author: MONTGOMERY, Judge:

text:
    590 A.2d 784
    Robert J. RIMPA, Appellant at No. 00874 Pittsburgh 1990, v. ERIE INSURANCE EXCHANGE, Appellant at No. 00873 Pittsburgh 1990.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1991.
    Filed May 3, 1991.

      Marcia H. Haller, Erie, for Erie Ins. Exchange, appellant (at 873) and appellee (at 874).
    Frank C. Fogl, III, Erie, for Rimpa, appellant (at 874) and appellee (at 873).
    Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This action was instituted by the plaintiff seeking motor vehicle insurance benefits from the defendant insurer. Both parties filed motions for summary judgment prior to trial. After consideration, the trial judge denied the insurer’s motion for summary judgment and granted partial summary judgment to the plaintiff. Subsequently, the plaintiff filed a petition for counsel fees, which was denied by the court. Thereafter, the defendant insurer appealed to our court, at No. 00873 Pittsburgh 1990, contending that the trial court erred in awarding summary judgment to the plaintiff and benefits under the applicable vehicle insurance policy. The plaintiff filed an appeal at No. 00874 Pittsburgh 1990, challenging the court’s denial of his request for an award of attorney fees. The appeals have been consolidated for consideration by our court.

The record shows that on September 30, 1987, plaintiff Robert J. Rimpa was employed at his father’s automobile service station in Union City. On that date, a customer brought his motor vehicle to the facility to have a tire repaired. The plaintiff began to repair the tire while it was still mounted on the vehicle. The repair process involved sticking a metal probe into a hole in the tire. When Rimpa did so, the tire unexpectedly exploded, causing him bodily injuries and subsequent disability.

Because his injuries arose in the course of his employment, the plaintiff has received income and medical payment benefits from his employer’s workers’ compensation policy, which was issued by defendant Erie Insurance Exchange. As of the date of the accident, the plaintiff had a policy of motor vehicle insurance which was also issued by the defendant. This policy provided coverage in accordance with the requirements of the Pennsylvania Motor Vehicle Financial Responsibility Law. Act of February 12, 1984, P.L. 26, No. 11, § 3, 75 Pa.C.S. § 1701, et seq., effective October 1, 1984. Inter alia, the motor vehicle policy provided for first party income loss benefits in the amount of $1,000.00 per month, up to a maximum benefit of $15,-000.00.

Because the plaintiffs weekly workmen’s compensation income benefit was less than his average pre-injury earnings, he instituted a claim with Erie for payment of such excess loss of income under the income loss benefit provision of his motor vehicle insurance policy. Erie denied the plaintiff’s claim for such benefits, under a provision of the applicable policy which excluded coverage for wage loss for “... any person engaged in the business of repairing, servicing, or otherwise maintaining motor vehicles if the bodily injury arises out of that business unless the conduct occurs off the business premises.”

Thereafter, Mr. Rimpa instituted the instant action, wherein he claims that the aforesaid exclusion in the defendant’s policy of motor vehicle insurance was unenforceable because it conflicted with the provisions of our Motor Vehicle Financial Responsibility Law. In agreement with the plaintiff, the trial court ruled that the policy provision which excluded coverage for garagemen, for bodily injuries arising out of repairing, servicing or otherwise maintaining motor vehicles on the business premises, conflicted with the provisions of the Financial Responsibility Law. Erie challenges that determination on its appeal.

Both parties in these appeals, and the trial court in its opinion, have cited some provisions of the presently effective Motor Vehicle Financial Responsibility Law, as well as sections of the prior Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, effective October 1, 1984. The No-fault Act provided for motor vehicle insurance policies to cover claims for injury or damages arising out of “maintenance or use of a motor vehicle”, which phrase was specifically defined under the No-fault law as meaning:

... Maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it.

However, the No-fault Act also stated:

Maintenance or use of a motor vehicle does not include: (A) Conduct within the course of a business of repairing, servicing or otherwise maintaining motor vehicles unless the conduct occurs off the business premises;

The subsequently enacted Motor Vehicle Financial Responsibility Law provides that insurance policies should be issued by insurers providing for first party benefits “... with respect to injury arising out of the maintenance or use of a motor vehicle____” 75 Pa.C.S. § 1712. While the Financial Responsibility Law does set forth certain exclusions from coverage (75 Pa.C.S. § 1718), the statute does not exclude from coverage any injury arising out of the business of repairing, servicing or maintaining motor vehicles, similar to the exclusionary provision of the prior No-fault Act or the language in the Erie vehicle policy in issue in this case.

As noted earlier, the plaintiff argues that the garagemens’ exclusion in the defendant’s policy is in conflict with the requirements of the Motor Vehicle Financial Responsibility Law. The defendant strongly urges that the policy exclusion in question is in conformity with that legislation, and entirely consistent with its provisions. Both of the parties ask our court to apply various maxims of statutory construction in order to resolve this issue.

Erie points out that a critical issue in this case is the interpretation of the term “maintenance or use of a motor vehicle” in the provision of the Motor Vehicle Financial Responsibility Law which requires insurers to provide certain coverages or benefits in their policies. See 75 Pa.C.S. § 1712. As noted earlier, “maintenance or use of a motor vehicle” is not defined in the Motor Vehicle Financial Responsibility Law. Erie contends that such phrasing must be construed to include a proviso for the exclusion of coverage for garagemen, consistent with the exclusionary clause in issue in the Erie policy.

In maintaining this position, Erie cites some provisions of the Statutory Construction Act, Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S. § 1901, et seq. The insurer notes that while words and phrases are to be construed according to their plain meaning, if a phrase has acquired a peculiar and appropriate meaning, it is to be construed according to such peculiar and appropriate meaning. 1 Pa.C.S. § 1903(a). Erie contends that in interpreting a statute to effectuate legislative intent, when the words in issue are not explicit, the legislative intent may be determined by considering, among other matters, the circumstances under which the statute was enacted, former law, if any, including other statutes upon the same or similar objects, as well as the consequences of a particular interpretation. 1 Pa.C.S. § 1921(c)(2), (5) and (6).

Erie argues that the phrase “maintenance or use of a motor vehicle” acquired a peculiar and appropriate meaning in the context of automobile insurance law by virtue of the definition given to that phrase by the legislature in the No-fault Act. Inter alia, that definition included a specific exclusion for garagemen who incurred injuries while engaged in the course of their labors in a vehicle service facility. The defendant points out that the exclusion in its automobile insurance policy tracks the language of the No-fault Act. Accordingly, it is the position of Erie that applying the No-fault Act definition of the phrase “maintenance or use of a motor vehicle” to the Motor Vehicle Financial Responsibility Law, the policy exclusion for garagemen is entirely consistent with the intent and policy of the Financial Responsibility statute. In support of this contention, Erie asserts that the courts of our Commonwealth have previously relied upon the law as developed under the No-fault Act to interpret the provisions of the Motor Vehicle Financial Responsibility Law, citing Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 550 A.2d 1346 (1988). In Roach, the plaintiff bus passenger was injured when a fight broke out between two other passengers. Her claim was denied as not arising out of the maintenance or use of a motor vehicle. In affirming the denial of benefits, our court, in the context of that case, considered a definition of the phrase “maintenance or use” as interpreted under the prior No-fault Act.

In opposition to the analysis urged by the defendant insurer, the plaintiff contends that the application of appropriate rules of statutory construction mandates a determination that the policy provision in issue contravenes the requirements of the Motor Vehicle Financial Responsibility Law. The plaintiff points out that the insurer is requesting that exclusions be read into the Financial Responsibility Law that were purposely excluded or deleted from the newer law by the legislature. Mr. Rimpa maintains that we must apply the rule of statutory construction that the deletion of statutory language by the legislature should be considered to render such language inoperative and indicates that the legislature has expressed a different intent. See Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985). Further, the plaintiff notes that in holding in his favor, the trial court relied, in part, on the maxim expressio unius est exclusio alterius, the principle that where some things are specifically designated in a statute, things not so designated should be understood as having been excluded.

In urging this position, the plaintiff relies heavily upon the decision of our court in Omodio v. Aetna Life and Casualty, 384 Pa.Super. 544, 559 A.2d 570 (1989), a case also cited as directly applicable authority by the trial court. In Omodio, the plaintiff suffered a work-related injury while loading a truck. Although he received workmen’s compensation benefits, John Omodio filed an action, like the plaintiff in the instant case, seeking to recover excess wage loss benefits from his own motor vehicle insurance carrier. Aetna denied the claim based upon an exclusion in its policy with respect to any injuries sustained by a person as a direct result of loading or unloading any motor vehicle. The prior No-fault Act had excluded loading or unloading of a motor vehicle from the meaning of “maintenance or use of a motor vehicle”, unless the conduct occurred while the person was occupying, entering into, or alighting from the vehicle. The Financial Responsibility Law did not contain such a specific exclusion with regard to the loading or unloading of motor vehicles. The trial court in Omodio ruled that because the loading or unloading of motor vehicles was not designated as a specific exclusion under the Financial Responsibility Law, Aetna’s policy exclusion was in derogation of applicable law and contrary to the intent of the general assembly, based upon the rule that expressio unius est exclusio alterius. On appeal, our court affirmed the trial court’s action, and agreed with the view that the omission of the loading and unloading exclusion from the Financial Responsibility Law evidenced a legislative intent that the class of victims engaged in such loading and unloading operations was intended to receive coverage. Omodio v. Aetna Life and Casualty, id., 384 Pa.Superior Ct. at 550, 559 A.2d at 573. The trial court in the instant case ruled that the conduct of garagemen in repairing or servicing motor vehicles, which had been specifically excluded under the No-fault Act, was intended by the legislature to be a covered activity under the subsequently enacted Financial Responsibility Law, as evidenced by the legislature’s deletion of the garagemens’ exclusion in its enactment of the latter statute.

Erie also cites the Omodio decision in its brief, contending that it was misinterpreted by the trial court. In fact, Erie argues that the Omodio decision supports its own position that the garagemens’ exclusion continues to be valid under the Motor Vehicle Financial Responsibility Law. The defendant points out that our court in Omodio noted that the omission of the “maintenance or use” definition from the Financial Responsibility Law should not automatically be taken to indicate a legislative disapproval of coverage in the situation presented in the Omodio case. Moreover, Erie argues that in the Omodio decision, our court limited its holding to the situation where the injured party was inside the vehicle while loading and/or unloading it, thus restricting the decision to a very narrow context.

We agree with the plaintiff in this case that the Omodio holding was not as narrow as is asserted by the defendant insurer. In Callahan v. Federal Kemper Insurance Company, 390 Pa.Super. 201, 568 A.2d 264 (1989) our court was presented with the issue of whether an automobile policy exclusion which denied coverage for bodily injury sustains as a result of “loading or unloading a motor vehicle” would be valid under the Motor Vehicle Financial Responsibility Law. Citing the holding in Omodio, our court held that a provision in an automobile insurance policy which excluded injuries sustained as a direct result of loading and unloading from the first party benefits coverage of a motor vehicle insurance policy contravened the Financial Responsibility Law and was therefore invalid. It was ruled that the loading and unloading activities in question fit within the meaning of “maintenance and use” terminology of the Financial Responsibility Law. Accordingly, it is clear that the Omodio holding may not be considered to be as narrow as is now urged by Erie Insurance Exchange.

The decision in Omodio obviously provides guidance to us in the resolution of the instant appeal. The plaintiff would have us rely entirely upon the construction principle expressio unius est exclusio alterius to find that because the legislature omitted the garagemens’ exclusion which had been part of the No-fault Act, when it enacted the subsequent Motor Vehicle Financial Responsibility Law, such exclusion, standing alone, indicated an intent to provide for coverage for garagemens’ activities under the newer law. However, in Omodio, our court recognized that the omission of the “maintenance or use” definition from the Financial Responsibility Law should not automatically be taken to indicate a legislative intent to provide coverage for formerly excluded situations. Instead, we should examine the activity in issue in each case to see whether it is covered by the language the legislature has provided us in the presently-applicable law.

It is evident that in Omodio, our court resolved the issue presented by determining whether the vehicle loading activity, in which Mr. Omodio suffered his injury, could be construed to be “use” of a motor vehicle within the intended meaning of the “maintenance or use” provision of the Financial Responsibility Law. More recently, in Huber v. Erie Insurance Exchange, 402 Pa.Super. 443, 587 A.2d 333 (1991) our court addressed a situation in which an insured also sought first party medical benefits as a result of injuries which occurred while he was loading material onto his vehicle. In affirming the trial court’s order which rejected the claim, our court made it plain that our fundamental responsibility in such cases is to determine whether the specific activity in which the insurance claimant was involved at the time of his injury may be considered to fall within the “maintenance or use” language of the Motor Vehicle Financial Responsibility Law. As stated in Huber, “... we must return to the ‘maintenance or use’ language to determine whether appellant’s injuries are compensable.” 402 Pa.Super. at 446, 587 A.2d at 334. That is also our task in the instant case.

The trial court determined, as a factual matter, that plaintiff Robert J. Rimpa was involved in the “maintenance” of the vehicle he was working on when the tire exploded. That determination is not challenged on this appeal by Erie Insurance Exchange. Instead, Erie relies upon its policy exclusion which would deny coverage to a garageman who is injured while involved in maintenance on a vehicle at his place of business. However, the Motor Vehicle Financial Responsibility Law clearly commands that coverage be made available “... with respect to injury arising out of the maintenance ... of a motor vehicle____” (75 Pa.C.S. § 1712, emphasis supplied) It is beyond dispute that the Erie policy specifically excludes activities involved in motor vehicle maintenance, despite the express provision in the applicable law which mandates that insurers provide coverage for injuries arising in the course of the maintenance of a vehicle.

Thus, it is manifest that the Erie exclusion must be considered in direct contravention to the applicable statute, unless there is some other countervailing statutory provision which would support the policy exclusion. Erie has not cited any provision of the Motor Vehicle Financial Responsibility Law which could arguably be interpreted to authorize the “maintenance” exclusion Erie has written into its policy. In the face of the obvious conflict between the insurance contract exclusion and the unambiguous dictates of the applicable law, we must hold that the trial court ruled correctly that Erie’s garagemens’ policy exclusion is invalid and unenforceable under current law.

In essence, the interpretation assignment we have in this case is not a difficult one. The applicable law mandates that coverage be extended to those injured while engaged in maintenance of vehicles. The policy provision relied upon by the defendant insurer explicitly excludes maintenance activities from coverage when they are engaged in by a certain class of individuals, employed in vehicle servicing functions at the time of their injuries. There is no statutory support to validate such an exclusion.

We cannot ignore the well-recognized rule that the Financial Responsibility Law is to be liberally construed. Persik v. Nationwide Mutual Insurance Company, 382 Pa.Super. 29, 554 A.2d 930 (1989). We are also mindful that insurance policies are to be construed in a manner to afford the greatest possible protection to the insured. Geisler v. Motorists Mutual Insurance Co., 382 Pa.Super. 622, 626, 556 A.2d 391, 393 (1989). Accordingly, we must agree with the trial court that the plaintiff is entitled to the coverage sought, and the defendant’s policy exclusion must be deemed invalid as it is repugnant to the requirements of the Motor Vehicle Financial Responsibility Law.

Finally, we address the claim raised by the plaintiff that the trial court erred in denying his claim for an award of attorney fees against the defendant insurer. An insurer will be held liable for the reasonable attorney fees incurred by the insured when the insurer’s failure to pay a claim constitutes an unreasonable act which is clearly contrary to the terms of the policy and the Pennsylvania law. DeMichele v. Erie Insurance Exchange, 385 Pa.Super. 634, 561 A.2d 1271 (1989). The trial court determined that the insurer’s efforts to avoid coverage, through its analysis of precedents and presentation of theories of statutory interpretation, were reasonable in light of the facts of prior cases and the nuances of applicable law. The trial court concluded that although it did not find such insurer arguments to be convincing, it did not discern an indication that the defendant insurer acted unreasonably in denying the plaintiff’s claim, given the unsettled state of the law governing the precise question presented. We can perceive no abuse of discretion by the trial court in reaching such conclusions, or in denying the plaintiff’s request for an award of legal fees against the insurer. Therefore, we reject the plaintiff’s contentions of error concerning this issue.

With regard to both appeals before us in this consolidated case, the judgment of the lower court is hereby affirmed.

      . The insurer also raises the contention that it should not be required to pay motor vehicle insurance policy benefits because of its status as a workmen’s compensation carrier in the case. It cites a claimed effect upon its subrogation rights. However, it provides no statutory or case authority to support this position. We find this argument to be devoid of any arguable merit, and unworthy of extended discussion or analysis.

      . See 75 Pa.C.S. § 1716, which provides, in material part: "In the event the insurer is found to have acted in an unreasonable manner in refusing to pay the benefits when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended.”


source: Caselaw Access Project

author: POPOVICH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    590 A.2d 790
    PITTSBURGH COAL AND COKE, INC., Appellant, v. Fred A. CUTERI, Cuteri Holding Company, Eureka Energy Company, Coldren, DeHaas & Radcliffe, Ira B. Coldren, Jr., Ralph K. Barclay, Jr., Ernest P. DeHaas, III, William M. Radcliffe, and Bernard B. Klein, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed May 3, 1991.

      Harlan S. Stone, Pittsburgh, for appellant.
    Kathryn L. Simpson, Pittsburgh, for appellees. .
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Fayette County (per Judge J. Quint Salmon, Specially Presiding) granting the preliminary objections in the nature of a demurrer of the Appellees/coDefendants resulting in their dismissal from the lawsuit instituted by the Plaintiff/Appellant, Pittsburgh Coal and Coke, Inc. We affirm.

On November 27, 1984, Eureka Energy Company agreed to purchase equipment from Pittsburgh Coal and Coke, Inc. By agreement of even date, Cuteri Holding Company also contracted to purchase real estate from Pittsburgh Coal and Coke, Inc. In each instance, Fred A. Cuteri signed documents “unconditionally guaranteeing]” that both entities would perform under the provisions of the November 27th agreements. Failing this, Cuteri consented to have Pittsburgh Coal and Coke, Inc. commence suit against him “without having commenced any action or having obtained any judgment against Cuteri.”

When it appeared that non-compliance with the November 27th agreements was imminent, a 45-day extension was granted by Pittsburgh Coal and Coke, Inc. to Cuteri on August 27, 1985. Cuteri, as security for the performance of the August 27th agreement (hereinafter referred to as the “Escrow” agreement), placed in escrow deeds to three parcels of property situated in this Commonwealth. Upon default, Pittsburgh Coal and Coke, Inc. received what purported to be title to Cuteri’s one-half interest to these properties, the remaining share of which belonged to a Richard DiCenzo, his business associate. The deeds were drafted and a “lien search” of the real estate was conducted by the Coldren law firm, the latter of which was communicated to counsel for Pittsburgh Coal and Coke, Inc. in letter form and read in pertinent part:

This is to confirm that we made a lien check with respect to Fred A. Cuteri, Fred A. Cuteri, Jr., Rinaldo DiCenzo and Richard DiCenzo.
We found no mortgages indexed against any of the parties. The only liens which we found were municipal liens entered against two properties ... which DiCenzo and Cuteri conveyed to Pittsburgh Coal & Coke. Neither of these liens has anything to do with the property to be held in escrow for the benefit of Pittsburgh Coal & Coke.

When Pittsburgh Coal and Coke, Inc. decided to sell its interest in the properties, a “title search” was conducted by the prospective buyer who learned that Cuteri had transferred his interest in the property to a partnership comprised of Cuteri and Richard DiCenzo by deed dated June II, 1984, a deed prepared by the Coldren law firm.

A 6-count complaint was filed by Pittsburgh Coal and Coke, Inc. alleging, inter alia, fraud and professional negligence on the part of the Coldren law firm and its partners in drafting deeds, pursuant to the Escrow agreement, conveying what appeared to be Cuteri’s one-half interest to property when it “knew” that “Cuteri no longer had good title to this real estate.” Count V, Paragraph 24.

Preliminary objections in the nature of a demurrer (to Counts III, IV, V & VI) and a motion to strike (as to Counts III, IV, V and a request for attorneys fees) were filed on behalf of the Coldren law firm. A brief was submitted thereafter in which the allegations of professional negligence were refuted because of the absence of privity and an attorney-client relationship between the Appellant and the Appellees. As for the commission of fraud by the Coldren law firm, for allegedly “knowing” that Cuteri did not have good title to the property pledged as collateral on the Escrow agreement and “misleading” the Appellant by delivering deeds purportedly transferring title which Cuteri did not have to convey “after” it drafted a deed conveying title away from Cuteri, it was asserted at page 6 of Coldren’s pre-trial brief that:

By [the Appellant’s] definition of fraud, any attorney called upon to prepare a deed for a client would be required to do a title search not only before doing the deed but up until the time the deed was utilized because, after preparing and delivering the deed to the client, another deed could be recorded [prior in time] that would make the deed prepared by the attorney useless.

After taking the matter under consideration, the court granted the preliminary objections of the Coldren law firm. This resulted in the Coldren law firm being removed from the law suit as a party-defendant. This appeal followed and raises three issues for our review, the first two of which can be consolidated into the query: “Did the court err in sustaining the preliminary objections in the nature of a demurrer of the Appellees?”

Since this is an appeal from the sustaining of a demurrer, we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom. Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989).

It is the Appellant’s position that it has stated a cause of action for professional negligence against the Appellees consistent with the Supreme Court’s decision in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), which noted that a party:

... must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services ... as a necessary prerequisite for maintaining [a suit.]

Id., 501 Pa. at 58, 459 A.2d at 750. More specifically, the Appellant contends that, despite the absence of a formal attorney-client relationship between itself and the Appellees, “[t]he facts, as alleged, clearly support imposing such a duty” under Guy’s “alternate theory that special circumstances or a specific undertaking may impose that duty.” Appellant’s Brief at 16. In support, the Appellant cites Lawall v. Groman, 180 Pa. 532, 37 A. 98 (1897), for an illustration of how a duty arises absent the usual attorney-client relationship.

Lawall involved an appeal from the trial court’s refusal to remove a non-suit for the Plaintiff’s failure to prove an attorney-client relationship between herself and the Defendant/attorney.

The Supreme Court reversed the trial court’s judgment in favor of the Defendant. In the course of doing so, the Court observed that the establishment of an attorney-client relationship was not based solely on compensation for services being paid by the party charging an attorney with professional negligence. Nor was such remuneration indispensable to the creation of a representative status. Rather, the facts needed to be examined to decide whether the relation of attorney and client arose from the “mutual understanding” of the parties. As stated by the Court:

In the present case it is undeniable that the defendant was acting for Roberts, the borrower, from whom he received his compensation, and to whom alone, upon the manifest understanding of all parties, he was to look for it. But that fact does not of itself prevent the relation of attorney and client between plaintiff and defendant, if such was the mutual understanding. There was no evidence of custom in that respect, and the court below might not be able to say, as matter of law,—certainly we cannot,—that such was in fact the custom. But, outside of the existence of any general rule, there was evidence from which the jury might have inferred that such was the understanding of these parties in this particular case. The defendant unquestionably acted to some extent for and in behalf of the plaintiff. After the money was paid over, he kept the mortgage, which was then the property of plaintiff, and he put it on record. In so doing he was clearly acting for plaintiff, and, if he had negligently delayed recording until a subsequent judgment or other incumbrance [sic] slipped in ahead of it, there can be no question that he would have been liable for the negligent performance even of a duty voluntarily assumed. But there was evidence that he did more for plaintiff than put the mortgage on record. Lawall testified that he [sic] told defendant “to search the title and the records in reference to liens,” and that “he said he would,” and more to the same effect. The presumption is that this was done in behalf of plaintiff. To Roberts, the borrower, the priority of other incumbrances [sic] was of no concern, with regard to this loan, except as bearing on plaintiffs willingness to advance the money; but to plaintiff it was a material fact, as part of the inducement or consideration for risking the investment. We are of opinion, therefore, that there was sufficient evidence to submit to the jury on the existence of the relation of attorney and client in the case.
But the nonsuit was also erroneous for another reason. Independent of the relation of attorney and client, there was evidence, already noticed, that defendant undertook certain duties for the plaintiff. The learned judge rightly says that collusion or fraud could not be found, on the evidence in the case, but this does not exclude liability arising from negligence. The principle settled in Coggs v. Bernard, 1 Smith, Lead.Cas. 369, that one who undertakes to do, even without reward, is responsible for misfeasance, though not for nonfeasance, has been generally adopted. If, therefore, defendant, knowing that plaintiff was relying on him, in his professional capacity, to see that her mortgage was the first lien, although Roberts was to pay the fees, undertook to perform that duty, he was bound to do it with ordinary and reasonable skill and care in his profession, and would be liable for negligence in that respect.

180 Pa. at 539-40, 37 A. at 98-99. Thus, in Lawall we had an attorney undertaking to perform a specific service for a third party, the reliance of that third party and the attorney’s knowledge of that reliance justifying the institution of a lawsuit.

Additionally, the concept of third-party beneficiary status being accorded to an individual not in privity with or under contract for the services of an attorney was endorsed by the Court in Guy v. Liederbach, supra, to allow an intended beneficiary to sue the scrivener of a will, which she witnessed at his direction and resulted in the loss of her entire legacy as a result thereof.

At bar, we need not inquire whether the Plaintiff should be permitted to bring suit under Guy’s third-party beneficiary theory since the facts, as alleged and given every inference fairly deducible therefrom, indicate that the Coldren law firm performed professional services on behalf of Pittsburgh Coal and Coke, Inc. See “no lien” letter, Exhibit “H”, R. 57; note 4, supra. As a result, under Lawall, we need only determine whether a “specific undertaking” took place with regard to the Coldren law firm on behalf of the Plaintiff and was articulated with sufficient specificity to survive preliminary objections. See Guy v. Liederbach, supra.

The first we learn of the Appellees’ involvement in the case is with Paragraph 10 of the Plaintiff’s complaint, which avers that the Coldren law firm conducted a “lien search” of the real estate which became one of the prongs of the lawsuit. Once the services were performed, the completion of the same and the findings were communicated to counsel for the Plaintiff by letter, i.e., “no mortgages or liens” affecting any of the property held in escrow for the benefit of the Plaintiff were uncovered.

In the remaining paragraphs of the complaint, in particular 12 and 21 through 26, the Plaintiff contends that the Coldren law firm committed fraud and malpractice in the manner in which it performed its role, characterized by the Plaintiff as a “duty” owed by the Appellees not to prepare invalid deeds listing Cuteri as title owner to property used as collateral in the Escrow agreement.

We begin with the observation, as did the court below, that there is a distinction between the scope of a “lien” search vis-a-vis a “title” search. Each seeks to uncover distinct information. For example:

In its broadest sense and common acceptation, a lien is understood and used to denote a legal claim or charge on property, either real or personal, as security for the payment of some debt or obligation. It has also been described as a hold or claim which one person has on the property of another as a security for some debt or charge, although the property is not in the possession of the one to whom the debt or obligation is due.

53 C.J.S., Liens, § 2 (1987) (Footnotes omitted). Thus, when one conducts a “lien” check, he is attempting to ascertain whether a piece of personal or real property is charged with the payment of a debt. Id. at 456. In contradistinction, a “title” search is more encompassing and, on occasion, entails the issuance of title insurance indemnifying the insured against loss occasioned by “a defect of title to real estate wherein the insured has an interest either as a purchaser or otherwise.” 43 Am.Jur.2d, Insurance, § 2 (1982).

In an attorney-client context:
An attorney employed to examine title to real or personal property must exercise reasonable care and skill in the matter, and the failure to do so is negligence for which he will be liable to his client in damages if his client is injured. This principle is applicable whether the examination is for a prospective purchaser, or a prospective lender.
An attorney employed to examine title may be held liable for negligence in the determination of the amount of location of real property, or in the determination of a seller’s or mortgage’s title. He must not overlook encumbrances such as mortgages or judgments or liens. Unless there is an understanding to the contrary, the title search must be carried forward to the time of closing title.
An attorney in examining and reporting on a title is not a guarantor. He only undertakes to bring to the discharge of his duty a reasonable skill and diligence, and he is not liable for making a mistake with respect to a doubtful question of law.

7 Am.Jur.2d, Attorneys at Law, § 207 (Footnotes omitted).

From the preceding it becomes evident that a title search includes a search for liens, in addition to uncovering the presence or absence of mortgages, judgments and a determination of a seller’s or mortgagor’s title. Therefore, although a title search extends itself to encompass a search for liens, the converse is not true. A lien search only seeks to discover whether property is charged with the payment of a debt and is not preoccupied with tracing one’s title-ownership to property back to its date of origination, e.g., land-grant date up to the time of closing—euphemistically referred to as “chain of title”. Black’s Law Dictionary 290 (Revised 4th ed. 1986).

Interestingly enough, it appears, at least facially, that this distinction is recognized by the Plaintiff in its pleadings. See Complaint, Paragraphs 10 and 12, wherein it is alleged that the Coldren law firm conducted a “lien search” of the real estate in question, whereas a “title search” conducted by a prospective buyer disclosed the absence of legal title to the same in Cuteri.

Therefore, we find that the Coldren law firm did exactly what it appears it was required to do in notifying the Plaintiff of having performed a “lien” check of the property. In doing so, the Appellees engaged in a “specific undertaking ... [to] furnish[ ] professional services” to the Plaintiff consistent with Lawall, supra. See Guy v. Liederbach, supra, 501 Pa. at 57, 459 A.2d at 750. However, the “duty” attendant to this search by the Appellees in no sense can be broadened to incorporate a legal obligation to advise the Plaintiff of a defective title to property used as collateral for the Escrow agreement. This information would have manifested itself only if the Appellees were engaged to perform a title search by the Plaintiff. See Lawall, supra. Because of the absence of this fact, the Plaintiff has failed to establish a breach of the Appellees’ legal duty to it, and, as such, no amount of amendatory pleading will salvage the malpractice/negligence cause of action. See Count VI, Paragraph 26; contrast MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 576 A.2d 1123, 1126 (1990).

The same result obtains with regard to the Plaintiff’s allegations of fraud; viz.:

COUNT IV
21. ...
22. Upon information and belief, Pittsburgh] C[oal and] C[oke] alleges that [the Coldren law firm] knew that Cuteri did not have good title to the Buildings and the Mount Braddock Property in preparing the deeds which conveyed his interest in this property pursuant to the Escrow Agreement. [The Coldren law firm] knowingly and maliciously committed fraud in concealing this material fact and thereby injured PCC in the amount of $360,000.
COUNT V
23. ...
24. Upon information and belief, PCC alleges that Cuteri, Eureka, and C[uteri] H[olding] C[ompany] knowingly and maliciously agreed with [the Coldren law firm] to defraud PCC by preparing invalid deeds for the Buildings and the Mount Braddock Property and by concealing from PCC the fact that Cuteri no longer held good title to this real estate. PCC suffered injury in the amount of $360,000 as a result of this unlawful conspiracy.

No one contests the fact that the June 11, 1984, deed, transferring Cuteri’s one-half interest in the properties in question to the partnership of Richard DiCenzo and Fred A. Cuteri, had been filed and of record with the Recorder of Deeds Office for the public at large to take note and examine. See R. 58. In light of such a fact, we would be hard pressed to find that the Appellees engaged in a “concealment of a material fact” which proved detrimental to the Plaintiff. Accordingly, we deem it proper to affirm the action of the court in granting the Appellees’ preliminary objections in the nature of a demurrer.

Order affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I agree with my colleagues that the averments contained in the complaint filed by Pittsburgh Coal & Coke, Inc. (P.C.C.) against Coldren, DeHaas & Raclifee and its partners (the Coldren firm) fails to set forth a cause of action upon which relief can be granted. Pa.R.C.P. 1017(b)(4). Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972). I would also agree that P.C.C. has failed to aver fraud with particularity as required by Pa.R.C.P. 1019(b).

The complaint was dismissed without affording P.C.C. any opportunity to amend, however. I must respectfully dissent.

It has long been the law to liberally grant leave to parties to amend their pleadings. Pa.R.C.P. 1028(c), 1033. Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978); MacGregor v. Mediq Inc., 395 Pa.Super. 221, 576 A.2d 1123 (1990). Although the decision of whether to grant leave to amend a pleading is a matter of judicial discretion, such amendments should be allowed at any stage of the proceedings to secure a decision on the merits, unless they violate the law or unfairly prejudice the rights of the other party. Id.

In Pennsylvania, a suit in trespass on a theory of negligence may be maintained against attorneys where either an attorney client relationship or a specific undertaking by the attorney furnishing professional services is shown. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983); Lawall v. Groman, 180 Pa. 532, 37 A. 98 (1897).

In this case, P.C.C. alleges that the Coldren firm, serving as legal counsel for an individual, a general partnership, and a corporation, each of whom are defendants in this action, drafted certain deeds for property pledged as security for the performance of certain obligations by the parties. The deeds were placed with an escrow agent on the representation that the grantor individual, Fred A. Cuteri (Cuteri), personally owned a one-half interest in the properties. The complaint further alleges that the Coldren firm had previously prepared a deed covering the same pledged property, which earlier deed transferred Cuteri’s interest into a partnership. The complaint also avers that the Coldren firm had, before the execution of the escrow agreement under which the agent held the later deeds, conducted a lien search. The Coldren firm had advised P.C.C.’s counsel that they had found no mortgages indexed against any of the parties and the only liens found had nothing to do with the property to be held in escrow for the benefit of P.C.C.

Although Pennsylvania might still be thought to adhere to the traditional rule requiring privity of contract, see Guy v. Liederbach, supra, the facts already set forth in the complaint now before us present a classic case of negligent misrepresentation at the very least. It can be inferred from the complaint that P.C.C. would not have entered into the escrow agreement without assurances that the deeds placed in escrow were capable of conveying good title in the event the defendants failed to perform under their agreement. Where, as here, the Coldren firm secures information and transmits it to a third party, knowing that the third party will rely on it to govern its future decisions and actions, its not entirely clear that an attorney-client relationship does not exist between the Coldren firm and P.C.C. Compare Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir.1987) (Illinois rule—one who in the course of his business or profession supplies information for the guidance of others in their business transactions is liable for negligent misrepresentations that induce detrimental reliance.)

When a lawyer at the direction of her client prepares an opinion letter which is addressed to a third party or which expressly invites the third party’s reliance, she engages in a form of limited representation of that third party. Crossland Savings FSB v. Rockwood Insurance Co., 700 F.Supp. 1274, 1282 (S.D.N.Y.1988). There can be no question but that the letter from the Coldren firm attached to the complaint as Exhibit H is an opinion letter. The letter states that a lien check was performed and that no liens or mortgages were found having anything to do with the property to be held in escrow. Given the allegation in the complaint that the same firm which made the lien check had prepared the earlier deed divesting Cuteri of an exclusive one-half interest in the property, it does not seem unreasonable to expect that the firm would have alerted P.C.C. to the defective title.

At the very least, I firmly believe that the plaintiff should have been afforded the opportunity to amend its complaint in order to set forth sufficient facts to establish its claim upon which relief might be granted.

I must expressly disagree with my colleagues’ emphasis on the distinction between a “lien” search and a “title” search. We here review preliminary objections, not an order granting or denying summary judgment. Without affording the plaintiff at least one opportunity to amend its pleading, we should refrain from speculating as to whether the Coldren firm did, or did not, do “exactly what it appears it was required to do in notifying the Plaintiff of having performed a ‘lien’ check of the property.”

I would not be as quick as my colleagues to conclude, by way of footnote, that no amount of alteration would overcome the preliminary objections given the allegations made. Opinion, page 796 n. 5. It is not our role, on review, to fashion averments which, if included in a pleading, would render that pleading sufficient. Nevertheless, it would take little additional averments, in my judgment, to demonstrate either an attorney-client relationship or a specific undertaking. I believe the majority concedes as much. Moreover, it would not be irresponsible to revisit Guy v. Liederbach, supra, given the “rapidly eroding doctrine of privity.” Id., McDermott, J., dissenting.

The Coldren firm prepared the no-lien letter knowing its intended use. The firm had previously prepared a deed which, when recorded, operated to convert the deeds in escrow into worthless documents. The firm voluntarily assumed a relationship with P.C.C. when it issued its no-lien letter. P.C.C. should be afforded the opportunity to plead whatever additional facts are in its possession surrounding these transactions.

I would: (a) affirm so much of the order of July 9, 1990 (entered July 13, 1990) as sustained Preliminary Objections I and II of the Coldren firm, (b) reverse that portion of the order which dismissed all claims against the Coldren firm, and (c) remand for further consideration of Preliminary Objections III through VI, without prejudice to P.C.C.’s right to seek and secure amendment of the complaint following any subsequent order of the trial court. Hence this dissent.

      . The Appellees consist of the law firm of Coldren, DeHaas and Radcliffe and its partners, Ira. B. Coldren, Jr., Ralph K. Barclay, Jr., Ernest P. DeHaas, III, William M. Radcliffe, and Bernard B. Klein (hereinafter referred to as "Coldren law firm” or "Appellees”).
      The appeal perfected by the Appellant is properly before this Court inasmuch as the Appellees, as co-Defendants, were removed from the suit with the grant of their preliminary objections. Cf. Chiricos v. Forest Lakes Council, Boy Scouts of America, 391 Pa.Super. 491, 571 A.2d 474 (1990). The Appellant is "out of court” as to its causes of action premised on professional negligence and fraud against the Appellees. Cf. Consul v. Burke, 403 Pa.Super. 400, 589 A.2d 246 (1991) (Order granting preliminary objections of additional defendants to their joinder in suit was appealable by original defendants).

      . Under the terms of the August 27, 1985, agreement, "Cuteri” included Fred A. Cuteri, Fred A. Cuteri, Jr., Cuteri Holding Company, and Eureka Energy Company.

      . Of interest is the reference by the Appellant in its complaint at Paragraph 12 that Richard DiCenzo was the proposed buyer, a named associate of Cuteri and a half owner of the properties sought to be sold.

      . Paragraph 10 of the Plaintiffs complaint makes reference to a lien search conducted by the Coldren law firm on the real estate in question. It indicates that the results of the lien search were communicated to Plaintiff s counsel in letter form appearing as Exhibit “H” in the record and reproduced supra. The letter, read in a light most favorable to the Plaintiff, reveals that the Appellees embarked on the performance of a task (lien search) and were reporting their findings to the Plaintiff.
      Because this search was to the benefit of the Plaintiff, of which the Appellees could be deemed to be aware, it is reasonable to infer that the conduct of the Appellees was initiated at the behest of the Plaintiff (be it directly or via counsel for the Plaintiff). Thus, we find that Lawall’s approval of a suit against an attorney for engaging in "a specific undertaking" for the complainant is apposite instantly to permit scrutiny of the alleged claims of malpractice.
      Under the circumstances as stated, we perceive no reason why Cuteri would have prompted the lien search since it would have been to the benefit of the Plaintiff to assure itself that the collateral was not encumbered.' Thus, it would appear plausible that the Plaintiff caused the lien search to be conducted and reported to it in the August 28, 1985, letter by the Coldren law firm. Cf. York Federal Savings and Loan Association v. Crider, 18 Adams County L.J. 7 (1976).

      . The third issue proffered by the Appellant challenges the court’s failure to afford it the opportunity to amend its complaint. We find this argument to be meritless inasmuch as no amount of alteration of the Appellant’s claims of malpractice and fraud would overcome the Appellees’ preliminary objections given the allegations made. Contrast MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 576 A.2d 1123, 1126 (1990).


author: HOFFMAN, Judge:

text:
    590 A.2d 798
    In the Interest of Tanya PALMER (Born 5/24/81), Edward C. Wissinger (Born 3/13/89). Appeal of Annette Jane LANDIS, Natural Mother.
    Superior Court of Pennsylvania.
    Argued March 21, 1991.
    Filed May 13, 1991.

      Dale A. Lundberg, Lower Burrell, for appellant.
    Dorean N. Petonic, Greensburg, for appellee.
    James L. Liberto, New Kensington, for Westmoreland County Children’s Bureau, participating party.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant, Annette Jane Landis, takes this appeal from a June 4, 1990 order adjudicating her one-year old child, Edward C. Wissinger (hereinafter “Eddie”), dependent. The order was entered after Eddie’s eight-year old half-sister, Tanya Palmer, died under suspicious circumstances. Appellant argues that the Westmoreland County Children’s Bureau did not prove by clear and convincing evidence that Eddie was a dependent child. For the following reasons, we reverse.

The deceased minor child, Tanya, was the daughter of Annette Jane Landis and Arnold Palmer. The minor child, Eddie, is the son of Annette Jane Landis and Edward Wissinger. Ms. Landis and Mr. Wissinger had lived together for three years before the death of Tanya Palmer.

The facts surrounding the death of Tanya Palmer were aptly summarized by the court below as follows:

On April 19, 1990, the natural mother was working her full-time job at a diner, and left the minor children in the care of Edward Wissinger who [was] unemployed. Although Mr. Wissinger refused to testify at the [dependency and custody] proceedings, invoking his Fifth Amendment Rights, the history provided by Mr. Wissinger to others is that the minor child, Tanya Palmer, went to take a bath. Twenty minutes later Mr. Wissinger went to check on her, and found her drowned in the bath tub. A question arose as to whether Mr. Wissinger immediately called for help upon discovering Tanya. There was considerable testimony over the period of time that was taken for the ambulance to arrive and take the child to the hospital, which indicates that the ambulance personnel acted promptly upon the call. There was also testimony from the emergency room physician who was concerned that the child was pulseless and that rigor mortis had set in, which is indicative of the fact that the child had [been dead] considerably longer than Mr. Wissinger’s history indicated.
Dr. Cyril H. Wecht, a forensic pathologist, found that the cause of death was drowning. Dr. Wecht determined that ... bruises on the [child’s] forehead and on the top of [her] feet ... [that] were quite recent ... were caused by a traumatic event that was not accidental. All of this[,] Dr. Wecht testified, was consistent with the child being forcibly held up by her feet and dangled into the tub with her head under water, causing her to drown. Dr. Wecht determined the bruises were sustained less than an hour prior to death and probably within minutes of death.

Trial Court Opinion at 2-3. Based on the above facts, the Westmoreland County Children’s Bureau (“the Bureau”) was notified on April 19, 1990, that Tanya Palmer had been brought to Latrobe Hospital and pronounced dead on arrival. By order of the Honorable Charles E. Marker of the Westmoreland County Court of Common Pleas, the Bureau assumed custody of Eddie Wissinger on that same day. The promptness of Judge Marker’s decision was apparently based on the suspicious nature of Tanya’s death. Thereafter, Edward Wissinger was arrested for the homicide of Tanya Palmer and, as of the date of the dependency hearings, was incarcerated while awaiting trial on that charge.

On April 27, 1990, the Bureau petitioned to have Tanya and Eddie adjudicated dependent. Hearings were held before the Honorable Charles E. Marker on May 8, May 18, and May 29, 1990. On June 4, 1990, an order was entered declaring that Tanya was a dependent child and that Eddie is a dependent child. This order awarded custody of Eddie to his maternal grandmother. Subsequently, on June 19, 1990, appellant filed a petition to regain custody of Eddie. On June 29, 1990, a hearing was held on appellant’s petition. On July 2, 1990, an order was entered returning custody of Eddie to appellant subject to certain conditions. That same day, appellant took this timely appeal from the June 4, 1990 order declaring Eddie dependent.

The apparent basis for the trial court’s conclusion that Eddie was dependent was its finding that appellant had “elected not to protect Tanya from Mr. Wissinger,” and “attempted to introduce evidence denying any abuse of Tanya by Mr. Wissinger.” Trial Court Opinion at 6. Appellant argues that (1) the evidence was insufficient to show that Eddie was abused or neglected during the time he was in the custody of his mother, and (2) the fact that Eddie’s half-sister may have suffered abuse did not provide an adequate basis for a determination that Eddie was a dependent child. Appellant therefore argues that the Bureau failed to prove by clear and convincing evidence that Eddie was dependent.

In order to find a child “dependent” under the Juvenile Act, it must be shown that the child is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” 42 Pa.C.S.A. § 6302. “[I]n determining whether a child is dependent, the hearing judge should not ask what are the child’s ‘best interests’ but whether the child is presently without proper parental care and, if so, whether such care is immediately available.” In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877-78 (1979) (citing In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976)). The purpose of the Juvenile Act is to preserve the unity of the family whenever possible. See In the Matter of Jackson, 302 Pa.Super. 369, 373, 448 A.2d 1087, 1088 (1982) (citing In re Donna W., 284 Pa.Super. 338, 343, 425 A.2d 1132, 1134 (1981); In the Interest of Pernishek, 268 Pa.Super. at 457, 408 A.2d at 877; In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979); In re Whittle, 263 Pa.Super. 312, 316, 397 A.2d 1225, 1226 (1979); In the Interest of LaRue, 244 Pa.Super. at 223, 366 A.2d at 1284). As stated by this Court, “it is ‘a very serious matter indeed to allege that a child is a dependent child and thereby invite the intervention of agencies of the state into a parent’s care of that child.’ ” In re T.D., 381 Pa.Super. 300, 304, 553 A.2d 979, 981 (1988) (quoting In Interest of Theresa E., 287 Pa.Super. 162, 171, 429 A.2d 1150, 1155 (1981)). Thus, a court may find a child dependent only upon proof by clear and convincing evidence. 42 Pa.C.S.A. § 6341(c); see also In the Matter of Jackson, supra 302 Pa.Super. at 373, 448 A.2d at 1088. Clear and convincing evidence is “testimony [that] is so clear, direct, weighty, and convincing as to enable the [fact-finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re Jackson, 267 Pa.Super. at 431, 406 A.2d at 1118 (quoting LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963)).

The court’s dependency order of June 4, 1990 was entered after hearing testimony on May 8, May 18, and May 29, 1990. The bulk of the evidence presented at these hearings concerned the events surrounding Tanya Palmer’s death and Mr. Wissinger’s treatment of Tanya prior to the date of her death. There was no testimony concerning appellant’s parenting ability. See In the Matter of Jackson, supra 302 Pa.Super. at 375, 448 A.2d at 1090 (citations omitted). Indeed, of the eleven witnesses called to testify in support of the Bureau’s petition, only three, family friends William and Sherry Jury and appellant herself, could have provided evidence regarding appellant’s parenting ability, and they did not do so. In addition, there was no evidence that Eddie had been abused or neglected. Finally, while it was undisputed at those hearings that Mr. Wissinger was incarcerated, there was no testimony regarding whether appellant would allow him access to Eddie if he were to be released. Despite this lack of evidence that appellant was an unfit parent or that Mr. Wissinger presented a threat to Eddie, the trial court adjudicated Eddie dependent and awarded custody to his maternal grandmother. See Order of Court, June 4, 1990.

On June 29, 1990, a hearing was held on appellant’s petition to regain custody of Eddie. At this hearing evidence was presented that indicated that Mr. Wissinger was incarcerated and, therefore, represented no immediate threat to Eddie. In addition, appellant testified that, even if Mr. Wissinger were to be released, she would not allow him to have any contact with Eddie. See N.T. June 29, 1990 at 13, 15, 22. Specifically, appellant testified on direct examination as follows:

Q. Are you agreeable to have a psychological evaluation and have any treatment necessary?
A. Yes.
Q. Are you agreeable to making sure all your baby sitters are cleared through Child Line?
A. Yes.
Q. If by chance Ed Wissinger would get released from jail, would you let him have any contact with Ed, Junior?
A. No.

Id. at 13. Furthermore, appellant testified on cross-examination as follows:

Q. You indicated that if Edward Wissinger, the father, were released from incarceration, you would see to it he [would] have no contact with your child.
A. Yes.
Q. Do you believe he should have contact with your child at this time?
A. No.
Q. What would you do in the event he came to the home to have contact with his son?
A. I wouldn’t answer the door.
Q. What else would you do?
A. I would call the Children’s Bureau and ask them what it is he has to do, and make sure he understands what he has to do so that I don’t lose Eddie again.

Id. at 15. Appellant also testified at this hearing that she would do whatever was required of her to regain custody of Eddie. Id. at 13-23. Moreover, testimony at the custody hearing revealed that appellant kept a clean home, id. at 7, had steady employment, id. at 5-6, and had arranged for baby-sitters to care for Eddie when she was working. Id. at 9. Finally, we note that both the Bureau and the guardian ad litem were present at the June 29 hearing and recommended that the child be returned to his mother’s custody following a psychological evaluation. Id. at 10, 27. For example, on direct examination a caseworker for the Bureau testified as follows:

Q. Does the agency have any concerns for the mother’s ability to take care of the minor child, Edward, at this time?
A. We have no concerns Ms. Landis can take care of Edward.
Q. What is the Westmoreland County Children’s Bureau recommending regarding placement of this child?
A. Since Ms. Landis now has a residence of her own again, since she has agreed to seek an evaluation to see if therapy is needed and to have appropriate caretakers for her child, and has agreed to have general protective services, we recommend that Edward be returned to her custody.

Id. at 8, 10. After hearing the above testimony and after receiving psychological evaluations on appellant, the trial court restored custody of Eddie to appellant. See Order of Court, July 2, 1990.

Our review of the evidence presented at the dependency hearings that preceded the June 4, 1990 order reveals that the Bureau failed to prove by clear and convincing evidence that Eddie was dependent. As we have noted, a child cannot be adjudicated dependent unless there is clear and convincing evidence that proper parental care is not immediately available. See In re A.E.M., 288 Pa.Super. 284, 288-89, 431 A.2d 1049, 1052 (1981); see also In the Interest of Pernishek, supra 268 Pa.Super. at 458, 408 A.2d at 877-78. Here, there was no serious question that appellant possessed sufficient parenting skills to care for Eddie. Indeed, the Bureau produced no evidence that would call into question appellant’s parenting capabilities. Instead, the determination below was premised solely on the court’s finding that appellant was unable to protect Eddie from Mr. Wis-singer. This finding is not supported by the evidence. No evidence was presented at the dependency hearings to suggest that Edward Wissinger presented a threat to Eddie, or that appellant was unwilling, or unable, to protect Eddie from such a threat. The fact of Tanya’s death alone does not justify the court’s finding that appellant “elected” not to protect Tanya or its apparent derivative inference that she therefore would not be able to provide proper parental care for Eddie. There simply was no record evidence to suggest that appellant knew, or should have known, of the danger to Tanya. Instead, appellant testified that, to her knowledge, Mr. Wissinger had never physically punished Tanya in the past. See N.T. May 29, 1990 at 18. This statement was not contradicted by physical or testimonial evidence.

We should note that, even if the evidence produced at the dependency hearings was sufficient to raise a question about appellant’s ability to provide proper parental care in light of the threat posed by Mr. Wissinger, the evidence introduced at the subsequent hearing on appellant’s custody petition should have removed this doubt. At that hearing, the Bureau conceded that appellant was a fit custodian, that Mr. Wissinger posed no threat to Eddie because he was incarcerated, and that appellant would not grant Mr. Wis-singer access to the child if he were released, and, in fact, recommended that the child be returned to appellant’s custody. In addition, appellant testified that she would do whatever was necessary to regain custody of her child, including prohibiting any contact between Mr. Wissinger and Eddie. We should note that the trial court credited appellant’s testimony in this regard.

We recognize, of course, the gravity of the situation in this family, and the trial court’s proper concern for Eddie’s safety in light of the circumstances surrounding Tanya’s death. However, the fact of Tanya’s death alone cannot justify a finding that Eddie is dependent when there was no prior indication that either Tanya or Eddie were physically abused, thus putting appellant on notice of a danger to her children, and when it was uncontested that the source of the threat to Eddie was incarcerated. A court may find a child dependent only upon “testimony [that] is so clear, direct, weighty, and convincing as to enable the [fact-finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re Jackson, supra 267 Pa.Super. at 431, 406 A.2d at 1118 (quoting LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963)); see also 42 Pa.C.S.A. § 6341(c); In the Matter of Jackson, supra 302 Pa.Super. at 373, 448 A.2d at 1088. Here, “the precise facts in issue,” i.e., the danger posed by Mr. Wissinger and appellant’s inability to properly protect Eddie from that danger, were not proved by clear and convincing evidence. Accordingly, because the evidence does not support the trial court’s finding of dependency, we reverse.

Order reversed. Jurisdiction relinquished.

ROWLEY, President Judge, notes his dissent.

      . Mr. Wissinger was incarcerated without bail because he had fled the State of Maryland after having been convicted of driving while intoxicated. Mr. Wissinger was sentenced to two-and-one-half years imprisonment on that charge. See N.T. June 29, 1990, at 7-8, 11-14, 19, 24-25.

      . The Order returned custody of Edward Wissinger to appellant subject to the following conditions: (1) appellant must follow the treatment program outlined by the psychologist; (2) appellant must ensure that there be no contact between Edward Wissinger and the dependent child; and (3) the Bureau must continue to provide general protective services until the Indiana County Child Welfare Agency can provide them.

      . 42 Pa.C.S.A. § 6301 et seq.

      . As we have already noted, Mr. Wissinger was sentenced to two-and-one-half years incarceration after leaving the State of Maryland following a conviction for driving while under the influence. See N.T. June 29, 1990 at 7-8, 11-14, 24-25. However, it is unclear how much time Mr. Wissinger has left to serve on that charge. Moreover, there is no indication in the record of the disposition of the homicide charge against Mr. Wissinger.


author: POPOVICH, Judge: TAMILIA, Judge,

text:
    590 A.2d 1255
    Janice B. LECKEY, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed April 12, 1991.
    Reargument Denied June 21, 1991.

      Edward C. Leckey, Pittsburgh, for appellant.
    Avrum Levicoff, Pittsburgh, for appellee.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case involves an appeal from the June 1, 1990, order of the Court of Common Pleas of Allegheny County denying a motion to amend a complaint by the plaintiff/appellant, Janice B. Leckey. We quash.

A detailed account of the facts of record is necessary to understand the basis for our determination: This suit was commenced by the filing of a praecipe for summons in civil action on May 27, 1988, by the plaintiffs attorney/husband, Edward C. Leckey, against The Aetna Casualty and Surety Company. Aetna responded with a rule to file a complaint upon the plaintiff.

A 3-count complaint sounding in trespass and contract was filed on August 26, 1988, in which the plaintiff alleged that she had a policy of insurance with Aetna covering her 1979 Mercury Zephyr against loss and/or damage. Paragraphs 4 & 5.

On May 30, 1986, the plaintiffs vehicle was damaged by flood-waters. The loss was reported to Aetna within 4 days. However, it was not until 2 weeks after the loss that the plaintiff was contacted by Aetna’s adjustor about the damages to the vehicle. She was informed that the vehicle was a total loss and she was offered “less than one-half of the value of the automobile to Plaintiff.” Paragraph 10.

It was the assertion of the plaintiff that had Aetna acted sooner the vehicle “could have been repaired” and she “could and would have driven it for another five years”. Paragraphs 8 & 9. Therefore, the plaintiff refused Aetna’s offer ($2,295.00), which was well below the amount the vehicle would have been worth (more than $5,000.00) had it been repaired. Paragraph 12. Also, the plaintiff averred that Aetna had removed the vehicle from where the plaintiff had it towed (Forest Hills Motor Company) to an “undisclosed location” constituting “conversion” of the automobile justifying the awarding of exemplary damages, together with the value of the Zephyr plus interest, exceeding $25,-000.00. Id.

In the remaining two counts of the complaint, the plaintiff requested payment, as provided for in the policy of insurance, for towing ($25.00) and a substitute vehicle ($450.00), as well as treble damages for Aetna’s alleged failure to advise her of the right to seek compensation (contrary to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-9.2).

Preliminary objections in the nature of a demurrer and a motion to strike were filed on September 9, 1988, to the request of the plaintiff for exemplary and treble damages (Counts I & III), both of which were claimed to have been unwarranted. In response, the plaintiff filed an amended complaint deleting Paragraph 12 of the original complaint, which made reference to Aetna refusing to pay and the plaintiff not accepting less than $5,000.00 for the vehicle. Preliminary objections, seeking the same relief as previously requested, were filed and dismissed by order of court dated November 16, 1988.

An “answer and new matter” to the amended complaint were filed by Aetna claiming, inter alia, the cost of repairing the vehicle would have exceeded the “fair value of the vehicle regardless of when ... repairs were completed”; the vehicle was a total loss; the offer made was not less than k of the value of the automobile; and the vehicle was taken by the insurer “in compliance with the provisions of the subject policy.” Paragraphs 8-11. The remaining allegations in the plaintiffs complaint were denied.

In new matter, Aetna asserted that the plaintiff failed to comply with the terms of the policy, all actions taken by it were in compliance with the policy issued and relief sought by the plaintiff was “foreclosed by virtue of the Pennsylvania Unfair Insurance Practices Act which provide[d] a full and complete administrative remedy which plaintiff ha[d] failed to pursue.” Paragraph 28.

The plaintiff filed preliminary objections in the nature of a motion to strike and for a more specific pleading. By order dated February 6, 1989, Paragraphs 27 and 28 of Aetna’s answer to the amended complaint were stricken, and Aetna had 20 days to plead more specifically as to Paragraph 20 of its answer. The latter occurred on February 28, 1989, in the form of an amended answer and detailed those instances in which Aetna offered to settle but was refused cooperation by the plaintiff and/or her representative. Again, preliminary objections followed claiming that the plaintiff was not seeking redress of her complaints under Aetna’s insurance policy. Rather, her recovery was premised solely in tort—the first count being for “conversion” of her automobile and the third count alleging misrepresentation under the Pennsylvania Consumer Protection Law. See plaintiff’s Brief In Support of Preliminary Objections at page 3. The remaining allegations of Aetna were labelled impertinent and scandalous.

By order dated April 21, 1989, the case was ordered to arbitration since the court concluded that the plaintiff could not recover in excess of $20,000.00 despite her request for punitive damages, and the plaintiff’s preliminary objections were sustained in part and denied in part. The plaintiff filed a reply denying all of the allegations made by Aetna in its amended answer.

Next, we have of record a motion for a protective order by Aetna against the plaintiff’s second set of interrogatories as “designed to unreasonably annoy and oppress” Aetna and a blatant misuse of the discovery process given that the case was assigned to arbitration. An order was issued on June 16, 1989, dispensing with the need for Aetna to answer the second set of interrogatories.

A motion to compel the production of documents was denied by order dated 6/30/89, whereas a petition to compel answers at deposition and production of documents for inspection was granted September 29, 1989.

A non pros was entered for the plaintiff’s failure to appear before an arbitration panel assigned to hear the case on September 6, 1989. Five days later, the plaintiff’s counsel/husband filed a petition to vacate the non pros on grounds that a hearing (on September 22, 1989) to resolve compelling answers at deposition and the production of documents should have resulted in the removal of the case from the arbitration list, the failure of which was “a result of a clerical error by the Arbitration Clerks[.]” Paragraphs 4 & 5. The order vacating the non pros was issued September 29, 1989.

By praecipe filed May 4, 1990, Aetna asked that the case be placed on the next available arbitration list for June 18, 1990. Also, Aetna’s second motion for a protective order was granted on May 18, 1990, so as to preclude the plaintiff from taking a deposition, a matter which was not provided for in the court’s September 29, 1989, order vacating the non pros.

On June 4, 1990, new counsel for the plaintiff filed a motion for leave to amend the plaintiff’s “Amended Complaint” to delete an item of damages and assert another cause of action not hereinbefore alleged, i.e., that Aetna and the salvage service (which took possession of the plaintiff’s automobile at Aetna’s direction) had engaged in a course of conduct (“an Enterprise by association in fact”) for “a substantial number of years before June, 1986 ... to date,” amounting to the repossession of vehicles insured by Aetna, selling them and realizing salvage value knowing that the automobiles could be repaired for less than their value to the owner, without disclosing said facts to the owners, and/or taking possession of an insured’s automobile without right or authorization to do so and transporting it to the salvage company. See Count IV of the plaintiff’s Amended Complaint.

The request to add Count IV to the plaintiff’s amended complaint was denied by order of court dated 6/1/90. This appeal was filed July 2, 1990.

Before addressing the issue posed for our review, i.e., whether the denial of the motion to amend the complaint was an abuse of discretion by the court below, we need to determine whether the appeal is (1) timely, and (2) final for appellate review purposes by this Court.

On the timeliness aspect of the question posed, we note that the plaintiff perfected her appeal on the 31st day following the lower court’s June 1, 1990, order denying her motion to amend her complaint. At first blush, it would appear that this is untimely since one must file an appeal within 30 days after the entry of the order from which the appeal is taken. Pa.R.App.P. 903(a).

In this case, the issuance and entry of the order occurred at two different times. For example, the lower court “issued” the order denying the motion to amend on June 1, 1990. However, the June 1, 1990, order was not “entered” by the prothonotary in the judgment docket until June 4, 1990. See Lansdowne v. G.C. Murphy Co., 358 Pa.Super. 448, 517 A.2d 1318 (1986), wherein this Court discussed the difference between the issuance of a court order and the entry of the same (spreading it on the record) by the prothonotary on the judgment docket. Thus, because the entry date of the order appealed is the pivotal time-frame looked to in this jurisdiction to calculate the timeliness of an appeal (see Pa.R.App.P. 301(a); Rule 903(a)), we find that the order appealed is not time-barred. See Lansdowne, supra; Rules 301(a), 903(a).

With regard to the finality of the order appealed, we deem it appropriate to examine the matter sua sponte, despite it not having been raised by either of the parties. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

As has been stated on numerous occasions, the finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. It has also been said that if the practical consequences of the order of the lower court is effectively to put an appellant “out of court” the order will be treated as final. Likewise, an order is “final” if it precludes a party from presenting the merits of his claim to the lower court.

Lansdowne, supra, 358 Pa.Super. at 452, 517 A.2d at 1320 (Citations omitted).

Additionally, this Court has stated in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (en banc), that the dismissal of a single count from a multi-count complaint, where to do so precludes the appellant from having the merits of his/her dismissed cause of action decided, is an appealable matter. In particular, the Praisner Court wrote:

Where separate and distinct causes of action have been joined under permissive joinder standards of Pa.R.C.P. 1020(a) or Pa.R.C.P. 1044(a), the appealability of a judgment entered on one or more but not all counts must be distinguished from the situation in which separate counts have been used to state alternate theories for recovery on the same cause of action. In the former situation the summary judgment has terminated litigation upon a separate and distinct cause of action. In the latter, an order dismissing or entering judgment on one or more but not all counts of a complaint is interlocutory, for the plaintiff' can, nevertheless, proceed to a determination on the underlying cause of action. Thus, the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum merit remains undecided. Similarly, there is no final order where a count averring negligence has been dismissed but there remains undetermined a count alleging liability for a defective product under Section 402A of the Restatement (Second) of Torts. For similar reasons, where one of several counts seeks to recover punitive damages in a complaint alleging a breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if he is successful in his cause of action for breach of contract does the measure of damages become relevant. The same result obtains where a separate count seeking punitive damages in a trespass action has been dismissed. In cases such as these the plaintiff is not out of court when one of several counts has been dismissed, and it is procedurally preferable to delay appellate review until the entire action has been determined

318 Pa.Super. at 341-42, 459 A.2d at 1260 (Citations omitted).

Instantly, as stated quite succinctly by the plaintiff in her pleadings, the tort (trespass) and contract suit she instituted was premised upon theories of recovery anchored in “conversion” (trespass) and “misrepresentation” (contract). These two principles remain in place as the predicate for the plaintiffs suit sounding in trespass and contract seeking to recover monies claimed due and owing, e.g., value of the 1979 Mercury, towing expenses and cost for a substitute vehicle, as well as compensatory, punitive (“exemplary”) and treble damages for the defendant’s behavior.

In other words, the plaintiffs contention, under the rubric of “trespass” and “contract”, remain intact as the predicate for the suit. Her causes of action, under the legend of “tort” (trespass) and “contract”, to recoup monies from the defendant have not been altered. The plaintiff’s attempt to inject claimed violations of the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1961 et seq., into the lawsuit is merely another theory of recovery under the penumbra of the “tort”/“contract” banner seeking reimbursement and money damages for claimed wrongs committed by the defendant. As such, we do not find the denial of the plaintiffs ability to amend her “amended complaint”, to include averments violative of the RICO Act, to be sufficiently separate and distinct in substance to constitute a cause of action independent of the “tort” and “contract” causes of action already proffered to warrant an immediate appeal with its denial. See Praisner, supra.

Moreover, evidence that the plaintiff was not “out of court” with the lower court’s order denying her an opportunity to amend her complaint for a second time appears from the fact that she was permitted to prosecute her complaint before an Arbitration Board on June 18, 1990, wherein she was awarded $2,295.80. See Record No. 30. This June 18th award has been appealed to the Court of Common Pleas of Allegheny County for a trial de novo. See Record No. 31. Accordingly, given the pendency of the plaintiff’s trial de novo, there appears to be no reason to treat the denial of her motion to amend “separable from, and collateral to, rights asserted in the action, [neither is it] too important to be denied review [nor] too independent of the cause itself to require that appellate consideration [not] be deferred until the whole case is adjudicated.” Praisner, supra, 313 Pa.Super. at 342, 459 A.2d at 1261, quoting Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); see also Gray v. State Farm Insurance Co., 328 Pa.Super. 532, 477 A.2d 868 (1984).

The Motion for Leave to Amend by the plaintiff alleged that she discovered “another cause of action” not previously asserted; it appeared under Count IV of the Second Amended Complaint as a violation of the RICO Act and asked for treble damages, the same relief sought by the plaintiff in Count III of her initial and first amended complaint. As such, we find the present appeal to be premature under the Praisner rationale, which discourages piecemeal litigation, especially where only a theory of recovery is being foreclosed to the plaintiff but not her causes of action in tort and contract. Accord Trackers Raceway v. Com stock Agency, 400 Pa.Super. 432, 583 A.2d 1193 (1990); Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990).

Even if, arguendo, we were to hold that the appeal was from a final order, we would hold that a RICO claim for alleged acts of fraud by an insurer is not permitted by the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. See Richhart v. Metropolitan Life Insurance Co. (reported at 1990 WL 39268, 1990 U.S.Dist. LEXIS 3597, filed March 30, 1990), wherein the United States District Court for the Eastern District of Pennsylvania wrote in relevant part that:

The McCarran-Ferguson Act was promulgated by Congress in 1945 with the intention of leaving regulation of the insurance industry to the states____ Subsequent to the enactment of McCarran-Ferguson, no Congressional pronouncements would be applicable to the business of insurance unless their stated purpose was directed at such, or express mention of the insurance industry’s inclusion in the provisions was made in the text. 15 U.S.C. § 1012(b). The intention was to promote regulation by the states, individually, without leaving room for unregulated operation of the insurance industry.
Where a claim for relief is made affecting the insurance industry, the McCarran-Ferguson Act bars application of federal law if:
1. The challenged activity is business of insurance; and
2. Such activity is regulated by state law.
McIlhenny v. American Title Ins. Co., 418 F.Supp. 364, 367 (E.D.Pa.1976). There is the further requirement stated in the act that the federal statute that a party claims entitlement under must not be one addressing the business of insurance, or one which makes reference to its proper application thereto. 15 U.S.C. § 1012(b).
The second requirement necessary for the McCarranFerguson Act to bar application of federal law is that the activity be regulated by state law.
>jc $ * * *
[T]he fact that state law permits a party to assert a right under common law as well as statutory theories[, as exists in Pennsylvania,] does nothing to preempt the McCarran-Ferguson Act’s preemption of federal causes of action in the insurance field.

(1990 WL 39268, at 2, 3, 1990 U.S.Dist. LEXIS 3597, at 3-4, 6)

Sub judice, as in Richhart, there are numerous provisions in the Unfair Insurance Practices Act, 40 P.S. § 1171.1 et seq. (Supp.1990), not to mention the “Declaration of purpose” proviso, which could be read to encompass the problems raised in the Second Amended Complaint of the plaintiff. See, e.g., 40 P.S. §§ 1171.2, 1171.5.

Consequently, there is no question of the applicability of the Pennsylvania insurance scheme to the plaintiff’s allegations of wrongdoing. Thus, the plaintiff’s RICO claims must be dismissed as they are barred by the McCarran-Ferguson Act. Richhart, supra.

For the reasons herein stated, we hold that the plaintiff’s appeal is not only premature, but, if the issue of the permissibility of pleading RICO Act violations in this suit were dealt with as other than dictum, an affirmance of the order appealed would be justified.

Appeal quashed.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting:

I respectfully dissent. Rather than quash the appeal, I would affirm on the basis of the Memorandum Opinion of the trial court.

      . To complete the procedural picture, we would note that the case at bar also proceeded to arbitration on June 18, 1990, and resulted in an award in favor of the plaintiff for $2,295.80. A notice of appeal from the award of the Board of Arbitrators of the Allegheny County Court of Common Pleas was filed on June 29, 1990. See Record No. 31. A trial by jury was demanded by the plaintiff in her appeal de novo to the Court of Common Pleas of Allegheny County. Id.

      . First Complaint filed August 26, 1988, Count I, Paragraph 11; Amended Complaint filed September 21, 1988, Count I, Paragraph 11.

      . First Complaint filed August 26, 1988, Count II, Paragraphs 14 & 15; id at Count III, Paragraphs 17 & 18; Amended Complaint filed September 21, 1988, Paragraphs 13 & 14; id at Count III, Paragraphs 16 & 17.

      . First Complaint filed August 26, 1988, at page 3 (Mandate/"Where fore” Paragraph); Amended Complaint filed September 21, 1988, at page 3 (Mandate/"Wherefore” Paragraph).

      . First Complaint filed August 26, 1988, Count III; Amended Complaint filed September 21, 1988, Count III.