author: SUGERMAN, Judge: SPAETH, Judge,

text:
    449 A.2d 697
    HOUSE OF PASTA, INC., Appellant, v. Charles A. MAYO and Vincent G. Corradino.
    Superior Court of Pennsylvania.
    Argued June 14, 1979.
    Filed Aug. 13, 1982.

      Daniel H. Shertzer, Lancaster, for appellant.
    Joseph J. Lombardo, Lancaster, for appellees.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Pres. Judge JOHN Q. STRANAHAN, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge LEONARD SUGERMAN, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

The question we address in this Appeal is whether a jury returned a verdict in both or only one of two civil actions consolidated and assertedly tried together. The lower court found that a verdict in only one of the two actions had been returned and thereupon molded the verdict accordingly.

From the record we observe that Appellees, Charles A. Mayo and Vincent G. Corradino, leased a building to Appellant, House of Pasta, Inc. on October 20, 1971 for a term of ten years. On or about May 22, 1975, the premises were destroyed by fire, and on the same day, Appellant vacated the premises. On May 27, 1975, four days subsequent to Appellant’s removal, Appellees confessed judgment under the lease against Appellant in the sum of $66,953.67, representing rental for the balance of the term of the lease, and counsel fees (“Confessed Judgment Action”). A few days later, Appellant filed a petition to open the judgment and the lower court granted the prayer of the petition, opened the judgment and let Appellant into a defense.

At the date the lease was executed by the parties, Appellant posted a security deposit with Appellees in the sum of $5,866.64. At a date subsequent to Appellant’s vacating the leasehold premises, Appellant demanded a return of the security deposit. Appellees refused, and on December 29, 1975, Appellant filed a complaint in assumpsit alleging a determination of the lease by reason of the fire and seeking a judgment in the sum of $5,866.64, representing the amount of the security deposit (“Assumpsit Action”). Appellees filed an answer containing new matter and a counterclaim. In their new matter, Appellees alleged that the fire was caused either by an intentional act on the part of Appellant or by Appellant’s gross negligence and that as a result, Appellant’s attempt to terminate the lease was unavailing.

In their counterclaim in the Assumpsit Action, Appellees asserted a variety of claims against Appellant, including a claim in the sum of $5,835.45 representing unpaid taxes and sewer rentals, removal of fixtures and damages to the premises. Appellees also claimed rental allegedly due in the sum of $32,806.40, or a counterclaim in the total sum of $38,641.85. A jury trial was demanded and the parties agreed prior to trial to consolidate both the Confessed Judgment Action and the Assumpsit Action for trial.

Trial commenced on June 20, 1976 and concluded on June 23, 1976. In the course of its final instructions to the jury, the trial court charged in relevant part, as follows:

“THE COURT: Members of the jury, you are trying in this matter two cases. I’m going to try to clarify the issues as best I can for you here, but what I want to say to you first is that in the first instance you are trying the case of Charles A. Mayo and Vincent Corradino versus the House of Pasta, Incorporated. In the second case you are trying the case of House of Pasta, Incorporated, versus Charles A. Mayo and Vincent G. Corradino.
Quite often in civil cases such as this there is a pleading and then there is an answer and a setoff in counterclaim, so you are only trying one case; however issues arose here between these parties that required the trying of two cases. I want you to keep that in mind when you go to your room. I’ll instruct you a little later on the verdict.
Now as to each plaintiff, in the one case, Mayo is the plaintiff, and in the other case, the House of Pasta is the plaintiff. In several cases such as these the plaintiff has the burden of proving those contentions which entitle him to relief. When a party has the burden of proof on a particular issue, his contention on that issue must be established by a fair preponderance of the evidence.
Now in the first case, that is the one of Mayo and Corradino versus the House of Pasta, they have the burden of proving the following propositions.
The plaintiff contends—both plaintiffs contend—there was such a binding agreement that has been established by the evidence, and upon that they demand redress. The defendants in each case have a different view.
Members of the jury, I spoke to you a little while ago about the burden of proof. Now the suit of Mayo and Corradino against House of Pasta, they have the burden as plaintiffs of proving they are entitled to the following claim which they have testified to, and which you will determine when you go to your jury room.
Testimony was offered whether or not a verbal agreement was made at the time of the written arrangement for the House of Pasta for procuring a beer license. There is testimony both indicating this was agreed to and testimony denying this arrangement likewise. The plaintiffs then discuss other items.
Now those other items are as follows: They are claiming rent from April and May of 1975. That’s two months rent or a month and up until May the 22nd. That comes to a figure of twelve hundred and fifty-three dollars. Now here’s where you have to make a reconciliation.
The testimony is that they offered to pay that rent I think three days before the end of May, claiming that they had until the end of May to pay it, and then it was refused. On the other hand the landlords, Mayo and Corradino, claimed they entered a judgment against them, a large judgment, which they are not now trying to collect because that’s for the balance of the rent for a long term, and therefore there wasn’t a proper tender of that rent.
You must find out whether there was a tender or wasn’t. If there was no proper tender, then the plaintiff would be entitled to the twelve hundred fifty-three dollars. If there was a tender, and it was not accepted, then that would make it a different story.
Now we then get to the rent of January 1st, ’76 at two thirty-three a month. Then the next year you remember the new tenant was going to pay an extra hundred dollars. They are claiming thirteen thirty for that. Now you must determine whether, when the lease, the lease says, and you’ll have that lease with you when you go out as an exhibit, that if the property becomes untenantable, and obviously it was untenantable if there was serious fire and it isn’t repaired in six months, the term is cancelled. If that is the case, then the plaintiff would not be entitled to that—that is Mayo and Corradino would not be entitled to that sum.
Now the sewer charge is a hundred twenty dollars. There was testimony that was due, and the taxes were seventy-nine—that was due. The damage to the building was testified to. It was eleven hundred and fifty dollars. The main claim, of course, is the thirty-one hundred and forty dollars claimed by Mayo and Corradino for that extra hundred dollars, so if you resolve the fact there was to be a hundred dollars paid, which is in dispute as I said, then you can allow that also on the claim of Mayo and Corradino.
Now on the other hand, we get to the claim of House of Pasta. Now theirs is a single item which is fifty-eight hundred and sixty-six dollars and sixty-four cents. Now they paid that in advance. That was advance rent to secure the lease, I think, the last seven months of the lease. They claim they are entitled to that back because they claimed they didn’t breach this contract in any way.
That’s for you to determine whether there was a breach or there wasn’t. If they didn’t breach that contract in any way, shape or form, then you could award that sum or so much thereof as you feel is due. That also applies to the claim of Mayo and Corradino.
The mere fact they say these items are due, like the eleven fifty for the damage to the building and the fifty-eight hundred and sixty-six dollars that the House of Pasta claims, you can award either plaintiff whatever you think is due under those arrangements, or so much thereof as you think they should have. . .
“Now when you go to your jury room, you’ll have two verdict slips. You’ll have the verdict slip for Mayo and Corradino against Pasta, and then you’ll have a verdict slip of Pasta against Mayo and Corradino. You can find in favor of the plaintiff or in favor of the defendant.” (Emphasis added)

At the conclusion of the jury’s deliberations, it returned these verdicts:

“THE CLERK: Members of the jury, have you agreed upon a verdict?
THE FOREMAN: We have.
THE COURT: Bring it over, please. (The verdict was handed to the Court.)
THE COURT: All right. Which was the first one? Your case, that was Mayo and Corradino, read this one first and then the other one second, please.
THE CLERK: Members of the jury, harken to the verdict as the court has recorded it in the issue joined wherein Charles A. Mayo and Vincent G. Corradino, the plaintiffs, versus the House of Pasta, Incorporated, the defendant. You say you find in favor of Charles A. Mayo and Vincent G. Corradino and against the House of Pasta, Incorporated in the sum of five thousand forty-three dollars and thirty-one cents.
And in the second case wherein the House of Pasta, Incorporated, the plaintiff, and Charles A. Mayo and Vincent G. Corradino, the defendants, you say you find in favor of the House of Pasta, Incorporated and against Charles A. Mayo and Vincent G. Corradino in the sum of five thousand eight hundred sixty-six dollars and sixty-four cents. And so say you all?
(The jury responded in the affirmative.)
THE COURT: All right. The verdict is so recorded.
Do counsel have anything they wish to say? No reason to retain this jury any longer.
MR. SHERTZER: [Counsel for Appellees] No, Your Honor.”

On July 3, 1978, Appellant filed a motion for Judgment N.O.V. and while the same was pending, the Prothonotary of Lancaster County entered judgment on the verdict in favor of Appellant in the sum of $5,866.64 and costs. On July 12, 1978, Appellees filed a petition to open or strike the judgment entered by the Prothonotary on the verdict, contending that the jury returned a verdict for them on their counterclaim as well as a verdict for the Appellant, and that the Prothonotary failed to “set off” the verdict on the counterclaim against the verdict in favor of Appellant. In their petition, Appellees aver, and Appellant admits in its answer to the Petition, that all evidence presented by Appellees at trial on the Assumpsit Action was in support of Appellees’ counterclaim only.

On October 31, 1978, the lower court disposed of Appellees’ petition to open or strike the judgment entered on the verdict and Appellant’s petition for a new trial and judgment N.O.V. by the following order:

“AND NOW, October 31,1978 the verdict of the jury to December Term 1975, No. 196, [Assumpsit Action] in which House of Pasta, Inc., has sued Charles A. Mayo and Vincent G. Corradino the verdict is molded as follows: House of Pasta, Inc., vs Charles A. Mayo and Vincent G. Corradino, in favor of House of Pasta, Inc., the sum of $5,866.64 is stricken and the motions of House of Pasta, Inc., for a New Trial and Judgment N.O.V. are denied and dismissed and judgment is hereby entered in favor of House of Pasta, Inc. and against Charles A. Mayo and Vincent G. Corradino in the sum of $5,866.64 to December Term, 1975, No. 196, and judgment is hereby entered in favor of Charles A. Mayo and Vincent G. Corradino and against House of Pasta, Inc., in the sum of $5,043.31 on their New Matter and Counterclaim to December Term 1975, No. 196.
The Court further orders and directs that the judgment of Charles A. Mayo and Vincent G. Corradino against House of Pasta, Inc., in the amount of $66,953.67 to Confessed Judgment No. 1707-1975 is hereby stricken

In essence, then, the lower court granted Appellees the relief they sought and set off the verdict Appellees contended was returned in their favor upon their counterclaim.

Appellant contends on appeal that the lower court improperly molded the verdict in its Order of October 31, 1978, and it bases this contention upon the assertion that the jury’s verdict in favor of Appellees was not an award upon their counterclaim in the Assumpsit Action, but was rather a verdict in favor of Appellees in the Confessed Judgment Action-. Appellees argue, to the contrary, that notwithstanding consolidation of the two actions for trial, no evidence was presented to the jury by either party in the Confessed Judgment Action and the jury was not instructed to return a verdict in that action. Appellees also point to Appellant’s admission that no evidence in the Confessed Judgment Action was presented to the jury, as set forth in Appellant’s Answer to Appellees’ petition to open or strike the judgment on the verdict entered by the prothonotary.

The lower court in an opinion in support of its Order molding the verdict also found that only those claims set forth in Appellees’ New Matter and Counterclaim were presented to the jury and that no evidence relating to the Confessed Judgment Action was elicited at trial. Thus, the Court concluded that no verdict had been returned in the Confessed Judgment Action. We agree and thus affirm.

Appellant’s principal argument on appeal of course focuses upon the molding of the verdict by the lower court. In a two-pronged attack, Appellant contends that (1) the Court had no power to mold the verdict as the jury clearly returned two verdicts—one in the Assumpsit Action and the other in the Confessed Judgment Action—and (2) the court molded the verdict to correct what the court misperceived to be a “trial error”. Before we examine these contentions in turn, we briefly restate the general principles necessary to the disposition of the issues before us.

It is well settled that a trial court in this Commonwealth has the power to mold a jury’s verdict to conform to the clear intent of the jury. Groh v. Philadelphia Electric Company, 441 Pa. 345, 271 A.2d 265 (1970); Bitting v. Wolfe, 368 Pa. 167, 82 A.2d 21 (1951); Wadatz v. Taormina, 356 Pa. 481, 52 A.2d 220 (1947); Pniewski v. Kunda, 237 Pa.Super. 438, 352 A.2d 462 (1975) 38 P.L.E., Trial, § 394; 6 Standard Pa. Practice (Rev.Ed.), Ch. 27, § 72; 1 Pennsylvania Trial Guide (Feldman Revision) § 15.5. As we said in Richards v. Bravo Corp., 249 Pa.Super. 47, 375 A.2d 750 (1977):

' “The power of a trial judge to exercise his discretion in molding a verdict to fit the expressed desires of the jury is a cornerstone of the jury system.” Id., 249 Pa.Superior Ct. at 58, 375 A.2d at 756

Verdicts which are not technically correct in form but which manifest a clear intent on the part of the jury may be corrected without resort to further jury deliberations or the grant of a new trial. Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 380 A.2d 451 (1977).

At the same time, we are reminded that the power of a trial court to mold a verdict is not unlimited, and a verdict may not be molded where the intention of the jury is not obvious, May v. Pittsburgh Railways Co., 209 Pa.Super. 126, 224 A.2d 770 (1966), or where the intention of the jury has not been expressed at all as when the jury has failed to return a verdict, Bowie v. Shelton, 214 Pa.Super. 107, 251 A.2d 667 (1969), or to satisfy the supposed equities of the case, Interstate Creamery, Inc. v. Reinerth, 212 Pa.Super. 335, 243 A.2d 451 (1968). Nor may a verdict be molded to express an intention on the part of a jury when the question was never submitted to the jury. Kardibin v. Associated Hardware, 284 Pa.Super. 586, 426 A.2d 649 (1981).

Stated more simply, the power to mold or more precisely amend a jury’s verdict is merely a power to “make the record accord with the facts, or to cause the verdict to speak the truth”, 6 Standard Pennsylvania Practice, supra, Ch. 27, § 72 at 568, and not a power to enable a judge to invade the province of the jury. Richards v. Dravo Corp., supra.

In order to apply these principles to the case before us, we have examined the record of the trial, and all of the documents filed in the Assumpsit Action and the Confessed Judgment Action, in consummate detail, and it is obvious to us, as it was to the court below, that not a single word of testimony or evidence of any kind was presented to the jury concerning the subjects of the Confessed Judgment Action. It is equally apparent that the charge of the court did not submit the issues raised in the Confessed Judgment Action to the jury for consideration. In such circumstances, the jury could certainly have expressed no “intention” as to the issues in the Confessed Judgment Action and to have permitted a verdict upon those issues to have remained recorded would have constituted clear error. Kardibin v. Associated Hardware, supra. And compare Bowie v. Shelton, supra. It is apparent from the court’s ruling and its emphasized remarks that the court did not consider the pleadings in the Confessed Judgment Action to be in any manner related to the case on trial.

It will be recalled that the lower court at the outset of its charge to the jury, said:

“THE COURT: Members of the jury, you are trying in this matter two cases. I’m going to try to clarify the issues as best 1 can for you here, but what I want to say to you first is that in the first instance you are trying the case of Charles A. Mayo and Vincent Corradino versus the House of Pasta, Incorporated. In the second case you are trying the case of House of Pasta, Incorporated, versus Charles A. Mayo and Vincent G. Corradino.
Quite often in civil cases such as this there is a pleading and then there is an answer and a setoff in counterclaim, so you are only trying one case...”

It is clear to us that although the court spoke of two cases, it was in reality endeavoring to explain in simplified form the nature of a complaint and a counterclaim filed in response thereto. Our view is reinforced upon reviewing the contentions of the parties as stated by the court in the charge. As one such example, Appellees in their counterclaim sought to recover rental only for the months of April and May, 1975. Addressing this claim in its charge, the court said:

“They are claiming rent from April and May of 1975. That’s two months rent or a month and up until May the 22nd. That comes to a figure of twelve hundred and fifty-three dollars. Now here’s where you have to make a reconciliation.
The testimony is that they offered to pay that rent I think three days before the end of May, claiming that they had until the end of May to pay it, and then it was refused. On the other hand the landlords, Mayo and Corradino, claimed they entered a judgment against them, a large judgment, which they are not now trying to collect because that’s for the balance of the rent for a long term, and therefore there wasn’t a proper tender of that rent.

In the Confessed Judgment Action, however, Appellees are seeking not only the rental for April and May, 1975, but also rental assertedly due for the balance of the lease term, or the total sum of nearly $61,000.00.

The Court continued in its charge to carefully review each of the claims set forth in Appellees’ counterclaim, but not once did the court speak or allude to the question of whether Appellees were entitled to receive rental for the remainder of the term—the subject of the Confessed Judgment Action. In response to the charge upon the claims in the complaint and the counterclaim, the jury returned two verdicts, as it was instructed to do.

We also observe from the record that the verdict returned by the jury in favor of Appellant was recorded by the jury itself on a verdict slip properly bearing the caption of the Assumpsit Action, but the verdict in favor of Appellees was recorded on a verdict slip bearing the caption of the Confessed Judgment Action. We do not find this error significant, and note that a trial court in this Commonwealth has the power to mold or amend a verdict to correct a mistake or to put it into proper form in accordance with the law. Bu- checker v. Reading Co., 271 Pa.Super. 35, 412 A.2d 147 (1979) (Jury mistakenly reversed awards in a wrongful death and survival action; trial court properly corrected mistake); Longberry v. Paul, 205 Pa.Super. 435, 211 A.2d 107 (1965) (Jury awarded husband plaintiff $3,000.00 for loss of consortium in case in which wife plaintiff, also an additional defendant, was found negligent; as husband plaintiff was not entitled as a matter of law to recovery for loss of consortium due to injuries to wife plaintiff when such injuries were contributed to by her own negligence, trial court properly molded verdict by deleting the $3,000.00 award for loss of consortium). And see 1 Pennsylvania Trial Guide (Feldman Revision), supra, § 15.5 (collects cases).

Finally, we have obtained the record in the Confessed Judgment Action and find from an examination of the multiplicity of pleadings filed in that case, and the deposition testimony, that the issues in the case were indeed strenuously contested by the parties and it cannot be rationally suggested that Appellees’ claim, then reduced to judgment in the aforesaid sum of nearly $70,000.00 and ultimately opened by the trial court, would be abandoned at trial.

In sum, we conclude that as the jury was unaware of the issues framed in the Confessed Judgment Action, heard no testimony and considered no evidence on those issues, and received no instructions thereon, it clearly returned a verdict only upon Appellant’s claim as set forth in the complaint in the Assumpsit Action, and upon Appellees’ claims as set forth in their counterclaim filed in the Assumpsit Action. The court properly molded the verdict to reflect the jury’s obvious intention. Rusidoff v. DeBolt Transfer, Inc., supra.

Appellant in its Brief alludes to four additional issues. We address them briefly as does Appellant. Appellant first contends that Appellees introduced into evidence a written addendum to the lease, subsequently executed, which permitted Appellant to sell alcoholic beverages. Although the addendum did not require Appellant to pay increased rental, the trial court permitted Appellees to testify over objection that Appellant orally agreed to pay additional rental as to have included that term would in Appellees’ view have violated the Liquor Code. Appellant contends that permitting Appellees to testify to the oral aspect of the addendum violated the parol evidence rule and permitted Appellees to thereby vary the terms of the written lease.

It is axiomatic that the parol evidence rule, which prohibits the admission of oral evidence to vary or contradict a written contract simply does not apply to or prohibit a subsequent modification of a written contract “by writings or by words or by conduct or by any combination of these”. Levicoff v. Richard I. Rubin and Co., 413 Pa. 134, 141, 196 A.2d 359, 362 (1964); McBride v. Davis, 266 Pa.Super. 125, 403 A.2d 125 (1979) (collects cases).

As Appellant’s last three assignments of error, it contends that it was prejudiced when the lower court permitted the pleadings in an unrelated suit between Appellant and its insurance carrier to go to the jury, as Appellant’s carrier asserted in its answer to Appellant’s complaint that Appellant intentionally set fire to the property; that the court erroneously permitted Appellees to recall a witness during the presentation of Appellant’s case and then compounded the error by refusing to permit Appellant’s counsel to cross examine the witness; and that the lower court permitted several photographs to go to the jury that had not been otherwise identified during the course of the trial.

Although, again, generally asserting prejudice, Appellant has failed to articulate the manner in which its case was prejudiced. We have carefully examined the record in the context of Appellant’s assertion and find no prejudice whatever. Although we may well conclude that the admission of the photographs without a proper foundation was error, and that the contents of the pleadings in the earlier litigation between Appellant and its insurance carrier were irrelevant, we are reminded that error in the abstract is not an adequate reason to afford relief and before we may grant relief we must conclude that trial errors led to an incorrect result. Warren v. Mosites Construction Company, 253 Pa.Super. 395, 403, 385 A.2d 397, 401 (1978). We are unable to draw such conclusion in the face of the fact that the verdict returned in favor of Appellant was precisely the sum it sought in its complaint, and the verdict in favor of Appellees was in an amount substantially less than they sought to recover at trial.

Affirmed.

SPAETH, J., files a concurring statement.

SPAETH, Judge,

concurring:

I agree that we should affirm. I assume that it is understood that the order of the lower court striking the judgment in the confessed judgment action was with prejudice, so that the entire matter is now concluded.

      . We note, for example, the following dialogue between the lower court and Appellant’s counsel, out of the presence of the jury and at the conclusion of the trial:
      “MR. SHERTZER: I will offer in evidence paragraph three of the petition to open or strike judgment in Mayo et al versus House of Pasta, Incorporated, to confessed judgment, 1975, number 1707 which reads (reading:) that on May 27, 1975, the plaintiffs, by their attorney, David S. Wedge, Esquire, filed a complaint for entry of judgment against the defendant by confession in ejectment of said premises and for the sum of sixty-six' thousand nine hundred fifty-three dollars and thirty-four cents alleged by the plaintiffs to be due as rent. (End of reading.)
      Paragraph three of plaintiff’s answer reads (reading:) on May 27th, 1977, the plaintiffs, by their attorney, David F. Wedge, Esquire, filed the complaint alleged in defendant’s petition. (End of reading.)

        I offer that in evidence.
      THE COURT: Denied. I’ll refuse it. Exception noted.
      MR. SHERTZER: I’ll also offer, since this is an admission, from the House of Pasta, Incorporated versus Mayo, et al, number 196, September Term, 1975, paragraph six of the complaint.
      (Reading:) In accordance with the aforesaid provision, plaintiff did pay to defendant the sum of five thousand eight hundred sixty-six dollars and sixty-four cents. (End of reading.)
      And from the answer thereto, it was admitted.
      THE COURT: I’ll admit that because those are the pleadings. You admit that and I’ll admit that. They paid the fifty-eight hundred dollars.” (N.T. 288-89)

      . The captions had been typewritten and were obviously prepared in advance of trial by a court clerk.

      . In its Order of October 31, 1978 molding the verdict, the lower court granted Appellant’s petition to strike Appellees’ judgment. That part of the Court’s order is not a subject of the within appeal.

      . Appellant also contends that the lower court had no authority to grant Appellees relief by molding the verdict as Appellees had failed to except to the charge of the court, had failed to object to the verdicts when returned by the jury, and had failed to file post trial motions, thereby waiving the issue. As it was apparently as clear to Appellees as it is to us that the court did not instruct the jury upon any of the issues germane to the Confessed Judgment Action, Appellees had no reason or basis to except to the charge or object to the verdicts as returned by the jury. Finally, contrary to Appellant’s assertion, the record does reveal that Appellees did timely file a motion for judgment N.O.V. in the Confessed Judgment Action, and a few days thereafter, a petition to open or strike the judgment entered by the Prothonotary in the Confessed Judgment Action. We thus find no waiver.

      . Act of 1951, P.L. 90, art. I, §§ 101, et seq., as amended, 47 P.S. §§ 1-101, et seq.

      . “Prejudice” does not mean “detrimental to a party’s case” but rather “an undue tendency to suggest decision on an improper basis”. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    449 A.2d 705
    Albert S. GROSSI, Executor of the Estate of Marie G. Grossi, deceased, Appellant, v. PRESBYTERIAN-UNIVERSITY HOSPITAL, a corporation; Dernatel, Inc., a foreign corporation, doing business in Pennsylvania; How Medica, Inc., a foreign corporation, doing business in Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1979.
    Filed Aug. 13, 1982.
    Jeffrey J. Bernstein, Pittsburgh, for appellant.
    John W. Jordan, Pittsburgh, for Presbyterian, appellee.
    Susan Richard, Pittsburgh, for Dernatel and How Medica, appellees.
    Before CERCONE, President Judge, and MONTGOMERY and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from an order in which the court below dismissed the complaint on the ground that exclusive original jurisdiction was in the Arbitration Panels for Health Care. In light of our Supreme Court’s decision in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), the order must be reversed, and the case remanded for trial. . Spruk v. United Laboratories of Cleveland, 290 Pa.Super.Ct. 74, 434 A.2d 136 (1981); Ehritz v. Cappriotti, 288 Pa.Super.Ct. 265, 431 A.2d 1040 (1981); Gallagher v. Caliguiri, 287 Pa.Super.Ct. 250, 429 A.2d 1195 (1981); Smith v. Barclay, 286 Pa.Super.Ct. 510, 429 A.2d 438 (1981); see Firich v. American Cystoscope Makers, Inc., 635 A.2d 259, 261 (3rd Cir. 1980).

Order reversed, complaint reinstated, and case remanded for trial.


text:
    449 A.2d 705
    Thomas MOODY, Appellant v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed Aug. 13, 1982.

      Barry Adelman, Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and WATKINS.
   PER CURIAM:

Thomas Moody (Appellant) filed a multi-count complaint in both trespass and assumpsit against Allstate Insurance Company, (Appellee) seeking recovery for injuries sustained in December 1978 as a result of Appellant having been struck, while a pedestrian, by an automobile operated by the Appellee’s insured. A Petition to Compel [Appellee] to Pay Personal Injury Protection Benefits had been filed in the lower court previous to the filing of the instant complaint. All the pleadings in that earlier proceeding were incorporated into the First Count of the present action, which count was styled, “Complaint in Assumpsit.”

The Second Count of the Complaint, which was styled “Complaint in Trespass,” sought punitive damages for the alleged failure to make timely payment of No-Fault benefits claimed by Appellant. The trial court granted Appellee’s Motion for Summary Judgment, and struck the Second Count of the Complaint consisting of paragraphs 11 through 17 only. It is from the order granting summary judgment as to the second count that this appeal is taken.

Although not raised by either party, we will raise the question of appealability of the lower court’s Order sua sponte, as neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super.Ct. 511, 430 A.2d 1007 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super.Ct. 350, 430 A.2d 321 (1981).

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). “In determining what constitutes a final order we . . . look to ‘a practical rather than technical construction’ of an order.” Tunstall v. Penn Federal Savings and Loan Association; id., 287 Pa.Superior Ct. at 514, 430 A.2d at 1009, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). A final order is an order which either ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Tunstall v. Penn Federal Savings and Loan Association, supra; Mitchell v. Center City Cadillac, supra.

An order dismissing some but not all counts of a multi-count complaint is interlocutory, as appellant has not been put “out of court.” Evans v. Government Employees Insurance Company, 291 Pa.Super.Ct. 342, 435 A.2d 1258 (1981); Mitchell v. Center City Cadillac, supra; Bagshaw v. Vickers, 286 Pa.Super.Ct. 246, 428 A.2d 664 (1981).

In the instant case, the lower court struck only the paragraphs set forth in the second count of the Complaint, leaving paragraphs 1 through 10 for later disposition by the parties or the court. While both Appellant and Appellee urge us to review whether a court may assess punitive damages upon failure of timely payment of No-Fault benefits, we expressly refuse to do so. The record on this appeal leads to the inescapable conclusion that the order striking only a part of Appellant’s claims does not constitute a final order, and would not end the litigation nor dispose of the entire case. Therefore, the appeal is interlocutory.

Accordingly, the appeal from the Order dated April 16, 1981 is quashed.


author: CERCONE, President Judge: WIEAND, Judge,

text:
    449 A.2d 707
    In re Joann BENNAGE and Pauline Bennage and Minor Children. Appeal of Kenneth BENNAGE.
    Superior Court of Pennsylvania.
    Submitted March 23, 1981.
    Filed Aug. 20, 1982.

      Joseph A. Campagna, Jr., Sunbury, for appellant.
    Raymond Lobos, Mifflinburg, for appellee.
    Before CERCONE, President Judge, and WIEAND and LIPEZ, JJ.
   CERCONE, President Judge:

Appellant is the natural father of two minor children, Joann and Pauline. They are not only the objects of his affection but also the objects of this appeal, for it involves a dispute over their custody. They were adjudicated dependent in November of 1973 and placed in the custody of Union County Child Welfare Services. In January of 1980 appellant filed a petition to resume custody of his children. A hearing on the petition was held on February 13, 1980. The court denied the petition the same day. This timely appeal followed. For the reasons stated below we now vacate the order appealed and remand for further proceedings below.

Appellant argues that the court erred when it did not apply the “clear necessity” standard as set out in the Juvenile Act, but rather decided the case on the “best interest of the child” standard. We cannot accept appellant’s contention as correct. It has been clear for some time that in cases such as this one the proper test to apply is the “best interests” test. As Judge Hoffman cogently stated in a recent opinion:

The “clear necessity” standard is designed to ensure that family unity is preserved “whenever possible.” 42 Pa.C.S.A. § 6301(b)(1) and (3).
However, once the child has been taken from the parents, the court will appraise the evidence, and award custody, according to the child’s best interests. In applying this standard the court will recognize the natural parents’ claim to custody. In a given case this claim may prove of decisive weight; the particular circumstances of each case, including such facts as the length of time the child has been separated from the parents, must be taken into account.
Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 391, 324 A.2d 562, 572 (1974) (emphasis added).
As we noted in Stapleton, supra, “the natural parents’ claim to custody” is a significant, and sometimes decisive factor in custody disputes such as this one. Indeed, our cases have long recognized “that depriving a parent of [his or] her child is one of the most serious interferences that the state can impose on an individual.” Milligan v. Davison, 244 Pa.Super. 255, 261, 367 A.2d 299, 302 (1976). See also In re William L., 477 Pa. 322, 383 A.2d 1228 (1978); Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949); In the Interest of LaRue, [244 Pa.Super. 218, 366 A.2d 1271 (1976) (plurality opinion)]; Rinker Appeal, 180 Pa.Super. 143, 117 A.2d 780 (1955).

In re Donna W., 284 Pa.Superior Ct. 338, 343-344, 425 A.2d 1132, 1134-35 (1981).

We come now to the scope of appellate court review of child custody cases. In Lewis v. Lewis, 267 Pa.Superior Ct. 235, 406 A.2d 781 (1979) we said:

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra [263 Pa.Superior Ct. 27, 396 A.2d 1359 (1979) ]; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa. Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra. Id., 267 Pa.Superior Ct. at 240-241, 406 A.2d at 783-784. See also Ray v. Ray, 293 Pa. Superior Ct. 216, 438 A.2d 614 (1982); Beichner v. Beichner, 294 Pa.Superior Ct. 36, 439 A.2d 737 (1982); Commonwealth ex rel. Michael R. v. Robert R. R., 293 Pa.Superior Ct. 18, 437 A.2d 969 (1981). (Opinion by Spaeth, J., joined by Cavanaugh, J.) (Concurring Opinion by Cercone, President Judge). Unfortunately, the record before us is inadequate to make that comprehensive review in order to determine what is the best interests of Joann and Pauline. Appellant, who has remarried since his divorce from the girls’ mother and now has three step-children and a son born of his second wife, testified as to his current fitness as a parent, the humble but adequate nature of his dwelling-house, his plans for the future and his desire to regain custody of the girls. In its half of the case Child Welfare Services presented several witnesses, including some of the case-workers who had observed appellant with his children and a home visitor. The import of their testimony was that appellant’s home was less than adequate even for its current residents, that his step-children and young son were often absent from school and may have been sickly, and that his plans were not entirely realistic in view of appellant’s poor health and the family’s financial condition. The record does contain some testimony concerning the girls’ care in their foster homes and their progress in school. This is scant at best, however. And although the court conducted an in camera session with the two girls, that testimony concentrated on their hopes and desires, and left essentially untouched the care they received in Union County’s custody. Entirely lacking from the record is testimony by the foster parents, or testimony concerning the quality of the girls’ home-life. We cannot fault the lower court’s opinion for any lack of thoroughness, for it articulated its reasons for denying appellant’s petition with care and attention to detail based on the evidence before it. However, the fact remains that the record is not thorough enough to permit a comprehensive review and determination of the best interests of these children. We are left with the uncomfortable feeling of having seen but half the picture. Since we are unable to make that determination we must vacate the court’s order and remand the case for further proceedings below. See Ray v. Ray, supra; Beichner v. Beichner, supra; Commonwealth ex rel. Michael R. v. Robert R. R., supra.
Order vacated and case remanded for proceedings below not herewith inconsistent. Jurisdiction relinquished.

WIEAND, J., filed a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment the trial court was in possession of ample facts to make a custody determination. Moreover, the reasons for continuing custody of appellant’s dependent daughters in the Union County Child Welfare Services were not only convincing but compelling. Those reasons have been set forth in the comprehensive opinion of the trial court, and no good purpose would be served by repeating them here. Suffice it to say that appellant’s circumstances are such that he is unable physically or financially to provide adequate care for his daughters. I would affirm the order denying his petition to resume custody.

      . The children’s mother has not participated in the instant litigation, and the record is essentially silent as to her.

      . This case was reassigned to this writer on March 23, 1982.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended; 42 Pa.C.S. § 6301 et seq. See specifically 42 Pa.C.S. § 6301(b)(1) & (3). And see In the Interest of S.M.S., 284 Pa.Superior Ct. 9, 424 A.2d 1365 (1981); In the Interest of Pernishek, 268 Pa.Superior Ct. 447, 408 A.2d 872 (1979).


author: SPAETH, Judge: LIPEZ, Judge,

text:
    449 A.2d 710
    Thomas BASSARO, Joseph G. Hudak, Harold Karlinsey, John Strittmatter, Francis Farabaugh, Dennis Marshall, William Kokla and Paul Ivory, v. BARNES & TUCKER COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Aug. 20, 1982.

      John T. Schmidt, Pittsburgh, for appellant.
    Melvin P. Stein, Pittsburgh, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This appeal involves a dispute between appellant, Barnes and Tucker Company, a company engaged in operating coal mines, and eight of its employees. The dispute arose in November 1978, when appellees, returning from work, discovered that their cars had been vandalized. The cars were parked in the company lot. Appellees filed this action against appellant seeking reimbursement for the cost of repairing their cars. Appellant filed preliminary objections asserting that appellee’s sole remedy lay in the arbitration procedure contained in the collective bargaining agreement between the parties, and that the lower court therefore lacked subject matter jurisdiction. On July 15, 1979, the lower court entered an order dismissing the preliminary objections and this appeal followed.

The lower court’s order is not one of the interlocutory orders described in Pa.R.A.P. 311 as an order from which an appeal may be taken as of right. Appellant, however, argues that its appeal is authorized by the Act of March 5, 1925, P.L. 23 § 1, 12 P.S. § 672, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1069), effective June 27, 1980. We disagree. The lower court’s refusal to grant appellant’s preliminary objections was a determination of the parties’ rights under their collective bargaining agreement. The lower court had the right to interpret the terms of the agreement, and its determination did not become a question of jurisdiction because the court concluded that this dispute was not within the arbitration clause. Since this appeal therefore raises a question of contract law and not of jurisdiction, it is interlocutory and unappealable. See, Shaw Elec. Co. v. IBEW, 422 Pa. 211, 220 A.2d 889 (1966); Wechsler v. Newman, 256 Pa.Superior Ct. 81, 389 A.2d 611 (1979).

APPEAL QUASHED.

LIPEZ, J., files a concurring statement.

LIPEZ, Judge,

concurring:

I agree that the lower court’s determination, rightly or wrongly, as to the parties’ rights does not raise a jurisdictional question and hence the appeal should be quashed. The correctness of its interpretation must await another day.


author: SPAETH, Judge:

text:
    449 A.2d 711
    In re Robert WILSON. Appeal of Robert WILSON.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed Aug. 20, 1982.
    Petition for Allowance of Appeal Denied Dec. 1, 1982.

      John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
    Ralph J. Johnston, City Solicitor, Wilkes-Barre, for participating party.
    Before SPAETH, BROSKY and BECK, JJ.
   SPAETH, Judge:

This appeal is from an order recommitting appellant, a forty year old man, to in-patient psychiatric care at Danville State Hospital for thirty days. We note at the outset that although the thirty days have expired, this appeal is not moot. See, In Re Ann S., 279 Pa. Superior Ct. 618, 421 A.2d 370 (1980) (dismissal of appeals from expired commitment orders as moot would result in challenged procedures evading review). However, we affirm the order of the lower court because appellant has failed to preserve any issues for our review.

Pa.R.A.P. 302(a) provides that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.C.P. 1038(d) provides, in part, that “[m]atters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters.” Rule 1038 is applicable to the trial of an action in assumpsit by a judge sitting without a jury. The rules specifically provide that other civil actions are to conform to the assumpsit rules unless a different procedure is expressly mandated. See, Pa.R.C.P. 1051, 1061, 1071. Insofar as there is no authority requiring a different procedure in cases involving civil commitment, we think Pa.R.C.P. 1038 is controlling. See, In the Interest of Treva Stover, 297 Pa. Superior Ct. 116, 443 A.2d 327 (1982); Commonwealth ex rel. Bielat v. Bielat, 257 Pa. Superior Ct. 446, 390 A.2d 1321 (1978). In this case, appellant failed to file exceptions to the adjudication below. Consequently, no issues have been preserved for appellate review.

Nevertheless, appellant is not without a remedy, for he can petition the lower court for leave to file exceptions nunc pro tunc, or he can seek review by alleging ineffective assistance of counsel for failing to file exceptions. See, In Re Commitment of Donna Hutchinson, 279 Pa. Superior Ct. 401, 421 A.2d 261 (1980).

Affirmed.

      . We note that exceptions were not filed in In Re Commitment of Ann S., 279 Pa.Superior Ct. 618, 421 A.2d 370 (1980). In that case, however, the question of exceptions was not reached as this court reversed the commitment order after finding that the lower court did not' have jurisdiction to order commitment under section 304 of the Mental Health Act without first proceeding under the less restrictive provisions of section 303.

      . Also, counsel’s brief did not include a separate Statement of Questions Involved, as required by Pa.R.A.P. 2111(a) and 2116(a), or a statement of the precise relief sought and a copy of the lower court’s opinion, as required by Pa.R.A.P. 2111(a). These deficiencies might have resulted in the appeal being quashed or dismissed. Pa.R.A.P. 2101.


author: WICKERSHAM, Judge:

text:
    449 A. 2d 712
    COMMONWEALTH of Pennsylvania ex rel. Jean L. WHITE v. Richard K. WHITE, M.D. Appeal of Jean L. WHITE.
    Superior Court of Pennsylvania.
    Argued March 8, 1982.
    Filed Aug. 20, 1982.

      James R. Fiorentino, Bethlehem, for appellant.
    John J. Bartos, Bethlehem, for appellee.
    Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

On October 5, 1977 Jean L. White, appellant, filed a support complaint in the Court of Common Pleas of Lehigh County seeking support from her husband, Richard K. White, M.D., appellee. They lived together for thirty-six years before separating on October 1, 1977. At a conference held in November 1977, Richard White agreed to give Jean White $500.00 a month and to pay the utilities at her residence. The Honorable John E. Backenstoe issued an order dated September 8, 1978 granting Jean White $1,200.00 a month in support. No exceptions to this order were filed.

Several months later, on June 7, 1979, Richard White filed a petition to modify the support order of September 8, 1978. In depositions submitted to the court in lieu of a hearing, Jean White testified that she worked for an average wage of $90.00 a week. Richard White testified that he had been unable to make up a $60,000.00 a year loss of income sustained in 1977, that he could not work as hard in his orthopedic surgery practice because of his advancing age and that his income was decreased by competition from the growing number of orthopedists in the area. The Honorable James N. Diefenderfer reduced Richard White’s support obligation to $950.00 a month in an order dated September 29,1980. No exceptions were taken to the order of September 29, 1980 but a notice of appeal was filed on October 14, 1980.

This failure to file exceptions precludes review of the merits of the case. As Judge Spaeth wrote for a unanimous panel of this court in Paul v. Paul, 281 Pa. Super. 202, 210 n.11, 421 A.2d 1219, 1223 n.11 (1980) (footnote supplied):

62 P.S. § 2043.35(f) provides that an action commenced under the Pennsylvania Civil Procedural Support Law ‘shall be a civil action in accordance with the Rules of Civil Procedure.’ Although section 2043.35 was repealed on June 27, 1978, by 42 Pa.C.S.A. § 20002(a) [1291] (1979 Pamphlet), the Official Note to 42 Pa.C.S.A. § 6704 (1979 Pamphlet), which is substantially a reenactment of section § [sic] 2043.35, states that subsection (f) of the repealed provision is ‘to be given effect in construing section 6704 . ... ’ Thus, there is no question but that exceptions must be filed to a support order in order to preserve objections for appeal.
It may be noted that in this regard 62 P.S. § 2043.35(f) represented a change in prior law, for this court had previously held in Commonwealth v. McAlaine, 193 Pa.Super. 27, 163 A.2d 711 (1960), that the filing of exceptions to a support order was improper, and the right to appeal lay from the support order itself.

The Supreme Court of Pennsylvania recently promulgated rules of civil procedure governing support actions which expressly eliminate the requirement that exceptions be filed. Pa.R.C.P. No. 1910.1 -.31. Yet the new rules did not become effective until July 22, 1981 and do not control this action.

In order to preserve her objections to the order reducing her support, Jean White should have filed exceptions to the order. Failure to file exceptions has been interpreted as a waiver of objections to the order. Commonwealth v. Banker!, 295 Pa.Super. 423, 441 A.2d 1304 (1982); Overs v. Overs, 294 Pa.Super. 191 n.1, 439 A.2d 815, 816 n.1 (1982); Paul v. Paul, supra. We are bound by these clear precedents to affirm the order of the court below because Jean White waived her objections to the order by not filing exceptions.

Order affirmed.

      . In Stump v. Stump, 291 Pa.Super. 65, 68 n.4, 435 A.2d 221, 223 n.4 (1981) a panel of this court referred to the exceptions requirement of Paul as dictum. Whether the statutory analysis of Paul was essential to that particular decision is not as important as the analysis itself, which is unquestionably valid.


author: BECK, Judge:

text:
    449 A.2d 714
    Ralph J. MILLER, Appellant, v. Henry F. HILD, Donald F. Smith, Melvin C. Williams, M.D., Robert G. Goldstrohm, M.D., David C. Hughes, M.D., William B. Yeagley, M.D., Herbert L. Hanna, M.D., William G. Evans, M.D., Ralph F. Waldo, M.D., Richard N. Freda, M.D., James A. Garrettson, M.D., Ralph R. Brown, M.D., Mrs. Leona Shank, Indiana Hospital, a Pennsylvania Corporation, Clara L. Mattern, Esq. Ralph J. MILLER, M.D., Appellant, M. C. WILLIAMS, M.D.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed Aug. 20, 1982.

      Philip C. Ursu, Indiana, submitted a brief on behalf of appellant.
    Lawrence F. Stengel, Lancaster, for Hild et ah, appellees.
    Before BECK, JOHNSON and POPOVICH, JJ.
   BECK, Judge:

Appellant, plaintiff below, appeals from an order dismissing his case for want of prosecution. The Order appealed from is based on a local Indiana County procedural rule limiting the time within which civil cases must be certified ready for trial and on a similar rule of the Pennsylvania Supreme Court then in effect.

The matter had been commenced by praecipe for writ of summons in February 1978. At the time of dismissal in November, 1980, no complaint had been filed nor had any other steps been taken by way of discovery toward the resolution of the matter. The court’s decision is properly based on Indiana Co. R.C.P. No. 3A.3 and within the court’s discretion. We affirm.

Indiana Co. R.C.P. 3A.3 requires litigants to certify cases ready for trial no later than 240 days following commencement of the case. It also permits judges to extend the time “only upon finding good cause.”

The record demonstrates that the court allowed appellant a full opportunity to plead good cause for exception from the rule. The court did not find good cause. We have no reason to disturb the trial judge’s conclusion which was made well within his discretion.

The Order of dismissal was also founded on the Pennsylvania Supreme Court rule then in existence which was substantially the same as the Indiana County prompt trial rule. The Supreme Court rule was adopted Nov. 19, 1979 and set out at 9 Pa.Admin.Bull. 3936, and vacated March 6, 1981, by order set out at 11 Pa.Admin.Bull. 1015. The appellant asserts that vacation of the 1979 order made the Supreme Court rule void ab initio. However, appellant cites no authority in support of such a proposition.

The Indiana Court of Common Pleas may have initially adopted its prompt trial rule in conformity to the Supreme Court’s parallel rule. In choosing to maintain the prompt trial rule after the Supreme Court vacated the statewide rule, Indiana County demonstrated legitimate local autonomy. Counties possess authority to make rules for the operation of their own court system as long as such rules are not contrary to those promulgated by the Pennsylvania Supreme Court. 42 Pa.C.S.A. 323; Mikita v. Bailey Homes, Inc., 265 Pa.Super. 399, 401 A.2d 1367 (1979). A local rule will be invalid if it abridges, enlarges, or modifies the substantive rights of the litigants. Mikita v. Bailey Homes, supra, 401 A.2d at 1373 (Price, J., dissenting); Com. ex rel. Swann v. Shovlin, 423 Pa. 26, 223 A.2d 1 (1966).

Appellant raises the interesting point that this court has frequently declined to apply new or amended procedural rules to actions commenced prior to the adoption of the rule, Trinity Area School District v. Dickson et al., 223 Pa. Super. 546, 302 A.2d 481 (allocatur refused) (1973); Canter v. Canter, 238 Pa.Super. 347, 357 A.2d 659 (allocatur refused) (1976). This court has not been entirely consistent in that regard. See opinion of Spaeth, J., concurring in part and dissenting in part in Canter, 238 Pa.Superior Ct. at 360 n.9, 357 A.2d at 666 n.9. We are satisfied, however, that the Indiana County’s prompt trial rule satisfies any legitimate claim by a litigant as to its fair application to a pending case. The rule provides, as did the Supreme Court rule on which it was modelled:

In all civil actions commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August 31, 1980. In civil actions commenced on or after January 1980, such documents must be filed not more than 240 days after the action is commenced.

Indiana Co. R.C.P. No. 3A.3(a). Even cases such as the instant one, pending for nearly two years prior to the effective date of the rule, were accorded the full 240 days to certify readiness. Thus, the rule’s application to previously filed cases did not modify any existing substantive rights.

Finally, appellee urges that even in the absence of the procedural rules in question, the court would have been justified in dismissing for want of prosecution under the common law. In light of our decision as stated above, we need not reach this issue.

The order of the lower court is affirmed.

      . The record suggests that other legal strategies pertaining to the controversy, which concerned plaintiff physician’s loss of hospital privileges, were being pursued simultaneously. Even if there were strategic reasons relating to these other actions for neglecting this libel lawsuit against certain hospital personnel and the hospital, those reasons do not excuse plaintiffs failure to follow the procedural rule in question.

      . In the cases appellant relies upon to support his view that an amended rule can never apply to a pending case, the amended procedural rule altered the burden of proof and therefore affected substantive rights. See, e.g., Canter, supra, 238 Pa.Superior Ct. at 357 A.2d at 663, note 2 (Spaeth, J.) regarding the 1973 amendment of rules for opening a confessed judgment which the Supreme Court rules committee explicitly stated was intended to change the quantum of proof a petitioner had to produce in such cases.


author: JOHNSON, Judge:

text:
    449 A.2d 716
    COMMONWEALTH of Pennsylvania v. Harry STEIN, Appellant, and COMMONWEALTH of Pennsylvania v. Richard A. DOLATA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed Aug. 20, 1982.
    Petition for Allowance of Appeal Denied Dec. 23, 1982.

      John F. Cambest, Pittsburgh, for appellants.
    Stella Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

In this appeal, Appellants raise issues concerning both the sufficiency of the probable cause for their arrest and the validity of the search and seizure of incriminating evidence.

We hold that probable cause existed for their arrest and that the search and seizure was valid.

The events leading up to the arrest of Appellants, Richard A. Dolata and Harry Stein (hereinafter Dolata and Stein), are rather unusual.

At approximately 6:00 a. m. on the morning of February 13,1980, Anthony J. Perella, an off-duty Pennsylvania State Trooper, happened to look out the window of his home. He saw a Ford sedan being driven to a parked position without any headlights burning, even though it was still dark.

Trooper Perella knew the car was strange to the neighborhood because he was a ten-year resident and was familiar with the cars of the area. Because the car was unfamiliar and was being operated without the needed headlights, Perella telephoned his barracks and ran a check on the registration of the vehicle. He learned that the car was registered to Appellant Stein.

When Perella went out of his home to observe more closely, the vehicle was driven to another parked position on another street. The occupants, two white males unfamiliar to Perella, exited the car. As he walked past, the two re-entered the car and drove away. Perella then returned home and telephoned his friend, Officer Figura of the Pittsburgh Police Department, to report his observations. Officer Figura asked to be notified if Perella were to see the car again in the neighborhood.

Eight days later at 6:15 a. m., Trooper Perella again observed the Ford sedan, and again, the car was being operated without needed headlights. It was backing up and turning around. Perella immediately contacted Officer Figura who joined him at approximately 6:50 a. m.

Figura recognized the single occupant of the car as Appellant Dolata, who was personally known by him to have been involved in previous burglaries in the Pittsburgh area. The officers then saw Stein, who was carrying a suitcase, walk towards the parked car. Perella recognized Stein as one of the two men he had seen in the car eight days earlier. Stein entered the car and put the suitcase in the back seat. The officers, feeling that some further action was necessary, pulled up in Figura’s car, thereby blocking the passage of Appellants’ vehicle. The officers exited their car with guns drawn and announced their identity as police officers. The men were ordered out of the car.

The record is not conclusive on the following course of events, but it appears that as Dolata was exiting from the driver’s seat, he either intentionally or unintentionally knocked the gear shift into drive or he failed to properly engage the car in park. As a result, the Ford moved forward, struck Officer Figura and his car, and then drifted over an embankment until it came to a stop against a pole.

After the two were patted down for weapons and placed in a prone position, Trooper Perella went to the car. He shut off the ignition, retrieved the suitcase, and joined Officer Figura. While Figura was guarding the Appellants, Perella began an investigation of the neighborhood. He then learned that the home of Henry Thomas had been forcibly entered. At that time, Appellants were more thoroughly searched. Gloves and fourteen pieces of jewelry were found on Stein’s person. In the suitcase there were a heavy duty, foot long screwdriver and a police scanner set at the frequency for the No. 7 Police Station.

At the suppression hearing, the court found that the defendants had been lawfully arrested and the evidence of the crimes had been lawfully seized. Appellants appeared with counsel in a nonjury proceeding on June 2, 1980. They were tried jointly on six counts: (1) Burglary, (2) Theft, (3) Receiving Stolen Property, (4) Criminal Conspiracy, (5) Recklessly Endangering Another Person, and (6) Possession of Instruments of Crime. Both were found guilty of all but the fifth count of Recklessly Endangering Another Person. Post-trial motions were filed, argued, and denied on February 12, 1981. Appellants were sentenced to a term of total incarceration for a period of not less than one year nor more than five years. This appeal followed.

The issues specifically raised by Appellants are: (1) the arrest of the Appellants was unlawful in that it was neither made pursuant to a valid warrant nor based on probable cause; and (2) the evidence obtained as a result of the Appellants’ unlawful arrest should be suppressed since it was obtained through the exploitation of the original illegality of the arrest and without a valid search warrant.

In asserting that no probable cause existed for their arrest, Appellants rely on the established principle which states that:

Whether a police officer has probable cause to arrest depends upon whether at the time of the arrest the facts and circumstances within the knowledge of the officer, or of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime.

Commonwealth v. Hayes, 237 Pa.Super. 510, 513, 352 A.2d 121, 122 (1975); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Tookes, 236 Pa.Super. 386, 344 A.2d 576 (1975).

Appellants contend that the only facts and circumstances within the knowledge of the officers at the time of the arrest were that Dolata and Stein had previous criminal records and that they had been seen in the neighborhood on a previous occasion. It is further contended that this is insufficient to establish probable cause.

A careful review of the record established that the officers were armed with more than the above-stated information. In addition to their being known to the officers as burglars, Appellants were also observed at a very early morning hour in a neighborhood in which Trooper Perella knew they did not live. In addition, their car was being operated without needed headlights. This is certainly enough to raise suspicion.

While Appellants are correct that mere suspicion is not sufficient for an arrest, see Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974), another well established principle provides that:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. [Citation omitted.] A brief stop of a suspicious individual in order to determine his identity or maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations omitted.]

Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972); Commonwealth v. Shoatz, 469 Pa. 545, 554-555, 366 A.2d 1216, 1220-1221 (1976); Commonwealth v. Ellis, 233 Pa.Super. 169, 335 A.2d 512 (1975).

Therefore, before deciding whether probable cause existed at the time of the arrest, we must first determine when the arrest actually occurred. Appellants claim that the arrest, and not an “investigatory stop,” occurred at the time when the police officers exited their car with their guns drawn. The Commonwealth, on the other hand, claims that only an investigatory stop occurred, and that the arrest occurred after the incident of the “wayward” car. The reason stated by the Appellants for their belief that an arrest occurred is based on the fact that the officers exited their car with guns drawn.

This is an incorrect assumption. The Pennsylvania Supreme Court recognizes two kinds of investigatory stops. One is merely approaching a person and addressing questions to him. Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977). The other is a “forcible stop,” by either physical force or a show of authority, which restrains an individual’s freedom. Commonwealth v. Stewart, 257 Pa.Super. 334, 390 A.2d 1264 (1978).

We believe that an investigatory stop occurred in the instant case. We further believe that it was reasonable for the officers to draw their guns, given the fact that the officers, without backup assistance, were about to stop two known felons who were acting in a most suspicious manner.

As we agree with the Commonwealth that the arrest occurred after the car rolled forward and struck Officer Figura and his car, we must determine if the facts and circumstances known to the officers were sufficient to warrant a reasonable man to believe that a crime had been committed or that criminal activity was afoot. ,

Given the already-stated prior knowledge possessed by the officers, coupled with the officers’ justifiable belief that the car was intentionally put in gear as an evasive' maneuver, we cannot say that the police had an unreasonable belief that criminal activity was afoot. In fact, the reasonable assumption that the car was deliberately placed in gear may have been sufficient in and of itself. Thus, we hold that sufficient probable cause existed for the arrest of the Appellants.

The second issue raised by the Appellants concerns the validity of the search and seizure of both the evidence found on Stein’s person and the evidence in the suitcase.

As for the evidence found on Stein, the rule is clear: When a man is legally arrested for an offense, whatever is found upon his person or in his control which is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution.

Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543, 553 (1925) (emphasis added); See also, Commonwealth v. Spriggs, 224 Pa. Super. 76, 302 A.2d 442 (1973).

Thus, as we have already determined that there was a lawful arrest, Appellants’ contention that the evidence found on Stein is “fruit of the poisonous tree” is utterly without merit.

The other evidence sought to be suppressed consisted of those items found in the suitcase seized from Appellant Stein’s car.

Over fifty-five years ago the Supreme Court of the United States, in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), recognized what has come to be called and accepted as the “automobile exception.” Because of their highly mobile nature, cars are not subject to the same strict requirements of search and seizure as is an individual’s home. Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419, 427-28 (1970); Commonwealth v. Berman, 262 Pa.Super. 410, 396 A.2d 1237 (1978). It is also recognized that there is a lesser expectation in the privacy of an automobile. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). It should be noted that the search of an automobile proceeds on a different theory than that justifying a search incident to an arrest:

The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.

Carroll v. United States, 267 U.S. at 158-159, 45 S.Ct. at 287, 69 L.Ed. at 554; Chambers v. Maroney, 399 U.S. at 49, 90 S.Ct. at 1980, 26 L.Ed.2d at 427.

As the officers saw Stein, who was suspected of burglary, carrying the suitcase, it was reasonable for the officers to believe that the car’s contents “offended against the law.”

However, Appellants point out that while the contents were generally in the car, they were specifically in a closed suitcase. This, it is claimed, removed the evidence seized from the automobile exception.

To support this claim Appellants rely on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). We believe that the situation in this case is distinguishable from that in Chadwick. In Chadwick, the footlocker containing the contraband was seized and then opened hours later in the Federal Building, after the arrestees had been placed behind bars. The Court found that the search could not be justified as incident to the arrest if remote as to time or place of the arrest. U. S. v. Chadwick, 433 U.S. at 15-16, 97 S.Ct. at 2485-2486, 53 L.Ed.2d at 550.

In the instant case, the search of the suitcase was not so remote as to time and place of the arrest that it could be said not to be contemporaneous with the arrest. The search occurred within moments of the arrest and in the immediate area. It should also be noted that it does not matter that the chance that the evidence in the automobiles may be destroyed or seized by the arrestees is remote, as long as it is possible. U. S. v. Chadwick, 433 U.S. at 14, 97 S.Ct. at 2485, 53 L.Ed.2d at 550.

Therefore, we hold that the search of the automobile was a proper search under both the automobile exception and the exception pertaining to searches incident to an arrest.

Thus, for all the foregoing reasons, we affirm the judgments.

      . Officer Figura believed at the time of the incident and at trial that Dolata deliberately put the Ford in gear with the intent of having it strike the officers or somehow interfere with their arrest. This led to the filing of a Recklessly Endangering Another Person charge.

      . This evidence consisted of 14 pieces of jewelry and gloves which were later identified by Henry Thomas, the victim of the burglarized house, as belonging to him.

      . These items included 5 watches, 4 ladies’ rings, a cameo necklace, a man’s gold diamond ring, a pen light, and various amounts of coins. It should also be noted that the suitcase itself belonged to Mr. Thomas whose home had just been burglarized.

      . Appellants also rely on Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980). In Timko, after police had forcibly restrained the arrestee, a brown valise on the seat of the vehicle was searched and seized without a warrant. The Court affirmed suppression of the evidence, a loaded revolver and two packages of marijuana, on the grounds that the search was not justified under either the automobile exception, or as a search incident to a lawful arrest. We need not decide whether Timko applies here, as the search in this case occurred some six months before Timko was decided. Timko applies prospectively only because, as the valise was lawfully seized, the requirements applying to the search are merely procedural. See note in Commonwealth v. Berman, 262 Pa.Super. 410, 396 A.2d 1237 (1978). Even if this were not the case, we are not certain of the weight to be accorded the Timko decision, given the holding of the Supreme Court of the United States in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton it was unequivocably held that a lawful custodial arrest creates a situation justifying a contemporaneous search of an automobile and any compartments or containers, including luggage, therein found.

      . Following the preparation of this opinion, the Supreme Court of the United States held that the warrantless search of an automobile which, the police had probable cause to believe, contained contraband, may include all of the compartments and containers within the vehicle, even though the contents of the compartments and containers were not in plain view. United States v. Ross,-U.S.-, -, 102 S.Ct. 2157, 2159, 72 L.Ed.2d 572 (6/1/82).


author: POPOVICH, Judge:

text:
    449 A.2d 720
    Eugene M. LITMAN, individually and trading as Riverview Park Associates, a Pennsylvania Limited Partnership, Appellant, v. The PEOPLES NATURAL GAS COMPANY, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed Aug. 20, 1982.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      John M. Tighe, Pittsburgh, for appellant.
    John R. Kenrick, Pittsburgh, for appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Eugene Litman, appeals from the order of the court en banc denying his motion for a new trial and for partial judgment n.o.v., and which affirmed the trial court’s grant of appellee’s motion for a directed verdict. We affirm.

As we said in Continental Super Market Food Service, Inc. v. Soboski, 210 Pa.Super. 304, 309, 232 A.2d 216, 219 (1967):

“On a motion for a directed verdict, the facts must be considered in the light most favorable to the party against whom the motion is made. ‘. . . [T]he court must accept as true all the evidence of that party which supports his contention . . . and must reject all the adverse testimony of the party seeking a directed verdict.’ Lott v. Guiden, 205 Pa.Super. 519, 523, 211 A.2d 72, 74 (1965).”

Additionally, “[a]s to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court’s action ‘ “absent an abuse of discretion or error of law which controlled the outcome of the case.” ’ ” (Citations omitted) McDevitt v. Terminal Warehouse Co., 304 Pa.Super. -, -, 450 A.2d 991, 993 (1982).

In light of the preceding standards, our review of the facts, which are not in dispute, reveal the following: On July 11, 1973, appellant purchased sixty acres of farmland, upon which was situated a single family dwelling, from Nancy E. Wunderly. Thereafter, by deed dated August 15, 1975, appellant conveyed 16 acres of the property to River-view Park Associates—this entity was a limited partnership of which appellant was its general partner. By the end of 1976, appellant had erected a 168-unit apartment complex on the acreage owned by Riverview Park Associates. The site consisted of ten separate buildings, which were made up of one and two-bedroom apartments. To regress a bit, back in the fall of 1974, appellant had requested Peoples Natural Gas (PNG) to provide gas service to the proposed construction. In January, 1975, PNG notified appellant that it was prohibited by Orders of the Public Utility Commission (PUC), issued at PUC Investigation Docket No. 124, from providing him with the requested gas service. The Order in question, which was promulgated to deal with a shortage of natural gas in this Commonwealth, provided:

“That every such gas utility is hereby prohibited from entering into any contract for serving gas to any gas-burning equipment after February 15, 1972, unless either (a) the most recent report submitted pursuant to paragraphs 1 and 2 shows that in every year covered by the report such gas-burning equipment can be supplied without causing annual or peak day deliveries to exceed annual or peak day supplies, or (b) the contract for serving the gas-burning equipment expressly provides that such service may be curtailed, interrupted or terminated upon twenty-four hours notice, or (c) such gas-burning equipment is a replacement of other gas-burning equipment installed prior to February 16, 1972, and is of the same or less gas-burning capacity than the replaced equipment.” (R. 29a-30a).

Appellant, in response to PNG’s refusal to supply him with the requested service, had to resort to the utilization of propane gas to supplement the increased gas needs of the project. In addition, in June of 1976, appellant filed a Complaint in Assumpsit against PNG in the Court of Common Pleas of Allegheny County, Pa. In said Complaint, appellant sought judgment against PNG for damages in an amount in excess of $10,000.00 for its failure to abide by a 1940 right-of-way agreement executed by PNG and appellant’s predecessor in title (Mrs. Wunderly), wherein the utility company agreed to let the then owners of the realty (Nancy Wunderly and her husband) have the “right to purchase gas from [the] line” it was to lay across the property. (See plaintiff’s [appellant’s] Complaint, Exhibit “A”). PNG, in its Answer and New Matter argued that, inter alia, “the Court of Common Pleas lacked jurisdiction of [appellant’s] claim[ ]” and “that [PNG] was prohibited by the PUC Orders entered at Investigation Docket No. 124 from providing natural gas service to [appellant’s] 168-unit apartment complex and thus, the defense of impossibility of performance was available to [PNG] and, as a matter of law, rendered it not liable to [appellant].” (Appellee’s Brief at 3) The trial court denied appellee’s former contention, but agreed with the latter averment and entered a directed verdict in its favor at the close of the case.

Although appellant asserts numerous arguments in favor of finding that the court en banc’s affirmance of the trial court’s order was in error, we find that a response to the “impossibility of performance” argument is dispositive of the case, and, thus, the other contentions raised by the appellant need not be addressed.

Before dealing with appellant’s claim, we find it appropriate to respond to PNG’s contention, which it argued below and extensively discussed in its Brief to this Court, that “[t]he matter now before this Court [Superior Court] was a matter peculiarly within the expert cognizance of the PUC and should have been heard by that administrative body rather than the Court of Common Pleas.” “Accordingly, [PNG] respectfully submits that his action should be dismissed for lack of jurisdiction over the subject matter.” (Appellee’s Brief at 13 & 14) We do not agree.

The extent of the PUC’s jurisdiction has «been clearly delineated by the courts of this Commonwealth, one of which was Allport Water Authority v. Winburne Water Co., 258 Pa.Super. 555, 393 A.2d 673 (1978), wherein we stated:

“We start with the principle ‘that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC—not in the courts.’ Lansdale Borough v. Philadelphia Electric Company, 403 Pa. 647, 650, 170 A.2d 565, 567 (1961). See also Chester County v. Philadelphia Electric Company, 420 Pa. 422, 218 A.2d 331 (1966); Einhorn v. Philadelphia Electric Company, 410 Pa. 630, 190 A.2d 569 (1963); Fogelsville & T. Electric Company v. Pa. P. & L. Company, 271 Pa. 237, 114 A. 822 (1921); Byer v. Peoples Natural Gas Company, 251 Pa.Super. 75, 380 A.2d 383 (1977); Bell Telephone Company v. Sanner, 248 Pa.Super. 273, 375 A.2d 93 (1977); Elkin v. Bell Telephone Company, 247 Pa.Super. 505, 372 A.2d 1203 (1977). Thus, it has long been recognized that the reasonableness, adequacy and sufficiency of public utility service are all matters within the exclusive original jurisdiction of the PUC. See Duquesne Light Company v. Monroeville Borough, 449 Pa. 573, 298 A.2d 252 (1972); Behrend v. Bell Telephone Company, 431 Pa. 63, 243 A.2d 346 (1968); Elkin v. Bell Telephone Company, supra. It is equally well-settled, however, that the PUC is not jurisdictionally empowered to decide private contractual disputes between a citizen and a utility. See Byer v. Peoples Natural Gas Company, supra; Leveto v. National Fuel Gas Distribution Corporation, 243 Pa.Super. 510, 366 A.2d 270 (1976); Reading & Southwestern Street Railway Company v. Pennsylvania PUC, 168 Pa.Super. 61, 77 A.2d 102 (1950).” (Emphasis added) Id., 258 Pa.Superior Ct. at 558-59, 393 A.2d at 674-75.

Additionally, in Behrend v. Bell Telephone Co., 242 Pa.Super. 47, 363 A.2d 1152 (1976), vacated and remanded on other grounds, 473 Pa. 320, 374 A.2d 536, appeal after remand, 257 Pa. Super. 35, 390 A.2d 233, a telephone customer sought to recover damages for the omission of his name from Bell’s directories and the directory assistance operators’ lists, and for the disruption of his telephone service. Bell argued that the lower court erred in permitting a jury to proceed to the merits of the case since Behrend’s allegations raised questions within the exclusive original jurisdiction of the PUC. After a studied consideration of the Public Utility Law and the decisions of our courts thereunder, we concluded that the regulatory authority of the PUC over utility service did not remove from the court’s jurisdiction an action for damages based on a failure of service. Rather, we held:

“The courts retain jurisdiction of a suit for damages based on negligence or breach of contract wherein a utility’s performance of its legally imposed and contractually adopted obligations are examined and applied to a given set of facts.” (citation omitted) (footnote omitted) Id. 242 Pa.Super. at 59, 363 A.2d at 1158.

Instantly, we had a Complaint in Assumpsit being filed by the appellant, in which he alleged the violation of a contractual agreement by a utility company, the result of which he claimed necessitated his utilizing an alternative form of energy (propane) to fuel his apartment complex. As a result of the purported contractual breach, appellant sought restitution in the form of damages to compensate him for the money he expended over and above what it would have cost him to operate the complex had the utility company provided the increased gas service requested. Consequently, given the issues at bar, the fact that the PUC is not jurisdictionally empowered to decide private contractual disputes between a citizen and a utility, and because the relief sought was in the form of damages, we find that the trial court had jurisdiction to resolve the controversy. All-port Water Authority v. Winburne Water Co., supra; Behrend v. Bell Telephone Co., supra.

We now turn our attention to the appellant’s argument that the trial court erred in directing a verdict for the appellee on its defense of impossibility of performance. Recently, in Kasemer v. National Fuel Gas Dist. Corp., 279 Pa.Super. 334, 421 A.2d 226 (1980) the Court was confronted with an issue similar to the one proffered by the appellant, 1. e., the operators of a mobile home park sought recovery of damages against a gas company for its refusal to supply service in violation of an alleged contract between the utility and Kasemer. The basis of the gas company’s refusal was also the PUC’s February 1, 1972 order, reproduced supra, forbidding the gas company to take on additional customers beyond its peak capacity.

In Kasemer, as in the case here, the gas company contended that it was relieved from liability to the complainant for failure to supply the increased service on the basis of Section 458 of The Restatement of the Law of Contracts, which reads in pertinent part:

“A contractual duty or a duty to make compensation is discharged, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty, where performance is subsequently prevented or prohibited
... (b) by a judicial, executive or administrative order made with due authority by a judge or other officer of the United States, or of any one of the United States.”

We agreed with the gas company’s argument in Kasemer, and find no reason to deviate from such decision in ruling in favor of PNG instantly.

The appellant, as noted in the facts recounted supra, was informed by PNG in the fall of 1974 that it was foreclosed from providing the increase in service requested for the proposed apartment complex. Such denial was predicated upon the PUC’s Order at Investigation Docket No. 124, which prohibited every gas utility “from entering into any contract for serving gas to any gas-burning equipment after February 15, 1972.” (R. 29a) Adherence to such directive by a public utility is mandated by the Public Utility Code. See 66 Pa.C.S.A. § 501(c). To rebut this seemingly insurmountable hurdle, appellant submits that the 1940 right-of-way agreement, entered into by Mrs. Wunderly and her husband—appellant’s predecessor in title—and the appellee, permitted the appellant “the right to purchase gas from the [appellee’s] line, and not merely the right to enter into a contract with the [appellee] for the purchase of gas.” (Emphasis in original) (Appellant’s Brief at 17) We do not agree with such assertion. As correctly articulated by the lower court on this point:

“On ... February 1st, 1972 [the PUC] issued an order which stated in paragraph four that every .. . gas utility is hereby prohibited from entering into any contract for serving gas to any gas burning equipment after February 15, 1972 unless certain things, none of which occurred [here].
... I agree . . . that the only right that [appellant] would have had, if any, was the right to enter into a contract for the purchase of gas.” (R. 173a)

Additionally, the lower court went on to hold:

“[W]hatever rights came to [appellant] by virtue of the right of way agreement of May 31, 1940 and the subsequent conveyance of the real estate which was involved in that right of way were impossible of fulfillment by [PNG] under the then existing regulations of the PUC and there was, as a matter of law, the defense of impossibility of performance existing and is available irrespective of the actual meaning of the agreement and irrespective of what right [appellant] might have acquired thereby.” (R. 175a)

We are in accord with the view expressed by the lower court. See Burkus v. Henshall, 386 Pa. 478, 481, 126 A.2d 722, 724 (1956); Olyphant Borough School Dist. v. American Surety Co. of New York, 322 Pa. 22, 184 A. 758 (1936). Moreover, we read appellant’s request for increased service as an offer to PNG to enter into a contract regarding the 168-unit apartment complex. However, since the PUC Orders issued at Investigation Docket No. 124 prohibited PNG “from entering into any contract for serving gas to any gas burning equipment after February 15, 1972,” PNG was legally precluded from providing the gas service which appellant requested. See Kasemer v. National Fuel Gas Dist. Corp., supra, 279 Pa. Super, at 336, 421 A.2d at 229. Furthermore, inasmuch as PNG complied with the PUC Orders in good faith, it is not open to liability for damages as a result of such compliance. Id.

Based on the preceding, we affirm the order of the court en banc denying appellant’s motion for a new trial and for partial judgment n.o.v.

      . Appellant raises various other contentions which we find do not warrant the relief requested.

      . Section 501(c) provides:

        “(c) Compliance.—Every public utility, its officers, agents, and employees, and every other person or corporation subject to the provisions of this part, affected by or subject to any regulations or orders of the commission or of any court, made, issued, or entered under the provisions of this part, shall observe, obey, and comply with such regulations or orders, and the terms and conditions thereof.”