author: HOFFMAN, Judge:

text:
    572 A.2d 724
    Mary L. KECK, Appellant, v. Carl E. DOUGHMAN and Betty M. Doughman.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed March 19, 1990.

      George H. Rowley, Greenville, for appellant.
    James D. Elder, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment below, in which appellant, Mary L. Keck, sought to recover for injuries allegedly sustained in a fall on the property of her landlords, Carl and Betty Doughman. The case was tried on theories of negligence and an implied warranty of habitability. The jury returned a verdict in favor of appellees, finding that they were 42% negligent, while appellant was 58% contributorily negligent. On appeal, appellant contends that the trial court erred because it instructed the jury in accordance with § 342 of the Restatement (Second) of Torts (1977). Appellant argues that the court’s jury instruction effectively precluded her from recovering under the theory of an implied warranty of habitability. For the following reasons, we agree that the instruction was erroneous; however, we find the error to be harmless. Accordingly, we affirm the judgment below.

Appellees Carl E. Doughman and Betty M. Doughman, husband and wife, are owners of a twin house known as 53 and 53V2 South Second Street, Greenville, Pennsylvania. For approximately the last 20 years, Velma Doughman, Carl Doughman’s mother, has resided in one half of the house. The plaintiff-appellant, Mary L. Keck, has resided in the other half since July 18, 1972. Part of Mary Keck’s lease, both oral and written, included the right to use a common basement area. Mrs. Keck had access to the basement by exiting a door in her kitchen to a landing at the top of the stairs and then proceeding down to the basement. Mrs. Keck had used the laundry facilities in the common basement area until she obtained a washer from a friend. She was unable to establish the. date of that acquisition. Subsequent to her obtaining the washer, she continued to use the stone stairway into the basement occasionally in order to use Velma Doughman’s telephone.

Mrs. Keck and appellees relayed information concerning the property through Mr. Doughman’s mother. According to appellant, she complained to Mr. Doughman’s mother about the dangerous condition of the steps before her accident occurred. In June, 1981, Velma Doughman had been hospitalized at Greenville Hospital. During the course of Mrs. Doughman’s hospitalization, Grace Rimer, a friend of Mrs. Doughman, would visit the Doughman residence to feed Mrs. Doughman’s cat and to bring in the mail. On June 18, 1981, the date of the accident, Mrs. Rimer found that the door was locked. Appellant offered to let her in, and was walking down the stairway to do so when she fell. Appellant then proceeded into the basement and into the Doughman residence, and opened the screen door on the Doughman side, permitting Mrs. Rimer to enter. At the time appellant opened the screen door for Mrs. Rimer, appellant did not advise her that she had fallen, nor were there any visible signs of injury.

The steps in question were the original stone slabs. As they proceeded downward towards the basement, a ledge existed on the left and right side which was generally parallel to the basement floor. There was no handrail. Natural lighting existed from the window in the upper portion of the door to the outside. At the time of appellant’s fall, there was no other lighting on the stairs. There was lighting in the basement area which could be activated by a switch in appellant’s kitchen. Appellant was unable to identify which particular tread or slab caused her to fall, nor was she certain as to which step she fell onto. She did, however, testify that upon examination she found a chip out of a step in the area. On June 16, 1983, appellant filed a complaint alleging that appellee had violated the implied warranty of habitability by leasing the premises to appellant in an unsafe condition, and failing to correct that condition after they had a reasonable opportunity to correct it. The complaint also alleged that appellees had been negligent in failing to repair the steps and failing to maintain them in a safe condition. In June 1988, the case went to trial, and on June 23, 1988, the jury entered a verdict finding appellant 58% negligent and appellees 42% negligent. Thus, appellant was awarded no damages. Appellant filed timely post trial motions which were denied on February 1, 1989. This appeal followed.

On appeal, appellant contends that she' is entitled to a new trial because of an erroneous jury instruction. Our standard of review of an order denying a motion for new trial on the ground of an erroneous jury charge is well-settled:

An order refusing a new trial will be reversed on appeal only where there has been a clear abuse of discretion or an error of law which controlled the outcome of the case. An erroneous jury instruction may provide the basis for a new trial if it is shown that the instruction was fundamentally in error and that it might have been responsible for the verdict.

Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 188, 527 A.2d 1012, 1017 (1987) (citations omitted).

Appellant’s specific argument is that the court’s jury instruction number seven regarding negligence precluded her from recovering under the theory of an implied warranty of habitability. She maintains that the instruction effectively stated that negligence was the only theory under which she could recover, and in order for her to recover under that theory, required that she prove that she was unaware of the condition that caused her injury. She claims that she was prejudiced by that instruction because, as part of her attempt to recover under the warranty of habitability theory, she testified that she had notified appellee of the damaged stair that caused her injury. There continues to be some confusion regarding the relation between these two theories of recovery. Therefore, before we evaluate the merits of appellant’s claims, we should emphasize the differences between negligence and the implied warranty of habitability.

I. Negligence and the Implied Warranty of Habitability

The basic elements of a cause of action in negligence are the existence of a duty, breach of that duty, a causal relationship between the breach and the injury complained of, and actual loss or damage. E.g., Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606, allocatur denied 516 Pa. 638, 533 A.2d 710 (1985). Although these basic principles apply in landlord tenant disputes, the duty of care imposed upon landlords varies depending on who claims to have been injured and the terms of the lease. For example, a landlord who rents an entire building to a tenant may be held to a lower standard of care than a landlord who rents part of a building and maintains control over the remaining parts. Compare Restatement (Second) of Torts § 358 with id. § 361 (1977).

The implied warranty of habitability is a relatively recent development in the law of torts. In Pennsylvania, the theory was first adopted with regard to residential leases in Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). The Pugh court stated the elements of the warranty of habitability as follows:

The implied warranty is designed to insure that a landlord will provide facilities and services vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes. This warranty is applicable both at the beginning of the lease and throughout its duration ____
In order to constitute a breach of the warranty the défect must be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers. At a minimum, this means the premises must be safe and sanitary. ...
Additionally ... to assert a breach of the implied warranty of habitability, a tenant must prove he or she gave notice to the landlord of the defect or condition, that he [the landlord] had a reasonable opportunity to make the necessary repairs, and that he failed to do so.

Id., 486 Pa. at 289-90, 405 A.2d at 905-06 (citations omitted). See also Rivera v. Selfon Home Repairs & Imp. Co., 294 Pa.Super. 41, 439 A.2d 739 (1982); Restatement (Second) of Property § 17.6 (1977).

Cases in which landlord negligence is alleged are likely to involve potential violations of the broader standard of care required by the warranty of habitability. However, it is important to remember that negligence and the implied warranty of habitability are two different causes of action with distinct elements. As Judge Wieand has noted:

A breach of a landlord’s obligation to provide safe and habitable premises gives rise ... to potential liability under two alternative and separate theories: breach of an implied warranty of habitability and/ or conventional negligence ____ The injured tenant may recover damages for breach of an implied warranty of habitability for all injuries sustained, whether to his person or to his property, if they have been caused by the landlord’s breach____ The injured tenant may also proceed under general principles of tort law, without proving a breach of the implied warranty of habitability, and can recover damages for injuries proximately caused by the landlord’s failure to exercise reasonable care to make the premises safe.

Asper v. Haffley, 312 Pa.Super. 424, 434-35, 458 A.2d 1364, 1370 (1983) (WIEAND, J. concurring) (citations omitted); Cf. Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980).

The primary differences between the warranty of habitability and negligence causes of action, then, are as follows: First, to prevail on a warranty of habitability theory, a plaintiff need only show injury resulting from the existence of a condition that makes his residence unsafe or unsanitary. A plaintiff seeking to recover under the theory of negligence, on the other hand, must show injury caused by the landlord’s breach of a statutory or specifically defined duty that may change depending on the relationship between the parties. Second, to recover for breach of the warranty of habitability, a plaintiff must show that he notified the landlord of the existence of the condition he alleges caused his injury. In a negligence case, no such notice is required, although before liability will be imposed, the landlord usually is required to have failed to correct a condition discoverable through the exercise of reasonable care. See Restatement (Second) of Torts, supra § 358-§ 361. Having described the contours of the theories upon which appellant sought recovery, we now evaluate the merits of her claim.

II. Effect of Jury Instructions

The instruction appellant complains of reads as follows:

The possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not realize or discover the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not■ know or have reason to know of the risk involved.

See R.R. 44a (emphasis added). This instruction is a verbatim recitation of § 342 of the Restatement (Second) of Torts. At trial, appellant testified that she knew of the condition of the steps and advised appellees of that condition. This testimony, of course, was necessary for appellant to prove a case under the warranty of habitability theory. Appellant asserts that the negligence instruction above precluded her from recovering under that theory because it erroneously directed the jury that no recovery was possible under any theory unless appellant was unaware of the condition that caused her injuries. For the reasons that follow, although we agree that the court’s instruction was erroneous, we do not agree that appellant is entitled to a new trial.

The trial court’s charge is problematic for two reasons. First, the charge is clearly erroneous under Pugh v. Holmes, in that it suggests that appellant could not recover unless she was unaware of the condition of the premises. As we have noted above, Pugh requires that the plaintiff prove that she gave notice to the landlord of the defect or condition in order to recover under the warranty of habitability. In addition, the charge was erroneous because § 342 of the Restatement (Second) of Torts does not deal with the issue of the duty of landlords to their tenants. Instead, § 342 defines the duties of possessors of lands to “licensees.” The Restatement defines a “licensee” as “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” See id. A tenant, of course, also is allowed to remain on the owner’s property at the owner’s consent; however, as the Restatement itself recognizes, the duty that a landlord owes to a tenant is not the same. Indeed, the Restatement contains some eight specif-, ic sections concerning the landlord-tenant relationship. See id. §§ 355-362. Unlike § 342, none of the sections governing landlord-tenant relationships purport to state an exclusive cause of action, and only one has a requirement that a tenant be unaware of the dangerous condition in order to recover. See id. § 358. Appellant thus rightly notes that an instruction based on these sections would not have prevented her from recovering under the warranty of habitability theory. In summary, the court’s instruction was erroneous because it was contrary to Pugh v. Holmes and also because it was a mistaken statement of principles in the Restatement governing a landlord’s duty.

Although the § 342 instruction was erroneous, a close review of the trial record nevertheless convinces us that, in light of the unique facts of this case, the error was harmless. Central to this conclusion is the fact that the jury found appellant to be 58% contributorily negligent. In both Asper, supra and Rivera, supra, this court recognized § 17.6 of the Restatement (Second) of Property (1977) as the fundamental standard for analyzing cases involving warranty of habitability questions. Section 17.6 provides:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.

Comment B to § 17.6 states:

a. ) ____The implied warranty of habitability is the basis of a duty on the landlord to maintain the property in a habitable condition. By analogy to the negligence per se doctrine, when the landlord violates this duty, he becomes subject to liability for physical harm resulting from such violation____
b. ) ... [t]he landlord [however]. '.. has available all the usual defenses to an action in negligence, including contributory negligence and assumption of risk____

Id. (emphasis added). In this case, therefore, appellant’s warranty of habitability claim is subject to all of the defenses available in Pennsylvania to an action in negligence. Pennsylvania’s comparative negligence statute specifically recognizes that contributory negligence can be a defense in negligence cases:

In all actions brought to recover damages for negligence resulting in ... injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought____

42 Pa.C.S.A. § 7102(a). Here, the jury found appellant to be 58% contributorily negligent, thereby barring her from recovering under the theory of negligence. Because the jury found that her liability was greater than appellees’, this finding would also bar her from recovering under the warranty of habitability. Thus, even if the court had given the jury proper instructions, appellant would not be entitled to recover because of her contributory negligence. The court’s giving of the wrong instruction, therefore, was harmless error.

In summary, we hold that the trial court erred because its jury instruction based on § 342 precluded appellant from possibly recovering under a warranty of habitability theory. However, because contributory negligence is a defense to warranty of habitability actions, and because the jury found appellant to have been 58% contributorily negligent, appellant could not have recovered even if the court had given the jury proper instructions concerning the warranty of habitability. We hold, therefore, that the trial court’s failure to properly instruct the jury was harmless error.

For the foregoing reasons, we affirm the judgment below.

Judgment affirmed.

WIEAND, J., concurs in the result.

      . Preliminarily, we must consider whether the issue raised in Mrs. Keck’s appeal has been properly preserved for appellate review. The failure to object to an alleged error in the jury instruction precludes a party from assigning the alleged error as a basis for a new trial on appeal. Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 527 A.2d 1012 (1987).
      Here, appellant argues that the jury should not have been instructed that negligence was an exclusive remedy, and that in order for her to recover under that theory she had to be unaware of the existence of the condition that caused her injury. The record reveals that she raised this issue both before and after the jury charge. See N.T. June 23, 1988 at 16-17, R.R. 58a. We conclude, therefore, that appellant’s challenge to the jury charge was properly preserved for appellate review.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    572 A.2d 730
    S.H., Appellee, v. B.L.H., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1990.
    Filed March 27, 1990.

      Robert H. Reese, Jr., Lancaster, for appellant, (submitted)
    John E. Huber, Lancaster, for appellee.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

This is an appeal from an order modifying custody of a minor child, A.H.. The parties to this action, appellant, B.L.H., and appellee, S.H., are the natural father and mother respectively of A.H. Appellant raises two issues on appeal: (1) whether the trial court abused its discretion in restricting appellant’s contact with A.H. to limited periods of visitation subject to supervision by members of appellee’s family; and (2) whether this case should be remanded to the trial court for additional testimony regarding the report and opinion of Ms. Maddi Jane Sobel, an investigator for the Children and Youth Social Service Agency.

A.H., born July 18, 1984, resided with appellant and appellee from A.H.’s birth until November, 1985, when the parties separated. A.H. has resided with appellee since November, 1985. In December of 1985, appellee filed a complaint for custody. Upon stipulation of counsel, an order was entered on January 21, 1986 establishing joint legal custody of A.H. by the parties and awarding physical custody to appellee. Appellant was awarded temporary physical custody on alternate weekends and alternate Wednesdays and holidays. In December, 1986, appellant filed a petition to modify custody. On December 23, 1986, the court entered an order which modified the January 21, 1986 order by eliminating the Wednesday visits with appellant and extending the weekend visits by providing that A.H. would spend alternate Fridays with appellant.

In August, 1988, Appellee filed the instant complaint, seeking to modify the custody order because she believed that appellant was sexually abusing A.H. during his periods of temporary physical custody. After a pre-hearing conference, a temporary order was entered. This order terminated A.H.’s overnight visits with appellant and provided that appellant’s periods of custody were to be supervised by either appellant’s sister-in-law or appellee’s brother. Following a full hearing, the court issued an order on February 24, 1989 which continued shared legal custody by appellant and appellee, with primary physical custody remaining with appellee. The order provided for periods of supervised visitation by appellant with A.H., with no allowance of overnight visits. Appellant filed this timely appeal on March 23, 1989.

Our paramount concern in this case, as in all custody determinations, is that the best interests of the child be served. Thus, our scope of review is broad. Lombardo v. Lombardo, 515 Pa. 139, 147, 527 A.2d 525, 529 (1987).

... [TJhis broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear.

Id,, quoting Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977). We are “empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ...; and thus, represent a gross abuse of discretion, ... (emphasis in original). Lombardo, supra 515 Pa. at 148, 527 A.2d at 529, quoting Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984) (citations omitted).

Appellant argues that the trial court abused its discretion in deciding that appellant’s contact with A.H. should be limited to supervised visits with no provisions for overnight visits. The gist of appellant’s argument is that the trial court afforded too much weight to the testimony of his daughter A.H., appellee, and Drs. Tinker and March, the expert witnesses who testified on behalf of appellee; and insufficient weight to the testimony of appellant and appellant’s sister-in-law. We disagree. The trial judge is in the best position to evaluate the sincerity, credibility, and demeanor of the witnesses, and thus, the weight to be given to their testimony.

In this case, the trial court heard a full day’s worth of testimony. On the basis of all of the evidence, the court concluded that appellant had sexually abused A.H., and that this finding of abuse constituted a substantial change of circumstances to justify a reconsideration of the prior custody order, citing Kozlowski v. Kozlowski, 362 Pa.Super. 516, 520, 524 A.2d 995, 997 (1987); Espersen v. Davidow, 359 Pa.Super. 531, 535, 519 A.2d 479, 480 (1986). The court based its conclusions on the following:

The Plaintiff [appellee] testified extensively concerning [A.H.’s] behavior after returning from visits with the Defendant [appellant]. According to the Plaintiff, [A.H.] would return from these visits with redness in her vaginal area and she would walk as though she had something between her legs. In addition, [A.H.] would attempt to pull her pants away from her vaginal area. When the Plaintiff would ask [A.H.] why she was walking in the manner described above, [A.H.] would reply that “it hurt.” [A.H.] also experienced difficulty falling asleep after visits with the Defendant. The Plaintiff testified that on the first few nights after [A.H.] returned from these visits, she would not go to sleep unless the Plaintiff held her.
In the beginning of 1986, the Plaintiff began to observe [A.H.] attempting to insert various items into her vagina. In addition, [A.H.] began wetting her pants after returning from visits with Defendant. On occasion, [A.H.] has told the Plaintiff that the Defendant touched her vagina and her rectum and that he kissed her on the vagina. Also, [A.H.] has told the Plaintiff that the Defendant would “get his penis out” at her.
Although [A.H.’s] babysitter, Beth Liggins, did not testify, the parties stipulated that had she testified she would have testified as to the following: (1) that she has babysat [A.H.] since 1985 and continues to babysit her; (2) she runs a day care center on Main Street, Mount Joy, called Kids’ Corner, and is a licensed day care mother; (3) that [A.H.] has stated in her presence that the Defendant hurts her; and (4) that she has observed [A.H.] attempting to insert things into her vagina.
The Plaintiff’s mother, A.J.S., testified that in late 1985 or early 1986, she observed [A.H.] walking as though she had something between her legs. Mrs. S. also testified concerning a telephone conversation she had with [A.H.] on February 20, 1988 after [A.H.] had been with her father for the evening. According to Mrs. S., during that telephone conversation [A.H.] told her that her butt hurt. When Mrs. S. asked [A.H.] why her butt hurt, [A.H.] replied “because it has yucky in it.” Mrs. S. then asked [A.H.] what yucky was and [A.H.] replied “yes, my daddy hurt me.” When Mrs. S. asked [A.H.] how her daddy hurt her, [A.H.] answered that he hurt her with his penis. (Citations to original record omitted).

Trial Court Opinion at 5-7. The trial court also considered expert testimony from two clinical psychologists, Dr. Brian March, who had seen A.H. sixteen times in his professional capacity, and Dr. Dorris Tinker, retained pursuant to a court-ordered evaluation. Without objection, both experts testified that it was their clinical impression that appellant had sexually abused A.H.. Contrary to appellant’s assertions, Dr. Tinker met with appellant as part of her evaluation of the case. The trial court heard testimony from appellant that he had never sexually abused A.H.; testimony from appellant’s mother that she had never observed any sexual misconduct on appellant’s part, and testimony from appellant’s sister-in-law. Finally, the court examined A.H. in chambers, where she stated that appellant “hurt” her. Upon review of the entire record, we must conclude that the trial court’s factual findings are supported by competent evidence, and that the court’s factual conclusion that appellant sexually abused A.H. is reasonable in light of these factual findings. The trial court did not abuse its discretion in concluding that the abuse constituted a substantial change in circumstances and that the best interests of the child warranted modification of the prior custody order.

We now must ascertain whether the modified order provides for unnecessarily restrictive contact between appellant and A.H. with regard to the length of the visits, the need for supervision, and the individuals who may act as supervisors. The modified order provides that appellant and appellee shall share legal custody of A.H. so that each shall participate in major decisions concerning A.H.’s medical, religious, and educational needs. The order grants primary physical custody of A.H. to appellee, with appellant having supervised visitation with A.H. as follows: every Wednesday afternoon between 1:00 and 4:00 p.m. at A.H.’s day care center, under the supervision of Beth Liggins, the operator of the center; on alternate weekends, for eight hours on Sunday of the first alternate weekend, and for four hours on Saturday and five hours on Sunday of the second alternate weekend. The weekend supervision is to be by A.H.’s maternal grandparents, A.H.’s maternal uncle and his wife, A.H.’s maternal aunt and her husband, or appellee and her fiance. In addition, appellant can visit A.H., along with two members of appellant’s immediate family, in appellee’s home, provided he gives two weeks written notice of the day on which he intends to visit. These additional mutually arranged visits are to be supervised by appellee and her fiance.

We find that the trial court did not err in finding that it is in A.H.’s best interest to continue to have contact with appellant, but that without supervision A.H.’s visits with appellant would have a detrimental impact on A.H. in that appellant would continue to sexually abuse her. In light of appellant’s conduct and the effect appellant’s behavior has had on A.H., the modified order provides for ample periods of visitation. The failure to permit overnight visits serves A.H.’s best interests. According to the testimony, the sexual contact was most frequent when A.H. stayed overnight at the home of appellant’s parents, with whom appellant lives. Likewise, the failure to choose members of appellant’s family as supervisors serves A.H.’s best interests. The sexual abuse occurred while A.H. visited with appellant at his parents’ home, where seven people live. Appellant’s mother testified that appellant was rarely alone with A.H. because “there’s always somebody in and out.” N.T. January 19, 1989 at 177. Despite the supposed continual presence of members of appellant’s family, appellant managed to abuse A.H., unnoticed by any member of his family. The trial court did not err in not choosing any members of appellant’s family as supervisors. It is reasonable to assume that the day care operator and the selected members of appellee’s family will maintain a more careful vigilance over appellant’s conduct toward A.H. than appellant’s family members have in the past. Members of appellant’s family who want to maintain and develop their relationship with A.H. will be able to do so under the modified order, as the order permits them to visit A.H. provided appellant gives two weeks written notice to appellee.

We find that the trial court carefully and comprehensively analyzed all of the evidence in fashioning the modified custody order. We hold that the custody order serves the best interests of A.H.

Appellant also contends that the case should be remanded for additional testimony regarding the report and opinion of Maddi Jane Sobel, an evaluator from the Children and Youth Social Service Agency. Since appellant was well aware of Ms. Sobel’s report, dated February 18, 1988, at the time of the hearing on January 19, 1989, and failed to offer Ms. Sobel’s report as evidence before the trial court, appellant cannot now attempt to introduce or rely upon the report as evidence before this Court. Pa.R.A.P. 1921; see Commonwealth v. DeSanto, 379 Pa.Super. 435, 550 A.2d 236 (1988); Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988); Marine Bank v. Huhta, 279 Pa.Super. 130, 420 A.2d 1066 (1980); Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980). Contrary to appellant’s assertions, the record from the trial court is not inadequate or incomplete. The trial court heard testimony from two clinical psychologists, appellee, appellee’s mother, appellee’s brother, appellee’s sister, appellee’s fiance, appellant, appellant’s mother, and appellant’s sister-in-law. The court also examined A.H. in chambers. The testimony and opinions of all of these people provided the court with a sufficient basis upon which to render its decision. In addition, appellant’s assertion that Ms. Sobel was the only expert who interviewed appellant is an outright misstatement of the truth, as Dr. Tinker, retained pursuant to the court-ordered evaluation, met with appellant in the presence of A.H. as part of the evaluation. We find that appellant has waived his right to introduce the report of Ms. Sobel.

For the foregoing reasons, we affirm the modified custody order.

Order affirmed.

      . Although neither party challenges the propriety of the trial court’s decision to reconsider the custody order, we note that the trial court need not have found that a change in circumstances existed as a prerequisite for entertaining the petition to modify the custody order. See Martin v. Martin, 386 Pa.Super. 328, 332, 562 A.2d 1389, 1391 (1989) ("[P]etitions for modification of custody orders may be filed at any time, and in all such cases the court hearing the petition must consider the best interests of the child or children.”); Hutchinson v. Hutchinson, 379 Pa.Super. 247, 251, 549 A.2d 999, 1001 (1988) ("[C]hanged circumstances is incorporated into the review of best interest instead of being a prerequisite for undertaking that review.”).


author: CIRILLO, President Judge:

text:
    572 A.2d 734
    In re TRUST UNDER AGREEMENT of DAVID H. KEISER, DATED DECEMBER 23, 1925 for Benefit of Richard Koller KEISER, David Howard Keiser, Jr., Elizabeth Ritter Keiser, Frederick Keiser, Katherine Keiser, and Margaret Keiser Strunk. Appeal of BANK OF PENNSYLVANIA (Two Cases). In re TRUST UNDER AGREEMENT of DAVID KEISER, DATED FEBRUARY 2, 1931, for Benefit of Richard Koller KEISER, David Howard Keiser, Jr., Elizabeth Ritter Keiser, Frederick Keiser, Katherine Keiser, and Margaret Keiser Strunk.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1990.
    Filed March 27, 1990.

      Charles K. Serine, Reading, for appellant.
    Barry W. Sawtelle, Reading, for Marcia Dufner, participating party.
    Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   CIRILLO, President Judge:

Bank of Pennsylvania (“Trustee”) appeals from an order entered on May 30, 1989 in the Berks County Court of Common Pleas, Orphans’ Court Division, denying its petition to open the adjudication. We affirm.

The Trustee was appointed pursuant to two trust instruments created by David H. Reiser in 1925 and 1931. The two trusts were established for the benefit of his five children, with the ultimate beneficiaries to be the issue of his children. After the death of David H. Reiser’s daughter Ratherine on February 19, 1988, the Trustee performed an accounting to enable a distribution of a one-third share of both trusts. An audit of both trusts was made by the orphans’ court on September 21, 1988. No objections were filed, and after the audit, the adjudications and schedules of distribution were confirmed nisi on September 26, 1988. The confirmations became absolute when no exceptions were filed within the subsequent ten days. The Trustee distributed the proceeds to the respective beneficiaries in accordance with the confirmed schedules of distribution.

In November of 1988, the Trustee discovered that mistakes had occurred in the auditing of both trusts. Two errors were made with respect to the trust established in 1931. First, the accounting of the 1931 trust was performed as though it were an accounting for the one-third portion of the trust being distributed as a result of Katherine Keiser’s death, when in reality, it was an accounting of the entire trust. The second mistake was charging the costs of making the distribution to the entire trust, rather than to the one-third portion of the trust being distributed. The amount of prejudice to the continuing trust established in 1931 totals $33,936.76.

In the accounting of the trust established in 1925, the Trustee erred in charging the costs of making distribution to the entire trust instead of just the one-third portion which was being distributed. The amount of prejudice to the continuing trust established in 1925 is $3,712.64.

As a result of the above errors made in connection with both trusts, two of the beneficiaries have been prejudiced while three other beneficiaries have received a windfall.

The three beneficiaries who had received an overpayment were notified of the Trustee’s errors by letter on December 20, 1988. Two of the beneficiaries have refused to return the excess funds, causing the Trustee to file a petition to open the adjudication.. The orphans’ court, without a hearing, denied Trustee’s petition, and this timely appeal followed.

The Trustee raises the following issues on appeal: 1) whether the Trustee has standing to seek a petition to open the adjudication; 2) whether the petition to open the adjudication to correct the Trustee’s errors is barred by the doctrine of res judicata; 3) whether the orphans’ court has the power to open an adjudication where mistakes resulted in an unjust enrichment to some beneficiaries; 4) whether the orphans’ court erred in refusing to open the adjudication without a hearing.

The Trustee maintains that it has standing to open the instant adjudication by virtue of its fiduciary obligation to ensure that funds under its control are properly distributed. We disagree. The orphans’ court, in the interests of justice, has inherent power to correct its own records and compel the return of property wrongfully transferred by the personal representative. In Re Stotesbury’s Estate, 387 Pa. 591, 595, 128 A.2d 587, 589 (1957); In re Slagle’s Estate, 335 Pa. 552, 557, 7 A.2d 353, 355 (1939). The only opportunity, however, to obtain review of an account which has been finally confirmed is through the prescribed procedure set forth in 20 Pa.C.S. § 3521 and made applicable to trusts by 20 Pa.C.S. § 7183. See In Re Crozer’s Estate, 346 Pa. 446, 449, 31 A.2d 147, 148 (1943) . Section 3521 provides as follows:

If any party in interest shall, within five years after the final confirmation of any account of a personal representative, file a petition to review any part of the account or of an auditor’s report, or of the adjudication, or of any decree of distribution, setting forth specifically alleged errors therein, the court shall give such relief as equity and justice require: Provided, [t]hat no such review shall impose liability on the personal representative as to any property which was distributed by him in accordance with a decree of court before filing of the petition. The court or master considering the petition may include in his adjudication or report, findings of fact and of law as to the entire controversy, in pursuance of which a final order may be made.

20 Pa.C.S. § 3521 (emphasis added).

Clearly, to have standing to review a final account, one must be a party in interest. The statute, however, does not define a “party in interest.”

Although the Trustee has a fiduciary obligation to the beneficiaries prejudiced by its incorrect accounting, it has the same fiduciary obligation to those beneficiaries that were allegedly unjustly enriched. “When there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them.” Restatement (Second) of Trusts § 183 (1957); see also Schubert, Unocal Corp. v. Mesa Petroleum Co.: A New Era of Fiduciary Duty, 38 Baylor L.Rev. 687 (1986). Additionally, the Trustee, as a fiduciary, should remain neutral in any controversy between the beneficiaries who are the real parties in interest. See Annot. 6 A.L.R.2d 147; 4 Am.Jur.2d Appeal and Error, § 221.

Moreover, it is well settled that, “a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved' thereby and has no standing to obtain a judicial resolution of his challenge.” Wm. Penn Park, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975); see also In Re Elliot’s Estate, 388 Pa. 321, 323, 131 A.2d 357, 358 (1957). The Trustee has no stake in, and cannot be aggrieved by, any distribution that has been ordered by the court. Indeed, section 3521 clearly states that, “no such review [of an adjudication] shall impose liability on the personal representative as to any property which was distributed in accordance with a decree of court ...” 20 Pa.C.S. § 3521. The Trustee, as a personal representative, is afforded protection by the statute for any distribution made pursuant to a final decree ordered by the court. Here, the Trustee made its distribution pursuant to a decree of court, and therefore is immune from liability from the very review it was seeking to secure.

In In re Bokey’s Estate, 412 Pa. 244, 194 A.2d 194 (1963), the appellant was both the administrator and an alleged heir. The supreme court found that the appellant, in his capacity as an administrator, had no standing to challenge a decree which involved a question of distribution, but would treat the appeal as though taken by the appellant in his individual capacity as an alleged heir. Id., 412 Pa. at 247 n. 5, 194 A.2d at 195 n. 5. Here, the Trustee, as a personal representative who is not an alleged beneficiary, has no standing to bring an action concerning a question of distribution.

The Trustee argues that because it will be subject to a surcharge for its mistake in preparing the schedule of distribution, it has standing. Again, we disagree.

If the order or decree imposes upon the trustee a personal liability such as a surcharge or if the trustee has a duty to protect some otherwise unrepresented trust interest which requires protection then and only then does the trustee have standing to appeal.

In Re Elliot’s Estate, 388 Pa. at 325, 131 A.2d at 359 (emphasis added). Instantly, the trial court’s adjudication did not impose a surcharge upon the trustee. Therefore, the Trustee is not adversely affected by the order it was seeking to open, nor is it aggrieved by the order from which it appeals. Additionally, since all the beneficiaries are represented, and none are “unascertained or incompetent to act for themselves,” they are not in need of protection. Id.

We are aware that justice and equity would seem to require that the adjudication be opened so that one beneficiary is not enriched to the prejudice of another as a result of the Trustee’s accounting errors. The Trustee, however, is clearly not the party to bring such an action. The real parties in interest, and the proper parties to open the adjudication, are the beneficiaries. Where, as here, the order concerns the distribution of the trust assets to one group of beneficiaries at the expense of another group, the Trustee is merely an unaggrieved stakeholder with no immediate or appealable interest. Wm. Penn. Park, Inc., supra; In Re Elliot’s Estate, supra. See also 6 A.L.R.2d 147, 149; 4 Am.Jur.2d Appeal and Error, § 221.

Since the Trustee is not a party in interest entitled to open the adjudication, the orphans’ court was correct in concluding that the Trustee lacked standing. Therefore, we need not address the Trustee’s remaining allegations of error.

Order affirmed.

      . In In Re Crozer’s Estate, the supreme court was construing an earlier version of section 3521, Act of June 7, 1917, P.L. 447, § 48 (20 P.S. § 843), repealed by Act of April 18, 1949, P.L. 512, art. VII, § 721 (20 P.S. § 320.721), repealed and essentially reenacted by Act of May 5, 1970, P.L. 336, No. 108, § 4, repealed and essentially reenacted by Act of June 30, 1972, P.L. 508, No. 164, § 2, eff. July 1, 1972 (20 Pa.C.S. § 3521). Although 20 P.S. § 843 differed substantively from 20 Pa. C.S. § 3521, like its predecessor, section 3521 continues to provide the only method to disturb an account which has been finally confirmed.

      . "The Trustees should occupy a neutral and indifferent attitude in any controversy between the real parties in interest, and clearly they ought not be allowed to litigate the claims of one such interested party as against another[.]” 6 A.L.R.2d at 149.

      . "Since a trustee must deal impartially with the beneficiaries, he should not be allowed to participate in the adjudication of their individual claims between themselves.” 4 Am.Jur.2d at 723-724, Appeal and Error, § 221 (footnote omitted).

      . A surcharge is the penalty imposed for failure of a trustee to exercise common prudence, skill and caution in the performance of its fiduciary duties and is imposed to compensate beneficiaries for the loss caused by the fiduciary’s want of care.

        Trust of Munro v. Commonwealth National Bank, 373 Pa.Super. 448, 452, 541 A.2d 756, 758 (1988), alloc. denied, 520 Pa. 607, 553 A.2d 969 (1989) citing Stephenson Estate, 469 Pa. 128, 138, 364 A.2d 1301, 1306 (1976).


author: JOHNSON, Judge:

text:
    572 A.2d 737
    MARITRANS G.P., INC., Maritrans Partners, L.P. and Maritrans Operating Partners, L.P. v. PEPPER, HAMILTON & SCHEETZ and J. Anthony Messina, Jr., Esquire, Appellants. MARITRANS G.P., INC., Maritrans Partners, L.P. and Maritrans Operating Partners, L.P. v. PEPPER, HAMILTON & SCHEETZ and J. Anthony Messina, Jr., Esquire. Appeal of of Moran Towing & Transportation Company, Inc., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1989.
    Filed March 29, 1990.

      Stephen Gillers, New York City, Ralph W. Brenner and Francis P. Newell, Philadelphia, for appellant (at 1204).
    Richard Sprague, Philadelphia, for appellee (at 1204 and 1564).
    Arthur G. Raynes, Philadelphia, for Messina, appellee (at 1564).
    Before BROSKY, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

Pepper, Hamilton & Scheetz (Pepper), a Philadelphia based law firm, appeals the order granting injunctive relief to Maritrans G.P., Inc., Maritrans Partners, L.P. and Mari-trans Operating Partners, L.P.’s (Maritrans), a Philadelphia based transportation company. The preliminary injunction enjoins Pepper’s legal representation of seven New York based transportation companies. Moran Towing & Transportation (Moran), one of the New York transportation companies, appeals the order denying its petition to intervene in the action between Pepper and Maritrans. By order of September 13, 1989, Pepper’s appeal at docket No. 1204 Philadelphia 1989 has been consolidated with Moran’s appeal at docket No. 1564 Philadelphia 1989, and therefore both appeals are addressed in this decision.

We decide two questions on this appeal. First, we decide that the court erred by issuing a preliminary injunction based upon Pepper’s alleged violation of the Rules of Professional Conduct without making any independent finding that Pepper’s conduct was actionable. Second, we determine that Moran was not an indispensable party to the Pepper/Maritrans action and that the court did not err by denying Moran’s petition to intervene.

From 1975 to December 1, 1987, Pepper represented Maritrans in labor matters. From 1986 through December 1, 1987 Pepper also represented Maritrans in certain corporate and securities matters. J. Anthony Messina, a Pepper partner and head of its labor division, was primarily responsible for Pepper’s representation of Maritrans in labor negotiations.

Sometime in 1987, Maritrans learned that Pepper was representing five other New York based marine transportation companies in negotiating labor agreements with Local 333 of the International Longshoremen’s Association. Two other New York based marine transportation companies became clients of Pepper in January, 1988. Maritrans objected strenuously to Pepper’s representation of the New York companies because it considered these companies competitors of Maritrans. Maritrans reasoned that, by virtue of Pepper’s dual representation, the New York companies were in a position to acquire confidential, damaging information from Pepper regarding Maritrans.

Pepper and Maritrans attempted to reach an amicable agreement permitting Pepper to continue its representation of both Maritrans and the New York companies. However, on December 2, 1987, Pepper concluded that negotiations had been unsuccessful and notified Maritrans that it was discontinuing its representation. On February 2,1988, Maritrans filed a complaint alleging the Misappropriation of Trade Secrets, Breach of Contract and Breach of Fiduciary Duty and praying for preliminary injunctive relief and money damages. Maritrans’ request for preliminary injunctive relief was denied by order of February 9, 1988. Maritrans appealed from that ruling and during pendency of that appeal filed an amended complaint in the trial court alleging additional counts of Breach of the Duties Owed By An Attorney to His Client, Deceit and Constructive Fraud, and Legal Malpractice. Maritrans prayed for money damages and special injunctive relief. After amending its complaint in the trial court, Maritrans withdrew its appeal.

On April 21, 1989, following a hearing on Maritrans’ motion for special injunctive relief, the court delivered a bench opinion denying that relief. On April 26, 1989, before filing an order regarding its April 21, 1989 decision, the court reconvened the parties and delivered a second bench opinion reversing its initial determination and granting a preliminary injunction. Since the court stated in its second opinion that its findings of fact from the April 21, 1989 bench opinion remained essentially intact, N.T. dated April 26, 1989 at 5, we regard those findings as the basis of the court’s second bench opinion to the extent that those findings are not explicitly contradicted in the later opinion.

The court’s order of a preliminary injunction, consistent with the court’s April 26, 1989 bench opinion, was filed on May 1, 1989. On May 5, 1989, Pepper filed a Motion for Clarification of the court’s preliminary injunction order. On May 9, 1989, Pepper appealed from the preliminary injunction order. On May 15, 1989, after Pepper appealed the court’s preliminary injunction order, the court responded to Pepper’s first motion for clarification by issuing a second order, purporting to amend its initial order of preliminary injunction. On June 6, 1989, Pepper filed a second Motion for Clarification of the preliminary injunction order, to which the court issued a second amending order on July 7, 1989. Pepper did not file succeeding notices of appeal. Maritrans moved to quash Pepper’s pending appeal on the ground that the superior court lacked jurisdiction and for violation of the Pennsylvania Rules of Appellate Procedure. Each of Maritrans’ motions was denied without prejudice to renew these arguments before this court. We dispose of these two preliminary matters first.

We do not find that our review has been hindered by any of the alleged violations of the Pennsylvania Rules of Appellate Procedure which Maritrans’ identifies and therefore we exercise our discretion not to quash the appeal on this ground. See O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 433-437, 567 A.2d 680, 681-682 (1989).

Next, Maritrans contends that the court’s issuance of two orders, dated May 15, 1989 and July 7, 1989 respectively, which purported to amend the court’s May 1, 1989 preliminary injunction order rendered Pepper’s initial notice of appeal inoperative. Maritrans argues that the trial court’s amending orders were in fact orders granting reconsideration of its preliminary injunction. Since no subsequent notice of appeal was filed within 30 days of the second amended order of July 7, 1989, Maritrans contends that Pepper’s appeal is untimely and thus, this court is restricted from considering the appeal’s merit.

We have reviewed the orders of May 15, 1989 and July 7, 1989. It is clear from the face of each order that the trial court did not grant reconsideration of the preliminary injunction. These subsequent orders simply clarify the scope of the preliminary injunction, thereby preventing any inadvertent violations of the preliminary injunction. Only the trial court’s grant of a motion for reconsideration invalidates a preceding notice of appeal. See generally, Pa.R. A.P. 1701(b). Since the court has not granted a motion for reconsideration, our jurisdiction over this appeal has not been impeded.

On-appeal, Pepper asks us to consider whether the court’s order of a preliminary injunction was proper in the absence of any showing by Maritrans that the conditions required for the issuance of an injunction were satisfied.

It is well established that a preliminary injunction may issue only where the court finds that each essential prerequisite has been satisfied. Beck Computing Service v. Anderson, 362 Pa.Super. 505, 524 A.2d 990 (1987). These prerequisites are as follows: 1) the activity to be restrained is actionable; 2) there exits immediate and irreparable harm which cannot be compensated by damages; 3) greater injury will result by denying the injunction than by granting it; 4) the granting of an injunction will restore the parties to their positions immediately prior to the alleged wrongful conduct; and 5) an injunction is reasonably suited to abate the wrongful conduct. Beck Computing Service v. Anderson, 362 Pa.Super. at 508, 524 A.2d at 991-992.

[A] preliminary injunction is an extraordinary remedy, and the trial court’s power to enter such an injunction should be exercised only after careful deliberation has resulted in the conclusion that such relief is a necessity.

Id.

On appeal, we review the trial court’s order to determine whether the rule relied upon for the issuance of an injunction was palpably erroneous or misapplied, or whether any ground exists to support the order. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 269, 479 A.2d 452, 454-455 (1984).

Of the several requirements for an injunction, the most important is whether the alleged wrongful conduct is actionable. New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978); Leonard v. Thornburgh, 75 Pa.Cmwlth. 553, 558, 463 A.2d 77, 80 (1983). The trial court is required to make a threshold finding that there is a probability that the party seeking an injunction will succeed on the merits of its claim. Id. Here, the trial court’s presumed finding of actionable conduct necessarily relies solely upon Pepper’s purported breach, of the duty of confidentiality to Maritrans. At trial, Maritrans alleged that Pepper violated its ethical duties by: 1) representing clients with conflicting interests; 2) disclosing to their prior Pepper attorney, Messina, confidential information after explicitly agreeing not to do so; and 3) disclosing other confidential information to Pepper’s competitors. On appeal, Maritrans argues that the court’s reliance upon these alleged violations under the Rules of Professional Conduct is not error and that a violation of the Rules is a proper consideration in determining whether actionable conduct exists.

Each alleged act or course of misconduct by Pepper supposedly occurred in or began in 1987, and at the latest in January 1988. On February 27, 1974, the Supreme Court of Pennsylvania adopted the Code of Professional Responsibility. Code Prof.Resp., 42 Pa.C.S. The Code which sets forth standards for attorney conduct was effective from February 27, 1974 thru May 31, 1988 when it was superceded by the Rules of Professional Conduct, adopted on October 16, 1987 but not effective until April 1, 1988. Rules Prof.Conduct, 42 Pa.C.S. Misconduct occurring on or before March 31, 1988 is governed by the Code of Professional Responsibility. Code Prof.Resp., Supersedure, 42 Pa.C.S.; Rules Prof.Conduct, 42 Pa.C.S. Since the conduct alleged by Maritrans, and that considered by the court, began prior to March 31, 1988, such alleged misconduct is properly considered under the Code. We assume solely for the purpose of discussion that both the Code and the Rules were in some manner violated in order to reach the primary issue on this appeal, whether a violation of the disciplinary rules is a proper consideration in determining whether an injunction should issue. The question of whether either the Code or the Rules were actually violated is in no way decided by this opinion.

The Preliminary Statement to the Code of Professional Responsibility states:

The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct.

Our courts have endorsed this position. In In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984), our supreme court rejected the argument that an attorney’s failure to govern himself or herself by the standards set forth in the Code of Professional Responsibility, standing alone, would be sufficient to create a cause of action. In re Estate of Pedrick, 505 Pa. at 535, 482 A.2d at 217 (plurality decision: two of seven justices concurring and two justices dissenting on other grounds). Recognizing that the code was used in the closely circumscribed situation in which disqualification of an attorney was necessary to ensure a fair trial, the supreme court observed that its decision not to extend this practice was consistent with both its constitutional duty to discipline attorney conduct and the Preamble to the Model Rules of Professional Conduct which were then under review for adoption in this Commonwealth.

In Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985), the supreme court, with mention of the Code of Professional Responsibility and Pedrick, supra, observed that neither the Code of Judicial Conduct nor the Code of

Professional Responsibility permit:

the trial courts or the intermediate appellate courts to alter the rules of law, evidentiary rules, presumptions or burdens of proof. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct.

Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. at 219-220, 489 A.2d at 1299. If the Code were used to establish actionable conduct, such an effort would in effect alter the rules of law in this Commonwealth. The violation of a lawyer’s ethical duty of confidentiality has not, heretofore, been recognized as an independent cause of action. Thus, sole reliance upon the Code to establish actionable conduct for the purpose of issuing a preliminary injunction would be improper.

Here, the trial court does not consider the Code which was in effect at the time the alleged conduct began. Rather, the court discusses the applicability of the Rules of Professional Conduct. Although the court apparently recognized that the Rules could not be the basis for a preliminary injunction when initially denying Maritrans’ motion, see N.T. dated April 21, 1989 at p. 6, it abandoned this position entirely, instead relying upon a violation of these rules, principally Rule 1.7 and Rule 1.9, in justifying its issuance of a preliminary injunction.

The court states in its opinion of April 26, 1989 that it reconsidered its ruling of April 21, 1989 because it did not fully appreciate the relationship between attorney and client. N.T. dated April 26, 1989 at p. 8. The court then embarked upon an analysis of whether Pepper had breached its duty of confidentiality to Maritrans under Rules 1.7 and 1.9. In so doing, the court relied upon the application of the substantial relationship test used in disqualification actions to establish that a substantial relationship existed between Pepper’s representation of the New York companies and Pepper’s representation of Maritrans, and therefore Pepper was presumed to have information which could be used to Maritrans’ disadvantage. N.T. dated April 26, 1989 at 16. Under the substantial relationship test, this presumption is not rebuttable. Richardson v. Hamilton International Corp., 333 F.Supp. 1049, 1053 (E.D.Pa.1971), aff’d 469 F.2d 1382 (3rd Cir.1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973) quoting Fleischer v. A.A.P., Inc., 163 F.Supp. 548, 552 (S.D.N.Y.1958). The court discussed further that given this presumption, it was uncertain whether it was permitted to even consider the present-day importance of the information that Pepper was presumed to possess, N.T. dated April 26, 1989 at 16. The court concluded:

Maritrans’ clear right to relief is based on the fact that Pepper had established an attorney-client privilege or a relationship with Maritrans which was substantially related to its representation of competitors in the New York Harbor. Pepper violated an admitted commitment not to disclose information to Messina. The irreparable harm to Maritrans is apparent in the confidential information presumed to be within Pepper’s knowledge, and which this Court further found to be of value to competitors.

[Emphasis added]. N.T. dated April 26, 1989 at 20.

The court’s reliance upon the Rules to support its theory that Pepper’s conduct was actionable was plainly error. Just as the Code may not be used to augment the substantive law of this Commonwealth, neither may the Rules be used to create actionable conduct. The Scope of the Rules directs that a violation of its provisions:

should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be the basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.

[Emphasis added]. Rules of Professional Conduct, Scope, 42 Pa.C.S.

The “right to relief” that the court has constructed to satisfy the first requirement for the issuance of a preliminary injunction is neither implied by law nor was it a material part of Pepper’s agreement to provide Maritrans with advice, counsel, and representation in labor relations matters. By relying upon the Rules of Professional conduct to establish a right to relief, the court essentially used the rules to give rise to a cause of action, improperly augmenting the substantive law in this Commonwealth. The issuance of an injunction on this basis was palpably erroneous.

Our independent review of the record reveals no basis upon which a preliminary injunction could have been issued. Throughout this litigation, Maritrans has attempted to equate legal duty with professional responsibility. See Maritrans’ Amended Complaint at pp. 24, 26-27, 29, 31-32, 34-35, 37-38. As explained, a violation of the disciplinary rules of this Commonwealth does not give rise to a cause of action, although it may properly be the focus of disciplinary action by the Supreme Court of Pennsylvania. Thus, a probability of success on the merits of Maritrans’ complaint did not exist. Maritrans has failed to show that Pepper’s conduct was actionable, and in the absence of this showing, an injunction was improper.

Contemporaneous with Pepper’s appeal seeking relief from the court’s preliminary injunction order, litigant Moran petitions this court to be made an indispensable party to the action between Pepper and Maritrans. On May 4, 1989, after the court’s entry of the preliminary injunction order, Moran petitioned the court for leave to intervene. The Honorable Abraham J. Gafni denied this petition on May 10, 1989. On May 12, 1989, Moran filed in this court an emergency application for an order permitting intervention and staying the preliminary injunction pending appeal of the trial court’s preliminary injunction order which was denied without prejudice to present those arguments before this court. On appeal, we conclude that Moran is neither an indispensable party to the Pepper/Maritrans litigation nor should Moran have been permitted to intervene.

Moran contends that because the preliminary injunction prevents Pepper from representing Moran, Moran has an interest which is affected by the Pepper/Maritrans litigation, and therefore Moran is an indispensable party. In an equity action, a party is considered indispensable where:

[H]e has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience. That is to say, his presence as a party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights." Hartley v. Langkamp & Elder, 243 Pa. 550, 555-556, 90 A. 402, 403 (1914).

Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981). [Emphasis added]. In evaluating whether a litigant is indispensable to the proceeding, we must consider:

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?

Id.

The preliminary injunction preventing Pepper from representing the New York companies in collective bargaining negotiations does not prevent Moran from seeking other counsel. Thus, the interest sought to be protected is not just the right to legal representation, for this right is unaffected by the court’s order. Rather, Moran seeks to protect its “right” to representation by the counsel of its choice, Pepper. Moran concedes that to the extent that Maritrans has requested money damages, Moran is not an indispensable party. Moran brief at 6.

There is no unfettered right to counsel of choice. See, e.g., Kramer v. Scientific Control Corp., 534 F.2d 1085, 1093 (3d Cir.1976) citing United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3rd Cir.1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). In fact, Moran would not be able to compel the specific performance of its agreement with Pepper had Pepper voluntarily chosen to cease its representation of Moran. McMenamin v. Philadelphia Transportation Co., 356 Pa. 88, 51 A.2d 702 (1947); Restatement (Second) of Contracts § 367(1). Any harm which Moran would incur by losing Pepper as counsel would be merely compensable in money damages. Moran’s ability to secure such relief has not been affected in the least by the preliminary injunction. Thus, Moran’s due process rights are unaffected by the preliminary injunction.

In addition, Moran’s interest in retaining the counsel of its choice is not directly connected to the merits of this case. Rather than focus, as Moran suggests, upon the directness oP Moran’s interest to ultimate determination that Pepper may no longer render collective bargaining representation to the New York companies, this court must consider whether Moran’s interest in being represented by Pepper is directly related to the issue before the court, whether Pepper has breached a duty owed to Maritrans’ that is properly rectified by a preliminary injunction. See Mechanicsburg Area School District v. Kline, 494 Pa. at 483-484, 431 A.2d at 957-958. From this vantage, Moran’s interest is remote. Moran’s participation in this litigation is not necessary to a determination of whether Pepper breached its legal duties to Maritrans.

The cases upon which Moran relies for the proposition that it must be considered an indispensable party are clearly distinguishable. Borough of Wilkinsburg v. Horner, 88 Pa.Cmwlth. 594, 490 A.2d 964 (1985) involved a refuse collector’s ability to continue to render its contracted service to the borough when the propriety of the collector/borough contract was challenged by a taxpayer. Posel v. Redevelopment Authority of Philadelphia, 72 Pa.Cmwlth. 115, 456 A.2d 243 (1983) involved a landowner’s property right to a parcel of land where redevelopers sought to enjoin the parcel’s sale because it was allegedly in violation of the urban renewal plan. In each case, the party attempting to intervene had a right to the performance of the contract and that right would have been directly affected by the litigation. Since Moran neither possesses an interest affected by the Pepper/Maritrans litigation which is specifically enforceable, nor is Moran’s participation at trial essential to a determination of whether Pepper violated a legal duty owed to Maritrans, Moran is not indispensable to the Pepper/Maritrans litigation.

Further, we find that Judge Gafni that did not abuse his discretion by denying Moran’s petition to intervene permissively as provided by Pa.R.C.P. 2327(4). The reason for Judge Gafni’s denial of Moran’s petition is evident from the court’s May 5, 1989 order denying the petition to intervene by five other New York companies. In that order, Judge Gafni considered the petition of the five companies, filed after the entry of an adverse judgment, untimely because each company was fully aware of the. proceedings, and in fact representatives of two companies were witnesses in the proceedings.

Rule 2327(4) does not create a right of intervention but rather sets forth the only circumstances in which intervention will be permitted. It provides in pertinent part:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

Pa.R.C.P. § 2327. Rule 2327 is subject to Pa.R.C.P. § 2329 which sets forth those instances in which the court may justifiably refuse intervention to a litigant proceeding under Rule 2327. Rule 2329 provides:

Upon the filing of the petition and after hearing, of which due notice shall be given to all parties, the court, if the allegations of the petition have been established and are found to be sufficient, shall enter an order allowing intervention; but an application for intervention may be refused, if
(2) the interest of the petitioner is already adequately represented; or
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.

Pa.R.C.P. § 2329.

A representative of Moran participated in the Pepper/Maritrans litigation, the precise conduct which Judge Gafni identified as showing that two of the five other New York companies were aware of the Pepper/Maritrans litigation well before the conclusion of the hearing and that therefore those companies’ petition to intervene was untimely. With full knowledge of the twenty-seven day hearing on Maritrans’ motion for special relief, Moran waited until after a preliminary injunction was granted before petitioning the court to intervene. Just as the petition of the five other New York companies was untimely, Moran’s petition was untimely. When a petition for intervention is untimely and the proposed intervenor’s interests are adequately represented by the parties of record, the court may deny intervention. Rule 2329(2) and (3); Jackson v. Hendrick, 498 Pa. 270, 446 A.2d 226 (1982).

Moran’s reliance on Ackerman v. North Huntingdon Township, 425 Pa. 194, 228 A.2d 667 (1967) for the proposition that it need not petition the court to intervene until after the rendering of an adverse judgment is misplaced. In that case, our supreme court held that denial of intervention was error where the intervenor reasonably relied upon a party defendant to protect its interests and where, after the party defendant lost its case, it failed to challenge the decision by the filing of exceptions.

Here, Moran’s interests remain expertly marshalled. In fact, Moran’s appellate brief relies entirely upon Pepper’s analysis to challenge the propriety of the injunction, adding only its argument that the failure to join Moran as an indispensable party deprived the court of jurisdiction to issue an injunction. See Moran’s brief at 12. Because Moran’s petition could be viewed as untimely and because Moran’s interest in continuing to be represented by the counsel of its choice, was, and continues to be, effectively represented by Pepper, Judge Gafni did not abuse his discretion in denying Moran’s petition to intervene. See Wilson v. State Farm Mutual Automobile Ins. Co., 512 Pa. 486, 517 A.2d 944 (1986). We do not reach Moran’s contention that the trial court did not have jurisdiction to issue a preliminary injunction because it failed to join Moran as an indispensable party.

For the foregoing reasons, we affirm the trial court’s May 10, 1989 order denying Moran’s petition to intervene. We reverse the trial court’s May 1, 1989 order granting Maritrans’ Motion for Special Injunction, thereby also nullifying the trial court’s subsequent amending orders of May 15, 1989 and July 7, 1989.

Order of May 10, 1989 affirmed. Order of May 1, 1989 reversed.

WIEAND, J., concurs in the result.