author: POPOVICH, Judge: KELLY, Judge,

text:
    556 A.2d 878
    John J. McGONAGLE, Jr. and Carolyn M. Vella, his Wife, Appellees, v. UNION FIDELITY CORPORATION and Union Fidelity Life Insurance Company and First General Insurance Company, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1988.
    Filed March 31, 1989.

      Mark S. Dichter, Philadelphia, for Union Fidelity, appellants.
    Stephen B. Harris, Warrington, for appellees.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order (later reduced to judgment) of the Court of Common Pleas of Bucks County denying a motion for judgment n.o.v. by the defendants. We reverse.

An appeal from the denial of a judgment n„o.v. requires that we examine the evidence, together with all reasonable inferences to be derived therefrom, in a light most favorable to the verdict-winner. See Dallas v. F.M. Oxford, Inc., 381 Pa.Super. 89, 552 A.2d 1109 (1989). So viewed, the evidence reveals that John J. McGonagle, Jr., was hired by Union Fidelity Life Insurance Company as an Associate Counsel for Regulatory Affairs in April of 1980.

Union Fidelity Life Insurance Company was in the forefront of mass-marketing insurance via direct mail. It was a subsidiary of Union Fidelity Corporation, as were American Patriot Health Insurance Company and First General Insurance Company. AH were owned by Filmways, Incorporated of California (Filmways).

In October of 1980, the plaintiff learned that the position of general counsel was to become vacant. He approached John M. Cooney to ask to be considered for the post. Cooney was the president of the insurance subsidiaries and the holding company, Union Fidelity Corporation. Because Cooney had “confidence” in the plaintiff, he was named acting general counsel. With the promotion, the plaintiffs responsibilities increased, is., he was both an attorney and a manager for the organization. The plaintiffs rise in the corporate structure accelerated with his designation as general counsel two months later. By February of 1981, he was elevated to a vice-presidential post with Union Fidelity Life Insurance Company and he was named to the board of directors. In the middle of March and the beginning of April of the same year, the plaintiff was named vice-president of First General Insurance Company and American Patriot Health Insurance Company. The job function and responsibilities were consistent with those performed at Union Fidelity Life Insurance Company, except no accompanying pay increase followed.

During the first three months of 1981, it was brought to the plaintiff’s attention that Union Fidelity Life Insurance Company was not complying with various state insurance regulations. It appears that policies were about to be distributed (“mailed”) in Utah when the plaintiff concluded that they were in contravention with that State’s insurance specifications. The executive vice-president in charge of marketing, a Mr. Garvey, was advised of the situation. He summoned the plaintiff and other officials to his office to discuss the matter. Garvey was “quite significant” in the company’s hierarchy in that his orders carried the weight of a directive from Cooney.

The plaintiff described Garvey at this meeting as “absolutely livid” over the prospect that the mailings might have to be stopped. Garvey told those present:

... we had damn well better get this straightened out or there would be blood on the floor by the end of the day and he didn’t give a damn what it took.

If the matter were not resolved, Garvey threatened to “start firing people until he covered enough salary to cover the dollars that he was losing on the sale____” When asked by Garvey to authorize the mailings to Utah, considered by the plaintiff to be “illegal”, McGonagle refused.

Other questionable insurance practices surfaced in New York, Minnesota, Connecticut and Pennsylvania. In the case of Pennsylvania and Utah, the plaintiff made the decision to cease the issuance of policies against applications he felt would be labelled as “illegal” by those jurisdictions. He did so even though he believed a delay in the issuance of the policies would have financial repercussions to Union Fidelity Life Insurance Company. Additionally, the plaintiff decided that a continuation of Union Fidelity-Life Insurance Company’s practice of not honoring CAT scan claims would expose it to “unfair claims” charges, and, as a result, the procedure should cease.

The plaintiff never learned if or how the “policy-filing-problems” were resolved because on the 29th of April, 1981, he was called into Cooney’s office and was told: “I want your resignation. It want you out of here.” The plaintiff was “absolutely stunned” and inquired why he was being asked to leave. Cooney responded:

I’ve had complaints from some of my officers about the quality of work in your department and the way you work with them....

Also, Cooney informed the plaintiff:

You’re good enough that when Combined takes over I’ll never be able to get rid of you and they will be happy with you here.

To put matters in perspective as to the role of “Combined” in this scenario, one needs to be made cognizant of the fact that Filmways, the parent company of Union Fidelity Corporation and its subsidiaries, had taken the initiative to divest itself of the insurance divisions and a processing center to cover its bank debts and to raise operating capital. In December of 1980, the plaintiff learned that the “buy-out” was to be accomplished by means of a stock-purchase-agreement between Filmways and Combined International Corporation.

In connection with the sale, Cooney and the Chairman of Filmways, Richard Bloch, established a “bonus pool” in which monies would be paid to Cooney and select members of Ms executive team (chosen by Mm) for services rendered. The amount to be paid was predicated upon the purchase price. “The higher the price, the more the bonus pool[.]”

The plaintiff also recounted how Cooney offered to rescind the dismissal if he could prove that the allegations of disenchantment from corporate personnel were “inaccurate”. A meeting was set for 10:00 a.m. the next morning to evaluate the plaintiffs efforts. However, even after the plaintiff had spoken to the complainants, he was still perplexed as to the reasons for his firing, especially after Cooney advising him, at the end of February of 1981, that he would be made a vice-president, praised him at a luncheon with his colleagues as the “best person” for general counsel and presented him with an award acknowledging his corporate accomplishments. Other accolades were bestowed upon the plaintiff by Cooney, the substance of which need not be repeated except to note their contribution to the organization.

Against the background just painted, we are informed by the plaintiff of his arrival for the meeting with Cooney and being informed by the head of security that he was not allowed on the premises. As stated by the plaintiff:

I felt like I was under arrest. I mean I didn’t believe this. I mean I left there the day before. I had an appointment with the President of the company at ten o'clock at his suggestion and I came — was coming for the appointment and I’m stopped out in the lot like I’m going to mug somebody and I see people and, people knew this is the head of security.
The head of security doesn’t come out and stop somebody just to have a cup of coffee because they are a threat. Then I’m to be brought in [the building] and I have to be isolated. I absolutely couldn’t believe it.

Ultimately, the plaintiff was permitted to enter the building and directed to wait in a “side office”. Once head of security repeated that the plaintiff would have to leave, the plaintiff was able to contact Cooney by intercom. Cooney was reminded of the meeting but told McGonagle:

... I don’t care. I don’t want you bothering my officers. I don’t care what I told you. I’m not going to see you.

After the plaintiff finished speaking to Cooney, he was escorted off the premises. Three or four days later, the plaintiff received approval to return to the office building to retrieve his belongings. He decided to do so during the evening hours so as not to be embarrassed as he had been previously. However, after he arrived he was denied, a second time, entry to his former office. Even though a box containing his property rested on a table next to the security guard, the plaintiff was told that he would have to return the next day during regular working hours. Nonetheless, it took calls from the plaintiffs attorney to secure authorisation to return to Union Fidelity Life Insurance Company’s office.

Additionally, the plaintiff reported a delay in the receipt of his unemployment compensation and the failure to have his insurance coverage extended through the non-feasance of Union Fidelity Life Insurance Company, as well as his “involuntary” termination not complying with the company’s policy manual on personnel changes.

With the plaintiff’s dismissal, a complaint was filed averring that his discharge was prompted by his efforts to have Union Fidelity Corporation and its subsidiaries cease violating the insurance laws of several states. Also, it alleged that his removal was wrongful as violative of a clear and compelling mandate of public policy and, therefore, was actionable under Pennsylvania law.

After a trial by jury, a verdict was returned in favor of the plaintiff ($30,000 on the wrongful discharge claim and an additional $82,000 in punitive damages). Once post-trial motions were denied, the verdict was reduced to judgment and this timely appeal followed.

All parties concede that the only issue to be decided is whether McGonagle’s loss of employment violated a public policy against the wrongful discharge of an employee-at-will.

We commence our inquiry by observing that employment-at-will has long been a major tenet of American contract law. Novosel v. Nationwide Insurance Co., 721 F.2d 894, 902 (3rd Cir.1983). In Pennsylvania, at least since 1891, the established common law had been that, in the absence of a specific statutory or contractual restriction, an at-will employment contract could be terminated by either the employer or the employee at any time, for good reason, bad reason, or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891). The Pennsylvania courts began to reassess this rather rigid precept in 1974 with the Supreme Court’s benchmark decision of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Although declining to reverse the lower court’s dismissal of the plaintiff’s suit, the Geary Court acknowledged in dicta the possible existence of a nonstatutory cause of action for wrongful discharge:

It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited. But this case does not require us to define in comprehensive fashion the perimeters of this privilege, and we decline to do so. We hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.

456 Pa. at 184, 319 A.2d at 180 (Footnote omitted; Emphasis added).

It is now well-settled in Pennsylvania that, “when the discharge of an employee-at-will threatens public policy, the employee may have a cause of action against the employer for wrongful discharge”. Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 571, 422 A.2d 611, 617 (1980). The sine qua non to recovery is a showing that there has been a “ ‘violation of a clearly mandated public policy which “strikes at the heart of a citizen’s social right, duties, and responsibilities.” ’ ” Paul v. Lankenau Hosp., 375 Pa.Super. 1, 14, 543 A.2d 1148, 1155 (1988) (en banc) (Citations omitted).

At bar, the plaintiff proffered the insurance laws in existence at the time of his dismissal as proof of the existence of a public policy violation. The plaintiff placed heavy emphasis on the reporting requirements of 31 Pa. Code Chapter 122.1, which provided:

Insurance companies doing business in this Commonwealth shall maintain a list of the following actions by the insurance department of any other state against the insurance company or by the insurance company against the insurance department of any other state, which involves any allegation of violation or possible violation of law, and which results in any of the following disposition:
1. Issuance of a court order or court adjudication, including a dismissal.
2. Issuance by the insurance department of a formal order requiring the insurance company to cease and desist from doing any specified act or practice.
3. Imposition of a fine or penalty against the insurance company.
4. Execution of a formal consent order or stipulation containing an admission of violation of law, a formal order or agreement to cease and desist from doing any specified act or practice, or a fine or penalty.
5. Company license revocation.
6. Company license suspension.
7. Company conservorship.[]

This regulation was repealed in 1986 and replaced with a system, updated and offered by the National Association of Insurance Commissioners to state insurance commissioners, whereby monthly reports provided the same information previously volunteered by an insurer. See Pennsylvania Bulletin, Vol. 16, No. 23 at page 2029 (June 7, 1986).

The plaintiff also relied upon 31 Pa.Code Sections 51.4 and 51.7, which provide:

§ 51.4. Advertising file.
(a) Each company shall maintain at its home or principal office a complete file containing every printed, published, or prepared advertisement of its individual contracts and typical printed, published or prepared advertisements of its blanket, franchise, and group contracts hereafter disseminated in this or any other state whether or not licenses in such other state.
(b) Each advertisement included in this advertising file shall be annotated as to the manner and extent of distribution and the form number of the contract advertised.
(c) The advertising file kept in accordance with the provisions of this section shall be subject to inspection by the Department.
(d) All advertisements and related material shall be maintained in said file for a period of either four years or until the filing of the next regular report of examination of the company, whichever is the longer period.
§ 51.7. Sanctions.
Failure to properly file or maintain material, in accord with the requirements of this Chapter shall constitute a refusal to produce or maintain records as required by the Department, and shall subject any individual or company so failing to all the appropriate sanctions provided by law.

Lastly, the plaintiff directs us to 40 Pa.S. Section 437, which reads in pertinent part:

... Any person chosen, either annually or to fill a vacancy, as president, secretary, treasurer or for any other office provided for in the by-laws, shall continue to serve in such office unless the insurance commissioner, after such investigation as he deems proper, shall determine that the responsibility, character, and general fitness for the business, of such individual are not such as to command the confidence of the public, and to warrant the belief that the business of the company will be honestly and efficiently conducted in accordance with the intent and purpose of this act....

It is the plaintiffs contention that the cited material embodies the public policy of this Commonwealth, and, as such, he was “compelled” to comply with its intent and purpose. In other words, Ms actions within the insurance company, to make certain that the business complied with the laws and regulations of all the states in which the company operated, were “required as a matter of public policy by Pennsylvania, because the general fitness for the insurance business and financial health of defendant insurance companies depended not just on the business it did in Pennsylvania but on the sum total of its business in this and other states.”

The plaintiff makes reference to no case supportive of Ms position that Ms job was terminated because he attempted to fulfill the responsibilities expressed in the previously quoted regulations and statute. While there is no Pennsylvania case squarely on point, we believe that the clear direction of the opinions in this area of the law suggest the absence of a recognized and significant public policy violation, and this, in turn, dispenses with the need to Inquire into whether the defendants had a justifiable reason for firing the plaintiff. See Yaindl v. Ingersoll-Rand Co., supra, 281 Pa.Super. at 577, 422 A.2d at 620; see also Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 505 A.2d 259 (1985).

In the cases we have examined, a wrongful discharge cause of action has been sustained where it is rooted in an important and well-recognized facet of public policy. For example, in Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the plaintiff/employee was hired for an indefinite term as a quality control director and operations manager of the defendant, Teddy’s Frosted Foods, Inc. The plaintiff began to notice deviations from the specifications contained in the defendant’s standards and labels for vegetables and meat components which went into making its products. These deviations also constituted violations of the Connecticut Uniform Food, Drug and Cosmetic Act (Act). The plaintiff wrote the defendant concerning the use of substandard materials. His recommendations were ignored and he was fired shortly thereafter.

The Connecticut court concluded that the lower court’s grant of the defendant’s motion to strike (equivalent to a demurrer) was error. Because the Act was intended to protect the health and welfare of the public from produce use and merchandising deceit, the plaintiff acted to protect the public’s safety and himself from criminal sanction. As such, the case was remanded to allow the plaintiff to pursue his wrongful discharge suit.

In Perks v. Firestone Fire & Rubber Co., 611 F.2d 1363 (3rd Cir.1979), a dismissal for failure to take a polygraph test was held to violate public policy since such testing, as a condition of employment, was proscribed by the Pennsylvania Crimes Code, 18 Pa.C.S. § 7321. Consistent therewith, a discharge of an employee for his responding to a notice of jury duty was held violative of a clear mandate of public policy in Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119, 121 (1978) (Pa. Const. art. I, § 6; 17 P.S. § 1099). Accord Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975). Continuing, in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), the Supreme Court of Indiana reversed the trial court’s dismissal of a complaint alleging the plaintiff was discharged for filing a workmen’s compensation claim. Further, a replacement of an employee for her refusal to sell liquor to a visibly intoxicated person was violative of the Pennsylvania Liquor Code and the predicate for the tort of wrongful discharge. See Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699, 702 (3rd Cir.1988). Also, in Novosel, supra, the removal of an employee for his unwillingness to participate in the company’s lobbying efforts was held to concern, under Pennsylvania law, the right to political expression and association entitled to protection. Likewise, in Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), an applicant’s denial of work for his failure to disclose a 13-year-old misdemeanor count, for which he had been unconditionally pardoned, entitled him to a cause of action for wrongful refusal to hire. But see Cisco v. United Parcel Services Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984). Finally, in Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), the court permitted a cause of action for an employee’s dismissal for refusal to commit perjury.

In contrast, where the public policy claimed to be violated is not “clear”, a cause of action for wrongful discharge has not been recognized. For instance, in Callahan v. Scott Paper Co., 541 F.Supp. 550 (E.D.Pa.1982), the plaintiffs alleged they were discharged by Scott in retaliation for their objection to, expression of and efforts to eliminate the illegal price discounts and promotional allowances which Scott extended to certain favored customers.

The Callahan court, albeit labelling the efforts of the plaintiffs as “praiseworthy” in redirecting what they perceived to be unlawful activity (in the anti-trust field) by Scott, concluded that, “the employer's interest [was] paramount where the employee objected] to pricing decisions of his employer on the ground that they cause harm to competition.” 541 F.Supp. at 563 (Citations omitted).

In Yaindl, supra, an employee’s discharge for bringing to the company’s attention defects in the manufacturing of pumps for an overseas company was held not to constitute a contravention of any stated public policy. A claim that the pumps posed a “safety hazard” was unsubstantiated. Moreover, there was no evidence that the company attempted to hide the defects in the pumps, or deny its responsibility. Accord Adams v. Budd Co., 583 F.Supp. 711 (E.D.Pa. 1984).

Furthermore, in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981), Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), and Lampe v. Presbyterian Med. Center, 41 Colo.App. 465, 590 P.2d 513 (1978), each complainant pointed to a statute or professional code of ethics as reflective of the “public policy” violated with his/her dismissal. The courts decided otherwise in holding that the basis for the public policy claim was too vague and lacking in specifics to mount up to a yrima facie showing that the claimed misconduct on the part of the employer violated the public policy of the states. See Adler (Md.’s criminal code and claims of commercial bribery and falsification of corporate records were too vague), Pierce (medical doctor’s refusal to continue to work on development of product claimed to be violative of Hippocratic Oath did not identify a specific expression of public policy), and Lamye (statute containing general principles pertaining to the licensing of plaintiffs profession (nursing) did not create a cause of action).

In this Commonwealth, a case-by-case analysis has been adopted in reviewing a wrongful discharge cause of action. See Rossi v. Pennsylvania State Univ., 340 Pa.Super. 39, 43-48, 489 A.2d 828, 831-32 (1985). Such an approach is apropos here since this case focuses on the special considerations arising out of the right to fire an employee at-will who is a member of a recognized profession. In this context, it is worth mentioning that the responsibilities confronting a professional employed by a large corporation may, on occasion, conflict; to-wit:

Consider, for example, the plight of an engineer who is told that he will lose his job unless he falsifies his data or conclusions, or unless he approves a product which does not conform to specifications or meet minimum standards. Consider also the dilemma of a corporate attorney who is told, say in the context of an impending tax audit or antitrust investigation, to draft backdated corporate records concerning events which never took place or to falsify other documents so that adverse legal consequenees maybe avoided by the corporation; and the predicament of an accountant who is told to falsify his employer’s profit and loss statement in order to enable the employer to obtain credit.

Blades, Employment At Will vs. Individual Freedoms: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404, 1408-09 (1967).

An employee who is also a professional has a dual obligation: to abide by federal and state laws, in addition to staying within the bounds of his/her professional code of ethics. Such responsibility may necessitate that the professional forego the performance of an act required by his/her employer. Pierce, supra. However, when the act to be performed turns upon a question of judgment, as to its legality or ethical nature, the employer should not be precluded from conducting its business where the professional’s opinion is open to question. Id.

Instantly, it was the position of the defendants that the “policy filing problems” were minor in nature and easily reconciled without the loss of revenue or the contravention of any state’s insurance requirements, a matter we find to be more akin to a difference of opinion and not a request to have the plaintiff perform an “illegal” or unethical act in furtherance of corporate profits.

It is true that unjust dismissal continues to be a substantial problem for the nearly seventy million employees who are neither civil servants nor union members. Comment, Protecting Employees At-Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931, 1934 (1983). However, this Court is bound by Pennsylvania law as to what constitutes a wrongful discharge. Adams, supra. It is obvious from all the cases reviewed, unless an employee identifies a “specific” expression of public policy violated by his discharge, it will not be labelled as wrongful and within the sphere of public policy.

As with Adler, supra, Pierce, supra, and Lampe, supra, we read the regulations and statute presented by the plaintiff, to buttress his public policy argument, to be no more than a “general” expression of this Commonwealth’s attempt to monitor a particular industry. This point is consistent with the plaintiff’s characterization of the insurance laws of this Commonwealth as being purely “voluntary” in nature.

The provisions recited by the plaintiff lack specificity as to what conduct is proscribed. Although “informative” as to the consequences which may befall an individual or insurance company for failing to act, the regulations are devoid of “substance” as to what conduct exposes one to a penalty and/or fine, save for the retention of a file on advertising information not herein dispositive of the issue under examination.

Albeit the plaintiff makes reference to various “policy-filings” not comporting with certain states’ insurance procedures, he neglects to list those statutes or regulations. We are left with only his opinion as to such conduct being (“qualitatively”) violative of a state’s unspecified insurance laws. We do not equate such broad and general statements of policy violations to be tantamount to Geary’s “clear mandate of public policy which strikes at the heart of a citizen’s social right, duties and responsibilities” entitled to the status of a nonstatutory cause of action.

Judgment reversed and case remanded for entry of judgment in favor of the defendants. Jurisdiction is relinquished.

KELLY, J., joins and files a concurring statement.

KELLY, Judge,

concurring:

I join in the majority opinion. I note, however, that I do not read the majority opinion to adopt, as binding on this Court, any of the specific holdings of the various decisions of our sister states and the federal courts cited as to what may or may not be a public policy of this Commonwealth. Rather, I read the majority opinion to emphasize the importance of clear evidence of the existence of a particular public policy, a clear breach of the public policy, and a substantial nexus between the public policy violated and the challenged termination of an employee’s at-will employment.

Neither the existence nor the violation of a public policy were established in this case.

      . The defendants who have perfected an appeal to this Court, at least as appears from the face of the "Notice of Appeal”, consist of Union Fidelity Corporation, the parent company of the other subsidiaries, defendants Union Fidelity Life Insurance Company, American Patriot Health Insurance Company and First General Insurance Company.
      John M. Cooney, who was president of the insurance companies named, was included in the suit by the plaintiff under the theory that he “intentional[ly] and improper[ly] interfere[d] with Plaintiffs contractual relationship with Union Fidelity and its subsidiaries," Yet, the trial court granted the defendants’ motion for a non-suit so that only the “wrongful discharge" issue was permitted to go to the jury for resolution, a count in the complaint which did not list Cooney as a party-opponent. Nonetheless, prior to the Court Clerk asking the foreperson to state the jury's verdict, he announced the names of the defendants, and Cooney was listed therein. Despite the aforesaid, this Court has no reason to think that Cooney is a party to the instant appeal inasmuch as Ms name is absent from the “Notice of Appeal” document.

        . The final price for the sale came to 103.1 million dollars. Of this, Cooney was the recipient of $272.000 in “bonus” money, Mr. Wert (senior vice-president of marketing) received $13,000, Mr. Garvey was the beneficiary of $175,000, and Mr. Wise (chief of security) received $13,000 to $15,000.

      . Our review of the defendants’ post-trial and supplemental motions and brief on appeal discloses the preservation of but one issue, i.e., the judgment n.o.v. question. All other issues and grounds proffered are held waived. See Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa.Super. 119, 476 A.2d 919 (1984), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 149 (1985).

      . The time-frame for reporting these actions appeared at 31 Pa.Code Chapter 122.2.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    556 A.2d 886
    Paul DAMICO, Appellant, v. ROYAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1988.
    Filed March 31, 1989.

      Steven C. Forman, Philadelphia, for appellant.
    March C. Brennan, New Jersey, for appellee.
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   BECK, Judge:

The issues before this court involve whether a dismissal without prejudice for failure to join an indispensable party is an appealable order and whether that party was in fact indispensable. We conclude that the trial court’s decision that it lacked jurisdiction because of the failure to join an indispensable party was an appealable order and that the trial judge correctly concluded that the party not joined was indispensable. Therefore, we affirm.

The cause of action in this case stems from an automobile accident. Appellant sought recovery from Royal Insurance Company, the only defendant named in this case. After a motion to dismiss by Royal Insurance, the trial court ruled that under the applicable law, the New Jersey Automobile Full Insurance Underwriting. Association (JUA) was an indispensable party to the action. The court ordered that the claim be dismissed without prejudice.

We first address the question of appealability. An appeal lies only from a final order unless otherwise provided by statute. Pugar v. Grego, 483 Pa. 68, 394 A.2d 542 (1978). See also Pa.R.A.P. 341; 42 Pa.Cons.Stat.Ann. § 742 (Purdon 1981). An order is considered final for purposes of appeal when it ends the litigation or disposes of the entire case. Fox v. Gabler, 377 Pa.Super. 341, 547 A.2d 399, 462 (1988) (citing, T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977)).

In the present action, the lower court dismissed the action without prejudice because the appellant failed to join an indispensable party. “[Wjhenever it appears by suggestion of the parties or otherwise that there has been a failure to join an indispensable party, the court shall dismiss the action.” Pa.R.C.P. 1032(2). Rule 1632(2) reflects the fact that in the absence of an indispensable party, the court lacks jurisdiction over the matters before it that affect the rights of that missing party. Columbia Gas Transmission v. Diamond Fuel Co., 464 Pa. 377, 346 A.2d 788 (1975). Thus, the trial judge necessarily dismissed the present action without reaching the merits of appellant’s claims since any order of the court on the merits would have been null and void for want of jurisdiction. Id; see also Pocono Pines Corp. v. Pennsylvania Game Commission, 464 Pa. 17, 345 A.2d 709 (1975). Therefore, the order of the trial court dismissing the case for lack of jurisdiction due to failure to join an indispensable party is a final and appeal-able order as it puts the parties out of court in the case without reaching the merits of the action. The fact that the dismissal was without prejudice thereby permitting the plaintiff to reassert the action in another lawsuit does not affect the finality of the order.

We next address the issue of whether the JUA is an indispensible party. “[A]n indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights....” Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra, 464 Pa. at 379, 346 A.2d at 789. A determination of indispensability may include the following considerations:

1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?

Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981).

For the following reasons we conclude that the JUA is an indispensable party. In 1984, New Jersey enacted the New Jersey Automobile Full Insurance Act to provide automobile insurance to those citizens unable to secure insurance from private carriers. See Fisher v. New Jersey Automobile Full Insurance Underwriting Association, 224 N.J.Super. 552, 555, 540 A.2d 1344, 1346 (1988) (citing N.J.Stat.Ann. § 17:30E-2 (West 1985)). To carry out this purpose the act created the JUA. All insurers offering automobile insurance in New Jersey are required to participate in the JUA. N.J.Stat.Ann. § 17:30E-4 (West 1985). Under N.J.Stat.Ann. § 17:30E-6(a) (West 1985), the board

of the JUA was to establish procedures and methods for insurance carriers to issue policies on behalf of the JUA. The board established “minimum requirements for the selection and performance of servicing carriers....” Id. Pursuant to the plan, the insurance carriers themselves are not liable for payment of losses. “[A] judgment against the association [does] not create any direct liability against the servicing carrier ... or the individual participating members of the association....” N.J.Stat.Ann. § 17:30E-7b (West 1985). Further, as has been recently stated by the New Jersey Superior Court:

Under 17:30E-7e the servicing carrier has no liability for claims under Association [JUA] policies. That section of the Act provides servicing carriers, as agents of the Association, shall have no individual liability for claims or policies written by the Association. Accordingly, only the Association is subject to judgments arising from claims on Association policies issued by a servicing carrier.

Bidnick v. Hanover Insurance Co., 230 N.J.Super. 111, 114 n. 1, 552 A.2d 1023, 1024 n. 1. (1989).

In the present case, appellant brings an action solely against Royal Insurance Company. Royal Insurance Company is the parent of The Newark Insurance Company. The Newark Insurance Company, acting as a servicing carrier of the JUA, had issued a policy of insurance to appellant. Under the applicable law Royal Insurance Company, the named defendant, is not liable for any loss that the appellant may have suffered. Royal Insurance is one of the servicing carriers in the JUA scheme and as such is an agent of the JUA. Thus, any recovery in this case would be from JUA and not Royal Insurance. It is the rights and interests of the JUA that are at the heart of the defense of this case and not those of the only named defendant, Royal Insurance. Therefore, we hold that the JUA is an indispensable party.

We affirm the order of the trial court dismissing without prejudice this case for failure to join an indispensable party.

Order affirmed.

      . The trial court stated that appellant’s claim was dismissed without prejudice. It is obvious that the court intended this phrase to mean that the case was not dismissed on the merits but only for a failure of jurisdiction. Thus, its decision would not be res judicata on the merits of appellant’s claim.

        The court’s rationale for its order dismissing the action without prejudice was its conclusion that the JUA was an indispensable party. The order was final because it terminated the present action brought against Royal Insurance and was intended to bind appellant and preclude him from bringing another action solely against Royal Insurance Company. It is the appeal from this final order that we address. See Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra, 464 Pa. at 379, 346 A.2d at 789-790 ("The decree of the court below is vacated and the complaint is dismissed without prejudice to the right of appellee to institute a new action wherein all necessary and indispensable parties are made parties to the action.”).


author: DEL SOLE, Judge:

text:
    556 A.2d 888
    Charles GRALKA and Janet Gralka, his Wife, Appellees, v. Yvette ISAACSON, Trustee of the Greentree Road Shopping Center, Honeybaked Ham Co., a Corporation, Kenneth Isaacson, Managing Agent for the Trustee and as Part Owner of the Greentree Road Shopping Center, Anna M. Abromson, Anthony Papadakis, Kalmaine Graham, Pearl Fine Gross, Jeffrey Isaacson and Yvette Isaacson as Part Owners of the Greentree Road Shopping Center, Yvette Isaacson as Trustee of the Estate of Morris Deakter, Deceased, and as Managing Partner of the Greentree Road Shopping Center and the Greentree Road Shopping Center, a Partnership. Appeal of Yvette ISAACSON, Trustee, Greentree Road Shopping Center, Kenneth Isaacson, Managing Agent for the Trustee and as Part Owner of the Greentree Road Shopping Center, Anna M. Abromson, Anthony Papadakis, Kalmaine Graham, Pearl Fine Gross, Jeffrey Isaacson and Yvette Isaacson as Trustee of the Estate of Morris Deakter, Deceased and as Managing Partner of the Greentree Road Shopping Center, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed March 31, 1989.
    Reargument Denied May 1, 1989.

      Elaine V. Preston, Pittsburgh, for appellants.
    Louis C. Long, Pittsburgh, for Gralka, appellees.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from a preliminary injunction which directed the HoneyBaked Ham Company to cease and desist from selling any food item from the premises it leased from Appellant, landlord. This injunction was based upon the court’s finding that HoneyBaked’s lease violated the terms of the landlord’s existing lease with Appellee. Because no reasonable grounds exist to support the court’s conclusion that a restrictive covenant was violated, we reverse the trial court’s order.

Where a preliminary injunction has been granted, our scope of review is limited to examining the record to determine whether there were any apparently reasonable grounds for the trial court’s action. City of Scranton v. Baiderman, 74 Pa.Commw. Ct. 367, 460 A.2d 1199 (1983). The court’s decision will be interfered with only where there are no grounds to support the decree or the rule of law relied upon was misapplied or palpably erroneous. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984). A preliminary injunction is properly issued only where there is urgent necessity to avoid injury which cannot be compensated for by damages. Independent State Store Union v. Pennsylvania Liquor Control Bd., 495 Pa. 145, 432 A.2d 1375 (1981) It should never be awarded except where the plaintiff’s rights are clear and unless greater injury will be done by refusing it than by granting it. Id.

In this case the injunction was issued based upon the court's conclusion that a restrictive covenant in the Appellee’s lease was violated. Appellee had entered a lease with Appellant, landlord, to rent space in which to open a store, The Uncommon Market. Article IX of the lease provided a “Use Clause and Restrictions.” It permitted the leased premises to be used “for the sale of any and all customary merchandise sold in other Tenant-operated stores.” It also offered Appellee the following restriction as protection from competition:

Landlord will not lease or sell to, or otherwise permit the occupancy by, any one tenant (or its affiliates) of more than Two hundred (200) square feet of floor area for the sale or display of International Foods, (emphasis added).

Other tenants enjoyed similar protections and a list of these tenants and their protected products was attached to the lease. A special agreement was made between Appellee and another Tenant, Pier I Imports, permitting the sale of certain items which would otherwise be violative of Appellee’s restrictive covenant. These items were described in the agreement attached to the lease as “tins of imported cookies, candies, and/or other food items.” (emphasis added).

The distinct nature of Appellee’s business is described in one remaining section of the lease agreement. Section 24 indicates that Appellee will be offering to the public written and photographic material not printed in the United States of America. Due to the potential that certain members of the public may find this material to be offensive, a provision for the removal of this material was made. Included in this provision is the following statement: “Both Landlord and Tenant agree that the primary purpose of this lease is for a retail store purveying foods from foreign lands.” (emphasis added).

Subsequent to the execution of this lease landlord entered another lease agreement with HoneyBaked Ham. Honey-Baked sought to occupy a storeroom for the sale of its specially prepared spiral sliced hams. Customarily 95% of the sales generated from a HoneyBaked Ham store are from these hams which are raised and prepared domestically. The hams are supplied, cooked and smoked by a supplier in South Dakota, and the store tops the ham with a glaze and slices it in a spiral fashion.

Appellee filed a complaint in equity seeking to have HoneyBaked cease and desist from continuing its planned commercial operations at the shopping center. This relief was sought based upon Appellee’s claim that by the terms of its lease it enjoyed an exclusive right to sell food products in the shopping center and that HoneyBaked would violate the terms of this exclusivity provision if permitted to operate its store. In ruling on Appellee’s request the court focused on the terms “international foods” which appear in the exclusivity provision of Appellee’s lease. The court found that international foods are foods from any nation including the United States of America. Thus although the hams were supplied and produced domestically, the court found that they were an international food and the sale of such from the HoneyBaked store would violate the exclusive protection afforded Appellee in its lease.

Before we engage in a discussion of the interpretation of the term “international foods” which appear in the exclusivity clause, we first must address Appellee’s claims that this appeal cannot proceed because it is interlocutory and because the matter is moot. Appellee first contends that appellate review in this case should await entry of a permanent injunction and the entry of damages. We cannot agree with Appellee’s position when the Rules of Appellate Procedure specifically grant a party the right to take an interlocutory appeal from an order granting an injunction. See: Pa.R.A.P. 311(a)(4). And, despite the fact that HoneyBaked has decided not to pursue this matter on appeal, we do not find this appeal filed by the landlord to be moot. By the actions of the court granting an injunction the landlord has lost a tenant and the income it would generate, and may have suffered further damages. We cannot say HoneyBaked’s nonparticipation in this appeal has resulted in the absence of a case or controversy. Camiel v. Thornburgh, 507 Pa. 337, 489 A.2d 1360 (1985).

Turning now to the central issue in this case; the court’s interpretation of the term “international foods.” As noted the lease granted Appellee’s protection in the form of a restriction preventing the landlord from leasing premises in the shopping center to another business selling “international foods.” Although the hams in this case were produced in this country the court found that their sale would violate the terms of this restrictive covenant.

It has been held that nothing will be deemed a violation of a restrictive covenant that is not in plain disregard of its express words. Berger v. Ackerman, 293 Pa.Super. 457, 439 A.2d 200, 203 (1981). “Moreover, this court cannot enlarge a restriction by implication for the restriction must be construed most strictly against the one asserting rights under it.” Id. When construing a restrictive covenant contained in a contract it must be recalled that the agreement must be interpreted as a whole with the ordinary meaning of language throughout the country given to the words of the contract. Pines Plaza Bowling, Inc. v. Rossview, 394 Pa. 124, 145 A.2d 672 (1958).

The term “international foods” was found to encompass food products which are produced in the United States. Appellee submits that this is an appropriate interpretation in view of the fact that international refers to all nations. We do not believe such an interpretation is reasonable or applicable to the provisions of this contract.

Reading the contract in its entirety we find that it permits Appellee to use their retail space for many purposes, but only one use is protected by the restrictive covenant, the sale of “international foods.” The contract reveals that these food items are the primary product to be sold at Appellee’s store and in Section 24 of the lease it is stated that the primary purpose of the lease is to offer for sale “food from foreign lands.” These clauses read in conjunction which each other support a finding that the terms “international foods” refer to foods carried in Appellee’s store which are from countries other than our own. Since the primary purpose of Appellee’s business is to sell food from foreign lands, it would follow that it is this competition which Appellee would seek to have eliminated by means of a restrictive covenant. Further support for this interpretation can be found in the Rider to the lease which constitutes an agreement between Appellee and its fellow tenant Pier I. Therein it is stated that Pier I’s sale of imported cookies, candies, and/or other food items would be within the exclusivity clause granted Appellee in its lease. The reference to imported items is further evidence of an intention to restrict other tenants from carrying products which are not produced in this country.

In addition, the interpretation offered by Appellee and made by the trial court is misguided. If the words “international foods” were to protect the competitors from offering for sale any food items from any country, the contract could have simply restricted the sale of “food.” The inclusion of the word “international” would be unnecessary. We cannot accept the premise that the drafter of this contract provision, Appellee, included language with no purpose. A term in a contract should not be treated as mere surplusage. Instead, it appears plain that the parties intended to protect Appellee’s store, which featured foreign food, from similar competition. By including the term “international foods” the landlord was restricted from entering into a lease with another tenant who would likewise offer for sale food items which came from other lands. The landlord’s lease with HoneyBaked did not violate these terms. HoneyBaked offered for sale domestic hams, not foreign, imported and/or international items. Products which are produced in the United States of America are not protected by Appellee’s restriction on “international foods.”

Finding no support for the trial court’s ruling, we reverse. Order reversed.


author: CIRILLO, President Judge:

text:
    556 A.2d 892
    John GAUL & Evelyn Gaul, Administrators of the Estate of Richard Gaul, Deceased, and John Gaul & Evelyn Gaul, h/w, in their Own Right, Appellants, v. CONSOLIDATED RAIL CORPORATION.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1989.
    Filed April 4, 1989.

      Stephen H. Skale, Philadelphia, for appellants.
    D. Donald Jamieson, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying the removal of a compulsory nonsuit and entering judgment in favor of the appellee Consolidated Rail Corporation [Conrail]. We affirm.

This case arises out of the death of plaintiffs/appellants John and Evelyn Gaul’s son, Richard Gaul, on the evening of November 26, 1980. Richard was run over and killed by a train travelling westward from Philadelphia to Reading on Conrail’s Norristown line. From testimony adduced at trial, it appears that at the time of the accident, Richard was lying motionless in the center of the track, with his head pointing to the east and his feet to the west, with his arms at his side, and his legs together. It was dark at the time of the accident, and Richard was not at a regular railroad crossing when he was struck. The Gauls brought suit against Conrail, alleging that it knew or should have known of Richard’s presence in a place of imminent danger or peril, and that it willfully, wantonly, recklessly, and negligently failed to halt the train before it ran over him. Although they did not plead the doctrine of permissive crossing in their complaint, they were permitted to do so at trial.

The Gauls called as on cross-examination John Dillon, the operator of the train which hit Richard. He testified that he saw what appeared to be a “stub tie” on the tracks approximately fifty to seventy-five feet ahead of the train, and began to slow the train. When he was thirty feet from the object, and travelling at a speed of approximately thirty miles per hour, he realized that the object was a person lying on his or her back. He then put the brake into the emergency position. The train came to a stop roughly one hundred to one hundred and fifty feet after the emergency brake was put on. Dillon also testified that there was a pathway, worn with use', on one side of the tracks in the area where Richard was lying, which he had seen in use “a couple times a week” over the six years in which he had been working that particular route for Conrail.

At the close of the Gauls’ case on liability, Conrail moved for a nonsuit, and its motion was granted by the court. The court found that the evidence produced was insufficient to show that a permissive crossing existed, and, further, even if the evidence had been sufficient, Richard was not using the crossing in a permissible manner, rather, he was lying on the tracks. Therefore, he was not entitled to the duty of care owed to persons using permissive crossings. The Gauls made a timely motion for removal of the nonsuit, which was denied. The Gauls then appealed to this court.

On appeal, the Gauls argue that the evidence of permissive use of Conrail’s railroad tracks was sufficient to present a jury question as to the existence of a permissive crossing. Secondly, they argue that the trial court erred in finding that because Richard was lying on the tracks rather than actively walking across them he was not owed the duty of care given a person in a permissive crossing. Lastly, they contend that even if the evidence presented at trial was insufficient to prove a permissive crossing, the court should have permitted the question of wanton or willful misconduct to go to the jury.

When considering an appeal from a trial court’s refusal to remove a compulsory nonsuit, the appellate court reviews the record in order to determine whether the trial court abused its discretion or committed an error of law. The trial court’s refusal to remove the nonsuit will be affirmed where the standard applicable to the entry of a nonsuit was properly applied: the plaintiff must be given the benefit of all evidence favorable to him or her, together with all reasonable inferences which arise from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff. A nonsuit will be entered only in clear cases — an order granting a nonsuit is proper only if the jury, viewing the evidence in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action had not been established. Kuriger v. Cramer, 345 Pa.Super. 595, 602, 498 A.2d 1331, 1334-1335 (1985).

The Gauls’ case is based in part on the contention that Richard was in fact within a permissive crossing when he was struck, and therefore that the duty owed to him would have been similar to that owed to a person within a regular railroad crossing: “A permissive crossing is a defined footpath leading to a crossing over railway tracks which is being habitually used, and which places upon the railway company the duty of care comparable to that required at a regular crossing.” Hamley v. George, 365 Pa. 543, 548, 76 A.2d 181, 183 (1950). The Gauls argue that there was sufficient evidence presented to permit a jury to determine that a permissive crossing existed at the point at which Richard was seen lying on the tracks. They contend that the trial court erred in granting a nonsuit on these grounds. In order to determine whether the trial court properly granted the nonsuit, we must examine how the supreme court of this Commonwealth, and this court, have defined permissive crossings.

In Henry v. Pennsylvania Railroad Co., 368 Pa. 596, 84 A.2d 675 (1951), the supreme court defined a permissive crossing as an express or implied license to pass over the property of another, in this case, to pass over property of the railroad company. The crossing must be restricted to a well-defined location, and must be shown to be used frequently, notoriously, and continuously by the public. Id., 368 Pa. at 600, 84 A.2d at 677; see also Conn v. Pennsylvania Railroad Co., 288 Pa. 494, 502, 136 A. 779, 781 (1927). The court stated that “it is essential that the location of the permissive way be well defined.” Id.; Conn, 288 Pa. at 502, 136 A. at 781. In Conn v. Pennsylvania Railroad Co., supra, that court had also made clear that the nature of the crossing must be public; it was not sufficient to show that boys going to and from activities in a city park located near the tracks used the way. Conn, 288 Pa. at 502, 136 A. at 781.

The determination of whether or not a permissive crossing exists is one to be made on the facts of each case. See, e.g., Shaw v. Pennsylvania Railroad Co., 374 Pa. 8, 11, 96 A.2d 923, 925 (1953) (permissive crossing found to exist where there was evidence of long-used, well-beaten, well-defined footpath leading from the east to tracks, and similar path leading from tracks to the west); Henry, 368 Pa. at 598, 84 A.2d at 676 (permissive crossing existed where planks were laid across railroad tracks to permit cars to pass over them, part of abutment leading to tracks was covered with ashes to build up rough roadway leading to tracks, photograph was introduced into evidence showing ruts worn into ground making rough roadway up to tracks, testimony was presented that cars passed over tracks to and from ball field adjacent to tracks, bulldozer had crossed in order to improve ball field, plaintiffs used crossing for coal business, and grocer used crossing twice a week for purpose of dumping garbage); Echon v. Pennsylvania Railroad Co., 865 Pa. 529, 535, 76 A.2d 175, 178 & 178 n. 4 (1950) (permissive crossing existed where testimony indicated that hundreds of people had used crossing to travel between two streets for period of at least twenty years, photograph showing well-defined path was introduced into evidence); Figard v. Pennsylvania Railroad Co., 361 Pa. 380, 382, 65 A.2d 411, 412-418 (1949) (permissive crossing existed where group of houses paralleled tracks, well-defined footpath led to tracks from houses, testimony was introduced showing persons habitually crossed tracks to gain access to mailboxes placed along public highway paralleling tracks, children used crossing to reach school bus stop for period of time sufficient for company to become aware of practice). But see Conn, 288 Pa. at 507, 136 A. at 783 (evidence showing that boys frequenting playing field went up and down embankment to reach spring or to run from other boys was insufficient to show public use constituting permissive crossing; no opening in fence separating tracks from field); Scarborough by Scarborough v. Lewis, 359 Pa.Super. 57, 61, 518 A.2d 563, 565 (1986) (evidence insufficient to indicate permissive crossing where it only showed hole in fence adjacent to railroad tracks and path down embankment leading to tracks).

In the instant case, the Gauls produced testimony to show that the operator of the train was aware that pedestrians frequently crossed the tracks in the area where Richard was struck. Dillon testified that he had been on that particular run for six years, and had seen persons crossing the tracks there “a couple times a week.” Further, he testified that there was a beaten path in the woods in that area:

Q. Now, was there a path running off the side of the tracks near where you saw this person on the rail?
A. Well, that was a path off of the side of the track, but I don’t know if it was near the person.
Q. You don’t know if it was near the person?
A, No.
Q. Can you describe the path for us please? What did it look like?
A. Just an ordinary path that you would walk through, that’s all.
Q. Was it a path through the woods?
A. Well, I don’t know where it went to.
Q. I didn’t ask you where it went to. I asked you what it went through. Was it through the woods, or—
A. It was up — you can see up to the top of the bank where it went through a grassy patch there and back in through. I don’t know where it went.
Q. Was it a path that had been built, or was it a path that had been worn through through continuous use?
A. Worn from being used.

The trial court determined from this evidence that no permissive crossing existed in the area. Giving the Gauls the benefit of all favorable evidence, together with all reasonable inferences which arise from that evidence, we find that there was sufficient evidence to go to the jury on the question of whether or not a permissive crossing existed in the area. Dillon, the train engineer, testified that there was a path, worn from use, through the woods. Although his testimony only indicated a path on one side of the tracks, the supreme court has stated that this fact “would not affect the legal consequences flowing from the existence of a definite point of permissive crossing, it being wholly immaterial, if such a crossing existed, whether there was any distinct pathway beyond.” Figard, 361 Pa. at 382, 65 A.2d at 413. Dillon also testified that he had seen persons crossing the tracks in that area several times a week over the six years he had worked for Conrail prior to the accident. This evidence details a crossing at least as explicitly as the evidence described by the court in Shaw, supra. Because a plaintiff should be nonsuited only upon the clearest grounds, the court should not have granted a nonsuit on these grounds.

This determination, however, does not resolve the instant appeal. The trial court also based its determination on its findings that Richard was lying between the tracks when the train hit Mm. The court stated that at the time Richard was struck by the train, he was not using the crossing in the manner in which the train company permitted its use. Conrail argues strenuously for this interpretation of the doctrine, claiming that the courts of this Commonwealth have always required the injured person to have been using the crossing as a crossing in order for the doctrine to apply. It claims that the case cited to us by the Gauls, Figard v. Pennsylvania Railroad Co., supra, for the proposition that a person need only be within the crossing to be protected, is inapposite here because in Figard, the supreme court was not called on to decide the issue of whether the injured child was using the crossing properly, but merely the factual question of whether a crossing existed.

An examination of the court’s opinion in Figard shows that the court made no explicit determination of whether the child was using the crossing properly. There is no indication that the issue was even before the court. An examination of the case law in this Commonwealth is also uninstructive. No case deals with the precise factual situation we have before us. We note, however, that where a permissive crossing is found to exist, the person using the crossing is said to be a licensee of the railroad company. See, e.g., Henry v. Pennsylvania Railroad Co., 368 Pa.Super. at 600, 84 A.2d at 677. A license is “ ‘a mere personal privilege to perform an act or series of acts on the land of another.’ ” Kovach v. General Telephone Co., 340 Pa.Super. 144, 148, 489 A.2d 883, 885 (1985) (quoting Dailey’s Cheverolet v. Worster Realties, Inc., 312 Pa.Super. 275, 281, 458 A.2d 956, 960 (1983)). Any attempt to perform an act outside those permitted by the license operates to eliminate the privilege:

A licensee, however, can exercise only the rights and privileges granted by the license and must follow its terms strictly; he is not protected or justified in doing acts which are not within its terms or necessarily incidental thereto, and is liable for the resulting damages if he exceeds the lisence or abuses his authority. Thus a license to go on land for one purpose does not justify an entry for another purpose____

53 C.J.S. Licenses § 84, at 811 (1948); see also 62 Am.Jur.2d Premises Liability § 54, at 296 (1972) (“[A] licensee’s privilege to enter land created by the consent of the occupier is terminated by the doing of any act, or the happening of any event, or the lapse of any specified period of time, by which the consent is restricted”). This reasoning has been applied by courts of other jurisdictions in determining that a railroad is not liable for injuries suffered by a party who exceeds the license extended by a permissive crossing by doing an act other than to crossing over the tracks. See, e.g., Louisville & Nashville Railroad Co. v. Howard’s Administrator, 305 S.W.2d 305, 307 (Ky.1957) (although person may have a right to cross track at particular point under license from railroad, right confined to single purpose for which granted: movement across right of way); Coonce v. Missouri Pacific Railroad Co., 358 S.W.2d 852, 859 (Mo.1962) (appellant fell asleep on tracks at place where he alleged public crossed, evidence of user did not place duty on defendant to keep lookout to discover man in plaintiff’s position at place involved: “A path for use as a passageway on or along a railroad track is not an invitation to use the track for a place to sit or sleep”); Kansas, Oklahoma & Gulf Railway Co. v. Wickliffe, 201 Okl. 129, 133, 202 P.2d 423, 426 (1948) (even if deceased was licensee at beginning, it is conclusive that he had no license to sit or lie upon track, only right was to use privileges granted by the railroad). See also 2 Restatement of the Law (Second) of Torts, § 341.

We find, therefore, that under the permissive crossing theory, the injured person must have been using the crossing for the purpose for which the license was given, that is, to cross the tracks. In the instant case, the operator of the train, John Dillon, described the position in which he saw Richard lying between the tracks: “[He was l]aying [sic] in the center of the track, his legs together, and its arms down by its side, laying [sic] straight, with his feet headed west and its head headed east, laying [sic] on his back.” Had Richard’s body been positioned in any other way, we might have been able to infer that he had fallen while in the act of crossing the tracks. Even if he had been in the act of crossing, and then decided to sleep in the middle of the tracks, such a decision would have been sufficient to remove him from the status of a licensee of Conrail. We cannot put a more favorable construction on this evidence; the composed attitude of the body as described by Dillon renders unreasonable any inference that the decision to lie in the middle of the tracks was anything but deliberate. Giving the Gauls the benefit of all favorable evidence, and the reasonable inferences from that evidence, we cannot reasonably conclude that they have produced sufficient evidence to show that Richard was struck by a train while in the midst of crossing over a permissive crossing. We find, therefore, that the nonsuit was properly granted.

The Gauls’ final contention is that regardless of the court’s decision on the permissive crossing theory, the question of wanton or willfull misconduct should have been allowed to go to the jury.

Wanton misconduct ... “means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences....” Prosser, Torts § 33 at 151 (2nd ed. 1955).
Other decisions of this court have recognized that actual prior knowledge of the injured person’s peril need not be affirmatively established to constitute wanton misconduct____ [I]f the actor realizes or at least has knowledge of sufficient facts to cause a reasonable man to realize the existing peril for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the accident, then he is guilty of wanton misconduct if he recklessly disregards the danger.

Evans v. Philadelphia Transport Co., 418 Pa. 567, 574, 212 A.2d 440, 443-444 (1965) (emphasis in original). The Evans court went on to discuss several cases in which an actor was held to have sufficient warning of the possibility of peril: Geelen v. Pennsylvania Railroad Co., 400 Pa. 240, 161 A.2d 595 (1960) (actual knowledge can be inferred from circumstances); Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 10 A.2d 576 (1940) (failure to practice due diligence might put operators on notice of peril); Peden v. Baltimore & Ohio Railroad Co., 324 Pa. 444, 188 A. 586 (1936) (one cannot say he or she did not see what he or she must have seen); Gray v. Pennsylvania Railroad Co., 293 Pa. 28, 141 A. 621 (1928) (existence of permissive crossing may bring home to operator existing peril).

Reckless disregard is defined, in turn, as the intentional doing of an act or failure to do an act, which the actor has a duty to do, knowing or having reason to know of facts which would lead a reasonable person to realize that his or her conduct not only creates an unreasonable risk of bodily harm to the other, but also involves a high degree of probability that substantial harm will result. Stubbs v. Frazer, 308 Pa.Super. 257, 260-261, 454 A.2d 119, 120-121 (1982) (citing 2 Restatement (Second) of the Law of Torts, § 500 (1965)). If the conduct involves a high degree of chance that serious harm will result, the fact that the actor knows or has reason to know that another person is within the range of its effect is conclusive of his or her recklessness. Restatement at § 500, comment d; Evans, 418 Pa. at 575, 212 A.2d at 444.

The Gauls make the argument that because federal regulations require trains like the one that struck Richard to have headlights which will illuminate a person at least eight hundred feet ahead and in front of the headlights, see 49 C.F.R. § 229.125(a) (revised Oct. 1, 1987), the engineer should have been able to see Richard from eight hundred feet away rather than from the fifty to seventy-five foot distance at which he testified that he first saw an object on the tracks. Therefore, they argue, he cannot say that he did not see Richard at that distance. See Haushalter v. Woodlawn & Southern Motor Coach Co., 407 Pa. 65, 68, 180 A.2d 10, 11 (1962) (one cannot be heard to say that he or she looked and failed to see that which he or she must have seen had he or she looked), and since he must have seen Richard at that distance, he should have been able to stop the train. The Gauls argue that he was therefore guilty of wanton misconduct.

We note that the regulation cited to us by the Gauls was revised as of October 1, 1987. The rule in effect in 1980 required a headlight of sufficient illumination to enable a crew member in the cab to see a dark object as large as a man of average size at a distance of at least 800 feet in front of the headlight. See 49 C.F.R. § 230.231(a) (1978); see also Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1151 (9th Cir.1983). Although this is essentially similar to the present regulation, the manner of describing the thing which is to be seen under the illumination of the headlight is significant. Clearly, by describing what is to be seen as an object as large as a man of average size, the regulation intends that the headlight shall illuminate something upright in the path of the train, rather than a recumbent figure. One does not normally think of the average size of a man as his height when lying down. If the regulation were meant to illuminate things lying on the tracks, it seems likely that different language would have been chosen to describe their size.

Further, a person is not generally seen lying down on or between railroad tracks, and nothing in the regulation states that the lights must be angled to illuminate the track bed. Common sense indicates that the regulation was meant to prevent accidents involving the most common activity practiced by human beings along or on railroad tracks, that of walking or crossing. Richard was doing neither, he was recumbent between the tracks. Under any reasonable construction of the regulation, the headlights of the train were not required to illuminate him. The regulation is of no help to the Gauls in making out their case of wanton misconduct against Conrail.

Considering all the evidence presented in conjunction with the claim that there was wanton or willful misconduct on the part of the train operator, we find that accepting all evidence in the Gauls’ favor, and granting them all possible reasonable inferences, there was insufficient evidence to present to the jury. The trial court did not err in failing to allow this claim to go to a jury.

Affirmed.

      . In its brief, Conrail states that because Dillon was not an adverse party, he could not be called as on cross-examination. This is clearly not the case. A witness may be called as on cross-examination when his interest is adverse to the party calling upon him or her to testify. See 42 Pa.C.S. § 5935. The supreme court of this Commonwealth has interpreted this to mean that the interest of the witness called as on cross-examination must be involved in the suit in the sense that the judgment in the case would operate on the witness’ legal rights and liabilities, and that the interest in question would be promoted by the success of the adversary to the party calling the witness. Dinger v. Friedman, 279 Pa. 8, 13-14, 123 A. 641, 642-43 (1924); see also 9 Standard Pennsylvania Practice 2d § 54:93 (1982). The trial court made a determination that the witness, Dillon, was properly called as on cross-examination. Such a determination was a factual one within the court’s discretion. Dinger, 279 Pa. at 14, 123 A. at 643.

        . § 341. Activities Dangerous to Licensees

        A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety, if, but only if,
      (a) he should expect that they will not discover or realize the danger, and
      (b) they do not know or have reason to know of the possessor’s activities and of the risk involved.
      Comment:
      ******

        (b) Licensee to enter limited area ... One who is permitted to enter a particular part of the land for a particular time or a particular purpose becomes a trespasser if he enters another part of the land, or remains upon the land after that time has expired or for an unreasonable time after the purpose of the visit is accomplished.
      Restatement of the Law (Second) of Torts, § 341 (1965).

      . Again we note that because Dillon was called as on cross-examination, his testimony is considered to be conclusive, unless rebutted or so inherently contradictory as to be unworthy of belief. See 42 Pa.C.S. § 5935; see also Estate of Keiper, 308 Pa.Super. 82, 89 n. 3, 454 A.2d 31, 35 n. 3 (1982). We do not find that the testimony was so inherently contradictory as to be unworthy of belief, and no evidence was offered by the Gauls to show that Richard was lying between the tracks in any other way.

      . The Gauls argue that the presumption of due care which arises when a person is killed in an accident goes to prove that Richard was properly using the crossing when he was struck by the train. "When a person is killed in an accident, there is a presumption arising from general knowledge of the strength of the instinct of self-preservation and the natural desire to avoid pain and injury to one’s self that the deceased at the time of the accident was exercising due care." Yandrich v. Radic, 291 Pa.Super. 75, 80, 435 A.2d 226, 229 (1981) (quoting Rowles v. Evanuik, 350 Pa. 64, 69, 38 A.2d 255, 257 (1944)), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982). The function of the presumption is to place the burden of proof of a decedent’s negligence on the party asserting that proposition. Id. It has no evidentiary value on behalf of either party. Rice v. Shuman, 513 Pa. 204, 212, 519 A.2d 391, 395 (1986); Yandrich, 291 Pa.Super. at 81, 435 A.2d at 229. As this court pointed out in Yandrich, its only effect is to invoke a rule of law compelling the jury to conclude that a decedent exercised due care in the absence of evidence to the contrary. Yandrich, 291 Pa.Super. at 81, 435 A.2d at 229.
      The Gauls argue that the trial court erred in failing to present the issue of Richard’s negligence to the jury along with the presumption that he had exercised due care at the time of the accident. They complain that the trial court presumed a lack of due care, which was legally incorrect. We find that the presumption does not come into play here, because the question of Richard’s negligence plays no role in the determination that he abused his license to use the permissive crossing, and that, therefore, the Gauls have failed to establish that Conrail owed him a duty of care at that time and in that place. See Rice, 513 Pa. at 212 n. 5, 519 A.2d at 395 n. 5 (if plaintiff cannot establish that defendant’s negligence is legal cause of injuries, nonsuit is proper). Because the presumption’s function is to shift the burden of proof of the negligence of the plaintiff to the defendant, and the negligence of Richard is not at issue here, the presumption of due care is irrelevant.
      Further, we note that had the case gone to a jury, the Gauls would not have been entitled to an instruction on the presumption of due care. There was evidence which contradicted that presumption: Richard was lying on his back between railroad tracks with his arms at his sides and his legs together, at night and in dark clothing. The jury would not then have been compelled to find that he acted with due care and an instinct for self-preservation.


author: CXRILLO, President Judge:

text:
    556 A.2d 899
    The RUSSELL NATIONAL BANK, Appellant, v. Floyd E. SMITH, d/b/a L. Smith & Son v. Robert E. WOLFLEY, Tony Wolfley, Robert E. Moore and Audrey M. Moore (Two Cases).
    Superior Court of Pennsylvania.
    Argued June 13, 1988.
    Filed April 6, 1989.

      Peter J. O’Donnell, Lewistown, for appellant (at 617 and 652).
    James N. Bryant, State College, for Smith, appellee (at 617 and 652).
    Before CXRILLO, President Judge, and WXEAND and DEL SOLE, JJ.
   CXRILLO, President Judge:

This is an appeal from a judgment of the Court of Common Pleas of Mifflin County. We reverse and remand.

On April 21, 1982, Robert and Tony Wolfley entered into an installment sales contract with the appellee, Floyd Smith, d/b/a L. Smith & Sons, (Dealer), to purchase a mobile home. The Dealer immediately arranged for the assignment of this contract to appellant, The Russell National Bank (Bank), who advanced the Dealer the sum of approximately ten thousand eight hundred dollars ($10,800.00). The assignment was made with “full recourse,” whereby the Dealer agreed to repurchase the contract upon default of the installment sales contract by the Wolfleys and upon demand by the Bank.

The Wolfleys subsequently defaulted on the sales contract. In March or April of 1983, Mr. Wolfley moved out of the trailer because of marital discord. On September 19, 1983, the Bank sent the Wolfleys a Notice of Default and Intent to Execute. This document advised the Wolfleys that the Bank intended to execute if the default was not cured within thirty-five (35) days. Upon receiving this notice, Mrs. Wolfley decided to abandon the mobile home rather than cure the default. She called the Bank to notify it that she intended to move out and drop off the keys.

On November 12, 1983, Mrs. Wolfley abandoned the mobile home. On November 22, 1983, the Bank sent the Wolfleys notice, as required by the Motor Vehicle Sales Finance Act (MVSFA), 69 P.S.A. § 623 G, that their “motor vehicle” had been repossessed.

Although continuing to hold title to the mobile home, the Bank has not taken any steps to actually physically repossess it. The home remains in its original trailer park, where the Dealer is general manager; it has been winterized by the Dealer and moved approximately 100 feet to make way for paying tenants.

Pursuant to the “full recourse” provision, the Bank made numerous oral and written demands upon the Dealer to repurchase the contract. The Dealer, however, refused to do so. Approximately one year later, on December 20, 1985, the Bank instituted suit against the Dealer under the full recourse contract. The complaint averred that the contract was with full recourse and as a result of the Wolfleys’ default, the Dealer was required to repurchase the contract from the Bank.

The Dealer subsequently joined the Wolfleys as additional defendants. The matter proceeded to trial, at which time the trial court entered a directed verdict against the Bank. The Bank filed a timely motion for post-trial relief which was denied by the trial court on August 81, 1987. Thereafter, on September 29, 1987, the Bank filed a notice of appeal. However, judgment was not entered against the Bank until October 19, 1987. The Bank subsequently filed a second notice of appeal on October 20, 1987, and the appeals were consolidated.

The Bank raises the following five issues for our review: (1) whether the trial court erred in determining that it repossessed the mobile home as a matter of law; (2) whether the trial court erred in concluding that the Dealer was entitled to notice of the Bank’s intent to execute; (8) whether the trial court erred in holding that the Bank’s repossession of the mobile home negated the full recourse provision of the assignment contract; (4) whether the Bank is entitled to judgment against the Dealer as a matter of law; and (5) whether material issues of fact precluded a directed verdict.

The Bank first argues that the trial court erred in holding that it had repossessed the property from the Wolfleys. The Bank argues that because it never intended to take actual possession of the mobile home, its actions cannot be held to amount to physical or constructive repossession of the mobile home. The Bank claims that this argument is strengthened by the fact that it never took any action to stop the Wolfleys or anyone else, for example, the Dealer, from entering or even relocating the home.

We agree with the trial court that the Bank did repossess the mobile home. On September 19, 1988, the Bank sent the Wolfleys a Notice of Default and Intent to Execute. This letter complied with the MVSFA, 69 Pa.S. § 628 G.1, which delineates the requirements a holder must meet before taking action against an installment buyer in default. Mrs. Wolfley, whose husband had moved out by this time, contacted the Bank and told them that she would bring them the keys. Mrs. Wolfley then vacated the premises. Following this, on November 22, 1983, the Bank sent the Wolfleys another letter notifying them that their property had been repossessed. Throughout these events, the Bank held title to the mobile home.

These actions were sufficient to establish repossession even though the Bank did not take physical possession of the mobile home. It was not necessary for the Bank to move the mobile home to storage, or to chain the door closed. Having the property voluntarily surrendered to it, along with holding title and having the opportunity and right to physically control the property, was sufficient to constitute repossession. The fact that the Bank did not object when the Dealer moved and winterized the home after the Bank had repossessed it does not affect this conclusion.

The next issue which the Bank raises concerns the trial court’s holding that the Bank was required by 69 Pa.S. § 623 G.1 to give the Dealer notice of its intent to execute. Section 623 G.1 states:

Before any holder may ... take possession of any security of the installment buyer ... such person shall give the installment buyer notice of such intention ... Notice of intention to take action as specified in this subsection shall be in writing, and sent to the installment buyer by registered or certified mail at the address where the mobile home is located.

69 Pa.S. § 623 G.1 (supp.1988) (emphasis added). Whether the Bank was required to give the Dealer notice under this section depends on whether the Dealer fits within the definition of “installment buyer.” Section 603(3) answers this question. Section 603(3) defines “installment buyer” as:

[T]he person who buys, hires or leases a motor vehicle under any installment sale contract or any legal successor in interest to such person, and shall continue to designate such person notwithstanding he may have entered into one or more extensions, deferments, renewals or other revisions of the original contract, and includes any person who as surety, endorser, guarantor, or otherwise, is liable on the obligation created by the buyer under an installment sale contract.

69 Pa.S. § 603(3) (emphasis added). The Dealer clearly fits under this definition, and as such, the trial court properly held that the Bank was required to give written notice of its intent to execute to the Dealer as well as to the Wolfleys.

The Bank’s failure to comply with this notice requirement, however, does not of itself discharge the Dealer from its obligation under the full recourse provision of the assignment contract. Rather, the lack of notice releases the Dealer from its liability under the contract only if the Dealer was injured by the lack of notice and then only to the extent of the injury. See 38 Am.Jur.2d Guaranty § 107, at 1113 (1968) (failure to give notice of debtor’s default to guarantor “only releases the guarantor to the extent that damage or prejudice may have been occasioned to him by lack of notice”); 38 C.J.S. Guaranty § 63, at 1225 (1943) (“[T]here must be not only a want of notice within reasonable time, but also some actual loss or damage thereby caused to the guarantor, and if such loss or damage does not go to the whole amount of the claim, but is only in part, the guarantor is discharged only pro tanto.”). As one authority stated: “If the guarantor is shown to have suffered no injury or damage, the question as to his [or her] liability is not affected by the want of notice.” 38 Am. Jur.2d Guaranty § 107, at 1113 (footnote omitted).

Our review of the record indicates that the Dealer was not prejudiced by the Bank’s failure to give notice. According to Mr. Smith’s own testimony, he, as the Dealer, had actual knowledge on the day Mrs. Wolfley moved her belongings out of the mobile home that she was abandoning it. Regarding this matter, he testified as follows:

ATTORNEY: Okay. When did you first become aware that Mrs. Wolfley had moved out?
MR. SMITH: The day she moved out.
* * * * *
ATTORNEY: The Wolfleys’ trailer on [the day Mrs. Wolfley removed her possessions from the mobile home] who owned the Wolfley’s trailer?
MR. SMITH: As far as I was concerned the Russell National Bank owned it because Mrs. Wolfley had vacated it.

Further evidence of Mr. Smith’s knowledge that Mrs. Wolfley had abandoned the mobile home is found in his testimony that he conducted a complete inspection of the mobile home on the day after Mrs. Wolfley moved out, making a list of the costs which would be involved in putting the home back into the condition it was in at the time it was purchased by the Wolfleys. Given these admissions by Mr. Smith, it is clear that the Dealer had actual notice of Mrs. Wolfley’s abandonment of the mobile home. The Dealer was, therefore, aware that the Wolfleys had defaulted on their installment contract, that the Bank had possession of the mobile home, and that it might be called upon by the Bank to fulfill its obligations under the full recourse provision of the assignment contract. Having had such knowledge, the Dealer cannot complain to have been harmed by not receiving written notice from the Bank pursuant to section 623 G.1. Accordingly, the Dealer’s obligations under the assignment contract remain intact.

The Bank argues further that the trial court erred in holding as a matter of law that its repossession of the mobile home negated the full recourse provision of the contract. We agree.

The full recourse provision of the contract states:

Seller agrees that in the event of default by Buyer in the full payment on the due date thereof of any installment payable under the contract or in the prompt obligation to be performed under the contract by the Buyer, Seller will, upon demand by Holder, forthwith repurchase the contract from Holder for a repurchase price in cash equal to the full unpaid balance of the contract as of the date of such repurchase, less any then unearned credit service charge computed in accordance with the “Rule of 78’s.”

Full recourse has become, in ordinary legal and commercial usage, a word meaning resort to a person who is secondarily liable after the default of the person who is primarily liable. Ballentine’s Law Dictionary 1070 (3d ed. 1969). The person or institution entitled to full recourse, then, should be made 100 percent whole barring any express limitations of the contract or the failure to adhere to duties delineated by the law. By the full recourse provision of the instant contract, the Dealer unconditionally guaranteed payment of any remaining indebtedness under the contract and agreed to repurchase the contract upon demand by the Bank “in the event of default by [the Wolfley’s].” Thus, pursuant to the express terms of this contract, the Bank was at all times during the course of the transaction deserving of 100 percent of its outlay. Any other interpretation of this provision would act to suppress commercial lending.

Full recourse contracts enable vendors to sell their goods to buyers who are high credit risks. Not being a bank, a vendor can hold only a limited number of installment contracts at a given time. Unless the vendor is able to assign the contracts in his or her hands over to a bank, he or she is unable to enter into new contracts with other buyers and thus, is limited in the amount of goods that he or she can sell. Because banks are reluctant to purchase installment contracts which involve debtors who have bad credit ratings, vendors must have leverage to make these contracts attractive to banks. The full recourse provision provides vendors that needed leverage. These provisions assure banks that they are protected in their dealings from bearing the brunt of a bad credit risk. The bank is assured when entering an assignment contract with a full recourse provision that it will be made whole regardless of the action of the debtor. The bank, therefore, agrees to purchase the installment contract from the vendor, thereby freeing up the vendor to enter into another installment contract with another buyer. This situation benefits vendors and buyers alike. The vendors are able to sell more goods and the buyers are able to buy goods they otherwise would be unable to purchase. An infringement on the enforcement of the full recourse provision would discourage banks from entering into assignment contracts when there is a risk involved which they are reluctant to bear. Since the free flow of money in this Commonwealth is dependent upon the willingness of banks to enter into loan agreements with all types of individuals and business associations, including those with questionable credit backgrounds, an infringement on the full recourse provision, in turn, will impede the free flow of money. As a social policy, then, we must ensure that full recourse continues to mean that which it has always been understood to mean — that the principle is entitled to be made one hundred percent whole by the guarantor.

Pursuant to the MVSFA, the Bank was required to send notice to the Wolfleys of default and its intent to execute. Later, the Bank effectuated execution and repossession in order to eliminate the Wolfleys’ equity in the trailer, and to prohibit a later claim of title by the Wolfleys. As the holder of title, the Bank was the only party empowered to commence such .an action. This did not, in any way, affect the Bank’s right to demand repurchase of the contract from the Dealer. The condition precedent, that is, the default by the Wolfleys, occurred, which permitted the Bank to proceed under the full recourse provision. Consequently, the Bank’s full recourse rights remained intact notwithstanding the Banks efforts to remove the Wolfleys from the action through repossession.

Since the Bank is entitled to the return of all its investment, it can properly retain possession and exercise its option to request the Dealer to repurchase. At the time of repurchase, the Bank will then transmit title of the mobile home to the Dealer. In that manner, the Bank will properly be made whole pursuant to the full recourse clause.

Having found that the Bank did in fact retain its contractual right to demand repurchase of the contract, we conclude that the trial court erred in entering a directed verdict in favor of the Dealer. We therefore reverse and remand the action to the trial court for proceedings consistent with this opinion. Jurisdiction is relinquished.

Reversed and remanded.

      . The assignment contract contains three endorsement options:
      (1) without recourse; (2) repurchase; and (3) full recourse. Under the contract, only one of the three options can be operative. The contract indicates that the Dealer was to choose the operative endorsement and that he chose the full recourse provision.

      . At trial, the Bank and the Dealer waived all claims against the Wolfleys in return for the Wolfleys’ agreement not to counterclaim; thus, the Wolfleys are no longer involved in this action.

      . Appeal number 00617 was filed prior to the entiy of judgment. Although this appeal is technically interlocutory under Pa.R.A.P. 301(a), Pa.R.A.P. 905(a) allows us to treat this appeal as perfected. Because appeal number 00652 presents the same issues as number 00617, we dismiss number 00652 as duplicative.