms, Inc. and Northeast Foods, Inc. and Philadelphia Baking Company and Grant Avenue Associates and U.S. Roofing Corporation and N.M.I. Companies. Appeal of HILL CREEK FARMS, INC.
    Superior Court of Pennsylvania.
    Argued July 16, 1991.
    Filed Dec. 24, 1991.

      Philip H. Rush, Philadelphia, for appellant (at 2622).
    Bernard J. McLafferty, Philadelphia, for New Blvd. Baking, Market Constr., Northeast Foods & Philadelphia Baking, appellees.
    Teresa F. Sachs, Philadelphia, for Hill Creek Farms, appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

These consolidated appeals arise from two orders of the trial court which granted motions for summary judgment. This action was instituted in the trial court by Kevin H. Baesel, seeking damages against six named defendants, for alleged negligence in permitting the roof structures of a building in which plaintiff was employed to remain in disrepair, so as to allow water to leak therefrom onto the floor of the premises. Mr. Baesel asserted that he suffered injuries as a result of a fall purportedly caused by the collection of water on that floor.

Defendant Hill Creek Farms, Inc. (hereinafter “Hill Creek”) moved for and was granted summary judgment, as to the claims of the plaintiff, and against all other parties, on the grounds that it was a landlord out of possession of the premises and could not be held liable for any failure to repair or maintain the leased premises, and that it did not create or otherwise cause the leak in question. Plaintiff Baesel has appealed from the order of the trial court which granted summary judgment to Hill Creek, and that appeal is docketed at No. 2622 Philadelphia, 1990.

The other appeal now before our court was filed by Hill Creek, from a trial court order which granted summary judgment to defendants New Boulevard Baking Company, Inc. (hereinafter “New Boulevard”) and Philadelphia Baking Company. New Boulevard was the employer of the plaintiff and the lessee of the building at the time that the plaintiff allegedly sustained his injuries. Defendant Philadelphia Baking Company was alleged to be the parent of or otherwise in a close corporate relationship with New Boulevard. Hill Creek’s appeal from the trial court order which granted summary judgment and dismissed claims against both New Boulevard and Philadelphia Baking Company is based upon the contention that such an order may have improperly adjudicated rights and obligations of Hill Creek, vis-a-vis New Boulevard and Philadelphia Baking Company. The appeal of Hill Creek is docketed at No. 474 Philadelphia, 1991.

Under Pa.R.Civ.P. 1035, summary judgment is available when the pleadings, depositions, answers to interrogatories, admissions on file, and supporting affidavits considered together, reveal no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986). To determine the absence of a genuine issue of material fact, the appellate court must view the evidence in the light most favorable to the non-moving party, and any doubts must be resolved against the entry of the summary judgment. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). Summary judgment is appropriate only in those cases which are clear and free from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). In essence, when we review an order granting summary judgment, it is our function to determine whether there exists any genuine issue of triable fact. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976).

Mindful of these concepts, we first address the appeal filed by the plaintiff from the order which granted summary judgment against Hill Creek. Although the plaintiff raises a number of contentions, our concern is most significant about the assertion that the trial court erred in granting summary judgment to Hill Creek prior to the time that Hill Creek had responded to the plaintiffs discovery requests, including two sets of interrogatories and two sets of requests for production of documents.

Our review of such discovery requests shows that they sought, inter alia, responses concerning a variety of matters pertaining to the inspection, maintenance and repairing of the premises, the identity of persons responsible for same, the identity of those who may have observed any defects or improper conditions, the dates of each observation, examination or inspection, policies followed with regard to inspection, and other similar information. The plaintiff has asserted that he requested that the trial court not rule on the Hill Creek motion for summary judgment until the time that Hill Creek responded to the plaintiffs discovery requests. In support of his opposition to Hill Creek’s motion for summary judgment, the plaintiff filed a reply, in the trial court, in which it was specifically noted that there was outstanding discovery which might establish that Hill Creek had actual authority and control over the area in which the plaintiff was injured at the time of such injuries and prior thereto. Further, in opposition to Hill Creek’s motion for summary judgment, it appears that the plaintiff submitted copies of the unanswered interrogatories and requests for production of documents. In its brief to our court, Hill Creek does not dispute the plaintiff’s assertion that the trial court ruled on Hill Creek’s motion for summary judgment prior to any response by Hill Creek to the plaintiff’s aforementioned discovery requests. Rather, Hill Creek merely contends that its responses to such discovery requests would have been irrelevant in the trial court’s disposition of Hill Creek’s motion for summary judgment.

Our review of the record convinces us that the plaintiff’s discovery requests to Hill Creek sought information, in part, which would have been arguably germane to the issues presented by the Hill Creek motion for summary judgment. A landlord out of possession of premises may be held liable for harm caused to others as a result of the condition of the premises in certain limited circumstances. See Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200 (1986). These include situations in which a lessor fails to make repairs after having been given notice of and a reasonable opportunity to correct a dangerous condition existing on the premises. Id. Thus, it is apparent that the trial court, in granting summary judgment prior to the time when the plaintiff was furnished with any responses to such discovery requests, could not be assured that there was no genuine issue of material fact, and that Hill Creek was entitled to judgment as a matter of law, as required by Pa.R.Civ.P. 1035(b).

In such circumstances, we are constrained to conclude that the trial court abused its discretion in ruling on the Hill Creek request for summary judgment prior to the time that Hill Creek filed responses to the plaintiff’s discovery requests. Therefore, we must vacate the trial court’s order which granted Hill Creek’s motion for summary judgment, and remand this case to the trial court for further proceedings.

Turning to the appeal filed by Hill Creek, at number 474 Philadelphia, 1991, it is apparent that our court cannot address the issues raised, in light of our decision to vacate the trial court order which granted summary judgment in favor of Hill Creek. Hill Creek’s appeal from the trial court order which granted summary judgment to New Boulevard and Philadelphia Baking Company rests upon contentions that the prior court order granting Hill Creek summary judgment foreclosed that court from entering any subsequent summary judgment in favor of New Boulevard and Philadelphia Baking Company which might affect the interests of Hill Creek. In such circumstances, we must rule that the appeal filed by Hill Creek at No. 474 Philadelphia, 1991 presents issues not ripe for appellate review. Accordingly, without prejudice to any effort by Hill Creek to address such contentions to the trial court, or to our court at some later stage of the proceedings in this case, at which it may be appropriate to do so, the appeal filed by Hill Creek must be dismissed.

With respect to Appeal No. 2622 Philadelphia, 1990, the order of the trial court granting summary judgment to Hill Creek Farms, Inc. is vacated and the record is remanded for further proceedings not inconsistent with this Opinion. Appeal No. 474 Philadelphia, 1991 is dismissed without prejudice. Jurisdiction is not retained.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Unlike the Majority, my review of the record indicates that the court below was presented with sufficient information (absence of a genuine issue of material fact) to grant Hill Creek Farms, Inc.’s motion for summary judgment. Accordingly, for the reasons that follow, I respectfully dissent.

This case involves dual appeals (consolidated for disposition) taken from orders granting motions for summary judgment: The first is from the August 23, 1990, order entered against the plaintiff/appellant, Kevin Baesel; the second concerns the order dated December 31, 1990, issued against the defendant/appellant, Hill Creek Farm, Inc. In both instances, I would affirm.

In reviewing the grant of a motion for summary judgment, one looks to the following standard; to-wit:

[A mjotion for summary judgment may be granted 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.Civ.P. 1035(b). In passing on a motion for summary judgment, this Court will view the record in the light most favorable to the nonmoving party. In doing so, we accept as true all well-pleaded facts in the appellants’ pleadings and give appellants the benefit of all reasonable inferences drawn therefrom. Summary judgment is appropriate only in those cases which are free from doubt.

Dublin v. Shuster, 410 Pa.Super. 1, 5, 598 A.2d 1296, 1298 (1991). The record discloses that a two-count complaint was filed against six named defendants, one of whom was Hill Creek Farms, Inc., for negligence in allegedly permitting the roof of a building in which the plaintiff was employed to remain in disrepair so as to allow water to leak therefrom onto the floor of the premises.

It was the plaintiff’s assertion that, while employed by New Boulevard Baking Co./lessee of the building, he sustained injury when he slipped and fell on a wet floor.

In the pleadings that followed, the appellant/Hill Creek Farms, Inc., the lessor of the property, claimed that it was insulated from liability as a “landlord out of possession.” And, more importantly, New Boulevard was charged with entering into an Agreement of Lease in which, at Section 5, it obligated itself (as the lessee) “to make all necessary structural and non-structural repairs, ordinary and extraordinary, foreseen or unforeseen, interior and exterior.” This was buttressed by way of affidavit given by Linda McNulty, the general manager of Hill Creek, who was familiar with lease agreements and all repairs or maintenance conducted by Hill Creek. Additionally, McNulty’s affidavit averred that Hill Creek did not affect any repairs or maintenance on the premises leased to New Boulevard Baking Co. Nor did Hill Creek represent that it would effect any repairs to the property. Paragraph 10.

Lastly, of interest to me is the Memorandum of Law filed by the plaintiff’s employer, New Boulevard Baking Co., in support of its own motion for summary judgment as a named co-defendant.

New Boulevard Baking Co. references Section 5 (captioned “Repairs & Maintenance”) as obligating itself “to make all necessary structural and non-structural repairs, ordinary and extraordinary, foreseen or unforeseen, interior and exterior.”

Moreover, in seeking to exclude its parent company (Co-Defendant Northeast Foods, Inc.) from liability to the plaintiff, New Boulevard argued:

The reason Northeast would have no factual liability as a matter of law is because ... Northeast’s subsidiary New Boulevard assumed all responsibilities for repairs and maintenance of the premises, including structural and non-structural repairs, ordinary and extraordinary, foreseen or unforeseen, interior and exterior. See Section 5 of the Lease Agreement, Exhibit “F”. [Emphasis added]

With the submission of the preceding Memorandum of Law, the pleadings came to a close. This was followed with an order and opinion granting Hill Creek’s motion for summary judgment on the basis that:

In the case at bar, Hill Creek was physically out of of possession of the bakery and never controlled or maintained it, during the eleven (11) years it was leased to Plaintiff’s employer, New Boulevard Baking Co., Inc. Hill Creek specifically provided in the lease with Plaintiff’s employer, New Boulevard, that the latter as the tenant would be responsible for making all repairs to the property. Hill Creek therefore was not only physically out of possession of the bakery, but additionally, granted its tenant complete control over the premises to effect interior and exterior repairs.

Lower Court Opinion at 2-3. A timely appeal followed in which the plaintiff challenged the grant of Hill Creek’s motion for summary judgment. In like fashion, the plaintiff’s employer’s motion for summary judgment was timely appealed by Hill Creek.

The first issue to be addressed relates to the plaintiff’s claim that Hill Creek was not a landlord completely “out of possession”. Rather, the plaintiff argues there was evidence that Hill Creek retained possession and control over the defective portion of the premises (i.e., the roof on which rested equipment damaged in a fire linked to the leak) through a combined reading of the “Utility Use Covenant”, which explicitly reserved control of all the utility areas in Hill Creek, and Sections 7 and 5 of the lease, in which Hill Creek agreed to supply all utilities necessary for the tenant’s use and “do all things necessary to cause such repairs and/or maintenance be accomplished____” See Plaintiff’s Appellate Brief at 20.

Let us assume, for the sake of argument, that the “Utility Use Covenant” and “Agreement of Lease” encompass the equipment on the roof of the leased premises such that Hill Creek could have been subject to maintain and repair the equipment. Nonetheless:

“ ‘It is ... settled law that an agreement to repair does not impose upon the owner a liability in tort at the suit of the tenant; and that occupation and control are not reserved to the owner by his agreement to repair.’ ”

Kolojeski v. John Deisher, Inc., 429 Pa. 191, 239 A.2d 329, 330 (1968) (Citation omitted). Therefore, the mere fact that Hill Creek may have agreed to make repairs to the leased building if the lessee failed to do so does not subject it to liability. Id.

Subpart B of the plaintiff’s first issue attempts to assign accountability to Hill Creek for the injuries incurred because it allegedly had notice of the condition (leaky roof), a duty to repair it and a reasonable opportunity to do so. This argument is undermined inasmuch as the “duty” made reference to by the plaintiff, to obligate supposedly Hill Creek to repair the roof, is voided by the fact that “[reservation by a lessor of the right to enter upon the leased premises ... implies no reservation of control over the premises which will render him chargeable with their maintenance and repair.” Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200, 1202 (1986). Since Hill Creek cannot be “charged” with maintenance of the demised premises, the underlying rationale (“obligation’Vduty) to do so is obviated. Id.

In Subpart C of the plaintiff’s first issue, he attempts to assign liability to Hill Creek as a landlord out of possession on the ground that the condition of the premises constituted a nuisance per se, i.e., because the roof allegedly leaked for over two years this gave rise to a duty on the part of Hill Creek to abate the nuisance by making the necessary repairs.

The plaintiff acknowledges that six exceptions exist to hold an out of possession landlord responsible for injuries suffered by an individual on leased premises; they are:

A landlord out of possession may incur liability (1) if he has reserved control over a defective portion of the demised premises ...; (2) if the demised premises are so dangerously constructed that the premises are a nuisance per se ...; (3) if the lessor has knowledge of a dangerous condition existing on the demised premises at the time of transferring possession and fails to disclose the condition to the lessee ...; (4) if the landlord leases the property for a purpose involving the admission of the public and he neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee ...; (5) if the lessor undertakes to repair the demised premises and negligently makes the repairs ... ; or (6) if the lessor fails to make repairs after being given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased premises____”

Henze, supra, 352 Pa.Super. at 541-42, 508 A.2d at 1202 (Citations omitted).

As conceded by the plaintiff, none of the preceding exceptions is applicable to the case at bar. His importuning that “the exceptions] should ... extend to situations where the landlord has actual knowledge of a dangerous condition, and knowledge that the tenant is not making an effort to cure it, thereby endangering third parties” is unpersuasive. The recourse in such a situation is against the lessee not the “out of possession” landlord. No case law has been cited to us by the plaintiff to convince us otherwise.

In the last of the plaintiffs contentions, he writes:

THE TRIAL COURT ERRED BY RULING ON HILL CREEK’S MOTION FOR SUMMARY JUDGMENT, DESPITE PLAINTIFF’S REQUEST THAT THE COURT FORBEAR PENDING RECEIPT OF HILL CREEK’S ANSWERS TO INTERROGATORIES AND REQUESTS FOR DOCUMENTS

I disagree.

From my review of the record certified to this Court, as concerns the discovery process in this suit, plaintiff has directed approximately 1,380 interrogatories (including sub-parts) and two Requests for Production of Documents to Moving Defendants, all of which have been responded to by the parties. Therefore, the plaintiff cannot claim that he has not had sufficient opportunity to obtain information to present the best possible case to buttress his complaint. See also Memorandum of Law of New Boulevard Baking Co. (plaintiff’s employer) in support of its Motion For Summary Judgment at 8, n. 1.

Having reviewed the record against the backdrop of the applicable law, I find no merit to any of the plaintiff’s claims. Similarly, I hold that Hill Creek’s assault of the lower court’s entry of a motion for summary judgment in favor of the plaintiff’s employer (Boulevard Baking Co.) is moot given the fact that Hill Creek, having had its motion for summary judgment granted and affirmed on appeal, is not aggrieved by the dismissal of Boulevard Baking Co. from the lawsuit by means of the grant of its motion for summary judgment. Since it would no longer be a party to the suit upon the grant of its motion for summary judgment, it should not be heard to complain that the award of the same motion to the co-defendant/Boulevard Baking Co. is appealable.

      . The docket entries in the case indicate that there was an outstanding order of court granting a motion by the plaintiff to compel defendants to answer the plaintiffs discovery requests when the court granted Hill Creek’s motion for summary judgment. However, it is not clear to whom that order was directed.

      . Even without the benefit of responses by Hill Creek to the plaintiffs discovery requests, a close question is raised as to whether the matters of record and discovery materials available to the trial court at the time of its prior disposition of the Hill Creek motion for summary judgment should have compelled the denial of that motion. Although it was a landlord out of possession at the time of plaintiffs injury, the lease provisions showed that Hill Creek retained an obligation to maintain and repair utility equipment at the leased structure. The plaintiff contended that the defect which caused water to leak into the building was related to and in an area of the roof where certain equipment existed which had been damaged by an earlier fire. The plaintiff took the position that such equipment, including cooling towers, exhaust and ventilation units and ducts, and other related equipment and structures, were under the control of Hill Creek, and part of its repair responsibilities under the utility equipment provisions of the lease between Hill Creek and New Boulevard, the plaintiffs employer. While there may be a question as to the ultimate merit of the plaintiffs position on that point, some doubt arises as to whether there is a sufficient absence of a genuine issue of material fact about it to justify the trial court’s entry of summary judgment in favor of Hill Creek. However, inasmuch as the trial court has not, in our view, reviewed pertinent responses to plaintiffs discovery requests from Hill Creek, which may bear on these matters, it would be inappropriate for our court to attempt to address the substantive merits of the Hill Creek motion for summary judgment on what is clearly an incomplete record.


text:
    600 A.2d 616
    Helen NOVAK, Guardian of the Person and Guardian of the Estate of Steven E. Novak, Jr., an Alleged Incompetent, Appellant, v. JEANNETTE DISTRICT MEMORIAL HOSPITAL, Norwin Convenient Care Center, Prack and Cerasini, Architects, Inc., Commonwealth of Pennsylvania, Department of Transportation, Highway Division, Raymond J. Switalski and Shirleyann Granata, Appellees, v. DILL CONSTRUCTION COMPANY, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 20, 1991.
    Filed Dec. 24, 1991.

      James Gillespie, Pittsburgh, for appellant.
    G. Jay Habas, Pittsburgh, for appellee Jeannette Dist. Memorial Hosp.
    W. Arch Irvin, Jr., Pittsburgh, for appellees Prack & Cerasini.
    Paul W. Roman, Jr., Pittsburgh, for appellee Dill Const.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

On May 12, 1987, at or about 6:00 p.m., Shirleyann Granata was attempting to enter Route 30, a four lane highway in Westmoreland County, from the driveway of Norwin Convenient Care Center. After looking in both directions, she began to pull out, only to observe a motorcycle approaching rapidly from her left. When she again stopped, the motorcycle, which was being operated by Steven E. Novak, Jr., swerved into the inner lane for opposing traffic and collided with an oncoming vehicle being driven by Raymond Switalski. Novak was seriously injured in the accident, and his guardian commenced an action to recover for those injuries.

In addition to the operators of the several vehicles, the guardian named as defendants the Norwin Convenient Care Center; the care center’s parent corporation, Jeannette District Memorial Hospital; Prack and Cerasini, Architects, Inc.; and Dill Construction Company, Inc. These defendants were named as parties because of the following circumstances. In 1983, the care center went into business on land which previously had been a fast food restaurant. In 1986, various improvements were made. One of these improvements entailed the closing of a driveway situated on the western part of the property. This left only a single driveway, located in the central part of the tract, for vehicles entering and leaving the care center. Prack and Cerasini were the architects who had designed and Dill Construction Company was the contractor who had made the improvements. The appellant guardian contends that the westernmost driveway was a safer exit, and that its closing created a hazardous condition because of vehicles exiting on the central driveway. The central driveway, however, was not altered in any manner by the design or construction of the improved care center. The trial court held that the closing of the westernmost driveway was not a proximate cause of Novak’s injuries and entered summary judgments in favor of the hospital, the care center, the architect and the contractor. Novak’s guardian appealed. We affirm.

A 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 a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Persik v. Nationwide Mutual Insurance Co., 382 Pa.Super. 29, 31, 554 A.2d 930, 931 (1989), allocatur denied, 522 Pa. 613, 563 A.2d 499 (1989); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Persik v. Nationwide Mutual Insurance Co., supra, citing Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983) and Dunn v. Teti, 280 Pa.Super. 399, 402, 421 A.2d 782, 783 (1980).

In general, causation is an issue of fact for the fact finder. However, we are not here concerned with causation in fact. We are here concerned with an issue of proximate cause. This is essentially an issue of law, i.e., whether the defendant’s negligence, if any, was so remote that, as a matter of law, he cannot be held legally responsible for harm which subsequently occurred. Flickinger Estate v. Ritsky, 452 Pa. 69, 74, 305 A.2d 40, 43 (1973), quoting W. Prosser, Law of Torts § 49, at 282 (1964). See also: Prosser and Keeton, The Law of Torts (fifth edition) § 42, at 273 (1984). A determination of legal causation “depends on whether the conduct has been so significant and important a cause that the defendants should be legally responsible____ [TJhey depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Prosser and Keeton on Torts, supra.

In the instant case, the improving of the care center, including the vacating of a second, westernmost driveway, was entirely too remote to permit liability for the plaintiff-appellant’s injuries to be premised thereon. To believe that the accident in this case would have been avoided by a second driveway, even if the visibility from such driveway would have been superior, is to subsume probability in speculation. The manner in which the operators of the moving vehicles conducted themselves, rather than geography, was the effective and superseding cause of Novak’s injuries. The combination of events leading to the accident was an entirely unforeseeable consequence of an earlier decision to remove a second driveway from the western side of the care center’s property. This is particularly so here, where all witnesses were agreed that the operators, Granata, Novak and Switalski, had unobstructed views of the highway prior to the accident.

Appellant argues that an issue of fact was created by information contained in a report prepared by her expert and submitted to the trial court after argument of the motions for summary judgment. A copy of this report is not among the documents forwarded to this Court for review; and, therefore, we do not consider it. Moreover, in view of our decision, which is based on legal or proximate cause rather than causation in fact, the report by appellant’s expert can have no effect.

The summary judgments entered in favor of Jeannette District Memorial Hospital, Norwin Convenient Care Center, Prack and Cerasini, Architects, Inc., and Dill Construction Co., Inc. are

Affirmed.

      . Appellant argues that a permit from PennDOT was necessary to close the second driveway, but PennDOT’s answers to interrogatories state that no such permit was necessary. It is of no consequence to our decision whether or not a permit from PennDOT was necessary to close the second driveway.


author: MONTEMURO, Judge:

text:
    600 A.2d 619
    In re ESTATE OF Lloyd F. LONG. Appeal of Elva Marie KENNEDY.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed Jan. 2, 1992.

      Christopher C. Houston, Carlisle, for appellant.
    Gary E. French, Harrisburg, for participating party Long.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order dismissing the objection of appellant to the First and Final Account of the Estate of Lloyd F. Long. The appellant challenges the constitutionality of 20 Pa.C.S.A. § 2507(3) on the basis that the statute violates the Equal Protection and Due Process Clauses of the United States Constitution. The Court of Common Pleas of Cumberland County upheld the constitutionality of the statute, and we affirm.

The relevant facts are not in dispute and are as follows: Lloyd F. Long, decedent, executed a will on January 12, 1983. The decedent provided for his entire estate to be distributed equally among three individuals; Mary Long (decedent’s wife at the time the will was drafted), Paul Miller (decedent’s stepfather and executor of the will), and Elva Kennedy (decedent’s aunt and appellant in this action). The decedent subsequently divorced Mary Long on November 29, 1983, and married Teresa Long on August 16, 1987. On November 5, 1987, the decedent died leaving neither issue nor parents. Pursuant to 20 Pa.C.S.A. § 2507(3), Teresa Long elected to receive her intestate share which equals 100% of the probate estate.

Appellant claims that § 2507(3) violates the Equal Protection clause of the Fourteenth Amendment because it irrationally creates two classifications of surviving spouses; one where the testator married the surviving spouse after executing a will (“after-married spouse”), and one where the testator married the surviving spouse prior to executing a will. An after-married spouse is entitled to receive an intestate share of the estate, which can operate, as in the present case, to totally invalidate the gifts to the named beneficiaries in decedent’s will.

Initially, we note that the Commonwealth “has the power to enact all manner of legislation with respect to wills and trusts subject, of course, to the rights and limitations ordained in the Constitution of the United States and the Constitution of Pennsylvania.” In re Estate of Scott, 418 Pa. 332, 336, 211 A.2d 429, 431 (1965). Furthermore, there is a strong presumption that statutes enacted by the legislature are constitutional. Therefore, appellant “bears the burden of demonstrating that the statute ‘clearly, palpably and plainly’ violates the Constitution. Doubts are to be resolved in favor of sustaining the legislation.” Estate of Cox, 327 Pa.Super. 479, 485, 476 A.2d 367, 370-71 (1984) (quoting Hayes v. Erie Insurance Exchange, 493 Pa. 150, 154, 425 A.2d 419, 421 (1981)).

The equal protection clause does not deny the legislature the power to treat different classes of persons in different ways, rather it requires that the classification meet the appropriate degree of constitutional scrutiny. Cox, 327 Pa.Superior Ct. at 486, 476 A.2d at 371.

Where the challenged statute impinges upon a fundamental right or liberty or concerns a ‘suspect class’, the court is to undertake a ‘strict scrutiny’ of the law. An intermediate standard of review ... is employed when the questioned state affects a ‘quasi suspect’ classification. Finally, where the statutory classification concerns neither a suspect nor quasi suspect category nor fundamental rights or liberties, a minimal standard of review is to be employed.

Id.

Appellant concedes that the minimal standard or rational basis test is applicable. Thus, our review is limited to determining whether § 2507(3) is rationally related to a legitimate state purpose. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974) (employing the rational basis test to determine the constitutionality of Mortmain statute). “This deferential standard mandates only that the statutory classification be ‘reasonable’ and ‘rest upon a difference having a fair and substantial relation to the object of the legislation.’ ” Estate of Cox, 327 Pa.Super. at 487, 476 A.2d at 371 (quoting Snider v. Thornburg, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); F.S. Royster Guano Company v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920)).

There is little doubt that the Commonwealth has a legitimate state interest in protecting an after-married spouse. As the trial court noted:

The most obvious purpose behind § 2507(3) is to protect a surviving spouse from the negligence of the decedent in failing to update his will after marriage. The statute makes a presumption that had the decedent thought about it, or had a chance, he would have provided for his current spouse. It is clear that this is a legitimate purpose.

(T.C.O. at 10). Furthermore, this goal is well within the legislature’s power to enact legislation limiting the right to inherit property. Estate of Cox, 327 Pa.Super. at 487, 476 A.2d at 371 (1984).

Thus, if the means employed in § 2507(3) are rationally related to protecting the surviving spouse from an unintentional omission, then the statute withstands constitutional scrutiny. The means employed in § 2507(3) are to give the surviving spouse the share of the estate that he would have received had the testator died intestate, unless the will gives him a greater share. Id. Since this is a rational means to protect an after-married spouse, the statute does not violate the equal protection clause.

Appellant argues that because the legislature has provided a spouse with an elective share, the after-married spouse is already protected from unintentional disinheritance, and therefore § 2507 serves no rational purpose. Since appellant does not challenge the legislature’s ability to provide an elective share, her only objection is that § 2507 affords a surviving spouse too much protection. This argument is essentially that the means selected by the legislature for protecting an after-married spouse work too well. As the 1956 Official Comment to § 2507(3) states:

The Model Probate Code makes no provision for the after-married spouse because it is considered that his right to take against the will is a full protection. Pennsylvania places the after-married in the more gracious position of receiving a full intestate share, including the spouse’s allowance (Shestack’s Estate, 267 Pa. 115 [110 A. 166], without requiring that there be an election to take against the will.

Id.

“Our scope of review is limited to questions of law. We may not sit as a super-legislature empowered to re-write legislation as we see fit nor is it within our province to judge the wisdom of the authors of challenged legislative enactments.” Lehigh Foundations v. Workmans Comp. Appeal Board, 39 Pa.Commw. 416, 395 A.2d 576, 579 (1978). Furthermore, “[i]t is beyond our scope of review to ascertain whether an alternative means would have more appropriately served the sovereign’s purpose.” Estate of Cox, 327 Pa.Super. at 489, 476 A.2d at 373. By questioning the amount of protection afforded an after-married spouse, appellant is asking this Court to pass on the wisdom of protecting the surviving spouse to the possible exclusion of the named beneficiaries. This we will not do. As such, we reject appellant’s equal protection argument.

Appellant’s second issue is that § 2507(3) violates the Due Process clause of the United States Constitution. Specifically, appellant argues that § 2507(3) creates an irrebuttable presumption that the testator would have revised his will after marriage to include his surviving spouse to a share at least equal to her intestate share, and that this presumption denies the named beneficiaries a property right without due process of law.

The flaw in appellant’s argument, however, is that the named beneficiary to a will does not have a property interest protected by the fourteenth amendment. In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974) (Pomeroy, J. dissenting). While it is true that the concept of property includes more than “the ownership of real estate, chattels, or money,” it does not encompass a mere expectation. Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). Rather for the due process protections to attach, appellant must have a legitimate claim of entitlement. Id.

As the trial court correctly explained, appellant only had a tenuous interest in receiving any property. Aside from the application of § 2507(3), a number of unpredictable events could occur to defeat the right of appellant to receive any of the testator’s estate. For example, the decedent could change his will, or the objector could have predeceased the decedent.

Furthermore, there is no claim of entitlement. “There is no natural right to receive property through a will. Any inheritance is accomplished through the legislature granting a person the power to will his property to another. In fact, it is even possible for the state to declare an escheat of all a decedent’s property.” (T.C.O. at 6) (citing Cavill, 459 Pa. 411, 329 A.2d 503 (1974) (Pomeroy, J. dissenting); Tack’s Estate, 325 Pa. 545, 191 A. 155 (1937). Thus, appellant does not have a property right protected by the fourteenth amendment.

Accordingly, we affirm the trial court, and hold that 20 Pa.C.S.A. § 2507(3) does not violate either the Equal Protection or Due Process Clauses of the United States Constitution.

Order affirmed.

      . Section 2507(3) provides:
      (3) Marriage. If the testator marries after making a will, the surviving spouse shall receive the share of the estate to which he would have been entitled had the testator died intestate unless the will shall give him a greater share. Id.

      . The intestate share is calculated by applying 20 Pa.C.S.A. § 2102(1). The intestate share of a decedent’s surviving spouse is:
      (1) If there is no surviving issue or parent of the decedent, the entire intestate estate. Id.


author: HOFFMAN, Judge:

text:
    600 A.2d 957
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles ROBINSON, Sr.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1991.
    Filed Oct. 31, 1991.
    Reargument Denied Jan. 13, 1992.

      Kemal A. Mericle, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Shelley Stark, Public Defender, Pittsburgh, for appellee.
    Before OLSZEWSKI, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This Commonwealth appeal is from an order granting appellee’s motion to suppress evidence seized in the search of his person and his vehicle. On appeal, the Commonwealth argues that the police officers who confronted appellee had a reasonable basis for stopping him and thus the evidence seized pursuant to the stop should not have been suppressed. For the reasons that follow, we agree, and, accordingly, we reverse the order below and remand for trial.

Appellee, Charles Robinson, Sr., was charged with one count each of possessing a firearm without a license and altering or obliterating marks of identification. A motion to suppress was filed on July 10, 1989, and a hearing was held on August 16, 1990. Testimony was taken that day and further argument was held on January 25, 1991. The suppression motion was granted on January 25, 1991 (N.T. at 27). The court held that the initial stop was illegal under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. This appeal followed.

When the Commonwealth appeals the adverse decision of a suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole that remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

In the instant case, the only testimony presented at the suppression hearing was that of Officer Hamman of the Pittsburgh Police Department. Her uncontradicted testimony established that on April 16, 1989 appellee was observed by Officer Hamman while on routine patrol. The officer saw appellee bending over into a van with a gun sticking out of the back of his shorts (N.T. at 12). Because of the presence of children in the area, the officer decided to drive down the street and discuss the situation with her partner (N.T. at 14). The officers turned their vehicle around, headed back toward appellee’s van, and stopped the van. Appellee, who was driving, was asked to exit the van. After he stepped out of the van, Officer Hamman informed appellee that she had seen a gun in the back of his pants. She performed a quick pat down of appellee and discovered a holster inside the back of his shorts. The officer then looked into the van and saw a gun lying on the right side of the floor beside the driver’s seat. The gun (a .38 caliber revolver) was loaded and had deep scratches through the serial numbers (N.T. at 19).

Preliminarily, we note that there is no dispute that Officer Hamman’s actions in stopping appellee constituted a stop under the Fourth Amendment. In the case of Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979), our Supreme Court stated that:

a policeman may legally stop a person and question him. But he may not without a warrant restrain that person from walking away ..., unless he has ‘probable cause to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped ... that the policeman may reasonably conclude that criminal activity was afoot____’ We must thus view the totality of the circumstances to determine whether appellee was being ‘stopped’ or was merely approached for allowable questioning by the officers.

Id., 484 Pa. at 215, 398 A.2d at 1021 (quoting Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342, 343 (1970)). See also Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977) (if citizen approached by officer is ordered to stop or is physically restrained, “stop” occurs). Here, appellant was driving his vehicle when he was stopped and ordered to exit by the officer. We find, therefore, that he was “stopped” under the Jones standard.

In limited circumstances, an individual may be stopped, briefly detained, and frisked for investigatory purposes. Commonwealth v. Prengle, 293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981). In order for such a stop to be reasonable under the Fourth Amendment to the United States Constitution, the police conduct must meet two separate and distinct standards. First, the police officer must point to specific and articulable facts which warrant the initial stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This standard is met “if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to believe that criminal activity may be afoot----” Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). Second, if the reasons for the stop meet the standard and, therefore, it is deemed reasonable for Fourth Amendment purposes, a police officer may frisk the individual to search for weapons. Again, such a belief must be based upon specific and articulable facts indicating that the person may be armed and dangerous. Id., 434 Pa. at 159, 253 A.2d at 279. An otherwise reasonable search may be tainted by an illegal stop or arrest. Wong Sun v. United States 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Johnson, 474 Pa. 512, 379 A.2d 72 (1977).

The Commonwealth contends that the officer had a reasonable basis to stop appellee based on her observation of the gun stuck in appellee’s pants and because the street was crowded with children. The trial court concluded, however, that the officer had no reasonable basis to believe criminal activity was afoot and that the subsequent stop and frisk was illegal thus making the evidence subject to suppression. The Commonwealth bears the burden of proving by a preponderance of the evidence that the seizure did not violate the Fourth Amendment. Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978).

While information sufficient to render a stop reasonable cannot be defined to a mathematical certainty, Pennsylvania courts have identified some situations that meet the Terry standard. In Commonwealth v. Mears, 283 Pa.Super. 416, 424 A.2d 533 (1981) our Superior Court held that just as probable cause for an arrest or search may be provided by an informant’s tip, so too an informant may provide valuable information which may lead to a justifiable Terry style stop and frisk. In Mears an officer stopped and frisked a defendant based upon an informant’s tip that a man fitting a certain description was seen on a particular corner armed with a gun. The court upheld the conviction stating that the stop was legal under the Fourth Amendment. See also Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988) (our Supreme Court held that a police officer had reasonable suspicion to conduct an investigatory stop where the officer had reason to believe he was searching for a suspect who was was armed based on an informant’s tip and the person stopped met the description).

The present case presents a stronger factual scenario than either Mears or Lagaña, since Officer Hamman personally observed the firearm secured in appellee’s waistband. The implicit foundation of both Mears and Lagaña is that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed. In the present case, Officer Hamman was acting upon a reasonable suspicion based upon her personal observation of the weapon in combination with her concern with the presence of children in the area.

The need to conduct an investigatory detention under the present facts clearly outweighs any harm which the stop and frisk entails. “In striking the balance between the public interest and the individual’s right to personal security free from arbitrary interference of law enforcement officials, the initial inquiry must focus upon the propriety of the initial restraint of appellant’s freedom of movement.” Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298, 1300-1301 (1978). We find that the initial restraint of appellees freedom was warranted under the circumstances and consequently find the stop to be legal under the Fourth Amendment.

Our next inquiry must be of whether the gun was in “plain view.” We find that it was. After making a lawful stop of appellee the officer observed the gun lying on the floor beside the driver’s seat. The officer was lawfully present at the vantage point and the discovery was inadvertent. We find the criteria for the plain view exception to be met and that the seizure was legal under the Fourth Amendment. Accordingly, we reverse the order of the lower court and the case is remanded for trial.

Order reversed, case remanded for trial, jurisdiction relinquished.

      . 18 Pa.C.S.A. § 6101.

      . 18 Pa.C.S.A. § 6117.

      . We note that the Commonwealth has certified that exclusion of the appellee's statement would substantially impair its prosecution of appellee. See Appellant’s Brief at 1. We will, therefore, entertain its appeal. See Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985).

      . The orthodox statement of the plain view exception is, that before the police may conduct a warrantless search or seizure of evidence in plain view: the police must be lawfully present at the vantage point from which the evidence is discovered; the discovery of the evidence must be inadvertent; and the probable evidentiary value of the evidence must be immediately apparent. Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372, 1382 (1988).


author: BECK, Judge:

text:
    600 A.2d 960
    WRENFIELD HOMEOWNERS ASSOCIATION, INC. v. Jonathan DeYOUNG and Janice DeYoung, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 14, 1991.
    Filed Dec. 12, 1991.

      John L. Walfish, King of Prussia, for appellants.
    Steven L. Sugarman, Paoli, for appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

The primary issue we address on appeal is whether a Homeowners Association may assess attorneys’ fees against a delinquent homeowner where the contract between the parties authorizes the Association to charge the delinquent homeowner with the cost of collection.

The trial court concluded the cost of collection included reasonable attorneys’ fees. We agree and affirm the judgment of the trial court.

Appellants Jonathan DeYoung and Janice DeYoung purchased a townhome in Wrenfield, a planned residential development in Montgomery County. As homeowners in Wrenfield, appellants are members of the appellee, Wren-field Homeowners Association, Inc. (“the Association”), and are bound by the Association’s recorded “Declaration of Covenants, Easements and Restrictions” (“Declaration”).

The Association’s annual budget, as prepared by its Board of Directors and approved by its members, determined the monthly assessment due for each unit was $435.09 (representing the general, insurance and maintenance assessments). In September 1987, when the De-Youngs made settlement on their townhome, they paid the Association their pro-rated portion of the monthly assessment due for September. However, the DeYoungs failed to pay any monthly assessments due October 1987 through October 1989.

On March 15, 1988, the DeYoungs wrote to the Association stating, without documentation, that the builder of Wrenfield had advised them that homeowner assessments would not be charged until at least one half of the residences were occupied. The Association denied having made any such arrangements with the DeYoungs or any other Wrenfield homeowner and continued to levy the monthly assessments. On August 25, 1988, when repeated notices of delinquency went unanswered, the Association wrote to the DeYoungs informing them of its decision also to impose a five dollar per day delinquency assessment as authorized by Article V, Section 5.2(e) of the Declaration. By a letter dated that same day, the DeYoungs notified the Association that they had a problem with bees nests on their property. This was the first time since failing to pay the monthly assessments that the DeYoungs complained about the Association’s delivery of services. Six days later, the DeYoungs wrote a second letter to the Association stating that they had hired an exterminator to remove the bees nests and also complaining about weeds and a hole in their lawn.

In October 1988, the Association brought the instant action against the DeYoungs. While the action was pending, the DeYoungs wrote various letters stating that the Association’s services, including gardening, snow removal and security, were inadequate at times.

After a lengthy bench hearing, the trial court found that the Association’s breaches, if any, were not material and, as such, did not excuse the DeYoungs from their obligation to pay the monthly assessments as provided for in the explicit terms of the Association’s Declaration. The trial court also found no evidence of a separate agreement which relieved the DeYoungs of their liability for homeowners’ assessments. In addition, the trial court held that where the Declaration authorized the Association to receive from delinquent homeowners the costs of collection, such authorization included reasonable attorneys’ fees. The trial court, therefore, returned a verdict in favor of the Association and against the DeYoungs. Judgment was entered and this timely appeal followed.

On appeal, the DeYoungs contend that the trial judge erred in (1) awarding attorney’s fees, in their full amount, to the Association; (2) precluding testimony by other witnesses proffered by the DeYoungs to bolster the De-Youngs’ testimony; (3) awarding the Association assessments, late fees and interest; (4) admitting into evidence the statement of account for the DeYoungs’ homeowners assessments levied by the Association’s agent, and (5) failing to disqualify himself from hearing the case. Additionally, the DeYoungs contend that the verdict was contrary to the weight of the evidence. We disagree.

We have carefully reviewed the record and the briefs submitted by the parties. For the reasons stated in the trial court’s opinion, we conclude that each of the De-Youngs’ claims are without merit. The trial court has properly responded to each of the DeYoungs’ contentions. Therefore, we affirm the judgment based on the trial court’s well-reasoned, complete, and succinct opinion. However, since we have located no precedent that is controlling on the question of attorney’s fees, we write separately to address that issue.

Appellant asserts that the court erred in awarding attorneys’ fees to the Association pursuant to the terms of the Declaration. Appellant insists that the Declaration could not be interpreted to provide for recovery of attorneys’ fees. “The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of the parties, or some other recognized exception.” Mantell v. Mantell, 384 Pa.Super. 475, 488, 559 A.2d 535, 542 (1989) (citations omitted). In applying this standard to this case, the trial court determined that the parties had agreed in the Declaration to permit the imposition of attorneys’ fees under the circumstances present here. The Declaration provides in Article V, Section 5.1:

Each Owner of any Living Unit, by acceptance of a deed thereof, whether or not it shall be so expressed in such deed, is deemed to covenant, and agree to pay to the Association such General, Insurance and Maintenance, Special, and Delinquency Assessments, as well as Improvement Levies as are established herein, which shall be paid in the manner set forth herein ...
All such assessments or levies together with interest thereon and costs of collection thereof as hereafter provided, shall be a charge or lien on the land against which each such assessment or levy is made, as of the date of such assessment or levy.
(emphasis added).

Section 5.6 of the Declaration describes the remedies available to the Association in the event of non-payment of assessments:

Any assessment installment not paid within fifteen (15) days after the due date shall be delinquent and shall bear interest at the then maximum lawful rate of interest. Therefore, the Association will provide Notice of such delinquency and may bring an action at law to collect the same, or foreclose the lien against the property, and in the latter case, the Association may proceed to foreclosure in the same manner as provided for mortgages by an action of mortgage foreclosure.

(emphasis added).

In construing a contract “each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument.” Marcinak v. Southeastern Green School Dist., 375 Pa.Super. 486, 491, 544 A.2d 1025, 1027 (1988). In order to ascertain the intention of the parties, “the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement.” International Organization Master, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, 497 Pa. 102, 109, 439 A.2d 621, 624 (1981) (quoting Foulke v. Miller, 381 Pa. 587, 593, 112 A.2d 124, 127 (1955)). The court will adopt an interpretation that is most reasonable and probable bearing in mind the objects which the parties intended to accomplish through the agreement. Metzger v. Clifford Realty Corporation, 327 Pa.Super. 377, 385, 476 A.2d 1, 5 (1984).

The trial court imposed attorneys’ fees on appellants because it found that such fees were included in the phrase “costs of collection.” We agree. The Declaration clearly makes the defaulting homeowner liable for assessments plus the cost of collection for the amount in default. Furthermore, the Declaration authorized the Association to institute suit to collect delinquent assessments. Because the Association was a corporation and could only appear and be represented in Pennsylvania courts by an attorney, it was logical that attorneys’ fees would be the primary costs of collection if it became necessary to institute suit. See Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 142, 480 A.2d 281, 285 (1984). If the Declaration had not intended to include counsel fees, the burden of the costs of collection would have fallen on the other homeowners. Given the nature of the Declaration and the fact that this was a contract between homeowners and their nonprofit Homeowners Association it is reasonable to conclude that the parties intended the costs of collection to include attorneys’ fees.

Moreover, the term “costs of collection” has specifically been construed in some contexts to refer not to the costs of suit but rather to the expenses incurred in the collection of a debt due. For example, in the context of promissory notes the phrase is synonymous with attorneys’ fees. This concept is illustrated by the Pennsylvania Supreme Court’s decision in Philadelphia Nat’l Bank v. Buchman, 314 Pa. 343, 171 A. 589 (1934), where the Court considered whether a certain promissory note fell within the definition of a negotiable instrument under the Negotiable Instruments Law. The issue arose because the note in question required that in the event of default, the promisor would pay “expenses of collection, including an attorney’s fee of 10% ... ”, whereas the Law required that negotiable instruments provide for payment of “costs of collection or an attorney’s fee.” Id., 314 Pa. at 348, 171 A. at 591 (emphasis added). In determining that the note was negotiable, the Buchman Court stated:

This section of the Negotiable Instruments Law is practically uniform with the laws of other states on this subject, and Brannan’s Negotiable Instruments Law (5th edition), sets forth the interpretation of appellate courts that have ruled on this section as follows: “The word ‘or’ in this subsection is not material, and an agreement to pay ‘attorney’s fees and all costs of collection’ does not impair negotiability, since the two phrases mean the same thing. Wood v. Ferguson, 71 Mont. 540, 230 Pac. 592....”

Id., 314 Pa. at 348-9, 171 A. at 591.

This statement clearly suggests that, at least in the context of negotiable instruments, the Supreme Court regards the phrase “costs of collection” as being interchangeable with the phrase “attorney’s fees.”

Moreover, we note that provisions for the payment of “costs of collection” have often been held to include reasonable attorney’s fees in the event that it is necessary to institute legal action to collect. 2 S. Speiser, Attorneys’ Fees, § 15:13 (1973). See also John Hancock Mut. Life Ins. Co. v. Casey, 155 F.2d 229, 235 (1st Cir.1946); Sulphur Export Corp. v. Caribbean Clipper Lines, 277 F.Supp. 632, 635 (E.D.La.1968) (interpreting “costs of collection” to include attorney’s fees.)

The fact that the Declaration did not explicitly state that attorney’s fees are part of the costs of collection does not prevent the court from finding that there was a valid, enforceable agreement to assess them. In a case in which the controlling document did not expressly provide for attorney’s fees, the Pennsylvania Supreme Court found that the language nevertheless permitted the imposition of such fees. The court found that a provision in a trust agreement requiring that a party “reimburse the Trustee for all its expenditures, and to indemnify and save the Trustee harmless against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder,” was broad enough to include the payment of attorneys’ fees. Fidelity-Philadelphia Trust Co. v. Philadelphia Transp. Co., 404 Pa. 541, 548, 173 A.2d 109, 113 (1961). The Court specifically held that “the broad scope of reimbursement provided by the general provision of the Indenture is sufficiently specific to include attorneys’ fees.” Id., 404 Pa. at 548, 549, 173 A.2d at 113-14. Similarly, we find that the term “costs of collection” within the context of the Declaration was also sufficiently broad enough to encompass attorneys’ fees.

Appellants also argue that the amount of fees which the court awarded was not fair and reasonable for the legal services rendered. “The reasonableness of an award of attorney fees, of course, is a matter which rests within the sound discretion of the trial judge and will be altered by an appellate court only when there is a clear abuse of discretion.” Shearer v. Moore, 277 Pa.Super. 70, 78, 419 A.2d 665, 669 (1980) (citations omitted). The trial court, in the first instance, is in the best position to evaluate the character of the services rendered, the time necessarily involved and to assess the reasonableness of the fee in light of the usual scale of compensation given the time and place of the litigation. See Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986).

The parties stipulated at trial that the hourly rate of between $75 and $135 charged by the Association’s attorneys was fair and reasonable. The only issue, therefore, concerned the reasonableness of the total time expended.

The Association offered expert testimony with regard to the reasonableness and necessity of the time spent by the Association’s attorneys. The expert testified that, in his opinion, the time spent by Association’s attorneys in prosecuting this case was necessary, fair and reasonable. Based on the testimony presented at trial and the court’s independent evaluation of the record, the court determined that the time expended on this matter was reasonable under these circumstances. In addition, the trial court concluded that appellants rather than the Association precipitated much of the work involved in this case. There was no evidence that the Association engaged in unnecessary legal efforts aimed at prolonging this litigation. Because the time spent and the fees charged by Association’s attorneys were reasonable, the court did not abuse its discretion in awarding the total amount requested by plaintiff.

Judgment affirmed.

      . In response to the Association’s complaint, the DeYoungs filed a counter-claim seeking recovery of the cost of the bee exterminator. On this counter-claim, the trial court found for the Association and against the DeYoungs and because no appeal was taken from this decision, the issue is not presently before us.

      . Although the appellants here do not hold their property as a condominium, condominium ownership presents a somewhat analogous situation. In both instances, homeowners belong to a central homeowners’ association which is charged with levying and collecting assessments, and which, in turn may often be confronted with the problems of delinquency collections. It is interesting to note that in this very similar setting, the legislature provided through the Uniform Condominium Act, that an association which secures a judgment against a homeowner for back assessments or fines is also entitled to receive costs and reasonable attorneys’ fees as part of that judgment. 68 Pa.C.S.A. § 3315(f). Although the Act is not applicable in this case, the Act demonstrates that the notion of fee shifting in the context of agreements between homeowners and their homeowners’ associations is based on sound policy.

      . Costs of collection; Strictly, expenses involved in endeavoring to make collection, as of a promissory note; but as used in or with reference to such note, the phrase is synonymous with attorneys’ fees. There is commonly a provision to this effect in such notes. It does not refer to costs of suit, which are recoverable by law. Black's Law Dictionary 312 (5th ed. 1979).