text:
    459 A.2d 409
    Frank SPERRAZZA and Angela Sperrazza, H/W, Appellants, v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1983.
    Filed April 22, 1983.

      Raymond W. Ferrario, Scranton, for appellants.
    John R. Lenahan, Sr., Scranton, for appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

This is an appeal from judgment entered on a jury’s verdict for appellee,- Cambridge Mutual Fire Insurance Company, in an action of assumpsit to recover under a policy of fire insurance. Appellants, Frank and Angela Sperrazza, were the owners of improved real estate located at 536-538 Schultz Court, Scranton, having purchased the property in May of 1979. The building was destroyed by a fire, incendiary in origin, on November 19, 1979. The insurance company denied liability under the policy, contending that the fire had been set by or at the instance of the insureds for the purpose of collecting the proceeds of the policy. Post verdict motions for judgment n.o.v. and new trial were denied and judgment was entered on the verdict for the insurer. In this appeal the Sperrazza’s principal argument is that the evidence was insufficient to show that they were responsible for the fire. Because there is no merit in this contention, the judgment will be affirmed.

Arson by an insured to collect the proceeds of a policy of insurance is an affirmative defense. The burden of proving an insured’s responsibility for a fire by a fair preponderance of the evidence is on the insurer. Greenberg v. Aetna Insurance Co., 427 Pa. 494, 235 A.2d 582 (1967); Ruttenberg v. Fire Association of Philadelphia, 122 Pa.Super. 363, 186 A. 194 (1936); Mele v. All-Star Insurance Co., 453 F.Supp. 1338 (E.D.Pa.1978). The standard on review is whether the evidence supports a reasonable and legitimate inference that the insured fraudulently burned or caused the building to be burned. To be reasonable, the inference must rest not on speculation or conjecture but must be based on logical deduction from facts proven. Although the inference must be the product of reason from evidence presented, it need not be the only logical conclusion a jury could have reached. Ruttenberg v. Fire Association of Philadelphia, supra 122 Pa.Super. at 366, 186 A. at 195; Mele v. All-Star Insurance Co., Id., 453 F.Supp. at 1341. See also: Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 138, 153 A.2d 477, 479-480 (1959). “[I]n a civil matter to determine whether a reasonable inference exists that an insured is responsible for the fire which damaged the insured property, a jury should consider the combination of evidence of: (1) an incendiary fire; (2) a motive by the insured to destroy the property and (3) circumstantial evidence connecting the insured to the fire.” Mele v. All-Star Insurance Co., supra.

The fire at 536-538 Schultz Court was indisputably incendiary. The parties agreed to this fact, and the testimony clearly established that an accelerant had been used. Empty gasoline or fuel oil containers were found in the premises following the conflagration. A profit motive was established by evidence showing that the damaged building had been acquired by appellants only a few months before the fire at a price of $16,500. It had initially been insured for $50,000; one month prior to the fire the coverage had been increased to $75,000. No monies had been expended for improvements in the interim between purchase and the date of the fire. Although there was no direct testimony linking appellants to the blaze, there was circumstantial evidence from which an inference of responsibility for the fire could be drawn. In addition to the sharp and unexplained increase in the amount of coverage during appellants’ brief ownership and the disparity between purchase price and insurance coverage purchased, it was established that appellants had given the last remaining tenant a notice to quit. By November 14, 1979, five days before the fire, all tenants had moved from the building and the premises were wholly vacant and unoccupied. There was also evidence from which it could be found that the containers of accelerant had been brought onto the premises by one who had a key to the building. Workmen testified that the building had been secured at the end of the workday, and that no accelerants were present at that time. The evidence was that there had not been a forced entry. However, only appellants and their employees had keys or knew where keys could be found. Appellants speculated and attempted to show that the husband of the evicted tenant also knew where a key was kept and could have started the fire. However, the credibility of this evidence as well as the existence of a motive on the part of the tenant was for the jury.

We agree with the trial court that the evidence was sufficient to permit a reasonable inference that appellants were responsible for the fire which destroyed the insured premises. Appellants’ motions for judgment n.o.v. and for a new trial were properly denied.

The judgment is affirmed.

      . Appellants also argue that error occurred in certain evidentiary rulings by the trial court as well as in its charge. We have reviewed these claims and find them lacking in merit. The opinion of the trial court ably and carefully analyzed these issues, and it is unnecessary to discuss them herein.

      . A judgment n.o.v. may be entered only in a clear case. In considering such a motion, a reviewing court is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. 571, 576, 417 A.2d 1196, 1199 (1980). A judgment n.o.v. is proper only where the facts are such that no two reasonable persons could fail to agree. Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 409, 430 A.2d 665, 670 (1981); Kiely v. Southeastern Pennsylvania Transportation Authority, 264 Pa.Super. 578, 580, 401 A.2d 366, 367 (1979).

      . When considering a motion for a new trial on the grounds that the verdict was against the weight of the evidence, the evidence is not considered in the light most favorable to the verdict winner. Rather, all evidence must be reviewed to determine whether the verdict is so contrary to the evidence as to shock one’s sense of justice, making the award of a new trial imperative so that right may be given another opportunity to prevail. Cianci v. Burwell, 299 Pa.Super. 387, 390, 445 A.2d 809, 810 (1982); Peair v. Home Association of Enola Legion No. 751, supra 287 Pa.Super. at 410, 430 A.2d at 670. The grant of a new trial is within the sound discretion of the trial judge whose exercise thereof will not be reversed in the absence of a palpable abuse of discretion. Yandrich v. Radic, 291 Pa.Super. 75, 79, 435 A.2d 226, 229 (1981); Caneryv. Southeastern Pennsylvania Transportation Authority, 267 Pa.Super. 382, 391, 406 A.2d 1093, 1097 (1979); Ditz v. Marshall, 259 Pa.Super. 31, 35, 393 A.2d 701, 703 (1978).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    459 A.2d 412
    Charles James HOWE v. HARLEYSVILLE INSURANCE COMPANIES, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1983.
    Filed April 22, 1983.

      Alexander Kerr, Harleysville, for appellant.
    Joseph F. Saporito, Pittston, for appellee.
    Before BROSKY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Is a motor vehicle occupant who sustains injuries when struck by a hunter’s errant bullet entitled to benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act? The trial court held that such an injury was included within the Act’s protection, entered judgment in the amount of $1,957.92, and awarded attorney’s fees in the amount of $800.00. We reverse.

The facts are not in dispute. On December 4, 1976, Charles James Howe was a passenger in a jeep owned and operated by his father, James B. Howe, Jr. The vehicle was insured by Harleysville Mutual Insurance Co., Inc. Howe sustained injury when a hunter mistakenly believed the jeep was a deer and shot at it. His aim was better than his judgment. The bullet pierced the door of the jeep and lodged in Howe’s leg. Howe sought benefits under the No-fault Act. When his claim was denied by Harleysville, he commenced an action in assumpsit. When the case was heard without a jury, the parties stipulated the facts. The court ruled in favor of Howe; Harleysville’s exceptions were denied by the court en banc; and judgment was entered. This appeal followed.

Basic loss benefits under the No-fault Act are available to “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” 40 P.S. §§ 1009.201, 1009.103. The focus of our inquiry, therefore, is whether appellee’s injuries arose out of the use of an automobile. We have recently considered this issue in several factually analogous cases and have concluded that “while the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle.” Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 303, 452 A.2d 735, 737 (1982). See also: Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982); Rife v. State Farm Mutual Automobile Insurance Co., 304 Pa.Super. 359, 450 A.2d 720 (1982). The legislative scheme contained in the No-fault Act is to provide, at reasonable cost, a statewide system of protection and compensation for individuals injured as a result of motor vehicle accidents, irrespective of fault. This purpose cannot reasonably be construed to encompass protection for injuries which are totally unconnected with an insured vehicle or so remotely connected therewith that the role of the vehicle has been merely incidental.

In Schweitzer v. Aetna Life and Casualty Co., supra, the plaintiff sustained injuries when she was pulled from her vehicle and assaulted by the operator of a motorcycle. She contended that her injuries, although intentionally inflicted by a third party, arose from the use or maintenance of a motor vehicle and that she was, therefore, a “victim” within the meaning of the No-fault Act. This court disagreed, stating that “[a]n unprovoked, intentional physical assault upon the driver of an automobile is not within the scope of the protection contemplated by the legislature, which provided that an individual so injured should seek recourse in a common law tort action.” Id., 306 Pa.Superior at 303-04, 452 A.2d at 737.

In Erie Insurance Exchange v. Eisenhuth, supra, the injured appellant had been a passenger in a motor vehicle being pursued by a police officer because the driver had failed to pay for gasoline. When the pursued vehicle skidded into a ditch, the officer approached it on foot. The moving vehicle in which the appellant was a passenger pulled out of the ditch and drove toward the officer. To avoid being struck, the officer leaped onto the hood of the moving vehicle and fired several shots into the car, one of which struck and wounded the appellant. A panel of the Superior Court concluded that the injuries sustained had not arisen from the use or maintenance of an automobile. “It is clear that there must be some causative factor between the use or maintenance of the vehicle and the injuries sustained in order for one to become a ‘victim’ within the scope of the no-fault act____ [T]he connection between the harm done and the vehicle need not rise to the level of proximate causation____ [However,] even the ‘but for’ standard is not met in this case. [Appellant’s] injuries were not caused by the operation of the vehicle____ The cause of [his] injuries was a gunshot, not his being a passenger in [the insured] automobile.” Id., 305 Pa.Superior at 574, 451 A.2d at 1025. The court concluded that although the appellant might not have been shot had he not been in the vehicle, it was not the vehicle or its use that had caused the injury. There was not an adequate causal connection between the vehicle’s use and the injuries.

The factual circumstances of Rife v. State Farm Mutual Automobile Insurance Co., supra, also included a shooting. Rife, whose vehicle had been parked illegally at the Philadelphia International Airport, returned to his automobile just as it was being ticketed by a police officer. He protested verbally and then struck the officer. He ran to his automobile and attempted to drive away, nearly striking the officer in the process. The officer fired two shots at the vehicle to retard its movement. Rife was nonetheless able to leave the parking lot and eventually drove through a fence into a rental car parking lot. Another officer, who had been alerted to Rife’s erratic behavior, motioned him to stop. When he failed to do so, the second officer fired three shots into the vehicle. One of these injured Rife’s arm. Rife’s action to recover no-fault benefits resulted in a summary judgment for the insurance company. The Superior Court affirmed, holding that the bullet wound did not arise from the maintenance or use of an automobile and had not been accidentally sustained. Accordingly, Rife was neither a “victim” nor “injured” within the meaning of the No-fault Act. His injury was “caused by a shot fired by [a police officer] as he was attempting to evade apprehension for the commission of a crime. Thus ... [he] sustained an injury by a force external to any vehicle involved in a collision.” Id., 304 Pa.Superior at 366, 450 A.2d at 724 (emphasis omitted). Such an injury, it was held, was not within the protection of the Act.

These decisions are controlling of the instant controversy. The injury sustained by appellee was caused by a bullet. The connection between the injury and the insured vehicle was nothing more than mere chance or happenstance. We are constrained to hold, therefore, that there can be no recovery under the No-fault Act.

Reversed and remanded for the entry of judgment in favor of appellant.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq. (Hereinafter referred to as the No-fault Act.)

      . Howe’s action named "Harleysville Insurance Companies” as defendant. The proper party defendant is Harleysville Mutual Insurance Co., Inc. Neither the caption of the action nor appellee’s designation has been contested.

      . In Erie Insurance Exchange v. Eisenhuth, supra, 305 Pa.Superior at 576 n. 2, 451 A.2d at 1026 n. 2, the trial court’s decision in the instant case was acknowledged and rejected as follows: "We are aware that the Common Pleas Court of Luzerne County reached a different conclusion in a similar factual situation. See Howe v. Harleysville Insurance Companies, 7 D & C 3rd 214 (1978), but we are compelled to reject that court’s reasoning in this case.”

      . Because of this holding, it is apparent that appellant had a reasonable basis for denying benefits and cannot properly be ordered to pay a fee to appellee’s counsel. 40 P.S. § 1009.107(3). See also: Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981).


author: CAVANAUGH, Judge:

text:
    459 A.2d 414
    COMMONWEALTH of Pennsylvania, Appellant, v. Howard J. GERARD.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1982.
    Filed April 29, 1983.

      John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellant.
    Paul E. Allen, Meadville, for appellee.

      Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

The questions on appeal are whether the substantive and procedural requirements of Pa.R.Crim.P. 51 were met in this case and whether the failure of the summons to contain a certification of disposition pursuant to Pa.R.Crim.P. 58 constitutes a procedural defect under Pa.R.Crim.P. 150.

Appellee Howard J. Gerard appealed to the Common Pleas Court from a summary conviction under the Motor Vehicle Code. The Common Pleas Court dismissed the charges upon a stipulation of facts, holding that the proceedings were not initiated in compliance with the Pennsylvania Rules of Criminal Procedure.

The background is that the Commonwealth alleges that appellee failed to stop at the scene of an accident on July 15, 1980. No citation was issued on that day, but two days later a Pennsylvania State Trooper filed a citation with the District Justice and attested to the facts therein. The District Justice in turn notified appellee of the charge by sending him a document removed from a multi-leaf form. The document is entitled at the top “Citation/Summons”. It was signed and dated by the District Justice, who also entered the magisterial district number. Appellee admits that he received this document. The present appeal is from a dismissal of the charges following an appeal from the District Justice. The procedure sought to be employed by the Commonwealth for instituting the present proceeding is the one set forth in Rule 51 A(l)(b):

Rule 51. Means of Instituting Proceedings in Summary Cases

A, Criminal proceedings in summary cases shall be instituted in the following manner:

(1) Traffic Offenses (Other than Parking)
(b) A citation (rather than a complaint) shall be filed with an issuing authority by a police officer when the offense charged is a violation of a traffic ordinance or is a summary offense under the Vehicle Code, when the police officer is not in uniform, or when it is not feasible for him to issue a citation to the defendant, or when evidence is discovered after the issuance of a citation which gives rise to additional summary charges against the defendant resulting from the same incident. The issuing authority shall thereupon issue a summons and not a warrant of arrest except as provided in Section B(3) of this Rule. Thereafter, the case shall proceed as provided in Rules 57 and 59.

There is no question that the officer in compliance with this rule filed a citation with the issuing authority. Moreover, there is no question that the issuing authority, District Justice Reisner, signed, dated and provided the Magisterial District No. on a form which, though a part of the multi-leaf packet, bore carbon copy imprints of the information entered by Trooper Sweeney on the first page of the packet which was the citation. It was, however, in fact otherwise a substantially different form from the citation in that it bore the bold print heading CITATION/SUMMONS and otherwise was denoted as either a “summons” or a “citation/summons”. It is argued that this did not qualify as a summons because it is not an “original”; that it is not properly labelled SUMMONS; and does not qualify as a summons in that it does not contain a “Certification of Disposition” as required by Rule 58 relating to the Form of Summons. We have no difficulty in disposing the first two arguments. If the document otherwise qualifies as a summons, the fact that some of the information contained thereon was from a carbon impression rather than original hand or mechanical entry is totally inconsequential and would place a meaningless technical burden on law enforcement officials. Moreover, the fact that the document is denominated a citation/summons in several places is, in our opinion, an insufficient reason, without more, to reject it as a summons. The root of appellee’s argument, however, is that it does not contain the mandated “Certification of Disposition.” The purpose of this part of the form is simply to provide a convenient and simplified method for the certification of the adjudication and sentence following the disposition of the case by the issuing authority. This part of the form provides no notice information to the defendant, and no argument is made herein that its absence worked any prejudice to him. Heavy reliance is placed upon the fact that above the outline of the Certification of Disposition form in Rule 58 the italicized instruction appears that: “the following must appear on the original copy, preferably on the back thereof.” The lower court found this instruction, in conjunction with our holdings in Commonwealth v. Jonnet, 265 Pa.Super. 315, 401 A.2d 1228 (1979) and Commonwealth v. Shelton, 260 Pa.Super. 82, 393 A.2d 1022 (1978), to require strict compliance with the form and substance of the mandated Summons. While in view of our cases the court acted reasonably in so holding we think that the fprm used in this case sufficiently complies with the requirements of the law. As previously noted, it is designated a summons and it fully complies with the content requirement, with the exception of the Certification of Disposition section which is of no benefit or moment to the defendant. Moreover, while the language requiring the Certification of Disposition form is mandatory, the preceding language of Rule 58 Form of Summons-Summary Cases requires only that the summons be “substantially” in the outlined form. In addition, Rule 150 which, inter alia, refers to defects in a summons provides:

Rule 150. Defects in Complaint, Citation, Summons or Warrant

(a) Informal Defects:

No person arrested under a warrant or appearing in response to a summons or citation shall be discharged from custody nor shall any case be dismissed because of any informal defects in the complaint, citation, summons, or warrant, but the complaint, citation, summons or warrant, may be amended at any time so as to remedy any such informality.

(b) Substantive Defects:

If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.

“Informal defect” in the comment to this rule refers to errors which do not prevent the substantive content from being plainly understood. Substantive defects are exemplified as ones in which the defendant’s identity cannot be determined or where the offense is not properly described. Under these standards the omitted portion of the suggested form certainly should be considered only as an informal defect. Jonnet and Shelton are distinguishable in that in those cases the document was not entitled a summons and in Shelton the form did not contain the notice of the four options provided to the defendant in response to the charge. While these cases do require “strict” rather than “substantial” compliance with the rules, we do not read them as requiring absolute compliance to the degree asserted herein.

Order reversed.

      . But see Pa.R.Crim.P. 57 and 58 which require summons to be "substantially” in the recommended form.


author: ROWLEY, Judge:

text:
    459 A.2d 417
    Edward DURKIN, James Durkin, Jr., Eugene Bartoli, John R. Williams and Herve Filton, Ind. and D/B/A Snow Shoe Farms, Appellants, v. EQUINE CLINICS, INC., and Joseph De Leo.
    Superior Court of Pennsylvania.
    Argued June 7, 1982.
    Filed April 29, 1983.

      Cavanaugh, J., concurred in result.

      Joseph D. Shein, Philadelphia, for appellants.

      George J. McConchie, Media, for appellees. -
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

Appellants brought this action to recover the value of their six year old race horse, Josiah. Josiah died on August 21, 1971, approximately ten minutes after being injected with certain drugs by appellee Dr. Joseph DeLeo, a veterinarian employed by appellee Equine Clinics, Inc. After a jury trial in December of 1980, a verdict was returned in favor of appellees. Motions for a New Trial were filed and denied. This appeal followed.

Five issues are raised on appeal: 1) Did the court err in its charge to the jury by failing to clarify the issues or to apply the law to the facts of the case?; 2) Did the court err in not charging that a race horse is a unique chattel and therefore not subject to the usual market value rule of damages?; 3) Did the court err in not permitting a recorded interview with Dr. Seeber to be played for the jury?; 4) Did the court err in refusing to charge the jury on the doctrine of res ipsa loquitur?; and 5) Did the court err in refusing to instruct the jury that prescribing and administering dosages of drugs contrary to the manufacturer’s package insert is evidence of negligence?

Appellants’ first and second arguments, concerning failure to apply the law to the facts and the proper measure of damages will not be considered because they have not been preserved for appellate review since they were not raised in appellants’ post-trial motions. Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Leopold v. Davies, 246 Pa.Super. 176, 369 A.2d 868 (1977).

Appellants next argue that the court erred in refusing to permit a recorded interview with Dr. Seeber, an associate of Dr. DeLeo who had been treating Josiah, to be played for the jury. However, a written transcript of the recording was admitted into evidence. Appellants do not claim that the transcript was inaccurate. Rather, they argue that listening to the recording would have had a different “impact” on the jury than merely reading a transcript. Appellants further argue that introduction of the transcript, rather than the recording itself, violated the “Best Evidence Rule”.

Even if we were to consider the tape recording to be a “writing”, the Best Evidence Rule would not apply in this case. The Best Evidence Rule is only applicable to the proof of the contents of documents when the contents of those documents are material to, rather than mere evidence of, the issues at bar. Otherwise, the admission of “secondary evidence” should not be reversed except for a “grave abuse of discretion”. Ledford v. Pittsburgh & Lake Erie R. Co., 236 Pa.Super. 65, 345 A.2d 218 (1975). In this case, the contents of the interview were merely collateral to the issue of appellees’ negligence. Proof of its content was not necessary in order to make a case or provide a defense. See Warren v. Mosites Const. Co., 253 Pa.Super. 395, 385 A.2d 397 (1978). Therefore, the Best Evidence Rule does not apply. Since we find no abuse of discretion in the admission of the transcript rather than the recording, appellants’ argument is without merit.

Appellants next argue that the court erred in refusing to charge the jury on the doctrine of res ipsa loquitur.

Res ipsa loquitur may be applicable in a medical malpractice action. Jones v. Harrisburg Polyclinic Hospital, et al, 496 Pa. 465, 437 A.2d 1134 (1981). In this case, however, the trial court refused the instruction because it concluded that the event was not of a kind which ordinarily does not occur in the absence of negligence, one of the requirements of the doctrine. Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974). See also Starr v. Allegheny General Hospital, 305 Pa.Super. 215, 451 A.2d 499 (1981). We agree with that conclusion.

In this case the “doctor/patient” relationship involved was between a veterinarian and a horse. As with malpractice cases involving human patients, no presumption of inference of negligence arises merely because the medical treatment culminates in a bad result. Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974). The question in this case involved a reaction to certain types and dosages of drugs and the possible cause of such a reaction. An adverse reaction to medication may have many possible causes. Therefore, this was not an appropriate case for an instruction on res ipsa loquitur.

Appellants’ final argument is that the court erred in refusing to instruct the jury that the prescribing by a veterinarian of prescription drugs in excess of the manufacturer’s recommended dosage is evidence of negligence.

It was undisputed that ten minutes before he died, Josiah received a dosage of the drug Butazolidin which was two times the manufacturer’s maximum recommended dosage. Appellees were aware of the maximum recommended dosage on the package insert, but deliberately chose to prescribe a “double dose”. There is some dispute as to what other drugs were administered.

In Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), the Supreme Court indicated that warnings and instructions on drug labels could be considered, along with other factors, in determining whether conduct fell below a reasonable standard of professional care. The Court further indicated that even though the practice in the profession may be to ignore those instructions, such conduct can still constitute malpractice.

The entire theory of appellants’ case was that Josiah died as the result of a drug overdose. The fact that the recommended dosages of certain drugs were exceeded was crucial evidence to support that theory. A trial court’s instructions should not exclude any theory, right or defense or any material fact issue arising from the evidence. See P.L.E. Trial §§ 288, 289. Therefore, we hold that it was error for the court to fail to instruct the jury that, in determining whether appellees were negligent and whether that negligence caused Josiah’s death, it could consider the fact that appellees failed to follow the manufacturer’s recommended dosage. Because of the importance of the drug overdose issue, failure to so charge was extremely prejudicial to appellants. Therefore, we will vacate the judgment in favor of appellee and remand this case for a new trial.

Judgment vacated and case remanded for further proceedings.

Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.


text:
    459 A.2d 420
    COMMONWEALTH of Pennsylvania v. Horace WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 4, 1983.
    Filed April 29, 1983.

      Joseph V. Furlong, Jr., Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Horace Williams entered a counseled plea of guilty to robbery. On August 13, 1981, he was sentenced to a term of imprisonment for not less than four nor more than ten years. Although fully advised of his rights following sentencing, Williams did not file a motion to withdraw his plea of guilty, and he did not request a reconsideration of sentence. On October 10, 1981, he filed a pro se appeal in this court.

This appeal was untimely. An appeal must be filed within thirty days of the judgment of sentence. See: Commonwealth v. McCarthy, 296 Pa.Super. 142, 144-145, 442 A.2d 698, 699-700 (1981); Commonwealth v. Molyneaux, 277 Pa.Super. 264, 265-266, 419 A.2d 763, 764 (1980); Pa.R. A.P. 903(a). Where an appeal has been filed untimely, the defect is jurisdictional and may be raised by this Court sua sponte. Commonwealth v. Jones, 307 Pa.Super. 558, 453 A.2d 1028 (1982); Commonwealth v. Gottshalk, 276 Pa.Super. 102, 104, 419 A.2d 115, 116 (1980).

Appellant’s brief contends that he is also appealing from an order of the trial court, allegedly entered on September 10, 1981, which denied a request for the appointment of counsel to file a motion to modify sentence. Neither the docket nor the sentencing judge’s opinion discloses the filing of such a petition; and no such petition is among the record papers. Indeed, on September 10, 1981, appellant was still represented by his guilty plea counsel, who could have preserved appellant’s right of appeal if requested to do so. Moreover, and in any event, an appeal will lie only from a definitive order, decree or judgment which finally terminates the action. Commonwealth v. Ray, 448 Pa. 307, 312, 292 A.2d 410, 413 (1972); Commonwealth v. Hunter, 294 Pa.Super. 52, 54, 439 A.2d 745, 746 (1982); Commonwealth v. Gore, 279 Pa.Super. 622, 623, 421 A.2d 372, 373 (1980); Commonwealth v. DeFelice, 248 Pa.Super. 516, 521, 375 A.2d 360, 362 (1977). In this case the appealable order was the judgment of sentence. See: Commonwealth v. Liddick, 471 Pa. 523, 527 n. 2, 370 A.2d 729, 731 n. 2 (1977); Commonwealth v. Pollick, 420 Pa. 61, 63, 215 A.2d 904, 905 (1966); Commonwealth v. Laudenslager, 260 Pa.Super. 395, 398, 394 A.2d 985, 987 (1978). Because the appeal was not filed within thirty days thereafter, it was untimely and must be quashed.

Appeal quashed.


author:
      WIEAND, Judge:
     MONTEMURO, Judge,

text:
    459 A.2d 421
    Stanley F. SCHMIDT v. Janet SCHMIDT, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1981.
    Filed April 29, 1983.

      Montemuro, J., filed concurring opinion.
    Marvin Beshore, Harrisburg, for appellant.
    Keith Rene Nonemaker, Hanover, for appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Can a twenty-six year old woman, who is a victim of Down’s Syndrome and has the mental ability of a child between the ages of four and a half and eight years, be compelled by court order to visit a parent against her will? The trial judge concluded, in a thoughtful and concerned adjudication, that the daughter should be compelled to visit her father but only under circumstances carefully circumscribed by safeguards intended to protect her emotional and psychological well-being. Despite the care which the trial judge exercised in attempting to resolve this difficult issue, we are constrained to hold that an adult person cannot be compelled by judicial decree to visit a parent against his or her will.

Kimberly Schmidt was born March 4, 1957, the second of four children born of the marriage of Stanley and Janet Schmidt. Kimberly unfortunately suffered from Down’s Syndrome, commonly known as mongolism. Despite her affliction, Kimberly’s life was relatively serene and her family relationships harmonious until marital problems developed between her parents. Stanley and Janet Schmidt ultimately settled into separate homes and have been living separate and apart since May, 1978. Following the separation of her parents, Kimberly resided with her mother. Considerable acrimony developed after the marital discord became apparent to the children, and Kimberly’s siblings, two of whom at the time of the hearing continued to live with their mother, have refused to visit their father under any circumstances. Kimberly’s relationship with her father, once pleasant, has deteriorated badly. She bases her present dislike for him and her unwillingness to visit him upon observed incidents of violence directed by her father against her mother, her brother, her sister’s fiance, and even the family pet. Kimberly now refers to her father as a “beast” and a “burglar”. Her strongly expressed desires not to see her father were heard by lay and expert witnesses and were confirmed by Kimberly herself during an in camera session with the hearing judge. She has been examined and tested by several psychologists who are unanimous in reporting that Kimberly has a deep-seated dislike for and unwillingness to visit her father. Her father seems to generate within Kimberly strong feelings of anger and fear. The psychologists differ in their opinions as to whether enforced visitations will be harmful to Kimberly.

In Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470 (1973), it was held that a court has no authority to force an adult daughter to visit her father even though he has been making and she has been accepting voluntary contributions toward her support. This decision, although factually not on all fours with the instant case, is persuasive.

Kimberly Schmidt is chronologically an adult. She has not been adjudicated incompetent. Her mental limitations do not compel the conclusion that she lacks capacity to make rational decisions regarding parental preferences. Because she is an adult she enjoys many of the same rights and privileges enjoyed by other adult citizens. These include a constitutionally protected freedom of choice to make certain basic decisions regarding marriage, procreation, family life and privacy. See, e.g.: Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). This freedom of choice, it would seem, should include the same right which an adult has to refuse to visit a parent. In the absence of an adjudication of incompetency, a handicapped adult should not be deprived of the freedom to make for himself or herself the same family related decisions which other adults enjoy. Such a person has the same needs as other adults for social approval, respect and privacy, as well as freedom to make important decisions regarding personal preferences and associates.

The fact that an adult child receives some or all of his or her support from a parent does not compel a contrary result. The duty to support a son or daughter is not dependent upon a right of visitation. See: Myers v. Young, 285 Pa.Super. 254, 427 A.2d 209 (1981); Kramer v. Kelly, 265 Pa.Super. 58, 68, 401 A.2d 799, 804 (1979); Commonwealth ex rel. Mickey v. Mickey, 220 Pa.Super. 39, 42, 280 A.2d 417, 419 (1971); Commonwealth ex rel. Crane v. Rosenberger, 212 Pa.Super. 144, 147, 239 A.2d 810, 812 (1968); Commonwealth v. Mexal, 201 Pa.Super. 457, 461, 193 A.2d 680, 682 (1963). The duty of support is based upon considerations broader in scope and more state and society oriented than those considerations which permit a father to visit children not in his custody. See: 59 Am Jur 2d, Parent and Child, § 51.

Finally, we acknowledge the practical difficulty of enforcing an order of visitation against an adult son or daughter, irrespective of mental age, who refuses to visit his or her father. Traditionally, orders allowing visitation between non-custodial parent and child have been enforced by contempt proceedings directed against the custodial parent. See: In re Custody of Temos, 304 Pa.Super. 82, 86-87, 450 A.2d 111, 113 (1982); Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975); Commonwealth ex rel. Swinburne v. Mullen, 193 Pa.Super. 237, 241, 163 A.2d 920, 922 (1960). However, visitation cannot similarly be enforced if a competent, adult son or daughter refuses to visit a parent. If the rule is to be different in cases where a son or daughter possesses a mental age which has not kept pace with his or her chronological age, for how long will the custodial parent be required to produce the person for visitation? Until the son or daughter reaches age 30? Age 50? Age 70? If the parent is not responsible for enforcing visitation against such a person, can an order for visitation be enforced by contempt proceedings brought directly against an adult, handicapped son or daughter? If, for contempt purposes, the son or daughter must be deemed a child because of his or her reduced mental age, will it be accurate or fair to find such a person in wilful contempt? If, on the other hand, the son or daughter is judged according to his or her chronological age, doesn't it follow that he or she should have the privilege of deciding without court prompting whether to visit the parent?

The order compelling Kimberly Schmidt to visit her father against her will is reversed and set aside.

MONTEMURO, J., files a concurring opinion.

MONTEMURO, Judge,

concurring:

I Concur. Although I agree with the reasoning and conclusion of Judge Wieand’s opinion, I feel compelled to make these additional comments.

An adult such as Kimberly, with a mental age of four or eight, depending’ on the test, is still not a child. The mentally disabled adult is not placed with third grade children even though the mental age is that of an eight year old. The child whose mental and chronological age coincide, is expected to move from a given mental and social age to one significantly higher. This is accomplished by integrating the experiences in the family, the school, and the community, so that eventually the non-mentally disabled child can achieve full self sufficiency.

The mentally retarded person, on the other hand, changes but in a most limited measure. At twenty-five, the person with a mental age of eight has needs that are different from those of an eight year old child. The mentally retarded twenty-five year old needs stability, orderly living, and opportunities to feel useful. The. needs are to affirm those objectives that are desirable for other adults. Clearly, the mentally retarded individual has the same desires as other adults for social approval, respect, and freedom in such matters as style of living, personal preferences, freedom of association, and choices of work. I submit that this freedom should only be curtailed where the decisions of the retarded adult are hazardous to himself or others. Where there is imminent danger, the role of society is a protective one; it does not intrude into other aspects of the person’s life outside this narrow range. Society’s role should never be a restrictive one that countermands or contradicts the wishes of the mentally retarded adult.

       The preparation of an opinion for the Court in this case was reassigned to the writer on February 24, 1983.

      . Application of the Peabody Picture Vocabulary Test suggested that Kimberly has a mental age of eight years, five months. The Slosson Intelligence Test demonstrated that her mental age is four years, eight months.


author: JOHNSON, Judge:

text:
    459 A.2d 424
    Miriam KOZAK, Appellant, v. CITY OF PHILADELPHIA and Tony DePaul & Sons.
    Superior Court of Pennsylvania.
    Submitted June 4, 1982.
    Filed April 29, 1983.

      Alan B. Epstein, Philadelphia, for appellant.
    Niki Teresa Ingram, Assistant City Solicitor, Philadelphia, for City of Philadelphia, appellee.
    H. Allen Litt, Philadelphia, for DePaul & Sons, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the order of January 19, 1981 dismissing, with prejudice, Appellant’s complaint. Appellant was injured on April 13, 1978 when her vehicle came into contact with a raised manhole cover on a Philadelphia street. Pursuant to a praecipe for a writ of summons filed July 18, 1980, Appellant filed a complaint in trespass against both Appellees. Appellee Tony DePaul & Sons (DePaul) filed an answer and new matter alleging, inter alia, that the complaint was barred by the two year statute of limitations. Appellant’s reply to DePaul’s new matter admitted that the cause of action occurred more than two years prior to the date suit was instituted.

The City of Philadelphia (City) also filed an answer and new matter, but did not raise the defense of statute of limitations. Appellant filed a reply to the City’s new matter.

On December 12, 1980, DePaul filed a motion for judgment on the pleadings and accompanying rule and order. Appellant, upon receiving notice of the motion, informed DePaul that she would not contest the motion if DePaul limited relief to dismissal of the complaint against DePaul only. In response, DePaul apparently sent a cover letter, dated January 8, 1981, along with an amended order and rule to the clerk of motion court in Philadelphia. The amended order and rule requested dismissal of Appellant’s complaint as against DePaul only. On January 19, 1981, the trial court signed the original order dismissing the complaint with prejudice as to all parties. Appellant and DePaul subsequently filed a stipulation on January 27, 1981 requesting the order of January 19 be stricken and substituted, so as to permit dismissal as to DePaul only. Appellant then filed her notice of appeal on February 13, 1981.

Appellant argues on appeal that because the trial court failed to exercise its discretion, the dismissal of Appellant’s complaint must be reversed. Appellant theorizes that because the trial court did. not have the amended rule and order before it when its decision was made, due to an administrative error, and because the City failed to raise the defense of the statute of limitations, the order of January 19 must be reversed and remanded.

Appellant refers us to Lewis v. Clark, 227 Pa.Super. 547, 323 A.2d 298 (1974). In Lewis, plaintiff filed a complaint in trespass and defendant raised, by way of new matter in his answer, the statute of limitations as a bar to the action. After giving advance notice to plaintiff, defendant filed a motion for judgment on the pleadings, but before the motion was filed, plaintiff filed an answer to the motion claiming defendant was estopped from asserting the statute of limitations as a bar to the action. The motions judge entered judgment in favor of the defendant, without having before him plaintiff’s answer to the motion. Plaintiff contended that his answer was omitted from the record because of administrative error by the court.

This court stated:

Ordinarily “a lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the [opposing] party.” Templeton’s Appeal, 399 Pa. 10, 16, 159 A.2d 725, 729 (1960). Nonetheless here we have no alternative but to reverse, for no discretion was exercised at all. In reversing we do not hold that the motion judge must treat appellant’s answer to appellee’s motion for judgment on the pleadings as though it were a timely reply to appellee’s new matter. How strictly procedural rules must be followed is a matter that should be left at least in most cases to the discretion of the lower courts, for they are usually in a better position than we to determine the strictness required to assure “the just, speedy and inexpensive determination of every action or proceeding.” Pa.R.Civ.P. 126. We merely afford the motion judge an opportunity to exercise his discretion in a case in which he was not previously aware that the question-before him was contested and that an exercise of his discretion was therefore in order.

Lewis v. Clark, 227 Pa.Super. at 551, 323 A.2d at 300.

In the instant case, the trial court stated in its opinion that an examination of the record indicated that it was devoid of the filing of any request to amend the pleadings which were before the court on January 19. The record, as transmitted to this court, indicates that copies of the January 8, 1981 letter and amended order and rule were filed by Appellant with her Statement of Matters Complained Of on March 10, 1981. It therefore appears that the trial court was correct, in that an error occurred in the transmission of the documents between DePaul’s counsel and the motions judge, whereby the trial court did not have the amended documents before it at the time it issued its order.

Therefore, as the trial court was without the amended order and rule which both Appellant and DePaul intended to be presented, the trial court was unable to exercise its discretion in granting the order dismissing Appellant’s complaint as to DePaul only.

We note that Appellant has admitted in her reply to DePaul’s statute of limitations argument that suit was initiated more than two years after the cause of action occurred. However, the City did not raise this defense prior to the January 19 order.

It is well-settled that the personal injury statute of limitations is a waivable defense, and may be waived if not raised in new matter. See Stoltzfus v. Haus, 234 Pa.Super. 46, 334 A.2d 738 (1975). Therefore, although the trial court may enter final judgment on the basis of the pleadings for or against any party regardless of which party moved for judgment, Pa.R.C.P. 1034; Boron v. Smith, 380 Pa. 98, 110 A.2d 169 (1955), the pleadings do not appear to justify dismissal of the complaint in favor of the City when the City has failed to raise a waivable statute of limitations.

Therefore, for this reason and the fact that the trial court was unable to exercise its discretion because of an error in the transmission of documents, the order dated January 19, 1981 is vacated and the case remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . The cover letter requested the motion clerk to forward the amended order and rule to the motions judge. We also note that the cover letter fails to indicate that a copy was served upon the City, as per Pa.R.C.P. 233(a) and (c).

      . The record indicates that subsequent to this appeal being perfected the City filed a pleading entitled Supplemental New Matter, raising the statute of limitations. A copy of a court order, located in Appellant’s reproduced record, indicates that this pleading was stricken pursuant to preliminary objections filed by Appellant. That court order was a nullity, as the trial court lost jurisdiction over the subject matter of the case once the appeal had been taken. Pa.R.A.P. 1701(a); Bartle v. Bartle, 304 Pa.Super. 348, 450 A.2d 715 (1982).

      . It may well be that, upon remand and the proper filing of amended pleadings by the City, the trial court will dismiss the action as to all parties.


author: HOFFMAN, Judge:

text:
    459 A.2d 426
    Despina KAMPERIS, Individually and as parent and natural guardian to her minor children, George, Basilios and Jordanus, and Dimitrios Kantyltzoglou, Administrator of the Estate of Christos Kamperis v. NATIONWIDE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 1, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Granted Sept. 8, 1983.

      Thomas H. Goldsmith, Philadelphia, for appellant.
    William A. Loftus, Philadelphia, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in finding appellees’ action for post-mortem work loss benefits under the Pennsylvania No-fault Motor Vehicle Insuranee Act (No-fault) timely filed. Because the statute of limitations bars the present action, we reverse the order of the lower court and deny appellees benefits.

On June 28, 1978, Christos Kamperis (decedent) was killed when he struck his head against an overpass on the Pennsylvania Turnpike, while riding atop his employer’s truck. Appellees, decedent’s wife, children, and estate sought and recovered workmen’s compensation benefits. On July 6 and August 16, 1979, appellees requested funeral benefits from appellant, the decedent’s No-fault carrier. Although appellant refused appellees’ request, decedent’s employer’s No-fault carrier paid appellees $1,000 in funeral benefits on February 6, 1980. Appellees then sought work loss and survivor’s loss benefits from appellant, but were refused on June 17, 1980. Appellees brought this action for funeral, survivor’s loss and work loss benefits on July 10, 1980. The lower court granted appellees $15,000 work loss benefits plus the statutorily required interest at 18% per year calculated from August 6, 1979. This appeal followed.

Appellant contends that appellees’ action for postmortem work loss benefits is barred by the statute of limitations. Our Supreme Court has recently analyzed the various statutes of limitations applicable to actions for No-fault benefits in Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982), concluding that “the legislature has provided comprehensive statutes of limitations in Sections 106(c)(1) and 106(c)(2) [of the No-fault Act], covering all no-fault benefits by drafting these sections on analogy to the statutes of limitations on traditional tort actions for personal injuries under our law, including survival actions and actions for wrongful death.” 500 Pa. at 168, 455 A.2d at 102. Section 106(c)(1) provides:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than surviv- or’s benefits, by either the same or another claimant, may be commenced not later than two years after the last payment of benefits.

This section covers actions for loss to the insured himself “in a manner analogous to the survival acts.” Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., supra, 500 Pa. at 171, 455 A.2d at 104. Actions for benefits designed to compensate certain individuals for the damages suffered as a result of the insured’s death in a manner analogous to tort damages available under the wrongful death acts are controlled by section 106(c)(2). Because post-mortem work loss benefits are “simply continuing work loss benefits, designed to compensate the decedent’s estate for the loss the insured himself suffered by having his earning power cut off by death,” Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., supra, 500 Pa. at 171, 455 A.2d at 103, and thus analogous to damages recoverable in survival actions, the statute of limitations of section 106(c)(1) applies. Id., 500 Pa. 171, 455 A.2d at 104. Appellees were not paid no-fault benefits “for loss arising otherwise than from death,” 40 P.S. 106(c)(1), and therefore were required to bring their action for work loss benefits within two years after the loss. Although the decedent’s accident and death occurred on June 28, 1978, this action was not brought until July 10, 1980, after the two years had run. Thus appellees’ action for post-mortem work loss benefits was barred by the statute of limitations and, accordingly, we must reverse the order of the lower court and deny benefits.

Reversed.

      . Post-mortem work loss is that work loss occurring after the insured’s death. See Sachritz v. Pennsylvania National Mutual Casualty

        Insurance Co., 293 Pa.Superior Ct. 483, 484 n. 1, 439 A.2d 678, 679 n. 1 (1981), aff’d 500 Pa. 167, 455 A.2d 101 (1982).

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101-701,- 40 P.S. §§ 1009.101-1009.701.

      . Appellees have not appealed from the lower court's refusing funeral and survivor’s loss benefits, and thus we limit our discussion to its granting work loss benefits.

      . Appellees argue that the payment of funeral expenses by the decedent’s employer’s no-fault carrier extended the statute of limitations on actions for further benefits brought against any other insurance companies. Funeral benefits "are designed to compensate the insured’s survivors for the loss they suffer by his death,” and are survivor’s benefits for purposes of Section 106(c)(2). Sachritz v.

        Pennsylvania National Mutual Casualty Insurance Co., supra, 500 Pa. at 174, 455 A.2d at 105. As such, they are benefits arising from the death of the insured and are specifically excluded from affecting the statute of limitations for postmortem work loss benefits in Section 106(c)(1). Thus, because the payment of funeral benefits has no affect upon the statute of limitations for post-mortem work loss benefits, regardless of what insurance carriers pay them, we need not address the effect of one insurance company’s payment of benefits upon the obligations of another.

      . Because of our disposition of this matter, we need not address appellant's remaining contentions regarding the lower court’s calculation of the benefits.


author: PER CURIAM:

text:
    459 A.2d 429
    Anne E. HALL v. GRANITE RUN MALL, Murray H. Goodman, Goodman and Company, and Albert Mestichelli, and Sears, Roebuck & Company. Appeal of GRANITE RUN MALL, Harry H. Goodman, and Goodman and Company.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1983.
    Filed April 29, 1983.

      James F. Proud, Media, for appellants.
    Arnold Justin Bennett, St. Davids, for appellees.
    Before BROSKY, CIRILLO and MONTEMURO, JJ.
   PER CURIAM:

The contentions raised by the appellants on this appeal have been fully discussed and decided in Hall v. The Goodman Company, Et al. and Hall v. Alfred Mestichelli and Granite Run Mall, Et al., 310 Pa.Super. 465, 456 A.2d 1029 (consolidated appeals 1983). For the reasons enunciated in Part II A and B therein, we reverse the trial court’s order insofar as it sustained Sears’ demurrer to Granite’s claim for indemnity and we affirm that part of the trial court’s order dismissing Sears as a party in the action against Goodman and Company and Murray H. Goodman.


author: MONTEMURO, Judge:

text:
    459 A.2d 757
    Glenn OLBUM and Carolyn T. Olbum, his wife, Appellants, v. OLD HOME MANOR, INC., a corporation.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed March 25, 1983.
    Reargument Denied June 3, 1983.

      Lester E. Zittrain, Pittsburgh, for appellants.
    Gregg M. Rosen, Pittsburgh, for appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County entering judgment in favor of the defendant/ appellee, Old Home Manor, Inc. The judgment so entered by the court below was on a Case Stated.

PROCEDURAL HISTORY

An analysis of the procedural history may be helpful. Appellants herein, Glenn and Carolyn Olbum, filed a complaint in assumpsit seeking sums in the form of minimum royalties allegedly due them from appellee, under the terms of a written agreement. Subsequent to the close of the pleadings, appellants filed a Motion for Summary Judgment. The motion was submitted to the court below on briefs and affidavits of the parties. Following oral argument the matter was taken under advisement by the trial judge, the Honorable Richard G. Zeleznik.

Thereafter the court entered an order dismissing the Motion for Summary Judgment and accompanied the order with a nine page opinion.

Several months later the parties submitted the controversy to the Honorable Joseph A. Del Sole as a Case Stated, the same being a stipulation of counsel designed to be considered by the court in conjunction with the pleadings, exhibits, affidavits, interrogatories and answers thereto, and requests for admissions and answers thereto. The facts having been agreed to by the stipulation, the parties waived their right to an evidentiary hearing.

Several months thereafter the trial judge entered judgment in favor of the appellee herein, Old Home Manor, Inc., and from that judgment the appellants, Glen and Carolyn T. Olbum, have taken this appeal.

The Honorable Joseph A. Del Sole, filed an opinion wherein he stated that following a review of the entire record and the stipulation, he was adopting the opinion of Judge Zeleznik as the applicable law to the facts of the case.

THE CASE STATED FACTS

1. Glenn Olbum and Carolyn T. Olbum, his wife, the plaintiffs in the within action are 44 years of age and 42 years of age, respectively, have been married to each other for 23 years and during all of their married life have resided in the City of Pittsburgh where Mr. Olbum has been engaged as a principal in the meat trading business for over 20 years and Mrs. Olbum has primarily been occupied as a housewife and mother to the three Olbum children.

2. Between the years 1965 and 1968, the plaintiffs purchased 139 acres of wooded land in Ligonier Township, Westmoreland County, Pennsylvania, for the purpose of having a weekend and vacation retreat for themselves and their children and in connection therewith they had constructed for them on their property an artificial pond in 1967 and a home, garage/workshop building and guest cabin between the years 1967 and 1971.

3. The defendant, Old Home Manor, Inc., is a Texas corporation engaged in the business of coal mining within the State of Pennsylvania.

4. The defendant has actively mined coal, by both the deep and surface mining method, since 1971.

5. . All of the defendant’s coal mining operations, activities and facilities have been and are carried on, maintained and located in Pennsylvania and, in particular, Western Pennsylvania.

6. The defendant obtained permits to strip mine several hundred acres of land in Western Pennsylvania between January 25, 1971 and September 3, 1974 and the defendant did conduct strip mining operations upon said properties.

7. There was a very favorable coal market in 1974.

8. On or- about September 27, 1974, plaintiffs and the defendant entered into a certain written agreement and addendum thereto (hereinafter called the “Agreement”), a true and correct copy of which is attached to the plaintiffs’ complaint in assumpsit as Exhibit “A”.

9. The subject matter of the Agreement is the coal on the plaintiffs’ property in Ligonier Township, Westmoreland County, Pennsylvania, the strip mining thereof by the defendant, and the rights, duties and obligations of the parties in connection therewith.

10. On Page 2 of the Agreement, it is provided that the defendant shall work and mine the coal on the plaintiffs’ property and Paragraph NINTH of the Agreement provides that the defendant shall pay the plaintiffs a minimum royalty of $3,000.00 per month commencing on October 1, 1974 and continuing monthly thereafter for a period of four years with specific provision to credit payment against future production royalties.

11. The term stated in the Agreement was for a period of four years commencing October 1, 1974 and terminating September 30, 1978.

12. The Agreement contained no “savings” clause.

13. Prior to commencing mining operations on the plaintiffs’ land, the defendant obtained strip mining permits for 345.2 acres in Westmoreland County and, in addition, by agreement with Bridge Coal Company, Inc. dated July 20, 1973, acquired the coal mining rights pertaining to the land of Alice M. Barron of Ligonier Township, Westmoreland County, Pennsylvania and did engage in strip mining operations on the Barron property prior to September 27, 1974.

14. The land of Alice M. Barron lies adjacent to the plaintiffs’ land and the two properties share a common boundary of approximately 3,600 feet.

15. The defendant mined the plaintiffs’ property through November of 1975 and then ceased its strip mining operations on the plaintiffs’ land because the remaining coal as of December 1, 1975, was no longer mineable and merchantable and remains unmineable and unmerchantable to the present time.

16. The defendant paid to the plaintiffs minimum royalties of $42,000.00 in the form of fourteen monthly payments of $3,000.00 each for the months of October, November and December of 1974 and January through November of 1975.

17. Following the defendant’s last monthly minimum royalty payment to the plaintiffs in November of 1975, it made no further monthly minimum payments as set forth in Paragraph 10 above.

18. The plaintiffs have never been in the coal or coal mining business, have no special knowledge pertaining thereto, and prior to the Agreement executed in September of 1974, they had no knowledge as to the quality or quantity of coal present upon or beneath their Westmoreland County property.

19. Since the plaintiffs have owned their Westmoreland County property there have been no mining operations conducted thereon except those mining operations conducted by the defendant which commenced in October of 1974.

20. The plaintiffs were aware that there has been some mining activity on their property many years before they bought it but they knew nothing and still know nothing of any particulars or details relative to such prior mining activity.

21. On or about September 27, 1974, the defendant knew or had reason to know that mineable and merchantable coal did exist on the plaintiffs’ land and after execution of the Agreement the same was mined by the defendant through November of 1975.

22. At no time, either prior to the execution of the Agreement or subsequent thereto, was there any misrepresentation by the plaintiffs or their attorney as to the quantity or quality of the coal on the plaintiffs’ land.

23. Assuming that the defendant owes to the plaintiffs the remaining 34 minimum monthly royalty payments commencing December 1, 1975 through and including September 1, 1978, the total amount due would be $102,000.00 and interest thereon at six (6%) percent per annum would amount to $20,655.00 as of September 1, 1980 and said interest would continue to accrue at the rate of $510.00 per month.

ISSUES BEFORE THE COURT

Whether, under the facts of this case, the defendant’s contractual obligation to pay minimum royalties of $3,000.00 per month to the plaintiffs terminated when the mineable and merchantable coal on the plaintiffs’ property became exhausted.

OTHER MATTERS

1. The court may avail itself and use all the pleadings, exhibits, interrogatories and answers thereto, requests for admissions and answers thereto and affidavits, filed in the instant action in making its determination; however, in the event of any conflicts or inconsistency between said pleadings/affidavits and etc. and this Case Stated, the facts set forth in this Case Stated, shall prevail.

2. If the court is of the opinion that the defendant’s obligation to pay the minimum royalties as provided in the Agreement is not excused because of the subsequent exhaustion of mineable and merchantable coal, then judgment shall be entered in the sum of $122,655.00 in favor of the plaintiffs; but if the court is of the opinion that the defendant is excused from its obligation to continue to pay the minimum royalties because of the exhaustion of the mineable and merchantable coal, then judgment shall be entered in favor of the defendant.

3. The parties expressly reserve the right to appeal from the judgment of the court.

This then was the Case Stated. For the following reasons, the decision of the court below is affirmed.

THE LAW

The appellant-landowners suggest that interpretation of the contract should be under the “Pennsylvania Doctrine” which was an early solution of our courts calling for an automatic decision that “a lease of coal in place with the right to mine and remove all of it for a stipulated royalty vests in the lessee a fee” interest in the coal. (See Brief of Appellant, p. 15).

We reject the use of the “Pennsylvania Doctrine” as unjustified. The assumption that a lease of land for coal mining operations amounts to an automatic “sale in place” of the coal is long out-dated:

Not every agreement for the mining of coal, however, amounts to a sale of the coal in place. “A contract regarding coal in place may be a sale absolute, a conditional sale, a lease in the ordinary expression of that term, or a mere license to make and remove the minerals.” Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856, 861 (1959) and cases cited therein.

The Hummel court stressed that the “unrestricted dominion” contractually given to the miners in that case was the factual basis for a holding that the contract represented a sale of the coal in place.

The most cursory reading of the contract in the instant matter shows that the appellant-landowners executed a document carefully tailored to protect their land, their interests in the land and in the coal payments. In particular, we note that the agreement in question, unlike the agreement in Hummel was limited to a term of four (4) years. In short, without lengthy discussion of the matter, we conclude that the instant case should be decided on the general law of contracts, and we approach the matter from that posture.

The appellants point to the language of the Ninth paragraph of the agreement which provides that a minimum royalty payment is due:

... on the first day of each and every month thereafter during the primary term hereof, irrespective as to whether or not the quantities of coal strip mined and removed in any particular month during the primary term or any extension shall produce such amounts of royalty----

Appellants also argue strongly that this clause is clear and unequivocal and that this court must, perforce, adhere to the terms as set forth therein. In support of this position, they urge the language of the recent case of Steuart v. McChesney, 498 Pa. 45, 48-49, 444 A.2d 659, 661 (1982):

... It is well established that the intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words are clear and unambiguous the intent is to be discovered only from the express language of the agreement ... As this Court stated in East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. [229] at 230-231, 205 A.2d [865] at 866, “[w]hen a written contract is clear and unequivocal, its meaning must be determined by its contents alone. It speaks for itself and a meaning cannot be given to it other than that expressed. Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence.” Hence, where language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended. (Citations omitted)

The fallacy in this argument, however, is that Steuart may be distinguished rather easily from the problem in the instant matter. There, the court focused entirely on the problem of ambiguity of word meaning, stating that “the flexibility or multiplicity in the meaning of words is the principal source of difficulty” in interpreting a document. The Court then reviewed the clause in dispute and stated unequivocally that it directly addressed the matter to be decided:

Indeed, a more clear and unambiguous expression of the Right to First Refusal’s exercise price would be onerous to conceive. Id., 498 Pa. at 52, 444 A.2d at 663

It found neither a patent nor a latent ambiguity in the contract and refused to “re-write” the clause in question for the parties.

In contrast, the instant agreement presents a situation in which no clause exists to cover the precise contingency which occurred, and the appellants argue that by one sentence in Paragraph Ninth, supra, the parties have addressed the issue in another context, so that appellee has “assumed the risk” that the transaction would prove impossible of performance. Therefore they argue, appellee must pay appellants the $3,000 per month for the entire period of the agreement despite the fact that the coal became unmineable and unmerchantable after the first fourteen months of the time period.

The court below received the case on a Case Stated basis, and the parties specifically agreed that the court was to “avail itself of all the pleadings, exhibits, interrogatories and answers thereto, requests for admissions and answers thereto ...” The court below also quite properly approached the questions presented by the agreement under contract law, and found, again correctly, that this contract was one that depended upon the “continued existence of a particular thing.” See Opinion of Honorable Joseph A. Del Sole, dated December 5, 1980. The trial court also apparently rejected appellants’ argument based solely on Paragraph Ninth (in part set forth supra), that the appellee had assumed the risk of the destruction or deterioration of the supply of coal. Again, we agree.

Restatement of Contracts 2nd sets forth the following wording at § 263:

Destruction, Deterioration or Failure to Come into Existence of Thing Necessary for Performance

If the existence of a specific thing is necessary for the performance of a duty, its failure to come into existence, destruction, or such deterioration as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made.

The Comments following state as the “Rationale” the following:

a. Rationale. This Section, like the preceding one, states a common specific instance for the application of the rule stated in § 261. If as both parties understand, the existence of a specific thing is necessary for the performance of a duty it is “a basic assumption on which the contract was made” that that thing will come into existence if it does not already exist and will remain in existence until the time of performance. Therefore, if its failure to come into existence or its destruction or deterioration makes performance impracticable, the obligor’s duty to render that performance is discharged, subject to the qualifications stated in § 261. Each party bears some of the risk that the transaction will not be carried out for such a reason. Id. at 328. (Emphasis added)

We think there can be no doubt that both parties thoroughly understood that the contract in question was based upon the existence of two specific veins of coal under the appellants’ vacation property. The contract specifically names the veins and attaches a geological survey map. The contract is most thorough in its discussions of all the precautions to be taken by the mining company in its use of the land. Appellants needed no special expertise to be thoroughly cognizant of the underlying assumption upon which they entered this contract.

The provisions of Paragraph Ninth cannot be separated-out from each other or the rest of the contract. Interpretation of an integrated contract is “not limited to cases where it is determined that the language used is ambiguous” ...:

Any determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties. Restatement of Contracts 2nd, comment following § 212 at p. 126.

Paragraph Ninth taken as a whole, decidedly supports the appellee’s contention that the provision is one designed to force mining operators to good faith performance and prompt payment and that traditional interpretation of the language has been to that effect. The language quoted supra as to payment of $3,000.00 per month “irrespective as to whether or not the quantities of coal ... removed in any particular month ... shall produce such amounts of royalty” is immediately followed by language treating the minimum royalties as “credits” to be reconciled against coal removed in the future. Such provisions have long been held to be:

... intended as incentives for compliance with the duty of adequate performance and of prompt payment ...

Boyer v. Fulmer, 176 Pa. 282, 35 A. 235 (1896). The Boyer court then found that the obligation to pay a stated sum but with right to credit in tonnage on that sum in the future did not make the lessee liable if the ore was exhausted:

... this obligation proceeded upon the assumption that the ore was there, and continued to be there ... if the ore became exhausted ... the lessee was not bound to pay for it. He could not do an impossible thing and therefore could not be held liable for not doing it____ Id, 176 Pa. at 289, 35 A. at 236-237.

Again, without extensive analysis of all case law and mining law as advanced by the parties, we find that Paragraph Ninth does not set forth definite language that makes appellee responsible for payment when the contract has become impracticable.

The Restatement of Contracts 2d at § 261 parallels the above language of the Boyer court:

§ 261. Discharge by Supervening Impracticability

Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrance of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary. (Emphasis added)

In the absence of special language or circumstances indicating that a party has assumed the risk of guaranteed performance despite the destruction or the deterioration of the thing necessary for performance, performance is discharged. As seen above the comment to § 263 makes it clear that some of the risk of such failure of the transaction is borne by each party, where the risk has not been specifically assigned. The opinion of the court below assumed that no specific assignment of the risk had been made and therefore left the parties essentially as it found them, each bearing some of the burden that the two veins of coal would later prove to be unmineable and unmerchantable.

We have already noted that the instant appeal is from the Order of Judge Del Sole who entered a judgment in favor of the defendant/appellee on a Case Stated. Therefore, appellants’ argument that Judge Zeleznik, in dismissing appellants’ motion for Summary Judgment, improperly assumed certain facts “which were not then and are not now supported by the record” is misplaced. (Brief of appellants at p. 18) However, even assuming that appellants’ argument has relevance, we must reject it for the following reasons.

Case law has established the approach to be taken in these circumstances by both the trial and the appellate courts. Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977) sets forth the applicable principles as follows:

One who moves for a summary judgment has the burden of showing that there is no genuine issue as to any material fact. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). To do this, the moving party must submit affidavits or other evidence in support of the motion. Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974). The court hearing the motion should accept as true all well-pleaded facts and any admissions on file, but should resolve any doubts as to the existence of a genuine issue of a material fact against the moving party. Schacter v. Albert, supra. On appeal, this court must examine the record in the light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Co., 222 Pa.Super. 261, 295 A.2d 148 (1972). Id. 252 Pa.Super. at 427, 381 A.2d at 992.

The court in Shawville Coal Co. v. Menard, 280 Pa.Super. 610, 612, 421 A.2d 1099, 1100 (1980) also set forth the following test in passing upon a motion for summary judgment:

In Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa.Super. 341, 350, 361 A.2d 676, 680 (1976), we stated:

[I]n passing upon a motion for summary judgment, “it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as a material fact must be resolved against the party moving for summary judgment. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968).” Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 573 (1971) (Emphasis in original.)

Interestingly, appellants were the party that had the burden of showing there was no issue of material fact to be decided in the matter to obtain summary judgment. The trial judge, upon review of the record then available to him, analyzed the case properly under the law applicable to summary judgment. The appellants now protest that in his analysis the trial judge relied on “facts” not supported in the record; specifically, appellants’ complain of this language:

[B]oth parties proceeded under the assumption that the plaintiffs’ land was underlaid with sufficient mineable and merchantable coal to support defendant’s strip mining operations, conducted in a diligent, scientific and workmanlike manner throughout the duration of the lease. This is only common sense. Otherwise, we would be compelled to assume either that the plaintiff had knowledge of a lesser quantity of coal and withheld that knowledge, or that the defendant was foolish enough to gamble on the existence of coal. (Opinion, p. 3 R. Brief of Appellant p. 18).

Appellants also flatly aver that appellee’s “state of mind is immaterial” and that appellants themselves “did not proceed upon any such assumption.” (Brief of appellants p. 18)

Yet the trial judge squarely based his decision on his acceptance of “all well-pleaded facts” in the light “most favorable to the non-moving party as required,” giving the nonmoving party “the benefit of all reasonable inferences” drawn from those facts. Since the contract, as we have seen supra, does not discuss in its wording what the result shall be if the veins of coal were to become unmineable, and since there is an integration clause that states that no other understandings outside the written agreement may be deemed to exist, and since the events leading up to the execution of the agreement are on the record, we see no method the lower court could have employed, other than the one it used. “Reasonable inferences” drawn from “well-pleaded facts” reviewed in the light “most favorable to the non-moving party” provided the only basis available to him for reaching a conclusion based on the facts and the contract itself. He dismissed the appellants’ motion for summary judgment.

The parties then presented the case on a Case Stated basis, and enlarged the record with a document containing twenty-three agreed paragraphs of information, {supra pp. 3-8) and also agreed that the record as a whole was to be relevant in the determination of the court unless some portion of the record was in conflict with the averments of the Case Stated.

From this record the second trial court also determined that the underlying assumption upon which the contract was based, was that coal in sufficient quantity and quality to make the contract profitable existed in the leased property. That was not an unsupported assumption. The appellee offered the affidavit of an engineer with personal knowledge of the negotiations and the duty of evaluating all reports as to the geologic value of the lands considered for leasing. (R.R. Affidavit in Opposition to Plaintiffs Motion for Summary Judgment, 32a-34a).

The affidavit avers that appellee had profitably mined the property adjoining appellants’ land, and that the topography of the area supported the geologic inference that the two seams of coal found on the neighboring land would prove mineable and merchantable on appellants’ land as well; that the engineer personally partook in the negotiating process with appellants, and that appellants were represented in those negotiations by an attorney.

The facts of the affidavit do not conflict with those of the Case Stated, but they do present an alternative to the interpretations that appellants wished to see prevail. The opinion of Judge Del Sole is brief, but he, like Judge Zeleznik, was forced to interpret the averments of the parties. We assume that upon review he concluded that the focus of this case did not lie in appellants’ lack of knowledge of the mining industry, but concluded that after negotiation and by time of execution of the agreement all parties were aware of the topographical probability of mine-able and merchantable coal on appellants’ property, and that all parties understood that this was the reason that a lease of coal rights was desirable. Clearly the trial judges were not without discretion to come to such a conclusion.

The “facts,” as that term is ordinarily construed, are agreed. What the lower court faced was a difference of interpretation of a contract where both parties are attempting to impose their own version of the “intent” supposedly imbuing the contract, which is in fact silent on the important point. It is unlikely that either party can produce “facts” beyond those alreády submitted to the court to “prove” their interpretations. Remanding the matter would therefore be futile; the trial judges have already given the matter careful consideration.

Therefore, as there is evidence below to support the judgment of the trial judge, and as he was clearly within his discretion in deciding as he did, we affirm.

Order affirmed.

      . In Hummel, the term of the agreement was "perpetual" rather than for a term of years; there was no minimum royalty provision enforcing prompt performance: payment was only by tonnage, and only when actually sold and not when mined.

        . Appellants have received royalty payments in the fourteen months that the appellee was actually mining the property plus an additional advance payment made at time of execution, for a total of $47,000. At the agreed rate of $2.00 per ton, the contract price, appellants would have been entitled to $17,163.32. Opinion of Lower Court, p. 4.

      . The instant situation presents a genuine problem of impracticability: it presents a case of "the thing cannot be done” as opposed to one of "I cannot do it.” The fact that performance is merely beyond a party’s capacity to render would not be sufficient to discharge his obligation. See Id at p. 318.