author: HESTER, Judge:

text:
    495 A.2d 963
    Richard E. CUMMINS, Jr., Appellant, v. The FIRESTONE TIRE & RUBBER CO., Goodyear Tire & Rubber Co., Mack Trucks, Inc., Mill Service, Inc., Brake Drum and Equipment Co., Vivian Yukevich, Kelsey-Hayes Co., Redco Corp., the Budd Co., Trailmobile, Inc., Fruehauf Corp., Coll Tire Distributors, Inc., Firestone Canada, Inc., Motor Wheel Corp., the Dayton Rubber Co., Erie Malleable Iron Co., Heil Co., Webb Co., Alcoa Aluminum Corp., Gunite Co. v. McCLAIN AND CONNELLY AUTO REPAIR.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Filed July 5, 1985.

      Robert A. Seewald, Pittsburgh, for appellant.
    Lowell A. Reed, Jr., Pittsburgh, for Firestone Tire, appellee.
    Howard K. Hilner, Pittsburgh, for Redco Corp., appellee.
    Joseph A. Macerelli, Pittsburgh, for Trailmobile, Inc., appellee.
    James F. Manley, Pittsburgh, for Fruehauf, appellee.
    Scott E. Becker, Pittsburgh, for Firestone Canada, Inc., appellee.
    David P. Helwig, Pittsburgh, for Heil Co., appellee.
    Edward C. Schmidt, Pittsburgh, for The Budd Co., appellee.

      Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

The matter before us for review is an Order sustaining preliminary objections of three of the twenty appellees herein, Fruehauf Corporation (hereinafter “Fruehauf”), The Budd Company (hereinafter “Budd”), and The Heil Company (hereinafter “Heil”).

The issue is whether appellant, who cannot identify the particular manufacturer of the tire and rim assembly which allegedly caused his injury, or in fact the offending product itself, can maintain an action against those manufacturers who produced substantially all of the particular parts of the machinery.

Under the circumstances of this case, we hold that appellant has failed to state a cause of action against these appellees.

On December 8, 1980, appellant entered a service garage to visit a friend-employee. While there, appellant was allegedly injured when a multi-piece tire and rim assembly exploded as it was being inflated. The wheel was being inflated by McClain Tire Service, which repaired and serviced the vehicles of Mill Service, Inc. as agent for Coll Tire Distributors Company.

The actual multi-piece assembly involved in the accident was irrevocably lost. After the accident, the service garage operator remounted the rim and tire parts without incident and returned them to the stream of commerce, but failed to notice the brand or manufacturer of the assembly.

Appellant’s initial complaint, filed on April 30, 1982, alleged causes of action in negligence and strict liability against five appellees. By consent of court, appellant eventually filed three subsequent amended complaints, adding fifteen additional appellees and three more counts. Thus, the complaint, as amended, identified the following as appellees:

Manufacturers of truck wheel rims:
Firestone, Goodyear, Kelsey-Hayes, Redco, Budd, Firestone-Canada, Motor Wheel, Dayton Rubber, Erie Malleable, Webb, Alcoa and Gunite.
Owner of fleet of trucks:
Mill Service, Inc.
Manufacturers of truck trailers:
Trailmobile, Fruehauf and Heil
Manufacturer of truck tractors:
Mack Trucks
Supplier of truck tires and rims:
Brake Drum and Equipment and Coll Tire Distributors
Owner of real estate where accident occurred:
Vivian Yukevich

The three additional causes of action, industry-wide liability, market share liability, and concerted action liability, were asserted against the twelve listed manufacturers of truck wheel rims.

With respect to the three parties involved in this appeal, appellant asserted claims in negligence and strict liability against Fruehauf, Heil, and Budd. He further asserted the three above-mentioned causes of action against Budd.

Appellees Fruehauf, Heil and Budd filed preliminary objections in the nature of a demurrer. Specifically, they contended that appellant failed to identify any appellee as the manufacturer or supplier of the multi-piece rim which allegedly injured appellant. Appellees maintained that appellant’s inability to allege the specific identity of the manufacturer or supplier of the product was fatal to his claims in negligence and strict liability.

Appellee Budd further contended that appellant’s theories of market-share, industry-wide and concerted-action liability are not the law in this Commonwealth and are unconstitutional. Moreover, appellee Budd maintained that even if they were specifically adopted in this jurisdiction, appellant has failed to allege the requisite elements of those causes of action.

On January 25, 1983, oral argument was held before the trial judge, who sustained the preliminary objections filed by appellees Fruehauf, Budd, and Heil. In the opinion of the court, the complaint as amended failed to identify the manufacturer or supplier of the product. Therefore, appellant failed to allege the requisite elements of an action in negligence or strict liability. Moreover, the court determined that the amended complaint failed to set forth any other cognizable cause of action. The complaint was dismissed as to Budd, Heil, and Fruehauf. This appeal followed.

Initially, we observe that this Court’s scope of review of a challenge to the sustaining of preliminary objections in the nature of a demurrer is a stringent one. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Cianfrani v. Com., State Employee’s Retirement Bd., 505 Pa. 294, 479 A.2d 468 (1984). Any doubt should be resolved in favor of overruling the demurrer. Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983); In re Estate of Thompson, 332 Pa.Super. 360, 481 A.2d 655 (1984); Del Turco v. Peoples Home Sav. Ass’n, 329 Pa.Super. 258, 478 A.2d 456 (1984). If any theory of law will support a claim raised by the complaint, a dismissal is improper. Cianfrani v. Com., State Employee’s Retirement Bd., supra. This Court, in reviewing such an order, makes no factual findings with regard to the matters in dispute.

Count I — Negligence

The requisite elements of a cause of action in negligence are 1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff, 2) a failure by the defendant to so conform, and 3) a reasonably close causal connection between the defendant’s conduct and some resulting injury to the plaintiff. This last element is commonly known as proximate cause. See generally, Prosser, LAW OF TORTS, § 30 (4th ed. 1971).

Appellant herein alleges that he was injured by the explosion of a tire and multi-piece rim assembly, although it is unclear from the complaint whether he avers that the tire or the multi-piece rim, or both, exploded. Appellant acknowledges his inability to identify the exact product involved in this accident. Appellant’s second amended complaint states:

75(b) Plaintiff, RICHARD CUMMINS, is not at fault for the absence of evidence identifying the exact product involved in this accident, but rather the absence of proof is due to the conduct of the additional defendant, McCLAIN TIRE SERVICE;

Further, appellant’s third amended complaint states:

45(e) Plaintiff believes and therefore avers that the multipiece rim-ring assembly, which caused the injuries and damages to plaintiff, was distributed, supplied and/or sold to Mill Service, Inc. either as original equipment on either a Mack trailer, a Fruehauf trailer, a Trailmobile trailer, or a Heil trailer, all of which were sold to Mill Service, Inc. equipped with multi-piece rims; or that said defective multi-piece rim-ring assembly and/or certain parts thereof, were distributed, supplied and/or sold to Mill Service, Inc. by Brake Drum and Equipment Company as replacement parts to service the Mill fleet of truck tractors and truck trailers.

Although appellant’s complaint states that he sustained injuries, it fails to connect any particular appellee to the cause of those injuries. Appellant is unable to specify whether the tire and wheel assembly in question was one originally provided by a truck tractor or trailer manufacturer, or by a replacement part supplier.

Consequently, appellant’s claim based on negligence must fail. The lower court’s holding is in complete accord with the general rule requiring identification of appellee as the manufacturer or seller of the particular offending product, before appellant’s injuries may be found to be proximately caused by some negligence of appellee. Absent such identification, there can be no allegations of duty, breach of duty or legal causation, and hence there can be no liability. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

Appellant contends the sustaining of appellees’ preliminary objections prematurely terminated discovery. Appellant professes it remains his intention to identify the tortfeasor. Appellant asserts that Pa.R.C.P. 2229(b) allows permissive joinder in order to avert the running of the statute of limitations.

However, the fact remains that the offending product is unavailable for inspection, and therefore, appellant is precluded from identifying the manufacturer or supplier. This is not a defect which could be corrected by further discovery or by granting appellant leave to amend his complaint, since the opportunity to make the necessary identification has been irretrievably lost. This case presents a situation “where it is clear that amendment is impossible and where to extend leave to amend would be futile.” Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978).

Moreover, we find no merit to appellant’s argument that Pa.R.C.P. 2229(b) circumvents the necessity to identify the tortfeasor in a negligence or strict liability claim. That provision merely allows a plaintiff to join as defendants persons against whom he may assert any right to relief jointly, severally, separately, or in the alternative.

It does not dispense with the need to plead the appropriate elements of negligence as to each defendant, separately and independently. Undeniably, this rule provides a vehicle for a plaintiff to join defendants in the alternative if uncertain as to the identity of the party actually liable to him. GOODRICH-AMRAM 2d § 2229(b):4. However, the purpose of this rule is not to enable a plaintiff to join defendants in the alternative when the offending product remains unidentified. The causes of action remain separate, as though separate suits had been filed, and must, therefore, meet the traditional standards of sufficiency in pleading by asserting the nature of the liability of each defendant sued. General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 263 A.2d 448 (1970); Pa.R.C.P. 1044. This appellant has failed to do.

Count II — Strict Liability

Section 402A of the RESTATEMENT (SECOND) OF TORTS (1977), adopted in Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), establishes the strict liability of one who sells any product in a defective condition unreasonably dangerous to the user or consumer. In order to state a cause of action for strict liability in tort, a plaintiff must allege a sale or other commercial transfer of a product by the defendant.

Viewing the complaint most favorably to appellant, we once again find appellant’s failure to identify the offending product as a fatal deficiency to his claim. Appellant failed to allege that Fruehauf, Budd, or Heil manufactured, sold, or supplied the product which allegedly caused his injury simply because such information is unavailable to him. Thus, the complaint cannot adequately aver the requisite connection between appellees and the defective product, and cannot support a cause of action in strict liability.

A factually similar case was recently before the United States District Court for the Eastern District of Pennsylvania. In that case, Klein v. Council of Chemical Associations, 587 F.Supp. 213 (E.D.Pa.1984), plaintiff had been employed in the printing industry for more than fifty years. He brought an action against manufacturers of printing chemicals, trade associations and a research institute after developing bladder cancer allegedly from exposure to those products.

In dismissing plaintiff’s complaint, that court observed that since plaintiff did not know which products caused his injury, he also did not know which, if any, of the defendants manufactured them. In denying plaintiff’s products liability claim, the court concluded that § 402A, as adopted by Pennsylvania courts, imposes liability for physical harm caused to the user only upon that person who sold a product in a defective condition. A plaintiff must therefore at least designate the product alleged to be defective in order to recover from the one who sells it. Id. at 222. The court likewise held that plaintiff’s cause of action in negligence was defeated by his failure to identify a specific product and the resultant, causal connection between the conduct of the defendant and his injuries. We similarly hold in the case at bar that appellant’s causes of action in negligence and strict liability were properly dismissed by the lower court as to Fruehauf, Heil, and Budd.

Count III — Concert of Action

In this, and the following two causes of action, appellant asserts that Budd, solely by virtue of its status as a manufacturer of multi-piece truck rims, is liable to appellant for his injuries.

The theory of liability underlying the cause of action known as “concert of action” is set forth in § 876 of the RESTATEMENT (SECOND) OF TORTS (1977):

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Appellant argues that a successful concert of action theory would allow a plaintiff to sue any one manufacturer of the subject product without regard to direct identification of that particular defendant as the maker of the injury-producing product. Thus, he contends that each person or corporation who commits a tort in concert, but who does not each directly cause the complained-of damages can be found liable pursuant to this cause of action.

Appellant’s assertion cannot prevail. In order for this cause of action to be viable, there must be acts of a tortious character pursuant to a common design or plan. RESTATEMENT (SECOND) OF TORTS § 876 comment (b) (1977). In the alternative, a defendant must render substantial assistance to another to accomplish a tortious act. As specifically stated in comment (d) to § 876(b), “in determining liability, the factors are the same as those used in determining the existence of legal causation when there has been negligence____”

As seen above, appellant cannot establish a prima facie case of negligence against appellee Budd. Moreover, he has failed to aver that Budd has rendered substantial assistance to those manufacturers who have allegedly engaged in concerted tortious conduct.

Finally, this cause of action has not heretofore been recognized in this Commonwealth as a valid basis for imposing liability. In light of appellant’s failure to establish the requisite elements of this count, this case is an improper vehicle for the initial consideration of this cause of action by a court of this Commonwealth. To sustain a concert of action theory in the instant case would render any manufacturer in Pennsylvania liable to any member of the public for the defects of his competitor’s products. Such a result is unconscionable.

Count IV — Industry-Wide Liability

Appellant’s two final counts, “industry-wide” liability and “market-share” liability are more appropriate to the situation where the identity of the person who manufactured or supplied the offending product remains undetermined. However, for the following reasons, we find that these novel counts cannot provide appellant with a forum for relief.

The tort of industry-wide liability exists when an injury is caused by one of several known manufacturers, where the precise manufacturer is unidentified and where the manufacturers together adhere to an unreasonable safety standard regarding their product. This tort was enunciated by the United States District Court for the Eastern District of New York in Hall v. E.I. DuPont de Nemours v. Co., Inc., 345 F.Supp. 353 (E.D.N.Y.1972). Therein, thirteen children sustained injuries over a four-year period from the explosion of blasting caps. An action was instituted against the six blasting cap manufacturers who comprised virtually the entire blasting cap industry in the United States and their trade association. No manufacturer was specifically identified as causing particular injuries.

The court upheld the complaint, reasoning that the industry-wide practice of omitting a warning on individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm. Thus, the burden of proof as to causation shifted to the defendants, who could exonerate themselves only by showing that their product could not have caused the injury.

Appellant attempts to state a cause of action under Hall. He alleges joint enterprise and collaboration among defendants in the intentional manufacture, promotion, and distribution of a generically similar defective device with the knowledge that a safer replacement device was available. He further avers that the manufacturers conspired to remain silent and avoid adequate warning to users of multipiece rim components.

We decline to uphold appellant’s complaint under the theory of industry-wide liability. In Hall, only six manufacturers represented the entire national blasting cap industry. That court specifically noted that this theory of liability would not be fair and reasonable for an action against a large number of producers, particularly in an industry composed of countless small producers.

Herein, appellant levels these charges against a dozen manufacturers, some great corporations, others small independent operations. Nowhere does he aver that these twelve comprise virtually the entire industry. Moreover, in Hall, the conclusion that the risk embodied in the product was jointly controlled was based upon allegations that the blasting cap manufacturers had delegated some functions relating to safety to its trade association. Such an allegation is missing here.

For the above-mentioned reasons, appellant has failed to establish the tort of industry-wide liability. In addition, as with concert of action liability, this cause of action has heretofore not been recognized by the courts of this Commonwealth as affording a basis for relief to an aggrieved plaintiff, and will not now be so adopted.

Count V — Market Share Liability

Appellant’s final count, market share liability, attempts to hold each defendant liable for damages in proportion to its respective market share of multi-piece rims. In support of this cause of action, appellant relies heavily upon the California case which first embraced this theory, Sindell v. Abbott Laboratories, et al., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980).

Therein, appellant instituted a suit for personal injuries allegedly caused by her mother’s use of the drug diethylstilbestrol (“DES”) during pregnancy. The pharmaceutical companies which manufactured the drug utilized a mutually-agreed upon identical formula, resulting in a fungible product. Appellant conceded at trial that she could not identify the manufacturer of the DES which her mother had consumed.

The California Supreme Court held that a defendant could be liable to an injured plaintiff, even though its product was not involved in the accident, based upon its market share of the product. In reaching this result, the court relied upon two key elements present in that case. First, the product was impossible to trace to its source in light of its fungible nature and the resultant absence of any identifying labeling on the containers in which the drug was dispensed to consumers. Second, appellant’s attempts to identify the manufacturer were also hampered by the extensive period of time between the use of the drug and the subsequent manifestation of her injuries. Thus, the court did not require appellant to identify which defendant manufactured the offending product. Rather, the court held that unless a defendant could demonstrate that it did not manufacture the DES consumed by appellant’s mother, liability would be imposed in an amount proportionate to the defendant’s respective market share of all sales. Hence, a defendant with no known or provable involvement with the injuries could be forced to pay money damages.

Appellant herein argues that market share liability, as applied in the Sindell case, should provide a foundation for his recovery. For the following reasons, we must once again reject appellant’s contentions.

The court’s holding in Sindell was predicated upon the specific facts found therein. As stated above, appellant’s inability to identify the manufacturer of the DES which caused her injuries was through no fault of her own. In addition, she joined 90% of the manufacturers of the offending substance. Finally, the drug was produced from a common formula, rendering all DES products identical. In such instances, that court determined that adaptation of the rules of causation and liability was appropriate where modern “science and technology create fungible goods which may harm consumers and which cannot be traced to any specific product.” Id. 163 Cal.Rptr. at 144, 607 P.2d at 936.

Herein, appellant’s inability to identify the manufacturer of the multi-piece rim assembly was in no way the fault of the producers of that product. Rather, it was the conduct of additional defendant McClain Tire Service, who reintroduced the offensive product into the stream of commerce, which rendered appellant incapable of identifying his tortfeasor. Next, although appellant asserts that he has sued those manufacturers which account for a high percentage of the multi-piece rims on the market, such averment cannot sustain a shift of the heavy burden to the alleged tortfeasors when the possibility is great that the actual wrongdoer will escape liability. Most significantly, appellant has failed to allege that all of the manufacturers have placed on the market fungible products which share identical defective qualities. The allegation that the multi-piece rim assemblies are “generically similar” falls far short of the standard employed in Sindell to extend traditional products liability principles.

Finally, once again, we are confronted with a cause of action novel to the courts of this Commonwealth. The closest any court has come to adopting reasoning similar to Sindell was the Court of Common Pleas of Philadelphia County in Erlich v. Abbott Laboratories et al., 5 Phila. 241 (1981). That case also involved a suit for damages resulting from the use of DES. Therein, as in the instant case, plaintiff could not identify the manufacturer of the drug which allegedly caused her injury. That court upheld her action against those manufacturers who allegedly produced substantially all of that particular drug.

In reaching that result, the court relied not upon market share liability, but on the provisions of § 433B(3) of the RESTATEMENT (SECOND) OF TORTS (1977). That section provides:

where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused them harm.

Pennsylvania adopted this theory, known as alternative liability, in Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970). See also Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974).

Although the Erlich court proceeded under a different theory, the factors relied upon by that court were very similar to those deemed to be pivotal by the court in Sindell. First, plaintiff was unable to identify the manufacturer of the offending product through no fault of her own. Second, she had joined those manufacturers who marketed approximately 90% of the DES in the Philadelphia area. Third, she alleged that all defendants were tortfeasors by placing an allegedly defective product on the market. Finally, she averred that the products were identical and shared the same defective qualities.

The same shortcomings which distinguish this case from Sindell serve to differentiate it from Erlich. Therefore, Erlich does not militate against our decision not to follow either market share liability or alternative liability with respect to the case at bar.

For the preceding reasons, we affirm the order of the lower court sustaining appellees’ preliminary objections and remand this case for the disposition of all remaining preliminary motions in a manner consistent with this opinion. Jurisdiction is not retained.

      . In reaching this result, we do not rule upon those preliminary objections filed by other appellees, but which were not considered by the lower court in view of the within appeal.

      . Vivian Yukevich was dismissed from this lawsuit by the court below.

      . Rule 2229. Permissive Joinder
      (b) A plaintiff may join as defendants persons against whom he asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action.

      . Section 402A provides:
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or in his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . See Comment, DES and a Proposed Theory of Enterprise Liability, 1978 Fordham L.Rev. 963, 999.

      . Industry-wide liability as embodied in Hall has now been rejected by virtually every other jurisdiction confronted with this issue. See Morton v. Abbott Laboratories et al., 538 F.Supp. 593 (M.D.Fla.1982); Starling v. Seaboard Coast Line Railroad Company, 533 F.Supp. 183 (S.D.Ga.1982); Ryan v. Eli Lilly and Company, 514 F.Supp. 1004 (D.S.C.1981); Gray v. U.S., 445 F.Supp. 337 (S.D.Tex.1978); Davis v. Yearwood, 612 S.W.2d 917 (Tenn.App.1980); In re: Beverly Hills Fire Litigation, No. 77-79 (E.D.Ky.1979) (cited by Davis v. Yearwood, supra). But see Bichler v. Eli Lilly & Co. et al., 79 A.D.2d 317, 436 N.Y.S.2d 625 (1st Dept.1981), aff’d, 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982).
      As stated by the Superior Court of New Jersey when it rejected the theory:
      Adoption of this legal theory would, of necessity, result in total abandonment of the well settled principle that manufacturers are responsible only for damages caused by a defective product upon proof that the defective product was defective and that the defect arose while the product was in the control of defendant, [citation omitted]. And traditional methods of apportioning damages among defendants would also, of necessity, have to be abandoned and new ones fashioned.

        Extensive policy shifts of this magnitude should not be initiated by an intermediate apellate court. The appropriate tribunal to accomplish such drastic changes is either the Supreme Court or the Legislature. Namm v. Charles E. Frosst & Company, 178 N.J.Super. 19, 427 A.2d 1121, 1129 (1981) (emphasis added).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    495 A.2d 973
    Richard G. MILLER, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Decided May 31, 1985.
    Reargument Denied Aug. 12, 1985.

      Ronald J. Mishkin, Stroudsburg, for appellant.
    Robert M. Maskrey, Jr., Stroudsburg, for appellee.
    Before OLSZEWSKI, MONTGOMERY and LEDERER, JJ.

       Judge William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

At issue is a claim for work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. Sec. 1009.101 et seq. Ruling that the claim was time-barred, the lower court granted summary judgment in favor of Prudential Property and Casualty Insurance Company. This appeal followed.

Section 106(c)(1) requires commencement of suit within two years of the date the victim “suffers the loss and either knows or, in the exercise of reasonable diligence should have known, that the loss was caused by the accident.” 40 P.S. Sec. 1009.106(c)(1). Our Supreme Court, in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983), held that:

Where as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to have been caused by the accident, an action to recover work loss benefits under the Act may be commenced ... within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000____

503 Pa. at 540, 469 A.2d at 1384 (citations omitted). The parties by stipulation agree that appellant’s work loss, as defined by Section 103 of the Act, began to accrue on November 7, 1980. Appellant instituted this action on October 27, 1983. Under a gross income analysis, appellant accrued a work loss of $15,000 on June 16, 1981. See 40 P.S. Sec. 1009.205. His claim, therefore, would be totally barred under a gross income analysis. Using instead a net income analysis, we find that appellant’s claim is only partially barred. See 40 P.S. Sec. 1009.206. The parties agree that those benefits accrued before October 27, 1981 under the net income analysis are completely barred. Under the net income analysis applied, however, appellant would be entitled to work loss benefits in sum of $9,312.26.

The question before us is whether Section 205 or 206 controls for the purposes of determining a limitation to appellant’s action. The lower court reasoned that a straightforward reading of the Act mandated use of a gross income analysis:

“Work loss” is defined in 40 P.S. 1009.103 as the loss of gross income, not net income. Since we are not dealing with Workmen’s Compensation benefits, Motley v. State Farm Ins. Co., 502 Pa. 335, 466 A.2d 609 (1982) is not on point. We are bound by the plain meaning of the words of the statute. The net loss provision, 40 P.S. Sec. 1009.206, applies only to Social Security provisions. Since Plaintiff failed to file suit for more than two years after reaching the Fifteen Thousand ($15,000.00) Dollars, he is barred from receiving any work loss benefits.

The Act, on its face, does equate “work loss” with “gross income”. See, e.g., 40 P.S. Sec. 1009.202(b) and 1009.205. We note the apparent inconsistency between the Act and the attendant guidelines for interpreting the Act. See 31 Pa.Code Sec. 66.54(b) (applying a net income analysis to compute “total work loss”). We cannot, however, disregard the clear and unambiguous language of the Act. See Platts v. Government Employees Ins. Co., 301 Pa.Super. 379, 447 A.2d 1017 (1982). As between an administrative guideline and a statutory enactment, the statute must of course prevail.

Order affirmed.


author: PER CURIAM:

text:
    495 A.2d 974
    In the Interest of Thomas G. VAGLICA, a Minor. Appeal of Thomas G. VAGLICA.
    Superior Court of Pennsylvania.
    Submitted April 9, 1985.
    Decided July 5, 1985.

      Joseph A. Grappone, Assistant Public Defender, Holidaysburg, for appellant.
    James H. English, Assistant District Attorney, Holidaysburg, for appellee.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Thomas G. Vaglica appeals his adjudication of delinquency on a charge of violating 18 Pa.C.S. § 2905. We reverse.

On August 5, 1981, appellant’s mother Rosa Barr was arrested. Appellant was playing basketball nearby and the officer stopped and picked up appellant before proceeding to City Hall. Mrs. Barr also had her two infant children with her. An adult friend of the family met them at City Hall. At the time, appellant was 17 years 8 months of age. Children and Youth Services learned of the situation, telephoned a judge and obtained an oral order for custody of the two infants. When the caseworker attempted to take physical custody of the children, appellant refused to relinquish them. Police officers were summoned for assistance and appellant was charged with interference with the custody of committed persons.

Appellant argues that the evidence does not support the adjudication of delinquency under these circumstances. We agree.

The offense of interfering with the custody of committed persons is committed if a person “knowingly or recklessly takes or entices any committed person away from lawful custody when he is not privileged to do so.” 18 Pa.C.S. § 2905. In the instant case, appellant was told that someone had telephoned a judge who had verbally granted custody to Children and Youth Services. He was not shown any court order because no written order existed until the following day. In similar circumstances, this court has held that an attorney cannot be held in contempt for advising a client to disregard an oral order (made outside the presence of the client) since such an order “has no force or effect.” In re Tumpson, 236 Pa.Super. 568, 345 A.2d 774 (1975). Therein we applied the principle stated in In re Garis, 185 Pa. 497, 39 A. 1110 (1898):

... The verbal statement of the court ... is of no consequence whatever. Decrees and orders of courts of record cannot be carried in the breast of the judge who makes them. If any regard is to be had to the regular and orderly conduct of judicial proceedings in such courts, all their orders, rules, and decrees must be recorded.

Appellant was adjudicated delinquent on essentially the same evidence as was held to be insufficient to support an adjudication of contempt in In re Tumpson, supra. If a duly recorded order is required to support an adjudication of contempt, we think nothing less than that can be required to support a violation of a criminal statute.

The adjudication of delinquency is reversed.


author: DEL SOLE, Judge:

text:
    495 A.2d 1384
    Peter J. LIVOLSI and Albert W. Betler, on Behalf of the Laborers District Council of Western Pennsylvania Welfare and Pension Funds and as Agents for Western Pennsylvania Heavy and Highway Construction Advancement Fund and the Laborers District Council of Western Pennsylvania and its Affiliated Local Unions v. Walter CROSBY and Janice Kownacki, His Wife. Appeal of Janice KOWNACKI.
    Superior Court of Pennsylvania.
    Submitted March 11, 1985.
    Filed June 7, 1985.
    Reargument Denied Aug. 19, 1985.

      John P. Eppinger, Erie, for appellant.
    Richard T. Ruth, Erie, for appellees.
    Before DEL SOLE, HESTER and FEENEY, JJ.

       Judge John M. Feeney of the Court of Common Pleas of Allegheny County, Pennsylvania is sitting by designation.

   DEL SOLE, Judge:

On April 19, 1983, the Appellees filed a writ of summons in trespass and assumpsit against the Appellant, Janice Kownacki. She was personally served on April 22, 1983 and on April 29, 1983, Appellees filed and attempted to serve a motion to produce documents on her. After several attempts were made to give notice of the motion by means of certified mail, the Appellant was personally served with the motion to produce records on May 31, 1983.

Appellant failed to comply with the motion to produce nor did she object to the motion. Subsequently, a motion for sanction orders and sanction proceedings were initiated on July 18, 1983. Once again, Appellant did not respond to this motion.

The trial court on September 26, 1983 issued an order pursuant to Pa.R.C.P. 4019(c) directing that the Appellant produce the documents contained in the original motion to produce within seven days or a judgment would be entered against her. Once again, Appellant failed to comply with the order of the court and a rule to show cause why default judgment should not be entered was filed and served on Appellant. The court conducted a hearing on November 25, 1983 at which time the Appellant did not appear and, subsequently, on February 6, 1984 the court entered a final judgment against the Appellant in the amount of $8,422.03. From this judgment of February 6, 1984 the Appellant did not appeal.

On March 12, 1984, the Appellant’s counsel filed a petition to open and/or strike the judgment. The trial court denied the Appellant’s request for relief on June 18, 1984 and Appellant, on July 5, 1984, filed this appeal from the trial court’s order. However, in this appeal the Appellant is not asking us to review the correctness of the trial court’s denial of the petition to open and/or strike. Instead, she challenges the propriety of the trial court’s judgment order as a sanction for her failure to comply with discovery. For the reasons stated, we quash the appeal.

This Court has recently ruled that a judgment which is entered by the trial court pursuant to Pa.R.C.P. 4019(c)(3) as a sanction is not properly challenged by means of a petition to open. Miller Oral Surgery, Inc. v. Donald D. Dinello, D.M.D., 342 Pa.Super. 577, 581, 493 A.2d 741, 743 (1985). There, the Superior Court found that:

“a sanction order entering judgment pursuant to Pa.R. C.P. 4019(c)(3) is not subject to a petition to open. There is no authority in the rules for such a petition, and orderly practice suggests that there should be none.”

In that case, the appeal was found to be interlocutory since the judgment entered was for liability, damages to be determined at a later date.

In the instant case, the trial court entered judgment in a dollar amount so that the judgment was final. Consequently, the appeal time began to run from the date of the entry of the judgment and, since no appeal was taken within 30 days from that date, the instant appeal is not properly before us.

As was said in Miller Oral Surgery, Inc.
“a sanction order entering judgment pursuant to Pa.R. C.P. 4019(c)(3) is, not subject to a petition to open. There is no authority in the rules for such a petition, and orderly practice suggests that there should be none.” In this respect, default judgment entered pursuant to Pa.R. C.P. 4019(c)(3) is comparable to a judgment entered after hearing. A party may request the court to reconsider a sanction order entering a judgment, of course, but neither reconsideration nor refusal to reconsider will transform an interlocutory order into one that is final and appealable.”

Here, the order entered was not interlocutory since it encompasses both liability and damages. However, the reasoning remains the same, where, as here, the action was taken pursuant to Pa.R.C.P. 4019(c) the order is not subject to attack by a petition to open and/or strike a judgment.

Where, as here, a trial court has entered a sanction order for both liability and damages, the judgment then being final, the appropriate method for review would be an appeal within the time prescribed by Pa.R.App.P. 903. The attempt to raise an appealable issue by filing a petition to open the judgment will not be allowed.

Appeal quashed.


author:
BROSKY, Judge:
      HESTER, Judge,

text:
    495 A.2d 1385
    Regina G. FRENCHAK, Formerly Regina G. Garing, Appellant, v. SUNBEAM COAL CORPORATION.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1984.
    Filed July 19, 1985.

      Darrell L. Kadunce, Butler, for appellant.
    Leo M. Stepanian, Butler, for appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   BROSKY, Judge:

This appeal is from judgment on the pleadings in an action to quiet title. Appellant contends that the instant coal lease is no longer in effect. We agree and, accordingly, reverse.

The lease provision in question provides that:
This lease shall continue for a period of five (5) years from the effective date hereof or until all of the coal which the coal operator determines can be mined, removed and sold with economy and profit has been or so long as minimum advance royalties are being tendered by the Coal Operator.

The court below interpreted this clause to mean that appellee could continue to have the lease in effect indefinitely into the future by virtue of paying minimum advance royalties. Indeed, the instant lease has been in effect for ten years and no coal has ever been mined. We cannot accept this contraction of the lease.

The lease provides for termination upon the happening of three events: (1) Passage of five years; (2) Determination by the coal operator that no more coal can be mined, removed, and sold profitably; (3) Cessation of payment of minimum advance royalties by the coal operator. By providing, however, for termination upon the happening of (1) “or” (2) “or” (3), the lease must be interpreted as meaning that it shall terminate upon the happening of any one of the three conditions.

Words are to be given their obvious and plain meaning unless the intention is clear that a different meaning is required. Davis v. City of Philadelphia, 153 Pa.Super. 645, 650, 35 A.2d 77, 80 (1943). The pertinent dictionary definition of “or” is “choice between alternative things, states, or courses.” Webster’s Unabridged Third New International Dictionary.

In Davis, the appellant argued that the word “or” in a statute should be interpreted in the conjunctive in the phrase “occupied by ... or under his control,” making both control and occupancy necessary. The court held otherwise, giving the word “or” its ordinary disjunctive meaning. The same reasoning applies in the case before us. To find otherwise would require interpreting the lease in a manner which would require absurd and unconscionable results in different factual situations. For example, construing the lease as continuing in effect until all three of the conditions have been met (as the lower court evidently construed it in order to reach the result it reached), a coal operator might never pay any royalty, yet the lease would continue in effect until at least five years had passed and the coal operator had made a determination that coal could no longer be mined, removed and sold profitably — a determination that might never be made by the coal operator. Another example would be if the coal operator made the determination that coal could no longer be mined, removed and sold profitably at the end of six months, and also quit paying the royalties; under the lower court’s construction, the lease would nevertheless remain in effect for the balance of the five years.

Giving the word “or” its ordinary meaning, we find that the lease provides for termination upon the happening of any one of the three conditions. Since five years have passed since the effective date of the agreement, the lease is no longer in effect, and the action to quiet title should have terminated in appellant’s favor.

Another, independent, consideration leads to the same conclusion. Under the lease as interpreted by the trial court, appellee could commence strip mining operations at his discretion as long as he had paid the minimum advance royalties. As a consequence, appellant would be financially unable to use the land for anything but certain types of agricultural purposes. The land could only be utilized as fields to grow crops. Even this limited use could not include irrigation or the planting of delayed harvest crops such as orchards, vines, etc. The reason for this is clear. Any investment in the use or development of the land — including buildings, irrigation systems, trees — could be scooped up by appellee’s giant coal shovel at any time. With this possibility always present, appellant could not develop his land or utilize it in any but a very limited fashion. This position is not favored in law. “It is against the policy of the law to unduly restrict the use of land so that the owner is deprived of the usual rights, privileges, and incidents of ownership and possession.” Mahrt v. First Church of Christ, Scientist, 142 N.E.2d 567, 578, 75 O.L.A. 5, 19 (1955).

The Supreme Court of Oregon has also spoken on this point: “[B]ut the rule is that, because of the public policy favoring untrammeled land use, such restrictions are construed most strongly against the covenant and will not be enlarged by construction.” Aldridge et ux. v. Saxey et ux., 242 Or. 238, 242, 409 P.2d 184, 186 (1965). Construing the lease as appellee would have us do results in this severely circumscribed useability of the land. Thus, for this additional reason, we find the lease properly interpreted as appellant suggests. A third related reason also favors this interpretation.

Under certain circumstances, the law will imply a duty to mine, even in the face of minimum advance royalties. In Pennsylvania law, a presumption is created by this form of contract.

When this contract was entered into, the defendants were the owners of the coal under seventy-five acres of land; the coal was in place; they wanted to get and enjoy the value of it; if plaintiff had wanted to buy and indefinitely leave it in place for future operation, each party would have dealt on the basis of a lump sum for the coal under the tract, or at so much per acre for it, and would have arranged for payment, just as they would have done if the subject of the contract had been land. Each might, as preliminary to the contract, have sought by surveys to ascertain the proximate quantity in place, and thus have fixed in their judgment the value, but the number of tons and value per ton would have been no express part of the written contract; a round sum for the whole or per acre would have represented the price the sellers were willing to accept and the buyers to give. But although the contract was a sale of the coal in place, they did not bargain on the basis of a lump sum. Why? Because the plaintiff was not a purchaser of coal or coal lands to hold for appreciation in price, in view of a future sale for a round sum or a lease to others at a profit; it was an operator who desired to mine and market the coal at a profit, intending to operate immediately; therefore, as in all such operations, it is more convenient to pay while the operation is going on, for it involves an expenditure of far less capital, consequently a less fixed charge.

The Lehigh & Wilkes-Barre Coal Co. v. Wright et al., 177 Pa. 387, 397-8, 35 A. 919, 921 (1896). See also Powell v. Burroughs, 54 Pa. 329 (1867).

This implied duty to mine is dependent upon the amount of the minimum advance royalty vis-a-vis the potential income to be produced if the property is mined. The logic behind this is that a substantial minimum advance royalty will evince the intent of the parties to consider that royalty an alternate form of performance. A minimal minimum advance royalty will, to the contrary, evince the intent of the parties to consider that royalty a temporary, stop-gap measure. See Reis v. Norton Coal Co., 346 S.W.2d 8 (Ky.Crt.App.1961); Weatherly v. American Agricultural Chemical Co., 16 Tenn.App. 613, 65 S.W.2d 592 (1933); In re Sixteen to One Mining Corp., 9 B.R. 636 (U.S. Bankruptcy Crt.D. of Nev.1981); Niles Land Co. v. Chemung Iron Co., 234 F. 294 (8th Cir.1916); Vitro Mineral Corp. v. Shoni Uranium Corp., 386 P.2d 938 (Wyo.1963) (substantial minimum advance royalties). Bennett v. Hebener, 56 Or.App. 770, 643 P.2d 393 (1982); Killebrew v. Murray, 151 Ky. 345, 151 S.W. 662 (1912) (minimal minimum advance royalties).

Two passages dealing with minimum advance royalties are worth quoting for their explanation of the law.

Generally, all leases of land for the exploration and development of minerals are executed by the lessor in the hope and upon the condition, either express or implied, that the land shall be developed for minerals; and it would be unjust and unreasonable, and contravene the nature and spirit of the lease, to allow the lessee to continue to hold under it any considerable length of time without making any effort at all to develop it according to the express or implied purpose of the lease; and, in general, while equity abhors a forfeiture, yet, when such a forfeiture works equity, and is essential to public and private interests in the development of minerals in land, the landowner, as well as the public, will be protected from the laches of the lessee and the forfeiture of the lease allowed, where such forfeiture does not contravene plain and unambiguous stipulations in the lease.

11 L.R.A. (N.S.) 417.

It would be unjust, unreasonable, and countervene the nature and spirit of the lease, to allow the lessee to continue to hold his term for a considerable length of time, without making any effort to work the mine. Such a construction of the rights of the parties would enable him to prevent the lessor from getting his royalties under the express covenant to pay for the same, and deprive him of all opportunity to work the mine himself, or permit others to do so. The law does not tolerate such practical absurdity, nor will it permit the possibility of such injustice. It is of the essence of the lease, necessarily implied, that the lessee shall work the mine with reasonable diligence, or surrender the lease.

George v. Jones, 168 Neb. 149, 164, 95 N.W.2d 609, 617 (1959).

The law in this Commonwealth also finds an implied duty to mine. In Aye v. Philadelphia Co., 193 Pa. 451, 44 A. 556 (1899), a lease provided that a test well would be drilled within six months “and if oil should be found in paying quantities to complete a well on the leased premises within the next six months or pay a yearly rental per acre for the delay.” Aye, supra, 193 Pa. at 455, 44 A. 556. A test well was drilled, but was dry. The court found an implied duty to drill other test wells. Aye is not, of course, totally on point with the instant case. It does stand, however, for a predilection in this Commonwealth which favors development and the consequent implied duty to mine. Together with Lehigh, supra, Aye persuades us that our holding today is but an application of settled doctrine to a slightly different factual context.

Judgment reversed and remanded to the trial court for entry of judgment in favor of appellants.

HESTER, J., files a concurring statement.

HESTER, Judge,

concurring:

I concur in the result reached by the majority. I am of the opinion that the lease terminated after the passage of five years.

      . The case of Chauvenet v. Person, 217 Pa. 464, 66 A. 855 (1907), relied upon by both parties, is not on point. The lease in that case contained a forfeiture clause which, not surprisingly, is not present here.

      . This duty has been found in oil and gas leases as well as other types of mining situations. Richfield Oil Corp. v. Bloomfield, 103 Cal. App.2d 589, 229 P.2d 838 (1951); Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711 (1934). However, because oil and gas can be extracted from another site, there is a particular time value in extracting that sort of resource. We do not find those cases persuasive on that account. (We note that this distinction was not meaningful to the court in Russell v. Johns Manville Co., 20 C.A.3d 405, 97 Cal.Rptr. 634 (1971).


text:
    495 A.2d 1389
    Harold DULANEY, Michael Baker and Dorothy L. Baker, His Wife v. ROHANNA IRON AND METAL, INC., Andrew K. Rohanna and Robert E. Rohanna, Appellants.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed July 19, 1985.

      David C. Hook, Waynesburg, for appellants.
    Ewing B. Pollock, Waynesburg, for appellees.
    Before OLSZEWSKI, HESTER and SHIOMOS , JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

This matter comes before us on appeal from the order entered July 11, 1983 in the Court of Common Pleas of Greene County. The lower court granted plaintiffs-appellees the right of ejectment, thus extinguishing appellants’ claim of prescriptive use of a right of way and parking space on plaintiffs-appellees’ property. This appeal followed.

The controversy centers on 2.692 acres of land situate in Franklin Township, Greene County. A railroad right-of-way fronts the tract’s northern edge. To its west, Jennings Avenue, a dedicated street, runs north and south. By deeds dated October 3, 1951 and March 9, 1953, appellee Harold Dulaney, acquired title to the tract.

By deed dated March 15, 1953, Dulaney conveyed 2.123 acres of the original tract to A.K. Rohanna, father of appellants Andrew K. Rohanna and Robert E. Rohanna. This parcel (the “Rohanna property”) had formed the southern part of the original tract. Although the Rohanna property did not abut Jennings Avenue, appellants could reach the avenue by an access lane across the northern edge of the Dulaney property.

On August 8, 1957, conveyance of another parcel of land extended the Rohanna property line west to Jennings Avenue.

Both properties enjoyed commercial use: Dulaney’s as a slaughter house and Rohanna’s as an iron and metal business. From time to time, Rohanna’s employees would park their vehicles on a parking lot at the southern end of the Dulaney property.

On September 15, 1977 Dulaney executed an Article of Agreement with appellees Michael A. Baker and Dorothy L. Baker. When appellants asserted a right to use the access road and the parking lot, Bakers joined with Dulaney this action in ejectment. The lower court, after a hearing and oral argument, entered an order directing ejectment of appellants from the Baker/Dulaney premises. Their exceptions denied, appellants challenge the adverse ruling.

Appellants claim two prescriptive easements, one for access and one for parking. They argue that the access easement, created by implication, survived the establishment of an alternative means of access. Appellees concede the existence of the original easement. They argue, however, that an easement by necessity is extinguished when the necessity from which it resulted ceases to exist. See, e.g., Wissler v. Hershey, 23 Pa. 333 (1854). We agree. Appellants, the purchasers, were granted by implication the access easement which was “necessary for the reasonable use of the property granted.” See Black’s Law Dictionary, Fifth Edition. Conveyance of an adjacent lot in 1957 eliminated appellants’ need for the access easement. Appellants cite Heffley v. Lohr, 149 Pa.Super. 586, 27 A.2d 275 (1942) for the proposition that acquisition of an alternate access route does not extinguish the easement created by implication. Appellant misreads Heffley. In Heffley, the court found that the disputed access easement offered the only “open, visible, permanent, continuous and convenient means thereto.” The court, on those facts, held the mere possibility that an alternative access route could be constructed did not destroy the implied easement. In the instant case, the admitted existence of an alternate access route should lay rest to appellants’ claim.

Neither has appellants’ use ripened through prescription. Proof of prescriptive use must be clear and positive. The use must be adverse, open, notorious and uninterrupted. Stevenson v. Williams, 188 Pa.Super. 49, 145 A.2d 734 (1958). The lower court found insufficient evidence to establish appellants’ adverse use of the access easement. Because their use was, at least until 1977, permissive, appellants’ claim of a prescriptive access easement must fail.

On the same grounds, appellants’ claim of a prescriptive easement fails. At the hearing, appellee, Harold Dulaney, testified that he never objected to appellants’ parking on his property. He only asked them to move the equipment if it was in the way. Clearly, use by the owner’s indulgence does not establish the adverse interest necessary to gain a property right by prescription. See Shinn v. Rosenberger, 347 Pa. 504, 32 A.2d 747 (1943).

After carefully reviewing the record and the briefs in this case, we affirm the order of the Honorable Glenn Tooth-man, President Judge of the Court of Common Pleas of Greene County.

Order affirmed.

      . Appellants’ right to use the access lane was made explicit in the March 18, 1953 deed. It recited a clause to the effect that the conveyance was subject to existing rights of way including a pipe line, a railway and “other easements now in force” on the original property.