author: WICKERSHAM, Judge:

text:
    513 A.2d 462
    OHIO CASUALTY GROUP OF INSURANCE COMPANIES v. Nicholas G. BAKARIC, Helen Bakaric and Nationwide Insurance Company. Appeal of Helen L. BAKARIC.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed Aug. 1, 1986.
    Petition for Allowance of Appeal Denied Jan. 15, 1987.

      George A. Vaughn, Lemoyne, for appellant.
    Craig A. Stone, Harrisburg, for Ohio, appellee.
    William A. Addams, Carlisle, for Nationwide, appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of Dauphin County, granting the petition of appellee Ohio Casualty Group of Insurance Companies (“Ohio Casualty”) for a declaratory judgment.

As noted by the trial judge, the Honorable Herbert A. Schaffner, this case arises out of a “bizarre” factual scenario, in which appellant, Helen L. Bakaric, was shot by appellee-husband, Nicholas G. Bakaric, during a quarrel between the pair, while they were seated in appellant’s parked automobile on June 13, 1981.

In April 1983, appellant filed an action against her husband for the injuries which she had received as a result of the shooting. Appellee-husband in turn responded by requesting insurance coverage and defense of the claim from both appellee Nationwide Insurance Company (“Nationwide”), under an automobile liability policy, and appellee Ohio Casualty, under a homeowners’ policy. Appellee Ohio Casualty filed a petition for a declaratory judgment to determine whether it was required to provide coverage under the terms of the policy it issued to the Bakarics.

Following a two-day trial on this issue, the jury was requested to answer sixteen special interrogatories regarding the incident. After considering their answers, the court concluded that Ohio Casualty’s homeowners’ policy exclusion of injuries which were “intended or expected” by the insured, precluded coverage of injuries resulting from the shooting incident since those injuries were intended or expected by appellee-husband. The court also determined that Nationwide’s policy covering “damages resulting from the use of” the insured automobile did not extend to appellant’s injuries since they did not result from or arise out of the parties’ use of the automobile. The court entered a decree nisi to this effect, denying insurance coverage for appellee-husband in any civil action brought by appellant on either policy. Appellant’s exceptions were dismissed and judgment was entered in accordance with the decree nisi. Appellant filed the instant appeal in which she presents the following four issues.

A. Did the trial court err in reaching its conclusion, on the basis of the facts as found by the jury, that the injury to Helen Bakaric was “expected from the standpoint of” Nicholas Bakaric?
B. Do the facts as found by the jury preclude the conclusion reached by the trial court that the injury to Helen Bakaric was “expected from the standpoint of” Nicholas Bakaric?
C. Do the facts as found by the jury require the court to conclude that the injury to Helen Bakaric was not “expected from the standpoint of” Nicholas Bakaric?
D. Did the injury to Helen Bakaric result directly from the loading or use of the insured automobile and, as a result, qualify for coverage under Nationwide’s Automobile Liability Policy?

Brief for Appellant at 3.

We recognize that our scope of review of a declaratory judgment proceeding is closely circumscribed. As this court stated in Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa.Super. 494, 501, 479 A.2d 1011, 1015 (1984):

Our scope of review on appeal of a final decree is well settled. The factual conclusions of the Chancellor have the force of a jury verdict and will not be disturbed on appeal unless they are not supported by adequate evidence. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978); Nationwide Mutual Insurance Co. v. Walter, 290 Pa.Super. 129, 434 A.2d 164 (1981) . His findings are afforded particular weight in cases in which the credibility of witnesses must be evaluated, as the Chancellor has had the opportunity to hear their actual testimony and to observe their demeanor on the witness stand. See Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). We will not reverse on appeal unless the trial court abused its discretion or committed an error of law. Neshaminy Constructors v. Philadelphia et al., 303 Pa.Super. 420, 449 A.2d 1389 (1982) ____ With these standards in mind, we review the evidence of record and the Chancellor’s findings and conclusions to determine whether [appellant] alleges any valid basis for reversal.

We address appellant’s first three issues as one, because we believe them to be in essence the same. In those issues, appellant alleges that the lower court erred in concluding that her injury was “expected” by her husband, on the basis of the jury’s answer of “yes” to the question set forth below:

Do you find that Nicholas Bakaric should have expected harm to result to Helen Bakaric as a result of handling the gun?

N.T. at 139.

While we agree that the jury’s answer does not establish that appellee-husband “expected” appellant’s injury but only that he should have expected it, the verdict of the jury was not binding on the court. Pa.R.C.P. No. 1513 provides:

Rule 1513. Trial by Jury. Advisory Verdict
The court on its own motion or upon the petition of any party may submit to trial by jury any or all issues of fact. The trial by jury shall be given a preference on the trial list. The verdict of the jury shall be in the form of answers to specific questions and shall not be binding upon the court.

(Emphasis added). The lower court may make a proper determination based on the evidence irrespective of the form of the questions addressed to the jury or the jury’s answers. In the instant case, the trial court concluded, based upon the evidence presented to it, that appellee-hus-band did expect harm to result to his wife, and that his wife’s injuries were therefore not covered by Ohio Casualty’s policy. While we might have come to a different conclusion then the trial judge, we cannot say that his findings were clearly wrong. Under the narrow standard of review articulated in Valley Forge Historical Society, supra, we can find neither abuse of discretion nor error of law which would justify our reversal on these grounds.

We turn to appellant’s remaining issue in which she contends that her injury resulted directly from the loading or use of her automobile and was therefore covered under Nationwide’s liability policy. She alleges that a causal connection was established between the loading or unloading of the motor vehicle and the injury sustained here because appellee-husband was in the process of attempting to start the car when the revolver discharged.

A review of the relevant case law in this area reveals no precedent directly on point in this jurisdiction. In the related area of no-fault law, however, this court has consistently held that there is no coverage in such a situation. There must be a direct causal relationship between the injury and the automobile. See Glad v. State Farm Mutual Automobile Insurance Co., 336 Pa.Super. 196, 485 A.2d 499 (1984); Camacho v. Nationwide Insurance Co., 314 Pa.Super. 21, 460 A.2d 353 (1983); Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982); Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982).

In discussing the No-fault Act, our court has stated: “It is clear that this was never intended to be a general liability insurance which would cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but is intended to cover motor vehicle accidents.” Camacho, supra 314 Pa.Super. at 23-24, 460 A.2d at 354. Similarly, in the context of discussing the Uninsured Motorist Act, we have stated that “[ajutomobile insurance, including uninsured motorist provisions, are designed to compensate victims for vehicle-caused injuries.” Day v. State Farm Mutual Insurance Co., 261 Pa.Super. 216, 219, 396 A.2d 3, 5 (1979). It is evident from the above that there must be some connection between the harm done and the insured vehicle, in order to permit coverage under a written policy, as well as under the No-fault and Uninsured Motorist Acts, since those statutes were intended to provide the same coverage as that of liability insurance.

Moreover, the verbiage of Nationwide’s automobile policy providing coverage for injuries, “resulting from the use” of the vehicle is not as broad as the term “arising out of the use” found in older policies. As we concluded in Erie Insurance Exchange v. Eisenhuth, supra 305 Pa.Super. at 575-76, 451 A.2d at 1026 (1982), although it might be argued that the victim might not have been shot but for his being in the vehicle, it was not that vehicle or its use that caused his injuries. Appellant argues that the injury occurred while appellee-husband was “loading” himself into the vehicle. It is therefore claimed that this action falls within the policy language affording coverage for injuries “resulting from the ownership, maintenance, use, loading or unloading” of the automobile.

We are not so persuaded. First, the quoted language is not found in the liability section of the policy but instead in the section providing first party benefits pursuant to section 103 of the No-fault Act. Thus, that language is not relevant here. See D’Allessandro v. Durham Life Insurance Co., 503 Pa. 33, 467 A.2d 1303 (1983) (where the language of the policy is clear and unambiguous, it cannot be construed to mean other than the plain and ordinary meaning of its terms). Second, the jury found as a fact that the gun discharged as appellee-husband was pushing appellant, without stating any connection to his entering or loading the vehicle. Thus, even if the quoted language were to extend to determining general liability, it would not apply here since it is not clear in this instance that entering or loading the vehicle caused the injuries. See Glad v. State Farm Mutual Automobile Insurance Co., supra. Finally, appellant did not request a point for charge or special question for the jury concerning “loading” and thus this issue would appear to be waived.

We therefore conclude that any damages for which Nationwide would be liable should be confined to those “resulting from the use” of the automobile. With regard to this issue, we agree with the lower court which stated:

A lay person’s consideration of this factual situation and the language of the policy would probably produce a conclusion that any damages awarded in a civil suit between the Bakarics would not result from the use of an automobile by them, but from the wanton use of a gun. We believe the proper legal conclusion should be the same. Giving the words of the insurance policy in question the plain and ordinary meaning of its terms. D'Allessandro, supra, can we say that any damages Mr. Balearic may have to pay as a result of the shooting in this case were “resulting from the ownership, maintenance, use, ... of your automobile...”? We do not think that we can. The basic function that courts perform in the consideration of a policy like this one, Nationwide’s, is to ascertain the intention of the parties to the contract. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). We think that the parties here were contemplating insurance coverage for injuries caused by motor vehicles and not by large caliber revolvers. We think that, for the policy to pertain, there must be a causal connection between the use of the automobile and the injury sustained. Day v. State Farm Insurance Company, 261 Pa.Super. 216, 396 A.2d 3 (1979); Erie Insurance Exchange v. Eisenhuth, [305] Pa.Super. 571, 451 A.2d 1024 (1982). In this case we do not find such a connection.

Lower ct. op. at 8-9.

Therefore, finding all of appellant’s issues to be without merit and concluding that there was otherwise neither abuse of discretion nor error of law, we affirm the order of the court below.

      . Appellee-husband suspected that appellant was being unfaithful to him so on the evening of June 12, 1981, he selected from his gun collection a Colt Python .357 revolver, loaded with hollow tip bullets. He also took a box of extra ammunition.
      So armed, at approximately 9:00 p.m. on June 12, 1981, he concealed himself in the trunk of his wife’s automobile in the parking lot of the restaurant where she was employed. Appellee-husband remained in the trunk, while appellant finished her work and drove with a girlfriend to get an early breakfast then returned the girlfriend to her home. He did not emerge until approximately 3:30 or 4:00 a.m., after appellant stopped the automobile on Route 114 in Mechan-icsburg to investigate a noise in the trunk. He then confronted her with the loaded revolver in his right hand and accused her of being unfaithful to him.
      During the argument that ensued, appellant attempted to run away, but appellee-husband caught her and jammed the muzzle of the revolver in her face under her chin. He then threatened her that if she didn’t tell the truth, he would blow her head off.
      Appellee-husband brought appellant back to the automobile and put her in the driver’s side. He also got in the driver’s side and began pushing her across the seat. He told her to move the "F” over and that if she didn't tell him the truth and take him to “Jimmy,” he would blow her away. Appellee-husband was pushing appellant hard with his right hand which held the loaded revolver when the gun discharged and she was shot in the face.

        See lower ct. op. at 2-4.

      . The relevant clause provided: “This policy does not apply ... to bodily injury ... which is either expected or intended from the standpoint of the Insured.” Homeowner’s Policy, page 4 HO-3.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    513 A.2d 466
    EASTERN CONTINUOUS FORMS, INC. and Rebel Business Forms, Appellants v. ISLAND BUSINESS FORMS, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Aug. 1, 1986.

      William B. Brooks, Norristown, for appellants.
    Barbara R. Watkins, Norristown, for appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

Eastern Continuous Forms, Inc. (Eastern) is a Pennsylvania Corporation having offices and manufacturing facilities in Montgomery County, Pennsylvania. Island Business Forms, Inc. (Island) is incorporated under the laws of the Territory of the United States Virgin Islands.

Eastern filed a complaint in Assumpsit seeking to recover for various materials and services allegedly supplied to Island for which Island continues to refuse to pay the balance due. The trial court entered an order sustaining Island’s preliminary objections to the complaint which claim jurisdiction and venue are improper in Montgomery County, Pennsylvania.

Initially it must be noted that:

when preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt, (citation omitted). Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.

Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-303, 464 A.2d 323, 332 (1983).

Considering the evidence in the light most favorable to Eastern, it is not clear and free from doubt that personal jurisdiction over Island is improper in Montgomery County, Pennsylvania.

“The power of a court to exercise in personam jurisdiction over a non-resident defendant turns upon two considerations: (1) jurisdiction must be conferred by the state long-arm statute, and, (2) the exercise of jurisdiction under the statute must meet constitutional standards of due process.” Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 592, 492 A.2d 23, 24 (1985). Under the Commonwealth’s long arm statute, “(j)urisdiction of the Pennsylvania courts may be exercised with respect to all persons, including corporations, ‘to the fullest extent allowed under the Constitution of the United States.’ 42 Pa.C.S. § 5322(b)” Slota v. Moorings, Ltd,., 343 Pa.Super. 96, 101, 494 A.2d 1, 3 (1985).

“The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)].’ ” Calder v. Jones, 465 U.S. 783, 787, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 810 (1984) quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Consistent with this principle “the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528, 542, (1985). Furthermore, as to contractual obligations, “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 473, 105 S.Ct. at 2182, 85 L.Ed.2d at 540, quoting Travelers Health Assn. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950). See also McGee v. International Life Insurance Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 200-201, 2 L.Ed.2d 223 (1957).

Critical to due process analysis “is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980). Indeed, even a single act can support jurisdiction. McGee v. International Life Insurance Co., supra, 355 U.S. at 223, 78 S.Ct. at 201, 2 L.Ed.2d at 223.

Granted, “(i)f the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum ... the answer clearly is that it cannot.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 478, 105 S.Ct. at 2185, 85 L.Ed.2d at 544. However, it is the factors of “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 479, 105 S.Ct. at 2186, 85 L.Ed.2d at 545. Such an approach “is not susceptible of any talismatic jurisdictional formula; the facts of each case must be weighed in determining whether juridiction is proper.” Skinner v. Flymo, 351 Pa.Super. 234, 241, 505 A.2d 616, 620, (1986).

With these principles in mind, the facts of the instant case must be examined. The trial court found that “the only evidence of defendant’s business conduct in Pennsylvania were some incidental phone calls made by Mr. Menin while he was in Montgomery County on unrelated business”. (Trial Court Opinion at 4). The trial court also indicated, “(defendant certainly took no action by which it purposefully availed itself of the benefits and protections of Pennsylvania law; defendant’s activities within the state being incidental at best.” (Trial Court Opinion at 4-5). This reasoning overlooks substantial record evidence which as previously stated must be viewed in the light most favorable to Eastern.

The complaint as noted seeks recovery for various materials and services specified in a series of invoices. This is not a situation wherein a plaintiff is seeking to establish jurisdiction on the basis of a defendant’s “random”, “fortuitous”, or “attenuated” contacts. See Burger King Corporation v. Rudzewicz, supra, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 541; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790, 797 (1984); World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 299, 100 S.Ct. at 568, 62 L.Ed.2d at 502. This is a suit alleged to arise out of and relate to the defendant’s contacts within the Commonwealth. Island is alleged to have deliberately reached out beyond the Virgin Islands and negotiated with a Pennsylvania Corporation for the purchase of various materials and services. Refusal to make the contractually required payments in the Commonwealth caused forseeable injuries to Eastern which at least makes it presumptively reasonable for Island to be called to account in the Commonwealth of Pennsylvania for such injuries. See Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 480, 105 S.Ct. at 2186, 85 L.Ed.2d at 545. This position is strengthened when the factors of prior negotiations and the parties’ actual course of dealing are considered. There is record testimony that Mr. Menin, Vice-President and Secretary of Island visited Easterns’ plant on numerous occasions. (Deposition of Lawrence Carlin, Vice President of Eastern at 7). Further, Mr. Menin actually was involved in laying out copy at Eastern. (Deposition of Lawrence Carlin at 4-6). Although Island denies that it maintains an office in Pennsylvania, there is testimony that invoices, bills of lading and letters from Eastern were mailed to Island at Mr. Menin’s Norristown law office. (Deposition of Lawrence Carlin at 9). Proofs of work performed by Eastern were mailed to the Norristown office when not picked up by Mr. Menin. (Deposition of Lawrence Carlin at 9-10).

In sum, viewed in the light most favorable to Eastern, it is not clear and free from doubt that Island’s conduct and connection with the Commonwealth of Pennsylvania are such that it should not reasonably anticipate being haled into court here. Therefore, the order of the trial court sustaining Island’s preliminary objections is reversed as it resulted in the dismissal of the action.

Jurisdiction relinquished.

BECK, J., files a concurring opinion.

BECK, Judge:

I agree with the majority's disposition of this appeal. However, I write separately because I disagree with tin majority’s conclusion that the three-pronged jurisdictional analysis enunciated in Proctor & Schwartz, Inc. v. Cleveland Lumber Co. (Proctor), 228 Pa.Super. 12, 323 A.2d 11 (1974), has been abandoned by the Pennsylvania Supreme Court. Majority op. at 356 n. 3.

The tripartite jurisdictional analysis of Proctor was premised upon the United States Supreme Court’s decisions in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In International Shoe Co. and Hanson the United States Supreme Court explained that jurisdictional due process requires a nonresident defendant to be subject to the jurisdiction of a forum state’s courts only if the defendant has had certain “minimum contacts” with the forum state such that the defendant has “purposefully availed] itself of the privilege of conducting activities within the forum State thus invoking the benefits and protections of its laws.” Hanson, 357 U.S. at 253, 78 S.Ct. at 1239.

Citing the jurisdictional principles outlined in International Shoe Co. and Hanson, the Superior Court in Proctor attempted to provide guidelines to “aid in the factual analysis necessary to make the determination of whether the requisite ‘minimum contacts’ are present in a given case” so that the courts of Pennsylvania may exercise jurisdiction over a particular nonresident defendant. Id. 228 Pa.Super. at 18, 323 A.2d at 15. The Proctor guidelines consisted of a series of three considerations:

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla, supra. Secondly, the cause of action must arise from defendant’s activities within the forum state.... Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, supra....

Proctor, 228 Pa.Super. at 18, 323 A.2d at 15. Emphatically, the Superior Court admonished in Proctor that the guidelines were not to be regarded as a rigid test for assessing jurisdiction but rather were to be utilized as a general framework for evaluating jurisdiction “on an ad hoc case-by-case basis and not by the application of a mechanical rule.” Id., 228 Pa.Superior Ct. at 18, 323 A.2d at 15.

Relying on Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986), the majority states that in United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co. (United Farm), 501 Pa. 646, 462 A.2d 1300 (1983), the Pennsylvania Supreme Court has rejected the Proctor three-part jurisdictional analysis and has adopted “the more flexible ... ‘minimum contacts’ approach.” Majority op. at 356 n. 3 (emphasis added). To the contrary, I am not persuaded that United Farm signals the Pennsylvania Supreme Court’s adoption of a jurisdictional analysis different from that delineated in Proctor.

Reading and comparing the separate opinions filed by the Supreme Court justices in United Farm, I conclude that a majority of the Supreme Court examined the United Farm jurisdictional due process issue according to the first prong of the Proctor three-part analysis and did not reach the second and third Proctor jurisdictional considerations simply because the evidence of record failed to meet even the first Proctor guideline for exerting jurisdiction over the nonresident defendant.

Justice Hutchinson’s United Farm majority opinion expressly recognized that the Superior Court’s decision in United Farm affirmed the trial court on the basis of Proctor. Id. 501 Pa. at 654, 462 A.2d at 1304. The majority explained that the “Superior Court affirmed, citing Proc-tor____ [The Superior Court] held that ... United Farm had ‘purposefully availed itself of the privilege of acting within the Commonwealth.’ ” United Farm, 401 Pa. at 654, 462 A.2d at 1304. Therefore if the Supreme Court majority had considered inappropriate the Superior Court’s reliance on Proctor, it had ample reason and opportunity to so state. Instead, the Supreme Court reversed the Superior Court’s United Farm decision on the ground that the nonresident defendant, United Farm, “did not purposefully avail itself of the privilege of acting within Pennsylva-nia____” Id., 401 Pa. at 654, 462 A.2d at 1304. In other words, the Supreme Court majority employed the same jurisdictional analysis as the Superior Court but differed in the result obtained by applying the jurisdictional analysis to the facts of the United Farm case.

Further support for the continuing viability of the Proctor guidelines appears in Justice Nix’s United Farm concurring opinion. In his concurrence, Justice Nix declares that he agrees with the majority’s analysis but deems it “important ... to reiterate the wisdom in employing the three-pronged [Proctor ] test in assessing the due process concerns____” Id., 401 Pa. at 659, 462 A.2d at 1307 (Nix, J., concurring). To explicate, Justice Nix adds that in United Farm, “because of the failure to satisfy the first prong of the [Proctor] test, it is unnecessary to consider or discuss the remaining [Proctor] considerations.” Id., 401 Pa. at 659, 462 A.2d at 1307 (Nix, J., concurring). Thus, I con-elude that the Proctor tripartite jurisdictional guidelines have not been discarded or disapproved by the Pennsylvania Supreme Court.

Moreover, the United States Supreme Court’s recent decision in Burger King Corp. v. Rudzewicz (Burger King), 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), convinces me that the Proctor three-part analysis remains a proper and useful framework for evaluating jurisdictional due process. All three jurisdictional considerations enumerated in Proctor are repeated in Burger King. Pursuant to the Supreme Court’s Burger King opinion, the courts of a forum state may exercise jurisdiction over a nonresident defendant if three requisites of jurisdictional due process are met:

the defendant has ‘purposefully directed’ his activities at residents of the forum ..., and the litigation results from the alleged injuries that ‘arise out of or relate to’ those activities____
... ‘[TJhere [must] be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’
Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ International Shoe Co. v. Washington....

Burger King, 471 U.S. at 472-477, 105 S.Ct. at 2182-84, 85 L.Ed.2d at 541-43 (citations omitted). Hence, the Proctor guidelines comport with the United States Supreme Court’s views on jurisdictional due process for nonresident defendants.

      . "Normally, a challenge to the lower court's personal jurisdiction over a defendant is raised in preliminary objections raising a question of jurisdiction, pursuant to Pa.R.C.P. No. 1017(b)(1)." Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 133 n. 7, 471 A.2d 493, 498 n. 7 (1984).

      . 42 Pa.C.S.A. § 5322.

      . Both the parties and the trial court refer to Proctor & Schwartz Inc., v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974). This Court has recently stated:
      The rigid three pronged test adopted by this Court in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), was criticized by the Chief Justice of the Supreme Court of Pennsylvania in Kingsley & Keith (Canada) Ltd. v. Mercer International Corp., 500 Pa. 371, 374 n. 1, 456 A.2d 1333, 1335 n. 1 (1983) (affirmance by an equally divided court). In a later decision in United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., supra [501 Pa. 646, 462 A.2d 1300,] six justices, although evenly divided as to the result, adopted the more flexible, minimum contact analysis of jurisdictional due process. Only Justice Nix (now Chief Justice) advocated employment of the three pronged test first adopted by the Superior Court in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra. By adopting the more flexible, less rigid, "minimum contacts” approach, we give deference to the admonition of the United States Supreme Court that personal jurisdiction may not turn on the application of "mechanical” test. See: Burger King Corp. v. Rudzewicz, supra at 478, 105 S.Ct. at 2185, 85 L.Ed.2d at 545; International Shoe Co. v. Washington, supra at 319, 66 S.Ct. at 159, 90 L.Ed. at 103.

        Skinner v. Flymo, supra, 351 Pa.Super. at 241 n. 1, 505 A.2d at 620 n. 1.

      . This is the language used to express the first Proctor guideline.

      . See footnote one, supra.


author: TAMILIA, Judge:

text:
    513 A.2d 471
    Patrick GILLESPIE, Appellant, v. ST. JOSEPH’S UNIVERSITY, International Brotherhood of Firemen and Oilers, Local 473, Clifford Rudd and William Evans.
    Superior Court of Pennsylvania.
    Submitted June 19, 1986.
    Filed Aug. 1, 1986.
    Daniel B. Boasberg, Norristown, for appellant.
    Sandra A. Girifalco, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

This is an appeal from an Order sustaining preliminary objections in the nature of a demurrer to Counts II and V of appellant’s amended complaint.

Appellant, Patrick Gillespie, was employed as a head groundskeeper by appellee, St. Joseph’s University. On May 11, 1983, the University discharged appellant from employment.

On March 29, 1985, appellant commenced this action by filing a writ of summons and subsequently filing a complaint and an amended complaint.

In Count II of his amended complaint, appellant brought an action of wrongful discharge against William Evans and appellees, Clifford Rudd and the University. Appellant averred he was wrongfully discharged after two fellow employees, Rudd and Evans, and the University accused him of a crime involving dishonesty. Appellant also asserted the accusers did not have reasonable cause for their accusations. Appellant alleged the University violated public policy by terminating his employment as a direct result of the accusations of criminal behavior. In Count V, appellant made a claim for punitive damages against all the defendants.

Appellee Clifford Rudd and the University filed preliminary objections in the nature of a demurrer to Counts II and V of appellant’s amended complaint. The lower court sustained the preliminary objections after finding that appellant’s complaint failed to state a cause of action under Pennsylvania law.

On appeal, appellant alleges the lower court committed an error of law when it sustained the preliminary objections of the appellees. Appellant urges this Court to apply a balancing test to determine whether a cause of action for wrongful discharge exists when an employee has been falsely accused of a crime and discharged as a result of the accusation.

The standard for sustaining preliminary objections in the nature of a demurrer is quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. In order to sustain a demurrer, it is essential that the complaint indicate on its face that the claim cannot be sustained and the law will not permit any recovery. Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 14, 419 A.2d 631, 636 (1980).

An employee at will can maintain an action for wrongful discharge against the employer if the discharge is motivated by a specific intent to harm the employee or the discharge violates a clear mandate of public policy. Geary v. United States Steel, 456 Pa. 171, 319 A.2d 174 (1974), Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986). Appellant’s amended complaint does not contain any specific allegation that the University discharged him with the specific intent to harm him. Appellant alleges he was wrongfully discharged as a result of being falsely accused of a crime of dishonesty and contends that his discharge was violative of a public policy which the court should adopt. Specifically, appellant argues a balancing approach should be instituted whereby the rights of an employer are adequately preserved and at the same time at-will employees are offered some protection against false or reckless accusations of criminal behavior. While appellant’s argument is an appealing one, it is not in accord with the decision of our Supreme Court in Geary. The exception in Geary is limited to those cases where the discharge is violative of a clear mandate of public policy. Geary, supra.

In Cisco v. United Parcel Services, 328 Pa.Super. 300, 476 A.2d 1340 (1984), we held that an employer’s discharge and refusal to rehire an employee, who was charged with and subsequently acquitted of criminal charges of theft and trespass, did not violate public policy. See also Leibowitz v. H.A. Winston Co., 342 Pa.Super. 456, 493 A.2d 111 (1985). Similarly, in the case at hand, we find as a matter of law that there has been no violation of public policy sufficient to maintain an action for wrongful discharge.

Because appellant has failed to state a cause of action for wrongful discharge, Count II cannot stand and thus appellant’s claim for punitive damages in Count Y, based on Count II, is also invalid.

For the above-stated reasons, we affirm the lower court’s Order sustaining the preliminary objections in the nature of a demurrer to Counts II and V of appellant’s complaint.

Order affirmed.

      . Appellant originally brought suit against William Evans, International Brotherhood of Firemen and Oilers Local 473, and appellees, Clifford Rudd and St. Joseph University. The original complaint contained a Count II, which alleged a breach of an implied covenant of good faith and fair dealing by the appellees and William Evans and a Count IV, which alleged Local 473 failed to adequately represent appellant in his attempt to return to his employment. On July 24, 1985, appellant filed a praecipe to discontinue his action against Local 473. Appellant’s amended complaint does not include either of those Counts.

      . On August 5, 1985, appellant filed an amended complaint in response to preliminary objections by the appellees. In Count I of his amended complaint, appellant alleges Clifford Rudd committed an assault and battery upon him on May 11, 1983. Count I is not an issue in this appeal. We also note appellant’s amended complaint is numbered I, II and V.

      . Review of the record indicates William Evans has not filed a preliminary objection or any other pleading in this case.


author: HOFFMAN, Judge:

text:
    513 A.2d 473
    COMMONWEALTH of Pennsylvania v. Robert L. THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1986.
    Filed Aug. 4, 1986.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   HOFFMAN, Judge:

This is ah appeal from the lower court’s order denying appellant’s petition for a writ of coram nobis. Appellant contends that the lower court erred in failing to conduct a hearing on, and in denying, his petition. We disagree and affirm the order of the court below.

On June 8, 1973, appellant was found guilty of burglary and attempted larceny. At the time of sentencing, appellant was serving a prison sentence on unrelated convictions. On July 26, 1973 he was sentenced to a five-year term of probation conditioned on his acceptance into a drug rehabilitation program at Eagleville Hospital. On December 22, 1976, appellant’s probation was revoked after he had been convicted on three charges of burglary, and he was sentenced to a term of ten-to-twenty years imprisonment. He withdrew an appeal from that sentence and later filed a petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551, which was denied. This court affirmed the order denying appellant’s petition. See Commonwealth v. Thomas, 313 Pa.Superior Ct. 606, 460 A.2d 852 (1983). On June 25, 1984, appellant filed a petition for a writ of coram nobis. The lower court denied the petition and this appeal followed.

Appellant contends that the lower court erred in failing to conduct a hearing on, and in denying, his petition for a writ of coram nobis. He alleges that he remained incarcerated for two months following his parole for his prior prison sentence while awaiting a transfer to Eagleville Hospital in accordance with the terms of his probation. He asserts that this two-month period of incarceration converted his probation into a custodial sentence, and that the sentence he received for violating his probation was, therefore, illegal as it placed him twice in jeopardy for a single crime.

In a detailed opinion explaining the writ of coram nobis, the Honorable Judge Diggins of the Delaware County Court of Common Pleas stated that the writ of coram nobis, also known as the writ of error, is a common law writ that affords the trial court an opportunity to correct its own record when vital facts are discovered that were unknown when the judgment was entered. Commonwealth ex rel. Clancy v. Myers, 10 Pa.D. & C.2d 550 (C.P.Del.Co.1956). Before a court will issue the writ, the petitioner must show (1) facts that are not in the record and were unknown to the court when the judgment was announced, and that, if known, would have prevented the judgment, and (2) the absence of a remedy at law. Id. at 563-64.

Here, appellant has failed to meet these requirements. First, appellant has not alleged facts outside the record that, if known by the trial court at the time the judgment was rendered, would have prevented the judgment. Second, even if the writ of coram nobis were the proper remedy, it is not available to appellant because relief is available under the PCHA. Section 9543 of the PCHA provides that a person is eligible for relief if there is a showing:

(1) That he has been convicted of a crime.
(2) That he is incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.
(3) That his conviction or sentence resulted from one or more of the following reasons:
(xi) His being twice placed in jeopardy.

42 Pa.C.S.A. § 9543. Because the claim underlying appellant’s petition for a writ of coram nobis is that his sentence was illegal on the ground of double jeopardy, Petition for Writ of Coram Nobis at 4, the PCHA provides the proper remedy. Therefore, appellant had not shown that he is entitled to a writ of coram nobis and, accordingly, we affirm the order of the court below. Cf. Commonwealth v. O’Nealel, 315 Pa.Superior Ct. 1, 6, 461 A.2d 318, 320 (1983) (initial uncounseled petition for post-conviction relief may not be summarily dismissed unless previous petition involving same issue has been determined adversely to petitioner).

Affirmed.


text:
    513 A.2d 475
    COMMONWEALTH of Pennsylvania v. Fonza Harry BLACK, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Aug. 4, 1986.
    Barry F. Feudale, Shamokin, for appellant.
    Joseph Toddy, Assistant District Attorney, Milton, for Com., appellee.

      Before ROWLEY, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This appeal challenges the sentence imposed following Appellant’s guilty plea to charges of robbery, false imprisonment and criminal mischief. We are specifically asked to consider whether the trial court erred in sentencing Appellant under the aggravated range of the guidelines, and in imposing a deadly weapon enhancement. In addition, Appellant attacks the constitutionality of the deadly weapon enhancement provisions of the Sentencing Guidelines.

After examining the record, we find that the court erred in applying the deadly weapons enhancement in light of this court’s recent decision in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985). Since we remand for resentencing based upon this issue, we find no reason to address Appellant’s remaining challenges.

The Majority of the court in Taylor, noted:

This court believes the Commonwealth is bound by the record on the plea as to what the defendant admitted in exchange for the plea of guilty. Thus, the record neither establishes there was a weapon involved in the assault and battery, nor that one was possessed by the defendant at the time of the other offenses to which he tendered a plea of guilty.

Id. 346 Pa.Super. at 613, 500 A.2d 117, citing: Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1978), aff'd as modified on rehearing, 268 Pa.Super. 488, 408 A.2d 1108 (1978).

In the instant case, at Appellant’s plea colloquy the following exchange occurred:

Now, Mr. Black, I would like you to tell me in your own words what you did on this occasion?
THE DEFENDANT: Well, Your Honor, you already have the evidence.
THE COURT: I haven’t heard it. The Policeman has it and the District Attorney, but I don’t. I don’t know what you did. Will you tell me what you did?
THE DEFENDANT: I stole a car. I stole a vehicle and tied her up. (The remaining portion of the answer was not audible to the Reporter.) I also damaged the car.
THE COURT: You went into the Koch home and you tied up Mrs. Koch. Is that correct?
THE DEFENDANT: Yes.
THE COURT: And you damaged the property and you also stole a car?
THE DEFENDANT: Right.
THE COURT: Mr. Agler, is there anything you want to add as far as the factual background is concerned?
MR. AGLER: I think in layman’s terms, he adequately described what he did on March 28th, 1983, in Lewis Township. He did, through force, take a vehicle from— and a small amount of money from Mrs. Koch in Lewis Township, and he did unlawfully restrain her in that he did take and tie her up, although there was some struggle, and Mrs. Koch was tied up.
He did not attempt to harm her, and I don’t know any other way to explain it other than he restrained her in the struggle to do so.
Further, I state he did do some damage which was consistent with our Report in that he used the phone cord or a light cord in the house while he was doing this to her, and for some reason, he cut the phone lines.

Although at sentencing it was revealed that Appellant cut the phone line with a knife, Appellant never admitted at the plea proceeding that he possessed a knife or any type of deadly weapon at the time of the crime. We, therefore, conclude the trial court erred when it applied the deadly weapons enhancement provisions in sentencing Appellant.

Judgment of Sentence vacated. Case remanded for re-sentencing consistent with this opinion. Jurisdiction relinquished.


author: OLSZEWSKI, Judge:

text:
    513 A.2d 476
    COMMONWEALTH of Pennsylvania, v. Michael Kenyatta JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 8, 1986.
    Filed Aug. 7, 1986.
    Arthur H. James, Philadelphia, for appellant.

      Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This appeal, the last of the trilogy, comes to us from the judgment of sentence after a verdict of guilty, returned by a jury against appellant on charges of murder in the third degree, robbery and conspiracy. On appeal, appellant alleges: first, that there was insufficient evidence to support a conviction for conspiracy to commit murder and/or robbery; second, that the trial court erred in refusing to grant counsel’s requested points of charge; and third, that the prosecutor’s closing argument was so inflammatory that appellant was denied a fair and impartial trial. After a careful review of case law and facts, we reverse the judgment of sentence on the grounds of insufficient evidence.

The facts, as taken from the trial court, reveal the following. On Saturday, July 9, 1983, at approximately 2:00 a.m., seventeen-year-old Thomas Murphy was shot while riding his ten-speed bicycle in the 7200 block of Woodland Avenue in West Philadelphia. In an effort to avoid his attackers, Murphy continued to pedal his bike crossing the city line into Darby, Delaware County. At a distance of approximately 900 feet from the point of attack, Murphy crashed into a parked car and collapsed to the ground. Cynthia Leonard observed the victim as he rode past her apartment building on Main Street in Darby. Leonard ran over to Murphy .when he crashed into the car and observed two bullet holes in his body. Leonard also heard Murphy state, “A Nigger shot me.” (N.T. 306, 1-10-84).

Murphy was rushed to Fitzgerald Mercy Hospital where he was pronounced dead approximately three hours after the attack. An autopsy performed by the Delaware County Medical Examiner, Dr. Dimitri Contostavlos, on July 9, 1983, revealed the cause of death to be loss of blood due to two gunshot wounds to the trunk. The manner of death was ruled a homicide.

At trial, the Commonwealth’s evidence established that at approximately 2:00 a.m. on July 9, 1983, Thomas Murphy left the house of his girlfriend, Colleen Doogan, located in the 6100 block of Wheeler Street, and began to pedal home on his bicycle. (N.T. 302-303, 1-10-84). At approximately the same time, the defendants Joseph Council, Michael Upchurch and Michael Johnson, along with one Mary Alice Smith, were exiting the Birthday Bar located at 7250 Woodland Avenue. (N.T. 231-233, 1-10-84). Upon observing Murphy on the bicycle, defendant Council stated, “Here comes a white boy. Let’s get him.” (N.T. 205, 337, 1-10-84). Shortly after these words were uttered, defendant Upchurch pulled out a revolver and fired two shots at Murphy, striking him in the chest and in the back. (N.T. 425, 1-11-84). As the victim continued to ride away, all three defendants, as well as Mary Alice Smith, fled the scene.

Acting on information supplied by Smith, the police obtained arrest warrants for the defendants. Michael Johnson and Joseph Council were arrested on July 22, 1983. Michael Upchurch was apprehended on the following day, July 23, 1983.

Defendant Johnson was charged under September Term, 1983: no. 639 criminal conspiracy; no. 640 possession of an instrument of crime, generally; no. 641 robbery; no. 642 involuntary manslaughter; and no. 643 murder, voluntary manslaughter.

On January 9, 1984, upon being arraigned, defendants pleaded not guilty as to all bills. The jury, having been duly impanelled, was sworn and/or affirmed and the trial proceeded before the Hon. Albert F. Sabo.

The jury returned a verdict against defendant Johnson of guilty, murder in the second degree; guilty, robbery; guilty, criminal conspiracy; and not guilty, possession of an instrument of crime. Sentencing was deferred pending the disposition of post-trial motions. Presentence investigations and psychiatric evaluations were ordered.

On September 24, 1984, after argument, defendant Johnson’s post-verdict motions were denied and he was sentenced on bill no. 643 to not less than ten nor more than twenty years at the State Correctional Institution at Grater-ford; on bill no. 641 to not less than ten nor more than twenty years to run consecutive to bill no. 632; and on bill no. 639 to not less than five nor more than ten years to run consecutive to bill no. 641. Johnson was also assessed $15.00 towards the Victim’s Compensation Fund. This appeal followed.

The test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all reasonable inferences therefrom upon which the jury could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which the appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979).

Applying this standard, we find the evidence insufficient to render the appellant guilty of the crimes for which he was accused. As this Court has previously stated, mere presence at the scene of the crime or near it cannot be sufficient to establish guilt. Commonwealth v. Frey, 264 Pa.Super. 212, 399 A.2d 742 (1979). The evidence at trial establishes nothing more than that — mere presence on the part of appellant. We find no testimony that sustains the proposition that appellant did anything criminal. Instead, there was exculpatory and not incriminatory evidence. Before and during the actual crime, appellant played no active role. Rather, he was passive. We cannot, no matter how horrendous the crime, convict a man who did not actively participate, but merely watched as the crime took place. We need something more, which is missing from the present case.

The Commonwealth argued the existence of a conspiracy and the theory of accomplice liability. In proving this, however, there was no overt evidence of an agreement that included Johnson in which he assented to go along with the commission of the crime. While it is true that a conviction may be based on circumstantial evidence alone, it may not be based solely on inference, suspicion and conjecture. Commonwealth v. Frey, supra. That is precisely what was done in this instance. We, therefore, are obligated to reverse appellant’s conviction.

Judgment of sentence reversed. Jurisdiction relinquished.

      . We question whether the district attorney should have considered the possibility of charging appellant with other crimes consistent with his actions there.


author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    513 A.2d 479
    Seth JAMISON, Appellant, v. CITY OF PHILADELPHIA and Blara Parking Corp., d/b/a Crown Garage, Appellees.
    Superior Court of Pennsylvania.
    Argued May 6, 1986.
    Filed Aug. 8, 1986.

      Ronald L. Wolf, Philadelphia, for appellant.
    David J. Parsells, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Seth Jamison was injured because of the negligent operation of a stolen vehicle while the thief was attempting to elude pursuing police. Jamison filed an action against Blara Parking Corporation (Blara), which had had possession of the automobile at the time when it was stolen. The trial court sustained preliminary objections in the nature of a demurrer to the complaint and entered judgment in favor of the parking lot operator. Jamison appealed. We affirm.

On September 10, 1984, Terry Heimann’s Mazda automobile was valet parked on an upper level of a garage operated by Blara at Eleventh and Clinton Streets in Philadelphia. Before midnight on September 12, 1984, the Mazda was stolen by Reginald Lambert. When police subsequently observed the stolen car, they pursued it. During this pursuit, the stolen car was operated at a high rate of speed; and, at Fifteenth and Lombard Streets, it collided with a vehicle in'which Jamison was riding as a passenger. Jami-son sustained serious injury.

On appeal, Jamison contends initially that the trial court should have stricken Blara’s preliminary objections because they were not filed within twenty days after service of the complaint. They were filed, however, before any default judgment had been taken.

“Pa.R.C.P. 1026 provides that a pleading shall be filed within 20 days after service of a preceding pleading. This rule is not mandatory but permissive. We have held that late pleadings may be filed ‘if the opposing party is not prejudiced and justice requires. Much must be left to the discretion of the [trial] court.’ Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951).”

Allison v. Merris, 342 Pa.Super. 571, 574, 493 A.2d 738, 739-740 (1985), quoting Paulish v. Bakaitis, 442 Pa. 434, 441, 275 A.2d 318, 321-322 (1971). See: Boarts v. McCord, 354 Pa.Super. 96, 100-103, 511 A.2d 204, 206-07 (1986). Appellant has alleged no prejudice as a result of the delayed filing of preliminary objections, and our own review of the record has disclosed none. Moreover, whether a recognizable cause of action existed against the owner of the garage at which the vehicle had been parked was an issue which, in any event, would sooner or later have to be decided by the court as a matter of law. See: Boarts v. McCord, supra. The trial court did not abuse its discretion when it refused to strike Blara’s preliminary objections in the nature of a demurrer.

The standard to be applied in deciding preliminary objections in the nature of a demurrer was established by the Supreme Court in Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), as follows:

In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959). A demurrer does not, however, admit the pleader’s conclusions of law. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Of course, where the complaint shows on its face that the claim is devoid of merit, the demurrer should be sustained. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576, cert. denied Scarselletti v. Aetna Cas. & Sur. Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1967). But if there is any doubt as to whether the demurrer should be sustained, such doubt should be resolved in favor of refusing to enter it. Sun Ray Drug Co. v. Lawler, supra; Moran v. Bair, 304 Pa. 471, 156 A. 81 (1931).

Hoffman v. Misericordia Hospital of Philadelphia, supra, 439 Pa. at 503-504, 267 A.2d at 868. See also: Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 16, 495 A.2d 963, 967 (1985).

Whether the owner of a parking lot can be held legally liable to an innocent person who is injured by the careless operation of a motor vehicle which has been stolen from the parking lot has previously been before the appellate courts of this Commonwealth. In Farley v. Sley System Garages, Inc., 187 Pa.Super. 243, 144 A.2d 600 (1958), this Court affirmed the opinion of the trial court which held that a parking lot operator who had carelessly allowed a vehicle in its possession to be stolen could not be required to foresee that the thief would negligently injure a third person. Therefore, the operator of the parking lot could not be held liable for injuries sustained by a plaintiff who had been injured because of the negligent manner in which the vehicle had been driven by the thief. The trial court explained:

It is fundamental that one is not to be held liable for all possible consequences, but only for the probable consequences. Fairbanks v. Kerr & Smith, 70 Pa. 86 [1872], It is conceded as indeed it must be that the injury herein complained of was a possible consequence of the theft. But, it was no more probable than the consequence that the thief would drive carefully so as not to attract attention.

Farley v. Sley System Garages, Inc., 13 Pa.D. & C.2d 680, 688-689 (1958), reprinted at 187 Pa.Superior Ct. 243, 144 A.2d 600, 605 (1958).

The Supreme Court was faced with a similar issue for the first time in Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961). There, plaintiff alleged that the defendant, a used car lot operator, had negligently allowed a car on its lot to be stolen by an unlicensed, fourteen year old boy, who operated the car in such a negligent manner that it mounted a sidewalk, where it struck and injured the plaintiff. The complaint alleged specifically that the defendant knew that young boys frequently had been playing in and around the cars on the lot and that a set of keys had been stolen two days before the vehicle was taken. The trial court determined that the complaint failed to state a cause of action and dismissed the action. The Supreme Court reversed, holding that it was for the jury to decide whether the defendant had been negligent. The Court said:

After the keys had been stolen and such fact was known, it did not require much imagination to realize that the car itself might well be next on the list____ That it might well fall into the possession and control of an incompetent teenager was not difficult to visualize. But no safety precautions ensued. Whether or not this constituted the exercise of reasonable prudence, under all of the circumstances presented, cannot be decided as a matter of law.

Id., 404 Pa. at 385-386, 171 A.2d at 772-773.

Five years later, the Supreme Court was again faced with the same type of issue in Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (1966). There the defendant, a garage operator, had negligently allowed a vehicle left for repairs to be parked on the street with keys in the ignition. The car was stolen by an adult stranger who drove it in such a careless manner that it mounted a sidewalk and struck the plaintiff. The trial court sustained the defendant’s preliminary objections and dismissed the complaint for failure to state a cause of action. On appeal, the Supreme Court affirmed, holding that the defendant had violated no duty owed to the plaintiff. The Court distinguished Anderson v. Bushong Pontiac Co., supra, on the basis that “nothing existed in the present case to put [the defendant] on notice that the thief would be an incompetent or careless driver. Under' [these] circumstances, the thief’s careless operation of the automobile was a superseding cause of the injury suffered, and defendant’s negligence, if such existed, [was] a remote cause ... upon which no action would lie.” Liney v. Chestnut Motors, Inc., supra, 421 Pa. at 28, 218 A.2d at 338.

In the instant case, appellant’s complaint did not contain averments of fact sufficient to permit a finding that Blara either knew or should have known that the vehicle was likely to be stolen by an incompetent driver or that the thief would drive the vehicle in a negligent or reckless manner. There is, therefore, no basis for distinguishing the taking of the Mazda automobile in this case from the facts in Farley v. Sley System Garages, supra, and Liney v. Chestnut Motors, Inc., supra. If in fact Blara was careless in allowing the vehicle to be stolen, it cannot be said to have been negligent toward appellant, whose injury was not a foreseeable consequence of the theft. The thief’s careless operation of the stolen vehicle was a superseding cause of appellant’s injuries, for which appellee cannot be held liable.

Appellant argues, however, that even if Blara owed no common law duty of care toward him, liability can be premised upon Section 9-601 of the Philadelphia Code. Section 9-601, entitled “Garages, Parking Lots, Sales Lots and Sales Showrooms,” provides, in part:

Liability of Licensee. Each licensee shall be liable for any damage to or theft of any motor vehicle accepted for parking, and for bodily injury to any individual, which shall occur as the result of the negligence of the licensee or any of his employees, and no contract, agreement, receipt, rule or regulation shall exempt any licensee or his employer from such liability.

Philadelphia Code § 9-601(2)(k).

This ordinance did not alter the legal principles of foreseeability and causation upon which prior Pennsylvania decisions were based. On the contrary, the purpose of the ordinance was “to prevent parking lot operators from contracting [away] liability for the negligence of their employees or themselves. The language of the ordinance presupposes the existence of a duty of care, and this language cannot be read as creating a duty of care where such duty did not exist prior thereto.” Sparrow v. Airport Parking Co. of America, 221 Pa.Super. 32, 43 n. 5, 289 A.2d 87, 93 n. 5 (1972).

Order affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s decision to affirm the demurrer. The majority correctly stated that the demurrer can only be sustained if the law says with certainty that no recovery is possible and if there are any doubts, they should be resolved in favor of refusing it. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). That is precisely what must be done here. The law does not clearly preclude recovery in this situation and the demurrer should therefore have been refused.

My decision is based upon the Supreme Court opinion in Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961). The Anderson Court extensively quoted from the Restatement, Torts (1934) concerning the liability of one as the result of some other’s actions. The key element, however, is forseeability. The Court then went on to hold that it is foreseeable to a parking garage owner that a car in its charge could be stolen, resulting in injury to an innocent person.

Finally, the question of proximate cause of an accident is almost always one of fact for the jury As stated in Nelson v. Duquesne L. Co., supra., [338 Pa. 37] at pp. 54, 55 [12 A.2d 299]: “In section 453 of Pennsylvania Annotations to the Restatement of Torts, the following appears “It is not uncommon to have a situation where there may be a reasonable difference of opinion as to whether the actor’s conduct was a substantial factor in bringing about the harm, and it frequently occurs that where intervening forces have come into operation there may be a reasonable difference of opinion as to whether they were extraordinary or normal. If there is room for such a reasonable difference of opinion, the question of legal cause is for the determination of the jury (citing 14 Pennsylvanlia cases.)”

Anderson, supra, 404 Pa. at 391, 171 A.2d at 775.

The law, then, does not allow for a sustaining of a demurrer in this case, but rather supports the right of a jury to determine the cause and ensuing liability.

      . The complaint had been served on June 4, 1985. The defendant’s preliminary objections were filed on August 8, 1985. The trial court denied plaintiff's motion to strike defendant’s preliminary objections.


author: MONTEMURO, Judge:

text:
    513 A.2d 483
    Mona DOYLE, Appellant, v. Patrick DOYLE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed Aug. 11, 1986.

      Maureen D. Serpico, Doylestown, for appellant.
    Robert L. White, Langhorne, for appellee.
    Before CIRILLO, POPOVICH and MONTEMURO, JJ.
   MONTEMURO, Judge:

This appeal lies from an order entered by the Bucks County Court of Common Pleas on May 15, 1985, denying appellant’s petition to enforce, register and adopt a foreign divorce decree, pursuant section 506 of the Divorce Code.

On March 29, 1983, the District Court of Dallas County, Texas, 330th Judicial District, entered a decree which divorced the parties, and “approved and incorporated” a property settlement agreement dated January 11, 1983.

The section of the property settlement agreement that is the subject of this appeal reads as follows:

PERIODIC PAYMENT
1. In discharge of PATRICK E. DOYLE’S marital obligations toward MONA DOYLE, in consideration of his love and affection for her, and in consideration of her past performance, and for maintenance and support, and not as a part of any property division, distribution, settlement, or payment for her interest in community property. Mr. Doyle shall pay to Mrs. Doyle, beginning on or before the first day of the month following the sale of the parties’ homestead in Dallas, and on or before the first of each month thereafter for a period of 18 months the sum of $1,400.00; and he shall then pay the sum of $1,200.00 per month for the next 18 months continuing on or before the first day of the month following the last $1,400.00 payment, making a total of 36 monthly payments hereunder.
2. Mr. Doyle’s obligation under this section Y, following the divorce of the parties, shall terminate in the event of the death of either party. The parties acknowledge that payments under this section shall be reported as income by Mrs. Doyle on her U.S. Individual Income Tax Return and shall be taken as a deduction by Mr. Doyle on his U.S. Individual Income Tax Return.
3. Mrs. Doyle shall have no right or power to anticipate, pledge, assign, sell, transfer, alienate or encumber payments hereunder, in any way; nor shall any such payments in any manner be liable for or subject to the debts, liabilities or obligations of Mrs. Doyle; nor shall Mr. Doyle be liable to any vendee, transferee, alienee, encumberee, pledgee or mortgagee therefore.
4. Monthly payments described in this Section are separate and apart from, and in addition to the property division described in Sections I and II hereof.

Appellee abided by the terms of this section of the agreement until December, 1984; sometime thereafter, both parties moved from Texas to Pennsylvania.

On March 1, 1985, appellant filed a petition to enforce, register and adopt a foreign divorce decree, which was denied by the Bucks County Court of Common Pleas. In essence, appellant requests that we reverse the hearing court and adopt and enforce, as “alimony”, the parties’ Texas property settlement agreement providing for periodic payments to appellant from appellee. Appellant seeks to have the Texas agreement adopted pursuant to section 506 of the Divorce Code as she would then be entitled to the enforcement protection provided by section 503 of the Divorce Code. Section 506 provides:

Enforcement of foreign decrees
Whenever a person subject to a valid decree of a sister state or territory for the payment of alimony, temporary alimony, or alimony pendente lite, or his or her property is found within this Commonwealth, the obligee or such a decree may petition the court, where the obligor or his or her property is found, to register, adopt as its own, and to enforce the said decree as a duly issued and authenticated decree of a sister state or territory. Upon registration and adoption, such relief and process for enforcement as is provided for at law, in equity, or by court rule, in similar cases originally commenced in this Commonwealth, shall be available, and a copy of the decree and order shall be forwarded to the court of the state or territory which issued the original decree and may question the jurisdiction of that court if not otherwise barred. Interest may be awarded on unpaid installments and security may be required to insure future payments as in such case originally commenced in this Commonwealth. Where property of the obligor, but not his person, is found within this Commonwealth, there shall be jurisdiction quasi in rem and, upon registration and adoption of the decree of the sister state or territory such relief and enforcement of the decree shall be available in other proceedings which are quasi in rem.

It is undisputed that court ordered “alimony” contravenes the public policy of Texas and is not provided for under Texas law. In Francis v. Francis, 412 S.W.2d 29 (Tex.1967), the Texas Supreme Court considered the validity of monthly payments required under a property settlement agreement. The court stated:

When its true meaning is distilled from the statutes and the court decisions of this State, alimony which contravenes the public policy of the State is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce.
From what has been said, it follows that obligations assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State.

Id. at 33. The Francis court held that support obligations assumed in separation agreements are contractual in nature and will be enforced under the law of contracts. Id.

The agreement in the instant case fits squarely into the Francis definition of contractual support obligations. Under Texas law this agreement would have whatever legal force the law of contracts confers, since lacking an alimony statute, Texas provides no method of enforcing these compacts other than a suit in contract. Shaw v. Shaw, 623 S.W.2d 148 (Tex.Ct.App. 1981).

The plain language of section 506 of our Divorce Code applies to “alimony, temporary alimony, or alimony pendente lite.” “When interpreting a statute we are guided by the ‘plain meaning’ rule of construction. 1 Pa.C.S. § 1903; Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). The plain words of a statute cannot be disregarded where the language is free and clear from all ambiguity. Hyser v. Allegheny County, 61 Pa.Commw. 169, 434 A.2d 1308 (1981).” Commonwealth v. Baraniak, 350 Pa.Super. 459, 504 A.2d 931, 933 (1986). Clearly, the language in section 506 does not encompass the property settlement entered into by the parties here, as this agreement, which must be interpreted in accordance with Texas law, is contractual in nature and not a grant of alimony in any form. See Miller v. Miller, 463 S.W.2d 477 (Tex.Civ. App.1971); Smith v. Smith, 460 S.W.2d 204 (Tex.Civ.App. 1970).

We can not, as appellant wishes, transform the parties’ contract for support into an alimony award enforceable under section 506 of the Divorce Code. In a case presenting nearly identical facts, Peddicord v. Peddicord, 278 Ark. 164, 644 S.W.2d 582 (1983), the Arkansas Supreme Court, refusing to construe a Texas support agreement as alimony under Arkansas law, stated:

[T]he appellant is asking the courts of Arkansas to construe her Texas judgment in a manner that the courts of Texas would refuse and to provide her with a method of enforcing those judgments that would be denied her in Texas. Article IV, § 1 of the Constitution of the United States requires us to accord full faith and credit to the Texas judgments. We are required ‘to give to the judgments of other states the same conclusive effect between the parties and their privies as is given such judgments in the state in which they were rendered.’ Leflar, American Conflicts Law § 63 (Third Ed.1977). We find no authority which requires us to give out-of-state judgments an effect that they would not be given in the state in which they were rendered.

Id. at 166, 644 S.W.2d at 583.

The appeals court of Tennessee in Burton v. Burton, 52 Tenn.App. 484, 376 S.W.2d 504 (1963), also faced with an appellant asking for court recognized alimony following a Texas divorce decree, held that the appellant was barred from maintaining an action for maintenance or alimony subsequent to a Texas divorce decree.

It is the contention of defendant that, with full faith and credit given to the Texas divorce decree in his favor, complainant could not be entitled to support and maintenance at his expense after the granting of that [Texas] divorce decree. With this contention we agree.

Id. at 499, 376 S.W.2d at 511. We are in full accord with the holdings of the Arkansas Supreme Court in Peddicord and the Tennessee Court of Appeals in Burton. Were we to provide appellant with a non-contractual means of enforcing the agreement, not available to her under Texas law, we would be in violation of the full faith and credit clause of the United States Constitution U.S. Const. art. IV, § l.

Accordingly we find appellant’s petition was properly denied.

Order affirmed.

      . Act of April 2, 1980, P.L. 63 No. 26 §§ 101-801, 23 PS §§ 101-801.

      . The divorce decree stated that the Property Settlement agreement was "just and right” and it was "approved and incorporated into this Decree by reference as if it were recited herein verbatim."

      . § 503. Enforcement of arrearages
      If at any time a party is in arrears in the payment of alimony or alimony pendente lite as provided for in sections 501 and 502[ ] after hearing, the court may, in order to effect payment of the arrearages:
      (1) Enter judgment.
      (2) Authorize the taking and seizure of goods and chattels and collection of the rents and profits of the real estate of the party.
      (3) Attach no more than 50% of the wages of the party.
      (4) Award interest on unpaid installments.
      (5) Require security to insure future payments.
      (6) Issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that the person named as having failed to comply with the court order be brought before the court at such time as the court may direct. If the court finds, after hearing, that the said person willfully failed to comply with the court order, it may deem said person in civil contempt of court and in its discretion make an appropriate order including, but not limited to, commitment of said person to the county jail for a period not to exceed six months.
      1980, April 2, P.L. 63, No. 26, § 503.

      . Texas Fam.Code Ann. § 3.59 (Vernon 1975).

      . Article IV, § 1, of the United States Constitution states:
      Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.


text:
    513 A.2d 486
    Ralph J. ALTOMARE, Sr. v. Ralph J. ALTOMARE, Jr. and Cynthia Altomare. Appeal of Cynthia ALTOMARE.
    Superior Court of Pennsylvania.
    Argued June 10, 1986.
    Filed Aug. 11, 1986.

      Joseph R. Livesey, Philadelphia, for appellant.
    Neil A. Morris, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant Cynthia Altomare, a defendant in the underlying equitable action, challenges the order denying her motion to reinstate the case on the trial list and granting appellee Ralph J. Altomare, Jr.’s motion to enforce settlement. Appellant argues that the court’s finding that a settlement occurred was against the weight of the evidence, and that the settlement agreement was unenforceable because it purported to assign an interest in real estate and was not reduced to writing as required by the Statute of Frauds. We find appellant’s arguments to be without merit, and affirm the order of the Court of Common Pleas of Philadelphia County.

On February 17, 1982, Ralph Altomare, Sr., filed a complaint in equity to establish an equitable mortgage on a property in Philadelphia in order to protect his alleged interest in this property. This property was deeded over to Altomare’s son and daughter-in-law, Ralph Altomare, Jr., and Cynthia Altomare, for $15,000 pursuant to an oral mortgage of $150 per month payable to Altomare, Sr., until the sum of $15,000 was paid in full. The property in question served as the marital home of Ralph and Cynthia Altomare until they separated in April 1981. After their separation, Ralph and Cynthia allegedly defaulted on the mortgage payments to Altomare, Sr. As a result, Alto-mare, Sr., brought the present action.

The trial court held a pre-trial conference on this matter, and, at that time, counsel for all parties indicated that this case had been settled. Relying on this representation, the court marked the case “settled;” but on September 17, 1985, Cynthia Altomare petitioned the trial court to reinstate the case on its trial list, alleging that she never agreed to settle the case and that her attorney did not have the authority to do so. On September 23, 1985, Altomare, Jr., petitioned the trial court to enforce the settlement. Following a hearing on these motions, the court, on October 31, 1985, granted the motion to enforce the settlement and denied the motion to reinstate the case on the trial list. This timely appeal followed.

Whether the parties agreed to settle this case is a question of fact for the trial court. The court’s determination on this issue was not capricious or against the weight of the evidence. See Simon v. H.K. Porter Co., 407 Pa. 359, 180 A.2d 227 (1962). The court made extensive findings of fact after a hearing on the matter. A careful review of the record in this case reveals substantial evidence that would enable the hearing court to determine that a settlement was reached. We will not overturn that determination.

Appellant’s second argument is based on the Statute of Frauds. See Gogel v. Blazofsky, 187 Pa.Super. 32, 142 A,.2d 313 (1958). This reliance is misplaced. The Statute of Frauds is an affirmative defense which appellant attempts to raise in connection with the settlement agreement for the first time on appeal. Whether the Statute of Frauds is applicable in this situation is moot; the time for raising this affirmative defense is past. See Pa.R.C.P. 1030. Appellant waived the defense of the Statute of Frauds when she failed to raise it in responsive pleadings relative to enforcement of the settlement agreement below. See Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981).

Order affirmed.

ROWLEY, J., concurs in the result.

      . We note that appellant Cynthia Altomare has not filed any post-trial motions to the trial court’s October 31st order. However, the court’s order does appear to be final in form; it is neither entitled “Decree Nisi" nor indicates that post-trial motions were required. See In re Esate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985) (when an order neither comports with the requirements of Pa.R.C.P. 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused).

      . It is important for all concerned to be able to rely on agreements on the record made by counsel. See Pa.R.A.P. 3122 and Pa.R.C.P. 201. See, e.g., Borough of Brookhaven v. Zoning Hearing Board, 58 Pa. Cmwlth. 436, 427 A.2d 1281 (1981).


author: WIEAND, Judge:

text:
    513 A.2d 488
    A.C. ELFMAN & SONS, INC., Appellee, v. Frederick C. CLIME and Veronica D. Clime, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 13, 1986.
    Decided July 31, 1986.

      Jeffrey Hoyle, Lansdale, for appellants.
    John N. Schaeffer, Doylestown, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

The issue in this appeal involves an application of the doctrine of res judicata. The trial court refused to apply the doctrine because judgment in a prior action between the same parties had been entered by agreement before a district justice and because, in the trial court’s opinion, it did not constitute a final adjudication of the merits. We reverse.

Frederick and Veronica Clime, husband and wife, entered an oral agreement with A.C. Elfman & Sons, Inc., a contractor, by which the contractor agreed to make repairs to Climes’ home. When the Climes failed to pay a balance which the contractor believed to be due, an action was commenced by the contractor before a district justice. Pri- or to the hearing on June 7, 1983, a judgment was entered by agreement in favor of the defendants. Following the entry of this judgment by the district justice, the contractor filed a notice of appeal in the Court of Common Pleas of Bucks County. When the contractor failed to file a complaint within twenty days thereafter, as required by Pa.R.C. P.D.J. 1004 A, the Climes moved, pursuant to Pa.R.C.P.DJ. 1006, to strike the appeal. The trial court granted the motion and struck the contractor’s appeal by an order dated August 17, 1983. No appeal was taken from that order.

More than four months later, on December 30, 1983, the contractor filed a complaint in the Court of Common Pleas to a different docket number. The cause of action was the same as that for which recovery had been sought in the action commenced before the district justice. The Climes filed preliminary objections in the nature of a demurrer, alleging that the prior judgment entered by the district justice was res judicata and barred the new action. The trial court dismissed the preliminary objections. The court also denied a later motion for summary judgment made by appellants on grounds that appellee’s action was barred by res judicata. The case was thereafter heard by a board of arbitration, pursuant to compulsory arbitration rules in effect in Bucks County, and resulted in an award for the contractor in the amount of $871.85. An appeal was then filed in the Court of Common Pleas by the Climes, where the action was heard non-jury. The defense of res judicata was again asserted by the Climes and rejected by the trial court. A verdict was entered for the contractor in the same amount which had been awarded by the board of arbitrators. A post-trial motion for judgment n.o.v., again asserting the defense of res judicata, was denied, and judgment was entered on the verdict. The Climes appealed.

The doctrine of res judicata establishes that “a final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the parties or their privies, on the same cause of action.” Keystone Building Corp. v. Lincoln Savings and Loan Association, 468 Pa. 85, 91, 360 A.2d 191, 194 (1976) quoting Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 395, 100 A.2d 595, 598 (1953). See: Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788, cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). To establish the defense of res judicata, four elements must be shown: (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Keystone Building Corp. v. Lincoln Savings and Loan Association, supra; Shindel v. Leedom, 350 Pa.Super. 274, 277, 504 A.2d 353, 355 (1985); Estate of Hillegass, 322 Pa.Super. 139, 143-144, 469 A.2d 221, 223 (1983); Brandschain v. Lieberman, 320 Pa.Super. 10, 15, 466 A.2d 1035, 1038 (1983). Where the four identities are present, a judgment entered by consent or agreement will bind the parties with the same force and effect as if it had been entered after a full hearing on the merits. Keystone Building Corp. v. Lincoln Savings and Loan Association, supra 468 Pa. at 92 n. 6, 360 A.2d at 194-195 n. 6, quoting 47 Am.Jur.2d Judgments § 1089; Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962); Brandschain v. Lieberman, supra 320 Pa.Super. at 16, 466 A.2d at 1038; Chamberlin of Pittsburgh, Inc. v. Fort Pitt Chemical Co., 237 Pa.Super. 528, 532, 352 A.2d 176, 177 (1975).

Similarly, where the doctrine of res judicata is otherwise applicable, its invocation will not be precluded or impaired because the prior judgment was entered in an action before a district justice. Stahl v. Hilderhoff, 432 Pa. 179, 182, 247 A.2d 582, 583 (1968). See: Boland v. Spitz, 153 Pa. 590, 26 A. 22 (1893); Marsteller v. Marsteller, 132 Pa. 517, 19 A. 344 (1890).

In the instant case, the record demonstrates that the four identities necessary to invoke the doctrine of res judicata were present. In the action before the district justice and in the instant action, the contractor sued the same defendants, on the same oral contract, for a balance allegedly remaining due and unpaid. Nevertheless, the trial court rejected the defense of res judicata. The court said, inter alia, that the consent judgment entered by the parties was for the convenience of the parties and was not intended to be a final adjudication of Elf man’s claim. This finding by the trial court, however, is without support in the record. Indeed, it is contradicted flatly by the judgment entered by the district justice which is unconditional and gives no suggestion that it was not intended to be a final determination on the merits. This judgment became final when an appeal therefrom failed to be perfected.

After the contractor’s appeal from the judgment had been dismissed and the judgment had become final, all objections to the form of the judgment were waived. The final judgment was not thereafter subject to collateral attack in a separate proceeding. See: Devlin v. Piechoski, 374 Pa. 639, 643, 99 A.2d 346, 348 (1953), quoting Stradley v. Bath Portland Cement Co., 228 Pa. 108, 113, 77 A. 242, 243 (1910). It could not be avoided merely because one of the parties intended subjectively to litigate the issue again in another action.

We conclude, therefore, that the contractor’s claim was adjudicated finally by the consent judgment entered before the district justice. That judgment was res judicata and barred a second action between the same parties on the same cause of action. When the trial court held otherwise, it fell into error. The earlier judgment had attained a certainty and finality which protected the homeowners from “vexatious, repetitious litigation” by the contractor on the same claim. See: Schultz v. City of Philadelphia, 314 Pa.Super. 194, 199, 460 A.2d 833, 835 (1983); Exner v. Exner, 268 Pa.Super. 253, 257, 407 A.2d 1342, 1344 (1979).

Judgment reversed and entered in favor of appellants.

      . Although the complaint filed in the court of common pleas sought a greater amount in damages than had been alleged in the pleading submitted to the district justice court, we agree with the trial court that the difference in the amount of damages requested does not preclude application of the doctrine.


text:
    513 A.2d 490
    Michael KLOS and Albina Klos, Appellees, v. Anne MOLENDA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1986.
    Decided July 31, 1986.

      Ann L. Powell, Scranton, for appellant.
    J. Brian Foley, Scranton, for appellees.
    Before CIRILLO, President Judge, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

In this appeal from a final decree in equity which (1) held that appellees had acquired title by adverse possession to a thirty inch wide strip of land and (2) enjoined appellant from entering upon or causing damage to the strip of land, appellant argues that appellees failed to prove the elements necessary to show title by adverse possession. We disagree and affirm the decree of the trial court.

The facts are not in substantial dispute. On September 20, 1950, Michael and Albina Klos, the appellees, purchased a tract of land, measuring fifty (50) feet in width and one hundred thirty-five (135) feet in depth, from a larger tract owned by John and Anne Molenda on Greenwood Avenue in Scranton. In lieu of a survey, John Molenda and Michael Klos paced off the lot and placed stakes in the ground to mark the boundary between the lot purchased by Klos and the land retained by Molenda. Michael and Albina Klos built a residence on their lot and, in 1952, poured a concrete sidewalk along the front of the property which extended to the property line designated by the stakes previously placed by the parties. The Kloses also installed a concrete driveway on their property, the edge of which was thirty (30) inches from the line designated by the stakes. In the intervening thirty inch strip, they placed top soil and planted grass, which they maintained continuously until the events which led to the instant litigation. In either 1956 of 1957, the Molendas also planted hedge along the staked property line. This hedge line remained in place until 1981 or 1982, when it was partially removed. The remaining hedge plants were removed in 1984.

John Molenda died in 1983. His widow employed a surveyor to survey the land which she owned. The survey- or located the property line separating the Klos and Molen-da lands along the edge of the Klos driveway. Thereafter, Anne Molenda, the appellant herein, caused a fence to be constructed along the edge of the Klos driveway. This prompted Michael and Albina Klos to commence an action in equity to establish their ownership of the thirty (30) inch strip and to enjoin Anne Molenda’s interference therewith.

“It is well settled that he who asserts title by adverse possession must prove it affirmatively.” Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). “[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years____ Each of these elements must exist, otherwise the possession will not confer title.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978); Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). “An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts____ He must keep his flag flying and present a hostile front to all adverse pretensions.” Smith v. Peterman, supra, 263 Pa.Super. at 161, 397 A.2d at 796 (quotations and citations omitted).

Flickinger v. Huston, 291 Pa.Super. 4, 7-8, 435 A.2d 190, 192 (1981). See: Schlagel v. Lombardi, 337 Pa.Super. 83, 86, 486 A.2d 491, 493-494 (1984); Reed v. Wolyniec, 323 Pa.Super. 550, 555-556, 471 A.2d 80, 84 (1983); Edmondson v. Dolinich, 307 Pa.Super. 335, 336-337, 453 A.2d 611, 612 (1982); Lyons v. Andrews, 226 Pa.Super. 351, 355-356, 313 A.2d 313, 315 (1973); Ewing v. Dauphin County Tax Claim Bureau, 31 Pa.Cmwlth.Ct. 285, 288, 375 A.2d 1373, 1374 (1977).

On appeal, Mrs. Molenda’s principal contentions are that the Klos possession was (1) sporadic rather than continuous, and (2) permissive and neither hostile nor adverse. We reject these arguments. The evidence disclosed that appellees had continuously maintained the strip of land in lawn between 1952 and 1984, when their maintenance of the lawn was prevented by the fence which Anne Molenda had erected. The use of land for lawn purposes and the continuous maintenance thereof in connection with a residence, it has been held, are sufficient to establish adverse possession. Reed v. Wolyniec, supra; Lyons v. Andrews, supra.

The hostile nature of the Klos possession was not destroyed because the stake line may have been placed along a property line mistakenly located by the adjoining landowners. This fact did not render Klos’ possession permissive. The parties intended that the Kloses should have title to that line, and thereafter the Kloses kept their flag flying continuously on the thirty (30) inch strip of land. Their possession, open, notorious and exclusive for more than twenty-one years, presented a hostile front to any person or persons intending to make a conflicting pretension of ownership.

Decree affirmed.

      . On several occasions prior to Molenda’s death, Michael Klos had offered to purchase some or all of the land situated between the Klos property and the lot on which the Molenda home was erected. Although the offers had been refused, the Molendas did grant permission to Klos to drive trucks over the land between the property line and their dwelling house.

      . It was also argued that appellees had failed to establish precisely the location of their property line and, therefore, had failed to establish title by adverse possession. Our review of the record discloses a lack of merit in this contention. The line was established by photographs and also by oral testimony.

      . The fact that John Molenda granted permission to Michael Klos to use an adjoining lot for truck traffic was irrelevant to and did not alter the adverse nature of the Klos possession of the thirty (30) inch strip.