author: FORD ELLIOTT, Judge:

text:
    602 A.2d 882
    Brian TARAS and Nancy Taras, Appellant, v. WAUSAU INSURANCE COMPANIES, Barbara Eckels, R.N., David L. Scasta, M.D., Penn Executive Diagnostic Center, Inc., Penn Diagnostic Center, and Philadelphia Psychiatric Center.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1991.
    Filed Feb. 6, 1992.

      Brian M. Monahan, Easton, for appellant.
    Glenn M. Campbell, Philadelphia, for appellees Wausau Ins. Companies and Eckels.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the December 20,1990 order of the Court of Common Pleas of Bucks County, granting Wausau Insurance Company and Barbara Eckels’ preliminary objections and dismissing appellants’ complaint with prejudice. The trial court concluded that Eckels and Wausau were immune from suit pursuant to the statutory immunity provisions in the Workmen’s Compensation Act. Because we find the injury for which appellant seeks redress from these appellees to be non-work related, we reverse the order granting appellees’ preliminary objections.

Appellant, Brian Taras, was involved in an automobile accident during the scope and course of his employment. As a result of the accident, Taras suffered physical injuries, as well as depression and anxiety. Wausau Insurance Company, in its capacity as worker’s compensation carrier for Taras’ employer, provided compensation benefits for Taras.

In addition to handling Taras’ benefits claim, Wausau coordinated Taras’ medical treatment. Barbara Eckels, a registered nurse, analyzed and monitored Taras’ treatment on behalf of Wausau Insurance Company. Brian Taras alleges that Nurse Eckels informed Taras that he was to undergo such treatment, as determined necessary by Wausau, in order to continue his eligibility for benefits.

On August 23, 1985, Nurse Eckels informed Taras that she had arranged for him to be evaluated by various physicians at the Penn Diagnostic Center. After undergoing psychological testing and evaluation, the physicians at Penn Diagnostic Center recommended that Taras undergo treatment at Philadelphia Psychiatric Center. Taras was hospitalized at the Center from November 13, 1985, through November 22, 1985. While at the center, Taras came under the care of Dr. David L. Scasta, who thereafter treated Taras until April of 1987.

In February of 1987, Dr. Scasta recommend that Taras undergo electro convulsive therapy (“electric shock treatment”). Taras was again admitted to the Philadelphia Psychiatric Center, and on February 17, 1987, underwent electro convulsive therapy, performed under the supervision of Dr. Scasta.

Eventually, in April of 1987, Taras came under the care of Doctors Allan and Harriet Wells, who diagnosed him as suffering from Post Traumatic Stress Disorder. The diagnosis indicated that the disorder initially resulted from Taras’ activities as a soldier in the Vietnam War. The disorder was then exacerbated by the automobile accident and subsequent electro convulsive therapy.

As a result of being diagnosed as suffering from Post Traumatic Stress Disorder and being advised that electro convulsive therapy was an inappropriate form of treatment for such disorder, Taras filed a lawsuit against Wausau Insurance Company, Barbara Eckels, R.N., David L. Scasta, M.D., Penn Diagnostic Center, Penn Executive Diagnostic Center, Inc., and the Philadelphia Psychiatric Center.

Taras’ claim against Wausau and Eckels was that they were negligent in directing and coordinating his medical care; care which they indicated was necessary in order for Taras to continue receiving compensation benefits.

Wausau and Eckels filed preliminary objections to the complaint, raising statutory immunity under the Workmen’s Compensation Act as an affirmative defense. Following oral argument, the Honorable Michael J. Kane granted the preliminary objections and dismissed the complaint against Wausau and Eckels, with prejudice. This timely appeal followed.

Appellants raise two issues for our consideration.
I. Whether appellants’ complaint sets forth a cause of action against appellee, Wausau Insurance Companies, which is not subject to the statutory immunity from tort liability provided pursuant to the workmen’s compensation act?
II. Whether appellants’ complaint sets forth a cause of action against appellee, Barbara Eckels, R.N., which is not subject to the statutory immunity from tort liability provided pursuant to the workmen’s compensation act?

We shall address these issues simultaneously, as they both pose the same query; the extent to which the workmen’s compensation act will provide immunity to the compensation carrier and its employees or agents.

Initially, we note that the standard of review which we apply when examining a challenge to an order sustaining preliminary objections in the nature of a demurrer, is well-settled.

All material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Miscicordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

DeGenova v. Ansel, 382 Pa.Super. 213, 216, 555 A.2d 147, 149 (1988). With this standard in mind, we conclude that the trial court erred in sustaining appellees’ preliminary objections in the nature of a demurrer.

As stated previously, the trial court concluded that Wausau and Eckels were entitled to statutory immunity provided by § 303(a) of the Pennsylvania Workmen’s Compensation Act. Section 303(a) of the Workmen’s Compensation Act provides:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependants next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in § 301(c)(1) and (2) or occupational disease as defined in § 108.

77 P.S. § 481. The exclusivity provision of this section has been held to bar tort actions flowing from any work-related injury. Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988). A “work-related injury” is defined under §§ 301(c)(1) and (2) of the Act, which provides:

§ 411. ‘Injury,’ ‘personal injury,’ and ‘injury arising in the course of his employment’ defined
(1) The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury; and wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury. The term ‘injury arising in the course of his employment,’ as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.
(2) The terms ‘injury,’ ‘personal injury,’ and ‘injury arising in the course of his employment,’ as used in this act, shall include, unless the context clearly requires otherwise, occupational disease as defined in section 108 of this act: Provided, That whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease: And provided further, That if the employe’s compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable. The provisions of this paragraph (2) shall apply only with respect to the disability or death of an employe which results in whole or in part from the employe’s exposure to the hazard of occupational disease after June 30, 1973 in employment covered by The Pennsylvania Workmen’s Compensation Act. The employer liable for compensation provided by section 305.1 or section 108, subsections (k), (1), (m), (o), (p) or (q), shall be the employer in whose employment the employe was last exposed for a period of not less than one year to the hazard of the occupational disease claimed. In the event the employe did not work in an exposure at least one year for any employer during the three hundred week period prior to disability or death, the employer liable for the compensation shall be that employer giving the longest period of employment in which the employe was exposed to the hazards of the disease claimed.

77 P.S. § 411. As noted by the Supreme Court in Lems, this exclusivity provision,

is a version of the historical quid pro quo employers received for being subjected to a no-fault system of compensation for worker injuries. That is, while the employer assumes liability without fault for a work-related injury, he is relieved of the possibility of a larger damage verdict in a common law action.

Id., 517 Pa. at 471, 538 A.2d at 867 (citations omitted).

Furthermore, the trial court relied upon the language of Section 305 to support its conclusion that Wausau and Eckels were entitled to statutory immunity from this lawsuit. Section 305 of the Workmen’s Compensation Act provides, in pertinent part:

Every employer liable under this act to pay compensation shall insure the payment of compensation in the State Workmen’s Insurance Fund, or in any insurance company ... authorized to insure such liability in this Commonwealth ... Such insurer shall assume the employer’s immunities and protection hereunder ...

77 P.S. § 501.

As appellees note, two recent decisions of the appellate courts of this Commonwealth, interpreting these sections of the Workmen’s Compensation Act, have concluded that insurance carriers are entitled to the same immunity in processing a compensation claim as the employer. Specifically, appellees argue that Kuney v. PMA Insurance Companies, 525 Pa. 171, 578 A.2d 1285 (1990), and Alston v. St. Paul Insurance Companies, 389 Pa.Super. 396, 567 A.2d 663 (1989), appeal granted 527 Pa. 621, 592 A.2d 42 (1991), control the resolution of the issues presented herein. According to appellees, the trial court correctly applied the holdings from those cases when it concluded that Wausau and Eckels were entitled to statutory immunity under the Workmen’s Compensation Act.

Appellants maintain that Alston and Kuney are distinguishable from the case sub judice, and that to apply the holdings from those cases in this instance would be to paint too broad a stroke with the brush of immunity. We agree with appellants that the holdings from those cases have no application to the claim at bar.

Both Alston and Kuney involved suits by claimants against carriers grounded in theories of wrongful or fraudulent termination of benefits. In Kuney, supra, an employee of Continental Data Systems, George Kuney, was injured on the job. Mr. Kuney filed a claim petition with his employer’s compensation carrier, PMA Insurance Company. PMA refused to pay any benefits despite its alleged knowledge that Kuney was clearly entitled to compensation. Kuney initiated legal action to recover his benefits, and was ultimately awarded benefits plus interest on past-due benefits and legal fees. The decision by the referee was eventually upheld by the Commonwealth Court. See Kuney v. Workmen’s Compensation Appeal Board, 127 Pa.Cmwlth. 628, 562 A.2d 931 (1989).

While litigating his claim for compensation benefits, Kuney initiated a separate action against PMA seeking damages for PMA’s fraudulent denial of his benefits. The trial court sustained PMA’s preliminary objections, concluding that Kuney’s sole remedies for any injuries sustained as a result of PMA’s conduct in handling the claim were provided under the Workmen’s Compensation Act. The Superior Court reversed the trial court, holding that the Workmen’s Compensation Act did not bar Kuney’s suit against PMA. The Supreme Court granted allocatur to address the issue of whether the exclusivity clause in the Act, 77 P.S. § 481(a), barred a common law tort action for fraudulent denial of a claim by a claimant against his employer’s compensation carrier. In attempting to resolve this issue, the Supreme Court placed great weight on the fact that the Act itself provided remedies for the injuries Kuney alleged to have suffered as a result of PMA’s fraudulent denial of his claim.

In determining whether the appellee’s alleged injury is subject to the exclusive remedies of the Workmen’s Compensation Act or whether it is remediable in tort, we must examine the scope of the statute and its remedies to determine the intent of the legislature. One salient feature of the statute is its statutory penalty provisions. The appellant argues that permitting a tort action would be inconsistent with the fact that the compensation statute provides a comprehensive system for adjudicating workers’ compensation disputes, including specific remedies for the alleged injury.

Kuney, 525 Pa. at 175, 578 A.2d at 1286-87. Thus, because the claim in Kuney was ultimately based upon an injury compensable under the Act, the claimant was limited to remedies provided for under the Act.

Accordingly, inasmuch as the appellee’s claim is ultimately based upon an injury compensable under the Workmen’s Compensation Act, he is limited to the remedies provided within the framework of the act. The exclusivity provisions of the workers’ compensation law prohibit a tort action against the insurance carrier for damages caused by the insurer’s allegedly intentional mishandling of the injured employee’s compensation claim.

Kuney, 525 Pa. at 177, 578 A.2d at 1288.

In the present case, Taras’ claim against Wausau and Eckels in not based upon an injury compensable under the Act. Rather, Taras seeks redress for a separate, non-work related injury. Therefore, Taras is not limited to the remedies provided within the framework of the Act.

Similarly, in Alston, supra, this court likewise relied extensively upon the availability of administrative remedies under the Act to support its conclusion that the compensation carrier was immune from suit by the claimant for fraudulently denying benefits. Briefly, Alston involved an action by Calvin Alston against St. Paul Insurance Companies, the firm retained by St. Paul to administer the case, and the physician who issued the affidavit of recovery. Alston alleged that these groups conspired to fraudulently deny him benefits under the Workmen’s Compensation Act. According to Alston, St. Paul decided to take an aggressive approach toward Alston’s claim, and fraudulently obtained a physician’s affidavit of recovery. St. Paul then utilized that affidavit in an attempt to negotiate a lump sum settlement with Alston. When Alston balked at the settlement, St. Paul filed a petition to terminate benefits. The gravamen of Alston’s complaint was that defendants had engaged in a course of tortious conduct designed to fraudulently deny him benefits. The trial court granted summary judgement on behalf of all defendants, holding that they were immune from this action under the provisions of the Workmen’s Compensation Act.

On appeal, this court affirmed, focusing on the availability of remedies under the Act to support its holding.

Pennsylvania’s Workmen’s Compensation statute provides a host of administrative remedies for those claimants who believe their compensation has been wrongfully suspended or terminated by the workmen's compensation insurer. Aggrieved claimants can receive interest on all past due compensation; litigation costs; and counsel fees where the insurer did not have a reasonable basis to contest the claim. In addition, they can receive remuneration for fees paid to witnesses, medical examinations, and lost time to attend the proceedings to contest the termination or suspension. Moreover, they may recover against the insurer in an amount up to twenty percent of the benefits due in cases of unreasonable or excessive delays ... Thus, in addition to assuring quick, fair, and certain compensation, our legislators also considered the plight of an injured worker who might be intimidated or disadvantaged by the superior bargaining position of an insurance company, and responded with sanctions and procedures designed to obviate the need for common law actions.

Alston, 389 Pa.Super. at 408, 567 A.2d at 669 (emphasis added).

Thus, while it is true that the exclusivity section of the Workmen’s Compensation Act serves to provide insurance carriers with immunity from suits when the claims for which redress is sought are compensable through the administrative remedies of the Act itself, such immunity is not boundless. Rather, the boundaries are determined by the nature of the injury alleged and the role of the carrier with respect to that injury. To hold otherwise would be to extend the immunity provisions beyond the logical scope of the Act itself.

As appellants note, the nature of their action against Wausau and Eckels is quite different from the actions which were disallowed in Kuney and Alston. Appellants are not claiming that appellees fraudulently or wrongfully denied or discontinued Brian Taras’ compensation benefits with respect to any work-related injury. Nor are they seeking the type of damages which would flow from such a claim: past due benefits, interest, costs, and fees. If such were the case, then the holdings from Kuney and Alston would certainly apply to bar such an action, as appellants would have ample administrative remedies at their disposal to recoup such losses.

However, such is not the case. Instead, appellants are claiming that appellees caused Brian Taras direct physical harm through their negligence in directing and advising him to obtain medical care which was improper given Taras’ condition. Specifically, appellants allege that Barbara Eckels, a registered nurse and an agent or employee of Wausau, was negligent in her evaluation of Brian Taras’ condition and the course of treatment which she arranged for Taras; treatment which Eckels insisted Taras must undergo in order to maintain his eligibility for benefits, according to appellants allegations. The treatment which Brian Taras ultimately received, electro convulsive therapy, is alleged to have caused direct psychological damage to Brian Taras and to have exacerbated his true underlying condition, post traumatic stress disorder. A condition which, according to appellants’ allegations, has its ultimate basis in Taras’ participation in the Vietnam War, and not in the underlying work-related accident, as appellees contend.

Thus, the injuries and damages sought by appellants in this instance are not of the same nature as those sought by the claimants in Kuney and Alston. Appellants do not seek past due benefits, interest thereon, attorneys fees, or costs. Rather, appellants seek recompense for the psychological and emotional injuries suffered by Brian Taras as the result of receiving electro convulsive therapy — a non-work related injury. To the extent that Wausau and Eckels’ negligence contributed to Brian Taras receiving such therapy, he now seeks recovery from them.

The damages which appellants seek, therefore, are not the type which fall within the ambit of the administrative remedies provided for in the Act, nor are they otherwise compensable under the Act. Thus, the rationale behind Kuney and Alston for applying the exclusivity provision of the Act so as to provide immunity to carriers from suits by claimants, is inapplicable in this instance.

Rather, our research reveals that the present case is more akin to the case of Tropiano v. Travelers Insurance Co., 455 Pa. 360, 319 A.2d 426 (1974), and that the holding from that case should control the resolution of the present issues.

Domenic A. Tropiano was an employee of Vare Brothers, when he was injured during the course of his employment. Travelers was the workmen’s compensation carrier for Tropiano’s employer. Tropiano received a series of treatments at the direction of Travelers which proved to be not only ineffective, but actually harmful. Tropiano filed suit against the various doctors and Travelers for the harm he suffered because of the improper treatment.

The issue framed by the court in Tropiano is virtually identical to the one presently before this court.

The issue then presented to this court, through its grant of allocatur, is as follows: Whether an employer’s workmen’s compensation carrier is immune from liability in trespass to an employee for injuries allegedly caused by the insurer’s negligence in supplying medical services in the treatment and care of any injury previously sustained by the employee in the course of his employment.

Tropiano, 455 Pa. at 361, 319 A.2d at 427. In addressing that issue, the court recognized the importance of determining whether the alleged injuries arose during the course of Tropiano’s employment.

In DeJesus v. Liberty Mutual Insurance Co., 439 Pa. 180, 268 A.2d 924 (1970), and Brown v. Travelers Insurance Co., 434 Pa. 507, 254 A.2d 27 (1969), our court held that an insurance carrier was immune from common law tort liability with respect to actions filed by employees seeking recovery for injuries sustained in the course of their employment. Although DeJesus, supra, answered the question of the insurance carrier’s liability for negligence occurring during the course of an employee’s employment, it does not answer the difficult question before us today ...
We must, therefore, decide if the injuries for which appellant seeks recovery herein arise during the course of his employment because only for those injuries does an employer receive immunity from liability under the act.

Id. 455 Pa. at 362, 319 A.2d at 427 (emphasis in original).

This is precisely the distinction which appellants maintain distinguishes the present case from Alston, supra, and Kuney, supra. Appellants contend that the injuries for which they seek redress are separate and distinct from the injury which arose during the course of Taras’ employment.

Oncé the Tropiano court framed the issue and established the critical distinction, it resolved the issue by concluding that injuries caused by medical treatment administered at the direction of the carrier are not the type of injuries for which the carrier should be immune from liability-

We are of the opinion that acts of negligence arising out of medical treatment directed and controlled by the insurance carrier should not be classified as occurring during the course of employment. The medical treatment of injuries is a separate and distinct function of the insurance carrier which does not concern the employer and is not part of the employer’s business operations. The alleged acts of negligence in this case were committed by the insurance carrier subsequent to and independent of the original injury and with no involvement of the employer whatsoever.

Id. (emphasis added). That conclusion applies equally as well in this case. The acts of negligence which appellants have alleged that Wausau and Eckels committed, were committed subsequent to and independent of the original injury. This is the reason that Kuney, supra, and Alston, supra, are not controlling in this instance. While the tortious acts of the carriers in those cases may have come after the original injury, they were not independent of it. Rather, in Kuney and Alston, the tortious acts of the carriers were completely intertwined with the original injury, as their tortious acts related to the fraudulent denial of benefits for the original injury.

However, in the present case, as in Tropiano, there are allegations of separate, additional physical injuries, apart from the original work-related injury. Such injuries allegedly occurring as the result of the carrier’s negligence in directing the medical treatment of the claimant, and not in processing the claim for benefits for the underlying injury.

In reaching the decision that Tropiano controls the outcome of this case, this court is well aware that Tropiano was decided prior to the 1978 amendments to the Act. However, that fact does not change our analysis. It is true that prior to the 1978 amendments, section 306 of the Act required the employer, via the carrier, to provide medical services to injured employees. Thus, the argument could be made that because the carrier was required to provide the medical treatment, the carrier was, in essence, controlling the medical care the claimant was receiving, and thus should be held liable for negligent treatment. Whereas in the present case, because under the current state of the Act the carrier is not required to provide medical treatment, and after fourteen days the claimant was free to pursue treatment with any licensed physician, that the carrier was not controlling Taras’ medical treatment and therefore should not be held liable for the harm caused by such treatment.

While such an argument is appealing, superficially, it lacks substance in two respects. First, the fact that Wausau was not required under the Act to provide Taras with medical treatment, as was Travelers in Tropiano, further strengthens appellants’ argument that this situation is distinguishable from Alston, supra, and Kuney, supra. Appellants argue that Wausau and Eckels were engaged in a separate, additional function from that of processing the claim for benefits, when they committed negligent acts which caused Taras’ injuries. Under the current state of the Act, Wausau had no obligation to provide Taras with any medical care. Therefore, to the extent Wausau took it upon itself to oversee Taras’ medical treatment and to recommend certain courses of treatment, then Wausau has engaged in activities beyond those protected under the immunity provisions of the Act. Under the direction of Wausau, Eckels did provide a professional service to Taras directly related to the medical treatment he received which allegedly injured him. Therefore, it might be established that any negligence on Eckels’ part, as Wausau’s agent, clearly could have contributed to causing Taras’ injuries.

Second, the allegations by Taras further support the conclusion that Eckels and Wausau directed and controlled Taras’ medical treatment. Taras’ complaint alleged that Eckels informed him that he was required to undergo whatever treatment the carrier deemed necessary in order to maintain eligibility for his benefits. It must be remembered that in reviewing an order sustaining preliminary objections, all material facts set forth in the complaint, as well as all reasonable inferences deducible therefrom, must be deemed as true. DeGenova, supra. Thus, we must accept as true that Nurse Eckels told Brian Taras that he was required to undergo all treatment as Wausau deemed necessary in order for him to remain eligible for benefits. Given the inequitable bargaining power of the parties from the outset, and faced with the threat of losing his benefits, it might be concluded that Taras felt as compelled to undergo the electro convulsive therapy as Tropiano felt compelled to undergo treatment with the carrier’s doctors as was required under the state of the Act in 1974. Furthermore, in light of these allegations, the question whether Nurse Eckels and Wausau were totally controlling and directing the treatment Taras was receiving is one left to the trier of fact. Certainly the allegations are sufficient to warrant that this case go further than the preliminary objection stage. Accepting as true all factual allegations in appellants’ complaint, the law does not say for certain that no recovery is possible. Under the Tropiano decision, we hold that immunity does not apply under the facts of this case. Where doubt exists as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling the demurrer. Birl v. Philadelphia Electric Co., supra.

Thus, we conclude that this case is factually distinguishable from Kuney, supra, and Alston, supra, and is not controlled by their holdings. Rather, this case is controlled by Tropiano, supra, which provides that under circumstances such as these, where the claimant has alleged separate and distinct injuries caused by the insurance carrier’s alleged negligence in directing the claimant’s medical care, the carrier will not be afforded immunity under the Workmen’s Compensation Act.

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . We urge counsel for appellees to take note that immunity is an affirmative defense which is properly raised in new matter, rather than by preliminary objections. 42 Pa.R.C.P. 1030. See also Heifetz v. Philadelphia State Hospital, 482 Pa. 386, 393 A.2d 1160 (1978). However, because appellants failed to challenge the propriety of appellees’ raising immunity in its preliminary objections, either before this court or the trial court, we can properly rule on the preliminary objections. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986).

      . We note that the Alston decision was a 4-4 plurality decision by a nine-member panel of this court. Judge Cirillo authored the lead opinion, joined by Judges Olszewski, Tamilia, and Popovich. Judge Johnson and Judge Rowley filed dissenting statements which were joined by Judge Melinson. Judge Brosky filed a concurring and dissenting statement. Judge McEwen did not participate in the decision of this case.

      . The 1978 amendments to that section provide only that the employee must first seek treatment from one of five physicians designated by the employer for the first fourteen days after the injury occurs. After that, the employee may seek treatment from a licensed practitioner of his choice and the carrier’s only responsibility is to pay for the treatment.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    602 A.2d 890
    Bernard A. TOMKO and Pamela Tomko, h/w, Appellants, v. Burton MARKS, D.O., Comprehensive Imaging, Inc., Good Samaritan Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1991.
    Filed Feb. 11, 1992.

      Joseph T. Piscitello, King of Prussia, for appellants.
    Joseph A. Ricci, Harrisburg, for appellees Marks and Comprehensive Imaging.
    Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting appellees’ motion for summary judgment. Appellants Bernard and Pamela Tomko brought this suit alleging negligence against appellees for misreading plaintiff’s x-rays and for failing to diagnose cancer. The Court of Common Pleas of Schuylkill County found that Dr. Marks owed appellant Mr. Tomko no duty of care, and, therefore, appellants could not survive the summary judgment motion with their bare negligence claim. We agree.

The facts which generated this action are as follows. In June of 1987, Bernard Tomko was sent to Good Samaritan Hospital by Allied Chemical Company for a pre-employment physical examination. At that time, a chest x-ray was taken. The film was read by appellee Dr. Burton Marks, D.O., an employee of Comprehensive Imaging, Inc. Comprehensive Imaging was under contract with Good Samaritan Hospital to provide it with radiology services. Allied Chemical was told that the results of appellant’s x-ray were normal. While Mr. Tomko was at the hospital, he neither selected, met, nor saw Dr. Marks. The fees incurred in reading the x-ray were paid by Allied Chemical. Subsequently, Mr. Tomko was diagnosed with cancer. Appellants allege that Dr. Marks misread the x-ray, resulting in a failure to early diagnose and treat cancer.

The standard of review in considering an appeal from a summary judgment is firmly established in Pennsylvania:

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Pa.R.C.P. 1035(b). The moving party has the burden of proving the nonexistence of any genuine issue of material fact. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). We must view the record in the light most favorable to the non-moving party, resolving against the moving party any doubts as to the existence of a genuine issue of material fact. Id. We find that no genuine issue of material fact exists in this case to warrant reversal of the grant of summary judgment.

Appellants challenge the grant of summary judgment on the grounds that it violates a public policy in favor of a duty owing patients by doctors. Appellants also allege that the current law, which imposes no liability where there is no physician-patient relationship, is in need of reform and that this Court should effect the requested change. We decline to alter so drastically the law on medical negligence, without evidence of a therapeutic purpose and the resulting professional relationship between these parties.

Without altering our medical negligence framework, however, I would hold that reports like the one in the instant case, arising from a medical test not performed for doctor-patient diagnostic purposes, should be made available to the subject of the report for his or her review. In so stating, I do not intend or foresee any alteration of existing rules delineating duty in the medical negligence context. I find that it is only proper and fair for an examinee to have the opportunity to be apprised of medical testing performed upon him. With my position on this subject adequately noted, I proceed to the issues pertinent to the instant action.

This Court has faced the question at bar in the past. Elia v. Erie Insurance Exchange, 398 Pa.Super. 433, 581 A.2d 209 (1990) (insurer requested medical examination); Ervin v. American Guardian Life Assurance Co., 376 Pa.Super. 132, 545 A.2d 354 (1988), appeal denied, 522 Pa. 604, 562 A.2d 826 (1989) (insurer requested medical exam); Craddock v. Gross, 350 Pa.Super. 575, 504 A.2d 1300 (1986) (employer’s worker’s compensation carrier requested exam). In these cases, like the one at bar, a third party sponsored a medical examination of a person, and the patient later alleged negligence for some omission on the part of the physician. This Court found in the past, as we do today, that the plaintiffs in these cases could not succeed on a cause of action in negligence. Our rationale is based on the fact that no relationship existed which could give rise to a duty owed the plaintiff. In support of our holding today, we reiterate what this Court stated in Craddock:

The term malpractice denotes a breach of duty owed by one in rendering professional services to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar____ Plaintiff did not employ the defendant, nor did [s]he seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship.

Craddock, 350 Pa.Superior Ct. 579, 504 A.2d at 1302.

It has long been held in this Commonwealth that to succeed on a negligence theory, four elements must be present: 1) a duty recognized by law requiring the actor to conform to a certain standard of conduct; 2) failure by the actor to observe this standard; 3) causation between the conduct and injury; and 4) actual damages. Prosser, Law of Torts, sec. 30 at 143 (4th ed. 1971); Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606, 612 (1985).

In cases like the one at bar, this Court has not found a relationship sufficient to support the existence of a duty owed the patient. In the present case, appellant concedes that he never met with Dr. Marks. It is also clear that the exam was done because appellant’s employer, not appellant, requested one. (Deposition transcript of Bernard Tomko, October 6, 1989, at 3.) We find that an examination conducted at the behest of a person’s employer or insurance company is quite unlike the situation where an individual seeks out his own physician expecting treatment and diagnosis. In the instant case, the purpose of the exam was to determine whether Mr. Tomko was fit for employment. Appellants have asserted that Dr. Marks owed Mr. Tomko a duty, yet have failed to establish the existence of a physician-patient relationship; without more, we are inclined to follow our prior holdings on this same issue. In addition to our holding today, however, I reiterate my belief, as stated above, that medical reports such as those presumably generated in this case should be made available to the subject of the medical testing if he desires to examine them. It is for these reasons that we uphold the grant of appellees’ motion for summary judgment.

Order affirmed.

CAVANAUGH and McEWEN, JJ., Concur in the Result.

      . This was also my dissenting opinion in a recent unpublished panel decision. See Berrett v. American Guardian Life Assurance Co., No. 00409 Pittsburgh 1991, memorandum decision filed November 20, 1991.


author: WIEAND, Judge:

text:
    602 A.2d 893
    Thomas W. MAGUIRE and Mark J. Maguire, Appellants, v. The OHIO CASUALTY INSURANCE COMPANY, Dessa M. Milkovich, Administratrix of the Estate of June Zart, Luigi’s Pizza Pub, Inc., Wayne Smeal, t/d/b/a Sunburst Motel and Pennsylvania Restaurants, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1991.
    Filed Feb. 12, 1992.

      Jefferson J. Shipman, Harrisburg, for appellants.
    Timothy I. Mark, Harrisburg, for appellee Ohio Cas.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   WIEAND, Judge:

Where a policy of liability insurance clearly provides otherwise, does the carrier’s duty to defend its insured nevertheless continue after the carrier, in good faith, has exhausted its coverage by settling a third party death claim against its insured for policy limits. The trial court held that the duty to provide a defense did not survive a good faith exhaustion of coverage and entered judgment for the carrier. After careful review, we affirm.

On January 20,1989, June Zart was killed as a result of a collision with a vehicle owned by Thomas W. Maguire and operated by his son, Mark J. Maguire. The vehicle was insured under a policy which had been issued by Ohio Casualty Insurance Company (Ohio Casualty). The policy had a liability limit of one hundred thousand ($100,000.00) dollars for a single claim. Following the accident, Ohio Casualty paid its policy limit to the Estate of June Zart, deceased, and took in exchange releases running in favor of the owner, operator and insurer of the Maguire vehicle.

Subsequently, the Zart Estate filed actions against Luigi’s Pizza Pub, Inc. and Sunburst Motel, both of whom had allegedly supplied alcohol to Maguire prior to the happening of the accident. Mark Maguire was joined as an additional defendant in these actions, and a demand was made upon Ohio Casualty to provide a defense. The insurance company denied this request. Thomas and Mark Maguire then commenced an action to obtain a declaratory judgment that Ohio Casualty had a duty to provide a defense in the pending actions. After an answer had been filed, Ohio Casualty moved for judgment on the pleadings, and the Maguires filed cross-motions for summary judgment and judgment on the pleadings. The trial court granted judgment on the pleadings in favor of Ohio Casualty, and the Maguires appealed.

In reviewing an order awarding judgment on the pleadings, “we must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. The parties cannot be deemed to admit either conclusions of law or unjustified inferences.” Youngman v. CNA Ins. Co., 401 Pa.Super. 381, 386, 585 A.2d 511, 514 (1991) (citations omitted).

The insuring agreement in the policy issued by Ohio Casualty provides as follows:

We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted, (emphasis added).

The Pennsylvania Supreme Court has enunciated the principles for interpreting contracts of insurance as follows:

The task of interpreting a contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. “[I]n the absence of proof of fraud, ‘failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.’ ”

Standard Venetian Blind Co. v. American Empire Ins., 503 Pa. 300, 304-305, 469 A.2d 563, 566 (1983) (citations omitted).

Appellants contended in the trial court that the language of the policy was ambiguous and, therefore, should be construed against the insurer so as to require Ohio Casualty to pay the costs of defending the actions in which Mark Maguire had been joined as an additional defendant. The learned trial judge was not impressed by this argument. He found the policy language, taken in its totality, “to be as unambiguous in its meaning and intent as any string of Anglo-Saxon words in our experience has proven to be.”

A similar argument was made with respect to an identical policy provision in Pareti v. Sentry Indemnity Company, 536 So.2d 417 (La.1988). In rejecting the argument, the Court said:

When the paragraph of the policy containing this language [identical to the Ohio Casualty policy] is read as a whole, there is no ambiguity. The promise to defend “any” covered claim is clearly qualified, almost immediately thereafter in the same paragraph, by the statement: “Our duty to defend or settle ends when our limit of liability ... has been exhausted.” Read as a whole, the only reasonable interpretation of this section is that the insurer will defend any claim, but the defense obligation will terminate if and when the insurer’s policy limits are exhausted. These provisions are not subject to more than one reasonable interpretation. The policy in this regard is not ambiguous.

Id. at 420-421. See also: Godur v. Travelers Indemnity Company, 567 So.2d 1028 (Fla.Dist.Ct.App.1990) (identical policy provision contained “clear and unambiguous language ... [and] should be given effect.”).

We agree with the analysis employed by the trial court and the Supreme Court of Louisiana. The language of the policy is clear. The insurer’s duty to defend terminates upon exhaustion of policy limits. Therefore, we are commanded by the Supreme Court’s holding in Standard Venetian Blind Co. v. American Empire Ins., supra, to give effect to the plain meaning of the language limiting Ohio Casualty’s obligation to defend actions brought against its insureds.

It may well be, in any event, that appellants have abandoned their argument that the policy language was ambiguous, for they have not pursued it in their appellate brief. See: Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-402, 551 A.2d 1112, 1114 (1988); Pelagatti v. Cohen, 370 Pa.Super. 422, 430, 536 A.2d 1337, 1341 (1987). Instead, they argue on appeal that, under Pennsylvania law, an insurer’s duty cannot validly be terminated by an exhaustion of policy limits.

This argument is contrary to the decision of the Court of Appeals for the Third Circuit in Commercial Union Ins. v. Pittsburgh Corning Corp., 789 F.2d 214 (3d Cir.1986), a case arising out of Pennsylvania. There, the Court was confronted with an insuring agreement to indemnify the insured for all liability due to personal injury up to the policy limit and also “[w]ith respect to such insurance as is afforded by this policy, [to] defend any suit against the insured____” The Court observed that the insurer’s duty to defend under the policy language “is linked to the duty to indemnify, and consequently ... absent other considerations, the insurer is not bound to defend where it cannot be bound to indemnify ... regardless of when the duty to indemnify comes to an end.” Id. at 218. Therefore, the Court concluded, the insurer had no duty to defend the insured once its liability limits had been reached by settlement or judgment after the insurer had defended the claims in good faith. Id. at 219.

We are mindful of the principle of law often repeated by Pennsylvania courts that the utmost fair dealing should characterize transactions between an insurance company and its insured. See: Dercoli v. Pennsylvania Nat Mut Ins., 520 Pa. 471, 477, 554 A.2d 906, 909 (1989), quoting Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930). Our holding in the instant case does not violate this precept. Before an insurer will be excused from defending an action against an insured on whose behalf the insurer has already paid policy limits, the insurer must have acted in good faith. In holding that an insurer was relieved of its duty to defend upon paying policy limits in satisfaction of a judgment, the Supreme Court of New Hampshire observed, in Lumbermen’s Mutual Casualty Co. v. McCarthy, 90 N.H. 320, 8 A.2d 750 (1939), as follows:

This does not necessarily mean that the insurer may elect to pay the full limit of its coverage to the insured and thereby cast upon his shoulders the full burden of investigation, settlement or defense from the beginning---Neither do we mean to hold that an insurer may abandon its defense of a claim within the terms of its policy in mid-course and under circumstances which are prejudicial to the rights of the insured. Having elected to defend rather than to settle, the insurer’s duty is to defend in good faith and with due diligence and in such a way as to protect the rights of the insured, but, having done so up to final judgment and then having paid that judgment and incidental expenses to the full limit of its obligation, we are of the opinion that it thereafter has no duty of defense.

Id. at 323, 8 A.2d at 752 (citations omitted).

The exercise of good faith prevents an insurer from entering into a dubious release in order to quickly exhaust the limit of its liability to the insured. “An insurer which hastily enters a questionable settlement simply to avoid further defense obligations under the policy clearly is not acting in good faith and may be held liable for damages caused to its insured.” Pareti v. Sentry Indemnity Company, supra, 536 So.2d at 423. Additionally,

the insurer must make every effort to avoid prejudicing the insured by the timing of its withdrawal from the litigation. The insurer should make allowances for the time that the insured will need to retain new counsel, and should continue to represent the insured after the settlement, if necessary, until new counsel can be retained.

Id. (footnote omitted). Similarly, the requirement of good faith prevents an insurer from tendering the amount of its policy limit into court pending a determination of liability in order to avoid its duty to defend. See: Stanley v. Cobb, 624 F.Supp. 536 (1986); Anderson v. US. Fidelity & Guaranty Co., 177 Ga.App. 520, 339 S.E.2d 660 (1986); Samply v. Integrity Ins. Co., 476 So.2d 79 (Ala.1985). Indeed,

any payment of the policy limits which does not release the insured from a pending claim (e.g., unilateral tender of policy limits to the court, the claimant or the insured), even if sufficient to terminate the duty to defend under the wording of the policy involved, raises serious questions as to whether the insurer has discharged its policy obligations in good faith.

Pareti v. Sentry Indemnity Company, supra at 424.

In the instant case, Ohio Casualty dealt with its insureds in complete good faith. The settlement of the claim for policy limits was finalized before any death action had been filed on behalf of the decedent’s heirs and estate. When it paid out policy limits in settlement of the death claim, Ohio Casualty took releases which protected its insureds against any further claims, of any nature whatsoever, by the decedent’s heirs and estate. Thus, Ohio Casualty did not abandon its insureds “mid-course” or force them to shoulder the burden of investigating and/or defending the death claim. Even though Mark Maguire could thereafter be joined as an additional defendant in the estate’s action against the providers of alcohol to determine issues of joint liability, Maguire was protected against further liability by the terms of the releases which Ohio Casualty had obtained. Therefore, one can only conclude that Ohio Casualty’s settlement of claims against its insureds was done in good faith and in a manner calculated to protect them against any further liability. The policy language, under these circumstances, must be given effect. Having exhausted its duty to indemnify, Ohio Casualty’s duty to defend its insureds came to an end.

The declaratory judgment entered by the trial court is affirmed.

      . Before these motions were argued, the dram shop actions were discontinued.

      . The policy language in the instant case, it may be observed, is even clearer than the policy language interpreted by the Third Circuit Court in the Commercial Union Ins. Co. case.

      . The Supreme Court of Georgia reached the same result under identical policy language in Liberty Mutual Insurance Co. v. Mead Corporation, 219 Ga. 6, 131 S.E.2d 534 (1963).


author:
CAVANAUGH, Judge:
      McEWEN, Judge,

text:
    602 A.2d 897
    LINDE ENTERPRISES, INC. v. HAZELTON CITY AUTHORITY v. WESTMORELAND ENGINEERING CO., INC. Appeal of WESTMORELAND ENGINEERING CO., INC.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1991.
    Filed Feb. 13, 1992.

      Thomas P. Shearer, Pittsburgh, for appellant.
    Robert D. Schaub, Wilkes-Barre, for appellee Linde.
    Anthony C. Falvello, Sugarloaf, for appellee Hazelton City Authority.
    Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

This case is a direct appeal from a judgment in favor of plaintiff-appellee Linde Enterprises, Inc. (Linde) against appellant-defendant Westmoreland Engineering Co., Inc. (WECO) in the amount of $26,607.66 and against original defendant Hazelton City Authority (HCA) in the amount of $22,691.55. On appeal, appellant WECO asserts the trial court erred as follows: (1) the trial court erred in allowing Linde to recover against WECO in negligence because there was an absence of privity between Linde and WECO; (2) the trial court erred by allowing Linde’s claim for additional money for excavation to be submitted to the jury despite the language of the contract and despite the fact that Linde’s alleged damages for excavation were not supported by competent evidence; (3) the trial court erred by allowing Linde’s claim for additional money for compaction of the common embankment to be submitted to the jury where there was not enough evidence of WECO’s negligence; and (4) the trial court erred by asserting that WECO is obligated to pay interest from February 1, 1984. We find merit with appellant’s first argument, and reverse the judgment against WECO.

Linde was the low bidder on a contract for the reconstruction of Dam “G” on Dreck Creek, Hazel Township, by HCA, and was subsequently awarded the job. HCA hired an engineering firm, WECO, to provide the specifications for the dam and also to supervise its construction. Significant cost overruns occurred on parts of the project. Claiming that these cost overruns were due to faulty specifications provided to it by HCA and negligent supervision by agents of HCA (WECO), Linde filed suit against HCA. HCA joined WECO. Prior to the commencement of the jury trial, WECO filed two separate Pre-Trial motions. First, WECO argued that there could be no direct recovery against it by Linde. Second, it argued that any alleged contract ambiguity should be determined by the Court instead of the jury. Both motions were denied.

At trial, Linde claimed it was owed the difference between the cost of the dam “as built” and the estimated cost for certain items. Linde claimed that the contract involved in the matter is what is commonly referred to in the construction trade as a “Unit Price Contract.” Under a Unit Price Contract, the cost per unit of certain construction materials are fixed and the amount to be used is estimated. If more material is used, the contractor can apply for additional compensation based on the cost per unit times the additional amount of units used. Linde asserted that HCA would not pay for various extra materials used. Linde additionally asserted that the contract anticipated that the material taken from underneath and near the area of the spillway could be used as part of the dam embankment. Upon excavation, this material was determined to be an ash-like substance unsuitable for constructing a dam. This subsurface had to be excavated and transported from the dam area, which Linde claimed was unanticipated by the contract and caused a considerable cost overrun.

After closing arguments, the trial court instructed the jury as to the relevant law. The trial court, in discussing the potential liability of WECO, asserted:

If Linde is successful in proving that the contract documents prepared by Westmoreland were ambiguous or deficient, and that Linde is thus entitled to recover on those items in the second part of its claim, then Westmoreland is liable, either directly to Linde or liable to indemnify the Authority for any amounts you find must be paid to Linde under this portion of the claim.

WECO made an exception to the charge that Linde could directly recover against WECO. After the jury deliberated on the case, they sent a note to the trial court asking whether liability could be divided between HCA and WECO. This gave the trial court a prime opportunity to correct the inaccurate instruction. Notwithstanding, the trial court answered as follows:

Ladies and gentlemen, you will determine from all the evidence whether [HCA] is liable; and if so, you will make that indication on the jury slip or from all the evidence. If you determine that [WECO] is liable, you make that indication. Or if you determine from all the evidence that both are liable, you will indicate on the jury slip accordingly.

The jury subsequently found HCA liable in the amount of $22,691.55 and WECO liable in the amount of $26,607.66. WECO specifically reserved its right to argue that Linde could not directly recover against WECO (Transcript II, pp. 589-592), and filed prompt post-trial motions on October 10, 1989. These motions were all denied, and this appeal followed.

It is well-settled that when reviewing a party’s challenge to a jury instruction, an appellate court will scrutinize the entire instruction against the evidence presented to determine if prejudicial error has occurred. Schecter v. Watkins, 395 Pa.Super. 363, 374, 577 A.2d 585, 591, alloc. den., 526 Pa. 638, 584 A.2d 320 (1990); Nobel C. Quandel Co. v. Slough Flooring, Inc., 384 Pa.Super. 236, 240, 558 A.2d 99, 101 (1989). We have held:

The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide. The instructions must give the jury a reasonable guide for the determination of the question of the defendant’s or plaintiff’s alleged negligence and on the duty of care or duty to inspect required by any person. The jury cannot determine whether a party is guilty of negligence or contributory negligence without knowing the degree of care required of that party.

Wood v. Smith, 343 Pa.Super. 547, 550-551, 495 A.2d 601, 603 (1985), appeal dismissed, 512 Pa. 641, 518 A.2d 266 (1986); accord Crotty v. Reading Industries, 237 Pa.Super. 1, 4, 345 A.2d 259, 261 (1975). We will not reverse a trial court’s instruction on the basis of isolated inaccuracies, but will only reverse if the charge as a whole was erroneous and prejudiced the complaining party. Schecter, supra, 395 Pa.Super. at 374, 577 A.2d at 591; Quandel Co., supra, 384 Pa.Super. at 240, 558 A.2d at 101. “[A] new trial will be granted where a charge is erroneous in a basic respect and it is impossible to determine the extent to which it was prejudicial.” 62 Pa.Stand.Pract.2d § 48. It is well-settled that “[wjhere an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, for the jury, assuming, as is their duty, that the instructions are all correct, may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted.” Smith v. Chardak, 291 Pa.Super. 173, 182, 435 A.2d 624, 629 (1981), quoting Pedreta v. Pittsburgh Railways Co., 417 Pa. 581, 586, 209 A.2d 289, 292 (1965); accord Morrisey v. Commonwealth, Dept. of Highways, 440 Pa. 71, 80, 269 A.2d 866, 870 (1970). A new trial is appropriate under these circumstances. Zitkus v. Southeastern Pennsylvania Transp. Auth., 61 Pa. D. & C. 2d 378 (1972), aff'd 225 Pa.Super. 761, 306 A.2d 903.

The instruction that WECO could be directly liable to Linde despite their lack of privity was a basic error of law prejudicial to WECO. Linde’s suit against WECO involves allegations of negligence. “It is a fundamental rule of tort law that a negligence claim must fail if it is based on circumstances for which the law imposes no duty of care on the defendant.” Gerace v. Holmes Protection of Phila., 357 Pa.Super. 467, 473, 516 A.2d 354, 358 (1986); accord Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983). Specifically, this case involves allegations of professional negligence. “Pennsylvania courts have long held that privity between parties is required to maintain an action for professional negligence.” Hartford Accident & Indemnity Co. v. Parenti Randolph et. al., 642 F.Supp. 38, 40 (M.D.Pa.1985). We agree with WECO that although it may have a duty of care owed to HCA by reason of its contract with it, WECO had no contractual relation with Linde and hence owed no duty of care to Linde. While certainly WECO might be found liable to HCA on a negligence or contract theory, the same is not true of WECO and Linde. Moreover, we have reviewed the instruction as a whole against the the evidence presented, and have found nothing which mitigates the prejudicial instruction.

Linde claims that, notwithstanding the lack of a contractual relationship between Linde and WECO, Linde can recover from WECO on the basis that either it is a third party beneficiary to the WECO-HCA contract or that WECO owed a duty under Pennsylvania law to contractors or subcontractors as an architect drawing up specifications for the job to the contractor to exercise due care in drawing up specifications. We find both arguments without merit.

The general principle for what constitutes a third party beneficiary was first articulated in the seminal case Spires v. Hanover Fire Ins. Co., 364 Pa. 52, 56-57, 70 A.2d 828, 830-831 (1950) (plurality opinion):

To be a third party beneficiary entitled to recover on a contract it is not enough that it is intended by one of the parties to the contract and the third person that the later should be a beneficiary, but both parties to the contract must so intend and must indicate that intention in the contract____

The Court at that time opined that sufficient indication of the intent to make a third party a beneficiary would only arise where the obligation affirmatively appeared in the contract itself, e.g. the third party was referred to by name in the contract itself. Spires, supra, 364 Pa. at 57, 70 A.2d at 830-831. Subsequently, two different views in the Superior Court have arisen declaring what is a sufficient indication of intent by the promisor and promisee that a third party be a beneficiary in the contract in light of the more recent Supreme Court decision Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), which extended the Spires decision. One view limits Guy to its facts, and holds that obligation to the third party must normally affirmatively appear in the contract itself for a third party to be an intended beneficiary. Young v. Eastern Eng. & Elevator, 381 Pa.Super. 428, 437-438, 554 A.2d 77, 81, appeal den. 524 Pa. 608, 569 A.2d 1367 (1989) and 524 Pa. 611, 569 A.2d 1369 (1989) (Guy is a narrow exception to the Spires requirement that third-party beneficiary affirmatively appear in contract); Manor Junior College v. Kaller’s Inc., 352 Pa.Super. 310, 313-314, 507 A.2d 1245, 1247 (1986) (Guy applies to a “narrow class” of cases). The other view maintains that Guy adopted the much broader Restatement (Second) of Contracts (1981) position as to what constitutes a third party beneficiary. Fizz v. Kurtz, Dowd & Nuss, Inc., 360 Pa.Super. 151, 154, 519 A.2d 1037, 1039 (1987) (Guy adopted Restatement test for determining what constitutes a third-party beneficiary); Gerace, supra, 357 Pa.Super. at 472, 516 A.2d at 357 (Guy adopted Restatement test for determining what constitutes a third-party beneficiary).

We need not resolve the dispute here. Under either view, Linde’s argument is not persuasive. The narrower view holds that unless the obligation to the third party affirmatively appears in the contract itself, the third party cannot be an intended beneficiary. Under the narrower view, Linde’s argument fails because no obligation to Linde affirmatively appears in the HCA and WECO contract.

The broader view is that Guy instructs courts to interpret the Spires principle in light of the Restatement (Second) of Contracts (1981) pronouncement on Intended Beneficiaries. Section 302 of the Restatement (Second) of Contracts (1981) states:

Intended and incidental beneficiaries:

(1) unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either:
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Under this view also, Linde’s argument fails. To become an intended beneficiary, even assuming that a right to performance in Linde is appropriate to effect the parties’ intention (Section 1), Linde must also fall into either subsection (a) or (b). Since this case is not about an existing debt owed by HCA to Linde when the contract was made, subsection (a) is not met. Fizz, supra, 360 Pa.Super. at 155, 519 A.2d at 1039. Moreover, subsection (b) is not met because circumstances do not show that HCA and WECO intended to give Linde the benefit of the promised performance. To the contrary, WECO’s performance was intended to be of sole pecuniary benefit to itself and HCA. See, e.g., id. WECO was contracted by HCA to ensure that dam “G” was built in as cost-effective manner as possible. WECO’s incentive was to ensure that it drafted the dam specifications and supervised Linde’s performance to keep the expenditure of public (HCA) funds to Linde at a minimum. Failure of WECO to perform could potentially lead to a civil suit against it by HCA. Moreover, a failure to fulfill its obligations to HCA would hurt WECO’s business reputation. Simply put, WECO’s incentive was to make sure the contractor who rebuilt dam “G” earned its money. The WECO-HCA contract expressed no intention to benefit Linde.

Linde also claims that WECO as an architect drawing up design specifications owes a duty under Pennsylvania law to the contractors who apply the specifications. Several states have allowed a contractor to sue an architect for economic damages suffered by the negligent drafting of design specifications despite the absence of privity. See, e.g., Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984); Owen v. Dodd, 431 F.Supp. 1239 (D.C.Miss.1977) (applying Mississippi law); Shoffner Indus. v. W.B. Lloyd Const. Co., 42 N.C.App. 259, 257 S.E.2d 50 (1979). However, Pennsylvania is not one of them. Moreover, there does not appear to be a clear-cut majority position on the issue in other jurisdictions. See Annot. Tort Liability of Project Architect for Economic Damages Suffered By Contractor, 65 A.L.R.3d 249-265. We will continue the status quo, as Linde has not offered a compelling reason why we should deviate from the well-established requirement of privity to adopt a rule holding negligent architects directly liable for economic damages to contractors with whom they share no contractual relationship.

Normally, we would go on to address WECO’s other arguments so as to give the lower court guidance upon remand. However, it is apparent that no remand is necessary. HCA argues that if this Court accepts WECO’s post trial motion, HCA cannot be included in any new trial for the following two reasons. First, HCA contends the jury’s finding that WECO was directly liable to Linde absolves HCA of defending against the portion of the negligence attributable to WECO. Second, since HCA has satisfied the judgment entered against it, all claims against it by Linde have been conclusively litigated. We need not address the former argument, because we find that the second argument has merit and protects HCA from further claims by Linde arising out of this lawsuit. We conclude that since all liability has been conclusively established against HCA, and given our holding that WECO cannot be found directly liable to Linde, there is no point in remanding the case for a new trial.

The record clearly denotes that on November 2, 1989, the Prothonotary of Luzerne County marked the judgment satisfied as to HCA, which was paid to Linde by HCA on October 16, 1989. The satisfaction of a judgment ordinarily extinguishes it, and implies or manifests an expression of finality as to all questions of liability and damages in the litigation. 20A Pennsylvania Law Encyclopedia § 471; Neustein v. Ins. Placement Facility of Pa., 271 Pa.Super. 126, 129, 412 A.2d 608, 609 (1979). As 42 Pa.C.S.A. § 8104(a) declares:

General rule. — A judgment creditor has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.

There appear to exist only two exceptions to the general rule that satisfaction by a judgment extinguishes it. “A court may properly strike the entry of satisfaction of judgment where the satisfaction is obtained by fraud or mistake.” Neustein, supra, 271 Pa.Superior Ct. at 129, 412 A.2d at 609; accord Winfree v. Philadelphia Elec. Co., 520 Pa. 392, 395, 554 A.2d 485, 486 (1989); Epstein v. Kramer, 365 Pa. 589, 591, 76 A.2d 212, 213 (1950); Shoup v. Shoup, 205 Pa. 22, 23, 54 A. 476, 476 (1903). The record is devoid of any suggestion that satisfaction was entered by fraud or mistake, and Linde has not argued it. The exception, therefore, does not apply.

Linde argues in opposition that whereas HCA may have satisfied the portion of the judgment attributed directly by the jury to HCA ($22,691.55), HCA is still liable over to Linde for the sum assessed against WECO ($26,607.66). Linde notes that neither WECO nor HCA have satisfied this sum. Linde would have us disregard the erroneous jury instruction and look at the special verdict form used by the jury. Linde asserts that the special verdict form which was provided to the jury, while not directly indicating indemnification, was structured so that the jury could determine the full amount which Linde was to recover, and then allocate the respective portions of liability for which HCA and WECO were liable. Consequently, Linde would have us find HCA totally liable for the judgment, and presumably on remand HCA and WECO would dispute the indemnification issue.

We are not persuaded by these arguments. When HCA satisfied the judgment, it extinguished all questions of damages and liability against it. The jury found HCA liable for $22,691.55 in damages. If Linde wished to preserve its ability to pursue a claim against HCA for the $26,607.66 portion, it should have cross-appealed. Of course, a cross-appeal would have prevented Linde from satisfying the judgment against HCA for the $26,607.66 until the appeal was concluded. Linde made a choice to have immediate access to the judgment against HCA, thus forestalling its ability to later hold HCA liable for a greater sum. Linde would have us declare that the satisfaction of judgment does not totally protect HCA from a claim based on the questions in the litigation. We decline to adopt this position.

Normally, a new trial would be in order because of the erroneous jury instruction which may have confused the jury as to the nature of WECO’s liability. However, HCA has satisfied the judgment against it and therefore is no longer a party to Linde’s action. Since we have held supra that only HCA could be directly liable to Linde, a remand would serve no purpose, as WECO cannot be held directly liable to Linde.

We reverse. Judgment against WECO is vacated.

McEWEN, J., files a Concurring Statement.

McEWEN, Judge,

concurring.

I join in the fine expression of the majority, and write simply to note that, while it is always preferable to give effect to the intent of the jury as evidenced by its verdict, there is no doubt that this Court is compelled to the holding that the satisfaction of judgment, entered on the docket by counsel for the plaintiff/appellant, precludes any further action against Hazelton City Authority. See Brandt v. Eagle, 412 Pa.Super. 171, 178, 602 A.2d 1364, 1367 (1992).

      . HCA has not appealed the verdict and has satisfied the judgment against it.

      . In Guy, the Supreme Court was presented with question of whether a named beneficiary of a will who is also named executrix has a cause of action against the attorney who drafted the will and directed her to witness the will, thus voiding her entire legacy and appointment as executrix. The Supreme Court noted that if it followed Spires rigidly, the will’s beneficiary would lose her legacy, because the testator and the attorney did not have a written contract to write a will in which she was named as the intended will’s intended beneficiary. The Court declared that in this situation it felt a "properly restricted cause of action ... in accord with the principles of Restatement (Second) of Contracts § 302 (1979) [was] available [ ].” Guy, supra, 501 Pa. at 51, 459 A.2d at 746.

      . Linde states that “it is the law in Pennsylvania that an engineer is liable for the defects, deficiencies or inadequacies of the plans and/or specifications which he drafts or finalizes.” While this is true, and the case which appellant cites stands for that proposition, see Follansbee Bros. Co. v. Garrett-Cromwell Engineering Co., 48 Pa.Super. 183 (1911), this liability is to the person with whom the person contracted to draw the plans or specifications. See Id. 48 Pa.Superior Ct. at 185. There is no dispute in this case that Linde can sue HCA in either contract or tort. Pennsylvania courts, however, have not yet addressed the question of whether an engineer or architect is liable for economic damages to a contractor hired by a third party. Although we have recently indicated that a contractor’s employee could potentially directly sue for personal injury an engineer for negligent supervision in Young, supra, we have also held in that case no direct action would lie for negligent drafting of specifications. See id.

      . It is pertinent to note that no case has ever held that a party’s misapprehension as to the conclusive nature of a satisfaction of judgment can be grounds upon which the satisfaction can be vacated.

      . Although we rest our holding on other grounds, we note that a special verdict form is not a jury instruction. A jury must follow the instructions given to it by the court and should not predicate its judgment on the format of the special verdict form. Moreover, we have examined the special verdict form, and do not believe it indicates that WECO and HCA are liable for any amount over and above what the jury declared them to be.


author: CIRILLO, Judge:

text:
    602 A.2d 1317
    In re ESTATE OF Frank T. MALJOVEC, Jr., Deceased. Appeal of Franciska O. MALJOVEC.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1991.
    Filed Dec. 24, 1991.
    Reargument Denied Feb. 24, 1992.

      Roger H. Taft, Erie, for appellant.
    Arthur Stewart, Warren, participating party.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of McKean County, Orphans’ Court Division, granting an accounting and awarding monies to the Estate of Frank T. Maljovec, Jr., deceased. We reverse.

Marine Bank, executor of the Will of Frank T. Maljovec, Jr., filed an action for a declaratory judgment that certain property originally held by Mr. and Mrs. Maljovec as tenants by the entireties had been severed by agreement during Mr. Maljovec’s lifetime, and at the time of his death was held as a tenancy in common. In the alternative Marine Bank petitioned for an accounting of the rental proceeds and expenses. The Orphans’ Court determined that the tenancy by the entireties had not been severed, and ordered an accounting to be prepared within thirty days. Exceptions by both the Estate and the widow, appellant Franciska O. Maljovec, were filed and denied. The widow then filed an exception to the denial of her exception, which was also denied. This timely appeal followed.

The widow presents two issues for our consideration:

1) Whether the estate of a deceased spouse is not entitled to an accounting with respect to expenditures made by the decedent which related to real estate held by husband and wife as tenants by the entireties?
2) Whether a six year statute of limitations should be applied to an accounting with respect to expenditures made by one spouse which related to real estate held by husband and wife as tenants by the entireties?

Our scope of review of a decree or order entered by the Orphans’ Court is extremely limited. We will modify a decree only if it is not supported by competent or adequate evidence, if an error of law has been committed, or if the trial court abused its discretion or capriciously disbelieved credible or competent evidence. Fulkroad v. Ofak, 317 Pa.Super. 200, 203, 463 A.2d 1155, 1156 (1983).

It is well established that tenancy by the entireties is based on the common law concept that husband and wife were but one legal entity. Biehl v. Martin, 236 Pa. 519, 522, 84 A. 953, 954 (1912). Tenancy by the entireties is a form of co-ownership of property, either real or personal, by a husband and wife, with its essential characteristic being that “each spouse is seised per tout et non per my, i.e. of the whole or the entirety and not of a share, moiety or divisible part.” In re Gallagher’s Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945) (citations omitted). Entireties property is characterized by the unities of interest, title, time, and possession, and by the right of survivorship. Stemniski v. Stemniski, 403 Pa. 38, 41, 169 A.2d 51, 52 (1961); Berhalter v. Berhalter, 315 Pa. 225, 227, 173 A. 172, 173 (1934). Upon the death of one spouse the surviving spouse takes no new estate; the only change is in the properties of the legal entity holding the estate. Biehl, 236 Pa. at 523, 84 A. 953, citing Stuckey v. Keefe, 26 Pa. 397 (1856). “ ‘The whole estate continues in the survivor the same as it would continue in a corporation after the death of one of the corporators. This has been settled law for centuries.’ ” Id.

It is also well settled that for the duration of the entireties estate either spouse presumptively has the power to act for both, without specific authorization from the other, “provided the fruits or proceeds of such action inures to the benefit of both ...” Gallagher, 352 Pa. at 479, 43 A.2d at 134, quoting Madden v. Gosztonyi Security and Trust Co., 331 Pa. 476, 489, 200 A. 624, 630 (1938); see also O’Malley v. O’Malley, 272 Pa. 528, 533, 116 A. 500, 502 (1922). Conversely, neither spouse may appropriate property for his or her own use, to the exclusion of the other, without the other’s consent. Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 172 (1966); Berhalter, supra. A tenancy in the entireties continues for the duration of the marriage unless terminated by the death of one spouse or severed by the joint action of both parties. Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378, 381 (1986) (citations omitted). Severance may only be achieved through divorce, a joint conveyance, or mutual agreement, either express or implied; a tenancy by the entireties cannot be severed or conveyed away by the independent action of one spouse. Id.

Despite the centuries-old common law principle that entireties property can neither be severed by nor usurped for husband or wife alone, Pennsylvania case law is replete with instances of errant spouses attempting to do just that. See Clingerman v. Sadowski, supra; In re Gallagher’s Estate, supra; Wakefield v. Wakefield, 149 Pa.Super. 9, 25 A.2d 841 (1942); Biehl v. Martin, supra. In order to maintain the integrity of ownership by the entireties yet protect the interests of the injured spouse, our supreme court, in 1934, introduced a novel solution in Berhalter, supra. There, Mrs. Berhalter, the estranged wife, had withdrawn $6,000.00 from an entireties bank account and had deposited it in a different bank in a new account under her name alone. Our supreme court determined that the wife’s diversion of the $6,000.00 to her own use “was tantamount to an offer to her husband to destroy the estate by entirety.” 315 Pa. at 229, 173 A. at 173. When the husband petitioned the court for a division of the funds, “this constituted an acquiescence in [his wife’s] offer or election to divide the funds.” Id. Thus, by framing the wife’s usurpation of the funds in terms of an implied offer and the husband’s petition for division of the funds in terms of an implied acceptance, the supreme court protected the husband’s interest during coverture without impairing the unities underlying tenancies by the entireties.

While the supreme court’s initial recognition of an implied mutual agreement to terminate a tenancy by the entireties concerned cash in a bank account, Berhalter, supra, the court soon applied the same legal fiction to United States savings bonds held by the entireties. Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961). In Stemniski the husband redeemed the majority of the couple’s savings bonds and deposited the proceeds in two new savings accounts in his name only. The wife petitioned for an accounting and for reimbursement of one-half of the monies. In affirming the trial court’s grant of the requested relief, the supreme court stated:

A violation of the rules by one spouse’s appropriating the property to his own use works a revocation of the estate by the fiction of appropriation’s being an offer of an agreement to destroy the estate and an acceptance of that offer when the other spouse starts suit; the property is then fit for accounting and division.

Id., 403 Pa. at 42, 169 A.2d at 53 (emphasis added).

While both spouses are alive and the marriage is intact it is immaterial which spouse redeems bonds, leases property or collects rent from entireties properties, for presumably the proceeds will be spent for the benefit of both parties. O’Malley, 272 Pa. at 532-533, 116 A. at 502. See also In re Gallagher, supra. As husband and wife together constitute but one person in law, the undivided proceeds or income from entireties property belongs to each of the spouses, and not to either one exclusively. O’Malley, supra. Moreover, because they are a single legal entity, “ ‘no action of partition, or waste, or account, or ejectment, can be maintained by one against the other____’” Wakefield, 149 Pa.Super. at 11, 25 A.2d at 842 (1942), quoting Stuckey v. Keefe’s Executors, supra, (emphasis in original). Thus, as our supreme court noted in the above quotation, the entireties estate must first be destroyed, for only then is it fit for accounting and division. Stemniski, 403 Pa. at 42, 169 A.2d at 53.

However, when one spouse has misappropriated entireties property for his or her own use, to the exclusion of the other, equity will not permit the unity inherent in an entireties estate to reward the wrongdoer and injure the innocent spouse. See Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A.2d 901 (1959). Therefore, under the legal fiction introduced in Berhalter, once an injured spouse has sued for relief and the court conclusively establishes that a misappropriation of or exclusion from entireties property has occurred, the court may “find” an implied mutual agreement to sever. Berhalter, supra. On the basis of that implied agreement, which constitutes joint action, the entireties estate is destroyed and the court is free to order an accounting, partition, ejectment or any other appropriate remedy. Lindenfelser, supra.

In the present case Frank and Franciska Maljovec were separated but still legally married at the time of Frank’s death in 1986. In 1975 the couple had leased an office building they owned as tenants in the entireties to the Pennsylvania State Police for use as a barracks. Since the Maljovecs were separated when the lease was executed, the Commonwealth held all rental payments in an escrow account in the names of both Frank and Franciska Maljovec. Consequently, neither party had access to the rental proceeds. After Frank’s death the executor of his estate petitioned Orphans’ Court for a declaratory judgment that the tenancy by the entireties had been severed by agreement prior to Frank’s death and that the real estate in question was owned by the couple as tenants in common. In the alternative the executor requested an accounting of all maintenance expenditures on the property. Although the Maljovecs had discussed converting the tenancy by the entireties into a tenancy in common, the trial court determined that at the time of Frank’s death the property was still owned by the couple as a tenancy by the entireties. Despite that specific finding, the trial court nevertheless ordered an accounting of the maintenance expenditures from the inception of the lease and escrow account. However, the very nature of an entireties estate precludes an accounting, for a single legal entity cannot be ordered to account to itself. See Stemniski, supra; Wakefield, supra.

In its opinion the trial court stated:

We specifically find that an accounting is justified based upon the caselaw contained in Lindenfelser v. Lindensfelser [sic], 396 Pa. 530, 153 A.2d 901 (1959) and Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). Both of these cases hold that the Court may order an accounting when entireties property is involved. The fact that one of the parties is no longer alive does not change the result since death does not affect that party’s substantive rights. See In Re Dowler’s Estate, 358 [368] Pa. 519, 84 A.2d 209 (1951). This case involves a situation where the items for which an accounting is sought— maintenance of real estate, mortgage etc. — were joint obligations of the parties. The obligations were incurred for the benefit of both and, therefore, a post-death accounting should be ordered to assess and equalize the spouses’ contributions to the entireties property.

We disagree with the trial court’s interpretation of the case law and find Lindenfelser, supra and Fascione, supra to be inapposite to the case at hand.

In Lindenfelser, the couple was separated but not divorced. While the marriage was intact the couple had purchased, as tenants by the entireties, three parcels of real estate; the marital home and two rental properties. When the couple separated, the wife retained exclusive control of all three properties and used the income from the rental properties to support herself. Several years after the separation the husband’s business failed, leaving him destitute and in need of support. When the husband sought part of the income from the entireties property he was rebuffed first by his wife and then by the trial court. The case was extensively litigated and reached the supreme court three times. The supreme court determined that the husband’s previous acquiescence in his wife’s exclusive use of the marital residence and rental proceeds did not preclude him from later seeking his share of the entireties property to support himself. The court stated:

We believe the modern rule to be that where husband and wife are separated but not divorced and where one of them is excluded from the exercise or enjoyment of rights inherent in an estate held by the entireties, an accounting of the property so held may be ordered and the property or proceeds divided equally between them, (emphasis added).

Lindenfelser, 396 Pa. at 534, 153 A.2d at 905.

In Lindenfelser the wife’s exclusion of her husband from the entireties property was an implied offer to terminate the entireties estate, and the husband’s petition for an accounting constituted his acceptance of her offer. Thus by implied mutual agreement the entireties estate was severed and the court was then able to order an accounting and division of the rental proceeds or of the properties themselves. Here the Maljovecs were also separated but not divorced. Unlike the situation in Lindenfelser, however, neither Frank nor Franciska Maljovec had ever been excluded by the other from the exercise or enjoyment of rights inherent in an entireties estate. The rental income was held in an escrow account in both names, to the benefit of both and the exclusion of neither. Therefore, the trial court could not properly apply the fiction of an implied agreement to sever the tenancy in order to permit an accounting.

In Fascione, the husband and wife owned a bank account, their marital domicile and all the furnishings therein as tenants by the entireties. After twenty years of marriage the wife moved out of their house. Subsequently the husband moved furniture out of the marital abode, ostensibly because he thought he might need the items to furnish an apartment for himself. This court agreed with the trial court’s finding of an implied agreement to sever the entire-ties estate, and reasoned that regardless of the husband’s rationale for removing the furniture, “the result is identical: namely, an exclusion of the wife from entireties property.” Fascione, 272 Pa.Super. at 537, 416 A.2d at 1026 (emphasis added). Again in Fascione, as in IAndenfelser, the polestar is the exclusion of one spouse by the other spouse from the use or enjoyment of the entireties property.

In In re Dowler’s Estate the widower sought contribution from his deceased wife’s estate for five debts he had satisfied after her death. Four of the debts related to entireties property and the fifth was an installment contract signed by both husband and wife for an appliance. Our supreme court analyzed in detail each claim for reimbursement and awarded the widower one half of the balance due at the time of his wife's death only on the mortgage, a judgment note for the roof and a promissory note for the storm windows for property held by the entireties. The court permitted no reimbursement for expenses incurred while the wife was still alive. Upon the death of the wife the tenancy by the entireties was destroyed, see Clinger-man, supra, and the deceased’s estate became liable for her half of the debts for which she co-signed. Dowler, 368 Pa. at 521-522, 84 A.2d at 210 (citations omitted). Contrary to the trial court’s interpretation, Dowler does not stand for the proposition that a deceased spouse’s estate is either subject to or entitled to an accounting and contribution for expenses incurred on entireties property during the lifetime of the deceased spouse. There is simply no support for this conclusion.

In light of the foregoing, we hold that the trial court’s decision that the Maljovec Estate is entitled to an accounting of the entireties property held in escrow from 1976 until testator's death is erroneous as a matter of law. Fulkroad, supra. As we have concluded that the Estate is not entitled to an accounting for the period that Frank Maljovec was alive, we need not reach the issue of the appropriate statute of limitations to be applied.

Order reversed and case remanded to the trial court for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . Recently, in Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986), the supreme court restated the legal fiction of an implied agreement to sever an entireties estate as "a more exacting test to determine whether severance has occurred. It is the two-part test of an offer, consisting of a misappropriation, and an acceptance, consisting of the filing of an action to partition [or for an accounting, ejectment or other remedy].” Id., 513 Pa. at 188, 519 A.2d at 383. The court emphasized that the focus is not solely on the filing of the petition, but on whether the two elements occurred. Id. (emphasis in original).

        . This court also found that the trial court erred by not extending the severance to all property held by the entireties — the domicile and the bank account in addition to the furniture. 272 Pa.Super. at 534, 416 A.2d at 1025. The court stated: "The clear import of the supreme court’s use of the term ‘all property [in Watkins v. Watkins, 393 Pa. 284, 142 A.2d 6 (1958) ] is that upon misappropriation of a single unit, whether it be personal property, real estate, or bank accounts, the sum total of entireties property is available for partition.” Id. 272 Pa.Super. at 537-538, 416 A.2d at 1027. The court further stated that "it would be injudicious to subject the injured party [the wife] to the risk of future misappropriations by a spouse who has disregarded the tenancy’s fundamental obligation.” Id.

      . In Fascione this court denied the husband's request for reimbursement for one-half of the expenses he sustained for maintenance and taxes on their marital residence for the period he had wrongfully excluded his wife. The court did hold that the husband was to be reimbursed for one-half of the mortgage payments though. According to the court: "Mortgage payments, however, stand on a different footing, as they increase the equities of both parties regardless of the exclusion of the wife.” 272 Pa.Super. at 540, 416 A.2d at 1028. The wife was ordered to reimburse her husband from the date of her exclusion from their domicile; in other words, from the date of her husband’s implied offer to terminate the tenancy by the entireties. This holding is inapplicable to the instant case because at no time did either Frank or Franciska Maljovec exclude the other from the rental proceeds from the entireties property rented to the Pennsylvania State Police.