author: POPOVICH, Judge:

text:
    647 A.2d 577
    Debbie SMITH, Appellant, v. EXXON CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued June 21, 1994.
    Filed Sept. 9, 1994.

      John A. Adamczyk, Pittsburgh, for appellant.
    John M. Phelan, Philadelphia, for appellee.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This is an appeal from the order of September 21, 1993, entered in the Court of Common Pleas of Franklin County sustaining the preliminary objections of appellee (“Exxon”) and dismissing appellant’s complaint. We are presented with the question of whether the lower court erred in determining that, as a matter of law, Exxon owed no duty to appellant. Upon review, we affirm.

The record reveals that on August 1, 1989, appellant was assaulted and raped by Gerald Daniels while working the nightshift at the Blue Chip Mini-Mart in Greencastle, Pennsylvania. Appellant filed two separate actions. First, appellant brought action against Gerald Daniels, Blue Chip Mini-Mart, Blue Chip Fuels, Oliver Oil Company, Inc. (“Oliver Oil”), and Richard Sterner. Oliver Oil was the parent company of Blue-Chip Mini-Mart and Blue Chip Fuels. Richard Sterner owned and operated the shopping center on which the mini-mart was located. Second, appellant filed suit against Exxon. Exxon had entered into a distributor agreement (“the Distributor Agreement”) with Oliver Oil in 1988 to supply gasoline to the mini-mart. Appellant alleged that Exxon was negligent in failing to implement and maintain security measures against criminal activities on the mini-mart’s premises. On July 13, 1993, Exxon filed preliminary objections in the nature of a demurrer, averring that it owed no legal duty to appellant. After hearing oral arguments on September 2, 1993, the lower court entered an order dated September 21, 1993, which sustained Exxon’s preliminary objections and dismissed appellant’s complaint against it. This appeal followed.

Herein, appellant contends that she pleaded sufficient facts in her complaint to establish that Exxon owed a legal duty to her and that the lower court thus erred in sustaining Exxon’s preliminary objections in the nature of a demurrer. Appellant argues that Exxon exercised control over Oliver Oil’s operation of the mini-mart and owed her a duty to provide security against criminal activity on the premises.

Our scope of review from an order which sustains preliminary objections in the nature of a demurrer is plenary. Solomon v. Gibson, 419 Pa.Super. 284, 286-88, 615 A.2d 367, 368 (1992), citing, Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). “[TJhis Court is concerned only with determining the legal sufficiency of the appellant’s complaint.” Schreiber v. Olan Mills, 426 Pa.Super. 537, 627 A.2d 806 (1993), citing, Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443, 445 (1969). “We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven.” Schreiber, 426 Pa.Super. at 537, 627 A.2d at 806, citing, D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973). A granting of a demurrer is warranted if the lower court correctly determines that, “taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint.” Cavaliere v. Duff’s Business Institute, 413 Pa.Super. 357, 362, 605 A.2d 397, 400 (1992), citing, Pawlowski v. Smorto, 403 Pa.Super. 71, 588 A.2d 36 (1990); Doe v. Dyer-Goode, 389 Pa.Super. 151, 566 A.2d 889 (1989), appeal denied, 527 Pa. 587, 588 A.2d 509 (1990).

Against the backdrop of the foregoing authorities, we proceed in our examination of appellant’s complaint. Appellant provides the following allegations in the complaint to buttress her contention that Exxon exerted control over Oliver Oil and owed her a duty to provide security on the mini-mart’s premises:

11. The Defendant, Oliver Oil Company, Inc., which owns the Defendant, Blue Chip Mini-Mart, located on Molly Pitcher Highway has an exclusive agreement with the Defendant, Exxon Company U.S.A., to sell only Exxon gasoline products. The agreement also requires Oliver Oil to submit a plan to Exxon which concerns sales, operations and safety aspects of the facility including, selection of the site, development of appropriate facilities, and effective operating practices. Exxon had the sole discretion to accept or reject said plan. Exxon further required that Oliver Oil plan specific facility designs, which Exxon could except [sic] or reject----

12. The Defendant, Exxon, requires Oliver Oil to keep the Blue Chip Mini-Mart open 24 hours a day in order to meet contractually specific quotas.

13. That Defendant, Exxon, required Defendant, Oliver Oil, to develop a plan of effective operating practices which Exxon had discretion to accept or reject.

14. That Defendant, Exxon, at all relevant times, had control over Oliver Oil and Blue Chip Mini-Marts and their employees and agents, as well as the premises in question, by virtue of the Distribution Agreement and plan of operation, which they required from Defendant, Oliver Oil.

* H* * *

16. That Defendant, Exxon, required Defendant, Oliver Oil, to develop a plan to optimize effective and efficient distribution and representation of Exxon motor fuel, which Exxon had discretion to accept or reject.

17. That Defendant, Exxon’s agreement with Defendant, Oliver Oil, necessarily involved and provided or should have involved or provided for implementing and maintaining plans to carry out the safeguarding of patrons, workers and employees of Defendants, including but not limited to, the Plaintiff, Debbie Smith.

18. That Exxon and Oliver Oil, pursuant to the Distribution Agreement and requirements therein, undertook a duty with Oliver Oil to patrons of Blue Chip Mini-Marts, as well as employees working within said mini-marts to provide for their safety and well-being while at said premises, including but not limited to, safety and protection from robbers, thieves, assailants, rapists and other undesirables.

19. That it was at all relevant times foreseeable by Defendants that employees, such as and including Plaintiff herein, Debbie Smith, would need protection from the aforementioned individuals in carrying out her responsibilities in the employment of Oliver Oil, Blue Chip Mini-Marts and Blue Chip Oil in carrying out the sales and operation plans as specified by Exxon.

45. That Exxon required and did display their name and logo on various signage [sic] in and about the Blue Chip Mini-Mart.

' ‡ ‡ H* ‡ ‡

46. Defendant, Exxon, required Defendants, Oliver Oil and Blue Chip Mini-Marts to supply certain services and facilities in connection with the selling of Exxon products.

‡ if: iH ^ Hi Hi

49. Exxon, as the franchisor, had a non-delegable duty, which included but was not limited to, issuing guidance and setting requirements for the use or installation of security devices, measures and procedures to ensure that its franchise, Oliver Oil and Blue Chip Mini-Marts exercised reasonable care to protect business invitees, attracted to trade under Exxon’s name and logo, and employees of Oliver Oil, including Plaintiff, Debbie Smith, against an unreasonable risk of harm from reasonably anticipated criminal activities in and around the stores which it did business.

R.R. “Complaint” at 3-5, 9-10.

Upon analysis of the complaint, the lower court determined that appellant failed to plead sufficient facts which would permit recovery. The court below found that appellant’s averments were unfairly representative of the provisions of the Distributor Agreement and were unjustified conclusions of law. Trial Opinion 12/7/93 at 5-6. Appellant maintains that Exxon’s duty to her stems from the terms provided in the Distributor Agreement. Paragraphs 17 and 18 of appellant’s complaint state that the Distributor Agreement obligated Exxon to provide security measures to patrons and workers of the mini-mart. Appellant fails to direct us to any such provision in the the Distribution Agreement. Moreover, after scrutinizing the language of that agreement, we are convinced that no such duties were expressly or even implicitly provided. Paragraph 12 of appellant’s complaint avers that Exxon required Oliver Oil to keep the mini-mart open twenty-four (24) hours a day. The Distributor Agreement, however, imposes upon Oliver Oil the duty to operate its mini-mart during such hours which are “reasonable considering customer convenience, competitive conditions and economic consequences to [Oliver Oil].” R.R. “Distribution Agreement” at ¶ 14(d). Paragraph 45 of appellant’s complaint alleges that Exxon required its name and logo at the Blue Chip Mini-Mart. The Distribution Agreement does not require but “permits” Oliver Oil to display Exxon’s trademarks at the mini-mart provided that any such display meets Exxon’s guidelines for preserving trademark identification. R.R. “Distribution Agreement” at ¶ 11. Paragraphs 14, 19 and 49 of appellant’s complaint plead legal conclusions.

“In the context of a demurrer, ... it is not necessary to accept as true averments in the complaint which are in conflict ■with the exhibits attached to the complaint.” Philmar Mid-Atlantic v. York Street Assoc., 389 Pa.Super. 297, 299-301, 566 A.2d 1253, 1254 (1989), citing, Schuylkill Prod. v. H. Rupert & Sons, Inc., 305 Pa.Super. 36, 39 n. 2, 451 A.2d 229, 231 n. 2 (1982); Framlau Corp. v. Delaware County, 223 Pa.Super. 272, 277, 299 A.2d 335, 338 (1972). Moreover, conclusions of law pleaded in the complaint are to be disregarded by the court. Cavaliere v. Duff's Business Institute, 413 Pa.Super. at 361-62, 605 A.2d at 400. Our examination of the Distributor Agreement leads us to find that numerous averments in the complaint unfairly represented the provisions of the agreement and improperly contained legal conclusions.

We find that the analysis espoused by our Supreme Court in Green v. Independent Oil Company, 414 Pa. 477, 201 A.2d 207 (1964) provides guidance herein. In Green, 414 Pa. 477, 479-480, 201 A.2d 207, 208-209, customers at a gasoline service station were killed on the premises when fumes from a cleaning-solution applied to the garage floor by an employee ignited in the air. Suits were brought against Independent Oil Company (“Independent”) and Woodrow Graffius (“Graffius”). Independent owned the property and building of which Graffius leased and occupied. Further, Independent and Graffius entered into an agreement (“Dealers Agreement”) whereby Independent constituted Graffius as a dealer in . its products. At trial, the jury rendered verdicts against both defendants. Independent sought judgments n.o.v. on the ground that “the relationship between Independent and Graffius was that of independent contractee-independent contractor and, therefore, Independent had no vicarious responsibility on the theory of respondeat superior for negligence on Graffius’ part.” Id. at 481, 201 A.2d at 209.

On appeal to the Pennsylvania Supreme Court, our highest court held that the trial court committed an error of law in submitting to the jury the question of the relationship of the defendants and then denying Independent’s motions for judgments notwithstanding the verdicts. In arriving at that holding, our Supreme Court initially distinguished an employee-employer relationship from an independent contractee-contractor relationship as follows:

[T]he basic inquiry is whether such person is subject to the alleged employer’s control or right of control with respect to his physical conduct in the performance of the services for which he was engaged----

The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.

Id. at 446-49, 201 A.2d at 201 (citations omitted). See Romanski v. Prudential Property & Casualty Ins. Co., 356 Pa.Super. 243, 514 A.2d 592 (1986) (plaintiff, a taxi driver, was found to be an independent contractor not subject to control by Yellow Cab).

The Supreme Court then determined that the Dealers Agreement was the sole evidence of the relationship between Independent and Graffius. In Green, our Supreme Court found the following terms of that agreement germane in determining that Independent lacked control over the manner in which the business of Graffius’ service station was conducted: 1) Graffius would maintain and repair the buildings and other facilities on the property. 2) Independent would lend equipment to Graffius for the storage and sale of its products. 3) Graffius would purchase all motor oils and fuel from Independent. 4) Graffius would pay all utility charges, taxes and other expenses and secure all governmental licenses and permits for conducting the business. 5) Graffius would not hold himself as an agent of Independent and shall conduct all business in Independent’s products in Graffius’ name thus displaying his own name on the premises. 6) Independent would have the right to terminate the agreement at any time by written notice to Graffius or suspend deliveries during such default. Id. at 480-82, 201 A.2d at 209-210. In construing the terms of the Dealers Agreement in its entirety, the Court concluded that the relationship was clearly and convincingly one of an independent contractee-contractor rather than an employer-employee. Id. at 484-86, 201 A.2d at 211.

Here, unlike Independent in Green, Exxon does not own the building or the property on which the mini-mart conducts its business. Instead, Exxon merely distributes gasoline and motor oil to the mini-mart. Appellant asserts, however, that the Distributor Agreement imposes the following duties upon Oliver Oil thus giving Exxon control over Oliver Oil’s operation of the mini-mart: 1) Oliver Oil would provide qualified and neatly dressed attendants with appropriate uniforms as well as keep the rest rooms clean, orderly and sanitary and to render appropriate, prompt, efficient and courteous service to Exxon customers including responding to customer complaints. R.R. “Distributor Agreement” at ¶ 14. 2) Oliver Oil would allow Exxon the right to sample at any time the gasoline stored in tanks of Oliver Oil. R.R. “Distributor Agreement” at ¶ 11. 3) Should Oliver Oil choose to display Exxon trademarks, Oliver Oil would have to use the trademarks in a certain fashion, protect their identity from non-Exxon products and submit to several courses of action if the trademarks were misused. R.R. “Distributor Agreement” at ¶ 11. 4) Oliver Oil would be required to comply with a marketing plan to optimize effective distribution of gasoline to which plan Exxon would agree to provide comments. R.R. “Distributor Agreement” at ¶ 12.

Recently, our Court in Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 634 A.2d 622 (1993), was presented with facts and issues similar to those of the instant case. In that case, a campus ministry group contracted with Penn Stroud Hotel, Inc. (“Penn Stroud”), t/a Best Western Pocono Inn of Stroudsburg, to use its ballroom for a social function. The plaintiff, a disc jockey performing at that function, was attacked and sexually assaulted in the ladies’ restroom at the inn. The plaintiff brought suit against Best Western International, Inc. (“Best Western”) and Penn Stroud. Penn Stroud and Best Western were in a marketing agreement whereby Penn Stroud was a member of the Best Western organization which allowed it to use the “Best Western” name and participate in the Best Western reservation network. Similar to this case, at issue was whether Best Western exercised control over Penn Stroud’s operation of the inn and owed the plaintiff a legal duty to ensure adequate security of the premises. Best Western moved for summary judgment on the ground that, as a matter of law, an agency relationship did not exist between itself and Penn Stroud. The trial court granted summary judgment in favor of Best Western and the plaintiff appealed. Id. at 317-19, 634 A.2d at 624.

On appeal to our Court, the plaintiff in Myszkowski contended that Best Western had the right to control Penn Stroud substantially pursuant to their marketing agreement. The plaintiff asserted, “Best Western concerns itself with the total operation of Penn Stroud through the workshops and programs it conducts, the rules and regulations it imposes and its ability to sanction for noncompliance with its quality standards.” Id. at 320, 634 A.2d at 625. Applying our Supreme Court’s analysis in Green to the facts, our Court in Myszkowski determined that the relationship between Best Western and Penn Stroud was one of an independent contractorcontractee rather than a master-servant. Id. at 320-321, 634 A.2d at 625-627. The focus of our Court’s inquiry was whether Best Western had day-to-day control over the manner of Penn Stroud’s performance. We rejected the plaintiffs argument that Best Western had control over the operations of the inn by virtue that it could terminate Penn Stroud’s right to use the Best Western tradename. Id. at 321-23 n. 4, 323-25, 634 A.2d at 626 n. 4, 627. There, our court found, “the fact that Best Western sets certain standards in order to maintain a uniform quality of inn service only addresses the result of the work and not the manner in which it is conducted.” Id. at 324, 634 A.2d at 626. We concluded that Best Western was not vicariously liable for the alleged negligence of Penn Stroud. Id. at 325-329, 634 A.2d at 628-630.

In light of the Green and Myszkowski decisions, we address the pivotal question of whether Exxon controlled or retained the right to control the manner in which Oliver Oil’s operation of the mini-mart was conducted. In Myszkowski, the marketing agreement afforded quality control requirements for the protection of Best Western’s tradename and services. The Distributor Agreement herein provides similar provisions for the purpose of preserving the integrity of Exxon’s trademark and the quality of its gasoline, i.e., samples taken from tanks. As in Myszkowski, here, standards were implemented to maintain a uniform quality of service. We are of the opinion that the standards concerning the appearance of personnel and restrooms and the response to customer complaints do not amount to Exxon having control over the manner in which the work is accomplished. Under the guidance of our Court’s decision in Myszkowski, we also reject appellant’s assertion that a marketing plan, as mentioned in ¶ 12(a)(1) of the Distributor Agreement, is indicative of Exxon’s control over Oliver Oil’s business. In comparison to the facts in Myszkowski, we find that Exxon’s involvement in the operation of Oliver Oil’s mini-mart is exponentially less than Best Western’s involvement with the operation of Penn Stroud. There, the circumstances reveal that Penn Stroud’s inn was engaged exclusively in hotel services. The inn obtained guidance from Best Western on how to conduct its business through regulations, programs and workshops that were set up by Best Western. Here, on the other hand, Oliver Oil’s mini-mart is a convenience store and not merely a gas station. Exxon is only one of many suppliers of products to that store. The record is devoid of facts that even suggest that Exxon played a role in any day-to-day operational decisions of the mini-mart.

Upon reviewing the language of the Distributor Agreement in its entirety, we are convinced that the duties imposed upon Oliver Oil by Exxon only addressed the result of the work and not the manner in which it was conducted. We find that the relationship between Exxon and Oliver Oil is one of independent contractor-contractee. Because Exxon neither controlled nor retained the right to control the manner in which Oliver Oil’s mini-mart operated, we conclude that Exxon owed no legal duty to appellant. We hold that the lower court properly determined that appellant’s complaint was legally insufficient to permit recovery. Accordingly, we affirm the lower court’s order sustaining the preliminary objections of Exxon and dismissing appellant’s complaint against it.

Order affirmed.

      . In July of 1991, a writ of summons was served on Exxon. In June of 1993, appellant filed the complaint.

      . On October 6, 1993, appellant filed a motion for reconsideration of the order granting Exxon’s preliminary objections. That motion was denied by the court below on October 18, 1993. Notice of appeal was filed on October 21, 1993.

      . Appellant argues that there is more evidence other than the Distribution Agreement that supports her contention that Exxon exerted control over Blue-Chip Mini-Mart and undertook a duty to protect the mini-mart’s patrons and workers. Appellant asserts that discovery would reveal more facts as to Exxon’s role in the mini-mart’s operations. The lower court dismissed that contention by finding that appellant had years to initiate discovery, yet failed to do so. The court determined that discovery at this stage would be a further waste to judicial economy. Trial Opinion 12/7/93 at 4-5.
      Appellant directs our court’s attention to ¶ 12(a)(1) of the Distributor Agreement. Appellant maintains that Oliver Oil prepared “a comprehensive market development plan” for Exxon, and that Exxon has not disclosed this plan to appellant. That document is not in the record. However, upon close review of the language of ¶ 12(a)(1) of the Distributor Agreement, we are of the opinion that such a plan would not establish that Exxon held control over the mini-mart’s operations. See Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 634 A.2d 622 (1993) (marketing arrangement was not evident of the the type of day-to-day control over the manner of performance which would establish master-servant relationship). Nevertheless, we find that the lower court appropriately determined that appellant failed to exercise due diligence in discovery. In July of 1991, appellant issued a writ of summons on Exxon. In June of 1993, appellant filed the complaint. Pennsylvania Rules of Civil Procedure avails a plaintiff the opportunity to obtain discovery from the time the writ of summons is served for the purpose of preparing a complaint. See Pa.R.Civ.P. 4007.1(c). See generally, 6 Standard Pennsylvania Practice 2d §§ 34:6, 34:7. Appellant had nearly two years to seek discovery to enable the drafting of the complaint. We find that appellant should bear the burden for her lack of diligence. Hence, we conclude the fate of her complaint’s viability hinges exclusively upon the terms of the Distributor Agreement rather than additional undiscovered evidence.

      . To advance her contention that Exxon had control over Oliver Oil’s operation of the mini-mart and owed her a duty of protection, appellant relies heavily upon our Court’s decision in Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981). However, we find that our ruling in Juarbe is not dispositive of the facts in this case. In Juarbe, unlike the record presented herein, there was evidence other than the agreements between Exxon and the dealer which supported the plaintiff’s assertion that Exxon had control over the service station. By virtue of that additional evidence, i.e., affidavits, our Court in Juarbe determined that the Green holding was not controlling. Juarbe, 288 Pa.Super. at 341-42, 431 A.2d at 1079. Here, however, the Distributor Agreement is the sole evidence of the relationship between Exxon and Oliver Oil. Because of that important distinction, we, thus, find that our analysis herein is guided by the Green decision and not Juarbe.

      . Appellant makes reference to the aforementioned duties in ¶¶ 11, 13, 16, 45 and 46 of the complaint filed against Exxon.


source: Caselaw Access Project

license: Public Domain

text:
    647 A.2d 583
    COMMONWEALTH of Pennsylvania, Appellant, v. Shirley WILKINSON. COMMONWEALTH of Pennsylvania, Appellant, v. Robert WILKINSON.
    Superior Court of Pennsylvania.
    Submitted June 29, 1994.
    Filed Sept. 14, 1994.

      James M. Jacobs, Asst. Dist. Atty., Somerset, for Com., appellant.
    Wilbert H. Beachy, III, Somerset, for appellees.
    Before POPOVICH, SAYLOR and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order of January 6, 1994, entered in the Court of Common Pleas of Somerset County granting appellees’ pre-trial suppression motion. Herein, the Commonwealth contends that the lower court committed an error of law in ruling that the affidavit in support of the search warrant lacked probable cause. We affirm.

Before addressing the merits of the Commonwealth’s contention of error, we recount the history of this case. In January, 1993, during a drug investigation in Maryland of a suspect known as “Wright”, Maryland officers received information from a “concerned citizen” that appellees were in possession of a large quantity of marijuana located at their residence in Pennsylvania. On January 27, 1993, Officer Larry Bennett of the Allegheny County, Maryland Drug Task Force and Maryland State Trooper Jack Matthews contacted Officer Jeffrey Dombrosky of the Somerset County, Pennsylvania Drug Task Force in regard to the aforesaid information. On that date, Officer Dombrosky submitted an affidavit of probable cause in support of a search warrant to the district justice. The affidavit provided the following information:

1. Your affiant, Det. Jeffrey P. Dombrosky, has been a police officer for the last five years. I am currently assigned as County detective with the Somerset County Drug Task Force, and have held this position for the past two years.

2. On 01/27/93 your affiant received the following information, from Officer Larry BENNETT of the Allegheny Drug Task Force in Cumberland Maryland. Officer BENNETT has been a Police Officer for the last six years, and is a reliable source of information.

3. On 01/27/93, Officer BENNETT interviewed a confidential informant, whom he knows is reliable due to his/her cooperation in a current drug investigation in the Cumberland [Maryland] area. This informant was advised of the crime of False Reports to Law Enforcement Officers, and stated he understands that if he provides false information he would be procescutted [sic]. The informant is familiar with Marijuana and other durgs [sic], due to his past experience as a drug user.

4. The informant advised BENNETT that he was at the residence, of one Robert Allen WILKINSON in or near WELLERSBURG Pa. Somerset County, within the last 48 hrs. The informant stated that he observed a large quantity of Marijuana on the kitchen table. The informant stated that it was approximately fifty pounds of Marijuana. He stated that Wilkinson and several other people were at the residence seperating [sic] the marijuana into one pound bags, using one gallon zip lock bags. The informant also stated that he knows that some of the marijuana was transported to a residence in Maryland and that at least half of it was left at the Wilkinson residence.

5. On 01/27/93 your affiant received information from Trooper Jack MATTHEWS of the Maryland State Police. Trooper MATTHEWS along with other members of the Maryland Drug Task Force served a search warrant on a residence in Maryland using the information provided by Officer BENNETT’S informant. MATTHEWS advised me that they did recover marijuana and drug paraphernalia from that residence.

6. I request a nighttime [sic] search warrant (10pm to 6am) due to the fact that the individual which was served with the search warrant in Maryland could possibly notify WILKINSON and the marijuana at his residence could be moved or destroyed.

7. On 01/27/93 your affiant spoke with a local resident of the Wellersburg area. This individual advised me that it is “rummored” [sic] in the community that WILKINSON is involved in the selling of drugs at his residence.

Due to the totalitty [sic] of the circumstances and my training and experience as a police officer, I feel that there is marijuana concealed in the WILKINSON residence, and I feel that a warrant to be issued at this time.

Suppression Hearing 12/29/93, “Commonwealth’s Exhibit A”.

Upon evaluation of the affidavit, the district justice found probable cause to issue a search warrant. The search of appellees’ residence uncovered twenty-two and one-half (22.5) grams of marijuana. Appellees were charged with possession of a controlled substance. Appellees filed motions to suppress the marijuana and all other evidence seized on the ground that the warrant was defective. Appellees asserted that the affidavit failed to establish that the information was reliable. On December 29, 1993, the lower court held a hearing on appellees’ omnibus pre-trial motions. On January 6, 1994, the court below entered an order granting appellees’ motions to suppress evidence seized at their residence. This appeal by the Commonwealth followed.

In Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23 (1992), our Supreme Court articulated the following guidelines in assessing the sufficiency of an affidavit:

[T]he legal principles applicable when reviewing the sufficiency of an affidavit to determine whether it establishes the probable cause necessary for the issuance of a warrant are well established. Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth v. D’Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The information offered to demonstrate probable cause must be viewed in a common sense, nontechnical, ungrudging and positive manner. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973). It must also be remembered that probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and that deference is to be accorded a magistrate’s finding of probable cause. Commonwealth v. Council, 491 Pa. 434, 444, 421 A.2d 623, 628 (1980)____ And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding that probable cause existed.” Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986), citing Illinois v. Gates, 462 U.S. 213, at 236, 103 S.Ct. 2317, at 2332, 76 L.Ed.2d 527, at 547 (1983).

Baker, 532 Pa. at 126, 615 A.2d at 25. “The propriety of the grant of a search warrant to an affiant must be judged solely upon the information before the district justice at the time of its issuance.” Commonwealth v. Weidenmoyer, 518 Pa. 2, 8, 539 A.2d 1291, 1294 (1988) (citations omitted). “The magistrate’s decision must be based on the four corners of the affidavit in support of the issuance of the warrant----” Commonwealth v. Dennis, 421 Pa.Super. 600, 617, 618 A.2d 972, 981 (1992), citing, Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985).

Against the backdrop of the foregoing authorities, we turn to the Commonwealth’s claim that the affidavit provided sufficient information for the issuance of a search warrant. Specifically at issue in this case is whether the informant whom the Maryland authorities used in their drug investigation was reliable and whether that informant’s information about the presence of marijuana at appellees’ residence in Pennsylvania was corroborated. The lower court determined that the district justice did not have a substantial basis for concluding that probable cause existed. The court found that both reliability and corroboration were lacking from the information provided in the affidavit. Trial Opinion 1/6/94 at 6-7.

The Commonwealth contends that the information provided highly specific descriptions of the illegal conduct and was thus presumptively credible. The Commonwealth also maintains that the search in Maryland was completed successfully before the affidavit was drafted and submitted to the district justice in Pennsylvania. Further, the Commonwealth argues that a first-time-informant is not per se unreliable. Commonwealth’s Brief at 16-17.

In the cases cited by the Commonwealth in its brief to buttress the aforementioned contentions, the informant’s story was corroborated by another source. The cases cited by the Commonwealth are as follows: Commonwealth v. Healey, 331 Pa.Super. 199, 480 A.2d 313 (1984) (informant had given reliable information in unrelated case involving different defendant); Commonwealth v. Covert, 322 Pa.Super. 192, 469 A.2d 248 (1983) (information corroborated by police inquiry and surveillance); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980) (information corroborated by police surveillance of defendant’s home revealing drug activity); Commonwealth v. Marzel, 291 Pa.Super. 553, 436 A.2d 639 (1981) (police officer’s impression of on-going criminal activity was corroborated by information supplied by numerous informants); Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972) (affidavit lacked probable cause where there was no evidence of criminal activity other than information supplied by informer).

From our view of the those cases and other cases involving questions of the propriety of search warrants decided subsequent to Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), we find that the determination of whether the information supporting the issuance of the warrant is sufficiently reliable to establish probable cause often hinges upon whether that information is corroborated. Here, although a successfully completed drug investigation in Maryland may have afforded some evidence of reliability to the informant’s story that marijuana was located at appellees’ residence in Pennsylvania, we conclude that, upon examining the affidavit’s language in its totality, probable cause is lacking.

In Gray, our Supreme Court evaluated the facts of the affidavit in conjunction with one another to determine whether “[tjheir total effect confirms [the informant’s reliability] with the ring of truth which is sufficient for men of common sense to conclude that a search is reasonable and justified by probable cause.” 509 Pa. at 485, 503 A.2d at 926. In that case, the informant’s story was corroborated by a police officer and two confidential informants who stated the defendant was a known drug dealer. A third confidential informant stated that he saw the defendant in possession of twenty pounds of marijuana. Id. at 485, 503 A.2d at 926. Our Supreme Court concluded, “[v]iewed together, these allegations raise a fair inference that appellant was in possession of substantial quantity of a controlled substance.” Id. at 485-86, 503 A.2d at 926.

The Commonwealth directs us to paragraph seven (7) of the affidavit and suggests that the informant’s story was corroborated by a Wellersburg area resident apprising Officer Dombrosky that appellee, Robert Wilkinson, was rumored in the community to be involved in the selling of drugs from his residence. We, however, are convinced that the information supplied in paragraph seven (7) of the affidavit is tenuous and suspect. The affidavit is devoid of facts revealing whether that Wellersburg area resident had been a confidential informant or whether he or she had witnessed appellees in possession or distribution of marijuana. Contrast Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23 (1992) (informant’s story-corroborated by first-hand observation that defendant sold cocaine); Commonwealth v. Weidenmoyer, 518 Pa. 2, 539 A.2d 1291 (1988) (eyewitness’ story corroborated by informant who gave prior reliable information and by additional informants). Further, that Wellersburg area resident’s information is not independently corroborated. Compare Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987) (tips not adequately corroborated by an independent source). The affidavit does not reveal whether any law enforcement agency had observed or even investigated any drug activity involving appellees or whether appellees had a prior record for unlawful possession of distribution of drugs. Contrast Commonwealth v. Karns, 389 Pa.Super. 58, 566 A.2d 615 (1989), appeal denied 525 Pa. 632, 578 A.2d 927 (corroboration from defendant’s prior arrest record; independent police investigation verifying informants’ story; informants’ stories corroborating one another); Commonwealth v. Silverman, 373 Pa.Super. 274, 541 A.2d 9 (1988) (police officer verifying informant’s story by going to scene of crime to make observation; defendant was known to have prior arrests and conviction for same crimes as reported by informant). Clearly, the affidavit fails to offer any adequate statements of corroboration.

We are mindful that deference is accorded to the magistrate’s finding of probable cause for the issuance of a search warrant. See Baker, 532 Pa. at 126, 615 A.2d at 25. However, we are also cognizant that our duty in reviewing the validity of a warrant is to ensure that the magistrate had a substantial basis for that determination. See id. From our careful examination of the affidavit, we find that the magistrate did not properly analyze the affidavit in light of the “totality of the circumstances” standard embraced by our courts. We conclude that the lower court did not commit an error of law in granting appellees’ pre-trial suppression motion. Consequently, we affirm the order entered by the court below.

Order affirmed.

      . Upon review of the record, we find that the Commonwealth has certified that the order in question substantially handicaps its prosecution. Hence, we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (appealability from suppression order is proper where Commonwealth certifies in good faith that order terminates or substantially handicaps its prosecution).

      . The person who contacted the Maryland officers was called a "concerned citizen” rather than a "confidential informant” because at that time he or she was not currently registered as an informant with Maryland authorities. Suppression Hearing N.T. 12/29/93 at 41-42. In its opinion, the lower stated that for unknown and peculiar circumstances that person went from being designated as a “concerned citizen” to a "confidential informant”. Trial Opinion 1/6/94 at 3 n. 1. Hereinafter, we refer to that person as the informant.

      . 35 Pa.S.A. § 780-113(a)(16).

      . In Gray, our Supreme Court held that the "totality of circumstances” test was the controlling standard in Pennsylvania for viewing the validity of search warrants. 509 Pa. 476, 503 A.2d 921. See Commonwealth v. Silverman, 373 Pa.Super. 274, 541 A.2d 9 (1988), appeal dismissed, 522 Pa. 510, 564 A.2d 160 (1989) (explanation of AguilarSpinelli two-prong test in relationship to the "totality of circumstances” test as espoused by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).


author: CIRILLO, Judge:

text:
    647 A.2d 587
    E. Glenn SCOTT and Donnice Scott, Husband and Wife, Appellants, v. SOUTHWESTERN MUTUAL FIRE ASSOCIATION, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued April 28, 1994.
    Filed July 18, 1994.
    Reargument Denied Sept. 16, 1994.

      Gary M. Davis, Pittsburgh, for appellants.
    Vincent J. Roskovensky, II, Uniontown, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Washington County. We affirm.

On February 4, 1989, appellants E. Glenn and Donnice Scotts’ home was destroyed by fire. At the time of the fire, the Scotts’ property was insured by Southwestern Mutual Fire Association (Southwestern). The Southwestern policy carried a three year term, payable annually, commencing on January 13, 1988 and terminating on January 13, 1991. The policy provided coverage in the amounts of $45,000.00 for the dwelling, $15,000.00 for household and personal property (contents), and $3,000.00 for the detached garage and its contents. The record indicates that the Scotts paid the first annual premium in the amount of $243.00.

In late December of 1988, Southwestern sent a renewal notice of premium to the Scotts for the term commencing on January 13, 1989. The Scotts did not respond to this notice. Rather, on January 13, 1989, the Scotts applied for other homeowner’s insurance with the Prudential Insurance Company (Prudential). The Scotts conveyed to a Prudential agent their intent to replace the Southwestern policy with the Prudential policy. Mrs. Scott entered into a binder of insurance with Prudential on January 13, 1989, effective that same day, which provided in pertinent part:

I understand that the company [Prudential] hereby binds ... the coverage and limits of liability shown in the application .... The temporary insurance provided by this BINDER shall terminate not later than thirty days from the Effective Date stated. Earlier termination will result will result from: (1) Issuance of a policy in which event this BINDER is void; or (2) Cancellation by the Applicant or by the Company.

The binder provided coverage in the amounts of $68,500.00 for the dwelling and $47,950.00 for the personal property. The binder also contained a notation that Southwestern was the Scotts’ “previous insurer,” with the expiration date of that policy at “1/13/89.” To effectuate the binder, Mrs. Scott made a payment to Prudential in the amount of $61.00.

On February 2, 1989, two days before the fire, Mrs. Scott telephoned Southwestern and informed Southwestern secretary, Norma Geisel, that she and Mr. Scott had entered into a binder of insurance with Prudential and that she, therefore, intended to cancel their policy with Southwestern. On or about February 27, 1989, Mrs. Scott made a second premium payment to Prudential.

Approximately two months after the fire, the Scotts filed Proof of Loss Statements for their dwelling and personal property -with Prudential. Pursuant to these statements, Prudential paid out the limits of its liability. The following month, in May of 1989, the Scotts filed a Proof of Loss Statement with Southwestern for personal property only. Southwestern denied the claim, contending that the policy had been cancelled on January 13, 1989 or, at the very latest, on February 2, 1989, two days prior to the date of the fire. The Scotts filed the instant action against Southwestern for breach of contract.

Before the Honorable Thomas J. Terputac, a jury returned a verdict in favor of the Scotts, finding that the Southwestern insurance policy was not cancelled prior to the date of the fire. The jury then awarded the Scotts $59,131.00. Thereafter, Southwestern moved for judgment notwithstanding the verdict (JNOV) and/or a new trial. The Scotts moved for prejudgment interest on the damages which the jury awarded. Judge Terputac granted Southwestern’s motion for JNOV and entered judgment thereon. Judge Terputac, therefore, did not decide the Scotts’ motion for prejudgment interest. The Scotts now appeal from the judgment and raise one question for our review:

Whether the trial court erred in determining that the Scotts cancelled the insurance policy as a matter of law, and thereby granting JNOV?

The standard of review for an appellate court is the same as that for a trial court: JNOV will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 311, 605 A.2d 373, 375 (1992). We must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989); Spagnol Enterprises, Inc. v. Digital Equipment Corp., 390 Pa.Super. 372, 374, 568 A.2d 948, 949 (1990). An appellate court will reverse a trial court’s ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892 (1984).

The issue which is presented to this court is whether the Scotts cancelled their policy with Southwestern prior to the date of the fire. Generally, the law requires that when an insurance policy is to be cancelled, the conditions upon which the right is exercised must be strictly complied with, unless the insured waives this requirement. Pomerantz v. Mutual Fire Ins. Co., 279 Pa. 497, 499, 124 A. 139, 140 (1924); Letvin v. Phoenix Ins. Co., 91 Pa.Super. 422, 426-27 (1926); see also Federal Kemper Ins. Co. v. Commonwealth, Ins. Dept., 509 Pa. 1, 500 A.2d 796 (1985) (holding that an insured who does not wish to continue a policy is free to cancel the policy at any time, as long as that right is provided for in the policy).

Where the cancellation of a policy is relied upon as an affirmative defense, the burden is on the defendant (insurer) to prove an effective cancellation of the policy prior to the loss. Moser Mfg. Co. v. Donegal & Conoy Mut. Fire Ins. Co., 362 Pa. 110, 115, 66 A.2d 581, 584 (1949); see also Hanna v. Reliance Ins. Co., 402 Pa. 205, 166 A.2d 877 (1961); Harty v. Standard Acc. Ins. Co., 394 Pa. 358, 147 A.2d 421 (1959); Coppola v. Insurance Placement Facility, 386 Pa.Super. 413, 563 A.2d 134 (1989); Mackiw v. Pennsylvania Thresh. & Farmers Mut. Cas. Ins. Co., 201 Pa.Super. 626, 193 A.2d 745 (1963). The crux of the insurer’s burden turns on whether it can prove that the insured had a clear and precise intent to cancel the policy prior to the loss. Coppola, 386 Pa.Super. at 416, 563 A.2d at 136; see also Del Boring Tire Service v. Federal Emergency Management Agency, 496 F.Supp. 616 (W.D.Pa.1980).

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

We now turn to the facts of this case and the language contained in the Southwestern policy to determine whether the Scotts cancelled the Southwestern policy prior to the date of the fire. The policy provided that either party could cancel the term of insurance in the following manners: First, an endorsement to the policy provided that “this policy shall be cancelled at any time at the request of the insured upon the return of this policy to the Home Office of the Association and the payment of all assessments or other charges against the policy.” Next, the Amendatory Cancellation and Nonrenewal Endorsement to the policy (Form No. 182) provided:

CANCELLATION FOR NON-PAYMENT OF PREMIUM. This policy may be cancelled by this Company at any time during the policy period for failure to pay any premium when due ... by mailing or delivering to the insured written notice stating when, not less than thirty (30) days ther[e]after, such cancellation shall be effective.

In compliance with the above-quoted provision, Southwestern’s renewal notice to the Scotts contained the following language:

Neglect or failure to pay any Premium within thirty days from [the] date of this notice to pay same shall without further notice, render the policy void as to the interest of the insured until such payment be made, and in no case shall the Association be liable to the insured for any loss occurring during such suspension.

Although the renewal notice was sent to the Scotts sometime in late December of 1988, the only date contained in or on the notice was January 13, 1989, the annual renewal date of the policy. The Scotts argued before the trial court, therefore, that their “30 day grace period” was to run until February 13, 1989. They asserted, a fortiori, that their policy with Southwestern was still in effect at the time of the February 4th fire. They also contended that they did not cancel their policy with Southwestern prior to their loss, because they did not return the Southwestern policy as per the requirements of the policy and the request of the Southwestern agent, and that they did not intend to do so until, and only if, they were assured permanent coverage by Prudential.

The trial court found that regardless of their subjective intent, the Scotts, by their words and actions, effectively cancelled the Southwestern policy. We agree.

The Pennsylvania Supreme Court first addressed this issue in 1896 in Arnfeld & Son v. Guardian Assurance Co., 172 Pa. 605, 34 A. 580 (1896), and in Jones v. Alliance Mut. Fire Ins. Co., 174 Pa. 438, 34 A. 198 (1896). In Amfeld, the insurer (Insurer 1) issued a one-year fire insurance policy to the insured, covering the insured’s clothing/inventory in its Pitts-burg store. The policy provided that the coverage could be cancelled “at any time at the request of the insured, or by the company, by giving five days notice of such cancellation. If this policy shall be cancelled ... the unearned portion [of the premium paid] shall be returned on surrender of this policy....” 172 Pa. at 606, 34 A. at 580.

On May 8, 1893 (Day 1), the insurer gave verbal notice to the insured’s broker that the policy would be cancelled within five days. The broker informed the insurer that it would replace the policy as soon as possible, and, on Day 3, purchased insurance from Insurer 2 for the same amount of coverage. Id. at 607, 34 A. at 508. That same day, the broker apprised Insurer 1 that the substitution had been made. With respect to the first policy, nothing further was done; the policy was not surrendered to Insurer 1, and Insurer 1 did not return any part of the unearned premium. Id.

On Day 4, the insured premises were destroyed by fire. The insured collected a pro-rata share of the loss from Insurer 2 and filed suit against Insurer 1, alleging that there was no effectual cancellation of the policy with Insurer 1 at the date of the loss. Id. Reversing the judgment in favor of the insured, the Supreme Court of Pennsylvania, invoking principles of equity, found that, although there was no formal or technical cancellation of the policy, there was

a substitution of the liability of a third party [Insurer 2] for that of the defendants [Insurer 1], by the consent of the plaintiffs [insured], defendants, and the third party____ Defendants’ contract was one of indemnity in a fixed amount against loss by fire on certain goods; a third party ... took its place and indemnified plaintiffs against precisely the same loss, in the same amount, on [the] same goods, then stood by its contract, and paid the loss. This was a complete and effectual substitution of another insurer in place of defendants.

Id. at 608, 34 A. at 581.

Later in 1896, the Pennsylvania Supreme Court examined a similar issue in Jones v. Alliance Mut. Fire Ins. Co., 174 Pa. 438, 34 A. 198 (1896). There, the insured was issued a fire and lightning insurance policy, with the limits of the insurer’s liability set at $1,000.00. The application for insurance, which was attached to the policy, provided that “I [the insured] promise to pay the said company, such sum or sums of money ... as the board of directors of said company may require and assess; and if such assessment be not paid to the company ... within thirty days after notice of the same, to pay 25 per cent, [sic] thereon, for expenses of collection.... [I]n every such case, the insurance under this policy shall cease until such assessment is paid.” Id. at 440, 34 A. at 199. Pursuant to this clause in the application, the insurer sent an assessment notice to the insured requesting that the insured remit $7.50 within 30 days. The insured never paid the assessment. Id.

Approximately nine months later, the insured’s property was destroyed by fire. At the time of the fire, notwithstanding the above-mentioned policy of insurance, the insured held four additional policies on the same property; three of these four additional policies were procured after the insured obtained insurance from the defendant/insurer in this case (Insurer 1). Shortly after the fire, the insured filed a Proof of Loss Statement with Insurer 1. Insurer 1 denied the claim, alleging that the policy had been cancelled by the insured’s failure to pay the $7.50 assessment. Id. at 441, 34 A. at 200. The insured told an agent of Insurer 1 that he did not pay the assessment because “he had taken policies in other companies ... in place of that issued to him by [Insurer 1].” Id.

The insured then instituted suit against Insurer 1. The trial court denied the insured’s claim, and the Supreme Court affirmed. The Court found, specifically, that:

The [insured] admitted ... that he had received notice of the assessment ... a day or two after it was mailed to him. As a matter of fact he never paid the assessment and the evidence [shows] that he never intended to pay it, but that he intended to abandon the policy.

Id. at 442, 34 A. at 201.

The Pennsylvania Supreme Court later addressed this issue in Scheel v. German-American Ins. Co., 228 Pa. 44, 76 A. 507 (1910). In Scheel, the insurer (Insurer 1) issued a fire insurance. policy to the insured. The policy provided that “the policy shall be cancelled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation.” Id. at 47, 76 A. at 508. Pursuant to this provision, the Insurer 1 gave the insured five days’ notice of cancellation (Day 1). The cancellation notice further provided that “said policy will absolutely cease on the expiration of this notice unless surrender thereof to said company be sooner made.” Id. at 47-48, 76 A. at 508. On Day 4, a second insurer (Insurer 2) issued the insured a binder of insurance covering the same property. On Day 5, a fire destroyed the insured property, and the insured recovered proceeds from Insurer 2. Insurer 1 denied liability under its policy with the insured; the insured then filed suit against Insurer 1. Id.

Insurer 1 argued that when the insured received notice of the intended cancellation and promptly applied for and obtained replacement insurance from Insurer 2 in the same amount, the insured’s intent was to accept the cancellation, waive the full time limit of five days, and substitute Insurer l’s policy with Insurer 2’s policy. Id. at 48, 76 A. at 508. The trial court ruled in favor of Insurer 1, but the Pennsylvania Supreme Court reversed. The Supreme Court stated that, because the insured allegedly replaced one policy with another, Insurer 1 may be relieved from liability only if it can demonstrate:

not only that such [replacement] was the intention of the assured[,] but that his intention was carried out with his consent and by his agreement with the company. In other words, the mere procurement of another policy on the same property ... within the five-day limit does not disclose an intention ... to cancel the earlier policy ...; and in order that it may have such effect, the company must aver and prove that the assured consented and agreed to the cancellation and the substitution of the later for the earlier policy.

Id. at 49, 76 A. at 508 (emphasis added). The Supreme Court ruled that Insurer 1 did not meet this standard. It held that Insurer 1 failed to aver any of the following: (1) that it had any knowledge prior to the fire or prior to the expiration of the five days that the insured had purchased insurance from Insurer 2; (2) that there was any written or oral agreement between the parties that the policy was or should be cancelled; or (3) that Insurer 1 had any knowledge of the intention of the insured to substitute one policy for the other. In summary, the Scheel case stands for the proposition that the mere procurement of additional insurance on the same property is not sufficient to relieve the initial insurer from liability. See also Aljax Corp. v. Connecticut Mut. Life Ins. Co., 458 Pa. 57, 333 A.2d 469 (1974) (holding that a corporate beneficiary is legally entitled to have multiple insurance policies from different insurance companies on the life of the corporate president and that its procurement of additional policies did not by itself indicate an intent to cancel any other policy).

Next, in Coppola v. Insurance Placement Facility, 386 Pa.Super. 413, 563 A.2d 134 (1989), the insureds purchased fire insurance from the Insurance Placement Facility of Pennsylvania (Insurer 1), with a term running from November 18, 1981 through November 18, 1982. On March 25, 1982, however, the insureds met with their broker and obtained other insurance from the North River Fire Insurance Company (Insurer 2). On the same day, the insureds executed a cancellation request form to cancel their policy with Insurer 1. While the cancellation request form was dated March 25,1982, Insurer 1 did not receive actual notice of the cancellation until April 13, 1982. Return premiums were subsequently sent to the insureds based on a March 25, 1982 cancellation date. Id. at 414, 563 A.2d at 135.

On April 11, 1982, the insureds’ property sustained substantial fire damage. The insureds collected the limits of Insurer 2’s policy, and submitted a claim to Insurer 1, believing that regardless of when they intended to cancel Insurer l’s policy, the cancellation was not effective until April 13th, the date Insurer 1 actually received notice of the cancellation. Id. This court rejected the insureds’ contention and held that the cancellation of the insurance policy was effective on the date that the insureds intended to cancel, and not on the date that the insurer received actual notice of the cancellation. Id. at 416, 563 A.2d at 136.

Finally, in Blasy v. Chester County Mut. Ins. Co., 401 Pa.Super. 344, 585 A.2d 493 (1990), this court reaffirmed its decision in Coppola, holding that “[a] cancellation by an insured is effective on the date the insured intends to cancel the policy, and not on the date that the insurance company receives notice of the cancellation!],] as long as the insuredt’s] manifested intent is clear and precise.” Id. at 348, 585 A.2d at 495 (emphasis added).

In Blasy, the policy period commenced on August 1, 1986 and terminated on August 1, 1987. In July of 1987, Chester County Mutual Insurance Company (Insurer 1) sent to the insureds a renewal notice; the insureds, however, did not pay the renewal premium by the August 1st due date. Thereafter, Insurer 1 mailed a notice to the insureds, informing them that the policy would terminate on October 6, 1987 due to nonpayment of premiums. On August 3, 1987, the insureds’ property sustained water damage. On August 6, 1987, the insureds purchased other insurance from another homeowner’s insurance carrier (Insurer 2). Thereafter, the insureds filed a proof of loss with Insurer 1, claiming that, pursuant to the cancellation notice, they were covered until October 6, 1987. Id. at 345-47, 585 A.2d at 493-94. After examining the facts of the case, this court held that “the [insureds’] inaction in nonrenewal of the Chester Mutual (Insurer 1) policy combined with the purchase of the Fireman’s Fund (Insurer 2) policy, as well as the testimony evidencing the deliberate intention to obtain new coverage to supplant the old, are overt acts demonstrating the [insureds’] clear intent not to renew their Chester Mutual policy.” Id. at 349, 585 A.2d at 495.

When read together, the decisions in Amfeld, Jones, Scheel, Coppola, and Blasy form the following legal standard. As noted above, an insurance policy may be cancelled or terminated by any party to the contract, if such cancellation is provided for in terms of the policy. Strict compliance with the policy’s cancellation provisions can be waived, however, when an insured’s objective intent to cancel is precise and clear.

We recognize that the mere procurement of additional insurance by an insured does not necessarily evidence an intent to cancel the existing policy. Likewise, the mere nonpayment of a premium by the insured does not evidence a specific intent to cancel the existing policy. When two or more of these factors are found to co-exist, however, there exists sufficient evidence of the insured’s intent to cancel the prior insurance policy. For example, the nonpayment of premiums, along with the purchase of a policy from a different insurer and testimony evidencing the insured’s deliberate intention to obtain new coverage to supplant the old, establishes the insured’s clear and precise intent not to renew the original policy. Arnfeld, supra; Jones, supra; Scheel, supra; Coppola, supra; Blasy, supra.

Against this backdrop, we turn to the case at hand. In the summer of 1988, the Scotts spoke with a Prudential agent regarding the possible replacement of their Southwestern policy with a Prudential policy. The Scotts deferred this transaction, however, until the renewal date of their Southwestern policy (January 13, 1989). In late December of 1988, Southwestern sent to the Scotts a renewal notice for the policy period commencing on January 13, 1989. The Scotts did not pay their renewal premiums to Southwestern, nor did they intend to do so. Instead, on precisely January 13, 1989, the Scotts applied for other insurance with Prudential, paid an initial premium to Prudential in the amount of $61.00, and received a 30 day binder of insurance. Most notably, in the Prudential application, the Scotts listed the expiration date of the Southwestern policy as January 13, 1989. Two days prior to the fire, the Scotts notified a Southwestern agent regarding their transaction with Prudential, and their intent to replace the Southwestern policy with the Prudential policy.

On February 4, 1989, a fire caused severe damage to the Scotts’ home and contents therein. On February 10, 1989, the Scotts entered into a Public Adjuster Contract with the TriState Adjusting Company (Tri-State). While both the Southwestern policy and the Prudential binder and application were kept in the same fire box in the Scotts’ home, the Scotts only turned over the Prudential binder to the Tri-State agent when they entered into the adjuster contract. At that time, no mention was made of the Southwestern policy.

On or about April 27, 1989, the Scotts filed two notarized Proof of Loss Statements with Prudential, one for their dwelling and the other for their personal property. Both statements contained the following provision:

The Total Insurance covering the property described by the policy and all other policies (whether valid or invalid), binders or agreements to insure at the time of the loss was ... $--

(underlining added). Although these statements were submitted to Prudential, the above-quoted provisions of the Proof of Loss Statement forms required the Scotts to list all insurance covering their property. In these statements, however, the Scotts failed to list the Southwestern policy as one also covering the damaged property. Additionally, when Mrs. Scott telephoned Prudential after the fire to give notice of the loss, she specifically stated to a Prudential representative that she had cancelled the Southwestern policy just two days prior to the date of the fire. To confirm what Mrs. Scott told her regarding the cancellation of the Southwestern policy, the agent for Prudential contacted Southwestern. A Southwestern agent informed the Prudential agent that Mrs. Scott had, in fact, cancelled the Southwestern policy, effective January 13, 1989.

The Scotts did not file a Proof of Loss Statement with Southwestern until May 10, 1989, over two weeks after they filed their claims with Prudential, and three months after the fire. As of that date, the Scotts still had not paid any premiums to Southwestern for the current policy year.

The Scotts’ actions and inaction in this case clearly demonstrated an objective intent to cancel the Southwestern policy prior to the date of the fire. Specifically, their nonpayment of Southwestern premiums, along with their purchase of the Prudential policy, their express intent to replace the Southwestern policy with the Prudential policy, and other evidence showing the Scotts’ intention to obtain new coverage to supplant the old, established their clear and precise intent to cancel the Southwestern policy on January 13, 1989 or, at the very latest, on February 2, 1989. Amfeld, supra; Jones, supra; Scheel, supra; Coppola, supra; Blasy, supra.

We note that this case is not unlike that of a creditor who accepts surety for a debt. Often times, the original surety desires to be released from the contract of suretyship and, therefore, requires the debtor to procure a new surety, acceptable to the creditor, to take the place of the original surety. Although the creditor retains possession of the original surety-ship agreement, a new contract is entered into to bind the replacement surety. While the second surety is obligated to pay the debt under the second suretyship contract, the creditor may still sue the original surety under the first agreement, alleging that it had never been formally cancelled. Invoking the equitable powers of the court, however, the creditor’s claim would be denied, because, as long as the debt of the creditor is paid, the mere possession of the original note would not warrant the exaction of a second payment of the same debt. See 74 Am.Jur.2d Suretyship §§ 82-85 (1974); see also Janes v. Benson, 155 Pa. 489, 26 A. 752 (1893).

There seems to be little difference between the above-stated scenario and the present case, except that the first is a contract for suretyship and the second of indemnity. We find, therefore, that the trial court did not abuse its discretion or commit an error of law in granting Southwestern’s motion for JNOV. Timbrook, supra.

Judgment affirmed.

      . The language employed in the Proof of Loss Statement for the dwelling was substantially similar, but not identical, to that contained in the Proof of Loss Statement for the Scotts’ personal property. These minor differences are not dispositive to this appeal.

      . Mrs. Scott consented to the recording of this telephone conversation. The tape recording was played for the jury and was admitted into evidence.


author: WIEAND, Judge:

text:
    647 A.2d 595
    Rose Marie WILK v. Shirley KOCHARA, Individually and d/b/a Don Wilk Flowers and Designs by Shirley, Appellant, v. PENN NATIONAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed July 19, 1994.
    Reargument Denied Sept. 23, 1994.

      Caram J. Abood, Johnstown, for appellant.
    Thomas J. Dempsey, Jr., Pittsburgh, for Wilk, appellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.
   WIEAND, Judge:

While a petition to open or strike a confessed judgment was pending, the judgment creditor was successful in attaching funds in the hands of a garnishee. When the judgment creditor thereafter satisfied the judgment, the trial court dismissed the petition to open or strike the judgment as being moot. The judgment debtor appealed. After review, we reverse.

Rose Marie Wilk was lessor and Shirley Kochara was lessee under the terms of a written lease of a commercial property. When Kochara allegedly fell behind in the payment of rent, Wilk, on February 16, 1993, caused judgment to be confessed against Kochara for five thousand ($5,000) dollars, plus costs, pursuant to a warrant of attorney contained in the lease. On April 8, 1993, Wilk caused a writ of attachment to be issued and served upon Penn National Insurance Company. In answers to interrogatories the garnishee admitted that it had in its possession certain proceeds which were payable to Kochara by virtue of an insurance settlement.

On April 21, 1993, Kochara filed a petition to open or strike the judgment. Penn National thereafter forwarded the insurance proceeds to Wilk’s lawyer, with a letter which suggested that the money was being sent pursuant to an agreement that the proceeds would be held in escrow pending the outcome of Kochara’s petition to open or strike the judgment. Denying the existence of an agreement, Wilk’s counsel proceeded to distribute the funds and to satisfy the judgment against Kochara. Wilk then requested the court to dismiss Kochara’s petition to strike/open the judgment on grounds that it was moot.

Generally, the payment of a judgment and entry of satisfaction discharges the judgment. 20 P.L.E. Judgment § 471. Because the law contemplates an end to litigation, further proceedings may not commence upon a judgment which has been satisfied. Lance v. Mann, 360 Pa. 26, 29, 60 A.2d 35, 36 (1948). Where a judgment has been satisfied, there no longer exists an obligation which may be opened or stricken, and all questions of liability and damages are deemed extinguished. Sanctis v. Checco, 195 Pa.Super. 193, 194, 171 A.2d 542, 544 (1961), affirming, 24 Pa.D. & C.2d 121 (Allegheny 1960). See also: Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa.Super. 67, 77-78, 602 A.2d 897, 902 (1992), allocatur denied, 533 Pa. 601, 617 A.2d 1275 (1993); Holzapfel v. Mahony, 367 Pa.Super. 93, 96, 532 A.2d 469, 471 (1987); Continental Bank v. Frank, 343 Pa.Super. 477, 483, 495 A.2d 565, 567 (1985); Kalman v. Muzikar, 304 Pa.Super. 503, 505, 450 A.2d 1025, 1026 (1982). Satisfaction of a judgment, however, may be stricken where it has been obtained through fraud or mistake. Neustein v. Ins. Placement Facility of Pa., 271 Pa.Super. 126, 129, 412 A.2d 608, 609 (1979). See also: Winfree v. Philadelphia Elec. Co., 520 Pa. 392, 395, 554 A.2d 485, 486 (1989).

In Guthrie v. Reid, 107 Pa. 251 (1884), the Supreme Court held that where the amount owed by the debtor was in dispute, the creditor could not appropriate the debtor’s collateral, have the judgment marked as satisfied and then preclude the debtor from challenging the judgment by means of a petition to open. The Court said:

The satisfaction of the judgment after notice that the amount was disputed was improper, and if not corrected in some form, was calculated to work injustice to [the defendant], for the reason that when he should attempt to call the bank to account for the proper application of his collateral, the bank could say to him, The judgment which we satisfied is conclusive upon you as to the amount due thereon.

Id. at 257. Although Guthrie was decided many years ago, its reasoning is still sound.

In the instant case, Rochara has alleged that no moneys were due to Wilk and that the satisfaction of the judgment was obtained by fraud. These averments are sufficient to require a hearing. The petition to open the judgment, under these circumstances, is not moot. To hold otherwise would be to permit a judgment creditor to seize property of a debtor by unorthodox means and thereby prevent the alleged debtor from challenging either the judgment or the means of obtaining satisfaction thereof. Guthrie teaches that this would be improper.

Reversed and remanded for proceedings consistent with the foregoing opinion.