source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    472 A.2d 663
    John E. SUSKEY and Jeannette E. Suskey, Appellants, v. LOYAL ORDER OF MOOSE LODGE #86 an Unincorporated Association.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed Feb. 10, 1984.
    Petition for Allowance of Appeal Denied June 12, 1984.

      Richard J. Catalano, Pittsburgh, for appellants.
    Michael A. Della Vecchia, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order denying appellants’ Motion for New Trial following a jury verdict in favor of appellee Moose Lodge # 86. Appellants contend that they are entitled to a new trial because the court below erred in two regards: the trial judge failed to charge the jury on the presumption of intoxication set forth in the Pennsylvania Motor Vehicle Code (75 Pa.C.S. § 1547(d)(3)); and, the trial judge failed to ascertain that the jury’s verdict was clearly against the weight of the evidence. We find that appellants’ contentions have no merit and, therefore, affirm the court below.

Appellant John Suskey went to appellee’s bar at about 7:00 p.m. on November 19, 1975. There was evidence that he consumed three double shots of whiskey, followed by beer chasers and then drank beer until he left at approximately 12:30 a.m. Shortly after he left appellee’s bar, he was involved in a collision when he drove into a truck parked in a used car lot adjacent to Route 30. Suskey suffered serious physical injuries. Subsequently, he and his wife brought this action on the basis that appellee violated the Dram Shop Act, 47 P.S. § 4-493(1), when it served him intoxicating beverages while he was visibly intoxicated.

The Dram Shop Act provides that:

“It shall be unlawful
“(1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated ...” 47 P.S. § 4-493(1) (Emphasis added)

It is undisputed that Moose Lodge # 86 is a licensee of the Pennsylvania Liquor Control Board. The issue below was whether appellant John Suskey was served intoxicating beverages at the Lodge while “visibly intoxicated.”

Appellants contend that under Pennsylvania law, the jury should have been instructed that a blood alcohol percentage of greater than 0.10 creates a presumption that the individual was under the influence of alcohol, The court below did instruct the jury that the breathalyzer result was 0.19 one hour after the accident, and that they might consider such in determining whether Mr. Suskey was visibly intoxicated. However, the court refused to include appellants’ proposed addition to that point for charge which would have instructed the jury that under the Pennsylvania Motor Vehicle Act, if the amount of the alcohol by weight in the blood of the person tested is 0.10 per cent or more, it is presumed that the person was under the influence of alcohol.

We agree with the trial court that appellant was not entitled to a charge on this presumption. It is true that in criminal actions for driving under the influence of alcohol, the breathalyzer result, as well as its correlative presumption . must be charged to the jury. However, we believe that neither authority nor logic dictate the use of the presumption in the present circumstances.

Appellant argues that a breathalyzer result, without the presumption of intoxication resulting therefrom, is meaningless to the jury, and therefore cannot be given adequate consideration. We concede that a breathalyzer result standing alone, is arguably of no help to a jury in its determination of whether a plaintiff was visibly intoxicated. It may be that an expert who could relate the degree of blood alcohol to visible intoxication at an earlier hour would be evidentiary assistance. However, being “under the influence” and “visibly intoxicated” relate to different characteristics of ability and control as opposed to appearance.

In Billow v. Farmer’s Trust Co., 438 Pa. 514, 266 A.2d 92 (1970), the Pennsylvania Supreme Court upheld the trial court in refusing to admit evidence of a driver’s blood alcohol content. This evidence, together with an expert’s interpretation was proferred to show that the driver’s driving was “affected.” The Court held that this “[fell] short of the requirement that the evidence show a degree of intoxication which proves unfitness to drive.” Id., 438 Pa. at 517, 266 A.2d at 93. That is, proof of intoxication under the Motor Vehicle Code, in Billow, supra, of 0.14 per cent, was held to be inadmissible in determining whether the driver was driving in a reckless or careless manner. The court did not admit either the blood alcohol content or the presumption of intoxication pursuant to the Motor Vehicle Code, in the civil action. By induction then, it is arguable that the Supreme Court felt that the use of the legal presumption vis a vis § 1547 was improper in civil cases. If the argument holds that the presumption of legal intoxication may not be taken from a criminal proceeding to a civil one, then it is even stronger that the presumption of legal intoxication may not be applied to the tangential issue of visible intoxication in a civil case.

There are two cases which have been read by appellant to suggest the presumption is required. Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) and Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979) (hereinafter discussed). Despite the use of the breathalyzer result in these two cases, however, we feel that there is no convincing argument which would yield the result that a person who is legally intoxicated under the presumption of § 1547 would necessarily be visibly intoxicated for purposes of 47 P.S. § 4-493(1). That is to say that a person with a breathalyzer indicant of 0.11 for example, may or may not be visibly intoxicated. The relationship between legal intoxication in re: competency to operate a motor vehicle and visible intoxication is simply too attenuated to support a mandatory application of the presumption under § 1547 to a civil case requiring proof of visible intoxication.

We find that appellants’ argument, which effectively reads the Motor Vehicle Act into the Dram Shop Act, is unconvincing. The language of § 1547(d) is specifically related to criminal actions for driving under the influence of alcohol. Furthermore, Pennsylvania law does not mandate that the presumption of intoxication be charged in cases not involving the competency of a person to operate a motor vehicle. Appellant incorrectly cites Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (Spaeth, J. concurring in the result, Van der Voort, J. dissenting) for support of his argument. The Couts, supra, court, quoting with approval from the decision in Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979) stated: “[o]ur legislature has expressly approved the blood alcohol test as a means of determining whether a person is driving under the influence of intoxieating beverages.” (Cusatis, supra 267 Pa.Superior Ct. 251, 406 A.2d at 789, Couts, supra, 281 Pa.Superior Ct. 144, 421 A.2d at 1189 (emphasis added). However, the Couts court also makes clear the demarkation between intoxication and visible intoxication:

“Even if Ghion was intoxicated at the time of the accident and his intoxication proximately caused decedent’s death, Holiday House cannot be held liable unless Ghion was visibly intoxicated when served at the Holiday House bar.” 281 Pa.Superior Ct. 141, 421 A.2d at 1187 (Emphasis added).

The Couts decision advocates the use of the breathalyzer test result as relevant circumstantial evidence only to be used in conjunction with other evidence which bears on the question of whether an individual was visibly intoxicated. However, Couts, while favoring the admission of the breathalyzer results, does not mandate the usage of the presumption. The Cusatis court advocates the admission of a breathalyzer test as relevant evidence in conjunction with other evidence going to an individual’s competency in the operation of a motor vehicle. Thus, neither case advocates the use of the breathalyzer result in charging a presumption, under the law, going to visible intoxication. We feel that the court below fully followed the spirit of Couts, supra and Cusatis, supra, by allowing the jury to use the breathalyzer results as evidence, in conjunction with other evidence, to determine whether the appellant, John Suskey, was visibly intoxicated. We find no error in refusing to fully charge with respect to Point for Charge # 8, and, therefore, find appellants’ argument meritless.

Appellants’ second contention of error is that the verdict was against the weight of the evidence.

This contention concerns the factual determination, made by the jury, of whether John Suskey was served intoxicating beverages while visibly intoxicated. Of course, a witness’ impression of whether a person is visibly intoxicated is a subjective one; it depends on the witness’ perception. In the instant case, there was conflicting testimony by witnesses who observed John Suskey as to whether he was visibly intoxicated. The resolution of the conflicting testimony was a question of fact for the trier of fact, the jury. The jury found that the appellant was not served intoxicating beverages while he was visibly intoxicated. Its finding is supported by the record.

As stated in Kline Cooperage v. Kistler, 286 Pa.Super. 84, 87-88, 428 A.2d 583, 585 (1981):

Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). [The plaintiff] is not entitled to a new trial where the evidence is conflicting and the jury could have decided either way. Hilliard v. Anderson, 440 Pa. 625, 271 A.2d 227 (1970).

The court below charged the jury to consider direct and circumstantial evidence, and to disregard the fact that the appellant, John Suskey, might have been negligent in ordering and consuming the amount of alcohol that he did. The jury was properly charged to consider only whether Mr. Suskey was served intoxicating beverages while visibly intoxicated. The result was that the jury found against appellants.

We do not feel that the court below erred in finding that the verdict was supported by the evidence. In addition, the verdict is not “so contrary to. the evidence as to shock one’s sense of justice.” Id., 286 Pa.Superior Ct. at 87, 428 A.2d at 585. Therefore, we find appellants’ second contention of error to be meritless, and accordingly, affirm the order of the court below.

Order affirmed.

      . The disputed Point for Charge # 8 appeared as follows:
      In determining whether or not Mr. Suskey was visibly intoxicated when served at the defendant’s place of business, you may consider the results of the blood alcohol test taken while he was still in the emergency room at McKeesport Hospital. [Under the Pennsylvania Motor Vehicle Act, if the amount of alcohol by weight in the blood of the person tested is 0.10 percent or more, it is presumed that the person was under the influence of alcohol.]
      The bracketed section is that which appellant wished to add to the charge.

      . 75 Pa.C.S. Section 1547(d) provides as follows)
      (d) Presumptions from amount of alcohol. — If chemical analysis of a person’s breath or blood shows:
      (1) That the amount of alcohol by weight in the blood of the person tested is 0.05% or less, it shall be presumed that the person tested was not under influence of alcohol and the person shall not be charged with any violation under section 3731(a)(1) (relating to driving under influence of alcohol or controlled substance), or if the person was so charged prior to the test, the charge shall be void ab initio.
      (2) That the amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol.
      (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, it shall be presumed that the defendant was under the influence of alcohol.

      . Pennsylvania law mandates that the presumption be charged in cases dealing with criminal operation of a motor vehicle while under the influence of alcohol. We note, however, that this "presumption” is in fact only a permissible inference. Commonwealth v. DiFrancesco, 458 Pa. 188, 193 n. 3, 199-200, 329 A.2d 204, 207-08 n. 3, 211 (1974); Commonwealth v. Gearhart, 253 Pa.Superior 238, 245, 384 A.2d 1321, 1324 (1978). See Commonwealth v. Brown, 229 Pa.Super. 156, 323 A.2d 345 (1974).
      However, even in cases involving criminal charges, there has been skepticism and criticism regarding the use of the breathalyzer result and presumption. See Commonwealth v. Tylwalk, 258 Pa.Super. 506, 393 A.2d 473 (1978); Commonwealth v. Trefoy, 249 Pa.Super. 117, 375 A.2d 786 (1977). One of the most obvious and valid criticisms is that the statute, 75 Pa.C.S. § 1547, does not place time constraints,on when the breathalyzer test may be administered in relation to the time of the accident. See Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977) (difficulty in extrapolating blood alcohol content at time of accident from breathalyzer result obtained three hours after accident in determining whether driver was under the influence at the time of the accident results not admissible at trial); Commonwealth v. Tylwark, 258 Pa.Super. 506, 393 A.2d 473 (1978) (results of breathalyzer test administered four and a quarter hours after accident suppressed by trial court because performed too long after accident; found to be reversible error by Superior Court). In addition, factors such as how the alcohol was consumed (i.e., volume/time), whether the alcohol was consumed with food, and whether it was consumed in a carbonated form, all impact on a breathalyzer result.

      . We note that Couts v. Ghion, supra, was a plurality decision. But cf. Billow v. Farmer’s Trust Co., 438 Pa. 514, 266 A.2d 92 (1970).


text:
    472 A.2d 668
    TEMPORARIES, INCORPORATED, Appellant, v. Bruce Edward KRANE, t/d/b/a Pittsburgh Temporaries and Charles Krane, Appellants.
    (At No. 126 Pgh. 1983)
    (At No. 955 Pgh. 1982)
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed Feb. 10, 1984.

      James C. Larrimer, Pittsburgh, for appellants (at No. 955) and appellees (at No. 126).
    Jan C. Swensen, Pittsburgh, for appellant (at No. 126) and appellee (at No. 955).
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

The basis of this case is a “franchise agreement” dated August 14, 1974, entered into between Charles Krane and Temporaries, Incorporated (referred in this opinion as T I). The agreement granted an exclusive franchise to Charles Krane to operate a temporary help business in designated counties in Pennsylvania and Ohio. The agreement which referred to Temporaries, Incorporated as T I and to Charles Krane as “Licensee” stated inter alia:

11. RENEWAL. Provided Licensee is not in default hereunder, Licensee may extend the term of this Agreement for an additional period of five (5) years by giving to TI written notification of its desire to renew at least six (6) months prior to the termination date hereof. Further, provided Licensee is not in default hereunder, Licensee shall have the right to extend the term of this Agreement for additional five (5) year periods without limitation in number; provided, that Licensee shall give written notice to TI of his intention to extend the term at least six (6) months prior to the termination date of each five (5) year extension.
13. EFFECT OF TERMINATION. Upon termination of this Agreement, Licensee agrees to immediately cease to use, by advertising or otherwise, the tradename TEMPORARIES INCORPORATED, or any other trade name, mark or style of TI and not to engage in any business which is competitive with TI or the business previously done by Licensee for a period of one year within the territory of this franchise. Licensee shall immediately return to TI without charge, all forms, advertising matter, manuals, procedures and records furnished by or belonging to TI.
15. CONDITIONS OF TERMINATION. Upon the termination of this Agreement for any cause, the Licensee will not for a period of one year thereafter, directly or indirectly, enter the employment of, or render services to, any other person, partnership, association or corporation engaged in the same or substantially similar business covered by this Agreement in any area which can be reasonably termed competitive to the Licensor or other Licensees; and during such term of one year the Licensee will not within such territory engage in such business on his own account, or become interested therein, directly or indirectly, as an individual, partner, stockholder, director, officer, clerk, principal, agent, employee, trustee, or in any relation or capacity whatsoever. Without limiting the generality of the foregoing, the minimum area of a competitive nature hereinbefore referred to shall be that area within a 25 mile radius of the Licensee’s place of business, or any place of business conducted by the Licensor or any other Licensee of the Licensor at the time of the termination of this Agreement.

Charles Krane’s son, Bruce Krane, was employed as the manager of the Pittsburgh office operated under the franchise, and under an addendum to the franchise agreement T I relieved Charles Krane from the obligation of devoting his full time to the franchise as long as Bruce Krane was employed full time by the licensee. From August, 1974, until August, 1979, Bruce Krane was employed by the licensee as a full time manager. Charles Krane did not extend the term of the agreement in accordance with paragraph 11 thereof. On July 13th he notified T I by letter that he was terminating his agreement with T I and he stated: “I am discontinuing my temporary help business as of July 14, 1979.” The Pittsburgh office of T I thereupon closed its doors on Friday, July 13, 1979 and on Monday, July 16, 1979, the same office opened as “Pittsburgh Temporaries, Inc.” under the ownership of Bruce Krane. This new business came into existence based on an agreement between Charles Krane and his son, Bruce Krane, under which Charles sold to Bruce all the equipment, furniture and fixtures he used as a licensee of T I. Charles also transferred to Bruce the telephone in the office, job agreements and employee applications. All of this was done for a nominal consideration. Bruce solicited and retained the permanent office employees and had the same telephone number as his father used. As far as the public was concerned the same business continued under a slightly different name. Bruce Krane had copies of job applications and job orders which he obtained as an employee of the office previously operated by his father. In May, 1979 Bruce entered into an office lease for the same premises as that which had been rented by his father.

The conduct of Charles and Bruce Krane triggered extensive and complicated legal proceedings. In July, 1979, T I commenced an action in equity against Bruce Krane t/a/d/b/a Pittsburgh Temporaries, Inc. and Charles Krane alleging tortious interference with the contractual relation between T I and Charles Krane. A preliminary injunction was entered against Charles Krane and Bruce Krane enjoining them from interfering with the operation of T I’s business. On August 9, 1979, a decree was entered enjoining Charles Krane “from selling and transferring possession of business forms relating to temporary employees, advertising matter, manuals, procedures and records to Bruce Krane or anyone else, and Charles Krane and Bruce Krane are instead directed to arrange for the transfer of said items forthwith to plaintiff or its designee.” In addition, the decree directed Charles Krane to notify employees and customers of T I that on August 15, 1979, the business conducted by him was to be conducted by T I. The decree also provided that: “defendant Charles Krane shall not engage in the temporary help business in the Pittsburgh, Pennsylvania area for a period of one (1) year from August 15, 1979. Bruce Edward Krane is not enjoined from engaging in the temporary help business in the Pittsburgh, Pennsylvania area for this period as long as the provisions of this decree are otherwise complied with.” (Emphasis added).

The franchise agreement between T I and Charles Krane provided that “any controversy or claim arising out of or relating to this agreement” shall be settled in accordance with the rules of the American Arbitration Association. Accordingly, T I filed an amended complaint in arbitration against Charles Krane on September 9, 1979, for breach of contract and an arbitration award was entered in favor of T I and against Charles Krane in the amount of $17,500.00. This award has been satisfied in full. On January 6, 1981, with the consent of the parties the case was transferred to the law side since the remaining issues involved only claims compensable in monetary damages. A non-jury trial was held in the court below and a verdict was entered in favor of T I and against Bruce Krane t/d/b/a Pittsburgh Temporaries in the amount of $69,035.18 which included punitive damages in the amount of $25,000.00. An appeal was taken to this court by Bruce Krane and subsequent to the appeal the court below awarded delay damages in favor of T I and against Bruce Krane in the amount of $4,957.00. The exceptions of Bruce Krane to the order awarding delay damages were sustained by order of December 23, 1982 and all other exceptions were dismissed. Cross appeals have been filed by T I and Bruce Krane.

On appeal, Bruce Krane has raised several issues. Initially, we shall consider his claim that the action for compensatory damages was barred by res judicata and/or collateral estoppel. In order for the doctrine of res judicata to prevail the following four conditions must coalesce: (1) identity of issues; (2) identity of causes of action; (3) identity of persons and parties to the action and (4) identity of the quality or capacity of the parties suing or being sued. Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 345 A.2d 664 (1975). See also, Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Stewart v. Tomis Development Company, 315 Pa.Super. 63, 461 A.2d 636 (1983). We agree with the court below that the judgment entered in the arbitration proceedings involving T I and Charles Krane did not bar the action against Bruce Krane trading and doing business as Pittsburgh Temporaries. Similarly, the injunction entered against Charles Krane was not a bar as it was against a different party, and further it expressly provided that “Bruce Edward Krane is not enjoined from engaging in the temporary help business in the Pittsburgh, Pennsylvania, area for this period as long as the provisions of this decree are otherwise complied with.” The parties and the issues were not the same and it is clear that the doctrine of res judicata does not apply. • Res judicata “from long usage has come to encompass generally the effect of one judgment upon a subsequent trial or proceeding.” Township of McCandless v. McCarthy, 7 Pa.Commw. 611, 616, 300 A.2d 815, 819 (1973). An award in arbitration against Charles Krane does not bar an action against Bruce Krane for tortious interference with a contractual relationship.

The doctrine of collateral estoppel is a broader concept than res judicata. Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A.2d 341 (1974). The Supreme Court stated in Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 574, 575, 345 A.2d 664, 668 (1975):

With respect to collateral estoppel we have recently stated that a plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. In Re Estate of Ellis, 460 Pa. 281, 333 A.2d 728, 731 (1975).

See also, Greene Landfill, Inc. v. Greene Township Zoning Hearing Board, 46 Pa.Commw. 602, 407 A.2d 903 (1979). We agree with the court below that the action for damages based on tortious interference with contract was not barred by the prior proceedings in the instant case. The thrust of the injunction proceedings was directed at Charles Krane to prevent him from violating his obligations based on his contractual relationship with T I, and the arbitration action was also based on Charles Krane’s contractual relationship with T I. The issues in the action against Bruce Krane were not the same. The question in the litigation forming the basis of this appeal is whether Bruce Krane interfered in the contractual relationship existing between Charles Krane and T I. Certainly, many of the facts in the arbitration proceedings were relevant in the action for tortious interference with contract, but the issues are different and there is no privity between Charles Krane and Bruce Krane vis a vis the issue of whether Bruce Krane wrongfully interfered in the contract existing between his father, Charles Krane, and T I.

Appellant, Bruce Krane, contends that the arbitration proceedings determined the issue of compensatory damages by awarding T I damages in the amount of $17,-500.00 against Charles Krane. This contention is without merit. While the award is final as to damages suffered by T I by reason of Charles Krane’s breach of contract, it does not go to the issue of T I’s damages by reason of Bruce Krane’s interfering with the contract between Charles Krane and T I. The Restatement (Second) of Torts § 774 A provides:

(2) In an action for interference with a contract by inducing or causing a third person to break the contract with the other, the fact that the third person is liable for the breach does not affect the amount of damages awardable against the actor; but any damages in fact paid by the third person will reduce the damages actually recoverable on the judgment. (Emphasis added)

The court below properly gave credit to Bruce Krane in the amount of $17,500.00 in determining compensatory damages payable to T I.

The next issue is whether the evidence was sufficient to sustain T I’s claim for damages for tortious interference with contract. The Restatement (Second) of Contracts deals with interference in a contractual relationship and states in Section 766:

§ 766. Intentional Interference with Performance of Contract by Third Person
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

The section was specifically considered with approval by our Supreme Court in Adler, Barish, Daniels, etc. v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). The Court below found that Bruce Krane improperly interfered with the contract between his father and T I. The facts established that Bruce Krane and his father entered into an elaborate scheme to continue what had been a franchise of T I as a new entity owned by Bruce Krane. The obvious intent was to deprive T I of its rights under the franchising agreement between Charles Krane and T I. In our opinion, it is immaterial that Charles Krane was an integral part of the subterfuge carried on by his son. However, Bruce Krane, set the stage by transferring the lease into his name prior to the termination of the franchise agreement. Bruce further arranged to have the physical assets of the office transferred to him as well as the records. The permanent employees of Charles Krane’s office immediately became employees of Pittsburgh Temporaries, Incorporated after Charles breached the contract with T I. Bruce Krane had access to all the records of the temporary personnel that his father’s franchise provided to area employers. Bruce Krane saw what he believed to be an opportunity of taking over a profitable and going concern which had been operated as a franchise, and terminating T I’s rights as the owner of the franchise. This is the type of commercial conduct that the action for tortious interference with a contract is designed to remedy. There is no doubt that Bruce Krane’s interference with his father’s contract was intentional, and the recent case of Yaindl v. Ingersoll-Rand Company Standard Pump-Aldrich Division, 281 Pa.Super. 560, 574, 422 A.2d 611, 618 (1980) referring to the Restatement (Second) of Torts § 767, sets forth the guidelines in determining the existence of improper interference with a contractual relationship as follows:

Whether an intentional interference with the performance of a contract is improper depends upon the following factors:

(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.
Restatement (Second) of Torts § 767 (1979).

See also Adler, Barish, Daniels, etc. v. Epstein, 482 Pa. at 433, 393 A.2d at 1184.

The court below properly found that Bruce Krane’s conduct constituted improper interference with the contract existing between his father and T I.

Appellant also contends that there was insufficient evidence to sustain the award of compensatory damages, and we find this contention to be without merit. The elements of lost profit were established by the testimony of T I’s president and mid-Atlantic regional manager. Expert testimony on lost earnings was provided by a certified public accountant with many years experience, who projected earnings on the basis of appropriate data furnished to him. The trier of fact determines the weight of the evidence provided by an expert witness, West Mountain Poultry Company v. Gress, 309 Pa.Super. 361, 455 A.2d 651 (1982).

Appellant, Bruce Krane, further contends that the court erroneously awarded punitive damages. Although the amended complaint filed by T I did not seek punitive damages, counsel for T I remarked in his opening statement on March 23, 1981, that it was seeking such damages. “An essential fact needed to support a claim for punitive damages is that the defendant’s conduct must have been outrageous.” Smith v. Brown, 283 Pa.Super. 116, 120, 423 A.2d 743, 745 (1980). Outrageous conduct has been defined as an act “done with a bad motive or with a reckless indifference to the interests of others.” Focht v. Rabada, 217 Pa.Super. 35, 38, 268 A.2d 157, 159 (1970). As noted in Smith v. Brown, 283 Pa.Super. 116, 120, 423 A.2d 743, 745 (1980):

“Reckless indifference to the interests of others”, or as it is sometimes referred to, “wanton misconduct”, means that “the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Evans v. Philadelphia Transportation Company, 418 Pa. 567, 574, 212 A.2d 440, 443 (1965).

In the instant case the court below found Bruce Krane’s conduct to be outrageous. Appellant was aware that under the terms of the contract all records and accounts were to be returned to T I upon the termination of the franchise. He was fully cognizant that the business was financially successful, and immediately upon termination of the franchise by his father the appellant took over the books, records, and office equipment belonging to the franchise. There was sufficient evidence to sustain the finding of the court below that Bruce Krane’s conduct was outrageous in a legal sense.

In Appeal Number 126 Pittsburgh 1983, the appellant is T I which has appealed from the order of December 23, 1982, sustaining the exceptions of Bruce Krane to the award of delay damages. The court below entered an order awarding delay damages on August 30, 1982 under Pa.R. C.P. 238. An appeal had been taken to this court by Bruce Krane on August 28, 1982. Accordingly, the court below determined that it had no authority to enter the order awarding delay damages. We agree, as under Rule of Appellate Procedure 1701(a) the court below had no authority to proceed further in the case. In any event, the court could not properly award delay damages as an action for wrongful interference with contract does not fall within the orbit of cases in which delay damages are authorized. Pa.R.C.P. 238 provides for the award for delay damages “in an action seeking monetary relief for bodily injury, death or property damage.” While we have found no cases dealing with the application of Rule 238 to an action for tortious interference with contract, the rule itself applies only to certain actions and does not encompass every action. It is our opinion that delay damages do not apply to an action for tortious interference with contract.

Order affirmed.

      . The court stated in Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 265, 323 A.2d 341, 344 (1974):
      Briefly then, the only requirements to the doctrine of collateral estoppel are:
      (1) that the issue or issues of fact determined in a prior action be the same as those appearing in a subsequent action, there being no necessity that the cause of actions be the same;
      (2) that the party against whom the defense is invoked is identical to or in privity to the party in the first action.

      . Had we heard the case in the first instance we might not have imposed punitive damages, which must be proved by clear and convincing evidence. Acosta v. Honda Motor Company, 717 F.2d 828 (3d Cir.1983). Bruce Krane was advised by an attorney with respect to the agreement that he entered with his father, and this could have rendered his conduct less than outrageous. Nevertheless, we are bound by the findings of the trier of fact supported by the evidence. See Yellow Run Coal Company v. Alma-Elly-YV Mines, Ltd., 285 Pa.Super. 84, 426 A.2d 1152 (1981).

      . Pennsylvania Rule of Appellate Procedure 1701(a) states:
      Rule 1701. Effect of Appeal Generally
      (a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.


author: WICKERSHAM, Judge:

text:
    472 A.2d 674
    WILLS EQUIPMENT COMPANY v. GOLDMAN ENTERPRISES, INC. and Pennsylvania National Mutual Casualty Insurance Company, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 9, 1983.
    Filed Feb. 10, 1984.

      Thomas I. Puleo, Philadelphia, for appellants.
    Donald L. Reihart, York, for appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of York County granting appellee’s motion for sanctions by entering a default judgment in favor of appellee and against appellants. We reverse and remand.

A close look at the procedural facts is necessary to the determination of this appeal. Appellee, Wills Equipment Company, is a Pennsylvania corporation. Appellant Goldman Enterprises, Inc. (hereinafter referred to as “Goldman”) is a New Jersey corporation and appellant Pennsylvania National Mutual Casualty Insurance Company (hereinafter referred to as “Pennsylvania National”) is a Pennsylvania Corporation.

This case arises from a contract between the appellee and appellant Goldman, in which appellee agreed to sell, deliver, and install a number of mechanical doors to be used in connection with a construction project at Lakehurst Naval Air Station, Lakehurst, New Jersey. Appellee claims that Goldman did not make full payment for the doors, and on May 8, 1980, appellee filed a complaint in assumpsit against Goldman and also against appellant Pennsylvania National, as surety on a performance and payment bond executed between Goldman and Pennsylvania National.

Both appellants, who at all times relevant to this appeal have been represented by the same counsel, filed preliminary objections to the complaint on June 20, 1980. Specifically, appellants asserted a lack of subject matter jurisdiction over the action on the payment bond and of in person-am jurisdiction over Goldman. The court below denied the preliminary objections in an opinion dated November 6, 1980. Thereafter, appellants filed an answer, new matter, and counterclaim. Appellee filed a reply and the pleadings were closed with the filing of appellants’ counter-reply on January 12, 1981.

Appellants began discovery by a request for production of documents. On February 13, 1981, appellee served upon Goldman a set of interrogatories. By August 10, 1981, Goldman had not yet answered the interrogatories; therefore, appellee filed a motion for sanctions for failure, to answer the interrogatories. Goldman filed an answer to appellee’s motion for sanctions on August 24, 1981, in which it requested an additional thirty (30) days to answer the interrogatories. There was apparently no ruling upon that request, but in any case, the thirty days passed without any answers to the interrogatories being served. On December 17, 1981, appellee filed a brief in support of its motion for sanctions, which was served upon Goldman several days later. No responsive brief was filed by Goldman despite Local Rule 31 which required Goldman to file such a brief within ten (10) days after service or suffer the relief requested by the appellee. On January 12, 1982, the lower court entered an order pursuant to Local Rule 31 and Pa.R.C.P. 4019 granting the relief requested in appellee’s motion for sanctions by entering a default judgment in favor of appellee and against both appellants. Appellants appeal from both this order and the order denying their preliminary objections.

Appellants raise three issues on appeal: .

1. Whether the Court of Common Pleas of York County, Commonwealth of Pennsylvania, lacks subject matter jurisdiction in an action on a bond required pursuant to the provisions of the Miller Act, 40 U.S.C. § 270b(b)?
2. Whether the Court of Common Pleas of York County, Commonwealth of Pennsylvania, lacks in personam jurisdiction over Goldman Enterprises, Inc., a foreign corporation?
3. Whether the Court of Common Pleas erred in entering judgment by default against Defendants for failure to answer interrogatories?

Brief for Appellants at 3.

We find the third issue to be dispositive of this case.

The lower court entered a default judgment against both appellants for failure to answer interrogatories. Clearly this was an error as to appellant Pennsylvania National. The interrogatories were directed to appellant Goldman only; it is Goldman’s failure to reply to these interrogatories that precipitated the events herein. Pennsylvania National was not involved in any way with these interrogatories. All parties, including the lower court, concede that the entry of a default judgment against Pennsylvania National was an error. Memorandum Opinion, 2-1-82 at 1; Brief for Appellants at 24; Brief for Appellee at 4. Therefore, we reverse the entry of the default judgment against appellant Pennsylvania National.

In its order dated January 12, 1982, the lower court entered the default judgment in favor of appellee “pursuant to Rule 31 of the York County Rules of Civil Procedure and Rule 4019 of the Pennsylvania Rules of Civil Procedure.” In its memorandum opinion, the same court states that the default judgment was entered “for failure to file a brief, in violation of York County Rule 31(a)(5),” and goes on to discuss only that ground. Memorandum Opinion, 2-1-82 at 1. While we are somewhat confused by this inconsistency, we will assume that the order of January 12, 1982 states the correct ground and we will therefore examine both York County Rule 31 and Pa.R.C.P. 4019.

York County Rule 31(a)(2) and (a)(5) provide that where a party or counsel fails to file a brief in opposition to a motion within ten (10) days after the service of a brief in support of the motion, the party filing the motion may present to the District Court Administrator for entry by the court an order for disposition of that motion. This court recently decided a similar case concerning the failure to file a brief within the time constraints of a local rule:

There can no longer be any doubt that a Court of Common Pleas has the right to promulgate local rules of procedure. See: 42 Pa.C.S.A. § 323. Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure. Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979), allocatur denied October 29, 1979.
In Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, [460 A.2d 1093] (1983), the Supreme Court considered Montgomery County R.C.P. 302(d), a local rule which provided for the automatic termination of an action for failure to file timely briefs in certain interlocutory matters. The Court held that “[a] rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a nonprejudicial procedural mis-step, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure.” Id., 501 Pa. at 240, 460 A.2d at 1096. See also: DeAngelis v. Newman, 501 Pa. 144, [460 A.2d 730] (1983).

Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983).

The local rule in question in Ricci was Montgomery County Rule 301(d), a rule that required the court to mark the matter granted or dismissed, depending upon which party did not comply with the 30 day brief filing requirement. In Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, supra, and DeAngelis v. Newman, supra, the local rule in question was Montgomery County Rule 302(d), which provided for the automatic termination of an action for failure to file timely briefs. In Seidel v. Great Factory Store, 291 Pa.Super. 255, 435 A.2d 896 (1981), the lower court dismissed a complaint for failure to file a timely brief in response to preliminary objections on the basis of Montgomery County Rule 302(d). In each of these cases, the lower court’s actions were reversed on appeal.

In contrast to the mandatory enforcement required by Montgomery County Rules 301(d) and 302(d) discussed above, Lebanon County Local Rule 1028 as addressed in Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa.Super. 37, 442 A.2d 284 (1982) called for a greater exercise of flexibility and discretion on the part of the lower court. This rule provided that any party desiring to oppose the sustaining of preliminary objections must file a brief within ten (10) days after service of the preliminary objections. Upon plaintiffs failure to do so, the defendants certified the record to the court for disposition, which eventually resulted in the dismissal of the complaint. Upon appeal, the superior court reversed on the basis that the lower court should have considered the sufficiency of the complaint before dismissing it. Dismissal without a consideration of the merits of the complaint was an inappropriate disposition.

York County Rule 31 falls somewhere between the mandatory requirements of the Montgomery County Rules and the discretionary requirements of Lebanon County Rule 1028. Upon failure of the responding party to timely file and serve a brief, the moving party may present to the District Court Administrator for entry by the court an order for disposition thereof. Presentation of an order to the Court Administrator is clearly optional, but it is unclear whether, after presentation of an order, the court exercises discretion in its disposition of such order. We suspect that such orders are disposed of more or less automatically, assuming the basis for the order is facially correct.

The Pennsylvania Rules of Civil Procedure “[do] not contemplate a local rule which requires mandatory and inflexible determinations of [motions] according to the dates of filing briefs and without regard for the merits or other considerations of equity and fairness.” Ricci v. Ricci, supra, 318 Pa.Super. at 448, 465 A.2d at 39.

Inadvertence of counsel, if reasonably explained, has been held to be an adequate excuse for the failure to file a brief in accordance with local rules such as York County Rule 31, and will justify relief. Seidel v. Great Factory Store, supra, 291 Pa.Superior Ct. at 258, 435 A.2d at 898.

Rule 4019(a) of the Pennsylvania Rules of Civil Procedure provides that a court may order appropriate sanctions if a party fails to answer interrogatories. Rule 4019(c) lists specific sanctions that the court may order. One of these is an order entering a judgment of non pros or by default. Rule 4019(c)(3). Unlike Local Rule 31, the wording of Pa.Rule 4019 is clear.

[Pa.R.C.P. 4019] establishes an unequivocal and mandatory procedure. Where answers to interrogatories have not been filed, a motion must be presented to the court to determine the default. Hanchey v. Elliott Truck Brokerage Company, 421 Pa. 131, 135, 218 A.2d 743, 745 (1966). Upon finding that a default has occurred, “the court may .. make an appropriate order.” Subdivision (c) of Pa.R.C.P. No. 4019 amplifies the scheme of the rule by designating specific sanction orders which may be appropriate under particular circumstances. The imposition of specific sanctions, however, is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 45, 281 A.2d 886, 888 (1971). See also: 10 Goodrich-Amram 2d § 4019(a):2.1, 3.1; 5A Anderson Pennsylvania Civil Practice § 4019.2. As a general rule, sanctions will not be imposed in the absence of some wilful disregard or disobedience of a court order or an obligation expressly stated in the Rules. In any event, it is the court which has been given responsibility for overseeing discovery conducted by the parties and which may enter appropriate sanctions to insure the adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.
Pa.R.C.P. No. 4019 envisions a procedure by which the court, when confronted with a failure or refusal to answer interrogatories, will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which “fits the crime.” If a written interrogatory asks for information which, although relevant, is not determinative of the entire controversy, a default judgment, which in effect is an adjudication of tke merits, would seldom, if ever, be appropriate. Under such circumstances, it would be more appropriate to treat the default as an admission or to disallow proof at trial of such undisclosed information. The need to “fit the punishment to the crime” compels the exercise of judicial discretion. The court is required to strike a balance between the procedural need to move the case to a prompt disposition and the substantive rights of the parties. (Emphasis added.)

Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Super. 245, 251-252, 407 A.2d 1338, 1341 (1979), allocatur denied October 29, 1979.

Since we are unclear whether York County Rule 31 permits the exercise of such discretion as demanded by the court in Gonzales, we must examine whether the “punishment” of default judgment fits the “crime” of failure to answer the interrogatories. Goldman essentially argues that there was no wilful disobedience or deliberate disregard of a court order for two reasons: (1) there was no court order ever issued compelling the answering of the interrogatories, and (2) failure to answer interrogatories was not disobedience, but merely an inability, due to sickness, to intelligently respond to the interrogatories. Brief for Appellants at 27.

It is true that no orders were entered by the lower court compelling Goldman to answer the interrogatories before the default judgment was entered. But as appellee correctly points out, a request for an order compelling answers to interrogatories is not required by Pa.R.C.P. 4019 or York County Rule 31. Brief for Appellee at 25. However, appellant argues that the entry of the severe sanction of default is punishment not befitting the crime and therefore an abuse of the court’s discretion, especially when other less severe sanctions were available under Pa.R.C.P. 4019.

Rule 4006 of the Pa.Rules of Civil Procedure requires a party served with interrogatories to answer within thirty (30) days after service of the interrogatories. Appellee served its interrogatories on Goldman on February 13, 1981. No answers were served on appellee, despite two written reminders by appellee to Goldman in March and April. In late May or June 1981, the president and principal officer of Goldman suffered a heart attack and was ill for several months. It was this person who alone, apparently, possessed the knowledge and information necessary to answer the interrogatories. On August 10, 1981, appellee’s motion for sanctions for failure to answer the interrogatories was filed. At this time, according to the Deposition of Murray H. Goldman, the president of Goldman was still incapacitated and unable to answer the interrogatories. Goldman filed an answer to appellee’s motion for sanctions shortly thereafter, which was in turn followed by appellee’s answer to Goldman’s answer. The record is then blank until December 17, 1981 when appellee filed its brief in support of its motion for sanctions. Goldman was served with this brief on December 21, 1981 and thus, under York County Rule 31, had until approximately the beginning of January 1982 to file its brief. The lower court entered its order of a default judgment on Jahuary 12, 1982.

Bassion v. Janczak, 299 Pa.Super. 195, 198 n. *, 445 A.2d 521, 522 n. * (1982) (dissenting opinion by Hoffman, J.) suggests the following procedures to be used after a sanction has been imposed and appealed: -

... [T]his Court has held that the lower court may vacate an order imposing a sanction if the noncomplying party, by timely petition, offers a reasonable excuse for its failure to file a timely brief. Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa.Superior Ct. 319, 325, 430 A.2d 305, 308 (1981). If the lower court abuses its discretion in deciding upon such a petition to vacate, this Court may reverse upon appeal, id., or it may remand if the record is inadequate to support meaningful appellate review, Seidel v. Great Factory Store, 291 Pa.Superior Ct. 255, 435 A.2d 896 (1981). Cf. Pa.R.Civ.P. 209. If the noncomplying party does not petition the lower court to vacate its order, but instead appeals directly to this Court, we may reverse if the “record before us clearly reveals a reasonable excuse for appellants’ failure to file their brief,” Shapiro v. Albright, 287 Pa.Superior Ct. 414, 421, 430 A.2d 672, 675 (1981), or may remand if the record is unclear, id., or may affirm if the record on appeal fails to set forth a reasonable excuse. Dunham v. Temple University, 288 Pa.Superior Ct. 522, 432 A.2d 993 (1981); Hesselgesser v. Glen-Craft Contractors, Inc., supra.

We do not condone unnecessary delay in proceedings such as these. However, we find that, due to the combination of the possible automatic application of York County Rule 31, the unduly harsh sanction of a default judgment when other sanctions were readily available, and the uncertainty of the record as to Goldman’s reasons for not filing interrogatories, this case should be remanded to the lower court. The lower court should permit Goldman a reasonable time to file a reply brief in opposition to appellee’s motion for sanctions, and then, assuming Goldman files such a brief, the court should conduct a hearing on the motion and enter whatever sanctions against Goldman it feels appropriate under Rule 4019(c). Shapiro v. Albright, 287 Pa.Super. 414, 430 A.2d 672 (1981).

We vacate the order of January 12, 1982 entering a default judgment against both appellants and remand the case for further proceedings consistent with this opinion.

Order vacated and case remanded. Jurisdiction is relinquished.

      . Local Rule 31 of the York County Rules of Civil Procedure provides, in pertinent part:
      Rule 31. Procedure in One-Judge Cases
      (a) Filing and service of briefs
      (1) Within ten (10) days after the filing of any pleading, motion, petition, or other proceeding raising an issue for disposition by one judge, the party or counsel filing such proceeding shall file with the Prothonotary two (2) copies of a brief in support thereof, shall forthwith serve copies thereof on all other parties of record or their counsel, and shall file with the Prothonotary evidence showing such service.
      (2) Within ten (10) days after the service of such brief, all other parties or their counsel desiring to oppose the issue raised by such proceeding shall file with the Prothonotary two (2) copies of a brief in opposition, shall forthwith serve copies thereof on all other parties or their counsel, and shall file with the Prothonotary evidence showing such service.
      (3) Any moving party or counsel may within five (5) days after the service of an opposing brief file and serve a reply brief.
      (4) Upon the failure of the party or counsel filing such proceeding to timely file and serve a brief in support thereof, the Prothonotary shall, upon praecipe of any other party or counsel, mark such proceeding dismissed. The party or counsel filing such praecipe shall forthwith give notice thereof to all other parties or their counsel and shall file with the Prothonotary evidence showing such notice.
      (5) Upon the failure of any other party or counsel to timely file and serve a brief in opposition, the party or counsel filing such proceeding may present to the District Court Administrator for entry by the court an order for disposition thereof. The party or counsel obtaining such order shall forthwith serve a copy thereof on all other parties or their counsel, and shall file with the Prothonotary evidence showing such service.

      . Rule 4019 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:
      Rule 4019. Sanctions
      (a)(1) The court may, on motion, make an appropriate order if
      (1) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005;
      (ii) a corporation or other entity fails to make a designation under Rule 4004(a)(2) or 4007.1(e);
      (iii) a person, including a person designated under Rule 4004(a)(2) to be examined, fails to answers, answer sufficiently or object to written interrogatories under Rule 4004;
      (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take his deposition;
      (v) a party or deponent, or an officer or managing agent of a party or deponent, induces a witness not to appear;
      (vi) a party or an officer, or managing agent of a party refuses or induces a person to refuse to obey an order of court made under subdivision (b) of this rule requiring him to be sworn or to answer designated questions or an order of court made under Rule 4010;
      (vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested;
      (viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
      (2) A failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.
      (c) The court, when acting under subdivision (a) of this rule, may make
      (1) an order that the matters regarding which the questions were asked, or the charactér or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
      (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
      (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
      (5) such order with regard to the failure to make discovery as is just.

      . Because of the disposition we make concerning the default judgment, we do not decide appellant’s arguments as to subject matter and in personam jurisdiction.

      . We note that appellee did not file its brief in support of its motion until approximately four months after its motion was filed.


author: WIEAND, Judge:

text:
    472 A.2d 680
    Louis WYSINSKI, Jr., and Clara Wysinski, his wife, v. Samuel MAZZOTTA, and Grace Mazzotta, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1983.
    Filed Feb. 10, 1984.
    Reargument Denied April 3, 1984.

      Mead S: Spurio, Philadelphia, for appellants.
    Stephen C. Zivitz, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

This is an appeal from a final decree in equity which adjudicated the location of the boundary line between lands owned by Samuel and Grace Mazzotta, appellants, and Louis and Clara Wysinski, appellees, in the City of Philadelphia. Appellees are the owners of No. 456 Parker Avenue; appellants own 456A Parker Avenue. Both lots were formerly owned by Edward Parker as part of a larger tract. On July 11, 1888, he severed the lot which subsequently became known as 456 Parker Avenue and conveyed it to William McClennen. The description in the deed was as follows:

All that certain lot or piece of ground described according to a survey thereof made June 8th 1888 by C.A. Sundstrom, Esquire, Surveyor and Regulator of the Eighth Survey District of Philadelphia Situate on the northwesterly side of Parker Avenue fifty feet wide and southwesterly side of a certain new street forty feet in width laid out and intended to be opened for Public use by the above named Edward C. Parker which said street leads into and from the said Parker Avenue at right angles thereto at the distance of one hundred and ninety-seven feet southwesterly from the southwesterly side of Ridge Avenue sixty feet wide in Roxborough in the twenty-first ward of the City of Philadelphia aforesaid containing in front or breadth on said Parker Avenue twenty feet and extending of that width in length or depth northwesterly between parallel lines at right angles to said Parker Avenue and along the said southwesterly side of said new street one hundred and twenty-five feet Bounded northwesterly and southwesterly by other ground of said Edward C. Parker northeasterly by said new street and southeasterly by Parker Avenue aforesaid which lot is part of a certain larger lot which Charles J. Hendricks et ux et al by Indenture bearing date the Thirtieth day of March A.D. 1877 and Recorded at Philadelphia in Deed Book D.H.L. No. 78 page 355 & 6 granted and conveyed unto the said Edward C. Parker in fee Together with the free and common use right liberty and privilege of said forty foot wide street as and for a passage way and water course and Public highway at all time hereafter forever, (emphasis supplied).

Title to this tract ultimately became vested in appellees by deed dated July 23, 1975 and by a correction deed dated May 5, 1976 from Anna E. Sowden. These conveyances have continued to describe the line of the forty feet wide street as being at right angles to Parker Avenue.

The adjoining lot at 456A Parker was at one time a part of the bed of the private street known as Ulmer Street. It was purchased by appellants at tax sale as the property of Edward Parker’s heirs on March 18, 1974. Appellants contended in the trial court and also on appeal that parol evidence had demonstrated that the street line and hence appellees’ property line lay at less than a right angle from the point where it intersected with Parker Avenue. Because of this, appellants contend, the lot of appellees narrows while their lot expands as the common boundary line extends inward from Parker Avenue. The trial court held that the original Parker deed description for lot 456, through which appellees traced their title, was neither ambiguous nor the result of mistake, and refused to permit it to be varied by appellants’ parol evidence. We affirm.

In the absence of fraud, accident or mistake, the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol. Covert Appeal, 409 Pa. 290, 295, 186 A.2d 20, 23 (1962); Highland v. Commonwealth, 400 Pa. 261, 283, 161 A.2d 390, 402 (1960), cert. denied, 364 U.S. 630, 81 S.Ct. 357, 5 L.Ed.2d 363 (1961); Johns v. Castellucci, 264 Pa.Super. 591, 596, 401 A.2d 753, 755 (1979). When the language of the deed is clear and free from ambiguity, the intent of the parties must be determined from the language of the deed. Teacher v. Kijurna, 365 Pa. 480, 486, 76 A.2d 197, 200 (1950); Detwiler v. Coldren, 311 Pa. 44, 49, 166 A. 374, 375 (1933); South Connellsville Borough, Inc., 47 Pa.Super. 350, 365 (1911). With respect to unambiguous deeds,, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol. Covert Appeal, supra 409 Pa. at 295, 186 A.2d at 23; Highland v. Commonwealth, supra, 400 Pa. at 283, 161 A.2d at 402; Kimmel v. Svonavec, 369 Pa. 292, 295, 85 A.2d 146, 148 (1952); Johns v. Castellucci, supra 264 Pa.Super. at 596, 401 A.2d at 755. To permit a variation of a deed description which is complete and unambiguous on its face, there must be evidence of a mutual mistake which is clear, precise and convincing. Central Transportation, Inc. v. Board of Assessment Appeals, 490 Pa. 486, 494, 417 A.2d 144, 147-148 (1980); In re Estate of Kostelnik, 471 Pa. 94, 99, 369 A.2d 1211, 1213 (1977). If there is mistake which is unilateral and not caused by fault of the other party, but due to the negligence of the one who acted under mistake, there is no basis for relief. McFadden v. American Oil Co., 215 Pa.Super. 44, 53-54, 257 A.2d 283, 288 (1969).

In the instant case, the trial court found that the 1888 deed to 456 Parker Avenue had been based on a survey made in 1888, that the description had not been ambiguous, that both parties had understood what was being conveyed, and that there had been no mistake at the time the conveyance was made and delivered. The language of the deed had expressed clearly that the lateral boundary lines were parallel and at right angles to Parker Avenue. Similarly, the line of the forty feet wide street which constituted one of the lateral boundaries for the land conveyed was situated at right angles to Parker Avenue. This clearly defined boundary could not be altered by the course of the private street as it had been described in a deed for a separate lot to the rear of the lot conveyed in 1888 by Parker to McClennen. Similarly, it could not be altered by a survey made three years later in 1891. We agree with the trial court that this later survey was wholly inadequate, if not irrelevant, to show mistake in the description contained in the 1888 deed. Finally, the law is clear that where there is a conflict between boundaries described in deeds from the same grantor, the deed first executed has priority, and the grantee named therein has superior title. Thompson v. Kauffelt, 110 Pa. 209, 214, 1 A. 267, 268 (1885); Murrer v. American Oil Co., 241 Pa.Super. 120, 124, 359 A.2d 817, 819 (1976); Will v. Piper, 184 Pa.Super. 313, 319, 134 A.2d 41, 44 (1957).

Appellants’ argument that there is a latent ambiguity in the description for lot 456 that becomes apparent when the description is applied to the ground must fail. There can be no latent ambiguity where, as here, there was land owned by the grantor which satisfied the description contained in the deed of conveyance. In such cases, parol evidence cannot vary the terms of the written instrument of conveyance. Kimmel v. Svonavec, supra 369 Pa. at 296, 85 A.2d at 148; Harvey v. Vandegrift, 89 Pa. 346, 352 (1879); South Connellsville Borough, Inc., supra, at 365.

We perceive no error in the trial court’s conclusion that there was neither ambiguity nor error in the description of appellants’ land. This description appeared constantly in deed after deed in the chain of title after the lot had initially been severed in 1888 from the larger tract then owned by Edward Parker. The location of the boundary lines for appellants’ land must be determined according to that deed description; they cannot be varied by the parol evidence offered by appellants. It follows additionally that the trial court was correct when it found that appellees’ sub-surface sewer line and side steps did not encroach upon appellants’ land.

The deed from Edward Parker to William McClennen included an easement over the forty feet wide private street “for a passageway and water course .... at all times hereafter forever.” This easement, although not recited in later deeds, continued to be used intermittently by the owners of 456 Parker Avenue. The trial court concluded correctly, as appellants now concede, that this easement had been created in perpetuity as an appurtenance to 456 Parker Avenue. Because it was an easement for the specific use of 456 Parker Avenue, it became an appurtenance thereto and did not require a subsequent writing or deed to support its continued existence. Brady v. Yodanza, 493 Pa. 186, 190, 425 A.2d 726, 728 (1981); Paci v. Shipley, 166 Pa.Super. 374, 377, 71 A.2d 844, 846 (1950); Held v. McBride, 3 Pa.Super. 155, 159 (1896); 21 Pa.C.S. § 3. Such an appurtenance passed by a conveyance of the estate. Brady v. Yodanza, supra 493 Pa. at 190, 425 A.2d at 728; Paci v. Shipley, supra, 166 Pa.Super. at 377, 71 A.2d at 846; Held v. McBride, supra, 3 Pa.Superior Ct. at 159.

An easement appurtenant cannot be terminated by mere non-user. Brady v. Yodanza, supra 493 Pa. at 189 n. 2, 425 A.2d at 727 n. 2; Baptist Church In The Great Valley v. Urquhart, 406 Pa. 620, 629, 178 A.2d 583, 588 (1962); Sabados v. Kiraly, 258 Pa.Super. 532, 535, 393 A.2d 486, 487 (1978).

“[T]o show an abandonment of [an] ... easement created by deed, the evidence must clearly show some conduct on the ground by the holder ... which manifests that he intended to abandon and give up permanently his right to use it. Such conduct must consist of some affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment.”

Sabados v. Kiraly, supra, 258 Pa.Superior Ct. at 535, 393 A.2d at 487. Accord: Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966) (emphasis omitted). The trial court found, and the evidence supports its finding, that the easement over 456A Parker Avenue had not been abandoned by appellees or by their predecessors in title.

Because appellees’ lot enjoys an easement appurtenant thereto which exists over Lot 456A Parker Avenue, the trial court properly enjoined appellants’ obstruction thereof.

Decree affirmed.


author: PER CURIAM:

text:
    472 A.2d 684
    Lucy WHITT v. The PHILADELPHIA HOUSING AUTHORITY, Appellant. Lucy WHITT, Appellant v. The PHILADELPHIA HOUSING AUTHORITY.
    Superior Court of Pennsylvania.
    Argued March 30, 1982.
    Filed Feb. 10, 1984.
    Petition for Allowance of Appeal Denied July 20, 1984.

      Arthur Edgar Schmidt, Philadelphia, for Whitt, appellant (at No. 109).
    James Maurice DeLeon, Philadelphia, for Phila. Housing, appellant (at Nos. 1679 and 108) and appellee (at No. 109).
    Louis S. Rulli, Philadelphia, for Whitt, appellee (at Nos. 1679 and 108).
    Before WIEAND, McEWEN and POPOVICH, JJ.
   PER CURIAM:

The several appeals presently before this Court have their genesis in a dispute between Lucy Whitt and her landlord, the Philadelphia Housing Authority. That dispute led to two separate arbitration proceedings; two court orders which, in effect, confirmed the separate arbitration awards; and a proceeding holding the Housing Authority in contempt for failing to make repairs as directed by the first of such confirmed awards. A brief history is necessary.

In October, 1976, Whitt deemed herself aggrieved because of the state of disrepair prevailing in the housing unit which she was leasing from the Housing Authority. Pursuant to procedure established by a consent decree entered in 1974 by the United States District Court for the Eastern District of Pennsylvania in Brown v. Philadelphia Housing Authority, Civil Action 72-2083, Whitt presented her grievance to arbitration. This resulted in an award directing the Housing Authority to make repairs to Whitt’s unit. The award also granted an abatement of rent in the amount of $645.00 and suspended the need to make any future payments of rent until the mandated repairs had been made. The Authority took the position, and so notified Whitt, that the award was unlawful and that it would refuse to honor it. Nevertheless, the award was confirmed by The Honorable Calvin T. Wilson on September 1, 1977. Whether proper notice of the confirmation hearing was given is in dispute. In any event, the Housing Authority was not represented at the hearing before Judge Wilson on September 1, 1977. Moreover, it did not appeal from the court order confirming the arbitration award.

Thereafter, Whitt continued to occupy the unit but paid no rent. In July, 1978, the Authority gave notice to Whitt that her lease was being terminated for nonpayment of rent. This prompted Whitt to file a second grievance on grounds that the prior arbitration award, confirmed by the court, had excused her from making rental payments until repairs had been made. On November 7, 1978, after hearing, a second arbitration award found that the circumstances had changed. It directed the Housing Authority to make enumerated repairs, some of which had not been completed as directed by the prior award, within thirty days. The award also contained a direction to Whitt to pay all rent due after March 1, 1978, less an abatement of $7.00 per month. Finally, the award directed that the termination notice be canceled unless Whitt failed to make arrangements to pay back rent in accordance with the award. Whitt filed a petition in the Court of Common Pleas to vacate or modify the second award because it allegedly failed to take cognizance of the prior arbitration award and confirmation by the court. Whitt’s petition was heard before The Honorable Eugene Gelfand and was dismissed on December 1, 1980. Whitt appealed from this order.

Meanwhile, on March 29, 1979, Whitt had filed a motion before Judge Wilson to hold the Authority in contempt for failing to comply with the confirmation order of September 1, 1977. The court issued a rule to show cause, held a hearing on June 7, 1979, and found the Authority in contempt. Judge Wilson’s contempt order directed once again that Whitt should pay no rent until repairs had been made and assessed the Authority with punitive damages of $1,000.00 and compensatory damages of ten dollars ($10.00) per day until the repairs were completed. From this order, the Authority appealed.

The Order of Contempt

“The law in Pennsylvania is settled that in civil contempt proceedings a final adjudication involves a five step, two hearing procedure. These steps include: (1) a rule to show cause why an attachment should not issue; (2) a hearing thereon; (3) a rule absolute; (4) a hearing on the contempt citation; and (5) an adjudication of contempt. See: Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 5-6, 253 A.2d 263, 266 (1969); Commonwealth v. Wright, 287 Pa.Super. 252, 254, 429 A.2d 1196, 1197 (1981); Cahalin v. Goodman, 280 Pa.Super. 228, 233, 421 A.2d 696, 698 (1980); Matter of Elemar, Inc., 44 Pa.Cmwlth. 515, 520, 404 A.2d 734, 737 (1979); Kramer v. Kelly, 265 Pa.Super. 58, 65, 401 A.2d 799, 802 (1979); Joseph Horne Co. v. International Union of Operating Engineers, Local Union No. 95-95A, 250 Pa.Super. 145, 154, 378 A.2d 868, 872 (1977); Crislip v. Harshman, 243 Pa.Super. 349, 352, 365 A.2d 1260, 1261 (1976).” Guisler v. Alexander, 307 Pa.Super. 219, 220, 453 A.2d 4, 4-5 (1982). Accord: Village Gentry, Inc. v. West Village, 316 Pa.Super. 404, 407, 463 A.2d 427, 428 (1983); Nemeth v. Nemeth, 306 Pa.Super. 47, 51-52, 451 A.2d 1384, 1387 (1982); Ewing v. Oliver Realty, Inc., 305 Pa.Super. 486, 491, 451 A.2d 751, 754 (1982); Simmons v. Simmons, 232 Pa.Super. 365, 370, 335 A.2d 764, 767 (1975).

In the contempt proceedings against the Housing Authority, this established procedure was not followed. A rule to show cause was issued and was served on the Housing Authority, after which a hearing was held immediately and an order of contempt entered. Whitt concedes that the five step, two hearing procedure was not followed but urges that we overlook this defect because the Authority nevertheless had sufficient notice and opportunity to defend. We decline to accept appellee’s invitation to ignore this procedural defect. Because the contempt proceedings were defective, the order holding the Housing Authority in contempt will be reversed.

We do not now determine whether an arbitration award in the nature of a mandatory decree can be enforced by the contempt powers of a court which has confirmed the award. But see and compare: Goldstein v. International Ladies’ Garment Workers’ Union, 328 Pa. 385, 196 A. 43 (1938); Dover v. Philadelphia Housing Authority, 318 Pa.Super. 460, 465 A.2d 644 (1983). Similarly, it is unnecessary to determine the effect of the intervening arbitration award,- the propriety of which we now proceed to consider.

The Order Refusing to Vacate or Modify the Second Arbitration Award

The second arbitration proceedings were commenced at the instance of Mrs. Whitt. Instead of resisting an action to evict her she responded affirmatively to the Housing Authority’s termination notice by once again pursuing a grievance before an arbitrator. In her grievance proceeding, Mrs. Whitt asserted the earlier arbitration award and the court’s confirmation order and argued that she had been excused from paying rent. The Housing Authority asserted, however, that the condition of the housing unit had been improved and that Mrs. Whitt had nevertheless failed to pay rent. The arbitrator found that some, but not all, repairs remained uncorrected and because of the changed circumstances entered an award which (1) directed the Housing Authority to make and complete certain enumerated repairs within thirty days; (2) directed Whitt to pay rent due from and after March 1, 1978, less an abatement of $7.00 per month; and (3) suspended the cancelation notice until arrangements were made by Mrs. Whitt to pay back rent due under the award. Mrs. Whitt then filed the petition to vacate or modify the award which was heard by Judge Gelfand.

The arbitration proceedings were held under the Arbitration Act of 1927, 5 P.S. § 161 et seq. Appellant argues, as she did in the trial court, that the arbitrator exceeded his powers and entered an award against the law because he did not adopt in toto the prior award and confirmation order of the Court. There is no merit in this argument.

It was Mrs. Whitt who requested the second arbitration and not the Housing Authority. Having requested the arbitrator to suspend the termination notice which was served upon her, she cannot complain that the relief she requested was granted upon condition that she pay rent. By resubmitting to arbitration her dispute with the Housing Authority, she opened the door to a full and complete determination of the respective rights and duties of the parties.

The award of the second arbitrator was not barred by principles of res judicata or collateral estoppel. A landlord and tenant relationship is not static but on-going. Circumstances change. Judgment for a single breach of an installment contract is not a bar to an action for a subsequent breach. Exner v. Exner, 268 Pa.Super. 253, 407 A.2d 1342 (1979); Byren & Weil v. French & Keeley, Inc., 103 Pa.Super. 573, 157 A. 367 (1931); 50 C.J.S., Judgments § 670. Similarly, where rent is paid on a monthly basis, a judgment for unpaid rent is not ordinarily a bar to an action to recover rent coming due and remaining unpaid thereafter. Kapp v. Shields, 17 Pa.Super. 524 (1901); 22 P.L.E., Landlord and Tenant § 353. In the instant case, almost two years had intervened between the first and second arbitration hearings, and almost one year had elapsed following court confirmation of the first award. The issues to be arbitrated in the second proceeding were not the same as those arbitrated in the first proceeding. The second arbitrator heard evidence regarding repairs that had been made and of the circumstances existing when, because of an alleged nonpayment of rent, termination notice was sent by the Housing Authority to the tenant. The arbitrator found that the conditions of the housing unit had changed and that effective March 1, 1978 the Housing Authority was entitled to be paid rent less an abatement of $7.00 per month. In this manner the arbitrator achieved a complete determination of the rights of the parties.

It should be recalled that the second arbitration award was entered on November 7, 1978. At this time there had been no judicial determination that the Housing Authority had failed to make repairs as required by the original arbitrator’s award. Mrs. Whitt’s contempt proceedings were not commenced until March 29, 1979, and the order of Judge Wilson was not entered until June 7, 1979. The court’s subsequent determination of Whitt’s contempt petition had no effect on the ability of the second arbitrator to make his own determination of the facts from the evidence presented and to fashion consistently therewith a complete resolution of the controversy.

Section 11 of the Arbitration Act of Í927, 5 P.S. § 171, authorizes a court to modify or correct an award “ ‘[w]here the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.’ This section ‘places an award on the same footing as the verdict of a jury [and] mistakes of law may be rectified on appeal.’ ” City of Lebanon v. District Council 89, 36 Pa.Cmwlth. 442, 446, 388 A.2d 1116, 1118 (1978), quoting Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 359, 39 A.2d 139, 141 (1944). Resolutions of factual disputes, however, are within the province of the arbitrator. “A reviewing court may not second-guess a fact-finder, where, as here, there is no transcript of the testimony and the reviewing court thus has no means by which to weigh the sufficiency of the evidence or to change the factual findings made therefrom.” Pein v. State Farm Mutual Automobile Insurance Co., 241 Pa.Super. 283, 286, 361 A.2d 348, 349 (1976). The arbitrator’s findings of fact, under such circumstances, are unassailable. Id., 241 Pa.Superior Ct. at 287, 361 A.2d at 350. It follows that Judge Gelfand could not properly modify the second arbitrator’s award, and he correctly refrained from doing so.

The order entered to No. 1734 August Term, 1977 and holding the Philadelphia Housing Authority in contempt is reversed. The order entered to No. 54 February Term, 1979 and dismissing Lucy Whitt’s motion to vacate or modify the arbitration award entered on November 7, 1978 is affirmed.

POPOVICH, J., concurs in the result.

      . The award was later amended to include an additional allowance of $165.86 to Whitt for smoke damage to personal property caused by a fire in the building.

        . In fact, the Housing Authority appealed twice. It appealed first from the contempt order and subsequently from the order dismissing its exceptions to the contempt order. All appeals, of course, have been consolidated for argument in this Court.

      . These issues can be considered by the trial court if and when Mrs. Whitt chooses to pursue the contempt citation.
      There is no merit to the Housing Authority’s contention that in a proceeding for civil contempt, whose dominant purpose is to coerce a party to do or refrain from doing some act for the primary benefit of a litigant or private party, a court may not assess punitive damages in the nature of an unconditional fine. See: Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 72-73, 417 A.2d 1248, 1258 (1979), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980).

      . The Act of 1927 was repealed by the JARA Continuation Act of 1980, October 5, P.L. 693, No. 142, § 501(c). Statutory arbitration is now provided for in Sections 7301-7320 of the Judicial Code, 42 Pa.C.S. §§ 7301-7320.

      . Section 10 of the Act of 1927, 5 P.S. § 170, directs the court to vacate the award upon application of any party to the arbitration:
      (a) Where the award was procured by corruption, fraud, or undue means.
      (b) Where there was evident partiality or corruption on the part of the arbitrators, or any of them.
      (c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misbehavior by which the rights of any party have been prejudiced.
      (d) Where the arbitrators exceeded their powers or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made.
      Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

      . The Act of 1927, 5 P.S. § 171, directs the court to "make an order modifying or correcting the award upon the application of any party to the arbitration:

        (a) Where there was an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing, or property referred to in the award.
      (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted.
      (c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
      (d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.


text:
    472 A.2d 689
    In the Matter of the ADOPTION OF Ruth BAUMAN and Rhonda Bauman, Minor Children. Appeal of Sandra BAUMAN.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1983.
    Filed Feb. 10, 1984.
    Reargument Denied April 3, 1984.

      Garry Edward Wamser, Lock Haven, for appellant.
    Merritt E. McKnight, Lock Haven, for appellees.
    Larry E. Coploff, Lock Haven, for participating party.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   PER CURIAM:

Appellant, Sandra Bauman, takes this appeal from the order and decree of the Court of Common Pleas of Clinton County by which the court terminated appellant’s parental rights to her children, Ruth and Rhonda, ages eleven and nine. ■ The basis for the termination listed by the court was the court’s conclusion that appellant “is incapable of providing parental care because of her lack of moral structure, and thus [sic] permanent moral and physical harm to the children.” While the court did not refer to a specific section in the statutes in support of its ruling, the court did cite as authority the case of In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978).

During the pendency of appellant’s appeal, the United States Supreme Court handed down its ruling in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), wherein the Court ruled that due process requires that the minimum standard of proof in involuntary termination proceedings be clear and convincing evidence. Accordingly, our Court held in In Re Adoption of M.E.T., 313 Pa.Superior Ct. 316, 459 A.2d 1247 (1983), that the higher standard of proof announced in Santosky must be applied to all cases which had not been finally decided on appeal at the time the Santosky opinion was handed down. This aspect of In Re Adoption of M.E.T., supra, has been approved by the Pennsylvania Supreme Court in In Re T.R., 502 Pa. 165, 465 A.2d 642 (1983). However, the Court added this directive at the end of its opinion: “To the extent that the holding of the Superior Court in In Re Adoption of M.E.T., 313 Pa.Superior Ct. 316, 459 A.2d 1247 (1983) limits the parties’ right to a rehearing it is disapproved.” Id., 502 Pa. at 169, 465 A.2d at 644. (Footnote omitted.)

Therefore, since the Common Pleas Court based its decision on a lesser standard of proof, its order must be vacated and appellant’s case must be remanded for a rehearing under the “clear and convincing evidence” standard of Santosky v. Kramer, supra, and In Re T.R., supra.

Reversed and remanded for further proceedings not inconsistent with the opinion in In Re T.R., 502 Pa. 165, 465 A.2d 642 (1983). This Court does not retain jurisdiction.

      . In its petition for involuntary termination, the Clinton County Children and Youth Social Service Agency lists section 2511 of the Adoption Act, the Act of October 15, 1980, P.L. 934, No. 163, § 1, 23 Pa.C.S. § 2101, et seq.

      . We also note that in his opinion, the hearing judge indicated that he was using the standard of "the best interests and welfare of the children....” We wish to point out on remand that while the standard of "best interests of the children” may be relevant in a custody case, it is not the proper yardstick in a termination of parental rights case. As we said in In Re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419, 422 (1975) (citations omitted.) “[I]n the absence of sufficient evidence to satisfy the statutory requirements for involuntary termination, the question of the best interest of the child never arises.”