author: McEWEN, Judge: BROSKY, Judge,

text:
    461 A.2d 619
    John R. GRIEBER, Jr. and M. Lois Grieber, Husband and Wife, Appellants, v. Harry L. SCOTT and Alice R. Scott, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1981.
    Filed April 29, 1983.
    Reargument Denied July 12, 1983.
    Petition for Allowance of Appeal Granted Oct. 4, 1983.

      J. Jay Cooper, Harrisburg, for appellants.
    Delano M. Lantz, Harrisburg, for appellees.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here consider an appeal from the order of the Chancellor granting the motion of appellees for summary judgment and thereby denying the application of appellants for the specific performance of an alleged agreement for the sale of real property. We affirm.

The sole question presented in the brief of appellants is: Was it proper to sustain Defendant-Appellees’ Motion for Summary Judgment on grounds that the Statute of Frauds bars specific performance of the Agreement of Sale of August 16, 1979?

The agreement of sale we here study was drafted by appellant, John R. Grieber, Jr., a non-practicing attorney, at the request of appellee Harry L. Scott, was duly executed by the parties and provided, inter alia:

Witness that the Seller does hereby bargain and sell unto the said Buyer, and the latter does hereby purchase from the former the following described property ... for the price of Two Hundred Thousand Dollars ($200,000.00) of which Five Hundred Dollars ($500.00) have [sic] been paid prior to the signing hereof, and the balance to be paid as follows:
1. Balance of One Hundred Ninety-Nine Thousand Five Hundred Dollars ($199,500.00) shall be paid to Harry L. Scott and Alice R. Scott in the form of a mortgage for twenty (20) years at an interest rate of 9%.
2. Settlement to be held by November 1, 1979.

It was, as is noted in the affidavit filed by appellant in connection with the summary judgment proceeding, quite a deliberate decision of the parties to refrain from inclusion in the agreement of the actual terms of payment for the reason that the seller wished to confer with his counsel.

After postponing the date of settlement, appellees eventually refused to settle. Thereafter, appellants commenced this action in equity seeking specific performance of the purported agreement. Appellees pleaded in New Matter the defense of the Statute of Frauds alleging “that the terms of payment [were] not specifically set forth in the August 16, 1979 agreement.”

The Pennsylvania Rules of Civil Procedure provide that a motion for summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. No. 1035(b). There is no genuine issue as to any material fact and the distinguished President Judge Oscar F. Spicer determined that appellees were entitled to judgment as a matter of law.

Appellees contend the Common Pleas Court properly concluded that the instant agreement did not satisfy the Statute of Frauds since the agreement did not express an essential term of the agreement, namely, the mode of the payment of the purchase money mortgage which was to be delivered in the amount of $199,500.00 toward the purchase price of $200,000.00.

Appellants contend the agreement is clearly enforceable on its face since it was signed by the appellees and contained all of the essential elements of a contract. Appellants rely upon the decision of the Pennsylvania Supreme Court in Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947) as controlling authority. The agreement in Detwiler provided:

The lessor hereby gives the lessees the first option to buy the said property described herein, for the consideration of $13,000.00. The lessor will take $3,000.00 cash as down payment and take the mortgage himself for the balance of $10,000.00.

The Detwiler court said:

[P]laintiffs agreed to pay the full purchase price in exchange for a deed in the usual form conveying the demised premises to them in fee simple. If defendant chose to accept a mortgage in preference to payment of the entire consideration in cash upon transfer of legal title, plaintiffs would be obliged to reduce the principal debt within a reasonable time and pay the legal rate of interest.

At first glance, an application of the Detwiler decision to the instant agreement would appear to render it a valid contract since it could well be urged that the provision for a twenty (20) year mortgage at a rate of 9% interest obliges appellants “to reduce the principal debt within a reasonable time” at a specified rate of interest. Upon closer consideration, however, it is clear that Detwiler is not applicable. We so conclude since it is not possible for the court here to imply that the balance would be payable within a reasonable time. Rather, the parties have precluded such a determination by their agreement that the actual terms of the payment of the mortgage were not to be included in the agreement for the reason that the appellees wished to seek professional assistance as to the most advantageous payment schedule for tax purposes.

It would appear that most jurisdictions hold that a writing which wholly fails to state or indicate how or when the balance of the purchase price is to be paid is not sufficient to satisfy the Statute of Frauds. While this view prevails, other jurisdictions hold that a writing which does not specify the time of payment or fails to indicate when the balance of the price is to be paid is not for that reason insufficient since the law will presume or imply that a payment is to be made within a reasonable time and that the time for the payment of the balance is a matter to be established by proof disclosing the surrounding conditions and circumstances. See 72 Am Jur 2d, Statute of Frauds, § 353.

We need not here decide whether Pennsylvania should follow the majority or the minority view, or even whether the Pennsylvania Supreme Court in Detwiler v. Capone, supra, reflects that Pennsylvania must be numbered as adhering to the minority approach. Such tasks are here unnecessary since the parties specifically agreed to later contract upon the terms of the mortgage and thereby precluded any presumption that the payment was to be made within a reasonable time. Our study of this appeal leads us to share the following conclusions of the learned chancellor:

It appears clear the parties to this action considered the mode of payment an important consideration, not just a minor detail. We know that income tax implications are matters of serious consideration which sometimes take on the aspect of the tail wagging of a dog in contract terms. What might be. reasonable in one situation in this highly technical field might be outrageous in another. We hardly feel competent to judicially determine the plaintiffs’ circumstances. To perform that task the court would have to essentially complete the agreement for the parties.

We are compelled to the conclusion that certain essential terms are not set forth in the agreement and that, therefore, the writing does not satisfy the Statute of Frauds. See, Prager v. McAdam, 399 Pa. 405, 161 A.2d 39 (1960), rev’d on procedural grounds, Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965).

Order affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. Under the facts of this case, I would find that the sale should take place under the court’s compulsion. There is no statute of frauds disability here. Nor is there any other fatal defect—such as indefiniteness—which would prevent the enforcement of what was obviously meant by the parties to be a binding contract.

The case of Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947), is on point here and should govern the disposition of the statute of frauds issue. The majority opinion casts some doubt on the continuing vitality of Detwiler. I am not clear why there should be any question on this matter. Detwiler, held, inter alia, that a contract for the sale of land does not fail to meet the statute of frauds due to an absence of terms regarding the length of time of the mortgage and the amount of interest to be paid. There can be no doubt that those missing terms are of considerably greater practical importance that the term missing in the instant case: the amortization of principal.

Detwiler is, admittedly, a relatively old case—1947. However, old law is not necessarily invalid law. Precedent retains much of its force notwithstanding the passage of time. Only intervening decisions distinguishing the holding of an opinion, or an overruling by a court with the capacity to do so can substantially weaken an opinion’s binding strength. No such intervening cases have done this to Detwiler. We are bound by the voice of the Pennsylvania Supreme Court echoing from the past as long as closer and, therefore, louder voices from that court do not speak on the same point.

The majority opinion goes on to conclude that the gap filler indicated in Detwiler cannot be properly applied here. Where the term is entirely empty, the court will determine what a “reasonable” amortization of principal would be. Here, the majority argues, the term is not completely blank. I agree. The parties made reference to the means by which the term would be established: the most advantageous method for purposes of taxation for the seller. But the majority goes on to conclude from the inclusion of this reference point, this yardstick, that the court is entirely unable to fill the gap and enforce the contract. Here I must, respectfully, disagree.

The inclusion of the yardstick means, simply, that the court is in even a better position to fill in the missing term. It is, by reference to the taxation standard, now only a partial gap. On remand, the court can take evidence from appellant’s and appellee’s experts about the most advanta-gous method for the principal to be amortized and thus determine what that term should be.

In the last twenty years, the law of contracts has placed a greater emphasis on the consummation of sales. The acceptance of the Uniform Commercial Code has been a prime influence in this trend. While only strictly applicable to the sale of goods, and thus not to the sale of land before us, Article 2 of that Code can be most instructive here. Its conceptual approach has influenced the law of contracts generally and with good effect. Section 2-204(3) of the Code states:

Even if one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

In commenting on the rationale for this section, one treatise notes: “All too often in the past a contracting party, dissatisfied with his bargain, has taken refuge in the doctrine [of indefiniteness] to renounce his agreement. Rarely did the uncertainty itself cause the dissatisfaction.” Calamari and Perillo The Law of Contracts, 1977. I cannot, of course, say that this was the motivation of the instant appellee. Of other things, such as the proper result in this case, I am more certain.

The intent to make a contract, the basis for filling the partial gap and the absence of any statute of frauds bar, together oblige me to conclude that specific performance should have been granted in the instant case.

I vote to reverse.

      . Specifically, the contract in Detwiler was an option contract, which the Detwiler court equated with a contract for the sale of land—such as the one before us.

      . Detwiler is a Pennsylvania Supreme Court case and we therefore lack the power to overrule it or to ignore it where it is applicable.

      . On this issue, the problem is one of the law of contracts in general and no longer one involving the statute of frauds.

      . This statement is, strictly speaking, equivalent to Sections 32 and 33 of the First and Second Restatements of Contracts respectively. However, the emphasis in the UCC is on the positive—finding a contract— while the phrasing of the Restatements is in the negative—when a contract cannot be found.


source: Caselaw Access Project

author: LIPEZ, Judge: McEWEN, Judge,

license: Public Domain

text:
    461 A.2d 623
    UNION NATIONAL BANK AND TRUST COMPANY OF SOUDERTON v. William J. WALKER and Virginia C. Walker, Appellants.
    Superior Court of Pennsylvania.
    Argued June 22, 1982.
    Filed May 6, 1983.
    Reargument Denied July 18, 1983.

      Steven Harvey Lupin, Lansdale, for appellants.
    C. Stephens Vondercrone, Jr., Lansdale, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   LIPEZ, Judge:

This appeal is taken by William L. and Virginia C. Walker from an order which dismissed their petition to set aside a sheriffs sale because they had failed to comply with the lower court’s order that they post a $117,000.00 bond before their case would be considered. The Walkers argue that the court was without authority to require that such a bond be posted and therefore that the dismissal of their petition was erroneous. We agree.

In its opinion, the lower court relies upon Montgomery County Civil Rule 3121(c)(3) as authority for requiring a bond in this case. Rule 3121(c)(3) provides:

In cases where safe-keeping of property under levy will involve expense, the defendant shall give such security for safe-keeping and maintenance of the same to the end of the stay of the proceedings as the court shall require.

The court reasoned that because plaintiffs, appellees here, would lose equity in the property with delay, a bond to protect plaintiffs interests was appropriate. The rule, however, provides for a bond only where the safe-keeping and maintenance of the property impose an expense. A decline in plaintiffs equity in the property is not such an expense and may not be the basis for requiring security under the rule.

Appellees’ brief also argues that authority for requiring that a bond be posted can be found in Pennsylvania Rule of Civil Procedure 3132, which provides:

Rule 3132. Setting Aside Sale
Upon petition of any party in interest before delivery of the ... sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

While this provision does give the trial court discretion in fashioning a remedy after consideration of a petition to set aside a sale, we do not agree that it can be read to authorize the court to require security as a condition of consideration of the petition. In interpreting the Rules of Civil Procedure, we are to consider the prior practice in the area governed by the rule in question. Pa.R.C.P. 127(c)(5). While it has been a frequent practice to require the posting of a bond in connection with an order setting aside a sale and granting resale, see Commonwealth Trust Co. v. Har-kins, 312 Pa. 402, 411, 167 A. 278, 282 (1933), appellees have cited no case in which a bond has been required as a condition of hearing the petition, and our research has revealed none. Accordingly, we decline to interpret the language of Rule 3132 to allow the court here to impose such a requirement. As the bond was improperly required, the lower court’s dismissal of appellant’s petition for failure to post that bond was erroneous.

Order vacated, petition reinstated, and case remanded for further proceedings. Jurisdiction is relinquished.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

While the careful analysis reflected by the majority opinion is quite persuasive, I most respectfully dissent. The record reflects:

The complaint in foreclosure was filed on January 23, 1980, and damages were assessed at $113,836.89.
The subject real estate was sold by the sheriff for the sum of $125,746.50 on June 25, 1980, only after the sale had been continued three times and delayed for more than three months.
The purchasers paid to the sheriff at the time of the sale the required deposit of $12,570.00 and on July 15, 1980, paid the balance of $113,113.50, for a total payment to the sheriff of $125,746.50.
The petition to set aside this sale was filed by appellants more than five weeks after the sale on August 3, 1980. A return date was set for September 19, 1980.
Appellees filed an Answer with New Matter to the petition in which it alleged that appellants were twenty-four months in arrears, that the continuances of the sale by the sheriff were based upon the assertions of appellants that an agreement for the sale or the refinancing of the property was imminent and that such assertions were baseless.
The hearing judge, after a conference with counsel for the parties, concluded that appellees were exposed to harm by reason of further delay and directed on August 21, 1980, that appellant post bond to protect appellee from loss in the amount of $117,000.00.
The hearing judge on October 6, 1980, more than six weeks after appellants had been directed to enter surety and more than nine months after the foreclosure action was commenced, dismissed the petition of appellants to set aside the sale.

We here review the procedure employed by the Common Pleas Court after the sale. Pennsylvania Rule of Civil Procedure No. 3132, 42 Pa.C.S.A., provides in pertinent part:

Rule 3132. Setting Aside Sale
Upon petition of any party in interest before delivery ... of the sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

As we consider the procedure in delay employed by the Court after the sale, we note that Pennsylvania Rule of Civil Procedure No. 3121, 42 Pa.C.S.A., relating to judicial delay before the sale, provides in part:

The sheriff shall stay the sale upon entry by the mortgagor of a bond for payment of the debt in full in ninety days.
The court may stay the sale “upon such terms and conditions as it may deem appropriate.”

The nature of the potential harm to interested parties by delay in the completion of execution is neither different nor less after the sale than prior thereto. There is, however, a further party exposed to such harm after the sale, namely, the purchaser. Therefore, the order of the court that bond be posted to insulate the purchaser at the sheriff sale from possible harm and loss caused by or during the delay would seem to be a prudent directive, particularly in view of the fact that the purchaser paid to the sheriff the sum of $125,683.50.

Therefore, I would affirm the order of the hearing judge for the reason that the imposition of the condition of a bond to insulate the purchaser from loss appears prudent under these circumstances and the reason that such an order is permitted under and consistent with Pennsylvania Rule of Civil Procedure No. 3132.


author: WICKERSHAM, Judge:

text:
    461 A.2d 625
    Selma ISAACSON and Theodore Isaacson v. MOBIL PROPANE CORPORATION, and Theodore Isaacson, Supreme Food Service Company, Lester Stark, City of Philadelphia, General Motors Corporation, Custom Sales and Service, Inc., Manchester Tank and Equipment Company of Georgia. Appeal of MOBIL PROPANE CORPORATION. Lester STARK v. MOBIL PROPANE CORPORATION, Selma Isaacson, Theodore Isaacson, Supreme Food Service Company, City of Philadelphia, General Motors Service, Inc., Manchester Tank and Equipment Company of Georgia. Appeal of MOBIL PROPANE CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1982.
    Filed June 3, 1983.

      Robert S. Forster, Jr., Philadelphia, for appellant.
    Denise Rae Scott, Assistant City Solicitor, Philadelphia, for appellees.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

This is an appeal from summary judgment entered in a suit which arose out of an explosion at the place of business of Selma and Theodore Isaacson.

Theodore and Selma Isaacson ran a food service business in the City of Philadelphia. Their employees drove food trucks which made regular stops each day during breakfast and lunch hours. Each truck had a propane gas system which provided hot water for coffee. The Isaacsons operated their business out of a rented garage. On June 21, 1973, Lester Stark, who drove one of the Isaacsons’ trucks, made his usual round selling food. At about 1:30 in the afternoon he had the propane tanks on the truck filled at Mobil Propane and returned to the garage. Before he left for the day, Stark turned on the propane pilot on his truck, to insure an adequate supply of hot water for making coffee the next day. As it happened, Lester Stark, the Isaacsons and their daughter Linda left the garage at the same time that day. There was an explosion, Theodore Isaacson was momentarily unconscious, Selma Isaacson was seriously injured by falling debris and Lester Stark was burned on the face and arms.

On November 12, 1974, the Isaacsons filed a complaint in trespass against Mobil Propane Corporation, appellant herein, alleging that Mobil Propane’s negligence in filling the tank caused the explosion. An assumpsit suit against Mobil Propane was brought by Lester Stark on August 28, 1975 to recover for injuries he suffered in the same explosion. These two cases were consolidated for the purpose of this appeal.

Mobil Propane joined the City of Philadelphia (hereinafter City) alleging that the City inspected, regulated or licensed or that the City had a duty to inspect, regulate or license the trucks and premises of the Isaacsons’ business.

Discovery was conducted. The City thereafter filed a motion for summary judgment against plaintiffs, defendant and various co-defendants; Mobil Propane was the only party who opposed the motion. The Honorable Murray C. Goldman granted summary judgment in favor of the City against plaintiffs, defendant and co-defendants on December 16, 1980 and Mobil Propane’s appeal timely followed.

Mobil Propane’s first issue is:

Does a genuine issue of material fact exist as to whether or not appellee was obligated to inspect completely the trucks and garage and facilities of Plaintiffs, including the propane systems and the use and storage of propane?

Mobil Propane argues that the lower court incorrectly ruled that the City inspected the Isaacsons’ trucks merely for the purpose of sanitation and that the City therefore had no duty to inspect the propane systems on the Isaacsons’ trucks. “Appellant maintains that the inspections actually undertaken by [the City] were more extensive ... and therefore, at least a question of material fact exists as to whether or not [the City] was obligated to inspect the propane system on the Isaacsons’ trucks.” Brief for Appellant at 14.

We are mindful that:

Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Furthermore, summary judgment is only proper in cases which are clear and free from doubt as to the existence of a disputed factual question. In ruling on a motion for summary judgment the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom. The record as a whole should be examined in the light most favorable to the party opposing the motion and all doubts as to the existence of a genuine issue about a material fact must be resolved in that party’s favor, that is, against the entry of summary judgment. In disposing of such a motion the court’s function is not to decide issues of fact, but solely to determine whether there are material issues of fact to be decided.

Community Medical Services v. Local 2665, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981) (citations omitted). See also, Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982). In this case, however, we believe that summary judgment was correctly granted.

At a deposition Theodore Isaacson testified that the City inspected both the food trucks and the garage where they were housed. He stated that the City conducted unannounced spot checks of the trucks; as he put it “Well, they were interested in cleanliness, the temperature of the perishables, they made sure there was hot water.” Reproduced Record at 115a. “Now, in the building itself, they were more particular. The floors had to be clean, trash receptacles had to have covers; toilet facilities, kitchen— sanitary conditions; the people handling the food—x-rays, hairnets etc., etc.” Yet when Theodore Isaacson was asked whether any of the City’s inspectors discussed the propane system on the trucks his reply was “No.” Reproduced Record at 116a.

Mobil Propane argues that the extent of an inspection is a question of fact and that Theodore Isaacson’s testimony raised a genuine issue of fact as to whether the City was obligated to inspect the propane systems. The lower court correctly rejected this view, noting that “the uncontradicted depositions of the plaintiffs clearly showed that the City inspected the Isaacsons’ trucks and facilities only for the limited purpose of checking sanitation.” Lower ct. op. at 5.

The second Restatement of Torts summarizes the duty imposed upon one who renders a service:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323.

In this case, the evidence relied upon by Mobil Propane shows that the service rendered by the City was conducting sanitary inspections of the Isaacsons’ business. Yet this service was not undertaken for the Isaacsons nor was it necessary to protect the Isaacsons’ business: the inspections were undertaken to insure the wholesomeness of food offered for sale to the public. The evidence clearly shows that the City did not inspect the propane system and that it had no duty to do so. On this issue, summary judgment in the City’s favor was correctly granted in the Isaacson suit.

A similar analysis of the Restatement leads to the same conclusion in Stark’s suit. Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A.

Again, the evidence cited by Mobil Propane shows that the City inspected the Isaacsons’ truck and garage to check sanitation. There was no evidence to support Mobil Propane’s contention that these sanitation inspections required the City to inspect propane systems. Thus summary judgment was also correctly granted in Stark’s suit.

Mobil Propane’s second issue is:

Does a genuine issue of material fact exist as to whether or not appellee properly discharged [its] duty to inspect completely the trucks and garage and facilities of Plaintiffs, including the propane systems and the use and storage of propane?

Mobil Propane “maintains that [the City] had assumed the duty of inspecting the propane systems and the use and storage of propane through its extensive inspection of the Isaacsons’ trucks and facilities and its stated interest in the public health and safety.” Brief for Appellant at 21. Its contention is not, however, supported by the record. Mobil Propane directs our attention to Theodore Isaacson’s testimony about the City’s sanitary inspections but does not direct us to any evidence of inspections of the propane system. This argument is without merit.

Mobil Propane’s third, and final, argument is:

Does a genuine issue of material fact exist as to whether or not appellee’s fire truck ran over Selma Isaacson?

Mobil Propane argues that there is a genuine issue of material fact as to whether a City fire truck ran over Selma Isaacson’s legs after the explosion. In support of this argument Mobil Propane produced a hospital emergency room record of Selma Isaacson’s admission. According to Mobil Propane this emergency room record states:

patient was in a garage when a propane gas tank exploded causing a cinderblock wall to fall on her lower back. While unconscious a fire truck ran over her, the tires running over her thighs. She was then brought to the ER with numerous fractures...

Brief for Appellant at 23.

The lower court granted summary judgment in the City’s favor despite the existence of this history because the history “constitutes double hearsay (i.e. the original statement and its recordation in the history) that is irremediably inadmissible.” Lower ct. op. at 13. Mobil Propane argues that the statement in the hospital record is admissible under the business records exception to the hearsay rule and Rule 803(6) of the Federal Rules of Evidence.

A medical report is admissible under the business records exception to the hearsay rule if the report: (1) was made contemporaneously with the events it purports to relate, (2) at the time the report was prepared, it was impossible to anticipate reasons which might arise in the future for making a false entry in the original, and (3) the person responsible for the statements contained in the report is known. See, e.g., Sauro v. Shea, 257 Pa.Super. 87, 99 n. 4, 390 A.2d 259, 265 n. 4 (1978). Mobil Propane argues that because the report in question was made shortly after the explosion by an emergency room physician who had no reason to falsify the report all of the requirements for admissibility are met.

On the other hand, the City contends that the record was not made contemporaneously with the events that took place after the explosion and that because of the delay in preparing the report it was possible to anticipate reasons why a false entry might be made. The City also argues that because the identity of the person responsible for making the recorded statement is unknown, the third element of the admissibility test is not satisfied.

To rebut the City’s argument Mobil Propane cites Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962). The plaintiff in Fauceglia, supra, sought recovery of damages for injuries to his back állegedly suffered in an automobile accident and denied having had back trouble during military service. In fact, records from a Veterans Administration hospital indicated that Fauceglia had complained of back pain. The Supreme Court of Pennsylvania held that the records were admissible even though the identity of the person making the record was not known.

Fauceglia, supra, is, however, inapposite. In Fauceglia, supra, the identity of the serviceman who made the record was not known but the identity of the person supplying the information was known; Fauceglia himself was the source of the statements. In the case before us, Mobil Propane asserts that the identity of the physician who made the record is known. Nevertheless, the identity of the person supplying the information to the physician is not known. The Fauceglia court believed that since Fauceglia was supplying the information to military personnel under a duty to record such information the records were trustworthy. There is a complete absence of any such indicia of trustworthiness in this case for no one knows who supplied the information concerning the alleged incident to the treating physician. “The problem is, however, that no party to the action nor any other person responsible for the hospital entries in question is known to have given the information on which the histories were based. See Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962).” Incollingo v. Ewing, 444 Pa. 263, 279, 282 A.2d 206, 215 (1971).

Moreover, in Fauceglia, supra, the court noted that the records were only offered to prove that Fauceglia complained of back pain, not that Fauceglia actually suffered back pain. Fauceglia, supra 409 Pa. at 161, 185 A.2d at 602. Mobil Propane seeks to use the statement from the hospital record to show that there is a genuine issue of material fact, i.e., that a fire truck ran over Selma Isaac-son’s legs. Therefore, the lower court correctly decided that the statement was inadmissible.

If the hospital report is excluded, nothing supports Mobil Propane’s claim that there is a genuine issue of material fact as to whether Selma Isaacson was run over by a fire truck. The victim herself denied making a statement that she was run over by a truck. Both Theodore Isaacson and Lester Stark gave evidence that a fire truck could not have gotten near Selma Isaacson because of debris. The lower court did not abuse its discretion in granting summary judgment in favor of the City on this issue.

Orders affirmed.

SPAETH, J., did not participate in the decision or consideration of this case.

      . Nor is the case of Myers v. Genis, 235 Pa.Super. 531, 344 A.2d 691 (1975) dispositive of this case. In Myers this court decided that medical records containing the opinions and diagnoses of a deceased physician were admissible; the identity of the person who supplied the information to the physician was also known. In the case at bar, however, no one states who told the emergency room physician that a fire truck ran over Selma Isaacson.

      . According to Mobil Propane the statement in the hospital record also qualifies for admission under Rule 803(6) of the Federal Rules of Evidence. The Federal Rule provides:
      Rule 803. Hearsay exceptions; Availability of Declarant Immaterial
      The following are not excluded by the hearsay rule ...
      (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
      In the case at bar the requirements of the Federal Rule are not met. The identity of the individual who gave the emergency room physician the recorded information is not known, and thus there is no way to determine whether the report contains "information transmitted by, a person with knowledge,” nor to determine the trustworthiness of the source of information. Federal Rule of Evidence 803(6) does not, therefore, make the hospital record admissible. In any event, we are not bound by Federal rules of evidence.


author: CERCONE, President Judge:

text:
    461 A.2d 630
    Dorothy R. ROBERTS, v. Joseph C. BOCKIN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1983.
    Filed June 10, 1983.

      Colin M. Jenei, Yardly, for appellant.

      Denis M. Lanctot, Morrisville, for appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant, Joseph C. Bockin, Jr., takes this appeal from the order of the court below directing appellant to pay $48.00 per week towards the support of his minor son, Christopher, who is in the custody of appellant’s ex-wife, appellee, Dorothy R. Roberts. In this appeal, appellant raises three issues. On one of these issues, we find no error. We are, however, unable to resolve the two remaining issues because the record does not contain sufficient information, accordingly, this case must be remanded for further hearings.

On September 2, 1981, appellee filed a petition against appellant for support of the parties’ minor son, who was born September 14, 1968. A conference was held in the Domestic Relations Office on November 10, 1981, after which a temporary interim order of $20.00 per week was entered without prejudice to either party as to the issues of amount of support or of its retroactivity. Thereafter, a hearing was held before the common pleas court on January 14, 1982. At this hearing, appellee testified that she was employed as an administrative sales assistant earning a net, bi-weekly salary of $324.86. Her expenses, however, for her and her son were said to be twice that of her salary; appellee testified that her weekly expenses were $319.54.

Much of the rest of the questioning of appellee, particularly on cross-examination, focused on appellee’s prior employment history, and it is on this fact that appellant bases his first issue. According to appellee’s testimony, for a period of six years prior to August, 1979, appellee worked as an executive secretary for U.S. Steel Corporation. However, in August of 1979, appellee, citing a need “to get away from the pressures here,” quit her job, sold her home, and moved to England with her son, Christopher. When she was unsuccessful in obtaining employment there, she and Christopher moved to Florida. Upon encountering similar difficulties in Florida, appellee returned to the Bucks County area, where, after a year of searching, she obtained her present job. Listing these facts, appellant now contends that appellee’s present financial circumstances are the result of her voluntary decision to quit her job with U.S. Steel and to use the proceeds from the sale of her home for travel and living expenses. Appellant thus argues that the lower court abused its discretion in failing to find that appellee’s earning capacity exceeds her present income and in failing to determine the amount of the support award on that basis.

It has been held that a parent may not intentionally reduce his or her earnings and then use the reduction in earnings to obtain a reduction in the amount of support which that parent must provide for his or her children; courts have traditionally viewed with suspicion any sudden reduction of payments toward support based on such income reductions. Commonwealth ex rel. Darling v. Darling, 300 Pa. Superior Ct. 62, 445 A.2d 1299 (1982); Commonwealth ex rel. Burns v. Burns, 251 Pa. Superior Ct. 393, 380 A.2d 837 (1977); Weiser v. Weiser, 238 Pa. Superior Ct. 488, 362 A.2d 287 (1976), Snively v. Snively, 206 Pa. Superior Ct. 278, 212 A.2d 905 (1965). The rationale underlying these decisions is that a parent has a duty to his or her children and therefore a parent should not be permitted to evade that responsibility by deliberately reducing his or her income. This rule, however, is not without its exceptions. As we noted in Weiser v. Weiser, supra, 238 Pa. Superior Ct. at 492, 362 A.2d at 288-289:

[W]e are not constrained to say that a man once he has established a certain income level for himself and his family in the employ of another cannot decide to go into business for himself even though it results in a decrease of his present earnings. A man should have freedom of choice to be an employee of another or to establish his own business even though such change may result in present financial sacrifice with the hope of future increased income.

The rule, of course, applies to both parents, since the support of children is the equal responsibility of both the father and the mother. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974).

In the instant case, we find that appellant has omitted several pertinent facts from his argument. The record shows that when appellee quit her job with U.S. Steel, she was suffering from an ulcer and that her doctor suggested that she get away or else she wasn’t going .to get better. At that time appellee was feeling a lot of stress as a result of the custody and support dispute. Furthermore, appel-lee’s quitting her job wasn’t the rash move that appellant would make it seem since the U.S. Steel office in Fairless, where appellee worked, was, in any event, due to be closed in a few months, and, in fact, has been closed. Appellee went to England because she had a son stationed there with the Air Force who said that he had a friend in personnel at the base who could get appellee a job without any difficulty. As it turned out, when appellee arrived in England, there were new people in personnel and appellee was unable to get a job. After staying in England for two months, appellee returned to the United States, this time going to Florida where her father, sister, and two other sons lived, all of whom lent appellee money to live on. Appellee remained there until March of 1980, when she returned to the Bucks County area. After a further year of searching, appellee finally succeeded in finding the job which she now holds.

It is apparent that appellee did not quit her job with U.S. Steel to avoid supporting her child. Rather, she did so at the suggestion of her doctor because of her ulcer. Additionally, appellee went to England because she had an apparently good chance of getting a job there. When it became clear that she could not find a job in England, appellee moved to Florida where several members of her immediate family resided. Appellee has at all times sought employment and has never attempted to elude her parental responsibilities. We thus find appellee’s situation to be comparable to that in Commonwealth ex rel. Darling v. Darling, supra, and Commonwealth ex rel. Burns v. Burns, supra, where the respective parties were laid off and unable to find other work. In these cases, we ruled that the parties’ actual earnings, and not their income potential as demonstrated in the past, was the proper measure of their ability to support their children. We likewise hold in appellee’s case and accordingly find that the lower court did not abuse its discretion on this issue.

In his next two issues, appellant alleges error in the court’s consideration of the income of appellant’s second wife, Sandra, in the computation of appellant’s ability to pay child support. At the outset, it must be noted that although a new spouse cannot be required to support his or her spouse’s minor children of a prior marriage, it is nonetheless permissible for the court to take into consideration the financial contributions of the new spouse to the new household when calculating the responsible spouse’s ability to pay child support. Shank v. Shank, 298 Pa. Superior Ct. 459, 444 A.2d 1274 (1982); Astillero v. Shotwell, 294 Pa. Superior Ct. 222, 439 A.2d 831 (1982); Commonwealth ex rel. Hagerty v. Eyster, 286 Pa. Superior Ct. 562, 429 A.2d 665 (1981); Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa. Superior Ct. 435, 326 A.2d 883 (1974).

In the instant case, appellant argues that there was insufficient evidence to show that appellant was able to make support payments in the amount of $48.00 per week, as was ordered. Specifically, appellant takes issue with the Court’s including as income to appellant’s household the amount of $12,500.00 that appellant’s second wife had been receiving from the estate of her late husband. Appellant now asserts that, while Sandra Bockin did receive this income through 1980, she is no longer receiving said income. Our review of the record shows this to be a point which is far from clear. Some of the confusion on this issue can be attributed to appellant himself, for, as the record shows, although appellant received a subpoena to bring to court any documentation regarding his spouse’s income, including her Social Security income and her inheritance, appellant did not have this information with him, testifying that he had no such documentation. We do have in the record copies of appellant’s tax returns for the years 1978, 1979, and 1980 and all of these returns show that appellant’s wife received an income of $12,500.00 in those years from her late husband’s estate. In his present -appeal, appellant now says that the evidence of his ability to pay support was insufficient because at one point during the hearing appellant was asked generally if his new spouse received any other income than Social Security, and appellant responded in the negative without elaboration. We find that the record is unclear on this point and so further hearing must be held to clarify this issue.

Likewise, further hearings will have to be held before appellant’s last issue can be resolved. Appellant argues that the court’s order was confiscatory and imposes an unreasonable burden on appellant because the order took into consideration Sandra Bockin’s inheritance income. Since the evidence was not clear we cannot now decide this issue.

Accordingly, although we find that the court correctly assessed appellee’s income, the case must nevertheless be remanded for a full hearing because there is insufficient evidence of appellant’s ability to pay. Shank v. Shank, supra.

The Order of the court below is vacated and the matter is remanded for further hearings. This court does not retain jurisdiction.

      . Apparently, appellee did file a financial statement, however, this statement is not part of the record.

      . Indeed, the instant case demonstrates how relevant such evidence can be. Appellant claimed at the hearing to be operating a trucking business for a number of years which, when it isn’t losing money, isn’t making much money either. In 1978, appellant’s business, although grossing $53,019.23, had a net loss of $277.79. In 1979, the business grossed $51,698.01, but only showed a profit of $1180.46. And in 1980, the business had a gross income of $41,209.64, but a net income of only $4,975.04.
      Furthermore, we note that some of the discrepancy between appellant’s gross and net income on his tax returns is the result of deductions for depreciation and the like. Our courts have concluded that the federal government’s decision not to tax particular items does not control the calculation of earning power as one of the elements in determining a support order. Commonwealth v. Redavid v. Redavid, 251 Pa. Superior Ct. 103, 380 A.2d 398 (1977).

      . Of course, on remand more recent evidence of appellant's income will have to be explored.


author: ROWLEY, Judge:

text:
    461 A.2d 634
    COMMONWEALTH of Pennsylvania v. Andrew GALE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed June 10, 1983.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.

      John S. DiGiorgio, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a non-jury trial, of theft and of conspiracy to commit theft. Post-trial motions were filed and denied. Appellant was sentenced on the two convictions to consecutive terms of imprisonment of not less than two and one-half nor more than five years on each charge. This direct appeal followed.

The sole issue raised by appellant is whether the trial court erred in failing to suppress his statement to police in which he admitted his participation in this incident.

The charges arose out of a theft committed on October 7, 1980, in the home of Henrietta Harze, a mentally retarded, fifty-eight year old woman. During the course of the incident, Ms. Harze was raped and stabbed to death and the house set on fire. Appellant’s co-defendant, Carlie Mitchell, was tried by a jury and found guilty of murder in the first degree, arson, robbery, risking catastrophe, criminal conspiracy and rape.

The record reveals the following. On December 3, 1980, appellant was arrested on a charge of possession of an instrument of crime. Officer Lavine of the Philadelphia police was aware that homicide detectives were looking for appellant in connection with the Harze homicide. Appellant was taken to homicide headquarters, where he was advised of his Miranda rights. Appellant requested to speak to his attorney. Interrogation immediately ceased. Appellant then conferred with his attorney by telephone and, on the advice of counsel, refused to make any statement to police. Appellant was permitted to leave police headquarters without any charges having been filed against him. The investigation continued and, as a result of additional evidence, appellant was arrested on December 10, 1980, in connection with the Harze homicide.

After appellant was again read his Miranda rights, he signed a waiver of those rights and gave a statement to the police admitting his participation in the October 7 incident. When asked why he was talking to the police without his attorney being present and against his attorney’s advice, appellant answered:

“Because I’m tired of everybody telling me what to do. I want to stand up on my own and do the right thing. That lawyer charged me $100 just for a phone call the last time. I don’t think that he cares about me.”

Appellant argues that the interrogation on December 10, 1980, without his attorney, violated his constitutional rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because he had previously asserted his right not to be questioned without counsel present.

We have concluded that this case is distinguishable from Edwards. Under the facts of this case, appellant’s waiver of his Miranda rights on December 10, 1980, was valid and his statement was properly admitted into evidence.

In Edwards, the defendant was arrested and advised of his Miranda rights. He then gave an incriminating statement. The Arizona Supreme Court affirmed the conviction on the ground that the defendant had voluntarily waived his right to remain silent and to the presence of counsel during questioning.

The United States Supreme Court reversed, holding that the defendant’s confession was obtained in violation of his Fifth and Fourteenth Amendment rights. The Court based its decision on the fact that the Arizona court focused only on the question of whether the confession was voluntary, and failed to examine whether the defendant understood his right to counsel and intelligently and knowingly relinquished that right. The Court held that after asserting the right to counsel, a defendant may not be subjected to further police initiated interrogation until counsel has been made available to him. Edwards v. Arizona, 451 U.S. at 485, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 (emphasis added). In Edwards, the police returned without making counsel available to the defendant and it was not clear what prompted the defendant’s decision to give a statement.

However, Edwards did not establish a per se rule that once the right to counsel has been asserted, a defendant may never be questioned without counsel present. Wyrick v. Field, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). An initial exercise of Miranda rights does not foreclose a later waiver of them. Commonwealth v. Frison, 301 Pa.Super. 498, 448 A.2d 18 (1982). In determining the validity of such a waiver, the court must look at the “totality of the circumstances”. Wyrick v. Fields, 459 U.S. at 46, 103 S.Ct. at 396, 74 L.Ed.2d at 218.

Based on all of the circumstances, the trial court properly concluded that appellant knowingly and intelligently waived his right to counsel. Unlike the situation in Edwards, appellant was not in custody during the period between interrogations. He had an attorney and was free to consult with that attorney prior to December 10. In this case, counsel was “made available” to appellant. Appellant did consult counsel during the December 3 interrogation and chose to remain silent. He obviously understood both his right to counsel and his right to remain silent. The record also reveals why appellant later decided to talk to police. Hé was dissatisfied with counsel’s advice and wanted to “do the right thing”. This clearly indicates that between December 3 and December 10, appellant had a “change of heart”. See Commonwealth v. Frison, supra. Under these circumstances his waiver was voluntary, knowing and intelligent.

Judgment of sentence affirmed.


author: VAN der VOORT, Judge:

text:
    461 A.2d 636
    T. Dale STEWART and Letitia Stewart, His Wife; John F. Kane, Jr., and M. Ruth Kane, His Wife; Hazel E. Kyle, A Widow; and Charles W. Stewart and Anna M. Stewart, His Wife, v. TOMIS DEVELOPMENT COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed June 10, 1983.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.

      David M. Priselac, Pittsburgh, for appellant.
    Dennis N. Persin, Greensburg, for appellees.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellees sold a 187.062 acre tract of undeveloped land in Westmoreland County to appellant for $250,000; $50,000 was paid in cash and the balance of $200,000 by a purchase money mortgage with interest at 6%. The principal of the mortgage was to be paid in fifteen (15) yearly installments of $13,333.33.

The original agreement of sale dated April 27, 1972, provides that the:

[p]urchase money mortgage will provide for the release of the lien of the mortgage as acreage is sold and proceeds are paid over to Sellers on a pro-rata basis.

The purchase money mortgage and the accompanying bond provide for payment in the following manner.

The sum of $13,333.33 on October 1 of each year, commencing with the year 1973, reduced on a pro rata basis by principal payments representing the proceeds from the sale of acreage released from the lien of the within mortgage, together with the amount of accelerated principal payments after January 1, 1973 in such increments as party of the first part [mortgagor-appellant] elects____

At the end of the first year the mortgagors paid to the mortgagees $12,000. There have been no further payments on account of principal or interest. By a “Complaint in Confessions of Judgment”, filed August 18, 1977, plaintiff-appellees took judgment on the bond for the principal sum of $200,000, plus interest and attorney’s commission in the total sum of $275,838.73, and issued execution against the property. The appellant filed a petition to strike or open the judgment and to stay execution. Paragraph four of such petition reads as follows.

4. The Defendant does not owe the Plaintiffs the amount claimed, if it owes the Plaintiffs anything at all, because the Plaintiffs materially and substantially and practically totally breached their agreement with the Defendant underlying the bond by failing and refusing to act in accordance with said agreement by releasing the subject property from the lien of their mortgage when the Defendant offered accelerated principal payments, thus destroying the Defendant’s financing plans and arrangements and making the further development of the property practically impossible by the Defendant and excusing the Defendant from further performance under the agreement.

The court stayed the execution. Appellees filed various answers to the petition, and by leave of court, an amended complaint in confession of judgment. The court appointed a commissioner to take testimony and make findings of fact, and conclusions of law, and to make a recommendation to the court. The recommendation was to deny the petition and Judge Mihalich entered such an order on August 11, 1980. Appellant filed exceptions which were briefed and argued before the court en banc. A final opinion and order were filed March 23, 1981, sustaining the original order. Defendant-appellant has appealed to our court.

Appellant’s position at the appellate level, as it was below, is that the appellees violated the agreement between the parties to such an extent as to require rescission of the agreement. It contends that it should be absolved of any liability to appellee; and seeks rescission of the agreement and the repayment of the $50,000 cash payment; the interest payment of $12,000; and incidental expenses. We need not address the merits of such claim.

On October 3, 1974, appellant filed in equity a suit in the lower court against appellees at No. 3163 of 1974, setting forth the above claims. That suit was heard by Judge Mihalich, who entered an adjudication and an order on October 15, 1976 denying appellant’s request for rescission and consequential damages, and dismissing the complaint in equity. He also dismissed exceptions to his adjudication order. No appeal was taken from that order. In the present case, Judge Mihalich concluded that the essential issue raised in the present suit had been resolved in the previous equity suit and that appellant was barred by the doctrine of collateral estoppel.

We agree. In the equity action appellant claimed that appellees breached the agreement by failing to release certain acreage upon its tendering of the first annual payment. Appellant there contended that appellees had an obligation to release a pro-rata share of land upon the above payment. Appellees position was that their obligation to release did not arise until acreage was sold and they were paid a share of the proceeds from such sale. The chancellor found that while unusual, the agreement was clear; release was conditioned upon two occurrences, parcels being sold and a share of proceeds from such sales being forwarded to appellees. As such sales had not occurred, appellees were not required to release any additional lands. The equity court concluded that there were no misrepresentations, permitting rescission. (Adjudication, October 5, 1976).

For res judicata to apply, there must be a concurrence of four conditions: (1) Identity in the thing sued upon or for; (2) Identity of the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality or capacity of the parties suing or sued. Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 787-788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). A judgment on the merits in a prior suit involving the same parties or their privies, under the doctrine of res judicata, bars a second suit based upon the same cause of action, while under the doctrine of collateral estoppel, such judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based upon the same cause of action as the second suit. Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).

Jordan v. Gore, 288 Pa.Superior Ct. 86, 91, 431 A.2d 300, 302 (1981). We find all four criteria present in the current case. The identity and capacity of the parties have not changed since the equity action. It is the same contract sued upon and though brought in a different form it is nonetheless the same action, i.e., breach of the sales agreement and related mortgage and bond by failure to release additional acreage.

Appellant’s reliance on such cases as Thal v. Krawitz, 365 Pa. 110, 73 A.2d 376 (1950) is misplaced. There, in the first action brought in equity, the plaintiff sought specific performance. The chancellor found that since two required parties had not signed the agreement, it could not be enforced. The court noted in passing that the defendant had not misrepresented his authority as to the two parties. A second action was brought seeking damages for misrepresentation by the defendant as to his authority. The second suit was not barred by the first, as the question of misrepresentation was not essential to the first litigation once the chancellor found that the agreement was invalid.

The current situation is clearly distinguishable. In the first action, while the claim was partially veiled as one based on misrepresentation, the crux of the matter, in fact the whole case, was dependent upon the interpretation of the contractual terms and whether the parties had breached them. Appellant’s petition here raised the same claim; the breach of the agreement, i.e., the failure to release the property from the mortgage lien. The fact that the claim originally raised affirmatively in equity is now raised defensively does not change the result. In Pilgrim Food Prod. Co. v. Filler Prod. Inc., 893 Pa. 418, 143 A.2d 47 (1958), Pilgrim claimed, in defense, in the first action, that Filler was without authority to sell and license the use of a machine. Verdict was in Filler’s favor. Pilgrim initiated a second suit, relying on an intervening decision from another jurisdiction, arguing again that Filler lacked authority to perform the Contract. The Supreme Court held the second action was barred by the first. We find likewise here, appellant also argues that the lower court erred by refusing to strike the confessed judgment for failure to comply with the Rules of Civil Procedure, specifically because the complaint contained no allegation that appellant was in default, and did not aver whether the bond attached was either the original or a true copy. We agree with the lower court and with the appellee that the alleged defects in procedure were formal in character and corrected by amendment to the complaint, filed pursuant to leave granted. See West Penn Sand & Gravel Co. v. Shippingport Sand Co., 367 Pa. 218, 80 A.2d 84 (1951) and George H. Althof Inc. v. Spartan Inns, 295 Pa.Superior Ct. 287, 441 A.2d 1236 (1982).

Order affirmed.

MONTEMURO, J., concurs in the result.

      . At the time of closing a tract of 34.37 acres was released from the mortgage.

      . Since the parties are the same in both cases and, the issues the same, the appropriate technical doctrine should more appropriately be referred to as res judicata. See discussion below.

      . The court did note that the agreement was ambiguous as to how a “pro-rata share” was to be calculated, but not as to when release was required.

      . When applying the doctrine of res judicata, a court must look to the particular facts of the case before it. For additional examples, see: Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975) (doctrine not applicable where a second zoning proceeding involved a larger tract); Winpenny v. Winpenny, 296 Pa.Superior Ct. 299, 442 A.2d 778 (1982) (wife barred from raising husband’s perjury in earlier divorce proceedings at later partition action); Jordan v. Gore, supra (subsequent civil proceeding not barred by prior criminal action); Lebeau v. Lebeau, 258 Pa.Superior Ct. 519, 393 A.2d 480 (1978) (Consent to proceeding for termination of support does not forbid challenge to validity of divorce decree in later partition); Chamberlain v. W.C.A.B., 59 Pa.Cmwlth.Ct. 72, 429 A.2d 110 (1981) (prior determination of continuing partial disability not controlling on subsequent issue of total disability); and McCarthy v. Township of McCandless, 7 Pa. Commonwealth Ct. 611, 300 A.2d 815 (1973) (second attempted assessment for widening street not forbidden by outcome of first assessment for original paving).


author: BECK, Judge:

text:
    461 A.2d 800
    FERRICK EXCAVATING AND GRADING, Appellant, v. SENGER TRUCKING COMPANY, a Partnership, and Wilbur A. Senger and Macarius J. Senger Jr., Partners and Individually.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed April 22, 1983.
    Reargument Denied July 1, 1983.
    Petition for Allowance of Appeal Granted Feb. 8, 1984.

      William C. Sennett, Erie, for appellants.
    William Sesler, Erie, for appellees.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   BECK, Judge:

The Erie County Court of Common Pleas en banc granted a motion for a new trial to appellee Senger Trucking Company, on the basis of inconsistency in the jury verdict and error in the trial court’s charge, and Ferrick Excavating and Grading Company appeals the order.

In March 1978, Ferrick Excavating entered into an oral agreement with Senger Trucking to transport Ferrick Excavating’s wheeled high lift on Senger Trucking’s trailer from Erie to a job site in Fairview. No compensation was discussed at the time the agreement was made, although Ferrick Excavating testified that if a bill had been sent by Senger Trucking it would have been paid. Senger Trucking’s agent, Richard Senger, the owner’s nephew and employee, drove the trailer carrying the equipment, and an employee of Ferrick Excavating, Dennis Herman, rode in the trailer, accompanying Senger. At trial the parties gave conflicting testimony as to instructions on which route to take from Erie to Fairview. In the course of the journey, Senger drove the trailer under a viaduct which was not high enough to allow the machinery on the trailer to pass through, and the equipment was damaged. A jury returned a verdict of $30,500 in favor of Ferrick Excavating.

At the conclusion of the trial, the court charged the jury on negligence, as follows:

The legal definition of negligence is this: Negligence is the want of due care. It is the want or lack of that due care which a reasonable person would exercise under similar circumstances. Now, has the plaintiff—has Fer-rick proved to you that the Sengers did anything that a reasonable person would not have done under like circumstances or that Senger did not do something that a reasonable person would have done under like circumstances or did something that a reasonable person would not have done under like circumstances, then Senger would be negligent (N.T. 288, 289).

The jury also received special interrogatories, which were answered as follows:

Question No. 1: Do you find that the defendant, Senger Trucking Company, was negligent:
Yes X No_
Question No. 2: If your answer to Question No. 1 was “Yes”, was such negligence a proximate cause in bringing about Ferrick Excavating and Grading’s damages?
Yes X No_
Question No. 3: Was the plaintiff, Ferrick Excavating and Grading, con-
tributorily negligent?
Yes X No_
Question No. 4: If your answer to Question No. 3 was “Yes”, was Ferrick Excavating and Grading’s contributory negligence a proximate cause in bringing about Ferrick Excavating and Grading’s damages:
Yes_ No X
Question No. 5: Taking the combined negligence that was a proximate cause in bringing about Ferrick Excavating and Grading’s damages as 100%, what percentage of that negligence was attributable to the defendant, Senger Trucking Company, and what percentage was attributable to the plaintiff, Ferrick Excavating and Grading:
Percentage of negligence attributable to defendant Senger Trucking Company.......80%
Percentage of negligence attributable to plaintiff Ferrick Excavating and Grading ... 20%
TOTAL____100%
If. you have found plaintiff, Ferrick Excavating and Grading’s negligence to be greater than 50% do not answer Question No. 6.
Question No. 6: State the amount of damages, if any sustained by plaintiff, Ferrick Excavating and Grading, as a result of the accident without regard to and without reduction by the percentage of negligence, if any, that you have attributed to the plaintiff, Ferrick Excavating and Grading.
$30.500

Following the verdict, Senger Excavating moved for a new trial on the basis of (1) error by the trial court in not giving requested instructions on gratuitous and mutual benefit bailment, and (2) irreconcilable inconsistency in the jury’s response to questions 3, 4, and 5. We believe the order for a new trial was incorrectly granted.

The granting or refusal of a new trial on the basis of the weight of the evidence is a matter of the court’s discretion and will not be reversed absent a finding of clear abuse of that discretion. Canery v. Southeastern Pa. Transportation Authority, 267 Pa.Super. 382, 406 A.2d 1093 (1979). It is well settled that a judge abuses his discretion if, in reviewing the evidence, he grants a new trial because he would have arrived at a different conclusion from that reached by the jurors. Bertab, Inc. v. Fox, 275 Pa.Super. 76, 418 A.2d 618 (1980), Weaver v. Firestone Tire and Rubber Co., 267 Pa.Super. 548, 407 A.2d 45 (1979). In the case at bar, however, the new trial was granted for other reasons.

Where the trial court instructs the jury on the controlling law, and it appears that the instructions do not comport with those required by the facts in- the record, a new trial must be granted. Lambert v. Pittsburgh Bridge and Iron Works, 227 Pa.Super. 50, 323 A.2d 107 (1974).

The first issue, therefore, is whether the trial court’s failure to charge the jury on the distinction between a gratuitous and mutual benefit bailment, as requested by appellee, constituted reversible error. We do not believe that it does. No bailment was created under the facts of the case; therefore no instruction regarding bailment was required or even appropriate.

A bailment is created when personalty is delivered or deposited for a particular purpose under an implied or express contract that the personalty will be redelivered to the person who originally delivered when the purpose is accomplished. 5 P.L.E. 1. Pennsylvania law distinguishes various kinds of bailments, such as those for the bailor’s sole benefit, those for the bailee’s sole benefit, and those for mutual benefit. In a mutual benefit bailment the bailee may receive compensation, and he is entitled to compensation if he has given adequate notice of his intention to charge the bailor. 5 P.L.E. 11, 12, 13, 16. Appellee argues, and the en banc opinion maintains, that the type of bailment determines what is “reasonable” due care under the circumstances, and since the jury was not instructed on these distinctions, Senger Trucking was deprived of the possible finding that, as gratuitous bailee, they did in fact act in a reasonable manner. The en banc court also noted, “The trial judge questions in the instant case as to whether or not any type of bailment actually existed on the facts presented to the jury” (R. no. 1).

In Sparrow v. Airport Parking Co. of America, 221 Pa.Super. 32, 289 A.2d 87 (1972) this Court pointed out that in a bailment there must be “relinquishment, for a time, of ... [the bailor’s] exclusive possession, control, and dominion over the property” (221 Pa.Superior at 35, 289 A.2d 87). In like manner, our Supreme Court in Taylor v. Philadelphia Parking Authority, 398 Pa. 9, 156 A.2d 525 (1959) insisted that a bailment requires that the bailor deliver the custody and control of the item to the bailee.

In the instant case, Ferrick Excavating entrusted the driving of the trailer carrying the machinery to Senger, but they did not entirely relinquish custody and control. Fer-rick Excavating’s regular driver, Herman, was sent to ride on the Senger Trucking vehicle to give instructions on the route to be taken to the job site, because Herman had made the trip before and knew the way (N.T. 81, 93, 110, 112). Herman testified that Senger ignored his directions and that the accident and resulting damage was caused by Senger’s failure to heed his instructions. We believe that this constituted negligence, but not in the context of a bailment. We therefore conclude that the trial court’s instructions on negligence were not in error.

The principal reason that a new trial was granted was a perception of inconsistency in the jury verdict. In effect, the jury said, in response to interrogatories no. 3 and 4, that Ferrick Excavating was contributorily negligent, but that such contributory negligence was not a proximate cause of damage. In answer no. 5, the jury said that 20% of the negligence that was a proximate cause of the damage was attributed to Ferrick Excavating.

Irreconcilable inconsistencies in jury verdicts are not permissable in jury actions. Baldassari v. Baldassari, 278 Pa.Super. 312, 420 A.2d 556 (1980); Pniewski v. Kunda, 237 Pa.Super. 438, 352 A.2d 462 (1976). For example, a verdict which is contradictory in its very terms cannot be split, leaving one part standing and deleting the rest. In Donaldson Iron Co. v. Howley Construction Co., 226 Pa. 445, 75 A. 685 (1910) the jury verdict indicated that the sum of money in issue was due to the plaintiff, and also that it was not due, but payable upon a contingency. This verdict had to be stricken in its entirety, and a new trial granted.

When there is a question of whether jury findings are consistent or inconsistent, the rule is that consistency will be presumed if at all possible. Beyrand v. Kelly, 434 Pa. 326, 253 A.2d 269 (1969). In appellate review, every reasonable possible construction is to be made in favor of the findings of a jury, and an inconsistency may be declared only when there is no reasonable theory or conclusion to support the jury’s verdict. Hornak v. Pittsburgh Ry. Co., 433 Pa. 169, 249 A.2d 312 (1969).

The decision to amend a verdict or to grant a new trial is within the discretion of the trial court. Usually these discretionary decisions are concerned with manifestly excessive or inadequate verdicts, or when a jury finds liability on the part of a principal but not an agent, when the only foundation for the principal’s liability is the imputed liability of the agent, as under the doctrine of respondent superior. Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91 (1961). When a jury returns an ambiguous or improper verdict, one proper remedy is to permit them to correct their mistake, rather than order a new trial. Rusidoff v. De Bolt Transfer, Inc., 251 Pa.Super. 208, 380 A.2d 451 (1977). We have held that while it is better procedure to have the jury mold the verdict before it is discharged, it is also possible to mold the verdict at a later time.

“[T]he court’s power to amend or mold a verdict is not limited to the time when it is rendered and recorded. While it is better procedure to mold the verdict before the jury is discharged, it may be done later where the meaning is clear.”

Westra v. Bennick, 245 Pa.Super. 257, 260-61, 369 A.2d 392, 393 (1976), quoting Longberry et al. v. Paul, 205 Pa.Super. 435, 438, 211 A.2d 107 (1965). This molding of the verdict is occasionally mandated when the intention of the jury is clear, but there is some confusion arising from the filling out of forms. Richards v. Dravo, 249 Pa.Super. 47, 375 A.2d 750 (1977). We have held that when the total verdict returned by a jury was not excessive, but a mistake occurs in the filling out of forms, the mistake should be corrected in order to avoid another expensive and unnecessary trial. Buchecker v. Reading Co., 271 Pa.Super. 35, 412 A.2d 147 (1979). The Supreme Court has found abuse of discretion in the trial court’s failing to accept and mold the verdicts of the jury and ordering a new trial instead of molding. Palmer v. Moses, 458 Pa. 535, 327 A.2d 80 (1974). In that case (also one in which negligence and contributory negligence were in issue) the jury returned three successive verdicts and the trial court ultimately declared a mistrial. The Supreme Court declared:

While we appreciate the trial court’s honest desire to protect the record, we cannot become so enmeshed in language that we ignore the clear expression of a conscientious lay jury. The record demonstrates without question that they exerted every effort to perform their duties in accordance with the instructions given and to convey to the court and litigants with all the clarity they could summon the results of their deliberations. No more can be reasonably required for those not trained in the law. Nor can we discard their diligent effort because of an asserted lack of precision in legal expression. (458 Pa. at 544-45, 327 A.2d 80).

We believe that in the instant case the jury clearly intended to express the belief that Ferrick Excavating was contributorily negligent and responsible for 20% of the total damages of $30,500. When one party moves for a mistrial because of excessiveness of the verdict, a proper remedy is for the court to reduce the verdict by an order of remittitur, in order to spare the parties the ordeal of a new trial. Wright v. Engle, 256 Pa.Super. 321, 389 A.2d 1144 (1978). In Wright v. Engle, the plaintiff indicated a willingness to have the court settle a challenged verdict by that technique.

We believe that this jury’s verdict may be rendered consistent by disregarding the response to interrogatory no. 4. As Ferrick Excavating points out, the jury made its basic findings of negligence, contributory negligence, and proximate cause in the first three questions. These answers are all consistent: Senger Trucking was negligent, its negligence was the proximate cause of Ferrick Excavating’s damage, and Ferrick Excavating was contributorily negligent. These answers reflect the factual findings of the jury on the issue of negligence. If there was any confusion or inconsistency, it related to how the verdict should be molded. once these factual findings were made, i.e. the relationship of interrogatory no. 4 (Ferrick Excavating’s negligence was not the proximate cause of the damage) and no. 5 (20% of the negligence that was the proximate cause of the damage was that of Ferrick Excavating). We believe that this apparent inconsistency can be remedied by molding the verdict so that damages awarded will reflect the basic factual findings of the jury.

Here, Ferrick Excavating has expressed a willingness to have the court direct a remittitur of 20% of the award (Appellants’s brief, p. 24). We conclude that the appropriate resolution of any question that may be raised by the jury’s responses should be resolved by taking the answer to interrogatory no. 5 (which is consistent with nos. 1, 2, 3, and 6) to express the jury’s intent. In doing so we follow the rule expressed in Beyrand, v. Kelly, supra, and Hornak v. Pittsburgh, supra, of finding consistency wherever possible. We therefore order a remittitur of the amount awarded to Ferrick Excavating in no. 6, i.e. $30,500, of 20%.

The order of the lower court ordering a new trial is reversed. Ferrick Excavating is awarded $24,400 in damages.


author: WIEAND, Judge: McEWEN, Judge,

text:
    461 A.2d 805
    David W. FOX, Administrator of the Estate of Jeffrey Allen Fox, Deceased, Appellant, v. PENNSYLVANIA POWER & LIGHT COMPANY and Consolidated Rail Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1983.
    Filed May 6, 1983.
    Reargument Denied July 18, 1983.
    Petition for Allowance of Appeal Denied Feb. 8,'1984.

      Robert E. Slota, Bryn Mawr, for appellant.
    Jerrold Paul Anders, Philadelphia, for-appellees.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Jeffrey Allen Fox, age 14, climbed a tower on a right of way of Consolidated Rail Corporation in Wilkes-Barre, Lu-zerne County, where he came in contact with a high voltage electric line owned by Pennsylvania Power & Light Company (P.P. & L.). He was electrocuted and fell eighty-five feet to his death. Letters of administration were issued to the decedent’s father in Luzerne County, where he resided, and he commenced wrongful death and survival actions against Consolidated Rail and P.P. & L. in the courts of Philadelphia County. P.P. & L. filed a petition under Pa.R. C.P. 1006(d) requesting a transfer of the action to the courts of Luzerne County for the convenience of parties and witnesses. The petition was granted, and the action was transferred as requested. The decedent’s estate appealed.

An order changing venue, although interlocutory, is appealable. Pa.R.A.P. 311(c) provides: “An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.” The order transferring venue, therefore, is properly before this Court for review.

A court is authorized by Pa.R.C.P. 1006(d) to transfer an action to the appropriate court of any other county where the original action could have been brought if it will serve the convenience of parties and witnesses. This rule vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion. Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960); Hamay v. County of Washington, 291 Pa.Super. 137, 141, 435 A.2d 606, 608 (1981); Daugherty v. Inland Tugs Company, 240 Pa.Super. 527, 531, 359 A.2d 465, 467 (1976); Tarasi v. Settino, 223 Pa.Super. 158, 161-162, 298 A.2d 903, 905 (1972).

In determining whether or not to transfer venue, a court should look to the interests of the litigants. “Important considerations ... are the relative ease of access to the sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possible need for a view of the premises, if such would be appropriate to the action; and all other practical problems that make trial of a case expeditious and inexpensive. The ends of justice are not served by allowing a suit to be litigated in a forum where, on balance, unnecessary hardship and inconvenience would be cast on one party without compensatingly fair convenience to the other parties and where suit might be more conveniently litigated in another forum available equally to both parties.” Daugherty v. Inland Tugs Company, supra, 240 Pa.Super. at 530, 359 A.2d at 466. Accord: Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 575, 426 A.2d 635, 644 (1980). The choice of forum by the plaintiff is also entitled to weighty consideration and should not be disturbed lightly. Walker v. The Ohio River Company, 416 Pa. 149, 152, 205 A.2d 43, 45 (1964); Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 575, 426 A.2d at 643; Pennsylvania Power & Light Company v. Gulf Oil Corporation, 270 Pa.Super. 514, 539-540, 411 A.2d 1203, 1217 (1979), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980); Daugherty v. Inland Tugs Company, supra, 240 Pa.Super. at 531, 359 A.2d at 467.

In the instant case there were weighty reasons for transferring the death action to Luzerne County. The accident happened in Luzerne County, where the decedent had resided with his parents. Letters of administration had been issued by the Orphan’s Court Division of the Luzerne County Court of Common Pleas to the decedent’s father, also a resident of Luzerne County. All fact witnesses were residents of Luzerne County, and it was the Wilkes-Barre police who had conducted an investigation into the circumstances surrounding the accident. Similarly, it was in Luzerne County that emergency medical care had been administered before the decedent was rushed to the Wilkes-Barre Hospital. If the accident site is to be viewed by a trial jury, this can only be done in Luzerne County. The defendant, P.P. & L., does business in Luzerne County, but its principal offices are located in Allentown, Lehigh County. Of all the parties, only Consolidated Rail, which is the corporate successor to Lehigh Valley Railroad Company, has an office in Philadelphia. Even counsel for the appellant does not have an office in Philadelphia; his offices are located in Montgomery County. It is apparent, therefore, that the only connection which this action has to Philadelphia County is that Consolidated Rail has an office there. There is no other connection.

Under these circumstances, it seems clear that the trial court did not abuse its discretion by transferring the action to Luzerne County. It may also be, as the trial court has suggested, that the inventory of cases in Luzerne County is such that a transfer from Philadelphia County will enable the case to be assigned an earlier trial date.

The order is affirmed.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

I concur in the result of the quite thoughtful opinion of the majority but have certain further thoughts.

Translation must here precede analysis. The Latin phrase, forum non conveniens, is, of course, too familiar to be any task. And while interpretation of the assertions of counsel may perplex the Berlitz School, the translation becomes routine for those who, in the words of Professor Harold Hill, “know the territory”.

Counsel for the parties provide the following assertions: The appellee, Pennsylvania Power & Light Company, seeks to transfer the suit to Luzerne County “for the convenience of the parties and the witnesses.”
The appellant-plaintiff urges the view that “Philadelphia County is as convenient a forum for the actual trial of this case as any other county.”

The actual propositions, when translated, are:

The appellee, Pennsylvania Power & Light Company, seeks the transfer since the verdict amounts in Luzerne County are not nearly as substantial as in Philadelphia County.
The appellant-plaintiff opposes the transfer because the settlement value and the verdict exposure is far greater in Philadelphia than in Luzerne.

While I am inclined to the view that once venue has been established, the case should not be transferred unless extreme inconvenience is demonstrated, Pa.R.C.P. 1006(d) refers simply to “the convenience of the parties and witnesses” as the standard by which the trial judge shall rule upon an application for transfer. And while our study of the facts leads to the conclusion that there was certainly a substantial basis for the denial of the petition for transfer, the scope of appellate review is limited to a determination of whether the hearing court abused its discretion. We are unable to so conclude since the record reflects a sufficient basis for the decision of the court to grant the petition for transfer. As a result, I concur in the result of the majority opinion.