author: WIEAND, Judge:

text:
    591 A.2d 314
    Joseph R. KLINEBURGER, Appellant, v. MARITRANS, Maritrans Operating Partners L.P. and Maritrans G.P., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1990.
    Filed May 22, 1991.

      Avram G. Adler, Philadelphia, for appellant.
    Stuart M. Goldstein, Haddonfield, N.J., for appellees.
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a ship’s captain can recover under general principles of admiralty law or under the Jones Act, 46 U.S.C.App. § 688, for physical or emotional manifestations of work related stress. The trial court held that there could be no such recovery and entered summary judgment in favor of the defendant ship owner. After careful review, we affirm.

In July, 1986, Joseph R. Klineburger, an employee of Maritrans with sixteen years experience, was serving as captain of Tanker Barge 71, which had been engaged to transport a cargo of molten asphalt from Philadelphia to Providence, Rhode Island. Charles Edwards, who had recently been hired by Maritrans, was assigned to the vessel as a member of the crew. Klineburger has alleged that Edwards, from the beginning, displayed dangerous, aberrant behavior while aboard ship. Thus, he allegedly (1) bragged about his ability to kill and about having killed while serving in Vietnam; (2) played with fire by blowing flame at another seaman aboard ship after the ship had been loaded with fuel and cargo; and, finally, (8) jumped overboard and swam ashore while the ship was en route to Rhode Island. Between July, 1986 and December, 1986, Edwards was not replaced; and, therefore, Klineburger and other members of the crew were required to stand more frequent watches. Klineburger contended that because of these events he suffered a chronic and debilitating anxiety and, because of the emotional/psychiatric injury which he sustained, became disabled from further employment. His condition was diagnosed by his physician, on the application for long term disability benefits, as depression and anxiety, together with an incidentally discovered hypertension. Appellant, in depositions, said that he had suffered “emotional strain and stress.” He attributed it to stress caused by Edwards’ brief stay aboard ship. His physicians, on the other hand, attributed his condition to “no specific incident” but to life threatening experiences as a ship’s captain.

In reviewing the grant of summary judgment, we are guided by the law set forth in Austin J Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11 (1988), allocatur denied, 520 Pa. 570, 549 A.2d 131 (1988), as follows:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982) . In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Id., 371 Pa.Superior Ct. at 273-274, 538 A.2d at 13, quoting Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984).

In the instant case, the injuries alleged by appellant occurred because of maritime activity occurring in navigable waters. Although the present action has been brought in a state court, liability must be determined according to federal, maritime law. 70 Am.Jur.2d Shipping § 447 (1987), citing Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550, 553 (1959), overruled on other grounds, Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 458 n. 3 (5th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986).

Under federal law, a ship owner is strictly liable for failing to furnish a seaworthy ship. Liability for failing to provide a seaworthy ship arises independent of any duty to exercise reasonable care. See: Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94-95, 66 S.Ct. 872, 877-878, 90 L.Ed. 1099, 1106 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944). See also: Miles, Admx. v. Apex Marine Corp., 498 U.S.-,-, 111 S.Ct. 317, 322, 112 L.Ed.2d 275, 286 (1990). Appellant contends that the ship owner’s employment of Edwards and subsequent failure to replace him rendered the barge unseaworthy. Under this doctrine, however, recovery by a seaman generally is limited to, “past and prospective loss of earnings, medical expenses, physical injuries and pain and suffering.” Kiffe v. Neches-Gulf Marine, Inc., 709 F.Supp. 743, 745 (E.D.Tex.1989), citing Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1034 (5th Cir.1984). See also: Gaston v. Flowers Transportation, 866 F.2d 816, 821 (5th Cir.1989); Bartholomew v. Universel Tankships, Inc., 279 F.2d 911, 916 (2d Cir.1960). Recovery for purely mental/emotional injury because of an unseaworthy vessel has generally been denied.

The Jones Act makes available to seamen injured in the course of their employment a right of recovery for injuries resulting from the ship owner’s negligence. The Act “establishes a uniform system of tort law parallel to that available to employees of interstate railway carriers under [the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51].” See: Miles, Admx. v. Apex Marine Corp., supra at-, 111 S.Ct. at 321, 112 L.Ed.2d at 285. See also: Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 546-547, 80 S.Ct. 926, 931, 4 L.Ed.2d 941, 946 (1960); Neal v. Saga Shipping Co., 407 F.2d 481, 485 (5th Cir.1969), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969). The Jones Act allows an injured seaman to recover for injuries on a theory of negligence which is different from and in addition to the strict liability theory established under the ancient doctrine of unseaworthiness. See: Garrett v. Moore-McCormack Co., 317 U.S. 239, 240 n. 2, 63 S.Ct. 246, 248 n. 2, 87 L.Ed. 239, 241 n. 2 (1942); Rowley v. Sierra S.S. Co., 48 F.Supp. 193, 195 (N.D.Ohio 1942). Here, appellant alleges that his injury was caused by the ship owner’s negligence in hiring Edwards, an averred dangerous person.

In Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), the Supreme Court declined to decide whether damages were recoverable for purely emotional injuries under the FELA, and therefore under the Jones Act. This caused the Court of Appeals for the Fifth Circuit, in Gaston v. Flowers Transportation, supra, to comment:

The most recent statement from the Supreme Court regarding recovery for purely emotional injuries under the FELA, and therefore the Jones Act, is to be found in Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). In Buell, the Court declined to decide whether damages were recoverable for purely emotional injuries under the FELA because the record was not fully developed on the alleged tort of the employer and the claimed resulting injury to the respondent. Id. at 567, 107 S.Ct. at 1417. The court did, however, offer the following observation:
In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive “yes” or “no” answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand.
Id. at 570, 107 S.Ct. at 1418. This statement has been viewed as an open invitation “to parse the FELA in light of the specific facts” of a case. Netto v. Amtrak, 863 F.2d 1210, 1213 (5th Cir.1989). Indeed, a liberal interpretation has traditionally been ascribed to the legislation; and the common law has served as a guide to interpreting the statute. See Buell, 480 U.S. at 568, 107 S.Ct. at 1417.

Id. at 818.

Recovery for job related stress has been before the Court of Appeals for the Third Circuit and the United States Court for the Eastern District of Pennsylvania. In Kraus v. Consolidated Rail Corp., 723 F.Supp. 1073 (E.D.Pa. 1989), appeal dismissed, 899 F.2d 1360 (3d Cir.1990), the Court concluded that

plaintiffs, who allegedly suffer from stress-related physical or purely emotional injuries or illnesses caused by their general working conditions, fail to state a claim under the FELA. Lawyers, doctors, bus drivers, police officers, laborers, and, yes, even judges, face stressful conditions every working day. To suggest that Congress intended to single out railroad workers (and seamen under the Jones Act) as worthy of special protection from such stress would be pure folly. Job-related stress is simply not the type of problem intended to be dealt with by the FELA.

Id. at 1090 (footnote omitted). The court assigned as reason for its holding a fear of (1) fraud, (2) a flood of litigation by disenchanted workers, and (3) incalculable and potentially unlimited damages. It also opined that a contrary rule would create problems regarding causation and foreseeability. The court foresaw also that claims would be open to the defense of assuming the risk of stress related injuries by voluntarily accepting stressful positions. Such injuries, the court suggested, are caused by “too much—not too dangerous—work.”

The reasoning in Kraus was approved by the Court of Appeals for the Third Circuit in Holliday v. Consolidated Rail Corporation, 914 F.2d 421 (3d Cir.1990). Holliday, a railroad employee, was adversely affected by the stress of his job and began to experience heart palpitations, sleep disorder, anxiety, depression, tenesmus, a spastic colon and involuntary rectal discharge. The district court entered summary judgment in favor of the employer, holding that psychological and physical manifestations of job related stress were not recoverable under the FELA. On appeal, the Court of Appeals affirmed. In so doing, the Court observed that there had been no accident, and that Holliday had not observed injury to another party because of tortious conduct. The court also observed that Holliday’s condition was not solely emotional but included physical consequences attributable to his emotional state. The Court declined to alter its analysis, however, observing that to hold otherwise would permit the most attenuated claims to be presented to a jury whenever a claimant alleged “possible negligence with psychological consequences.” See also and compare: Gaston v. Flowers Transportation, supra, where the Court of Appeals for the Fifth Circuit held that there could be no recovery for emotional distress after a seaman had observed a shipping accident in which his half-brother had been injured but which had not involved a physical touching of the seaman.

In the instant case, there is no contention that the ship owner was guilty of outrageous conduct suggesting an intentional infliction of emotional distress. Instead, appellant has alleged that he was injured when he performed normal duties as ship captain under conditions which were more difficult and stressful than usual because of Edwards. However, there was no threatening activity of any kind directed at or near appellant personally, and he was not a witness to serious physical injury to any third person. Under these circumstances we conclude, as did the federal district court under similar facts in Kraus v. Consolidated Rail Corp., supra, and the Court of Appeals in Holliday v. Consolidated Rail Corporation, supra, that there can be no recovery under the Jones Act for the psychological and physical manifestations of job related stress alleged by the plaintiff-appellant.

These decisions specifically involved the Jones Act and FELA. We conclude, however, that they have equal application to claims based on the alleged unseaworthiness of a vessel. They represent policy statements pertaining to federal admiralty law and the nature of the claims which can be made thereunder. The trial court’s entry of summary judgment in favor of the ship owner was consistent with these decisions and requires that we affirm its determination.

Judgment affirmed.

      . The Jones Act provides, in relevant part, as follows:
      Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply....
      46 U.S.C.App. § 688(a) (1986).
      FELA provides, in relevant part, as follows:
      Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    591 A.2d 318
    COMMONWEALTH of Pennsylvania, Appellant, v. Rickie Lynn SENFT, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 8, 1991.
    Filed May 23, 1991.

      H. Stanley Rebert, Dist. Atty., York, for the Com., appellant.
    J. Christian Ness, York, for appellee.
    Before OLSZEWSKI, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge:

This is an appeal from the dismissal of Appellee’s driving under the influence (DUI) charge as a result of a Rule 1100 violation. We reverse and remand.

Appellee was arrested for DUI on August 10, 1989. The complaint was filed August 11, 1989. Following Appellee’s waiver of formal arraignment, the case was scheduled for the November, 1989, trial term. The case was not listed until the May, 1990 trial term at which time Appellee’s counsel indicated Appellee would enter a guilty plea. Appellee did not enter that plea during the May term and the case was relisted for the July, 1990 term. Although it appears that Appellee was to enter his guilty plea on July 16, 1990, he did not, and the case was to be tried before the end of the July trial term on July 20, 1990. The District Attorney’s Administrator did not call the case for trial because a Commonwealth witness was unavailable for the remainder of the July trial term. No on-the-record continuances were granted. The case was listed for the September trial term.

Appellee filed a motion to dismiss under Rule 1100 (42 Pa.R.Crim.P. 1100). A hearing was held on September 18, 1990, and at the conclusion the charges were dismissed. The Commonwealth filed a motion for reconsideration, and a hearing was held on September 24, 1990. The Commonwealth’s motion was denied following a brief hearing. This appeal followed.

The Commonwealth (Appellant) argues here that the trial court erred in dismissing the charges. We note that Rule 1100 was substantially amended recently. Because of the substantial changes in the Rule, and the lack of conformity in the comments which follow it, it is understandable that confusion should result in its application. Some of the former paragraphs were relettered, and others were substantially rewritten. Under the former Rule 1100(c)(3), the Commonwealth was permitted to file a motion to extend the time in which to commence trial. At a hearing on the motion to extend, the Commonwealth bore the burden of proving that, despite due diligence, it could not bring the defendant to trial within the time provided in the Rule. This motion to extend was brought by the Commonwealth prior to the time provided in the Rule to commence trial. The court would determine, based on the facts presented on the record, whether the Commonwealth established due diligence. If the Commonwealth could establish due diligence, then an extension was granted. In 1987, the Supreme Court amended Rule 1100 and, among other changes, eliminated the motion to extend option. In its place, the Rule provides:

(g) for defendants on bail after the expiration of three hundred sixty-five (365) days, at any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain. If, on any successive listing of the case, the Commonwealth is not prepared to proceed to trial on the date fixed, the court shall determine whether the Commonwealth exercised due diligence in attempting to be prepared to proceed to trial. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

42 Pa.R.Crim.P. 1100(g) (emphasis added).

In applying Rule 1100, the trial court must first determine whether there is a technical violation of the Rule by applying either subsections (a)(1), (a)(2), (a)(3) or (a)(4) which read:

(1) Trial in a court case in which a written complaint is filed against the defendant after June 30,1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.
(2) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is incarcerated, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
(3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint is filed.
(4) Trial in a court case which is transferred from the juvenile court to the trial or criminal division shall commence in accordance with the provision set out in subsection (a)(2) and (a)(3) except that the time is to run from the date of filing the transfer order.

42 Pa.R.Crim.P. 1100(a). In the present action, Appellee was free on bail pending trial. Therefore, subsection (a)(3) applies. Based on the date of Appellee’s complaint, August 11, 1989, Appellee must be brought to trial within three hundred sixty-five (365) days, August 10, 1990.

Next the trial court must determine whether any time should be excluded from the three hundred sixty-five (365) days under subsection (c), which reads:

(c) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.

42 Pa.R.Crim.P. 1100(c). The trial court found that none of these exceptions applied in the present case. Therefore, Appellee should have been brought to trial no later than August 10, 1990. But the analysis does not stop there.

The Appellee in this action brought a petition to dismiss the charges under subsection (g) (see text supra). The trial court must determine at the hearing on the petition to dismiss whether, despite the technical violation of the three hundred sixty-five (365) days, the Commonwealth has with due diligence attempted to bring the matter to trial and whether the delay was beyond the control of the Commonwealth. The trial court in the present action did not determine whether the Commonwealth used due diligence or whether the delays were beyond the control of the Commonwealth. The trial court stopped its analysis at the point which it determined there was a technical violation of the rule.

Therefore, we reverse the order and remand to the trial court for the analysis required under Rule 1100(g). Jurisdiction relinquished.

      . Rule 1100 was adopted June 8, 1973, effective prospectively and amended numerous times, the most recent of which were December 31, 1987, and September 30, 1988. In fact, the comments which accompany the Rule have not yet been adjusted to conform to the content of the new Rule.

      . We note that due to the recent nature of the amendments to Rule 1100, there are no cases construing due diligence under the new Rule, but find that the cases under the former Rule 1100(c) are instructive on due diligence.


author: DEL SOLE, Judge:

text:
    591 A.2d 320
    COMMONWEALTH of Pennsylvania, Appellant, v. Linda GETTEMY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 28, 1991.
    Filed May 24, 1991.

      Russell B. Korner, Jr., Asst. Dist. Atty., Uniontown, for Com., appellant.
    Kenneth B. Burkley, Greensburg, for appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal by the Commonwealth from the trial court’s granting of Appellee’s omnibus pre-trial motion to quash/habeas corpus petition.

This case stems from an investigation involving the October 1988 disappearance of Mrs. Ada Groomes and a 1976 Dodge Motorhome, she owned with her husband. In the course of the investigation, the Pennsylvania State Police contacted over one hundred witnesses. News of the disappearance was disseminated through newspaper and television releases. In May of 1989, Appellee, Linda Gettemy and her boyfriend, John Neckerauer, Jr. were interviewed concerning the disappearance of Mrs. Groomes and the motorhome, by Trooper Robert Hill of the Pennsylvania State Police. Both denied any knowledge of the disappearance of either Mrs. Groomes’ or the motorhome, although both indicated they had learned from Mrs. Groomes husband that she had joined some type of cult in Arizona where she was presumably in possession of the motorhome. Mrs. Groomes has never been found.

In October, 1989, State Police received information from an individual who stated the motorhome had been stored on his property in Tampa, Florida, since being brought there sometime between December, 1988 and March 1989, by Mr. Neckerauer. (N.T. at 43, 12-18-89). Immediately after receiving this information, state police received a telephone call from Mr. Neckerauer, who informed the police the motorhome had been given to him by Mr. Groomes just prior to the disappearance of Mrs. Groomes and that he was aware of the location of the motorhome since that time. (N.T. at 49, 12-18-89).

Appellee was charged with violations of 18 Pa.C.S.A. § 903 (Criminal Conspiracy), § 5101 (Obstructing Administration of Law or Other Governmental Function), § 4910 (Tampering with or Fabricating Physical Evidence) and § 5105 (Hindering Apprehension or Prosecution).

A preliminary hearing before a District Justice was held. Trooper Craig of the Pennsylvania State Police testified that his investigation into the disappearance of Mrs. Groomes and the motorhome had taken him to Virginia, where a witness stated he had seen Appellee and Mr. Neckerauer in the motorhome. (N.T. at 59-60). Additional testimony by State Police officers concerned a witness who claimed that early in October, 1988, she had assisted Appellee in fixing a window in the motorhome in question. The hearing resulted in Appellee being held for court along with Mr. Neckerauer on the above charges. Appellee then filed the motion to quash alleging the Commonwealth failed to present a prima facie case at the preliminary hearing. The trial court granted the motion and dismissed all charges without prejudice against Appellee. The Commonwealth then filed this timely appeal.

On appeal, the Commonwealth asks whether providing false answers in response to questions by law enforcement officials constitutes the offense of hindering apprehension or prosecution. 18 Pa.C.S. § 5105(a)(5) provides:

(a) Offense defined. A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
(5) volunteers false information to a law enforcement officer.

Appellee contends that this section can not apply to her because she did not volunteer false information to the police as proscribed by the statute. We agree.

The resolution of this issue requires us to contemplate the legislative intent in order to determine what the statute prohibits. Accordingly, we start with the definition of the verb “to volunteer”:

[T]o offer (oneself or one’s services) for some undertaking or purpose; ... to give, bestow, or perform without being asked ...; to say, tell, or communicate voluntarily....
The Random House Dictionary of the English Language, copyright 1981; emphasis supplied.

We note that the courts of New Jersey were faced with this exact issue in State v. D’Addario, 196 N.J.Super. 392, 482 A. 2d 961 (1984). The New Jersey Superior Court stated that this definition, particularly the emphasized language, supports the conclusion that the meaning of “volunteer” as used in N.J.S.A. 2C:29-3a(7), is that the accused must take the initiative in giving false information. We point out that the wording of the New Jersey statute is identical to that of the Pennsylvania statute, as both statutes are derived from the Model Penal Code. The court in D’Addario, stated that the statute applied only to those persons who take the initiative in supplying false information to law enforcement officials.

Recognizing that we are not bound by the decisions of a sister state, we, nevertheless find the reasoning of the New Jersey Court to be persuasive. The facts of the instant case make it clear that Appellee did not take the initiative in supplying false information to the law enforcement officers. Her answers, misleading as they were, were given in response to the officers questions. Additionally, the Official Comment to 18 Pa.C.S. § 5105 states that this section is derived from Section 242.3 of the Model Penal Code. The comment to this section provides:

Paragraph (5) prohibits volunteering false information to the law enforcement authorities. Mere failure to report a crime is not proscribed by this section. Neither is giving misleading or even false answers to inquiries initiated by the police.... This provision is intended to reach those who take the initiative in throwing the police off track.

As a result, we hold that providing false answers in response to questions initiated by law enforcement officers does not constitute hindering apprehension or prosecution.

Appellant next questions whether or not a prima facie case was presented against Appellee relative to the charges of tampering with or fabricating physical evidence, obstructing administration of law or other governmental function and criminal conspiracy.

The Commonwealth bears the burden at a preliminary hearing of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978). The evidence must be such that if presented at trial, it would warrant submitting the case to the jury. See Commonwealth v. Wojdak, 502 Pa. 359, 466 A. 2d 991 (1983). In its brief, Appellant maintains that sufficient evidence was presented to show that all of the crimes were committed and that Appellee and Neckerauer were the ones most likely to have committed them. Appellant failed to develop this claim other than to aver that the transcript of the preliminary hearing is replete with testimony supporting the charges. We can not agree.

Appellee was also charged with Tampering with or fabricating physical evidence. 18 Pa.C.S. § 4910 provides:

A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation; ...

From our review of the record we are unable to state the Commonwealth established all of the elements of this crime. The record establishes through the testimony of the investigating police officers, only that certain witnesses reported that Appellee was present in Virginia and Florida when the motorhome was seen in those states. Nothing in the record reveals that Appellee removed the motorhome with the intent to impair its availability. Accordingly we agree with the trial court that this crime did not warrant submission to the jury.

Appellee was also charged with obstructing the administration of law or other governmental function. 18 Pa.C.S. § 5101 states:

A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, ...

After a careful reading of this statute it is apparent that it could apply to Appellee only under the “any other unlawful act” clause. Since we already have determined Appellees responses to the police officers questions was not a violation of § 5105(a)(5), we likewise are unable to say her conduct falls under the “any other unlawful act” clause.

The final charge against Appellee concerns two counts of criminal conspiracy. 18 Pa.C.S. § 903 provides: (a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Criminal conspiracy requires that the defendant with “intent” to promote or facilitate a crime “agrees” to aid another in the planning, attempt or commission of the crime. Commonwealth v. Carter, 272 Pa.Super. 411, 416 A.2d 523 (1979). Nothing in the record before us demonstrates any evidence of an agreement between Appellee and either Mr. Neckerauer or Mr. Groomes. At the preliminary hearing, the Commonwealth stated that several witnesses had told them of observing Appellee along with Mr. Neckerauer in or near the motorhome. This alone does not provide enough evidence of the necessary agreement to make out a prima facie case of criminal conspiracy between Appellee and Mr. Neckerauer. Additionally the only connection between Appellee and Mr. Groomes which appears in the record is that Mr. Groomes had told Appellee that Mrs. Groomes was probably driving the motorhome home somewhere in Arizona. Once again this testimony standing alone is insufficient to make out a prima facie case of criminal conspiracy against Appellee.

Order Affirmed.

      . The testimony indicated that although the witness had observed Linda Gettemy on two occasions when the motorhome was present in Virginia, he could not state who was in the motorhome when he observed it in October of 1988. (N.T. at 59, 12-18-89).


text:
    591 A.2d 324
    S.D. BOWERS, INC., Bowers Coal, Inc., Tri-Us Distributors, Samuel D. Bowers and Fredalene Bowers, Appellants, v. NATIONAL BANK OF THE COMMONWEALTH, Appellee.
    Superior Court of Pennsylvania.
    Argued March 21, 1991.
    Filed May 29, 1991.

      Joseph S. D’Amico, Jr., Pittsburgh, for appellants.
    Debra H. Dermody, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

This appeal is from an order of the court in Westmoreland County which denied a motion for a temporary injunction which would have barred the defendant from executing on a valid judgment in Indiana County. After careful review, we affirm.

Samuel and Fredalene Bowers, guarantors on a business loan, filed an action in Westmoreland County individually and on behalf of several family owned corporate coal businesses, S.D. Bowers, Inc., Bowers Coal, Inc., and Tri-Us Distributors, which are the principal debtors, alleging improper conduct on the part of the National Bank of the Commonwealth (The Bank) in connection with a 1984 loan agreement, which had been executed in Indiana County. They sought an accounting, damages and a special injunction which would prevent the Bank from executing on a confessed judgment in Indiana County against business and individual assets. This judgment had been entered in 1984 and was subsequently revived. A hearing was held on plaintiffs’ special request for an injunction, following which the court denied the request. Plaintiffs appealed.

In reviewing the denial of a preliminary injunction, an appellate court will not inquire into the merits of the controversy but will examine the record to determine if there were any apparently reasonable grounds for the trial court’s action. Ogontz Controls Co. v. Pirkle, 346 Pa.Super. 253, 257, 499 A.2d 593, 595 (1985), citing Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976); Three County Services, Inc. v. Philadelphia Inquirer, 337 Pa.Super. 241, 486 A.2d 997 (1985). The trial court’s order denying a preliminary injunction will not be reversed unless there has been a clear abuse of discretion or an error of law. Stander v. Kelley, 432 Pa. 1, 246 A.2d 649 (1968); Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984).

In Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965), the Supreme Court set forth prerequisites for the issuance of a preliminary injunction as follows:

[Fjirst, that it is necessary to prevent apparent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., [410 Pa. 214, 189 A.2d 180], supra. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958).

Id. 417 Pa. at 181, 207 A.2d at 770. See also: Singzon v. Commonwealth, Dept. of Public Welfare, 496 Pa. 8, 11, 436 A.2d 125, 127 (1981).

After careful review of the record we discern no abuse of discretion or error of law in the trial court’s order. Appellants’ unadjudicated and unliquidated claim for damages against the Bank is an inadequate basis on which to enjoin or stay appellee’s execution on a final judgment in Indiana County. Not only is it uncertain that appellants’ unliquidated claim will be resolved in its favor, but appellee’s attempt to enforce a valid judgment is not a wrongful act which can be enjoined. Cf. Bailey v. Girard Bank, 334 Pa.Super. 563, 567, 483 A.2d 881, 883 (1984). The judgment is within the jurisdiction of the court in Indiana County where appellants, if they have an adequate basis for doing so, may request the court to stay execution. “The court which has rendered a judgment may, within its discretion and in order to prevent injustice, stay an execution.” 13 Std.Pa.Prac. § 76:7. See: Wilner v. Croyle, 214 Pa.Super. 91, 95, 252 A.2d 387, 389 (1969) (“Executions have traditionally been within the equitable control of the court from which they issued”). It would be unseemly, however, for the courts in one county to seek to control execution on a judgment validly entered in another county. We conclude, therefore, that the trial court had reasonable grounds for refusing appellants’ request for a special injunction.

Order affirmed.

      . Presently pending in the Indiana County Court of Common Pleas is an action to conform the confessed judgment pursuant to Pa.R.C.P. 2981, which is a prerequisite to the issuance of execution.


author: BROSKY, Judge.

text:
    591 A.2d 711
    WILLIAMSTOWN BOROUGH AUTHORITY, Appellant, v. Fayne Q. COOPER and Alicia G. Cooper, his Wife, David J. Watkeys and Rayetta Watkeys, his Wife, Gerald M. Ressler and Jean E. Ressler, his Wife, Martin F. Brennan and Connie M. Brennan, his Wife v. Richard A. LENKER, Kenneth Williams, Dorothy Williams and Lenker & Williams Real Estate, Inc.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Filed April 1, 1991.
    Rearguments Denied June 14, 1991.

      Robert G. Radebach, Harrisburg, for appellant.
    Alicia G. Cooper, pro se.
    Pamela G. Shuman, Harrisburg, for Watkeys and Ressler, appellees.

      Francis A. Zulli, Harrisburg, for Lenker and Williams, appellees.
    Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.
   BROSKY, Judge.

This appeal is taken from the judgment entered on the verdict of the court of common pleas of Dauphin County, Pennsylvania, following a trial without a jury, in favor of appellees, Fayne Q. Cooper and Alicia G. Cooper (the Coopers), David J. Watkeys and Rayetta Watkeys (the Watkeys), and Gerald M. Ressler and Jean E. Ressler (the Resslers) and against appellant, Williamstown Borough Authority, as a result of the latter’s action in ejectment against appellees. The court also found in favor of Martin F. and Connie M. Brennan, although they did not file an appellee’s brief with this Court. The court based its verdict in favor of the appellees on the basis of the equitable defense of laches. We are constrained to reverse the decision of the trial court that appellant is barred by the equitable doctrine of laches from ejecting appellees from their respective properties. Our reasoning follows.

The facts surrounding this dispute are as follows: The encroachment at issue is a narrow, snake-like strip of land encompassing forty-six acres in Williamstown Borough. Through the middle of this strip of land runs an eight-inch water pipeline owned by appellant. Appellant appears to have possessed either a fee ownership in or a right of way or easement over the disputed land since 1892. However, appellant claims that it was not until October 1984 that it knew of an ownership interest in the land in question.

Beginning in 1977, the additional defendants in the trial court conveyed tracts of land to the appellees which implicated the forty-six acre strip now claimed by appellant. In 1979, the Coopers purchased a tract of land from the additional defendants under an agreement of sale which provided that the Coopers pay the real estate taxes. The Coopers also arranged for a title search of the land. Early in 1984, the Coopers received a deed to the land from the additional defendants following an earlier successful application for a construction mortgage loan. Prior thereto, in the Fall 1983, the Coopers proceeded to clear the tract of trees to make way for the construction of their home.

In April or May 1984, Mr. Shutt, who was then the manager of appellant, was on a routine inspection of the water treatment plant operated by appellant near where the Coopers were building their home and observed the construction of the Coopers’ home under way. Mr. Shutt observed that the construction was taking place thirty feet from the waterline. At that time, he did not discuss the possibility of the Coopers’ encroachment with them. Nor did Mr. Shutt or anyone else from appellant contact them at that time regarding this problem. In fact, subsequent to Mr. Shutt’s observation of the construction, the Coopers applied for and were granted water service for their property by appellant. Mr. Shutt admitted at trial that appellant did not seek to ascertain its exact possessory rights until October 1984. Furthermore, he admitted that the Cooper home had been virtually constructed before the Coopers were notified of any possible encroachment.

In September 1984, when the Cooper home was well under construction, Mr. Cooper received a telephone call from Mr. Radebach, the solicitor of appellant. Mr. Radebach informed Mr. Cooper that appellant may be the owner of the property on which Mr. Cooper was building his home and that he [Mr. Radebach] was going to make. arrangements to have the property surveyed to determine the extent of the encroachment. Mr. Radebach also informed Mr. Cooper that appellant would honor the latter’s application for water service. Mr. Radebach admitted in this conversation that appellant did not know what, if any, type of encroachment was involved. When Mr. Cooper explained that he and his wife were ready to move into their home, Mr. Radebach informed Mr. Cooper that the latter and his wife could move into their home without fear of having to vacate because “it would be highly unlikely for someone to have built a house on someone else’s property----” N.T. 95. Moreover, Mr. Radebach testified that appellant “really had no involvement until late August, early September [1984] when we started looking into the problem that we discovered.” Id., 96.

In October 1984, appellant hired a surveyor to survey the tract in dispute. In February 1985, the survey was completed. The results of this survey were virtually identical with the survey made in August 1907 and in the possession of appellant and its predecessors since that time. The 1907 survey sets forth and describes the forty-six acre tract of land as a right of way in appellant. It appears that the encroachment encompasses approximately ninety percent of the Coopers’ property, including the portion on which they had constructed their home.

It was because appellant knew or had access to the knowledge, if not from 1892 then, at least, since 1907, that it possessed an ownership interest in the disputed property because of documents in its possession evidencing this that the court determined that appellant’s claim of ejectment was barred by the doctrine of laches.

It is apparent that tracts of land involved were conveyed to the various appellees well before appellant even considered informing the parties that a problem with ownership interests might exist. Tracts were conveyed to the Watkeys and to the Resslers in 1977. The Coopers purchased their tract in 1979 under an agreement of sale and were deeded the property in February 1984. The complaint in ejectment was filed in November 1985. The exhibits attached to the Complaint consisting of various deeds and abstracts of title detail the series of conveyances to the predecessor of appellant and to appellant dating back to 1892, when a right of way to the land now in question was conveyed to the predecessor of appellant and duly recorded. What is apparent from the record, in effect, is that appellant possessed either a fee simple interest or a right of way or easement since 1892 and that it knew or should have known of this fact in 1977 when the additional defendants began to convey the various tracts of land to the appellees.

The doctrine of laches is an equitable one whose purpose is the repose of title, claims and demands for the peace and order of society. Gabster v. Mesaros, 422 Pa. 116, 220 A.2d 639 (1966). Its application is not tied to a definite passage of time after accrual of a cause of action. Rather, it relates to whether, under the circumstances of a particular case, a party can be charged with lack of due diligence in failing to institute a claim. Id; Harbor Marine Co. v. Nolan, 244 Pa.Super. 102, 366 A.2d 936 (1976). Laches will not be found where the adverse party has not been harmed by the delay. Brodt v. Brown, 404 Pa. 391, 172 A.2d 152 (1961). Therefore, the mere passage of time is insufficient to warrant the application of the doctrine. Instead, it must further appear that the opposing party has been injured or has been materially prejudiced because of the delay. Gabster, supra; Brodt, supra; Harbor Marine, supra.

Despite the hardships to be endured by appellees if appellant is permitted to eject them from their possession and enjoyment of the land in question, we cannot legally sustain the action of the trial court granting appellees equitable relief in the nature of laches.

We begin by noting that a municipal authority, like appellant here, is not a creature or agent of the municipality which has created it. Rather, it is an agency of the Commonwealth and is, accordingly, part of its sovereignty. Commonwealth v. Erie Metro. Trans. Auth., 444 Pa. 345, 281 A.2d 882 (1971); Forney v. State Ethics Comm’n., 56 Pa.Commw. 539, 425 A.2d 66 (1981). Our research has failed to disclose any statute or any case law in this Commonwealth where the defense of laches has been asserted against the Commonwealth in cases involving Commonwealth land. However, in disposing of this question we turn for guidance to the law of adverse possession which we deem to be an appropriate analogue.

It is well settled that one who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land in question for twenty-one years. Each of the aforementioned elements must exist for possession to confer title. Conneaut Lake Park Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949).

However, it is also well established that a claim of title by adverse possession does not lie against Commonwealth property. Commonwealth, Dept. of Transp. v. J. W. Bishop & Co., 497 Pa. 58, 439 A.2d 101 (1981); Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719 (1951); Torch v. Constantino, 227 Pa.Super. 427, 323 A.2d 278 (1974); Fraver v. Vranicar, 59 Pa.D. & C.2d 360 (Dauphin Co.1972). This is because the land is impressed with a public use or purpose, Hostetter, supra; J. W. Bishop & Co., supra, and because of the well-entrenched doctrine of nullum tempus occurrit regi (“time does not run against the King”). ./. W. Bishop, supra; Torch, supra. This latter doctrine has its roots in the prerogative of the Crown. See 1 Blackstone, Commentaries* 247. Even privately owned property which has been dedicated to public use cannot thereafter be claimed by adverse possession. J.W. Bishop, supra. The only exception to this rule is where a political subdivision holds land which is not devoted to public use. Torch, supra. We cannot imagine a greater public or governmental purpose for holding land than to provide water service for the citizens served by appellant borough water authority here.

We see no reason why the doctrine of laches should succeed or prevail where an analogous claim of adverse possession against appellant would otherwise fail. The former defense rises no higher and is deserving of no greater protection than the latter. Moreover, were this matter controlled by statute toward the same result which we reach here, it would be consistent with the Statutory Construction Act. See 1 Pa.C.S.A. § 1922(5) Presumptions in ascertaining legislative intent. “In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: ... (5) That the General Assembly intends to favor the public interest as against any private interest.”

We are not unmindful of the hardship which our disposition will work upon appellees. Still pending in the trial court is appellees’ third-party action for damages against the real estate company which sold appellees the tracts of land involved in this dispute. Without commenting upon the viability of this third-party action which is not presently before us, it may be that appellees will obtain some relief on their claim.

Judgment vacated. Matter reversed and remanded consistent with this Opinion. Jurisdiction not retained.

      . Richard A. Lenker, Kenneth Williams, Dorothy Williams and Lenker & Williams Real Estate, Inc., are not parties to this appeal, even though they have filed an appellee’s brief. They were joined as additional defendants in Third-Party Complaints each filed by the Coopers, the Watkeys and the Resslers for damages. The decision of the trial court concerned only the ejectment claim of appellant against appellees. The court indicated in its Order that the trial had been bifurcated in order to decide only the ejectment claim of appellant against appellees. The court also opined that its decision rendered moot most of the claims against the additional defendants with the possible exception of attorney fees, costs and expenses. The court indicated in its Opinion, however, that it was not then deciding the claim of appellees against the additional defendants.

      . Laches is an affirmative defense which must be responsively pleaded under New Matter. Pa.R.C.P. 1030. See also Gabster v. Mesaros, 422 Pa. 116, 220 A.2d 639 (1966). If not so pleaded, the affirmative defense is waived. Pa.R.C.P. 1032. Iorfida v. Mary Robert Realty Co., 372 Pa.Super. 170, 539 A.2d 383 (1988), appeal denied, 520 Pa. 576, 549 A.2d 136 (1988). Although appellees Coopers, Watkeys and Resslers, each filed answers to the Complaint in Ejectment, only the Coopers filed New Matter in which they pleaded this affirmative defense. However, the trial court’s decision on the basis of laches granted relief to each of the six appellees and the Brennans, even though the focus of its Opinion was almost exclusively on the plight of the Coopers.

      . The encroachment also entailed approximately one hundred ten feet of the Resslers’ property and nearly one-third of the land owned by the Watkeys.

      . An action in ejectment may be brought where the property interest claimed to be encroached upon is an easement or right of way. See Dunlap v. Larkin, 342 Pa.Super. 594, 493 A.2d 750 (1985). Apparently, therefore, it mattered not whether the type of interest claimed by appellant was in fee or by easement or right of way.

      . The defense of laches, however, has been recognized in other types of cases involving the Commonwealth. See, e.g., Stahl v. The First Pennsylvania Banking & Trust Co., 411 Pa. 121, 191 A.2d 386 (1963) (proceeding by Attorney General for discovery and accounting directing bank to pay money into State Treasury without escheat); Commonwealth ex rel. Storb v. Schroll, 398 Pa. 354, 157 A.2d 179 (1960) (quo warranto ); Commonwealth ex rel. Coghlan v. Beaver Falls Council, 355 Pa. 164, 49 A.2d 365 (1946) (mandamus); Commonwealth ex rel. Margiotti v. Union Traction Co., 327 Pa. 497, 194 A. 661 (1937) (quo warranto); Commonwealth v. Bala & Bryn Mawr Turnpike Co., 153 Pa. 47, 25 A. 1105 (1893) (quo warranto); Clearview Land Development Co., Inc. v. Commonwealth, 15 Pa.Commw. 303, 327 A.2d 202 (1974) (action for abatement of public nuisance landfill operation in violation of Solid Waste Management Act); Commonwealth v. Folcroft Landfill Corp., 1 Pa.Commw. 356 (1971) (injunctive relief against landfill operator for violation of The Solid Waste Management Act, The Clean Streams Law, The Air Pollution Control Act and The Fish Law).

      . This rule appears to be consistent with that of other jurisdictions. See, e.g., City of Gainesville v. Gilliland, 718 S.W.2d 553 (Mo.App.1986) (title to land owned by municipality cannot be lost through adverse possession regardless of whether land held in a governmental or proprietary capacity); In re College Point Industrial Park, 72 A.D.2d 745, 421 N.Y.S.2d 258 (1979) (ownership by municipality of land under water cannot be lost through adverse possession if it is held in a governmental capacity; adverse possession may be claimed if land held by municipality in a proprietary capacity and statute does not prohibit alienability); Lewis v. Village of Lyons, 54 A.D.2d 488, 389 N.Y.S.2d 674 (1976) (land held by municipality in proprietary capacity may be claimed through adverse possession; parcel of land on which building located and adjoining parcel to be used as parking lot successfully claimed from municipality through adverse possession); Grand Lodge of Georgia, Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970) (no adverse possession against City or County regardless whether land held in governmental or proprietary capacity).


author: KELLY, Judge:

text:
    591 A.2d 716
    Marian DORSEY, Appellee, v. CONTINENTAL ASSOCIATES and National Liberty Life Insurance Company. Appeal of CONTINENTAL ASSOCIATES. Marian DORSEY, Appellant, v. CONTINENTAL ASSOCIATES and National Liberty Life Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed April 22, 1991.
    Reargument Denied June 26, 1991.

      Claudia D. McCarron, Lower Gwynedd, for Continental, appellant (at 689) and for Continental, appellee (at 690).
    Nicholas J. Emper, Media, for appellant (at 690) and appellee (at 689).
    Before WIEAND, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether a landowner out of possession of premises leased to a tenant may be held liable for injuries sustained by the tenant’s employee from a fall on a stairway which was wet and slippery from accumulated rainwater. We find that the condition of the stairway was not a hidden or concealed defect and was discoverable by the tenant. Hence, the landowner owed no duty to the tenant’s employee and may not be held liable for the injuries sustained. For the reasons which follow, we vacate the order entered by the trial court and remand to the trial court to enter judgment non obstante veredicto in favor of the landowner.

The facts and procedural history may be summarized as follows. Continental Associates [hereinafter “Continental”] owned real property located at 150 Allendale Road, King of Prussia, Pennsylvania, upon which an office building was located, known as the Continental Arms Office Complex. On September 16, 1980, Continental, as lessor, entered into a lease agreement with National Liberty Life Insurance Company, as lessee [hereinafter “National Liberty”], for office space consisting of 10,000 square feet on the first floor and 10,180 square feet on the second floor of the Continental Arms Office Complex. National Liberty obtained possession on November 1, 1980, and began making rental payments pursuant to the lease agreement.

On December 8, 1981, Marian Dorsey [hereinafter “Dorsey”], an employee of National Liberty, slipped and fell on a tile stairway between the two floors leased to National Liberty. The stairway was wet and slippery as a result of rain water which had accumulated from persons coming in from the outside. Dorsey sustained injuries to her head and back as a result of her fall. She collected workmen’s compensation from her employer, National Liberty.

On May 9, 1983, Dorsey filed a complaint against Continental alleging negligence. On June 8, 1983, Continental filed a writ to join National Liberty as an additional defendant. On June 21, 1983, Continental filed its answer and new matter, to Dorsey’s complaint, alleging that because the injury occurred in the office space leased to National Liberty, National Liberty was liable to Dorsey for her injuries. Continental filed its complaint against National Liberty on June 21, 1983. On August 17, 1983, National Liberty filed its answer and new matter alleging that joinder was barred by the Pennsylvania Workmen’s Compensation Act, 77 P.S. §§ 1 et seq. On September 14, 1984, after oral argument, the trial court entered an order granting summary judgment in favor of Continental and against National Liberty for purposes of determining the issue of indemnification. The order further stated that National Liberty was not required to participate in the trial between Dorsey and Continental.

A jury trial commenced on January 4, 1989. On January 9, 1989, the jury returned the verdict slip, finding that although Continental did not retain possession of the stairway, it had a duty toward Dorsey in that a defect existed at the time the premises were leased to National Liberty, and that Continental's breach of its duty caused Dorsey’s injuries. The jury found Continental to be seventy-five percent negligent and Dorsey to be twenty-five percent negligent with the total amount of damages being $475,000.

Dorsey thereafter filed a petition for delay damages. Continental filed post-trial motions seeking a new trial or, in the alternative, judgment n.o.v. On February 13, 1990, the trial court entered an order granting Continental a new trial based on the trial court’s error in failing to instruct the jury on the liability of a landlord who does not retain possession of the leased premises. On February 15, 1990, the trial court entered an order explicitly denying Continental’s motion for judgment n.o.v. Judgment was entered in favor of Continental on February 23, 1990.

Continental, on March 6, 1990, filed this timely appeal contending, inter alia, that the trial court erred in denying its motion for judgment n.o.v. Continental argues that Dorsey could not recover against Continental, as a landlord out of possession, without proof of a specific defective condition existing in the stairway at the time of leasing. Continental further argues that even assuming that the defective condition was that rain water accumulated on the tile surface of the stairway, Dorsey has failed to prove that this condition was not likely to be discovered by National Liberty from the time the lease agreement was entered into, September, 1980, until the time of Dorsey’s fall, December, 1981. We find the trial court erred by failing to grant Continental’s motion for judgment n.o.v.

In reviewing a denial of judgment n.o.v., this Court must view the evidence in the light most favorable to the verdict winner and draw all reasonable inferences and resolve all conflicts in testimony in that party’s favor. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 449, 467 A.2d 615, 618 (1983). If, however, the law does not permit recovery upon the alleged facts on which the jury may justifiably have found, a judgment n.o.v. should be granted. Kobylinski v. Hipps, 359 Pa.Super. 549, 553, 519 A.2d 488, 490 (1986); Henze v. Texaco, Inc., 352 Pa.Super. 538, 541, 508 A.2d 1200, 1202 (1986). The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law; (2) a failure on the part of the defendant to conform to that duty, or breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987).

In Pennsylvania, a landlord out of possession, in most instances, is not responsible for injuries suffered by third parties on the leased premises. Kobylinski v. Hipps, supra, 519 A.2d at 491; see Parquet v. Blahunka, 368 Pa. 626, 627, 84 A.2d 187, 188 (1951); Doyle v. Atlantic Refining Company, 357 Pa. 92, 98, 53 A.2d 68, 71 (1947); Henze v. Texaco, supra, 508 A.2d at 1202; Pierce v. Philadelphia Housing Authority, 337 Pa.Super. 254, 257, 486 A.2d 1004, 1005 (1985). However, as this Court has previously stated, this rule is subject to several exceptions.

A landlord out of possession may incur liability (1) if he has reserved control over a defective portion of the demised premises, see: Smith v. M.P.W Realty Co., 423 Pa. 536, 539, 225 A.2d 227, 229 (1967); Pierce v. Philadelphia Housing Authority, supra; (2) if the demised premises are so dangerously constructed that the premises are a nuisance per se, see: Miller v. Atlantic Refining Co., 12 D. & C.2d 713, 719 (1957), aff'd, 393 Pa. 466, 143 A.2d 380, 383 (1958); (3) if the lessor has knowledge of a dangerous condition existing on the demised premises at the time of transferring possession and fails to disclose the condition to the lessee, see: id.; (4) if the landlord leases the property for a purpose involving the admission of the public and he neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee, see: Yarkosky v. The Caldwell Store, Inc., 189 Pa.Super. 475, 481, 151 A.2d 839, 842 (1959); (5) if the lessor undertakes to repair the demised premises and negligently makes the repairs, see: Coradi v. Sterling Oil Co., 378 Pa. 68, 71, 105 A.2d 98, 99 (1954); or (6) if the lessor fails to make repairs after having been given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased premises, see Goodman v. Corn Exchange National Bank and Trust Co., 331 Pa. 587, 590, 200 A. 642, 643 (1938). See generally: 22 P.L.E. Landlord and Tenant §§ 257-260; Prosser and Keeton on Torts § 63 (5th ed. 1984); Restatement (Second) of Torts §§ 356-362 (1965).

Henze v. Texaco, Inc., supra, 508 A.2d at 1202. Our Supreme Court has elaborated on exception number three as follows.

A landlord out of possession is liable for resulting injuries if, when he leases premises, he conceals an existing dangerous condition on the land which he has reason to believe the tenant will not discover. The liability of Brucker and Rybas [the landlords], therefore, is limited to hidden or concealed defects: Hayden v. Second National Bank of Allentown, 331 Pa. 29, 199 A. 218; Harris v. Lewistown Trust Company, 326 Pa. 145, 191 A. 34. In the former case, this Court said [331 Pa.] (p. 31 [199 A. 218]): “The general rule is that the landlord who is entirely out of possession and control is not liable for bodily harm caused to the tenant and those upon the leased premises in the latter’s right by reason of any dangerous condition existing when the tenant took possession. In other words, such a landlord owes no duty to persons coming upon the premises for conditions present at the time of the tenant’s entrance. To this rigid rule of non-liability there are but two exceptions: (1) when the landlord conceals or fails to disclose dangerous conditions of which he has knowledge and of when the tenant is unaware and cannot be expected to discover...”

Doyle v. Atlantic Refining Co., supra, 53 A.2d at 71 (emphasis added); see also Parquet v. Blahunka, supra (landlord out of possession held not liable for personal injuries sustained by third party who fell onto sidewalk when defective porch rail gave way even though defective porch rail existed when tenant took possession because tenant knew or should have known by reasonable inspection of its existence); Kobylinski v. Hipps, supra (tenant not landlord out of possession owed duty to warn social guest of tenant of hazardous stairwell; landlord held not liable for death of social guest).

With these legal principles in mind, we turn to an examination of the evidence adduced instantly. On a rainy day, more than a full year after National Liberty-tenant took possession, Dorsey, an employee of National Liberty-tenant, sustained personal injuries when she fell on a stairway which was slippery from rain water tracked in by people using the stairway. N.T. 1/5/89 at 54-55, 59-61; N.T. 1/6/89 at 178. The stairway became wet whenever it rained. N.T. 1/5/89 at 55. The lease agreement did not specifically reference the stairway. The lease described the rented areas as:

office space located at 150 Allandale Road, King of Prussia, PA 19406, known as the CONTINENTAL ARMS OFFICE COMPLEX, consisting of 10,000 square feet on the first floor and 10,180 square feet on the second floor or a total of 20,280 square feet of space.

Lease Agreement dated 9/16/80. The jury, pursuant to a verdict slip, found that Continental did not retain possession of the area in which Dorsey fell, but that the defect existed at the time of the premises were leased to National Liberty. Verdict Slip Question # 2.

Continental was a landlord out of possession. The only basis upon which Continental could be held liable for Dorsey’s injuries is the third exception stated previously, ie., if the lessor has knowledge of a dangerous condition existing on the demised premises at the time of transferring possession and fails to disclose the condition to the lessee. As our Supreme Court explained, the liability of a landlord out of possession to injured third parties, who are on the premises with consent of tenant, is limited to hidden or concealed defects. The “defect” instantly is a stairway which becomes wet from water tracked in by persons when it is raining. If is patently clear that the accumulation of rain water tracked in by persons using the stairway is not a hidden or concealed defect and that such accumulation could quite obviously be discovered by the tenant, National Liberty, within the year and one month it retained possession of the premises. As such, we find, viewing the evidence most favorable to Dorsey, that Continental owed no duty to Dorsey. Rather, the duty was owed by National Liberty.

Dorsey cites two cases in an attempt to show that liability may be imposed to show that liability may be imposed for injuries sustained as result of falls on wet, slippery floors. In Katz v. John Wanamaker Philadelphia, 381 Pa. 477, 112 A.2d 65 (1955), a store patron fell on slippery and wet stairway. Our Supreme Court reversed the order of the trial court which had granted the store owner a directed verdict, holding that the issues of the store owner’s negligence and of the store patron’s contributory negligence were for the jury. In Papa v. Pittsburgh Penn Center Corporation, 421 Pa. 228, 218 A.2d 783 (1966), our Supreme Court found that the evidence adduced at trial supported a finding of negligence on behalf of a landlord who retained control over the hallway where tenant’s business invitee slipped and fell on the accumulation of water and dirt. In both of these cases, the store owner in Katz and the landlord in Papa, retained possession and control over the areas where the injuries occurred. A duty owed to the tenant’s business invitee by the landlord was established in Papa. Whether a duty was owed to the store patron by the store owner was a question for the jury in Katz. Instantly, there is no duty owed by Continental to Dorsey. There is no doubt that Dorsey received personal injuries from her fall but the liability for these injuries lies on the one who owed the duty to Dorsey. National Liberty, as tenant, owed the duty, not Continental, as landlord out of possession.

The trial court’s order granting a new trial is vacated and the case is remanded with directions to enter judgment n.o.v. in favor of Continental.

Jurisdiction relinquished.

      . Dorsey alleged the following in her complaint:
      9. The negligence of Defendant consisted of one or more of the following:
      (a) Creation of the hazardous, defective and dangerous condition on the stairway at the location of the fall;
      (b) Failure to keep the stairway floor dry and clear of slippery substances at the location of the fall;
      (c) Failure to prevent the existence of a slippery condition or substance on the stairway floor at the location of the fall;
      (d) Failure to warn those on the premises of the dangerous condition which Defendant knew or should have known existed at the location of the fall;
      (e) Failure to construct the stairwell in such a manner as to prevent a slippery, hazardous, defective and dangerous condition at the location of the fall;
      (f) Failure to construct the stairway with adequate treads or other non-slip devices at the location of the fall so as to prevent the hazardous, defective, and dangerous condition to those on the premises;
      (g) Failure to place a protective device or barrier on or around the slippery stairwell at the location of the fall to prevent injury to those persons on the premises:
      (h) Failure to use reasonable prudence and care to maintain and keep the floor at the location of the fall in a safe condition;
      (i) Failure to use reasonable prudence and care in the creation and erection of a hazardous, defective, and dangerous condition in the stairwell at the location of the fall;
      Q) Negligence as will otherwise appear.
      Complaint filed 5/9/83 at 3 and 4.

      . On October 19, 1984, Continental had filed a complaint against State-Wide Building Maintenance Co., as additional defendant, alleging that pursuant to the contract for janitorial services between National Liberty and State-Wide Building Maintenance Co., it was liable for Dorsey’s injuries. On January 13, 1989, a stipulation, signed by all parties, releasing State-Wide Building Maintenance Co. from the action was filed with the trial court.

      . Dorsey, on March 7, 1990, filed this timely cross-appeal contending that the trial court erred in granting Continental’s motion for a new trial. Dorsey argues that Continental failed to make timely, specific and proper objections to the jury instructions. Moreover, Dorsey argues that the trial court gave the correct legal standard to the jury. Dorsey, also, argues that the trial court properly denied Continental’s motion for judgment n.o.v. because the evidence submitted by Dorsey was sufficient to prove Continental’s negligence. Our disposition renders Dorsey’s issues moot and therefore they will not be addressed. 404 Pa.Super.Ct.Reports—19


text:
    591 A.2d 720
    Jill HAMILTON, Appellee, v. Chris HAMILTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed May 20, 1991.

      Donald C. Feniello, Washington, for appellant.
    Robert N. Clarke, Washington, for appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

This matter is before the Court on an appeal taken from an order of spousal support in the amount of three hundred ($300) dollars per month. In entering the order, the hearing court refused to enforce, without specific reason, an ante-nuptial agreement by the terms of which the wife-appellee expressly had waived the right to spousal support. Appellant-husband contends on appeal that this was error. We agree and reverse.

Chris Hamilton and Jill Hamilton were married on January 28, 1989. Jill was then eighteen (18) years of age and unemployed. She was also three months pregnant. Chris was employed on a family owned farm. Shortly before the wedding, while both were represented by counsel, Jill and Chris executed an antenuptial agreement which provided, in part, as follows:

In the event that the parties separate from each other or their marriage terminates for any reason or by any means (other than by the death of either party), whether pursuant to a decree of divorce, judgment for dissolution of marriage, a decree of separate maintenance, a judgment for legal separation, order or decree of support, decree of temporary alimony or maintenance, a decree of annulment, a judgment for invalidity of marriage, a written separation agreement, a written property settlement agreement or otherwise (regardless of which party initiates such separation or termination), each of the parties hereby waives all rights he or she may have to and agrees to request that a court make no further provision for separate maintenance, suit money, support, alimony or maintenance (temporary or permanent, whether in gross, lump sum or by periodic payment) or any other form of payment, or any award or settlement of property or income of the other party (including property or income which, except for this agreement, would be deemed to be marital property, community property or quasi-community property under the applicable laws of any jurisdiction) in connection with any such separation or termination or dissolution of their marriage, including legal fees, accounting fees or other expenses of the other party relating to such separation or termination or dissolution.

A child, Chelsea, was born July 18, 1989. On April 9, 1990, however, Chris and Jill separated. A petition for spousal and child support was filed on April 10, 1990, and the same was heard by a domestic relations officer on May 21, 1990. This officer made a provisional determination that Chris should pay the sum of two hundred sixty-four ($264) dollars per month for the support of his child, but he also recommended that the claim for spousal support be denied. Jill appealed and requested a hearing, which was held by the court on August 14, 1990. The hearing court, without specific reason, held that the antenuptial waiver of spousal support was unenforceable. Therefore, an order was entered which directed Chris to pay the sum of three hundred ($300) dollars per month for the support of his wife and the sum of two hundred ($200) dollars per month for the support of his child. Chris appealed. He does not dispute the existence of an obligation to provide support for his child but denies liability for spousal support.

Although the trial court has not stated specifically its reasons for refusing to enforce the provisions of the ante-nuptial agreement, the arguments made by the parties in this Court assume that the basis therefor was duress.

Duress has been defined by the Supreme Court in Carrier v. William, Penn Broadcasting Co., 426 Pa. 427, 233 A.2d 519 (1967), as

that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness: [citing cases]. The quality of firmness is assumed to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm: [citing a case]. Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness: [citing a case]. Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel: [citing cases].

Id., 426 Pa. at 431, 233 A.2d at 521, quoting Smith v. Lenchner, 204 Pa.Super. 500, 504, 205 A.2d 626, 628 (1964). See also: Bata v. Central-Penn Nat. Bank of Philadel phia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct 1348, 18 L.Ed.2d 433 (1967).

The record is clear that there was neither force nor threat of force used to induce Jill to sign the antenuptial agreement in this case. She was told, however, that without the agreement there would be no wedding. It is also true that she was pregnant, unemployed, and probably frightened. Nevertheless, she was represented by counsel, who was available to advise and did, in fact, advise her not to sign the agreement. Jill rejected this advice and signed the agreement. It seems clear, therefore, that she did not sign the agreement under duress. Where a party has been free to consult counsel before signing an agreement, the courts have uniformly rejected duress as a defense to the agreement. See: Bata v. Central-Penn Nat. Bank of Philadelphia, supra at 381, 224 A.2d at 180; Young v. Pileggi, 309 Pa.Super. 565, 571, 455 A.2d 1228, 1231 (1983). See also: Union Nat. Bank and Trust Co. v. Heffernan, 437 Pa. 492, 493, 263 A.2d 349, 349-350 (1970).

Appellee argues that the agreement was unenforceable because it did not contain reasonable provision for her. She relies upon Supreme Court decisions in Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987) (plurality opinion), and Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968), which held that a prenuptial agreement would be upheld if it either made a reasonable provision for the spouse or was entered after a full and fair disclosure of financial status. More recently, however, the Supreme Court has rejected this approach and has held, in Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), that “[pjrenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts.” Simeone v. Simeone, supra, 525 Pa. at 400, 581 A.2d at 165. See also: Raiken v. Mellon, 399 Pa.Super. 192, 196, 582 A.2d 11, 13 (1990). Absent fraud, misrepresentation, or duress, spouses are bound by the terms of their agreements. Simeone v. Simeone, supra, 525 Pa. at 399, 581 A.2d at 165. The Court reasoned:

There is no longer validity in the implicit presumption that supplied the basis for Geyer and similar earlier decisions. Such decisions rested upon a belief that spouses are of unequal status and that women are not knowledgeable enough to understand the nature of contracts that they enter. Society has advanced, however, to the point where women are no longer regarded as the “weaker” party in marriage, or in society generally. Indeed, the stereotype that women serve as homemakers while men work as breadwinners is no longer viable. Quite often today both spouses are income earners. Nor is there viability in the presumption that women are uninformed, uneducated, and readily subjected to unfair advantage in marital agreements. Indeed, women nowadays quite often have substantial education, financial awareness, income, and assets.

Id., 525 Pa. at 399, 581 A.2d at 165. “If parties viewed an agreement as reasonable at the time of its inception, as evidenced by their having signed the agreement, they should be foreclosed from later trying to evade its terms by asserting that it was not in fact reasonable.” Id., 525 Pa. at 401, 581 A.2d at 166.

We are constrained to conclude for the foregoing reasons that the trial court erred when it refused to enforce the provision of the antenuptial agreement by which appellee had waived her right to spousal support. That portion of the court’s order, therefore, will be reversed and set aside.

The order directing appellant to pay spousal support is reversed and set aside.

      . Prior to signing the agreement, Jill was furnished with copies of Chris’s tax returns for at least five years and also copies of his bank records. She does not contend on appeal that a full disclosure was not made.