text:
    621 A.2d 166
    Robin Lynn HACKMAN and John Hackman v. MOYER PACKING, t/a Mopac v. Michael CURRIE, t/a Currie Cleaning Service, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed March 8, 1993.

      Donna A. Hoch, Media, for appellant.
    Barbara C. Karkut, Philadelphia, for Moyer Packing, appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal, we are asked to review the enforceability of an agreement made by a cleaning service to indemnify its customer against bodily injury claims made by employees of the cleaning service. The trial court held that the agreement was sufficiently specific to require that it be enforced. We agree and affirm.

Robin Hackman, an employee of Currie Cleaning Service (Currie), filed an action against Moyer Packing Company (Moyer) in which she alleged that she had fallen while working for her employer on Moyer’s premises. The fall and injuries sustained therein, she alleged, had been caused by Moyer’s negligence. Moyer caused Currie to be joined as an additional defendant, alleging that Currie had agreed to indemnify Moyer against Hackman’s claim. Both Moyer and Currie thereafter filed motions for summary judgment. The trial court entered summary judgment in favor of Moyer and held that Currie was liable to indemnify Moyer for any damages recovered by Hackman in her action against Moyer. Currie appealed.

Section 481(b) of the Workmen’s Compensation Act provides as follows:

§ 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b) (emphasis supplied).

In Bester v. Essex Crane Rental Corporation, 422 Pa.Super. 178, 619 A.2d 304 (1993), the Superior Court concluded that an indemnity agreement would not be enforced in employee actions against third parties unless the employer’s agreement to indemnify the third party was made to apply specifically to claims by its employees. In the absence of specific language, the Court held, an employer’s waiver of the immunity granted to the employer by the Workmen’s Compensation Act would not be inferred. The Court said:

[Contracting parties must specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that third party’s own negligence which result in harm to the employees of the named employer. Absent this level of specificity in the language employed in the contract of indemnification, the Workmen’s Compensation Act precludes any liability on the part of the employer.

Id. at 308-09.

Instantly, the indemnification agreement provides in relevant part:

[Currie] ... agrees to indemnify, save and hold harmless Moyer Packing Company, its subsidiaries, affiliates, their directors, officers, agents, workmen, servants or employees, against any and all claim or claims brought by the agents, workmen, servants or employees of [Currie] for any alleged negligence or condition, caused or created, [in] whole or in part, by Moyer Packing Company.

By this language Currie specifically agreed to indemnify Moyer for liability arising from harm suffered by Currie’s employees while working on Moyer’s premises, even though Moyer may have been negligent in causing or contributing to the employees’ injuries. As such, the requirements for waiver under the Workmen’s Compensation Act have been met. The trial court did not err in concluding that the indemnity agreement was enforceable against Currie.

Currie also contends that its agreement to indemnify was not supported by valuable consideration. Currie asserts that it and Moyer had enjoyed a business relationship for at least a year before the indemnity clause was inserted into their existing agreement. Although it is generally true that a modification of a contract must be supported by new consideration, see: Wilcox v. Regester, 417 Pa. 475, 482, 207 A.2d 817, 821 (1965), the rule is inconsequential here. The original contract by which Currie was engaged to perform cleaning services for Moyer was subject to termination by either party upon 60 days notice to the other. Therefore, Moyer’s forbearance in terminating the cleaning services of Currie was adequate consideration for the agreement to indemnify. In order to continue its employment of Currie, Moyer could require that Currie agree to indemnify it against third party claims by Currie’s employees.

The parties’ indemnification agreement does not violate public policy. As all the decisions agree, an agreement to indemnify another against claims based on such other person’s own negligence will be enforced so long as the parties’ intent clearly appears. See, e.g.: Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 57, 171 A.2d 185, 187 (1961); Woodburn v. Consolidation Coal Co., 404 Pa.Super. 359, 364-366, 590 A.2d 1273, 1275-1276 (1991). Here, as we have observed, the indemnity agreement specifically obligated Currie to indemnify Moyer against employee claims even though based on Moyer’s own acts of negligence.

The contract was not one of adhesion. The contract was between two commercial entities, and there is nothing that would have prevented Currie’s awareness of its terms. See: Egan v. Atlantic Richfield Co., 389 Pa.Super. 290, 296, 566 A.2d 1249, 1252 (1989), allocatur denied, 525 Pa. 634, 578 A.2d 929 (1990). For all these reasons, the trial court properly determined that the indemnification agreement was enforceable.

The contract requires Currie not only to indemnify Moyer but also to undertake the defense of actions filed against Moyer by Currie’s employees. Because of this the agreement is broad enough to require Currie to reimburse Moyer for counsel fees and costs incurred in defending Hack-man’s action.

By other terms of the parties’ agreement, Currie was required to purchase insurance coverage to protect against liability claims. This was a provision separate from Currie’s agreement to indemnify Moyer. The fact that Moyer accepted a policy providing less coverage than that required by the terms of the parties’ agreement did not constitute a waiver of the benefits accruing under Currie’s agreement to indemnify. The terms of the indemnification agreement are enforceable and Currie is obligated to indemnify Moyer against the claim being made by Hackman. Therefore, the entry of summary judgment in favor of Moyer was proper.

Order affirmed.

      . Currie has also contended that Moyer improperly filed a supplemental brief after briefing and oral argument in the trial court. The procedure for briefing, however, is left largely to the discretion of the trial court. The trial court has stated in its opinion that Moyer’s supplemental brief was received before the conclusion of briefing and argument. We have no basis on which to disagree with the trial court’s observation, and no basis for deciding the present appeal differently because of the manner in which briefs were filed in the trial court.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    621 A.2d 585
    Carol Jay LEVY, Appellant, v. Peter J. JANNETTA, M.D., Howard Gendell, M.D. and Presbyterian University Hospital of Pittsburgh.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Dec. 31, 1992.
    Reargument Denied April 2, 1993.

      Fred S. Longer, Philadelphia, for appellant.
    Edmund L. Olszewski, Jr., Pittsburgh, for appellees.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order denying post-trial relief and affirming the grant of a non-suit in an informed consent case. Appellant raises one issue for our consideration, whether it was error to grant appellee’s motion for non-suit where appellant introduced deposition testimony of the appellee/defendant physician that indicated that facial paralysis was a common complication associated with a microvascular decompression procedure, where she testified, and the doctor admitted, that he did not inform appellant of this risk and where appellant suffered a facial paralysis after the surgical procedure was completed? After considerable study of the various issues raised or implicated in this appeal we reverse the order denying post-trial motions and grant appellant a new trial.

On March 1,1979, after suffering from a condition known as trigeminal neuralgia for many years, appellant sought medical evaluation from appellee Jannetta, a medical specialist in the field of cranial neurosurgery. Trigeminal neuralgia is a condition which results in the experiencing of severe pain in one or more facial areas associated with the fifth cranial nerve. Prior to meeting with Dr. Jannetta appellant had several surgical procedures performed in an effort to obtain relief from her facial pain. However, none of these provided any long term relief. Dr. Jannetta admitted appellant to Presbyterian University Hospital to consider performing a craniotomy and microvascular decompression of the fifth cranial nerve. Appellant ultimately had this surgery performed but after-wards experienced no relief- from the facial pain. Furthermore, appellant experienced facial paralysis subsequent to the surgery.

Appellant filed suit against appellees and pursued a battery action on the theory of a lack of informed consent. Proceeding pro se appellant deposed Dr. Jannetta and others and ultimately proceeded to trial. Quite unusually appellant did not produce an expert witness retained by herself. Instead appellant called Dr. Jannetta in an apparent effort to establish the expert witness aspects of her case. During questioning Dr. Jannetta was asked if he told appellant of the risk of suffering facial paralysis as a result of the surgery performed. Dr. Jannetta testified that he did not because at the time the surgery was performed he did not regard facial paralysis as a risk of the surgery appellant underwent. In response to Dr. Jannetta’s answers, appellant produced a copy of Dr. Jannetta’s deposition testimony after which the following exchanges, including reading from the deposition, took place:

Q. ... I had asked you if you could tell me what you told me about the surgery and your answer was: I invariably talked about the operation and what we planned to do and possible and major complications.
Question: What would those be?
And your answer was: Bleeding, infection, paralysis, strokes, loss of hearing of the ear, loss of coordination, facial paralysis.
Q. Do you recall your answer was: I can’t recall. I probably discussed microvascular decompression and the risks thereafter?
A. I’m sure that’s what it would have been.
Q. And the following question: What risks were they? And your answer was: the risks that I invariably talked about are death, stroke, bleeding, infection, facial palsy, lack of hearing, loss of hearing on that side, and numbness.

After appellant had rested her case appellees moved for a non-suit arguing that appellant had failed to make a prima facie case. At the core of this argument was the contention that appellant had produced no expert testimony to establish that facial paralysis was a known risk of the surgery performed. Additionally, it was argued that the deposition testimony that seemingly acknowledged this risk, and upon which appellant was relying, could not be used by appellant to establish this element. The motion was granted and appellant filed a post-trial motion which was denied. This appeal followed.

In reaching its decision it appears that the lower court was of the opinion or belief that appellant could not use both Dr. Jannetta’s deposition testimony and his testimony at trial to establish the elements of the cause of action. This appears crucial because Dr. Jannetta seemed to admit at trial that he did not inform appellant of the risk of facial paralysis while further indicating that it was not a risk associated with microvascular decompression at the time the surgery was performed. However, Dr. Jannetta’s deposition testimony seems to acknowledge that it was a risk associated with the surgery at the time the surgery was performed. The disposition of appellant’s challenge revolves around the resolution of two issues. One, whether appellant could rely upon the deposition testimony of Dr. Jannetta as expert testimony necessary in her case-in-chief; and, two, if so, whether the expert testimony and other testimony was sufficient to allow the case to go to the jury. We address these two issues generally, and in reverse order.

It is beyond dispute that medical expert testimony is necessary in an informed consent action to establish that the condition suffered was a known risk of a medical procedure at the time the procedure was performed. Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986). Appellant obviously attempted to meet this requirement through the testimony of appellee Jannetta. However, appellant contends that at trial Dr. Jannetta’s testimony differed from the testimony given during deposition. Consequently, appellant questioned Dr. Jannetta regarding his deposition testimony, as if to impeach him. It was during this questioning that Dr. Jannetta’s deposition testimony was read. Fairly read, Dr. Jannetta’s deposition testimony identifies facial paralysis as a “possible major and common complication” of the surgery appellant underwent. Although ideally a litigator would like to present much more solid and comprehensive expert testimony to make a prima facie case, our review of the law suggests that this commentary of Dr. Jannetta would be sufficient to allow the case to go to the jury.

In Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987), we specifically addressed the minimum requirements to allow the case to go to the jury in an informed consent case. There we stated:

The law is very clear that once expert medical testimony establishes that there was a risk of any nature to the patient that he or she was not informed of, and after surgery the patient suffers from that undisclosed risk, it is for the jury to decide whether the omission was material to an informed consent.
Festa holds that expert testimony is mandatory to establish existence of risks, existence of alternative methods of treatment and existence of risks attendant with such alternatives. It does not hold that expert testimony must establish all of the above before the question of whether there was an informed consent can go to the jury. We emphasize that once expert testimony establishes the existence of an undisclosed risk of a recommended medical procedure (or any one of the above-mentioned factors), it is the role of the jury to decide whether that type of harm if it occurs, is a risk which a reasonable patient would consider in deciding on whether to undergo or reject the procedure.

Id., 364 Pa.Super. at 474, 528 A.2d at 608. In light of this excerpt from Jozsa we must conclude that Dr. Jannetta’s identification of facial paralysis as a possible major and common complication would satisfy the expert testimony requirement to the extent the deposition statement can be considered competent evidence in appellant’s trial. Not surprisingly, appellees argue that it cannot.

Appellees assert that Dr. Jannetta’s deposition testimony cannot be used to satisfy the expert testimony requirement for a variety of reasons. However, an argument can clearly be made that the deposition testimony would be admissible against appellees. For example, Pennsylvania Rule of Civil Procedure 4020, regarding the use of deposition testimony, states, in relevant part:

(a) At the trial, any part or all of a deposition, ... may be used against any party who was present ... at the taking of the deposition ... in accordance with any one of the following provisions:
(2) The deposition of a party ... may be used by an adverse party for any purpose.

Thus, Rule 4020 would appear to allow the deposition testimony of Dr. Jannetta, a party to this action, “for any purpose.” Additionally, it is now firmly established that prior inconsistent statements' of a witness can be used as substantive evidence. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). We have little difficulty in concluding that Dr. Jannetta’s testimony at deposition was different than, or inconsistent with, the testimony offered at trial. Indeed, Dr. Jannetta asserted at trial that facial paralysis was not a known possible consequence of microvascular decompression at the time the surgery was performed while he identified it as such at deposition. In contrast to these arguments for considering the deposition testimony, appellees offer a number of counter arguments.

Appellees first assert that the deposition testimony cannot be utilized because it was equivocal and vague. They point to several of Dr. Jannetta’s comments made during the deposition that he could not recall exactly what he discussed with appellant and argue that these comments make the testimony less definite than is required of expert testimony. This argument misses its mark. It is not essential for appellant’s case that Dr. Jannetta remember what he discussed with appellant just before the surgery was performed. In fact, appellant quite specifically testified to what Dr. Jannetta did and did not tell her regarding the surgery. The importance to appellant is that Dr. Jannetta, or another medical expert, identify facial paralysis as a risk of the surgery appellant underwent. Dr. Jannetta did this at deposition. Dr. Jannetta indicated that he invariably talked about the possible major and common complications of the planned surgery. He was then asked what those would be and one of his responses was facial paralysis. He also stated that the risks he invariably talked about regarding microvascular decompression were death, stroke, bleeding, infection, facial palsy, lack of hearing, loss of hearing on that side and numbness. Consequently, twice during deposition Dr. Jannetta identified facial paralysis/palsy as a risk of the surgery appellant underwent. There is nothing vague or indefinite about those responses.

Appellees also argue that the deposition testimony was not made a part of the record and therefore was not part of the reviewable substantive evidence of the case. It is true that appellant did not formally introduce the entire deposition into evidence, although, appellant probably would have been wise to do so. However, we cannot conclude that such an omission is fatal to appellant’s case. Appellant, for the most part, is relying only upon the small excerpts of testimony detailed above. These were read to Dr. Jannetta, as prior inconsistent statements, in impeachment type fashion. Since prior inconsistent statements can be used as substantive evidence, it is only necessary that appellant prove their existence. Although this could have been accomplished by introducing the deposition transcript into evidence, since appellant was confronting Dr. Jannetta with these statements it is sufficient if Dr. Jannetta acknowledged making them. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975). We conclude that he did acknowledge them.

At trial, appellant began the entire line of questioning by asking Dr. Jannetta if he remembered being deposed by appellant in January of 1989, to which he responded yes. After the excerpt from the deposition was read Dr. Jannetta was asked if he recalled that conversation. It appears to us that this particular inquiry is somewhat confusing or vague as it is not clear whether the conversation referred to by appellant was the exchange at deposition or the conversation prior to the surgery. Dr. Jannetta’s response appears to refer to the conversation prior to surgery. However, he then responds by stating that appellant asked him a general question and “I gave you a general answer.” This comment must be construed to regard the answer given at the deposition. Consequently, a fair reading of the trial transcript leads to the conclusion that Dr. Jannetta acknowledged having made that statement at deposition and that the statement was properly available for use as substantive evidence that facial paralysis/palsy was a known risk of microvascular decompression surgery. We must conclude, therefore, that it was error to grant appellees’ motion for non-suit. Appellant was entitled to have her case go to the jury on the informed consent count.

We agree with appellees, however, that the present appeal appears limited to the viability of the informed consent cause of action. Although proffering a breach of contract cause of action in relation to Dr. Jannetta’s alleged guarantee that appellant could not suffer facial paralysis as a result of the surgery performed, appellant’s statement of the question involved does not fairly raise an issue with regard to this cause of action. Furthermore, a review of appellant’s motion for new trial does not seem to raise an issue regarding the granting of a non-suit on this count. Consequently, we must conclude that appellant has abandoned this cause of action. See, Pa.R.A.P. 2116(a) and Federal Kemper Insurance Co. v. Derr, 386 Pa.Super. 382, 563 A.2d 118 (1989).

For the above reasons we reverse the order denying appellant’s motion for a new trial with regard to the informed consent cause of action. The case is remanded for a new trial.

Order reversed, case remanded for a new trial.

DEL SOLE, J., notes his dissent.

      . In actuality, it was not necessary that appellant use both the trial testimony and the deposition testimony of Dr. Jannetta. The deposition testimony ostensibly established that facial paralysis was a known risk of the surgery while the trial testimony did not. And while the trial testimony established that Dr. Jannetta did not inform appellant of the risk of facial paralysis, a necessary part of appellant's case, her own testimony established this fact as well.


author: OLSZEWSKI, Judge:

text:
    621 A.2d 589
    COMMONWEALTH of Pennsylvania v. John E. GERMANN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 19, 1992.
    Filed Jan. 15, 1993.
    Reargument Denied March 30, 1993.

      Robert F. Pappano, Asst. Public Defender, Brookhaven, for appellant.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com.
    Before OLSZEWSKI, BECK and KELLY, JJ.
   OLSZEWSKI, Judge:

John Germann appeals from the judgment of sentence entered against him in the Court of Common Pleas of Delaware County following his conviction for possession of a controlled substance, possession of drug paraphernalia, operation of a vehicle without inspection, and violation of the use of a certificate of inspection. Germann was sentenced on February 13, 1992, to imprisonment of 30 days to 6 months on the possession conviction and a consecutive 12 months’ probation on the drug paraphernalia conviction. On appeal, Germann contends that the trial court erred in denying his motion to suppress physical evidence. We agree, and find that evidence seized during a search of Germann’s vehicle should have been suppressed as the product of an illegal search and seizure.

The facts adduced by the trial court are supported by the record, and we adopt those findings here:

On March 29, 1991, at approximately 8:15 a.m. Officer Matthew Egan of the Media Police Department was on routine patrol in the area of State Street and Providence Road. (N.T. 10/29/91, at 2-3.) While on patrol, Officer Egan observed the defendant, John Germann, operating a gray Datsun 280Z automobile that was in poor condition and with what appeared to be false or fraudulent inspection stickers. (N.T. 10/29/91, at 2-3.)
Officer Egan turned on his overhead flashing lights and pulled the Defendant over in the 200 block of East State Street in order to view the inspection sticker. Upon further visual examination, Officer Egan determined that both the state inspection sticker and the state emission sticker were fraudulent and therefore illegal. (N.T. 10/29/91, at 10-13.) At that point, Officer Egan asked the defendant for his operators license [sic] and registration. (N.T. 10/29/91, at 10.) The defendant gave Officer Egan his documents after which the defendant was asked to step from the vehicle. (N.T. 10/29/91, at 12.)
Officer Egan conducted a search of the Defendant’s vehicle that yielded two more illegal inspection stickers, Topps, [sic] rolling papers and multiple glassine baggies, one of which contained a white powder suspected to be cocaine. (N.T. 10/29/91, at 15-17.) It was later determined that the substance contained in the baggie was indeed cocaine. (N.T. 10/29/91, at 18.) The defendant was placed under arrest and his vehicle was towed. Prior to towing the vehicle, and pursuant to a normal procedure of the Media Police Department, an inventory search of the vehicle was conducted by Officer Egan. (N.T. 10/29/91, at 22-23.) This inventory search did not reveal anything of note. (N.T. 10/29/91, at 23.)

Trial court opinion, at 1-2.

Following the preliminary hearing and arraignment, Germann filed a motion to suppress and a hearing was held on October 29, 1991, before the Honorable Anthony R. Semeraro. Germann claimed that the search conducted by Officer Egan was impermissible as it was not incident to a valid arrest and was not supported by probable cause. Judge Semeraro ruled that the evidence was admissible. A trial was held and Germann was convicted. Post-trial motions were denied. This appeal followed.

Germann does not challenge the trial court’s finding that his vehicle was lawfully stopped for displaying a fraudulent inspection sticker in violation of 75 Pa.C.S.A. § 4703 of the Motor Vehicle Code. Accordingly, the issues presented for our review are: (1) whether the search of Germann’s automobile was justifiable as an automobile search based on probable cause; or, (2) whether the evidence seized would inevitably have been discovered pursuant to a valid inventory search. Initially, we note that the our role in reviewing an order granting or denying a motion to suppress is:

to determine whether the record supports (1) the suppression court’s findings, and (2) the legitimacy of the inferences and legal conclusions drawn from those findings ... [w]hen the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Martinson, 368 Pa.Super. 130, 533 A.2d 750 (1987) (citations omitted).

In denying Germann’s motion to suppress evidence, the trial court first determined that probable cause existed to justify the search of Germann’s vehicle. While searches and seizures conducted in the absence of a warrant are generally considered unreasonable under the Fourth Amendment, the trial court noted that “there is an established departure from the warrant requirement for certain automobile searches.” Trial court opinion, at 6. This departure is based on the practical problems in obtaining a warrant associated with the inherent mobility of the automobile, and on the diminished expectation of privacy relating to their open construction, their function, and their subjection to state regulation. Id. We note, however, that our Supreme Court has warned that “the general requirement that a warrant be obtained is not lightly to be dispensed with, and the burden is on those seeking an exemption from the requirement to show a need for it.” Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970) (quoting Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)).

Our courts have sanctioned the warrantless search of a vehicle, stopped for an ordinary traffic offense, only in those cases where independent probable cause was established to justify the search. We have persistently admonished, however, that stopping an automobile or arresting a driver for an ordinary traffic offense, does not, without more, permit a warrantless search of the vehicle. Dussell, supra; Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991). The validity of a warrantless automobile search incident to a summary offense depends on the reasonable cause the seizing officer has to believe that the contents of the automobile offend the law; not the right to arrest. Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971); Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988) (collecting cases).

To justify [a warrantless] search, even though a movable vehicle is involved, an officer must have independent probable cause to believe that felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.

Bailey, at 300, 545 A.2d at 947 (citations omitted) (emphasis added). The evidence required to establish “probable cause” must be more than a mere suspicion or good faith on the part of the police officer. Dussell, 439 Pa. at 396, 266 A.2d at 662 (citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)).

In Bailey, we sanctioned the warrantless search of a vehicle after the driver had been stopped for violating the speed limit. As appellant reached for identification from his pocket, the officer observed a clear plastic bag containing a white substance which the officer believed to be a controlled substance. This observation, coupled with the fact that the officer detected a “chemical-type” smell, established probable cause to search the passenger area and trunk. Bailey at 296, 545 A.2d at 945; see also Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991) (probable cause to search vehicle stopped for motor vehicle violation arose after police detected odor of marijuana and beer emanating from defendant’s vehicle); Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975) (probable cause to search vehicle stopped for routine traffic violation arose after police observed marijuana seeds and leaves inside the vehicle).

In Trunzo, supra, we concluded that the officer had probable cause to search the defendant’s trunk for alcohol, following defendant’s arrest for underage drinking. We found that the officer had reason to believe that evidence of a crime was concealed within the vehicle after his initial investigation yielded that defendant was nineteen years old, had the smell of alcohol on his breath, and was standing at the open door of the driver’s side of the vehicle. Moreover, the officer had received several complaints of underage drinking at the inn where the defendant was located and was responding to a call from a constable reporting that there was a problem.

Applying the standard enunciated in these cases to the present case, we conclude that the trial court erred in finding that there was independent probable cause for police to search Germann’s vehicle after stopping him for an ordinary traffic violation. The trial court predicated its probable cause finding upon Officer Egan’s observation that the fraudulent stickers discovered on Germann’s vehicle purported to expire that month, and that the vehicle was in very poor condition. (N.T., 10/29/91, at 7-18.) Officer Egan concluded that the vehicle would therefore be unable to pass a valid inspection. Id. Accordingly, Egan surmised that additional fictitious inspection stickers would have to be affixed to the car’s windshield within a matter of days and it was likely that these stickers would be inside Germann’s vehicle. Id.

In support of its finding that Officer Egan had independent probable cause to search Germann’s vehicle, the trial court relied on Commonwealth v. Duell, 305 Pa.Super. 431, 451 A.2d 724 (1982). In Duell, police stopped defendant for making an illegal turn. As defendant rolled down his window, the officer detected a strong odor of marijuana in addition to observing an open bottle of wine on the floor of the car. These observations clearly provided the officer with probable cause to believe that the vehicle contained contraband, and thus we held that the search was justifiable. Id. at 725. The trial court concluded that the facts in the present case, as in Duell, “when viewed in the totality of the circumstances, [would] warrant a man of reasonable caution to believe that contraband, in the form of additional illegal inspection [sic], is contained in the car.” Trial court opinion, at 8.

We reject the trial court’s conclusion that Duett is analogous to the present case. The conclusions drawn by Officer Egan from the poor condition of Germann’s vehicle and the impending expiration of the fraudulent sticker amounted to no more than a mere hunch or suspicion that additional stickers would be found inside the car. This is precisely the type of intrusion our courts have sought to avoid in preserving the individual’s expectation of privacy. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972); Lewis, supra; Duell, supra. To hold otherwise would engender too great a departure from the protections afforded our citizens in the privacy of their automobiles than is provided by our state and federal constitutions.

We now turn to the trial court’s holding that the evidence is admissible because it would have inevitably been discovered. The trial court held that even if the initial search was not based upon probable cause, a lawful inventory search would have resulted in the ultimate seizure of the evidence. This conclusion was based upon Officer Egan’s testimony that it is the policy of the Media Police Department to conduct inventory searches of automobiles before they are towed. (N.T., 10/29/91, at 36-37.) Police towing was purportedly necessary in this case because Germann’s vehicle was in violation of 75 Pa.C.S.A. § 4703(a). The trial court thus held that, “[i]t does not take a great leap of faith or logic to come to the conclusion that Officer Egan would not have allowed the defendant to continue to operate the vehicle and instead would have had the vehicle towed to the police station.” Trial court opinion, at 11.

Bearing in mind that Germann was originally stopped for a summary traffic offense, we do not agree that Germann’s vehicle would have inevitably been subject to a lawful inventory search. The trial court’s opinion failed to consider the threshold issue of whether police towing of Germann’s vehicle was warranted under the circumstances. We find that prior to Germann’s arrest for the seized evidence at issue, police towing would not have been justified. Section 3352 of the Motor Vehicle Code provides:

§ 3352 Removal of vehicle by or at direction of police
Any police officer may remove or cause to be removed to the place of business of the operator of a wrecker or to a nearby garage or other place of safety any vehicle found upon a highway under any of the following circumstances:
(1) Report has been made that the vehicle has been stolen or taken without consent of its owner.
(2) The person or persons in charge of the vehicle are physically unable to provide for the custody or removal of the vehicle.
(3) The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay [...]
(4) The vehicle is in violation of section 3353 (relating to prohibitions in specified places) except for overtime parking.
(5) The vehicle has been abandoned as defined in this title.

75 Pa.C.S.A. The facts of this case simply do not fall within the enumerated circumstances under § 3352. Because Germann would only have been issued a summary citation, he was available to provide for the custody and removal of the vehicle.

Even assuming that towing would have been consistent with police protocol in this instance, we do not believe that a complete search of Germann’s vehicle would have been congruous with our principles of a valid inventory search. It is well established that a valid inventory search is not designed to uncover evidence of a crime. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In Opperman, the Supreme Court established that an inventory search is only excepted from the warrant requirement or probable cause where it is motivated by a desire to safeguard the contents of the vehicle, and not by a design to uncover incriminating evidence. Id. at 374-375, 96 S.Ct. at 3099-3100.

Following Opperman, we established that two factors must be present in order to justify the reasonableness of an inventory search in the absence of probable cause. Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976). The Commonwealth must show: (1) that the vehicle in question was lawfully within the custody of the police, and (2) that the search was in fact an inventory search pursuant to the objectives laid down in Opperman. As we explained:

The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the car and not for the purpose of gathering incriminating evidence. The facts and circumstances which must be considered by the hearing judge are the scope of the search, the procedure utilized in the search, whether any items of value were in plain view, the reasons and nature of the custody; the anticipated length of custody, and any other factors which the court deems important in its determination. If, after weighing all the facts and circumstances, the court is of the opinion that it was an inventory search of an automobile lawfully in police custody, then any evidence seized as a result of this reasonable inventory is admissible. If on the other hand, the Commonwealth has not shown that the search was part of the police caretaking function, the probable cause-warrant standard must be used for determining reasonableness.

Brandt, 244 Pa.Super. at 161, 366 A.2d at 1242 (citations omitted); see also Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984).

It is clear in this case that the items were not discovered during an inventory search since Officer Egan’s motivation was to uncover additional fraudulent validation stickers. (N.T., 10/29/91, at 36.) Considering the totality of the circumstances as set forth in Brandt, we also find that the purpose of the eventual inventory search would have exceeded the permissible caretaking function given the facts that existed prior to Germann’s arrest. In United States v. Abbott, 584 F.Supp. 442 (W.D.Pa.1984), the court thoroughly evaluated the proper scope of an inventory search. The court noted that “motive” is the sole factor which distinguishes a criminal investigatory search from a noncriminal inventory search of an automobile. A questionable impoundment is one factor of circumstantial evidence of an improper motive. Id. Moreover, the inquiry into motive does not end once a finding of lawful police custody has been made “[f]or the facts and circumstances surrounding a lawful impoundment can still lead to the conclusion that an inventory search was motivated by an improper purpose.” Id. at 448. Here, Germann was stopped for a summary offense; there is no evidence that any valuable items were in plain view; the vehicle was in poor condition; the reason for the custody was merely to remove it from the highway; and the police removal was not mandated by law. Considering these factors, we conclude that a less intrusive method of protection than a full scale search of the car would have adequately fulfilled the care-taking function. We adopt the reasoning in Abbott, supra, which sets forth:

Logically, since an inventory search is to protect the owner’s property, the owner, whenever available, should be given the opportunity to determine how he wants his property secured. The Supreme Court has implicitly embraced this view:
that it should be only in the atypical case that police officers would find it necessary to conduct a general inventory search of an impounded vehicle. The owner of the property may be able to take reasonable steps to safeguard his property at the time of arrest, thus obviating the necessity of impoundment. It is only reasonable that the owner be allowed to choose whether or not he wishes his car impounded. In cases where the owner or operator cannot make his wishes known ... the property would be adequately safeguarded by rolling up the windows and locking the doors, subject of course, to reasonable steps to safeguard property in plain view within the automobile.

Abbott, 584 F.Supp. at 448 (citing United States v. Lawson, 487 F.2d 468, 477 (8th Cir.1973); Opperman, 428 U.S. at 375, 96 S.Ct. at 3100). Having determined that Germanris vehicle would not have been properly impounded and searched prior to his arrest, we reject the Commonwealth’s assertion of the inevitable discovery doctrine.

For the reasons stated in this opinion, the judgment of sentence for the possession of a controlled substance and possession of drug paraphernalia is vacated and remanded for a new trial. Jurisdiction is relinquished.

      . 35 Pa.S.A. § 780-113(a)(16)

      . 35 Pa.S.A. § 780-113(a)(32)

      . 75 Pa.C.S.A. § 4703

      . 75 Pa.C.S.A. § 4730

      . Section 4703(a) provides:
      (a) General Rule.—Except as otherwise provided in this section, no motor vehicle required to bear current registration plates issued by this Commonwealth shall be moved on a highway ... unless the vehicle displays a currently valid certificate of inspection issued under this chapter.

      . Section 4703(h) provides:
      Penalty.—Any person violating this section is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of up to $25.
      Section 4730(c), governing violations of the use of certificate of inspection, provides:
      Penalty.—A violation of the provisions of this section constitutes a summary offense punishable:
      (1) For a first offense, by a fine of $100.
      (2) For a subsequent offense, by a fine of not less than $200 nor more than $500 [...]

      . The non-investigative function of inventory searches “developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, ... the protection [of] police against claims or disputes over lost or stolen property, and the protection of the police from potential danger ...” Opperman, 428 U.S. at 378, 96 S.Ct. at 3101 (Powell, J., concurring).


author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    621 A.2d 595
    Richard E. MILLER, Appellant, v. Jerold S. BERSCHLER and Saul Solomon, Ind. and T/A Solomon and Berschler, a Partnership.
    Superior Court of Pennsylvania.
    Argued Aug. 13, 1992.
    Filed Jan. 22, 1993.
    Reargument Denied March 31, 1993.

      Paul R. Beckert, Jr., Bensalem, for appellant.
    Thomas D. Paradise, Philadelphia, for appellees.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order granting appellees’ renewed motion for summary judgment. The issue to be decided in this appeal is whether the lower court correctly found that appellant’s legal malpractice claim was not viable in light of the recent Supreme Court decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991), reh. denied, 528 Pa. 345, 598 A.2d 27 (1991), cert. denied, — U.S. -, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). Appellant makes divers arguments attempting to distinguish Muhammad. We agree with the lower court and three other courts of Common Pleas that have applied Mu hammad and find that within its confines the rule of Muhammad is well nigh absolute.

The facts are as follows. The appellant, Richard E. Miller, was represented in a divorce action by Jerold Berschler, Esq., a partner in the law firm of Solomon and Berschler. During the course of the divorce action, Miller and his wife entered into a property settlement agreement. By its terms, Miller agreed, inter alia, to pay alimony to his wife until his retirement, his wife’s remarriage, or the death of either party. The settlement agreement, however, did not address the wife’s possible cohabitation with another adult male after the divorce.

After a decree in divorce was entered, the wife began cohabitation with an adult male around Thanksgiving of 1986. In 1987, Miller learned of the cohabitation and applied to the court to terminate his alimony payments. The court denied his application, finding that cohabitation was not specified in the agreement as an event which would cause alimony to terminate. This legal malpractice action against the appellee was subsequently filed.

Appellant complains that he was not advised or made aware of the impact of the Divorce Code, or the necessity of a cohabitation provision in the settlement agreement for termination of alimony liability. The complaint suggests that it was because he lacked this information that he assented to an agreement which did not expressly terminate the payments of alimony in the event of his wife’s cohabitation. The damages the appellant has sought are essentially the amount of alimony payments that he has made as of the date of cohabitation until the date when, under the agreement, alimony terminates. A motion for summary judgment by the appellee was initially denied. However, after the Supreme Court’s decision in Muhammad, supra, the appellee renewed his motion based on the import of that case. The court granted the appellee’s motion, noting that Muhammad forecloses legal actions based on negligence and/or contract principles. This appeal followed.

The law relating to summary judgment is settled. A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Intili v. Salak, 403 Pa.Super. 578, 584, 589 A.2d 761, 764 (1991); Johnson v. Woodland Hills School District, 135 Pa.Cmwlth. 43, 45 n. 2, 582 A.2d 395, 397 n. 2 (1990). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party, and must resolve all doubts against the moving party. Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984).

The sole issue in this appeal is whether in the instant matter Muhammad, supra, bars actions for legal malpractice which arises out of the settlement of a prior claim. The appellant asserts that Muhammad is limited to allegations of attorney negligence in investigating a matter in anticipation of settlement or negotiating the settlement itself. He distinguished this situation, which he claims involves the duty of an attorney to explain the consequences of a proposed settlement. He characterizes Muhammad as arising out of circumstances where a dissatisfied litigant believed he should have received more money or a better settlement. He notes the undeniable harshness of a rule of law which would foreclose legal malpractice actions for an attorney’s negligence in advising his client in regards to the provisions of a settlement agreement.

We find the appellant’s argument unpersuasive. Muhammad, speaking in straightforward terms, bars litigants who have entered a settlement agreement from subsequently maintaining a suit against their attorney for legal malpractice unless fraud is alleged in the inducement of the agreement. While it may be argued that this is a fundamentally problematic holding, we are obliged to follow the pronouncements of our highest court. See, e.g., Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985) (“The formal purpose of the Superior Court is to maintain and effectuate the decisional law of [the Supreme] Court as faithfully as possible.”)

In Muhammad, plaintiffs’ infant son died following surgery from improperly administered general anesthesia. Plaintiffs hired a law firm to bring a medical malpractice action against the anesthesiologist, the surgeon and the hospital. After settlement negotiations, the defendants offered a settlement of $23,000 to the plaintiffs. This offer was later increased to $26,500 at the suggestion of the court, and the plaintiffs accepted it. Subsequently, however, the appellees informed the law firm they were dissatisfied with the settlement. When they found out that the settlement agreement could not be broken, the plaintiffs retained new counsel and sued the law firm for legal malpractice. The law firm argued that under the doctrine of collateral estoppel, the action should be dismissed because it was trying to relitigate the settlement agreement. Although it found the doctrine of collateral estoppel inapplicable, the Supreme Court sua sponte promulgated a rule affording attorneys broad protection in malpractice cases.

Simply stated, we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which the plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when the client has agreed to a settlement. Rather, only cases of fraud should be actionable.

Id., 526 Pa. at 546, 587 A.2d 1346. The court gave the following rationales for this rule: the court declared that the essence of settlement is contractual in nature, and similar to a contract, the time for questioning whether a settlement agreement is advantageous is before settlement, id. at 547-548, 587 A.2d at 1349; the contract principle of caveat emptor applies similarly to settlements, so that a person entering into a settlement agreement is locked into whatever compromise he agreed to once the settlement becomes effective, id. at 548, 587 A.2d at 1349; the Court found that overriding principles of public policy supported its result, as lawyers might be reluctant to settle a case if they feared a client might later find a way to sue them for something that “ ‘could have been done, but was not,’ ” id. at 548, 587 A.2d at 1349; the court was concerned with the lack of finality and delay in already overcrowded courts and believed “we [the court] should view ‘litigation concerning litigation’ cases with a jaundiced eye,” id. at 549-550, 587 A.2d at 1350; litigation over settlements is of particular concern, because settlement is an essential part of the efficient operation of our judicial system, id. at 550, 587 A.2d at 1349; and finally, there are distinct societal advantages to a judicial system which is not adversarial in nature but attempts to resolve disputes by compromise or concession, id. at 551-552, 587 A.2d at 1351.

It appears that, given the broad policy rationales employed by the Supreme Court and the unqualified articulation of its “simply stated” holding, Muhammad proclaims a clear, bright line rule which, absent fraud, shields attorneys from legal malpractice claims sounding in negligence or contract where they involve cases concluded by completed settlement. Post-Muhammad, a party dissatisfied with the settlement agreement provided by their attorney can only seek redress if it can establish it was fraudulently induced into agreeing to settle, and it is incumbent on the client to plead with specificity fraud in the inducement. Id. at 552-53, 587 A.2d at 1351.

Given the doctrinal sweep of the court’s decision, we find that the lower court, which interpreted Muhammad in a way similar to this opinion, did not err in granting summary judgment. If Muhammad is to be narrowed, direction must come from our Supreme Court.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. The majority, in my judgment, paints with too broad a brush. By taking the decision of the Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991), cert. denied, — U.S. -, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991), and applying it to facts to which that decision can have no reasonable application, the majority has unnecessarily and unwisely expanded the Supreme Court’s holding. It has fashioned a rule of law which blindly protects the careless and does a disservice alike to those members of the lay public who must rely upon their lawyers for legal advice and the conscientious, careful practitioners who willingly accept the responsibility for providing such advice.

The issue in this appeal is the liability of a lawyer who negligently failed to advise his client correctly about the state of the law before the client entered a marital settlement agreement. The trial court held that there could be no such liability and entered summary judgment for the defendant-lawyer. A majority of this Court agrees and affirms. I disagree and would reverse.

The plaintiff, Richard E. Miller, was represented in a divorce action by Jerold Berschler, Esquire, a partner in the law firm of Solomon and Berschler. During the course of the divorce action, Miller entered a property settlement agreement by the terms of which he agreed, inter alia, to pay alimony to his wife until Miller’s retirement, his wife’s remarriage, or the death of either party. The agreement said nothing about the wife’s possible cohabitation with an adult male. Miller has alleged that his lawyer negligently failed to advise him that the wife’s continued habitation with an adult male, in the absence of agreement to the contrary, was a basis for terminating alimony under the provisions of the Divorce Code at 23 Pa.C.S. § 3706. It was solely because he lacked this infoxmation, he suggests, that he agreed to the terms of a written contract which did not expressly terminate the payments of alimony in the event of his wife’s cohabitation with an adult male.

After a decree in divorce had been entered, Miller’s wife, in November, 1986, began cohabiting with an adult male. Miller thereupon applied to the court to terminate his payments of alimony. The court, finding an agreement to pay alimony despite his foimer wife’s cohabitation, denied his application. Miller then commenced an action against his lawyer, alleging negligence in failing to advise him correctly of the applicable law and his rights regarding the payment of alimony. A motion for summary judgment was denied. Following the Supreme Court’s decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, supra, however, the lawyer-defendant renewed his motion for summary judgment, and this time the court granted it. Miller appealed.

A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984).

“The essential elements which must be demonstrated to state a cause of action for attorney malpractice are: the employment of the attorney or other basis for duty; the failure of the attorney to exercise ordinary skill and knowledge; and that such negligence was the proximate cause of damage to the plaintiff.” Liberty Bank v. Ruder, 402 Pa.Super. 561, 567, 587 A.2d 761, 764-765, allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991). See also: McHugh v. Litvin, Blumberg, et al., 525 Pa. 1, 5, 574 A.2d 1040, 1042 (1990); Rizzo v. Haines, 520 Pa. 484, 499, 555 A.2d 58, 65 (1989); Schenkel v. Monheit, 266 Pa.Super. 396, 398, 405 A.2d 493, 494 (1979). A lawyer will be found negligent if he or she fails to possess and exercise that degree of skill, knowledge and care that would normally be exercised by members of the profession under the same or similar circumstances. McPeake v. Cannon, Esquire, P.C., 381 Pa.Super. 227, 232, 553 A.2d 439, 441 (1989). The duty to exercise ordinary care extends also to the conduct of settlement negotiations. Rizzo v. Haines, supra, 520 Pa. at 499, 555 A.2d at 65. A lawyer has a duty to inform himself of the facts as to how a proposed settlement affects his or her client, and to inform the client as to the consequences thereof. 7A C.J.S., Attorney & Client, § 261, citing Wade v. Clemmons, 377 N.Y.S.2d 415, 84 Misc.2d 822 (1975). See also: In re Snitoff, 53 Ill.2d 50, 289 N.E.2d 428 (1972), cert. denied, Snitoff v. Board of Managers of Chicago Bar Ass’n., 412 U.S. 906, 93 S.Ct. 2292, 36 L.Ed.2d 971 (1973); Joos v. Drillock, 127 Mich.App. 99, 338 N.W.2d 736 (1983). As the Court observed in Lang v. Anton, 40 Pa.D. & C.3d 47 (Pa.Com.Pl.1983),

A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.

Id. at 48. In order to advise a client properly, a lawyer must be familiar with the well settled principles of law and rules of practice which are of frequent application in the ordinary business of the profession; must observe the utmost good faith toward his client; and must give such attention to his duties, and to the interests of his clients, as ordinary prudence demands, or members of the profession bestow.

George v. Caton, 93 N.M. 370, 377, 600 P.2d 822, 829 (1979). “A lawyer has an obligation to his or her clients to scrutinize any contract which [he or she] advise[s] [a] client to execute and [is] required to disclose the full import of the instrument and the possible consequences that may arise upon execution of it____ The duty imposed on a fiduciary embraces the obligation to render a full and fair disclosure to the [client] of all facts which materially affect his rights.” Soderquist v. Kramer, 595 So.2d 825, 830 (La.App.1992). See also: Bush v. O’Connor, 58 Wash.App. 138, 791 P.2d 915 (1990) (“Under common law, an attorney unquestionably has a duty to investigate the applicable law and to disclose the results to his clients”).

The provision of the Divorce Code which provides for termination of alimony in the event the receiving spouse cohabits with another is a principle of law which is known to practitioners of marital law and one which the defendant-lawyer should have been aware of in the instant case. Even if he were unfamiliar with the applicable provision of the statute, moreover, he should have familiarized himself with it before advising the client regarding his duty to pay alimony. It seems readily apparent to me, therefore, that appellant has stated a cause of action for legal malpractice and that judgment should not be entered summarily in favor of the defendant.

The decision of the Pennsylvania Supreme Court in Muhammad v. Strassburger, et al., supra, does not require a different result. In Muhammad, the lawyers had represented parents who had a medical malpractice claim for the death of their son. As a result of negotiations, the parents agreed to settle their claim for the sum of twenty-six thousand, five hundred ($26,500.00) dollars. Although the parents subsequently expressed dissatisfaction with the amount of the settlement, the court in which their action had been pending ruled that the settlement agreement would be enforced. Thereafter, the parents brought suit against their lawyers for legal malpractice, contending that the lawyers had been negligent in recommending settlement. The trial court sustained preliminary objections in the nature of a demurrer to the complaint and dismissed the action. The Superior Court reversed, and the Supreme Court granted allocatur. After argument, the Court held that the parents had failed to state a cause of action on which relief could be granted. The Court said:

This case must be resolved in light of our longstanding public policy which encourages settlements. Simply stated, we will not permit a suit to'be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when that client has agreed to a settlement. Rather, only cases of fraud should be actionable.

Id., 526 Pa. at 546, 587 A.2d at 1348. The Court reasoned as follows:

Mindful of these principles [which encourage and support settlements in our court system], we foreclose the ability of dissatisfied litigants to agree to a settlement and then file suit against their attorneys in the hope that they will recover additional monies. To permit otherwise results in unfairness to the attorneys who relied on their client’s assent and unfairness to the litigants whose cases have not yet been tried.... (emphasis added).
We do believe, however, there must be redress for the plaintiff who has been fraudulently induced into agreeing to settle. It is not enough that the lawyer who negotiated the original settlement may have been negligent; rather, the party seeking to pursue a case against his lawyer after a settlement must plead, with specificity, fraud in the inducement. (emphasis in original).

Id. at 552, 587 A.2d at 1351.

The salutary policy which undergirded the Supreme Court’s decision in Muhammad has no application to the facts of the instant case. In Muhammad, the only issue necessary to the client’s decision to accept or reject the settlement was the amount of money being offered. In the instant case, the defendant-lawyer’s alleged negligence does not lie in the amount agreed to be paid in settlement. The settlement agreement in this case involved a great deal more than offering and accepting an amount in settlement of appellant’s rights and obligations. The intelligent entry of an agreement settling marital property rights depended upon appellant’s knowing and understanding all relevant considerations. This required that his lawyer investigate the applicable law and disclose the effect thereof upon a settlement of the marital property rights. Without such information, the client could not make an intelligent decision regarding the terms of the agreement. In this respect the plaintiff in the instant case was in the same position as any other client who relies upon the advice of a lawyer before entering a complex, legal agreement. His position was not altered merely because the legal agreement had the effect of settling amicably a pending divorce action. As such, the client was entitled to be told about the law pertaining to his obligation to pay alimony, the duration thereof, and the nature of those events which would effect a termination of his obligation.

In my best judgment, therefore, Muhammad is not dispositive of the instant appeal. The policy which encourages settlements of law suits does not operate to relieve a lawyer from a duty to inform his or her client of all relevant considerations before the client enters and signs a complex legal agreement. In such cases, the client must be told of the impact of the agreement and the possible consequences that may arise therefrom. There must be a fair disclosure to the client of all facts which may materially affect the client’s rights.

The record in the instant case suggests that there is a factual dispute as to whether the defendant-lawyer fulfilled this obligation to the client. In such a case, the entry of summary judgment is inappropriate.

I would reverse and remand for further proceedings.

      . See Phelps v. Williams (No. 83-5499-14-2 C.C.P. Bucks Co., Oct. 30, 1991); Estate of Andrews v. Newman, (No. 88-06167 C.C.P. Montgomery Co., Oct. 8, 1991); Dries v. Holko (No. 86-C-1942 C.C.P. Lehigh Co., Sept. 27, 1991) (bench opinion).

      . The decision of the trial court was affirmed on appeal.


author: HOFFMAN, Judge:

text:
    621 A.2d 601
    Ilene FORGANG, Rhona Forgang and Warren Forgang, Appellants, v. UNIVERSAL GYM COMPANY, Universal Fitness Products, Abbey Racquetball Club, Inc., Medi Fitness Corporation, and Lisa Michaels, Additional Defendant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1992.
    Filed Jan. 22, 1993.
    Reargument Denied March 30, 1993.

      Craig Bernstein, Philadelphia, for appellants.
    Christine M.M. Brenner, Philadelphia, for appellees Abbey Racquetball Club and Medi Fitness.
    Before BECK, HOFFMAN and BROSKY, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment entered September 30, 1991 following the trial court’s order of a directed verdict in favor of appellee, Abbey Racquetball Club, Inc. (“Abbey”). Appellants, llene, Rhona and Warren Forgang (“the For-gangs”) argue that the trial court erred in (1) entering a directed verdict where disputed issues of fact remained, namely whether appellee retained control of the premises and whether appellee was a landlord out of possession; (2) admitting into evidence a written agreement for the use of the facility for a prior fraternity party where appellants were not a party to that writing and were not present at the event; (3) making a factual determination that warning labels were placed on the equipment used by appellant; and (4) precluding cross-examination concerning the use of the facility where the terms of the rental agreement were unclear and at issue. For the reasons that follow, we reverse.

The undisputed facts are the following. In 1983, SAR, a fraternity held a party at Abbey Racquetball Club. Prior to the event, an agreement was signed by five individuals including SAR member Matt Weintraub and his parents Dan and Julie Weintraub. Because the organization consisted of minors, the rental agreement required the presence of five sponsors or chaperones at the event. Clause H of the agreement provided that “[n]o physical fitness equipment on the second floor may be used.” Both Dan Weintraub and his wife were chaperones at the 1983 party and instructed the other chaperones that the partygoers were not to use the equipment.

On November 2, 1984, SAR held another party at Abbey and another agreement was signed. During the party, the club was not open to the general public or Abbey’s regular members. As with the 1983 agreement, the new agreement required the presence of a minimum of five chaperones during the event. The document also provided for “[the] same rules and regulations as previous party.” Thus, the equipment on the second floor was not to be used during the 1984 party. Nevertheless, during the party, appellant llene Forgang was utilizing a “pec dec” chest press machine when she was struck on both sides of her face and jaw by the arms of the machine, sustaining serious injuries.

Appellants filed a complaint against appellee alleging inter alia that llene Forgang’s injuries were caused by appellee’s negligent conduct. Trial commenced on October 23,1990. On October 29, 1990, the trial court granted appellee’s motion for a directed verdict and instructed the jury to enter a verdict in favor of appellee. N.T. 10/23/90 at 512. The court reasoned that Abbey was a landlord out of possession and thus owed no duty to those upon the premises. Id. at 513. The court also granted the motion on the basis that notices were posted on the equipment prohibiting nonmembers from using the equipment. Appellants filed post trial motions which were denied. This timely appeal followed.

“On a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the party against whom the motion is made and must accept as true all evidence which supports that party’s contention and must reject all adverse testimony.” Cooke v. Travelers Ins. Co., 350 Pa.Super. 467, 471, 504 A.2d 935, 936 (1986) (citations omitted). A directed verdict may be granted only where the facts are clear and there is no room for doubt. Id. See also Person v. C.R. Baxter Realty Co., 340 Pa.Super. 537, 540, 490 A.2d 910, 911 (1985).

Appellants argue that the court improperly granted the motion for directed verdict where disputed issues of fact remain. They assert that the trial court disregarded evidence which indicated that appellee retained control of the premises during the party. Specifically, they point to the fact that employees of appellee were present during the party. In addition, they point to a provision in the rental agreement in which appellee reserved the right to remove anyone not complying with the club’s rules and regulations. See Agreement dated 10/2/84, Clause G (“The club employees have the right to ask anyone to leave the premises if they do not abide by the Abbey rules.”) We agree.

“ ‘As a general rule, a landlord out of possession is not liable for injuries sustained by persons on his or her property unless the landlord has retained the right to control the portion of.the premises on which the injury occurred.’ ” Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 487, 577 A.2d 894, 895 (1990) (citations omitted). See also Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 343, 431 A.2d 1073, 1080 (1981). Moreover, a landlord who retains control is only liable if, by the exercise of reasonable care, the landlord could have discovered the condition and risk involved and made it safe. Pierce v. Philadelphia Housing Authority, 337 Pa.Super. 254, 257, 486 A.2d 1004, 1005 (1985).

Evidence in the instant case indicates that appellee may have retained a degree of control of the premises during the party. Therefore, appellee’s reliance on Farmers Export Co., Inc. v. Energy Terminals, Inc., 673 F.Supp. 715 (E.D.Pa.1987) for its assertion that the directed verdict was proper is misplaced. In that case, Farmers Export Co., Inc. (“Farmers”) was a lessee of premises and Energy Terminals, Inc. (“Energy”) was a sublessee of a portion , of the premises on which an employee of Energy’s contractor was injured. In determining whether Farmers maintained control of the leased premises, the court first looked to the wording of the lease agreement. The court placed particular emphasis on a clause granting Energy “exclusive use” of the property and providing that Energy was to make at its own expense all repairs and improvements to the property.

Next, the court examined the parties’ respective actions taken on the premises. It noted that Energy had assumed complete control over selecting, paying, and directing the subcontractor’s employees. Additionally, the court was “not persuaded by Energy’s contention that Farmers’ placement of [an employee] on the premises during working hours before the accident and its effecting remedial measures, after the accident, constitute control over the premises as a matter of law.” Id. at 719. The court stated that the employee “was merely a fire watch instructed to look out for Farmers’ adjacent property. At no time, did [Farmer’s employee] direct [the subcontractor’s] employees on the premises.” Id.

In the instant case, as in Farmers Export, a review of the rental agreement indicates that SAR leased the entire premises for their party and that “[s]ponsors are responsible for all in attendance.” See Agreement dated 10/2/84. However, unlike Farmers Export, there are several indications that Abbey may have retained control over the premises.

Testimony of appellants’ witnesses indicated that two Abbey employees were present “in a supervisory capacity.” N.T. 10/26/90 at 437. One club employee handed out volleyballs and racquets for racquetball and the other employee walked around overseeing activities. N.T. 10/24/90 at 208; N.T. 10/26/90 at 437. A guest witnessed one of the Abbey employees roping off certain equipment during the evening. N.T. 10/23/90 at 79. Josh Weintraub, another guest, testified that one of the Abbey employees showed him how to use the exercise equipment. N.T. 10/24/90 at 195-196, 201. An Abbey employee also testified that “[their] job that night was to patrol the place and make sure that things ran right.” N.T. 10/26/90 at 491. Moreover, the employees of Abbey were empowered to “ask anyone to leave the premises if they [did] not abide by the Abbey rules.” See Agreement dated 10/2/84, Clause G. As there was evidence which a jury could interpret as showing that appellee had retained possession and control of the premises, the trial court erred in directing a verdict in favor of appellee.

For the foregoing reasons, we reverse the judgment in favor of appellee and remand for proceedings consistent with this opinion.

Reversed and remanded; jurisdiction relinquished.

      . The court also directed a verdict in favor of defendant Lisa Michaels. However, appellants do not appeal that order.

      . In light of our resolution of the above issue, we need not address appellants’ remaining issues.


author: TAMILIA, Judge:

text:
    621 A.2d 604
    Marianne F. McDONALD v. Gerald F. McDONALD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1992.
    Filed Jan. 26, 1993.
    Reargument Denied March 31, 1993.

      Kim L. White, Asst. Public Defender, Lancaster, for appellant.
    Christopher C. Straub, Lancaster, for appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Husband appeals from the May 18, 1992 Order granting wife’s request for interim counsel fees and directing him to pay wife’s counsel $8,000 within fifteen (15) days of the date of the Order.

The parties were married on February 1, 1958 and separated on or about January 12, 1991, when appellant left the marital residence. The parties’ four children are all emancipated. On February 21, 1991, wife filed for divorce and after a hearing before a domestic relations officer, by Order dated April 24, 1991, husband was directed to pay support/alimony pendente lite and arrearages and the college tuition of their daughter. On December 13, 1991, wife filed a petition for interim counsel fees and, upon submission of memoranda regarding the issue, the court entered the Order which is the subject of this appeal.

Husband argues the court abused its discretion by awarding wife $8,000 counsel fees and contends further the May 18, 1992 Order is a nullity in light of wife’s death prior to the entry of a divorce decree. We disagree.

In determining the propriety of an award of counsel fees in a divorce action this Court uses an abuse of discretion standard of review. Williamson v. Williamson, 402 Pa.Super. 276, 586 A.2d 967 (1991); Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987). An award of counsel fees is not granted automatically but is appropriate when necessary to put parties on equal footing in defending their rights or to allow a dependent spouse to maintain or defend a divorce action. Johnson, supra. We find the $8,000 award accomplished that end.

Although the 55-year old appellee had completed two years of college, she never worked during the parties’ 34-year marriage and, at the time the Order was entered, had been diagnosed with terminal cancer and had been hospitalized repeatedly for surgery. Appellant represented appellee’s sole source of income and, as appellee testified, as a consequence of appellant’s delinquent payments, she was forced to borrow approximately $5,000 to satisfy bills which had accumulated during the parties’ separation. The testimony of appellant, a 56-year old independent contractor whose business procuring lease agreements earned him salaries in excess of $60,000 during the years 1989 and 1990, albeit suffering a severe earnings reduction in 1991, was found completely incredible. (Slip Op., Hummer, J., 8/21/92, p. 5.) This finding by the court was particularly applicable to husband’s testimony regarding the whereabouts of liquid assets totaling approximately $120,000 with which he absconded after the parties’ separation and deposited out of state and, at the time of the hearing, was conveniently unable to locate. Moreover, the court found most of the counsel fees incurred by appellee were the result of her efforts to locate the funds appellant had secreted in a Michigan bank and/or exhausted. Based on these facts and our review of the record, we find the trial court did not abuse its discretion by awarding counsel fees to the wife for the divorce action.

We also find appellee’s untimely demise did not render the counsel fees award a nullity and appellant’s reliance on Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), is misplaced. In justifying its finding Orders of interim counsel fees are interlocutory and therefore not immediately appealable, the Fried Court reasoned any possible errors of interim relief may be adjusted during final settlement via equitable distribution, alimony or the final award of attorneys’ fees and costs. Id. at 96, 501 A.2d at 215. Husband argues because the divorce action abated upon appellee’s demise, any funds he expended to pay interim counsel fees are not recoverable.

We disagree with appellant’s reasoning and find Fried inapplicable to the matter before us as we have ruled the award of counsel fees to wife’s attorney was proper and incurred for services already performed and, therefore, a fixed obligation of the husband regardless of the fact the divorce proceeding was abated by wife’s demise. Additionally, this Court in 1986 stated an award of counsel fees is based upon the need of one party and the ability of the other party to pay and, therefore, an award does not depend upon the granting of a decree in divorce and in appropriate cases may be awarded even after the divorce action has abated because one of the parties has died. “The death of a party to a divorce does not necessarily extinguish the need for an award of counsel fees. The estate of a deceased party may nevertheless remain liable to an attorney for services which have been rendered in the divorce action. In an appropriate case, therefore, a court may award counsel fees even after the divorce action has abated because one of the parties has died.” Drumheller v. Marcello, 351 Pa.Super. 139, 143, 505 A.2d 305, 307 (1986), reversed on other grounds, 516 Pa. 428, 532 A.2d 807 (1987). Continuing with this line of reasoning, it follows had we found an award of counsel fees inappropriate, which we did not so find, appellee’s attorney would be free to sue the estate to recover the debt incurred by appellee prior to her death, thereby reducing husband’s guaranteed statutory share of his wife’s estate by $8,000.

Lastly, we note with disfavor the fact appellant failed to comply with the May 18, 1992 Order directing him to pay $8,000 within 15 days, that is June 2, 1992. Only through his wife’s unfortunate passing on June 7,1992, and this appeal has appellant escaped being found in contempt. In that respect, we could find the appeal interlocutory, as sanctions have not been applied, except that the court below granted a supersede-as as to all financial considerations allowing an appeal to be taken because of the quandary created by the death of wife. The trial court believes this appeal to be interlocutory because the decree had not been entered, but final because of the abatement of the divorce action due to the death of the wife which divests the court of jurisdiction. Because a remand of the case could only result in a delay of the disposition of the issue of counsel fees, with further action against the husband and wife’s estate under a theory of marital debt, for the sake of judicial economy, we find a resolution at this time appears most appropriate.

Appellee requests the court remand this matter With the sole directive to recalculate appropriate counsel fees which, appellee contends, is $9,916 and not $8,000 as set forth in the court’s Opinion (Slip Op. at 6).

Our review of the record and, in particular those notes of testimony referred to by the trial court, indicates the counsel fee amounts discussed by the parties were $7,850 and $7,800, respectively (N.T., 1/14/92, p. 76, and 3/23/92, p. 201). Without further documentation of an alleged mathematical error we are constrained to deny appellee’s request for a remand and affirm the award for $8,000.

Based on the reasons of fact and law set forth above we find the court did not abuse its discretion by awarding appellee $8,000 counsel fees and her subsequent demise did not relieve appellant of that obligation.

Order affirmed.

      . We recognize interim counsel fee Orders are generally interlocutory and as a rule not appealable. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). However, in this case appellee died three weeks after the Order was entered and prior to the entry of a divorce decree thereby making the Order final and subject to review by this Court.