author: POPOVICH, Judge:

text:
    640 A.2d 934
    COMMONWEALTH of Pennsylvania, Appellee, v. Theresa FERINO, A/K/A Delores Cullin, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1993.
    Filed April 14, 1994.

      Steven R. Tabano, Pittsburgh, for appellant.
    Kemal A. Mericli, Sandra Preuhs, Asst. Dist. Attys., Pittsburgh, for Com., appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

We are asked to review the judgment of sentence (1-2 years imprisonment, to be followed by a consecutive term of 4 years probation) for ethnic intimidation and terroristic threats by the appellant, Theresa Ferino, a/k/a Delores Cullin. We reverse.

Viewing the evidence in a light most favorable to the verdict-winner, as well as all reasonable inferences to be drawn therefrom, it appears that at approximately 3:00 a.m. on the 31st day of July, 1992, Emmitt Harris (a 20-year-old black male) and his friend of some 3 years Matthew Chapman (a 17-year-old white male) arrived at the Arlington Deli on the South Side of Pittsburgh.

The Deli had closed at 9:00 p.m. and Harris, as the nighttime stock boy, had asked Chapman to assist him in cutting boxes and depositing the refuse in the dumpster in the rear of the establishment. After the two had disposed of a number of the boxes, the two were en route to the dumpster when the appellant was observed “walking up towards” them. Both had seen her patronizing the Deli and Harris knew her as a resident of the area.

As the appellant walked toward Harris and Chapman, and at a distance of about 50 yards, she extended her arms and said: “I’m going to kill you, you f — king nigger, and fired two shots.” Nothing was said by Harris or Chapman to the appellant prior to or after the shooting. The two were so frightened that they ran into the Deli and phoned “911”. More specifically, the events during the vocalization of the appellant’s statement were described by Harris as follows:

She [the appellant] was holding a gun and like taking steps towards us, coming — like she was coming up the street towards the deli, and she fired two shots. Me and Matt ran back into the store.[ ] [Emphasis added]

The police arrived within 30-45 minutes of the call and found the appellant in the street. However, no arrest was made of the appellant at that time. Rather, it was not until Harris phoned Pittsburgh police officer Gerald Watkins during the 1st week of August, 1992, out of which a report was filed and forwarded to Watkins, that he and Chapman were interviewed, a complaint was filed and a search warrant was issued on August 12th leading to the seizure of a .38 caliber Taurus handgun from the appellant’s residence (located 5-6 houses away from the Deli). Her arrest occurred on the same day as the search of her premises.

At the non-jury trial before the Honorable James F. Clarke, Harris’ account of what transpired was corroborated by Chapman. For example, Chapman testified that the appellant “was walking towards us ... and holding the gun” when she made the threatening remark. Chapman also indicated that the appellant “point[ed] the gun” before firing it, but he did not state at whom the weapon was aimed. Yet, Chapman, as well as Harris, became “scared” and “darted” back into the store. Further, like Harris, Chapman disclosed that he had seen the appellant in the Deli, but he never had any problems with her.

After the Commonwealth rested, the appellant took the stand and denied ever brandishing or firing a weapon at Harris or calling him a “nigger”. In fact, it was the appellant’s contention that she was sitting with a “neighborhood watch” group next door to her home during the period preceding the arrival of the police. This was buttressed by 3 of her neighbors (Maumann, Carney & Weidenhof) and the person with whom she shared her home (McCoy). She left the trio only to obtain a drink from her home, and, when she exited her premises, two police officers confronted her for questioning. She denied any involvement in the incident.

At the close of testimony, the appellant was found guilty of ethnic intimidation and terroristic threats. Post-trial motions were filed, denied and sentencing followed. A motion to withdraw by trial counsel was granted and new counsel, unassociated with prior counsel, was appointed. This appeal ensued raising questions concerning the sufficiency and weight of the evidence, as well as a claim that trial counsel was ineffective.

On the ethnic intimidation charge, the statute defines the offense thusly:

(a) Offense defined. — A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under section 3503 (relating to criminal trespass) or under section 5504 (relating to harassment by communication or address) with respect to one or more members of such group or their property.
* * * Hi *
(c) Definition. — As used in this section “malicious intention” means the intention to commit any act, the commission of which is a necessary element of any offense referred to in subsection (a) motivated by hatred toward the race, color, religion or national origin of another individual or group of individuals.

18 Pa.C.S.A. § 2710(a), (c).

It is the appellant’s contention that she was charged with ethnic intimidation merely because she used the word “nigger” during the shooting. According to the appellant, to uphold her conviction on this charge would be to “criminalize the use of a particular word, even [though] used while in the commission of a crime.” She would have us focus on the “crime itself’ in determining whether it was racially motivated. By doing so, she argues, the evidence “clearly showed that the crime could only have been committed as the result of ill will between the neighbors and the black victim and his white employer. Therefore, the evidence was insufficient to show that the purported crime was directed at the victim because he was black. Without more than the use of the word ‘nigger’ ..., the evidence was insufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crime of which [s]he stands convicted.” Appellant’s Brief at 9-10. We disagree with the substance but not with the result of the appellant’s argument.

In Commonwealth v. Rink, 393 Pa.Super. 554, 574 A.2d 1078 (1990), allocatur denied, 526 Pa. 654, 586 A.2d 922 (1991), in the only other case to date to reach the appellate courts on the charge of ethnic intimidation, this Court affirmed the judgment of sentence.

In Rink, the victim, his wife and four children were the only black individuals living in the lower Frankford section of the City of Philadelphia for 2 years. During this time there had been no incidents of racism against the victim or his family. As recounted by the Rink Court, the facts were as follows:

On November 6, 1987, at about 10:00 P.M., Mr. Snow was driven home by his friend Al Bendzynski, a co-worker, with whom he intended to share the six pack of beer he had brought home with him. There was a crowd of teenagers across the street in front of the Snow residence playing a radio loudly. Mr. Snow asked them to hold the noise down. Moments after entering his home, Mr. Snow heard a knock at the front door. The group of teenagers was now at his front steps. Believing his wife and children to be asleep upstairs, he shut the door behind him to confront the knocker. A two-by-four hit him at the thigh, knocking him off the step. Armed with sticks, the crowd of about sixteen or seventeen white youths then started to pummel him on the arms, head, and body. They threw objects at his home, breaking windows. Appellant was urging the group to “kill the nigger; get him.”
When Mrs. Snow came to the door, her husband was on the ground surrounded by a group of young white males, wielding two-by-fours, some holding on to her husband, others tossing beer bottles at them and the house, cussing, yelling that they hated niggers, and “kill a couple of ... niggers.” Prominent in the group, holding a board and urging the group to “kill the niggers” was the appellant. The appellant punched Mrs. Snow and called her a “bitch” and “nigger.” The crowd of youths disbursed as the police arrived on the scene. At the end of it all, Mr. Snow was bleeding, suffering from contusions of arms, legs, and body. The housefront was in shambles with both first and second floor windows shattered including the windows of the living room located six feet behind the porch windows.

393 Pa.Super. at 557, 574 A.2d at 1080. After the appellant’s conviction, an appeal was perfected and he challenged, inter alia, the sufficiency of the evidence as to ethnic intimidation and the court sentencing him on two charges of ethnic intimidation. In finding the claims to be meritless, this Court noted that the appellant had denied that the incident was racially motivated. It was the appellant’s position that the victim’s coworker (Mr. Bendzynski) had engaged in a friendly discussion with the appellant’s group, but upon leaving Bendzynski “patted” one of the teenagers on the cheek. This offended the youth and prompted the person to go to the victim’s home and seek an apology from Mr. Bendzynski.

We acknowledged that there was evidence on the record supportive of the appellant’s version of the events. However, we found “overwhelming” evidence that the victim, and not Mr. Bendzynski, was the object of the teenagers’ wrath. For example, in addition to the victim and his wife being assaulted, their home was extensively vandalized. Yet, if one were to believe the appellant’s view of the disgruntled teenager seeking retribution from Mr. Bendzynski, amazingly Mr. Bendzynski and his vehicle (situated outside the victim’s home) remained unscathed in the assault. Even Mr. Bendzynski conceded at trial that “the teenagers did not seem to want him, but were after [the victim].” Further, no other slurs were directed at Mr. Bendzynski. Rather, they were aimed directly at the victim and his wife. As such, this Court dismissed the appellant’s claim that the ethnic epithets were not racially motivated and the product of emotionally charged behavior.

Instantly, unlike in Rink, we had the use of a single racial word preceding the discharge of a weapon in the direction of not only Harris but his white companion (Chapman) as well. This behavior by the appellant was sufficiently intimidating that it “frightened” Chapman as well as Harris to flee the scene in tandem to seek the safety and security of the Deli.

It is to be recalled that both Harris and Chapman were consistent in their accounts painting a picture of the appellant as someone walking toward the two, with arms outstretched and weapon in hand, but neither testified at whom the weapon was directed either prior to, during or after the shooting.

We, as an appellate court, do not sit in a position of substituting our judgment for that of the finder-of-fact in matters of credibility, a role prohibited for us to undertake as an invasion of the credibility-finder’s bailiwick — in this case it was the judge in a bench trial. See Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212, 1213 (1986), quoting Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983) (“When reviewing the sufficiency of the evidence, an appellate court may not substitute its judgment for the [trier-of-fact’s].”).

Our role, as stated previously, is to view the evidence in a light most favorable to the verdict winner, drawing all reasonable inferences in its favor, to determine if the finder-of-fact could reasonably have concluded that all the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989).

Initially, reading Section 2710 in a commonsense fashion, so as to give effect to all of its provisions as intended by the Legislature (see 1 Pa.C.S.A. § 1921), an offense needs to be committed under the Crimes Code (which in this case is terroristic threats). In the course of effectuating the commission of such a crime, the actor must manifest a malicious intent toward the intended victim and have as its motivation the hatred of the victim’s “race, color, religion or national origin.” Section 2710(a), (c).

Instantly, it cannot be disputed that, viewed in a vacuum (i.e., without the utterance directed as Harris’ race), the appellant’s aiming and firing a weapon at and in the direction of Harris would not have taken on the prohibited conduct of ethnic intimidation. Neither do we believe that the line of criminality proscribed by Section 2710 was crossed when the appellant aimed and fired a weapon in the direction of Harris and Chapman preceded by the threat (“I’m going to kill you, you f — -king nigger”). This was insufficient to evidence an intention malicious in nature and having as its origin racial prejudice which evoked or was the underlying cause for the prohibited behavior. In other words, the singularity of the act committed by the appellant, directed as it was against both Harris and his companion (a Caucasian), the antecedent of which was neither a harsh word, gesture nor conduct exhibited between the victim and the appellant, we do not believe rises to the proof-level sufficient to constitute a contravention of the ethnic intimidation statute. Stated otherwise, the appellant’s conduct was isolated in nature, brief in its execution and unattended by any trappings consistent with a finding that the terroristic threat had an origin of malicious intent “motivated by a hatred toward race, color ... or national origin” of the victim. Contrast Commonwealth v. Rink, supra, wherein the ethnic epithets were accompanied with multiple assaults upon the victim and his wife, property damage to their home, all the while the alleged object of the affray and his property survived unscathed and unapproached by the appellant and his cohorts.

Therefore, based on the unique facts at bar and for the reasons stated herein, we fail to discern such a malevolence on the part of the appellant directed specifically at the victim became of his race to justify an affirmance of the judgment of sentence for ethnic intimidation. However, without extended discussion, we hold the evidence (both in quality and quantity) to be sufficient to sustain the verdict of guilty of terroristic threats so as to discount the appellant’s claim that a new trial is imperative. See generally Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973); Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991) (en banc), allocatur denied.

The last of the appellant’s complaints assigns trial counsel with ineffectiveness in failing to call the police officers who initially iñvestigated the shooting on the evening in question on the basis that their testimony was “vital” to determining the credibility of Harris and Chapman. More specifically, the appellant avers that:

The evidence these police officers would have produced includes whether shell casings or bullet holes were found at the scene, the emotional state of the actor[ ], and why they felt a report did not need to be filed nor anyone arrested.

Appellant’s Brief at 11. Inasmuch as the appellant’s contention deals with the terroristic threat conviction, our ruling that the evidence was insufficient to sustain the ethnic intimidation charge, requires that we address the ineffectiveness of counsel argument.

To assess a claim of ineffectiveness of counsel for failure to call or interview possible witnesses, a defendant must establish (1) the identity of the witnesses; (2) that counsel knew of their existence; (3) that the evidence to be elicited from the witnesses would have been material; and (4) the manner in which the absent witnesses would have been helpful to the case. Commonwealth v. Glessner, 337 Pa.Super. 140, 486 A.2d 521, 524 (1985).

Our examination of the appellant’s defense discloses a scenario in which 3 neighbors and a roommate placed her in their company immediately preceding the arrival of the police at the scene — alibi defense. Consequently, we fail to understand the materiality of having the police officers appear and testify to their failure to locate any shells at the scene or why the appellant was not arrested or her emotional state, all of which relates to matters occurring after the shooting testified to by Harris and Chapman.

We find that the evidence of guilt (as to the identity of the appellant as the perpetrator) related to a point in time prior to the arrival of the police sought to be produced by the appellant to bolster her credibility (and undermine Harris’ and Chapman’s). As such, the crux of the case being a question of credibility as to the only remaining charge of terroristic threats, which the trial court addressed in its opinion, we cannot fault trial counsel for failing to secure the production of the officers at trial.

Finding the ineffectiveness of counsel claim lacking in arguable merit, we will not label trial counsel inept for failing to do a meritless act. Commonwealth v. Marsh, 388 Pa.Super. 610, 566 A.2d 296, 302-303 (1989); Commonwealth v. Flis, 369 Pa.Super. 275, 535 A.2d 157, 160 (1987).

Consistent with our determination that the evidence was insufficient to sustain the conviction for ethnic intimidation, we reverse the judgment of sentence for such offense and let stand the conviction for terroristic threats. However, we remand for re-sentencing on the conviction for terroristic threats since it appears that the sentencing format of the court below may have been compromised with our reversal of the ethnic intimidation conviction. The linkage of the two offenses may have prompted the court to impose a probationary term of 4 years for the terroristic threats conviction because a prison term had already been assigned to ethnic intimidation. Thus, the court below should be given the occasion to alter a sentence imposed as a unit to achieve its sentencing scheme. See Commonwealth v. Kotz, 411 Pa.Super. 319, 601 A.2d 811 (1992).

Judgment of sentence reversed; case remanded for a procedendo made reference to herein; jurisdiction is relinquished.

KELLY, J., concurs in the result.

      . On cross-examination, Harris indicated that the appellant fired the weapon at him, but he could not recall whether one or two shots had been fired. The judge (sitting as the trier-of-fact) concluded that 2 shots had been fired at Harris. This prompted Chapman as well as Harris to run into the Deli and call police.

      . Harris testified to going to No. 3 police station in Pittsburgh to file an incident report the night of the shooting, but, allegedly, he was told by an officer Reed "that he’s not taking a police report, to get out of his face, and that [Harris] should have got[ten his] head blown off.”

      . Harris testified to never having any problems with the appellant before the July 31st shooting. Although Harris did offer, without elaboration, that the appellant and his boss (Anthony Falvo) "had problems.”

      . We may not speculate as to the substance of Harris' reference to some type of discord or friction between the appellant and Harris’ employer (Anthony Falvo) since the court, as the trier-of-fact, made no mention of the same in its account of the facts it chose to believe.
      It may be observed that the appellant’s testimony of Harris’ presence at the Deli being detected because of his use of an alarm system to secure his vehicle (a "beeping” sound indicated that it had been activated) was made reference to by the court as "loud and disturbing noises ... [of] frequent occurrences at a time of early morning and a source of disturbance and annoyance to all nearby neighbors.” Trial Court Opinion at 3.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    640 A.2d 939
    Mario LUDMER v. Maurice A. NERNBERG, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1994.
    Filed April 21, 1994.

      James R. Cooney, Pittsburgh, for appellant.
    Seymour A. Sikov, Pittsburgh, for appellee.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge.

Attorney Maurice A. Nernberg, Jr., appeals from the judgment entered following a jury award of $25,000 in compensatory damages and $50,000 in punitive damages to Mario Ludmer, M.D., in an action brought pursuant to the Wrongful Use of Civil Proceedings Act (the Act), 42 Pa.C.S. § 8351 et seq. We affirm.

In June 1984, Ludmer brought this civil action seeking damages pursuant to the Act, following the entry of summary judgment in his favor in an earlier case instituted by Nemberg against Ludmer, docketed at GD79-6085 in the Court of Common Pleas of Allegheny County, affd, Nernberg v. Ludmer, 313 Pa.Super. 596, 460 A.2d 847 (1983), appeal denied, September 14, 1983.

Nernberg filed preliminary objections alleging that since his action preceded the effective date of the Act, February 19, 1981, the Act did not apply. The trial court granted Nemberg’s preliminary objections and dismissed Dr. Ludmer’s complaint. Allegheny County Court of Common Pleas Docket No. G.D. 84-11881. On appeal, we reversed. Ludmer v. Nernberg, 355 Pa.Super. 639, 509 A.2d 1325 (1986). The Supreme Court of Pennsylvania affirmed our determination, holding that Nernberg’s actions were subject to the Act. Ludmer v. Nernberg, 520 Pa. 218, 553 A.2d 924 (1989). The underlying facts of this case, which are undisputed, were summarized as follows:

[Dr.] Mario Ludmer, [a board certified neurosurgeon,] was the treating physician for one of [Nernberg]’s clients, [Margaret O’Toole,] in a personal injury lawsuit. In preparation for the litigation, [Nernberg] had requested that Dr. Ludmer prepare a written report of his examination and a diagnosis of the client’s medical condition. Dr. Ludmer submitted a report and offered to testify at trial if necessary to clarify his position. During the personal injury trial, the defendant’s wife became ill, resulting in the plaintiff instructing Nernberg to negotiate a settlement rather than seeking a continuance.
After settling the personal injury action, [Nemberg] then commenced a lawsuit against [Dr. Ludmer] claiming that [Dr. Ludmer] did not properly cooperate with him in the preparation of the personal injury action and that [Dr. Ludmer] had interfered with the contractual relationship between [Nemberg] and his client. As a result of [Dr. Ludmer]’s actions, [Nernberg] alleged that he was forced to settle the personal injury action for less money. Following the completion of discovery, [Dr. Ludmer] filed a motion for summary judgment which was granted.

Id. at 219-220, 553 A.2d at 925. Following the subsequent jury trial in the present case, Ludmer was awarded damages of $75,000. This appeal followed the denial of Nernberg’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

Our standard of review of an order denying judgment n.o.v. is limited: we must determine whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). See also Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967), appeal after remand, 430 Pa. 255, 242 A.2d 460 (1968); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 64-65, 486 A.2d 478, 480 (1984). In so doing, we must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence. We also must reject all unfavorable testimony and inferences. Ingrassia, supra. See also Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978). Judgment n.o.v. may be granted only in clear cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). We note that judgment n.o.v. may not be employed to invade the province of the jury. Thus, questions of fact must be resolved by the jury. Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).

Our standard of review of an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 413, 521 A.2d 413, 420-21 (1987); see also Solomon v. Baum, 126 Pa.Cmwlth. 646, 560 A.2d 878 (1989). The trial court’s order must be affirmed if the record supports the decision of the trial court. See Stevenson, supra.

On appeal, Nernberg raises the following issues:

1. Did Ludmer fail to prove a prima facie case for wrongful use of civil proceedings?
2. Did the trial court improperly exclude evidence of rulings favorable to Nernberg in the underlying case?
3. Did the trial court err in permitting Ludmer’s counsel to testify and to inject his personal opinions into the case?
4. Did the trial court improperly permit Ludmer’s expert to testify beyond his report, and to express his opinion on the ultimate issue in the case?
5. Did the trial court err in submitting the issue of punitive damages to the jury?
6. Was Nernberg otherwise deprived of a fair trial?

Initially, Nernberg contends that Ludmer failed to prove a prima facie case for wrongful use of civil proceedings. We disagree. Wrongful use of civil proceedings “is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause.” Rosen v. Bank of Rolla, 426 Pa.Super. 376, 380, 627 A.2d 190, 191 (1993), citing Shaffer v. Stewart, 326 Pa.Super. 135, 138, 473 A.2d 1017, 1019 (1984). This tort is now a statutory action and has been codified at 42 Pa.C.S. § 8351, as follows:

§ 8351. Wrongful use of civil proceedings
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

42 Pa.C.S. § 8351(a)(1)-(2).

To prevail in an action for wrongful use of civil proceedings, a plaintiff must prove: (1) the proceedings terminated in his or her favor; (2) the defendant caused those proceedings to be instituted without probable cause; and, (3) malice. Rosen, supra, 426 Pa.Super. at 382, 627 A.2d at 191-92. The statutory definition of this tort agrees with the Restatement (Second) of Torts § 674. Robinson v. Robinson, 362 Pa.Super. 568, 574, 525 A.2d 367, 370 (1987); Shaffer v. Stewart, supra, 326 Pa.Super. at 140, 473 A.2d at 1020.

As the trial court correctly noted, for Nernberg to succeed on a motion for judgment n.o.v., he must convince the trial court that Dr. Ludmer had not satisfied each element of the cause of action. The plaintiffs burden of proof is as follows:

(1) The defendant has procured, initiated or continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in [the statute].

42 Pa.C.S. § 8354.

The trial court analyzed this issue as follows:

The jury found that Nemberg did not have probable cause to initiate a suit against Ludmer solely for the purpose of collecting a fee which [Nernberg] claimed was due him as a result of a third party action in which he represented a plaintiff (O’Toole) against a defendant. The evidence was clear that O’Toole never authorized the suit against Ludmer and that she never desired to be a party to that suit filed by Nernberg. In addition, Nemberg continued to prosecute that action even after the Court of Common Pleas of Allegheny County found that there was no merit to his claim and that the claim was personal to O’Toole. After receiving the Opinion to that effect from the Court, Nemberg continued to press the issue to the Superior Court which held that his claim against Ludmer was totally without merit. Notwithstanding the decision of the Superior Court, Nernberg petitioned for Allowance of Appeal in the Supreme Court which was summarily denied.

Trial Court Opinion of the Honorable Gerard M. Bigley, dated August 23, 1993, at 3-4.

Granting Dr. Ludmer, as the verdict winner, the benefit of every inference which reasonably may be drawn from the evidence and rejecting all unfavorable testimony and inferences, we agree with the trial court and conclude that there was sufficient competent evidence to establish a prima facie case. Clearly, as the trial court determined, the jury was justified in its belief that Ludmer had met his burden to prove each element required by § 8354. Id.

Nernberg raises an additional argument. Nernberg asserts that Dr. Ludmer offered “no competent evidence whatsoever” that Nernberg acted for an improper purpose in the underlying case. Appellant’s Brief at 16. As Ludmer observes in his brief at 13, Nernberg’s unstated argument is that improper purpose can be established only by the defendant “confessing” that he acted for an improper purpose. Such arguments are not only unseemly, but contrary to the settled law of this Commonwealth.

In a similar case, Shaffer v. Stewart, supra, this Court found that there was evidence from which the jury could infer that the defendant acted for an improper purpose. There, the defendant, an attorney, after agreeing voluntarily to the dismissal of his clients’ claims, knew that the persons on whose behalf he filed a caveat to a will had no standing to contest the probate of the decedent’s will. Id. at 142, 473 A.2d at 1020-21. Cf., Panitz v. Behrend, 429 Pa.Super. 273, 632 A.2d 562 (1993) (allowing a party to litigation to contract with an expert witness and thereby obligate the witness to testify only in a manner favorable to that party on threat of civil liability would be contrary to public policy).

Here, Nernberg had previously advised Mrs. O’Toole by letter that he would take no action without her consent; this letter implicitly acknowledged that her consent was required to bring an action against Dr. Ludmer. However, Mrs. O’Toole responded that she would not be a party to such an action. N.T., November 9-10, 12, 1992, at 290-92. Nernberg brought the suit against the express wishes of his client. Indeed, this is evident from Nemberg’s testimony: Nernberg testified that (1) Mrs. O’Toole did not know that the underlying action had been filed by Nernberg against Dr. Ludmer at the time it was filed; (2) it was three to four months later that she discovered Dr. Ludmer had been sued; (3) if consulted she would not have joined such an action; (4) she had no claim against Dr. Ludmer; and, (5) she was never asked to be a party to the action. Id. at 277-92. Moreover, it is the function of the jury to evaluate evidence adduced at trial to reach a determination. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984). Where, as here, a verdict is based on substantial, albeit, conflicting evidence, it is conclusive on appeal. Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985), appeal denied, October 30, 1986. It is not the role of an appellate court to pass on the credibility of witnesses or to act as the trier of fact; we will not substitute our judgment for that of a fact-finding jury. Id.

Next, Nernberg contends that the trial court improperly excluded rulings favorable to him in the underlying case. Questions concerning the admission, or the exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Engle v. West Penn Power Co., 409 Pa.Super. 462, 598 A.2d 290 (1991), appeal denied, 529 Pa. 669, 605 A.2d 334 (1992) (table); Concorde Investments, Inc., v. Gallagher, 345 Pa.Super. 49, 497 A.2d 637 (1985). Nonetheless, Nernberg argues that in the underlying case the dismissal of Dr. Ludmer’s demurrer to the complaint and the grant of a motion to permit the taking of depositions are conclusive evidence that Nernberg had probable cause in the underlying case. In support of this contention, Nernberg’s Brief quotes a fragment of the Restatement (Second) of Torts § 675, Comment b, as follows:

A decision by a competent tribunal in favor of the person initiating civil proceedings is conclusive evidence of probable cause. This is true although it is reversed on appeal and finally terminated in favor of the person against whom the proceedings were brought.

Comment b to Section 675 is incomplete as quoted by Attorney Nernberg. The first paragraph of Comment b, in full text, begins:

b. Effect of termination in favor of the person against whom the proceedings were brought. As in the case of the initiation of criminal proceedings, a decision by a competent tribunal in favor of the person initiating civil proceedings is conclusive evidence of probable cause. This is true although it is reversed on appeal and finally terminated in favor of the person against whom the proceedings were brought. Likewise, a termination of civil proceedings by a competent tribunal adverse to the person initiating them is not evidence that they were brought without probable cause (citations omitted).

From the context of Comment b, it is apparent that “decision” refers to the termination of the proceedings and not to decisions on procedural matters prior to the termination of the case. Moreover, the cases upon which Nernberg relies are inapposite. Miller v. Pennsylvania Railroad Co., 371 Pa. 308, 89 A.2d 809 (1952); Kelley v. Local Union 249, 518 Pa. 517, 544 A.2d 940 (1988); and, De Salle v. Penn Central Transportation Co., 263 Pa.Super. 485, 398 A.2d 680 (1979), concern malicious prosecution, not wrongful use of civil process. Miller and De Salle both involve plaintiffs who were indicted by grand juries and held for court by district magistrates. In Kelley, the plaintiff was also held for court by a district magistrate after the district attorney had approved criminal charges.

The Restatement (Second) of Torts § 663(2) states that in criminal proceedings, “[t]he magistrate’s commitment of the accused is evidence that the person initiating the proceedings had probable cause.” Hence, it was undisputed that the three individuals who initiated proceedings in these malicious prosecution cases had probable cause despite the acquittal of the three plaintiffs in the underlying criminal actions. However, the action brought by Attorney Nernberg was civil. No district magistrate held Dr. Ludmer for court and there was disputed testimony as to probable cause. Here, the jury determined that Attorney Nemberg lacked probable cause. Factual conflicts are for the jury to resolve, not this Court. Miller, supra. We find this contention to be without merit.

Next, Nernberg complains that the trial court improperly allowed Dr. Ludmer’s counsel to testify regarding legal fees. Nemberg also asserts that, by testifying, Dr. Ludmer’s counsel violated Rule 3.7 of the Pennsylvania Rules of Professional Conduct. Appellant’s Brief at 22. He is mistaken. In his.Brief, at 24, Nernberg quotes what he calls the “relevant part” of Rule 3.7, as follows:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness

However, Rule 3.7 reads, in pertinent part, as follows:

Rule 3.7 Lawyer as witness
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(2) the testimony relates to the nature and value of legal services rendered in the case;

In addition, it is well-established that violations of the rules of professional responsibility are not a proper subject for the consideration of any tribunal other than those authorized by the Pennsylvania Supreme Court. Reilly by Reilly v. Southeastern Pa. Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). This claim is baseless.

Nernberg also complains that Dr. Ludmer’s counsel testified as to his “beliefs.” Nernberg objected to only one of these remarks and this objection was sustained by the trial court. Since no objection to the remaining remarks was raised at trial, we deem this issue waived. See Pa.R.A.P. 302; 2117(c).

Next, Nernberg contends that the trial court improperly admitted testimony of an expert witness for Dr. Ludmer. Nernberg then presents us with a critique of that testimony. The trial court is granted broad discretion in determining whether testimony of a particular expert ought to be admitted in a case, and unless there is a clear abuse of that discretion, no basis for reversal will be established. Bowser v. Lee Hospital, 399 Pa.Super. 332, 582 A.2d 369 (1990), appeal denied, 527 Pa. 614, 590 A.2d 755 (1991). Again, our review of this record fails to disclose error by the trial court.

Nernberg also alleges that the trial court erred in submitting the issue of punitive damages to the jury. However, this allegation ignores the statute which expressly provides for punitive damages. 42 Pa.C.S. § 8353(6). Nernberg makes the audacious assertion that the trial court’s instruction that the jury consider both Nernberg’s net worth and his financial status was in violation of an earlier order of Judge Musmanno “dated January 3, 1992, which held that only Nernberg’s net worth would be admissible on the issue of punitive damages.” Appellant’s Brief at 33 (emphasis added). The relevant paragraph of Judge Musmanno’s Order reads as follows:

It is further ORDERED and DECREED that Defendant Maurice A. Nernberg, Jr., shall forward within forty-five (45) days from the date hereof to counsel for the Plaintiff, Seymour A. Sikov, Esquire, his current net worth statement, same to reflect the Defendant’s net worth as of a date no later than ninety (90) [days] prior to the date hereof, this to be under verification of the Defendant, same not to be filed of record and same not to be disclosed to any third party without Order of Court.

It is readily apparent that the word “only ” does not appear in this paragraph. In addition, the following exchange took place with respect to this jury instruction:

THE COURT: Yeah. So that will read, “In assessing punitive damages you may consider the Defendant’s net worth and financial condition. You heard testimony from Attorney Nernberg regarding these matters.” I’m going to use [that], okay.
Mr. Beldon (counsel for Attorney Nernberg): That’s fine.
THE COURT: All right.

N.T., November 18-20, 1992, at 1341. We find this claim to be waived on the basis of Dilliplane v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Dilliplane requires that trial counsel make timely, specific objections during trial to “ensure that the trial judge has a chance to correct alleged trial errors” at trial and to allow the “orderly and efficient use of our judicial resources” as well as to reduce the need for appellate review and new trials. Id. at 258-59, 322 A.2d at 116. This contention has been waived.

Finally, Nernberg maintains that he was denied a fair trial. This claim is supported by a ten page list of numerous rulings by the trial court, approximately fifty in number, and a claim that these errors, when considered together, deprived him of a fair trial. We disagree. From our review of this record, we conclude that Nernberg’s contention that he was denied a fair trial is without merit.

Accordingly, for the foregoing reasons, we affirm the judgment entered by the trial court on June 10, 1993.

Judgment Affirmed.


author: CIRILLO, Judge. BECK, Judge,

text:
    640 A.2d 1283
    Ralph G. McALLISTER and Rodney E. McAllister v. MILLVILLE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1994.
    Filed March 24, 1994.
    Reargument Denied May 26, 1994.

      Rebecca L. Warren, Bloomsburg, for appellant.
    David B. Dowling, Harrisburg, for appellees.

      Before CIRILLO, BECK and HOFFMAN, JJ.
   CIRILLO, Judge.

This is an appeal from an order denying appellant Millville Mutual Insurance Company’s (Millville) motion for judgment on the pleadings, granting appellees’ motion for judgment on the pleadings, and directing Millville to pay appellees their respective one-third interests in fire insurance proceeds. We reverse.

In November of 1988, Millville issued a joint fire insurance policy to appellees Ralph G. McAllister and Rodney E. McAllister, and to their brother John D. McAllister. The policy covered one residential dwelling and surrounding barns. The policy was scheduled to expire on November 22, 1991.

On December 2, 1990, the insured dwelling was destroyed by a fire intentionally set by John D. McAllister. After admitting to his crime, John D. McAllister was convicted of arson. Thereafter, appellees, as co-insureds, requested payment of fire insurance proceeds from Millville. Millville refused to pay based upon two exclusionary provisions under the policy:

EXCLUSIONS THAT APPLY
We do not pay for loss resulting directly or indirectly from:
5. Neglect — This means neglect by an insured to use all reasonable means to save covered property at and after the time of a loss. It also means neglect by any insured to use all reasonable means to save and preserve covered property when endangered by a peril insured against.
11. Intentional Acts — We do not pay for a loss which results from an act committed by or at the direction of an insured and with the intent to cause a loss.

Forms FL-20 AAIS and FL-250 AAIS (emphasis added and omitted).

The appellees filed a complaint against Millville to recover the insurance proceeds. Millville filed preliminary objections causing the appellees to file an amended complaint. Thereafter, Millville’s preliminary objections were denied. Millville filed an answer and new matter and the appellees responded. After the pleadings were closed, both parties filed motions for judgment on the pleadings. On March 24, 1993, the Honorable Scott W. Naus issued an opinion and order granting the appellees’ motion and denying Millville’s motion, finding that each appellee was entitled to receive his one-third share of the proceeds due under the terms of the policy.

Millville then filed a motion to vacate the order. The March 24, 1993 order was vacated and Millville was permitted to file a brief in opposition to appellees’ motion for judgment on the pleadings. After briefs were submitted, Judge Naus granted appellees’ motion for judgment on the pleadings and denied Millville’s motion for judgment on the pleadings. The order again directed Millville to pay appellees their respective one-third interests in the insurance proceeds.

Millville presents two issues for our consideration:

(1) Whether the insurance policy’s clear and unambiguous exclusionary language must be given its plain meaning thereby precluding recovery by the appellees?
(2) Whether the appellees are precluded from recovering for losses with respect to their spouses’ interest in the property when the spouses are separate insureds?

In reviewing a trial court’s decision granting a motion for judgment on the pleadings, the appellate court’s scope of review is plenary; the appellate court will apply the same standard employed by the trial court. Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 606 A.2d 470 (1992). A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034. Thus, a trial court must confine its consideration to the pleadings and relevant documents and accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed. The court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 514 A.2d 576 (1986); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986).

Principles of public policy and common law prohibit one from profiting from his own wrong, particularly his own crime. Greifer’s Estate, 333 Pa. 278, 279, 5 A.2d 118, 119 (1939); 18 Couch on Insurance 2d § 74:663 (1984). Therefore, the voluntary and intentional burning of covered property by the insured or by another with the insured’s authority, procurement, or connivance, does not create a right of recovery under the policy. Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 263 A.2d 448 (1970); First Nat. Bank v. Newark Fire Ins. Co., 118 Pa.Super. 582, 180 A. 163 (1935). In addition, insurance contracts, like the one issued by Millville, often contain provisions specifically excluding coverage for certain intentional and/or negligent acts of the named insureds. The admittedly intentional acts of John McAllister, therefore, clearly prohibit him from recovering any insurance proceeds, as his actions were contrary to both the provisions of the insurance policy and the public policy of this Commonwealth.

The issue to be decided in this case, however, is whether the exclusionary provisions of the policy preclude the appellees, as “innocent” co-insureds, from recovering under the policy. The appellees argue that the exclusionary clauses do not bar recovery by innocent co-insureds, such as themselves. Specifically, the appellees contend that because the policy defines each insured as a separate insured under the policy, the intentional acts exclusion which bars recovery when “an insured” intentionally causes a loss is ambiguous and, therefore, must be construed against Millville, as the drafter. In contrast, Millville contends that the above-referenced exclusionary clause of the policy is clear and unambiguous and, therefore, bars recovery by the appellees.

Courts of this Commonwealth and other jurisdictions have grappled with this issue. We will first trace the legal development of this issue and distill the appropriate legal standard to be applied. Next, we will examine the insurance policy at issue and apply that legal standard to the facts before us.

This issue was first addressed, generally, in Bowers Co. v. London Assurance Corp., 90 Pa.Super. 121 (1926). There, a seller of automobiles had a conditional sales agreement with an owner to sell the owner’s automobile. The seller and owner were both named insureds under a fire insurance policy “as their interest may appear.” Thereafter, the owner committed arson against the insured property. This court held that the seller was barred from recovery due to the wrongful acts of the owner because “the [language of the] policy did not purport to insure the interests of the assured in severalty but jointly” and thus, “recovery on the policy is prevented by the fraudulent act of either of the assured whether participated in by the other or not.” Id. at 125, 127.

Fifty-six years later, conversely, the District Court for the Western District of Pennsylvania, applying Pennsylvania law, permitted recovery by an innocent insured where the policy language did not state whether the interests of the named co-insureds (husband and wife) were joint or several. Opat v. State Farm Cas. & Ins. Co., 542 F.Supp. 1321, 1327 (W.D.Pa. 1982). Specifically, an .exclusionary provision in the policy provided that the policy would be void “in case of any fraud or false swearing by ‘the insured.’ ” (emphasis added). The court found that this language shed no light on whether the obligations or interests of the insureds were joint or several. Id. at 1326.

Next, the Pennsylvania Supreme Court in Giacobetti v. Insurance Placement Facility of Pennsylvania, 500 Pa. 447, 457 A.2d 853 (1983), spoke to this issue. There, the named insureds were “Manusov Family Trust, Harry Kracoff, Trustee, and Harry Kracoff, A.T.I.M.A.” (as their interest may appear). A co-insured, Harry Kracoff, was found to have set a fire that destroyed the insured property. The Court held that Kracoffs intentional misconduct barred his recovery and that of those beneficiaries who were the natural objects of his bounty. Id. at 454-455, 457 A.2d at 856-57. The Court permitted coverage with respect to the other beneficiaries under the trust because there was no evidence that any of these individuals assisted in or approved of Kracoffs wrongful conduct. Id.

Next, the Third Circuit Court of Appeals, after examining an exclusionary clause in an insurance contract, denied recovery to an “innocent” co-insured. Spezialetti v. Pacific Employees Ins. Co., 759 F.2d 1139 (3d Cir.1985). In that case, an innocent co-insured (wife) argued that she was entitled to recover fire insurance proceeds on jointly owned property that was destroyed by her husband. The insurance policy named both spouses as insureds and contained an exclusionary clause stating:

[The] insurance shall not apply to loss or damage ... [as a result of] any dishonest act or omission by any insured, or by any authorized representative thereof____

The wife argued that the exclusion was ambiguous. The Third Circuit disagreed and held that the language of the exclusion could not have been any clearer and, therefore, denied the wife’s claim. Id. at 1142. The court intimated that the outcome may have been different had the exclusion used the term “the insured” instead of “any insured.” Id. at 1141.

Next, in Maravich v. Aetna Life & Cas. Co., 350 Pa.Super. 392, 504 A.2d 896 (1985), this court announced the general standard to be employed when determining whether an innocent co-insured may recover insurance proceeds. Generally, whether an innocent co-insured will be allowed to recover under an insurance policy after another co-insured has intentionally destroyed the insured property depends on whether the interests of the co-insureds are joint or severable. Id. at 403, 504 A.2d at 902. Courts make this determination by examining the interests of the co-insureds as expressed in the insurance policy, and not by looking to the insureds’ respective interests in the insured property. Id. at 405, 504 A.2d at 903; see also McDivitt v. Pymatuning Mutual Fire Ins. Co., 303 Pa.Super. 130, 449 A.2d 612 (1982) (“Property ownership ... is of minimal importance in determining entitlement to the proceeds of insurance, since the nature and extent of various rights and obligations of the parties are governed by the terms of the insurance contract”). Therefore, whether the named insureds are tenants by the entireties, tenants in common, or otherwise, is of no real significance to the resolution of the issue at hand.

In Mamvich, Aetna Life and Casualty Company issued a fire insurance policy to David G. Maravich and Donna M. Maravich, as husband and wife. Maravich, 350 Pa.Super. at 410, 504 A.2d at 906. The Husband intentionally destroyed the insured property. Thereafter, the Wife, as an innocent co-insured, sought coverage under the Aetna policy. The policy did not define whether the interests of the Husband and Wife were joint and indivisible or separate. In addition, the exclusionary provisions of the policy did not clearly bar recovery by an innocent insured in the event the property was destroyed or damaged by the other. The exclusion provided:

We do not cover loss resulting directly or indirectly from:
Neglect, meaning neglect of the insured to use all reasonable means to save and preserve property at or after the time of a loss....

(emphasis added). After examining this policy language, this court distinguished those cases where the insurance policies excluded coverage in the event of a dishonest act by “any insured,” from those, like Mamvich, where the policies denied coverage in the event of a dishonest or negligent act by “the insured.” Id. at 407-08, 504 A.2d at 904-05. We stated:

Our research discloses that only two courts applying the contract construction analysis have denied recovery to an innocent spouse (co-insured). In Spezialetti, a policy exclusion voided the policy upon the commission of a wrongful act by “any insured,” and in Bryant [v. Allstate Insurance Co., 592 F.Supp. 39 (D.Ky.1984) ], the policy excluded coverage to “an insured” who failed to take reasonable efforts to save and preserve the property. The language in these policies, the courts held, unequivocally excluded coverage for both spouses (insureds) in the event of a wrongful act by either.

Id. (citations omitted) (emphasis added).

The applicable legal standards to be gleaned from the case law, therefore, are as follows: If, after an examination of the policy, the court still cannot determine whether the interests and obligations of the named insureds are joint or several — e.g., the exclusions do not unequivocally exclude coverage for innocent insureds — then the court must interpret the ambiguity in favor of the insureds and find the obligations of the insureds under that particular exclusion to be several or separate. Under these circumstances, therefore, an innocent co-insured would not be precluded from recovering his or her share of the proceeds under the policy. See Maravich, supra; see also Richards v. Hanover Ins. Co., 250 Ga. 613, 299 S.E.2d 561 (1983) (holding that where homeowner’s policy excluded coverage in the event of neglect of “the insured,” the obligation to preserve the property was several and separate and, therefore, co-insured husband’s wrongful conduct in destroying the home by fire could not be imputed to the innocent insured wife); Morgan v. Cincinnati Ins. Co., 411 Mich. 267, 307 N.W.2d 53 (1981) (holding that a provision in a fire insurance policy voiding coverage if “the insured” committed fraud would be read as barring only the claims by the insured who committed the fraud); Ryan v. MFA Mut. Ins. Co., 610 S.W.2d 428 (Tenn.1980) (holding that since reasonable persons considering policy references to fraud of “the insured” and neglect of “the insured” would conclude that only the guilty insured could not recover under the policy, co-insured husband would not be barred by wife’s misconduct in setting fire to the insured property).

Conversely, if the language of the policy, particularly the exclusionary clause, clearly indicates that the insureds’ obligations are joint, then the prohibited acts of one insured bar all others from recovering. See Spezialetti, supra; see also Dolcy v. Rhode Island Joint Reinsurance Assn., 589 A.2d 313 (R.I.1991) (holding that a homeowner’s policy exclusion for intentional losses committed by “an insured” imposed a joint obligation on co-insureds not to commit arson); Vance v. Pekin Ins. Co., 457 N.W.2d 589 (Iowa 1990) (holding that under a homeowner’s policy stating that the policy did not insure for any loss arising out of any acts committed by “an insured,” all insureds were barred from recovery if any insured committed the act); Woodhouse v. Farmers Union Mut. Ins. Co., 241 Mont. 69, 785 P.2d 192 (1990) (holding that policy exclusion for loss caused by intentional act of “an insured” barred recovery by innocent insured); American Family Mut. Ins. v. Bowser, 779 P.2d 1376 (Colo.1989) (holding that instruction properly eliminated the possibility of recovery by the wife as innocent co-insured where insured excluded coverage for any loss arising by or at the direction of “any insured”).

We must now review the insurance policy at issue in this case. First, however, we note that the standards to be applied in reviewing insurance contracts are well settled. The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991). In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. Id. However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, see Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978) and Winters v. Erie Insurance Group, 367 Pa.Super. 253, 532 A.2d 885 (1987), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 244, 590 A.2d 281, 283 (1991); see also Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 549 A.2d 1304 (1988); St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 630 A.2d 28 (1993) (en banc).

Here, the trial court examined the fire insurance policy issued by Millville to the three McAllister brothers. The court took special notice of the definitional section of the policy which states that “[e]ach person ... is a separate insured under this policy____” (emphasis in original). When looking at this provision in conjunction with the exclusionary clauses in the policy which deny coverage for losses resulting from negligent or intentional acts committed by “any insured” or “an insured,” respectively, the trial court found the policy to be ambiguous as to whether the obligations of the appellees and John D. McAllister under the exclusions were joint or several. Based on this finding, the court construed the terms of the policy against Millville, • as drafter, and permitted the appellees to recover their one-third interests under the policy. We find that this interpretation tortures the plain and unambiguous language and meaning of the policy and is contrary to the legal standards articulated above.

Notwithstanding the provision which defines each named insured as a “separate insured” under the policy, the policy specifically provides that Millville will not pay for loss resulting from neglect by “any insured” or from the intentional acts of “an insured.” The use of the terms “any” and “an” in the exclusions clearly indicate that the insureds’ obligations under the policy’s neglect and intentional provisions are joint, not several. Finding these obligations to be joint, the intentional actions of John D. McAllister bar any recovery by the appellees. Spezialetti, supra. We, therefore, reverse the trial court’s order granting the appellees’ motion for judgment on the pleadings and directing Millville to pay appellees their one-third interests under the insurance contract. Kelly, supra.

Order reversed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I dissent. The majority acknowledges the general standard set forth in Maravich v. Aetna Life & Cas. Co., 350 Pa.Super. 392, 504 A.2d 896 (1985), that “whether an innocent co-insured will be allowed to recover under an insurance policy after another co-insured has intentionally destroyed the insured property depends on whether the interests of the co-insureds are joint or severable.” Majority Opinion at 337. Yet at the same time, the majority ignores the clear and unambiguous language in the definitional section of the policy that establishes that “[e]ach person ... is a separate insured under this policy ...” (emphasis in original).

The cases cited by the majority do tend to distinguish between joint and severable interests in an insurance policy based upon the use in the relevant exclusionary clauses of “an” and “any” (suggesting joint interests) or “the” (suggesting severable interests). However, the application of this rule of construction was necessary because none of the cited cases involved policies with a clear pronouncement that the co-insureds’ interests were in fact separate.

In this case, the language in the definitional section of the policy expressly establishes that the interests of the co-insureds are severable. I believe that this definition is the operative phrase, and it certainly is more meaningful than the articles “an”, “any” or “the”.

I would affirm the trial court’s denial of appellant’s motion for judgment on the pleadings, because under the unambiguous language of the insurance policy, the innocent co-insureds are entitled to recover their share of the insurance proceeds.

      . Because we reverse the trial court’s order granting the appellees’ motion for judgment on the pleadings, we find it unnecessary to address Millville’s remaining contention.

      . At the very least, the apparent conflict between the language in the definitional section and the use of "an”/"any” in the exclusionary clause creates an ambiguity which must be resolved in favor of the insured. See, e.g., Koenig v. Progressive Ins. Co., 410 Pa.Super. 232, 599 A.2d 690 (1991).