author: MONTGOMERY, Judge:

text:
    643 A.2d 673
    Melvene J. SPIRER, Appellee, v. FREELAND & KRONZ, Attorneys at Law, and Craig A. McClean, Esquire, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1994.
    Filed April 14, 1994.
    Reargument Denied June 17, 1994.

      Dennis J. Roman, Pittsburgh, for appellants.
    John M. Silvestri, Pittsburgh, for appellee.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellee, Melvene J. Spirer, instituted the instant legal malpractice action against defendant-appellees Freeland & Kronz, a law firm, and Craig A. McClean, an attorney formerly associated with that firm. After the plaintiff filed her complaint, defendants filed an answer and new matter. The plaintiff filed a reply to the new matter. Subsequently, the parties engaged in discovery, and defendants Freeland & Kronz then filed a motion for summary judgment with a supporting brief and affidavits. Plaintiff responded with a brief in opposition to the motion for summary judgment and filed opposing exhibits and affidavits. Following oral argument, the trial court issued an order denying the defendants’ request for summary judgment. The trial court refused a request by defendants to modify its order to include a statement that the case involved controlling issues of law such as to justify an immediate appeal. The defendants thereafter filed a petition for review with our court, which was granted on March 17, 1993.

In our review of this appeal, several applicable standards are quite clear. A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b); Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). In doing so, we accept as true all well-pleaded facts in the non-moving party’s pleadings, and give that party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). However, parties seeking to avoid the entry of a summary judgment may not rest upon the averments contained in their pleadings; to the contrary, they are required to show, by depositions, answers to interrogatories, admissions and/or affidavits, that there is a genuine issue for trial. Pa. R.Civ.P. 1035(d); Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). In ruling on a motion for summary judgment, the court must ignore controverted facts contained in the pleadings. Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979). We must recognize that summary judgment is to be entered only in those cases that are clear and. free from doubt. Krause v. Great Lakes Holding, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989). Finally, we note that we will not reverse a trial court’s ruling on a motion for summary judgment unless there has been an error of law or a manifest abuse of discretion. Vargo v. Hunt, 398 Pa.Super. 600, 601, 581 A.2d 625, 626 (1990).

The defendant-appellants contend that the trial court erred in failing to grant summary judgment on two grounds. First, they argue that summary judgment was required under the rule enunciated by our Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991), rehearing denied, 528 Pa. 345, 598 A.2d 27 (1991), cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). In that case, which is more fully discussed below, it was held that a dissatisfied client plaintiff may not sue his or her attorney for malpractice, based upon retrospective unhappiness with the terms of settlement of litigation to which the plaintiff agreed, unless the plaintiff can show he or she was fraudulently induced to settle the original action. Thus, it is clear that only cases of fraud are actionable in such a setting. Secondly, the defendants argue that the trial court erred in failing to grant them summary judgment based upon their contention that the plaintiffs claim was barred by the applicable statute of limitations. They maintain, in that regard, that the plaintiffs action is grounded in negligence, and was instituted after the expiration of the applicable two year statute of limitations.

Both of the contentions raised on appeal by the defendants require that we carefully examine the pleadings as well as the other matters of record which were before the trial court when it ruled on the defendant’s motion for summary judgment. The plaintiffs complaint alleged that on February 17, 1984, she entered into an oral contract with the defendants wherein they agreed to represent her in a divorce action instituted by her former husband. The complaint asserted that the defendants breached an alleged duty of good faith and fair dealing in their performance of their agreement with her. The complaint further stated that defendants’ failure to perform their contractual obligations to her caused her to receive a distribution of marital property, alimony, and other available relief “in a deficient amount.” The plaintiff testified at significant length in a deposition, and provided more details of her claims against defendants. Her testimony revealed that in June 1985, acting upon the advice of the defendants, she entered into a marital property settlement and separation agreement, as well as an addendum to that settlement agreement, with her former husband. She averred that she received a deficient share of marital property, alimony and other relief because the defendants failed to obtain sufficient and appropriate financial information concerning her husband’s assets. She claimed their discovery efforts should have revealed significantly more assets which could have been claimed as joint marital property.

Defendants have pointed out that the settlement documents signed by the plaintiff, in connection with her divorce, provided that she fully understood, acknowledged and accepted the settlement terms as fair and equitable. Further, the documents stated that the settlement was entered into freely and voluntarily by both the plaintiff and her former husband, and did not result from duress, undue influence, or any collusion or improper or illegal agreements. Finally, the settlement agreement set forth an acknowledgement by each of the parties that they had entered into the agreement voluntarily, with separate and independent advice as to their legal rights and obligations, and had consented to the agreement believing it to be fair, just, adequate and reasonable.

We shall first address the defendants’ contention that summary judgment should have been granted based upon the rule enunciated in Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, supra. In that case, the plaintiffs instituted an action for legal malpractice as a result of their dissatisfaction with the terms of settlement they had agreed to in a prior medical malpractice action in which they had been represented by the defendants. In his majority Opinion, Justice Cappy set forth a bright line rule to be applied in such cases:

Simply stated, we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which the plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when the client has agreed to a settlement. Rather, only cases of fraud should be actionable. 526 Pa. at 368, 587 A.2d at 1348.

The Court explained that the primary reason negligence or breach of contract suits against lawyers would be disallowed, after a settlement had been negotiated by the attorneys, is that the allowance of such actions would create chaos in our civil litigation system. The Court pointed out that attorneys would be reluctant to settle a case for fear some other enterprising attorney, representing a disgruntled client, would find a way to sue them for something that could have been done but was not. The Court refused to endorse a rule that would discourage settlements and increase substantially the number of legal malpractice cases. It sought to foreclose the ability of dissatisfied litigants to agree to a settlement and then to file suit against their attorneys in the hope that they would recover additional monies. Of particular note in the instant case, the Court stated clearly that in the event a litigant believes he has been fraudulently induced into a settlement by his counsel, he has the right to file suit, but in doing so must allege with specificity the acts that he claims are fraudulent.

We have examined the record in the instant case in light of the clear holding of the Supreme Court in Muhammad. It is evident that the plaintiffs complaint failed to allege with specificity any fraudulent acts on the part of the defendants. Moreover, neither the testimony of the plaintiff in deposition, nor any other matter in the record, provides any additional evidence to support an inference that the plaintiff has established a cause of action in fraud against her former attorneys. The complete absence of allegations or other inferences of fraud compels us to conclude that the trial court committed an error of law in failing to grant summary judgment to the defendants, based upon the directly applicable rule enunciated by the Supreme Court in Muhammad.

In view of our determination that summary judgment should have been granted in accordance with the holding in the Muhammad case, it is unnecessary to examine the merits of the statute of limitations contentions raised by the defendants. The Muhammad rule applies, whether plaintiffs action is deemed to be based on negligence or contract principles.

The order of the trial court is hereby reversed and summary judgment is entered for defendants. Jurisdiction is relinquished.


source: Caselaw Access Project

author: CIRILLO, Judge: JOHNSON, Judge,

license: Public Domain

text:
    643 A.2d 677
    James WINPENNY, III v. Carol WINPENNY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1994.
    Filed April 26, 1994.
    Reargument Denied June 28, 1994.

      Carol Winpenny, Pro Se.
    William E. Jones, Abington, for participating party.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

Carol Winpenny (Appellant) appeals from an order entered in the Court of Common Pleas of Delaware County approving the Schedule of Distribution, Costs and Master’s Fees for property sold pursuant to a partition order of the Court of Common Pleas, as part of a long-standing divorce proceeding. We affirm in part and remand in part for assessment of costs.

On April 13, 1977, Partition of 6 Prince Edward Lane, Middletown Township, Delaware County, Pennsylvania, was directed by the Court of Common Pleas of Delaware County as part of the divorce settlement of Carol and James Winpenny, III (James). Appellant appealed the partition order. The order was affirmed by this court, Winpenny v. Winpenny, 296 Pa.Super. 299, 442 A.2d 778 (1982), and the Pennsylvania Supreme Court denied Appellant’s petition for allocatur. 10-15-82, No. 192 E.D.Allocatur Docket 1982. A petition for rehearing by this court was denied.

On March 28, 1983, an order was entered by the Court of Common Pleas of Delaware County, appointing Howard S. Klein, Esquire, as Master in Partition to conduct a sale of the property. This order was appealed by Appellant and affirmed by this court. The Pennsylvania Supreme Court denied Appellant’s petition to appeal.

On April 7, 1986, after disposition of the appeals related to the March 28, 1983 order, Appellant moved the Court of Common Pleas of Delaware County for reconsideration of the order. Reconsideration was denied and the orders of April 14, 1977 and March 28, 1983 were directed for enforcement.

On March 7, 1984, Appellant submitted a bid on James’ share of the property. This bid was subject to the condition that “only [half] the costs of the partition case, and [half] of the taxes liened (sic) on said property and [half] of the sewer rent liened (sic) on said property shall be paid in cash ... towards satisfaction of [the] judgment Carol liens (sic) against James, recorded in Delaware County.” R.R. at 35. This bid was rejected by the Master in Partition due to the conditions attached.

On May 11,1987, a bid approximating fair market value was submitted by Thomas D. Conley to purchase the property. This bid was accepted and the trial court approved the agreement of sale on February 9, 1988. Post-trial motions by Appellant were denied and she appealed to this court. In a memorandum decision dated November 8, 1989 (No. 3335 PHL 1988), this court addressed the merits of Appellant’s claims and affirmed the trial court’s order. The Supreme Court of Pennsylvania denied Appellant’s petition for appeal.

Thomas D. Conley petitioned the trial court to direct compliance and enforcement of the February 8, 1988 order. James joined Mr. Conley in this petition. After notice and oral argument, the trial court entered an order dated September 18, 1990 to enforce the sale to Mr. Conley. Appellant subsequently appealed the enforcement order to this court. This court affirmed the trial court’s order (No. 2819 PHL 1990), and Appellant petitioned the Supreme Court of Pennsylvania for appeal.

The Master in Partition filed a Motion for Approval of Distribution, Costs, and Master’s Fees for the sale on the property and a rule was entered on May 29, 1992. Appellant filed three motions to quash the rule, all of which were denied. Meanwhile, the Supreme Court of Pennsylvania, on July 16, 1992, denied Appellant’s appeal of the September 18, 1990 order. Following a hearing on the matter, the trial court entered an order approving the sale. Appellant appeals this order and raises the following issue:

Whether it was proper for the trial court to order the approval of Partition Master’s motibn, scheduling distribution of the proceeds from the sale of the property, while an allocatur petition was before the Supreme Court of Pennsylvania on a disparate issue?

The standard of review in such cases is whether an abuse of discretion was committed by the trial court. Johnson v. Johnson, 365 Pa.Super. 409, 411, 529 A.2d 1123, 1124 (1987) (citing Diamond v. Diamond, 360 Pa.Super. 101, 105, 519 A.2d 1012, 1014 (1987)) (further citations omitted). An abuse of discretion will be found “if the trial court failed to follow proper legal procedure or misapplied the law.” Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985) (citing Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980)).

Except for appeals from decisions of the Commonwealth Court and direct appeals allowed under 42 Pa.C.S. § 722, petitions to the Supreme Court of Pennsylvania are by permission, not by right. 42 Pa.C.S. § 724; Pa.R.A.P. 1114. Failure to grant such review means that the decision of the Superior Court stands as law. In addition, a petition to the Supreme Court for allowance of an' appeal does not have the effect of staying the trial court proceedings. Pa.R.A.P. 1313.

Furthermore, as is clear from the foregoing discussion of the procedural history of this case, the issues gleaned from Appellant’s brief have been before this court on no less than five previous occasions and before the Supreme Court of this state on at least four prior occasions. Re-evaluation is improper and pointless.

Appellant’s difficulties in this matter stem from a misunderstanding of court procedure and, in particular, the duties and responsibilities of a court-appointed Master in Partition. While it is by no means a requirement that persons who appear before the courts of this Commonwealth be skilled in the law, the interpretation of its statutes, rules, and regulations is not arbitrary, and requires practice. By the same token, the court system could not and would not be manageable without some reliance on the acquired expertise of practitioners in its processes as dictated by procedural rules. It is true that certain areas of the law can be most complex and tedious, however, others require no more than mere common sense and patience to comprehend.

Although Appellant may have been exposed to more courts through her filings than many experienced attorneys, she has failed to garner any understanding of the importance of procedure and the effect of judgments. Had she paid heed to any of the numerous opinions rendered in this case, she may have realized that the appellate court system exists to review genuine allegations of error committed by the trial courts. A mere mimicry of the buzzwords intended to invoke the operation of justice does not entitle a party to instant relief.

Abuse of the court system, whether by seasoned attorneys or by pro se parties, cannot be tolerated. The principals of “law of the case” and res judicata exist to provide finality of litigation in order to prevent situations, such as the one before us from occurring. See Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 374, 585 A.2d 504, 508 (1991). A party must raise all matters related to an issue at the first opportunity or be forever barred from raising them again. Id. Even giving the highest consideration to the pro se party, there can be no doubt from the record that Appellant has had every opportunity for appropriate hearings on the various points of which she now complains. There is also no basis for Appellant’s proposition that the numerous adjudications were made with the intent to deny her of her rights.

Avenues exist to assist a litigant who does not have the resources to retain counsel. Although Appellant may have had unpleasant experiences with a prior attempt at gaining legal assistance, it is not clear whether all her current routes to such assistance have been exhausted. Rather than continuing to face denial of her claims, we suggest that Appellant explore these opportunities before commencing any further litigation.

To further .encourage Appellant’s more prudent use of the legal system, we are assessing costs against her. Under Pennsylvania Rule of Appellate Procedure 2744,

[A]n appellate court may award as further costs, damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay ...,
if it determines that an appeal is frivolous.... The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.

Pa.R.A.P. 2744. An appeal is not frivolous simply because it lacks merit. Marino by Marino v. Marino, 411 Pa.Super. 424, 601 A.2d 1240 (1992). A claim is frivolous, however, if it has no basis in law or fact. Id. As stated above, we find the Appellant’s claim to lack such foundation. Allowing Appellant to continue to utilize the courts to pursue fruitless claims at the expense of not only the opponents specifically, but also the public, will not be tolerated. Accordingly, we remand for a hearing to determine appropriate costs to be paid by Appellant. See Patel v. W.C.A.B. (Saquoit Fibers Co.), 103 Pa. Commw. 290, 293, 520 A.2d 525, 526 (1987) (citing Appeal of Richard Michael George, 101 Pa.Commw. 241, 515 A.2d 1047 (1986)).

Order affirmed in part and remanded in part for a hearing and assessment of costs. Jurisdiction relinquished.

BECK, J., concurs in the result.

JOHNSON, J., files a concurring and dissenting statement.

JOHNSON, Judge,

concurring and dissenting:

I concur in so much of the Opinion of my distinguished colleagues as affirms the order of May 13, 1993, approving the schedule of distribution upon partition.

I must respectfully dissent from that portion of the Opinion which would award costs against Carol Winpenny, Appellant. The former husband, James B. Winpenny, III, did not participate on this appeal. The responding appellee, Thomas D. Conley, has submitted a brief composed of seven pages. There has been no application for further costs and damages, as contemplated by Pa.R.A.P. 2751. I would refrain from considering further costs and damages, as permitted under Pa.R.A.P. 2744, without some request being made by one of the parties.

      . The doctrine states that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal. Commonwealth v. Tick, Inc., 431 Pa. 420, 427, 246 A.2d 424, 427 (1968).

        . This Court, in an unpublished opinion dated December 14, 1990, has already determined that Mr. Conley is a “successor” party to this matter, thus precluding the possibility that adjudication was not made with identical parties to the proceeding.

      . Carol’s contentions of no adjudication with respect to her bid have been specifically addressed by the Superior Court in Winpenny v. Winpenny, No. 88-3335, slip op. at 3-4 (Pa.Super. Nov. 8, 1989). In addition, the record includes at least five transcripts of hearings held by the trial court on these various issues.


author: CIRILLO, Judge: BECK, Judge,

text:
    643 A.2d 680
    David ADAMSKI and Kathy Adamski v. Ronald C. MILLER and Allstate Insurance Company. Appeal of ALLSTATE INSURANCE COMPANY. David ADAMSKI and Kathy Adamski, Appellants, v. Ronald MILLER and Allstate Insurance Company.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1994.
    Filed May 3, 1994.
    Reargument Denied July 8, 1994.

      Kent H. Herman, Allentown, for Allstate.
    G. Christopher Parrish, Bethlehem, for Adamski.
    Ronald Miller, pro se.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal and cross-appeal from the judgment entered in the Court of Common Pleas of Northampton County in favor of David and Kathy Adamski and against Allstate Insurance Company (Allstate) in the amount of $50,000.00. We reverse.

This case arises out of an automobile accident which occurred on July 19, 1984 in Easton, Pennsylvania. The accident in question involved a motorcycle and a passenger automobile. The motorcycle, owned and operated by David Adam-ski, collided with an automobile, a 1973 Chevrolet Nova (Nova), driven by Ronald Miller (Miller) and owned by Madalyn Gower (Gower). Gower’s daughter, Patricia Dooley (Dooley), was a passenger in the automobile at the time of the accident.

The Adamskis commenced an action against Miller and Gower alleging physical injuries and loss of consortium resulting from the accident; the claim against Gower, however, was voluntarily discontinued prior to trial. After a jury trial, a verdict was rendered in favor of the Adamskis and against Miller in the amount of $305,000.00.

The Adamskis then instituted the instant garnishment action against Allstate claiming that Miller was insured under the Allstate policy covering Gower’s automobile. Allstate denied coverage based on its contention that Miller was not a permissive user of the Nova at the time of the accident. After a non-jury trial, the Honorable Michael V. Franciosa found that Miller had Gower’s (the insured’s) implied consent to use the Nova and, therefore, entered a verdict in favor of the Adamskis and against Allstate in the amount of $50,000.00, the limits of Allstate’s liability under the policy issued to Gower.

Allstate filed post-trial motions seeking judgment notwithstanding the verdict (j.n.o.v.) or, in the alternative, a new trial. See Pa.R.C.P. 227.1. Allstate argued in its motion that: (1) the evidence presented at trial did not support the trial court’s finding of implied consent to operate the Nova; and (2) the trial court made improper use of a transcript of juvenile proceedings involving Miller. Shortly thereafter, the Adam-skis filed a motion to mold the verdict, requesting pre-judgment and post-judgment interest on the amount of the verdict. By the order dated August 5, 1993, Judge Franciosa denied both motions. This timely appeal followed.

On appeal, Allstate raises three questions for our consideration:

(1) Whether the trial court abused its discretion or committed an error of law in finding that Ronald Miller had Madalyn Gower’s implied permission to operate the covered automobile at the time of the accident?
(2) Whether the trial court abused its discretion or committed an error of law in entering the verdict against Allstate without prejudice as to the Adamskis’ right to raise claims of bad faith against Allstate when the Adamskis were ordered to address the issue of bad faith ten days prior to trial?
(3) Whether the trial court abused its discretion or committed an error of law in considering a juvenile court transcript in evaluating the credibility of Allstate’s witnesses?

On cross-appeal, the Adamskis contend that the trial court abused its discretion or committed an error of law in denying their motion for pre-judgment and post-judgment interest on the verdict.

Our standard of review of an order denying j.rno.v. is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemanm-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: j.rno.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 311, 605 A.2d 373, 375 (1992). An appellate court will reverse a trial court ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892 (1984).

Our standard of review of a trial court’s grant or denial of a motion for a new trial is, generally, whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). If support for the court’s decision is found in the record, the order must be affirmed. A new trial will only be awarded where the verdict is so contrary to the evidence as to shock one’s sense of justice. Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 439, 539 A.2d 871, 875 (1988).

First, Allstate contends that the trial court abused its discretion or committed an error of law in finding that Miller had Gower’s implied permission to drive the Nova on the date in question. We agree.

Allstate issued the instant automobile insurance policy to Millard and Madalyn Gower on April 17, 1984. The policy covered three vehicles, including the Nova, and defined “persons insured” as follows:

(1) While using your insured auto
(a) You,
(b) Any resident relative, and
(c) Any other person with your permission.
Definitions
(5) “You” or ‘Your” — mean the policyholder named on the declarations page and that policyholder’s resident spouse,

(hereinafter as “The Omnibus Clause”). The policyholders listed on the declaration page of the instant policy were Millard and Madalyn Gower. It is clear from the record that the Gowers’ daughter, Patricia Dooley, had the Gowers’ express permission to operate the Nova on the accident date. In addition, it is undisputed that Miller did not have the Gowers’ express consent to drive the Nova. The question which remains, therefore, is whether Miller had the implied permission of the Gowers to drive the Nova at the time of the accident. See Exner v. Safeco Ins. Co. of America, 402 Pa. 473, 167 A.2d 703 (1961) (holding that for purposes of an omnibus clause in an automobile policy, permission given to a driver by the insured may be either express or implied).

“Implied permission may arise from the relationship of the parties or by virtue of a course of conduct in which the parties have mutually acquiesced.” Brower v. Employers’ Liability Assurance Co., Ltd., 318 Pa. 440, 444, 177 A. 826, 828 (1935). See State Farm Mut. Ins. Co. v. Judge, 405 Pa.Super. 376, 592 A.2d 712 (1991); Federal Kemper Ins. Co. v. Neary, 366 Pa.Super. 135, 530 A.2d 929 (1987). In Judge, supra, this court summarized the law of this Commonwealth concerning implied permission in the context of automobile usage:

[Permission requires something more than mere sufferance or tolerance without taking steps to prevent the use of the automobile, and permission cannot be implied from possession and use of the automobile without the knowledge of the named insured. The critical question will always be whether the named insured said or did something that warranted the belief that the ensuing use was with his consent. There must be a connection made with the named insured’s own conduct; proof of acts, circumstances, and facts, such as the continued use of the car, will be insufficient unless they attach themselves in some way to the acts of the named insured.

Judge, 405 Pa.Super. at 379-81, 592 A.2d at 714-15 (quoting Neary, 366 Pa.Super. at 140, 530 A.2d at 931) (citations omitted)).

The appellate courts of this Commonwealth have reversed trial court findings of implied consent in the following cases: In Volk v. Cacchione, 395 Pa. 636, 150 A.2d 849 (1959), a father granted his son permission to use the family automobile. During or after a high school dance in Erie, Pennsylvania, the son loaned the automobile to a friend, who was later involved in an automobile accident in the State of New York. Prior to the accident, the son and his friend had both worked for the father as apprentice plasterers and frequently borrowed the father’s automobile for social purposes. The Supreme Court of Pennsylvania found that this evidence was insufficient to demonstrate that the father had given his son’s friend implied permission to drive the automobile. Id. at 640, 150 A.2d at 852. Similarly, in Insurance Co. of No. America v. State Farm Mut. Ins., 266 Pa.Super. 197, 403 A.2d 611 (1979), a father granted permission to his daughter to use the father’s automobile to drive to and from college. The daughter, from time to time, loaned the automobile to her college roommate. On one such occasion, the roommate was involved in an accident while driving the automobile. The Insurance Company of North America (INA) denied coverage under the father’s policy. This court affirmed summary judgment in INA’s favor holding that the mere fact that the father knew that his daughter had a roommate and that he gave his daughter permission to use the automobile did not create a sufficient connection from which it could be implied that the father gave the roommate permission to drive the car. Id. at 198-200, 403 A.2d at 612-13.

Next, in Judge, supra, a case factually similar to this case, an insured left his automobile with a former girlfriend with instructions not to use the automobile during his absence. The automobile was insured by State Farm Mutual Insurance Company (State Farm). While the insured was away, however, the girlfriend gave her son permission to drive the automobile. Thereafter, the son was involved in a fatal automobile accident. This court reversed the trial court’s finding that the son had implied permission to drive the insured’s automobile even though the son had operated the automobile on two prior occasions. The son had first used the automobile in the presence of the insured in a parking lot and, on the second occasion, there was no evidence that the insured consented to its use or approved of it thereafter. Id. 405 Pa.Super. at 381, 592 A.2d at 715. This court found that the girlfriend’s son’s operation of the vehicle on these two prior occasions did not establish implied consent. Id.

After accepting the trial court’s factual findings, we find that Miller did not have the Gowers’ implied permission to drive the Nova at the time of the accident. The trial court made the following factual findings with respect to the use of the Nova:

(1) When Dooley [daughter of insureds] and Miller were living together, Miller did not own a vehicle. With her mother’s permission, Dooley had full-time, unrestricted use of the Nova.
(2) The Nova was kept at the apartment where Miller and Dooley resided.
(3) The Gowers were aware that Miller did not own a vehicle.
(4) Miller used the Nova to travel to and from work on several occasions, to and from the store, and to and from and various family members’ households.
(5) Miller repaired, maintained, and purchased gasoline for the Nova.
(6) At no time prior to the accident did the Gowers tell Miller that he was not permitted to drive the Nova.
(7) On one occasion prior to the accident, Mrs. Gower observed Miller driving the Nova on the opposite side of the road. Miller and Gower pulled over to the side of the road and exited their vehicles to converse. At no time during their conversation did Mrs. Gower tell Miller that he was not permitted to drive the Nova.

The fact that Miller drove the Nova to and from work, the store, etc., and repaired and maintained the Nova is irrelevant to our determination unless the Gowers, as the insureds, had actual knowledge of such use. Judge, supra; Neary, supra. To the contrary, the record indicates that the Gowers knew of only one occasion on which Miller drove the insured vehicle. The Gowers’ knowledge of one-time usage does not amount to “a course of conduct” so as to infer implied permission to drive the Nova. Brower, supra. The knowledge of this one occasion coupled with the fact that the Gowers knew that their daughter resided with Miller and that Miller did not possess his own vehicle is insufficient to establish the required connection between the named insured and the operator in order to establish implied permission. Brower, supra; Judge, supra; Neary, supra.

In addition to finding that Miller had implied permission to drive the Nova, the trial court found that Miller drove the Nova on the date in question with the “reasonable belief’ that he had the Gowers’ permission to do so. In so holding, the trial court relied on this court’s decision in State Farm Mut. Auto. Ins. v. Moore, 375 Pa.Super. 470, 544 A.2d 1017 (1989). This reliance is misplaced as the facts in Moore are clearly distinguishable from those in this case.

In Moore, an insured’s daughter had the insured’s permission to drive the covered automobile. After frequenting a few bars one evening, the daughter asked a friend (an unlicensed individual) to drive her parents’ automobile to a designated location while she rode with friends in another vehicle. On the way to the destination, the unlicensed driver was involved in an accident. The Ohio Casualty Insurance Company (Ohio Casualty) denied coverage claiming, in part, .that because the driver was not licensed to drive, he could not have had a “reasonable belief’ that he was entitled to use the insured vehicle. Id. at 472, 544 A.2d at 1018. The Ohio Casualty policy provided that:

We do not provide Liability Coverage:
11. For any person using a vehicle without a reasonable belief that the person is entitled to do so.

Id. at 474, 544 A.2d at 1019 (emphasis added). Pursuant to this exclusion in the insurance policy, the trial court instructed the jury that they were to decide whether the driver had a “reasonable belief’ that he was entitled to operate the vehicle. Id. at 474, 544 A.2d at 1019. The jury returned a verdict finding that the driver had a reasonable belief that he was entitled to drive the vehicle in question. Id. On appeal, this court upheld the jury’s verdict. Id. at 478, 544 A.2d at 1021; see also Belas v. Melanovich, 247 Pa.Super. 313, 372 A.2d 478 (1977); Carlsson v. Pennsylvania General Ins. Co., 214 Pa.Super. 479, 257 A.2d 861 (1969).

There is no such “reasonable belief’ provision/exclusion in this case. Rather, the Omnibus Clause in the Allstate policy unambiguously provides that unless Miller had the express or implied consent of the Gowers, as the insureds, to drive the Nova at the time of the accident, Allstate’s liability will not attach. Miller’s “reasonable belief’ at the time of the accident, therefore, is irrelevant. Consequently, the trial court’s alternative finding that Miller reasonably believed that he had the permission of the Gowers to drive the Nova is not supported by the law or the facts of this case.

Because we find no express or implied permission in this case, we conclude that the trial court erred in entering a verdict in favor of the Adamskis and against Allstate in the amount of $50,000.00. Pirozzi, supra

Judgment reversed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I believe that the majority has misapplied the law to the facts as found by the trial court, and I therefore must dissent.

In this appeal from the trial court’s denial of a motion for judgment notwithstanding the verdict (j.n.o.v.), we merely must decide whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989). It was, after all, the trial judge who observed the demeanor and relative credibility of the witnesses. We also must examine the evidence in the light most favorable to the verdict winner below. See Belas v. Melanovich, 247 Pa.Super. 313, 372 A.2d 478 (1977). Under this limited scope of review, we may properly accept the trial court’s finding of fact that:

On one occasion prior to the accident, Gower [insured owner] observed Miller driving the vehicle on the opposite side of the road. Gower passed Miller, who was driving the vehicle, on the opposite side of the road. Gower changed the direction of her vehicle and drove up behind Miller, blinking her lights. Gower then pulled over, as did Miller. Gower exited her car, approached Miller, and they had a brief conversation. During that encounter, Gower did not tell Miller that he was not allowed to use her vehicle. Thereafter, Gower did not tell Miller that he was not permitted to use the vehicle.
Finding of- Fact 18, Tr.Ct. Opinion at 4-5. Despite the apparent acceptance of this finding, and the additional findings that Mrs. Gower knew that her daughter and Miller lived together, and that he did not have a car of his own (R. 87a, 89a), the majority here reverses the trial court’s conclusion that Miller had implied permission to operate the insured vehicle. By granting j.n.o.v. in favor of Allstate on this issue,- the majority has misconstrued the applicable case law.

The majority relies upon Volk v. Cacchione, 395 Pa. 636, 150 A.2d 849 (1959), Insurance Co. of N. America v. State Farm Mut. Ins. Co., 266 Pa.Super. 197, 403 A.2d 611 (1979), and State Farm Mut. Ins. Co. v. Judge, 405 Pa.Super. 376, 592 A.2d 712 (1991) to support the conclusion that there was no implied permission in this case. I would agree that the facts in each of these cases indicate that the insured owner did not give implied permission to use the vehicle to the ultimate driver.

In Volk, for example, the insured owner (“father”) permitted his son to drive the insured vehicle on prom night. The son then allowed his friend to borrow the car, during which time it was involved in an accident. The supreme court held that the friend did not have implied permission to use the vehicle, even though the friend, who also worked for the father, occasionally was permitted to use a business vehicle for specific errands as instructed by the father. Aside from these limited instances when the father knew about and approved of the friend’s use of one of father’s automobiles, the friend previously drove the car involved in the accident only on occasions when son also was a passenger. Son was not in the car at the time of the accident. Although the majority states that the son and his friend “frequently borrowed the father’s automobile for social purposes,” it is not clear from the Volk opinion what were the circumstances of such “borrowing,” or even whether the father knew that the friend borrowed the car at these times.

In addition, in Insurance Co. v. State Farm, supra, this court held that the father-owner had not given implied permission to his daughter’s roommate to use his automobile. The father had no knowledge of the roommate’s use, and there was no “connection made with the named insured’s [father’s] own conduct.” Id. at 198, 403 A.2d at 612. In this case, there certainly was a “connection” between Miller’s use of Gower’s automobile, Gower’s own conduct after discovering the use, and her subsequent silence.

Nor is Judge, supra, factually similar to this case. In Judge, this court properly found that there was no implied permission where the insured owner temporarily left his vehicle in the custody of his former girlfriend, with express instructions that she not use it. The fact that the girlfriend’s son previously had driven the car in a parking lot, while the owner was in the car with him, did not give rise to an inference of implied permission. Finally, the fact that the son had driven the vehicle on other occasions without the owner’s consent or approval did not change matters. There was no indication that the owner even knew about these additional driving incidents. Obviously, no implied permission could be inferred from such facts. See also Laroche v. Farm Bur. Mut. Auto. Ins. Co., 335 Pa. 478, 7 A.2d 361 (1939) (driver had owner’s express permission to drive vehicle to Washington, but there was no implied permission for driver’s use of vehicle on another trip); Belas v. Melanovich, supra (where owner allowed her nephew to drive vehicle, and nephew let his friend drive, friend did not have owner’s implied permission to drive).

In none of the cases cited by the majority was there actual knowledge of the use of the automobile coupled with a failure to object by the insured owner. In this case, Mrs. Gower witnessed Miller driving her car, the two immediately pulled over to the side of the road and actually had a conversation, but Mrs. Gower never said anything about Miller’s use of her car. Her failure to object to Miller’s using the car, once she knew that he did so, operates as implied permission.

I would affirm the trial court’s order denying the motion for judgment n.o.v.

      . Of this $305,000.00 verdict, $265,000.00 was awarded to David Adamski for his physical injuries and the remaining $40,000.00 was awarded to Kathy Adamski on her loss of consortium claim.

      . Because we reverse and enter judgment in favor of Allstate, we need not address Allstate’s remaining contentions or the Adamskis’ contention on cross-appeal.

      . Actually, the majority has summarized this finding as follows:
      On one occasion prior to the accident, Mrs. Gower observed Miller driving the Nova on the opposite side of the road. Miller and Gower pulled over to the side of the road and exited their vehicles to converse. At no time during their conversation did Mrs. Gower tell Miller that he was not permitted to drive the Nova.
      Majority Opinion at 363.


author: DEL SOLE, Judge: BECK, Judge,

text:
    643 A.2d 687
    William CURRAN and Paula Curran, Appellant, v. GREATE BAY HOTEL AND CASINO t/a Sands Hotel & Casino and Eastern Engineering and Elevator Company, Appellee. William CURRAN and Paula Curran, Appellee, v. GREATE BAY HOTEL AND CASINO t/a Sands Hotel & Casino and Eastern Engineering and Elevator Company, Appellee (Two Cases). Appeal of EASTERN ENGINEERING AND ELEVATOR COMPANY, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1993.
    Filed May 17, 1994.

      Daniel Siegel, Philadelphia, for Curran.
    Lynn Hogben, Philadelphia, for Greate Bay.
    Louis Bell, Philadelphia, for Eastern Engineering.

      Before ROWLEY, President Judge, and McEWEN, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

The consolidated appeals presented before us for review are taken from a judgment entered against Eastern Engineering and Elevator Company (Eastern).

Eastern was a named defendant in an action brought by William and Paula Curran for injuries allegedly suffered as a result of a fall Mr. Curran sustained when a moving escalator on which he was riding in the Sands Hotel and Casino (Sands) came to a sudden stop. The Sands was also named as a defendant with Eastern, who was responsible for maintaining the escalator. A five day jury trial was held after which the jury returned a verdict. The trial court’s interpretation of the jury’s verdict forms the basis for issues presented in the appeals filed in this case.

The verdict slip had been prepared with special interrogatories for the jury to consider and answer. The jury responded and found, in answer to questions numbered one and two, that Sands was negligent, but that the negligence of Sands was not a substantial factor in causing harm to plaintiffs. In answering questions numbered three and four, the jury determined that Eastern negligently breached its duties under the maintenance contract, and that Eastern’s negligence was a substantial factor in causing plaintiffs’ harm. The jury next found that William Curran was not negligent. When asked what percentage of plaintiffs damages should be attributed to the causal negligence of each of the parties, the jury responded by attributing 30% to Sands, and 70% to Eastern. William Curran was assigned a zero percentage figure by the jury. The final question asked “[wjhat damages, if any, do you award plaintiffs?” Appearing next to William Curran’s name was the amount of $301,000.00. A zero was written in the line next to Paula Curran’s name. The trial court subsequently molded the verdict and entered judgment solely against Eastern in the amount of $210,000.00, representing 70% of the $301,000.00 verdict award, plus delay damages.

On appeal Eastern sets forth five issues questioning the sufficiency and weight of evidence to support the verdict, the trial court’s evidentiary rulings and the need for a new trial due to inconsistency in the jury verdict. The Currans, in addition to refuting these claims, have filed their own appeal alleging that the trial court erred in molding the verdict thereby precluding them from receiving the entire $301,000.00 verdict award, and that the court erred by failing to make an additur for Paula Curran’s damage claim based on loss of consortium.

After reviewing the record in light of the issues presented, we conclude that all of the issues with the exception of those questions concerning the jury verdict, and the court’s action with respect to that verdict, can be readily dismissed. The trial court, in its opinion written in response to the parties’ post-trial motions, has thoroughly discussed these matters and, for the reasons provided therein, we conclude that the trial court correctly found the issues to be without merit. We turn now to the remaining matter of the jury verdict.

Eastern argues that the court’s decision with respect to the verdict should be reversed and a new trial ordered because the answers given by the jury to the specific interrogatories were inconsistent. Eastern maintains that these inconsistencies are irreconcilable, and demonstrate jury confusion on the issue of causation, thus necessitating a new trial. In response, the Currans and Sands argue that this claim was waived by Eastern when it failed to object at the time the jury rendered its verdict. While disputing Eastern’s contention that a new trial is warranted, the Currans nevertheless urge us to disturb the trial court’s decision which molded the verdict and allowed William Curran to recover only 70% of the $301,000.00 jury award. The Currans suggest that a decision which precludes William Curran from recovering the entire jury verdict is in error.

It is clear from an examination of the jury’s responses to the interrogatories that an interpretation of their answers is troublesome. However, whenever possible we must look to find consistency in a jury’s verdict. “It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict.” Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 440, 539 A.2d 871, 875 (1988). Thus, we must examine the jury verdict to determine whether this presumption of consistency may stand. A similar undertaking was conducted in Goldmas v. Acme Markets, Inc., 393 Pa.Super. 245, 574 A.2d 100 (1990).

In Goldmas the jury determined that the defendant was negligent and that the defendant’s negligence was a substantial factor in bringing about the plaintiffs harm. It further found that the .plaintiff was not contributorily negligent, but attributed defendant with 75%, rather than 100% of the causal negligence. The plaintiff was not assigned any percentage figure for causal negligence. The court found certain consistencies in the jury’s verdict. It ruled that there was “no question as to the jury’s finding that [the defendant] was negligent, and that the negligence of [the defendant] was a proximate cause of [the plaintiffs] damages.” Goldmas, at 252, 574 A.2d at 104. It further found that there was “no confusion” concerning the jury’s finding that plaintiff was not contributorily negligent. Because the jury consistently rejected the defense of contributory negligence, the Goldmas court concluded that the 75% figure was “mere surplusage” which had “no effect on the valid verdict rendered by the jury.” Id. The court thus permitted plaintiff to recover the entire award from the defendant.

In the instant case certain inconsistencies are apparent when reading the jury’s responses to the interrogatories; however, it is equally apparent that other matters have been clearly determined by the jury. We can begin by noting that the jury found that Mr. Curran was not contributorily negligent. Thus an award to William Curran cannot be reduced due to any contributory negligence on his part.

The jury also specified the damages which Mr. Curran was entitled to recover. It found that he should be awarded $301,000.00 plus delay damages for his injuries. This factual finding cannot be disputed since it has been clearly set forth in the verdict rendered by the jury. A decision to alter this award, such as was made by the trial court when it reduced this figure, cannot be upheld because there is no confusion in the jury’s determination that Mr. Curran was entitled to recover the specific sum of $301,000.00 plus delay damages for the injuries he suffered as a result of the accident.

Finally, it is also evident that the jury found Eastern liable for Mr. Curran’s injuries. The jury was instructed in this case that the Currans had to establish both negligence and causation in order to recover from the defendants. The court’s charge specifically advised the jurors:

Now, in order for William Curran and Paula Curran to recover in this case they must show that the defendants’ negligent conduct was a substantial factor in bringing about the harm, and that is what the law recognized as a legal cause.

N.T. 1/27/92 at 135.

In accordance with this instruction the jury reviewed the evidence and specifically found that Eastern breached its duties under the maintenance contract and that this negligence was a substantial factor in causing harm to Mr. Curran. These answers provided by the jury to the interrogatories submitted to them undisputably establish that the jury concluded that William Curran is entitled to recover from Eastern for his damages.

What is unclear from the jury’s verdict is the liability of Sands. Although the jury determined that Sands’ was negligent, unlike Eastern, it was found that Sand’s negligence was not a substantial factor in causing Mr. Curran’s harm. Despite this statement that Sand’s negligence was not the legal cause for Mr. Curran’s injuries, the jury found that 30% of the damages were attributable to Sands’ “causal negligence.” The jury also assigned Eastern a figure of only 70% relating to “causal negligence,” although Eastern was the only party found to be legally responsible for Mr. Curran’s injuries. The jury’s responses to these interrogatories cannot be reconciled.

A similar situation existed in the case of Ferrick Excavating v. Senger Trucking, 506 Pa. 181, 484 A.2d 744 (1984). The jury in that case when responding to interrogatories found that the defendant was negligent and that its negligence was a proximate cause of the plaintiffs damages. The plaintiff was found to be contributorily negligent, but its negligence was not found to be the proximate cause for the injuries. As in the instant case, despite a finding that a party’s negligence was not the legal cause of damages, that party was found to be responsible for a percentage of the damages. In the Ferriek case, the plaintiffs proximate negligence was found to be 20%. The defendant was assigned an 80% figure for responsibility. When reviewing this verdict, our Supreme Court determined that the answers to the interrogatories “set up an irreconcilable inconsistency between the finding in 4 that Ferrick’s negligence was not a proximate cause of the injury and the finding in 5 that Ferrick’s proximate negligence was 20%.” Ferriek, at 187, 484 A.2d at 747.

Like in Ferriek we must find the jury’s answers to interrogatories to be irreconcilably inconsistent. We cannot explain how the jury could apportion damages between Sands and Eastern after determining that Sands negligence was not the legal cause for Mr. Curran’s injuries, and that only Eastern’s negligence was the substantial factor in causing harm to Mr. Curran. Under such circumstances, where we could do no more than guess at the jury’s thinking, we would ordinarily order a new trial to determine these unanswered questions of responsibility. However, in this case, there is a question of waiver.

In the instant case the jury returned its verdict, was polled and then dismissed. The jury was dismissed before any objections or requests for clarification of the obviously inconsistent verdict were made by any party. Immediately after the jury left the room the trial court asked counsel “what does this all mean?” Although counsel were permitted by the court to offer their interpretations and were advised that the court would accept written clarification of their positions regarding the jury verdict, no party, including Eastern who now seeks a new trial, acted before the jury was discharged.

Our Supreme Court in, City of Philadelphia v. Gray and Williams v. SEPTA 534 Pa. 467, 633 A.2d 1090 (1993) (“Williams”) recently considered the question of waiver in similar circumstances.

In Williams the plaintiff claimed that the trial court should have molded the jury verdict to enter judgment against SEPTA or, in the alternative, granted a new trial due to the inconsistency of the jury’s answers to interrogatories. The jury’s response to these interrogatories found the SEPTA driver to be negligent, but his negligence was not found to be a substantial factor in plaintiffs accident. Another defendant, a city police officer, was found to be negligent in the operation of his vehicle, and his negligence was found to be a substantial factor in plaintiffs accident. The jury then indicated the percentage of causal*negligence of both defendants assigning SEPTA a 25% figure and the city a 75% figure. The jury then went on to conclude that the plaintiff did not suffer a permanent loss of a bodily function and awarded her $20,-000. 00 in damages of which $18,000.00 was found to be for pain and suffering. The trial court rejected plaintiffs post-trial motions requesting judgment in favor of SEPTA or, in the alternative, a new trial. The trial court found that the jury made consistent findings with regard to SEPTA’s negligence and entered judgment in favor of plaintiff against the city, and in favor of SEPTA against the plaintiff.

The trial court’s decision was affirmed on appeal to the Supreme Court. The Supreme Court remarked that the plaintiff raised the issue of the inconsistency of the jury’s answers to the interrogatories for the first time in her post trial motions. Because the plaintiff did not object to the jury’s answers when the verdict was rendered, the court held that the plaintiffs request for a new trial based upon inconsistent verdicts was not preserved for review. Thus the court did not disturb the trial court’s decision refusing to award a new trial “notwithstanding the inconsistency of the jury’s answers to the interrogatories” Id., 534 Pa. at 478, 633 A.2d at 1095. The judgment in favor of SEPTA and in favor of the plaintiff against the city for $2,000.00 was affirmed. This affirmance was based upon waiver despite the apparently inconsistent determination that SEPTA’s negligence was not a substantial factor in plaintiffs accident and the jury’s decision to assign SEPTA a 25% figure when asked to indicate the percentage of casual negligence responsible by the parties.

In the instant case, as in the Supreme Court’s recent decision, the party seeking a new trial failed to request a correction of the verdict before the jury was discharged. Despite the obvious problem with the jury verdict, Eastern did not seek to have the inconsistencies resolved until it filed post trial motions. Thus, we do not have the option of seeking clarification of the jury’s verdict and must enter judgment according to the verdict pronounced by the jury. It is this failure to act before the jury was discharged that constitutes waiver. Williams, supra. The purpose of requiring action is to enable the jury to correct an obvious mistake.

In this case, as in Williams, supra, a party was assigned a percentage of causal negligence despite an earlier finding by the jury that that same party’s negligence was not a substantial factor in causing the plaintiff’s harm. The Williams court affirmed the trial court’s entry of judgment against the plaintiff and in favor of the defendant whose negligence was not found to have been a substantial factor in causing the harm. We likewise do the same in the case before us.

The jury clearly determined that Eastern was responsible for Mr. Curran’s injuries, that the injuries totaled $301,000.00, and that Mr. Curran was not contributorily negligent. The jury did not find that Sands’ negligence was a substantial factor in causing harm to Mr. Curran, and in view of the fact that Eastern waived any objections to any inconsistencies which appear to question this specific finding, we find, in accordance with Williams, that they have been waived.

Accordingly we reverse the judgment entered by the trial court and remand for the entry of judgment in favor of William Curran and against Eastern in the amount of $301,-000.00, plus delay damages and interest.

McEWEN, J., concurs in the result.

BECK, J., files a concurring and dissenting opinion joined by ROWLEY, President Judge, and TAMILIA and HU-DOCK, JJ.

BECK, Judge,

concurring and dissenting.

I agree with the majority’s conclusion that all of the issues raised in this appeal, with the exception of the questions concerning the inconsistent jury verdict, were properly dismissed by the trial court. I also agree with the majority’s holding that the jury’s verdict was irreconcilably inconsistent. My colleagues correctly state that “[u]nder such circumstances, where we could do no more than guess at the jury’s thinking, we would ordinarily order a new trial to determine these unanswered questions of responsibility.” Majority Opinion at 690.

I must dissent, however, from the majority’s ultimate conclusion that appellant Eastern Engineering & Elevator Company (“Eastern”) waived its claim for a new trial based on the inconsistent verdict. The majority relies upon a recent decision by our supreme court, City of Philadelphia v. Gray and Williams v. SEPTA, 534 Pa. 467, 633 A.2d 1090 (1993).

In Williams, the court confronted a similarly inconsistent verdict, yet denied a new trial because the appellant had waived her right to raise the issue:

The record reveals, however, that when the jury returned with the verdict, the court crier posed the [jury] interrogatories to the foreperson of the jury ... The trial court asked if either party wanted the jury polled. Each party declined. The verdict then was recorded. [Williams] did not object to the inconsistency of the jury’s answers to the interrogatories when the verdict was rendered. Instead, she raised this issue for the first time in her post trial motions. Because this issue was not preserved at trial, we must find it waived. Dilliplaine v. Lehigh Valley Trust Co., [457 Pa. 255, 322 A.2d 114 (1974) ].

Williams, 534 Pa. at 477, 633 A.2d at 1095.

The post-verdict events in Williams differ from those in this case. Significantly, after the jury foreperson read the answers to the special interrogatories, and the inconsistency was revealed, counsel for Eastern asked that the jury be polled. R. 983a. The verdict then was recorded, and the following colloquy took place:

THE COURT: All right. Well, what does this all mean, folks? Sands?
MR. HEMSLEY [Counsel for Sands]: Well, Your Honor, I would move to mold the verdict because there is an inconsistency. The jury found the negligence of the Sands was not a substantial factor in causing harm to the plaintiffs and in , number seven they apportioned negligence at 30% and 70%, 30% for the Sands.- Given the finding number two, that apportionment cannot hold and the only finding there’s been against the defendants or I submit to you it’s inconsistent
and the 30% should be -withdrawn and based on the report of the jury it should be 100% on Eastern. They said there’s no causation.
THE COURT: Okay, I’m not going to make any rulings, I just want to get your initial reaction to all of this. Mr. Bell, do you have any comments?
MR. BELL [Counsel for Eastern]: No, your honor.
THE COURT: You don’t have to bind yourself, you can sit down, write memos and all of those things.
MR. BELL: There [sic] will be filing post-trial motions. R. 987a-988a. The trial court proceeded to ask the plaintiffs’ attorney what his reaction to the verdict was, and he responded that Eastern should be responsible for the whole award. The trial judge replied that he would “have to see that in writing.” The Sands’s attorney also stated that he “would like to look at that” and that “it will be in the motions.” Id.

When the entire post-verdict colloquy is considered, especially in light of the fact that the trial court did not intend to make any immediate rulings on the obviously inconsistent verdict, it is apparent that the waiver argument must fail. As the supreme court noted in Dilliplaine, supra, the purpose of an objection is to call the alleged error to the trial court’s attention, and to allow the trial court “the chance to hear argument on the issue and an opportunity to correct error.” 457 Pa. at 257, 322 A.2d at 116. In this case, the record shows that the trial court and the parties immediately recognized the problem with the verdict. The trial court expressly permitted the parties to save their arguments for the post trial motions, and specifically declined to “bind” the parties at that stage of the proceedings. Under the facts of this case, I do not see how the waiver argument can prevail. See James v. Nolan, 418 Pa.Super. 425, 614 A.2d 709, 711 n. 1 (1992) (a panel of this court considered appellant’s “waived” inconsistency argument out of “deference to the trial court,” who ordered the courtroom cleared after accepting the jury’s verdict).

I would remand for a new trial.

ROWLEY, President Judge, and TAMILIA and HUDOCK, JJ., join.

      . Judgment was entered in favor of plaintiff and against the City of Philadelphia in the amount of $2,000.00 based upon 42 Pa.C.S.A. § 8553(c)(2), which allows damages to be recoverable for pain and suffering only where there is a permanent loss of bodily function, permanent disfigurement or permanent dismemberment and the medical and dental expenses exceed $1,500.00.

      . We note that the trial court was apparently well aware of the problems presented in the jury's answers to the interrogatories. Immediately after discharging the jury the court asked counsel to offer their opinions interpreting the verdict. While we reiterate that the type of inconsistency which resulted in this case demonstrates the "impracticability of interrogatories,” Ferrick v. Senger, supra, we caution trial courts not to discharge juries where there are obvious problems with a jury verdict which might be resolved with more instruction and further deliberations. Had such occurred in the instant case, the problems which necessitated this appeal may well have been avoided.

      . I realize that the grant of a new trial would not be the most judicially economical result. However, I believe that in this particular case, to find waiver and thus avoid á new trial where there is no question that the jury's verdict is inconsistent, would be to exalt form over substance.


author: DEL SOLE, Judge:

text:
    643 A.2d 692
    Alfred SOBERDASH, Donald Soberdash and Thomas Soberdash, Trading as Soberdash Coal and Coke Company, Appellee, v. Walter C. ROGERS and TMC Transportation, Inc. Appeal of TMC TRANSPORTATION, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1993.
    Filed June 8, 1994.

      Tracy Garland Vinson, Pittsburgh, for appellant.
    Mary Campbell Spegar, Connellsville, for Soberdash, appellees.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal from an order denying Appellant’s Motion to Strike or Open Default Judgment. We reverse.

This case involves a negligence action filed by Appellees against Appellant, TMC Transportation and its employee, Walter Rogers. A complaint was served on Appellant on September 11, 1992. In an effort to resolve the matter, Appellant entered into negotiations with Appellees’ attorney, tendered an offer of settlement, and received a 30 day extension in which to file an answer. A September 23, 1992 letter from Appellant to Appellee’s counsel confirmed the 30 day extension and expressed hope that the proposed offer would be accepted “prior to us filing an answer.” This correspondence did not set a specific date by which an answer should be filed. Another letter was written by Appellant on October 20, 1992 stating “Unless I hear from you I will assume you will give TMC an extended continuance until you get back with us on our offer.” Plaintiffs’ Counsel denied receiving this letter. On February 1, 1993, Appellant sent another letter to Appellee’s counsel requesting a response to the outstanding offer of settlement and indicating that he was “still holding off on filing an answer to the complaint based on your verbal agreement on a continuance.” Appellee admitted this letter was received on February 4, 1993. On February 3, 1993, appellee filed a praecipe for default judgment against TMC. Appellant received notice that a default judgment was taken on March 26, 1993.

Appellant first contends that the trial court erred in dismissing the petition to strike the default judgment because Appellees were required to send a ten day notice of their intention to enter the default judgment. We agree.

The trial court concluded there were no defects on the face of the record justifying a striking of the judgment. It concluded that no ten day notice was required, relying on Pa. R.Civ.P. 237.1(a). The rule provides:

... If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the Prothonotary -without prior notice under this rule.

Appellant’s letter of September 23, 1992 was attached to the praecipe for default and did appear to be an agreement for an extension. However, it is apparent that the letter of September 23,1992 does not satisfy the requirements of Rule 237.1 to the degree necessary to excuse the sending of a ten day notice of default. The identical issue was raised by the appellant in Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57, 59-60 (1991). In Alba, as in the instant case, appellees do not deny the failure to give notice but argue that it is excused under the Rule because the parties executed an agreement for extension of time to file an answer, and appellants did not comply with the agreements. In Johnson v. Southeastern Pa. Trans. Auth., 524 Pa. 209, 570 A.2d 71 (1990), our Supreme Court held that where one party requested a thirty day extension and the other party’s letter granted the extension, an “exchange of letters” did not take place which manifested an agreement, but instead the writing indicated only a proposal and counter-proposal. Based on Johnson, we determined in Alba, supra, that a term such as “thirty day extension,” without more, “inherently is insufficiently specific to effect a waiver of the requirement of ten day notice.” Alba, 409 Pa.Super. 410, 598 A.2d at 59. Because the letter in Alba referring to a “sixty day extension,” was subject to different interpretations, we held that the letter created the same type of ambiguity which the Rule intended to avoid. Likewise, in the instant case, we hold that the September 23, 1992 letter did not satisfy the Rule since the final time set for the filing of a responsive pleading was not stated, and therefore a separate ten day notice was required before a default judgment could be entered.

Therefore, the record is defective on its face, and as a result we must conclude that the trial court erred in failing to strike the judgement. When determining if a record is facially correct to support a default judgment, compliance with Rule 237.1 must exist. Where, as here, the purported agreement does not satisfy the Rule, the ten day notice is required and a judgment entered without that notice must be stricken.

Given the result reached on the request to strike, we need not consider the request to Open, since it is moot.

Order of the trial court is reversed, the judgment entered is stricken. Case remanded for further proceedings, jurisdiction relinquished.


author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    643 A.2d 694
    Ronald A. MILLER, Sr., Administrator of the Estate of Ronald A. Miller, Jr., Appellant, v. The BRASS RAIL TAVERN, INC., A Pennsylvania Corporation, and Thomas E. McMaster.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed June 23, 1994.

      Robert Lugg, Lock Haven, for appellant.
    Paul D. Welch, Jr., Lock Haven, for appellee.
    Before CAVANAUGH, WIEAND and SAYLOR, JJ.
   CAVANAUGH, Judge:

This appeal is from a judgment entered against appellant after a non-jury trial. Appellant represents the estate of his deceased son who died in a single car accident after an evening of drinking alcoholic beverages. Appellees are the corporate owner of a bar and its principal shareholder. The lower court found that appellant had not proven liability because he did not demonstrate a causal link between appellee’s negligence in serving the visibly intoxicated decedent and the occurrence of the accident.

On appeal, appellant challenges the exclusion of the proffered testimony of the county coroner to establish the time of decedent’s death. No other evidence was offered to prove time of death. The lower court excluded the evidence for two reasons: (1) the coroner, Dean K. Wetzler, Jr., was not identified as an expert witness, merely as a fact witness, by appellant in pretrial discovery, and (2) appellant did not qualify Wetzler as an expert by establishing his competency to give an opinion on time of death.

Whether a particular witness qualifies as an expert is a matter within the discretion of the trial court. Ruzzi v. Butler Petroleum Company, 527 Pa. 1, 10, 588 A.2d 1, 5 (1991). A decision on competency of an expert will not be reversed on appeal absent a clear abuse of discretion. Id. The witness must have a reasonable pretension to specialized knowledge on the subject under investigation. Id. If a witness possesses neither experience nor education in the subject matter under investigation, he should be found not qualified. Dierolf v. Slade, 399 Pa.Super. 9, 581 A.2d 649 (1990).

Previous cases in which a coroner was allowed to testify concerning the time of a decedent’s death involved a coroner who was a physician. See, e.g., Commonwealth v. Lewis, 472 Pa. 235, 372 A.2d 399 (1977); Commonwealth v. Johnson, 265 Pa. 491, 109 A. 218 (1920). Appellant has cited none, nor are we aware of any, in which a lay coroner has been found qualified to render an opinion as to time of death.

Nothing in the record indicated that Wetzler was a medical doctor or physician or that he had received any type of medical training. Appellant’s offer of proof concerning Wetzler’s qualifications to render expert testimony was as follows:

Q. You’re a mortician, sir?
A. I am a licensed funeral director in the Commonwealth, yes.
Q. And you operate a funeral home in Mill Hall?
A. I do.
Q. And for how many years?
A. Almost 22 years.
Q. How many years have you been a licensed mortician?
A. Twenty-seven.
Q. You have an active practice or an active business in Mill Hall?
A. Yes.
Q. Are you also a Coroner of Clinton County?
A. Yes, sir.
Q. And for how many years have you been a Coroner?
A. I am in my 15th year as Coroner.
Q. Just tell us briefly what your duties are as Coroner.
A. To investigate sudden and suspicious deaths, such as those which have occurred from homicide, suicide, motor vehicle fatalities, drownings, cave-ins, sudden infant deaths, and, obviously, natural deaths which have occurred suddenly without prior medical attendance.
Q. And who notifies you in cases of these deaths where an investigation is necessary?
A. Most frequently, Clinton County Communications Center. However, I have also received personal notifications directly from individuals to my office as well as direct notification by various hospitals.
Q. And do you conduct your investigation in connection with the Pennsylvania State Police and other police departments?
A. I do.
Q. Do you furnish and fill out death certificates?
A. I do.
Q. Do you sign them?
A. Yes.
Q. Do you you sign them in your official capacity as Coroner?
A. I do.
Q. Do you make determination as to cause of death?
A. I do.
Q. And you fill that in on the Death Certificate?
A. Yes.
Q. And how long have you been doing that?
A. Going on about fifteen, fourteen and a half years; in my fifteen years as Coroner.
Q. And when you make that determination, you do it based on your findings from your investigation?
A. That is correct.
Q. And from your conferences with the various medical people involved?
A. Correct.
Q. Do you also make a determination as to the time of death?
A. I do.
Q. And how long have you been doing that?
A. Fifteen years.
Q. Sixteen years?
A. Going on fifteen, yes.
Q. And is that determination based upon your investigation and findings from your investigation?
A. That is correct.

Notes of Testimony, May 11, 1992 at 27-29.

This testimony established that Wetzler was a licensed funeral director and elected county coroner. He testified that since becoming coroner fifteen years ago, he has determined the time of death in cases based upon investigations that include conversations -with medical personnel.

We find that on the basis of the record before it, the lower court did not err in finding that Wetzler was not qualified to give an opinion on time of death. Appellant did not sustain his burden in showing that Wetzler’s education or experience was such that he had a responsible pretension to specialized knowledge in the area under investigation. Although he testified that he had determined time of death previously, he did not indicate the number of cases in which he had done so. He did not explain the methodology he used, his basis of knowledge, his investigative techniques, nor his background in this area of forensics. His credentials to render an opinion as to time of death were not established. The lower court did not err in excluding his testimony on this basis.

Because we find the testimony was properly excluded on the ground of lack of competency, we do not reach the merits of the issue regarding the adequacy of appellant’s identification of Wetzler in pre-trial discovery.

Judgment affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

The issue in this appeal is whether one who has been a licensed mortician for 27 years and a county coroner for 15 years is competent to express an opinion regarding the time of death of an accident victim. The trial court disallowed such testimony, holding that only a physician can express an opinion as to the time of death. A majority of this court agrees. Because I would hold the trial court’s evidentiary ruling to be erroneous, I respectfully dissent.

In Pennsylvania “[t]he standard of qualification [as an expert] is a liberal one: ‘If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his [testimony] is for the jury.’ ” Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974), quoting Moodie v. Westinghouse Elec. Corp., 367 Pa. 493, 501, 80 A.2d 734, 738-739 (1951). See also: Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988); Lira v. Albert Einstein Med. Center, 384 Pa.Super. 503, 509, 559 A.2d 550, 552 (1989), allocatur denied, 527 Pa. 635, 592 A.2d 1302 (1990); McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 608, 533 A.2d 436, 440 (1986), allocatur denied, 520 Pa. 589, 551 A.2d 215 (1988); Gottfried v. American Can Co., 339 Pa.Super. 403, 411, 489 A.2d 222, 226 (1985); Packel & Poulin, Pennsylvania Evidence § 702.3. Although a witness must have some specialized knowledge of the subject about which he testifies, he need not have gained his knowledge from formal schooling. McDaniel v. Merck, Sharp & Dohme, supra at 608, 533 A.2d at 440; Commonwealth v. Ellis, 354 Pa.Super. 11, 19, 510 A.2d 1253, 1257 (1986); Gottfried v. American Can Co., supra at 403, 489 A.2d at 226; Packel & Poulin, Pennsylvania Evidence § 702.3. “‘An expert may be qualified in several different ways. An expert may acquire his knowledge through occupational, practical or other experimental training. He is not required to acquire his expertise through academic training.’ ” Commonwealth v. Bulling, 331 Pa.Super. 84, 106, 480 A.2d 254, 265 (1984) (emphasis omitted), quoting Commonwealth v. Daniels, 280 Pa.Super. 278, 287, 421 A.2d 721, 726 (1980). “[Expertise acquired by experience is expertise nonetheless.” Gottfried v. American Can Co., supra at 411, 489 A.2d at 226. See also: McDaniel v. Merck, Sharp & Dohme, supra at 608, 533 A.2d at 440.

In Commonwealth v. Lewis, 472 Pa. 235, 372 A.2d 399 (1977) and Commonwealth v. Johnson, 265 Pa. 491, 109 A. 218 (1920), testimony regarding time of death was received from a coroner, but in both instances the coroners were also physicians. Although my research has disclosed no Pennsylvania decision in which a coroner, who was not also a physician, has testified to the time or cause of a decedent’s death, other jurisdictions have allowed such testimony. See: Hunter v. State, 338 So.2d 513, 514 (Ala.Cr.App.1976); Hoback v. State, 338 So.2d 439, 443 (Ala.Cr.App.1976), appeal denied, 338 So.2d 444 (Ala.1976); Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104, 108 (1973).

Moreover, in Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974), the Superior Court held that non-medical personnel, who are otherwise qualified to testify within a specialized area of medicine, are not to be excluded merely because they are not physicians. In that case a psychologist, who was not a medical practitioner, was permitted to give opinion testimony regarding organic brain disturbances. Similarly, in Commonwealth v. Bulling, supra, a police officer, who had no formal education in the field of chemistry or medicine, was held to be qualified as an expert in identifying drugs and other controlled substances because he had had several years of experience working in a laboratory and had performed numerous tests on controlled substances. In Commonwealth v. Gonzalez, supra, a police officer was permitted to give an opinion on the absorption rate of alcohol into the bloodstream, despite his lack of a medical background, where he had acquired knowledge on that subject from years of experience.

In the instant case, I would hold that plaintiffs witness was qualified by experience to express an opinion as to the time of the decedent’s death. The witness’s duties as coroner had included investigations of numerous deaths and had required that he determine both the times and the causes of deaths for more than fifteen years. This practical experience, in my judgment, was sufficient to qualify him to render an opinion as to the time of death of plaintiffs decedent.

I would also hold that it was an abuse of discretion to exclude the coroner’s testimony on grounds that the witness had not been identified as an expert witness in answers to interrogatories. The witness, in fact, had been identified as a fact witness in answers to other interrogatories, and defendants’ counsel was fully aware that plaintiff intended to call the coroner to testify to the circumstances surrounding the death of the decedent.

A technical failure to comply with Pa.R.C.P. 4003.5 may be excused where there has been substantial compliance with the rule, where there has been no bad faith, and where there has been no prejudice to the defendant. Oelschlegel v. Mut. Real Estate Investment Trust, 429 Pa.Super. 594, 597-98, 633 A.2d 181, 183 (1993). See also: Dion v. Graduate Hosp. of the Univ. of Pa., 360 Pa.Super. 416, 428-429, 520 A.2d 876, 882-883 (1987). Where the witness is critical to the plaintiffs case and the defendant has not suffered prejudice, exclusion of an expert’s testimony for a technical failure to comply with a pretrial discovery rule, it has been held, constitutes an abuse of the trial court’s discretion. Linker v. Churnetski Transp., Inc., 360 Pa.Super. 366, 373-374, 520 A.2d 502, 505, allocatur denied, 516 Pa. 641, 533 A.2d 713 (1987).

In the instant case, plaintiffs ability to prove a causal connection between his decedent’s death and the alleged negligence of defendants was impaired by his inability to establish the time of his decedent’s death. Defendants were aware that plaintiff intended to call the coroner as a witness to establish the circumstances of the decedent’s death; and, therefore, there was no danger of surprise or unfair prejudice by allowing the coroner to testify.

Under all of these circumstances, therefore, I would hold that it was prejudicial error to disallow the coroner’s testimony. I would reverse and remand for a new trial.

      . Based upon the provisions of the Dram Shop Act, 47 P.S. Sec. 4-493, 4-497.