author: JOHNSON, Judge: McEWEN, Judge,

text:
    515 A.2d 564
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas DeBLASE, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1986.
    Filed Sept. 22, 1986.

      Mary A. Killinger, Assistant District Attorney, Norris-town, for Com., appellant.
    Henry T. Crocker, Pottstown, for appellee.
    Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

We are asked to decide whether the Pennsylvania Wiretap Act permits an exception for the unauthorized interception of telephone conversations where the person who made the tape recordings was subsequently murdered. We are also asked to determine whether the sixth amendment right to counsel attaches to the pre-arrest use of a consensual body wire on the particular facts presented in this case. We find no justification for an exception to the Wiretap Act and affirm the suppression of the taped telephone conversations. We find that the sixth amendment right to counsel did not attach since adversary judicial criminal proceedings had not yet been initiated. Accordingly, we reverse that portion of the lower court order which suppressed the tape recordings made as a result of the body wire.

This case is an appeal from a suppression order. Testimony presented at a pre-trial hearing established the following facts. Millionaire real-estate developer David Swine-hart was murdered in January of 1982. Prior to his death he installed a line-activated tape recorder on his estranged wife’s private telephone line in order to obtain evidence for use in a divorce proceeding. The tape recordings document an illicit tryst between Mrs. Swinehart and Swinehart’s 23 year old nephew. The tapes were obtained from three sources: Swinehart’s car, his lawyer and from the recorder itself by the police after the killing based on information from Swinehart’s girlfriend.

Swinehart’s nephew, Thomas DeBlase, is the appellee in this case. He was questioned at Borough Hall by police following the murder and advised of his Miranda rights. He denied involvement in or knowledge of the murder but admitted to his romantic liaison with Mrs. Swinehart. Appellee expressed the desire to consult with counsel before further questioning and was released. He was questioned on á second occasion, following Miranda warnings, and he denied involvement in the murder. Following this, and before the end of January 1982, appellee took a polygraph test. In April of 1982 appellee appeared with counsel before an investigating grand jury. Appellee was not indicted or arrested at that time.

From November 1983 to March 1984 appellee’s brother Jeffrey DeBlase cooperated with the Commonwealth and wore a body wire when he talked with appellee. A number of the conversations between Jeffrey and Thomas DeBlase were recorded. Appellee was not arrested at that time.

Rather, the Commonwealth did not move against appellee until May of 1985. Additional information was supplied by one Arthur Hall, who asserted that he had been present at the murder. Based on this information, appellee was arrested and charged on May 11, 1985 with the murder of his uncle, David Swinehart.

Appellee moved to suppress the tapes of the conversations between himself and Mrs. Swinehart, as well as the conversations taped by the police when appellee’s brother was wearing a body wire. The lower court received testimony and heard argument. The court entered an order granting the suppression of the contents of tape recordings of Mrs. Swinehart’s conversations with appellee, as well as the contents of the tape recordings made as a result of the body wire worn by Jeffrey DeBlase. The court denied suppression of the statements appellee made to police.

The Commonwealth appeals from the order granting the suppression and advances two arguments: 1) that reason and justice require that, within the narrow limits of the facts presented in the case, statements obtained as the result of the wiretap of Mrs. Swinehart’s phone should be admissible as evidence during the prosecution of a first degree murder case, and 2) that since defendant had not been arrested and no critical stage of the prosecution was involved, the right to counsel did not attach. Accordingly, the Commonwealth believes that the statements obtained as a result of the consensual body wire should be admissible against the defendant at every stage of the trial.

We find no merit in the Commonwealth’s first argument regarding the taped conversations of Mrs. Swinehart and appellee. The Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq., clearly prohibits the kind of activity in which Swinehart was engaged. The Act provides that a person is guilty of a third degree felony if he willfully intercepts any wire or oral communication. 18 Pa.C.S. § 5703. Wire communications include telephone conversations, such as the one here at issue. 18 Pa.C.S. § 5702. The person whose communication is intercepted in violation of the Act has a civil cause of action against the person who intercepted the communication. 18 Pa.C.S. § 5725. At any trial, hearing or adversary proceeding the person whose conversation is intercepted may move to suppress the contents of the intercepted communication. 18 Pa.C.S. § 5721.

The Commonwealth concedes that Swinehart “may” have been subject to criminal proceedings and a civil action for damages for recording the conversations. The Commonwealth asks this Court to create a public policy exception to the Act because the person who violated the Act was murdered. Such an exception is not provided for in the express language of the Act nor do we find that such an exception would be in keeping with the overall structure and provisions of the Act. The communications were intercepted in violation of the Act and were properly suppressed by the trial court.

The Commonwealth’s second argument is that appellee was not entitled to suppression due to a violation of his right to counsel. The Commonwealth argues that appellee’s right to counsel did not attach when the body wire was used since appellee had not yet been arrested and this was not a critical stage in the prosecution. We agree with the Commonwealth and, accordingly, find this evidence to be admissible.

We note that the conversations obtained through the use of the body wire are not in violation of the Wiretap Act. The police followed the procedures established in section 5704 for the interception. 18 Pa.C.S. § 5704. One of the parties to the communication, Jeffrey DeBlase, consented to the interception in advance. The First Assistant District Attorney of Montgomery County was officially designated by the District Attorney, and reviewed the police request for the body wire and the consent of Jeffrey DeBlase. The Assistant District Attorney determined that the consent was freely and voluntarily given and issued prior approval for the interception.

We now address the constitutional issue raised with respect to the body wire. The right to the assistance of counsel is guaranteed under the sixth and fourteenth amendments to the United States Constitution. The United States Supreme Court explained the rationale for this guarantee in Maine v. Moulton, 474 U.S. —, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). The Court stated:

The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice. Embodying “a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself,” Johnson v. Zerbst, 304 U.S. 458, 462-463, 82 L.Ed. 1461, 58 S.Ct. 1019, 146 ALR 357 (1938), the right to counsel safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding.

Id., 474 U.S. at —, 106 S.Ct. at 483-84, 88 L.Ed.2d at 491 (footnote omitted).

Important to the issue before this Court is establishing when the sixth amendment right attaches. In Maine v. Moulton, the Court stated that right is not limited only to the participation of counsel at trial:

Recognizing that the right to the assistance of counsel is shaped by the need for the assistance of counsel, we have found that the right attaches at earlier, “critical” stages in the criminal justice process “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” United States v. Wade, 388 U.S. 218, 224, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967) (quoted in United States v. Gouveia, 467 U.S. 180, 189, 81 L.Ed.2d 146, 104 S.Ct. 2292 (1984)).

Id. 474 U.S. at —, 106 S.Ct. at 484, 88 L.Ed.2d at 492.

Indeed, in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) the Court stated that, “it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Id., 406 U.S. at 688, 92 S.Ct. at 1881, 32 L.Ed.2d at 417 (citations omitted). The Court explained the reason for this:

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.

Id., 406 U.S. at 689-90, 92 S.Ct. at 1882, 32 L.Ed.2d at 417-18 (footnote omitted) (citations omitted). The initiation of adversary judicial criminal proceedings can be “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id., 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417.

In Michigan v. Jackson, 475 U.S. —, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) the Court stressed the impact which the attachment of the sixth amendment right has upon the propriety of police investigatory procedures. The court stated:

Indeed, after a formal accusation has been made—and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment—the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, see United States v. Henry, 447 U.S. 264, 65 L.Ed.2d 115, 100 S.Ct. 2183 (1980), or the electronic surveillance of conversations with third parties, see Maine v. Moulton, supra; Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964), may violate the defendant’s Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment.

Id., 475 U.S. at —, 106 S.Ct. at 1409, 89 L.Ed.2d at 639-40 (footnote omitted). Thus, investigatory methods which would yield constitutionally inadmissible evidence when used after the sixth amendment right to counsel has attached, may be used before the right attaches.

This principle is clearly applied by the Court in Maine v. Moulton, supra. In that case the defendant Moulton and his co-defendant Colson were indicted on various counts of theft. Colson confessed to police without telling Moulton. Colson agreed to testify against Moulton and to cooperate in the prosecution of Moulton if the authorities would bring no further charges against Colson. One of the ways in which Colson assisted the police was to wear a body wire transmitter to a pre-arranged meeting with Moulton. The police sought to record conversation concerning threats to witnesses and were aware that the theft charges would be discussed. The police in fact obtained inculpatory statements by Moulton and these were admitted into evidence against Moulton at trial. The Court stated that “By concealing the fact that Colson was an agent for the State, the police denied Moulton the opportunity to consult with counsel and thus denied him the assistance of counsel guaranteed by the Sixth Amendment.” Maine v. Moulton, 474 U.S. at —, 106 S.Ct. at 488, 88 L.Ed.2d at 497 (footnote omitted). A key factor in the Court’s analysis is that formal charges had already been filed against Moulton. The court distinguished between incriminating statements concerning charges which had already been filed against Moulton and statements concerning charges which had not yet been filed. The Court explained:

incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.

Id., 474 U.S. at —, 106 S.Ct. at 489-90, 88 L.Ed.2d at 498-99.

In Commonwealth v. Brocco, 263 Pa.Super. 51, 396 A.2d 1371 (1979) this Court dealt with the sixth amendment right to counsel. Broceo was convicted of a conspiracy involving the theft and forgery of paychecks in the Pennsylvania Department of Transportation. Prior to the conviction and before Broceo was even a prime suspect or was arrested, a co-worker, Criniti, was among those employees under investigation for involvement in the affair. Criniti contacted the police in order to establish his lack of involvement. He allowed the police to fit him with a listening device which he wore to Brocco’s office. Broceo made incriminating statements, and a tape of these statements was played at Brocco’s trial. This Court found that the admission of the taped statements was not a violation of the sixth amendment. This Court followed the United States Supreme Court pronouncement that the sixth amendment right to counsel attaches only at “critical stages”. Broceo had not yet been arrested, let alone arraigned. The taped statements were made during the pre-arrest investigatory process, which was not a critical stage. While Broceo was represented by counsel when he testified before the grand jury, Broceo was not before the grand jury when he spoke with Criniti. Thus, we found no violation of the sixth amendment.

Here, appellee had been called before a grand jury and was represented by counsel at that time. The inculpatory statements made to appellee’s brother were made after appellee’s appearance at the grand jury and prior to his arrest. When the conversations were taped appellee was not under indictment. The adversary judicial proceedings against appellee had not been formally commenced, nor were they commenced until well over one year later. The contents of the tape recording made as a result of body wires worn by Jeffrey DeBlase after the Swinehart murder and prior to either brother’s arrest were not obtained in violation of appellee’s sixth amendment right to counsel. Accordingly, we reverse the portion of the October 15, 1985 order which suppressed these tapes.

We are in agreement with our esteemed colleague, Judge McEwen, that Pennsylvania may recognize a more expansive right to counsel under its own constitution than is provided under the federal constitution. However, appellee has raised no issue of state constitutional protection. The basis upon which appellee requested suppression in his original and supplemental motions to suppress, was the federal constitution. He has not argued that his state constitutional rights have been violated either in the memorandum he submitted to the lower court or in his brief to this Court. Accordingly, we do not see an issue of state constitutional rights as being properly before us.

No issue has been raised as to the portion of the October 15, 1985 order which denies suppression of appellee’s statements to police. Accordingly, that portion of the order is affirmed.

Order reversed in part, affirmed in part. Case remanded.

McEWEN, J., files a concurring and dissenting opinion.

McEWEN, Judge,

concurring and dissenting:

I agree with my eminent colleagues of the majority that the recorded conversations between appellee and Mrs. Swinehart must be suppressed. And, to be sure, the majority opinion provides a quite perceptive analysis of the principles that lead them to conclude that the tapes obtained by recording the conversations between appellee and his brother are admissible. However, I am of a mind that the learned Judge Horace A. Davenport correctly found that the conduct of the police required that the recorded conversations between appellee and his brother should be suppressed.

There was at least a faint shadow upon appellee at the time of his first interview by the police soon after the murder, since the police questioned him only after they had advised him of his Miranda rights. On that occasion, after he denied any knowledge of the murder, he exercised his right to consult with counsel before any further interrogation and was, as a result, released. The shadow continued to hover, since, very shortly thereafter at the time of his second interview by police, Miranda warnings were again provided. In fact, the shadow loomed larger as, a few weeks after the crime, the police administered a polygraph test to him. Several months later, in April of 1982, appellant received a “target letter”, summoning him before the grand jury and advising him again of his right to counsel. Appellant did appear before the investigating grand jury and did so represented by counsel.

Almost two years after the crime, the brother of appellee agreed to become an informer for the police and to wear electronic eavesdropping equipment to enable the police to record conversations between the brothers, in the hope, of course, that the informer brother would be able to elicit incriminating statements from the suspect brother. They achieved their objective since appellant’s brother did, in fact, utilize the electronic device to secretly record incriminating conversations with appellant between November of 1983 and March of 1984.

As the majority quite correctly states, federal constitutional law provides that the Sixth Amendment right to assistance of counsel attaches not only at trial but at ‘critical stages’ of the prosecution which occur before trial. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

The arraignment signals ‘the initiation of adversary judicial proceedings’ and thus the attachment of the Sixth Amendment ...; thereafter, [law enforcement] efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.

Michigan v. Jackson, — U.S. —, —, 106 S.Ct. 1404, 1407-1408, 89 L.Ed.2d 631, 638, (1986).

However, the fact that the United States Supreme Court has refused to recognize a Sixth Amendment right to counsel in any pre-indictment situation does not foreclose this Court from finding that such a right exists under our state constitution in certain situations or under certain circumstances.

It is well settled that a state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts. PruneYard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). See also Commonwealth v. Ware, 405 U.S. 987, 92 S.Ct 1254, 31 L.Ed.2d 453, subsequently vacated and denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972) (“it appearing that the judgment below rests upon an adequate state ground”). See generally Brennan, State Constitutional & The Protection of Individual Rights, 90 Harv.L.Rev. 489, 503 (1977). This Court has on numerous occasions recognized the Pennsylvania Constitution to be an alternative and independent source of individual rights. See e.g. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Knowles, 459 Pa. 70, 73 n. 3, 327 A.2d 19, 20 n. 3 (1974); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Goldman Theatres Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961).

Commonwealth v. Tate, 495 Pa. 158, 167-171, 432 A.2d 1382, 1387-1388 (1981). See also: Commonwealth v. Sell, 504 Pa. 46, 63-65, 470 A.2d 457, 467 (1983); Commonwealth v. Bussey, 486 Pa. 221, 230-31, 404 A.2d 1309, 1314 (1979); Commonwealth v. DeJohn, 486 Pa. 32, 44-45, 403 A.2d 1283, 1289 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); In Re Gartley, 341 Pa.Super. 350, 372-73, 491 A.2d 851, 863 (1985); Commonwealth v. Heck, 341 Pa.Super. 183, 216-17, 491 A.2d 212, 229 (1985); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 499-500, 485 A.2d 1, 4 (1984); Commonwealth v. Beauford, 327 Pa.Super. 253, 262-65, 475 A.2d 783, 788-789 (1984); Commonwealth v. Walsh, 314 Pa.Super. 65, 73-75, 460 A.2d 767, 771 (1983).

Thus, whether the United States Supreme Court would conclude that the conduct of the police in the instant case did not violate any right guaranteed to appellant by the United States Constitution does not preclude a finding by this Court or by the Pennsylvania Supreme Court that such conduct violated rights guaranteed by the Pennsylvania State Constitution.

As the majority has observed, this Court in Commonwealth v. Brocco, 263 Pa.Super. 51, 68, 396 A.2d 1371, 1379 (1979), reaffirmed the position that Pennsylvania does not recognize the pre-arrest investigatory process as a ‘critical stage’. The Broceo Court concluded that the appellant’s Sixth Amendment rights had not been violated when his conversation was secretly taped by a co-worker. However, Broceo was not a prime suspect in the investigation and his co-worker’s purpose in acting as an agent of the police in eliciting admissions from Broceo was to obtain evidence to exculpate himself, not to incriminate Broceo. Id., 263 Pa. Superior Ct. at 68, 396 A.2d at 1379. The Broceo Court reasoned that if it were “to adopt appellant’s contention that the right to counsel attaches whenever a party retains counsel to render advice regarding potential legal problems, the use of informants or the means of investigation would be significantly curtailed. In essence, it would permit a suspect to hide behind a Sixth Amendment cloak by mere payment of a token retainer to a legal adviser.” Commonwealth v. Brocco, supra, 263 Pa.Superior Ct. at 66-70, 396 A.2d at 1379-1380.

The facts of the instant case and the conduct engaged in by law enforcement officials clearly distinguish this case from the situation in Broceo. Nor does this case present any of the dangers which the Court foresaw there.

I would find that the introduction of the secretly recorded admissions elicited from appellant by his brother at the instigation of police, after appellant (1) had invoked his right not to be questioned in the absence of counsel, (2) had been targeted as the prime suspect in the investigation, and (3) had appeared with counsel before the investigating grand jury, violated rights guaranteed to appellant by the Pennsylvania Constitution. I, therefore, respectfully, dissent.

      . Wiretapping and Electronic Surveillance Control Act. Act of October 4, 1978, P.L. 831, No. 164; 18 Pa.C.S. § 5701 et seq. (Pennsylvania Wiretap Act).

       incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    515 A.2d 571
    Carl A. VENO and Carl T. Davies, Appellants, v. Charles P. MEREDITH, III, Ella C. Meredith, and The Free Press, Appellees.
    Superior Court of Pennsylvania.
    Argued June 17, 1986.
    Filed Sept. 22, 1986.

      John M. Yarema, Emmaus, for appellants.
    Michael S. Goodwin, Doylestown, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   CAVANAUGH, Judge:

On December 28, 1979, Carl A. Veno and Carl T. Davies, appellants, were discharged from their employment with a Quakertown, Pennsylvania newspaper, The Free Press. Davies had been a reporter with the newspaper and Veno its managing editor. On December 28, 1979, an article authored by Davies appeared on the front page of the paper which portrayed a Bucks County judge in an unfavorable light.

The article was titled, “Bucks Judge’s Business Dealings Questioned.” It stated that the Judge “may be vulnerable to violations of conflict of interest prohibitions in the state Code of Judicial Conduct as a result of his business dealings” with a certain “millionaire sportsman and developer.” The article further stated that the Judge is President of a residential development corporation and that his business associate in this project, (the aforementioned “millionaire sportsman and developer”), often “wind[s] up in court” as either a plaintiff or defendant in civil suits. And, that the business associate recently had been involved in a case “initially scheduled to be heard before” the Judge. This, according to the article, “nearly placed the judge in apparent conflict with the state Code of Judicial Conduct.” The article continued:

Canon 5 of the code requires that ‘a judge should relegate his extra-judicial activities to minimize the risk of conflict with his judicial duties.’
According to the canon, ‘a judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.’

The article states that the judge was spared from having to decide whether to disqualify himself because of a “legal maneuver.” And, “[i]f his business relationship with [the developer] continues, [the judge] would appear to be more apt to violate a provision of Canon 5 of the Code of Judicial Conduct prohibiting a judge from financial dealings that would involve him in ' ... frequent transactions with lawyers or persons likely to come before the court on which he serves.’ ”

Reacting to the article, the newspaper’s owner, Charles M. Meredith, III told the editor, Veno, that the articles were unfair to the judge and ordered him to dismiss the author, Davies. When Veno refused, Mr. Meredith himself discharged not only Davies but also Veno.

On December 31, 1979, the Free Press published an editorial by Meredith which apologized to the judge. Under the heading “Our Opinion”, this editorial states:

I regret the tone of the articles which appeared in Friday’s edition of The Free Press concerning [The Bucks County Judge]. The articles implied that [The Judge] would have a possible conflict of interest if he presided over a case involving his own business associate.
The fact is that [The Judge] did not preside in an appeal involving his business associate. I believe that [The Judge] is an honest man. It is impossible that he would ever put himself in the position of a conflict of interest.
The Friday articles were not thoroughly researched and contained unsupported and indirect charges of conflict of interest. As a result, the writer and editor of this newspaper no longer are affiliated with the Free Press.
My concern in publishing The Free Press transcends producing the best local news coverage. Above that, lie the most important journalistic rules: Fairness and accuracy.
We were unfair in our reporting of the ... stories [about the Judge] and I apologize publicly to the Judge and to our readers.
The challenge for us remains unchanged. Get the story straight, and be fair. If there is something wrong in our communities, this newspaper will continue to tell the people what the problems are. But the proper research must be made, and both sides of an issue must be fairly presented.
Our job is to publish reports which are accurate and fair. The Free Press’ new Editor Gary Andrews and I are committed to this precept.
Charles Meredith Publisher

On January 2, 1980, the new editor of The Free Press wrote the following published editorial:

OUR OPINION
New editor of Free Press
Two things a newspaper must always strive to maintain are its high standards of truth and a keen eye for fairness. As the new editor of the Free Press, I can assure the public that those two standards will be our primary concerns.
If there is one aspect of its existence that a newspaper must maintain to do its job effectively, it is the public’s trust. Without the public’s belief that the newspaper is presenting a fair and unbiased look at the truth, the entire concept of a “free Press” dwindles. No longer could we be called a “watchdog for the public” if we ourselves did not adhere to the highest standards of ethical conduct.
There will be no vendettas, no witchhunts where none are indicated. The Free Press will be known as possessing the highest standards of fairness. It is important that the public be aware of this. When you see a story in this newspaper, you will know that it has met the tests of fairness and accuracy.
Lest the servants of government feel The Free Press will not keep a sharp eye on their doings, let them be forewarned. Wherever the public’s money or trust is involved, this newspaper will be diligent. Elected officials who betray the public trust should be routed out, and we will be continually on the alert for such individuals.

Veno and Davies filed a complaint against Charles M. Meredith, III, Ella C. Meredith, and the Free Press alleging that:

1) they were libeled by the aforementioned editorials published after their discharge; and,
2) their employment contracts were illegally terminated.

Appellees filed preliminary objections in the form of a demurrer. The Honorable Donald F. Wieand, specially presiding, entered an order sustaining the appellees’ preliminary objections to the appellants’ causes of action alleging defamation. Post-trial motions, filed to overturn the dismissal, were denied.

Thereafter, the case went to trial on the issues concerning the termination of employment. At the conclusion of appellants’ case-in-chief, the court granted a nonsuit in favor of appellees and against Veno. The case for Davies went to the jury and a verdict was returned in his favor. Veno filed post-trial motions to remove the nonsuit. These motions were denied, and this appeal followed. Davies’ discharge is not at issue in this appeal.

I.

Appellants first allege that they presented sufficient facts from which a jury could conclude that the editorials are capable of a defamatory meaning. We disagree.

“Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom____ Conclusions of law, however, are not admitted by a demurrer.” Cunningham v. Prudential Property & Cas. Ins., 340 Pa.Super. 130, 133, 489 A.2d 875, 877 (1985).

Appellants argue that the editorials constitute libel because they attacked their professional integrity and competence. We disagree.

“Initially ... it is the court’s function and not the jury’s to determine whether a given communication is capable of defamatory construction.” Vitteck v. Washington Broadcasting Co., 256 Pa.Super. 427, 431-32, 389 A.2d 1197, 1199 (1978). “If the court determines that the statement is capable of defamatory meaning, it is for the jury to determine whether it was so understood by the recipient.” Corabi v. Curtis Pub. Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971). Conversely, if a court determines that a statement is not capable of a defamatory meaning, then it is proper for the court to sustain a demurrer.

The trial court concluded that the two newspaper editorials in question were opinions. “Whether a particular statement constitutes fact or opinion is a question of law.” Braig v. Field Communications, 310 Pa.Super. 569, 579, 456 A.2d 1366, 1372 (1983).

In ascertaining whether a communication is capable of defamatory meaning, a special standard is applied when the communication is an opinion. A statement in the form of an opinion is actionable only if it “may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Beckman v. Dunn, 276 Pa.Super. 527, 535, 419 A.2d 583, 587 (1980) (emphasis supplied), citing Restatement (Second) Torts § 566 (1977). “A simple expression of opinion based on disclosed ... facts is not itself sufficient for an action of defamation ...” Braig, supra, 310 Pa.Super. at 581, 456 A.2d at 1373, citing Restatement (Second) Torts § 566 Comment c (1977).

The lower court properly sustained appellees’ demurrer. The editorial by Charles Meredith, publisher of The Free Press, was not capable of defamatory meaning. It merely stated an opinion that the tone of the article, which suggested impropriety on the Judge’s part, was not supported by the facts asserted in the article. The Davies article is a disclosed fact as it was published for public consumption in the same newspaper, just days before the editorial. Nowhere in his editorial did Mr. Meredith imply that he was privy to some additional facts, beyond the Davies article, which supported his opinion. The editorial specifically states that the Judge did not have a conflict of interest, and that it was improbable that an honest man such as the Judge would ever preside over a case involving his own business associate. It states that the tone of the Davies article suggested an impropriety that was unsubstantiated by the facts adduced therein. The statements in the editorial that the Davies article was “not thoroughly researched,” that the article “contained unsupported and indirect charges of a conflict of interest,” and that the newspaper was “unfair in [its] reporting,” are nothing more than opinions based on disclosed facts. The disclosed facts were that the Judge did not have a conflict of interest with his business associate because he had never presided over a case involving his business associate—a fact stated in the editorial itself; and, that the tone of the article implied that the Judge’s behavior smacked of impropriety—a fact discernible from reviewing the Davies article. In short, we are not aware of any undisclosed facts upon which the opinion was based; nor does the editorial imply the existence of such facts.

The January 2nd editorial by Gary Andrews, the new editor of the Free Press, also was incapable of defamatory meaning. It was nothing more than a statement of his goals and aspirations as new editor. One must strain to find even an implied reference to appellants. Appellants urge this court to read the editorial in conjunction with Mr. Meredith’s editorial to glean defamatory meaning. Specifically, appellants argue that a reader of Mr. Andrews’ editorial on January 2, who also had read Mr. Meredith’s editorial of three days before, would naturally conclude that when Mr. Andrews wrote, “there will be no vendettas, no witch-hunts where none are indicated,” he was referring to the Davies article. In so doing, appellants maintain, Mr. Andrews was calling into question their integrity and competence.

It is not clear that Mr. Andrews was making a specific reference to the Davies article. However, even if we were to assume that Mr. Andrews was making such a reference, he still could not be held liable for defamation as the sentence would be based on disclosed facts, namely that the tone of the Davies article suggested an impropriety which was unsubstantiated in that article. Andrews’ opinion cannot be considered defamatory, “no matter how unjustified and unreasonable this opinion may be or how derogatory it is.” Braig, supra, 310 Pa.Superior Ct. at 581, 456 A.2d at 1373, citing Restatement (Second) Torts § 566 Comment c (1977). This contention is therefore without merit.

II.

Turning to the next issue, once again we are asked to decide whether or not an employer had the right to discharge an employee.

In the area of employment relations, Pennsylvania still largely adheres to the “at-will” rule. A brief overview of the law in this area follows.

“Since at least 1891, Pennsylvania courts have recognized the rule that, absent a contract, employees may be discharged at any time, for any reason, for no reason at all.____ In recent years, courts have become increasingly willing to afford the discharged employee relief based on ever-widening theories grounded in contract and also on causes of action sounding in tort.” Darlington v. General Electric, 350 Pa.Super. 183, 190-91, 504 A.2d 306, 309-10 (1986).

Taking a nationwide view of the law in this area, it is apparent that what once was the corpus juris of employment relations has lately become an amorphous mass of confusion replete with holdings that defy reconcilation from one jurisdiction to the next. The at-will presumptiQn, the citadel that once governed the field with such predictability, has been eroded of late by piecemeal attacks on both the contract and tort fronts and the entire field seems precariously perched on the brink of change.

Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 208, 511 A.2d 830, 834 (1986).

“Pennsylvania has thus far escaped the widescale turbulence so common to the field and still clings to the at-will presumption.” Id.

The essence of the employment at-will presumption is that the decision to discharge an employee is best left to the managerial prerogative and generally will not be reviewed in a judicial forum. The other side of the rule is that an employee may resign at any time, for any reason, or for no reason at all. Of course, a discharge may be subject to review in a judicial forum if the employer and employee so agree.

The most elementary way that the parties can overcome the at-will presumption is by express contract. For example, a contract may be made for a definite term, or it may forbid discharge in the absence of just cause or without first utilizing an internal dispute resolution mechanism. The presumption may also be overcome by implied contract. That is, all of the surrounding circumstances of the hiring may indicate that the parties did not intend the employment to be “at-will”.

Another way that the at-will presumption may be overcome is where the employee gives the employer sufficient consideration in addition to the services for which he was hired. (See our discussion, infra.)

In short, if there is a dispute over the discharge of an employee, the threshold inquiry is whether or not the employment was at-will. If it was, then the discharge is not reviewable in a judicial forum. An exception is that the discharge will be reviewable in a judicial forum when there is sufficient evidence to suggest that it was against public policy or made with the specific intent to harm the employee. The latter two causes of action are classified as “wrongful discharge” torts in Pennsylvania. They are limited exceptions to the at-will presumption in this Commonwealth and only rarely occasion relief for the discharged employee. Darlington v. General Electric, supra.

This court has recently reaffirmed the at-will rule in the en banc case of Banas v. Matthews International Corporation, 348 Pa.Super. 464, 483-86, 502 A.2d 637, 647-48 (1985) (Judges Rowley, Beck and Johnson dissenting.) There, the employee was discharged after he used company property for personal use. The employee sued, alleging that the employee handbook issued by employer gave him permission to so use the company property in question. The employee alleged no public policy violation or specific intent to harm. The jury found for the employee, but on appeal, this court reversed. We wrote:

Given the jury’s verdict, we may take it as a fact that [the employer] did give permission. But that is irrelevant. Appellant’s handbook nowhere provided that an employee would be dismissed only if the facts warranted it. If the handbook had contained, if not expressly at least by clear implication, a just cause provision, then appellee’s claim might have merit.
.... Since here the handbook did not contain, expressly or by clear implication, any just cause provision appellee has shown nothing to take his case out of the settled employee-at-will rule. As an employee-at-will, he could be dismissed, as he was dismissed, because appellant believed that he had made the grave marker without permission and knowing that to make it was against long-settled company policy. Whether appellant’s belief was correct—i.e., in accordance with fact—has nothing to do with the case; that it has nothing to do with the case is of the essence of appellee’s status as an employee-at-will, who may be dismissed ‘for any or no reason.’

In Bañas, we determined that because the appellee was an at-will employee, it was simply not for a judicial trier-of-fact to decide whether the dismissal was “just”. The recent decisions in Darlington, supra, and Capital Cities, supra, involved similar contentions by appellant. In Darlington, the employee was discharged after he was accused of certain expense and phone account irregularities. Appellant’s position was that he did not knowingly and deliberately engage in the impermissible conduct he was charged with but was merely following company policy as he knew it. Nevertheless, judgment n.o.v. was entered against the employee and this court affirmed. Similarly, in Capital Cities, the employee was a newspaper copy editor who was discharged after she placed an ad in a rival newspaper. The employee testified that she “knew” there was no policy forbidding her action. The lower court nonetheless granted employer’s motion for summary judgment and this court affirmed.

A common principle runs throughout Bañas, Darlington, and Capital Cities. In all three, the employee was discharged for doing something he believed he was allowed to do. However, the courts in all three held that because there was no contract limiting the employer’s right to discharge at will, the reason for the discharge was not subject to review in a judicial forum. This non-reviewability (except for public policy violations and where there is specific intent to harm) is the sine qua non of the at-will relationship.

Moreover, because of its vitality, courts insist that to contract-away the at-will presumption, much clarity is required. The intention to overcome the presumption will not be unheedingly inferred. This court has recently held that the modification of an “at-will” relationship to one that can never be severed without “just cause” is such a substantial modification that a very clear statement of an intention to so modify is required. Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986). Absent this clarity, again, the relationship is “at-will” and a discharge is not reviewable in a judicial forum (absent sufficient evidence of “wrongful discharge”.)

Bañas, supra, Darlington, supra, and Capital Cities, supra, each noted the frequent criticisms levelled against the at-will rule. “The citadel of the at-will presumption has been eroded of late but it has not been toppled. Perhaps the time has come for employees to be given greater protection in this area” Darlington v. General Electric, 350 Pa.Super. 183, 190, 504 A.2d 306, 310 (1986). However, given our Supreme Court’s adherence to the rule, and the sweeping policy change that would accompany abrogation of it, the legislative process seems a more appropriate forum than the judiciary to decide the parameters of any major alterations in this area.

Turning to the instant case, appellant alleges that he presented sufficient evidence from which a jury could conclude that his employment was not terminable at-will and that therefore the court erred in granting a nonsuit. He alleges the following facts in support of this contention.

In April, 1973, when appellant and his wife purchased a home, his employer, Mr. Meredith co-signed both the disclosure statement and demand note in the sum of $5,400.00. Appellant further testified that Mr. Meredith said to him, “We’re both the same age, we’re both going to retire together, we’re not making a lot now, but we’ll make it later on. I want you to raise your children here. I want them to go to the school. I want to retire together.” Moreover, appellant turned down other job opportunities throughout his employment, including one from his former employer—an offer he made known to Mr. Meredith.

These facts could not support a recovery for appellant. The statements made by the employer are broad, vague, and do not suggest that the parties contemplated a definite duration for the employment. Such statements generally do not overcome the at-will presumption. Darlington v. General Electric, supra.

Moreover, the statements have an aspirational quality to them. The law does not attach binding significance to comments which merely evince an employer’s hope that the employee will remain in his employ until retirement. In the instant case, there was no express contract limiting the employer’s ability to discharge; nor was there a reasonable “understanding” to that effect.

Nor do we find the appellant’s refusal to take other jobs as significant to his contention. This forebearance was merely a manifestation of his preference to remain with the Free Press and in no way suggests he had the reasonable belief that he could never be fired except for “just cause.”

Appellant also contends that he gave his employer sufficient consideration additional to the services for which he was hired and therefore his employment was not at-will. The alleged consideration consists of the following: that appellant gave up a job with a newspaper and moved his family from Newark to Pennsylvania, and that throughout the years he refused other employment opportunities.

We stated in Darlington v. General Electric, 350 Pa.Super. at 201, 504 A.2d at 315:

[A] court will find ‘additional consideration’ when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform. ‘If the circumstances are such that a termination of the relation by one party will result in great hardship or loss to the other, as they must have known it would when they made the contract, this is a factor of great weight in inducing a holding that the parties agreed upon a specific period.’ 3 A. Corbin, Corbin on Contracts § 684 (1960).

When sufficient additional consideration is present, an employee should not be subject to discharge without just cause for a reasonable time. See Darlington v. General Electric, 350 Pa.Super. at 199-200, 504 A.2d at 314. The length of time during which it would be unreasonable to terminate, without just cause, an employee who has given additional consideration should be commensurate with the hardship the employee has endured or the benefit he has bestowed.

Appellant has not presented evidence tending to show that he gave his employer sufficient additional consideration. The detriments alleged are commensurate with those incurred by all manner of salaried professionals. We do not believe that appellant’s termination by the Free Press some eight years into his employment over a legitimate difference of opinion constitutes the kind of “great hardship or loss” that Professor Corbin referred to, supra. Virtually all terminations result in some hardship and loss to the employee. Instantly, we are not presented with facts to suggest that appellant brought to the employment so substantial a benefit, or incurred so detrimental a hardship in taking the job, that he should be accorded treatment any different from the typical at-will employee.

Appellant’s final contention is that the discharge violates “public policy”. He alleges that his discharge has somehow limited his right to free speech. We find this contention to be meritless.

“[T]he action for wrongful discharge is a narrow exception to the at-will rule____” Martin v. Capital Cities Media, Inc., 354 Pa.Super. at 222, 511 A.2d at 842. If a discharge constitutes an infringement of an important right or public duty, then a court must ask whether there is a separate and legitimate business reason to justify it.

The discharge in this case does not involve an infringement of a recognized public policy, and thus, we need not even inquire as to whether the employer had a legitimate business reason for it. Because appellant had no constitutional “right” to exercise free speech in the employer’s newspaper, we need delve no further into this allegation.

Order affirmed.

      . The at-will rule had become so firmly entrenched by 1915 that our Supreme Court quoted with approval Professor Labbat’s work on Master and Servant relations. “‘The preponderance of American authority in favor of the doctrine that an indefinite hiring is presumptively a hiring at will is so great that it is now scarcely open to criticism.’ ” Hogle v. DeLong Hook & Eye Co., 248 Pa. 471, 94 A. 190 (1915) (quoting 1 C. Labatt, Master and Servant § 160 at 519 (1913)). The rule has since been reaffirmed so often that it defies citation. The rationale justifying the employment at-will rule has been described as follows:
      "Professor Farnsworth, reporter to the Restatement (Second) of Contracts, has succinctly stated:
      ‘Conscious of the traditionally intimate nature of the relationship between employer and employee, courts have regularly found that [there is no language in the contract relevant to termination of the employee] despite absolute promises on both sides. Then by implication, they have almost invariably supplied a term allowing either party to terminate at will.’
      E.A. Farnsworth, Contracts 532 (1982) (emphasis added).
      "The at-will rule is a legal recognition of the “intimate nature” of the master-servant relationship of which Professor Farnsworth wrote, supra. In contrast to the employment setting, consider a sales relationship where a consumer purchases an appliance. It matters not at all whether the consumer and manufacturer get along personally. They usually never even meet. Whereas, it is often crucial to the employment relationship that the parties work well together and trust one another. Because so much depends on the subjective satisfaction of both parties in this area, the law is reluctant to require either to articulate objective "just cause” reasons when either decides to sever the relationship. The at-will rule is an articulation of this reluctance. Moreover, the employment relationship is often more complex than other types of contractual relationships. In the case of the sale of an appliance, both buyer and seller can readily articulate objective reasons they might have for dissatisfaction with the other. The seller will be justifiably dissatisfied if the buyer’s check bounces. The buyer will be justifiably unhappy if the product fails to perform to his reasonable expectations. In the employment setting, it may be impossible for either party to state with objective clarity the reasons for his dissatisfaction with the other. (The dissatisfaction may be borne of an accumulation of seemingly trivial things.) However, the law, via the at-will rule, recognizes that this dissatisfaction is as deserving of judicial relief as that in any other contractual setting."

        Martin v. Capital Cities Media, Inc., supra, 354 Pa.Superior Ct. at 213-214, 511 A.2d at 837.

      . See Geary v. United Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974), which reaffirmed the rule.

      . As one commentator has written:
      "That all employees are entitled to protections against wrongful termination should be taken as a given."
      However, he continued, "[c]ourts are neither equipped to handle the additional caseload nor sufficiently experienced in the area of employee terminations.... [c]ourts have no capacity to construct an administrative mechanism for daily enforcement and the average person has no ready access to their more formalized processes.” Moreover, “[c]ourts are likely to be long on generalization and short on detail when the situation requires outlining procedures and remedies.” K.H. Decker, At- Will Employment in Pennsylvania—A Proposal For Its Abolition And Statutory Regulation, 87 Dickinson L.Rev. 477, 493-94 (1983). See also, Darlington v. General Electric, supra. Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986). Much of the controversy over erosion of the at-will presumption concerns the extent that recovery should be permitted based on theories of public policy. As the leading treatise on employee dismissal law states:
      "These theories involve balancing judgments that arguably are better left to the legislature____ Moreover, employers face more uncertainty if an expansive version of implied-in-law covenant and tort liability for wrongful dismissal is accepted. The more recent public policy tort cases in Connecticut and New Hampshire suggest that virtually any imaginative employee can articulate a sufficient public policy to force an employer to trial over what, realistically, is a quarrel over practices legitimately within the employer’s sole control. It is widely believed that the prospect of litigation over personnel actions retards supervisory and rank-and-file productivity. Expansive doctrines of liability on good faith on public policy grounds can retard productivity growth."
      ”[I]f tort law permits employees to recover damages for dismissals resulting from disagreements with their employers over product design or accounting practices, the courts will be drawn very substantially into second-guessing basic business decisions made by employers. Courts are not well suited to make these decisions in a market economy.”
      H. Perritt, Employee Dismissal Law and Practice 23-24 (1984).
      We would add that abrogation of the at-will rule could have the socially deleterious effect of forcing employers to become overly cautious about who they hire, perhaps fearing to hire marginally qualified persons who would be more likely candidates for discharge at some point. The employer would naturally not care to hire someone who might later subject him to a lawsuit.

      . Appellant cites Lubrecht v. Laurel Stripping Co., 387 Pa. 393, 127 A.2d 687 (1956) in support of his contention. In that case, employee was hired in 1942 as general manager of all mining and stripping operations of the defendant company in respect of all contracts which the company then had or should thereafter acquire. In reliance on this, employee surrendered other job opportunities and abandoned his development of a coal property for his own account. When he was discharged 6 years into his employment, he sued. The lower court granted recovery and the supreme court affirmed.

        Lubrecht is distinguishable from the instant case. There, unlike the instant case, the contract itself afforded an inference that the employment was not to be terminable at-will. This, along with the additional consideration, was enough to overcome the at-will presumption. Appellant also cites Lucacher v. Kerson, 158 Pa.Super. 437, 45 A.2d 245 (1946), where an employee was promised “permanent" employment in his new job. In order to take the job, he moved from New York to Philadelphia. Three days into his employment, employee was abruptly discharged. The court allowed recovery and held the contract of “permanent” employment was capable of enforcement due largely to the additional consideration rendered by employee. It is doubtful that the court in Lucacher should have enforced the terms of the vague and broad contract which allowed for "permanent” employment. Rather, the court should have ignored the "promise” of permanent employment because of its breadth and vagueness and inferred a contract for a reasonable length of time based solely on the sufficient additional consideration. The facts in Lucacher are obviously different from those presented instantly. In Lucacher, after having moved from New York to Philadelphia in reliance on a promise of a new job, employee was discharged just three days into his employment. Here, in contrast, appellant had been employed for 8 years before he was dismissed. The “reasonable length of time” here has surely passed based on the consideration given.

      . Some speech is not protected by the constitution, and so no legitimate business reason is needed to justify a discharge occasioned by such speech.
      “Just as one does not have the right to shout fire in a crowded theater, so too, the theater owner surely has the right to discharge an usher if he is the one who shouted ‘fire’.”

        Martin v. Capital Cities Media, Inc., 354 Pa.Super. at 225, 511 A.2d at 843.
      Even if a discharge implicates some important public policy, the discharge may not be wrongful if there is a legitimate business reason to support it. In Reuther v. Fowler and Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978), we held that an employee could not be discharged for serving jury duty unless the employer has a separate, plausible, and legitimate business reason for the discharge. Some public policies are of greater importance than others. It follows that the more important the public policy implicated by the discharge, the harder will it be to assert a sufficient separate and legitimate business reason to justify the discharge.


author: McEWEN, Judge:

text:
    515 A.2d 581
    In re ESTATE OF Bernard R. HUGHES, Deceased. Appeal of A. James GRANITO, Exceptant.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Sept. 15, 1986.

      Fred C. Houston, Jr., Pittsburgh, for appellant.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   McEWEN, Judge:

This appeal has been taken from an order which (1) stayed the sale of real estate which was the subject of a written agreement between appellant and the administratrix of the instant estate, and (2) permitted the sale of the realty to a subsequent offeror. We affirm.

The personal representative of decedent had entered into an agreement with appellant for the sale of certain real estate for the sum of $42,000. Prior to settlement under that agreement, however, one of the heirs petitioned the court to restrain the administratrix from completion of the sale of the property under the agreement because (1) an offer had been made to purchase the property for $60,000, and (2) the administratrix had agreed that the real property would not be sold without the prior approval of all of the heirs.

Appellant contends that the court en banc erred in dismissing his exceptions to the order which granted the petition to restrain the sale of the realty. Appellant argues that the order was improper under Section 3360(a) of the Probate, Estates and Fiduciaries Code which provides:

§ 3360. Contracts, inadequacy of consideration or better offer; brokers’ commission
(a) Inadequacy of consideration or better offer.—When a personal representative shall make a contract not requiring approval of court, or when the court shall approve a contract of a personal representative requiring approval of the court, neither inadequacy of consideration, nor the receipt of an offer to deal on other terms shall, except as otherwise agreed by the parties, relieve the personal representative of the obligation to perform his contract or shall constitute ground for any court to set aside the contract, or to refuse to enforce it by specific performance or otherwise; Provided, That this subsection shall not affect or change the inherent right of the court to set aside a contract for fraud, accident or mistake. Nothing in this subsection shall affect the liability of a personal representative for surcharge on the ground of negligence or bad faith in making a contract.

20 Pa.C.S. § 3360(a). This statute is a reenactment of the Act of May 24, 1945, P.L. 944, 20 P.S. §§ 818, 819, which was specifically enacted to ensure the finality of fiduciaries’ contracts. Prior to the passage of that statute, the courts had consistently held that where a fiduciary “had agreed to sell trust property, he not only could, but must, repudiate the agreement at any time before final settlement and conveyance of the title if he received an offer for the property substantially higher than the price for which he had originally contracted to sell it____ It was not merely a power on the part of the fiduciary but a duty to dispose of trust property upon the most advantageous terms which it was possible to secure for the benefit of the estate, irrespective of the fact that a prior agreement which was being superseded might have been entered into by him in the utmost good faith and for what appeared at the time to be a fair and adequate consideration.” In Re Herbert’s Estate, 356 Pa. 107, 110, 51 A.2d 753, 755 (1947) (emphasis in original). “[I]t had been the law that until title had passed a fiduciary was bound to accept any higher offer even though a valid contract had been entered into in good faith.... The [Act of May 24, 1945, P.L. 944, 20 P.S. §§ 818, 819] altered this doctrine.” In Re Estate of Curtis, 437 Pa. 123, 128 n. 4, 261 A.2d 589, 592 n. 4 (1970).

Appellant correctly relates that the distinguished Chancellor Paul D. Zavarella ordered the sale restrained solely by reason of the wide divergence between the contract price and the market price at the time the contract was entered into, as evidenced by the offer of $60,000. The Chancellor did so in reliance upon Section 3355 of The Probate, Estates and Fiduciaries Code, which provides:

§ 3355. Restraint of sale
The court, on its own motion or upon application of any party in interest, in its discretion, may restrain a personal representative from making any sale under an authority not given by the governing instrument or from carrying out any contract of sale made by him under an authority not so given____

20 Pa.C.S. § 3355.

We are thus called upon to resolve the apparent conflict between Sections 3355 and 3360. Such a reconciliation is, of course, a matter of statutory construction, susceptible of determination by this Court. Tyler v. King, 344 Pa.Super. 78, 83, 496 A.2d 16, 19 (1985).

On the one hand, as we have noted, The Act of May 24, 1945, was enacted to relieve fiduciaries of their former duty to repudiate a contract whenever a subsequent, higher offer was made for the property prior to settlement. The former rule permitted no exceptions and caused fiduciaries’ contracts to be uncertain at best. See Larson Estate, 22 Fiduc.Rep. 112 (1972).

On the other hand, the statute here relied upon by the Chancellor and court en banc, 20 Pa.C.S. § 3355, was enacted by the legislature to protect the assets of decedents’ estates from the harsh effects of improvident sales of estate assets by fiduciaries. It permits the Orphans’ Court, upon motion of any party in interest or upon its own motion, to exercise its discretion and restrain a personal representative from making any sale under an authority not given by the decedent’s will. Section 3355 thus permits a court to restrain a sale under certain circumstances in order to protect the assets of an estate.

Appellant contends that the court is precluded from restraining a sale which is improvident by reason of the inadequacy of the consideration, and contends that surcharge of the fiduciary is the sole remedy available to heirs who suffer financial harm by reason of the negligence of the fiduciary. While the remedy of surcharge is undoubtedly available when a fiduciary performs his duties negligently, we cannot accept the argument that the legislature intended, by the enactment of the Act of May 24, 1945, to remove from the Orphans’ Court all power to restrain an improvident sale. While surcharge remains a viable remedy in such situations, it is not difficult to envision circumstances where surcharge would provide a hollow remedy. Rather, we believe that 20 Pa.C.S. § 3360 sets forth the general rule regarding subsequent offers without removing from the Orphans’ Court all power to restrain an improvident sale where, in the exercise of the court’s discretion, such action is necessary to protect an asset of the estate.

The subsequent offer for the realty in the instant ease was approximately forty-two percent greater than the original offer and will, the hearing court found, produce a net gain to the heirs of approximately $14,000. While the finality sought to be achieved by Section 3360 of the Code is a fundamental and desirable goal, that goal was not meant to inflict upon the heirs of an estate the harsh inequity of precluding an application to restrain the sale of an estate asset for a sum substantially less than fair market value. The Chancellor has the power, if not a duty, to thwart the decision of a fiduciary which is not simply imprudent but composes severe misjudgment, since finality is not to be secured at the price of injustice. The court here concluded that the sale was improvident by reason of the wide divergence between the two offers to purchase and restrained the sale to appellant. We are satisfied that the court did not abuse its discretion in so concluding.

Order affirmed.

      . Exceptions filed by appellant were dismissed after argument before the court en banc.

      . We note that the appellant argued in Estate of Gordon, 354 Pa.Super. 274, 511 A.2d 869 (1986), that the failure of the appellee to utilize Section 3355 to restrain a sale for $15,600 of realty with a fair market value of $100,000 precluded the appellee from seeking the remedy of surcharge. The issue was not addressed by the Court due to waiver.


author:
CAVANAUGH, Judge:
      KELLY, Judge,

text:
    515 A.2d 584
    Sylvia and Theodore OSTROFF, Ind. and as Administrators of the Estate of Marlene Ostroff, Deceased, Appellants, v. KEYSTONE INSURANCE COMPANY, Appellee (Two Cases).
    Superior Court of Pennsylvania.
    Argued May 12, 1986.
    Filed Sept. 24, 1986.

      Edwin P. Smith, Philadelphia, for appellants.

      Michael W. McCarrin, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   CAVANAUGH, Judge:

Sylvia and Theodore Ostroff, individually and as administrators of the estate of their daughter, Marlene, appeal from an order of the Philadelphia Court of Common Pleas which vacated an award of arbitrators. We affirm.

On January 23, 1978, Marlene Ostroff died from injuries suffered in an accident which occurred while she was a passenger in an automobile driven by an insured of Keystone Insurance Company. At the time of her death, Ms. Ostroff was living with her parents (appellants herein) who also carried insurance on their two automobiles with Keystone. Ms. Ostroff s estate collected $15,000.00 from Keystone pursuant to the policy carried by the driver of the car in which she sustained her fatal injuries.

Pursuant to their own policy with Keystone, Mr. and Mrs. Ostroff (appellants) filed an underinsured motorist claim. Appellants’ policy did not provide for under -insurance coverage, but did provide for un -insurance coverage. Keystone denied liability for underinsurance coverage and appellants petitioned the court to compel the appointment of an arbitrator. The lower court reluctantly ordered the matter to proceed to arbitration under the authority of Gordon v. Keystone Insurance Company, 277 Pa.Super. 198 n. 2, 419 A.2d 730 n. 2 (1980). In its opinion, the lower court wrote: “Although it is beyond the ken of this court how the term underinsured can be equated with the term uninsured except by the use of Orwellian logic wherein language means the opposite of what it says, this court is constrained to comply with ... Gordon v. Keystone Insurance Company, supra, where the court in a similar case ordered the matter to proceed to arbitration on the narrow basis that the policy terms were ambiguous despite the fact that the term uninsured was explicitly defined and used throughout the arbitration provision.” Lower court opinion at 2. Gordon was later expressly overruled in the en banc case of White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713 (1982). White held that when one recovers from another driver the minimum amount of liability insurance required by Pennsylvania law, he may not proceed to arbitration on the basis that his own policy provides for “uninsured” coverage. “Uninsured” is not the same as “underinsured”, and the question of whether they are the same should not proceed to arbitration.

Keystone appealed to this court from the order appointing an arbitrator. This court affirmed the lower court and stated: “[T]he question [to be resolved in arbitration] is whether [appellants] had underinsured coverage.” Ostroff v. Keystone Insurance Company, 301 Pa.Super. 73, 446 A.2d 1341 (1982). The matter was properly sent to arbitration because the insurance policy itself provides: “If we and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or of an underinsured motor vehicle ... either party may make a written demand for arbitration.” Thus, it was appropriate that the arbitrators decide whether the policy contained underinsured coverage.

The history of this case leading up to arbitration suggests that the appellants sought arbitration to decide the question of whether the policy itself provided for underinsurance coverage. Appellant’s original petition to appoint an arbitrator states: “[T]here is a question whether or not ... said policy provides for underinsured coverage.” Moreover, we have reviewed the brief which was submitted to this court by appellants when the matter was here on the appeal from the order to appoint an arbitrator. In that brief, appellants argued that the question of whether the policy provided underinsurance coverage is for arbitration. Nothing was suggested by the initial petition or aforementioned brief that appellants would seek recovery from Keystone on the basis of matters not found in the policy. More specifically, nothing was suggested that appellants would seek recovery-based on alleged statements made by Keystone’s policy representative which are separate from and nowhere found within the four corners of the insurance policy itself.

We further note that in their reply to Keystone’s new matter, appellants wrote that the question as to whether they had purchased underinsurance coverage was a question of law. This is in marked contrast to a cause of action grounded in fraud which is almost always a question of fact. M.H. Davis Estate Oil Co., Inc. v. Sure Way Oil Co., Inc., 266 Pa.Super. 64, 403 A.2d 95 (1979).

Thus, it seems clear that the theory upon which appellants urged this matter to be arbitrated was based on the language contained within the four corners of the written policy, not upon external fraud and misrepresentations allegedly made by Keystone’s representative. The question for the arbitrators was therefore a very narrow one: Did the insurance policy’s terms accord appellants underinsurance coverage?

The matter was then submitted to a panel of three arbitrators. After hearing all the testimony, two of the arbitrators rendered a decision in appellant’s favor and awarded them $319,653.00. One arbitrator dissented.

Appellants argue on appeal that the insurer fraudulently misrepresented that appellants purchased underinsured coverage in the full amount. In support of the argument, they refer to their supplemental trial brief, which purports to summarize certain of the evidence presented at the arbitration hearings. That brief, which appellants have reprinted in their reproduced record, asserts the following. Mrs. Ostroff testified that when she sought to purchase insurance from Keystone, she made it perfectly clear that she wanted the maximum amount of automobile coverage written by Keystone. It was contended that the Keystone representative told her that the policy he was providing did in fact contain this maximum amount of coverage. Mrs. Ostroff asserted that she periodically called the Keystone representative during the period 1976-1977 whenever she bought new cars and that each time requested full coverage. The Keystone representative assured her that the policies given to her contained all coverages available and were for the maximum amount of coverage being written by Keystone. Appellants allege that at the arbitration proceedings (wherein the testimony proferred was not transcribed) they totally relied on the argument that fraudulent misrepresentations of the Keystone salesman entitled them to underinsured motorist coverage up to $500,000.00.

In effect, the appellants, having won access to an arbitration hearing, astonishingly abandoned their previous position of arguing that the policy itself provided underinsurance coverage and fashioned a new argument wherein they presented evidence wholly unrelated to the actual terms of the policy. Keystone motioned the lower court to vacate the award. The lower court, (Judge White presiding) granted the motion, and this appeal followed.

The language in the policy is clear and unambiguous: appellants do not have underinsured coverage. Appellants paid no premiums for the allegedly $500,000.00 worth of underinsurance coverage they claim they are entitled to. We note that had their daughter been injured in an accident with an un insured motorist, their policy itself allowed just $15,000.00 coverage. Yet, appellants would have us reinstate a decision that would grant them something in excess of $304,000.00 more than this for a type of coverage which is not even listed on the declarations sheet.

In the opinion of the lower court, the Honorable Thomas A. White noted that “this court ... cannot find an underinsured motorist clause in the policy____” Appellants do not persuade us that the lower court erred. On the declarations form of the policy, the following appears: “Coverage is provided where a premium or limit of liability is shown for the coverage.” Beneath this, un insured motorist coverage is indicated, along with the premium charged, but under insured motorist coverage is nowhere mentioned.

Appellants point to certain evidence which, they contend is proof that the policy provides for underinsured coverage. First they point to a “liberalization clause” which states:

LIBERALIZATION CLAUSE
If after issuance of this policy and before its expiration, there be adopted and published for use by the company any forms, endorsements or rules by which this insurance could be extended or broadened without additional premium charge, by endorsement or substitution of form, then, as to loss occurring after the effective date of such adoption and publication, such extended or broadened insurance shall inure to the benefit of the insured hereunder as though such endorsement or substitution of form has been made.

Appellants’ brief further states: “[A] Keystone underwriter produced at the [arbitration] hearings the Keystone ‘Private Car Manual’ which the company provides to its sales representatives and by which their authority is determined. A portion of this ‘Private Car Manual’ ... clearly states that underinsured motorist coverage, at the ‘basic limits’, (which is nowhere defined in the documents supplied by Keystone for the applicable periods) is provided at no additional charge.” Therefore, according to appellants, this underinsured motorist coverage falls within the provision of the liberalization clause, and thus, they had underinsured coverage at the time of the accident.

We disagree. Keystone’s rebuttal to this argument is as follows:

“This rule [found in the liberalization clause] merely provides a mechanism to allow a Keystone insured to recover the basic limits which at the time of the plaintiff’s death here were $15,000.00 against any operator of a vehicle from a state not requiring $15,000.00 worth of coverage. In the instant case, appellants’ decedent recovered the “basic limits” of coverage required by the State Financial Responsibility Law. Clearly, this is not an underinsured situation as described in the private car manual____”

Appellants’ contention with respect to the liberalization clause does not allege that the clause itself provides $500,-000.00 worth of coverage. Appellants claim they are entitled to this inflated figure because the insurance agent fraudulently misrepresented that they had underinsurance coverage up to that amount.

Therefore, the question before us is whether the arbitrators only had authority to interpret the terms of the policy itself or whether they also had authority to consider external evidence of fraud and misrepresentation and, if finding such evidence to be credible, in effect enlarge the coverage provided by the terms of the policy. We believe that the arbitrators were limited to interpreting the terms of the policy and that consideration of tort theories to enlarge the coverage listed on the face of the policy was improper.

The arbitration clause in question states: “If we and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or of an underinsured motor vehicle ... either party may make a written demand for arbitration.” In the context of insurance disputes, the rule of construction contra proferentem holds that insurance contracts are to be construed most strictly against the drafter. However, this principle does not talismanically convert the above-quoted arbitration provision into a clause that allows for every dispute to be arbitrated. In Hade v. Nationwide Ins. Co., 349 Pa.Super. 541, 503 A.2d 980 (1986), we wrote:

“Our review of the relevant caselaw has unearthed no opinions in which a court of this Commonwealth was faced with the issue of whether misleading actions of an insurance company’s agent is an arbitrable issue when uninsured motorist benefits are sought. Certainly, we are not prepared to hold that such agent misconduct is patently arbitrable____ We cannot say with ‘positive assurance’ that an agreement to arbitrate disputes over coverage does not encompass the misleading acts of appellant’s agent.”

Id., 349 Pa.Superior Ct. at 548, 503 A.2d at 984.

The court in Hade permitted the arbitrators’ award of $300,000.00 to stand, despite a $60,000.00 policy limit.

The facts in the instant case distinguish it from Hade. The appellants here had continually represented that they were pursuing arbitration so that the terms of the policy could be interpreted. That is, they sought arbitration on the basis of the theory that coverage was provided within the four corners of the policy itself. Having so defined their reason for seeking arbitration, and having had both the Court of Common Pleas and this court validate this rationale as the purpose for going to arbitration, appellants will not now be heard to complain that we do not accept their attempts to switch arguments in midstream.

It is, of course, up to the court to determine the matters which are to be submitted to arbitration by looking to the arbitration agreement. Arbitrators have no power to determine the extent of their own jurisdiction or to decide what questions the parties have agreed to submit to arbitration. Women’s S.P.C.A. of PA. v. American Arb’n. Ass’n., 440 Pa. 34, 269 A.2d 888 (1970). In affirming the order to proceed to arbitration, this court expressly stated that the question to be resolved by arbitration is whether the appellants had underinsurance coverage. This is different from saying that the question is whether appellants believed they had such coverage or that they relied on alleged fraudulent misrepresentations made by the Keystone representative.

Having pursued a claim for interpretation of their insurance contract and having won access to the arbitration forum for that purpose, appellants ingenuously sought to pursue a tort theory which would, in effect, rewrite the contract rather than interpret it. False representations, if made, form the basis for an action in trespass with consequent damages. Shane v. Hoffman, 227 Pa.Super. 176, 324 A.2d 532 (1974). There is nothing in the history of this case nor the arbitration clause in question which would elevate the arbitrators to the status of a court of general jurisdiction.

In the instant case, the arbitrators extended their jurisdiction beyond that which the courts had authorized. They decided that their jurisdiction included the consideration of evidence beyond the four corners of the insurance policy. The arbitrators found this evidence to be credible even though we have no evidence that the theory of fraudulent misrepresentation was ever preferred prior to arbitration; even though the declaration sheet of the policy indicates that appellants had no underinsured coverage; and even though appellants had been insured by appellee for some twelve years, and presumably had policy declarations in their possession during that period of time. To permit arbitration of fraud and misrepresentation in the context of the facts of the instant case would, we fear, lend judicial approval to an abuse of the arbitration process.

Moreover, to reinstate the arbitrators’ award here would have the unwise effect of subordinating the actual terms of the policy to all manner of evidence of what the parties believed the policy’s terms were. In this respect, we find that the instant case is similar to McDonald v. Keystone Insurance Company, 313 Pa.Super. 404, 459 A.2d 1292 (1983).

In McDonald, appellant was a passenger in a car when the driver drove into a utility pole, seriously injuring appellant. Appellant recovered some of her damages via the driver’s insurance, but sought to recover the remainder under her own insurance policy. She contended that the driver was “uninsured” as to her remaining losses which driver’s insurance did not cover. When appellant applied for auto insurance, she alleged that she requested “full and complete” coverage. The insurance agent sold her a standard policy without underinsured coverage. “The agent never explained ... that, if appellant wished to purchase insurance with higher policy limits, she could also obtain a form of excess, or underinsured motorist, coverage that would pay the difference between her policy limits and those of a liable third party with lower policy limits.” Id., 313 Pa.Superior Ct. at 406-07, 459 A.2d at 1293.

This court, sitting en banc, wrote:

“Appellant contends also that [the insurance company] is estopped from denying her ... motorist coverage because [the company’s] agent failed to comply with her request for ‘full and complete’ coverage or to adequately explain how the minimum coverage she purchased would fall short of being full and complete____ Our courts ... recognize traditional estoppel theories in the insurance context, as when the insured justifiably relies, to her detriment, upon the representations or promises of the insurer or its agent____ [The company’s] not paying ‘uninsured’ motorist benefits when another motorist’s insurer has already paid amounts equal to appellant’s policy limits did not defeat [the insured’s] reasonable expectations about ‘uninsured’ motorist coverage. Nor is [the company] estopped from denying coverage by its agent’s failure to explain how appellant’s coverage was less than ‘full and complete.’ Appellant, although unschooled in insurance, could understand that, because of the policy limits, she would not receive more than $15,000 from her insurer for a given accident.”

Standard Venetian Blind Co. v. Am. Empire Ins., 503 Pa. 300, 469 A.2d 563 (1983) also presented issues similar to those now before us. There, the insured alleged that he had never read his insurance policy. “He stated that he had not read the policy because he had relied on the judgment of the ... Insurance Agency and because he had indicated ... that ‘we wanted full coverage on everything we have.’ ” The Supreme Court held that the insured was bound by the policy’s terms even though he did not in fact receive coverage for damage caused by the insured’s products.

The Supreme Court wrote: “Manifestly, to allow [the insured] to avoid application of the clear and unambiguous policy limitations in these circumstances would require us to rewrite the parties’ written contract.” Id., 503 Pa. at 306, 469 A.2d at 566. The court, expressly holding that Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974) “is not to be followed,” wrote:

We believe that the burden imposed by Hionis fails to accord proper significance to the written contract, which has historically been the true test of parties’ intentions. By focusing on what was and was not said at the time of contract formation rather than on the parties’ writing, Hionis makes the question of the scope of insurance coverage in any given case depend upon how a factfinder resolves questions of credibility. Such a process, apart from the obvious uncertainty of its results, unnecessarily delays the resolution of controversy, adding only unwanted costs to the cost of procuring insurance. Thus, Hionis, which would permit an insured to avoid the application of a clear and unambiguous limitation clause in an insurance contract, is not to be followed.

Id., 503 Pa. at 306, 469 A.2d at 567.

In the instant case, according to appellant, when appellant asked the insurance representative to provide her full coverage, he assured her that the policies contained such coverage. In McDonald, and Standard Venetian Blind Co., on the other hand, when the agent was asked to give full coverage, we are not told whether he affirmatively stated that such coverage was included. We find this distinction to be unimportant. The point of McDonald and Standard Venetian Blind Co., is that reliance on an agent to do what the insured tells him to do is unreasonable if it is contradicted by a clear and unambiguous clause in the policy itself. On the basis of these precedents, even if appellants’ factual allegations were true, the lower court’s decision should not be disturbed.

We would go further, however, and question whether the issue of fraud is arbitrable at all. Hade held that an agent’s misleading statements as to the extent of coverage are arbitrable because of the well recognized policy favoring arbitration of all coverage-related issues. As we have noted, supra, it would require a strained sort of sophistry to distinguish the instant case from McDonald and Standard Venetian Blind, supra. They recognize the fundamental notion that the insured has a responsibility to familiarize himself with the general terms of the policy he has purchased. If this were not so, then the terms of the policy would become merely one factor among other evidence in determining the coverage of an insured.

According to Hade, before a dispute may proceed to arbitration, it must be “rationally related” to coverage. Id., 349 Pa.Superior Ct. at 548, 503 A.2d at 984.

In the instant case, the arbitration clause in question states: “If we and a covered person disagree whether that person is legally entitled to recover damages ... either party may make a written demand for arbitration.” The clause obviously refers to persons who are in some way legitimately covered by the insurance policy’s terms. It surely could not be invoked by someone who is not so “covered” lest arbitration be available to anyone who claimed he believed he was insured because of the fraud of an insurance agent. The ruling in Hade, which was not mandated by any precedent, could lead to unexpected and unwanted consequences if carried to its extreme. The logical extension of that holding would permit one who was never in fact insured to invoke an arbitration clause and claim “arbitrability” on the ground that an insurance agent lied to him, thus making him believe he was “covered”. While such an allegation is surely “rationally related” to coverage, we do not believe that it is a proper means to invoke arbitration. Neither do we believe fraud to be a proper subject for arbitration once arbitration is legitimately invoked. We must not forget the purpose of such an arbitration clause. “Its purpose is to prevent an insurer, having issued an uninsured motorist indorsement, from being subjected to liability by virtue of judgments obtained in suits to which it is not a party.” 29 A.L.R.3d Uninsured Motorist Risk-Arbitration § 2 (1970). Arbitration, so constructed, is not intended to provide an open forum for the reception of alternative pleas of insurer responsibility. Merely because an allegation “rationally relates” to coverage does not automatically make it arbitrable if it would place undue burdens on the arbitration process which are wholly unrelated to the purposes for which such arbitration was designed. Separate tort theories alleged in contravention of the clear terms of an insurance policy are not proper subjects of arbitration. Hade is thus overruled to the extent that our holding today contravenes it.

Moreover, absent fraud, our Supreme Court has written that an insured may not avoid the application of a clear and unambiguous limitation clause in an insurance policy. Standard Venetian Blind Co. v. Am. Empire Ins., supra.

Appellants also argue that it was reversible error for the lower court to decide this matter because the parties failed to have the testimony at the arbitration hearings stenographically transcribed. The appellants allege that it was erroneous to reverse the arbitrators’ award when the lower court could not judge the sufficiency of the facts presented to the panel. In fact, appellants contend that the testimony concerned fraudulent misrepresentation. As we have indicated, this theory is not a sufficient basis on which to sustain the award in the instant case. (See our discussion, supra.)

Appellants also argue that Keystone cannot sustain its allegations against the restricted standards of the Arbitration Act of 1980. 42 Pa.C.S. § 7314 provides that the court shall vacate an arbitrator’s award upon application of a party where: (a)(l)(iii) arbitrators exceeded their powers. We believe that in considering evidence outside the policy, such as fraud, the arbitrators exceeded their authority. See our discussion, supra.

Appellants next argue that the arbitration clause of the policy was binding and that since no transcript of the testimony was ordered, the parties must have intended to waive the right of appeal. We will not so lightly dispense with appellant’s rights. While every inference of fact should be drawn in favor of the arbitration award, in light of our discussion supra, the similarity of the instant case with McDonald, supra, and Standard Venetian Blind, supra, the fact that the arbitrators’ award was so greatly inconsistent with the policy’s terms, and that the theory upon which the award was based was not in keeping with the theory previously advanced by the appellants, we will not presume that Keystone intended to waive its right to appeal.

Appellant placed much emphasis in this appeal on numerous alleged procedural errors on Keystone’s part. These alleged errors do not rise to that level of significance which would necessitate reversal.

Appellants maintain that the lower court lacked jurisdiction to vacate the arbitrators’ award because Keystone failed to comply with the Arbitration Act of 1980. They allege that Keystone was required to file a petition with the Prothonotary but instead submitted a motion to vacate with the motions court. We find this argument to be without merit. This court has held that an application to the court to vacate an award of arbitrators “shall be by petition and shall follow regular petition rules.” Haegele v. Pennsylvania General Insurance Company, 330 Pa.Super. 481, 479 A.2d 1005 (1984). Even though Keystone did not file a petition with the Prothonotary, we believe that the lower court had jurisdiction to vacate the award. The lower court acquired jurisdiction when appellants filed their petition to compel arbitration. Having once submitted themselves to the court’s jurisdiction in order to have the matter arbitrated, absent an allegation of prejudice, appellants will not be heard to complain when the losing party seeks to vacate the award.

Moreover, appellants allege that because Keystone failed to have appellants personally served by the Sheriff with copies of the motion to vacate the award, the lower court lacked jurisdiction. The Arbitration Act of 1980 provides:

“Unless the parties otherwise agree, notice of an initial application for an order of court shall be served in the manner provided or prescribed by law for the service of a writ of summons in a civil action.” 42 Pa.C.S. § 7317. In Keystone Wire and Iron Works, Inc. v. Vancor, Inc., 245 Pa.Super. 537, 369 A.2d 758 (1976), this court required that petitions to appoint an arbitrator be served by the sheriff, and not by mail. However, the instant case is distinguishable in that the appellants had previously submitted themselves to the court’s jurisdiction when they filed the order compelling arbitration. The statute states that notice of an initial application for an order of court shall be served in the manner prescribed for the service of a writ of summons in a civil action. Once again, having already submitted themselves to the court’s jurisdiction and having alleged no prejudice, appellants will not now be heard to complain that the service was improper.

Appellants also argue that Keystone’s preliminary objections to their own preliminary objections to Keystone’s Motion to Vacate Arbitrators Award should have been dismissed because of Keystone’s failure to conform with Philadelphia Rule 139 which states that preliminary objections must be filed with the Prothonotary. Appellants allege that Keystone filed its preliminary objections only with the Motion Court. Appellants allege no prejudice here. Since the lower court had dismissed the parties’ preliminary objections as being moot, we see no merit to this contention.

Finally, appellants argue that the order vacating the arbitrators’ award denies them equal protection and due process under both the United States and Pennsylvania Constitutions because there was no legal basis for such an order. We disagree. The order vacating the award was not based on factual questions. Rather, even if the facts were as appellants allege, the law as espoused in McDonald, supra, and Standard Venetian Blind, supra, permitted the order to be vacated.

Order affirmed.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

I concur in the result reached by the majority. The appellant sought, and this Court authorized, arbitration of the issue of whether the insurance contract between the parties included underinsurance coverage. The tort theory of misrepresentation was not within the authorized scope of arbitration. Therefore the trial court properly vacated the award of the arbitrators which was based on a finding of misrepresentation, rather than coverage under the policy. I would affirm the order of the trial court on this basis alone, and would not reach out to consider whether Hade v. Nationwide Insurance Co., 349 Pa.Super. 541, 503 A.2d 980 (1986), should be modified or overturned.

      . Our Supreme Court recently reaffirmed that the principal task of insurance policy interpretation and construction is a question for the court, Standard Venetian Blind Co. v. Am. Empire Ins., 503 Pa. 300, 469 A.2d 563 (1983).

      . The Keystone arbitration clause provided for arbitration under the Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. Sec. 161 et. seq. Because the Act was repealed by the time of the arbitration hearing, the parties orally stipulated to arbitrate under the 1980 Act.
      42 Pa.C.S.A. § 7302(a) of the 1980 Act states:

        (a) General rule.—An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.
      It is not necessary for the parties to have amended the policy in writing to state that arbitration should be under the 1980 Act. The parties proceeded to arbitration relying on the fact that the 1980 Act was to apply and appellants do not argue that because there was no writing, the 1980 Act should not apply.
      Moreover, the 1980 Act specifically states that its terms apply when 1) there is an agreement to arbitrate in writing (here, there was a written agreement to arbitrate, albeit under the 1927 Act) and 2) the writing expressly provides for arbitration under the 1980 act "or any other similar statute." While the 1927 and 1980 Acts are obviously not identical, they are similar in the sense that both attempted to impose a statutory solution to arbitration questions. Even if the 1927 Act is not considered a “similar statute", the parties still would not be subject to the common law arbitration standard of review for the following reasons.
      Section 7302(d)(2) of the 1980 Act provides:
      (2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.
      Section 501(b) of Act 1980, Oct. 5. P.L. 693, No. 142, provides:
      "The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
      “(1) An agreement made prior to the effective date of this act which expressly provides that it shall be interpreted pursuant to the law of this Commonwealth and which expressly provides for statutory arbitration."
      “(2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration."
      This section is found in the historical note to 42 Pa.C.S.A. § 7302. Therefore, pursuant to § 501(b)(2), even if the 1980 Act did not apply, the arbitration award may be corrected under § 7302(d)(2). This is the standard which the lower court used to correct the award. Our holding would be no different using either standard.