author: BROSKY, Judge:

text:
    449 A.2d 583
    COMMONWEALTH of Pennsylvania v. Alphonzo F. ZABALA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1981.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Denied Dec. 1, 1982.

      Abraham A. Hobson, III, Norristown, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   BROSKY, Judge:

Appellant was convicted of forgery and theft by deception in connection with purchases he made using Travelers Express Company money orders at various commercial establishments in Lansdale, Montgomery County, on May 12, 1979. His motions for New Trial and in Arrest of Judgment were denied, and sentence was imposed. We affirm.

Appellant raises the following issues on appeal: (1) whether he was denied a fair trial because comments by the Assistant District Attorney and various prosecution witnesses during trial implied that appellant had engaged in prior criminal activity; (2) whether the in-court identifications by the prosecution witnesses should have been suppressed (3) whether the forgery statute (Title 18, Pa.C.S. § 4101) can be violated by signing of a fictitious name, and, if so, whether the Commonwealth failed to sustain its burden of proving that the name signed, “Richard Swan,” was indeed fictitious; and (4) whether the trial court erred in its instruction to the jury on the elements of theft by deception.

On November 30, 1977, the Gayman Check Cashing Agency, 300 East Tioga Street, Philadelphia, was broken into through a wall which separated it from an adjoining apartment. Seven hundred ninety-seren Traveler’s Express money orders were stolen, and the Traveler’s Express Company was so notified. We are here concerned with six of these money orders. They were passed on May 12, 1979, at six different stores in Lansdale, Montgomery County. The purchaser identified himself as “Richard Swan” and signed the money orders as such, receiving merchandise and change in return for each. All of the stores attempted to deposit the money orders in their accounts, only to have them returned, payment refused because they were stolen. Store personnel involved in each transaction identified the appellant at trial as the man who had posed as “Richard Swan.” Experts testified to the presence of appellant’s fingerprints on two of the money orders and to a “high probability” that the signatures were written by the appellant.

Appellant claims to have been prejudiced by comments of the Assistant District Attorney and various prosecution witnesses, which allegedly implied that he had been involved in prior criminal activity. The opening and closing remarks of the Assistant District Attorney are not reflected in the record, so we are unable to evaluate the propriety of the trial judge’s denial of defense attorney’s motion for mistrial. The appeal briefs for both parties indicate that the comments of the prosecutor to which the defense attorney objected were references to the burglary of the Gayman Check Cashing Agency. Evidence of the burglary was necessary to show that the subject money orders did not enter the stream of commerce in a lawful fashion. Furthermore, the trial judge reminded the jury that statements of counsel are not evidence and that the defendant was not charged with stealing the money orders. In view of the foregoing, we find no prejudice to the appellant arising from the comments of the Assistant District Attorney.

The direct examination of Officer Morrison by the Assistant District Attorney, as to whether the officer knew the defendant, was also objected to in a defense motion for mistrial on grounds of prejudice. Rule 1118(b) provides for mistrial, on motion, “[w]hen an event prejudicial to the defendant occurs during trial.. . . ” Pa.R.Crim.P. 1118(b). The standard for declaring a mistrial was set out in Commonwealth v. Shepherd, 269 Pa.Super. 291, 409 A.2d 894 (1979): “. .. mistrial is warranted when a juror ‘could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.’ ” Id., 269 Pa.Superi- or Ct. at 294, 409 A.2d at 895. The facts presented by Officer Morrison’s testimony included the assertion that he was the officer who fingerprinted the defendant following his arrest. Therefore, it would be equally as consistent for the jury to infer that the officer knew the defendant because he fingerprinted him as for it to infer that the defendant had previously been involved in criminal activity. Since fingerprinting is commonly known to be routine procedure following an arrest, the officer’s testimony could not have been surprising to the jury, nor prejudicial to the defendant. There being no prejudice, the motion for mistrial was properly denied.

Appellant also argues that the trial court erred in denying its motion for mistrial, made in response to the testimony of Detective McCarthy. McCarthy’s testimony was similar to that of Morrison; on direct examination, he answered that he knew the defendant and knew where the defendant lived.- The defense objected. Detective McCarthy was the officer who arrested the defendant. The reasonable inference to be drawn from the facts presented by McCarthy was that the detective knew the defendant and knew his address because he arrested him. The defendant would not be in court if someone had not arrested him. Therefore, the detective’s testimony was not prejudicial to the defendant and the motion for mistrial was properly denied.

Appellant also claims that the examination of Sarah Gayman owner of the check cashing agency from which the subject money orders disappeared, elicited details of the burglary without relevant basis. The testimony allegedly enlarged “... the scope of the criminality. . . ” and inflamed the jury. We agree with the trial court: •

This evidence was relevant and probative to establish that there was no authority for the negotiation of the money orders. The evidence uniformly tended to show that travelers issued the checks to Gayman and they were never lawfully placed into the stream of commercial paper. (Trial court opinion at page 5.)

The appellant contends that the in-court identifications by prosecution witnesses should have been suppressed. The basis for this argument is that the witnesses failed to identify the appellant from an allegedly suggestive photo array shown them before trial. Because the in-court identifications were permitted, appellant maintains that his attorneys were compelled to cross-examine the witnesses regarding their earlier failure to identify him. This cross-examination, appellant complains, led the jury to believe that the police had a photograph of appellant and, by implication, that appellant had a criminal record. Such a belief on the part of the jury allegedly deprived the appellant of a fair trial.

The fact that the witnesses could not identify the appellant in a photographic array does not render their in-court identifications any less admissible. The fact that they could not identify appellant earlier is relevant only to the weight and credibility of their testimony. See Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Boone, 287 Pa.Super. 1, 429 A.2d 689 (1981). Counsel chose to cross-examine, and elicited testimony regarding the inconsistent identifications from several witnesses. The effect of the inconsistency was then to be determined by the jury.

Appellant cites Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972), for the precept that “. . . the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge.” In the case at bar, the prosecution did not introduce the potentially prejudicial evidence; the defense did. Appellant’s counsel weighed the possible benefits of eliciting the inconsistency against the potential for prejudice, before making his decision to cross-examine. He is bound by his decision and must accept its consequences.

Appellant’s allegation that the photo array shown to the prosecution witnesses was suggestive is immaterial to the suppression issue under consideration here. In Commonwealth v. Davis, 264 Pa.Super. 505, 400 A.2d 199 (1979), the court said:

Subsequent to ... a suggestive out-of-court identification, in-court identification is admissible if, considering the totality of the circumstances, it is determined that the in-court identification had an independent origin sufficiently distinguishable from the impermissible pretrial encounter. .. ., 264 Pa.Superior Ct. 509, 400 A.2d at 201.

If there is an “independent origin” for the identification of the defendant in court, then such identification is not to be suppressed.

The “totality of the circumstances” which determines “independent origin” consists of factors enumerated by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). They are:

. . . the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description and the defendant’s actual description, any identification prior to lineup of any person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. 388 U.S. at 241, 87 S.Ct. at 1940.

The Commonwealth has the burden to establish the “independent origin” for an in-court identification which follows an (arguably) suggestive out-of-court identification. The standard of proof to be applied is one of “clear and convincing evidence” the Wade factors are to be used to determine whether that standard has been met.

Numerous Pennsylvania decisions apply the Wade criteria to determine whether there is an independent source for an in-court identification. Such an identification was permitted, even though preceded by an arguably suggestive pretrial identification, in Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) (witness saw defendant for 5 minutes by the light of a streetlamp from a distance of 8 to 17 feet, accurately described the defendant to the police, and testified positively and consistently regarding the identification at the pretrial suppression hearing); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976) (witness saw defendant for 5 to 10 minutes at time of incident with good light. Witness never identified another as the defendant, nor failed to identify the defendant. Photo array shown to witness one month after incident.); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976) (Witness had focused her attention on the defendant, observing him for several minutes in a well-lit area.); Commonwealth v. Burton, 452 Pa. 521, 307 A.2d 277 (1973) (Rape victim’s testimony: “That’s the man that was in my room,” held to indicate independent origin for the identification.)

In the case at bar, the six witnesses who identified the appellant at trial testified that during the incident they had been able to observe him for approximately 15 to 30 minutes, at: distances ranging from two feet to eight feet. All testified to very good lighting at the scene of the incident. It is clear that the witnesses’ prior opportunities to observe the alleged criminal acts were more than adequate to establish independent basis for their in-court identifications of the appellant. Therefore, regardless of whether the photo array shown to the prosecution witnesses was suggestive, the trial court properly refused to suppress their identifications of the appellant made at trial.

The third issue raised by appellant regards forgery: whether, under the Crimes Code, it can be committed by the signing of a fictitious name, and, if so, whether the Commonwealth sustained its burden of proof that the name “Richard Swan” was indeed fictitious. [We respond to both issues in the affirmative.]

The offense of forgery is defined in Title 18 Pa.C.S. § 4101:

(A) Offense defined.—A person is guilty of forgery if, with intent to defraud or injury anyone .. . the actor:
(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act .... (Emphasis added.)

Appellant argues that a literal reading of subsection (2) establishes a requirement that the name allegedly forged be proven to be that of an actual person because only an actual person could possibly have authorized his name to be signed by another. By reverse implication, appellant maintains, “.. . the person must be capable of giving his authority and therefore not fictitious.” (Brief for appellant, at page 10.) The Commonwealth’s response is that a fictitious person cannot, by definition, authorize another to sign his name. The appellant’s position is further refuted by the reasoning in Commonwealth v. Globe Indemnity Co., 323 Pa. 261, 185 A. 796 (1936):

... a name is fictitious when it is feigned or pretended, and a nonexistent person is one who does not exist in the sense that he was not intended to be the payee by the drawer. 323 Pa. at 266, 185 A. 796.

The money orders passed at the stores in Lansdale on May 12, 1979 were among those stolen from the Gayman Check Cashing Agency on November 30,1977. Payment had been stopped on the money orders because they were stolen. Therefore, there was intended to be no payee on any of the money orders. This fact alone rebuts the appellant’s contention that, even if a forgery can be committed by use of a fictitious name, the Commonwealth failed to sustain its burden to prove that “Richard Swan” was fictitious under Globe Indemnity, supra, regardless of whether “Richard Swan” is an actual person, he did not exist “. .. in the sense that he was not intended to be the payee, ...” (323 Pa. at 266, 185 A. 796) because no one was intended to be the payee.

The rule on forgery by fictitious name was developed in cases decided under the now-repealed Penal Code. Title 18 P.S. § 5014. In Commonwealth v. DiPiero, 205 Pa.Super. 312, 208 A.2d 912 (1965), the court said:

. . . when the false making of an instrument is performed with the intent to defraud, even though it be by way of the use of a fictitious name, the uttering of the false instrument becomes illegal and that is forgery.
205 Pa.Superior Ct. 316, 208 A.2d at 914.

While the definition of the offense of forgery was changed, we do not find an intent on the part of the legislature to change the established rule providing that the forgery statute may be violated by signing a fictitious name. Had the legislature intended to overrule long-standing precedent, that intention would have been clearly and unmistakably expressed.

As to appellant’s contention that the Commonwealth failed to sustain its burden of proof as to whether “Richard Swan” was fictitious, we disagree. First, as mentioned above, no one was to be payee on the subject money orders, because they were known to be stolen and payment had been stopped on them.

Furthermore, on review to this court, following conviction in the trial court, the evidence must be read in the light most favorable to the Commonwealth. To this end, all facts which the Commonwealth’s evidence tends to prove are admitted, and the Commonwealth may sustain by circumstantial evidence. And, as the appellant himself points out, in other states with similar statutes, “. . . a minimum quantum of proof was required to support the theory that the payee was a fictitious person.” (Brief for appellant at p. 11). Certainly, the Commonwealth has garnered the required “minimum quantum of proof.” Besides the fact that the money orders were known to be stolen, the Commonwealth has the testimony of six witnesses. They all identified Alphonzo Zabala to be the man who was in their stores, purchasing goods with Travelers Express Company money orders, and signing them “Richard Swan.” The Commonwealth has sustained its burden of proof on this issue.

Appellant finally argues that the trial judge’s instruction to the jury on the charge of theft by deception was erroneous. That charge was brought under Title 18 Pa.C.S.A. § 3922:

(A) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; .. .
(3) fails to correct a false impression which the deceiver previously created or reinforced .... (Emphasis added.)

The judge’s instruction recited the elements of the crime of theft by deception, concluding “. . . [you must find] . . . that the defendant obtained and/or withheld those items of property by intentionally creating a false impression as to his identity." (R. 421A) (emphasis added).

Appellant contends that the false impression was a deception as to name, rather than to defendant’s identity, and that therefore the instruction was erroneous. The record reflects a brief colloquy on the subject which ensued at sidebar, just following the judge’s charge to the jury. Counsel for defendant reiterated part of the instruction on theft by deception:

. . . you indicated that the defendant can be guilty of theft by deception if he creates a false impression as to his identity. I think that the court has an obligation to go further and to say that the institution here must suffer some pecuniary loss. In other words, there must be the theft. That’s all. (R. 429A) (Emphasis added.)

At the time, defense counsel took no exception to the judge’s use of “false impression as to his identity." (Emphasis added.) In fact, by repeating the judge’s very words counsel for the appellant appeared to acquiesce in their use, as adequate for the instruction on theft by deception. Furthermore, the list of “false impressions” in the definition of the offense was clearly not intended to be exclusive; the phrase “. . . including false impressions as to law, ...” in no way limits the types of false impressions which might be created pursuant to a deception. Thus, a false impression as to identity can be a deception as well as a false impression as to value.

Counsel for appellant also requested that the element of “pecuniary loss” be included in the instruction on theft by deception. (R. 429A) If included, “pecuniary loss” would be an addition to the elements of the offense as defined in Title 18 Pa.C.S.A. § 3922. “Pecuniary loss” is the corollary to “. . . intentionally obtaining] or withholding] property of another . ... ” Thus, instruction on either would have the same effect. Because the judge did instruct the jury on “. . . obtaining] or withholding] property, . . . ” the offense of theft by deception was properly charged.

Judgment of sentence affirmed.

      . Appellant mistakenly asserts that the detective was asked, “... did he have occasion to drive past [defendant’s] residence two days prior to his being called as a witness[?].” The record reflects that the issue of when the detective was at defendant’s house never actually came before the jury.

      . Appellant raises this issue by referring to the testimony of Janet Gurman. The testimony on those pages is that of Sarah Gayman. We will consider this issue in the light of the testimony of Sarah Gayman.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    449 A.2d 590
    Robert C. BURNS and Nancy M. Burns, his wife, and John Franklin Destefan and Patricia M. Destefan, his wife v. Richard L. BAUMGARDNER and Marcia H. Baumgardner, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Filed Aug. 6, 1982.

      Harvey Freedenberg, Harrisburg, for appellants.
    Thomas M. Painter, Waynesboro, submitted a brief on behalf of appellees.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

In this equity action, the chancellor imposed building restrictions by implication and enjoined the construction of townhouses on a development tract in Washington Township, Franklin County. When exceptions were overruled and a final decree entered, this appeal followed. We reverse.

In May, 1966, Dwight and Leona Grove and Richard and Marcia Baumgardner acquired a 175 acre tract in Franklin County. The entire tract was surveyed between May 2, 1966, and October 17, 1966, and a preliminary plan was prepared but never recorded. On November 26, 1966, a plot plan was prepared by Arrowood, Incorporated, for “Sheffield Manor Phase 1” and recorded. It included lots 1 to 12 of Section D. On March 28, 1967, the owners caused to be recorded a Declaration of Restrictive and Protective Covenants in Deed Book Vol. 612, Page 786. This declaration, dated March 9, 1967, pertained to and was limited to lots included in Sheffield Manor Phase No. 1 as shown on plan prepared by Arrowood, Incorporated, dated November 25, 1966. It provided, inter alia, as follows:

1. LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and private two car garage. All buildings shall be constructed of brick, stone or other non-combustible material, except that no building may be constructed of unfaced concrete blocks and no building may be faced with stucco. Wood construction may be used above the square of the building, (emphasis supplied).

On November 7, 1967, a plan entitled “Sheffield Manor Phase 2” was prepared and subsequently recorded. It laid out lots 13 to 27 of Section C and lots 1 to 5 of Section B. On May 20, 1968, a declaration of building restrictions was recorded which imposed upon Phase 2 the same restrictions previously imposed upon Phase 1.

From these two sections, various lots were sold and conveyed. John and Patricia Destefan, the appellees, purchased lot 27 on June 27, 1968. Their deed recited that the lot was subject to the restrictive covenants previously imposed.

On July 12,1973, Dwight and Leona Grove conveyed their interest in the remaining tract to Richard and Marcia Baumgardner. Their deed recited that the conveyance was “.. . subject to the restrictions set forth in the Declaration of Restrictive and Protective Covenants for Sheffield Manor, Washington Township, Franklin County, Pennsylvania, filed in the office of the Recorder of Deeds of Franklin County in Franklin County Deed Book Vol. 612, Pages 786, 787 and 788.”

A subsequent declaration of restrictive covenants was executed for lots 1 and 2 and lots 28 to 39 of Section C. These restrictions, although restricting use to residential purposes, contained no requirement that residences be “detached single-family dwelling[s].”

In March, 1975, individual lot owners learned that appellants intended to erect townhouses on lots 4 to 12 of Section C. These townhouses were designed to be attached by party walls, and each was intended to cover less than one-half of a full lot. An action in equity was commenced to enjoin such construction, and an injunction was issued. The trial court found that although there were no express restrictions which prohibited the erection of townhouses, restrictions imposed upon the entire tract by implication required that only detached, single-family dwellings be erected. When exceptions were dismissed and a final decree entered, this appeal followed.

Restrictions on the use of land are not favored by the law because they are an interference with an owner’s free and full enjoyment of his property. Jones v. Park Lane for Convalescents, 384 Pa. 268, 272, 120 A.2d 535, 537 (1956). See also: Witt v. Steinwehr Development Corp., 400 Pa. 609, 162 A.2d 191 (1960); McCandless v. Burn, 377 Pa. 18, 104 A.2d 123 (1954); Morean v. Duca, 287 Pa.Super. 482, 430 A.2d 988 (1981); Tate v. Moran, 264 Pa.Super. 540, 400 A.2d 217 (1979). Therefore, they are to be strictly construed. Mishkin v. Temple Beth El of Lancaster, 429 Pa. 73, 239 A.2d 800 (1968); Witt v. Steinwehr Development Corp., supra; Rieck v. Virginia Manor Co., 251 Pa.Super. 59, 380 A.2d 375 (1977). They are not to be extended by implication. Mishkin v. Temple Beth El of Lancaster, supra; Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 169 A.2d 65 (1961); Peirce v. Kelner, 304 Pa. 509, 156 A. 61 (1931); DiCarlo v. Cooney, 282 Pa.Super. 477, 423 A.2d 3 (1980); Tate v. Moran, supra; Rieck v. Virginia Manor Co., supra. Indeed, every doubt is to be resolved against the existence of restrictions and in favor of a free and unrestricted use of property by its owner. Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643 (1968); Mishkin v. Temple Beth El of Lancaster, supra; Sandyford Park Civic Association v. Lunnemann, 396 Pa. 537, 152 A.2d 898 (1959); Kessler v. Lower Merion Township School District, 346 Pa. 305, 30 A.2d 117 (1943); Pehlert v. Neff, 152 Pa.Super. 84, 31 A.2d 446 (1943). The fact that an owner imposes restrictions on portions of a tract does not raise an inference that he intends thereby to obligate himself to restrict similarly the remainder of his land. In every such instance there must appear definite evidence of a purpose to bind the remaining land. Price v. Anderson, 358 Pa. 209, 216, 56 A.2d 215, 219 (1948). See also: Witt v. Steinwehr Development Co., supra 400 Pa. at 613, 162 A.2d at 193.

The trial court, by inference, imposed building restrictions against the entire tract because of the “subject to” clause contained in the deed of July 12, 1973, by which Dwight and Leona Grove conveyed their interest in Sheffield Manor to appellants. This clause provided: “This property is subject to the restrictions set forth in the Declaration of Restrictive and Protective Covenants for Sheffield Manor . . . filed in . . . Franklin County Deed Book Yol. 612, Pages 786, 787 and 788.” The provision, however, was merely an acknowledgement that building restrictions existed with respect to a portion of the tract. It did not create new restrictions or expand existing restrictions to unencumbered portions of the tract.

“[T]he fact that a conveyance is made ‘subject to’ restrictions set forth in some other deed or instrument referred to will not, without more, make the restrictions applicable to the property conveyed, if in fact the restrictions do not otherwise apply thereto. If the ‘subject to’ language of the instrument in question refers to restrictions which in fact do not exist at all, it does not operate to impose the supposed restrictions on the granted land.” 20 Am.Jur.2d Covenants, Conditions, and Restrictions, § 169, at 728. See also: De Sanno v. Earle, 273 Pa. 265, 117 A. 200 (1922); Smith v. Second Church of Christ, Scientist, 87 Ariz. 400, 351 P.2d 1104 (1960); Procacci v. Zacco, Fla.App., 324 So.2d 180 (1975); Wiley v. Schorr, Tex.Civ.App., 594 S.W.2d 484 (1979); Annotation, 84 A.L.R.2d 780 (1962). “Although such reference [i.e., ‘subject to’] does not impose new restrictions on the land, it nonetheless serves a very necessary and desirable purpose for the grantor. When property is conveyed by warranty deeds ... it is in the interest of the grantors that the conveyance be made subject to every restriction or encumbrance which not only does apply to such property but also may apply. The inclusion of restrictions in the ‘subject to’ clause may thus express a wise precaution on the part of the grantor (cf. Donahoe v. Turner, 204 Mass. 274, 90 N.E. 549 [1910]). It would indeed be foolhardy for a grantor who is delivering a warranty deed to fail to refer to a restriction which may at some time in the future be held to apply to his property, merely to avoid the criticism of excess wordiness. Thus, it is not unusual for conveyances to be made subject to all recorded covenants, easements and restrictions, without specific enumeration, and it would be inappropriate, to say the least, to infer restrictions because it may subsequently turn out that none then applied to the property.” Smith v. Second Church of Christ, Scientist, supra, 87 Ariz. at 408, 351 P.2d at 1109.

For these reasons, we conclude that the trial judge fell into error when he attempted to infer the applicability of building restrictions to the entire tract because of the “subject to” clause contained in the deed from the Groves to the Baumgardners. This is peculiarly so where, as here, only a one-half interest in the land was conveyed.

The trial court also inferred a subjection of the entire tract to building and use restrictions from representations which had been made by Richard Baumgardner. These representations, there was evidence to show, had been made to prospective purchasers of building lots. They were to the effect that restrictions requiring single family residences would be imposed upon the entire tract. Appellants contend that even if the oral representation were construed as prohibiting townhouses, the imposition of building restrictions by parol is precluded by the Statute of Frauds. Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

An easement is within the purview of the Statute of Frauds. Haines v. Minnock Construction Company, 289 Pa.Super. 209, 216, 433 A.2d 30, 33 (1981), citing Yeakle v. Jacob, 33 Pa. 376 (1859). An easement is a liberty, privilege, or advantage which one may have in the lands of another; it may be merely negative and may be created by a covenant or agreement not to use the land in a certain way. Clements v. Sannuti, 356 Pa. 63, 65, 51 A.2d 697, 698 (1947); Slegel v. Lauer, 148 Pa. 236, 240, 23 A. 996, 997 (1892). The Statute of Frauds is applicable to alleged agreements to impose building and use restrictions upon land. Thus, it has been held to apply to an alleged oral agreement to limit the number of dwelling units on a tract of land and the heights of buildings. Overbrook Farms Club v. MacCoy, 32 Pa D&C 2d 603 (Montg.1963). See also: Bealer v. Dodson, 37 Northam.Co.Rep. 35 (1963).

The Statute of Frauds is not a rule of evidence, but a declaration of public policy. Schuster v. Pennsylvania Turnpike Commission, 395 Pa. 441, 149 A.2d 447 (1959); Brotman v. Brotman, 353 Pa. 570, 46 A.2d 175 (1946). The purpose of the Statute of Frauds is to prevent the possibility of enforcing unfounded, fraudulent claims by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest. Haines v. Minnock Construction Company, supra 289 Pa.Super. at 215-16, 433 A.2d at 33. It is satisfied by the existence of a written memorandum signed by the party to be charged and sufficiently indicating the terms of the oral agreement so that there is no serious possibility of consummating fraud by its enforcement. Keil v. Good, 467 Pa. 317, 322, 356 A.2d 768, 771 (1976); Beeruk Estate, 429 Pa. 415, 419, 241 A.2d 755, 758 (1968); Brown v. Hahn, 419 Pa. 42, 51, 213 A.2d 342, 347 (1965).

In the instant case, no such memorandum was produced. The lot owners sought to overcome this weakness in their case by testifying that a copy of such restrictions had been shown to them by Baumgardner at the time they purchased their lot. Mrs. Destefan testified that the typewritten restrictions shown to her and her husband were similar to those contained in the initial declaration recorded in Deed Book Volume 612, Page 786. However, she was uncertain that the contents or the caption were the same. This was patently inadequate to impose permanent building restrictions upon the entire remaining tract owned by appellants.

It remains to be considered whether the promises which the trial court found appellants to have made are enforceable by estoppel. In the Restatement of Property § 524, the following principle is set forth:

An oral promise or representation that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reasonable reliance upon it.

The rule is further explained in Comment c, where the following appears:

c. Promises by conveyors. Not infrequently promises coming wholly or partly within the rule stated by the Section are made as part of the negotiations leading to a sale of land to the promisee. To induce a prospective purchaser to buy, or to persuade him to buy subject to restrictions upon his use, the vendor will state that other land owned by him will be used or sold subject to like restrictions .... The promises may later be incorporated in the conveyance by specific language or by reference to a source such as a plat in which they may be found to exist in written form. If so, they become enforceable according to their tenor. Yet, even though not so incorporated, they can be enforced by the promisee if he reasonably relies upon them in purchasing or in making improvements upon the land after it is purchased.

The rule is illustrated by the Restatement as follows:

1. A conveys Blackacre to B by a deed in which it is stipulated that the land conveyed shall be used only for dwelling house purposes. No promises respecting the use of other land of A are contained in the deed. A does, however, own other land in the vicinity and, as an inducement to the purchase of Blackacre, he tells B that this other land will be sold subject to the same restriction to which B’s land is to be subjected. In reasonable reliance upon this promise, B purchases. A may be enjoined from selling the other land free from the restriction.

The rule was followed by this Court in Haines v. Minnock Construction Co., supra.

The rule is in large measure contrary to the policy established by the Statute of Frauds. It should be strictly . construed. Before an oral promise can be enforced because of estoppel, there must be reasonable reliance on the promise. Moreover, enforcement will be granted only to the extent necessary to protect expenditures made in reasonable reliance upon the promise. Equity will not grant relief in the absence of a substantial ■ benefit to the plaintiff. “An injunction is not of right, and the chancellor is not bound to make a decree which will do far more mischief . . . than the loss he is asked to redress.” Plymouth Woods Corporation v. Maxwell, 407 Pa. 539, 542, 181 A.2d 321, 323 (1962), quoting Moyerman v. Glanzberg, 391 Pa. 387, 393, 138 A.2d 681, 684 (1958).

The trial court found that appellees, who owned one of many lots, had relied upon appellants’ promises in purchasing their lot and building, a home upon it. The court made no finding regarding the reasonableness of such reliance. Neither was there a finding that the imposition of permanent and perpetual use restrictions upon the entire tract, requiring but one detached, single family residence per lot, was essential to preserve and protect appellees’ lot and the expenditures which they had made to improve the same.

We find it unnecessary to determine whether it was reasonable for appellees to rely upon an oral representation that an entire tract of 175 acres would be subjected to restrictions requiring one single family, detached dwelling per lot. We observe, however, that only a small portion of the tract was under development when they purchased their lot, and the undeveloped portion of the larger tract had not, in fact, been subjected to restrictions by recorded, written instrument. In any event, it is abundantly clear that an injunction intended to enforce such a restriction on the entire tract was unnecessary to protect the expenditures made by appellees in reliance thereon and would arbitrarily and unnecessarily hinder development of the tract for residential purposes.

John Destefan, when asked if he would be harmed, responded: “Physically, no. Mentally, yes, sir.” Mrs. Destefan, when asked how she saw damages, said: “I feel that no one and probably the most important reason that I have is it is a breach of contract. The restrictions were promised. This man went back on his promise. That is probably the biggest impact it has had on me, above all, because we built out there with the understanding that we were going to be living in a residential development . .. . ” Although there were also vague references by appellees to increased traffic and density caused by townhouses and the possible prevention of a rapid increase in the value of their home, there was no evidence that the residential character of the neighborhood would be changed by the introduction of townhouses. On the contrary, the evidence suggested that detached, single family dwellings were no longer feasible economically and that, if not appropriately developed, the tract would be used for farm purposes.

Under these circumstances, it was an abuse of discretion to enjoin the development of the entire tract except for detached, single family residences. It was unreasonable to impose use restrictions by estoppel upon an entire 175 acre tract despite the fact that there was no written or recorded evidence that such had been imposed by the owner. The relief granted was grossly disproportionate to the harm sustained by appellees, if any, and was unnecessary to protect the expenditures which they had made in reliance upon appellants’ oral representation. For these reasons, the injunction entered by the trial court cannot be sustained on principles of estoppel.

Because the evidence does not support an order imposing, by inference, building and use restrictions which prevent the construction of townhouses on appellants’ land, the order will be reversed and set aside.

It is so ordered.

PRICE, J., dissents.

      . Prior to hearing held in the trial court, Robert and Nancy Burns, plaintiffs, withdrew from the case with the approval of the remaining parties. The remaining plaintiffs, John and Patricia Destetan, have advised their counsel that they do not wish to participate in this appeal. Consequently, only appellants have submitted a brief to this court. Plaintiffs’ apparent lack of interest is not without significance. See: Price v. Anderson, 358 Pa. 209, 56 A.2d 215 (1948).

      . Other restrictions pertained to setbacks, types of construction, sewage, nuisances, architectural control, etc.

      . The Statute of Frauds provides that “... all leases, estates, interests of freehold or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect . . .. ”

      . The testimony of the developer was that full development would take at least ten years and that the reason for developing the tract in small sections was to permit variations in construction as dictated by economic conditions.


author: WIEAND, Judge: CERCONE, President Judge,

text:
    449 A.2d 596
    COMMONWEALTH of Pennsylvania v. Dexter BRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Aug. 6, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   WIEAND, Judge:

Dexter Bright has appealed from a judgment of sentence imposed following conviction in a bench trial for robbery, criminal conspiracy and simple assault. His sole contention is that the trial court erred when it granted the Commonwealth’s petition to extend the time for commencement of trial under Pa.R.Crim.P. 1100(c). Finding appellant’s argument to be without merit, we affirm the judgment of sentence.

Appellant was arrested on March 14, 1979, and a complaint was filed against him the following day, March 15, 1979. Pursuant to Rule 1100(a)(2), therefore, the run date for commencement of trial was September 11, 1979. A preliminary hearing was held on April 17, 1979, and the charges against appellant were returned to court. On June 20, 1979, defense counsel requested and was granted a continuance for fifty days. Pursuant to Rule 1100(d)(2), the grant of the fifty day continuance at the request of the defense resulted in an exclusion of twenty days and enlarged the time for commencement of trial to October 1, 1979. On August 9, 1979, the case was called for trial, but the complaining witness was then on vacation and unavailable for trial. A motion by the Commonwealth for continuance was granted, and the case was relisted for trial on September 4, 1979. On September 4, 1979, both the Commonwealth and appellant appeared before the Honorable Nicholas Cipriani, but on this date the arresting officer was on vacation and unavailable. The case was again continued, and a new trial date was set for October 23, 1979. On September 6, 1979, the Commonwealth filed a timely application for an extension pursuant to Rule 1100(c), alleging that because of the unavailability of the complainant and the arresting officer at the two previous trial listings and despite due diligence, trial could not be commenced within the time allowed by Rule 1100. Appellant filed an answer and, on September 28, 1979, moved to dismiss. A hearing was held on October 15, 1979 before the Honorable Ned L. Hirsh, who granted the Commonwealth’s petition and ordered trial to be commenced on or before November 2, 1979. On October 23, 1979, appellant was tried and convicted.

“In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted.” Commonwealth v. Sharp, 287 Pa.Super. 314, 317, 430 A.2d 302, 304 (1981). Accord Commonwealth v, Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); Commonwealth v. Jackson, 269 Pa.Super. 249, 253 n.4, 409 A.2d 873, 875 n.4 (1979). Appellant offered no evidence at the hearing, and the Commonwealth offered into evidence the record containing the notations made by the trial judge at the two previous listings of the case for trial. The record disclosed that on August 9, 1979, the complainant was on vacation, and that on September 4, 1979, the arresting officer was also on vacation.

In Commonwealth v. Postell, 280 Pa.Super. 550, 552, 421 A.2d 1069, 1070 (1980), the appellant argued that the lower court had erred in accepting court records as evidence in a Rule 1100(c) hearing to extend. This Court dismissed the argument, noting that the use of notations in court records had been permitted in Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977) and Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). See also Commonwealth v. Jackson, supra, 269 Pa.Super. at 253-254, 409 A.2d at 875. Similar records were properly received and considered by the court in the instant case.

It is beyond peradventure that “ ‘[a] court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.’ Pa.R.Crim.P. 1100(c).” Commonwealth v. Sharp, supra 287 Pa.Super. at 317, 430 A.2d at 304 (1981), quoting Commonwealth v. Miller, 270 Pa.Super. 178, 182, 411 A.2d 238, 240 (1979). In the instant case, the delays on August 9, 1979 and September 4, 1979 were occasioned by the unavailability of the Commonwealth’s witnesses due to their respective vacation schedules. “[W]hen witnesses become unavailable toward the end of the Rule 1100 time period—whether through vacation, illness, or other reasons not within the Commonwealth’s control—the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.” Commonwealth v. Sharp, supra 287 Pa.Super. at 317, 430 A.2d at 304, quoting Commonwealth v. Sinor, 264 Pa.Super. 178, 183 n.5, 399 A.2d 724, 727 n.5 (1979) (emphasis added). This Court has repeatedly held that where delay in the commencement of trial is caused by the unavailability of a witness rather than by a lack of due diligence on the part of the Commonwealth, an extension under Rule 1100(c) is properly granted: Commonwealth v. Thompson, 292 Pa.Super. 108, 111-112, 436 A.2d 1028, 1030 (1981); Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981); Commonwealth v. Schuster, 288 Pa.Super. 310, 431 A.2d 1063 (1981); Commonwealth v. Sharp, supra 287 Pa.Super. at 318, 430 A.2d at 304; Commonwealth v. Coleman, 280 Pa.Super. 162, 164, 421 A.2d 455, 456 (1980); Commonwealth v. Brant, 272 Pa.Super. 135, 141, 414 A.2d 707, 710 (1979); Commonwealth v. Sinor, supra 264 Pa.Super. at 183 n.5, 399 A.2d at 727 n.5; Commonwealth v. Brown, 252 Pa.Super. 365, 369, 381 A.2d 961, 963 (1977).

Moreover, the initial delay in the instant case was caused by a defense requested continuance. “[D]efense-requested continuances may realistically obstruct diligent efforts by the Commonwealth to try an accused and may, therefore, justify an extension under Rule 1100(c).” Commonwealth v. Brant, supra 272 Pa.Super. at 140-141, 414 A.2d at 709, quoting Commonwealth v. Mancuso, 247 Pa.Super. 245, 253-254, 372 A.2d 444, 448 (1977). Accord Commonwealth v. Hill, 290 Pa.Super. 399, 403, 434 A.2d 813, 815 (1981); Commonwealth v. Garnett, 258 Pa.Super. 115, 120, 392 A.2d 711, 713 (1978); Commonwealth v. Brown, supra 252 Pa.Super. at 368-369, 381 A.2d at 963; Commonwealth v. Gibson, 248 Pa.Super. 348, 352, 375 A.2d 132, 133 (1977). Although it cannot be said that the defense continuance prevented trial within the period allowed therefor by Rule 1100, it may be observed. that such continuance did delay trial until the traditional summer vacation period. Thus, it could be considered by the court in determining whether the Commonwealth had exercised due diligence.

This is not a case involving the concept of judicial delay. Therefore, we find it unnecessary to discuss the circumstances under which judicial delay will warrant the granting of an extension under Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). The only issue in this case is whether the Commonwealth exercised due diligence in commencing trial.

Appellant’s trial date, as set by the court, was twenty-two days beyond the original amended run date under Rule 1100. The causes for the delay were (1) a defense continuance, and (2) the unavailability of Commonwealth witnesses occasioned through no fault of the Commonwealth. Under these circumstances, the trial court properly granted an extension of time within which to commence trial.

The judgment of sentence is affirmed.

CERCONE, President Judge, files a dissenting opinion.

CERCONE, President Judge,

dissenting:

I heartily dissent.

Rule 1100(c) provides that applications by the Commonwealth to extend the time for trial may be granted “only if trial cannot be commenced within the prescribed period despite due diligence, by the Commonwealth.” Since Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), Rule 1100(c) has been interpreted to require a record showing of due diligence. The Supreme Court stated there:

Henceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-1350. Cf. Commonwealth v. Berry, 271 Pa.Superior Ct. 466, 414 A.2d 130 (1979); Commonwealth v. Warman, 260 Pa.Superior Ct. 143, 393 A.2d 1046 (1978). Mere assertions of due diligence and allegations of fact do not establish cause for an extension of time under Rule 1100(c). See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Antonuccio, 257 Pa.Superior Ct. 535, 390 A.2d 1366 (1978); Commonwealth v. Ray, 240 Pa.Superior Ct. 33, 360 A.2d 925 (1976). Of course, the Commonwealth may obtain the extension it seeks if it presents sufficient evidence at the hearing on Rule 1100 petition. Cf. Commonwealth v. Cimaszewski, 261 Pa.Superior Ct. 39, 395 A.2d 931 (1978). In our review of the hearing court’s ruling we may consider the evidence presented by the Commonwealth and only so much of the defense evidence which goes uncontradicted. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Moreover, in Commonwealth v. Jackson, 269 Pa.Superior Ct. 249, 409 A.2d 873 (1979) this Court held that Rule 1100 hearings need not be exhaustive in order to be thorough. As Judge Spaeth wrote there:

It is therefore settled that Rule 1100 requires evidence in support of a petition to extend. This does not mean that Rule 1100 hearings may not be short and to the point. If a Commonwealth petition pleads facts that the answer admits, no further proof should be necessary. Commonwealth v. Ehredt, supra, 485 Pa. at 191 n.8, 401 A.2d 358 n.8.

The technique of judicial notice may also be useful. Id., 269 Pa.Superior Ct. at 253, 409 A.2d at 875. (Footnote omitted). Thus, I have no quibble with the majority when it finds no error on the part of the lower court in accepting the notations in the quarter sessions file concerning the unavailability of prosecution witnesses on August 9 and September 4. However, I cannot accept its conclusion that this alone was sufficient to sustain the Commonwealth’s burden of proof of its diligence.

To my mind the most that can be inferred from the fact that the arresting officer was unavailable for trial on September 4 is that the Commonwealth had been diligent up until and including that date. But, there is absolutely no evidence in the record which supports the inference that the Commonwealth was diligent after that date. It is impossible to tell from this record when the arresting officer returned from his vacation. (Indeed, given the fact that September 4 was the day after Labor Day, it might not be unreasonable to infer that the arresting officer shortly returned from his vacation.) How the majority can conclude that the mere notation of the officer’s absence on September 4 shows that the Commonwealth was diligent in not bringing appellant to trial before the run-date, October 1, completely escapes me.

Moreover, the Commonwealth completely failed to show that upon the officer’s return (assuming of course that he returned before the run-date, said assumption being necessitated by the Commonwealth’s failure to establish the date of his return) that appellant could not have been brought to trial within the run-date on his case advanced over others without Rule 1100 problems. See Commonwealth v. Freeman, 280 Pa.Superior Ct. 462, 421 A.2d 814 (1980); but see Commonwealth v. Suggs, 289 Pa.Superior Ct. 44, 432 A.2d 1042 (1981).

Furthermore, Commonwealth v. Mayfield, supra requires not only a record showing of the prosecution’s due diligence, but a certification that the case is scheduled for the earliest possible date consistent with the court’s business. This certification is entirely lacking in this case as well.

Because I believe that the Commonwealth failed to sustain its burden of proving its diligence, and because the court did not certify that the trial was begun at the earliest possible date consistent with its business I would reverse and discharge appellant. Accordingly, I must dissent.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. §§ 903, 3701.

      . 18 Pa.C.S. § 2701.

      . Rule 1100(c) provides:

        (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order gra iting such application shall specify the date or period within which trial shall be commenced.

      . Rule 1100(a)(2) provides:
      (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . Rule 1100(d) provides:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

      . Although the record may not be complete, it does not reflect that either appellant or his counsel made any objection when the court announced a new trial date beyond the Rule 1100 run date. This case was briefed and submitted before the Supreme Court’s decision in Commonwealth v. Brown, 497 Pa. 438, 438 A.2d 592 (1981), and the issue of waiver has not been discussed. Our decision on appeal, therefore, is not based upon appellant’s apparent failure to object to the October 23rd trial date set by the court.

      . The dissent would set aside the conviction for robbery and discharge appellant because, it contends, the Commonwealth failed to demonstrate that it had exercised due diligence between September 4 and October 1. It is not at all clear, however, what the representatives of the Commonwealth should have done to overrule the trial court and reschedule appellant’s trial after the court, on September 4, had specifically set October 23 as the date for the continued trial. It would seem that the District Attorney acted reasonably and with due diligence when he took the only practical step available. He asked the court to extend the time for commencement of trial to accommodate the trial date set by the court.

       See Commonwealth v. Tate, 299 Pa.Superior Ct. 518, 445 A.2d 1250 (1982) (Opinion per Johnson, J. with Spaeth and Wieand JJ. joining). Here it was held that it was ineffective assistance of counsel to preserve for appeal a Rule 1100 question involving a police officer’s inability to appear on the date of trial but where he returned shortly thereafter, and where the Commonwealth presented no evidence as to why the case could not have been tried upon the officer’s return.


author: JOHNSON, Judge:

text:
    449 A.2d 601
    Charles A. SKALOS and Mary T. Skalos, his wife v. Elmer HIGGINS, Duquesne Electric and Manufacturing Company, Manning, Maxwell & Moore, Inc. and Dresser Industries, Inc. Appeal of DUQUESNE ELECTRIC AND MANUFACTURING COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      Robert E. Wayman, Pittsburgh, for appellants.
    James D. Elder, Pittsburgh, for appellees.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

This is an appeal from the entry of judgment against Duquesne Electric and Manufacturing Company (DEMC) in a personal injury action.

Charles A. Skalos and his wife instituted suit against the named defendants after Mr. Skalos received severe personal injuries when he was knocked from the roof of a small concrete block building, located inside DEMC’s large building, by a crane operated by DEMC’s employee Higgins. Plaintiff had been employed as an independent contractor to perform certain remodeling work on the small concrete building pursuant to a contract with DEMC. Plaintiff had worked on numerous occasions since 1970 on the roof of the small structure, as he was in charge of the work being done. He was injured when a crane, operated by DEMC’s employee defendant Higgins, struck him, knocking him off the roof of the small concrete building onto the floor twenty-two feet below.

Plaintiff had been working along with a helper, who usually served as a lookout but, at the time of the accident, the helper had gone to the floor of the main building to retrieve materials. Plaintiff testified that it was necessary for him to get into a crouched position on the roof in order to avoid being hit by the crane, when the crane passed over the small concrete building. The record indicates that because of the noise created in the larger building, it was not possible to hear the crane moving. In order for Plaintiff to have the crane disabled while he worked on the roof, it was necessary to make arrangements with an employee of DEMC to have the fuses pulled. However, this was not always feasible, as the crane was needed for work by DEMC’s employees. Also, Plaintiff stated that he intended to use the crane himself on the day of the accident. The crane was operated by a pendant from the floor of the main building and was not equipped with a siren, horn or light.

At the close of Plaintiffs’ case on liability, the Court entered a nonsuit on behalf of defendants Manning, Maxwell & Moore, Inc., and Dresser Industries, Inc. The jury found in favor of defendant Higgins against both Plaintiffs and in favor of Plaintiffs against DEMC. Following denial of DEMC’s motions for a new trial and judgment n.o.v., judgment was entered in the amount of $250,000 in favor of Charles A. Skalos and $25,000 in favor of Mary T. Skalos. This appeal followed.

Appellant DEMC raises five issues on appeal: (1) where the court charges the jury as to the liability of a possessor of land for activities conducted thereon, is not a verdict in favor of the defendant employee and against the employer possessor inconsistent, requiring the court to enter a judgment n.o.v. for the employer possessor, where there is no evidence of any independent negligence by the employer possessor?, (2) where the evidence discloses that the Plaintiff is aware of all the dangers and risks involved, is the Plaintiff not guilty of contributory negligence as a matter of law and barred from recovery when he fails to use due care for his own safety?, (3) should not a judgment n.o.v. be entered where the evidence clearly shows that it was reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee?, (4) where the court was requested to charge the jury that there is no requirement that the crane involved be equipped with a horn, light or siren and the court agreed but failed to do so and the jury’s verdict is obviously predicated upon some theory not charged by the court, should not a new trial be granted?, and (5) where there is no evidence of independent negligence on the part of a possessor employer, should not the court grant a new trial when the jury finds in favor of the employee and against the employer since the verdict is inconsistent?

The court in Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103, 7 A.L.R. 4th 1120 (1980) stated:

A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner. Miller v. Checker Cab Co., 465 Pa. 82, 348 A.2d 128 (1975).

See also, O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980).

I.

The lower court, in pertinent part, charged the jury as follows:

However, it is also true, as I shall read to you, that a possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or fail to protect themselves against it. And, further, a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm, despite such knowledge or obviousness.

This portion of the charge is taken from Restatement (Second) of Torts §§ 341 A and 343 A (1965).

Appellant DEMC argues that because its employee Higgins was not found to have been negligent, it is inconsistent for Appellant to be held negligent where no evidence of independent negligence by Appellant exists, because Appellant, as a corporate entity, can only act through an agent, such as its employee Higgins.

Where the master is joined with his servant in an action based wholly on the servant’s negligence or misconduct, the master cannot be held liable unless there is a cause of action against the servant, but where the case is founded on the proposition that the master was independently negligent, and no attempt is made to restrict the alleged negligent acts to its servants alone, recovery can be had against the master, irrespective of the servant’s liability. Pryor v. Chambersburg Oil & Gas Co., 376 Pa. 521, 103 A.2d 425 (1954); see also, East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (1937). The pleadings and proof at trial clearly indicate that separate theories were advanced concerning the independent, as well as the derivative, negligence of DEMC.

Appellant’s reliance on Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975) is misplaced. In Crotty, the plaintiff, an independent contractor, was injured when an employee of the defendant engaged a machine on which the plaintiff was working. The issue before the court was whether the lower court erred in refusing to charge the jury on the duty owed by a possessor of land to a business visitor. The court stated, by way of dictum, that the plaintiff was not injured by a condition on the premises but by the active negligence of an employee. However, the court also stated that:

The occupier’s duty is one of due care under all the circumstances. That duty includes the duty to inspect the premises and to discover dangerous conditions, Durning v. Hyman, 286 Pa. 376, 133 A. 568 (1926); and the duty to use care not to injure a business visitor by negligent activity. Restatement (Second) of Torts, § 341 A (1965).

Id., 237 Pa.Superior Ct. at 11, 345 A.2d at 264 (emphasis added). We therefore find this issue to be without merit.

II.

The second issue involves whether Plaintiff was contributorily negligent and barred from recovery when, with knowledge of the danger and risk, he failed to use due care for his own safety.

We have said that one who fails to observe a dangerous condition plainly visible and nevertheless proceeds without regard to his own safety must be held guilty of contributory negligence as a matter of law. Atkins v. Urban Redevelopment Authority of Pittsburgh, 263 Pa.Super. 37, 396 A.2d 1364 (1979), affirmed in part and appeal dismissed in part, 489 Pa. 344, 414 A.2d 100, 7 A.L.R. 4th 1120 (1980). A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed. Brewster v. Morrone, 395 Pa. 642, 151 A.2d 607 (1959). However, it is well-settled that contributory negligence will be declared as a matter of law only where it is so clear that there is no room for fair and reasonable disagreement as to its existence. Marinelli v. Montour Railroad Co., 278 Pa.Super. 403, 420 A.2d 603 (1980).

“In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: Stringert v. Lastik Products Co., Inc., 397 Pa. 503, 155 A.2d 625 (1959). If in performing his employment, a workman conforms to the ordinary usage thereof, this is evidence of the exercise of due care and indicates lack of careless conduct; Mutter v. Slaymaker, [404 Pa. 369, 171 A.2d 779], supra. As stated in Van Zandt v. Phila B. & W.R.R. Co., 248 Pa. 276, 93 A. 1010 (1915), at 281: ‘What is required of the workman is that he exercise care for his safety according to the circumstances. He knows he is occupying a place of great danger and his care must be commensurate with that danger. He is equally cognizant of the fact that he must perform faithfully the services required of him. Both obligations are resting upon him, and each must be met with a due regard to the other.’ ”5

Lambert v. PBI Industries, 244 Pa.Super. 118, 131-32, 366 A.2d 944, 950-51 (1976), citing Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 584, 187 A.2d 646, 649 (1963) (footnote omitted).

Upon a review of the evidence, it is clear that Plaintiff was aware of the danger in working on the roof of the small building while the crane was operated by an employee of DEMC. The record also indicates evidence that it was not practical to disable the crane for the entire period of time when the plaintiff was on the roof. However, the evidence also shows that DEMC either had knowledge or should have known that the operation of the crane posed a safety threat to anyone working on the roof of the small building. Therefore, the question was one for the jury, which could have reasonably determined that Plaintiff was not contributorily negligent. See Van Zandt v. Philadelphia B& W R.R. Co., 248 Pa. 276, 93 A. 1010 (1915).

We find this issue to be without merit.

III.

Appellant’s third issue concerns the propriety of entering a judgment n.o.v. where the evidence indicated that it was reasonable for the possessor to believe that the dangerous condition would be obvious to, and discovered by, his invitee.

Section 343 A(l), Restatement (Second) of Torts (1965) states:

§ 343 A. Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

The evidence does show that Plaintiff, a business invitee, knew of the danger posed by the crane. However, the last clause of § 343 A(l) discusses the mitigating situation which occurs when the possessor should anticipate the harm despite such knowledge or obviousness.

Appellant cites Atkins v. Urban Redevelopment Authority of Pittsburgh, supra for support. This case is distinguishable. In Atkins, the plaintiff, while examining a house controlled by his employer, Housing Authority of the City of Pittsburgh (HACP), fell down a flight of stairs where a step was missing. It was plaintiff’s job to check the condition of the house and the evidence indicated that plaintiff failed to look at the steps as he navigated his way down them. There is no indication in Atkins that the Urban Redevelopment Authority knew of the danger or that the said danger was obvious to them. Also, the Urban Redevelopment Authority had little, if any, control over the conditions of the premises where the plaintiff was injured. In fact, it was plaintiff’s employer, HACP, that controlled the property and not the Urban Redevelopment Authority. Finally, section 343 A is not the basis of the decision in Atkins, but is merely referred to in a footnote. Therefore, we find that Atkins does not apply to the facts in the instant case.

It is a general rule that a possessor of land has a duty (1) to use reasonable care to make the premises safe for the use of persons invited to use the premises for business purposes or (2) to give them adequate and timely warning of dangers known to him but unknown to the business invitees. Janowicz v. Crucible Steel Company of America, 433 Pa. 304, 249 A.2d 773; § 343, Restatement 2d, Torts. Moreover, a possessor of land who retains and exercises control over work, including construction work, entrusted to an independent contractor is liable for harm caused by his failure to use reasonable care in the exercise of that control. Cooper v. Heintz Mfg. Company, 385 Pa. 296,122 A.2d 699; Hader v. Coplay Cement Mfg. Company, 410 Pa. 139, 189 A.2d 271; § 414, Restatement 2d, Torts. Janowicz v. Crucible Steel Company of America, 443 Pa. 304, 249 A.2d 773, supra; § 332, Restatement 2d Torts, Comment e.

Crane v. I.T.E. Circuit Breaker Co., 443 Pa. 442, 444-45, 278 A.2d 362, 363-64 (1971) (Emphasis in original). A possessor of land owes a duty to protect invitees from foreseeable harm and, in some circumstances, from obvious danger. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978).

Also, Comment f. to section 343 A of the Restatement states, in part:

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§ 466 and 496 D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

It is clear that on the facts of the instant case, the issue was one for the jury. The lower court properly charged the jury on section 343 A and we cannot say that the trial court’s refusal to overturn the jury’s determination was a clear abuse of discretion.

IV.

The fourth issue involves Appellant’s request for a jury charge concerning the fact that Appellant was not required, under applicable law, to equip the crane with warning devices. Appellant argues that the lower court agreed to its request, but failed to charge the jury on the subject.

The lower court stated that:

One of—the testimony of Mr. Skalos also was to the effect—and it’s not questioned here—that the—this particular crane does not have any bells, or flashing lights, or sirens. And it is one of the contentions made in behalf of the Plaintiffs that that is negligent conduct on the part of Duquesne Electric, apart from what might be thought of the conduct of Mr. Higgins. Of course, the defense counters that with the fact that there is no such requirement in law that a crane of this nature has those things, and that—they contend that that would not be a reasonable requirement where all you have is the possibility—where all—the only place it traverses anything that—which there could be an individual is a roof.

Appellant alleges this was inadequate; the court should have charged the jury that, as a matter of law, the crane was not required to have a warning device attached to it.

We find this allegation to be meritless. It is clear from the judge’s charge, as quoted supra, that he did, in fact, charge the jury concerning the lack of a legal requirement concerning warning devices. The method in which the lower court phrased the issue does not rise to the level of error.

As stated in McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 240-41, 420 A.2d 514, 520 (1980):

It is well established that the trial judge has the discretion to summarize the evidence adduced at trial, Commonwealth v. Crawford, 452 Pa. 326, 305 A.2d 893 (1973); Solomon v. Luria, 213 Pa.Super. 87, 246 A.2d 435 (1968), and the extent of his review depends largely upon the circumstances of the case and is left within his judgment, Commonwealth v. Walker, 178 Pa.Super. 522, 116 A.2d 230 (1955).

Concerning the specific facts in the instant case, compliance with law or administrative regulation relieves the actor of negligence per se, but it does not establish as a matter of law that due care was exercised. Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707 (1971).

We therefore find no error by the lower court.

V.

Appellant’s final issue involves the allegation that where the jury has rendered an inconsistent verdict, should not a new trial be granted by the lower court.

The jury found DMEC guilty of negligence, but found DMEC’s employee Higgins not guilty of negligence. Appellant argues that DMEC was found to have been negligent in the operation of the crane. However, DMEC’s argument fails to consider that Plaintiffs raised at least two distinct theories of negligence in their pleadings, one involving the liability of the possessor of land, as well as the theory of negligence of DMEC through the doctrine of respondeat superior.

It is clear that if DMEC’s employee was found to not have been negligent, that DMEC could not be held negligent under the doctrine of respondeat superior.

An inconsistency mandating a new trial may justifiably be declared to exist only if there is no reasonable theory or conclusion to support the verdict. Baldassari v. Baldassari, 278 Pa.Super. 312, 420 A.2d 556 (1980); see also Pryor v. Chambersburg Oil and Gas Co., supra; East Broad Top Transit Co. v. Flood, supra.

Under the theories of negligence as pleaded under Restatement (Second) of Torts §§ 341 A and 343 A (1965), Appellant could have been held liable either for its negligence in failing to carry on its activities with reasonable care for Mr. Skalos’ safety or for Appellant’s failure to anticipate the harm caused by the danger, even if that danger is known or obvious.

Therefore, Appellant’s final issue is meritless.

The judgment entered February 24, 1981 is affirmed.

WIEAND, J., concurs in the result.


text:
    449 A.2d 607
    Kenneth MOTLEY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1981.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Granted April 14, 1983.

      Bernard W. O’Keefe, Pittsburgh, for appellant.
    E. J. Strassburger, Pittsburgh, for appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal by an insurance company from an order granting summary judgment for an insured and against the insurance company. The order awards wage loss benefits to the insured over and above the benefits he received from his employer under the Workmen’s Compensation Act so as to make up the difference between actual wage loss and the benefits received. The order also awards counsel fees and costs to the insured, as well as interest on the benefits awarded at the rate of 18%, pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act. We affirm.

The insured, the appellee in this case, an employee of the City of Pittsburgh, was a passenger in a City of Pittsburgh truck which was involved in a motor vehicle collision. At the time of the accident the insured was acting within the scope of his employment. He incurred personal injuries in the collision and has since then been unable to return to his job with the City. The insured also had part-time evening work as a janitor for another employer, and has not been able to resume that work either. His weekly wages from the two jobs were $282.96, of which $245.76 was the City wages and $37.20 was the janitor’s wages. Since the accident the insured has received $163.84 per week in Workmen’s Compensation benefits from the City. He accordingly submitted a claim to appellant, the insurance company with whom he had no-fault insurance coverage for his personal automobile, for wage loss benefits over the amount paid under Workmen’s Compensation. The insurance company denied the claim on the grounds that the insured should recover exclusively from his employer’s insurance carrier. The insured thereupon filed suit in assumpsit against the insurance company, his own insurer. The complaint included a request for attorney’s fees and costs, and for interest on the payments at the 18% rate. The plaintiff subsequently filed a motion for summary judgment which was granted by Judge WETTICK.

In its appeal the insurance company raises three questions: (1) whether an employee injured in the course of his employment while occupying his employer’s vehicle, who receives Workmen’s Compensation benefits, is entitled to recover the excess wage loss benefits from his own no-fault insurance carrier; (2) how the wage loss benefits should be computed; (3) whether the plaintiff is entitled to attorney’s fees.

I

As to the first issue, the insurance company argues that the insured should recover only from his employer’s no-fault insurance carrier. This argument is presented to us despite the holding in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980), which held specifically that an employee injured in the scope of his employment while driving his employer’s vehicle may not recover excess benefits, i.e., benefits over and above his Workmen’s Compensation benefits, from his employer’s no-fault carrier. In Wagner the Supreme Court said:

[W]here an employee is injured in an accident and is covered by workmen’s compensation, this by no means precludes recovery under no-fault; Section 303 of the Workmen’s Compensation Act precludes recovery from the employer only. Thus, while no recovery is allowed under Section 204(a)(1) against the employer’s no-fault carrier because of the exclusivity section of workmen’s compensation, an insured employee could recover under Section 204(a)(2)-(5) if applicable. From this recovery, the workmen’s compensation benefits would be deducted as called for in Section 206 of the No-Fault Act.
In sum, an employee injured in the scope of his employment while driving his employer’s vehicle may recover only workmen’s compensation benefits from his employer or the employer’s workmen’s compensation carrier; such a result is compelled by Section 303 of the Workmen’s Compensation Act. The injured employee may, if applicable, proceed against any of the applicable security mentioned in Section 204(a)(2)-(5). Should the employee recover no-fault benefits, workmen’s compensation benefits must first be deducted from any no-fault benefits to be paid.

492 Pa. at 165, 168, 422 A.2d at 1067-1068. See Augostine v. Pennsylvania National Mutual Casualty Insurance Co., 293 Pa.Super. 50, 437 A.2d 985 (1981) (employee, injured while alighting from employer’s truck, who received Workmen’s Compensation total disability benefits, may proceed against his own no-fault insurer for basic loss benefits); Adams v. Nationwide Insurance Co., 285 Pa.Super. 79, 426 A.2d 1150 (1981) (employee injured while driving his own automobile within the scope of his employment is entitled to receive work-loss benefits from his own no-fault insurance carrier to make up the difference between his actual wage loss and the Workmen’s Compensation benefits received). See also, Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978) (injured employee who was denied Workmen’s Compensation benefits because he refused to submit to a medical examination could not recover from employer under the No-Fault Act).

As the lower court found, this case is controlled by Wagner and we fail to see why the appellant insurance company persists with its argument to the contrary. The law is quite clear that the insured may recover from his own no-fault insurance company for the wage loss not covered by the Workmen’s Compensation payments, and not from his employer’s no-fault carrier.

II

The insurance company’s next argument involves the method used to calculate the amount due under the policy with the insured. Pursuant to the court’s order that counsel prepare a proposed order specifying the amount of the judgment to which the insured was entitled, the final order of the lower court was as follows:

(1) defendant shall pay to plaintiff the sum of $4,151.68, representing excess wage-loss benefits under the No-Fault Act from February 19, 1980 to February 19, 1981, calculated as follows:
Gross Wages (City) $245.76/wk.
Gross Wages (Central) 37.20/wk.
Total Gross Wages $282.96/wk.
Workmen’s Compensation (City) $163.84/wk.
Gross Wages $l,226.16/mo.
Workmen’s Compensation 709.97/mo.
Gross Excess Wage Loss Claim $516.19/mo.
Tax Deduction (per Brown) [] $170.20/mo.
Net Excess Wage Loss Claim $345.99/mo.
Net Excess Wage Loss Claim 79.84/wk.
Weeks Disabled To Date (2/19/81) x 52
EXCESS WAGE LOSS CLAIM DUE.......$4,151.68
(2) defendant shall pay to plaintiff the additional sum of $369.95, representing interest on said benefits, at the rate of eighteen percent (18%) per annum, from October 1, 1980 through April, 1981;
(3) defendant shall pay to plaintiff’s counsel, E. J. Strassburger, Esquire, the sum of $1,057.50, representing reasonable counsel fees based upon 14.1 hours at $75 per hour; and
(4) defendant shall pay all record costs.

The insurance company, however, argues that the Workmen’s Compensation payments and the no-fault payments together should not exceed $1,000. Citing the No-Fault Act, it proposes a calculation whereby the insured’s maximum amount of monthly benefits would be $1,000.00, from which the Workmen’s Compensation benefits would be deducted. From this balance the tax deduction would be taken, leaving a balance of $190.03 per month which would be the net excess wage loss claim to be paid by the insurance company. The section cited by appellant is § 1009.202 which provides in part:

(b) Work loss limits.—Work loss, as defined in section 103 shall be provided:

(1) up to a monthly maximum of:
(A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures [.]

The insured argues, and the lower court agreed, citing another Common Pleas court opinion, that this provision means that an employee may receive under No-Fault up to $1,000 for losses not compensated by Workmen’s Compensation. The appellant insurance company argues that this interpretation means that the insured gains a windfall and will receive more money from the combined benefits than if he were able to work. This is nonsense. The lower court merely interpreted the statute so as to give the insured the equivalent of his lost wages.

The insurance company also argues the language by our Supreme Court in Wagner to the effect that Workmen’s Compensation benefits “must first be deducted from any no-fault benefits to be paid.” 492 Pa. at 168, 422 A.2d at 1068. But in Wagner the Supreme Court did not deal with the precise question of how the benefits were to be calculated. The court was simply making it clear that an insured should not make a double recovery both from Workmen’s Compensation and from his own insurer, but rather that the two recoveries should complement each other.

We therefore find no error in the lower court’s method, particularly in view of this court’s customary liberal construction in favor of coverage in cases where the language of the statute or the policy is not absolutely clear. See Tubner v. State Farm Mutual Automobile Insurance Co., 280 Pa.Super. 38, 421 A.2d 392 (1980), aff’d, 496 Pa. 215, 436 A.2d 621 (1981); Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff’d, 491 Pa. 447, 421 A.2d 629 (1980).

Ill

Lastly, the lower court awarded attorney’s fees to the insured, and the insurance company asserts this to have been erroneous.

The No-Fault Act provides at section 1009.107(3):

If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

The lower court decided that in view of the Wagner decision establishing the insurance company’s duty to pay, the denial of the claim was unreasonable. The insurance company disagrees, claiming that Wagner was not controlling and that another Common Pleas court case was controlling. In the other case, Augostine v. Pennsylvania National Mutual Casualty Insurance Co., No. G.D. 79-21607, C.P. Allegheny County, 1980, 129 Pitt.Legal J. 38 (1980), the lower court held that an insured, injured while alighting from his employer’s truck, and compensated under Workmen’s Compensation, could not recover basic loss benefits from his own no-fault insurer. That decision was reversed by this court in November 1981. See 293 Pa.Super. 50, 437 A.2d 985 (1981). Although our decision in Augostine was rendered after the instant case was argued before us, our decision in Wagner, see 266 Pa.Super. 110, 403 A.2d 118 (1979), was available. Our Wagner decision was upheld by our supreme court, see 492 Pa. 154, 422 A.2d 1061 (1980), in September 1980, before the instant lawsuit was filed in November, 1980. In such a situation, therefore, appellant’s reliance on the common pleas court decision in Augostine was misplaced.

Appellant argues that Wagner was merely affirmed by an evenly-divided supreme court. In fact, it appears that the case was heard by seven justices. Three justices dissented, each of them essentially on the grounds that the employer’s no-fault carrier should not share the immunity allowed to the employer and to the employer’s workmen’s compensation carrier. Two justices joined in the opinion of the court, and the seventh justice concurred in the result. None of the dissenters referred to the question of an employee’s right to recover from his own no-fault carrier. This argument therefore is insufficient to make the insurance company’s denial of the claim a reasonable1 one.

We thus agree with the lower court that the insurance company’s withholding of benefits was unreasonable, and affirm the lower court’s award of counsel fees.

IV

Appellee requests that we remand the case to the lower court so that the appropriate interest due from the date of the lower court’s order until the date of payment be included in the order, as well as counsel fees for this appeal.

The No-Fault Act provides that overdue payments bear interest at the rate of 18% per year, and that no-fault benefits are overdue if not paid within thirty days. See 40 P.S. § 1009.106(a)(2). Our Supreme Court has ruled that the 18% interest is owed regardless of the good faith of the insurer or the reasonableness of the delay. See Hayes v. Ene Insurance Exchange, 493 Pa. 150,155, 425 A.2d 419, 421 (1981). Although an appellate court has the power to add interest to a verdict, Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865 (1959), Berkeley Inn, Inc. v. Centennial Insurance Co., 282 Pa.Super. 207, 422 A.2d 1078 (1980), it would seem that the 18% interest rate is automatic and we need not remand for the lower court to amend the order to include the 18%.

As to the counsel fees for the appeal, we agree that the insurance company shoúld pay these also. Firstly, Wagner was the law as to the insurance company’s liability. Appellant denied the insured’s claim without reasonable foundation. Appellant chose to appeal the lower court’s decision, again in the face of the Wagner case which makes its liability to its insured quite clear. Secondly, the method of calculation used by the lower court was adopted from the same court’s calculations in the Brown case, see note 7 supra, in which State Farm, the appellant now before us, was a party. Nothing in State Farm’s brief presents a convincing argument showing error in the method as explained and analyzed by Judge WEKSELMAN in the Brown case or as adopted by Judge WETTICK in the instant case. We see no reason, therefore, why the insured should not be reimbursed for the expenses involved in this appeal brought by his insurance company which is still denying the claim.

The order of the lower court is affirmed. Interest on the payments is to be paid at the rate of 18%. The case is remanded to the lower court for a determination of reasonable counsel fees due appellee consistent with this opinion. We relinquish jurisdiction.

      . The Pennsylvania Workmen’s Compensation Act of 1915, Act of June 2, 1915, P.L. 736, Art. I., as amended, 77 P.S. §§ 1-1601 (Purdon 1952 & Supp.).

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101-.701 (Purdon Supp. 1981). Section 1009.106(a)(2) provides in pertinent part: “Overdue payments bear interest at the rate of eighteen percent (18%) per annum.” Section 1009.107(3) provides: “If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim ... without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.”

      . Motley v. State Farm Mutual Automobile Insurance Co., No. 9890 of 1980 (C.P. Allegheny County, April 16, 1981).

      . Id., order dated April 29, 1981.

      . See note 7 infra.

      . See 40 P.S. § 1009.206(b) which provides:
      (b) Tax deduction.—If a benefit or advantage received to compensate for loss of income because of injury, whether from no-fault benefits or from any source of benefits or advantages subtracted under subsection (a) of this section, is not taxable income, the income tax saving that is attributable to such loss of income because of injury is subtracted in calculating net loss for work loss. Subtraction may not exceed twenty per cent (20%) of the loss of income and shall be in such lesser amount as the insurer reasonably determines is appropriate based on a lower value of the income tax advantage.

      . Brown v. City of Pittsburgh, No. G.D. 76-20176, C.P. Allegheny County, June 20, 1978, 126 Pitt.Legal J. 312 (1978). In this case Brown made a claim to State Farm, his own no-fault carrier, which denied the claim. Brown then made a claim to his employer, which also denied the claim. He accordingly instituted a declaratory judgment action. The Common Pleas Court agreed that under the No-Fault Act § 1009.204, providing for payment of basic loss benefits to an employee driving or occupying an employer’s vehicle, Brown was not covered as he was neither driving nor occupying the employer’s vehicle which had hit him. The court declined to rule on whether the Workmen’s Compensation Act precluded the employer from having any no-fault liability.
      The lower court then made a comprehensive analysis of the applicable sections of the No-Fault Act and ultimately decided that the Workmen’s Compensation payments should be deducted from the employee’s gross income, not from the $1,000 figure of § 1009.202.

      . The superior court affirmed the lower court’s dismissal of an action brought by the estate of a deceased employee against the employer’s no-fault insurance carrier for work loss and survivor’s loss benefits under the No-Fault Act.